TORTS 09 No measures seems to have been adopted by the defendant company to prohibit or prevent visitors from entering and
No measures seems to have been adopted by the defendant company to prohibit or prevent visitors from entering and walking
G.R. No. L-4977 March 22, 1910
DAVID TAYLOR, plaintiff-appellee,
vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant.
CARSON, J.:
An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor, a minor, by his father, his
nearest relative.
The defendant is a foreign corporation engaged in the operation of a street railway and an electric light system in the city of
Manila. Its power plant is situated at the eastern end of a small island in the Pasig River within the city of Manila, known as the
Isla del Provisor. The power plant may be reached by boat or by crossing a footbridge, impassable for vehicles, at the westerly
end of the island.
The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years of age, the son of a
mechanical engineer, more mature than the average boy of his age, and having considerable aptitude and training in mechanics.
On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of age, crossed the footbridge to
the Isla del Provisor, for the purpose of visiting one Murphy, an employee of the defendant, who and promised to make them a
cylinder for a miniature engine. Finding on inquiry that Mr. Murphy was not in his quarters, the boys, impelled apparently by
youthful curiosity and perhaps by the unusual interest which both seem to have taken in machinery, spent some time in
wandering about the company's premises. The visit was made on a Sunday afternoon, and it does not appear that they saw or
spoke to anyone after leaving the power house where they had asked for Mr. Murphy.
After watching the operation of the travelling crane used in handling the defendant's coal, they walked across the open space in
the neighborhood of the place where the company dumped in the cinders and ashes from its furnaces. Here they found some
twenty or thirty brass fulminating caps scattered on the ground. These caps are approximately of the size and appearance of
small pistol cartridges and each has attached to it two long thin wires by means of which it may be discharged by the use of
electricity. They are intended for use in the explosion of blasting charges of dynamite, and have in themselves a considerable
explosive power. After some discussion as to the ownership of the caps, and their right to take them, the boys picked up all they
could find, hung them on stick, of which each took end, and carried them home. After crossing the footbridge, they met a little
girl named Jessie Adrian, less than 9 years old, and all three went to the home of the boy Manuel. The boys then made a series of
experiments with the caps. They trust the ends of the wires into an electric light socket and obtained no result. They next tried to
break the cap with a stone and failed. Manuel looked for a hammer, but could not find one. Then they opened one of the caps
with a knife, and finding that it was filled with a yellowish substance they got matches, and David held the cap while Manuel
applied a lighted match to the contents. An explosion followed, causing more or less serious injuries to all three. Jessie, who
when the boys proposed putting a match to the contents of the cap, became frightened and started to run away, received a slight
cut in the neck. Manuel had his hand burned and wounded, and David was struck in the face by several particles of the metal
capsule, one of which injured his right eye to such an extent as to the necessitate its removal by the surgeons who were called in
to care for his wounds.
The evidence does definitely and conclusively disclose how the caps came to be on the defendant's premises, nor how long they
had been there when the boys found them. It appears, however, that some months before the accident, during the construction of
the defendant's plant, detonating caps of the same size and kind as those found by the boys were used in sinking a well at the
power plant near the place where the caps were found; and it also appears that at or about the time when these caps were found,
similarly caps were in use in the construction of an extension of defendant's street car line to Fort William McKinley. The caps
when found appeared to the boys who picked them up to have been lying for a considerable time, and from the place where they
were found would seem to have been discarded as detective or worthless and fit only to be thrown upon the rubbish heap.
Page 1 of 53 TORTS MEETING 2
about its premises unattended, when they felt disposed so to do. As admitted in defendant counsel's brief, "it is undoubtedly true
that children in their play sometimes crossed the foot bridge to the islands;" and, we may add, roamed about at will on the
uninclosed premises of the defendant, in the neighborhood of the place where the caps were found. There is evidence that any
effort ever was made to forbid these children from visiting the defendant company's premises, although it must be assumed that
the company or its employees were aware of the fact that they not infrequently did so.
Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the interisland transports. Later he
took up work in his father's office, learning mechanical drawing and mechanical engineering. About a month after his accident
he obtained employment as a mechanical draftsman and continued in that employment for six months at a salary of P2.50 a day;
and it appears that he was a boy of more than average intelligence, taller and more mature both mentally and physically than
most boys of fifteen.
The facts set out in the foregoing statement are to our mind fully and conclusively established by the evidence of record, and are
substantially admitted by counsel. The only questions of fact which are seriously disputed are plaintiff's allegations that the caps
which were found by plaintiff on defendant company's premises were the property of the defendant, or that they had come from
its possession and control, and that the company or some of its employees left them exposed on its premises at the point where
they were found.
The evidence in support of these allegations is meager, and the defendant company, apparently relying on the rule of law which
places the burden of proof of such allegations upon the plaintiff, offered no evidence in rebuttal, and insists that plaintiff failed in
his proof. We think, however, that plaintiff's evidence is sufficient to sustain a finding in accord with his allegations in this
regard.
It was proven that caps, similar to those found by plaintiff, were used, more or less extensively, on the McKinley extension of
the defendant company's track; that some of these caps were used in blasting a well on the company's premises a few months
before the accident; that not far from the place where the caps were found the company has a storehouse for the materials,
supplies and so forth, used by it in its operations as a street railway and a purveyor of electric light; and that the place, in the
neighborhood of which the caps were found, was being used by the company as a sort of dumping ground for ashes and cinders.
Fulminating caps or detonators for the discharge by electricity of blasting charges by dynamite are not articles in common use by
the average citizen, and under all the circumstances, and in the absence of all evidence to the contrary, we think that the
discovery of twenty or thirty of these caps at the place where they were found by the plaintiff on defendant's premises fairly
justifies the inference that the defendant company was either the owner of the caps in question or had the caps under its
possession and control. We think also that the evidence tends to disclose that these caps or detonators were willfully and
knowingly thrown by the company or its employees at the spot where they were found, with the expectation that they would be
buried out of the sight by the ashes which it was engaged in dumping in that neighborhood, they being old and perhaps defective;
and, however this may be, we are satisfied that the evidence is sufficient to sustain a finding that the company or some of its
employees either willfully or through an oversight left them exposed at a point on its premises which the general public,
including children at play, where not prohibited from visiting, and over which the company knew or ought to have known that
young boys were likely to roam about in pastime or in play.
Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which these conclusions are based by
intimidating or rather assuming that the blasting work on the company's well and on its McKinley extension was done by
contractors. It was conclusively proven, however, that while the workman employed in blasting the well was regularly employed
by J. G. White and Co., a firm of contractors, he did the work on the well directly and immediately under the supervision and
control of one of defendant company's foremen, and there is no proof whatever in the record that the blasting on the McKinley
extension was done by independent contractors. Only one witness testified upon this point, and while he stated that he
understood that a part of this work was done by contract, he could not say so of his own knowledge, and knew nothing of the
terms and conditions of the alleged contract, or of the relations of the alleged contractor to the defendant company. The fact
having been proven that detonating caps were more or less extensively employed on work done by the defendant company's
directions and on its behalf, we think that the company should have introduced the necessary evidence to support its contention if
it wished to avoid the not unreasonable inference that it was the owner of the material used in these operations and that it was
responsible for tortious or negligent acts of the agents employed therein, on the ground that this work had been intrusted
to independent contractors as to whose acts the maxim respondent superior should not be applied. If the company did not in fact
own or make use of caps such as those found on its premises, as intimated by counsel, it was a very simple matter for it to prove
that fact, and in the absence of such proof we think that the other evidence in the record sufficiently establishes the contrary, and
justifies the court in drawing the reasonable inference that the caps found on its premises were its property, and were left where
they were found by the company or some of its employees.
Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor, upon the provisions of article 1089
of the Civil Code read together with articles 1902, 1903, and 1908 of that code.
ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit acts and omissions or by those in
which any kind of fault or negligence occurs.
ART. 1902 A person who by an act or omission causes damage to another when there is fault or negligence shall be obliged
to repair the damage so done.
ART. 1903 The obligation imposed by the preceding article is demandable, not only for personal acts and omissions, but
also for those of the persons for whom they should be responsible.
The father, and on his death or incapacity the mother, is liable for the damages caused by the minors who live with them.
xxx xxx xxx
Owners or directors of an establishment or enterprise are equally liable for damages caused by their employees in the service
of the branches in which the latter may be employed or on account of their duties.
xxx xxx xxx
The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all the
diligence of a good father of a family to avoid the damage.
ART. 1908 The owners shall also be liable for the damage caused —
1 By the explosion of machines which may not have been cared for with due diligence, and for kindling of explosive
substances which may not have been placed in a safe and proper place.
Counsel for the defendant and appellant rests his appeal strictly upon his contention that the facts proven at the trial do not
established the liability of the defendant company under the provisions of these articles, and since we agree with this view of the
case, it is not necessary for us to consider the various questions as to form and the right of action (analogous to those raised in
the case of Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would, perhaps, be involved in a decision
affirming the judgment of the court below.
We agree with counsel for appellant that under the Civil Code, as under the generally accepted doctrine in the United States, the
plaintiff in an action such as that under consideration, in order to establish his right to a recovery, must establish by competent
evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant personally, or some person for whose acts it must respond, was guilty.
(3) The connection of cause and effect between the negligence and the damage.
Page 2 of 53 TORTS MEETING 2
These proposition are, of course, elementary, and do not admit of discussion, the real difficulty arising in the application of these
principles to the particular facts developed in the case under consideration.
It is clear that the accident could not have happened and not the fulminating caps been left exposed at the point where they were
found, or if their owner had exercised due care in keeping them in an appropriate place; but it is equally clear that plaintiff would
not have been injured had he not, for his own pleasure and convenience, entered upon the defendant's premises, and strolled
around thereon without the express permission of the defendant, and had he not picked up and carried away the property of the
defendant which he found on its premises, and had he not thereafter deliberately cut open one of the caps and applied a match to
its contents.
But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his entry upon defendant company's
premises, and the intervention of his action between the negligent act of defendant in leaving the caps exposed on its premises
and the accident which resulted in his injury should not be held to have contributed in any wise to the accident, which should be
deemed to be the direct result of defendant's negligence in leaving the caps exposed at the place where they were found by the
plaintiff, and this latter the proximate cause of the accident which occasioned the injuries sustained by him.
In support of his contention, counsel for plaintiff relies on the doctrine laid down in many of the courts of last resort in the
United States in the cases known as the "Torpedo" and "Turntable" cases, and the cases based thereon.
In a typical cases, the question involved has been whether a railroad company is liable for an injury received by an infant of
tender years, who from mere idle curiosity, or for the purposes of amusement, enters upon the railroad company's premises, at a
place where the railroad company knew, or had good reason to suppose, children would be likely to come, and there found
explosive signal torpedoes left unexposed by the railroad company's employees, one of which when carried away by the visitor,
exploded and injured him; or where such infant found upon the premises a dangerous machine, such as a turntable, left in such
condition as to make it probable that children in playing with it would be exposed to accident or injury therefrom and where the
infant did in fact suffer injury in playing with such machine.
In these, and in great variety of similar cases, the great weight of authority holds the owner of the premises liable.
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal question was whether a railroad
company was liable for in injury received by an infant while upon its premises, from idle curiosity, or for purposes of
amusement, if such injury was, under circumstances, attributable to the negligence of the company), the principles on which
these cases turn are that "while a railroad company is not bound to the same degree of care in regard to mere strangers who are
unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such strangers for
injuries arising from its negligence or from its tortious acts;" and that "the conduct of an infant of tender years is not to be judged
by the same rule which governs that of adult. While it is the general rule in regard to an adult that to entitle him to recover
damages for an injury resulting from the fault or negligence of another he must himself have been free from fault, such is not the
rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only,
and this is to be determined in each case by the circumstances of the case."
The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and sharply criticized in several state
courts, and the supreme court of Michigan in the case of Ryan vs. Towar (128 Mich., 463) formally repudiated and disapproved
the doctrine of the Turntable cases, especially that laid down in Railroad Company vs. Stout, in a very able decision wherein it
held, in the language of the syllabus: (1) That the owner of the land is not liable to trespassers thereon for injuries sustained by
them, not due to his wanton or willful acts; (2) that no exception to this rule exists in favor of children who are injured by
dangerous machinery naturally calculated to attract them to the premises; (3) that an invitation or license to cross the premises of
another can not be predicated on the mere fact that no steps have been taken to interfere with such practice; (4) that there is no
difference between children and adults as to the circumstances that will warrant the inference of an invitation or a license to enter
upon another's premises.
Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in by the courts in Connecticut and
Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass., 349). And the doctrine has been questioned in Wisconsin,
Pennsylvania, New Hampshire, and perhaps in other States.
On the other hand, many if not most of the courts of last resort in the United States, citing and approving the doctrine laid down
in England in the leading case of Lynch vs. Nurding (1 Q. B., 29, 35, 36), lay down the rule in these cases in accord with that
announced in the Railroad Company vs. Stout (supra), and the Supreme Court of the United States, in a unanimous opinion
delivered by Justice Harlan in the case of Union Pacific Railway Co. vs. McDonal and reconsidered the doctrine laid down in
Railroad Co. vs. Stout, and after an exhaustive and critical analysis and review of many of the adjudged cases, both English and
American, formally declared that it adhered "to the principles announced in the case of Railroad Co. vs. Stout."
In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as follows: The plaintiff, a boy 12 years of age,
out of curiosity and for his own pleasure, entered upon and visited the defendant's premises, without defendant's express
permission or invitation, and while there, was by accident injured by falling into a burning slack pile of whose existence he had
no knowledge, but which had been left by defendant on its premises without any fence around it or anything to give warning of
its dangerous condition, although defendant knew or had reason the interest or curiosity of passers-by. On these facts the court
held that the plaintiff could not be regarded as a mere trespasser, for whose safety and protection while on the premises in
question, against the unseen danger referred to, the defendant was under no obligation to make provision.
We quote at length from the discussion by the court of the application of the principles involved to the facts in that case, because
what is said there is strikingly applicable in the case at bar, and would seem to dispose of defendant's contention that, the
plaintiff in this case being a trespasser, the defendant company owed him no duty, and in no case could be held liable for injuries
which would not have resulted but for the entry of plaintiff on defendant's premises.
We adhere to the principles announced in Railroad Co. vs. Stout (supra). Applied to the case now before us, they require us
to hold that the defendant was guilty of negligence in leaving unguarded the slack pile, made by it in the vicinity of its depot
building. It could have forbidden all persons from coming to its coal mine for purposes merely of curiosity and pleasure. But
it did not do so. On the contrary, it permitted all, without regard to age, to visit its mine, and witness its operation. It knew
that the usual approach to the mine was by a narrow path skirting its slack pit, close to its depot building, at which the
people of the village, old and young, would often assemble. It knew that children were in the habit of frequenting that
locality and playing around the shaft house in the immediate vicinity of the slack pit. The slightest regard for the safety of
these children would have suggested that they were in danger from being so near a pit, beneath the surface of which was
concealed (except when snow, wind, or rain prevailed) a mass of burning coals into which a child might accidentally fall
and be burned to death. Under all the circumstances, the railroad company ought not to be heard to say that the plaintiff, a
mere lad, moved by curiosity to see the mine, in the vicinity of the slack pit, was a trespasser, to whom it owed no duty, or
for whose protection it was under no obligation to make provisions.
In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man dangerous traps, baited with flesh, in his own ground, so
near to a highway, or to the premises of another, that dogs passing along the highway, or kept in his neighbors premises,
would probably be attracted by their instinct into the traps, and in consequence of such act his neighbor's dogs be so
attracted and thereby injured, an action on the case would lie. "What difference," said Lord Ellenborough, C.J., "is there in
reason between drawing the animal into the trap by means of his instinct which he can not resist, and putting him there by
manual force?" What difference, in reason we may observe in this case, is there between an express license to the children of
this village to visit the defendant's coal mine, in the vicinity of its slack pile, and an implied license, resulting from the habit
of the defendant to permit them, without objection or warning, to do so at will, for purposes of curiosity or pleasure?
Referring it the case of Townsend vs. Wathen, Judge Thompson, in his work on the Law of Negligence, volume 1, page 305,
note, well says: "It would be a barbarous rule of law that would make the owner of land liable for setting a trap thereon,
baited with stinking meat, so that his neighbor's dog attracted by his natural instinct, might run into it and be killed, and
which would exempt him from liability for the consequence of leaving exposed and unguarded on his land a dangerous
machine, so that his neighbor's child attracted to it and tempted to intermeddle with it by instincts equally strong, might
thereby be killed or maimed for life."
Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of Powers vs. Harlow (53 Mich., 507),
said that (p. 515):
Children, wherever they go, must be expected to act upon childlike instincts and impulses; and others who are chargeable
with a duty of care and caution toward them must calculate upon this, and take precautions accordingly. If they leave
exposed to the observation of children anything which would be tempting to them, and which they in their immature
judgment might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken.
Page 3 of 53 TORTS MEETING 2
And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied invitation to visit the premises of another,
says:
In the case of young children, and other persons not fully sui juris, an implied license might sometimes arise when it would
not on behalf of others. Thus leaving a tempting thing for children to play with exposed, where they would be likely to
gather for that purpose, may be equivalent to an invitation to them to make use of it; and, perhaps, if one were to throw away
upon his premises, near the common way, things tempting to children, the same implication should arise. (Chap. 10, p. 303.)
The reasoning which led the Supreme Court of the United States to its conclusion in the cases of Railroad Co. vs. Stout (supra)
and Union Pacific Railroad Co. vs. McDonald (supra) is not less cogent and convincing in this jurisdiction than in that wherein
those cases originated. Children here are actuated by similar childish instincts and impulses. Drawn by curiosity and impelled by
the restless spirit of youth, boys here as well as there will usually be found whenever the public is permitted to congregate. The
movement of machinery, and indeed anything which arouses the attention of the young and inquiring mind, will draw them to
the neighborhood as inevitably as does the magnet draw the iron which comes within the range of its magnetic influence. The
owners of premises, therefore, whereon things attractive to children are exposed, or upon which the public are expressly or
impliedly permitted to enter or upon which the owner knows or ought to know children are likely to roam about for pastime and
in play, " must calculate upon this, and take precautions accordingly." In such cases the owner of the premises can not be heard
to say that because the child has entered upon his premises without his express permission he is a trespasser to whom the owner
owes no duty or obligation whatever. The owner's failure to take reasonable precautions to prevent the child from entering his
premises at a place where he knows or ought to know that children are accustomed to roam about of to which their childish
instincts and impulses are likely to attract them is at least equivalent to an implied license to enter, and where the child does
enter under such conditions the owner's failure to take reasonable precautions to guard the child against injury from unknown or
unseen dangers, placed upon such premises by the owner, is clearly a breach of duty, responsible, if the child is actually injured,
without other fault on its part than that it had entered on the premises of a stranger without his express invitation or permission.
To hold otherwise would be expose all the children in the community to unknown perils and unnecessary danger at the whim of
the owners or occupants of land upon which they might naturally and reasonably be expected to enter.
This conclusion is founded on reason, justice, and necessity, and neither is contention that a man has a right to do what will with
his own property or that children should be kept under the care of their parents or guardians, so as to prevent their entering on the
premises of others is of sufficient weight to put in doubt. In this jurisdiction as well as in the United States all private property is
acquired and held under the tacit condition that it shall not be so used as to injure the equal rights and interests of the community
(see U. S. vs. Toribio,1 No. 5060, decided January 26, 1910), and except as to infants of very tender years it would be absurd and
unreasonable in a community organized as is that in which we lived to hold that parents or guardian are guilty of negligence or
imprudence in every case wherein they permit growing boys and girls to leave the parental roof unattended, even if in the event
of accident to the child the negligence of the parent could in any event be imputed to the child so as to deprive it a right to
recover in such cases — a point which we neither discuss nor decide.
But while we hold that the entry of the plaintiff upon defendant's property without defendant's express invitation or permission
would not have relieved defendant from responsibility for injuries incurred there by plaintiff, without other fault on his part, if
such injury were attributable to the negligence of the defendant, we are of opinion that under all the circumstances of this case
the negligence of the defendant in leaving the caps exposed on its premises was not the proximate cause of the injury received by
the plaintiff, which therefore was not, properly speaking, "attributable to the negligence of the defendant," and, on the other
hand, we are satisfied that plaintiffs action in cutting open the detonating cap and putting match to its contents was the proximate
cause of the explosion and of the resultant injuries inflicted upon the plaintiff, and that the defendant, therefore is not civilly
responsible for the injuries thus incurred.
Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of plaintiff's youth the intervention of his
action between the negligent act of the defendant in leaving the caps exposed on its premises and the explosion which resulted in
his injury should not be held to have contributed in any wise to the accident; and it is because we can not agree with this
proposition, although we accept the doctrine of the Turntable and Torpedo cases, that we have thought proper to discuss and to
consider that doctrine at length in this decision. As was said in case of Railroad Co. vs. Stout (supra), "While it is the general
rule in regard to an adult that to entitle him to recover damages for an injury resulting from the fault or negligence of another he
must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required
of a child is according to his maturity and capacity only, and this is to be determined in each case by the circumstances of the
case." As we think we have shown, under the reasoning on which rests the doctrine of the Turntable and Torpedo cases, no fault
which would relieve defendant of responsibility for injuries resulting from its negligence can be attributed to the plaintiff, a well-
grown boy of 15 years of age, because of his entry upon defendant's uninclosed premises without express permission or
invitation' but it is wholly different question whether such youth can be said to have been free from fault when he willfully and
deliberately cut open the detonating cap, and placed a match to the contents, knowing, as he undoubtedly did, that his action
would result in an explosion. On this point, which must be determined by "the particular circumstances of this case," the doctrine
laid down in the Turntable and Torpedo cases lends us no direct aid, although it is worthy of observation that in all of the
"Torpedo" and analogous cases which our attention has been directed, the record discloses that the plaintiffs, in whose favor
judgments have been affirmed, were of such tender years that they were held not to have the capacity to understand the nature or
character of the explosive instruments which fell into their hands.
In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature both mentally and physically
than the average boy of his age; he had been to sea as a cabin boy; was able to earn P2.50 a day as a mechanical draftsman thirty
days after the injury was incurred; and the record discloses throughout that he was exceptionally well qualified to take care of
himself. The evidence of record leaves no room for doubt that, despite his denials on the witness stand, he well knew the
explosive character of the cap with which he was amusing himself. The series of experiments made by him in his attempt to
produce an explosion, as described by the little girl who was present, admit of no other explanation. His attempt to discharge the
cap by the use of electricity, followed by his efforts to explode it with a stone or a hammer, and the final success of his
endeavors brought about by the application of a match to the contents of the caps, show clearly that he knew what he was about.
Nor can there be any reasonable doubt that he had reason to anticipate that the explosion might be dangerous, in view of the fact
that the little girl, 9 years of age, who was within him at the time when he put the match to the contents of the cap, became
frightened and ran away.
True, he may not have known and probably did not know the precise nature of the explosion which might be expected from the
ignition of the contents of the cap, and of course he did not anticipate the resultant injuries which he incurred; but he well knew
that a more or less dangerous explosion might be expected from his act, and yet he willfully, recklessly, and knowingly produced
the explosion. It would be going far to say that "according to his maturity and capacity" he exercised such and "care and caution"
as might reasonably be required of him, or that defendant or anyone else should be held civilly responsible for injuries incurred
by him under such circumstances.
The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to understand and appreciate the
nature and consequences of his own acts, so as to make it negligence on his part to fail to exercise due care and precaution in the
commission of such acts; and indeed it would be impracticable and perhaps impossible so to do, for in the very nature of things
the question of negligence necessarily depends on the ability of the minor to understand the character of his own acts and their
consequences; and the age at which a minor can be said to have such ability will necessarily depends of his own acts and their
consequences; and at the age at which a minor can be said to have such ability will necessarily vary in accordance with the
varying nature of the infinite variety of acts which may be done by him. But some idea of the presumed capacity of infants under
the laws in force in these Islands may be gathered from an examination of the varying ages fixed by our laws at which minors
are conclusively presumed to be capable of exercising certain rights and incurring certain responsibilities, though it can not be
said that these provisions of law are of much practical assistance in cases such as that at bar, except so far as they illustrate the
rule that the capacity of a minor to become responsible for his own acts varies with the varying circumstances of each case.
Under the provisions of the Penal Code a minor over fifteen years of age is presumed to be capable of committing a crime and is
to held criminally responsible therefore, although the fact that he is less than eighteen years of age will be taken into
consideration as an extenuating circumstance (Penal Code, arts. 8 and 9). At 10 years of age a child may, under certain
circumstances, choose which parent it prefers to live with (Code of Civil Procedure, sec. 771). At 14 may petition for the
appointment of a guardian (Id., sec. 551), and may consent or refuse to be adopted (Id., sec. 765). And males of 14 and females
of 12 are capable of contracting a legal marriage (Civil Code, art. 83; G. O., No. 68, sec. 1).
We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be sensible of the danger to which he
exposed himself when he put the match to the contents of the cap; that he was sui juris in the sense that his age and his
experience qualified him to understand and appreciate the necessity for the exercise of that degree of caution which would have
avoided the injury which resulted from his own deliberate act; and that the injury incurred by him must be held to have been the
direct and immediate result of his own willful and reckless act, so that while it may be true that these injuries would not have
been incurred but for the negligence act of the defendant in leaving the caps exposed on its premises, nevertheless plaintiff's own
act was the proximate and principal cause of the accident which inflicted the injury.
The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur sentire. (Digest, book 50, tit. 17 rule
203.)
Page 4 of 53 TORTS MEETING 2
The Patidas contain the following provisions:
The just thing is that a man should suffer the damage which comes to him through his own fault, and that he can not demand
reparation therefor from another. (Law 25, tit. 5, Partida 3.)
And they even said that when a man received an injury through his own acts the grievance should be against himself and not
against another. (Law 2, tit. 7, Partida 2.)
According to ancient sages, when a man received an injury through his own acts the grievance should be against himself and
not against another. (Law 2, tit. 7 Partida 2.)
And while there does not appear to be anything in the Civil Code which expressly lays down the law touching contributory
negligence in this jurisdiction, nevertheless, the interpretation placed upon its provisions by the supreme court of Spain, and by
this court in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at bar
the right to recover damages from the defendant, in whole or in part, for the injuries sustained by him.
The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia Civil, 391), is directly in point. In that
case the court said:
According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a source of obligation when
between such negligence and the injury there exists the relation of cause and effect; but if the injury produced should not be
the result of acts or omissions of a third party, the latter has no obligation to repair the same, although such acts or omission
were imprudent or unlawful, and much less when it is shown that the immediate cause of the injury was the negligence of
the injured party himself.
The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or negligence is not sufficient
without proof that it, and no other cause, gave rise to the damage."
See also judgment of October 21, 1903.
To similar effect Scaevola, the learned Spanish writer, writing under that title in his Jurisprudencia del Codigo Civil (1902
Anuario, p. 455), commenting on the decision of March 7, 1902 of the Civil Code, fault or negligence gives rise to an
obligation when between it and the damage there exists the relation of cause and effect; but if the damage caused does not
arise from the acts or omissions of a third person, there is no obligation to make good upon the latter, even though such acts
or omissions be imprudent or illegal, and much less so when it is shown that the immediate cause of the damage has been
the recklessness of the injured party himself.
And again —
In accordance with the fundamental principle of proof, that the burden thereof is upon the plaintiff, it is apparent that it is
duty of him who shall claim damages to establish their existence. The decisions of April 9, 1896, and March 18, July, and
September 27, 1898, have especially supported the principle, the first setting forth in detail the necessary points of the proof,
which are two: An act or omission on the part of the person who is to be charged with the liability, and the production of the
damage by said act or omission.
This includes, by inference, the establishment of a relation of cause or effect between the act or omission and the damage;
the latter must be the direct result of one of the first two. As the decision of March 22, 1881, said, it is necessary that the
damages result immediately and directly from an act performed culpably and wrongfully; "necessarily presupposing a legal
ground for imputability." (Decision of October 29, 1887.)
 Negligence is not presumed, but must be proven by him who alleges it. (Scavoela, Jurisprudencia del Codigo Civil, vol. 6,
pp. 551-552.)

