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The requisites of establishing

medical malpractice1

Whoever alleges a fact has the burden of proving it. This is a basic legal principle that equally applies
to civil and criminal cases. In a medical malpractice case, the plaintiff has the duty of proving its
elements, namely: (1) a duty of the defendant to his patient; (2) the defendant's breach of this duty; (3)
injury to the patient; and (4) proximate causation between the breach and the injury suffered. 17 In civil
cases, the plaintiff must prove these elements by a preponderance of evidence.

A medical professional has the duty to observe the standard of care and exercise the degree of skill,
knowledge, and training ordinarily expected of other similarly trained medical professionals acting
under the same circumstances. 18 A breach of the accepted standard of care constitutes negligence or
malpractice and renders the defendant liable for the resulting injury to his patient. 19

The standard is based on the norm observed by other reasonably competent members of the profession
practicing the same field of medicine. 20 Because medical malpractice cases are often highly technical,
expert testimony is usually essential to establish: (1) the standard of care that the defendant was bound
to observe under the circumstances; (2) that the defendant's conduct fell below the acceptable standard;
and (3) that the defendant's failure to observe the industry standard caused injury to his patient. 21

The expert witness must be a similarly trained and experienced physician. Thus, a pulmonologist is not
qualified to testify as to the standard of care required of an anesthesiologist 22 and an autopsy expert is
not qualified to testify as a specialist in infectious diseases. 23

xxx

Res ipsa loquitur is not applicable


when the failure to observe due
care is not immediately apparent to
the layman.

The petitioner cannot invoke the doctrine of res ipsa loquitur to shift the burden of evidence onto the
respondent. Res ipsa loquitur, literally, "the thing speaks for itself;" is a rule of evidence that presumes
negligence from the very nature of the accident itself using common human knowledge or experience.

The application of this rule requires: (1) that the accident was of a kind which does not ordinarily occur
unless someone is negligent; (2) that the instrumentality or agency which caused the injury was under
the exclusive control of the person charged with negligence; and (3) that the injury suffered must not
have been due to any voluntary action or contribution from the injured person. 38 The concurrence of
these elements creates a presumption of negligence that, if unrebutted, overcomes the plaintiff's burden
of proof.

This doctrine is used in conjunction with the doctrine of common knowledge. We have applied this
doctrine in the following cases involving medical practitioners:

a. Where a patient who was scheduled for a cholecystectomy (removal of gall stones) but was
otherwise healthy suffered irreparable brain damage after being administered anesthesia prior to the

1 Borromeo v. Family Care Hospital, Inc., G.R. No. 191018, 25 January 2016.
operation. 39
b. Where after giving birth, a woman woke up with a gaping burn wound close to her left armpit;
40
c. The removal of the wrong body part during the operation; and
d. Where an operating surgeon left a foreign object (i.e., rubber gloves) inside the body of the
patient. 41

The rule is not applicable in cases such as the present one where the defendant's alleged failure to
observe due care is not immediately apparent to a layman. 42 These instances require expert opinion to
establish the culpability of the defendant doctor. It is also not applicable to cases where the actual cause
of the injury had been identified or established. 43

While this Court sympathizes with the petitioner's loss, the petitioner failed to present sufficient
convincing evidence to establish: (1) the standard of care expected of the respondent and (2) the fact
that Dr. Inso fell short of this expected standard. Considering further that the respondents established
that the cause of Lilian's uncontrollable bleeding (and, ultimately, her death) was a medical disorder —
Disseminated Intravascular Coagulation — we find no reversible errors in the CA's dismissal of the
complaint on appeal.

Medical Negligence and


Malpractice Not Established2

In the case at bench, Dr. Cruz failed to show that the DOJ gravely abused its discretion in finding that
there was lack of probable cause and dismissing the complaint against Dr. Agas for Serious Physical
Injuries through Reckless Imprudence and Medical Malpractice.
A medical negligence case can prosper if the patient can present solid proof that the doctor, like in this
case, either failed to do something which a reasonably prudent doctor would have done, or that he did
something that a reasonably prudent doctor would not have done, and such failure or action caused
injury to the patient.

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. Simply put, the elements are duty, breach, injury and proximate causation. 10
In this case, Dr. Cruz has the burden of showing the negligence or recklessness of Dr. Agas. Although
there is no dispute that Dr. Cruz sustained internal hemorrhage due to a tear in the serosa of his sigmoid
colon, he failed to show that it was caused by Dr. Agas's negligent and reckless conduct of the
colonoscopy procedure. In other words, Dr. Cruz failed to show and explain that particular negligent or
reckless act or omission committed by Dr. Agas. Stated differently, Dr. Cruz did not demonstrate that
there was "inexcusable lack of precaution" on the part of Dr. Agas.

