Legal Medicine

LEGAL MEDICINE JURISPRUDENCE 2016
Doctrine of Vicarious Liability
FIRST DIVISION
PROFESSIONAL SERVICES, INC.,
Petitioner,
G.R. No. 126297
- versus NATIVIDAD and ENRIQUE AGANA,

Respondents.
x----------------------x
NATIVIDAD (Substituted by her
children MARCELINO AGANA III,
ENRIQUE AGANA, JR., EMMA
AGANA ANDAYA, JESUS AGANA,
and
RAYMUND
AGANA)
and
ENRIQUE AGANA,
Petitioners,
G.R. No. 126467
- versus JUAN FUENTES,

Respondent.
x- - - - - - - - - - - - - - - - - - - -- - - x
MIGUEL AMPIL,
Petitioner,
G.R. No. 127590
- versus -
NATIVIDAD AGANA and

ENRIQUEAGANA,
Respondents.
Present:
PUNO, C.J., Chairperson
SANDOVAL-GUTIERREZ,
CORONA,
AZCUNA, and
*
GARCIA, JJ.
Promulgated:
January 31, 2007

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION
SANDOVAL-GUTIERREZ, J.:
Hospitals, having undertaken one of mankinds most important and

delicate endeavors, must assume the grave responsibility of pursuing it
with appropriate care. The care and service dispensed through this high
trust, however technical, complex and esoteric its character may be, must
meet standards of responsibility commensurate with the undertaking to
preserve and protect the health, and indeed, the very lives of those placed
in the hospitals keeping.[1]
Assailed in these three consolidated petitions for review on certiorari is
the Court of Appeals Decision [2] dated September 6, 1996 in CA-G.R. CV
No. 42062 and CA-G.R. SP No. 32198 affirming with modification the
Decision[3] dated March 17, 1993 of the Regional Trial Court (RTC), Branch
96, Quezon City in Civil Case No. Q-43322 and nullifying its Order
dated September 21, 1993.
The facts, as culled from the records, are:
On April
4,
1984,
Natividad
Agana
was
the Medical City General Hospital (Medical City Hospital)
rushed
to
because
of
difficulty of bowel movement and bloody anal discharge. After a series of

medical examinations, Dr. Miguel Ampil, petitioner in G.R. No. 127590,
diagnosed her to be suffering from cancer of the sigmoid.
On April
11,
1984,
Dr.
Ampil,
assisted
by
the
medical
staff [4] of
the Medical City Hospital, performed an anterior resection surgery on

Natividad. He found that the malignancy in her sigmoid area had spread
on her left ovary, necessitating the removal of certain portions of it. Thus,
Dr. Ampil obtained the consent of Natividads husband, Enrique Agana, to
permit Dr. Juan Fuentes, respondent in G.R. No. 126467, to perform
hysterectomy on her.
After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over,
completed the operation and closed the incision.
However, the operation appeared to be flawed. In the corresponding
Record of Operation dated April 11, 1984, the attending nurses entered
these remarks:

sponge count lacking 2
announced to surgeon searched (sic) done but to no
avail continue for closure.
On April 24, 1984, Natividad was released from the hospital. Her hospital
and medical bills, including the doctors fees, amounted to P60,000.00.
After a couple of days, Natividad complained of excruciating pain in her
anal region. She consulted both Dr. Ampil and Dr. Fuentes about it. They
told her that the pain was the natural consequence of the surgery. Dr.
Ampil then recommended that she consult an oncologist to examine the
cancerous nodes which were not removed during the operation.
On May 9, 1984, Natividad, accompanied by her husband, went to
the United
States to
seek
further
treatment.
After
four
months
of
consultations and laboratory examinations, Natividad was told she was

free of cancer. Hence, she was advised to return to the Philippines.
On August 31, 1984, Natividad flew back to the Philippines, still suffering
from pains. Two weeks thereafter, her daughter found a piece of gauze
protruding from her vagina.Upon being informed about it, Dr. Ampil
proceeded to her house where he managed to extract by hand a piece of
gauze measuring 1.5 inches in width. He then assured her that the pains
would soon vanish.
Dr. Ampils assurance did not come true. Instead, the pains intensified,
prompting
Natividad
to
seek
treatment
at
the Polymedic
General Hospital. While confined there, Dr. Ramon Gutierrez detected the
presence of another foreign object in her vagina -- a foul-smelling gauze
measuring 1.5 inches in width which badly infected her vaginal vault. A
recto-vaginal fistula had formed in her reproductive organs which forced
stool to excrete through the vagina. Another surgical operation was
needed to remedy the damage.
Thus,
in October 1984, Natividad
underwent another surgery.

On November 12, 1984, Natividad and her husband filed with the RTC,
Branch 96, Quezon City a complaint for damages against the Professional
Services, Inc. (PSI), owner of the Medical City Hospital, Dr. Ampil, and Dr.
Fuentes, docketed as Civil Case No. Q-43322. They alleged that the latter
are liable for negligence for leaving two pieces of gauze inside Natividads
body and malpractice for concealing their acts of negligence.

Meanwhile, Enrique Agana also filed with the Professional Regulation
Commission (PRC) an administrative complaint for gross negligence and
malpractice against Dr. Ampil and Dr. Fuentes, docketed as Administrative
Case No. 1690. The PRC Board of Medicine heard the case only with
respect to Dr. Fuentes because it failed to acquire jurisdiction over Dr.
Ampil who was then in the United States.
On February 16, 1986, pending the outcome of the above cases, Natividad
died and was duly substituted by her above-named children (the Aganas).
On March 17, 1993, the RTC rendered its Decision in favor of the Aganas,
finding
PSI,
Dr.
Ampil
and
Dr.
Fuentes
liable
for
negligence
malpractice, the decretal part of which reads:

WHEREFORE, judgment is hereby rendered for the plaintiffs
ordering the defendants PROFESSIONAL SERVICES, INC., DR.
MIGUEL AMPIL and DR. JUAN FUENTES to pay to the plaintiffs,
jointly and severally, except in respect of the award for
exemplary damages and the interest thereon which are the
liabilities of defendants Dr. Ampil and Dr. Fuentes only, as
follows:
1.
As actual damages, the following amounts:

a.
The equivalent in Philippine Currency of the

total of US$19,900.00 at the rate of P21.60US$1.00, as reimbursement of actual expenses
incurred in the United States of America;
b.
The sum of P4,800.00 as travel taxes of

plaintiffs and their physician daughter;
c.
The total sum of P45,802.50, representing

the
cost
of
hospitalization
at Polymedic Hospital, medical fees, and cost of
the saline solution;
2.
As moral damages, the sum of P2,000,000.00;
3.
As exemplary damages, the sum of P300,000.00;
4.
As attorneys fees, the sum of P250,000.00;
5.
6.
Legal interest on items 1 (a), (b), and (c); 2; and 3

hereinabove, from date of filing of the complaint until full
payment; and
Costs of suit.
and

SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to

the Court of Appeals, docketed as CA-G.R. CV No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion for a
partial execution of its Decision, which was granted in an Order dated May
11, 1993. Thereafter, the sheriff levied upon certain properties of Dr. Ampil
and sold them for P451,275.00 and delivered the amount to the Aganas.
Following their receipt of the money, the Aganas entered into an
agreement with PSI and Dr. Fuentes to indefinitely suspend any further
execution of the RTC Decision.However, not long thereafter, the Aganas
again filed a motion for an alias writ of execution against the properties of
PSI and Dr. Fuentes. On September 21, 1993, the RTC granted the motion
and issued the corresponding writ, prompting Dr. Fuentes to file with the
Court of Appeals a petition for certiorari and prohibition, with prayer for
preliminary injunction, docketed as CA-G.R. SP No. 32198. During its
pendency, the Court of Appeals issued a Resolution [5] dated October 29,
1993 granting Dr. Fuentes prayer for injunctive relief.
On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with CA-G.R.
CV No. 42062.
Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its
Decision[6] in Administrative Case No. 1690 dismissing the case against Dr.
Fuentes. The Board held that the prosecution failed to show that Dr.
Fuentes was the one who left the two pieces of gauze inside Natividads
body; and that he concealed such fact from Natividad.
On September 6, 1996, the Court of Appeals rendered its Decision jointly
disposing of CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198, thus:
WHEREFORE, except for the modification that the case against
defendant-appellant Dr. Juan Fuentes is hereby DISMISSED,
and with the pronouncement that defendant-appellant Dr.
Miguel
Ampil
is
liable
to
reimburse
defendantappellant Professional Services, Inc., whatever amount the
latter will pay or had paid to the plaintiffs-appellees, the
decision appealed from is hereby AFFIRMED and the instant
appeal DISMISSED.

Concomitant with the above, the petition for certiorari and
prohibition filed by herein defendant-appellant Dr. Juan
Fuentes in CA-G.R. SP No. 32198 is hereby GRANTED and the
challenged order of the respondent judge dated September
21, 1993, as well as the alias writ of execution issued
pursuant thereto are hereby NULLIFIED and SET ASIDE. The
bond posted by the petitioner in connection with the writ of
preliminary injunction issued by this Court on November 29,
1993 is hereby cancelled.
Costs
against
defendants-appellants Dr.
Ampil and Professional Services, Inc.
Miguel
SO ORDERED.
Only Dr. Ampil filed a motion for reconsideration, but it was denied
in a Resolution[7] dated December 19, 1996.
Hence, the instant consolidated petitions.
In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals
erred in holding that: (1) it is estopped from raising the defense that Dr.
Ampil is not its employee; (2) it is solidarily liable with Dr. Ampil; and (3) it
is not entitled to its counterclaim against the Aganas. PSI contends that
Dr. Ampil is not its employee, but a mere consultant or independent
contractor. As such, he alone should answer for his negligence.
In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in
finding that Dr. Fuentes is not guilty of negligence or medical malpractice,
invoking the doctrine ofres ipsa loquitur. They contend that the pieces of
gauze are prima facie proofs that the operating surgeons have been
negligent.
Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals
erred in finding him liable for negligence and malpractice sans evidence
that he left the two pieces of gauze in Natividads vagina. He pointed to
other probable causes, such as: (1) it was Dr. Fuentes who used gauzes in
performing the hysterectomy; (2) the attending nurses failure to properly
count the gauzes used during surgery; and (3) the medical intervention of
the American doctors who examined Natividad in the United States of
America.
For our resolution are these three vital issues: first, whether the
Court of Appeals erred in holding Dr. Ampil liable for negligence and
malpractice; second, whether the Court of Appeals erred in absolving Dr.

Fuentes of any liability; and third, whether PSI may be held solidarily
liable for the negligence of Dr. Ampil.
I - G.R. No. 127590
Whether the Court of Appeals Erred in Holding Dr. Ampil
Liable
for
Negligence
and
Malpractice.
Dr. Ampil, in an attempt to absolve himself, gears the Courts attention to

other possible causes of Natividads detriment. He argues that the Court
should not discount either of the following possibilities: first, Dr. Fuentes
left
the
gauzes
in
Natividads
body
after
performing
hysterectomy; second, the attending nurses erred in counting the gauzes;

and third,the American doctors were the ones who placed the gauzes in
Natividads body.
Dr. Ampils arguments are purely conjectural and without basis.
Records show that he did not present any evidence to prove that the
American doctors were the ones who put or left the gauzes in Natividads
body. Neither did he submit evidence to rebut the correctness of the
record of operation, particularly the number of gauzes used. As to the
alleged negligence of Dr. Fuentes, we are mindful that Dr. Ampil examined
his (Dr. Fuentes) work and found it in order.
The glaring truth is that all the major circumstances, taken together, as
specified by the Court of Appeals, directly point to Dr. Ampil as the
negligent party, thus:
First, it is not disputed that the surgeons used gauzes
as sponges to control the bleeding of the patient during the
surgical operation.
Second, immediately after the operation, the nurses
who assisted in the surgery noted in their report that the
sponge count (was) lacking 2; that such anomaly was
announced to surgeon and that a search was done but to no
avail prompting Dr. Ampil to continue for closure x x x.
Third, after the operation, two (2) gauzes were
extracted from the same spot of the body of Mrs. Agana
where the surgery was performed.

An operation requiring the placing of sponges in the incision is not
complete until the sponges are properly removed, and it is settled that the
leaving of sponges or other foreign substances in the wound after the
incision
has
operating
been
surgeon.
closed
[8]
To
is
put
at
it
least prima facie negligence

simply,
such
act
is
by
considered
the
so
inconsistent with due care as to raise an inference of negligence. There

are
even
legions
of
authorities
to
the
effect
that
such
act
is negligence per se.[9]

Of course, the Court is not blind to the reality that there are times
when danger to a patients life precludes a surgeon from further searching
missing sponges or foreign objects left in the body. But this does not
leave him free from any obligation. Even if it has been shown that a
surgeon was required by the urgent necessities of the case to leave a
sponge in his patients abdomen, because of the dangers attendant upon
delay, still, it is his legal duty to so inform his patient within a reasonable
time thereafter by advising her of what he had been compelled to do. This
is in order that she might seek relief from the effects of the foreign object
left in her body as her condition might permit. The ruling in Smith v.
Zeagler[10] is explicit, thus:
The removal of all sponges used is part of a surgical
operation, and when a physician or surgeon fails to remove a
sponge he has placed in his patients body that should be
removed as part of the operation, he thereby leaves his
operation uncompleted and creates a new condition which
imposes upon him the legal duty of calling the new condition
to his patients attention, and endeavoring with the means he
has at hand to minimize and avoid untoward results likely to
ensue therefrom.
Here, Dr. Ampil did not inform Natividad about the missing two
pieces of gauze. Worse, he even misled her that the pain she was
experiencing was the ordinary consequence of her operation. Had he been
more candid, Natividad could have taken the immediate and appropriate
medical remedy to remove the gauzes from her body. To our mind, what
was initially an act of negligence by Dr. Ampil has ripened into a deliberate
wrongful act of deceiving his patient.

This is a clear case of medical malpractice or more appropriately,
medical negligence. To successfully pursue this kind of case, a patient
must only prove that a health care provider either failed to do something
which a reasonably prudent health care provider would have done, or that
he did something that a reasonably prudent provider would not have
done; and that failure or action caused injury to the patient. [11] Simply put,
the elements are duty, breach, injury and proximate causation. Dr, Ampil,
as the lead surgeon, had the duty to remove all foreign objects, such as
gauzes, from Natividads body before closure of the incision. When he
failed to do so, it was his duty to inform Natividad about it. Dr. Ampil
breached
both
duties.
Such
breach
caused
injury
to
Natividad,
necessitating her further examination by American doctors and another

surgery. That Dr. Ampils negligence is the proximate cause [12] of Natividads
injury could be traced from his act of closing the incision despite the
information given by the attending nurses that two pieces of gauze were
still missing. That they were later on extracted from Natividads vagina
established the causal link between Dr. Ampils negligence and the injury.
And what further aggravated such injury was his deliberate concealment
of the missing gauzes from the knowledge of Natividad and her family.
II - G.R. No. 126467
Whether the Court of Appeals Erred in Absolving
Dr. Fuentes of any Liability
The Aganas assailed the dismissal by the trial court of the case against Dr.
Fuentes on the ground that it is contrary to the doctrine of res ipsa
loquitur. According to them, the fact that the two pieces of gauze were left
inside Natividads body is a prima facie evidence of Dr. Fuentes negligence.
We are not convinced.
Literally, res ipsa loquitur means the thing speaks for itself. It is the rule
that the fact of the occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a presumption of
negligence, or make out a plaintiffs prima facie case, and present a
question of fact for defendant to meet with an explanation. [13] Stated
differently, where the thing which caused the injury, without the fault of
the injured, is under the exclusive control of the defendant and the injury

is such that it should not have occurred if he, having such control used
proper care, it affords reasonable evidence, in the absence of explanation
that the injury arose from the defendants want of care, and the burden of
proof is shifted to him to establish that he has observed due care and
diligence.[14]
From the foregoing statements of the rule, the requisites for the
applicability of the doctrine of res ipsa loquitur are: (1) the occurrence of
an injury; (2) the thing which caused the injury was under the control and
management of the defendant; (3) the occurrence was such that in the
ordinary course of things, would not have happened if those who had
control
or
management
used
proper
care;
and (4) the
absence
of
explanation by the defendant. Of the foregoing requisites, the most

instrumental is the control and management of the thing which caused the
injury.[15]
We find the element of control and management of the thing which caused
the injury to be wanting. Hence, the doctrine of res ipsa loquitur will not
lie.
It was duly established that Dr. Ampil was the lead surgeon during the
operation of Natividad. He requested the assistance of Dr. Fuentes only to
perform hysterectomy when he (Dr. Ampil) found that the malignancy in
her sigmoid area had spread to her left ovary. Dr. Fuentes performed the
surgery and thereafter reported and showed his work to Dr. Ampil. The
latter examined it and finding everything to be in order, allowed Dr.
Fuentes to leave the operating room. Dr. Ampil then resumed operating on
Natividad. He was about to finish the procedure when the attending
nurses informed him that two pieces of gauze were missing. A diligent
search was conducted, but the misplaced gauzes were not found. Dr. Ampil
then directed that the incision be closed. During this entire period, Dr.
Fuentes was no longer in the operating room and had, in fact, left the
hospital.
Under the Captain of the Ship rule, the operating surgeon is the person in
complete charge of the surgery room and all personnel connected with the
operation. Their duty is to obey his orders. [16] As stated before, Dr. Ampil
was the lead surgeon. In other words, he was the Captain of the Ship. That
he discharged such role is evident from his following conduct: (1) calling

Dr. Fuentes to perform a hysterectomy; (2) examining the work of Dr.
Fuentes and finding it in order; (3) granting Dr. Fuentes permission to
leave; and (4) ordering the closure of the incision. To our mind, it was this
act of ordering the closure of the incision notwithstanding that two pieces
of gauze remained unaccounted for, that caused injury to Natividads
body. Clearly, the control and management of the thing which caused the
injury was in the hands of Dr. Ampil, not Dr. Fuentes.
In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence,
does not per se create or constitute an independent or separate ground of
liability, being a mere evidentiary rule. [17] In other words, mere invocation
and application of the doctrine does not dispense with the requirement of
proof of negligence. Here, the negligence was proven to have been
committed by Dr. Ampil and not by Dr. Fuentes.
III - G.R. No. 126297
Whether PSI Is Liable for the Negligence of Dr. Ampil
The third issue necessitates a glimpse at the historical development of

hospitals and the resulting theories concerning their liability for the
negligence of physicians.
Until the mid-nineteenth century, hospitals were generally charitable
institutions, providing medical services to the lowest classes of society,
without regard for a patients ability to pay. [18] Those who could afford
medical treatment were usually treated at home by their doctors.
[19]
However, the days of house calls and philanthropic health care are
over.The modern health care industry continues to distance itself from its
charitable past and has experienced a significant conversion from a notfor-profit health care to for-profit hospital businesses. Consequently,
significant changes in health law have accompanied the business-related
changes in the hospital industry. One important legal change is an
increase in hospital liability for medical malpractice. Many courts now
allow
claims
of respondeat
for
hospital
superior,
agency by estoppel. [20]
vicarious
apparent
liability
authority,
under
ostensible
the
theories
authority,
or