(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)

Finally we think the doctrine in this jurisdiction applicable to the case at bar was definitely settled in this court in the maturely
considered case of Rakes vs. Atlantic, Gulf and Pacific Co. (supra), wherein we held that while "There are many cases (personal
injury cases) was exonerated," on the ground that "the negligence of the plaintiff was the immediate cause of the casualty"
(decisions of the 15th of January, the 19th of February, and the 7th of March, 1902, stated in Alcubilla's Index of that year); none
of the cases decided by the supreme court of Spain "define the effect to be given the negligence of its causes, though not the
principal one, and we are left to seek the theory of the civil law in the practice of other countries;" and in such cases we declared
that law in this jurisdiction to require the application of "the principle of proportional damages," but expressly and definitely
denied the right of recovery when the acts of the injured party were the immediate causes of the accident.

The doctrine as laid down in that case is as follows:

Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the
accident. The test is simple. Distinction must be made between the accident and the injury, between the event itself, without
which there could have been no accident, and those acts of the victim not entering into it, independent of it, but contributing
to his own proper hurt. For instance, the cause of the accident under review was the displacement of the crosspiece or the
failure to replace it. This produces the event giving occasion for damages—that is, the sinking of the track and the sliding of
the iron rails. To this event, the act of the plaintiff in walking by the side of the car did not contribute, although it was an
element of the damage which came to himself. Had the crosspiece been out of place wholly or partly through his act or
omission of duty, that would have been one of the determining causes of the event or accident, for which he would have
been responsible. Where he contributes to the principal occurrence, as one of its determining factors, he can not recover.
Where, in conjunction with the occurrence, he contributes only to his own injury, he may recover the amount that the
defendant responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his own
imprudence.

We think it is quite clear that under the doctrine thus stated, the immediate cause of the explosion, the accident which resulted in
plaintiff's injury, was in his own act in putting a match to the contents of the cap, and that having "contributed to the principal
occurrence, as one of its determining factors, he can not recover."

We have not deemed it necessary to examine the effect of plaintiff's action in picking up upon defendant's premises the
detonating caps, the property of defendant, and carrying the relation of cause and effect between the negligent act or omission of
the defendant in leaving the caps exposed on its premises and the injuries inflicted upon the plaintiff by the explosion of one of
these caps. Under the doctrine of the Torpedo cases, such action on the part of an infant of very tender years would have no
effect in relieving defendant of responsibility, but whether in view of the well-known fact admitted in defendant's brief that
"boys are snappers-up of unconsidered trifles," a youth of the age and maturity of plaintiff should be deemed without fault in
picking up the caps in question under all the circumstances of this case, we neither discuss nor decide.

Twenty days after the date of this decision let judgment be entered reversing the judgment of the court below, without costs to
either party in this instance, and ten days thereafter let the record be returned to the court wherein it originated, where the
judgment will be entered in favor of the defendant for the costs in first instance and the complaint dismissed without day. So
ordered.

Page 5 of 53 TORTS MEETING 2

TORTS 10 It is doubtful whether contributory negligence can properly be imputed to the deceased, owing to his immature years and the
natural curiosity which a child would feel to do something out of the ordinary, and the mere fact that the deceased ignored the
caution of a companion of the age of 8 years does not, in our opinion, alter the case. But even supposing that contributory
G.R. No. L-35283 November 5, 1932
negligence could in some measure be properly imputed to the deceased, — a proposition upon which the members of the court
do not all agree, — yet such negligence would not be wholly fatal to the right of action in this case, not having been the
JULIAN DEL ROSARIO, plaintiff-appellant, determining cause of the accident. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil., 359.)
vs.
MANILA ELECTRIC COMPANY, defendant-appellee.
With respect to the amount of damages recoverable the majority of the members of this court are of the opinion that the plaintiff
is entitled to recover P250 for expenses incurred in connection with the death and burial of the boy. For the rest, in accordance
STREET, J.: with the precedents cited in Astudillo vs. Manila Electric Company (55 Phil., 427), the majority of the court are of the opinion
that the plaintiff should recover the sum of P1,000 as general damages for loss of service.
This action was instituted by Julian del Rosario for the purpose of recovering damages from the Manila Electric Company for
the death of his son, Alberto del Rosario, resulting from a shock from a wire used by the defendant for the transmission of The judgment appealed from is therefore reversed and the plaintiff will recover of the defendant the sum of P1,250, with costs of
electricity. The accident occurred on Dimas-Alang Street, in the municipality of Caloocan, Province of Rizal. Damages are both instances. So ordered.
claimed in the complaint in the amount of P30,000. Upon hearing the cause the trial court absolved the defendant, and the
plaintiff appealed.

Shortly after 2 o'clock on the afternoon of August 4, 1930, trouble developed in a wire used by the defendant on Dimas-Alang
Street for the purpose of conducting electricity used in lighting the City of Manila and its suburbs. Jose Noguera, who had charge
of a tienda nearby, first noticed that the wire was burning and its connections smoking. In a short while the wire parted and one
of the ends of the wire fell to the ground among some shrubbery close to the way. As soon as Noguera took cognizance of the
trouble, he stepped into a garage which was located nearby and asked Jose Soco, the timekeeper, to telephone the Malabon
station of the Manila Electric Company that an electrical wire was burning at that place. Soco transmitted the message at 2.25
p.m. and received answer from the station to the effect that they would send an inspector. From the testimony of the two
witnesses mentioned we are justified in the conclusion that information to the effect that the electric wire at the point mentioned
had developed trouble was received by the company's servant at the time stated. At the time that message was sent the wire had
not yet parted, but from the testimony of Demetrio Bingao, one of the witnesses for the defense, it is clear that the end of the
wire was on the ground shortly after 3 p.m.

At 4 p. m. the neighborhood school was dismissed and the children went home. Among these was Alberto del Rosario, of the age
of 9 years, who was a few paces ahead of two other boys, all members of the second grade in the public school. These other two
boys were Jose Salvador, of the age of 8, and Saturnino Endrina, of the age of 10. As the three neared the place where the wire
was down, Saturnino made a motion as if it touch it. His companion, Jose Salvador, happened to be the son of an electrician and
his father had cautioned him never to touch a broken electrical wire, as it might have a current. Jose therefore stopped Saturnino,
telling him that the wire might be charged. Saturnino yielded to this admonition and desisted from his design, but Alberto del
Rosario, who was somewhat ahead, said, I have for some time been in the habit of touching wires ("Yo desde hace tiempo cojo
alambres"). Jose Salvador rejoined that he should into touch wires as they carry a current, but Alberto, no doubt feeling that he
was challenged in the matter, put out his index finger and touch the wire. He immediately fell face downwards, exclaiming "Ay!
madre". The end of the wire remained in contact with his body which fell near the post. A crowd soon collected, and some one
cut the wire and disengaged the body. Upon being taken to St. Luke's Hospital the child was pronounced dead.

The wire was an ordinary number 6 triple braid weather proof wire, such as is commonly used by the defendant company for the
purpose of conducting electricity for lighting. The wire was cased in the usual covering, but this had been burned off for some
distance from the point where the wire parted. The engineer of the company says that it was customary for the company to make
a special inspection of these wires at least once in six months, and that all of the company's inspectors were required in their
daily rounds to keep a lookout for trouble of this kind. There is nothing in the record indicating any particular cause for the
parting of the wire.lawphil.net

We are of the opinion that the presumption of negligence on the part of the company from the breakage of this wire has not been
overcome, and the defendant is in our opinion responsible for the accident. Furthermore, when notice was received at the
Malabon station at 2.25 p. m., somebody should have been dispatched to the scene of the trouble at once, or other measures
taken to guard the point of danger; but more than an hour and a half passed before anyone representing the company appeared on
the scene, and in the meantime this child had been claimed as a victim.

Page 6 of 53 TORTS MEETING 2

TORTS 11
G.R. No. L-10563 March 2, 1916
THE UNITED STATES, plaintiff-appellee,
vs.
ANTONIO BONIFACIO, defendant-appellant.
CARSON, J.:
The appellant in this case was charged in the court below with homicidio por imprudencia temeraria (homicide committed with
reckless negligence), and was convicted of homicidio committed with simple negligence and sentenced to four months and one
day of arresto mayor and to pay the costs of the proceedings.
The information charges the commission of the offense as follows:
On or about the 31st day of October of the present year, 1913, in the barrio of Santa Rita of the municipality of Batangas,
Batangas, the accused, being an engineer and while conducting the freight train which was going to the municipality of
Bauan, at about 10 o'clock in the morning of the said day saw that Eligio Castillo, a deaf-mute, was traveling along the
railroad track, and as the said Castillo did not get off of the said track in spite of the whistle or warnings given by the
accused, the accused did maliciously and criminally cause the said train to run over the said Castillo, thereby killing him
instantly; an act committed with violation of law.
On the 31st of October, 1913, Eligio Castillo, a deaf-mute, was run down and killed, while attempting to cross the railroad track
in the barrio of Santa Rita, Batangas, by an engine on which the accused was employed as engineer. The deaf-mute stepped out
on the track from an adjoining field shortly before the accident, walked along one side of the track for some little distance and
was killed as he attempted, for some unknown reason, to cross over to the other side.
When the accused engineer first saw the deceased, he was walking near the track, in the same direction as that in which the train
was running. The train, a heavy freight train, had just rounded a curve, and the man in front was about 175 meters ahead of the
engine. The engineer immediately blew his whistle twice, and noticing, a few moments afterwards, that the man in front did not
respond to the warning by stepping aside from the track, he tried to slow down the engine, but did not succeed in stopping in
time to avoid running down the pedestrian. He did not attempt to stop his engine when he first saw the man walking along the
side of the track; but he claims that he did all in his power to slow down a few moments afterwards, that is to say after he had
blown his whistle without apparently attracting the attention of the pedestrian, who, about that time, turned and attempted to
cross the track.
The only evidence as to the rate of speed at which the train was running at the time of the accident was the testimony of the
accused himself, who said that his indicator showed that he was travelling at the rate of 35 kilometers an hour, the maximum
speed permitted under the railroad regulations for freight trains on that road.
There was a heavy decline in the track from the turn at the curve to a point some distance beyond the place where the accident
took place, and the undisputed evidence discloses that a heavy freight train running at the rate of 35 miles an hour could not be
brought to a stop on that decline in much less than one hundred and fifty meters.
We think that the meter statement of facts, as disclosed by the undisputed evidence of record, sufficiently and conclusive
demonstrates that the death of the deaf-mute was the result of a regrettable accident, which was unavoidable so far as this
accused was concerned.
It has been suggested that, had the accused applied his brakes when he first saw the man walking near the track, after his engine
rounded the curve, he might have stopped the train in time to have avoided the accident, as it is admitted that the distance from
the curve to the point where the accident occurred was about 175 meters.
Page 7 of 53 TORTS MEETING 2
But there is no obligation on an engine driver to stop, or even to slow down his engine, when he sees an adult pedestrian
standing or walking on or near the track, unless there is something in the appearance or conduct of the person on foot which
would cause a prudent man to anticipate the possibility that such person could not, or would not avoid the possibility of danger
by stepping aside. Ordinarily, all that may properly be required of an engine driver under such circumstances is that he give
warning of his approach, by blowing his whistle or ringing his bell until he is assured that the attention of the pedestrian has been
attracted to the oncoming train.
Of course it is the duty of an engine driver to adopt every measure in his power to avoid the infliction of injury upon any person
who may happen to be on the track in front of his engine, and to slow down, or stop altogether if that be necessary, should he
have reason to believe that only by doing so can an accident be averted.
But an engine driver may fairly assume that all persons walking or standing on or near the railroad track, except children of
tender years, are aware of the danger to which they are exposed; and that they will take reasonable precautions to avoid accident,
by looking and listening for the approach of trains, and stepping out of the way of danger when their attention is directed to an
oncoming train.
Any other rule would render it impracticable to operate railroads so as to secure the expeditious transportation of passengers and
freight which the public interest demands. If engine drivers were required to slow down or stop their trains every time they see a
pedestrian on or near the track of the railroad it might well become impossible for them to maintain a reasonable rate of speed.
As a result the general traveling public would be exposed to great inconvenience and delay which may be, and is readily avoided
by requiring all persons approaching a railroad track, to take reasonable precautions against danger from trains running at high
speed.
There was nothing in the appearance or conduct of the victim of the accident in the cast at bar which would have warned the
accused engine driver that the man walking along the side of the tract was a deaf-mute, and that despite the blowing of the
whistle and the noise of the engine he was unconscious of his danger. It was not until the pedestrian attempted to cross the track,
just in front of the train, that the accused had any reason to believe that his warning signals had not been heard, and by that time
it was too late to avoid the accident. Under all the circumstances, we are satisfied that the accused was without fault; and that the
accident must be attributed wholly to the reckless negligence of the deaf-mute, in walking on the track without taking the
necessary precautions to avoid danger from a train approaching him from behind.
The trial judge, although he was satisfied that the accused was not guilty of reckless negligence, held that he was guilty of
homicide through simple negligence, accompanied by a breach of speed regulations, and imposed the penalty prescribed for that
offense in article 568 of the Penal Code.
The only evidence as to the speed at which the train was running at the time of the accident was the testimony of the accused
himself, who said that before the accident occurred his indicator showed that he was running at the rate of 35 kilometers an hour,
the maximum speed authorized under the railroad regulations. From this statement of the accused, taken together with the
evidence disclosing that the train was running on a down grade at the time when the accident occurred, the trial judge inferred
that the train must have been running at more than 35 miles an hour at that moment, that is to say at a speed in excess of that
allowed under the railroad regulations.
We are of opinion, however, that the evidence does not sustain a finding, beyond a reasonable doubt, that the train was running
at more than 35 miles an hour at the time when the accident occurred. We think that the statement of the accused engineer that
the indicator or his engine showed that he was running at 35 miles an hour before the accident referred to the time immediately
preceding the accident. Even if it were true, as the trial judge inferred from his evidence, that the accused looked at the indicator
several seconds before the accident, and before the train entered on the down-grade some 175 yards from the place at which it
occurred, it does not necessarily follow that the speed of travel was increased thereafter beyond the limit prescribed by
regulations. That would depend to some extent on the steam pressure maintained on the engine, and perhaps upon other factors
not developed in the record.
Mere conjecture, and inferences unsupported by satisfactory evidence, are not sufficient to establish a material finding of fact
upon which a finding of guilt, beyond a reasonable doubt, can be sustained.
Moreover, even if it were true that the train was running at a speed slightly in excess of the limit prescribed by regulations, just The evidence of record in the case at bar clearly and satisfactorily discloses that even if the train was running at a speed slightly
before the accident took place, that fact would not justify or require the imposition of the penalty prescribed in article 568 of the in excess of the maximum speed prescribed in the regulations, that fact had no causal relation to the accident and in no wise
Criminal Code, it affirmatively appearing that the slight excess of speed had no possible causal relation to the accident. contributed to it.

Granting it to be true, as found by the trial judge, that the train had gained some small addition in speed beyond the authorized The judgment convicting and sentencing the appellant in this case should be reversed, and the accused acquitted of the offense
rate of travel, as a result of the fact that it was running on down grade for about one hundred meters before the accident occurred, with which he is charged in the information, and his bail bond exonerated, with the costs of both instances de officio. So ordered.
it affirmatively appears from the statement of facts set forth above, that, under all the circumstances, the accident must have
taken place whether the speed had been slightly under rather than slightly over the limit prescribed by regulation, and that it was
due wholly to the negligent conduct of the deceased. The provisions of article 568 of the Criminal Code under which the accused
was convicted are as follows:

xxx xxx xxx

Any person who, while violating any regulation, shall, by any act of imprudence or negligence not amounting to reckless
imprudence, commit an offense, shall suffer the penalty of arresto mayor in its medium and maximum degrees.

This does not mean that in every case in which one accidentally injures or kills another he is criminally liable therefor, if at the
moment he happens to be guilty of a violation of some petty regulation (reglamento). The injury or death must have resulted
from some "imprudence or negligence" (imprudencia o negligencia) on his part. True it need only be slight negligence, if
accompanied by a violation of the regulations, but the relation of cause and effect must exist between the negligence or
imprudence of the accused and the injury inflicted. If it appears that the injury in no wise resulted from the violation of the
regulations, or the negligent conduct of the accused, he incurs no criminal liability under the provisions of this article.

Viada, in his commentaries on this article of the Penal Code (vol. 3, p. 685), sets out the following question and answer which
clearly discloses that a conviction thereunder cannot be maintained, unless there was culpable negligence in the violation of a
duly prescribed regulation; and unless, further, the latter was the proximate and immediate cause of the injury inflicted:

Question No. 17. — A pharmacist left his store forgetting and leaving behind the keys to the case where the most powerful
drugs were kept. During his absence his clerk filled a prescription which he believed was duly made out by a physician but
which, in fact, was signed by an unauthorized person. The prescription called for certain substances which were afterwards
employed to procure an abortion. These substances, according to a medical report, were of a poisonous and extremely
powerful nature such as should be most carefully safeguarded and only expended after ratification of the prescription in
accordance with article 20 of the ordinance relating to the practice of pharmacy. Under these circumstances would it be
proper to consider the pharmacist as guilty of the offense of simple imprudence with violation of the regulation of the said
faculty? The Supreme Court has decided this question in the negative on the ground that the fact of the pharmacist having
forgotten and left behind, during the short time he was out walking, the key of the closet in which in conformity with the
pharmacy ordinances, he kept the most powerful and active drugs, properly considered, does not constitute the culpable
negligence referred to in article 581 of the Penal Code, nor was it the proximate and immediate cause of the said
prescription being filled in his store without being properly ratified by the physician who signed it, as required by the said
ordinances. The Court held, therefore, that the trial court committed an error of law in holding the appellant liable. (Decision
of December 23, 19881; Official Gazette of April 14, 1882.)

See also the recent decision of the Tribunal Supremo de España dated July 11, 1906, wherein the doctrine is reaffirmed in a case
involving the alleged negligence of certain railroad employees in handling railroad cars.

Doubtless a presumption of negligence will frequently arise from the very fact that an accident occurred at the time when the
accused was violating a regulation; especially if the regulation has for its object the avoidance of such an accident. But this
presumption may, of course, be rebutted in criminal as well as in civil cases by competent evidence. In the Federal Court of the
United States the rule is stated as follows:

Where a ship at the time of collision is in actual violation of a statutory rule intended to prevent collisions the burden is upon
her of showing that her fault could not have been a contributory cause of the collision. (7 Cyc., 370 and numerous other
cases there cited.)

Page 8 of 53 TORTS MEETING 2

TORTS 12
G.R. No. L-32611 November 3, 1930
CULION ICE, FISH AND ELECTRIC CO., INC., plaintiff-appellee,
vs.
PHILIPPINE MOTORS CORPORATION, defendant-appellant.
STREET, J.:
This action was instituted in the Court of First Instance of Manila by the Culion Ice, Fish & Electric Co., Inc., for the purpose of
recovering from the Philippine Motors Corporation the sum of P11,350, with interest and costs. Upon hearing the cause the trial
court gave judgment in favor of the plaintiff to recover of the defendant the sum of P9,850, with interest at 6 per centum per
annum from March 24,1927, the date of the filing of the complaint, until satisfaction of the judgment, with costs. From this
judgment the defendant appealed.
The plaintiff and defendant are domestic corporations; and at the time of the incident with which we are here concerned, H.D.
Cranston was the representative of the plaintiff in the City of Manila. At the same time the plaintiff was the registered owner of
the motor schooner Gwendoline, which was used in the fishing trade in the Philippine Islands. In January, 1925, Cranston
decided, if practicable, to have the engine on the Gwendoline changed from a gasoline consumer to a crude oil burner, expecting
thereby to effect economy in the cost of running the boat. He therefore made known his desire to McLeod & Co., a firm dealing
in tractors, and was told by Mc Kellar, of said company, that he might make inquiries of the Philippine Motors Corporations,
which had its office on Ongpin Street, in the City of Manila. Cranston accordingly repaired to the office of the Philippine Motors
Corporation and had a conference with C.E. Quest, its manager, who agreed to do the job, with the understanding that payment
should be made upon completion of the work.
The Philippine Motors Corporation was at this time engaged in business as an automobile agency, but, under its charter, it had
authority to deal in all sorts of machinery engines and motors, as well as to build, operate, buy and sell the same and the
equipment therof. Quest, as general manager, had full charge of the corporations in all its branches.
As a result of the aforesaid interview, Quest, in company with Cranston, visited the Gwendoline while it lay at anchor in the
Pasig River, and the work of effecting the change in the engine was begun and conducted under the supervision of Quest, chiefly
by a mechanic whom Quest took with him to the boat. In this work Quest had the assistance of the members of the crew of
the Gwendoline, who had been directed by Cranston to place themselves under Quest's directions.
Upon preliminary inspection of the engine, Quest came to the conclusion that the principal thing necessary to accomplish the end
in view was to install a new carburetor, and a Zenith carburetor was chosen as the one most adapted to the purpose. After this
appliance had been installed, the engine was tried with gasoline as a fuel, supplied from the tank already in use. The result of this
experiment was satisfactory. The next problem was to introduce into the carburetor the baser fuel, consisting of a low grade of
oil mixed with distillate. For this purpose a temporary tank to contain the mixture was placed on deck above and at a short
distance from the compartment covering the engine. This tank was connected with the carburetor by a piece of tubing, which
was apparently not well fitted at the point where it was connected with the tank. Owing to this fact the fuel mixture leaked from
the tank and dripped sown into the engine compartment. The new fuel line and that already in use between the gasoline tank and
carburetor were so fixed that it was possible to change from the gasoline fuel to the mixed fuel. The purpose of this arrangement
was to enable the operator to start the engine on gasoline and then, after the engine had been operating for a few moments, to
switch to the new fuel supply. lawphil.net
In the course of the preliminary work upon the carburetor and its connections, it was observed that the carburetor was flooding,
and that the gasoline, or other fuel, was trickling freely from the lower part to the carburetor to the floor. This fact was called to
Quest's attention, but he appeared to think lightly of the matter and said that, when the engine had gotten to running well, the
flooding would disappear.
Page 9 of 53 TORTS MEETING 2
After preliminary experiments and adjustments had been made the boat was taken out into the bay for a trial run at about 5 p.m.
or a little later, on the evening of January 30,1925. The first part of the course was covered without any untoward development,
other than he fact that the engine stopped a few times, owing no doubt to the use of an improper mixture of fuel. In the course of
the trial Quest remained outside of the engine compartment and occupied himself with making distillate, with a view to
ascertaining what proportion of the two elements would give best results in the engine.
As the boat was coming in from this run, at about 7:30 p.m. and when passing near Cavite, the engine stopped, and connection
again had to be made with the gasoline line to get a new start. After this had been done the mechanic, or engineer, switched to
the tube connecting with the new mixture. A moment later a back fire occurred in the cylinder chamber. This caused a flame to
shoot back into the carburetor, and instantly the carburetor and adjacent parts were covered with a mass of flames, which the
members of the crew were unable to subdue. They were therefore compelled, as the fire spread, to take to a boat, and their
escape was safely effected, but the Gwendoline was reduced to a mere hulk. The salvage from, the wreck, when sold, brought
only the sum of P150. The value of the boat, before the accident occured, as the court found, was P10,000.
A study of the testimony lead us to the conclusion that the loss of this boat was chargeable to the negligence and lack of skill of
Quest. The temporary tank in which the mixture was prepared was apparently at too great an elevation from the carburetor, with
the result that when the fuel line was opened, the hydrostatic pressure in the carburetor was greater than the delicate parts of the
carburetor could sustain. This was no doubt the cause of the flooding of the carburetor; and the result was that; when the back
fire occurred, the external parts of the carburetor, already saturated with gasoline, burst into flames, whence the fire was quickly
communicated to the highly inflammable material near-by. Ordinarily a back fire from an engine would not be followed by any
disaster, but in this case the leak along the pipe line and the flooding of the carburetor had created a dangerous situation, which a
prudent mechanic, versed in repairs of this nature, would have taken precautions to avoid. The back fire may have been due
either to the fact that the spark was too advanced or the fuel improperly mixed.
In this connection it must be remembered that when a person holds himself out as being competent to do things requiring
professional skill, he will be held liable for negligence if he fails to exhibit the care and skill of one ordinarily skilled in the
particular work which he attempts to do. The proof shows that Quest had had ample experience in fixing the engines of
automobiles and tractors, but it does not appear that he was experienced in the doing of similar work on boats. For this reason,
possibly the dripping of the mixture form the tank on deck and the flooding of the carburetor did not convey to his mind an
adequate impression of the danger of fire. But a person skilled in that particular sort of work would, we think have been
sufficiently warned from those circumstances to cause him to take greater and adequate precautions against the danger. In other
words Quest did not use the skill that would have been exhibited by one ordinarily expert in repairing gasoline engines on boats.
There was here, in our opinion, on the part of Quest, a blameworthy antecedent inadvertence to possible harm, and this
constitutes negligence. The burning of the Gwendoline may be said to have resulted from accident, but this accident was in no
sense an unavoidable accident. It would not have occured but for Quest's carelessness or lack of skill. The test of liability is not
whether the injury was accidental in a sense, but whether Quest was free from blame.
We therefore see no escape from the conclusion that this accident is chargeable to lack of skill or negligence in effecting the
changes which Quest undertook to accomplish; and even supposing that our theory as to the exact manner in which the accident
occurred might appear to be in some respects incorrect, yet the origin of the fire in not so inscrutable as to enable us to say that it
was casus fortuitus.
The trial judge seems to have proceeded on the idea that, inasmuch as Quest had control of the Gwendoline during the
experimental run, the defendant corporation was in the position of a bailee and that, as a consequence, the burden of proof was
on the defendant to exculpate itself from responsibility by proving that the accident was not due to the fault of Quest. We are
unable to accede to this point of view. Certainly, Quest was not in charge of the navigation of the boat on this trial run. His
employment contemplated the installation of new parts in the engine only, and it seems rather strained to hold that the defendant
corporation had thereby become bailee of the boat. As a rule workmen who make repairs on a ship in its owner's yard, or a
mechanic who repairs a coach without taking it to his shop, are not bailees, and their rights and liabilities are determined by the
general rules of law, under their contract. The true bailee acquires possession and what is usually spoken of as special property in
the chattel bailed. As a consequence of such possession and special property, the bailee is given a lien for his compensation.
These ideas seem to be incompatible with the situation now under consideration. But though defendant cannot be held liable in
the supposition that the burden of proof had not been sustained by it in disproving the negligence of its manager, we are
nevertheless of the opinion that the proof shows by a clear preponderance that the accident to the Gwendolineand the damages
resulting therefrom are chargeable to the negligence or lack of skill of Quest.
This action was instituted about two years after the accident in question had occured, and after Quest had ceased to be manager
of the defendant corporation and had gone back to the United States. Upon these facts, the defendant bases the contention that
the action should be considered stale. It is sufficient reply to say that the action was brought within the period limited by the
statute of limitations and the situation is not one where the defense of laches can be properly invoked.