Res Ipsa Loquitur Doctrine


Not Applicable Against Respondent

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

2 Cruz v. Agas Jr., G.R. No. 204095, 15 June 2015.


of negligence, or make out a plaintiff's prima facie case, and present a question of fact for defendant to
meet with an explanation. 11

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. 12

Medical Malpractice Suit as a


Specialized Area of Tort Law

The claim for damages is based on the petitioning doctors' negligence in diagnosing and treating the
deceased Edmer, the child of the respondent. It is a medical malpractice suit, an action available to
victims to redress a wrong committed by medical professionals who caused bodily harm to, or the
death of, a patient. 33 As the term is used, the suit is brought whenever a medical practitioner or health
care provider fails to meet the standards demanded by his profession, or deviates from this standard,
and causes injury to the patient.

To successfully pursue a medical malpractice suit, the plaintiff (in this case, the deceased patient's heir)
must prove that the doctor either failed to do what a reasonably prudent doctor would have done, or did
what a reasonably prudent doctor would not have done; and the act or omission had caused injury to the
patient. 34 The patient's heir/s bears the burden of proving his/her cause of action.

The Elements of a Medical Malpractice Suit

The elements of medical negligence are: (1) duty; (2) breach; (3) injury; and (4) proximate causation.
Duty refers to the standard of behavior that imposes restrictions on one's conduct. 35 It requires proof
of professional relationship between the physician and the patient. Without the professional
relationship, a physician owes no duty to the patient, and cannot therefore incur any liability.
A physician-patient relationship is created when a patient engages the services of a physician, 36 and
the latter accepts or agrees to provide care to the patient. 37 The establishment of this relationship is
consensual, 38 and the acceptance by the physician essential. The mere fact that an individual
approaches a physician and seeks diagnosis, advice or treatment does not create the duty of care unless
the physician agrees. 39

The consent needed to create the relationship does not always need to be express. 40 In the absence of
an express agreement, a physician-patient relationship may be implied from the physician's affirmative
action to diagnose and/or treat a patient, or in his participation in such diagnosis and/or treatment. 41
The usual illustration would be the case of a patient who goes to a hospital or a clinic, and is examined
and treated by the doctor. In this case, we can infer, based on the established and customary practice in
the medical community that a patient-physician relationship exists.

Once a physician-patient relationship is established, the legal duty of care follows. The doctor
accordingly becomes duty-bound to use at least the same standard of care that a reasonably competent
doctor would use to treat a medical condition under similar circumstances.

Breach of duty occurs when the doctor fails to comply with, or improperly performs his duties under
professional standards. This determination is both factual and legal, and is specific to each individual
case. 42

If the patient, as a result of the breach of duty, is injured in body or in health, actionable malpractice is
committed, entitling the patient to damages. 43
To successfully claim damages, the patient must lastly prove the causal relation between the negligence
and the injury. This connection must be direct, natural, and should be unbroken by any intervening
efficient causes. In other words, the negligence must be the proximate cause of the injury. 44 The injury
or damage is proximately caused by the physician's negligence when it appears, based on the evidence
and the expert testimony, that the negligence played an integral part in causing the injury or damage,
and that the injury or damage was either a direct result, or a reasonably probable consequence of the
physician's negligence. 45

a. The Relationship between Dr. Casumpang and Edmer

In the present case, the physician-patient relationship between Dr. Casumpang and Edmer was created
when the latter's parents sought the medical services of Dr. Casumpang, and the latter knowingly
accepted Edmer as a patient. Dr. Casumpang's acceptance is implied from his affirmative examination,
diagnosis and treatment of Edmer. On the other hand, Edmer's parents, on their son's behalf, manifested
their consent by availing of the benefits of their health care plan, and by accepting the hospital's
assigned doctor without objections.

b. The Relationship between Dr. Miranda and Edmer

With respect to Dr. Miranda, her professional relationship with Edmer arose when she assumed the
obligation to provide resident supervision over the latter. As second year resident doctor tasked to do
rounds and assist other physicians, Dr. Miranda is deemed to have agreed to the creation of physician-
patient relationship with the hospital's patients when she participated in the diagnosis and prescribed a
course of treatment for Edmer.

