Republic of the Philippines

Supreme Court
Manila

THIRD DIVISION

DR. EMMANUEL JARCIA, JR. and DR. G.R. No. 187926

MARILOU BASTAN,

Petitioners,
Present:

CARPIO,* J.,

PERALTA,** Acting Chairperson,

ABAD,
- versus -
PEREZ,*** and

MENDOZA, JJ.

Promulgated:

PEOPLE OF THE PHILIPPINES, February 15, 2012

Respondent.

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

DECISION

MENDOZA, J.:
 Even early on, patients have consigned their lives to the skill of their doctors. Time and
again, it can be said that the most important goal of the medical profession is the preservation of
life and health of the people. Corollarily, when a physician departs from his sacred duty and
endangers instead the life of his patient, he must be made liable for the resulting injury. This Court,
as this case would show, cannot and will not let the act go unpunished. [1]
This is a petition for review under Rule 45 of the Rules of Court challenging the August 29, 2008 Decision [2] of
the Court of Appeals (CA), and its May 19, 2009 Resolution[3] in CA-G.R. CR No. 29559, dismissing the appeal and
affirming in toto the June 14, 2005 Decision[4] of the Regional Trial Court, Branch 43, Manila (RTC), finding the
accused guilty beyond reasonable doubt of simple imprudence resulting to serious physical injuries.

THE FACTS

Belinda Santiago (Mrs. Santiago) lodged a complaint with the National Bureau of
Investigation (NBI) against the petitioners, Dr. Emmanuel Jarcia, Jr. (Dr. Jarcia) and Dr. Marilou Bastan (Dr.
Bastan), for their alleged neglect of professional duty which caused her son, Roy Alfonso Santiago (Roy Jr.), to
suffer serious physical injuries. Upon investigation, the NBI found that Roy Jr. was hit by a taxicab; that he was
rushed to the Manila Doctors Hospital for an emergency medical treatment; that an X-ray of the victims ankle
was ordered; that the X-ray result showed no fracture as read by Dr. Jarcia; that Dr. Bastan entered the
emergency room (ER) and, after conducting her own examination of the victim, informed Mrs. Santiago that
since it was only the ankle that was hit, there was no need to examine the upper leg; that eleven (11) days later,
Roy Jr. developed fever, swelling of the right leg and misalignment of the right foot; that Mrs. Santiago brought
him back to the hospital; and that the X-ray revealed a right mid-tibial fracture and a linear hairline fracture in
the shaft of the bone.

The NBI indorsed the matter to the Office of the City Prosecutor of Manila for preliminary investigation.
Probable cause was found and a criminal case for reckless imprudence resulting to serious physical injuries, was
filed against Dr. Jarcia, Dr. Bastan and Dr. Pamittan,[5] before the RTC, docketed as Criminal Case No. 01-196646.

On June 14, 2005, the RTC found the petitioners guilty beyond reasonable doubt of the crime of Simple

Imprudence Resulting to Serious Physical Injuries. The decretal portion of the RTC decision reads:

WHEREFORE, premises considered, the Court finds accused DR. EMMANUEL JARCIA,
JR. and DR. MARILOU BASTAN GUILTY beyond reasonable doubt of the crime of SIMPLE
IMPRUDENCE RESULTING TO SERIOUS PHYSICAL INJURIES and are hereby sentenced to suffer the
penalty of ONE (1) MONTH and ONE (1) DAY to TWO (2) MONTHS and to indemnify MRS. BELINDA
SANTIAGO the amount of ₱3,850.00 representing medical expenses without subsidiary
imprisonment in case of insolvency and to pay the costs.

It appearing that Dr. Pamittan has not been apprehended nor voluntarily surrendered
despite warrant issued for her arrest, let warrant be issued for her arrest and the case against her
be ARCHIVED, to be reinstated upon her apprehension.

SO ORDERED.[6]
 The RTC explained:

After a thorough and in depth evaluation of the evidence adduced by the prosecution
and the defense, this court finds that the evidence of the prosecution is the more credible,
concrete and sufficient to create that moral certainty in the mind of the Court that accused
herein [are] criminally responsible. The Court believes that accused are negligent when both
failed to exercise the necessary and reasonable prudence in ascertaining the extent of injury of
Alfonso Santiago, Jr.

However, the negligence exhibited by the two doctors does not approximate negligence of a
reckless nature but merely amounts to simple imprudence. Simple imprudence consists in the lack
of precaution displayed in those cases in which the damage impending to be caused is not the
immediate nor the danger clearly manifest. The elements of simple imprudence are as follows.

1. that there is lack of precaution on the part of the offender; and

2. that the damage impending to be caused is not immediate of the danger is

not clearly manifest.

Considering all the evidence on record, The Court finds the accused guilty for simple
imprudence resulting to physical injuries. Under Article 365 of the Revised Penal Code, the penalty
provided for is arresto mayor in its minimum period.[7]

Dissatisfied, the petitioners appealed to the CA.

As earlier stated, the CA affirmed the RTC decision in toto. The August 29, 2008 Decision of the CA

pertinently reads:

This Court holds concurrently and finds the foregoing circumstances sufficient to sustain a
judgment of conviction against the accused-appellants for the crime of simple imprudence
resulting in serious physical injuries. The elements of imprudence are: (1) that the offender does or
fails to do an act; (2) that the doing or the failure to do that act is voluntary; (3) that it be without
malice; (4) that material damage results from the imprudence; and (5) that there is inexcusable
lack of precaution on the part of the offender, taking into consideration his employment or
occupation, degree of intelligence, physical condition, and other circumstances regarding
persons, time and place.

Whether or not Dr. Jarcia and Dr. Bastan had committed an inexcusable lack of precaution in the
treatment of their 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 case of Leonila Garcia-Rueda v. Pascasio, the Supreme 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.

In litigations involving medical negligence, the plaintiff has the burden of establishing accused-
appellants negligence, and for a reasonable conclusion of negligence, there must be proof of
breach of duty on the part of the physician as well as a causal connection of such breach and
the resulting injury of his patient. 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. Negligence, no matter in what it
consists, cannot create a right of action unless it is the proximate cause of the injury complained
of. 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.

In the case at bench, the accused-appellants questioned the imputation against them and
argued that there is no causal connection between their failure to diagnose the fracture and the
injury sustained by Roy.

We are not convinced.

The prosecution is however after the cause which prolonged the pain and suffering of Roy and
not on the failure of the accused-appellants to correctly diagnose the extent of the injury
sustained by Roy.

For a more logical presentation of the discussion, we shall first consider the applicability of the
doctrine of res ipsa loquitur to the instant case. Res ipsa loquitur is a Latin phrase which literally
means the thing or the transaction speaks for itself. The doctrine of res ipsa loquitur is simply a
recognition of the postulate that, as a matter of common knowledge and experience, the very
nature of certain types of occurrences may justify an inference of negligence on the part of the
person who controls the instrumentality causing the injury in the absence of some explanation by
the accused-appellant who is charged with negligence. It is grounded in the superior logic of
ordinary human experience and, on the basis of such experience or common knowledge,
negligence may be deduced from the mere occurrence of the accident itself. Hence, res ipsa
loquitur is applied in conjunction with the doctrine of common knowledge.

The specific acts of negligence was narrated by Mrs. Santiago who accompanied her son during
the latters ordeal at the hospital. She testified as follows:

Fiscal Formoso:

Q: Now, he is an intern did you not consult the doctors, Dr. Jarcia or Dra. Pamittan
to confirm whether you should go home or not?
A: Dra. Pamittan was inside the cubicle of the nurses and I asked her, you let us go
home and you dont even clean the wounds of my son.

Q: And what did she [tell] you?

A: They told me they will call a resident doctor, sir.

xxxxxxxxx

Q: Was there a resident doctor [who] came?

A: Yes, Sir. Dra. Bastan arrived.
Q: Did you tell her what you want on you to be done?
A: Yes, sir.

Q: What did you [tell] her?

A: I told her, sir, while she was cleaning the wounds of my son, are you not going
to x-ray up to the knee because my son was complaining pain from his
ankle up to the middle part of the right leg.

Q: And what did she tell you?

A: According to Dra. Bastan, there is no need to x-ray because it was the ankle
part that was run over.

Q: What did you do or tell her?

 A: I told her, sir, why is it that they did not examine[x] the whole leg. They just lifted
the pants of my son.

Q: So you mean to say there was no treatment made at all?

A: None, sir.

xxxxxxxxx

A: I just listened to them, sir. And I just asked if I will still return my son.

xxxxxxxxx

Q: And you were present when they were called?

A: Yes, sir.

Q: And what was discussed then by Sis. Retoria?

A: When they were there they admitted that they have mistakes, sir.

Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily
shown:

1. The accident is of a kind which ordinarily does not occur in the absence of
someones negligence;

2. It is caused by an instrumentality within the exclusive control of the defendant

or defendants; and

3. The possibility of contributing conduct which would make the plaintiff responsible
is eliminated.

In the above requisites, the fundamental element is the control of the instrumentality which
caused the damage. Such element of control must be shown to be within the dominion of the
accused-appellants. In order to have the benefit of the rule, a plaintiff, in addition to proving injury
or damage, must show a situation where it is applicable and must establish that the essential
elements of the doctrine were present in a particular incident. The early treatment of the leg
of Roy would have lessen his suffering if not entirely relieve him from the fracture. A boy of tender
age whose leg was hit by a vehicle would engender a well-founded belief that his condition may
worsen without proper medical attention. As junior residents who only practice general surgery
and without specialization with the case consulted before them, they should have referred the
matter to a specialist. This omission alone constitutes simple imprudence on their part. When Mrs.
Santiago insisted on having another x-ray of her child on the upper part of his leg, they refused to
do so. The mother would not have asked them if they had no exclusive control or prerogative to
request an x-ray test. Such is a fact because a radiologist would only conduct the x-ray test upon
request of a physician.

The testimony of Mrs. Santiago was corroborated by a bone specialist Dr. Tacata. He further
testified based on his personal knowledge, and not as an expert, as he examined himself the child
Roy. He testified as follows:

Fiscal Macapagal:

Q: And was that the correct respon[se] to the medical problem that was presented
to Dr. Jarcia and Dra. Bastan?
A: I would say at that stage, yes. Because they have presented the patient and
the history. At sabi nila, nadaanan lang po ito. And then, considering their
year of residency they are still junior residents, and they are not also
orthopedic residents but general surgery residents, its entirely different
thing. Because if you are an orthopedic resident, I am not trying to saybut
 if I were an orthopedic resident, there would be more precise and accurate
decision compare to a general surgery resident in so far as involved.

Q: You mean to say there is no supervisor attending the emergency room?

A: At the emergency room, at the Manila Doctors Hospital, the supervisor there is
a consultant that usually comes from a family medicine. They see where a
certain patient have to go and then if they cannot manage it, they refer it
to the consultant on duty. Now at that time, I dont [know] why they
dont.Because at that time, I think, it is the decision. Since the x-rays.

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, 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. In the case at bench, we give credence to the testimony of Mrs. Santiago by applying
the doctrine of res ipsa loquitur.

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. The latter circumstance is the primordial issue that confronted this Court and we find
application of the doctrine of res ipsa loquitur to be in order.

WHEREFORE, in view of the foregoing, the appeal in this case is hereby DISMISSED and the assailed
decision of the trial court finding accused-appellants guilty beyond reasonable doubt of simple
imprudence resulting in serious physical injuries is hereby AFFIRMED in toto.

SO ORDERED.[8]

The petitioners filed a motion for reconsideration, but it was denied by the CA in its May 19,

2009 Resolution.

Hence, this petition.

The petitioners pray for the reversal of the decision of both the RTC and the CA anchored on the following
GROUNDS-

1. IN AFFIRMING ACCUSED-PETITIONERS CONVICTION, THE COURT OF APPEALS ERRED IN

NOT HOLDING THAT THE ACTUAL, DIRECT, IMMEDIATE, AND PROXIMATE CAUSE OF THE PHYSICAL
INJURY OF THE PATIENT (FRACTURE OF THE LEG BONE OR TIBIA), WHICH REQUIRED MEDICAL
ATTENDANCE FOR MORE THAN THIRTY (30) DAYS AND INCAPACITATED HIM FROM PERFORMING HIS
CUSTOMARY DUTY DURING THE SAME PERIOD OF TIME, WAS THE VEHICULAR ACCIDENT WHERE THE
 PATIENTS RIGHT LEG WAS HIT BY A TAXI, NOT THE FAILURE OF THE ACCUSED-PETITIONERS TO SUBJECT
THE PATIENTS WHOLE LEG TO AN X-RAY EXAMINATION.

2. THE COURT OF APPEALS ERRED IN DISREGARDING ESTABLISHED FACTS CLEARLY NEGATING

PETITIONERS ALLEGED NEGLIGENCE OR IMPRUDENCE. SIGNIFICANTLY, THE COURT OF APPEALS
UNJUSTIFIABLY DISREGARDED THE OPINION OF THE PROSECUTIONS EXPERT WITNESS, DR. CIRILO
TACATA, THAT PETITIONERS WERE NOT GUILTY OF NEGLIGENCE OR IMPRUDENCE COMPLAINED OF.

3. THE COURT OF APPEALS ERRED IN HOLDING THAT THE FAILURE OF PETITIONERS TO SUBJECT
THE PATIENTS WHOLE LEG TO AN X-RAY EXAMINATION PROLONGED THE PAIN AND SUFFERING OF
THE PATIENT, SUCH CONCLUSION BEING UNSUPPORTED BY, AND EVEN CONTRARY TO, THE EVIDENCE
ON RECORD.