It results that the judgment appealed from, awarding damages to the plaintiff in the amount of P9,850, with interest, must be
affirmed; and it is so ordered, with costs against the appellant.

Page 10 of 53 TORTS MEETING 2

TORTS 13 "The complaint against defendants LRTA and Rodolfo Roman are dismissed for lack of merit.

G.R. No. 145804 February 6, 2003 "The compulsory counterclaim of LRTA and Roman are likewise dismissed."1

LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, petitioners, Prudent appealed to the Court of Appeals. On 27 August 2000, the appellate court promulgated its now assailed decision
vs. exonerating Prudent from any liability for the death of Nicanor Navidad and, instead, holding the LRTA and Roman jointly and
MARJORIE NAVIDAD, Heirs of the Late NICANOR NAVIDAD & PRUDENT SECURITY AGENCY, respondents. severally liable thusly:

DECISION "WHEREFORE, the assailed judgment is hereby MODIFIED, by exonerating the appellants from any liability for the death of
Nicanor Navidad, Jr. Instead, appellees Rodolfo Roman and the Light Rail Transit Authority (LRTA) are held liable for his
death and are hereby directed to pay jointly and severally to the plaintiffs-appellees, the following amounts:
VITUG, J.:

a) P44,830.00 as actual damages;

The case before the Court is an appeal from the decision and resolution of the Court of Appeals, promulgated on 27 April 2000
and 10 October 2000, respectively, in CA-G.R. CV No. 60720, entitled "Marjorie Navidad and Heirs of the Late Nicanor
Navidad vs. Rodolfo Roman, et. al.," which has modified the decision of 11 August 1998 of the Regional Trial Court, Branch b) P50,000.00 as nominal damages;
266, Pasig City, exonerating Prudent Security Agency (Prudent) from liability and finding Light Rail Transit Authority (LRTA)
and Rodolfo Roman liable for damages on account of the death of Nicanor Navidad.
c) P50,000.00 as moral damages;

On 14 October 1993, about half an hour past seven o’clock in the evening, Nicanor Navidad, then drunk, entered the EDSA LRT
d) P50,000.00 as indemnity for the death of the deceased; and
station after purchasing a "token" (representing payment of the fare). While Navidad was standing on the platform near the LRT
tracks, Junelito Escartin, the security guard assigned to the area approached Navidad. A misunderstanding or an altercation
between the two apparently ensued that led to a fist fight. No evidence, however, was adduced to indicate how the fight started e) P20,000.00 as and for attorney’s fees."2
or who, between the two, delivered the first blow or how Navidad later fell on the LRT tracks. At the exact moment that Navidad
fell, an LRT train, operated by petitioner Rodolfo Roman, was coming in. Navidad was struck by the moving train, and he was
killed instantaneously. The appellate court ratiocinated that while the deceased might not have then as yet boarded the train, a contract of carriage
theretofore had already existed when the victim entered the place where passengers were supposed to be after paying the fare
and getting the corresponding token therefor. In exempting Prudent from liability, the court stressed that there was nothing to
On 08 December 1994, the widow of Nicanor, herein respondent Marjorie Navidad, along with her children, filed a complaint link the security agency to the death of Navidad. It said that Navidad failed to show that Escartin inflicted fist blows upon the
for damages against Junelito Escartin, Rodolfo Roman, the LRTA, the Metro Transit Organization, Inc. (Metro Transit), and victim and the evidence merely established the fact of death of Navidad by reason of his having been hit by the train owned and
Prudent for the death of her husband. LRTA and Roman filed a counterclaim against Navidad and a cross-claim against Escartin managed by the LRTA and operated at the time by Roman. The appellate court faulted petitioners for their failure to present
and Prudent. Prudent, in its answer, denied liability and averred that it had exercised due diligence in the selection and expert evidence to establish the fact that the application of emergency brakes could not have stopped the train.
supervision of its security guards.
The appellate court denied petitioners’ motion for reconsideration in its resolution of 10 October 2000.
The LRTA and Roman presented their evidence while Prudent and Escartin, instead of presenting evidence, filed a demurrer
contending that Navidad had failed to prove that Escartin was negligent in his assigned task. On 11 August 1998, the trial court
rendered its decision; it adjudged: In their present recourse, petitioners recite alleged errors on the part of the appellate court; viz:

"WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendants Prudent Security and Junelito "I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY DISREGARDING THE FINDINGS OF FACTS BY
Escartin ordering the latter to pay jointly and severally the plaintiffs the following: THE TRIAL COURT

"a) 1) Actual damages of P44,830.00; "II. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT PETITIONERS ARE LIABLE FOR
THE DEATH OF NICANOR NAVIDAD, JR.

2) Compensatory damages of P443,520.00;

"III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT RODOLFO ROMAN IS AN
EMPLOYEE OF LRTA."3
3) Indemnity for the death of Nicanor Navidad in the sum of P50,000.00;
Petitioners would contend that the appellate court ignored the evidence and the factual findings of the trial court by holding them
"b) Moral damages of P50,000.00; liable on the basis of a sweeping conclusion that the presumption of negligence on the part of a common carrier was not
overcome. Petitioners would insist that Escartin’s assault upon Navidad, which caused the latter to fall on the tracks, was an act
of a stranger that could not have been foreseen or prevented. The LRTA would add that the appellate court’s conclusion on the
"c) Attorney’s fees of P20,000;
existence of an employer-employee relationship between Roman and LRTA lacked basis because Roman himself had testified
being an employee of Metro Transit and not of the LRTA.
"d) Costs of suit.

Page 11 of 53 TORTS MEETING 2

Respondents, supporting the decision of the appellate court, contended that a contract of carriage was deemed created from the
moment Navidad paid the fare at the LRT station and entered the premises of the latter, entitling Navidad to all the rights and
protection under a contractual relation, and that the appellate court had correctly held LRTA and Roman liable for the death of
Navidad in failing to exercise extraordinary diligence imposed upon a common carrier.
Law and jurisprudence dictate that a common carrier, both from the nature of its business and for reasons of public policy, is
burdened with the duty of exercising utmost diligence in ensuring the safety of passengers.4 The Civil Code, governing the
liability of a common carrier for death of or injury to its passengers, provides:
"Article 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using
the utmost diligence of very cautious persons, with a due regard for all the circumstances.
constitutes a breach of contract would have itself constituted the source of a quasi-delictual liability had no contract existed
between the parties, the contract can be said to have been breached by tort, thereby allowing the rules on tort to apply. 17
Regrettably for LRT, as well as perhaps the surviving spouse and heirs of the late Nicanor Navidad, this Court is concluded by
the factual finding of the Court of Appeals that "there is nothing to link (Prudent) to the death of Nicanor (Navidad), for the
reason that the negligence of its employee, Escartin, has not been duly proven x x x." This finding of the appellate court is not
without substantial justification in our own review of the records of the case.
There being, similarly, no showing that petitioner Rodolfo Roman himself is guilty of any culpable act or omission, he must also
be absolved from liability. Needless to say, the contractual tie between the LRT and Navidad is not itself a juridical relation
between the latter and Roman; thus, Roman can be made liable only for his own fault or negligence.

"Article 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed extraordinary diligence as prescribed in articles 1733 and 1755."
"Article 1759. Common carriers are liable for the death of or injuries to passengers through the negligence or willful acts of the
former’s employees, although such employees may have acted beyond the scope of their authority or in violation of the orders of
the common carriers.
"This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a family
in the selection and supervision of their employees."
The award of nominal damages in addition to actual damages is untenable. Nominal damages are adjudicated in order that a right
of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of
indemnifying the plaintiff for any loss suffered by him. 18 It is an established rule that nominal damages cannot co-exist with
compensatory damages.19
WHEREFORE, the assailed decision of the appellate court is AFFIRMED with MODIFICATION but only in that (a) the award
of nominal damages is DELETED and (b) petitioner Rodolfo Roman is absolved from liability. No costs.
SO ORDERED.

"Article 1763. A common carrier is responsible for injuries suffered by a passenger on account of the willful acts or negligence
of other passengers or of strangers, if the common carrier’s employees through the exercise of the diligence of a good father of a
family could have prevented or stopped the act or omission."

The law requires common carriers to carry passengers safely using the utmost diligence of very cautious persons with due regard
for all circumstances.5 Such duty of a common carrier to provide safety to its passengers so obligates it not only during the
course of the trip but for so long as the passengers are within its premises and where they ought to be in pursuance to the contract
of carriage.6 The statutory provisions render a common carrier liable for death of or injury to passengers (a) through the
negligence or wilful acts of its employees or b) on account of wilful acts or negligence of other passengers or of strangers if the
common carrier’s employees through the exercise of due diligence could have prevented or stopped the act or omission. 7 In case
of such death or injury, a carrier is presumed to have been at fault or been negligent, and 8 by simple proof of injury, the
passenger is relieved of the duty to still establish the fault or negligence of the carrier or of its employees and the burden shifts
upon the carrier to prove that the injury is due to an unforeseen event or to force majeure. 9 In the absence of satisfactory
explanation by the carrier on how the accident occurred, which petitioners, according to the appellate court, have failed to show,
the presumption would be that it has been at fault,10 an exception from the general rule that negligence must be proved.11

The foundation of LRTA’s liability is the contract of carriage and its obligation to indemnify the victim arises from the breach of
that contract by reason of its failure to exercise the high diligence required of the common carrier. In the discharge of its
commitment to ensure the safety of passengers, a carrier may choose to hire its own employees or avail itself of the services of
an outsider or an independent firm to undertake the task. In either case, the common carrier is not relieved of its responsibilities
under the contract of carriage.

Should Prudent be made likewise liable? If at all, that liability could only be for tort under the provisions of Article 2176 12 and
related provisions, in conjunction with Article 2180,13 of the Civil Code. The premise, however, for the employer’s liability is
negligence or fault on the part of the employee. Once such fault is established, the employer can then be made liable on the basis
of the presumption juris tantum that the employer failed to exercise diligentissimi patris families in the selection and supervision
of its employees. The liability is primary and can only be negated by showing due diligence in the selection and supervision of
the employee, a factual matter that has not been shown. Absent such a showing, one might ask further, how then must the
liability of the common carrier, on the one hand, and an independent contractor, on the other hand, be described? It would be
solidary. A contractual obligation can be breached by tort and when the same act or omission causes the injury, one resulting in
culpa contractual and the other in culpa aquiliana, Article 219414 of the Civil Code can well apply.15 In fine, a liability for tort
may arise even under a contract, where tort is that which breaches the contract. 16 Stated differently, when an act which
Page 12 of 53 TORTS MEETING 2
TORTS 14 his head, instantaneously killing him. Alano fled the scene on board the train, and did not wait for the police investigator to
arrive.
G.R. No. 157917 August 29, 2012
Devastated by the early and unexpected death of Aaron, the Zarates commenced this action for damages against Alfaro, the
1 Pereñas, PNR and Alano. The Pereñas and PNR filed their respective answers, with cross-claims against each other, but Alfaro
SPOUSES TEODORO and NANETTE PERENA, Petitioners,
could not be served with summons.
vs.
SPOUSES TERESITA PHILIPPINE NICOLAS and L. ZARATE, NATIONAL RAILWAYS, and the COURT OF
APPEALS Respondents. At the pre-trial, the parties stipulated on the facts and issues, viz:

DECISION A. FACTS:

BERSAMIN, J.: (1) That spouses Zarate were the legitimate parents of Aaron John L. Zarate;

The operator of a. school bus service is a common carrier in the eyes of the law. He is bound to observe extraordinary diligence
in the conduct of his business. He is presumed to be negligent when death occurs to a passenger. His liability may include
indemnity for loss of earning capacity even if the deceased passenger may only be an unemployed high school student at the
time of the accident.
The Case
By petition for review on certiorari, Spouses Teodoro and Nanette Perefia (Perefias) appeal the adverse decision promulgated on
November 13, 2002, by which the Court of Appeals (CA) affirmed with modification the decision rendered on December 3,
1999 by the Regional Trial Court (RTC), Branch 260, in Parañaque City that had decreed them jointly and severally liable with
Philippine National Railways (PNR), their co-defendant, to Spouses Nicolas and Teresita Zarate (Zarates) for the death of their
15-year old son, Aaron John L. Zarate (Aaron), then a high school student of Don Bosco Technical Institute (Don Bosco).
(2) Spouses Zarate engaged the services of spouses Pereña for the adequate and safe transportation carriage of the former
spouses' son from their residence in Parañaque to his school at the Don Bosco Technical Institute in Makati City;
(3) During the effectivity of the contract of carriage and in the implementation thereof, Aaron, the minor son of spouses
Zarate died in connection with a vehicular/train collision which occurred while Aaron was riding the contracted carrier Kia
Ceres van of spouses Pereña, then driven and operated by the latter's employee/authorized driver Clemente Alfaro, which
van collided with the train of PNR, at around 6:45 A.M. of August 22, 1996, within the vicinity of the Magallanes
Interchange in Makati City, Metro Manila, Philippines;
(4) At the time of the vehicular/train collision, the subject site of the vehicular/train collision was a railroad crossing used
by motorists for crossing the railroad tracks;

(5) During the said time of the vehicular/train collision, there were no appropriate and safety warning signs and railings at
Antecedents the site commonly used for railroad crossing;

The Pereñas were engaged in the business of transporting students from their respective residences in Parañaque City to Don (6) At the material time, countless number of Makati bound public utility and private vehicles used on a daily basis the site
Bosco in Pasong Tamo, Makati City, and back. In their business, the Pereñas used a KIA Ceres Van (van) with Plate No. PYA of the collision as an alternative route and short-cut to Makati;
896, which had the capacity to transport 14 students at a time, two of whom would be seated in the front beside the driver, and
the others in the rear, with six students on either side. They employed Clemente Alfaro (Alfaro) as driver of the van.
(7) The train driver or operator left the scene of the incident on board the commuter train involved without waiting for the
police investigator;
In June 1996, the Zarates contracted the Pereñas to transport Aaron to and from Don Bosco. On August 22, 1996, as on previous
school days, the van picked Aaron up around 6:00 a.m. from the Zarates’ residence. Aaron took his place on the left side of the
van near the rear door. The van, with its air-conditioning unit turned on and the stereo playing loudly, ultimately carried all the (8) The site commonly used for railroad crossing by motorists was not in fact intended by the railroad operator for railroad
14 student riders on their way to Don Bosco. Considering that the students were due at Don Bosco by 7:15 a.m., and that they crossing at the time of the vehicular collision;
were already running late because of the heavy vehicular traffic on the South Superhighway, Alfaro took the van to an alternate
route at about 6:45 a.m. by traversing the narrow path underneath the Magallanes Interchange that was then commonly used by
Makati-bound vehicles as a short cut into Makati. At the time, the narrow path was marked by piles of construction materials and (9) PNR received the demand letter of the spouses Zarate;
parked passenger jeepneys, and the railroad crossing in the narrow path had no railroad warning signs, or watchmen, or other
responsible persons manning the crossing. In fact, the bamboo barandilla was up, leaving the railroad crossing open to traversing (10) PNR refused to acknowledge any liability for the vehicular/train collision;
motorists.

(11) The eventual closure of the railroad crossing alleged by PNR was an internal arrangement between the former and its
At about the time the van was to traverse the railroad crossing, PNR Commuter No. 302 (train), operated by Jhonny Alano project contractor; and
(Alano), was in the vicinity of the Magallanes Interchange travelling northbound. As the train neared the railroad crossing,
Alfaro drove the van eastward across the railroad tracks, closely tailing a large passenger bus. His view of the oncoming train
was blocked because he overtook the passenger bus on its left side. The train blew its horn to warn motorists of its approach. (12) The site of the vehicular/train collision was within the vicinity or less than 100 meters from the Magallanes station of
When the train was about 50 meters away from the passenger bus and the van, Alano applied the ordinary brakes of the train. He PNR.
applied the emergency brakes only when he saw that a collision was imminent. The passenger bus successfully crossed the
railroad tracks, but the van driven by Alfaro did not. The train hit the rear end of the van, and the impact threw nine of the 12 B. ISSUES
students in the rear, including Aaron, out of the van. Aaron landed in the path of the train, which dragged his body and severed

Page 13 of 53 TORTS MEETING 2

 (1) Whether or not defendant-driver of the van is, in the performance of his functions, liable for negligence constituting the WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and against the defendants ordering
proximate cause of the vehicular collision, which resulted in the death of plaintiff spouses' son; them to jointly and severally pay the plaintiffs as follows:

(2) Whether or not the defendant spouses Pereña being the employer of defendant Alfaro are liable for any negligence which (1) (for) the death of Aaron- Php50,000.00;
may be attributed to defendant Alfaro; (2) Actual damages in the amount of Php100,000.00;
(3) For the loss of earning capacity- Php2,109,071.00;
(4) Moral damages in the amount of Php4,000,000.00;
(3) Whether or not defendant Philippine National Railways being the operator of the railroad system is liable for negligence
(5) Exemplary damages in the amount of Php1,000,000.00;
in failing to provide adequate safety warning signs and railings in the area commonly used by motorists for railroad
(6) Attorney’s fees in the amount of Php200,000.00; and
crossings, constituting the proximate cause of the vehicular collision which resulted in the death of the plaintiff spouses' son;
(7) Cost of suit.
SO ORDERED.
(4) Whether or not defendant spouses Pereña are liable for breach of the contract of carriage with plaintiff-spouses in failing
to provide adequate and safe transportation for the latter's son;
On June 29, 2000, the RTC denied the Pereñas’ motion for reconsideration,4 reiterating that the cooperative gross negligence of
the Pereñas and PNR had caused the collision that led to the death of Aaron; and that the damages awarded to the Zarates were
(5) Whether or not defendants spouses are liable for actual, moral damages, exemplary damages, and attorney's fees; not excessive, but based on the established circumstances.

(6) Whether or not defendants spouses Teodorico and Nanette Pereña observed the diligence of employers and school bus The CA’s Ruling
operators;
Both the Pereñas and PNR appealed (C.A.-G.R. CV No. 68916).
(7) Whether or not defendant-spouses are civilly liable for the accidental death of Aaron John Zarate;
PNR assigned the following errors, to wit:5
(8) Whether or not defendant PNR was grossly negligent in operating the commuter train involved in the accident, in
allowing or tolerating the motoring public to cross, and its failure to install safety devices or equipment at the site of the
The Court a quo erred in:
accident for the protection of the public;

1. In finding the defendant-appellant Philippine National Railways jointly and severally liable together with defendant-
(9) Whether or not defendant PNR should be made to reimburse defendant spouses for any and whatever amount the latter
appellants spouses Teodorico and Nanette Pereña and defendant-appellant Clemente Alfaro to pay plaintiffs-appellees for
may be held answerable or which they may be ordered to pay in favor of plaintiffs by reason of the action;
the death of Aaron Zarate and damages.

(10) Whether or not defendant PNR should pay plaintiffs directly and fully on the amounts claimed by the latter in their
2. In giving full faith and merit to the oral testimonies of plaintiffs-appellees witnesses despite overwhelming documentary
Complaint by reason of its gross negligence;
evidence on record, supporting the case of defendants-appellants Philippine National Railways.

(11) Whether or not defendant PNR is liable to defendants spouses for actual, moral and exemplary damages and attorney's
The Pereñas ascribed the following errors to the RTC, namely:
fees.2

The trial court erred in finding defendants-appellants jointly and severally liable for actual, moral and exemplary damages and
The Zarates’ claim against the Pereñas was upon breach of the contract of carriage for the safe transport of Aaron; but that
attorney’s fees with the other defendants.
against PNR was based on quasi-delict under Article 2176, Civil Code.

The trial court erred in dismissing the cross-claim of the appellants Pereñas against the Philippine National Railways and in not
In their defense, the Pereñas adduced evidence to show that they had exercised the diligence of a good father of the family in the
holding the latter and its train driver primarily responsible for the incident.
selection and supervision of Alfaro, by making sure that Alfaro had been issued a driver’s license and had not been involved in
any vehicular accident prior to the collision; that their own son had taken the van daily; and that Teodoro Pereña had sometimes
accompanied Alfaro in the van’s trips transporting the students to school. The trial court erred in awarding excessive damages and attorney’s fees.

For its part, PNR tended to show that the proximate cause of the collision had been the reckless crossing of the van whose driver
had not first stopped, looked and listened; and that the narrow path traversed by the van had not been intended to be a railroad
crossing for motorists.
Ruling of the RTC
The trial court erred in awarding damages in the form of deceased’s loss of earning capacity in the absence of sufficient basis for
such an award.
On November 13, 2002, the CA promulgated its decision, affirming the findings of the RTC, but limited the moral damages to ₱
2,500,000.00; and deleted the attorney’s fees because the RTC did not state the factual and legal bases, to wit: 6

On December 3, 1999, the RTC rendered its decision,3 disposing: WHEREFORE, premises considered, the assailed Decision of the Regional Trial Court, Branch 260 of Parañaque City is
AFFIRMED with the modification that the award of Actual Damages is reduced to ₱ 59,502.76; Moral Damages is reduced to ₱
2,500,000.00; and the award for Attorney’s Fees is Deleted.