The undisputed evidence shows that Dr. Miranda examined Edmer twice (at around 12:00 and 3:30 in
the afternoon of April 23, 1988), and in both instances, she prescribed treatment and participated in the
diagnosis of Edmer's medical condition. Her affirmative acts amounted to her acceptance of the
physician-patient relationship, and incidentally, the legal duty of care that went with it.

In Jarcia, Jr. v. People of the Philippines, 46 the Court found the doctors who merely passed by and
were requested to attend to the patient, liable for medical malpractice. It held that a physician-patient
relationship was established when they examined the patient, and later assured the mother that
everything was fine.

In the US case of Mead v. Legacy Health System, 47 the Court also considered the rendering of an
opinion in the course of the patient's care as the doctor's assent to the physician-patient relationship. It
ruled that the relationship was formed because of the doctor's affirmative action.

Likewise, in Wax v. Johnson, 48 the court found that a physician-patient relationship was formed
between a physician who "contracts, agrees, undertakes, or otherwise assumes" the obligation to
provide resident supervision at a teaching hospital, and the patient with whom the doctor had no direct
or indirect contract.

Standard of Care and Breach of Duty

A determination of whether or not the petitioning doctors met the required standard of care involves a
question of mixed fact and law; it is factual as medical negligence cases are highly technical in nature,
requiring the presentation of expert witnesses to provide guidance to the court on matters clearly falling
within the domain of medical science, and legal, insofar as the Court, after evaluating the expert
testimonies, and guided by medical literature, learned treatises, and its fund of common knowledge,
ultimately determines whether breach of duty took place.

Whether or not Dr. Casumpang and Dr. Miranda committed a breach of duty is to be measured by the
yardstick of professional standards observed by the other members of the medical profession in good
standing under similar circumstances. 49 It is in this aspect of medical malpractice that expert
testimony is essential to establish not only the professional standards observed in the medical
community, but also that the physician's conduct in the treatment of care falls below such standard. 50
In the present case, expert testimony is crucial in determining first, the standard medical examinations,
tests, and procedures that the attending physicians should have undertaken in the diagnosis and
treatment of dengue fever; and second, the dengue fever signs and symptoms that the attending
physicians should have noticed and considered.

xxx

Similarly, in Jarcia, 64 involving the negligence of the doctors in failing to exercise reasonable
prudence in ascertaining the extent of the patient's injuries, this Court declared that:

In failing to perform an extensive medical examination to determine the extent of


Roy, Jr.'s injuries, Dr. Jarcia and Dr. Bastan were remiss of their duties as members of
the medical profession. Assuming for the sake of argument that they did not have the
capacity to make such thorough evaluation at that stage, they should have referred the
patient to another doctor with sufficient training and experience instead of assuring him
and his mother that everything was all right. [Emphasis supplied]

Even assuming that Edmer's symptoms completely coincided with the diagnosis of bronchopneumonia
(so that this diagnosis could not be considered "wrong"), we still find Dr. Casumpang guilty of
negligence.

First, we emphasize that we do not decide the correctness of a doctor's diagnosis, or the accuracy of the
medical findings and treatment. Our duty in medical malpractice cases is to decide — based on the
evidence adduced and expert opinion presented — whether a breach of duty took place.

Second, we clarify that a wrong diagnosis is not by itself medical malpractice. 65 Physicians are
generally not liable for damages resulting from a bona fide error of judgment. Nonetheless, when the
physician's erroneous diagnosis was the result of negligent conduct (e.g., neglect of medical history,
failure to order the appropriate tests, failure to recognize symptoms), it becomes an evidence of
medical malpractice.

Third, we also note that medicine is not an exact science; 66 and doctors, or even specialists, are not
expected to give a 100% accurate diagnosis in treating patients who come to their clinic for
consultations. Error is possible as the exercise of judgment is called for in considering and reading the
exhibited symptoms, the results of tests, and in arriving at definitive conclusions. But in doing all these,
the doctor must have acted according to acceptable medical practice standards.

Dr. Miranda is Not Liable for Negligence

In considering the case of Dr. Miranda, the junior resident physician who was on-duty at the time of
Edmer's confinement, we see the need to draw distinctions between the responsibilities and
corresponding liability of Dr. Casumpang, as the attending physician, and that of Dr. Miranda.

In his testimony, Dr. Pasion declared that resident applicants are generally doctors of medicine licensed
to practice in the Philippines and who would like to pursue a particular specialty. 70 They are usually
the front line doctors responsible for the first contact with the patient. During the scope of the residency
program, 71 resident physicians (or "residents") 72 function under the supervision of attending
physicians 73 or of the hospital's teaching staff. Under this arrangement, residents operate merely as
subordinates who usually defer to the attending physician on the decision to be made and on the action
to be taken.