4. ASSUMING ARGUENDO THAT THE PATIENT EXPERIENCED PROLONGED PAIN AND

SUFFERING, THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE ALLEGED PAIN AND SUFFERING
WERE DUE TO THE UNJUSTIFIED FAILURE OF THE PATIENTS MOTHER, A NURSE HERSELF, TO IMMEDIATELY
BRING THE PATIENT BACK TO THE HOSPITAL, AS ADVISED BY THE PETITIONERS, AFTER HE COMPLAINED
OF SEVERE PAIN IN HIS RIGHT LEG WHEN HE REACHED HOME AFTER HE WAS SEEN BY PETITIONERS AT
THE HOSPITAL. THUS, THE PATIENTS ALLEGED INJURY (PROLONGED PAIN AND SUFFERING) WAS DUE
TO HIS OWN MOTHERS ACT OR OMISSION.

5. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT NO PHYSICIAN-PATIENT

RELATIONSHIP EXISTED BETWEEN PETITIONERS AND PATIENT ALFONSO SANTIAGO, JR., PETITIONERS
NOT BEING THE LATTERS ATTENDING PHYSICIAN AS THEY WERE MERELY REQUESTED BY THE
EMERGENCY ROOM (ER) NURSE TO SEE THE PATIENT WHILE THEY WERE PASSING BY THE ER FOR THEIR
LUNCH.

6. THE COURT OF APPEALS GRAVELY ERRED IN NOT ACQUITTING ACCUSED-PETITIONERS OF

THE CRIME CHARGED.[9]

The foregoing can be synthesized into two basic issues: [1] whether or not the doctrine of res ipsa loquitur is

applicable in this case; and [2] whether or not the petitioners are liable for criminal negligence.

THE COURTS RULING

The CA is correct in finding that there was negligence on the part of the petitioners. After a perusal of the
records, however, the Court is not convinced that the petitioners are guilty of criminal negligence complained
of. The Court is also of the view that the CA erred in applying the doctrine of res ipsa loquitur in this particular
case.

As to the Application of
The Doctrine of Res Ipsa Loquitur

This doctrine of res ipsa loquitur means "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 if
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." The Black's Law Dictionary defines
the said doctrine. Thus:

The thing speaks for itself. Rebuttable 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 ordinarily 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 was such that in
the ordinary course of things would not happen if reasonable care had been used.[10]

The doctrine of res ipsa loquitur as a rule of evidence is unusual 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, however, 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 given case, is not meant
to and does not dispense with the requirement of proof of culpable negligence on the party charged. It merely
determines and regulates what shall be prima facie evidence thereof and helps the plaintiff in proving a breach
of the duty. The doctrine can be invoked when and only when, under the circumstances involved, direct
evidence is absent and not readily available.[11]

The requisites for the application of the doctrine of res ipsa loquitur are: (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.[12]

In this case, the circumstances that caused patient Roy Jr.s injury and the series of tests that were
supposed to be undergone by him to determine the extent of the injury suffered were not under the exclusive
control of Drs. Jarcia and Bastan. It was established that they are mere residents of the Manila Doctors Hospital at
that time who attended to the victim at the emergency room. [13] While it may be true that the circumstances
pointed out by the courts below seem doubtless to constitute reckless imprudence on the part of the petitioners,
this conclusion is still best achieved, not through the scholarly assumptions of a layman like the patients mother,
but by the unquestionable knowledge of expert witness/es. As to whether the petitioners have exercised the
requisite degree of skill and care in treating patient Roy, Jr. is generally a matter of expert opinion.

As to Dr. Jarcia and

Dr. Bastans negligence

The totality of the evidence on record clearly points to the negligence of the petitioners. At the risk of
being repetitious, the Court, however, is not satisfied that Dr. Jarcia and Dr. Bastan are criminally negligent in this
case.

Negligence is defined as the failure to observe for the protection of the interests of another person that
degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person
suffers injury.[14]
 Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act from which
material damage results by reason of an inexcusable lack of precaution on the part of the person performing or
failing to perform such act.[15]

The elements of simple negligence are: (1) that there is lack of precaution on the part of the offender,
and (2) that the damage impending to be caused is not immediate or the danger is not clearly manifest. [16]

In this case, the Court is not convinced with moral certainty that the petitioners are guilty of reckless
imprudence or simple negligence. The elements thereof were not proved by the prosecution beyond reasonable
doubt.

The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a specialist in pediatric orthopedic, although pointing
to some medical procedures that could have been done by Dr. Jarcia and Dr. Bastan, as physicians on duty,
was not clear as to whether the injuries suffered by patient Roy Jr. were indeed aggravated by the petitioners
judgment call and their diagnosis or appreciation of the condition of the victim at the time they assessed him.
Thus:

Q: Will you please tell us, for the record, doctor, what is your specialization?
A: At present I am the chairman department of orthopedic in UP-PGH and I had special training
in pediatric orthopedic for two (2) years.

Q: In June 1998, doctor, what was your position and what was your specialization at that time?
A: Since 1980, I have been specialist in pediatric orthopedic.

Q: When Alfonso Santiago, Jr. was brought to you by his mother, what did you do by way of
physicians as first step?
A: As usual, I examined the patient physically and, at that time as I have said, the patient could
not walk so I [began] to suspect that probably he sustained a fracture as a result of a
vehicular accident. So I examined the patient at that time, the involved leg, I dont know if
that is left or right, the involved leg then was swollen and the patient could not walk, so I
requested for the x-ray of [the] lower leg.

Q: What part of the leg, doctor, did you request to be examined?

A: If we refer for an x-ray, usually, we suspect a fracture whether in approximal, middle or lebistal
tinial, we usually x-ray the entire extremity.

Q: And what was the result?

A: Well, I can say that it was a spiral fracture of the mid-tibial, it is the bigger bone of the leg.

Q: And when you say spiral, doctor, how long was this fracture?
A: When we say spiral, it is a sort of letter S, the length was about six (6) to eight (8) centimeters.

Q: Mid-tibial, will you please point to us, doctor, where the tibial is?
(Witness pointing to his lower leg)
A: The tibial is here, there are two bones here, the bigger one is the tibial and the smaller one is
the fibula. The bigger one is the one that get fractured.

Q: And in the course of your examination of Alfonso Santiago, Jr. did you ask for the history of such
injury?
A: Yes, actually, that was a routine part of our examination that once a patient comes in, before
we actually examine the patient, we request for a detailed history. If it is an accident, then,
we request for the exact mechanism of injuries.

Q: And as far as you can recall, Doctor, what was the history of that injury that was told to you?
A: The patient was sideswiped, I dont know if it is a car, but it is a vehicular accident.

Q: Who did you interview?

A: The mother.

Q: How about the child himself, Alfonso Santiago, Jr.?

A: Normally, we do not interview the child because, usually, at his age, the answers are not
accurate. So, it was the mother that I interviewed.

Q: And were you informed also of his early medication that was administered on Alfonso Santiago,
Jr.?
A: No, not actually medication. I was informed that this patient was seen initially at the emergency
room by the two (2) physicians that you just mentioned, Dr. Jarcia and Dra. Bastan, that time
who happened to be my residents who were [on] duty at the emergency room.

xxxx

A: At the emergency room, at the Manila Doctors Hospital, the supervisor there is a consultant that
usually comes from a family medicine. They see where a certain patient have to go and
then if they cannot manage it, they refer it to the consultant on duty. Now at that time, I
dont why they dont Because at that time, I think, it is the decision. Since the x-rays

xxx

Q: You also said, Doctor, that Dr. Jarcia and Dra. Bastan are not even an orthopedic specialist.
A: They are general surgeon residents. You have to man[x] the emergency room, including
neurology, orthopedic, general surgery, they see everything at the emergency room.

xxxx

Q: But if initially, Alfonso Santiago, Jr. and his case was presented to you at the emergency room,
you would have subjected the entire foot to x-ray even if the history that was given to Dr.
Jarcia and Dra. Bastan is the same?
A: I could not directly say yes, because it would still depend on my examination, we cannot
subject the whole body for x-ray if we think that the damaged was only the leg.

Q: Not the entire body but the entire leg?

A: I think, if my examination requires it, I would.

Q: So, you would conduct first an examination?

A: Yes, sir.

Q: And do you think that with that examination that you would have conducted you would
discover the necessity subjecting the entire foot for x-ray?
A: It is also possible but according to them, the foot and the ankle were swollen and not the leg,
which sometimes normally happens that the actual fractured bone do not get swollen.

xxxx

Q: Doctor, if you know that the patient sustained a fracture on the ankle and on the foot and the
history that was told to you is the region that was hit is the region of the foot, will the doctor
subject the entire leg for x-ray?
 A: I am an orthopedic surgeon, you have to subject an x-ray of the leg. Because you have to
consider the kind of fracture that the patient sustained would you say the exact mechanism
of injury. For example spiral, paikot yung bale nya, so it was possible that the leg was run
over, the patient fell, and it got twisted. Thats why the leg seems to be
fractured.[17] [Emphases supplied]

It can be gleaned from the testimony of Dr. Tacata that a thorough examination was not performed on
Roy Jr. As residents on duty at the emergency room, Dr. Jarcia and Dr. Bastan were expected to know the
medical protocol in treating leg fractures and in attending to victims of car accidents. There was, however, no
precise evidence and scientific explanation pointing to the fact that the delay in the application of the cast to
the patients fractured leg because of failure to immediately diagnose the specific injury of the patient, prolonged
the pain of the child or aggravated his condition or even caused further complications. Any person may opine
that had patient Roy Jr. been treated properly and given the extensive X-ray examination, the extent and severity
of the injury, spiral fracture of the mid-tibial part or the bigger bone of the leg, could have been detected early
on and the prolonged pain and suffering of Roy Jr. could have been prevented. But still, that opinion, even how
logical it may seem would not, and could not, be enough basis to hold one criminally liable; thus, a reasonable
doubt as to the petitioners guilt.

Although the Court sympathizes with the plight of the mother and the child in this case, the Court is bound
by the dictates of justice which hold inviolable the right of the accused to be presumed innocent until proven
guilty beyond reasonable doubt. The Court, nevertheless, finds the petitioners civilly liable for their failure to
sufficiently attend to Roy Jr.s medical needs when the latter was rushed to the ER, for while a criminal conviction
requires proof beyond reasonable doubt, only a preponderance of evidence is required to establish civil liability.
Taken into account also was the fact that there was no bad faith on their part.

Dr. Jarcia and Dr. Bastan cannot pass on the liability to the taxi driver who hit the victim. It may be true
that the actual, direct, immediate, and proximate cause of the injury (fracture of the leg bone or tibia) of Roy Jr.
was the vehicular accident when he was hit by a taxi. The petitioners, however, cannot simply invoke such fact
alone to excuse themselves from any liability. If this would be so, doctors would have a ready defense should
they fail to do their job in attending to victims of hit-and-run, maltreatment, and other crimes of violence in which
the actual, direct, immediate, and proximate cause of the injury is indubitably the act of the perpetrator/s.

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.
This Court cannot also stamp its imprimatur on the petitioners contention that no physician-patient
relationship existed between them and patient Roy Jr., since they were not his attending physicians at that time.
They claim that they were merely requested by the ER nurse to see the patient while they were passing by the ER
for their lunch. Firstly, this issue was never raised during the trial at the RTC or even before the CA. The petitioners,
therefore, raise the want of doctor-patient relationship for the first time on appeal with this Court. It has been
settled that issues raised for the first time on appeal cannot be considered because a party is not permitted to
change his theory on appeal. To allow him to do so is unfair to the other party and offensive to the rules of fair
play, justice and due process.[18] Stated differently, basic considerations of due process dictate that theories,
issues and arguments not brought to the attention of the trial court need not be, and ordinarily will not be,
considered by a reviewing court.[19]

Assuming again for the sake of argument that the petitioners may still raise this issue of no physicianpatient
relationship, the Court finds and so holds that there was a physicianpatient relationship in this case.

In the case of Lucas v. Tuao,[20] the Court wrote that [w]hen 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. Thus, in treating his
patient, a physician is under a duty 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.
Stated otherwise, the physician has the obligation to use at least the same level of care that any other reasonably
competent physician would use to treat the condition under similar circumstances.

Indubitably, a physician-patient relationship exists between the petitioners and patient Roy Jr. Notably,
the latter and his mother went to the ER for an immediate medical attention. The petitioners allegedly passed by
and were requested to attend to the victim (contrary to the testimony of Dr. Tacata that they were, at that time,
residents on duty at the ER).[21] They obliged and examined the victim, and later assured the mother that
everything was fine and that they could go home. Clearly, a physician-patient relationship was established
between the petitioners and the patient Roy Jr.

To repeat for clarity and emphasis, if these doctors knew from the start that they were not in the position
to attend to Roy Jr., a vehicular accident victim, with the degree of diligence and commitment expected of
every doctor in a case like this, they should have not made a baseless assurance that everything was all right. By
doing so, they deprived Roy Jr. of adequate medical attention that placed him in a more dangerous situation
than he was already in. What petitioners should have done, and could have done, was to refer Roy Jr. to another
doctor who could competently and thoroughly examine his injuries.

All told, the petitioners were, indeed, negligent but only civilly, and not criminally, liable as the facts show.

Article II, Section 1 of the Code of Medical Ethics of the Medical Profession in the Philippines states:

A physician should attend to his patients faithfully and conscientiously. He should secure
for them all possible benefits that may depend upon his professional skill and care. As the sole
tribunal to adjudge the physicians failure to fulfill his obligation to his patients is, in most cases, his
own conscience, violation of this rule on his part is discreditable and inexcusable. [22]
 Established medical procedures and practices, though in constant instability, are devised for the purpose

of preventing complications. In this case, the petitioners failed to observe the most prudent medical procedure

under the circumstances to prevent the complications suffered by a child of tender age.

As to the Award of
Damages

While no criminal negligence was found in the petitioners failure to administer the necessary medical
attention to Roy Jr., the Court holds them civilly liable for the resulting damages to their patient. While it was the
taxi driver who ran over the foot or leg of Roy Jr., their negligence was doubtless contributory.