Page 14 of 53 TORTS MEETING 2

 SO ORDERED.
The CA upheld the award for the loss of Aaron’s earning capacity, taking cognizance of the ruling in Cariaga v. Laguna Tayabas
Bus Company and Manila Railroad Company,7 wherein the Court gave the heirs of Cariaga a sum representing the loss of the
deceased’s earning capacity despite Cariaga being only a medical student at the time of the fatal incident. Applying the formula
adopted in the American Expectancy Table of Mortality:–
2/3 x (80 - age at the time of death) = life expectancy
the CA determined the life expectancy of Aaron to be 39.3 years upon reckoning his life expectancy from age of 21 (the age
when he would have graduated from college and started working for his own livelihood) instead of 15 years (his age when he
died). Considering that the nature of his work and his salary at the time of Aaron’s death were unknown, it used the prevailing
minimum wage of ₱ 280.00/day to compute Aaron’s gross annual salary to be ₱ 110,716.65, inclusive of the thirteenth month
pay. Multiplying this annual salary by Aaron’s life expectancy of 39.3 years, his gross income would aggregate to ₱
4,351,164.30, from which his estimated expenses in the sum of ₱ 2,189,664.30 was deducted to finally arrive at P 2,161,500.00
as net income. Due to Aaron’s computed net income turning out to be higher than the amount claimed by the Zarates, only ₱
2,109,071.00, the amount expressly prayed for by them, was granted.
On April 4, 2003, the CA denied the Pereñas’ motion for reconsideration.8
Issues
In this appeal, the Pereñas list the following as the errors committed by the CA, to wit:
I. The lower court erred when it upheld the trial court’s decision holding the petitioners jointly and severally liable to pay
damages with Philippine National Railways and dismissing their cross-claim against the latter.
II. The lower court erred in affirming the trial court’s decision awarding damages for loss of earning capacity of a minor who
was only a high school student at the time of his death in the absence of sufficient basis for such an award.
III. The lower court erred in not reducing further the amount of damages awarded, assuming petitioners are liable at all.
Ruling
The petition has no merit.
1.
Were the Pereñas and PNR jointly
and severally liable for damages?
The Zarates brought this action for recovery of damages against both the Pereñas and the PNR, basing their claim against the
Pereñas on breach of contract of carriage and against the PNR on quasi-delict.
The RTC found the Pereñas and the PNR negligent. The CA affirmed the findings.
We concur with the CA.
To start with, the Pereñas’ defense was that they exercised the diligence of a good father of the family in the selection and
supervision of Alfaro, the van driver, by seeing to it that Alfaro had a driver’s license and that he had not been involved in any
vehicular accident prior to the fatal collision with the train; that they even had their own son travel to and from school on a daily
Page 15 of 53 TORTS MEETING 2
basis; and that Teodoro Pereña himself sometimes accompanied Alfaro in transporting the passengers to and from school. The
RTC gave scant consideration to such defense by regarding such defense as inappropriate in an action for breach of contract of
carriage.
We find no adequate cause to differ from the conclusions of the lower courts that the Pereñas operated as a common carrier; and
that their standard of care was extraordinary diligence, not the ordinary diligence of a good father of a family.
Although in this jurisdiction the operator of a school bus service has been usually regarded as a private carrier, 9 primarily
because he only caters to some specific or privileged individuals, and his operation is neither open to the indefinite public nor for
public use, the exact nature of the operation of a school bus service has not been finally settled. This is the occasion to lay the
matter to rest.
A carrier is a person or corporation who undertakes to transport or convey goods or persons from one place to another,
gratuitously or for hire. The carrier is classified either as a private/special carrier or as a common/public carrier. 10 A private
carrier is one who, without making the activity a vocation, or without holding himself or itself out to the public as ready to act
for all who may desire his or its services, undertakes, by special agreement in a particular instance only, to transport goods or
persons from one place to another either gratuitously or for hire. 11 The provisions on ordinary contracts of the Civil Code govern
the contract of private carriage.The diligence required of a private carrier is only ordinary, that is, the diligence of a good father
of the family. In contrast, a common carrier is a person, corporation, firm or association engaged in the business of carrying or
transporting passengers or goods or both, by land, water, or air, for compensation, offering such services to the
public.12 Contracts of common carriage are governed by the provisions on common carriers of the Civil Code, the Public Service
Act,13 and other special laws relating to transportation. A common carrier is required to observe extraordinary diligence, and is
presumed to be at fault or to have acted negligently in case of the loss of the effects of passengers, or the death or injuries to
passengers.14
In relation to common carriers, the Court defined public use in the following terms in United States v. Tan Piaco,15 viz:
"Public use" is the same as "use by the public". The essential feature of the public use is not confined to privileged individuals,
but is open to the indefinite public. It is this indefinite or unrestricted quality that gives it its public character. In determining
whether a use is public, we must look not only to the character of the business to be done, but also to the proposed mode of
doing it. If the use is merely optional with the owners, or the public benefit is merely incidental, it is not a public use, authorizing
the exercise of the jurisdiction of the public utility commission. There must be, in general, a right which the law compels the
owner to give to the general public. It is not enough that the general prosperity of the public is promoted. Public use is not
synonymous with public interest. The true criterion by which to judge the character of the use is whether the public may enjoy it
by right or only by permission.
In De Guzman v. Court of Appeals,16 the Court noted that Article 1732 of the Civil Code avoided any distinction between a
person or an enterprise offering transportation on a regular or an isolated basis; and has not distinguished a carrier offering his
services to the general public, that is, the general community or population, from one offering his services only to a narrow
segment of the general population.
Nonetheless, the concept of a common carrier embodied in Article 1732 of the Civil Code coincides neatly with the notion of
public service under the Public Service Act, which supplements the law on common carriers found in the Civil Code. Public
service, according to Section 13, paragraph (b) of the Public Service Act, includes:
x x x every person that now or hereafter may own, operate, manage, or control in the Philippines, for hire or compensation, with
general or limited clientèle, whether permanent or occasional, and done for the general business purposes, any common carrier,
railroad, street railway, traction railway, subway motor vehicle, either for freight or passenger, or both, with or without fixed
route and whatever may be its classification, freight or carrier service of any class, express service, steamboat, or steamship line,
pontines, ferries and water craft, engaged in the transportation of passengers or freight or both, shipyard, marine repair shop, ice-
refrigeration plant, canal, irrigation system, gas, electric light, heat and power, water supply and power petroleum, sewerage
system, wire or wireless communications systems, wire or wireless broadcasting stations and other similar public services. x x
x.17
Given the breadth of the aforequoted characterization of a common carrier, the Court has considered as common carriers pipeline
operators,18 custom brokers and warehousemen,19 and barge operators20 even if they had limited clientèle.
As all the foregoing indicate, the true test for a common carrier is not the quantity or extent of the business actually transacted, or
the number and character of the conveyances used in the activity, but whether the undertaking is a part of the activity engaged in
by the carrier that he has held out to the general public as his business or occupation. If the undertaking is a single transaction,
not a part of the general business or occupation engaged in, as advertised and held out to the general public, the individual or the
entity rendering such service is a private, not a common, carrier. The question must be determined by the character of the
business actually carried on by the carrier, not by any secret intention or mental reservation it may entertain or assert when
charged with the duties and obligations that the law imposes.21
Applying these considerations to the case before us, there is no question that the Pereñas as the operators of a school bus service
were: (a) engaged in transporting passengers generally as a business, not just as a casual occupation; (b) undertaking to carry
passengers over established roads by the method by which the business was conducted; and (c) transporting students for a fee.
Despite catering to a limited clientèle, the Pereñas operated as a common carrier because they held themselves out as a ready
transportation indiscriminately to the students of a particular school living within or near where they operated the service and for
a fee.
The common carrier’s standard of care and vigilance as to the safety of the passengers is defined by law. Given the nature of the
business and for reasons of public policy, the common carrier is bound "to observe extraordinary diligence in the vigilance over
the goods and for the safety of the passengers transported by them, according to all the circumstances of each case." 22 Article
1755 of the Civil Code specifies that the common carrier should "carry the passengers safely as far as human care and foresight
can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances." To successfully
fend off liability in an action upon the death or injury to a passenger, the common carrier must prove his or its observance of that
extraordinary diligence; otherwise, the legal presumption that he or it was at fault or acted negligently would stand. 23 No device,
whether by stipulation, posting of notices, statements on tickets, or otherwise, may dispense with or lessen the responsibility of
the common carrier as defined under Article 1755 of the Civil Code. 24
And, secondly, the Pereñas have not presented any compelling defense or reason by which the Court might now reverse the
CA’s findings on their liability. On the contrary, an examination of the records shows that the evidence fully supported the
findings of the CA.
As earlier stated, the Pereñas, acting as a common carrier, were already presumed to be negligent at the time of the accident
because death had occurred to their passenger.25 The presumption of negligence, being a presumption of law, laid the burden of
evidence on their shoulders to establish that they had not been negligent.26 It was the law no less that required them to prove their
observance of extraordinary diligence in seeing to the safe and secure carriage of the passengers to their destination. Until they
did so in a credible manner, they stood to be held legally responsible for the death of Aaron and thus to be held liable for all the
natural consequences of such death.
There is no question that the Pereñas did not overturn the presumption of their negligence by credible evidence. Their defense of
having observed the diligence of a good father of a family in the selection and supervision of their driver was not legally
sufficient. According to Article 1759 of the Civil Code, their liability as a common carrier did not cease upon proof that they
exercised all the diligence of a good father of a family in the selection and supervision of their employee. This was the reason
why the RTC treated this defense of the Pereñas as inappropriate in this action for breach of contract of carriage.
The Pereñas were liable for the death of Aaron despite the fact that their driver might have acted beyond the scope of his
authority or even in violation of the orders of the common carrier.27 In this connection, the records showed their driver’s actual
negligence. There was a showing, to begin with, that their driver traversed the railroad tracks at a point at which the PNR did not
permit motorists going into the Makati area to cross the railroad tracks. Although that point had been used by motorists as a
shortcut into the Makati area, that fact alone did not excuse their driver into taking that route. On the other hand, with his
familiarity with that shortcut, their driver was fully aware of the risks to his passengers but he still disregarded the risks.
Compounding his lack of care was that loud music was playing inside the air-conditioned van at the time of the accident. The
loudness most probably reduced his ability to hear the warning horns of the oncoming train to allow him to correctly appreciate
the lurking dangers on the railroad tracks. Also, he sought to overtake a passenger bus on the left side as both vehicles traversed
the railroad tracks. In so doing, he lost his view of the train that was then coming from the opposite side of the passenger bus,
Page 16 of 53 TORTS MEETING 2
leading him to miscalculate his chances of beating the bus in their race, and of getting clear of the train. As a result, the bus
avoided a collision with the train but the van got slammed at its rear, causing the fatality. Lastly, he did not slow down or go to a
full stop before traversing the railroad tracks despite knowing that his slackening of speed and going to a full stop were in
observance of the right of way at railroad tracks as defined by the traffic laws and regulations. 28 He thereby violated a specific
traffic regulation on right of way, by virtue of which he was immediately presumed to be negligent. 29
The omissions of care on the part of the van driver constituted negligence,30 which, according to Layugan v. Intermediate
Appellate Court,31 is "the omission to do something which a reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not
do,32 or as Judge Cooley defines it, ‘(t)he 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.’" 33
The test by which to determine the existence of negligence in a particular case has been aptly stated in the leading case of Picart
v. Smith,34 thuswise:
The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in
doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the
same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the
imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined
by reference to the personal judgment of the actor in the situation before him. The law considers what would be reckless,
blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a given situation must of course be always determined
in the light of human experience and in view of the facts involved in the particular case. Abstract speculation cannot here be of
much value but this much can be profitably said: Reasonable men govern their conduct by the circumstances which are before
them or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they can be expected to take
care only when there is something before them to suggest or warn of danger. Could a prudent man, in the case under
consideration, foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to take precautions to
guard against that harm. Reasonable foresight of harm, followed by the ignoring of the suggestion born of this prevision, is
always necessary before negligence can be held to exist. Stated in these terms, the proper criterion for determining the existence
of negligence in a given case is this: Conduct is said to be negligent when a prudent man in the position of the tortfeasor would
have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing the conduct or guarding
against its consequences. (Emphasis supplied)
Pursuant to the Picart v. Smith test of negligence, the Pereñas’ driver was entirely negligent when he traversed the railroad tracks
at a point not allowed for a motorist’s crossing despite being fully aware of the grave harm to be thereby caused to his
passengers; and when he disregarded the foresight of harm to his passengers by overtaking the bus on the left side as to leave
himself blind to the approach of the oncoming train that he knew was on the opposite side of the bus.
Unrelenting, the Pereñas cite Phil. National Railways v. Intermediate Appellate Court,35 where the Court held the PNR solely
liable for the damages caused to a passenger bus and its passengers when its train hit the rear end of the bus that was then
traversing the railroad crossing. But the circumstances of that case and this one share no similarities. In Philippine National
Railways v. Intermediate Appellate Court, no evidence of contributory negligence was adduced against the owner of the bus.
Instead, it was the owner of the bus who proved the exercise of extraordinary diligence by preponderant evidence. Also, the
records are replete with the showing of negligence on the part of both the Pereñas and the PNR. Another distinction is that the
passenger bus in Philippine National Railways v. Intermediate Appellate Court was traversing the dedicated railroad crossing
when it was hit by the train, but the Pereñas’ school van traversed the railroad tracks at a point not intended for that purpose.
At any rate, the lower courts correctly held both the Pereñas and the PNR "jointly and severally" liable for damages arising from
the death of Aaron. They had been impleaded in the same complaint as defendants against whom the Zarates had the right to
relief, whether jointly, severally, or in the alternative, in respect to or arising out of the accident, and questions of fact and of law
were common as to the Zarates.36 Although the basis of the right to relief of the Zarates (i.e., breach of contract of carriage)
against the Pereñas was distinct from the basis of the Zarates’ right to relief against the PNR (i.e., quasi-delict under Article
2176, Civil Code), they nonetheless could be held jointly and severally liable by virtue of their respective negligence combining
to cause the death of Aaron. As to the PNR, the RTC rightly found the PNR also guilty of negligence despite the school van of
the Pereñas traversing the railroad tracks at a point not dedicated by the PNR as a railroad crossing for pedestrians and motorists, 3.
because the PNR did not ensure the safety of others through the placing of crossbars, signal lights, warning signs, and other Were the amounts of damages excessive?
permanent safety barriers to prevent vehicles or pedestrians from crossing there. The RTC observed that the fact that a crossing
guard had been assigned to man that point from 7 a.m. to 5 p.m. was a good indicium that the PNR was aware of the risks to
The Pereñas plead for the reduction of the moral and exemplary damages awarded to the Zarates in the respective amounts of ₱
others as well as the need to control the vehicular and other traffic there. Verily, the Pereñas and the PNR were joint tortfeasors.
2,500,000.00 and ₱ 1,000,000.00 on the ground that such amounts were excessive.

2.
The plea is unwarranted.
Was the indemnity for loss of
Aaron’s earning capacity proper?
The moral damages of ₱ 2,500,000.00 were really just and reasonable under the established circumstances of this case because
they were intended by the law to assuage the Zarates’ deep mental anguish over their son’s unexpected and violent death, and
The RTC awarded indemnity for loss of Aaron’s earning capacity. Although agreeing with the RTC on the liability, the CA
their moral shock over the senseless accident. That amount would not be too much, considering that it would help the Zarates
modified the amount. Both lower courts took into consideration that Aaron, while only a high school student, had been enrolled
obtain the means, diversions or amusements that would alleviate their suffering for the loss of their child. At any rate, reducing
in one of the reputable schools in the Philippines and that he had been a normal and able-bodied child prior to his death. The
the amount as excessive might prove to be an injustice, given the passage of a long time from when their mental anguish was
basis for the computation of Aaron’s earning capacity was not what he would have become or what he would have wanted to be
inflicted on them on August 22, 1996.
if not for his untimely death, but the minimum wage in effect at the time of his death. Moreover, the RTC’s computation of
Aaron’s life expectancy rate was not reckoned from his age of 15 years at the time of his death, but on 21 years, his age when he
would have graduated from college. Anent the ₱ 1,000,000.00 allowed as exemplary damages, we should not reduce the amount if only to render effective the
desired example for the public good. As a common carrier, the Pereñas needed to be vigorously reminded to observe their duty
to exercise extraordinary diligence to prevent a similarly senseless accident from happening again. Only by an award of
We find the considerations taken into account by the lower courts to be reasonable and fully warranted.
exemplary damages in that amount would suffice to instill in them and others similarly situated like them the ever-present need
for greater and constant vigilance in the conduct of a business imbued with public interest.
Yet, the Pereñas submit that the indemnity for loss of earning capacity was speculative and unfounded.1âwphi1 They cited
People v. Teehankee, Jr.,37 where the Court deleted the indemnity for victim Jussi Leino’s loss of earning capacity as a pilot for
WHEREFORE, we DENY the petition for review on certiorari; AFFIRM the decision promulgated on November 13, 2002;
being speculative due to his having graduated from high school at the International School in Manila only two years before the
and ORDER the petitioners to pay the costs of suit.
shooting, and was at the time of the shooting only enrolled in the first semester at the Manila Aero Club to pursue his ambition to
become a professional pilot. That meant, according to the Court, that he was for all intents and purposes only a high school
graduate. SO ORDERED.

We reject the Pereñas’ submission.

First of all, a careful perusal of the Teehankee, Jr. case shows that the situation there of Jussi Leino was not akin to that of Aaron
here. The CA and the RTC were not speculating that Aaron would be some highly-paid professional, like a pilot (or, for that
matter, an engineer, a physician, or a lawyer). Instead, the computation of Aaron’s earning capacity was premised on him being a
lowly minimum wage earner despite his being then enrolled at a prestigious high school like Don Bosco in Makati, a fact that
would have likely ensured his success in his later years in life and at work.

And, secondly, the fact that Aaron was then without a history of earnings should not be taken against his parents and in favor of
the defendants whose negligence not only cost Aaron his life and his right to work and earn money, but also deprived his parents
of their right to his presence and his services as well. Our law itself states that the loss of the earning capacity of the deceased
shall be the liability of the guilty party in favor of the heirs of the deceased, and shall in every case be assessed and awarded by
the court "unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity
at the time of his death."38 Accordingly, we emphatically hold in favor of the indemnification for Aaron’s loss of earning
capacity despite him having been unemployed, because compensation of this nature is awarded not for loss of time or earnings
but for loss of the deceased’s power or ability to earn money.39

This favorable treatment of the Zarates’ claim is not unprecedented. In Cariaga v. Laguna Tayabas Bus Company and Manila
Railroad Company,40 fourth-year medical student Edgardo Carriaga’s earning capacity, although he survived the accident but his
injuries rendered him permanently incapacitated, was computed to be that of the physician that he dreamed to become. The
Court considered his scholastic record sufficient to justify the assumption that he could have finished the medical course and
would have passed the medical board examinations in due time, and that he could have possibly earned a modest income as a
medical practitioner. Also, in People v. Sanchez,41 the Court opined that murder and rape victim Eileen Sarmienta and murder
victim Allan Gomez could have easily landed good-paying jobs had they graduated in due time, and that their jobs would
probably pay them high monthly salaries from ₱ 10,000.00 to ₱ 15,000.00 upon their graduation. Their earning capacities were
computed at rates higher than the minimum wage at the time of their deaths due to their being already senior agriculture students
of the University of the Philippines in Los Baños, the country’s leading educational institution in agriculture.