The attending physician, on the other hand, is primarily responsible for managing the resident's
exercise of duties. While attending and resident physicians share the collective responsibility to deliver
safe and appropriate care to the patients, 74 it is the attending physician who assumes the principal
responsibility of patient care. 75 Because he/she exercises a supervisory role over the resident, and is
ultimately responsible for the diagnosis and treatment of the patient, the standards applicable to and the
liability of the resident for medical malpractice is theoretically less than that of the attending physician.
These relative burdens and distinctions, however, do not translate to immunity from the legal duty of
care for residents, 76 or from the responsibility arising from their own negligent act.

In Jenkins v. Clark, 77 the Ohio Court of Appeals held that the applicable standard of care in medical
malpractice cases involving first-year residents was that of a reasonably prudent physician and not that
of interns. According to Jenkins:

It is clear that the standard of care required of physicians is not an individualized


one but of physicians in general in the community. In order to establish medical
malpractice, it must be shown by a preponderance of the evidence that a physician did
some particular thing or things that a physician or surgeon of ordinary skill, care and
diligence would not have done under like or similar conditions or circumstances, or that
he failed or omitted to do some particular thing or things that a physician or surgeon of
ordinary skill, care and diligence would have done under like or similar conditions or
circumstances, and that the inquiry complained of was the direct result of such doing or
failing to do such thing or things.

We note that the standard of instruction given by the court was indeed a proper
one. It clearly informed the jury that the medical care required is that of reasonably
careful physicians or hospital emergency room operators, not of interns or residents.
[Emphasis supplied]

A decade later, Centman v. Cobb, 78 affirmed the Jenkins ruling and held that interns and first-year
residents are "practitioners of medicine required to exercise the same standard of care applicable to
physicians with unlimited licenses to practice." The Indiana Court held that although a first-year
resident practices under a temporary medical permit, he/she impliedly contracts that he/she has the
reasonable and ordinary qualifications of her profession and that he/she will exercise reasonable skill,
diligence, and care in treating the patient.

We find that Dr. Miranda was not independently negligent. Although she had greater patient exposure,
and was subject to the same standard of care applicable to attending physicians, we believe that a
finding of negligence should also depend on several competing factors, among them, her authority to
make her own diagnosis, the degree of supervision of the attending physician over her, and the shared
responsibility between her and the attending physicians.

xxx

Dr. Jaudian's Professional Competence and Credibility

One of the critical issues the petitioners raised in the proceedings before the lower court and before this
Court was Dr. Jaudian's competence and credibility as an expert witness. The petitioners tried to
discredit his expert testimony on the ground that he lacked the proper training and fellowship status in
pediatrics.

• Criteria in Qualifying as an Expert Witness

The competence of an expert witness is a matter for the trial court to decide upon in the exercise of its
discretion. The test of qualification is necessarily a relative one, depending upon the subject matter of
the investigation, and the fitness of the expert witness. 84 In our jurisdiction, the criterion remains to be
the expert witness' special knowledge experience and practical training that qualify him/her to explain
highly technical medical matters to the Court.

In Ramos v. Court of Appeals, 85 the Court found the expert witness, who is a pulmonologist, not
qualified to testify on the field of anesthesiology. Similarly, in Cereno v. Court of Appeals, 86 a 2012
case involving medical negligence, the Court excluded the testimony of an expert witness whose
specialty was anesthesiology, and concluded that an anesthesiologist cannot be considered an expert in
the field of surgery or even in surgical practices and diagnosis.

Interestingly in this case, Dr. Jaudian, the expert witness was admittedly not a pediatrician but a
practicing physician who specializes in pathology. 87 He likewise does not possess any formal
residency training in pediatrics. Nonetheless, both the lower courts found his knowledge acquired
through study and practical experience sufficient to advance an expert opinion on dengue-related cases.

We agree with the lower courts.

A close scrutiny of Ramos and Cereno reveals that the Court primarily based the witnesses'
disqualification to testify as an expert on their incapacity to shed light on the standard of care that must
be observed by the defendant physicians. That the expert witnesses' specialties do not match the
physicians' practice area only constituted, at most, one of the considerations that should not be taken
out of context. After all, the sole function of a medical expert witness, regardless of his/her specialty, is
to afford assistance to the courts on medical matters, and to explain the medical facts in issue.