In this jurisdiction, the statute governing liability for negligent acts
is Article 2176 of the Civil Code, which reads:
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no preexisting contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter.
A derivative of this provision is Article 2180, the rule governing

vicarious liability under the doctrine of respondeat superior, thus:
ART. 2180. The obligation imposed by Article 2176 is
demandable not only for ones own acts or omissions, but also
for those of persons for whom one is responsible.
xxxxxx
The owners and managers of an establishment or enterprise
are likewise responsible for damages caused by their
employees in the service of the branches in which the latter
are employed or on the occasion of their functions.
Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of
their assigned tasks even though the former are not engaged
in any business or industry.
xxxxxx
The responsibility treated of in this article shall cease when
the persons herein mentioned prove that they observed all
the diligence of a good father of a family to prevent damage.
prominent
employer,
civilist
such
as
commented
physicians,
that
professionals
dentists,
and
engaged
pharmacists,
by
are
an
not
employees under this article because the manner in which they perform
their work is not within the control of the latter (employer). In other
words, professionals are considered personally liable for the fault or
negligence they commit in the discharge of their duties, and their
employer cannot be held liable for such fault or negligence. In the context
of the present case, a hospital cannot be held liable for the fault or

negligence of a physician or surgeon in the treatment or operation of
patients.[21]
The
foregoing
view
is
grounded
on
the traditional notion
that
the
professional status and the very nature of the physicians calling preclude
him from being classed as an agent or employee of a hospital, whenever
he acts in a professional capacity. [22] It has been said that medical practice
strictly involves highly developed and specialized knowledge, [23]such that
physicians are generally free to exercise their own skill and judgment in
rendering medical services sans interference.[24] Hence, when a doctor
practices medicine in a hospital setting, the hospital and its employees
are deemed to subserve him in his ministrations to the patient and his
actions are of his own responsibility.[25]
The case of Schloendorff v. Society of New York Hospital[26] was then
considered an authority for this view. The Schloendorff doctrine regards a
physician,
even
if
employed
by
hospital,
as
an independent
contractor because of the skill he exercises and the lack of control exerted
over his work. Under this doctrine, hospitals are exempt from the
application of the respondeat superior principle for fault or negligence
committed by physicians in the discharge of their profession.
However, the efficacy of the foregoing doctrine has weakened with
the significant developments in medical care. Courts came to realize that
modern hospitals are increasingly taking active role in supplying and
regulating medical care to patients. No longer were a hospitals functions
limited to furnishing room, food, facilities for treatment and operation,
and attendants for its patients. Thus, in Bing v. Thunig,[27] the New York
Court of Appeals deviated from the Schloendorff doctrine, noting that
modern
hospitals
actually
do
far
more
than
provide
facilities
for
treatment. Rather, they regularly employ, on a salaried basis, a large staff

of physicians, interns, nurses, administrative and manual workers. They
charge patients for medical care and treatment, even collecting for such
services through legal action, if necessary. The court then concluded that
there
is
no
reason
to
exempt
hospitals
from
the
universal
rule
of respondeat superior.
In our shores, the nature of the relationship between the hospital and the
physicians
is
rendered
inconsequential
in
view
of
our
categorical

pronouncement in Ramos v. Court of Appeals [28] that for purposes of
apportioning responsibility in medical negligence cases, an employeremployee relationship in effect exists between hospitals and their
attending and visiting physicians. This Court held:
We now discuss the responsibility of the hospital in this
particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending and
visiting consultants, who are allegedly not hospital
employees, presents problems in apportioning responsibility
for negligence in medical malpractice cases. However, the
difficulty is more apparent than real.
In the first place, hospitals exercise significant control
in the hiring and firing of consultants and in the conduct of
their work within the hospital premises. Doctors who apply for
consultant slots, visiting or attending, are required to submit
proof of completion of residency,
their educational
qualifications, generally, evidence of accreditation by the
appropriate board (diplomate), evidence of fellowship in most
cases, and references. These requirements are carefully
scrutinized by members of the hospital administration or by a
review committee set up by the hospital who either accept or
reject the application. x x x.
After a physician is accepted, either as a visiting or
attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside rounds for
clerks, interns and residents, moderate grand rounds and
patient audits and perform other tasks and responsibilities,
for the privilege of being able to maintain a clinic in the
hospital, and/or for the privilege of admitting patients into the
hospital. In addition to these, the physicians performance as a
specialist is generally evaluated by a peer review committee
on the basis of mortality and morbidity statistics, and
feedback from patients, nurses, interns and residents. A
consultant remiss in his duties, or a consultant who regularly
falls short of the minimum standards acceptable to the
hospital or its peer review committee, is normally politely
terminated.
In other words, private hospitals, hire, fire and exercise
real control over their attending and visiting consultant staff.
While consultants are not, technically employees, x x x, the
control exercised, the hiring, and the right to terminate
consultants all fulfill the important hallmarks of an employeremployee relationship, with the exception of the payment of
wages. In assessing whether such a relationship in fact exists,

the control test is determining. Accordingly, on the basis of
the foregoing, we rule that for the purpose of allocating
responsibility in medical negligence cases, an employeremployee relationship in effect exists between hospitals and
their attending and visiting physicians.
But the Ramos pronouncement is not our only basis in sustaining

PSIs liability. Its liability is also anchored upon the agency principle
of apparent authority or agency by estoppel and the doctrine of corporate
negligence which have gained
acceptance
in
the
determination
of
hospitals liability for negligent acts of health professionals. The present

case serves as a perfect platform to test the applicability of these
doctrines, thus, enriching our jurisprudence.
Apparent authority, or what is sometimes referred to as the holding

out theory, or doctrine of ostensible agency or agency by estoppel,[29] has
its origin from the law of agency. It imposes liability, not as the result of
the reality of a contractual relationship, but rather because of the actions
of a principal or an employer in somehow misleading the public into
believing that the relationship or the authority exists. [30] The concept is
essentially one of estoppel and has been explained in this manner:
The principal is bound by the acts of his agent with the
apparent authority which he knowingly permits the agent to
assume, or which he holds the agent out to the public as
possessing. The question in every case is whether the
principal has by his voluntary act placed the agent in such a
situation that a person of ordinary prudence, conversant with
business usages and the nature of the particular business, is
justified in presuming that such agent has authority to
perform the particular act in question. [31]
The applicability of apparent authority in the field of hospital

liability was upheld long time ago in Irving v. Doctor Hospital of Lake
Worth, Inc.[32] There, it was explicitly stated that there does not appear to
be any rational basis for excluding the concept of apparent authority from
the field of hospital liability. Thus, in cases where it can be shown that a
hospital, by its actions, has held out a particular physician as its agent
and/or employee and that a patient has accepted treatment from that
physician in the reasonable belief that it is being rendered in behalf of the
hospital, then the hospital will be liable for the physicians negligence.
Our jurisdiction recognizes the concept of an agency by implication
or estoppel. Article 1869 of the Civil Code reads:
ART. 1869. Agency may be express, or implied from the acts of
the principal, from his silence or lack of action, or his failure
to repudiate the agency, knowing that another person is
acting on his behalf without authority.
In
this
case,
PSI
publicly
displays
in
the
lobby
of
the Medical City Hospital the names and specializations of the physicians
associated or accredited by it, including those of Dr. Ampil and Dr.

Fuentes. We concur with the Court of Appeals conclusion that it is now
estopped from passing all the blame to the physicians whose names it
proudly paraded in the public directory leading the public to believe that it
vouched for their skill and competence. Indeed, PSIs act is tantamount to
holding out to the public thatMedical City Hospital, through its accredited
physicians, offers quality health care services. By accrediting Dr. Ampil
and Dr. Fuentes and publicly advertising their qualifications, the hospital
created the impression that they were its agents, authorized to perform
medical or surgical services for its patients. As expected, these patients,
Natividad being one of them, accepted the services on the reasonable
belief that such were being rendered by the hospital or its employees,
agents, or servants. The trial court correctly pointed out:
x x x regardless of the education and status in life of the
patient, he ought not be burdened with the defense of absence
of employer-employee relationship between the hospital and
the independent physician whose name and competence are
certainly certified to the general public by the hospitals act of
listing him and his specialty in its lobby directory, as in the case
herein. The high costs of todays medical and health care should
at least exact on the hospital greater, if not broader, legal
responsibility for the conduct of treatment and surgery within
its facility by its accredited physician or surgeon, regardless of
whether he is independent or employed.[33]
The wisdom of the foregoing ratiocination is easy to discern.

Corporate entities, like PSI, are capable of acting only through other
individuals, such as physicians. If these accredited physicians do their job
well, the hospital succeeds in its mission of offering quality medical
services and thus profits financially. Logically, where negligence mars the
quality of its services, the hospital should not be allowed to escape
liability for the acts of its ostensible agents.
We now proceed to the doctrine of corporate negligence or corporate
responsibility.
One allegation in the complaint in Civil Case No. Q-43332 for negligence
and
malpractice
is
that
PSI
as
owner,
operator
and
manager
of Medical City Hospital, did not perform the necessary supervision nor

exercise diligent efforts in the supervision of Drs. Ampil and Fuentes and
its nursing staff, resident doctors, and medical interns who assisted Drs.
Ampil and Fuentes in the performance of their duties as surgeons.
[34]
Premised on the doctrine of corporate negligence, the trial court held
that PSI is directly liable for such breach of duty.

We agree with the trial court.
Recent years have seen the doctrine of corporate negligence as the
judicial answer to the problem of allocating hospitals liability for the
negligent acts of health practitioners, absent facts to support the
application of respondeat superior or apparent authority. Its formulation
proceeds from the judiciarys acknowledgment that in these modern times,
the duty of providing quality medical service is no longer the sole
prerogative and responsibility of the physician. The modern hospitals have
changed structure. Hospitals now tend to organize a highly professional
medical staff whose competence and performance need to be monitored
by the hospitals commensurate with their inherent responsibility to
provide quality medical care.[35]
The doctrine has its genesis in Darling v. Charleston Community
Hospital.[36] There, the Supreme Court of Illinois held that the jury could
have found a hospital negligent, inter alia, in failing to have a sufficient
number of trained nurses attending the patient; failing to require a
consultation with or examination by members of the hospital staff; and
failing to review the treatment rendered to the patient. On the basis
of Darling, other jurisdictions held that a hospitals corporate negligence
extends to permitting a physician known to be incompetent to practice at
the hospital.[37] With the passage of time, more duties were expected from
hospitals, among them: (1) the use of reasonable care in the maintenance
of safe and adequate facilities and equipment; (2) the selection and
retention of competent physicians; (3) the overseeing or supervision of all
persons who practice medicine within its walls; and (4) the formulation,
adoption and enforcement of adequate rules and policies that ensure
quality care for its patients. [38] Thus, in Tucson Medical Center, Inc. v.
Misevich,[39] it was held that a hospital, following the doctrine of corporate
responsibility, has the duty to see that it meets the standards of
responsibilities for the care of patients. Such duty includes the proper

supervision of the members of its medical staff. And in Bost v. Riley,[40] the
court concluded that a patient who enters a hospital does so with the
reasonable expectation that it will attempt to cure him. The hospital
accordingly has the duty to make a reasonable effort to monitor and
oversee the treatment prescribed and administered by the physicians
practicing in its premises.
In
the
present
case,
it
the Medical City Hospital for
was
the
duly
established
purpose
and
that
under
PSI
the
operates
concept
of
providing comprehensive medical services to the public. Accordingly, it

has the duty to exercise reasonable care to protect from harm all patients
admitted into its facility for medical treatment. Unfortunately, PSI failed
to perform such duty. The findings of the trial court are convincing, thus:
x x x PSIs liability is traceable to its failure to conduct an
investigation of the matter reported in the nota bene of the
count nurse. Such failure established PSIs part in the dark
conspiracy
of
silence
and
concealment
about
the
gauzes. Ethical considerations, if not also legal, dictated the
holding of an immediate inquiry into the events, if not for the
benefit of the patient to whom the duty is primarily owed, then
in the interest of arriving at the truth. The Court cannot accept
that the medical and the healing professions, through their
members like defendant surgeons, and their institutions like
PSIs hospital facility, can callously turn their backs on and
disregard even a mere probability of mistake or negligence by
refusing or failing to investigate a report of such seriousness as
the one in Natividads case.
It is worthy to note that Dr. Ampil and Dr. Fuentes operated on

Natividad
with
the
assistance
composed
of
resident
doctors,
of
the Medical City Hospitals
nurses,
and
interns. As
staff,
such,
it
is
reasonable to conclude that PSI, as the operator of the hospital,

has actual or constructive knowledge
of
the
procedures
carried
out, particularly the report of the attending nurses that the two pieces of
gauze were missing. In Fridena v. Evans,[41] it was held that a corporation
is bound by the knowledge acquired by or notice given to its agents or
officers within the scope of their authority and in reference to a matter to
which their authority extends. This means that the knowledge of any of
the staff ofMedical City Hospital constitutes knowledge of PSI. Now, the

failure of PSI, despite the attending nurses report, to investigate and
inform
Natividad
regarding
the
missing
gauzes amounts
to
callous
negligence. Not only did PSI breach its duties to oversee or supervise all
persons who practice medicine within its walls, it also failed to take an
active step in fixing the negligence committed. This renders PSI, not only
vicariously liable for the negligence of Dr. Ampil under Article 2180 of the
Civil Code, but alsodirectly liable for its own negligence under Article
2176. In Fridena, the Supreme Court of Arizona held:
x x x In recent years, however, the duty of care owed to
the patient by the hospital has expanded. The emerging trend
is to hold the hospital responsible where the hospital has
failed to monitor and review medical services being provided
within its walls. See Kahn Hospital Malpractice Prevention, 27
De Paul . Rev. 23 (1977).
Among the cases indicative of the emerging trend
is Purcell v. Zimbelman, 18 Ariz. App. 75,500 P. 2d 335 (1972).
In Purcell, the hospital argued that it could not be held liable
for the malpractice of a medical practitioner because he was
an independent contractor within the hospital. The Court of
Appeals pointed out that the hospital had created a
professional staff whose competence and performance was to
be monitored and reviewed by the governing body of the
hospital, and the court held that a hospital would be negligent
where it had knowledge or reason to believe that a doctor
using the facilities was employing a method of treatment or
care which fell below the recognized standard of care.
Subsequent to the Purcell decision, the Arizona Court of
Appeals held that a hospital has certain inherent
responsibilities regarding the quality of medical care
furnished to patients within its walls and it must meet the
standards
of
responsibility
commensurate
with
this
undertaking. Beeck v. Tucson General Hospital, 18 Ariz. App.
165, 500 P. 2d 1153 (1972). This court has confirmed the
rulings of the Court of Appeals that a hospital has the duty of
supervising the competence of the doctors on its staff. x x x.
xxxxxx
In the amended complaint, the plaintiffs did plead that
the operation was performed at the hospital with its
knowledge, aid, and assistance, and that the negligence of
the defendants was the proximate cause of the patients
injuries. We find that such general allegations of negligence,
along with the evidence produced at the trial of this case, are

sufficient to support the hospitals liability based on the theory
of negligent supervision.
Anent the corollary issue of whether PSI is solidarily liable with Dr. Ampil
for damages, let it be emphasized that PSI, apart from a general denial of
its responsibility, failed to adduce evidence showing that it exercised the
diligence of a good father of a family in the accreditation and supervision
of the latter. In neglecting to offer such proof, PSI failed to discharge its
burden under the last paragraph of Article 2180 cited earlier, and,
therefore, must be adjudged solidarily liable with Dr. Ampil. Moreover, as
we have discussed, PSI is also directly liable to the Aganas.
One final word. Once a physician undertakes the treatment and care of a
patient, the law imposes on him certain obligations. In order to escape
liability, he must possess that reasonable degree of learning, skill and
experience required by his profession. At the same time, he must apply
reasonable care and diligence in the exercise of his skill and the
application of his knowledge, and exert his best judgment.
WHEREFORE, we DENY all
the
petitions
and AFFIRM the
challenged
Decision of the Court of Appeals in CA-G.R. CV No. 42062 and CA-G.R. SP

No. 32198.
Costs against petitioners PSI and Dr. Miguel Ampil.
SO ORDERED.
Respondeat Superior
Republic
SUPREME
Manila
of
the
Philippines
COURT
THIRD DIVISION
G.R. No. 142625
December 19, 2006
ROGELIO P. NOGALES, for himself and on behalf of the minors, ROGER ANTHONY, ANGELICA, NANCY, and
MICHAEL
CHRISTOPHER,
all
surnamed
NOGALES, petitioners,
vs.
CAPITOL MEDICAL CENTER, DR. OSCAR ESTRADA, DR. ELY VILLAFLOR, DR. ROSA UY, DR. JOEL ENRIQUEZ, DR.
PERPETUA LACSON, DR. NOE ESPINOLA, and NURSE J. DUMLAO, respondents.
DECISION
CARPIO, J.:
The Case
This petition for review 1 assails the 6 February 1998 Decision 2 and 21 March 2000 Resolution 3 of the Court of Appeals in CAG.R. CV No. 45641. The Court of Appeals affirmed in toto the 22 November 1993 Decision4 of the Regional Trial Court of
Manila, Branch 33, finding Dr. Oscar Estrada solely liable for damages for the death of his patient, Corazon Nogales, while
absolving the remaining respondents of any liability. The Court of Appeals denied petitioners' motion for reconsideration.
The Facts
Pregnant with her fourth child, Corazon Nogales ("Corazon"), who was then 37 years old, was under the exclusive prenatal
care of Dr. Oscar Estrada ("Dr. Estrada") beginning on her fourth month of pregnancy or as early as December 1975. While
Corazon was on her last trimester of pregnancy, Dr. Estrada noted an increase in her blood pressure and development of
leg edema5 indicating preeclampsia,6 which is a dangerous complication of pregnancy. 7
Around midnight of 25 May 1976, Corazon started to experience mild labor pains prompting Corazon and Rogelio Nogales
("Spouses Nogales") to see Dr. Estrada at his home. After examining Corazon, Dr. Estrada advised her immediate admission
to the Capitol Medical Center ("CMC").
On 26 May 1976, Corazon was admitted at 2:30 a.m. at the CMC after the staff nurse noted the written admission
request8 of Dr. Estrada. Upon Corazon's admission at the CMC, Rogelio Nogales ("Rogelio") executed and signed the
"Consent on Admission and Agreement" 9 and "Admission Agreement." 10 Corazon was then brought to the labor room of the
CMC.
Dr. Rosa Uy ("Dr. Uy"), who was then a resident physician of CMC, conducted an internal examination of Corazon. Dr. Uy
then called up Dr. Estrada to notify him of her findings.
Based on the Doctor's Order Sheet, 11 around 3:00 a.m., Dr. Estrada ordered for 10 mg. of valium to be administered
immediately by intramuscular injection. Dr. Estrada later ordered the start of intravenous administration of syntocinon
admixed with dextrose, 5%, in lactated Ringers' solution, at the rate of eight to ten micro-drops per minute.
According to the Nurse's Observation Notes, 12 Dr. Joel Enriquez ("Dr. Enriquez"), an anesthesiologist at CMC, was notified at
4:15 a.m. of Corazon's admission. Subsequently, when asked if he needed the services of an anesthesiologist, Dr. Estrada
refused. Despite Dr. Estrada's refusal, Dr. Enriquez stayed to observe Corazon's condition.
At 6:00 a.m., Corazon was transferred to Delivery Room No. 1 of the CMC. At 6:10 a.m., Corazon's bag of water ruptured
spontaneously. At 6:12 a.m., Corazon's cervix was fully dilated. At 6:13 a.m., Corazon started to experience convulsions.
At 6:15 a.m., Dr. Estrada ordered the injection of ten grams of magnesium sulfate. However, Dr. Ely Villaflor ("Dr. Villaflor"),
who was assisting Dr. Estrada, administered only 2.5 grams of magnesium sulfate.
At 6:22 a.m., Dr. Estrada, assisted by Dr. Villaflor, applied low forceps to extract Corazon's baby. In the process, a 1.0 x 2.5
cm. piece of cervical tissue was allegedly torn. The baby came out in an apnic, cyanotic, weak and injured condition.
Consequently, the baby had to be intubated and resuscitated by Dr. Enriquez and Dr. Payumo.
At 6:27 a.m., Corazon began to manifest moderate vaginal bleeding which rapidly became profuse. Corazon's blood
pressure dropped from 130/80 to 60/40 within five minutes. There was continuous profuse vaginal bleeding. The assisting
nurse administered hemacel through a gauge 19 needle as a side drip to the ongoing intravenous injection of dextrose.
At 7:45 a.m., Dr. Estrada ordered blood typing and cross matching with bottled blood. It took approximately 30 minutes for
the CMC laboratory, headed by Dr. Perpetua Lacson ("Dr. Lacson"), to comply with Dr. Estrada's order and deliver the blood.
At 8:00 a.m., Dr. Noe Espinola ("Dr. Espinola"), head of the Obstetrics-Gynecology Department of the CMC, was apprised of
Corazon's condition by telephone. Upon being informed that Corazon was bleeding profusely, Dr. Espinola ordered
immediate hysterectomy. Rogelio was made to sign a "Consent to Operation." 13
Due to the inclement weather then, Dr. Espinola, who was fetched from his residence by an ambulance, arrived at the CMC
about an hour later or at 9:00 a.m. He examined the patient and ordered some resuscitative measures to be administered.
Despite Dr. Espinola's efforts, Corazon died at 9:15 a.m. The cause of death was "hemorrhage, post partum." 14