It appears undisputed that the amount of ₱3,850.00, as expenses incurred by patient Roy Jr., was
adequately supported by receipts. The Court, therefore, finds the petitioners liable to pay this amount by way of
actual damages.

The Court is aware that no amount of compassion can suffice to ease the sorrow felt by the family of the
child at that time. Certainly, the award of moral and exemplary damages in favor of Roy Jr. in the amount of
₱100,000.00 and ₱50,000.00, respectively, is proper in this case.

It is settled that moral damages are not punitive in nature, but are designed to compensate and alleviate
in some way the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar injury unjustly inflicted on a person. Intended for the
restoration of the psychological or emotional status quo ante, the award of moral damages is designed to
compensate emotional injury suffered, not to impose a penalty on the wrongdoer.[23]

The Court, likewise, finds the petitioners also liable for exemplary damages in the said amount. Article 2229

of the Civil Code provides that exemplary damages may be imposed by way of example or correction for the

public good.

WHEREFORE, the petition is PARTLY GRANTED. The Decision of the Court of Appeals dated August 29,
2008 is REVERSED and SET ASIDE. A new judgment is entered ACQUITTING Dr. Emmanuel Jarcia, Jr. and Dr. Marilou
Bastan of the crime of reckless imprudence resulting to serious physical injuries but declaring them civilly liable in
the amounts of:

(1) ₱3,850.00 as actual damages;

(2) ₱100,000.00 as moral damages;
(3) ₱50,000.00 as exemplary damages; and
(4) Costs of the suit.
with interest at the rate of 6% per annum from the date of the filing of the Information. The rate shall be 12%
interest per annum from the finality of judgment until fully paid.

SO ORDERED.
 EN BANC

DR. RUBI LI, G.R. No. 165279

Petitioner,
Present:

CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
- versus - BERSAMIN,
DEL CASTILLO,*
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.

SPOUSES REYNALDO and LINA SOLIMAN, as Promulgated:

parents/heirs of deceased Angelica
Soliman, June 7, 2011
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

VILLARAMA, JR., J.:

Challenged in this petition for review on certiorari is the Decision [1] dated June 15, 2004 as well as the
Resolution[2] dated September 1, 2004 of the Court of Appeals (CA) in CA-G.R. CV No. 58013 which modified the
Decision[3] dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch 8 in Civil Case No. 8904.

The factual antecedents:

On July 7, 1993, respondents 11-year old daughter, Angelica Soliman, underwent a biopsy of the mass located
in her lower extremity at the St. Lukes Medical Center (SLMC).Results showed that Angelica was suffering
from osteosarcoma, osteoblastic type,[4] a high-grade (highly malignant) cancer of the bone which usually
afflicts teenage children.Following this diagnosis and as primary intervention, Angelicas right leg was amputated
by Dr. Jaime Tamayo in order to remove the tumor. As adjuvant treatment to eliminate any remaining cancer
cells, and hence minimize the chances of recurrence and prevent the disease from spreading to other parts of
the patients body (metastasis), chemotherapy was suggested by Dr. Tamayo. Dr. Tamayo referred Angelica to
another doctor at SLMC, herein petitioner Dr. Rubi Li, a medical oncologist.

On August 18, 1993, Angelica was admitted to SLMC. However, she died on September 1, 1993, just eleven (11)
days after the (intravenous) administration of the first cycle of the chemotherapy regimen. Because SLMC refused
to release a death certificate without full payment of their hospital bill, respondents brought the cadaver of
Angelica to the Philippine National Police (PNP) Crime Laboratory at Camp Crame for post-mortem
examination. The Medico-Legal Report issued by said institution indicated the cause of death as Hypovolemic
shock secondary to multiple organ hemorrhages and Disseminated Intravascular Coagulation. [5]

On the other hand, the Certificate of Death [6] issued by SLMC stated the cause of death as follows:

Immediate cause : a. Osteosarcoma, Status Post AKA

Antecedent cause : b. (above knee amputation)
Underlying cause : c. Status Post Chemotherapy

On February 21, 1994, respondents filed a damage suit [7] against petitioner, Dr. Leo Marbella, Mr. Jose Ledesma,
a certain Dr. Arriete and SLMC. Respondents charged them with negligence and disregard of Angelicas safety,
health and welfare by their careless administration of the chemotherapy drugs, their failure to observe the
essential precautions in detecting early the symptoms of fatal blood platelet decrease and stopping early on the
chemotherapy, which bleeding led to hypovolemic shock that caused Angelicas untimely demise. Further, it was
specifically averred that petitioner assured the respondents that Angelica would recover in view of 95% chance
of healing with chemotherapy (Magiging normal na ang anak nyo basta ma-chemo. 95% ang healing) and
when asked regarding the side effects, petitioner mentioned only slight vomiting, hair loss and weakness
(Magsusuka ng kaunti. Malulugas ang buhok. Manghihina). Respondents thus claimed that they would not have
given their consent to chemotherapy had petitioner not falsely assured them of its side effects.

In her answer,[8] petitioner denied having been negligent in administering the chemotherapy drugs to Angelica
and asserted that she had fully explained to respondents how the chemotherapy will affect not only the cancer
cells but also the patients normal body parts, including the lowering of white and red blood cells and
platelets. She claimed that what happened to Angelica can be attributed to malignant tumor cells possibly left
behind after surgery. Few as they may be, these have the capacity to compete for nutrients such that the body
becomes so weak structurally (cachexia) and functionally in the form of lower resistance of the body to combat
infection. Such infection becomes uncontrollable and triggers a chain of events (sepsis or septicemia) that may
lead to bleeding in the form of Disseminated Intravascular Coagulation (DIC), as what the autopsy report showed
in the case of Angelica.

Since the medical records of Angelica were not produced in court, the trial and appellate courts had to rely on
testimonial evidence, principally the declarations of petitioner and respondents themselves. The following
chronology of events was gathered:

On July 23, 1993, petitioner saw the respondents at the hospital after Angelicas surgery and discussed with them
Angelicas condition. Petitioner told respondents that Angelica should be given two to three weeks to recover
from the operation before starting chemotherapy. Respondents were apprehensive due to financial constraints
as Reynaldo earns only from P70,000.00 to P150,000.00 a year from his jewelry and watch repairing
business.[9] Petitioner, however, assured them not to worry about her professional fee and told them to just save
up for the medicines to be used.

Petitioner claimed that she explained to respondents that even when a tumor is removed, there are still
small lesions undetectable to the naked eye, and that adjuvant chemotherapy is needed to clean out the small
lesions in order to lessen the chance of the cancer to recur. She did not give the respondents any assurance that
chemotherapy will cure Angelicas cancer. During these consultations with respondents, she explained the
following side effects of chemotherapy treatment to respondents: (1) falling hair; (2) nausea and vomiting; (3)
loss of appetite; (4) low count of white blood cells [WBC], red blood cells [RBC] and platelets; (5) possible sterility
due to the effects on Angelicas ovary; (6) damage to the heart and kidneys; and (7) darkening of the skin
especially when exposed to sunlight. She actually talked with respondents four times, once at the hospital after
the surgery, twice at her clinic and the fourth time when Angelicas mother called her through long
distance.[10] This was disputed by respondents who countered that petitioner gave them assurance that there is
95% chance of healing for Angelica if she undergoes chemotherapy and that the only side effects were nausea,
vomiting and hair loss.[11] Those were the only side-effects of chemotherapy treatment mentioned by
petitioner.[12]

On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner that she be readmitted after two or
three weeks for the chemotherapy.

On August 18, 1993, respondents brought Angelica to SLMC for chemotherapy, bringing with them the
results of the laboratory tests requested by petitioner: Angelicas chest x-ray, ultrasound of the liver, creatinine
and complete liver function tests.[13] Petitioner proceeded with the chemotherapy by first administering hydration
fluids to Angelica.[14]

The following day, August 19, petitioner began administering three chemotherapy drugs
Cisplatin,[15] Doxorubicin[16] and Cosmegen[17] intravenously. Petitioner was supposedly assisted by her trainees Dr.
Leo Marbella[18] and Dr. Grace Arriete.[19] In his testimony, Dr. Marbella denied having any participation in
administering the said chemotherapy drugs.[20]

On the second day of chemotherapy, August 20, respondents noticed reddish discoloration on Angelicas
face.[21] They asked petitioner about it, but she merely quipped, Wala yan. Epekto ng gamot.[22] Petitioner
recalled noticing the skin rashes on the nose and cheek area of Angelica. At that moment, she entertained the
possibility that Angelica also had systemic lupus and consulted Dr. Victoria Abesamis on the matter.[23]

On the third day of chemotherapy, August 21, Angelica had difficulty breathing and was thus provided
with oxygen inhalation apparatus. This time, the reddish discoloration on Angelicas face had extended to her
neck, but petitioner dismissed it again as merely the effect of medicines. [24] Petitioner testified that she did not
see any discoloration on Angelicas face, nor did she notice any difficulty in the childs breathing. She claimed
that Angelica merely complained of nausea and was given ice chips.[25]

On August 22, 1993, at around ten oclock in the morning, upon seeing that their child could not anymore
bear the pain, respondents pleaded with petitioner to stop the chemotherapy. Petitioner supposedly
replied: Dapat 15 Cosmegen pa iyan. Okay, lets observe. If pwede na, bigyan uli ng chemo. At this point,
respondents asked petitioners permission to bring their child home. Later in the evening, Angelica passed black
stool and reddish urine.[26] Petitioner countered that there was no record of blackening of stools but only an
episode of loose bowel movement (LBM). Petitioner also testified that what Angelica complained of was carpo-
pedal spasm, not convulsion or epileptic attack, as respondents call it (petitioner described it in the vernacular
as naninigas ang kamay at paa). She then requested for a serum calcium determination and stopped the
chemotherapy. When Angelica was given calcium gluconate, the spasm and numbness subsided. [27]

The following day, August 23, petitioner yielded to respondents request to take Angelica home. But prior
to discharging Angelica, petitioner requested for a repeat serum calcium determination and explained to
respondents that the chemotherapy will be temporarily stopped while she observes Angelicas muscle twitching
and serum calcium level.Take-home medicines were also prescribed for Angelica, with instructions to
respondents that the serum calcium test will have to be repeated after seven days. Petitioner told respondents
that she will see Angelica again after two weeks, but respondents can see her anytime if any immediate problem
arises.[28]

However, Angelica remained in confinement because while still in the premises of SLMC, her convulsions
returned and she also had LBM. Angelica was given oxygen and administration of calcium continued. [29]

The next day, August 24, respondents claimed that Angelica still suffered from convulsions. They also
noticed that she had a fever and had difficulty breathing.[30]Petitioner insisted it was carpo-pedal spasm, not
convulsions. She verified that at around 4:50 that afternoon, Angelica developed difficulty in breathing and had
fever. She then requested for an electrocardiogram analysis, and infused calcium gluconate on the patient at a
stat dose. She further ordered that Angelica be given Bactrim,[31] a synthetic antibacterial combination drug,[32] to
combat any infection on the childs body.[33]

By August 26, Angelica was bleeding through the mouth. Respondents also saw blood on her anus and
urine. When Lina asked petitioner what was happening to her daughter, petitioner replied, Bagsak ang platelets
ng anak mo. Four units of platelet concentrates were then transfused to Angelica. Petitioner prescribed
Solucortef. Considering that Angelicas fever was high and her white blood cell count was low, petitioner
prescribed Leucomax. About four to eight bags of blood, consisting of packed red blood cells, fresh whole blood,
or platelet concentrate, were transfused to Angelica. For two days (August 27 to 28), Angelica continued
bleeding, but petitioner claimed it was lesser in amount and in frequency. Petitioner also denied that there were
gadgets attached to Angelica at that time.[34]

On August 29, Angelica developed ulcers in her mouth, which petitioner said were blood clots that should
not be removed. Respondents claimed that Angelica passed about half a liter of blood through her anus at
around seven oclock that evening, which petitioner likewise denied.

On August 30, Angelica continued bleeding. She was restless as endotracheal and nasogastric tubes
were inserted into her weakened body. An aspiration of the nasogastric tube inserted to Angelica also revealed
a bloody content. Angelica was given more platelet concentrate and fresh whole blood, which petitioner
claimed improved her condition.Petitioner told Angelica not to remove the endotracheal tube because this may
induce further bleeding.[35] She was also transferred to the intensive care unit to avoid infection.

The next day, respondents claimed that Angelica became hysterical, vomited blood and her body
turned black. Part of Angelicas skin was also noted to be shredding by just rubbing cotton on it. Angelica was so
restless she removed those gadgets attached to her, saying Ayaw ko na; there were tears in her eyes and she
kept turning her head. Observing her daughter to be at the point of death, Lina asked for a doctor but the latter
could not answer her anymore.[36] At this time, the attending physician was Dr. Marbella who was shaking his
head saying that Angelicas platelets were down and respondents should pray for their daughter. Reynaldo
claimed that he was introduced to a pediatrician who took over his daughters case, Dr. Abesamis who also told
him to pray for his daughter. Angelica continued to have difficulty in her breathing and blood was being
suctioned from her stomach. A nurse was posted inside Angelicas room to assist her breathing and at one point
they had to revive Angelica by pumping her chest. Thereafter, Reynaldo claimed that Angelica already
experienced difficulty in urinating and her bowel consisted of blood-like fluid. Angelica requested for an electric
fan as she was in pain. Hospital staff attempted to take blood samples from Angelica but were unsuccessful
because they could not even locate her vein. Angelica asked for a fruit but when it was given to her, she only
smelled it. At this time, Reynaldo claimed he could not find either petitioner or Dr. Marbella. That night, Angelica
became hysterical and started removing those gadgets attached to her. At three oclock in the morning of
September 1, a priest came and they prayed before Angelica expired. Petitioner finally came back and
supposedly told respondents that there was malfunction or bogged-down machine.[37]

By petitioners own account, Angelica was merely irritable that day (August 31). Petitioner noted though
that Angelicas skin was indeed sloughing off.[38] She stressed that at 9:30 in the evening, Angelica pulled out her
endotracheal tube.[39] On September 1, exactly two weeks after being admitted at SLMC for chemotherapy,
Angelica died.[40]The cause of death, according to petitioner, was septicemia, or overwhelming infection, which
caused Angelicas other organs to fail.[41] Petitioner attributed this to the patients poor defense mechanism
brought about by the cancer itself.[42]

While he was seeking the release of Angelicas cadaver from SLMC, Reynaldo claimed that petitioner
acted arrogantly and called him names. He was asked to sign a promissory note as he did not have cash to pay
the hospital bill.[43]

Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-Legal Officer of the PNP-
Crime Laboratory who conducted the autopsy on Angelicas cadaver, and Dr. Melinda Vergara Balmaceda who
is a Medical Specialist employed at the Department of Health (DOH) Operations and Management Services.