Furthermore, there was no reasonable indication in Ramos and Cereno that the expert witnesses possess
a sufficient familiarity with the standard of care applicable to the physicians' specialties.

US jurisprudence on medical malpractice demonstrated the trial courts' wide latitude of discretion in
allowing a specialist from another field to testify against a defendant specialist.

In Brown v. Sims, 88 a neurosurgeon was found competent to give expert testimony regarding a
gynecologist's standard of pre-surgical care. In that case, the court held that since negligence was not
predicated on the gynecologist's negligent performance of the operation, but primarily on the claim that
the pre-operative histories and physicals were inadequate, the neurosurgeon was competent to testify as
an expert.

Frost v. Mayo Clinic 89 also allowed an orthopedic surgeon to testify against a neurologist in a medical
malpractice action. The court considered that the orthopedic surgeon's opinion on the "immediate need
for decompression" need not come from a specialist in neurosurgery. The court held that:

It is well established that "the testimony of a qualified medical doctor cannot be


excluded simply because he is not a specialist . . . ." The matter of ". . . training and
specialization of the witness goes to the weight rather than admissibility . . . ."
xxx xxx xxx
It did not appear to the court that a medical doctor had to be a specialist in
neurosurgery to express the opinions permitted to be expressed by plaintiffs' doctors,
e.g., the immediate need for a decompression in the light of certain neurological deficits
in a post-laminectomy patient. As stated above, there was no issue as to the proper
execution of the neurosurgery. The medical testimony supported plaintiffs' theory of
negligence and causation. (Citations omitted)

In another case, 90 the court declared that it is the specialist's knowledge of the requisite subject matter,
rather than his/her specialty that determines his/her qualification to testify.

Also in Evans v. Ohanesian, 91 the court set a guideline in qualifying an expert witness:

To qualify a witness as a medical expert, it must be shown that the witness (1)
has the required professional knowledge, learning and skill of the subject under inquiry
sufficient to qualify him to speak with authority on the subject; and (2) is familiar with
the standard required of a physician under similar circumstances; where a witness has
disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the
question of the degree of his knowledge goes more to the weight of the evidence than to
its admissibility.
xxx xxx xxx
Nor is it critical whether a medical expert is a general practitioner or a specialist
so long as he exhibits knowledge of the subject. Where a duly licensed and practicing
physician has gained knowledge of the standard of care applicable to a specialty in
which he is not directly engaged but as to which he has an opinion based on education,
experience, observation, or association wit that specialty, his opinion is competent.
(Emphasis supplied)

Finally, Brown v. Mladineo 92 adhered to the principle that the witness' familiarity, and not the
classification by title or specialty, which should control issues regarding the expert witness'
qualifications:
The general rule as to expert testimony in medical malpractice actions is that "a
specialist in a particular branch within a profession will not be required." Most courts
allow a doctor to testify if they are satisfied of his familiarity with the standards of a
specialty, though he may not practice the specialty himself. One court explained that "it
is the scope of the witness' knowledge and not the artificial classification by title that
should govern the threshold question of admissibility. (Citations omitted)

Solidum v. People3

The applicability of the doctrine of res ipsa loquitur in medical negligence cases was significantly and
exhaustively explained in Ramos v. Court of Appeals, 28 where the Court said —

Medical malpractice cases do not escape the application of this doctrine. Thus,
res ipsa loquitur has been applied when the circumstances attendant upon the harm are
themselves of such a character as to justify an inference of negligence as the cause of
that harm. The application of res ipsa loquitur in medical negligence cases presents a
question of law since it is a judicial function to determine whether a certain set of
circumstances does, as a matter of law, permit a given inference.

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 loquitur 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 loquitur 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.

3 Solidum v. People, G.R. No. 192123, 10 March 2014.


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 patient's jaw was under anesthetic for the removal of his
tonsils, and loss of an eye while the patient plaintiff was under the influence of
anesthetic, during or following an operation for appendicitis, among others.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been
measurably enlarged, it does not automatically apply to all cases of medical negligence
as to mechanically shift the burden of proof to the defendant to show that he is not guilty
of the ascribed negligence. 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 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. Thus, res ipsa loquitur is not
available in a malpractice suit if the only showing is that the desired result of an
operation or treatment was not accomplished. The real question, therefore, is whether or
not in the process of the operation any extraordinary incident or unusual event outside of
the routine performance occurred which is beyond the regular scope of customary
professional activity in such operations, which, if unexplained would themselves
reasonably speak to the average man as the negligent cause or causes of the untoward
consequence. If there was such extraneous intervention, the doctrine of res ipsa loquitur
may be utilized and the defendant is called upon to explain the matter, by evidence of
exculpation, if he could.