On 14 May 1980, petitioners filed a complaint for damages 15 with the Regional Trial Court16 of Manila against CMC, Dr.
Estrada, Dr. Villaflor, Dr. Uy, Dr. Enriquez, Dr. Lacson, Dr. Espinola, and a certain Nurse J. Dumlao for the death of Corazon.
Petitioners mainly contended that defendant physicians and CMC personnel were negligent in the treatment and
management of Corazon's condition. Petitioners charged CMC with negligence in the selection and supervision of defendant
physicians and hospital staff.
For failing to file their answer to the complaint despite service of summons, the trial court declared Dr. Estrada, Dr.
Enriquez, and Nurse Dumlao in default.17 CMC, Dr. Villaflor, Dr. Uy, Dr. Espinola, and Dr. Lacson filed their respective
answers denying and opposing the allegations in the complaint. Subsequently, trial ensued.
After more than 11 years of trial, the trial court rendered judgment on 22 November 1993 finding Dr. Estrada solely liable
for damages. The trial court ruled as follows:
The victim was under his pre-natal care, apparently, his fault began from his incorrect and inadequate
management and lack of treatment of the pre-eclamptic condition of his patient. It is not disputed that he
misapplied the forceps in causing the delivery because it resulted in a large cervical tear which had caused the
profuse bleeding which he also failed to control with the application of inadequate injection of magnesium sulfate
by his assistant Dra. Ely Villaflor. Dr. Estrada even failed to notice the erroneous administration by nurse Dumlao
of hemacel by way of side drip, instead of direct intravenous injection, and his failure to consult a senior
obstetrician at an early stage of the problem.
On the part however of Dra. Ely Villaflor, Dra. Rosa Uy, Dr. Joel Enriquez, Dr. Lacson, Dr. Espinola, nurse J. Dumlao
and CMC, the Court finds no legal justification to find them civilly liable.
On the part of Dra. Ely Villaflor, she was only taking orders from Dr. Estrada, the principal physician of Corazon
Nogales. She can only make suggestions in the manner the patient maybe treated but she cannot impose her will
as to do so would be to substitute her good judgment to that of Dr. Estrada. If she failed to correctly diagnose the
true cause of the bleeding which in this case appears to be a cervical laceration, it cannot be safely concluded by
the Court that Dra. Villaflor had the correct diagnosis and she failed to inform Dr. Estrada. No evidence was
introduced to show that indeed Dra. Villaflor had discovered that there was laceration at the cervical area of the
patient's internal organ.
On the part of nurse Dumlao, there is no showing that when she administered the hemacel as a side drip, she did
it on her own. If the correct procedure was directly thru the veins, it could only be because this was what was
probably the orders of Dr. Estrada.
While the evidence of the plaintiffs shows that Dr. Noe Espinola, who was the Chief of the Department of
Obstetrics and Gynecology who attended to the patient Mrs. Nogales, it was only at 9:00 a.m. That he was able to
reach the hospital because of typhoon Didang (Exhibit 2). While he was able to give prescription in the manner
Corazon Nogales may be treated, the prescription was based on the information given to him by phone and he
acted on the basis of facts as presented to him, believing in good faith that such is the correct remedy. He was not
with Dr. Estrada when the patient was brought to the hospital at 2:30 o'clock a.m. So, whatever errors that Dr.
Estrada committed on the patient before 9:00 o'clock a.m. are certainly the errors of Dr. Estrada and cannot be
the mistake of Dr. Noe Espinola. His failure to come to the hospital on time was due to fortuitous event.
On the part of Dr. Joel Enriquez, while he was present in the delivery room, it is not incumbent upon him to call the
attention of Dr. Estrada, Dra. Villaflor and also of Nurse Dumlao on the alleged errors committed by them.
Besides, as anesthesiologist, he has no authority to control the actuations of Dr. Estrada and Dra. Villaflor. For the
Court to assume that there were errors being committed in the presence of Dr. Enriquez would be to dwell on
conjectures and speculations.
On the civil liability of Dr. Perpetua Lacson, [s]he is a hematologist and in-charge of the blood bank of the CMC.
The Court cannot accept the theory of the plaintiffs that there was delay in delivering the blood needed by the
patient. It was testified, that in order that this blood will be made available, a laboratory test has to be conducted
to determine the type of blood, cross matching and other matters consistent with medical science so, the lapse of
30 minutes maybe considered a reasonable time to do all of these things, and not a delay as the plaintiffs would
want the Court to believe.
Admittedly, Dra. Rosa Uy is a resident physician of the Capitol Medical Center. She was sued because of her
alleged failure to notice the incompetence and negligence of Dr. Estrada. However, there is no evidence to
support such theory. No evidence was adduced to show that Dra. Rosa Uy as a resident physician of Capitol
Medical Center, had knowledge of the mismanagement of the patient Corazon Nogales, and that notwithstanding
such knowledge, she tolerated the same to happen.
In the pre-trial order, plaintiffs and CMC agreed that defendant CMC did not have any hand or participation in the
selection or hiring of Dr. Estrada or his assistant Dra. Ely Villaflor as attending physician[s] of the deceased. In

other words, the two (2) doctors were not employees of the hospital and therefore the hospital did not have
control over their professional conduct. When Mrs. Nogales was brought to the hospital, it was an emergency case
and defendant CMC had no choice but to admit her. Such being the case, there is therefore no legal ground to
apply the provisions of Article 2176 and 2180 of the New Civil Code referring to the vicarious liability of an
employer for the negligence of its employees. If ever in this case there is fault or negligence in the treatment of
the deceased on the part of the attending physicians who were employed by the family of the deceased, such civil
liability should be borne by the attending physicians under the principle of "respondeat superior".
WHEREFORE, premises considered, judgment is hereby rendered finding defendant Dr. Estrada of Number 13
Pitimini St. San Francisco del Monte, Quezon City civilly liable to pay plaintiffs: 1) By way of actual damages in the
amount of P105,000.00; 2) By way of moral damages in the amount of P700,000.00; 3) Attorney's fees in the
amount of P100,000.00 and to pay the costs of suit.
For failure of the plaintiffs to adduce evidence to support its [sic] allegations against the other defendants, the
complaint is hereby ordered dismissed. While the Court looks with disfavor the filing of the present complaint
against the other defendants by the herein plaintiffs, as in a way it has caused them personal inconvenience and
slight damage on their name and reputation, the Court cannot accepts [sic] however, the theory of the remaining
defendants that plaintiffs were motivated in bad faith in the filing of this complaint. For this reason defendants'
counterclaims are hereby ordered dismissed.
SO ORDERED.18
Petitioners appealed the trial court's decision. Petitioners claimed that aside from Dr. Estrada, the remaining respondents
should be held equally liable for negligence. Petitioners pointed out the extent of each respondent's alleged liability.
On 6 February 1998, the Court of Appeals affirmed the decision of the trial court. 19 Petitioners filed a motion for
reconsideration which the Court of Appeals denied in its Resolution of 21 March 2000. 20
Hence, this petition.
Meanwhile, petitioners filed a Manifestation dated 12 April 2002 21 stating that respondents Dr. Estrada, Dr. Enriquez, Dr.
Villaflor, and Nurse Dumlao "need no longer be notified of the petition because they are absolutely not involved in the issue
raised before the [Court], regarding the liability of [CMC]." 22 Petitioners stressed that the subject matter of this petition is
the liability of CMC for the negligence of Dr. Estrada. 23
The Court issued a Resolution dated 9 September 2002 24 dispensing with the requirement to submit the correct and present
addresses of respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao. The Court stated that with the filing of
petitioners' Manifestation, it should be understood that they are claiming only against respondents CMC, Dr. Espinola, Dr.
Lacson, and Dr. Uy who have filed their respective comments. Petitioners are foregoing further claims against respondents
Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao.
The Court noted that Dr. Estrada did not appeal the decision of the Court of Appeals affirming the decision of the Regional
Trial Court. Accordingly, the decision of the Court of Appeals, affirming the trial court's judgment, is already final as against
Dr. Oscar Estrada.
Petitioners filed a motion for reconsideration 25 of the Court's 9 September 2002 Resolution claiming that Dr. Enriquez, Dr.
Villaflor and Nurse Dumlao were notified of the petition at their counsels' last known addresses. Petitioners reiterated their
imputation of negligence on these respondents. The Court denied petitioners' Motion for Reconsideration in its 18 February
2004 Resolution.26
The Court of Appeals' Ruling
In its Decision of 6 February 1998, the Court of Appeals upheld the trial court's ruling. The Court of Appeals rejected
petitioners' view that the doctrine in Darling v. Charleston Community Memorial Hospital 27 applies to this case. According to
the Court of Appeals, the present case differs from the Darling case since Dr. Estrada is an independent contractorphysician whereas the Darling case involved a physician and a nurse who were employees of the hospital.
Citing other American cases, the Court of Appeals further held that the mere fact that a hospital permitted a physician to
practice medicine and use its facilities is not sufficient to render the hospital liable for the physician's negligence. 28 A
hospital is not responsible for the negligence of a physician who is an independent contractor. 29
The Court of Appeals found the cases of Davidson v. Conole30 and Campbell v. Emma Laing Stevens Hospital 31applicable to
this case. Quoting Campbell, the Court of Appeals stated that where there is no proof that defendant physician was an
employee of defendant hospital or that defendant hospital had reason to know that any acts of malpractice would take

place, defendant hospital could not be held liable for its failure to intervene in the relationship of physician-patient between
defendant physician and plaintiff.
On the liability of the other respondents, the Court of Appeals applied the "borrowed servant" doctrine considering that Dr.
Estrada was an independent contractor who was merely exercising hospital privileges. This doctrine provides that once the
surgeon enters the operating room and takes charge of the proceedings, the acts or omissions of operating room personnel,
and any negligence associated with such acts or omissions, are imputable to the surgeon. 32 While the assisting physicians
and nurses may be employed by the hospital, or engaged by the patient, they normally become the temporary servants or
agents of the surgeon in charge while the operation is in progress, and liability may be imposed upon the surgeon for their
negligent acts under the doctrine of respondeat superior.33
The Court of Appeals concluded that since Rogelio engaged Dr. Estrada as the attending physician of his wife, any liability
for malpractice must be Dr. Estrada's sole responsibility.
While it found the amount of damages fair and reasonable, the Court of Appeals held that no interest could be imposed on
unliquidated claims or damages.
The Issue
Basically, the issue in this case is whether CMC is vicariously liable for the negligence of Dr. Estrada. The resolution of this
issue rests, on the other hand, on the ascertainment of the relationship between Dr. Estrada and CMC. The Court also
believes that a determination of the extent of liability of the other respondents is inevitable to finally and completely
dispose of the present controversy.
The Ruling of the Court
The petition is partly meritorious.
On the Liability of CMC
Dr. Estrada's negligence in handling the treatment and management of Corazon's condition which ultimately resulted in
Corazon's death is no longer in issue. Dr. Estrada did not appeal the decision of the Court of Appeals which affirmed the
ruling of the trial court finding Dr. Estrada solely liable for damages. Accordingly, the finding of the trial court on Dr.
Estrada's negligence is already final.
Petitioners maintain that CMC is vicariously liable for Dr. Estrada's negligence based on Article 2180 in relation to Article
2176 of the Civil Code. These provisions pertinently state:
Art. 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but
also for those of persons for whom one is responsible.
xxxx
Employers shall be liable for the damages caused by their employees and household helpers acting within the
scope of their assigned tasks, even though the former are not engaged in any business or industry.
xxxx
The responsibility treated of in this article shall cease when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to prevent damage.
Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to
pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the provisions of this Chapter.
Similarly, in the United States, a hospital which is the employer, master, or principal of a physician employee, servant, or
agent, may be held liable for the physician's negligence under the doctrine of respondeat superior.34
In the present case, petitioners maintain that CMC, in allowing Dr. Estrada to practice and admit patients at CMC, should be
liable for Dr. Estrada's malpractice. Rogelio claims that he knew Dr. Estrada as an accredited physician of CMC, though he
discovered later that Dr. Estrada was not a salaried employee of the CMC. 35 Rogelio further claims that he was dealing with
CMC, whose primary concern was the treatment and management of his wife's condition. Dr. Estrada just happened to be

the specific person he talked to representing CMC. 36 Moreover, the fact that CMC made Rogelio sign a Consent on Admission
and Admission Agreement37 and a Consent to Operation printed on the letterhead of CMC indicates that CMC considered Dr.
Estrada as a member of its medical staff.
On the other hand, CMC disclaims liability by asserting that Dr. Estrada was a mere visiting physician and that it admitted
Corazon because her physical condition then was classified an emergency obstetrics case. 38
CMC alleges that Dr. Estrada is an independent contractor "for whose actuations CMC would be a total stranger." CMC
maintains that it had no control or supervision over Dr. Estrada in the exercise of his medical profession.
The Court had the occasion to determine the relationship between a hospital and a consultant or visiting physician and the
liability of such hospital for that physician's negligence in Ramos v. Court of Appeals,39 to wit:
In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of
their work within the hospital premises. Doctors who apply for "consultant" slots, visiting or attending, are
required to submit proof of completion of residency, their educational qualifications; generally, evidence of
accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references. These
requirements are carefully scrutinized by members of the hospital administration or by a review committee set up
by the hospital who either accept or reject the application. This is particularly true with respondent hospital.
After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinicopathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and
patient audits and perform other tasks and responsibilities, for the privilege of being able to maintain a clinic in
the hospital, and/or for the privilege of admitting patients into the hospital. In addition to these, the physician's
performance as a specialist is generally evaluated by a peer review committee on the basis of mortality and
morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant remiss in his duties,
or a consultant who regularly falls short of the minimum standards acceptable to the hospital or its peer review
committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over their attending and visiting "consultant"
staff. While "consultants" are not, technically employees, a point which respondent hospital asserts in
denying all responsibility for the patient's condition, the control exercised, the hiring, and the right
to terminate consultants all fulfill the important hallmarks of an employer-employee relationship,
with the exception of the payment of wages. In assessing whether such a relationship in fact exists,
the control test is determining. Accordingly, on the basis of the foregoing, we rule that for the
purpose of allocating responsibility in medical negligence cases, an employer-employee relationship
in effect exists between hospitals and their attending and visiting physicians. This being the case, the
question now arises as to whether or not respondent hospital is solidarily liable with respondent doctors for
petitioner's condition.
The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180
of the Civil Code which considers a person accountable not only for his own acts but also for those of others based
on the former's responsibility under a relationship of patria potestas. x x x 40(Emphasis supplied)
While the Court in Ramos did not expound on the control test, such test essentially determines whether an employment
relationship exists between a physician and a hospital based on the exercise of control over the physician as to details.
Specifically, the employer (or the hospital) must have the right to control both the means and the details of the process by
which the employee (or the physician) is to accomplish his task. 41
After a thorough examination of the voluminous records of this case, the Court finds no single evidence pointing to CMC's
exercise of control over Dr. Estrada's treatment and management of Corazon's condition. It is undisputed that throughout
Corazon's pregnancy, she was under the exclusive prenatal care of Dr. Estrada. At the time of Corazon's admission at CMC
and during her delivery, it was Dr. Estrada, assisted by Dr. Villaflor, who attended to Corazon. There was no showing that
CMC had a part in diagnosing Corazon's condition. While Dr. Estrada enjoyed staff privileges at CMC, such fact alone did not
make him an employee of CMC. 42 CMC merely allowed Dr. Estrada to use its facilities 43 when Corazon was about to give
birth, which CMC considered an emergency. Considering these circumstances, Dr. Estrada is not an employee of CMC, but
an independent contractor.
The question now is whether CMC is automatically exempt from liability considering that Dr. Estrada is an independent
contractor-physician.
In general, a hospital is not liable for the negligence of an independent contractor-physician. There is, however, an
exception to this principle. The hospital may be liable if the physician is the "ostensible" agent of the hospital. 44This
exception is also known as the "doctrine of apparent authority." 45 In Gilbert v. Sycamore Municipal Hospital,46 the Illinois
Supreme Court explained the doctrine of apparent authority in this wise:

[U]nder the doctrine of apparent authority a hospital can be held vicariously liable for the negligent acts of a
physician providing care at the hospital, regardless of whether the physician is an independent contractor, unless
the patient knows, or should have known, that the physician is an independent contractor. The elements of the
action have been set out as follows:
"For a hospital to be liable under the doctrine of apparent authority, a plaintiff must show that: (1) the hospital, or
its agent, acted in a manner that would lead a reasonable person to conclude that the individual who was alleged
to be negligent was an employee or agent of the hospital; (2) where the acts of the agent create the appearance
of authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and (3) the
plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and
prudence."
The element of "holding out" on the part of the hospital does not require an express representation by the
hospital that the person alleged to be negligent is an employee. Rather, the element is satisfied if the hospital
holds itself out as a provider of emergency room care without informing the patient that the care is provided by
independent contractors.
The element of justifiable reliance on the part of the plaintiff is satisfied if the plaintiff relies upon the hospital to
provide complete emergency room care, rather than upon a specific physician.
The doctrine of apparent authority essentially involves two factors to determine the liability of an independent-contractor
physician.
The first factor focuses on the hospital's manifestations and is sometimes described as an inquiry whether the hospital
acted in a manner which would lead a reasonable person to conclude that the individual who was alleged to be negligent
was an employee or agent of the hospital. 47 In this regard, the hospital need not make express representations to
the patient that the treating physician is an employee of the hospital; rather a representation may be general
and implied.48
The doctrine of apparent authority is a species of the doctrine of estoppel. Article 1431 of the Civil Code provides that
"[t]hrough estoppel, an admission or representation is rendered conclusive upon the person making it, and cannot be
denied or disproved as against the person relying thereon." Estoppel rests on this rule: "Whenever a party has, by his own
declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon
such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it." 49
In the instant case, CMC impliedly held out Dr. Estrada as a member of its medical staff. Through CMC's acts, CMC clothed
Dr. Estrada with apparent authority thereby leading the Spouses Nogales to believe that Dr. Estrada was an employee or
agent of CMC. CMC cannot now repudiate such authority.
First, CMC granted staff privileges to Dr. Estrada. CMC extended its medical staff and facilities to Dr. Estrada. Upon Dr.
Estrada's request for Corazon's admission, CMC, through its personnel, readily accommodated Corazon and updated Dr.
Estrada of her condition.
Second, CMC made Rogelio sign consent forms printed on CMC letterhead. Prior to Corazon's admission and supposed
hysterectomy, CMC asked Rogelio to sign release forms, the contents of which reinforced Rogelio's belief that Dr. Estrada
was a member of CMC's medical staff. 50 The Consent on Admission and Agreement explicitly provides:
KNOW ALL MEN BY THESE PRESENTS:
I, Rogelio Nogales, of legal age, a resident of 1974 M. H. Del Pilar St., Malate Mla., being the
father/mother/brother/sister/spouse/relative/ guardian/or person in custody of Ma. Corazon, and representing
his/her family, of my own volition and free will, do consent and submit said Ma. Corazon to Dr. Oscar Estrada
(hereinafter referred to as Physician) for cure, treatment, retreatment, or emergency measures, that the
Physician, personally or by and through the Capitol Medical Center and/or its staff, may use, adapt,
or employ such means, forms or methods of cure, treatment, retreatment, or emergency measures
as he may see best and most expedient; that Ma. Corazon and I will comply with any and all rules,
regulations, directions, and instructions of the Physician, the Capitol Medical Center and/or its staff ;
and, that I will not hold liable or responsible and hereby waive and forever discharge and hold free the Physician,
the Capitol Medical Center and/or its staff, from any and all claims of whatever kind of nature, arising from directly
or indirectly, or by reason of said cure, treatment, or retreatment, or emergency measures or intervention of said
physician, the Capitol Medical Center and/or its staff.
x x x x51 (Emphasis supplied)
While the Consent to Operation pertinently reads, thus:

I, ROGELIO NOGALES, x x x, of my own volition and free will, do consent and submit said CORAZON NOGALES to
Hysterectomy, by the Surgical Staff and Anesthesiologists of Capitol Medical Centerand/or whatever
succeeding operations, treatment, or emergency measures as may be necessary and most expedient; and, that I
will not hold liable or responsible and hereby waive and forever discharge and hold free the Surgeon, his
assistants, anesthesiologists, the Capitol Medical Center and/or its staff, from any and all claims of whatever kind
of nature, arising from directly or indirectly, or by reason of said operation or operations, treatment, or emergency
measures, or intervention of the Surgeon, his assistants, anesthesiologists, the Capitol Medical Center and/or its
staff.52 (Emphasis supplied)
Without any indication in these consent forms that Dr. Estrada was an independent contractor-physician, the Spouses
Nogales could not have known that Dr. Estrada was an independent contractor. Significantly, no one from CMC informed the
Spouses Nogales that Dr. Estrada was an independent contractor. On the contrary, Dr. Atencio, who was then a member of
CMC Board of Directors, testified that Dr. Estrada was part of CMC's surgical staff. 53
Third, Dr. Estrada's referral of Corazon's profuse vaginal bleeding to Dr. Espinola, who was then the Head of the Obstetrics
and Gynecology Department of CMC, gave the impression that Dr. Estrada as a member of CMC's medical staff was
collaborating with other CMC-employed specialists in treating Corazon.
The second factor focuses on the patient's reliance. It is sometimes characterized as an inquiry on whether the plaintiff
acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence.54
The records show that the Spouses Nogales relied upon a perceived employment relationship with CMC in accepting Dr.
Estrada's services. Rogelio testified that he and his wife specifically chose Dr. Estrada to handle Corazon's delivery not only
because of their friend's recommendation, but more importantly because of Dr. Estrada's "connection with a reputable
hospital, the [CMC]." 55 In other words, Dr. Estrada's relationship with CMC played a significant role in the Spouses Nogales'
decision in accepting Dr. Estrada's services as the obstetrician-gynecologist for Corazon's delivery. Moreover, as earlier
stated, there is no showing that before and during Corazon's confinement at CMC, the Spouses Nogales knew or should
have known that Dr. Estrada was not an employee of CMC.
Further, the Spouses Nogales looked to CMC to provide the best medical care and support services for Corazon's delivery.
The Court notes that prior to Corazon's fourth pregnancy, she used to give birth inside a clinic. Considering Corazon's age
then, the Spouses Nogales decided to have their fourth child delivered at CMC, which Rogelio regarded one of the best
hospitals at the time.56 This is precisely because the Spouses Nogales feared that Corazon might experience complications
during her delivery which would be better addressed and treated in a modern and big hospital such as CMC. Moreover,
Rogelio's consent in Corazon's hysterectomy to be performed by a different physician, namely Dr. Espinola, is a clear
indication of Rogelio's confidence in CMC's surgical staff.
CMC's defense that all it did was "to extend to [Corazon] its facilities" is untenable. The Court cannot close its eyes to the
reality that hospitals, such as CMC, are in the business of treatment. In this regard, the Court agrees with the observation
made by the Court of Appeals of North Carolina in Diggs v. Novant Health, Inc., 57 to wit:
"The conception that the hospital does not undertake to treat the patient, does not undertake to act through its
doctors and nurses, but undertakes instead simply to procure them to act upon their own responsibility, no longer
reflects the fact. Present day hospitals, as their manner of operation plainly demonstrates, do far more
than furnish facilities for treatment. They regularly employ on a salary basis a large staff of
physicians, nurses and internes [sic], as well as administrative and manual workers, and they charge
patients for medical care and treatment, collecting for such services, if necessary, by legal action.
Certainly, the person who avails himself of 'hospital facilities' expects that the hospital will attempt
to cure him, not that its nurses or other employees will act on their own responsibility." x x x
(Emphasis supplied)
Likewise unconvincing is CMC's argument that petitioners are estopped from claiming damages based on the Consent on
Admission and Consent to Operation. Both release forms consist of two parts. The first part gave CMC permission to
administer to Corazon any form of recognized medical treatment which the CMC medical staff deemed advisable. The
second part of the documents, which may properly be described as the releasing part, releases CMC and its employees
"from any and all claims" arising from or by reason of the treatment and operation.
The documents do not expressly release CMC from liability for injury to Corazon due to negligence during her treatment or
operation. Neither do the consent forms expressly exempt CMC from liability for Corazon's death due to negligence during
such treatment or operation. Such release forms, being in the nature of contracts of adhesion, are construed strictly against
hospitals. Besides, a blanket release in favor of hospitals "from any and all claims," which includes claims due to bad faith
or gross negligence, would be contrary to public policy and thus void.
Even simple negligence is not subject to blanket release in favor of establishments like hospitals but may only mitigate
liability depending on the circumstances. 58 When a person needing urgent medical attention rushes to a hospital, he cannot
bargain on equal footing with the hospital on the terms of admission and operation. Such a person is literally at the mercy

of the hospital. There can be no clearer example of a contract of adhesion than one arising from such a dire situation. Thus,
the release forms of CMC cannot relieve CMC from liability for the negligent medical treatment of Corazon.
On the Liability of the Other Respondents
Despite this Court's pronouncement in its 9 September 2002 59 Resolution that the filing of petitioners' Manifestation
confined petitioners' claim only against CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy, who have filed their comments, the Court
deems it proper to resolve the individual liability of the remaining respondents to put an end finally to this more than twodecade old controversy.
a) Dr. Ely Villaflor
Petitioners blame Dr. Ely Villaflor for failing to diagnose the cause of Corazon's bleeding and to suggest the correct remedy
to Dr. Estrada.60 Petitioners assert that it was Dr. Villaflor's duty to correct the error of Nurse Dumlao in the administration of
hemacel.
The Court is not persuaded. Dr. Villaflor admitted administering a lower dosage of magnesium sulfate. However, this was
after informing Dr. Estrada that Corazon was no longer in convulsion and that her blood pressure went down to a dangerous
level.61 At that moment, Dr. Estrada instructed Dr. Villaflor to reduce the dosage of magnesium sulfate from 10 to 2.5 grams.
Since petitioners did not dispute Dr. Villaflor's allegation, Dr. Villaflor's defense remains uncontroverted. Dr. Villaflor's act of
administering a lower dosage of magnesium sulfate was not out of her own volition or was in contravention of Dr. Estrada's
order.
b) Dr. Rosa Uy
Dr. Rosa Uy's alleged negligence consisted of her failure (1) to call the attention of Dr. Estrada on the incorrect dosage of
magnesium sulfate administered by Dr. Villaflor; (2) to take corrective measures; and (3) to correct Nurse Dumlao's wrong
method of hemacel administration.
The Court believes Dr. Uy's claim that as a second year resident physician then at CMC, she was merely authorized to take
the clinical history and physical examination of Corazon. 62 However, that routine internal examination did not ipso
facto make Dr. Uy liable for the errors committed by Dr. Estrada. Further, petitioners' imputation of negligence rests on their
baseless assumption that Dr. Uy was present at the delivery room. Nothing shows that Dr. Uy participated in delivering
Corazon's baby. Further, it is unexpected from Dr. Uy, a mere resident physician at that time, to call the attention of a more
experienced specialist, if ever she was present at the delivery room.
c) Dr. Joel Enriquez
Petitioners fault Dr. Joel Enriquez also for not calling the attention of Dr. Estrada, Dr. Villaflor, and Nurse Dumlao about their
errors.63 Petitioners insist that Dr. Enriquez should have taken, or at least suggested, corrective measures to rectify such
errors.
The Court is not convinced. Dr. Enriquez is an anesthesiologist whose field of expertise is definitely not obstetrics and
gynecology. As such, Dr. Enriquez was not expected to correct Dr. Estrada's errors. Besides, there was no evidence of Dr.
Enriquez's knowledge of any error committed by Dr. Estrada and his failure to act upon such observation.
d) Dr. Perpetua Lacson
Petitioners fault Dr. Perpetua Lacson for her purported delay in the delivery of blood Corazon needed. 64Petitioners claim that
Dr. Lacson was remiss in her duty of supervising the blood bank staff.
As found by the trial court, there was no unreasonable delay in the delivery of blood from the time of the request until the
transfusion to Corazon. Dr. Lacson competently explained the procedure before blood could be given to the patient. 65 Taking
into account the bleeding time, clotting time and cross-matching, Dr. Lacson stated that it would take approximately 45-60
minutes before blood could be ready for transfusion. 66 Further, no evidence exists that Dr. Lacson neglected her duties as
head of the blood bank.
e) Dr. Noe Espinola
Petitioners argue that Dr. Espinola should not have ordered immediate hysterectomy without determining the underlying
cause of Corazon's bleeding. Dr. Espinola should have first considered the possibility of cervical injury, and advised a
thorough examination of the cervix, instead of believing outright Dr. Estrada's diagnosis that the cause of bleeding was
uterine atony.

Dr. Espinola's order to do hysterectomy which was based on the information he received by phone is not negligence. The
Court agrees with the trial court's observation that Dr. Espinola, upon hearing such information about Corazon's condition,
believed in good faith that hysterectomy was the correct remedy. At any rate, the hysterectomy did not push through
because upon Dr. Espinola's arrival, it was already too late. At the time, Corazon was practically dead.
f) Nurse J. Dumlao
In Moore v. Guthrie Hospital Inc.,67 the US Court of Appeals, Fourth Circuit, held that to recover, a patient complaining of
injuries allegedly resulting when the nurse negligently injected medicine to him intravenously instead of intramuscularly
had to show that (1) an intravenous injection constituted a lack of reasonable and ordinary care; (2) the nurse injected
medicine intravenously; and (3) such injection was the proximate cause of his injury.
In the present case, there is no evidence of Nurse Dumlao's alleged failure to follow Dr. Estrada's specific instructions. Even
assuming Nurse Dumlao defied Dr. Estrada's order, there is no showing that side-drip administration of hemacel
proximately caused Corazon's death. No evidence linking Corazon's death and the alleged wrongful hemacel administration
was introduced. Therefore, there is no basis to hold Nurse Dumlao liable for negligence.
On the Award of Interest on Damages
The award of interest on damages is proper and allowed under Article 2211 of the Civil Code, which states that in crimes
and quasi-delicts, interest as a part of the damages may, in a proper case, be adjudicated in the discretion of the court. 68
WHEREFORE, the Court PARTLY GRANTS the petition. The Court finds respondent Capitol Medical Center vicariously
liable for the negligence of Dr. Oscar Estrada. The amounts of P105,000 as actual damages andP700,000 as moral damages
should each earn legal interest at the rate of six percent (6%) per annum computed from the date of the judgment of the
trial court. The Court affirms the rest of the Decision dated 6 February 1998 and Resolution dated 21 March 2000 of the
Court of Appeals in CA-G.R. CV No. 45641.
SO ORDERED.
Captain of the Ship Doctrine
FIRST DIVISION
[G.R. No. 124354. April 11, 2002]
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own

behalf and as natural guardians of the minors,
ROMMEL RAMOS, ROY RODERICK RAMOS, and RON
RAYMOND
RAMOS, petitioners,
vs. COURT
OF
APPEALS, DE LOS SANTOS MEDICAL CENTER, DR.
ORLINO
HOSAKA
and
DR.
PERFECTA
GUTIERREZ, respondents.
RESOLUTION
KAPUNAN, J.:

Private respondents De Los Santos Medical Center, Dr. Orlino Hosaka and
Dr. Perfecta Gutierrez move for a reconsideration of the Decision, dated
December 29, 1999, of this Court holding them civilly liable for petitioner
Erlinda Ramos comatose condition after she delivered herself to them for
their professional care and management.
For better understanding of the issues raised in private respondents
respective motions, we will briefly restate the facts of the case as follows:
Sometime in 1985, petitioner Erlinda Ramos, after seeking professional
medical help, was advised to undergo an operation for the removal of a
stone in her gall bladder (cholecystectomy). She was referred to Dr. Hosaka,
a surgeon, who agreed to perform the operation on her. The operation was
scheduled for June 17, 1985 at 9:00 in the morning at private respondent De
Los Santos Medical Center (DLSMC). Since neither petitioner Erlinda nor her
husband, petitioner Rogelio, knew of any anesthesiologist, Dr. Hosaka
recommended to them the services of Dr. Gutierrez.
Petitioner Erlinda was admitted to the DLSMC the day before the
scheduled operation. By 7:30 in the morning of the following day, petitioner
Erlinda was already being prepared for operation. Upon the request of
petitioner Erlinda, her sister-in-law, Herminda Cruz, who was then Dean of
the College of Nursing at the Capitol Medical Center, was allowed to
accompany her inside the operating room.
At around 9:30 in the morning, Dr. Hosaka had not yet arrived so Dr.
Gutierrez tried to get in touch with him by phone. Thereafter, Dr. Gutierrez
informed Cruz that the operation might be delayed due to the late arrival of
Dr. Hosaka. In the meantime, the patient, petitioner Erlinda said to Cruz,
Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor.
By 10:00 in the morning, when Dr. Hosaka was still not around, petitioner
Rogelio already wanted to pull out his wife from the operating room. He met
Dr. Garcia, who remarked that he was also tired of waiting for Dr. Hosaka. Dr.
Hosaka finally arrived at the hospital at around 12:10 in the afternoon, or
more than three (3) hours after the scheduled operation.
Cruz, who was then still inside the operating room, heard about Dr.
Hosakas arrival. While she held the hand of Erlinda, Cruz saw Dr. Gutierrez
trying to intubate the patient. Cruz heard Dr. Gutierrez utter: ang hirap maintubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan. Cruz
noticed a bluish discoloration of Erlindas nailbeds on her left hand. She
(Cruz) then heard Dr. Hosaka instruct someone to call Dr. Calderon, another
anesthesiologist. When he arrived, Dr. Calderon attempted to intubate the
patient. The nailbeds of the patient remained bluish, thus, she was placed in
a trendelenburg position a position where the head of the patient is placed in
a position lower than her feet. At this point, Cruz went out of the operating

room to express her concern to petitioner Rogelio that Erlindas operation was
not going well.
Cruz quickly rushed back to the operating room and saw that the patient
was still in trendelenburg position. At almost 3:00 in the afternoon, she saw
Erlinda being wheeled to the Intensive Care Unit (ICU). The doctors explained
to petitioner Rogelio that his wife had bronchospasm. Erlinda stayed in the
ICU for a month. She was released from the hospital only four months later or
on November 15, 1985.Since the ill-fated operation, Erlinda remained in
comatose condition until she died on August 3, 1999. [1]
Petitioners filed with the Regional Trial Court of Quezon City a civil case
for damages against private respondents. After due trial, the court a
quo rendered judgment in favor of petitioners. Essentially, the trial court
found that private respondents were negligent in the performance of their
duties to Erlinda. On appeal by private respondents, the Court of Appeals
reversed the trial courts decision and directed petitioners to pay their unpaid
medical bills to private respondents.
Petitioners filed with this Court a petition for review on certiorari. The
private respondents were then required to submit their respective comments
thereon. On December 29, 1999, this Court promulgated the decision which
private respondents now seek to be reconsidered. The dispositive portion of
said Decision states:
WHEREFORE, the decision and resolution of the appellate court

appealed from are hereby modified so as to award in favor of
petitioners, and solidarily against private respondents the following:
1) P1,352,000.00 as actual damages computed as of the date of
promulgation of this decision plus a monthly payment of P8,000.00
up to the time that petitioner Erlinda Ramos expires or miraculously
survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each exemplary damages and
attorneys fees; and 5) the costs of the suit.[2]
In his Motion for Reconsideration, private respondent Dr. Hosaka submits
the following as grounds therefor:
I
THE HONORABLE SUPREME COURT COMMITTED REVERSIBLE

ERROR WHEN IT HELD RESPONDENT DR. HOSAKA LIABLE ON
THE BASIS OF THE CAPTAIN-OF-THE-SHIP DOCTRINE.
II

THE HONORABLE SUPREME COURT ERRED IN HOLDING
RESPONDENT DR. HOSAKA LIABLE DESPITE THE FACT THAT
NO NEGLIGENCE CAN BE ATTRIBUTABLE TO HIM.
III
ASSUMING WITHOUT ADMITTING THAT RESPONDENT DR.

HOSAKA IS LIABLE, THE HONORABLE SUPREME COURT ERRED
IN AWARDING DAMAGES THAT WERE CLEARLY EXCESSIVE AND
WITHOUT LEGAL BASIS.[3]
Private respondent Dr. Gutierrez, for her part, avers that:
A.
THE
HONORABLE
SUPREME
COURT
MAY
HAVE
INADVERTENTLY OVERLOOKED THE FACT THAT THE COURT OF
APPEALS DECISION DATED 29 MAY 1995 HAD ALREADY
BECOME FINAL AND EXECUTORY AS OF 25 JUNE 1995,
THEREBY
DEPRIVING
THIS
HONORABLE
COURT
OF
JURISDICTION OVER THE INSTANT PETITION;
B.
THE
HONORABLE
SUPREME
COURT
MAY
HAVE
INADVERTENTLY OVERLOOKED SEVERAL MATERIAL FACTUAL
CIRCUMSTANCES WHICH, IF PROPERLY CONSIDERED, WOULD
INDUBITABLY LEAD TO NO OTHER CONCLUSION BUT THAT
PRIVATE RESPONDENT DOCTORS WERE NOT GUILTY OF ANY
NEGLIGENCE IN RESPECT OF THE INSTANT CASE;
B.1 RESPONDENT
DOCTOR
PERFECTA
GUTIERREZ
HAS
SUFFICIENTLY DISCHARGED THE BURDEN OF EVIDENCE BY
SUBSTANTIAL PROOF OF HER COMPLIANCE WITH THE
STANDARDS OF DUE CARE EXPECTED IN HER RESPECTIVE FIELD
OF MEDICAL SPECIALIZATION.
B.2 RESPONDENT
DOCTOR
PERFECTA
GUTIERREZ
HAS
SUFFICIENTLY DISCHARGED THE BURDEN OF EVIDENCE BY
SUBSTANTIAL PROOF OF HER HAVING SUCCESSFULLY
INTUBATED PATIENT ERLINDA RAMOS
C. THE SUPREME COURT MAY HAVE INADVERTENTLY PLACED

TOO MUCH RELIANCE ON THE TESTIMONY OF PETITIONERS
WITNESS HERMINDA CRUZ, DESPITE THE EXISTENCE OF
SEVERAL FACTUAL CIRCUMSTANCES WHICH RENDERS DOUBT
ON HER CREDIBILITY

D. THE SUPREME COURT MAY HAVE INADVERTENTLY
DISREGARDED THE EXPERT TESTIMONY OF DR. JAMORA AND
DRA. CALDERON
E. THE
HONORABLE
SUPREME
COURT
MAY
HAVE
INADVERTENTLY AWARDED DAMAGES TO PETITIONERS
DESPITE THE FACT THAT THERE WAS NO NEGLIGENCE ON THE
PART OF RESPONDENT DOCTOR.[4]
Private respondent De Los Santos Medical Center likewise moves for
reconsideration on the following grounds:
I
THE HONORABLE COURT ERRED IN GIVING DUE COURSE TO

THE INSTANT PETITION AS THE DECISION OF THE HONORABLE
COURT OF APPEALS HAD ALREADY BECOME FINAL AND
EXECUTORY
II
THE HONORABLE SUPREME COURT ERRED IN FINDING THAT

AN EMPLOYER-EMPLOYEE [RELATIONSHIP] EXISTS BETWEEN
RESPONDENT DE LOS SANTOS MEDICAL CENTER AND DRS.
ORLINO HOSAKA AND PERFECTA GUTIERREZ
III
THE HONORABLE SUPREME COURT ERRED IN FINDING THAT

RESPONDENT DE LOS SANTOS MEDICAL CENTER IS
SOLIDARILY LIABLE WITH RESPONDENT DOCTORS
IV
THE HONORABLE SUPREME COURT ERRED IN INCREASING THE

AWARD OF DAMAGES IN FAVOR OF PETITIONERS.[5]
In the Resolution of February 21, 2000, this Court denied the motions for
reconsideration of private respondents Drs. Hosaka and Gutierrez. They then
filed their respective second motions for reconsideration. The Philippine
College of Surgeons filed its Petition-in-Intervention contending in the main
that this Court erred in holding private respondent Dr. Hosaka liable under
the captain of the ship doctrine. According to the intervenor, said doctrine
had long been abandoned in the United States in recognition of the

developments in modern medical and hospital practice. [6] The Court noted
these pleadings in the Resolution of July 17, 2000.[7]
On March 19, 2001, the Court heard the oral arguments of the parties,
including the intervenor. Also present during the hearing were the amicii
curiae: Dr. Felipe A. Estrella, Jr., Consultant of the Philippine Charity
Sweepstakes, former Director of the Philippine General Hospital and former
Secretary of Health; Dr. Iluminada T. Camagay, President of the Philippine
Society of Anesthesiologists, Inc. and Professor and Vice-Chair for Research,
Department of Anesthesiology, College of Medicine-Philippine General
Hospital, University of the Philippines; and Dr. Lydia M. Egay, Professor and
Vice-Chair for Academics, Department of Anesthesiology, College of
Medicine-Philippine General Hospital, University of the Philippines.
The Court enumerated the issues to be resolved in this case as follows:
1. WHETHER OR NOT DR. ORLINO HOSAKA (SURGEON) IS LIABLE FOR
NEGLIGENCE;
2. WHETHER OR NOT DR. PERFECTA GUTIERREZ (ANESTHESIOLOGIST) IS
LIABLE FOR NEGLIGENCE; AND
3. WHETHER OR NOT THE HOSPITAL (DELOS SANTOS MEDICAL CENTER) IS
LIABLE FOR ANY ACT OF NEGLIGENCE COMMITTED BY THEIR VISITING
CONSULTANT SURGEON AND ANESTHESIOLOGIST. [8]
We shall first resolve the issue pertaining to private respondent Dr.