Testifying on the findings stated in her medico-legal report, Dr. Vergara noted the following: (1) there were
fluids recovered from the abdominal cavity, which is not normal, and was due to hemorrhagic shock secondary
to bleeding; (2) there was hemorrhage at the left side of the heart; (3) bleeding at the upper portion of and areas
adjacent to, the esophagus; (4) lungs were heavy with bleeding at the back and lower portion, due to
accumulation of fluids; (4) yellowish discoloration of the liver; (5) kidneys showed appearance of facial shock on
account of hemorrhages; and (6) reddishness on external surface of the spleen. All these were the end result of
hypovolemic shock secondary to multiple organ hemorrhages and disseminated intravascular coagulation. Dr.
Vergara opined that this can be attributed to the chemical agents in the drugs given to the victim, which caused
platelet reduction resulting to bleeding sufficient to cause the victims death. The time lapse for the production
of DIC in the case of Angelica (from the time of diagnosis of sarcoma) was too short, considering the survival rate
of about 3 years. The witness conceded that the victim will also die of osteosarcoma even with amputation or
chemotherapy, but in this case Angelicas death was not caused by osteosarcoma. Dr. Vergara admitted that
she is not a pathologist but her statements were based on the opinion of an oncologist whom she had
interviewed. This oncologist supposedly said that if the victim already had DIC prior to the chemotherapy, the
hospital staff could have detected it.[44]

On her part, Dr. Balmaceda declared that it is the physicians duty to inform and explain to the patient or
his relatives every known side effect of the procedure or therapeutic agents to be administered, before securing
the consent of the patient or his relatives to such procedure or therapy. The physician thus bases his assurance
to the patient on his personal assessment of the patients condition and his knowledge of the general effects of
the agents or procedure that will be allowed on the patient. Dr. Balmaceda stressed that the patient or relatives
must be informed of all known side effects based on studies and observations, even if such will aggravate the
patients condition.[45]

Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelicas lower extremity, testified for the
defendants. He explained that in case of malignant tumors, there is no guarantee that the ablation or removal
of the amputated part will completely cure the cancer. Thus, surgery is not enough. The mortality rate of
osteosarcoma at the time of modern chemotherapy and early diagnosis still remains at 80% to 90%. Usually,
deaths occur from metastasis, or spread of the cancer to other vital organs like the liver, causing systemic
complications. The modes of therapy available are the removal of the primary source of the cancerous growth
and then the residual cancer cells or metastasis should be treated with chemotherapy. Dr. Tamayo further
explained that patients with osteosarcoma have poor defense mechanism due to the cancer cells in the blood
stream. In the case of Angelica, he had previously explained to her parents that after the surgical procedure,
chemotherapy is imperative so that metastasis of these cancer cells will hopefully be addressed. He referred the
patient to petitioner because he felt that petitioner is a competent oncologist. Considering that this type of
cancer is very aggressive and will metastasize early, it will cause the demise of the patient should there be no
early intervention (in this case, the patient developed sepsis which caused her death). Cancer cells in the blood
cannot be seen by the naked eye nor detected through bone scan. On cross-examination, Dr. Tamayo stated
that of the more than 50 child patients who had osteogenic sarcoma he had handled, he thought that probably
all of them died within six months from amputation because he did not see them anymore after follow-up; it is
either they died or had seen another doctor.[46]

In dismissing the complaint, the trial court held that petitioner was not liable for damages as she observed the
best known procedures and employed her highest skill and knowledge in the administration of chemotherapy
drugs on Angelica but despite all efforts said patient died. It cited the testimony of Dr. Tamayo who testified that
he considered petitioner one of the most proficient in the treatment of cancer and that the patient in this case
was afflicted with a very aggressive type of cancer necessitating chemotherapy as adjuvant treatment. Using
the standard of negligence laid down in Picart v. Smith,[47] the trial court declared that petitioner has taken the
necessary precaution against the adverse effect of chemotherapy on the patient, adding that a wrong decision
is not by itself negligence. Respondents were ordered to pay their unpaid hospital bill in the amount
of P139,064.43.[48]

Respondents appealed to the CA which, while concurring with the trial courts finding that there was no
negligence committed by the petitioner in the administration of chemotherapy treatment to Angelica, found
that petitioner as her attending physician failed to fully explain to the respondents all the known side effects of
chemotherapy. The appellate court stressed that since the respondents have been told of only three side effects
of chemotherapy, they readily consented thereto. Had petitioner made known to respondents those other side
effects which gravely affected their child -- such as carpo-pedal spasm, sepsis, decrease in the blood platelet
count, bleeding, infections and eventual death -- respondents could have decided differently or adopted a
different course of action which could have delayed or prevented the early death of their child.

The CA thus declared:

Plaintiffs-appellants child was suffering from a malignant disease. The attending physician
recommended that she undergo chemotherapy treatment after surgery in order to increase her
chances of survival. Appellants consented to the chemotherapy treatment because they
believed in Dr. Rubi Lis representation that the deceased would have a strong chance of survival
after chemotherapy and also because of the representation of appellee Dr. Rubi Li that there
were only three possible side-effects of the treatment. However, all sorts of painful side-effects
resulted from the treatment including the premature death of Angelica. The appellants were
clearly and totally unaware of these other side-effects which manifested only during the
chemotherapy treatment. This was shown by the fact that every time a problem would take place
regarding Angelicas condition (like an unexpected side-effect manifesting itself), they would
immediately seek explanation from Dr. Rubi Li. Surely, those unexpected side-effects culminating
in the loss of a love[d] one caused the appellants so much trouble, pain and suffering.

On this point therefore, [w]e find defendant-appellee Dr. Rubi Li negligent which would
entitle plaintiffs-appellants to their claim for damages.

xxxx

WHEREFORE, the instant appeal is hereby GRANTED. Accordingly, the assailed decision is
hereby modified to the extent that defendant-appellee Dr. Rubi Li is ordered to pay the plaintiffs-
appellants the following amounts:

1. Actual damages of P139,064.43, plus P9,828.00 for funeral expenses;

2. Moral damages of P200,000.00;

3. Exemplary damages of P50,000.00;

4. Attorneys fee of P30,000.00.

SO ORDERED.[49] (Emphasis supplied.)

Petitioner filed a motion for partial reconsideration which the appellate court denied.

Hence, this petition.

Petitioner assails the CA in finding her guilty of negligence in not explaining to the respondents all the
possible side effects of the chemotherapy on their child, and in holding her liable for actual, moral and exemplary
damages and attorneys fees. Petitioner emphasized that she was not negligent in the pre-chemotherapy
procedures and in the administration of chemotherapy treatment to Angelica.

On her supposed non-disclosure of all possible side effects of chemotherapy, including death, petitioner argues
that it was foolhardy to imagine her to be all-knowing/omnipotent.While the theoretical side effects of
chemotherapy were explained by her to the respondents, as these should be known to a competent
doctor, petitioner cannot possibly predict how a particular patients genetic make-up, state of mind, general
health and body constitution would respond to the treatment. These are obviously dependent on too many
known, unknown and immeasurable variables, thus requiring that Angelica be, as she was, constantly and closely
monitored during the treatment. Petitioner asserts that she did everything within her professional competence to
attend to the medical needs of Angelica.

Citing numerous trainings, distinctions and achievements in her field and her current position as co-
director for clinical affairs of the Medical Oncology, Department of Medicine of SLMC, petitioner contends that
in the absence of any clear showing or proof, she cannot be charged with negligence in not informing the
respondents all the side effects of chemotherapy or in the pre-treatment procedures done on Angelica.

As to the cause of death, petitioner insists that Angelica did not die of platelet depletion but of sepsis which is a
complication of the cancer itself. Sepsis itself leads to bleeding and death. She explains that the response rate
to chemotherapy of patients with osteosarcoma is high, so much so that survival rate is favorable to the
patient. Petitioner then points to some probable consequences if Angelica had not undergone chemotherapy.
Thus, without chemotherapy, other medicines and supportive treatment, the patient might have died the next
day because of massive infection, or the cancer cells might have spread to the brain and brought the patient
into a coma, or into the lungs that the patient could have been hooked to a respirator, or into her kidneys that
she would have to undergo dialysis. Indeed, respondents could have spent as much because of these
complications. The patient would have been deprived of the chance to survive the ailment, of any hope for life
and her quality of life surely compromised. Since she had not been shown to be at fault, petitioner maintains that
the CA erred in holding her liable for the damages suffered by the respondents.[50]

The issue to be resolved is whether the petitioner can be held liable for failure to fully disclose serious side effects
to the parents of the child patient who died while undergoing chemotherapy, despite the absence of finding
that petitioner was negligent in administering the said treatment.

The petition is meritorious.

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 formers 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 petitioners 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 patients 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 Cardozos 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 patients 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 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 patients
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 physicians 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 patients 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 patients 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 physicians failure to divulge
and damage to the patient.[60]

Reiterating the foregoing considerations, Cobbs v. Grant[61] deemed it as integral part of physicians 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 patients 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 physicians communications to the patient, then must be measured by the
patients 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 patients 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 physicians 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]

Examining the evidence on record, we hold that there was adequate disclosure of material risks inherent
in the chemotherapy procedure performed with the consent of Angelicas parents. Respondents could not have
been unaware in the course of initial treatment and amputation of Angelicas lower extremity, that her immune
system was already weak on account of the malignant tumor in her knee. When petitioner informed the
respondents beforehand of the side effects of chemotherapy which includes lowered counts of white and red
blood cells, decrease in blood platelets, possible kidney or heart damage and skin darkening, there is reasonable
expectation on the part of the doctor that the respondents understood very well that the severity of these side
effects will not be the same for all patients undergoing the procedure. In other words, by the nature of the disease
itself, each patients reaction to the chemical agents even with pre-treatment laboratory tests cannot be
precisely determined by the physician. That death can possibly result from complications of the treatment or the
underlying cancer itself, immediately or sometime after the administration of chemotherapy drugs, is a risk that
cannot be ruled out, as with most other major medical procedures, but such conclusion can be reasonably
drawn from the general side effects of chemotherapy already disclosed.

As a physician, petitioner can reasonably expect the respondents to have considered the variables in
the recommended treatment for their daughter afflicted with a life-threatening illness. On the other hand, it is
difficult to give credence to respondents claim that petitioner told them of 95% chance of recovery for their
daughter, as it was unlikely for doctors like petitioner who were dealing with grave conditions such as cancer to
have falsely assured patients of chemotherapys success rate. Besides, informed consent laws in other countries
generally require only a reasonable explanation of potential harms, so specific disclosures such as statistical data,
may not be legally necessary.[65]
The element of ethical duty to disclose material risks in the proposed medical treatment cannot thus be reduced
to one simplistic formula applicable in all instances. Further, in a medical malpractice action based on lack of
informed consent, the plaintiff must prove both the duty and the breach of that duty through expert
testimony.[66] Such expert testimony must show the customary standard of care of physicians in the same practice
as that of the defendant doctor.[67]

In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical Specialist of the DOHs
Operational and Management Services charged with receiving complaints against hospitals, does not qualify as
expert testimony to establish the standard of care in obtaining consent for chemotherapy treatment. In the
absence of expert testimony in this regard, the Court feels hesitant in defining the scope of mandatory disclosure
in cases of malpractice based on lack of informed consent, much less set a standard of disclosure that, even in
foreign jurisdictions, has been noted to be an evolving one.

As society has grappled with the juxtaposition between personal autonomy and the
medical profession's intrinsic impetus to cure, the law defining adequate disclosure has undergone
a dynamic evolution. A standard once guided solely by the ruminations of physicians is now
dependent on what a reasonable person in the patients position regards as significant. This
change in perspective is especially important as medical breakthroughs move practitioners to the
cutting edge of technology, ever encountering new and heretofore unimagined treatments for
currently incurable diseases or ailments. An adaptable standard is needed to account for this
constant progression. Reasonableness analyses permeate our legal system for the very reason
that they are determined by social norms, expanding and contracting with the ebb and flow of
societal evolution.

As we progress toward the twenty-first century, we now realize that the legal standard of
disclosure is not subject to construction as a categorical imperative. Whatever formulae or
processes we adopt are only useful as a foundational starting point; the particular quality or
quantity of disclosure will remain inextricably bound by the facts of each case. Nevertheless, juries
that ultimately determine whether a physician properly informed a patient are inevitably guided
by what they perceive as the common expectation of the medical consumera reasonable person
in the patients position when deciding to accept or reject a recommended medical
procedure.[68] (Emphasis supplied.)

WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated June 15, 2004 and the Resolution
dated September 1, 2004 of the Court of Appeals in CA-G.R. CV No. 58013 are SET ASIDE.

The Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch 8, in Civil Case
No. 8904 is REINSTATED and UPHELD.

No costs.

SO ORDERED.
 SECOND DIVISION

SPOUSES FREDELICTO FLORES G.R. No. 158996

(deceased) and FELICISIMA FLORES,
Petitioners, Present:

QUISUMBING, J., Chairperson,

- versus - CARPIO MORALES,
TINGA,
VELASCO, JR., and
SPOUSES DOMINADOR PINEDA and BRION, JJ.
VIRGINIA SACLOLO, and FLORENCIO,
CANDIDA, MARTA, GODOFREDO,
BALTAZAR and LUCENA, all surnamed Promulgated:
PINEDA, as heirs of the deceased
TERESITA S. PINEDA, and UNITED November 14, 2008
DOCTORS MEDICAL CENTER, INC.,
Respondents.
x ------------------------------------------------------------------------------------------- x

DECISION

BRION, J.:

This petition involves a medical negligence case that was elevated to this Court through an appeal
by certiorari under Rule 45 of the Rules of Court. The petition assails the Decision[1] of the Court of Appeals (CA) in
CA G.R. CV No. 63234, which affirmed with modification the Decision [2] of the Regional Trial Court (RTC) of Nueva
Ecija, Branch 37 in Civil Case No. SD-1233. The dispositive portion of the assailed CA decision states:

WHEREFORE, premises considered, the assailed Decision of the Regional Trial Court of
Baloc, Sto. Domingo, Nueva Ecija, Branch 37 is hereby AFFIRMED but with modifications as follows:

1) Ordering defendant-appellants Dr. and Dra. Fredelicto A. Flores and the United
Doctors Medical Center, Inc. to jointly and severally pay the plaintiff-appellees heirs of
Teresita Pineda, namely, Spouses Dominador Pineda and Virginia Saclolo and
Florencio, Candida, Marta, Godofredo, Baltazar and Lucena, all surnamed Pineda,
the sum of P400,000.00 by way of moral damages;

2) Ordering the above-named defendant-appellants to jointly and severally pay the

above-named plaintiff-appellees the sum of P100,000.00 by way of exemplary
damages;

3) Ordering the above-named defendant-appellants to jointly and severally pay the

above-named plaintiff-appellees the sum of P36,000.00 by way of actual and
compensatory damages; and

4) Deleting the award of attorneys fees and costs of suit.

SO ORDERED.
While this case essentially involves questions of facts, we opted for the requested review in light of questions we
have on the findings of negligence below, on the awarded damages and costs, and on the importance of this
type of ruling on medical practice.[3]

BACKGROUND FACTS

Teresita Pineda (Teresita) was a 51-year old unmarried woman living in Sto. Domingo, Nueva Ecija. She consulted
on April 17, 1987 her townmate, Dr. Fredelicto Flores, regarding her medical condition. She complained of
general body weakness, loss of appetite, frequent urination and thirst, and on-and-off vaginal bleeding. Dr.
Fredelicto initially interviewed the patient and asked for the history of her monthly period to analyze the probable
cause of the vaginal bleeding. He advised her to return the following week or to go to the United Doctors Medical
Center (UDMC) in Quezon City for a general check-up. As for her other symptoms, he suspected that Teresita
might be suffering from diabetes and told her to continue her medications. [4]

Teresita did not return the next week as advised. However, when her condition persisted, she went to further
consult Dr. Flores at his UDMC clinic on April 28, 1987, travelling for at least two hours from Nueva Ecija to Quezon
City with her sister, Lucena Pineda. They arrived at UDMC at around 11:15 a.m.. Lucena later testified that her
sister was then so weak that she had to lie down on the couch of the clinic while they waited for the doctor. When
Dr. Fredelicto arrived, he did a routine check-up and ordered Teresitas admission to the hospital. In the admission
slip, he directed the hospital staff to prepare the patient for an on call D&C[5] operation to be performed by his
wife, Dr. Felicisima Flores (Dr. Felicisima). Teresita was brought to her hospital room at around 12 noon; the hospital
staff forthwith took her blood and urine samples for the laboratory tests [6]which Dr. Fredelicto ordered.

At 2:40 p.m. of that same day, Teresita was taken to the operating room. It was only then that she met Dr.
Felicisima, an obstetrician and gynecologist. The two doctors Dr. Felicisima and Dr. Fredelicto, conferred on the
patients medical condition, while the resident physician and the medical intern gave Dr. Felicisima their own
briefings. She also interviewed and conducted an internal vaginal examination of the patient which lasted for
about 15 minutes. Dr. Felicisima thereafter called up the laboratory for the results of the tests. At that time, only
the results for the blood sugar (BS), uric acid determination, cholesterol determination, and complete blood
count (CBC) were available. Teresitas BS count was 10.67mmol/l[7] and her CBC was 109g/l.[8]

Based on these preparations, Dr. Felicisima proceeded with the D&C operation with Dr. Fredelicto
administering the general anesthesia. The D&C operation lasted for about 10 to 15 minutes. By 3:40 p.m., Teresita
was wheeled back to her room.

A day after the operation (or on April 29, 1987), Teresita was subjected to an ultrasound examination as
a confirmatory procedure. The results showed that she had an enlarged uterus and myoma uteri.[9] Dr. Felicisima,
however, advised Teresita that she could spend her recovery period at home. Still feeling weak, Teresita opted
for hospital confinement.

Teresitas complete laboratory examination results came only on that day (April 29, 1987). Teresitas
urinalysis showed a three plus sign (+++) indicating that the sugar in her urine was very high. She was then placed
under the care of Dr. Amado Jorge, an internist.
 By April 30, 1987, Teresitas condition had worsened. She experienced difficulty in breathing and was
rushed to the intensive care unit. Further tests confirmed that she was suffering from Diabetes Mellitus Type
II.[10] Insulin was administered on the patient, but the medication might have arrived too late. Due to
complications induced by diabetes, Teresita died in the morning of May 6, 1987.[11]

Believing that Teresitas death resulted from the negligent handling of her medical needs, her family
(respondents) instituted an action for damages against Dr. Fredelicto Flores and Dr. Felicisima Flores (collectively
referred to as the petitioner spouses) before the RTC of Nueva Ecija.

The RTC ruled in favor of Teresitas family and awarded actual, moral, and exemplary damages, plus
attorneys fees and costs.[12] The CA affirmed the judgment, but modified the amount of damages awarded and
deleted the award for attorneys fees and costs of suit.[13]

Through this petition for review on certiorari, the petitioner spouses Dr. Fredelicto (now deceased) and Dr.
Felicisima Flores allege that the RTC and CA committed a reversible error in finding them liable through
negligence for the death of Teresita Pineda.

ASSIGNMENT OF ERRORS

The petitioner spouses contend that they exercised due care and prudence in the performance of their duties
as medical professionals. They had attended to the patient to the best of their abilities and undertook the
management of her case based on her complaint of an on-and-off vaginal bleeding. In addition, they claim
that nothing on record shows that the death of Teresita could have been averted had they employed means
other than what they had adopted in the ministration of the patient.

THE COURTS RULING

We do not find the petition meritorious.

The respondents claim for damages is predicated on their allegation that the decision of the petitioner spouses
to proceed with the D&C operation, notwithstanding Teresitas condition and the laboratory test results,
amounted to negligence. On the other hand, the petitioner spouses contend that a D&C operation is the proper
and accepted procedure to address vaginal bleeding the medical problem presented to them. Given that the
patient died after the D&C, the core issue is whether the decision to proceed with the D&C operation was an
honest mistake of judgment or one amounting to negligence.

Elements of a Medical Negligence Case

A medical negligence case is a type of claim to redress a wrong committed by a medical professional, that has
caused bodily harm to or the death of a patient. There are four elements involved in a medical negligence case,
namely: duty, breach, injury, and proximate causation.[14]
Duty refers to the standard of behavior which imposes restrictions on ones conduct.[15] The standard in turn refers
to the amount of competence associated with the proper discharge of the profession. A physician is expected
to use at least the same level of care that any other reasonably competent doctor would use under the same
circumstances.Breach of duty occurs when the physician fails to comply with these professional standards. If
injury results to the patient as a result of this breach, the physician is answerable for negligence. [16]

As in any civil action, the burden to prove the existence of the necessary elements rests with the plaintiff.[17] To
successfully pursue a claim, the plaintiff must prove by preponderance of evidence that, one, the physician
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 two, the failure or action caused injury
to the patient.[18] Expert testimony is therefore essential since the factual issue of whether a physician or surgeon
has exercised the requisite degree of skill and care in the treatment of his patient is generally a matter of expert
opinion.[19]

Standard of Care and Breach of Duty

D&C is the classic gynecologic procedure for the evaluation and possible therapeutic treatment for abnormal
vaginal bleeding.[20] That this is the recognized procedure is confirmed by Drs. Salvador Nieto (Dr. Nieto) and
Joselito Mercado (Dr. Mercado), the expert witnesses presented by the respondents:

DR. NIETO: [W]hat I know among obstetricians, if there is bleeding, they perform what we call D&C
for diagnostic purposes.
xxx xxx xxx

Q: So are you trying to tell the Court that D&C can be a diagnostic treatment?

A: Yes, sir. Any doctor knows this.[21]

Dr. Mercado, however, objected with respect to the time the D&C operation should have been conducted in
Teresitas case. He opined that given the blood sugar level of Teresita, her diabetic condition should have been
addressed first:
Q: Why do you consider the time of performance of the D&C not appropriate?

A: Because I have read the record and I have seen the urinalysis, [there is] spillage in the
urine, and blood sugar was 10.67

Q: What is the significance of the spillage in the urine?

A: It is a sign that the blood sugar is very high.

Q: Does it indicate sickness?

A: 80 to 95% it means diabetes mellitus. The blood sugar was 10.67.

xxx xxx xxx

COURT: In other words, the operation conducted on the patient, your opinion, that it is
inappropriate?
 A: The timing of [when] the D&C [was] done, based on the record, in my personal
opinion, that D&C should be postponed a day or two.[22]

The petitioner spouses countered that, at the time of the operation, there was nothing to indicate that
Teresita was afflicted with diabetes: a blood sugar level of 10.67mmol/l did not necessarily mean that she was
a diabetic considering that this was random blood sugar;[23] there were other factors that might have caused
Teresitas blood sugar to rise such as the taking of blood samples during lunchtime and while patient was being
given intra-venous dextrose.[24] Furthermore, they claim that their principal concern was to determine the cause
of and to stop the vaginal bleeding.

The petitioner spouses contentions, in our view, miss several points. First, as early as April 17, 1987, Teresita
was already suspected to be suffering from diabetes.[25]This suspicion again arose right before the D&C
operation on April 28, 1987 when the laboratory result revealed Teresitas increased blood sugar
level.[26] Unfortunately, the petitioner spouses did not wait for the full medical laboratory results before
proceeding with the D&C, a fact that was never considered in the courts below. Second, the petitioner spouses
were duly advised that the patient was experiencing general body weakness, loss of appetite, frequent
urination, and thirst all of which are classic symptoms of diabetes.[27] When a patient exhibits symptoms typical
of a particular disease, these symptoms should, at the very least, alert the physician of the possibility that the
patient may be afflicted with the suspected disease:

[Expert testimony for the plaintiff showed that] tests should have been ordered
immediately on admission to the hospital in view of the symptoms presented, and that failure to
recognize the existence of diabetes constitutes negligence.[28]

Third, the petitioner spouses cannot claim that their principal concern was the vaginal bleeding and should not
therefore be held accountable for complications coming from other sources. This is a very narrow and self-serving
view that even reflects on their competence.

Taken together, we find that reasonable prudence would have shown that diabetes and its
complications were foreseeable harm that should have been taken into consideration by the petitioner
spouses. If a patient suffers from some disability that increases the magnitude of risk to him, that disability must
be taken into account so long as it is or should have been known to the physician. [29] And when the patient is
exposed to an increased risk, it is incumbent upon the physician to take commensurate and adequate
precautions.

Taking into account Teresitas high blood sugar,[30] Dr. Mendoza opined that the attending physician
should have postponed the D&C operation in order to conduct a confirmatory test to make a conclusive
diagnosis of diabetes and to refer the case to an internist or diabetologist. This was corroborated by Dr. Delfin
Tan (Dr. Tan), an obstetrician and gynecologist, who stated that the patients diabetes should have been
managed by an internist prior to, during, and after the operation.[31]

Apart from bleeding as a complication of pregnancy, vaginal bleeding is only rarely so heavy and life-
threatening that urgent first-aid measures are required.[32] Indeed, the expert witnesses declared that a D&C
operation on a hyperglycemic patient may be justified only when it is an emergency case when there is profuse
vaginal bleeding. In this case, we choose not to rely on the assertions of the petitioner spouses that there was
profuse bleeding, not only because the statements were self-serving, but also because the petitioner spouses
were inconsistent in their testimonies. Dr. Fredelicto testified earlier that on April 28, he personally saw the
bleeding,[33] but later on said that he did not see it and relied only on Teresitas statement that she was
bleeding.[34] He went on to state that he scheduled the D&C operation without conducting any physical
examination on the patient.

The likely story is that although Teresita experienced vaginal bleeding on April 28, it was not sufficiently
profuse to necessitate an immediate emergency D&C operation.Dr. Tan [35] and Dr. Mendoza[36] both testified
that the medical records of Teresita failed to indicate that there was profuse vaginal bleeding. The claim that
there was profuse vaginal bleeding although this was not reflected in the medical records strikes us as odd since
the main complaint is vaginal bleeding. A medical record is the only document that maintains a long-term
transcription of patient care and as such, its maintenance is considered a priority in hospital practice. Optimal
record-keeping includes all patient inter-actions. The records should always be clear, objective, and up-to-
date.[37] Thus, a medical record that does not indicate profuse medical bleeding speaks loudly and clearly of
what it does not contain.