Page 17 of 53 TORTS MEETING 2

TORTS 15
G.R. No. 177116 February 27, 2013
ASIAN TERMINALS, INC., Petitioner,
vs.
SIMON ENTERPRISES, INC., Respondent.
DECISION
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, assailing the
Decision1 dated November 27, 2006 and Resolution2 dated March 23, 2007 of the Court of Appeals (CA) in CA-G.R. CV No.
71210.
The facts are as follows:
On October 25, 1995, Contiquincybunge Export Company loaded 6,843.700 metric tons of U.S. Soybean Meal in Bulk on board
the vessel MN "Sea Dream" at the Port of Darrow, Louisiana, U.S.A., for delivery to the Port of Manila to respondent Simon
Enterprises, Inc., as consignee. When the vessel arrived at the South Harbor in Manila, the shipment was discharged to the
receiving barges of petitioner Asian Terminals, Inc. (ATI), the arrastre operator. Respondent later received the shipment but
claimed having received only 6,825.144 metric tons of U.S. Soybean Meal, or short by 18.556 metric tons, which is estimated to
be worth US$7,100.16 or ₱186,743.20.3
On November 25, 1995, Contiquincybunge Export Company made another shipment to respondent and allegedly loaded on
board the vessel M/V "Tern" at the Port of Darrow, Louisiana, U.S.A. 3,300.000 metric tons of U.S. Soybean Meal in Bulk for
delivery to respondent at the Port of Manila. The carrier issued its clean Berth Term Grain Bill of Lading.4
On January 25, 1996, the carrier docked at the inner Anchorage, South Harbor, Manila. The subject shipment was discharged to
the receiving barges of petitioner ATI and received by respondent which, however, reported receiving only 3,100.137 metric
tons instead of the manifested 3,300.000 metric tons of shipment. Respondent filed against petitioner ATI and the carrier a claim
for the shortage of 199.863 metric tons, estimated to be worth US$79,848.86 or ₱2,100,025.00, but its claim was denied.
Thus, on December 3, 1996, respondent filed with the Regional Trial Court (RTC) of Manila an action for damages 5against the
unknown owner of the vessels M/V "Sea Dream" and M/V "Tern," its local agent Inter-Asia Marine Transport, Inc., and
petitioner ATI alleging that it suffered the losses through the fault or negligence of the said defendants. Respondent sought to
claim damages plus attorney’s fees and costs of suit. Its claim against the unknown owner of the vessel M/V "Sea Dream,"
however, was later settled in a Release and Quitclaim6 dated June 9, 1998, and only the claims against the unknown owner of the
M/V "Tern," Inter-Asia Marine Transport, Inc., and petitioner ATI remained.
In their Answer,7 the unknown owner of the vessel M/V "Tern" and its local agent Inter-Asia Marine Transport, Inc., prayed for
the dismissal of the complaint essentially alleging lack of cause of action and prescription. They alleged as affirmative defenses
the following: that the complaint does not state a cause of action; that plaintiff and/or defendants are not the real parties-in-
interest; that the cause of action had already prescribed or laches had set in; that the claim should have been filed within three
days from receipt of the cargo pursuant to the provisions of the Code of Commerce; that the defendant could no longer check the
veracity of plaintiff’s claim considering that the claim was filed eight months after the cargo was discharged from the vessel; that
plaintiff hired its own barges to receive the cargo and hence, any damages or losses during the discharging operations were for
plaintiff’s account and responsibility; that the statement of facts bears no remarks on any short-landed cargo; that the draft
survey report indicates that the cargo discharged was more than the figures appearing in the bill of lading; that because the bill of
lading states that the goods are carried on a "shipper’s weight, quantity and quality unknown" terms and on "all terms, conditions
and exceptions as per charter party dated October 15, 1995," the vessel had no way of knowing the actual weight, quantity, and
Page 18 of 53 TORTS MEETING 2
quality of the bulk cargo when loaded at the port of origin and the vessel had to rely on the shipper for such information; that the
subject shipment was discharged in Manila in the same condition and quantity as when loaded at the port of loading; that
defendants’ responsibility ceased upon discharge from the ship’s tackle; that the damage or loss was due to the inherent vice or
defect of the goods or to the insufficiency of packing thereof or perils or dangers or accidents of the sea, pre-shipment damage or
to improper handling of the goods by plaintiff or its representatives after discharge from the vessel, for which defendants cannot
be made liable; that damage/loss occurred while the cargo was in the possession, custody or control of plaintiff or its
representative, or due to plaintiff’s own negligence and careless actuations in the handling of the cargo; that the loss is less than
0.75% of the entire cargo and assuming arguendo that the shortage exists, the figure is well within the accepted parameters when
loading this type of bulk cargo; that defendants exercised the required diligence under the law in the performance of their duties;
that the vessel was seaworthy in all respects; that the vessel went straight from the port of loading to Manila, without passing
through any intermediate ports so there was no chance for any loss of the cargo; the plaintiff’s claim is excessive, grossly
overstated, unreasonable and a mere paper loss and is certainly unsubstantiated and without any basis; the terms and conditions
of the relevant bill of lading and the charter party, as well as the provisions of the Carriage of Goods by Sea Act and existing
laws, absolve the defendants from any liability; that the subject shipment was received in bulk and thus defendant carrier has no
knowledge of the condition, quality and quantity of the cargo at the time of loading; that the complaint was not referred to the
arbitrators pursuant to the bill of lading; that liability, if any, should not exceed the CIF value of the lost cargo, or the limits of
liability set forth in the bill of lading and the charter party. As counterclaim, defendants prayed for the payment of attorney’s fees
in the amount of ₱220,000. By way of cross-claim, they ask for reimbursement from their co-defendant, petitioner ATI, in the
event that they are held liable to plaintiff.
Petitioner ATI meanwhile alleged in its Answer8 that it exercised the required diligence in handling the subject shipment. It
moved for the dismissal of the complaint, and alleged by way of special and affirmative defense that plaintiff has no valid cause
of action against petitioner ATI; that the cargo was completely discharged from the vessel M/V "Tern" to the receiving barges
owned or hired by the plaintiff; and that petitioner ATI exercised the required diligence in handling the shipment. By way of
counterclaim, petitioner ATI argued that plaintiff should shoulder its expenses for attorney’s fees in the amount of ₱20,000 as
petitioner ATI was constrained to engage the services of counsel to protect its interest.
On May 10, 2001, the RTC of Manila rendered a Decision 9 holding petitioner ATI and its co-defendants solidarily liable to
respondent for damages arising from the shortage. The RTC held:
WHEREFORE, premises considered, judgment is hereby rendered ordering defendants M/V "Tern" Inter-Asia Marine
Transport, Inc. and Asian Terminal Inc. jointly and severally liable to pay plaintiff Simon Enterprises the sum of ₱2,286,259.20
with legal interest from the date the complaint was filed until fully satisfied, 10% of the amount due plaintiff as and for
attorney’s fees plus the costs of suit.
Defendants’ counterclaim and cross claim are hereby DISMISSED for lack of merit.
SO ORDERED.10
The trial court found that respondent has established that the losses/shortages were incurred prior to its receipt of the goods. As
such, the burden shifted to the carrier to prove that it exercised extraordinary diligence as required by law to prevent the loss,
destruction or deterioration.
However, the trial court held that the defendants failed to prove that they did so. The trial court gave credence to the testimony of
Eduardo Ragudo, a super cargo of defendant Inter-Asia Marine Transport, Inc., who admitted that there were spillages or
overflow down to the spillage saver. The trial court also noted that said witness also declared that respondent’s representative
was not allowed to sign the Master’s Certificate. Such declaration, said the trial court, placed petitioner ATI in a bad light and
weakened its stand.
Not satisfied, the unknown owner of the vessel M/V "Tern," Inter-Asia Marine Transport, Inc. and petitioner ATI respectively
filed appeals to the CA. In their petition, the unknown owner of the vessel M/V "Tern" and Inter-Asia Marine Transport, Inc.
raised the question of whether the trial court erred in finding that they did not exercise extraordinary diligence in the handling of
the goods.11
On the other hand, petitioner ATI alleged that:
THE COURT-A-QUO COMMITTED SERIOUS AND REVERSIBLE ERROR IN HOLDING DEFENDANT[-]APPELLANT
ATI SOLIDARILY LIABLE WITH CO-DEFENDANT APPELLANT INTERASIA MARINE TRANSPORT, INC.
CONTRARY TO THE EVIDENCE PRESENTED.12
On November 27, 2006, the CA promulgated the assailed Decision, the decretal portion of which reads:
WHEREFORE, the appealed Decision dated May 10, 2001 is affirmed, except the award of attorney’s fees which is hereby
deleted.
SO ORDERED.13
In affirming the RTC Decision, the CA held that there is no justification to disturb the factual findings of the trial court which
are entitled to respect on appeal as they were supported by substantial evidence. It agreed with the findings of the trial court that
the unknown owner of the vessel M/V "Tern" and Inter-Asia Marine Transport, Inc. failed to establish that they exercised
extraordinary diligence in transporting the goods or exercised due diligence to forestall or lessen the loss as provided in Article
174214 of the Civil Code. The CA also ruled that petitioner ATI, as the arrastre operator, should be held jointly and severally
liable with the carrier considering that petitioner ATI’s stevedores were under the direct supervision of the unknown owner of
M/V "Tern" and that the spillages occurred when the cargoes were being unloaded by petitioner ATI’s stevedores.
Petitioner ATI filed a motion for reconsideration,15 but the CA denied its motion in a Resolution16dated March 23, 2007. The
unknown owner of the vessel M/V "Tern" and Inter-Asia Marine Transport, Inc. for their part, appealed to this Court via a
petition for review on certiorari, which was docketed as G.R. No. 177170. Its appeal, however, was denied by this Court on July
16, 2007 for failure to sufficiently show any reversible error committed by the CA in the challenged Decision and Resolution as
to warrant the exercise of this Court’s discretionary appellate jurisdiction. The unknown owner of M/V "Tern" and Inter-Asia
Marine Transport, Inc. sought reconsideration of the denial but their motion was denied by the Court in a Resolution dated
October 17, 2007.17
Meanwhile, on April 20, 2007, petitioner ATI filed the present petition raising the sole issue of whether the appellate court erred
in affirming the decision of the trial court holding petitioner ATI solidarily liable with its codefendants for the shortage incurred
in the shipment of the goods to respondent.
Petitioner ATI argues that:
1. Respondent failed to prove that the subject shipment suffered actual loss/shortage as there was no competent evidence to
prove that it actually weighed 3,300 metric tons at the port of origin.
2. Stipulations in the bill of lading that the cargo was carried on a "shipper’s weight, quantity and quality unknown" is not
contrary to public policy. Thus, herein petitioner cannot be bound by the quantity or weight of the cargo stated in the bill of
lading.
3. Shortage/loss, if any, may have been due to the inherent nature of the shipment and its insufficient packing considering
that the subject cargo was shipped in bulk and had a moisture content of 12.5%.
4. Respondent failed to substantiate its claim for damages as no competent evidence was presented to prove the
same.1âwphi1
5. Respondent has not presented any scintilla of evidence showing any fault/negligence on the part of herein petitioner.
6. Petitioner ATI should be entitled to its counterclaim.18
Page 19 of 53 TORTS MEETING 2
Respondent, on the other hand, quotes extensively the CA decision and maintains its correctness.
We grant the petition.
The CA erred in affirming the decision of the trial court holding petitioner ATI solidarily liable with its co-defendants for the
shortage incurred in the shipment of the goods to respondent.
We note that the matters raised by petitioner ATI involve questions of fact which are generally not reviewable in a petition for
review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, as the Court is not a trier of facts. Section
1 thereof provides that "the petition x x x shall raise only questions of law, which must be distinctly set forth."
A question of law exists when the doubt or controversy concerns the correct application of law or jurisprudence to a certain set
of facts; or when the issue does not call for an examination of the probative value of the evidence presented, the truth or
falsehood of facts being admitted. A question of fact exists when the doubt or difference arises as to the truth or falsehood of
facts or when the query invites calibration of the whole evidence considering mainly the credibility of the witnesses, the
existence and relevancy of specific surrounding circumstances as well as their relation to each other and to the whole, and the
probability of the situation.19
The well-entrenched rule in our jurisdiction is that only questions of law may be entertained by this Court in a petition for review
on certiorari. This rule, however, is not ironclad and admits certain exceptions, such as when (1) the conclusion is grounded on
speculations, surmises or conjectures; (2) the inference is manifestly mistaken, absurd or impossible; (3) there is grave abuse of
discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) there is no citation
of specific evidence on which the factual findings are based; (7) the findings of absence of facts are contradicted by the presence
of evidence on record; (8) the findings of the Court of Appeals are contrary to those of the trial court; (9) the Court of Appeals
manifestly overlooked certain relevant and undisputed facts that, if properly considered, would justify a different conclusion;
(10) the findings of the Court of Appeals are beyond the issues of the case; and (11) such findings are contrary to the admissions
of both parties.20
After a careful review of the records, we find justification to warrant the application of the fourth exception. The CA
misapprehended the following facts.
First, petitioner ATI is correct in arguing that the respondent failed to prove that the subject shipment suffered actual shortage,
as there was no competent evidence to prove that it actually weighed 3,300 metric tons at the port of origin.
Though it is true that common carriers are presumed to have been at fault or to have acted negligently if the goods transported by
them are lost, destroyed, or deteriorated, and that the common carrier must prove that it exercised extraordinary diligence in
order to overcome the presumption,21 the plaintiff must still, before the burden is shifted to the defendant, prove that the subject
shipment suffered actual shortage. This can only be done if the weight of the shipment at the port of origin and its subsequent
weight at the port of arrival have been proven by a preponderance of evidence, and it can be seen that the former weight is
considerably greater than the latter weight, taking into consideration the exceptions provided in Article 1734 22 of the Civil Code.
In this case, respondent failed to prove that the subject shipment suffered shortage, for it was not able to establish that the subject
shipment was weighed at the port of origin at Darrow, Louisiana, U.S.A. and that the actual weight of the said shipment was
3,300 metric tons.
The Berth Term Grain Bill of Lading23 (Exhibit "A"), the Proforma Invoice24 (Exhibit "B"), and the Packing List25(Exhibit "C"),
being used by respondent to prove that the subject shipment weighed 3,300 metric tons, do not, in fact, help its cause. The Berth
Term Grain Bill of Lading states that the subject shipment was carried with the qualification "Shipper’s weight, quantity and
quality unknown," meaning that it was transported with the carrier having been oblivious of the weight, quantity, and quality of
the cargo. This interpretation of the quoted qualification is supported by Wallem Philippines Shipping, Inc. v. Prudential
Guarantee & Assurance, Inc.,26 a case involving an analogous stipulation in a bill of lading, wherein the Supreme Court held
that:
Indeed, as the bill of lading indicated that the contract of carriage was under a "said to weigh" clause, the shipper is solely
responsible for the loading while the carrier is oblivious of the contents of the shipment. (Emphasis supplied)
Similarly, International Container Terminal Services, Inc. v. Prudential Guarantee & Assurance Co., Inc.,27 explains the
meaning of clauses analogous to "Shipper’s weight, quantity and quality unknown" in this manner:
This means that the shipper was solely responsible for the loading of the container, while the carrier was oblivious to the
contents of the shipment x x x. The arrastre operator was, like any ordinary depositary, duty-bound to take good care of the
goods received from the vessel and to turn the same over to the party entitled to their possession, subject to such qualifications
as may have validly been imposed in the contract between the parties. The arrastre operator was not required to verify the
contents of the container received and to compare them with those declared by the shipper because, as earlier stated, the
cargo was at the shipper’s load and count x x x. (Italics in the original; emphasis supplied)
Also, Bankers & Manufacturers Assurance Corporation v. Court of Appeals28 elucidates thus:
The recital of the bill of lading for goods thus transported [i.e., transported in sealed containers or "containerized"] ordinarily
would declare "Said to Contain", "Shipper’s Load and Count", "Full Container Load", and the amount or quantity of goods in
the container in a particular package is only prima facie evidence of the amount or quantity x x x.
A shipment under this arrangement is not inspected or inventoried by the carrier whose duty is only to transport and
deliver the containers in the same condition as when the carrier received and accepted the containers for transport x x x.
(Emphasis supplied)
Hence, as can be culled from the above-mentioned cases, the weight of the shipment as indicated in the bill of lading is not
conclusive as to the actual weight of the goods. Consequently, the respondent must still prove the actual weight of the subject
shipment at the time it was loaded at the port of origin so that a conclusion may be made as to whether there was indeed a
shortage for which petitioner must be liable. This, the respondent failed to do.
The Proforma Invoice militates against respondent’s claim that the subject shipment weighed 3,300 metric tons. The pertinent
portion of the testimony of Mr. Jose Sarmiento, respondent’s Claims Manager, is narrated below:
Atty. Rebano: You also identified a while ago, Mr. Witness Exhibit B, the invoice. Why does it state as description of the
cargo three thousand metric tons and not three thousand three hundred?
A: Usually there is a contract between the supplier and our company that embodied [sic] in the letter credit [sic] that they have
the option to ship the cargo plus or minus ten percent of the quantity.
xxxx
Q: So, it is possible for the shipper to ship less than ten percent in [sic] the quantity stated in the invoice and it will still be
a valid shipment. Is it [sic] correct?
A: It [sic] is correct but we must be properly advised and the commercial invoice should indicate how much they sent to
us.29 (Emphasis supplied)
The quoted part of Mr. Sarmiento’s testimony not only shows uncertainty as to the actual weight of the shipment, it also shows
that assuming respondent did order 3,300 metric tons of U.S. Soybean Meal from Contiquincybunge Export Company, and also
assuming that it only received 3,100.137 metric tons, such volume would still be a valid shipment because it is well within the
10% allowable shortage. Note that Mr. Sarmiento himself mentioned that the supplier has the option to "ship the cargo plus or
minus ten percent of the quantity."30
Page 20 of 53 TORTS MEETING 2
Notably also, the genuineness and the due execution of the Packing List, the Berth Term Grain Bill of Lading, and the Proforma
Invoice, were not established.
Wallem Philippines Shipping, Inc.,31 is instructive on this matter:
We find that the Court of Appeals erred in finding that a shortage had taken place. Josephine Suarez, Prudential’s claims
processor, merely identified the papers submitted to her in connection with GMC’s claim (Bill of Lading BEDI/1 (Exh. "B"),
Commercial Invoice No. 1401 issued by Toepfer International Asia Pte, Ltd. (Exh. "C"), SGS Certificate of Quality (Exh. "F-
1"), and SGS Certificate of Weight (Exh. "F-3")). Ms. Suarez had no personal knowledge of the contents of the said
documents and could only surmise as to the actual weight of the cargo loaded on M/V Gao Yang x x x.
xxxx
Ms. Suarez’s testimony regarding the contents of the documents is thus hearsay, based as it is on the knowledge of
another person not presented on the witness stand.
Nor has the genuineness and due execution of these documents been established. In the absence of clear, convincing, and
competent evidence to prove that the shipment indeed weighed 4,415.35 metric tons at the port of origin when it was
loaded on the M/V Gao Yang, it cannot be determined whether there was a shortage of the shipment upon its arrival in
Batangas. (Emphasis supplied)
As in the present case, Mr. Sarmiento merely identified the three above-mentioned exhibits, but he had no personal knowledge
of the weight of the subject shipment when it was loaded onto the M/V "Tern" at the port of origin. His testimony as regards the
weight of the subject shipment as described in Exhibits "A," "B," and "C" must then be considered as hearsay, 32 for it was based
on the knowledge of a person who was not presented during the trial in the RTC.
The presumption that the Berth Term Grain Bill of Lading serves as prima facie evidence of the weight of the cargo has been
rebutted, there being doubt as to the weight of the cargo at the time it was loaded at the port of origin. Further, the fact that the
cargo was shipped with the arrangement "Shipper’s weight, quantity and quality unknown," indeed means that the weight of the
cargo could not be determined using as basis the figures written on the Berth Term Grain Bill of Lading. This is in line
with Malayan Insurance Co., Inc. v. Jardine Davies Transport Services, Inc., 33 where we said:
The presumption that the bill of lading, which petitioner relies upon to support its claim for restitution, constitutes prima
facie evidence of the goods therein described was correctly deemed by the appellate court to have been rebutted in light of
abundant evidence casting doubts on its veracity.
That MV Hoegh undertook, under the bill of lading, to transport 6,599.23 MT of yellow crude sulphur on a "said to weigh" basis
is not disputed. Under such clause, the shipper is solely responsible for the loading of the cargo while the carrier is oblivious of
the contents of the shipment. Nobody really knows the actual weight of the cargo inasmuch as what is written on the bill of
lading, as well as on the manifest, is based solely on the shipper’s declaration.
The bill of lading carried an added clause – the shipment’s weight, measure, quantity, quality, condition, contents and
value unknown. Evidently, the weight of the cargo could not be gauged from the bill of lading. (Italics in the original;
emphasis supplied)
The respondent having failed to present evidence to prove the actual weight of the subject shipment when it was loaded onto the
M/V "Tern," its cause of action must then fail because it cannot prove the shortage that it was alleging. Indeed, if the claimant
cannot definitively establish the weight of the subject shipment at the point of origin, the fact of shortage or loss cannot be
ascertained. The claimant then has no basis for claiming damages resulting from an alleged shortage. Again, Malayan Insurance
Co., Inc.,34 provides jurisprudential basis:
In the absence of clear, convincing and competent evidence to prove that the cargo indeed weighed, albeit the Bill of
Lading qualified it by the phrase "said to weigh," 6,599.23 MT at the port of origin when it was loaded onto the MV
Hoegh, the fact of loss or shortage in the cargo upon its arrival in Manila cannot be definitively established. The legal basis
for attributing liability to either of the respondents is thus sorely wanting. (Emphasis supplied)
Second, as correctly asserted by petitioner ATI, the shortage, if any, may have been due to the inherent nature of the subject
shipment or its packaging since the subject cargo was shipped in bulk and had a moisture content of 12.5%.
It should be noted that the shortage being claimed by the respondent is minimal, and is an indication that it could be due to
consolidation or settlement of the subject shipment, as accurately observed by the petitioner. A Kansas State University study on
the handling and storage of soybeans and soybean meal35 is instructive on this matter. Pertinent portions of the study reads:
Soybean meal is difficult to handle because of poor flow ability and bridging characteristics. Soybean meal tends to settle or
consolidate over time. This phenomenon occurs in most granular materials and becomes more severe with increased moisture,
time and small particle size x x x.
xxxx
Moisture is perhaps the most important single factor affecting storage of soybeans and soybean meal. Soybeans contain
moisture ranging from 12% to 15% (wet basis) at harvest time x x x.
xxxx
Soybeans and soybean meal are hygroscopic materials and will either lose (desorb) or gain (adsorb) moisture from the
surrounding air. The moisture level reached by a product at a given constant temperature and equilibrium relative humidity
(ERH) is its equilibrium moisture content (EMC) x x x. (Emphasis supplied)
As indicated in the Proforma Invoice mentioned above, the moisture content of the subject shipment was 12.5%. Taking into
consideration the phenomena of desorption, the change in temperature surrounding the Soybean Meal from the time it left
wintertime Darrow, Louisiana, U.S.A. and the time it arrived in Manila, and the fact that the voyage of the subject cargo from
the point of loading to the point of unloading was 36 days, the shipment could have definitely lost weight, corresponding to the
amount of moisture it lost during transit.
The conclusion that the subject shipment lost weight in transit is bolstered by the testimony of Mr. Fernando Perez, a Cargo
Surveyor of L.J. Del Pan. The services of Mr. Perez were requested by respondent.36 Mr. Perez testified that it was possible for
the subject shipment to have lost weight during the 36-day voyage, as it was wintertime when M/V "Tern" left the United States
and the climate was warmer when it reached the Philippines; hence the moisture level of the Soybean Meal could have
changed.37 Moreover, Mr. Perez himself confirmed, by answering a question propounded by the RTC, that loss of weight of the
subject cargo cannot be avoided because of the shift in temperature from the colder United States weather to the warmer
Philippine climate.38
More importantly, the 199.863 metric-ton shortage that respondent alleges is a minimal 6.05% of the weight of the entire Soy
Bean Meal shipment. Taking into consideration the previously mentioned option of the shipper to ship 10% more or less than the
contracted shipment, and the fact that the alleged shortage is only 6.05% of the total quantity of 3,300 metric tons, the alleged
percentage loss clearly does not exceed the allowable 10% allowance for loss, as correctly argued by petitioner. The alleged loss,
if any, not having exceeded the allowable percentage of shortage, the respondent then has no cause of action to claim for
shortages.
Third, we agree with the petitioner ATI that respondent has not proven any negligence on the part of the former.
As petitioner ATI pointed out, a reading of the Survey Report of Del Pan Surveyors 39 (Exhibits "D" to "D-4" of respondent)
would not show any untoward incident or negligence on the part of petitioner ATI during the discharging operations.
Page 21 of 53 TORTS MEETING 2
Also, a reading of Exhibits "D", "D-1", and "D-2" would show that the methods used in determining whether there was a
shortage are not accurate.
Respondent relied on the Survey Reports of Del Pan Surveyors to prove that the subject shipment suffered loss. The conclusion
that there was a shortage arose from an evaluation of the weight of the cargo using the barge displacement method. This is a type
of draught survey, which is a method of cargo weight determination by ship’s displacement calculations. 40 The basic principle
upon which the draught survey methodology is based is the Principle of Archimedes, i.e., a vessel when floating in water, will
displace a weight of water equal to its own weight.41 It then follows that if a weight of cargo is loaded on (or unloaded from) a
vessel freely floating in water, then the vessel will sink (or float) into the water until the total weight of water displaced is equal
to the original weight of the vessel, plus (or minus) the cargo which has been loaded (or unloaded) and plus (or minus) density
variation of the water between the starting survey (first measurement) and the finishing survey (second measurement).42 It can be
seen that this method does not entail the weighing of the cargo itself, but as correctly stated by the petitioner, the weight of the
shipment is being measured by mere estimation of the water displaced by the barges before and after the cargo is unloaded from
the said barges.
In addition, the fact that the measurements were done by Del Pan Surveyors in prevailing slight to slightly rough sea
condition43 supports the conclusion that the resulting measurement may not be accurate. A United Nations study on draught
surveys44 in fact states that the accuracy of draught surveys will be dependent upon several factors, one of which is the weather
and seas condition in the harbor.
Also, it can be seen in respondent’s own Exhibit "D-1" that the actual weight of the cargo was established by weighing 20% of
the cargo. Though we recognize the practicality of establishing cargo weight through random sampling, we note the discrepancy
in the weights used in the determination of the alleged shortage.
Exhibit "D-1" of respondent states that the average weight of each bag is 52 kilos. A total of 63,391 bags45 were discharged from
the barges, and the tare weight46 was established at 0.0950 kilos.47 Therefore, if one were to multiply 52 kilos per bag by 63,391
bags and deduct the tare weight of 0.0950 kilos multiplied by 63,391 bags, the result would be 3,290,309.65 kilos, or 3,290.310
metric tons. This would mean that the shortage was only 9.69 metric tons, if we suppose that respondent was able to establish
that the shipment actually weighed 3,300 metric tons at the port of loading.
However, the computation in Exhibit "D-2" would show that Del Pan Surveyors inexplicably used 49 kilos as the weight per
bag, instead of 52 kilos, therefore resulting in the total net weight of 3,100,137 kilos or 3,100.137 metric tons. This was the
figure used as basis for respondent's conclusion that there is a shortage of 199.863 metric tons.48
These discrepancies only lend credence to petitioner ATI's assertion that the weighing methods respondent used as bases are
unreliable and should not be completely relied upon.
Considering that respondent was not able to establish conclusively that the subject shipment weighed 3,300 metric tons at the
port of loading, and that it cannot therefore be concluded that there was a shortage for which petitioner should be responsible;
bearing in mind that the subject shipment most likely lost weight in transit due to the inherent nature of Soya Bean Meal;
assuming that the shipment lost weight in transit due to desorption, the shortage of 199.863 metric tons that respondent alleges is
a minimal 6.05% of the weight of the entire shipment, which is within the allowable 10% allowance for loss; and noting that the
respondent was not able to show negligence on the part of the petitioner and that the weighing methods which respondent relied
upon to establish the shortage it alleges is inaccurate, respondent cannot fairly claim damages against petitioner for the subject
shipment's alleged shortage.
WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated November 27, 2006 and Resolution
dated March 23, 2007 of the Court of Appeals in CA-G.R. CV No. 71210 are REVERSED AND SET ASIDE insofar as
petitioner Asian Terminals, Inc. is concerned. Needless to add, the complaint against petitioner docketed as RTC Manila Civil
Case No. 96-81101 is ordered DISMISSED.
No pronouncement as to costs.SO ORDERED.
TORTS 16
G.R. No. 130547 October 3, 2000
LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, and minors LLOYD and KRISTINE, all surnamed REYES,
represented by their mother, LEAH ALESNA REYES, petitioners,
vs.
SISTERS OF MERCY HOSPITAL, SISTER ROSE PALACIO, DR. MARVIE BLANES, and DR. MARLYN
RICO, respondents.
DECISION
MENDOZA, J.:
This is a petition for review of the decision 1 of the Court of Appeals in CA-G.R. CV No. 36551 affirming the decision of the
Regional Trial Court, Branch IX, Cebu City which dismissed a complaint for damages filed by petitioners against respondents.
The facts are as follows:
Petitioner Leah Alesna Reyes is the wife of the late Jorge Reyes. The other petitioners, namely, Rose Nahdja, Johnny, Lloyd,
and Kristine, all surnamed Reyes, were their children. Five days before his death on January 8, 1987, Jorge had been suffering
from a recurring fever with chills. After he failed to get relief from some home medication he was taking, which consisted of
analgesic, antipyretic, and antibiotics, he decided to see the doctor.
On January 8, 1987, he was taken to the Mercy Community Clinic by his wife. He was attended to by respondent Dr. Marlyn
Rico, resident physician and admitting physician on duty, who gave Jorge a physical examination and took his medical history.
She noted that at the time of his admission, Jorge was conscious, ambulatory, oriented, coherent, and with respiratory
distress.2 Typhoid fever was then prevalent in the locality, as the clinic had been getting from 15 to 20 cases of typhoid per
month.3 Suspecting that Jorge could be suffering from this disease, Dr. Rico ordered a Widal Test, a standard test for typhoid
fever, to be performed on Jorge. Blood count, routine urinalysis, stool examination, and malarial smear were also made. 4 After
about an hour, the medical technician submitted the results of the test from which Dr. Rico concluded that Jorge was positive for
typhoid fever. As her shift was only up to 5:00 p.m., Dr. Rico indorsed Jorge to respondent Dr. Marvie Blanes.
Dr. Marvie Blanes attended to Jorge at around six in the evening. She also took Jorge’s history and gave him a physical
examination. Like Dr. Rico, her impression was that Jorge had typhoid fever. Antibiotics being the accepted treatment for
typhoid fever, she ordered that a compatibility test with the antibiotic chloromycetin be done on Jorge. Said test was
administered by nurse Josephine Pagente who also gave the patient a dose of triglobe. As she did not observe any adverse
reaction by the patient to chloromycetin, Dr. Blanes ordered the first five hundred milligrams of said antibiotic to be
administered on Jorge at around 9:00 p.m. A second dose was administered on Jorge about three hours later just before midnight.
At around 1:00 a.m. of January 9, 1987, Dr. Blanes was called as Jorge’s temperature rose to 41°C. The patient also experienced
chills and exhibited respiratory distress, nausea, vomiting, and convulsions. Dr. Blanes put him under oxygen, used a suction
machine, and administered hydrocortisone, temporarily easing the patient’s convulsions. When he regained consciousness, the
patient was asked by Dr. Blanes whether he had a previous heart ailment or had suffered from chest pains in the past. Jorge
replied he did not.5 After about 15 minutes, however, Jorge again started to vomit, showed restlessness, and his convulsions
returned. Dr. Blanes re-applied the emergency measures taken before and, in addition, valium was administered. Jorge, however,
did not respond to the treatment and slipped into cyanosis, a bluish or purplish discoloration of the skin or mucous membrane
due to deficient oxygenation of the blood. At around 2:00 a.m., Jorge died. He was forty years old. The cause of his death was
"Ventricular Arrythemia Secondary to Hyperpyrexia and typhoid fever."
On June 3, 1987, petitioners filed before the Regional Trial Court of Cebu City a complaint 6 for damages against respondents
Sisters of Mercy, Sister Rose Palacio, Dr. Marvie Blanes, Dr. Marlyn Rico, and nurse Josephine Pagente. On September 24,
Page 22 of 53 TORTS MEETING 2
1987, petitioners amended their complaint to implead respondent Mercy Community Clinic as additional defendant and to drop
the name of Josephine Pagente as defendant since she was no longer connected with respondent hospital. Their principal
contention was that Jorge did not die of typhoid fever.7 Instead, his death was due to the wrongful administration of
chloromycetin. They contended that had respondent doctors exercised due care and diligence, they would not have
recommended and rushed the performance of the Widal Test, hastily concluded that Jorge was suffering from typhoid fever, and
administered chloromycetin without first conducting sufficient tests on the patient’s compatibility with said drug. They charged
respondent clinic and its directress, Sister Rose Palacio, with negligence in failing to provide adequate facilities and in hiring
negligent doctors and nurses.8
Respondents denied the charges. During the pre-trial conference, the parties agreed to limit the issues on the following: (1)
whether the death of Jorge Reyes was due to or caused by the negligence, carelessness, imprudence, and lack of skill or foresight
on the part of defendants; (2) whether respondent Mercy Community Clinic was negligent in the hiring of its employees; and (3)
whether either party was entitled to damages. The case was then heard by the trial court during which, in addition to the
testimonies of the parties, the testimonies of doctors as expert witnesses were presented.
Petitioners offered the testimony of Dr. Apolinar Vacalares, Chief Pathologist at the Northern Mindanao Training Hospital,
Cagayan de Oro City. On January 9, 1987, Dr. Vacalares performed an autopsy on Jorge Reyes to determine the cause of his
death. However, he did not open the skull to examine the brain. His findings 9 showed that the gastro-intestinal tract was normal
and without any ulceration or enlargement of the nodules. Dr. Vacalares testified that Jorge did not die of typhoid fever. He also
stated that he had not seen a patient die of typhoid fever within five days from the onset of the disease.
For their part, respondents offered the testimonies of Dr. Peter Gotiong and Dr. Ibarra Panopio. Dr. Gotiong is a diplomate in
internal medicine whose expertise is microbiology and infectious diseases. He is also a consultant at the Cebu City Medical
Center and an associate professor of medicine at the South Western University College of Medicine in Cebu City. He had treated
over a thousand cases of typhoid patients. According to Dr. Gotiong, the patient’s history and positive Widal Test results ratio of
1:320 would make him suspect that the patient had typhoid fever. As to Dr. Vacalares’ observation regarding the absence of
ulceration in Jorge’s gastro-intestinal tract, Dr. Gotiong said that such hyperplasia in the intestines of a typhoid victim may be
microscopic. He noted that since the toxic effect of typhoid fever may lead to meningitis, Dr. Vacalares’ autopsy should have
included an examination of the brain.10
The other doctor presented was Dr. Ibarra Panopio, a member of the American Board of Pathology, examiner of the Philippine
Board of Pathology from 1978 to 1991, fellow of the Philippine Society of Pathologist, associate professor of the Cebu Institute
of Medicine, and chief pathologist of the Andres Soriano Jr. Memorial Hospital in Toledo City. Dr. Panopio stated that although
he was partial to the use of the culture test for its greater reliability in the diagnosis of typhoid fever, the Widal Test may also be
used. Like Dr. Gotiong, he agreed that the 1:320 ratio in Jorge’s case was already the maximum by which a conclusion of
typhoid fever may be made. No additional information may be deduced from a higher dilution. 11 He said that Dr. Vacalares’
autopsy on Jorge was incomplete and thus inconclusive.
On September 12, 1991, the trial court rendered its decision absolving respondents from the charges of negligence and
dismissing petitioners’ action for damages. The trial court likewise dismissed respondents’ counterclaim, holding that, in seeking
damages from respondents, petitioners were impelled by the honest belief that Jorge’s death was due to the latter’s negligence.
Petitioners brought the matter to the Court of Appeals. On July 31, 1997, the Court of Appeals affirmed the decision of the trial
court.
Hence this petition.
Petitioners raise the following assignment of errors:
I. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT
THE DOCTRINE OF RES IPSA LOQUITUR IS NOT APPLICABLE IN THE INSTANT CASE.
 II. THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT MADE AN
UNFOUNDED ASSUMPTION THAT THE LEVEL OF MEDICAL PRACTICE IS LOWER IN ILIGAN CITY.
III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED FOR A LESSER
STANDARD OF CARE AND DEGREE OF DILIGENCE FOR MEDICAL PRACTICE IN ILIGAN CITY WHEN
IT APPRECIATE[D] NO DOCTOR’S NEGLIGENCE IN THE TREATMENT OF JORGE REYES.
Petitioner’s action is for medical malpractice. This is a particular form of negligence which consists in the failure of a physician
or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession
generally, under similar conditions, and in like surrounding circumstances.12 In order to successfully pursue such a claim, a
patient must prove that the physician or surgeon either failed to do something which a reasonably prudent physician or surgeon
would have done, or that he or she did something that a reasonably prudent physician or surgeon would not have done, and that
the failure or action caused injury to the patient. 13 There are thus four elements involved in medical negligence cases, namely:
duty, breach, injury, and proximate causation.
In the present case, there is no doubt that a physician-patient relationship existed between respondent doctors and Jorge Reyes.
Respondents were thus duty-bound to use at least the same level of care that any reasonably competent doctor would use to treat
a condition under the same circumstances. It is breach of this duty which constitutes actionable malpractice.14 As to this aspect of
medical malpractice, the determination of the reasonable level of care and the breach thereof, expert testimony is essential.
Inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge,
it has been recognized that expert testimony is usually necessary to support the conclusion as to causation.15
Res Ipsa Loquitur
There is a case when expert testimony may be dispensed with, and that is under the doctrine of res ipsa loquitur. As held
in Ramos v. Court of Appeals:16
Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent
act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitor is availed by the plaintiff,
the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is
that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical
science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with
the facts. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has
been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of
physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-
expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent
upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common
knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury
would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an
application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what
occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the
particular act or omission complained of and the injury sustained while under the custody and management of the defendant
without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitor is allowed because
there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of
the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the area, of treatment,
removal of the wrong part of the body when another part was intended, knocking out a tooth while a patient’s jaw was under
anesthetic for the removal of his tonsils, and loss of an eye while the patient was under the influence of anesthetic, during or
following an operation for appendicitis, among others.17
Petitioners asserted in the Court of Appeals that the doctrine of res ipsa loquitur applies to the present case because Jorge Reyes
was merely experiencing fever and chills for five days and was fully conscious, coherent, and ambulant when he went to the
hospital. Yet, he died after only ten hours from the time of his admission.
Page 23 of 53 TORTS MEETING 2
This contention was rejected by the appellate court.
Petitioners now contend that all requisites for the application of res ipsa loquitur were present, namely: (1) the accident was of a
kind which does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused the injury was
under the exclusive control of the person in charge; and (3) the injury suffered must not have been due to any voluntary action or
contribution of the person injured.18
The contention is without merit. We agree with the ruling of the Court of Appeals. In the Ramos case, the question was whether
a surgeon, an anesthesiologist, and a hospital should be made liable for the comatose condition of a patient scheduled for
cholecystectomy.19 In that case, the patient was given anesthesia prior to her operation. Noting that the patient was neurologically
sound at the time of her operation, the Court applied the doctrine of res ipsa loquitur as mental brain damage does not normally
occur in a gallblader operation in the absence of negligence of the anesthesiologist. Taking judicial notice that anesthesia
procedures had become so common that even an ordinary person could tell if it was administered properly, we allowed the
testimony of a witness who was not an expert. In this case, while it is true that the patient died just a few hours after professional
medical assistance was rendered, there is really nothing unusual or extraordinary about his death. Prior to his admission, the
patient already had recurring fevers and chills for five days unrelieved by the analgesic, antipyretic, and antibiotics given him by
his wife. This shows that he had been suffering from a serious illness and professional medical help came too late for him.
Respondents alleged failure to observe due care was not immediately apparent to a layman so as to justify application of res ipsa
loquitur. The question required expert opinion on the alleged breach by respondents of the standard of care required by the
circumstances. Furthermore, on the issue of the correctness of her diagnosis, no presumption of negligence can be applied to Dr.
Marlyn Rico.As held in Ramos:
. . . . Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending
upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as
a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily
have followed if due care had been exercised. A distinction must be made between the failure to secure results, and the
occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure
of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a
suit against a physician or a surgeon which involves the merits of a diagnosis or of a scientific treatment. The physician or
surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific
treatment did not produce the desired result.20
Specific Acts of Negligence
We turn to the question whether petitioners have established specific acts of negligence allegedly committed by respondent
doctors.
Petitioners contend that: (1) Dr. Marlyn Rico hastily and erroneously relied upon the Widal test, diagnosed Jorge’s illness as
typhoid fever, and immediately prescribed the administration of the antibiotic chloromycetin;21 and (2) Dr. Marvie Blanes erred
in ordering the administration of the second dose of 500 milligrams of chloromycetin barely three hours after the first was
given.22 Petitioners presented the testimony of Dr. Apolinar Vacalares, Chief Pathologist of the Northern Mindanao Training
Hospital, Cagayan de Oro City, who performed an autopsy on the body of Jorge Reyes. Dr. Vacalares testified that, based on his
findings during the autopsy, Jorge Reyes did not die of typhoid fever but of shock undetermined, which could be due to allergic
reaction or chloromycetin overdose. We are not persuaded.
First. While petitioners presented Dr. Apolinar Vacalares as an expert witness, we do not find him to be so as he is not a
specialist on infectious diseases like typhoid fever. Furthermore, although he may have had extensive experience in performing
autopsies, he admitted that he had yet to do one on the body of a typhoid victim at the time he conducted the postmortem on
Jorge Reyes. It is also plain from his testimony that he has treated only about three cases of typhoid fever. Thus, he testified
that:23
ATTY. PASCUAL:
Q Why? Have you not testified earlier that you have never seen a patient who died of typhoid fever?
A In autopsy. But, that was when I was a resident physician yet.
Q But you have not performed an autopsy of a patient who died of typhoid fever?
A I have not seen one.
Q And you testified that you have never seen a patient who died of typhoid fever within five days?
A I have not seen one.
Q How many typhoid fever cases had you seen while you were in the general practice of medicine?
A In our case we had no widal test that time so we cannot consider that the typhoid fever is like this and like that. And the widal
test does not specify the time of the typhoid fever.
Q The question is: how many typhoid fever cases had you seen in your general practice regardless of the cases now you
practice?
A I had only seen three cases.
Q And that was way back in 1964?
A Way back after my training in UP.
Q Clinically?
A Way back before my training.
He is thus not qualified to prove that Dr. Marlyn Rico erred in her diagnosis. Both lower courts were therefore correct in
discarding his testimony, which is really inadmissible.
In Ramos, the defendants presented the testimony of a pulmonologist to prove that brain injury was due to oxygen deprivation
after the patient had bronchospasms24 triggered by her allergic response to a drug,25 and not due to faulty intubation by the
anesthesiologist. As the issue was whether the intubation was properly performed by an anesthesiologist, we rejected the opinion
of the pulmonologist on the ground that he was not: (1) an anesthesiologist who could enlighten the court about anesthesia
practice, procedure, and their complications; nor (2) an allergologist who could properly advance expert opinion on allergic
mediated processes; nor (3) a pharmacologist who could explain the pharmacologic and toxic effects of the drug allegedly
responsible for the bronchospasms.
Second. On the other hand, the two doctors presented by respondents clearly were experts on the subject. They vouched for the
correctness of Dr. Marlyn Rico’s diagnosis. Dr. Peter Gotiong, a diplomate whose specialization is infectious diseases and
microbiology and an associate professor at the Southwestern University College of Medicine and the Gullas College of
Medicine, testified that he has already treated over a thousand cases of typhoid fever. 26 According to him, when a case of typhoid
fever is suspected, the Widal test is normally used,27 and if the 1:320 results of the Widal test on Jorge Reyes had been presented
to him along with the patient’s history, his impression would also be that the patient was suffering from typhoid fever. 28 As to the
treatment of the disease, he stated that chloromycetin was the drug of choice. 29 He also explained that despite the measures taken
by respondent doctors and the intravenous administration of two doses of chloromycetin, complications of the disease could not
be discounted. His testimony is as follows:30
Page 24 of 53 TORTS MEETING 2
ATTY. PASCUAL:
Q If with that count with the test of positive for 1 is to 320, what treatment if any would be given?
A If those are the findings that would be presented to me, the first thing I would consider would be typhoid fever.
Q And presently what are the treatments commonly used?
A Drug of choice of chloramphenical.
Q Doctor, if given the same patient and after you have administered chloramphenical about 3 1/2 hours later, the patient
associated with chills, temperature - 41oC, what could possibly come to your mind?
A Well, when it is change in the clinical finding, you have to think of complication.
Q And what will you consider on the complication of typhoid?
A One must first understand that typhoid fever is toximia. The problem is complications are caused by toxins produced by the
bacteria . . . whether you have suffered complications to think of -- heart toxic myocardities; then you can consider a toxic
meningitis and other complications and perforations and bleeding in the ilium.
Q Even that 40-year old married patient who received medication of chloromycetin of 500 milligrams intravenous, after the skin
test, and received a second dose of chloromycetin of 500 miligrams, 3 hours later, the patient developed chills . . . rise in
temperature to 41oC, and then about 40 minutes later the temperature rose to 100oF, cardiac rate of 150 per minute who appeared
to be coherent, restless, nauseating, with seizures: what significance could you attach to these clinical changes?
A I would then think of toxemia, which was toxic meningitis and probably a toxic meningitis because of the high cardiac rate.
Q Even if the same patient who, after having given intramuscular valium, became conscious and coherent about 20 minutes later,
have seizure and cyanosis and rolling of eyeballs and vomitting . . . and death: what significance would you attach to this
development?
A We are probably dealing with typhoid to meningitis.
Q In such case, Doctor, what finding if any could you expect on the post-mortem examination?
A No, the finding would be more on the meninges or covering of the brain.
Q And in order to see those changes would it require opening the skull?
A Yes.
As regards Dr. Vacalares’ finding during the autopsy that the deceased’s gastro-intestinal tract was normal, Dr. Rico explained
that, while hyperplasia31 in the payer’s patches or layers of the small intestines is present in typhoid fever, the same may not
always be grossly visible and a microscope was needed to see the texture of the cells.32
Respondents also presented the testimony of Dr. Ibarra T. Panopio who is a member of the Philippine and American Board of
Pathology, an examiner of the Philippine Board of Pathology, and chief pathologist at the MetroCebu Community Hospital,
Perpetual Succor Hospital, and the Andres Soriano Jr. Memorial Medical Center. He stated that, as a clinical pathologist, he
recognized that the Widal test is used for typhoid patients, although he did not encourage its use because a single test would only
give a presumption necessitating that the test be repeated, becoming more conclusive at the second and third weeks of the
disease.33 He corroborated Dr. Gotiong’s testimony that the danger with typhoid fever is really the possible complications which
could develop like perforation, hemorrhage, as well as liver and cerebral complications. 34 As regards the 1:320 results of the
Widal test on Jorge Reyes, Dr. Panopio stated that no additional information could be obtained from a higher ratio. 35 He also
agreed with Dr. Gotiong that hyperplasia in the payer’s patches may be microscopic. 36
Indeed, the standard contemplated is not what is actually the average merit among all known practitioners from the best to the
worst and from the most to the least experienced, but the reasonable average merit among the ordinarily good physicians. 37 Here,
Dr. Marlyn Rico did not depart from the reasonable standard recommended by the experts as she in fact observed the due care
required under the circumstances. Though the Widal test is not conclusive, it remains a standard diagnostic test for typhoid fever
and, in the present case, greater accuracy through repeated testing was rendered unobtainable by the early death of the patient.
The results of the Widal test and the patient’s history of fever with chills for five days, taken with the fact that typhoid fever was
then prevalent as indicated by the fact that the clinic had been getting about 15 to 20 typhoid cases a month, were sufficient to
give upon any doctor of reasonable skill the impression that Jorge Reyes had typhoid fever.
Dr. Rico was also justified in recommending the administration of the drug chloromycetin, the drug of choice for typhoid fever.
The burden of proving that Jorge Reyes was suffering from any other illness rested with the petitioners. As they failed to present
expert opinion on this, preponderant evidence to support their contention is clearly absent.
medical practice is lower in Iligan City, thereby reducing the standard of care and degree of diligence required from physicians
and surgeons in Iligan City.
The standard of extraordinary diligence is peculiar to common carriers. The Civil Code provides:
Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe
extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to the
circumstances of each case. . . .
The practice of medicine is a profession engaged in only by qualified individuals.1âwphi1 It is a right earned through years of
education, training, and by first obtaining a license from the state through professional board examinations. Such license may, at
any time and for cause, be revoked by the government. In addition to state regulation, the conduct of doctors is also strictly
governed by the Hippocratic Oath, an ancient code of discipline and ethical rules which doctors have imposed upon themselves
in recognition and acceptance of their great responsibility to society. Given these safeguards, there is no need to expressly
require of doctors the observance of "extraordinary" diligence. As it is now, the practice of medicine is already conditioned upon
the highest degree of diligence. And, as we have already noted, the standard contemplated for doctors is simply the reasonable
average merit among ordinarily good physicians. That is reasonable diligence for doctors or, as the Court of Appeals called it,
the reasonable "skill and competence . . . that a physician in the same or similar locality . . . should apply."