In order to allow resort to the doctrine, therefore, the following essential requisites must first be
satisfied, to wit: (1) the accident was of a kind that does not ordinarily occur unless someone is
negligent; (2) the instrumentality or agency that caused the injury was under the exclusive control of
the person charged; and (3) the injury suffered must not have been due to any voluntary action or
contribution of the person injured. 29

xxx

The Prosecution did not prove the elements of reckless imprudence beyond reasonable doubt because
the circumstances cited by the CA were insufficient to establish that Dr. Solidum had been guilty of
inexcusable lack of precaution in monitoring the administration of the anesthetic agent to Gerald. The
Court aptly explained in Cruz v. Court of Appeals 35 that:

Whether or not a physician has committed an "inexcusable lack of precaution" in


the treatment of his patient is to be determined according to the standard of care
observed by other members of the profession in good standing under similar
circumstances bearing in mind the advanced state of the profession at the time of
treatment or the present state of medical science. In the recent case of Leonila Garcia-
Rueda v. Wilfred L. Pacasio, et al., this Court stated that in accepting a case, a doctor in
effect represents that, having the needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ such training, care and skill in the
treatment of his patients. He therefore has a duty to use at least the same level of care
that any other reasonably competent doctor would use to treat a condition under the
same circumstances. It is in this aspect of medical malpractice that expert testimony is
essential to establish not only the standard of care of the profession but also that the
physician's conduct in the treatment and care falls below such standard. Further,
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.
xxx xxx xxx
In litigations involving medical negligence, the plaintiff has the burden of
establishing appellant's negligence and for a reasonable conclusion of negligence, there
must be proof of breach of duty on the part of the surgeon as well as a causal connection
of such breach and the resulting death of his patient. In Chan Lugay v. St. Luke's
Hospital, Inc., where the attending physician was absolved of liability for the death of
the complainant's wife and newborn baby, this Court held that:

"In order that there may be a recovery for an injury, however, it


must be shown that the 'injury for which recovery is sought must be the
legitimate consequence of the wrong done; the connection between the
negligence and the injury must be a direct and natural sequence of events,
unbroken by intervening efficient causes.' In other words, the negligence
must be the proximate cause of the injury. For, 'negligence, no matter in
what it consists, cannot create a right of action unless it is the proximate
cause of the injury complained of.' And 'the proximate cause of an injury is
that cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which the
result would not have occurred.'"

An action upon medical negligence — whether criminal, civil or administrative — calls for the plaintiff
to prove by competent evidence each of the following four elements, namely: (a) the duty owed by the
physician to the patient, as created by the physician-patient relationship, to act in accordance with the
specific norms or standards established by his profession; (b) the breach of the duty by the physician's
failing to act in accordance with the applicable standard of care; (3) the causation, i.e., there must be a
reasonably close and causal connection between the negligent act or omission and the resulting injury;
and (4) the damages suffered by the patient. 36

In the medical profession, specific norms or standards to protect the patient against unreasonable risk,
commonly referred to as standards of care, set the duty of the physician to act in respect of the patient.
Unfortunately, no clear definition of the duty of a particular physician in a particular case exists.
Because most medical malpractice cases are highly technical, witnesses with special medical
qualifications must provide guidance by giving the knowledge necessary to render a fair and just
verdict. As a result, the standard of medical care of a prudent physician must be determined from expert
testimony in most cases; and in the case of a specialist (like an anesthesiologist), the standard of care
by which the specialist is judged is the care and skill commonly possessed and exercised by similar
specialists under similar circumstances. The specialty standard of care may be higher than that required
of the general practitioner. 37

The standard of care is an objective standard by which the conduct of a physician sued for negligence
or malpractice may be measured, and it does not depend, therefore, on any individual physician's own
knowledge either. In attempting to fix a standard by which a court may determine whether the
physician has properly performed the requisite duty toward the patient, expert medical testimony from
both plaintiff and defense experts is required. The judge, as the trier of fact, ultimately determines the
standard of care, after listening to the testimony of all medical experts. 38

Li v. Spouses Soliman4

The type of lawsuit which has been called medical malpractice or, more appropriately, medical
negligence, is that type of claim which a victim has available to him or her to redress a wrong
committed by a medical professional which has caused bodily harm. In order to successfully pursue
such a claim, a patient must prove that a health care provider, in most cases a physician, either failed to
do something which a reasonably prudent health care provider would have done, or that he or she did
something that a reasonably prudent provider would not have done; and that that failure or action
caused injury to the patient. 51