Gutierrez. She maintains that the Court erred in finding her negligent and
in holding that it was the faulty intubation which was the proximate cause of
Erlindas comatose condition. The following objective facts allegedly negate a
finding of negligence on her part: 1) That the outcome of the procedure was
a comatose patient and not a dead one; 2) That the patient had a cardiac
arrest; and 3) That the patient was revived from that cardiac arrest. [9] In
effect, Dr. Gutierrez insists that, contrary to the finding of this Court, the
intubation she performed on Erlinda was successful.
Unfortunately, Dr. Gutierrez claim of lack of negligence on her part is
belied by the records of the case. It has been sufficiently established that she
failed to exercise the standards of care in the administration of anesthesia on
a patient. Dr. Egay enlightened the Court on what these standards are:
x x x What are the standards of care that an anesthesiologist should

do before we administer anesthesia? The initial step is the
preparation of the patient for surgery and this is a pre-operative
evaluation because the anesthesiologist is responsible for
determining the medical status of the patient, developing the
anesthesia plan and acquainting the patient or the responsible adult
particularly if we are referring with the patient or to adult patient

who may not have, who may have some mental handicaps of the
proposed plans. We do pre-operative evaluation because this
provides for an opportunity for us to establish identification and
personal acquaintance with the patient. It also makes us have an
opportunity to alleviate anxiety, explain techniques and risks to the
patient, given the patient the choice and establishing consent to
proceed with the plan. And lastly, once this has been agreed upon
by all parties concerned the ordering of pre-operative
medications. And following this line at the end of the evaluation we
usually come up on writing, documentation is very important as far
as when we train an anesthesiologist we always emphasize this
because we need records for our protection, well, records. And it
entails having brief summary of patient history and physical findings
pertinent to anesthesia, plan, organize as a problem list, the plan
anesthesia technique, the plan post operative, pain management if
appropriate, special issues for this particular patient. There are
needs for special care after surgery and if it so it must be written
down there and a request must be made known to proper
authorities that such and such care is necessary. And the request for
medical evaluation if there is an indication. When we ask for a
cardio-pulmonary clearance it is not in fact to tell them if this patient
is going to be fit for anesthesia, the decision to give anesthesia rests
on the anesthesiologist. What we ask them is actually to give us the
functional capacity of certain systems which maybe affected by the
anesthetic agent or the technique that we are going to use. But the
burden of responsibility in terms of selection of agent and how to
administer it rest on the anesthesiologist.[10]
The conduct of a preanesthetic/preoperative evaluation prior to an
operation, whether elective or emergency, cannot be dispensed with.[11] Such
evaluation is necessary for the formulation of a plan of anesthesia care
suited to the needs of the patient concerned.
Pre-evaluation for anesthesia involves taking the patients medical
history, reviewing his current drug therapy, conducting physical examination,
interpreting laboratory data, and determining the appropriate prescription of
preoperative medications as necessary to the conduct of anesthesia.[12]
Physical examination of the patient entails not only evaluating the
patients central nervous system, cardiovascular system and lungs but also
the upper airway. Examination of the upper airway would in turn include an
analysis of the patients cervical spine mobility, temporomandibular mobility,

prominent central incisors, deceased or artificial teeth, ability to visualize
uvula and the thyromental distance.[13]
Nonetheless, Dr. Gutierrez omitted to perform a thorough preoperative
evaluation on Erlinda. As she herself admitted, she saw Erlinda for the first
time on the day of the operation itself, one hour before the scheduled
operation. She auscultated[14] the patients heart and lungs and checked the
latters blood pressure to determine if Erlinda was indeed fit for operation.
[15]
However, she did not proceed to examine the patients airway. Had she
been able to check petitioner Erlindas airway prior to the operation, Dr.
Gutierrez would most probably not have experienced difficulty in intubating
the former, and thus the resultant injury could have been avoided. As we
have stated in our Decision:
In the case at bar, respondent Dra. Gutierrez admitted that she saw
Erlinda for the first time on the day of the operation itself, on 17
June 1985. Before this date, no prior consultations with, or preoperative evaluation of Erlinda was done by her. Until the day of the
operation, respondent Dra. Gutierrez was unaware of the
physiological make-up and needs of Erlinda. She was likewise not
properly informed of the possible difficulties she would face during
the administration of anesthesia to Erlinda. Respondent Dra.
Gutierrez act of seeing her patient for the first time only an hour
before the scheduled operative procedure was, therefore, an act of
exceptional negligence and professional irresponsibility. The
measures cautioning prudence and vigilance in dealing with human
lives lie at the core of the physicians centuries-old Hippocratic Oath.
Her failure to follow this medical procedure is, therefore, a
clear indicia of her negligence.[16]
Further, there is no cogent reason for the Court to reverse its finding that
it was the faulty intubation on Erlinda that caused her comatose
condition. There is no question that Erlinda became comatose after Dr.
Gutierrez performed a medical procedure on her. Even the counsel of Dr.
Gutierrez admitted to this fact during the oral arguments:
CHIEF JUSTICE:
Mr. Counsel, you started your argument saying that this involves a comatose
patient?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:

How do you mean by that, a comatose, a comatose after any other acts were
done by Dr. Gutierrez or comatose before any act was done by her?
ATTY. GANA:
No, we meant comatose as a final outcome of the procedure.
CHIEF JUSTICE:
Meaning to say, the patient became comatose after some intervention,
professional acts have been done by Dr. Gutierrez?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
In other words, the comatose status was a consequence of some acts
performed by D. Gutierrez?
ATTY. GANA:
It was a consequence of the well, (interrupted)
CHIEF JUSTICE:
An acts performed by her, is that not correct?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
Thank you.[17]
What is left to be determined therefore is whether Erlindas hapless

condition was due to any fault or negligence on the part of Dr. Gutierrez
while she (Erlinda) was under the latters care. Dr. Gutierrez maintains that
the bronchospasm and cardiac arrest resulting in the patients comatose
condition was brought about by the anaphylactic reaction of the patient to
Thiopental Sodium (pentothal).[18] In the Decision, we explained why we found
Dr. Gutierrez theory unacceptable. In the first place, Dr. Eduardo Jamora, the
witness who was presented to support her (Dr. Gutierrez) theory, was a
pulmonologist. Thus, he could not be considered an authority on anesthesia
practice and procedure and their complications. [19]
Secondly, there was no evidence on record to support the theory that
Erlinda developed an allergic reaction to pentothal. Dr. Camagay enlightened
the Court as to the manifestations of an allergic reaction in this wise:
DR. CAMAGAY:
All right, let us qualify an allergic reaction. In medical terminology an allergic
reaction is something which is not usual response and it is further qualified by
the release of a hormone called histamine and histamine has an effect on all

the organs of the body generally release because the substance that entered
the body reacts with the particular cell, the mass cell, and the mass cell
secretes this histamine. In a way it is some form of response to take away
that which is not mine, which is not part of the body. So, histamine has
multiple effects on the body. So, one of the effects as you will see you will
have redness, if you have an allergy you will have tearing of the eyes, you
will have swelling, very crucial swelling sometimes of the larynges which is
your voice box main airway, that swelling may be enough to obstruct the
entry of air to the trachea and you could also have contraction, constriction of
the smaller airways beyond the trachea, you see you have the trachea this
way, we brought some visual aids but unfortunately we do not have a
projector. And then you have the smaller airways, the bronchi and then
eventually into the mass of the lungs you have the bronchus. The difference
is that these tubes have also in their walls muscles and this particular kind of
muscles is smooth muscle so, when histamine is released they close up like
this and that phenomenon is known as bronco spasm. However, the effects of
histamine also on blood vessels are different. They dilate blood vessel open
up and the patient or whoever has this histamine release has hypertension or
low blood pressure to a point that the patient may have decrease blood
supply to the brain and may collapse so, you may have people who have this.
[20]
These symptoms of an allergic reaction were not shown to have been

extant in Erlindas case. As we held in our Decision, no evidence of stridor,
skin reactions, or wheezing some of the more common accompanying signs
of an allergic reaction appears on record. No laboratory data were ever
presented to the court.[21]
Dr. Gutierrez, however, insists that she successfully intubated Erlinda as
evidenced by the fact that she was revived after suffering from cardiac
arrest. Dr. Gutierrez faults the Court for giving credence to the testimony of
Cruz on the matter of the administration of anesthesia when she (Cruz),
being a nurse, was allegedly not qualified to testify thereon. Rather, Dr.
Gutierrez invites the Courts attention to her synopsis on what transpired
during Erlindas intubation:
12:15 p.m. Patient was inducted with sodium pentothal 2.5% (250 mg) given
by slow IV. 02 was started by mask. After pentothal injection this
was followed by IV injection of Norcuron 4mg. After 2 minutes 02
was given by positive pressure for about one minute. Intubation
with endotracheal tube 7.5 m in diameter was done with slight
difficulty (short neck & slightly prominent upper teeth) chest was
examined for breath sounds & checked if equal on both sides. The
tube was then anchored to the mouth by plaster & cuff
inflated. Ethrane 2% with 02 4 liters was given. Blood pressure
was checked 120/80 & heart rate regular and normal 90/min.
12:25 p.m. After 10 minutes patient was cyanotic. Ethrane was discontinued
& 02 given alone. Cyanosis disappeared. Blood pressure and heart
beats stable.

12:30 p.m. Cyanosis again reappeared this time with sibilant and sonorous
rales all over the chest. D_5%_H20 & 1 ampule of aminophyline by
fast drip was started. Still the cyanosis was persistent. Patient was
connected to a cardiac monitor. Another ampule of of [sic]
aminophyline was given and solu cortef was given.
12:40 p.m. There was cardiac arrest. Extra cardiac massage and intercardiac
injection of adrenalin was given & heart beat reappeared in less
than one minute. Sodium bicarbonate & another dose of solu
cortef was given by IV. Cyanosis slowly disappeared & 02
continuously given & assisted positive pressure. Laboratory exams
done (see results in chart).
Patient was transferred to ICU for further management.[22]

From the foregoing, it can be allegedly seen that there was no withdrawal
(extubation) of the tube. And the fact that the cyanosis allegedly
disappeared after pure oxygen was supplied through the tube proved that it
was properly placed.
The Court has reservations on giving evidentiary weight to the entries
purportedly contained in Dr. Gutierrez synopsis. It is significant to note that
the said record prepared by Dr. Gutierrez was made only after Erlinda was
taken out of the operating room. The standard practice in anesthesia is that
every single act that the anesthesiologist performs must be recorded. In Dr.
Gutierrez case, she could not account for at least ten (10) minutes of what
happened during the administration of anesthesia on Erlinda. The following
exchange between Dr. Estrella, one of the amicii curiae, and Dr. Gutierrez is
instructive:
DR. ESTRELLA
You mentioned that there were two (2) attempts in the intubation period?
DR. GUTIERREZ
Yes.
Q There were two attempts. In the first attempt was the tube inserted or was the
laryngoscope only inserted, which was inserted?
A All the laryngoscope.
Q All the laryngoscope. But if I remember right somewhere in the re-direct, a
certain lawyer, you were asked that you did a first attempt and the question
was did you withdraw the tube? And you said you never withdrew the tube, is
that right?
A Yes.
Q Yes. And so if you never withdrew the tube then there was no, there was no
insertion of the tube during that first attempt. Now, the other thing that we
have to settle here is when cyanosis occurred, is it recorded in the anesthesia
record when the cyanosis, in your recording when did the cyanosis occur?

A (sic)
Q Is it a standard practice of anesthesia that whatever you do during that period
or from the time of induction to the time that you probably get the patient
out of the operating room that every single action that you do is so recorded
in your anesthesia record?
A I was not able to record everything I did not have time anymore because I did
that after the, when the patient was about to leave the operating room. When
there was second cyanosis already that was the (interrupted)
Q When was the first cyanosis?
A The first cyanosis when I was (interrupted)
Q What time, more or less?
A I think it was 12:15 or 12:16.
Q Well, if the record will show you started induction at 12:15?
A Yes, Your Honor.
Q And the first medication you gave was what?
A The first medication, no, first the patient was oxygenated for around one to two
minutes.
Q Yes, so, that is about 12:13?
A Yes, and then, I asked the resident physician to start giving the pentothal very
slowly and that was around one minute.
Q So, that is about 12:13 no, 12:15, 12:17?
A Yes, and then, after one minute another oxygenation was given and after
(interrupted)
Q 12:18?
A Yes, and then after giving the oxygen we start the menorcure which is a
relaxant. After that relaxant (interrupted)
Q After that relaxant, how long do you wait before you do any manipulation?
A Usually you wait for two minutes or three minutes.
Q So, if our estimate of the time is accurate we are now more or less 12:19, is
that right?
A Maybe.
Q 12:19. And at that time, what would have been done to this patient?
A After that time you examine the, if there is relaxation of the jaw which you push
it downwards and when I saw that the patient was relax because that
monorcure is a relaxant, you cannot intubate the patient or insert the
laryngoscope if it is not keeping him relax. So, my first attempt when I put the
laryngoscope on I saw the trachea was deeply interiorly. So, what I did ask

mahirap ata ito ah. So, I removed the laryngoscope and oxygenated again
the patient.
Q So, more or less you attempted to do an intubation after the first attempt as
you claimed that it was only the laryngoscope that was inserted.
A Yes.
Q And in the second attempt you inserted the laryngoscope and now possible
intubation?
A Yes.
Q And at that point, you made a remark, what remark did you make?
A I said mahirap ata ito when the first attempt I did not see the trachea right
away. That was when I (interrupted)
Q That was the first attempt?
A Yes.
Q What about the second attempt?
A On the second attempt I was able to intubate right away within two to three
seconds.
Q At what point, for purposes of discussion without accepting it, at what point did
you make the comment na mahirap ata to intubate, mali ata ang pinasukan
A I did not say mali ata ang pinasukan I never said that.
Q Well, just for the information of the group here the remarks I am making is
based on the documents that were forwarded to me by the Supreme
Court. That is why for purposes of discussion I am trying to clarify this for the
sake of enlightenment. So, at what point did you ever make that comment?
A Which one, sir?
Q The mahirap intubate ito assuming that you (interrupted)
A Iyon lang, that is what I only said mahirap intubate (interrupted)
Q At what point?
A When the first attempt when I inserted the laryngoscope for the first time.
Q So, when you claim that at the first attempt you inserted the laryngoscope,
right?
A Yes.
Q But in one of the recordings somewhere at the, somewhere in the transcript of
records that when the lawyer of the other party try to inquire from you during
the first attempt that was the time when mayroon ba kayong hinugot sa tube,
I do not remember the page now, but it seems to me it is there. So, that it
was on the second attempt that (interrupted)
A I was able to intubate.

Q And this is more or less about what time 12:21?
A Maybe, I cannot remember the time, Sir.
Q Okay, assuming that this was done at 12:21 and looking at the anesthesia
records from 12:20 to 12:30 there was no recording of the vital signs. And can
we presume that at this stage there was already some problems in handling
the patient?
A Not yet.
Q But why are there no recordings in the anesthesia record?
A I did not have time.
Q Ah, you did not have time, why did you not have time?
A Because it was so fast, I really (at this juncture the witness is laughing)
Q No, I am just asking. Remember I am not here not to pin point on anybody I am
here just to more or less clarify certainty more ore less on the record.
A Yes, Sir.
Q And so it seems that there were no recording during that span of ten (10)
minutes. From 12:20 to 12:30, and going over your narration, it seems to me
that the cyanosis appeared ten (10) minutes after induction, is that right?
A Yes.
Q And that is after induction 12:15 that is 12:25 that was the first cyanosis?
A Yes.
Q And that the 12:25 is after the 12:20?
A We cannot (interrupted)
Q Huwag ho kayong makuwan, we are just trying to enlighten, I am just going
over the record ano, kung mali ito kuwan eh di ano. So, ganoon po ano, that it
seems to me that there is no recording from 12:20 to 12:30, so, I am just
wondering why there were no recordings during the period and then of course
the second cyanosis, after the first cyanosis. I think that was the time Dr.
Hosaka came in?
A No, the first cyanosis (interrupted).[23]
We cannot thus give full credence to Dr. Gutierrez synopsis in light of her
admission that it does not fully reflect the events that transpired during the
administration of anesthesia on Erlinda. As pointed out by Dr. Estrella, there
was a ten-minute gap in Dr. Gutierrez synopsis, i.e., the vital signs of Erlinda
were not recorded during that time. The absence of these data is particularly
significant because, as found by the trial court, it was the absence of oxygen
supply for four (4) to five (5) minutes that caused Erlindas comatose
condition.