WHEREFORE, the instant petition is DENIED and the decision of the Court of Appeals is AFFIRMED.
Third. Petitioners contend that respondent Dr. Marvie Blanes, who took over from Dr. Rico, was negligent in ordering the
intravenous administration of two doses of 500 milligrams of chloromycetin at an interval of less than three hours. Petitioners
claim that Jorge Reyes died of anaphylactic shock38 or possibly from overdose as the second dose should have been administered SO ORDERED.
five to six hours after the first, per instruction of Dr. Marlyn Rico. As held by the Court of Appeals, however:

That chloromycetin was likewise a proper prescription is best established by medical authority. Wilson, et. al., in Harrison’s
Principle of Internal Medicine, 12th ed. write that chlorampenicol (which is the generic of chloromycetin) is the drug of choice
for typhoid fever and that no drug has yet proven better in promoting a favorable clinical response. "Chlorampenicol
(Chloromycetin) is specifically indicated for bacterial meningitis, typhoid fever, rickettsial infections, bacteriodes infections,
etc." (PIMS Annual, 1994, p. 211) The dosage likewise including the first administration of five hundred milligrams (500 mg.) at
around nine o’clock in the evening and the second dose at around 11:30 the same night was still within medically acceptable
limits, since the recommended dose of chloromycetin is one (1) gram every six (6) hours. (cf. Pediatric Drug Handbook, 1st Ed.,
Philippine Pediatric Society, Committee on Therapeutics and Toxicology, 1996). The intravenous route is likewise correct.
(Mansser, O’Nick, Pharmacology and Therapeutics) Even if the test was not administered by the physician-on-duty, the evidence
introduced that it was Dra. Blanes who interpreted the results remain uncontroverted. (Decision, pp. 16-17) Once more, this
Court rejects any claim of professional negligence in this regard.

....

As regards anaphylactic shock, the usual way of guarding against it prior to the administration of a drug, is the skin test of
which, however, it has been observed: "Skin testing with haptenic drugs is generally not reliable. Certain drugs cause
nonspecific histamine release, producing a weal-and-flare reaction in normal individuals. Immunologic activation of mast cells
requires a polyvalent allergen, so a negative skin test to a univalent haptenic drug does not rule out anaphylactic sensitivity to
that drug." (Terr, "Anaphylaxis and Urticaria" in Basic and Clinical Immunology, p. 349) What all this means legally is that even
if the deceased suffered from an anaphylactic shock, this, of itself, would not yet establish the negligence of the appellee-
physicians for all that the law requires of them is that they perform the standard tests and perform standard procedures. The law
cannot require them to predict every possible reaction to all drugs administered. The onus probandi was on the appellants to
establish, before the trial court, that the appellee-physicians ignored standard medical procedure, prescribed and administered
medication with recklessness and exhibited an absence of the competence and skills expected of general practitioners similarly
situated.39