This Court has recognized that medical negligence cases are best proved by opinions of expert
witnesses belonging in the same general neighborhood and in the same general line of practice as
defendant physician or surgeon. The deference of courts to the expert opinion of qualified physicians
stems from the former's realization that the latter possess unusual technical skills which laymen in most
instances are incapable of intelligently evaluating, hence the indispensability of expert testimonies. 52
In this case, both the trial and appellate courts concurred in finding that the alleged negligence of
petitioner in the administration of chemotherapy drugs to respondents' child was not proven
considering that Drs. Vergara and Balmaceda, not being oncologists or cancer specialists, were not
qualified to give expert opinion as to whether petitioner's lack of skill, knowledge and professional
competence in failing to observe the standard of care in her line of practice was the proximate cause of
the patient's death. Furthermore, respondents' case was not at all helped by the non-production of
medical records by the hospital (only the biopsy result and medical bills were submitted to the court).
Nevertheless, the CA found petitioner liable for her failure to inform the respondents on all possible
side effects of chemotherapy before securing their consent to the said treatment.

The doctrine of informed consent within the context of physician-patient relationships goes far back
into English common law. As early as 1767, doctors were charged with the tort of "battery" (i.e., an
unauthorized physical contact with a patient) if they had not gained the consent of their patients prior to
performing a surgery or procedure. In the United States, the seminal case was Schoendorff v. Society of
New York Hospital 53 which involved unwanted treatment performed by a doctor. Justice Benjamin
Cardozo's oft-quoted opinion upheld the basic right of a patient to give consent to any medical
procedure or treatment: "Every human being of adult years and sound mind has a right to determine
what shall be done with his own body; and a surgeon who performs an operation without his patient's
consent, commits an assault, for which he is liable in damages." 54 From a purely ethical norm,
informed consent evolved into a general principle of law that a physician has a duty to disclose what a

4 Li v. Spouses Soliman, G.R. No. 165279, 7 June 2011.


reasonably prudent physician in the medical community in the exercise of reasonable care would
disclose to his patient as to whatever grave risks of injury might be incurred from a proposed course of
treatment, so that a patient, exercising ordinary care for his own welfare, and faced with a choice of
undergoing the proposed treatment, or alternative treatment, or none at all, may intelligently exercise
his judgment by reasonably balancing the probable risks against the probable benefits. 55

Subsequently, in Canterbury v. Spence 56 the court observed that the duty to disclose should not be
limited to medical usage as to arrogate the decision on revelation to the physician alone. Thus, respect
for the patient's right of self-determination on particular therapy demands a standard set by law for
physicians rather than one which physicians may or may not impose upon themselves. 57 The scope of
disclosure is premised on the fact that patients ordinarily are persons unlearned in the medical sciences.
Proficiency in diagnosis and therapy is not the full measure of a physician's responsibility. It is also his
duty to warn of the dangers lurking in the proposed treatment and to impart information which the
patient has every right to expect. Indeed, the patient's reliance upon the physician is a trust of the kind
which traditionally has exacted obligations beyond those associated with armslength transactions. 58
The physician is not expected to give the patient a short medical education, the disclosure rule only
requires of him a reasonable explanation, which means generally informing the patient in nontechnical
terms as to what is at stake; the therapy alternatives open to him, the goals expectably to be achieved,
and the risks that may ensue from particular treatment or no treatment. 59 As to the issue of
demonstrating what risks are considered material necessitating disclosure, it was held that experts are
unnecessary to a showing of the materiality of a risk to a patient's decision on treatment, or to the
reasonably, expectable effect of risk disclosure on the decision. Such unrevealed risk that should have
been made known must further materialize, for otherwise the omission, however unpardonable, is
without legal consequence. And, as in malpractice actions generally, there must be a causal relationship
between the physician's failure to divulge and damage to the patient. 60

Reiterating the foregoing considerations, Cobbs v. Grant 61 deemed it as integral part of physician's
overall obligation to patient, the duty of reasonable disclosure of available choices with respect to
proposed therapy and of dangers inherently and potentially involved in each. However, the physician is
not obliged to discuss relatively minor risks inherent in common procedures when it is common
knowledge that such risks inherent in procedure of very low incidence. Cited as exceptions to the rule
that the patient should not be denied the opportunity to weigh the risks of surgery or treatment are
emergency cases where it is evident he cannot evaluate data, and where the patient is a child or
incompetent. 62 The court thus concluded that the patient's right of self-decision can only be effectively
exercised if the patient possesses adequate information to enable him in making an intelligent choice.
The scope of the physician's communications to the patient, then must be measured by the patient's
need, and that need is whatever information is material to the decision. The test therefore for
determining whether a potential peril must be divulged is its materiality to the patient's decision. 63
Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that for liability of the
physician for failure to inform patient, there must be causal relationship between physician's failure to
inform and the injury to patient and such connection arises only if it is established that, had revelation
been made, consent to treatment would not have been given.