On the other hand, the Court has no reason to disbelieve the testimony of
Cruz. As we stated in the Decision, she is competent to testify on matters
which she is capable of observing such as, the statements and acts of the
physician and surgeon, external appearances and manifest conditions which
are observable by any one.[24] Cruz, Erlindas sister-in-law, was with her inside
the operating room.Moreover, being a nurse and Dean of the Capitol Medical
Center School of Nursing at that, she is not entirely ignorant of anesthetic
procedure. Cruz narrated that she heard Dr. Gutierrez remark, Ang hirap maintubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan. She
observed that the nailbeds of Erlinda became bluish and thereafter Erlinda
was placed in trendelenburg position. [25] Cruz further averred that she noticed
that the abdomen of Erlinda became distended.[26]
The cyanosis (bluish discoloration of the skin or mucous membranes
caused by lack of oxygen or abnormal hemoglobin in the blood) and
enlargement of the stomach of Erlinda indicate that the endotracheal tube
was
improperly
inserted
into
the
esophagus
instead
of
the
trachea. Consequently, oxygen was delivered not to the lungs but to the
gastrointestinal tract. This conclusion is supported by the fact that Erlinda
was placed in trendelenburg position. This indicates that there was a
decrease of blood supply to the patients brain. The brain was thus
temporarily deprived of oxygen supply causing Erlinda to go into coma.
The injury incurred by petitioner Erlinda does not normally happen absent
any negligence in the administration of anesthesia and in the use of an
endotracheal tube. As was noted in our Decision, the instruments used in the
administration of anesthesia, including the endotracheal tube, were all under
the exclusive control of private respondents Dr. Gutierrez and Dr. Hosaka.
[27]
In Voss vs. Bridwell,[28]which involved a patient who suffered brain damage
due to the wrongful administration of anesthesia, and even before the
scheduled mastoid operation could be performed, the Kansas Supreme Court
applied the doctrine of res ipsa loquitur, reasoning that the injury to the
patient therein was one which does not ordinarily take place in the absence
of negligence in the administration of an anesthetic, and in the use and
employment of an endotracheal tube. The court went on to say that
[o]rdinarily a person being put under anesthesia is not rendered decerebrate
as a consequence of administering such anesthesia in the absence of
negligence. Upon these facts and under these circumstances, a layman
would be able to say, as a matter of common knowledge and observation,
that the consequences of professional treatment were not as such as would
ordinarily have followed if due care had been exercised. [29] Considering the
application of the doctrine of res ipsa loquitur, the testimony of Cruz was
properly given credence in the case at bar.
For his part, Dr. Hosaka mainly contends that the Court erred in finding
him negligent as a surgeon by applying the Captain-of-the-Ship doctrine.
[30]
Dr. Hosaka argues that the trend in United States jurisprudence has been

to reject said doctrine in light of the developments in medical practice. He
points out that anesthesiology and surgery are two distinct and specialized
fields in medicine and as a surgeon, he is not deemed to have control over
the acts of Dr. Gutierrez. As anesthesiologist, Dr. Gutierrez is a specialist in
her field and has acquired skills and knowledge in the course of her training
which Dr. Hosaka, as a surgeon, does not possess. [31] He states further that
current American jurisprudence on the matter recognizes that the trend
towards specialization in medicine has created situations where surgeons do
not always have the right to control all personnel within the operating room,
[32]
especially a fellow specialist.[33]
Dr. Hosaka cites the case of Thomas v. Raleigh General Hospital, [34] which
involved a suit filed by a patient who lost his voice due to the wrongful
insertion of the endotracheal tube preparatory to the administration of
anesthesia in connection with the laparotomy to be conducted on him. The
patient sued both the anesthesiologist and the surgeon for the injury
suffered by him. The Supreme Court of Appeals of West Virginia held that the
surgeon could not be held liable for the loss of the patients voice,
considering that the surgeon did not have a hand in the intubation of the
patient. The court rejected the application of the Captain-of-the-Ship
Doctrine, citing the fact that the field of medicine has become specialized
such that surgeons can no longer be deemed as having control over the
other personnel in the operating room. It held that [a]n assignment of
liability based on actual control more realistically reflects the actual
relationship which exists in a modern operating room. [35] Hence, only the
anesthesiologist who inserted the endotracheal tube into the patients throat
was held liable for the injury suffered by the latter.
This contention fails to persuade.
That there is a trend in American jurisprudence to do away with the
Captain-of-the-Ship doctrine does not mean that this Court will ipso
facto follow said trend. Due regard for the peculiar factual circumstances
obtaining in this case justify the application of the Captain-of-the-Ship
doctrine. From the facts on record it can be logically inferred that Dr. Hosaka
exercised a certain degree of, at the very least, supervision over the
procedure then being performed on Erlinda.
First, it was Dr. Hosaka who recommended to petitioners the services of
Dr. Gutierrez. In effect, he represented to petitioners that Dr. Gutierrez
possessed the necessary competence and skills. Drs. Hosaka and Gutierrez
had worked together since 1977. Whenever Dr. Hosaka performed a surgery,
he would always engage the services of Dr. Gutierrez to administer the
anesthesia on his patient.[36]
Second, Dr. Hosaka himself admitted that he was the attending physician
of Erlinda. Thus, when Erlinda showed signs of cyanosis, it was Dr. Hosaka

who gave instructions to call for another anesthesiologist and cardiologist to
help resuscitate Erlinda.[37]
Third, it is conceded that in performing their responsibilities to the
patient, Drs. Hosaka and Gutierrez worked as a team. Their work cannot be
placed in separate watertight compartments because their duties intersect
with each other.[38]
While the professional services of Dr. Hosaka and Dr. Gutierrez were
secured primarily for their performance of acts within their respective fields
of expertise for the treatment of petitioner Erlinda, and that one does not
exercise control over the other, they were certainly not completely
independent of each other so as to absolve one from the negligent acts of
the other physician.
That they were working as a medical team is evident from the fact
that Dr. Hosaka was keeping an eye on the intubation of the patient by Dr.
Gutierrez, and while doing so, he observed that the patients nails had
become dusky and had to call Dr. Gutierrezs attention thereto. The Court also
notes that the counsel for Dr. Hosaka admitted that in practice, the
anesthesiologist would also have to observe the surgeons acts during the
surgical process and calls the attention of the surgeon whenever
necessary[39] in the course of the treatment. The duties of Dr. Hosaka and
those of Dr. Gutierrez in the treatment of petitioner Erlinda are therefore not
as clear-cut as respondents claim them to be. On the contrary, it is quite
apparent that they have a common responsibility to treat the patient, which
responsibility necessitates that they call each others attention to the
condition of the patient while the other physician is performing the
necessary medical procedures.
It is equally important to point out that Dr. Hosaka was remiss in his duty
of attending to petitioner Erlinda promptly, for he arrived more than three (3)
hours late for the scheduled operation. Thecholecystectomy was set for June
17, 1985 at 9:00 a.m., but he arrived at DLSMC only at around 12:10 p.m. In
reckless disregard for his patients well being, Dr. Hosaka scheduled two
procedures on the same day, just thirty minutes apart from each other, at
different hospitals. Thus, when the first procedure (protoscopy) at the Sta.
Teresita Hospital did not proceed on time, Erlinda was kept in a state of
uncertainty at the DLSMC.
The unreasonable delay in petitioner Erlindas scheduled operation
subjected her to continued starvation and consequently, to the risk of
acidosis,[40] or the condition of decreased alkalinity of the blood and tissues,
marked by sickly sweet breath, headache, nausea and vomiting, and visual
disturbances.[41] The long period that Dr. Hosaka made Erlinda wait for him
certainly aggravated the anxiety that she must have been feeling at the
time. It could be safely said that her anxiety adversely affected the
administration of anesthesia on her. As explained by Dr. Camagay, the

patients anxiety usually causes the outpouring of adrenaline which in turn
results in high blood pressure or disturbances in the heart rhythm:
DR. CAMAGAY:
x x x Pre-operative medication has three main functions: One is to
alleviate anxiety. Second is to dry up the secretions and Third is to relieve
pain. Now, it is very important to alleviate anxiety because anxiety is
associated with the outpouring of certain substances formed in the body
called adrenalin. When a patient is anxious there is an outpouring of
adrenalin which would have adverse effect on the patient. One of it is high
blood pressure, the other is that he opens himself to disturbances in the heart
rhythm, which would have adverse implications. So, we would like to alleviate
patients anxiety mainly because he will not be in control of his body there
could be adverse results to surgery and he will be opened up; a knife is going
to open up his body. x x x[42]
Dr. Hosaka cannot now claim that he was entirely blameless of what
happened to Erlinda. His conduct clearly constituted a breach of his
professional duties to Erlinda:
CHIEF JUSTICE:
Two other points. The first, Doctor, you were talking about anxiety, would you
consider a patient's stay on the operating table for three hours sufficient
enough to aggravate or magnify his or her anxiety?
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
In other words, I understand that in this particular case that was the case,
three hours waiting and the patient was already on the operating table
(interrupted)
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
Would you therefore conclude that the
aggravation of the anxiety of the patient?
surgeon
contributed
to
the
DR. CAMAGAY:
That this operation did not take place as scheduled is already a source of
anxiety and most operating tables are very narrow and that patients are
usually at risk of falling on the floor so there are restraints that are placed on
them and they are never, never left alone in the operating room by
themselves specially if they are already pre-medicated because they may not
be aware of some of their movement that they make which would contribute
to their injury.

CHIEF JUSTICE:
In other words due diligence would require a surgeon to come on time?
DR. CAMAGAY:
I think it is not even due diligence it is courtesy.
CHIEF JUSTICE:
Courtesy.
DR. CAMAGAY:
And care.
CHIEF JUSTICE:
Duty as a matter of fact?
DR. CAMAGAY:
Yes, Your Honor.[43]
Dr. Hosaka's irresponsible conduct of arriving very late for the scheduled
operation of petitioner Erlinda is violative, not only of his duty as a physician
to serve the interest of his patients with the greatest solicitude, giving them
always his best talent and skill,[44] but also of Article 19 of the Civil Code
which requires a person, in the performance of his duties, to act with justice
and give everyone his due.
Anent private respondent DLSMCs liability for the resulting injury to
petitioner Erlinda, we held that respondent hospital is solidarily liable with
respondent doctors therefor under Article 2180 of the Civil Code[45] since
there exists an employer-employee relationship between private respondent
DLSMC and Drs. Gutierrez and Hosaka:
In other words, private hospitals, hire, fire and exercise real control
over their attending and visiting consultant staff. While consultants
are not, technically employees, x x x the control exercised, the
hiring and the right to terminate consultants all fulfill the important
hallmarks of an employer-employee relationship, with the exception
of the payment of wages. In assessing whether such a relationship
in fact exists, the control test is determining. x x x[46]
DLSMC however contends that applying the four-fold test in determining
whether such a relationship exists between it and the respondent doctors,
the inescapable conclusion is that DLSMC cannot be considered an employer
of the respondent doctors.
It has been consistently held that in determining whether an employeremployee relationship exists between the parties, the following elements

must be present: (1) selection and engagement of services; (2) payment of
wages; (3) the power to hire and fire; and (4) the power to control not only
the end to be achieved, but the means to be used in reaching such an end.[47]
DLSMC maintains that first, a hospital does not hire or engage the
services of a consultant, but rather, accredits the latter and grants him or her
the privilege of maintaining a clinic and/or admitting patients in the hospital
upon a showing by the consultant that he or she possesses the necessary
qualifications, such as accreditation by the appropriate board (diplomate),
evidence of fellowship and references. [48] Second, it is not the hospital but the
patient who pays the consultants fee for services rendered by the latter.
[49]
Third, a hospital does not dismiss a consultant; instead, the latter may
lose his or her accreditation or privileges granted by the hospital.
[50]
Lastly, DLSMC argues that when a doctor refers a patient for admission in
a hospital, it is the doctor who prescribes the treatment to be given to said
patient. The hospitals obligation is limited to providing the patient with the
preferred room accommodation, the nutritional diet and medications
prescribed by the doctor, the equipment and facilities necessary for the
treatment of the patient, as well as the services of the hospital staff who
perform the ministerial tasks of ensuring that the doctors orders are carried
out strictly.[51]
After a careful consideration of the arguments raised by DLSMC, the
Court finds that respondent hospitals position on this issue is meritorious.
There is no employer-employee relationship between DLSMC and Drs.
Gutierrez and Hosaka which would hold DLSMC solidarily liable for the injury
suffered by petitioner Erlinda under Article 2180 of the Civil Code.
As explained by respondent hospital, that the admission of a physician to
membership in DLSMCs medical staff as active or visiting consultant is first
decided upon by the Credentials Committee thereof, which is composed of
the heads of the various specialty departments such as the Department of
Obstetrics and Gynecology, Pediatrics, Surgery with the department head of
the particular specialty applied for as chairman. The Credentials Committee
then recommends to DLSMC's Medical Director or Hospital Administrator the
acceptance or rejection of the applicant physician, and said director or
administrator validates the committee's recommendation. [52] Similarly, in
cases where a disciplinary action is lodged against a consultant, the same is
initiated by the department to whom the consultant concerned belongs and
filed with the Ethics Committee consisting of the department specialty
heads. The medical director/hospital administrator merely acts as ex-officio
member of said committee.
Neither is there any showing that it is DLSMC which pays any of its
consultants for medical services rendered by the latter to their respective
patients. Moreover, the contract between the consultant in respondent
hospital and his patient is separate and distinct from the contract between

respondent hospital and said patient. The first has for its object the rendition
of medical services by the consultant to the patient, while the second
concerns the provision by the hospital of facilities and services by its staff
such as nurses and laboratory personnel necessary for the proper treatment
of the patient.
Further, no evidence was adduced to show that the injury suffered by
petitioner Erlinda was due to a failure on the part of respondent DLSMC to
provide for hospital facilities and staff necessary for her treatment.
For these reasons, we reverse the finding of liability on the part of DLSMC
for the injury suffered by petitioner Erlinda.
Finally, the Court also deems it necessary to modify the award of
damages to petitioners in view of the supervening event of petitioner
Erlindas death. In the assailed Decision, the Court awarded actual damages
of One Million Three Hundred Fifty Two Thousand Pesos (P1,352,000.00) to
cover the expenses for petitioner Erlindas treatment and care from the date
of promulgation of the Decision up to the time the patient expires or
survives.[53] In addition thereto, the Court awarded temperate damages of
One Million Five Hundred Thousand Pesos (P1,500,000.00) in view of the
chronic and continuing nature of petitioner Erlindas injury and the certainty
of further pecuniary loss by petitioners as a result of said injury, the amount
of which, however, could not be made with certainty at the time of the
promulgation of the decision. The Court justified such award in this manner:
Our rules on actual or compensatory damages generally assume

that at the time of litigation, the injury suffered as a consequence of
an act of negligence has been completed and that the cost can be
liquidated.However, these provisions neglect to take into account
those situations, as in this case, where the resulting injury might be
continuing and possible future complications directly arising from
the injury, while certain to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if
they are to adequately and correctly respond to the injury caused,
should be one which compensates for pecuniary loss incurred and
proved, up to the time of trial; and one which would meet pecuniary
loss certain to be suffered but which could not, from the nature of
the case, be made with certainty. In other words, temperate
damages can and should be awarded on top of actual or
compensatory damages in instances where the injury is chronic and
continuing. And because of the unique nature of such cases, no
incompatibility arises when both actual and temperate damages are

provided for. The reason is that these damages cover two distinct
phases.
As it would not be equitableand certainly not in the best interests of
the administration of justicefor the victim in such cases to
constantly come before the courts and invoke their aid in seeking
adjustments
to
the
compensatory
damages
previously
awardedtemperate damages are appropriate. The amount given as
temperate damages, though to a certain extent speculative, should
take into account the cost of proper care.
In the instant case, petitioners were able to provide only homebased nursing care for a comatose patient who has remained in that
condition for over a decade. Having premised our award for
compensatory damages on the amount provided by petitioners at
the onset of litigation, it would be now much more in step with the
interests of justice if the value awarded for temperate damages
would allow petitioners to provide optimal care for their loved one in
a facility which generally specializes in such care. They should not
be compelled by dire circumstances to provide substandard care at
home without the aid of professionals, for anything less would be
grossly inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be
reasonable.[54]
However, subsequent to the promulgation of the Decision, the Court was
informed by petitioner Rogelio that petitioner Erlinda died on August 3, 1999.
[55]
In view of this supervening event, the award of temperate damages in
addition to the actual or compensatory damages would no longer be justified
since the actual damages awarded in the Decision are sufficient to cover the
medical expenses incurred by petitioners for the patient. Hence, only the
amounts representing actual, moral and exemplary damages, attorneys fees
and costs of suit should be awarded to petitioners.
WHEREFORE, the assailed Decision is hereby modified as follows:
(1) Private respondent De Los Santos Medical Center is hereby absolved
from liability arising from the injury suffered by petitioner Erlinda Ramos on
June 17, 1985;
(2) Private respondents Dr. Orlino Hosaka and Dr. Perfecta Gutierrez are
hereby declared to be solidarily liable for the injury suffered by petitioner
Erlinda on June 17, 1985 and are ordered to pay petitioners

(a) P1,352,000.00 as actual damages;
(b) P2,000,000.00 as moral damages;
(c) P100,000.00 as exemplary damages;
(d) P100,000.00 as attorneys fees; and
(e) the costs of the suit.
SO ORDERED.
DOCTRINE OF OSTENSIBLE AGENTS
Doctrine of Res Ipsa Loquitor
Republic
SUPREME
Manila
of
the
Philippines
COURT
THIRD DIVISION
G.R. No. 118231 July 5, 1996

DR.
VICTORIA
L.
BATIQUIN
and
ALLAN
BATIQUIN, petitioners,
vs.
COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G. VILLEGAS, respondents.
DAVIDE, JR., J.:p

Throughout history, patients have consigned their fates and lives to the skill of their doctors. For a breach of this trust, men
have been quick to demand retribution. Some 4,000 years ago, the Code of Hammurabi 1 then already provided: "If
a physician make a deep incision upon a man with his bronze lancet and cause the man's
death, or operate on the eye socket of a man with his bronze lancet and destroy the man's
eyes, they shall cut off his hand." Subsequently, Hippocrates wrote what was to become
part of the healer's oath: "I will follow that method of treatment which according to my
ability and judgment, I consider for the benefit of my patients, and abstain from whatever is
deleterious and mischievous. . . . While I continue to keep this oath unviolated may it be
granted me to enjoy life and practice the art, respected by all men at all times but should I
trespass and violate this oath, may the reverse be my lot." At present, the primary objective
of the medical profession if the preservation of life and maintenance of the health of the
people.
2
Needless to say then, when a physician strays from his sacred duty and endangers instead the life of his patient, he must
be made to answer therefor. Although society today cannot and will not tolerate the punishment meted out by the ancients,
neither will it and this Court, as this case would show, let the act go uncondemned.

of the Court of Appeals of 11 May 1994 in CA-G.R. CV No.
30851, which reversed the decision of 21 December 1990 of Branch 30 of the Regional Trial
Court (RTC) of Negros Oriental in Civil Case No. 9492.
The petitioners appeal from the decision 5
The facts, as found by the trial court, are as follows:

Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital, Dumaguete City from
January 9, 1978 to September 1989. Between 1987 and September, 1989 she was also the Actg. Head
of the Department of Obstetrics and Gynecology at the said Hospital.
Mrs. Villegas is a married woman who submitted to Dr. Batiquin for prenatal care as the latter's private
patient sometime before September 21, 1988.
In the morning of September 21, 1988 Dr. Batiquin, with the assistance of Dr. Doris Teresita Sy who was
also a Resident Physician at the same Hospital, C.I. and O.R. Nurse Arlene Diones and some student
nurses performed a simple caesarean section on Mrs. Villegas at the Negros Oriental Provincial Hospital
and after 45 minutes Mrs. Villegas delivered her first child, Rachel Acogido, at about 11:45 that morning.
Thereafter, Plaintiff remained confined at the Hospital until September 27, 1988 during which period of
confinement she was regularly visited by Dr. Batiquin. On September 28, 1988 Mrs. Villegas checked out
of the Hospital. . . and on that same day she paid Dr. Batiquin, thru the latter's secretary, the amount of
P1,500.00 as "professional fee". . . .
Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal pains and complained of being
feverish. She also gradually lost her appetite, so she consulted Dr. Batiquin at the latter's polyclinic who
prescribed for her certain medicines. . . which she had been taking up to December, 1988.
In the meantime, Mrs. Villegas was given a Medical Certificate by Dr. Batiquin on October 31, 1988. . .
certifying to her physical fitness to return to her work on November 7, 1988. So, on the second week of
November, 1988 Mrs. Villegas returned to her work at the Rural Bank of Ayungon, Negros Oriental.
The abdominal pains and fever kept on recurring and bothered Mrs. Villegas no end despite the
medications administered by Dr. Batiquin. When the pains became unbearable and she was rapidly
losing weight she consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in Dumaguete City on January
20, 1989.
The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs. Villegas at the Holy Child's
Hospital on January 20, 1989 she found Mrs. Villegas to be feverish, pale and was breathing fast. Upon
examination she felt an abdominal mass one finger below the umbilicus which she suspected to be
either a tumor of the uterus or an ovarian cyst, either of which could be cancerous. She had an x-ray
taken of Mrs. Villegas' chest, abdomen and kidney. She also took blood tests of Plaintiff. A blood count
showed that Mrs. Villegas had [an] infection inside her abdominal cavity. The results of all those
examinations impelled Dr. Kho to suggest that Mrs. Villegas submit to another surgery to which the
latter agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-yellow discharge inside, an
ovarian cyst on each of the left and right ovaries which gave out pus, dirt and pus behind the uterus,
and a piece of rubber material on the right side of the uterus embedded on [ sic] the ovarian cyst, 2
inches by 3/4 inch in size. This piece of rubber material which Dr. Kho described as a "foreign body"
looked like a piece of a "rubber glove". . . and which is [sic] also "rubber-drain like". . . . It could have
been a torn section of a surgeon's gloves or could have come from other sources. And this foreign body
was the cause of the infection of the ovaries and consequently of all the discomfort suffered by Mrs.
Villegas after her delivery on September 21, 1988. 7
The piece of rubber allegedly found near private respondent Flotilde Villegas's uterus was not presented in court, and
although Dr. Ma. Salud Kho Testified that she sent it to a pathologist in Cebu City for examination, 8 it was not
mentioned in the pathologist's Surgical Pathology Report.
a
Progress Record, an Anesthesia Record, a Nurse's Record, and a Physician's Discharge
Summary. The trial court, however, regarded these documentary evidence as mere
hearsay, "there being no showing that the person or persons who prepared them are
deceased or unable to testify on the facts therein stated. . . . Except for the Medical
Aside from Dr. Kho's testimony, the evidence which mentioned the piece of rubber are a Medical Certificate,
11
14
12
13
10