Fourth. Petitioners correctly observe that the medical profession is one which, like the business of a common carrier, is affected
with public interest. Moreover, they assert that since the law imposes upon common carriers the duty of observing extraordinary
diligence in the vigilance over the goods and for the safety of the passengers, 40 physicians and surgeons should have the same
duty toward their patients.41 They also contend that the Court of Appeals erred when it allegedly assumed that the level of
Page 25 of 53 TORTS MEETING 2
TORTS 17
G.R. No. 122445 November 18, 1997
DR. NINEVETCH CRUZ, petitioner,
vs.
COURT OF APPEALS and LYDIA UMALI, respondents.
FRANCISCO, J.:
Doctors are protected by a special rule of law. They are not guarantors of care. They do not even warrant a good result. They are
not insurers against mishaps or unusual consequences. Furthermore they are not liable for honest mistakes of judgment . . . 1
The present case against petitioner is in the nature of a medical malpractice suit, which in simplest terms is the 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. 2 In this jurisdiction, however, such claims are most often brought as a civil action for damages under Article 2176 of the
Civil Code, 3 and in some instances, as a criminal case under Article 365 of the Revised Penal Code 4 with which the civil action
for damages is impliedly instituted. It is via the latter type of action that the heirs of the deceased sought redress for the
petitioner's alleged imprudence and negligence in treating the deceased thereby causing her death. The petitioner and one Dr.
Lina Ercillo who was the attending anaesthesiologist during the operation of the deceased were charged with "reckless
imprudence and negligence resulting to (sic) homicide" in an information which reads:
That on or about March 23, 1991, in the City of San Pablo, Republic of the Philippines and within the jurisdiction of
this Honorable Court, the accused above named, being then the attending anaesthesiologist and surgeon, respectively,
did then and there, in a negligence (sic), careless, imprudent, and incompetent manner, and failing to supply or store
sufficient provisions and facilities necessary to meet any and all exigencies apt to arise before, during and/or after a
surgical operation causing by such negligence, carelessness, imprudence, and incompetence, and causing by such
failure, including the lack of preparation and foresight needed to avert a tragedy, the untimely death of said Lydia Umali
on the day following said surgical operation. 5
Trial ensued after both the petitioner and Dr. Lina Ercillo pleaded not guilty to the above-mentioned charge. On March 4, 1994,
the Municipal Trial Court in Cities (MTCC) of San Pablo City rendered a decision, the dispositive portion of which is hereunder
quoted as follows:
WHEREFORE, the court finds the accused Dra. Lina Ercillo not guilty of the offense charged for insufficiency of
evidence while her co-accused Dra. Ninevetch Cruz is hereby held responsible for the death of Lydia Umali on March
24, 1991, and therefore guilty under Art. 365 of the Revised Penal Code, and she is hereby sentenced to suffer the
penalty of 2 months and 1 day imprisonment of arresto mayor with costs. 6
The petitioner appealed her conviction to the Regional Trial Court (RTC) which affirmed in toto the decision of the
MTCC 7 prompting the petitioner to file a petition for review with the Court of Appeals but to no avail. Hence this petition
for review on certiorari assailing the decision promulgated by the Court of Appeals on October 24, 1995 affirming
petitioner's conviction with modification that she is further directed to pay the heirs of Lydia Umali P50,000.00 as indemnity
for her death.8
In substance, the petition brought before this Court raises the issue of whether or not petitioner's conviction of the crime of
reckless imprudence resulting in homicide, arising from an alleged medical malpractice, is supported by the evidence on
record.
First the antecedent facts.
Page 26 of 53 TORTS MEETING 2
On March 22, 1991, prosecution witness, Rowena Umali De Ocampo, accompanied her mother to the Perpetual Help Clinic and
General Hospital situated in Balagtas Street, San Pablo City, Laguna. They arrived at the said hospital at around 4:30 in the
afternoon of the same day. 9 Prior to
March 22, 1991, Lydia was examined by the petitioner who found a "myoma" 10 in her uterus, and scheduled her for a
hysterectomy operation on March 23,
1991. 11 Rowena and her mother slept in the clinic on the evening of March 22, 1991 as the latter was to be operated on the next
12
day at 1:00 o'clock in the afternoon. According to Rowena, she noticed that the clinic was untidy and the window and the floor
were very dusty prompting her to ask the attendant for a rag to wipe the window and the floor with. 13 Because of the untidy state
of the clinic, Rowena tried to persuade her mother not to proceed with the operation. 14 The following day, before her mother
was wheeled into the operating room, Rowena asked the petitioner if the operation could be postponed. The petitioner called
Lydia into her office and the two had a conversation. Lydia then informed Rowena that the petitioner told her that she must be
operated on as scheduled. 15
Rowena and her other relatives, namely her husband, her sister and two aunts waited outside the operating room while Lydia
underwent operation. While they were waiting, Dr. Ercillo went out of the operating room and instructed them to buy tagamet
ampules which Rowena's sister immediately bought. About one hour had passed when Dr. Ercillo came out again this time to ask
them to buy blood for Lydia. They bought type "A" blood from the St. Gerald Blood Bank and the same was brought by the
attendant into the operating room. After the lapse of a few hours, the petitioner informed them that the operation was finished.
The operating staff then went inside the petitioner's clinic to take their snacks. Some thirty minutes after, Lydia was brought out
of the operating room in a stretcher and the petitioner asked Rowena and the other relatives to buy additional blood for Lydia.
Unfortunately, they were not able to comply with petitioner's order as there was no more type "A" blood available in the blood
bank. Thereafter, a person arrived to donate blood which was later transfused to Lydia. Rowena then noticed her mother, who
was attached to an oxygen tank, gasping for breath. Apparently the oxygen supply had run out and Rowena's husband together
with the driver of the accused had to go to the San Pablo District Hospital to get oxygen. Lydia was given the fresh supply of
oxygen as soon as it arrived. 16 But at around 10:00 o'clock P.M. she went into shock and her blood pressure dropped to 60/50.
Lydia's unstable condition necessitated her transfer to the San Pablo District Hospital so she could be connected to a respirator
and further examined. 17 The transfer to the San Pablo District Hospital was without the prior consent of Rowena nor of the other
relatives present who found out about the intended transfer only when an ambulance arrived to take Lydia to the San Pablo
District Hospital. Rowena and her other relatives then boarded a tricycle and followed the ambulance. 18
Upon Lydia's arrival at the San Pablo District Hospital, she was wheeled into the operating room and the petitioner and Dr.
Ercillo re-operated on her because there was blood oozing from the abdominal incision. 19 The attending physicians summoned
Dr. Bartolome Angeles, head of the Obstetrics and Gynecology Department of the San Pablo District Hospital. However, when
Dr. Angeles arrived, Lydia was already in shock and possibly dead as her blood pressure was already 0/0. Dr. Angeles then
informed petitioner and Dr. Ercillo that there was nothing he could do to help save the patient. 20 While the petitioner was
closing the abdominal wall, the patient died. 21 Thus, on March 24, 1991, at 3:00 o'clock in the morning, Lydia Umali was
pronounced dead. Her death certificate states "shock" as the immediate cause of death and "Disseminated Intravascular
Coagulation (DIC)" as the antecedent cause. 22
In convicting the petitioner, the MTCC found the following circumstances as sufficient basis to conclude that she was indeed
negligent in the performance of the operation:
. . . , the clinic was untidy, there was lack of provision like blood and oxygen to prepare for any contingency that might
happen during the operation. The manner and the fact that the patient was brought to the San Pablo District Hospital for
reoperation indicates that there was something wrong in the manner in which Dra. Cruz conducted the operation. There
was no showing that before the operation, accused Dra. Cruz had conducted a cardio pulmonary clearance or any typing
of the blood of the patient. It was (sic) said in medical parlance that the "the abdomen of the person is a temple of
surprises" because you do not know the whole thing the moment it was open (sic) and surgeon must be prepared for any
eventuality thereof. The patient (sic) chart which is a public document was not presented because it is only there that we
could determine the condition of the patient before the surgery. The court also noticed in Exh. "F-1" that the sister of the
deceased wished to postpone the operation but the patient was prevailed upon by Dra. Cruz to proceed with the surgery.
The court finds that Lydia Umali died because of the negligence and carelessness of the surgeon Dra. Ninevetch Cruz
because of loss of blood during the operation of the deceased for evident unpreparedness and for lack of skill, the reason
why the patient was brought for operation at the San Pablo City District Hospital. As such, the surgeon should answer
for such negligence. With respect to Dra. Lina Ercillo, the anaesthesiologist, there is no evidence to indicate that she
should be held jointly liable with Dra. Cruz who actually did the operation. 23
The RTC reiterated the abovementioned findings of the MTCC and upheld the latter's declaration of "incompetency, negligence
and lack of foresight and skill of appellant (herein petitioner) in handling the subject patient before and after the
operation." 24 And likewise affirming the petitioner's conviction, the Court of Appeals echoed similar observations, thus:
. . . While we may grant that the untidiness and filthiness of the clinic may not by itself indicate negligence, it
nevertheless shows the absence of due care and supervision over her subordinate employees. Did this unsanitary
condition permeate the operating room? Were the surgical instruments properly sterilized? Could the conditions in the
OR have contributed to the infection of the patient? Only the petitioner could answer these, but she opted not to testify.
This could only give rise to the presumption that she has nothing good to testify on her defense. Anyway, the alleged
"unverified statement of the prosecution witness" remains unchallenged and unrebutted.
Likewise undisputed is the prosecution's version indicating the following facts: that the accused asked the patient's
relatives to buy Tagamet capsules while the operation was already in progress; that after an hour, they were also asked
to buy type "A" blood for the patient; that after the surgery, they were again asked to procure more type "A" blood, but
such was not anymore available from the source; that the oxygen given to the patient was empty; and that the son-in-
law of the patient, together with a driver of the petitioner, had to rush to the San Pablo City District Hospital to get the
much-needed oxygen. All these conclusively show that the petitioner had not prepared for any unforeseen
circumstances before going into the first surgery, which was not emergency in nature, but was elective or pre-
scheduled; she had no ready antibiotics, no prepared blood, properly typed and cross-matched, and no sufficient oxygen
supply.
Moreover, there are a lot of questions that keep nagging Us. Was the patient given any cardio-pulmonary clearance, or
at least a clearance by an internist, which are standard requirements before a patient is subjected to surgery. Did the
petitioner determine as part of the pre-operative evaluation, the bleeding parameters of the patient, such as bleeding
time and clotting time? There is no showing that these were done. The petitioner just appears to have been in a hurry to
perform the operation, even as the family wanted a postponement to April 6, 1991. Obviously, she did not prepare the
patient; neither did she get the family's consent to the operation. Moreover, she did not prepare a medical chart with
instructions for the patient's care. If she did all these, proof thereof should have been offered. But there is none. Indeed,
these are overwhelming evidence of recklessness and imprudence. 25
This Court, however, holds differently and finds the foregoing circumstances insufficient to sustain a judgment of conviction
against the petitioner for the crime of reckless imprudence resulting in homicide. The elements of reckless 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 reckless 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 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. 26 In the
recent case of Leonila Garcia-Rueda v. Wilfred L. Pascasio, et al., 27 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. 28 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. 29
Immediately apparent from a review of the records of this case is the absence of any expert testimony on the matter of the
standard of care employed by other physicians of good standing in the conduct of similar operations. The prosecution's expert
witnesses in the persons of Dr. Floresto Arizala and Dr. Nieto Salvador, Jr. of the National Bureau of Investigation (NBI) only
testified as to the possible cause of death but did not venture to illuminate the court on the matter of the standard of care that
petitioner should have exercised.
Page 27 of 53 TORTS MEETING 2
All three courts below bewail the inadequacy of the facilities of the clinic and its untidiness; the lack of provisions such as blood,
oxygen, and certain medicines; the failure to subject the patient to a cardio-pulmonary test prior to the operation; the omission of
any form of blood typing before transfusion; and even the subsequent transfer of Lydia to the San Pablo Hospital and the
reoperation performed on her by the petitioner. But while it may be true that the circumstances pointed out by the courts below
seemed beyond cavil to constitute reckless imprudence on the part of the surgeon, this conclusion is still best arrived at not
through the educated surmises nor conjectures of laymen, including judges, but by the unquestionable knowledge of expert
witnesses. For whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient
is, in the generality of cases, a matter of expert opinion. 30 The deference of courts to the expert opinion of qualified physicians
stems from its realization that the latter possess unusual technical skills which laymen in most instances are incapable of
intelligently evaluating. 31 Expert testimony should have been offered to prove that the circumstances cited by the courts below
are constitutive of conduct falling below the standard of care employed by other physicians in good standing when performing
the same operation. It must be remembered that when the qualifications of a physician are admitted, as in the instant case, there
is an inevitable presumption that in proper cases he takes the necessary precaution and employs the best of his knowledge and
skill in attending to his clients, unless the contrary is sufficiently established. 32 This presumption is rebuttable by expert opinion
which is so sadly lacking in the case at bench.
Even granting arguendo that the inadequacy of the facilities and untidiness of the clinic; the lack of provisions; the failure to
conduct pre-operation tests on the patient; and the subsequent transfer of Lydia to the San Pablo Hospital and the reoperation
performed on her by the petitioner do indicate, even without expert testimony, that petitioner was recklessly imprudent in the
exercise of her duties as a surgeon, no cogent proof exists that any of these circumstances caused petitioner's death. Thus, the
absence of the fourth element of reckless imprudence: that the injury to the person or property was a consequence of the reckless
imprudence.
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. 33 In Chan Lugay v. St. Luke's Hospital, Inc., 34 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." 35 (Emphasis supplied.)
Dr. Arizala who conducted an autopsy on the body of the deceased summarized his findings as follows:
Atty. Cachero:
Q. You mentioned about your Autopsy Report which has been marked as Exh. "A-1-b". There appears here a
signature above the typewritten name Floresto Arizala, Jr., whose signature is that?
A. That is my signature, sir.
Q. Do you affirm the truth of all the contents of Exh. "A-1-b"?
A. Only as to the autopsy report no. 91-09, the time and place and everything after the post mortem findings, sir.
Q. You mentioned on your "Post Mortem Findings" about surgical incision, 14:0 cm., infraumbilical area, anterior
abdominal area, midline, will you please explain that in your own language?
A. There was incision wound (sic) the area just below the navel, sir.
Q. And the last paragraph of the postmortem findings which I read: Uterus, pear-shaped and pale measuring 7.5 x
5.5 x 5.0 cm. with some surface nodulation of the fundic area posteriorly. Cut-section shows diffusely pale
myometrium with areas of streak induration. The ovaries and adnexal structures are missing with the raw surfaces
patched with clotted blood. Surgical sutures were noted on the operative site.
Intestines and mesenteries are pale with blood clots noted between the mesentric folds.
Hemoperitoneum: 300 s.s.,
right paracolic gutter,
 50 c.c., left paracolic gutter The testimonies of both doctors establish hemorrhage or hemorrhagic shock as the cause of death. However, as likewise testified
200 c.c., mesentric area, to by the expert witnesses in open court, hemorrhage or hemorrhagic shock during surgery may be caused by several different
100 c.c., right pelvic gutter factors. Thus, Dr. Salvador's elaboration on the matter:
stomach empty.
Atty. Pascual:
Other visceral organs, pale., Q. Doctor, among the causes of hemorrhage that you mentioned you said that it could be at the moment of
operation when one losses (sic) control of the presence, is that correct? During the operation there is lost (sic) of
control of the cut vessel?
will you please explain that on (sic) your own language or in ordinary. . . . . . . . . . . .
A. Yes, sir.
Q. Or there is a failure to ligate a vessel of considerable size?
A. There was a uterus which was not attached to the adnexal structures namely ovaries which were not present and A. Yes, sir.
also sign of previous surgical operation and there were (sic) clotted blood, sir. Q. Or even if the vessel were ligated the knot may have slipped later on?
Q. How about the ovaries and adnexal structures? A. Yes, sir.
A. They are missing, sir. Q. And you also mentioned that it may be possible also to some clotting defect, is that correct?
Q. You mean to say there are no ovaries? A. May be (sic). 38 (Emphasis supplied).
A. During that time there are no ovaries, sir.
Q. And there were likewise sign of surgical sutures?
Defense witness, Dr. Bu C. Castro also gave the following expert opinion:
A. Yes, sir.
Q. How about the intestines and mesenteries are place (sic) with blood clots noted between the mesenteric folds,
will you please explain on (sic) this? Q. Doctor even a patient after an operations (sic) would suffer hemorrage what would be the possible causes of
A. In the peritoneal cavity, they are mostly perritonial blood . . . . . . . . such hemorrage (sic)?
Q. And what could have caused this blood? A. Among those would be what we call Intravascular Coagulation and this is the reason for the bleeding, sir, which
A. Well, ordinarily blood is found inside the blood vessel. Blood were (sic) outside as a result of the injuries which cannot be prevented by anyone, it will happen to anyone, anytime and to any persons (sic), sir.
destroyed the integrity of the vessel allowing blood to sip (sic) out, sir. COURT:
Q. By the nature of the postmortem findings indicated in Exh. A-1-B, can you tell the court the cause of death? What do you think of the cause of the bleeding, the cutting or the operations done in the body?
A. Yes, sir. The cause of death is: Gross findings are compatible with hemorrhagic shock. A. Not related to this one, the bleeding here is not related to any cutting or operation that I (sic) have done.
Q. Can you tell the us what could have caused this hemorrhagic shock? Q. Aside from the DIC what could another causes (sic) that could be the cause for the hemorrhage or bleeding in a
A. Well hemorrhagic shock is the result of blood loss. patient by an operations (sic)?
Q. What could have the effect of that loss of blood? A. In general sir, if there was an operations (sic) and it is possible that the ligature in the suture was (sic) become
A. Unattended hemorrhage, sir. 36 (Emphasis supplied.) (sic) loose, it is (sic) becomes loose if proven..
xxx xxx xxx
Q. If the person who performed an autopsy does not find any untight (sic) clot (sic) blood vessel or any suture that
The foregoing was corroborated by Dr. Nieto Salvador:
become (sic) loose the cause of the bleeding could not be attributed to the fault of the subject?
A. Definitely, sir. 39 (Emphasis supplied.)
Q. And were you able to determine the cause of death by virtue of the examination of the specimen submitted by
Dr. Arizala?
According to both doctors, the possible causes of hemorrhage during an operation are: (1) the failure of the surgeon to tie or
A. Without knowledge of the autopsy findings it would be difficult for me to determine the cause of death, sir.
suture a cut blood vessel; (2) allowing a cut blood vessel to get out of control; (3) the subsequent loosening of the tie or suture
Q. Have you also examined the post mortem of Dr. Arizala?
applied to a cut blood vessel; and (4) and a clotting defect known as DIC. It is significant to state at this juncture that the autopsy
A. Yes, sir, and by virtue of the autopsy report in connection with your pathology report.
conducted by Dr. Arizala on the body of Lydia did not reveal any untied or unsutured cut blood vessel nor was there any
Q. What could have caused the death of the victim?
indication that the tie or suture of a cut blood vessel had become loose thereby causing the hemorrhage. 40 Hence the following
A. This pathologic examination are (sic) compatible with the person who died, sir.
pertinent portion of Dr. Arizala's testimony:
Q. Will you explain to us the meaning of hemorrhagic compatible?
A. It means that a person died of blood loss. Meaning a person died of non-replacement of blood and so the victim
before she died there was shock of diminish of blood of the circulation. She died most probably before the actual Q: Doctor, in examining these structures did you know whether these were sutured ligature or plain ligature
complete blood loss, sir. A: Ligature, sir.
Court: Is it possible doctor that the loss of the blood was due on (sic) operation? Q: We will explain that later on. Did you recall if the cut structures were tied by first suturing it and then tying a
A. Based on my pathologist finding, sir. knot or the tie was merely placed around the cut structure and tied?
Q. What could have caused this loss of blood? A: I cannot recall, sir.
A. Many, sir. A patient who have undergone surgery. Another may be a blood vessel may be cut while on operation Q: As a matter of fact, you cannot recall because you did not even bothered (sic) to examine, is that correct?
and this cause (sic) bleeding, or may be set in the course of operation, or may be (sic) he died after the A: Well, I bothered enough to know that they were sutured, sir.
operation. Of course there are other cause (sic). Q: So, therefore, Doctor, you would not know whether any of the cut structures were not sutured or tied neither
Atty. Cachero: were you able to determine whether any loose suture was found in the peritoneal cavity?
Q. Especially so doctor when there was no blood replacement? A: I could not recall any loose sutured (sic), sir. 41
A. Yes, sir. 37 (Emphasis supplied.)
On the other hand, the findings of all three doctors do not preclude the probability that DIC caused the hemorrhage and
consequently, Lydia's death. DIC which is a clotting defect creates a serious bleeding tendency and when massive DIC occurs as
a complication of surgery leaving raw surface, major hemorrhage occurs. 42 And as testified to by defense witness, Dr. Bu C.

Page 28 of 53 TORTS MEETING 2

Castro, hemorrhage due to DIC "cannot be prevented, it will happen to anyone, SO ORDERED.
anytime." 43 He testified further:

Q. Now, under that circumstance one of the possibility as you mentioned in (sic) DIC?
A. Yes, sir.
Q. And you mentioned that this cannot be prevented?
A. Yes, sir.
Q. Can you even predict if it really happen (sic)?
A. Possible, sir.
Q. Are there any specific findings of autopsy that will tell you whether this patient suffered among such things as
DIC?
A. Well, I did reserve because of the condition of the patient.
Q. Now, Doctor you said that you went through the record of the deceased Lydia Umali looking for the chart, the
operated (sic) records, the post mortem findings on the histophanic (sic) examination based on your examination of
record, doctor, can you more or less says (sic) what part are (sic) concerned could have been the caused (sic) of
death of this Lydia Umali?
A. As far as the medical record is concern (sic) the caused (sic) of death is dessimulated (sic) Intra Vascular
Coagulation or the DIC which resulted to hemorrhage or bleedings, sir.
Q. Doctor based on your findings then there is knowing (sic) the doctor would say whether the doctor her (sic) has
been (sic) fault?
ATTY. MALVEDA:
We will moved (sic) to strike out the (sic) based on finding they just read the chart as well as the other record.
ATTY. PASCUAL:
Precisely based on this examination.
ATTY. MALVEDA:
Not finding, there was no finding made.
COURT:
He is only reading the record.
ATTY. PASCUAL:
Yes, sir.
A. No, sir, there is no fault on the part of the surgeon, sir. 44

This Court has no recourse but to rely on the expert testimonies rendered by both prosecution and defense witnesses that
substantiate rather than contradict petitioner's allegation that the cause of Lydia's death was DIC which, as attested to by an
expert witness, cannot be attributed to the petitioner's fault or negligence. The probability that Lydia's death was caused by DIC
was unrebutted during trial and has engendered in the mind of this Court a reasonable doubt as to the petitioner's guilt. Thus, her
acquittal of the crime of reckless imprudence resulting in homicide. While we condole with the family of Lydia Umali, our
hands are bound by the dictates of justice and fair dealing which hold inviolable the right of an accused to be presumed innocent
until proven guilty beyond reasonable doubt. Nevertheless, this Court finds the petitioner civilly liable for the death of Lydia
Umali, for while a conviction of a crime requires proof beyond reasonable doubt, only a preponderance of evidence is required
to establish civil liability. 45

The petitioner is a doctor in whose hands a patient puts his life and limb. For insufficiency of evidence this Court was not able to
render a sentence of conviction but it is not blind to the reckless and imprudent manner in which the petitioner carried out her
duties. A precious life has been lost and the circumstances leading thereto exacerbated the grief of those left behind. The heirs of
the deceased continue to feel the loss of their mother up to the present time 46and this Court is aware that no amount of
compassion and commiseration nor words of bereavement can suffice to assuage the sorrow felt for the loss of a loved one.
Certainly, the award of moral and exemplary damages in favor of the heirs of Lydia Umali are proper in the instant case.

WHEREFORE, premises considered, petitioner DR. NINEVETCH CRUZ is hereby ACQUITTED of the crime of reckless
imprudence resulting in homicide but is ordered to pay the heirs of the deceased Lydia Umali the amount of FIFTY
THOUSAND PESOS (P50,000.00) as civil liability, ONE HUNDRED THOUSAND PESOS (P100,000.00) as moral damages,
and FIFTY THOUSAND PESOS (P50,000.00) as exemplary damages.

Let a copy of this decision be furnished to the Professional Regulation Commission (PRC) for appropriate action.