That the D&C operation was conducted principally to diagnose the cause of the vaginal bleeding further
leads us to conclude that it was merely an elective procedure, not an emergency case. In an elective
procedure, the physician must conduct a thorough pre-operative evaluation of the patient in order to
adequately prepare her for the operation and minimize possible risks and complications. The internist is
responsible for generating a comprehensive evaluation of all medical problems during the pre-operative
evaluation.[38]

The aim of pre-operative evaluation is not to screen broadly for undiagnosed disease, but
rather to identify and quantify comorbidity that may impact on the operative outcome. This
evaluation is driven by findings on history and physical examination suggestive of organ system
dysfunctionThe goal is to uncover problem areas that may require further investigation or be
amenable to preoperative optimization.

If the preoperative evaluation uncovers significant comorbidity or evidence of poor

control of an underlying disease process, consultation with an internist or medical specialist may
be required to facilitate the work-up and direct management. In this process, communication
between the surgeons and the consultants is essential to define realistic goals for this optimization
process and to expedite surgical management.[39] [Emphasis supplied.]

Significantly, the evidence strongly suggests that the pre-operative evaluation was less than complete as the
laboratory results were fully reported only on the day following the D&C operation. Dr. Felicisima only secured a
telephone report of the preliminary laboratory result prior to the D&C. This preliminary report did not include the
3+ status of sugar in the patients urine[40] a result highly confirmatory of diabetes.

Because the D&C was merely an elective procedure, the patients uncontrolled hyperglycemia presented
a far greater risk than her on-and-off vaginal bleeding. The presence of hyperglycemia in a surgical patient is
associated with poor clinical outcomes, and aggressive glycemic control positively impacts on morbidity and
mortality.[41]Elective surgery in people with uncontrolled diabetes should preferably be
scheduled after acceptable glycemic control has been achieved.[42] According to Dr. Mercado, this is done by
administering insulin on the patient.[43]

The management approach in this kind of patients always includes insulin therapy in
combination with dextrose and potassium infusion. Insulin xxx promotes glucose uptake by the
muscle and fat cells while decreasing glucose production by the liver xxx. The net effect is to lower
blood glucose levels.[44]

The prudent move is to address the patients hyperglycemic state immediately and promptly before any other
procedure is undertaken. In this case, there was no evidence that insulin was administered on Teresita prior to or
during the D&C operation. Insulin was only administered two days after the operation.

As Dr. Tan testified, the patients hyperglycemic condition should have been managed not only before
and during the operation, but also immediately after. Despite the possibility that Teresita was afflicted with
diabetes, the possibility was casually ignored even in the post-operative evaluation of the patient; the concern,
as the petitioner spouses expressly admitted, was limited to the complaint of vaginal bleeding. Interestingly, while
the ultrasound test confirmed that Teresita had a myoma in her uterus, she was advised that she could be
discharged a day after the operation and that her recovery could take place at home. This advice implied that
a day after the operation and even after the complete laboratory results were submitted, the petitioner spouses
still did not recognize any post-operative concern that would require the monitoring of Teresitas condition in the
hospital.

The above facts, point only to one conclusion that the petitioner spouses failed, as medical professionals,
to comply with their duty to observe the standard of care to be given to hyperglycemic/diabetic patients
undergoing surgery. Whether this breach of duty was the proximate cause of Teresitas death is a matter we shall
next determine.

Injury and Causation

As previously mentioned, the critical and clinching factor in a medical negligence case is proof of
the causal connection between the negligence which the evidence established and the plaintiffs injuries;[45] the
plaintiff must plead and prove not only that he had been injured and defendant has been at fault, but also that
the defendants fault caused the injury. A verdict in a malpractice action cannot be based on speculation or
conjecture. Causation must be proven within a reasonable medical probability based upon competent expert
testimony.[46]

The respondents contend that unnecessarily subjecting Teresita to a D&C operation without adequately
preparing her, aggravated her hyperglycemic state and caused her untimely demise. The death certificate of
Teresita lists down the following causes of death:

Immediate cause: Cardiorespiratory arrest

Antecedent cause: Septicemic shock, ketoacidocis
Underlying cause: Diabetes Mellitus II
Other significant conditions
 contributing to death: Renal Failure Acute[47]

Stress, whether physical or emotional, is a factor that can aggravate diabetes; a D&C operation is a form
of physical stress. Dr. Mendoza explained how surgical stress can aggravate the patients hyperglycemia: when
stress occurs, the diabetics body, especially the autonomic system, reacts by secreting hormones which are
counter-regulatory; she can have prolonged hyperglycemia which, if unchecked, could lead to
death.[48] Medical literature further explains that if the blood sugar has become very high, the patient becomes
comatose (diabetic coma). When this happens over several days, the body uses its own fat to produce energy,
and the result is high levels of waste products (called ketones) in the blood and urine (called diabetic
ketoacidiosis, a medical emergency with a significant mortality).[49] This was apparently what happened in
Teresitas case; in fact, after she had been referred to the internist Dr. Jorge, laboratory test showed that her blood
sugar level shot up to 14.0mmol/l, way above the normal blood sugar range. Thus, between the D&C and death
was the diabetic complication that could have been prevented with the observance of standard medical
precautions. The D&C operation and Teresitas death due to aggravated diabetic condition is therefore
sufficiently established.

The trial court and the appellate court pinned the liability for Teresitas death on both the petitioner
spouses and this Court finds no reason to rule otherwise. However, we clarify that Dr. Fredelictos negligence is not
solely the act of ordering an on call D&C operation when he was mainly an anaesthesiologist who had made a
very cursory examination of the patients vaginal bleeding complaint. Rather, it was his failure from the very start
to identify and confirm, despite the patients complaints and his own suspicions, that diabetes was a risk factor
that should be guarded against, and his participation in the imprudent decision to proceed with the D&C
operation despite his early suspicion and the confirmatory early laboratory results. The latter point comes out
clearly from the following exchange during the trial:

Q: On what aspect did you and your wife consult [with] each other?

A: We discussed on the finding of the laboratory [results] because the hemoglobin was below
normal, the blood sugar was elevated, so that we have to evaluate these laboratory results
what it means.

Q: So it was you and your wife who made the evaluation when it was phoned in?

A: Yes, sir.

Q: Did your wife, before performing D&C ask your opinion whether or not she can proceed?

A: Yes, anyway, she asked me whether we can do D&C based on my experience.

Q: And your answer was in the positive notwithstanding the elevation of blood sugar?

A: Yes, sir, it was both our disposition to do the D&C. [Emphasis supplied.][50]
If Dr. Fredelicto believed himself to be incompetent to treat the diabetes, not being an internist or a diabetologist
(for which reason he referred Teresita to Dr. Jorge),[51] he should have likewise refrained from making a decision
to proceed with the D&C operation since he was niether an obstetrician nor a gynecologist.

These findings lead us to the conclusion that the decision to proceed with the D&C operation,
notwithstanding Teresitas hyperglycemia and without adequately preparing her for the procedure, was contrary
to the standards observed by the medical profession. Deviation from this standard amounted to a breach of
duty which resulted in the patients death. Due to this negligent conduct, liability must attach to the petitioner
spouses.

Liability of the Hospital

In the proceedings below, UDMC was the spouses Flores co-defendant. The RTC found the hospital jointly
and severally liable with the petitioner spouses, which decision the CA affirmed. In a Resolution dated August 28,
2006, this Court however denied UDMCs petition for review on certiorari. Since UDMCs appeal has been denied
and they are not parties to this case, we find it unnecessary to delve on the matter. Consequently, the RTCs
decision, as affirmed by the CA, stands.

Award of Damages

Both the trial and the appellate court awarded actual damages as compensation for the pecuniary loss the
respondents suffered. The loss was presented in terms of the hospital bills and expenses the respondents incurred
on account of Teresitas confinement and death. The settled rule is that a plaintiff is entitled to be compensated
for proven pecuniary loss.[52] This proof the respondents successfully presented. Thus, we affirm the award
of actual damages of P36,000.00 representing the hospital expenses the patient incurred.

In addition to the award for actual damages, the respondent heirs of Teresita are likewise entitled
to P50,000.00 as death indemnity pursuant to Article 2206 of the Civil Code, which states that the amount of
damages for death caused by a xxx quasi-delict shall be at least three thousand pesos,[53] even though there
may have been mitigating circumstances xxx. This is a question of law that the CA missed in its decision and
which we now decide in the respondents favor.

The same article allows the recovery of moral damages in case of death caused by a quasi-delict and
enumerates the spouse, legitimate or illegitimate ascendants or descendants as the persons entitled
thereto. Moral damages are designed to compensate the claimant for the injury suffered, that is, for the mental
anguish, serious anxiety, wounded feelings which the respondents herein must have surely felt with the
unexpected loss of their daughter. We affirm the appellate courts award of P400,000.00 by way of moral
damages to the respondents.

We similarly affirm the grant of exemplary damages. Exemplary damages are imposed by way of
example or correction for the public good.[54] Because of the petitioner spouses negligence in subjecting Teresita
to an operation without first recognizing and addressing her diabetic condition, the appellate court
awarded exemplary damages to the respondents in the amount of P100,000.00. Public policy requires such
imposition to suppress the wanton acts of an offender.[55] We therefore affirm the CAs award as an example to
the medical profession and to stress that the public good requires stricter measures to avoid the repetition of the
type of medical malpractice that happened in this case.

With the award of exemplary damages, the grant of attorneys fees is legally in order. [56] We therefore
reverse the CA decision deleting these awards, and grant the respondents the amount of P100,000.00
as attorneys fees taking into consideration the legal route this case has taken.

WHEREFORE, we AFFIRM the Decision of the CA dated June 20, 2003 in CA G.R. CV No. 63234 finding
petitioner spouses liable for negligent medical practice. We likewise AFFIRM the awards of actual and
compensatory damages of P36,000.00; moral damages of P400,000.00; and exemplary damages of P100,000.00.

We MODIFY the CA Decision by additionally granting an award of P50,000.00 as death indemnity and by
reversing the deletion of the award of attorneys fees and costs and restoring the award of P100,000.00 as
attorneys fees. Costs of litigation are adjudged against petitioner spouses.

To summarize, the following awards shall be paid to the family of the late Teresita Pineda:

1. The sum of P36,000.00 by way of actual and compensatory damages;

2. The sum of P50,000.00 by way of death indemnity;
3. The sum of P400,000.00 by way of moral damages;
4. The sum of P100,000.00 by way of exemplary damages;
5. The sum of P100,000.00 by way of attorneys fees; and
6. Costs.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 192123 March 10, 2014

DR. FERNANDO P. SOLIDUM, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:

This appeal is taken by a physician-anesthesiologist who has been pronounced guilty of reckless imprudence
resulting in serious physical injuries by the Regional Trial Court (RTC) and the Court of Appeals (CA). He had
been part of the team of anesthesiologists during the surgical pull-through operation conducted on a three-
year old patient born with an imperforate anus.1

The antecedents are as follows:

Gerald Albert Gercayo (Gerald) was born on June 2, 19922 with an imperforate anus. Two days after his birth,
Gerald underwent colostomy, a surgical procedure to bring one end of the large intestine out through the
abdominal wall,3 enabling him to excrete through a colostomy bag attached to the side of his body.4

On May 17, 1995, Gerald, then three years old, was admitted at the Ospital ng Maynila for a pull-through
operation.5Dr. Leandro Resurreccion headed the surgical team, and was assisted by Dr. Joselito Luceño, Dr.
Donatella Valeña and Dr. Joseph Tibio. The anesthesiologists included Dr. Marichu Abella, Dr. Arnel Razon and
petitioner Dr. Fernando Solidum (Dr. Solidum).6 During the operation, Gerald experienced bradycardia,7 and
went into a coma.8His coma lasted for two weeks,9 but he regained consciousness only after a month.10 He
could no longer see, hear or move.11

Agitated by her son’s helpless and unexpected condition, Ma. Luz Gercayo (Luz) lodged a complaint for
reckless imprudence resulting in serious physical injuries with the City Prosecutor’s Office of Manila against the
attending physicians.12

Upon a finding of probable cause, the City Prosecutor’s Office filed an information solely against Dr.
Solidum,13alleging: –

That on or about May 17, 1995, in the City of Manila, Philippines, the said accused, being then an
anesthesiologist at the Ospital ng Maynila, Malate, this City, and as such was tasked to administer the
anesthesia on three-year old baby boy GERALD ALBERT GERCAYO, represented by his mother, MA. LUZ
GERCAYO, the former having been born with an imperforate anus [no anal opening] and was to undergo an
operation for anal opening [pull through operation], did then and there willfully, unlawfully and feloniously fail
and neglect to use the care and diligence as the best of his judgment would dictate under said circumstance,
by failing to monitor and regulate properly the levels of anesthesia administered to said GERALD ALBERT
GERCAYO and using 100% halothane and other anesthetic medications, causing as a consequence of his said
carelessness and negligence, said GERALD ALBERT GERCAYO suffered a cardiac arrest and consequently a
defect called hypoxic encephalopathy meaning insufficient oxygen supply in the brain, thereby rendering said
GERALD ALBERT GERCAYO incapable of moving his body, seeing, speaking or hearing, to his damage and
prejudice.

Contrary to law.14
The case was initially filed in the Metropolitan Trial Court of Manila, but was transferred to the RTC pursuant to
Section 5 of Republic Act No. 8369 (The Family Courts Act of 1997),15 where it was docketed as Criminal Case
No. 01-190889.