Certificate (Exhibit "F"), all the above documents were allegedly prepared by persons other
than Dr. Kho, and she merely affixed her signature on some of them to express her
agreement thereto. . . ." The trial court also refused to give weight to Dr. Kho's testimony
regarding the subject piece of rubber as Dr. Kho "may not have had first-hand knowledge"
thereof, as could be gleaned from her statement, thus:
15
16
A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign body that
goes with the tissues but unluckily I don't know where the rubber was. 17
The trial court deemed vital Dr. Victoria Batiquin's testimony that when she confronted Dr. Kho regarding the piece of
rubber, "Dr. Kho answered that there was rubber indeed but that she threw it away." 18 This statement, the trial
court noted, was never denied nor disputed by Dr. Kho, leading it to conclude:
There are now two different versions on the whereabouts of that offending "rubber" (1) that it was
sent to the Pathologist in Cebu as testified to in Court by Dr. Kho and (2) that Dr. Kho threw it away as
told by her to Defendant. The failure of the Plaintiffs to reconcile these two different versions serve only
to weaken their claim against Defendant Batiquin. 19
All told, the trial court held in favor of the petitioners herein.
The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even without admitting the private respondents'
documentary evidence, deemed Dr. Kho's positive testimony to definitely establish that a piece of rubber was found near
private respondent Villegas's uterus. Thus, the Court of Appeals reversed the decision of the trial court, holding:
4. The fault or negligence of appellee Dr. Batiquin is established by preponderance of evidence. The trial
court itself had narrated what happened to appellant Flotilde after the caesarean operation made by
appellee doctor. . . . After the second operation, appellant Flotilde became well and healthy. Appellant
Flotilde's troubles were caused by the infection due to the "rubber" that was left inside her abdomen.
Both appellant; testified that after the operation made by appellee doctor, they did not go to any other
doctor until they finally decided to see another doctor in January, 1989 when she was not getting any
better under the care of appellee Dr. Batiquin. . . . Appellee Dr. Batiquin admitted on the witness stand
that she alone decided when to close the operating area; that she examined the portion she operated on
before closing the same. . . Had she exercised due diligence, appellee Dr. Batiquin would have found the
rubber and removed it before closing the operating area. 20
The appellate court then ruled:
Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of P7,100.00 (Exh. G-1-A) plus
hospital and medical expenses together with doctor's fees in the total amount P9,900.00 (Exhs. G and G2)] for the second operation that saved her life.
For the miseries appellants endured for more than three (3) months, due to the negligence of appellee
Dr. Batiquin they are entitled to moral damages in the amount of P100,000.00; exemplary damages in
the amount of P20,000.00 and attorney's fees in the amount of P25,000.00.
The fact that appellant Flotilde can no longer bear children because her uterus and ovaries were
removed by Dr. Kho is not taken into consideration as it is not shown that the removal of said organs
were the direct result of the rubber left by appellee Dr. Batiquin near the uterus. What is established is
that the rubber left by appellee caused infection, placed the life of appellant Flotilde in jeopardy and
caused appellant fear, worry and anxiety. . . .
WHEREFORE, the appealed judgment, dismissing the complaint for damages is REVERSED and SET
ASIDE. Another judgment is hereby entered ordering defendants-appellees to pay plaintiffs-appellants
the amounts of P17,000.00 as and for actual damages; P100,000.00 as and for moral damages;
P20,000.00 as and for exemplary damages; and P25,000.00 as and for attorney's fees plus the costs of
litigation.
SO ORDERED. 21
From the above judgment, the petitioners appealed to this Court claiming that the appellate court: (1) committed grave
abuse of discretion by resorting to findings of fact not supported by the evidence on record, and (2) exceeded its discretion,

amounting to lack or excess of jurisdiction, when it gave credence to testimonies punctured with contradictions and
falsities.
The private respondents commented that the petition raised only questions of fact, which were not proper for review by this
Court.
While the rule is that only questions of law may be raised in a petition for review on certiorari, there are exceptions, among
which are when the factual findings of the trial court and the appellate court conflict, when the appealed decision is clearly
contradicted by the evidence on record, or when the appellate court misapprehended the facts. 22
After deciphering the cryptic petition, we find that the focal point of the instant appeal is the appreciation of Dr. Kho's
testimony. The petitioners contend that the Court of Appeals misappreciated the following portion of Dr. Kho's testimony:
Q What is the purpose of the examination?
A Just in case, I was just thinking at the back of my mind, just in case this would turn
out
to
be
a
medico-legal
case, I have heard somebody that [sic] says [sic] there is [sic] a
foreign body that goes with the tissues but unluckily I don't know where the rubber w
as. It was not in the Lab, it was not in Cebu. 23 (emphasis supplied)
The petitioners prefer the trial court's interpretation of the above testimony, i.e., that Dr. Kho's knowledge of the
piece of rubber was based on hearsay. The Court of Appeals, on the other hand, concluded that the underscored
phrase was taken out of context by the trial court. According to the Court of Appeals, the trial court should have
likewise considered the other portions of Dr. Kho's testimony, especially the following:
Q So you did actually conduct the operation on her?
A Yes, I did.
Q And what was the result?
A Opening up her abdomen, there was whitish-yellow discharge inside the abdomen,
there was an ovarian cyst on the left and side and there was also an ovarian cyst on
the right which, on opening up or freeing it up from the uterus, turned out to be pus.
Both ovaries turned out. . . to have pus. And then, cleaning up the uterus, at the back
of the uterus it was very dirty, it was full of pus. And there was a [piece of] rubber,
we
found
a
[piece
of]
rubber
on
the
right
side. 24
We agree with the Court of Appeals. The phrase relied upon by the trial court does not negate the fact that Dr. Kho saw a
piece of rubber in private respondent Villegas's abdomen, and that she sent it to a laboratory and then to Cebu City for
examination by a pathologist. 25 Not even the Pathologist's Report, although devoid of any mention
of a piece of rubber, could alter what Dr. Kho saw. Furthermore, Dr. Kho's knowledge of the
piece of rubber could not be based on other than first-hand knowledge for, as she asserted
before the trial court:
Q But you are sure you have seen [the piece of rubber]?
A Oh yes. I was not the only one who saw it.
26
The petitioners emphasize that the private respondents never reconciled Dr. Kho's testimony with Dr. Batiquin's claim on
the witness stand that when Dr. Batiquin confronted Dr. Kho about the foreign body, the latter said that there was a piece of
rubber but that she threw it away. Although hearsay, Dr. Batiquin's claim was not objected to, and hence, the same is
admissible 27 but it carries no probative value. 28 Nevertheless, assuming otherwise, Dr.
Batiquin's statement cannot belie the fact that Dr. Kho found a piece of rubber near private
respondent Villegas's uterus. And even if we were to doubt Dr. Kho as to what she did to the
piece of rubber, i.e., whether she threw it away or sent it to Cebu City, we are not justified in
distrusting her as to her recovery of a piece of rubber from private respondent Villegas's
abdomen. On this score, it is perfectly reasonable to believe the testimony of a witness with

respect to some facts and disbelieve his testimony with respect to other facts. And it has
been aptly said that even when a witness is found to have deliberately falsified in some
material particulars, it is not required that the whole of his uncorroborated testimony be
rejected, but such portions thereof deemed worthy of belief may be credited.
29
It is here worth noting that the trial court paid heed to the following portions of Dr. Batiquin's testimony: that no rubber
drain was used in the operation, 30 and that there was neither any tear on Dr. Batiquin's gloves after
the operation nor blood smears on her hands upon removing her gloves. Moreover, the trial
court pointed out that the absence of a rubber drain was corroborated by Dr. Doris Sy, Dr.
Batiquin's assistant during the operation on private respondent Villegas. But the trial court
failed to recognize that the assertions of Drs. Batiquin and Sy were denials or negative
testimonies. Well-settled is the rule that positive testimony is stronger than negative
testimony. Of course, as the petitioners advocate, such positive testimony must come from
a credible source, which leads us to the second assigned error.
31
32
33
While the petitioners claim that contradictions and falsities punctured Dr. Kho's testimony, a regarding of the said
testimony reveals no such infirmity and establishes Dr. Kho as a credible witness. Dr. Kho was frank throughout her turn on
the witness stand. Furthermore, no motive to state any untruth was ever imputed against Dr. Kho, leaving her
trustworthiness unimpaired. 34 The trial court's following declaration shows that while it was critical
of the lack of care with which Dr. Kho handled the piece of rubber, it was not prepared to
doubt Dr. Kho's credibility, thus only supporting our appraisal of Dr. Kho's trustworthiness:
This is not to say that she was less than honest when she testified about her findings, but it can also be
said that she did not take the most appropriate precaution to preserve that "piece of rubber" as an
eloquent evidence of what she would reveal should there be a "legal problem" which she claim[s] to
have anticipated. 35
Considering that we have assessed Dr. Kho to be a credible witness, her positive testimony [that a piece of rubber was
indeed found in private respondent Villega's abdomen] prevails over the negative testimony in favor of the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion to delve into the nature and operation of
this doctrine:
This doctrine [res ipsa loquitur] is stated thus: "Where the thing which causes injury is shown to be
under the management of the defendant, and the accident is such as in the ordinary course of things
does not happen in those who have the management use proper care, it affords reasonable evidence, in
the absence of an explanation by the defendant, that the accident arose from want of care." Or
as Black's Law Dictionary puts it:
Res ipsa loquitur. The thing speaks for itself. Rebuctable presumption or inference
that defendant was negligent, which arises upon proof that [the] instrumentality
causing injury was in defendant's exclusive control, and that the accident was one
which ordinary does not happen in absence of negligence. Res ipsa loquitur is [a] rule
of evidence whereby negligence of [the] alleged wrongdoer may be inferred from
[the] mere fact that [the] accident happened provided [the] character of [the]
accident and circumstances attending it lead reasonably to belief that in [the]
absence of negligence it would not have occurred and that thing which caused injury
is shown to have been under [the] management and control of [the] alleged
wrongdoer.
.
.
.
Under
[this]
doctrine
. . . the happening of an injury permits an inference of negligence where plaintiff
produces substantial evidence that [the] injury was caused by an agency or
instrumentality under [the] exclusive control and management of defendant, and that
the occurrence [sic] was such that in the ordinary course of things would not happen
if reasonable care had been used.
xxx xxx xxx
The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of
negligence which recognizes that prima facie negligence may be established without
direct proof and furnishes a substitute for specific proof of negligence. The doctrine is
not a rule of substantive law, but merely a mode of proof or a mere procedural
convenience. The rule, when applicable to the facts and circumstances of a particular

case, is not intended to and does not dispense with the requirement of proof of
culpable negligence on the party charged. It merely determines and regulates what
shall beprima facie evidence thereof and facilitates the burden of plaintiff of proving
a breach of the duty of due care. The doctrine can be invoked when and only when,
under the circumstances involved, direct evidence is absent and not readily
available. 36
In the instant case, all the requisites for recourse to the doctrine are present. First, the entire proceedings of the caesarean
section were under the exclusive control of Dr. Batiquin. In this light, the private respondents were bereft of direct evidence
as to the actual culprit or the exact cause of the foreign object finding its way into private respondent Villegas's body,
which, needless to say, does not occur unless through the intersection of negligence. Second, since aside from the
caesarean section, private respondent Villegas underwent no other operation which could have caused the offending piece
of rubber to appear in her uterus, it stands to reason that such could only have been a by-product of the caesarean section
performed by Dr. Batiquin. The petitioners, in this regard, failed to overcome the presumption of negligence arising from
resort to the doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for negligently leaving behind a piece of rubber in
private respondent Villegas's abdomen and for all the adverse effects thereof.
As a final word, this Court reiterates its recognition of the vital role the medical profession plays in the lives of the
people, 37 and the State's compelling interest to enact measures to protect the public from
"the potentially deadly effects of incompetence and ignorance in those who would undertake
to treat our bodies and minds for disease or trauma." Indeed, a physician is bound to serve
the interest of his patients "with the greatest of solicitude, giving them always his best
talent and skill." Through her tortious conduct, the petitioner endangered the life of Flotilde
Villegas, in violation of her profession's rigid ethical code and in contravention of the legal
standards set forth for professionals, in general, and members of the medical
profession, in particular.
38
39
40
41
WHEREFORE, the challenged decision of 11 May 1994 of the Court of Appeals in CA-G.R. CV No. 30851 is hereby AFFIRMED
in toto.
Costs against the petitioners.
SO ORDERED.
Republic
SUPREME
Manila
of
the
Philippines
COURT
SECOND DIVISION
G.R. No. 130547
October 3, 2000
LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, and minors LLOYD and KRISTINE, all surnamed REYES,
represented
by
their
mother,
LEAH
ALESNA
REYES, petitioners,
vs.
SISTERS OF MERCY HOSPITAL, SISTER ROSE PALACIO, DR. MARVIE BLANES, and DR. MARLYN RICO,respondents.
DECISION
MENDOZA, J.:
This is a petition for review of the decision 1 of the Court of Appeals in CA-G.R. CV No. 36551 affirming the decision of the
Regional Trial Court, Branch IX, Cebu City which dismissed a complaint for damages filed by petitioners against
respondents.
The facts are as follows:
Petitioner Leah Alesna Reyes is the wife of the late Jorge Reyes. The other petitioners, namely, Rose Nahdja, Johnny, Lloyd,
and Kristine, all surnamed Reyes, were their children. Five days before his death on January 8, 1987, Jorge had been
suffering from a recurring fever with chills. After he failed to get relief from some home medication he was taking, which
consisted of analgesic, antipyretic, and antibiotics, he decided to see the doctor.

On January 8, 1987, he was taken to the Mercy Community Clinic by his wife. He was attended to by respondent Dr. Marlyn
Rico, resident physician and admitting physician on duty, who gave Jorge a physical examination and took his medical
history. She noted that at the time of his admission, Jorge was conscious, ambulatory, oriented, coherent, and with
respiratory distress.2 Typhoid fever was then prevalent in the locality, as the clinic had been getting from 15 to 20 cases of
typhoid per month.3 Suspecting that Jorge could be suffering from this disease, Dr. Rico ordered a Widal Test, a standard
test for typhoid fever, to be performed on Jorge. Blood count, routine urinalysis, stool examination, and malarial smear were
also made.4 After about an hour, the medical technician submitted the results of the test from which Dr. Rico concluded that
Jorge was positive for typhoid fever. As her shift was only up to 5:00 p.m., Dr. Rico indorsed Jorge to respondent Dr. Marvie
Blanes.
Dr. Marvie Blanes attended to Jorge at around six in the evening. She also took Jorges history and gave him a physical
examination. Like Dr. Rico, her impression was that Jorge had typhoid fever. Antibiotics being the accepted treatment for
typhoid fever, she ordered that a compatibility test with the antibiotic chloromycetin be done on Jorge. Said test was
administered by nurse Josephine Pagente who also gave the patient a dose of triglobe. As she did not observe any adverse
reaction by the patient to chloromycetin, Dr. Blanes ordered the first five hundred milligrams of said antibiotic to be
administered on Jorge at around 9:00 p.m. A second dose was administered on Jorge about three hours later just before
midnight.
At around 1:00 a.m. of January 9, 1987, Dr. Blanes was called as Jorges temperature rose to 41C. The patient also
experienced chills and exhibited respiratory distress, nausea, vomiting, and convulsions. Dr. Blanes put him under oxygen,
used a suction machine, and administered hydrocortisone, temporarily easing the patients convulsions. When he regained
consciousness, the patient was asked by Dr. Blanes whether he had a previous heart ailment or had suffered from chest
pains in the past. Jorge replied he did not. 5 After about 15 minutes, however, Jorge again started to vomit, showed
restlessness, and his convulsions returned. Dr. Blanes re-applied the emergency measures taken before and, in addition,
valium was administered. Jorge, however, did not respond to the treatment and slipped into cyanosis, a bluish or purplish
discoloration of the skin or mucous membrane due to deficient oxygenation of the blood. At around 2:00 a.m., Jorge died.
He was forty years old. The cause of his death was "Ventricular Arrythemia Secondary to Hyperpyrexia and typhoid fever."
On June 3, 1987, petitioners filed before the Regional Trial Court of Cebu City a complaint 6 for damages against respondents
Sisters of Mercy, Sister Rose Palacio, Dr. Marvie Blanes, Dr. Marlyn Rico, and nurse Josephine Pagente. On September 24,
1987, petitioners amended their complaint to implead respondent Mercy Community Clinic as additional defendant and to
drop the name of Josephine Pagente as defendant since she was no longer connected with respondent hospital. Their
principal contention was that Jorge did not die of typhoid fever. 7Instead, his death was due to the wrongful administration of
chloromycetin. They contended that had respondent doctors exercised due care and diligence, they would not have
recommended and rushed the performance of the Widal Test, hastily concluded that Jorge was suffering from typhoid fever,
and administered chloromycetin without first conducting sufficient tests on the patients compatibility with said drug. They
charged respondent clinic and its directress, Sister Rose Palacio, with negligence in failing to provide adequate facilities and
in hiring negligent doctors and nurses. 8
Respondents denied the charges. During the pre-trial conference, the parties agreed to limit the issues on the following: (1)
whether the death of Jorge Reyes was due to or caused by the negligence, carelessness, imprudence, and lack of skill or
foresight on the part of defendants; (2) whether respondent Mercy Community Clinic was negligent in the hiring of its
employees; and (3) whether either party was entitled to damages. The case was then heard by the trial court during which,
in addition to the testimonies of the parties, the testimonies of doctors as expert witnesses were presented.
Petitioners offered the testimony of Dr. Apolinar Vacalares, Chief Pathologist at the Northern Mindanao Training Hospital,
Cagayan de Oro City. On January 9, 1987, Dr. Vacalares performed an autopsy on Jorge Reyes to determine the cause of his
death. However, he did not open the skull to examine the brain. His findings 9 showed that the gastro-intestinal tract was
normal and without any ulceration or enlargement of the nodules. Dr. Vacalares testified that Jorge did not die of typhoid
fever. He also stated that he had not seen a patient die of typhoid fever within five days from the onset of the disease.
For their part, respondents offered the testimonies of Dr. Peter Gotiong and Dr. Ibarra Panopio. Dr. Gotiong is a diplomate in
internal medicine whose expertise is microbiology and infectious diseases. He is also a consultant at the Cebu City Medical
Center and an associate professor of medicine at the South Western University College of Medicine in Cebu City. He had
treated over a thousand cases of typhoid patients. According to Dr. Gotiong, the patients history and positive Widal Test
results ratio of 1:320 would make him suspect that the patient had typhoid fever. As to Dr. Vacalares observation regarding
the absence of ulceration in Jorges gastro-intestinal tract, Dr. Gotiong said that such hyperplasia in the intestines of a
typhoid victim may be microscopic. He noted that since the toxic effect of typhoid fever may lead to meningitis, Dr.
Vacalares autopsy should have included an examination of the brain. 10
The other doctor presented was Dr. Ibarra Panopio, a member of the American Board of Pathology, examiner of the
Philippine Board of Pathology from 1978 to 1991, fellow of the Philippine Society of Pathologist, associate professor of the
Cebu Institute of Medicine, and chief pathologist of the Andres Soriano Jr. Memorial Hospital in Toledo City. Dr. Panopio
stated that although he was partial to the use of the culture test for its greater reliability in the diagnosis of typhoid fever,
the Widal Test may also be used. Like Dr. Gotiong, he agreed that the 1:320 ratio in Jorges case was already the maximum
by which a conclusion of typhoid fever may be made. No additional information may be deduced from a higher dilution. 11 He
said that Dr. Vacalares autopsy on Jorge was incomplete and thus inconclusive.