There are four essential elements a plaintiff must prove in a malpractice action based upon the doctrine
of informed consent: "(1) the physician had a duty to disclose material risks; (2) he failed to disclose or
inadequately disclosed those risks; (3) as a direct and proximate result of the failure to disclose, the
patient consented to treatment she otherwise would not have consented to; and (4) plaintiff was injured
by the proposed treatment." The gravamen in an informed consent case requires the plaintiff to "point
to significant undisclosed information relating to the treatment which would have altered her decision
to undergo it. 64

Lucas v. Tuaño, G.R. No. 178763, 21 April 2009

For lack of a specific law geared towards the type of negligence committed by members of the medical
profession, such claim for damages is almost always anchored on the alleged violation of Article 2176
of the Civil Code, which states that:

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.

In medical negligence cases, also called medical malpractice suits, there exist a physician-patient
relationship between the doctor and the victim. But just like any other proceeding for damages, four
essential (4) elements i.e., (1) duty; (2) breach; (3) injury; and (4) proximate causation, 76 must be
established by the plaintiff/s. All the four (4) elements must co-exist in order to find the physician
negligent and, thus, liable for damages.

When a patient engages the services of a physician, a physician-patient relationship is generated. And
in accepting a case, the physician, for all intents and purposes, represents that he has the needed
training and skill possessed by physicians and surgeons practicing in the same field; and that he will
employ such training, care, and skill in the treatment of the patient. 77 Thus, in treating his patient, a
physician is under a duty to [the former] to exercise that degree of care, skill and diligence which
physicians in the same general neighborhood and in the same general line of practice ordinarily possess
and exercise in like cases. 78 Stated otherwise, the physician has the duty to use at least the same level
of care that any other reasonably competent physician would use to treat the condition under similar
circumstances.

This standard level of care, skill and diligence is a matter best addressed by expert medical testimony,
because the standard of care in a medical malpractice case is a matter peculiarly within the knowledge
of experts in the field. 79

There is breach of duty of care, skill and diligence, or the improper performance of such duty, by the
attending physician when the patient is injured in body or in health [and this] constitutes the actionable
malpractice. 80 Proof of such breach must likewise rest upon the testimony of an expert witness that
the treatment accorded to the patient failed to meet the standard level of care, skill and diligence which
physicians in the same general neighborhood and in the same general line of practice ordinarily possess
and exercise in like cases.

Even so, proof of breach of duty on the part of the attending physician is insufficient, for there must be
a causal connection between said breach and the resulting injury sustained by the patient. Put in another
way, in order that there may be a recovery for an injury, it must be shown that the "injury for which
recovery is sought must be the legitimate consequence of the wrong done; the connection between the
negligence and the injury must be a direct and natural sequence of events, unbroken by intervening
efficient causes"; 81 that is, the negligence must be the proximate cause of the injury. And the
proximate cause of an injury is that cause, which, in the natural and continuous sequence, unbroken by
any efficient intervening cause, produces the injury, and without which the result would not have
occurred. 82

Just as with the elements of duty and breach of the same, in order to establish the proximate cause [of
the injury] by a preponderance of the evidence in a medical malpractice action, [the patient] must
similarly use expert testimony, because the question of whether the alleged professional negligence
caused [the patient's] injury is generally one for specialized expert knowledge beyond the ken of the
average layperson; using the specialized knowledge and training of his field, the expert's role is to
present to the [court] a realistic assessment of the likelihood that [the physician's] alleged negligence
caused [the patient's] injury. 83

From the foregoing, it is apparent that medical negligence cases are best proved by opinions of expert
witnesses belonging in the same general neighborhood and in the same general line of practice as
defendant physician or surgeon. The deference of courts to the expert opinion of qualified physicians
[or surgeons] stems from the former's realization that the latter possess unusual technical skills which
laymen in most instances are incapable of intelligently evaluating; 84 hence, the indispensability of
expert testimonies.