Judgment of the RTC

On July 19, 2004, the RTC rendered its judgment finding Dr. Solidum guilty beyond reasonable doubt of reckless
imprudence resulting to serious physical injuries,16 decreeing:

WHEREFORE, premises considered, the Court finds accused DR. FERNANDO P. SOLIDUM GUILTY beyond
reasonable doubt as principal of the crime charged and is hereby sentenced to suffer the indeterminate
penalty of TWO (2) MONTHS and ONE (1) DAY of arresto mayor as minimum to ONE (1) YEAR, ONE (1) MONTH
and TEN (10) DAYS of prision correccional as maximum and to indemnify, jointly and severally with the Ospital
ng Maynila, Dr. Anita So and Dr. Marichu Abella, private complainant Luz Gercayo, the amount of ₱500,000.00
as moral damages and ₱100,000.00 as exemplary damages and to pay the costs.

Accordingly, the bond posted by the accused for his provisional liberty is hereby CANCELLED.

SO ORDERED.17

Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider their solidary liability, 18 the RTC excluded
them from solidary liability as to the damages, modifying its decision as follows:

WHEREFORE, premises considered, the Court finds accused Dr. Fernando Solidum, guilty beyond reasonable
doubt as principal of the crime charged and is hereby sentenced to suffer the indeterminate penalty of two (2)
months and one (1) day of arresto mayor as minimum to one (1) year, one (1) month and ten (10) days of
prision correccional as maximum and to indemnify jointly and severally with Ospital ng Maynila, private
complainant Luz Gercayo the amount of ₱500,000.00 as moral damages and ₱100,000 as exemplary damages
and to pay the costs.

Accordingly, the bond posted by the accused for his provisional liberty is hereby cancelled. 19

Decision of the CA

On January 20, 2010, the CA affirmed the conviction of Dr. Solidum,20 pertinently stating and ruling:

The case appears to be a textbook example of res ipsa loquitur.

xxxx

x x x [P]rior to the operation, the child was evaluated and found fit to undergo a major operation. As noted by
the OSG, the accused himself testified that pre-operation tests were conducted to ensure that the child could
withstand the surgery. Except for his imperforate anus, the child was healthy. The tests and other procedures
failed to reveal that he was suffering from any known ailment or disability that could turn into a significant risk.
There was not a hint that the nature of the operation itself was a causative factor in the events that finally led to
hypoxia.

In short, the lower court has been left with no reasonable hypothesis except to attribute the accident to a
failure in the proper administration of anesthesia, the gravamen of the charge in this case. The High Court
elucidates in Ramos vs. Court of Appeals 321 SCRA 584 –

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.

The lower court has found that such a nexus exists between the act complained of and the injury sustained,
and in line with the hornbook rules on evidence, we will afford the factual findings of a trial court the respect
they deserve in the absence of a showing of arbitrariness or disregard of material facts that might affect the
disposition of the case. People v. Paraiso 349 SCRA 335.

The res ipsa loquitur test has been known to be applied in criminal cases. Although it creates a presumption of
negligence, it need not offend due process, as long as the accused is afforded the opportunity to go forward
with his own evidence and prove that he has no criminal intent. It is in this light not inconsistent with the
constitutional presumption of innocence of an accused.

IN VIEW OF THE FOREGOING, the modified decision of the lower court is affirmed.

SO ORDERED.21

Dr. Solidum filed a motion for reconsideration, but the CA denied his motion on May 7, 2010.22

Hence, this appeal.

Issues

Dr. Solidum avers that:

I.

THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE LOWER COURT IN
UPHOLDING THE PETITIONER’S CONVICTION FOR THE CRIME CHARGED BASED ON THE TRIAL COURT’S
OPINION, AND NOT ON THE BASIS OF THE FACTS ESTABLISHED DURING THE TRIAL. ALSO, THERE IS A CLEAR
MISAPPREHENSION OF FACTS WHICH IF CORRECTED, WILL RESULT TO THE ACQUITTAL OF THE PETITIONER.
FURTHER, THE HONORABLE COURT ERRED IN AFFIRMING THE SAID DECISION OF THE LOWER COURT, AS
THIS BREACHES THE CRIMINAL LAW PRINCIPLE THAT THE PROSECUTION MUST PROVE THE ALLEGATIONS OF
THE INFORMATION BEYOND REASONABLE DOUBT, AND NOT ON THE BASIS OF ITS PRESUMPTIVE
CONCLUSION.

II.

THE HONORABLE COURT OF APPEALS ERRED IN APPLYING THE PRINCIPLE OF RES IPSA LOQUITOR (sic)
WHEN THE DEFENSE WAS ABLE TO PROVE THAT THERE IS NO NEGLIGENCE ON THE PART OF THE PETITIONER,
AND NO OVERDOSING IN THE APPLICATION OF THE ANESTHETIC AGENT BECAUSE THERE WAS NO 100%
HALOTHANE ADMINISTERED TO THE CHILD, BUT ONLY ONE (1%) PERCENT AND THE APPLICATION THEREOF,
WAS REGULATED BY AN ANESTHESIA MACHINE. THUS, THE APPLICATION OF THE PRINCIPLE OF RES IPSA
LOQUITOR (sic) CONTRADICTED THE ESTABLISHED FACTS AND THE LAW APPLICABLE IN THE CASE.

III.

THE AWARD OF MORAL DAMAGES AND EXEMPLARY DAMAGES IS NOT JUSTIFIED THERE BEING NO
NEGLIGENCE ON THE PART OF THE PETITIONER. ASSUMING THAT THE CHILD IS ENTITLED TO FINANCIAL
CONSIDERATION, IT SHOULD BE ONLY AS A FINANCIAL ASSISTANCE, BECAUSE THERE WAS NO
 NEGLIGENCE, AND NO OVERDOSING OF ANESTHETIC AGENT AND AS SUCH, THE AWARD IS SO
EXCESSIVE, AND NO FACTUAL AND LEGAL BASIS.23

To simplify, the following are the issues for resolution, namely: (a) whether or not the doctrine of res ipsa loquitur
was applicable herein; and (b) whether or not Dr. Solidum was liable for criminal negligence.

Ruling

The appeal is meritorious.

Applicability of the Doctrine of Res Ipsa Loquitur

Res ipsa loquitur is literally translated as "the thing or the transaction speaks for itself." The doctrine res ipsa
loquitur means that "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 if 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." 24 It is simply "a recognition of the postulate that, as a
matter of common knowledge and experience, the very nature of certain types of occurrences may justify an
inference of negligence on the part of the person who controls the instrumentality causing the injury in the
absence of some explanation by the defendant who is charged with negligence. It is grounded in the superior
logic of ordinary human experience and on the basis of such experience or common knowledge, negligence
may be deduced from the mere occurrence of the accident itself.

Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge."25

Jarcia, Jr. v. People26 has underscored that the doctrine is not a rule of substantive law, but merely a mode of
proof or a mere procedural convenience. The doctrine, when applicable to the facts and circumstances of a
given case, is not meant to and does not dispense with the requirement of proof of culpable negligence
against the party charged. It merely determines and regulates what shall be prima facie evidence thereof, and
helps the plaintiff in proving a breach of the duty. The doctrine can be invoked when and only when, under the
circumstances involved, direct evidence is absent and not readily available.27

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.

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

The Court considers the application here of the doctrine of res ipsa loquitur inappropriate. Although it should be
conceded without difficulty that the second and third elements were present, considering that the anesthetic
agent and the instruments were exclusively within the control of Dr. Solidum, and that the patient, being then
unconscious during the operation, could not have been guilty of contributory negligence, the first element was
undeniably wanting. Luz delivered Gerald to the care, custody and control of his physicians for a pull-through
operation. Except for the imperforate anus, Gerald was then of sound body and mind at the time of his
submission to the physicians. Yet, he experienced bradycardia during the operation, causing loss of his senses
and rendering him immobile. Hypoxia, or the insufficiency of oxygen supply to the brain that caused the
slowing of the heart rate, scientifically termed as bradycardia, would not ordinarily occur in the process of a
pull-through operation, or during the administration of anesthesia to the patient, but such fact alone did not
prove that the negligence of any of his attending physicians, including the anesthesiologists, had caused the
injury. In fact, the anesthesiologists attending to him had sensed in the course of the operation that the lack of
oxygen could have been triggered by the vago-vagal reflex, prompting them to administer atropine to the
patient.30

This conclusion is not unprecedented. It was similarly reached in Swanson v. Brigham, 31 relevant portions of the
decision therein being as follows:
On January 7, 1973, Dr. Brigham admitted 15-year-old Randall Swanson to a hospital for the treatment of
infectious mononucleosis. The patient's symptoms had included a swollen throat and some breathing difficulty.
Early in the morning of January 9 the patient was restless, and at 1:30 a.m. Dr. Brigham examined the patient.
His inspection of the patient's air passage revealed that it was in satisfactory condition. At 4:15 a.m. Dr. Brigham
received a telephone call from the hospital, advising him that the patient was having respiratory difficulty. The
doctor ordered that oxygen be administered and he prepared to leave for the hospital. Ten minutes later, 4:25
a.m., the hospital called a second time to advise the doctor that the patient was not responding. The doctor
ordered that a medicine be administered, and he departed for the hospital. When he arrived, the physician
who had been on call at the hospital had begun attempts to revive the patient. Dr. Brigham joined him in the
effort, but the patient died.

The doctor who performed the autopsy concluded that the patient died between 4:25 a.m. and 4:30 a.m. of
asphyxia, as a result of a sudden, acute closing of the air passage. He also found that the air passage had
been adequate to maintain life up to 2 or 3 minutes prior to death. He did not know what caused the air
passage to suddenly close.

xxxx

It is a rare occurrence when someone admitted to a hospital for the treatment of infectious mononucleosis dies
of asphyxiation. But that is not sufficient to invoke res ipsa loquitur. The fact that the injury rarely occurs does not
in itself prove that the injury was probably caused by someone's negligence. Mason v. Ellsworth, 3 Wn. App.
298, 474 P.2d 909 (1970). Nor is a bad result by itself enough to warrant the application of the doctrine. Nelson v.
Murphy, 42 Wn.2d 737, 258 P.2d 472 (1953). See 2 S. Speiser, The Negligence Case – Res Ipsa Loquitur § 24:10
(1972). The evidence presented is insufficient to establish the first element necessary for application of res ipsa
loquitur doctrine. The acute closing of the patient’s air passage and his resultant asphyxiation took place over
a very short period of time. Under these circumstances it would not be reasonable to infer that the physician
was negligent. There was no palpably negligent act. The common experience of mankind does not suggest
that death would not be expected without negligence. And there is no expert medical testimony to create an
inference that negligence caused the injury.

Negligence of Dr. Solidum

In view of the inapplicability of the doctrine of res ipsa loquitur, the Court next determines whether the CA
correctly affirmed the conviction of Dr. Solidum for criminal negligence.

Negligence is defined as the failure to observe for the protection of the interests of another person that degree
of care, precaution, and vigilance that the circumstances justly demand, whereby such other person suffers
injury.32Reckless imprudence, on the other hand, consists of voluntarily doing or failing to do, without malice, an
act from which material damage results by reason of an inexcusable lack of precaution on the part of the
person performing or failing to perform such act.33

Dr. Solidum’s conviction by the RTC was primarily based on his failure to monitor and properly regulate the level
of anesthetic agent administered on Gerald by overdosing at 100% halothane. In affirming the conviction, the
CA observed:

On the witness stand, Dr. Vertido made a significant turnaround. He affirmed the findings and conclusions in his
report except for an observation which, to all intents and purposes, has become the storm center of this
dispute. He wanted to correct one piece of information regarding the dosage of the anesthetic agent
administered to the child. He declared that he made a mistake in reporting a 100% halothane and said that
based on the records it should have been 100% oxygen.

The records he was relying on, as he explains, are the following:

(a) the anesthesia record – A portion of the chart in the record was marked as Exhibit 1-A and 1-B to
indicate the administration at intervals of the anesthetic agent.
 (b) the clinical abstract – A portion of this record that reads as follows was marked Exhibit 3A. 3B –
Approximately 1 hour and 45 minutes through the operation, patient was noted to have bradycardia
(CR = 70) and ATSO4 0.2 mg was immediately administered. However, the bradycardia persisted, the
inhalational agent was shut off, and the patient was ventilated with 100% oxygen and another dose of
ATSO4 0.2 mg was given. However, the patient did not respond until no cardiac rate can be
auscultated and the surgeons were immediately told to stop the operation. The patient was put on a
supine position and CPR was initiated. Patient was given 1 amp of epinephrine initially while
continuously doing cardiac massage – still with no cardiac rate appreciated; another ampule of
epinephrine was given and after 45 secs, patient’s vital signs returned to normal. The entire resuscitation
lasted approximately 3-5 mins. The surgeons were then told to proceed to the closure and the child’s
vital signs throughout and until the end of surgery were: BP = 110/70; CR = 116/min and RR = 20-22
cycles/min (on assisted ventilation).

Dr. Vertido points to the crucial passage in the clinical abstract that the patient was ventilated with 100%
oxygen and another dose of ATSO4 when the bradycardia persisted, but for one reason or another, he read it
as 100% halothane. He was asked to read the anesthesia record on the percentage of the dosage indicated,
but he could only sheepishly note I can’t understand the number. There are no clues in the clinical abstract on
the quantity of the anesthetic agent used. It only contains the information that the anesthetic plan was to put
the patient under general anesthesia using a nonrebreathing system with halothane as the sole anesthetic
agent and that 1 hour and 45 minutes after the operation began, bradycardia occurred after which the
inhalational agent was shut off and the patient administered with 100% oxygen. It would be apparent that the
100% oxygen that Dr. Vertido said should be read in lieu of 100% halothane was the pure oxygen introduced
after something went amiss in the operation and the halothane itself was reduced or shut off.

The key question remains – what was the quantity of halothane used before bradycardia set in?