On September 12, 1991, the trial court rendered its decision absolving respondents from the charges of negligence and
dismissing petitioners action for damages. The trial court likewise dismissed respondents counterclaim, holding that, in
seeking damages from respondents, petitioners were impelled by the honest belief that Jorges death was due to the
latters negligence.
Petitioners brought the matter to the Court of Appeals. On July 31, 1997, the Court of Appeals affirmed the decision of the
trial court.
Hence this petition.
Petitioners raise the following assignment of errors:
I. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT THE DOCTRINE
OF RES IPSA LOQUITUR IS NOT APPLICABLE IN THE INSTANT CASE.
II. THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT MADE AN UNFOUNDED
ASSUMPTION THAT THE LEVEL OF MEDICAL PRACTICE IS LOWER IN ILIGAN CITY.
III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED FOR A LESSER STANDARD OF CARE
AND DEGREE OF DILIGENCE FOR MEDICAL PRACTICE IN ILIGAN CITY WHEN IT APPRECIATE[D] NO DOCTORS
NEGLIGENCE IN THE TREATMENT OF JORGE REYES.
Petitioners action is for medical malpractice. This is a particular form of negligence which consists in the failure of a
physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the
profession generally, under similar conditions, and in like surrounding circumstances. 12 In order to successfully pursue such
a claim, a patient must prove that the physician or surgeon either failed to do something which a reasonably prudent
physician or surgeon would have done, or that he or she did something that a reasonably prudent physician or surgeon
would not have done, and that the failure or action caused injury to the patient. 13 There are thus four elements involved in
medical negligence cases, namely: duty, breach, injury, and proximate causation.
In the present case, there is no doubt that a physician-patient relationship existed between respondent doctors and Jorge
Reyes. Respondents were thus duty-bound to use at least the same level of care that any reasonably competent doctor
would use to treat a condition under the same circumstances. It is breach of this duty which constitutes actionable
malpractice.14 As to this aspect of medical malpractice, the determination of the reasonable level of care and the breach
thereof, expert testimony is essential. Inasmuch as the causes of the injuries involved in malpractice actions are
determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to
support the conclusion as to causation.15
Res Ipsa Loquitur
There is a case when expert testimony may be dispensed with, and that is under the doctrine of res ipsa loquitur. As held
in Ramos v. Court of Appeals:16
Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitor is availed
by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of
negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly
within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be
testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and experience are
competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care.
However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest
conditions which are observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa
loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without
the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of
care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due
care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa
loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred.
When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission
complained of and the injury sustained while under the custody and management of the defendant without need to
produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitor is allowed because there is
no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the
body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the area,
of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth while a patients

jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient was under the influence of
anesthetic, during or following an operation for appendicitis, among others. 17
Petitioners asserted in the Court of Appeals that the doctrine of res ipsa loquitur applies to the present case because Jorge
Reyes was merely experiencing fever and chills for five days and was fully conscious, coherent, and ambulant when he
went to the hospital. Yet, he died after only ten hours from the time of his admission.
This contention was rejected by the appellate court.
Petitioners now contend that all requisites for the application of res ipsa loquitur were present, namely: (1) the accident was
of a kind which does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused the
injury was under the exclusive control of the person in charge; and (3) the injury suffered must not have been due to any
voluntary action or contribution of the person injured. 18
The contention is without merit. We agree with the ruling of the Court of Appeals. In the Ramos case, the question was
whether a surgeon, an anesthesiologist, and a hospital should be made liable for the comatose condition of a patient
scheduled for cholecystectomy. 19 In that case, the patient was given anesthesia prior to her operation. Noting that the
patient was neurologically sound at the time of her operation, the Court applied the doctrine of res ipsa loquitur as mental
brain damage does not normally occur in a gallblader operation in the absence of negligence of the anesthesiologist. Taking
judicial notice that anesthesia procedures had become so common that even an ordinary person could tell if it was
administered properly, we allowed the testimony of a witness who was not an expert. In this case, while it is true that the
patient died just a few hours after professional medical assistance was rendered, there is really nothing unusual or
extraordinary about his death. Prior to his admission, the patient already had recurring fevers and chills for five days
unrelieved by the analgesic, antipyretic, and antibiotics given him by his wife. This shows that he had been suffering from a
serious illness and professional medical help came too late for him.
Respondents alleged failure to observe due care was not immediately apparent to a layman so as to justify application
of res ipsa loquitur. The question required expert opinion on the alleged breach by respondents of the standard of care
required by the circumstances. Furthermore, on the issue of the correctness of her diagnosis, no presumption of negligence
can be applied to Dr. Marlyn Rico.As held in Ramos:
. . . . Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied,
depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman
is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as
such as would ordinarily have followed if due care had been exercised . A distinction must be made between the failure to
secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered
followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa
loquitur can have no application in a suit against a physician or a surgeon which involves the merits of a diagnosis or of a
scientific treatment. The physician or surgeon is not required at his peril to explain why any particular diagnosis was not
correct, or why any particular scientific treatment did not produce the desired result.20
Specific Acts of Negligence
We turn to the question whether petitioners have established specific acts of negligence allegedly committed by
respondent doctors.
Petitioners contend that: (1) Dr. Marlyn Rico hastily and erroneously relied upon the Widal test, diagnosed Jorges illness as
typhoid fever, and immediately prescribed the administration of the antibiotic chloromycetin; 21 and (2) Dr. Marvie Blanes
erred in ordering the administration of the second dose of 500 milligrams of chloromycetin barely three hours after the first
was given.22 Petitioners presented the testimony of Dr. Apolinar Vacalares, Chief Pathologist of the Northern Mindanao
Training Hospital, Cagayan de Oro City, who performed an autopsy on the body of Jorge Reyes. Dr. Vacalares testified that,
based on his findings during the autopsy, Jorge Reyes did not die of typhoid fever but of shock undetermined, which could
be due to allergic reaction or chloromycetin overdose. We are not persuaded.
First. While petitioners presented Dr. Apolinar Vacalares as an expert witness, we do not find him to be so as he is not a
specialist on infectious diseases like typhoid fever. Furthermore, although he may have had extensive experience in
performing autopsies, he admitted that he had yet to do one on the body of a typhoid victim at the time he conducted the
postmortem on Jorge Reyes. It is also plain from his testimony that he has treated only about three cases of typhoid fever.
Thus, he testified that:23
ATTY. PASCUAL:
Q Why? Have you not testified earlier that you have never seen a patient who died of typhoid fever?
A In autopsy. But, that was when I was a resident physician yet.

Q But you have not performed an autopsy of a patient who died of typhoid fever?
A I have not seen one.
Q And you testified that you have never seen a patient who died of typhoid fever within five days?
A I have not seen one.
Q How many typhoid fever cases had you seen while you were in the general practice of medicine?
A In our case we had no widal test that time so we cannot consider that the typhoid fever is like this and like that. And the
widal test does not specify the time of the typhoid fever.
Q The question is: how many typhoid fever cases had you seen in your general practice regardless of the cases now you
practice?
A I had only seen three cases.
Q And that was way back in 1964?
A Way back after my training in UP.
Q Clinically?
A Way back before my training.
He is thus not qualified to prove that Dr. Marlyn Rico erred in her diagnosis. Both lower courts were therefore correct in
discarding his testimony, which is really inadmissible.
In Ramos, the defendants presented the testimony of a pulmonologist to prove that brain injury was due to oxygen
deprivation after the patient had bronchospasms 24 triggered by her allergic response to a drug, 25 and not due to faulty
intubation by the anesthesiologist. As the issue was whether the intubation was properly performed by an anesthesiologist,
we rejected the opinion of the pulmonologist on the ground that he was not: (1) an anesthesiologist who could enlighten
the court about anesthesia practice, procedure, and their complications; nor (2) an allergologist who could properly
advance expert opinion on allergic mediated processes; nor (3) a pharmacologist who could explain the pharmacologic and
toxic effects of the drug allegedly responsible for the bronchospasms.
Second. On the other hand, the two doctors presented by respondents clearly were experts on the subject. They vouched
for the correctness of Dr. Marlyn Ricos diagnosis. Dr. Peter Gotiong, a diplomate whose specialization is infectious diseases
and microbiology and an associate professor at the Southwestern University College of Medicine and the Gullas College of
Medicine, testified that he has already treated over a thousand cases of typhoid fever. 26 According to him, when a case of
typhoid fever is suspected, the Widal test is normally used, 27and if the 1:320 results of the Widal test on Jorge Reyes had
been presented to him along with the patients history, his impression would also be that the patient was suffering from
typhoid fever.28 As to the treatment of the disease, he stated that chloromycetin was the drug of choice. 29 He also explained
that despite the measures taken by respondent doctors and the intravenous administration of two doses of chloromycetin,
complications of the disease could not be discounted. His testimony is as follows: 30
ATTY. PASCUAL:
Q If with that count with the test of positive for 1 is to 320, what treatment if any would be given?
A If those are the findings that would be presented to me, the first thing I would consider would be typhoid fever.
Q And presently what are the treatments commonly used?
A Drug of choice of chloramphenical.
Q Doctor, if given the same patient and after you have administered chloramphenical about 3 1/2 hours later, the patient
associated with chills, temperature - 41oC, what could possibly come to your mind?

A Well, when it is change in the clinical finding, you have to think of complication.
Q And what will you consider on the complication of typhoid?
A One must first understand that typhoid fever is toximia. The problem is complications are caused by toxins produced by
the bacteria . . . whether you have suffered complications to think of -- heart toxic myocardities; then you can consider a
toxic meningitis and other complications and perforations and bleeding in the ilium.
Q Even that 40-year old married patient who received medication of chloromycetin of 500 milligrams intravenous, after the
skin test, and received a second dose of chloromycetin of 500 miligrams, 3 hours later, the patient developed chills . . . rise
in temperature to 41oC, and then about 40 minutes later the temperature rose to 100 oF, cardiac rate of 150 per minute who
appeared to be coherent, restless, nauseating, with seizures: what significance could you attach to these clinical changes?
A I would then think of toxemia, which was toxic meningitis and probably a toxic meningitis because of the high cardiac
rate.
Q Even if the same patient who, after having given intramuscular valium, became conscious and coherent about 20
minutes later, have seizure and cyanosis and rolling of eyeballs and vomitting . . . and death: what significance would you
attach to this development?
A We are probably dealing with typhoid to meningitis.
Q In such case, Doctor, what finding if any could you expect on the post-mortem examination?
A No, the finding would be more on the meninges or covering of the brain.
Q And in order to see those changes would it require opening the skull?
A Yes.
As regards Dr. Vacalares finding during the autopsy that the deceaseds gastro-intestinal tract was normal, Dr. Rico
explained that, while hyperplasia31 in the payers patches or layers of the small intestines is present in typhoid fever, the
same may not always be grossly visible and a microscope was needed to see the texture of the cells. 32
Respondents also presented the testimony of Dr. Ibarra T. Panopio who is a member of the Philippine and American Board of
Pathology, an examiner of the Philippine Board of Pathology, and chief pathologist at the MetroCebu Community Hospital,
Perpetual Succor Hospital, and the Andres Soriano Jr. Memorial Medical Center. He stated that, as a clinical pathologist, he
recognized that the Widal test is used for typhoid patients, although he did not encourage its use because a single test
would only give a presumption necessitating that the test be repeated, becoming more conclusive at the second and third
weeks of the disease. 33 He corroborated Dr. Gotiongs testimony that the danger with typhoid fever is really the possible
complications which could develop like perforation, hemorrhage, as well as liver and cerebral complications. 34 As regards
the 1:320 results of the Widal test on Jorge Reyes, Dr. Panopio stated that no additional information could be obtained from
a higher ratio.35 He also agreed with Dr. Gotiong that hyperplasia in the payers patches may be microscopic. 36
Indeed, the standard contemplated is not what is actually the average merit among all known practitioners from the best to
the worst and from the most to the least experienced, but the reasonable average merit among the ordinarily good
physicians.37 Here, Dr. Marlyn Rico did not depart from the reasonable standard recommended by the experts as she in fact
observed the due care required under the circumstances. Though the Widal test is not conclusive, it remains a standard
diagnostic test for typhoid fever and, in the present case, greater accuracy through repeated testing was rendered
unobtainable by the early death of the patient. The results of the Widal test and the patients history of fever with chills for
five days, taken with the fact that typhoid fever was then prevalent as indicated by the fact that the clinic had been getting
about 15 to 20 typhoid cases a month, were sufficient to give upon any doctor of reasonable skill the impression that Jorge
Reyes had typhoid fever.
Dr. Rico was also justified in recommending the administration of the drug chloromycetin, the drug of choice for typhoid
fever. The burden of proving that Jorge Reyes was suffering from any other illness rested with the petitioners. As they failed
to present expert opinion on this, preponderant evidence to support their contention is clearly absent.
Third. Petitioners contend that respondent Dr. Marvie Blanes, who took over from Dr. Rico, was negligent in ordering the
intravenous administration of two doses of 500 milligrams of chloromycetin at an interval of less than three hours.
Petitioners claim that Jorge Reyes died of anaphylactic shock 38 or possibly from overdose as the second dose should have
been administered five to six hours after the first, per instruction of Dr. Marlyn Rico. As held by the Court of Appeals,
however:

That chloromycetin was likewise a proper prescription is best established by medical authority. Wilson, et. al., inHarrisons
Principle of Internal Medicine, 12th ed. write that chlorampenicol (which is the generic of chloromycetin) is the drug of
choice for typhoid fever and that no drug has yet proven better in promoting a favorable clinical response. "Chlorampenicol
(Chloromycetin) is specifically indicated for bacterial meningitis, typhoid fever, rickettsial infections, bacteriodes infections,
etc." (PIMS Annual, 1994, p. 211) The dosage likewise including the first administration of five hundred milligrams (500
mg.) at around nine oclock in the evening and the second dose at around 11:30 the same night was still within medically
acceptable limits, since the recommended dose of chloromycetin is one (1) gram every six (6) hours . (cf. Pediatric Drug
Handbook, 1st Ed., Philippine Pediatric Society, Committee on Therapeutics and Toxicology, 1996). The intravenous route is
likewise correct. (Mansser, ONick, Pharmacology and Therapeutics) Even if the test was not administered by the physicianon-duty, the evidence introduced that it was Dra. Blanes who interpreted the results remain uncontroverted. (Decision, pp.
16-17) Once more, this Court rejects any claim of professional negligence in this regard.
....
As regards anaphylactic shock, the usual way of guarding against it prior to the administration of a drug, is the skin test of
which, however, it has been observed: "Skin testing with haptenic drugs is generally not reliable. Certain drugs cause
nonspecific histamine release, producing a weal-and-flare reaction in normal individuals. Immunologic activation of mast
cells requires a polyvalent allergen, so a negative skin test to a univalent haptenic drug does not rule out anaphylactic
sensitivity to that drug." (Terr, "Anaphylaxis and Urticaria" in Basic and Clinical Immunology, p. 349) What all this means
legally is that even if the deceased suffered from an anaphylactic shock, this, of itself, would not yet establish the
negligence of the appellee-physicians for all that the law requires of them is that they perform the standard tests and
perform standard procedures. The law cannot require them to predict every possible reaction to all drugs administered. The
onus probandi was on the appellants to establish, before the trial court, that the appellee-physicians ignored standard
medical procedure, prescribed and administered medication with recklessness and exhibited an absence of the competence
and skills expected of general practitioners similarly situated. 39
Fourth. Petitioners correctly observe that the medical profession is one which, like the business of a common carrier, is
affected with public interest. Moreover, they assert that since the law imposes upon common carriers the duty of observing
extraordinary diligence in the vigilance over the goods and for the safety of the passengers, 40 physicians and surgeons
should have the same duty toward their patients. 41 They also contend that the Court of Appeals erred when it allegedly
assumed that the level of medical practice is lower in Iligan City, thereby reducing the standard of care and degree of
diligence required from physicians and surgeons in Iligan City.
The standard of extraordinary diligence is peculiar to common carriers. The Civil Code provides:
Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe
extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according
to the circumstances of each case. . . .
The practice of medicine is a profession engaged in only by qualified individuals. It is a right earned through years of
education, training, and by first obtaining a license from the state through professional board examinations. Such license
may, at any time and for cause, be revoked by the government. In addition to state regulation, the conduct of doctors is
also strictly governed by the Hippocratic Oath, an ancient code of discipline and ethical rules which doctors have imposed
upon themselves in recognition and acceptance of their great responsibility to society. Given these safeguards, there is no
need to expressly require of doctors the observance of "extraordinary" diligence. As it is now, the practice of medicine is
already conditioned upon the highest degree of diligence. And, as we have already noted, the standard contemplated for
doctors is simply the reasonable average merit among ordinarily good physicians. That is reasonable diligence for doctors
or, as the Court of Appeals called it, the reasonable "skill and competence . . . that a physician in the same or similar
locality . . . should apply."
1wphi1
WHEREFORE, the instant petition is DENIED and the decision of the Court of Appeals is AFFIRMED.
SO ORDERED.

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LEGAL MEDICINE JURISPRUDENCE 2016

Doctrine of Vicarious Liability

G.R. No. 126297

- versus NATIVIDAD and ENRIQUE AGANA,

G.R. No. 126467

- versus JUAN FUENTES,

NATIVIDAD AGANA and

January 31, 2007

LEGAL MEDICINE JURISPRUDENCE 2016

Hospitals, having undertaken one of mankinds most important and

the Medical City General Hospital (Medical City Hospital)

difficulty of bowel movement and bloody anal discharge. After a series of

the Medical City Hospital, performed an anterior resection surgery on

LEGAL MEDICINE JURISPRUDENCE 2016

consultations and laboratory examinations, Natividad was told she was

in October 1984, Natividad

underwent another surgery.

LEGAL MEDICINE JURISPRUDENCE 2016

malpractice, the decretal part of which reads:

As actual damages, the following amounts:

The equivalent in Philippine Currency of the

The sum of P4,800.00 as travel taxes of

The total sum of P45,802.50, representing

As moral damages, the sum of P2,000,000.00;

As exemplary damages, the sum of P300,000.00;

As attorneys fees, the sum of P250,000.00;

Legal interest on items 1 (a), (b), and (c); 2; and 3

LEGAL MEDICINE JURISPRUDENCE 2016

Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to

LEGAL MEDICINE JURISPRUDENCE 2016

LEGAL MEDICINE JURISPRUDENCE 2016

Dr. Ampil, in an attempt to absolve himself, gears the Courts attention to

hysterectomy; second, the attending nurses erred in counting the gauzes;

LEGAL MEDICINE JURISPRUDENCE 2016

least prima facie negligence

inconsistent with due care as to raise an inference of negligence. There

is negligence per se.[9]

LEGAL MEDICINE JURISPRUDENCE 2016

necessitating her further examination by American doctors and another

LEGAL MEDICINE JURISPRUDENCE 2016

and (4) the

explanation by the defendant. Of the foregoing requisites, the most

LEGAL MEDICINE JURISPRUDENCE 2016

The third issue necessitates a glimpse at the historical development of

agency by estoppel. [20]

LEGAL MEDICINE JURISPRUDENCE 2016

A derivative of this provision is Article 2180, the rule governing

LEGAL MEDICINE JURISPRUDENCE 2016

the traditional notion

treatment. Rather, they regularly employ, on a salaried basis, a large staff

LEGAL MEDICINE JURISPRUDENCE 2016

LEGAL MEDICINE JURISPRUDENCE 2016

But the Ramos pronouncement is not our only basis in sustaining

hospitals liability for negligent acts of health professionals. The present

LEGAL MEDICINE JURISPRUDENCE 2016

The applicability of apparent authority in the field of hospital

LEGAL MEDICINE JURISPRUDENCE 2016

The wisdom of the foregoing ratiocination is easy to discern.

LEGAL MEDICINE JURISPRUDENCE 2016

Premised on the doctrine of corporate negligence, the trial court held

that PSI is directly liable for such breach of duty.

LEGAL MEDICINE JURISPRUDENCE 2016

the Medical City Hospital for