The implication of Dr. Vertido’s admission is that there was no overdose of the anesthetic agent, and the
accused Dr. Solidum stakes his liberty and reputation on this conclusion. He made the assurance that he gave
his patient the utmost medical care, never leaving the operating room except for a few minutes to answer the
call of nature but leaving behind the other members of his team Drs. Abella and Razon to monitor the
operation. He insisted that he administered only a point 1% not 100% halothane, receiving corroboration from
Dr. Abella whose initial MA in the record should be enough to show that she assisted in the operation and was
therefore conversant of the things that happened. She revealed that they were using a machine that closely
monitored the concentration of the agent during the operation.

But most compelling is Dr. Solidum’s interpretation of the anesthesia record itself, as he takes the bull by the
horns, so to speak. In his affidavit, he says, reading from the record, that the quantity of halothane used in the
operation is one percent (1%) delivered at time intervals of 15 minutes. He studiedly mentions – the
concentration of halothane as reflected in the anesthesia record (Annex D of the complaint-affidavit) is only
one percent (1%) – The numbers indicated in 15 minute increments for halothane is an indication that only 1%
halothane is being delivered to the patient Gerard Gercayo for his entire operation; The amount of halothane
delivered in this case which is only one percent cannot be summated because halothane is constantly being
rapidly eliminated by the body during the entire operation.

xxxx

In finding the accused guilty, despite these explanations, the RTC argued that the volte-face of Dr. Vertido on
the question of the dosage of the anesthetic used on the child would not really validate the non-guilt of the
anesthesiologist. Led to agree that the halothane used was not 100% as initially believed, he was nonetheless
unaware of the implications of the change in his testimony. The court observed that Dr. Vertido had described
the condition of the child as hypoxia which is deprivation of oxygen, a diagnosis supported by the results of the
CT Scan. All the symptoms attributed to a failing central nervous system such as stupor, loss of consciousness,
decrease in heart rate, loss of usual acuity and abnormal motor function, are manifestations of this condition or
syndrome. But why would there be deprivation of oxygen if 100% oxygen to 1% halothane was used? Ultimately,
to the court, whether oxygen or halothane was the object of mistake, the detrimental effects of the operation
are incontestable, and they can only be led to one conclusion – if the application of anesthesia was really
closely monitored, the event could not have happened.34
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 Appeals35 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.

xxxx

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

Here, the Prosecution presented no witnesses with special medical qualifications in anesthesia to provide
guidance to the trial court on what standard of care was applicable. It would consequently be truly difficult, if
not impossible, to determine whether the first three elements of a negligence and malpractice action were
attendant.

Although the Prosecution presented Dr. Benigno Sulit, Jr., an anesthesiologist himself who served as the
Chairman of the Committee on Ethics and Malpractice of the Philippine Society of Anesthesiologists that
investigated the complaint against Dr. Solidum, his testimony mainly focused on how his Committee had
conducted the investigation.39 Even then, the report of his Committee was favorable to Dr. Solidum,40 to wit:

Presented for review by this committee is the case of a 3 year old male who underwent a pull-thru operation
and was administered general anesthesia by a team of anesthesia residents. The patient, at the time when the
surgeons was manipulating the recto-sigmoid and pulling it down in preparation for the anastomosis, had
bradycardia. The anesthesiologists, sensing that the cause thereof was the triggering of the vago-vagal reflex,
administered atropine to block it but despite the administration of the drug in two doses, cardiac arrest ensued.
As the records show, prompt resuscitative measures were administered and spontaneous cardiac function re-
established in less than five (5) minutes and that oxygen was continuously being administered throughout,
unfortunately, as later become manifest, patient suffered permanent irreversible brain damage.

In view of the actuations of the anaesthesiologists and the administration of anaesthesia, the committee find
that the same were all in accordance with the universally accepted standards of medical care and there is no
evidence of any fault or negligence on the part of the anaesthesiologists.

Dr. Antonio Vertido, a Senior Medico-Legal Officer of the National Bureau of Investigation, was also presented
as a Prosecution witness, but his testimony concentrated on the results of the physical examination he had
conducted on Gerald, as borne out by the following portions of his direct examination, to wit:

FISCAL CABARON Doctor, what do you mean by General Anesthetic Agent?

WITNESS General Anesthetic Agent is a substance used in the conduction of Anesthesia and in this case,
halothane was used as a sole anesthetic agent.

xxxx

Q Now under paragraph two of page 1 of your report you mentioned that after one hour and 45 minutes after
the operation, the patient experienced a bradycardia or slowing of heart rate, now as a doctor, would you be
able to tell this Honorable Court as to what cause of the slowing of heart rate as to Gerald Gercayo?

WITNESS Well honestly sir, I cannot give you the reason why there was a bradycardia of time because is some
reason one way or another that might caused bradycardia.

FISCAL CABARON What could be the possible reason?

A Well bradycardia can be caused by anesthetic agent itself and that is a possibility, we’re talking about
possibility here.

Q What other possibility do you have in mind, doctor?

A Well, because it was an operation, anything can happen within that situation.

FISCAL CABARON Now, this representation would like to ask you about the slowing of heart rate, now what is
the immediate cause of the slowing of the heart rate of a person?
WITNESS Well, one of the more practical reason why there is slowing of the heart rate is when you do a vagal
reflex in the neck wherein the vagal receptors are located at the lateral part of the neck, when you press that,
you produce the slowing of the heart rate that produce bradycardia.

Q I am pro[p]ounding to you another question doctor, what about the deficiency in the supply of oxygen by
the patient, would that also cause the slowing of the heart rate?

A Well that is a possibility sir, I mean not as slowing of the heart rate, if there is a hypoxia or there is a low oxygen
level in the blood, the normal thing for the heart is to pump or to do not a bradycardia but a … to counter act
the Hypoxia that is being experienced by the patient

(sic).

xxxx

Q Now, you made mention also doctor that the use of general anesthesia using 100% halothane and other
anesthetic medications probably were contributory to the production of hypoxia.

A Yes, sir in general sir.41

On cross-examination, Dr. Vertido expounded more specifically on his interpretation of the anesthesia record
and the factors that could have caused Gerald to experience bradycardia, viz:

ATTY. COMIA I noticed in, may I see your report Doctor, page 3, will you kindly read to this Honorable court your
last paragraph and if you will affirm that as if it is correct?

A "The use of General Anesthesia, that is using 100% Halothane probably will be contributory to the production
of Hypoxia and - - - -"

ATTY COMIA And do you affirm the figure you mentioned in this Court Doctor?

WITNESS Based on the records, I know the - - -

Q 100%?

A 100% based on the records.

Q I will show you doctor a clinical record. I am a lawyer I am not a doctor but will you kindly look at this and tell
me where is 100%, the word "one hundred" or 1-0-0, will you kindly look at this Doctor, this Xerox copy if you can
show to this Honorable Court and even to this representation the word "one hundred" or 1-0-0 and then call me.

xxxx

ATTY. COMIA Doctor tell this Honorable Court where is that 100, 1-0-0 and if there is, you just call me and even
the attention of the Presiding Judge of this Court. Okay, you read one by one.

WITNESS Well, are you only asking 100%, sir?

ATTY. COMIA I’m asking you, just answer my question, did you see there 100% and 100 figures, tell me, yes or
no?

WITNESS I’m trying to look at the 100%, there is no 100% there sir.

ATTY. COMIA Okay, that was good, so you Honor please, may we request also temporarily, because this is just a
xerox copy presented by the fiscal, that the percentage here that the Halothane administered by Dr. Solidum
to the patient is 1% only so may we request that this portion, temporarily your Honor, we are marking this
anesthesia record as our Exhibit 1 and then this 1% Halothane also be bracketed and the same be marked as
our Exhibit "1-A".

xxxx

ATTY. COMIA Doctor, my attention was called also when you said that there are so many factors that
contributed to Hypoxia is that correct?

WITNESS Yes, sir.

Q I remember doctor, according to you there are so many factors that contributed to what you call hypoxia
and according to you, when this Gerald suffered hypoxia, there are other factors that might lead to this
Hypoxia at the time of this operation is that correct?

WITNESS The possibility is there, sir.

Q And according to you, it might also be the result of such other, some or it might be due to operations being
conducted by the doctor at the time when the operation is being done might also contribute to that hypoxia is
that correct?

A That is a possibility also.

xxxx

ATTY. COMIA How will you classify now the operation conducted to this Gerald, Doctor?

WITNESS Well, that is a major operation sir.

Q In other words, when you say major operation conducted to this Gerald, there is a possibility that this Gerald
might [be] exposed to some risk is that correct?

A That is a possibility sir.

Q And which according to you that Gerald suffered hypoxia is that correct?

A Yes, sir.

Q And that is one of the risk of that major operation is that correct?

A That is the risk sir.42

At the continuation of his cross-examination, Dr. Vertido maintained that Gerald’s operation for his imperforate
anus, considered a major operation, had exposed him to the risk of suffering the same condition. 43 He then
corrected his earlier finding that 100% halothane had been administered on Gerald by saying that it should be
100% oxygen.44

Dr. Solidum was criminally charged for "failing to monitor and regulate properly the levels of anesthesia
administered to said Gerald Albert Gercayo and using 100% halothane and other anesthetic
medications."45However, the foregoing circumstances, taken together, did not prove beyond reasonable
doubt that Dr. Solidum had been recklessly imprudent in administering the anesthetic agent to Gerald. Indeed,
Dr. Vertido’s findings did not preclude the probability that other factors related to Gerald’s major operation,
which could or could not necessarily be attributed to the administration of the anesthesia, had caused the
hypoxia and had then led Gerald to experience bradycardia. Dr. Vertido revealingly concluded in his report,
instead, that "although the anesthesiologist followed the normal routine and precautionary procedures, still
hypoxia and its corresponding side effects did occur."46
The existence of the probability about other factors causing the hypoxia has engendered in the mind of the
Court a reasonable doubt as to Dr. Solidum’s guilt, and moves us to acquit him of the crime of reckless
imprudence resulting to serious physical injuries. "A reasonable doubt of guilt," according to United States v.
Youthsey:47

x x x is a doubt growing reasonably out of evidence or the lack of it. It is not a captious doubt; not a doubt
engendered merely by sympathy for the unfortunate position of the defendant, or a dislike to accept the
responsibility of convicting a fellow man. If, having weighed the evidence on both sides, you reach the
conclusion that the defendant is guilty, to that degree of certainty as would lead you to act on the faith of it in
the most important and crucial affairs of your life, you may properly convict him. Proof beyond reasonable
doubt is not proof to a mathematical demonstration. It is not proof beyond the possibility of mistake.

We have to clarify that the acquittal of Dr. Solidum would not immediately exempt him from civil
liability.1âwphi1 But we cannot now find and declare him civilly liable because the circumstances that have
been established here do not present the factual and legal bases for validly doing so. His acquittal did not
derive only from reasonable doubt. There was really no firm and competent showing how the injury to Gerard
had been caused. That meant that the manner of administration of the anesthesia by Dr. Solidum was not
necessarily the cause of the hypoxia that caused the bradycardia experienced by Gerard. Consequently, to
adjudge Dr. Solidum civilly liable would be to speculate on the cause of the hypoxia. We are not allowed to do
so, for civil liability must not rest on speculation but on competent evidence.

Liability of Ospital ng Maynila

Although the result now reached has resolved the issue of civil liability, we have to address the unusual decree
of the RTC, as affirmed by the CA, of expressly holding Ospital ng Maynila civilly liable jointly and severally with
Dr. Solidum. The decree was flawed in logic and in law.

In criminal prosecutions, the civil action for the recovery of civil liability that is deemed instituted with the
criminal action refers only to that arising from the offense charged.48 It is puzzling, therefore, how the RTC and
the CA could have adjudged Ospital ng Maynila jointly and severally liable with Dr. Solidum for the damages
despite the obvious fact that Ospital ng Maynila, being an artificial entity, had not been charged along with Dr.
Solidum. The lower courts thereby acted capriciously and whimsically, which rendered their judgment against
Ospital ng Maynila void as the product of grave abuse of discretion amounting to lack of jurisdiction.

Not surprisingly, the flawed decree raises other material concerns that the RTC and the CA overlooked. We
deem it important, then, to express the following observations for the instruction of the Bench and Bar.

For one, Ospital ng Maynila was not at all a party in the proceedings. Hence, its fundamental right to be heard
was not respected from the outset. The R TC and the CA should have been alert to this fundamental defect.
Verily, no person can be prejudiced by a ruling rendered in an action or proceeding in which he was not made
a party. Such a rule would enforce the constitutional guarantee of due process of law.

Moreover, Ospital ng Maynila could be held civilly liable only when subsidiary liability would be properly
enforceable pursuant to Article 103 of the Revised Penal Code. But the subsidiary liability seems far-fetched
here. The conditions for subsidiary liability to attach to Ospital ng Maynila should first be complied with. Firstly,
pursuant to Article 103 of the Revised Penal Code, Ospital ng Maynila must be shown to be a corporation
"engaged in any kind of industry." The term industry means any department or branch of art, occupation or
business, especially one that employs labor and capital, and is engaged in industry. 49 However, Ospital ng
Maynila, being a public hospital, was not engaged in industry conducted for profit but purely in charitable and
humanitarian work.50 Secondly, assuming that Ospital ng Maynila was engaged in industry for profit, Dr. Solidum
must be shown to be an employee of Ospital ng Maynila acting in the discharge of his duties during the
operation on Gerald. Yet, he definitely was not such employee but a consultant of the hospital. And, thirdly,
assuming that civil liability was adjudged against Dr. Solidum as an employee (which did not happen here), the
execution against him was unsatisfied due to his being insolvent.
WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES AND SETS ASIDE the decision
promulgated on January 20, 2010; ACQUITS Dr. Fernando P. Solidum of the crime of reckless imprudence
resulting to serious physical injuries; and MAKES no pronouncement on costs of suit.

SO ORDERED.