Page 29 of 53 TORTS MEETING 2

TORTS 18
G.R. No. 124354 December 29, 1999
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the minors, ROMMEL
RAMOS, ROY RODERICK RAMOS and RON RAYMOND RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA. PERFECTA
GUTIERREZ, respondents.
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of their patients. If a doctor
fails to live up to this precept, he is made accountable for his acts. A mistake, through gross negligence or incompetence or plain
human error, may spell the difference between life and death. In this sense, the doctor plays God on his patient's fate. 1
In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital should be made liable for
the unfortunate comatose condition of a patient scheduled for cholecystectomy. 2
Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29 May 1995, which overturned the decision 4 of the
Regional Trial Court, dated 30 January 1992, finding private respondents liable for damages arising from negligence in the
performance of their professional duties towards petitioner Erlinda Ramos resulting in her comatose condition.
The antecedent facts as summarized by the trial court are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. "A") robust woman (TSN, October
19, 1989, p. 10). Except for occasional complaints of discomfort due to pains allegedly caused by the presence of a stone in
her gall bladder (TSN, January 13, 1988, pp. 4-5), she was as normal as any other woman. Married to Rogelio E. Ramos, an
executive of Philippine Long Distance Telephone Company, she has three children whose names are Rommel Ramos, Roy
Roderick Ramos and Ron Raymond Ramos (TSN, October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with her normal ways, she sought professional advice. She was advised to
undergo an operation for the removal of a stone in her gall bladder (TSN, January 13, 1988, p. 5). She underwent a series of
examinations which included blood and urine tests (Exhs. "A" and "C") which indicated she was fit for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7), she and her husband Rogelio met
for the first time Dr. Orlino Hozaka (should be Hosaka; see TSN, February 20, 1990, p. 3), one of the defendants in this
case, on June 10, 1985. They agreed that their date at the operating table at the DLSMC (another defendant), would be on
June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she should undergo a "cholecystectomy" operation after examining the
documents (findings from the Capitol Medical Center, FEU Hospital and DLSMC) presented to him. Rogelio E. Ramos,
however, asked Dr. Hosaka to look for a good anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will get a good
anesthesiologist. Dr. Hosaka charged a fee of P16,000.00, which was to include the anesthesiologist's fee and which was to
be paid after the operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN, February 27, 1990, p. 13; and TSN,
November 9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was admitted at one of the rooms of the DLSMC, located along E.
Rodriguez Avenue, Quezon City (TSN, October 19,1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for the operation by the hospital staff.
Her sister-in-law, Herminda Cruz, who was the Dean of the College of Nursing at the Capitol Medical Center, was also
there for moral support. She reiterated her previous request for Herminda to be with her even during the operation. After
praying, she was given injections. Her hands were held by Herminda as they went down from her room to the operating
Page 30 of 53 TORTS MEETING 2
room (TSN, January 13, 1988, pp. 9-11). Her husband, Rogelio, was also with her (TSN, October 19, 1989, p. 18). At the
operating room, Herminda saw about two or three nurses and Dr. Perfecta Gutierrez, the other defendant, who was to
administer anesthesia. Although not a member of the hospital staff, Herminda introduced herself as Dean of the College of
Nursing at the Capitol Medical Center who was to provide moral support to the patient, to them. Herminda was allowed to
stay inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who was not yet in (TSN, January 13,
1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz about the prospect of a delay in the arrival of Dr.
Hosaka. Herminda then went back to the patient who asked, "Mindy, wala pa ba ang Doctor"? The former replied, "Huwag
kang mag-alaala, darating na iyon" (Ibid.).
Thereafter, Herminda went out of the operating room and informed the patient's husband, Rogelio, that the doctor was not
yet around (id., p. 13). When she returned to the operating room, the patient told her, "Mindy, inip na inip na ako, ikuha mo
ako ng ibang Doctor." So, she went out again and told Rogelio about what the patient said (id., p. 15). Thereafter, she
returned to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for the arrival of the doctor" even as he did his
best to find somebody who will allow him to pull out his wife from the operating room (TSN, October 19, 1989, pp. 19-20).
He also thought of the feeling of his wife, who was inside the operating room waiting for the doctor to arrive (ibid.). At
almost 12:00 noon, he met Dr. Garcia who remarked that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to arrive
(id., p. 21). While talking to Dr. Garcia at around 12:10 P.M., he came to know that Dr. Hosaka arrived as a nurse remarked,
"Nandiyan na si Dr. Hosaka, dumating na raw." Upon hearing those words, he went down to the lobby and waited for the
operation to be completed (id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient, heard somebody say that "Dr.
Hosaka is already here." She then saw people inside the operating room "moving, doing this and that, [and] preparing the
patient for the operation" (TSN, January 13, 1988, p. 16). As she held the hand of Erlinda Ramos, she then saw Dr.
Gutierrez intubating the hapless patient. She thereafter heard Dr. Gutierrez say, "ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan" (id., p. 17). Because of the remarks of Dra. Gutierrez, she focused her attention on
what Dr. Gutierrez was doing. She thereafter noticed bluish discoloration of the nailbeds of the left hand of the hapless
Erlinda even as Dr. Hosaka approached her. She then heard Dr. Hosaka issue an order for someone to call Dr. Calderon,
another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the operating room, she saw this anesthesiologist trying to
intubate the patient. The patient's nailbed became bluish and the patient was placed in a trendelenburg position — a position
where the head of the patient is placed in a position lower than her feet which is an indication that there is a decrease of
blood supply to the patient's brain (Id., pp. 19-20). Immediately thereafter, she went out of the operating room, and she told
Rogelio E. Ramos "that something wrong was . . . happening" (Ibid.). Dr. Calderon was then able to intubate the patient
(TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being rushed towards the door of the
operating room. He also saw several doctors rushing towards the operating room. When informed by Herminda Cruz that
something wrong was happening, he told her (Herminda) to be back with the patient inside the operating room (TSN,
October 19, 1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the patient was still in trendelenburg position (TSN, January 13,
1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw the patient taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter informed the former that something
went wrong during the intubation. Reacting to what was told to him, Rogelio reminded the doctor that the condition of his
wife would not have happened, had he (Dr. Hosaka) looked for a good anesthesiologist (TSN, October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened to the patient. The doctors
explained that the patient had bronchospasm (TSN, November 15, 1990, pp. 26-27).
 Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on November 15, 1985, the patient was
released from the hospital.
During the whole period of her confinement, she incurred hospital bills amounting to P93,542.25 which is the subject of a
promissory note and affidavit of undertaking executed by Rogelio E. Ramos in favor of DLSMC. Since that fateful
afternoon of June 17, 1985, she has been in a comatose condition. She cannot do anything. She cannot move any part of her
body. She cannot see or hear. She is living on mechanical means. She suffered brain damage as a result of the absence of
oxygen in her brain for four to five minutes (TSN, November 9, 1989, pp. 21-22). After being discharged from the hospital,
she has been staying in their residence, still needing constant medical attention, with her husband Rogelio incurring a
monthly expense ranging from P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also diagnosed to be
suffering from "diffuse cerebral parenchymal damage" (Exh. "G"; see also TSN, December 21, 1989,
p. 6). 5
Thus, on 8 January 1986, petitioners filed a civil case 6 for damages with the Regional Trial Court of Quezon City against herein
private respondents alleging negligence in the management and care of Erlinda Ramos.
During the trial, both parties presented evidence as to the possible cause of Erlinda's injury. Plaintiff presented the testimonies of
Dean Herminda Cruz and Dr. Mariano Gavino to prove that the sustained by Erlinda was due to lack of oxygen in her brain
caused by the faulty management of her airway by private respondents during the anesthesia phase. On the other hand, private
respondents primarily relied on the expert testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect that the cause of brain
damage was Erlinda's allergic reaction to the anesthetic agent, Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor of petitioners, to wit:
After evaluating the evidence as shown in the finding of facts set forth earlier, and applying the aforecited provisions of law
and jurisprudence to the case at bar, this Court finds and so holds that defendants are liable to plaintiffs for damages. The
defendants were guilty of, at the very least, negligence in the performance of their duty to plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise reasonable care in not only intubating the
patient, but also in not repeating the administration of atropine (TSN, August 20, 1991, pp. 5-10), without due regard to the
fact that the patient was inside the operating room for almost three (3) hours. For after she committed a mistake in intubating
[the] patient, the patient's nailbed became bluish and the patient, thereafter, was placed in trendelenburg position, because of
the decrease of blood supply to the patient's brain. The evidence further shows that the hapless patient suffered brain damage
because of the absence of oxygen in her (patient's) brain for approximately four to five minutes which, in turn, caused the
patient to become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr. Perfecta Gutierrez whom he had chosen
to administer anesthesia on the patient as part of his obligation to provide the patient a good anesthesiologist', and for
arriving for the scheduled operation almost three (3) hours late.
On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of negligence of the doctors in their
"practice of medicine" in the operating room. Moreover, the hospital is liable for failing through its responsible officials, to
cancel the scheduled operation after Dr. Hosaka inexcusably failed to arrive on time.
In having held thus, this Court rejects the defense raised by defendants that they have acted with due care and prudence in
rendering medical services to plaintiff-patient. For if the patient was properly intubated as claimed by them, the patient
would not have become comatose. And, the fact that another anesthesiologist was called to try to intubate the patient after
her (the patient's) nailbed turned bluish, belie their claim. Furthermore, the defendants should have rescheduled the
operation to a later date. This, they should have done, if defendants acted with due care and prudence as the patient's case
was an elective, not an emergency case.
xxx xxx xxx
Page 31 of 53 TORTS MEETING 2
WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs and against the defendants.
Accordingly, the latter are ordered to pay, jointly and severally, the former the following sums of money, to wit:
1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda Ramos reckoned from November 15, 1985 or in
the total sum of P632,000.00 as of April 15, 1992, subject to its being updated;
2) the sum of P100,000.00 as reasonable attorney's fees;
3) the sum of P800,000.00 by way of moral damages and the further sum of P200,000,00 by way of exemplary damages;
and,
4) the costs of the suit.
SO ORDERED. 7
Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court rendered a Decision, dated 29
May 1995, reversing the findings of the trial court. The decretal portion of the decision of the appellate court reads:
WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED, and the complaint below against
the appellants is hereby ordered DISMISSED. The counterclaim of appellant De Los Santos Medical Center is GRANTED
but only insofar as appellees are hereby ordered to pay the unpaid hospital bills amounting to P93,542.25, plus legal interest
for justice must be tempered with mercy.
SO ORDERED. 8
The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was mistakenly addressed
as "Atty. Rogelio Ramos." No copy of the decision, however, was sent nor received by the Coronel Law Office, then counsel on
record of petitioners. Rogelio referred the decision of the appellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or
four (4) days before the expiration of the reglementary period for filing a motion for reconsideration. On the same day, Atty.
Ligsay, filed with the appellate court a motion for extension of time to file a motion for reconsideration. The motion for
reconsideration was submitted on 4 July 1995. However, the appellate court denied the motion for extension of time in its
Resolution dated 25 July 1995. 9Meanwhile, petitioners engaged the services of another counsel, Atty. Sillano, to replace Atty.
Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit the motion for reconsideration contending that the period to file
the appropriate pleading on the assailed decision had not yet commenced to run as the Division Clerk of Court of the Court of
Appeals had not yet served a copy thereof to the counsel on record. Despite this explanation, the appellate court still denied the
motion to admit the motion for reconsideration of petitioners in its Resolution, dated 29 March 1996, primarily on the ground
that the fifteen-day (15) period for filing a motion for reconsideration had already expired, to wit:
We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration cannot be extended; precisely,
the Motion for Extension (Rollo, p. 12) was denied. It is, on the other hand, admitted in the latter Motion that
plaintiffs/appellees received a copy of the decision as early as June 9, 1995. Computation wise, the period to file a Motion
for Reconsideration expired on June 24. The Motion for Reconsideration, in turn, was received by the Court of Appeals
already on July 4, necessarily, the 15-day period already passed. For that alone, the latter should be denied.
Even assuming admissibility of the Motion for the Reconsideration, but after considering the Comment/Opposition, the
former, for lack of merit, is hereby DENIED.
SO ORDERED. 10
A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12 April 1996, Atty. Sillano
filed before this Court a motion for extension of time to file the present petition for certiorari under Rule 45. The Court granted
the motion for extension of time and gave petitioners additional thirty (30) days after the expiration of the fifteen-day (15) period
counted from the receipt of the resolution of the Court of Appeals within which to submit the petition. The due date fell on 27
May 1996. The petition was filed on 9 May 1996, well within the extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on the following grounds:
I IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA. GUTIERREZ, DRA.
CALDERON AND DR. JAMORA;
II IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE UNFORTUNATE
COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;
III IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11
Before we discuss the merits of the case, we shall first dispose of the procedural issue on the timeliness of the petition in relation
to the motion for reconsideration filed by petitioners with the Court of Appeals. In their
Comment, 12 private respondents contend that the petition should not be given due course since the motion for reconsideration of
the petitioners on the decision of the Court of Appeals was validly dismissed by the appellate court for having been filed beyond
the reglementary period. We do not agree.
A careful review of the records reveals that the reason behind the delay in filing the motion for reconsideration is attributable to
the fact that the decision of the Court of Appeals was not sent to then counsel on record of petitioners, the Coronel Law Office.
In fact, a copy of the decision of the appellate court was instead sent to and received by petitioner Rogelio Ramos on 9 June
1995 wherein he was mistakenly addressed as Atty. Rogelio Ramos. Based on the other communications received by petitioner
Rogelio Ramos, the appellate court apparently mistook him for the counsel on record. Thus, no copy of the decision of the
counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive period for filing a motion for reconsideration,
referred the same to a legal counsel only on 20 June 1995.
It is elementary that when a party is represented by counsel, all notices should be sent to the party's lawyer at his given address.
With a few exceptions, notice to a litigant without notice to his counsel on record is no notice at all. In the present case, since a
copy of the decision of the appellate court was not sent to the counsel on record of petitioner, there can be no sufficient notice to
speak of. Hence, the delay in the filing of the motion for reconsideration cannot be taken against petitioner. Moreover, since the
Court of Appeals already issued a second Resolution, dated 29 March 1996, which superseded the earlier resolution issued on 25
July 1995, and denied the motion for reconsideration of petitioner, we believed that the receipt of the former should be
considered in determining the timeliness of the filing of the present petition. Based on this, the petition before us was submitted
on time.
After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more logical presentation of
the discussion we shall first consider the issue on the applicability of the doctrine of res ipsa loquiturto the instant case.
Thereafter, the first two assigned errors shall be tackled in relation to the res ipsa loquiturdoctrine.
Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself." The phrase "res ipsa
loquitur'' is a maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may
permit an inference or raise a presumption of negligence, or make out a plaintiff's prima facie case, and present a question of fact
for defendant to meet with an explanation. 13 Where the thing which caused the injury complained of is shown to be under the
management of the defendant or his servants and the accident is such as in ordinary course of things does not happen if those
who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by the
defendant, that the accident arose from or was caused by the defendant's want of care. 14
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 defendant who is charged with negligence. 15 It is
grounded in the superior logic of ordinary human experience and on the basis of such experience or common knowledge,
Page 32 of 53 TORTS MEETING 2
negligence may be deduced from the mere occurrence of the accident itself. 16 Hence, res ipsa loquitur is applied in conjunction
with the doctrine of common knowledge.
However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not create or constitute an
independent or separate ground of liability. 17 Instead, it is considered as merely evidentiary or in the nature of a procedural
rule. 18 It is regarded as a mode of proof, or a mere procedural of convenience since it furnishes a substitute for, and relieves a
plaintiff of, the burden of producing specific proof of negligence. 19 In other words, mere invocation and application of the
doctrine does not dispense with the requirement of proof of negligence. It is simply a step in the process of such proof,
permitting the plaintiff to present along with the proof of the accident, enough of the attending circumstances to invoke the
doctrine, creating an inference or presumption of negligence, and to thereby place on the defendant the burden of going forward
with the proof. 20 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 someone's 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. 21
In the above requisites, the fundamental element is the "control of instrumentality" which caused the damage. 22Such element of
control must be shown to be within the dominion of the defendant. 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. 23
Medical malpractice 24 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. 25 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. 26
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. 27 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. 28 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. 29 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. 30 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. 31 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, 32 injuries sustained on a healthy part of the body which was not under, or in the area, of
treatment, 33 removal of the wrong part of the body when another part was intended, 34 knocking out a tooth while a patient's jaw
was under anesthetic for the removal of his tonsils, 35 and loss of an eye while the patient plaintiff was under the influence of
anesthetic, during or following an operation for appendicitis, 36 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
exercised. 37 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. 38 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. 39 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. 40The 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. 41 If there was such extraneous interventions, 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. 42
We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be explained, the damage sustained by
Erlinda in her brain prior to a scheduled gall bladder operation presents a case for the application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss vs. Bridwell, 43 where the Kansas Supreme Court in applying the res ipsa
loquitur stated:
The plaintiff herein submitted himself for a mastoid operation and delivered his person over to the care, custody and control
of his physician who had complete and exclusive control over him, but the operation was never performed. At the time of
submission he was neurologically sound and physically fit in mind and body, but he suffered irreparable damage and injury
rendering him decerebrate and totally incapacitated. The injury was one which does not ordinarily occur in the process of a
mastoid operation or in the absence of negligence in the administration of an anesthetic, and in the use and employment of
an endoctracheal tube. Ordinarily a person being put under anesthesia is not rendered decerebrate as a consequence of
administering such anesthesia in the absence of negligence. Upon these facts and under these circumstances a layman would
be able to say, as a matter of common knowledge and observation, that the consequences of professional treatment were not
as such as would ordinarily have followed if due care had been exercised.
Here the plaintiff could not have been guilty of contributory negligence because he was under the influence of anesthetics
and unconscious, and the circumstances are such that the true explanation of event is more accessible to the defendants than
to the plaintiff for they had the exclusive control of the instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause of action is stated under the
doctrine of res ipsa loquitur. 44
Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present case, Erlinda submitted
herself for cholecystectomy and expected a routine general surgery to be performed on her gall bladder. On that fateful day she
delivered her person over to the care, custody and control of private respondents who exercised complete and exclusive control
over her. At the time of submission, Erlinda was neurologically sound and, except for a few minor discomforts, was likewise
physically fit in mind and body. However, during the administration of anesthesia and prior to the performance of
cholecystectomy she suffered irreparable damage to her brain. Thus, without undergoing surgery, she went out of the operating
room already decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda sustained, is an injury which does
not normally occur in the process of a gall bladder operation. In fact, this kind of situation does not in the absence of negligence
of someone in the administration of anesthesia and in the use of endotracheal tube. Normally, a person being put under
anesthesia is not rendered decerebrate as a consequence of administering such anesthesia if the proper procedure was followed.
Furthermore, the instruments used in the administration of anesthesia, including the endotracheal tube, were all under the
exclusive control of private respondents, who are the physicians-in-charge. Likewise, petitioner Erlinda could not have been
guilty of contributory negligence because she was under the influence of anesthetics which rendered her unconscious.
Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the patient is unconscious
and under the immediate and exclusive control of the physicians, we hold that a practical administration of justice dictates the
Page 33 of 53 TORTS MEETING 2
application of res ipsa loquitur. Upon these facts and under these circumstances the Court would be able to say, as a matter of
common knowledge and observation, if negligence attended the management and care of the patient. Moreover, the liability of
the physicians and the hospital in this case is not predicated upon an alleged failure to secure the desired results of an operation
been nor on an alleged lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever performed on Erlinda.
Thus, upon all these initial determination a case is made out for the application of the doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the doctrine is applicable in
any and all cases where injury occurs to a patient while under anesthesia, or to any and all anesthesia cases. Each case must be
viewed in its own light and scrutinized in order to be within the res ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence allowed therein, the Court
now comes to the issue of whether the Court of Appeals erred in finding that private respondents were not negligent in the care
of Erlinda during the anesthesia phase of the operation and, if in the affirmative, whether the alleged negligence was the
proximate cause of Erlinda's comatose condition. Corollary thereto, we shall also determine if the Court of Appeals erred in
relying on the testimonies of the witnesses for the private respondents.
In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of Dra. Gutierrez, Dra. Calderon
and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court of Appeals rationalized that she was candid
enough to admit that she experienced some difficulty in the endotracheal intubation 45 of the patient and thus, cannot be said to
be covering her negligence with falsehood. The appellate court likewise opined that private respondents were able to show that
the brain damage sustained by Erlinda was not caused by the alleged faulty intubation but was due to the allergic reaction of the
patient to the drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified on by their expert witness, Dr. Jamora.
On the other hand, the appellate court rejected the testimony of Dean Herminda Cruz offered in favor of petitioners that the
cause of the brain injury was traceable to the wrongful insertion of the tube since the latter, being a nurse, was allegedly not
knowledgeable in the process of intubation. In so holding, the appellate court returned a verdict in favor of respondents
physicians and hospital and absolved them of any liability towards Erlinda and her family.
We disagree with the findings of the Court of Appeals. We hold that private respondents were unable to disprove the
presumption of negligence on their part in the care of Erlinda and their negligence was the proximate cause of her piteous
condition.
In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the pathogenesis of the injury
but also in providing the Court the legal nexus upon which liability is based. As will be shown hereinafter, private respondents'
own testimonies which are reflected in the transcript of stenographic notes are replete of signposts indicative of their negligence
in the care and management of Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia phase. As borne by the records,
respondent Dra. Gutierrez failed to properly intubate the patient. This fact was attested to by Prof. Herminda Cruz, Dean of the
Capitol Medical Center School of Nursing and petitioner's sister-in-law, who was in the operating room right beside the patient
when the tragic event occurred. Witness Cruz testified to this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?
A: In particular, I could see that she was intubating the patient.
Q: Do you know what happened to that intubation process administered by Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As have said, I was with the patient, I was beside the stretcher holding the left hand of the patient and all of a sudden
heard some remarks coming from Dra. Perfecta Gutierrez herself. She was saying "Ang hirap ma-intubate nito, mali
yata ang pagkakapasok. O lumalaki ang tiyan.
xxx xxx xxx
ATTY. PAJARES:
Q: From whom did you hear those words "lumalaki ang tiyan"?
 A: From Dra. Perfecta Gutierrez.
xxx xxx xxx
Q: After hearing the phrase "lumalaki ang tiyan," what did you notice on the person of the patient?
A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particular time?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if any?
A: He made an order to call on the anesthesiologist in the person of Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the patient, after a while the patient's nailbed became bluish and I saw the
patient was placed in trendelenburg position.
xxx xxx xxx
Q: Do you know the reason why the patient was placed in that trendelenburg position?
A: As far as I know, when a patient is in that position, there is a decrease of blood supply to the brain. 46
xxx xxx xxx
The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:
A perusal of the standard nursing curriculum in our country will show that intubation is not taught as part of nursing
procedures and techniques. Indeed, we take judicial notice of the fact that nurses do not, and cannot, intubate. Even on the
assumption that she is fully capable of determining whether or not a patient is properly intubated, witness Herminda Cruz,
admittedly, did not peep into the throat of the patient. (TSN, July 25, 1991, p. 13). More importantly, there is no evidence
that she ever auscultated the patient or that she conducted any type of examination to check if the endotracheal tube was in
its proper place, and to determine the condition of the heart, lungs, and other organs. Thus, witness Cruz's categorical
statements that appellant Dra. Gutierrez failed to intubate the appellee Erlinda Ramos and that it was Dra. Calderon who
succeeded in doing so clearly suffer from lack of sufficient factual bases. 47
In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a layman in the process of
intubation, witness Cruz is not competent to testify on whether or not the intubation was a success.
We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an anesthesiologist, she can very
well testify upon matters on which she is capable of observing such as, the statements and acts of the physician and surgeon,
external appearances, and manifest conditions which are observable by any one. 48 This is precisely allowed under the doctrine
of res ipsa loquitur where the testimony of expert witnesses is not required. It is the accepted rule that expert testimony is not
necessary for the proof of negligence in non-technical matters or those of which an ordinary person may be expected to have
knowledge, or where the lack of skill or want of care is so obvious as to render expert testimony unnecessary. 49 We take judicial
notice of the fact that anesthesia procedures have become so common, that even an ordinary person can tell if it was
administered properly. As such, it would not be too difficult to tell if the tube was properly inserted. This kind of observation, we
believe, does not require a medical degree to be acceptable.
At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience and scholarship led to her
appointment as Dean of the Capitol Medical Center School at Nursing, was fully capable of determining whether or not the
intubation was a success. She had extensive clinical experience starting as a staff nurse in Chicago, Illinois; staff nurse and
clinical instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna College of Nursing in San Pablo City; and then
Dean of the Capitol Medical Center School of Nursing. 50Reviewing witness Cruz' statements, we find that the same were
delivered in a straightforward manner, with the kind of detail, clarity, consistency and spontaneity which would have been
difficult to fabricate. With her clinical background as a nurse, the Court is satisfied that she was able to demonstrate through her
testimony what truly transpired on that fateful day.
Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted that she experienced difficulty
in inserting the tube into Erlinda's trachea, to wit:
Page 34 of 53 TORTS MEETING 2
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at your first attempt (sic), you did not immediately see the
trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the . . .
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said "mahirap yata ito," what were you referring to?
A: "Mahirap yata itong i-intubate," that was the patient.
Q: So, you found some difficulty in inserting the tube?
A: Yes, because of (sic) my first attempt, I did not see right away. 51
Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she encountered hardship in the
insertion of the tube in the trachea of Erlinda because it was positioned more anteriorly (slightly deviated from the normal
anatomy of a person) 52 making it harder to locate and, since Erlinda is obese and has a short neck and protruding teeth, it made
intubation even more difficult.
The argument does not convince us. If this was indeed observed, private respondents adduced no evidence demonstrating that
they proceeded to make a thorough assessment of Erlinda's airway, prior to the induction of anesthesia, even if this would mean
postponing the procedure. From their testimonies, it appears that the observation was made only as an afterthought, as a means
of defense.
The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed to lessen the possibility
of anesthetic accidents. Pre-operative evaluation and preparation for anesthesia begins when the anesthesiologist reviews the
patient's medical records and visits with the patient, traditionally, the day before elective surgery. 53 It includes taking the
patient's medical history, review of current drug therapy, physical examination and interpretation of laboratory data. 54 The
physical examination performed by the anesthesiologist is directed primarily toward the central nervous system, cardiovascular
system, lungs and upper airway. 55 A thorough analysis of the patient's airway normally involves investigating the following:
cervical spine mobility, temporomandibular mobility, prominent central incisors, diseased or artificial teeth, ability to visualize
uvula and the thyromental distance. 56Thus, physical characteristics of the patient's upper airway that could make tracheal
intubation difficult should be studied. 57 Where the need arises, as when initial assessment indicates possible problems (such as
the alleged short neck and protruding teeth of Erlinda) a thorough examination of the patient's airway would go a long way
towards decreasing patient morbidity and mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the operation itself, on
17 June 1985. Before this date, no prior consultations with, or pre-operative evaluation of Erlinda was done by her. Until the day
of the operation, respondent Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda. She was likewise
not properly informed of the possible difficulties she would face during the administration of anesthesia to Erlinda. Respondent
Dra. Gutierrez' act of seeing her patient for the first time only an hour before the scheduled operative procedure was, therefore,
an act of exceptional negligence and professional irresponsibility. The measures cautioning prudence and vigilance in dealing
with human lives lie at the core of the physician's centuries-old Hippocratic Oath. Her failure to follow this medical procedure is,
therefore, a clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the trial court's ignorance of
clinical procedure, hoping that she could get away with it. Respondent Dra. Gutierrez tried to muddle the difference between an
elective surgery and an emergency surgery just so her failure to perform the required pre-operative evaluation would escape
unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice to see the patient a day before so you can introduce
yourself to establish good doctor-patient relationship and gain the trust and confidence of the patient?
DRA. GUTIERREZ:
 A: As I said in my previous statement, it depends on the operative procedure of the anesthesiologist and in my case,
with elective cases and normal cardio-pulmonary clearance like that, I usually don't do it except on emergency and on
cases that have an abnormalities (sic). 58
However, the exact opposite is true. In an emergency procedure, there is hardly enough time available for the fastidious demands
of pre-operative procedure so that an anesthesiologist is able to see the patient only a few minutes before surgery, if at all.
Elective procedures, on the other hand, are operative procedures that can wait for days, weeks or even months. Hence, in these
cases, the anesthesiologist possesses the luxury of time to be at the patient's beside to do a proper interview and clinical
evaluation. There is ample time to explain the method of anesthesia, the drugs to be used, and their possible hazards for purposes
of informed consent. Usually, the pre-operative assessment is conducted at least one day before the intended surgery, when the
patient is relaxed and cooperative.
Erlinda's case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all the time to make a thorough
evaluation of Erlinda's case prior to the operation and prepare her for anesthesia. However, she never saw the patient at the
bedside. She herself admitted that she had seen petitioner only in the operating room, and only on the actual date of the
cholecystectomy. She negligently failed to take advantage of this important opportunity. As such, her attempt to exculpate
herself must fail.
Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the patient which, in turn,
resulted to a wrongful intubation, we now determine if the faulty intubation is truly the proximate cause of Erlinda's comatose
condition.
Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda's coma was due to
bronchospasm 59 mediated by her allergic response to the drug, Thiopental Sodium, introduced into her system. Towards this
end, they presented Dr. Jamora, a Fellow of the Philippine College of Physicians and Diplomate of the Philippine Specialty
Board of Internal Medicine, who advanced private respondents' theory that the oxygen deprivation which led to anoxic
encephalopathy, 60 was due to an unpredictable drug reaction to the short-acting barbiturate. We find the theory of private
respondents unacceptable.
First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply because he is not an
anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have been capable of properly enlightening the court about
anesthesia practice and procedure and their complications. Dr. Jamora is likewise not an allergologist and could not therefore
properly advance expert opinion on allergic-mediated processes. Moreover, he is not a pharmacologist and, as such, could not
have been capable, as an expert would, of explaining to the court the pharmacologic and toxic effects of the supposed culprit,
Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an expert witness in the anesthetic practice of
Pentothal administration is further supported by his own admission that he formulated his opinions on the drug not from the
practical experience gained by a specialist or expert in the administration and use of Sodium Pentothal on patients, but only from
reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any occasion to use pentothal as a method of management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they have to intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is based only on what you have read from books and not by your
own personal application of the medicine pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during my appendectomy.
Q: And because they have used it on you and on account of your own personal experience you feel that you can testify
on pentothal here with medical authority?
A: No. That is why I used references to support my claims. 61
Page 35 of 53 TORTS MEETING 2
An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of anesthesia, internal
medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy belongs to the field of neurology. While
admittedly, many bronchospastic-mediated pulmonary diseases are within the expertise of pulmonary medicine, Dr. Jamora's
field, the anesthetic drug-induced, allergic mediated bronchospasm alleged in this case is within the disciplines of
anesthesiology, allergology and pharmacology. On the basis of the foregoing transcript, in which the pulmonologist himself
admitted that he could not testify about the drug with medical authority, it is clear that the appellate court erred in giving weight
to Dr. Jamora's testimony as an expert in the administration of Thiopental Sodium.
The provision in the rules of evidence 62 regarding expert witnesses states:
Sec. 49. Opinion of expert witness. — The opinion of a witness on a matter requiring special knowledge, skill, experience or
training which he is shown to possess, may be received in evidence.
Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter about which he or she
is to testify, either by the study of recognized authorities on the subject or by practical experience. 63Clearly, Dr. Jamora does not
qualify as an expert witness based on the above standard since he lacks the necessary knowledge, skill, and training in the field
of anesthesiology. Oddly, apart from submitting testimony from a specialist in the wrong field, private respondents' intentionally
avoided providing testimony by competent and independent experts in the proper areas.
Moreover, private respondents' theory, that Thiopental Sodium may have produced Erlinda's coma by triggering an allergic
mediated response, has no support in evidence. No evidence of stridor, skin reactions, or wheezing — some of the more common
accompanying signs of an allergic reaction — appears on record. No laboratory data were ever presented to the court.
In any case, private respondents themselves admit that Thiopental induced, allergic-mediated bronchospasm happens only very
rarely. If courts were to accept private respondents' hypothesis without supporting medical proof, and against the weight of
available evidence, then every anesthetic accident would be an act of God. Evidently, the Thiopental-allergy theory vigorously
asserted by private respondents was a mere afterthought. Such an explanation was advanced in order to advanced in order to
absolve them of any and all responsibility for the patient's condition.
In view of the evidence at hand, we are inclined to believe petitioners' stand that it was the faulty intubation which was the
proximate cause of Erlinda's comatose condition.
Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient intervening
cause, produces injury, and without which the result would not have occurred. 64 An injury or damage is proximately caused by
an act or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in
bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably
probable consequence of the act or omission. 65 It is the dominant, moving or producing cause.
Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the proximate cause which
triggered the chain of events leading to Erlinda's brain damage and, ultimately, her comatosed condition.
Private respondents themselves admitted in their testimony that the first intubation was a failure. This fact was likewise observed
by witness Cruz when she heard respondent Dra. Gutierrez remarked, "Ang hirap ma-intubate nito, mali yata ang pagkakapasok.
O lumalaki ang tiyan." Thereafter, witness Cruz noticed abdominal distention on the body of Erlinda. The development of
abdominal distention, together with respiratory embarrassment indicates that the endotracheal tube entered the esophagus instead
of the respiratory tree. In other words, instead of the intended endotracheal intubation what actually took place was an
esophageal intubation. During intubation, such distention indicates that air has entered the gastrointestinal tract through the
esophagus instead of the lungs through the trachea. Entry into the esophagus would certainly cause some delay in oxygen
delivery into the lungs as the tube which carries oxygen is in the wrong place. That abdominal distention had been observed
during the first intubation suggests that the length of time utilized in inserting the endotracheal tube (up to the time the tube was
withdrawn for the second attempt) was fairly significant. Due to the delay in the delivery of oxygen in her lungs Erlinda showed
signs of cyanosis. 66 As stated in the testimony of Dr. Hosaka, the lack of oxygen became apparent only after he noticed that the
nailbeds of Erlinda were already blue. 67 However, private respondents contend that a second intubation was executed on Erlinda
and this one was successfully done. We do not think so. No evidence exists on record, beyond private respondents' bare claims,
which supports the contention that the second intubation was successful. Assuming that the endotracheal tube finally found its attending and visiting physicians. This being the case, the question now arises as to whether or not respondent hospital is
way into the proper orifice of the trachea, the same gave no guarantee of oxygen delivery, the hallmark of a successful solidarily liable with respondent doctors for petitioner's condition. 76
intubation. In fact, cyanosis was again observed immediately after the second intubation. Proceeding from this event (cyanosis),
it could not be claimed, as private respondents insist, that the second intubation was accomplished. Even granting that the tube
The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil
was successfully inserted during the second attempt, it was obviously too late. As aptly explained by the trial court, Erlinda
Code which considers a person accountable not only for his own acts but also for those of others based on the former's
already suffered brain damage as a result of the inadequate oxygenation of her brain for about four to five minutes. 68
responsibility under a relationship of patria potestas. 77 Such responsibility ceases when the persons or entity concerned prove
that they have observed the diligence of a good father of the family to prevent damage. 78 In other words, while the burden of
The above conclusion is not without basis. Scientific studies point out that intubation problems are responsible for one-third proving negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents (parent, guardian,
(1/3) of deaths and serious injuries associated with anesthesia. 69 Nevertheless, ninety-eight percent (98%) or the vast majority of teacher or employer) who should prove that they observed the diligence of a good father of a family to prevent damage.
difficult intubations may be anticipated by performing a thorough evaluation of the patient's airway prior to the operation. 70 As
stated beforehand, respondent Dra. Gutierrez failed to observe the proper pre-operative protocol which could have prevented this
In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent physicians, failed to
unfortunate incident. Had appropriate diligence and reasonable care been used in the pre-operative evaluation, respondent
adduce evidence showing that it exercised the diligence of a good father of a family in the hiring and supervision of the latter. It
physician could have been much more prepared to meet the contingency brought about by the perceived anatomic variations in
failed to adduce evidence with regard to the degree of supervision which it exercised over its physicians. In neglecting to offer
the patient's neck and oral area, defects which would have been easily overcome by a prior knowledge of those variations
such proof, or proof of a similar nature, respondent hospital thereby failed to discharge its burden under the last paragraph of
together with a change in technique. 71 In other words, an experienced anesthesiologist, adequately alerted by a thorough pre-
Article 2180. Having failed to do this, respondent hospital is consequently solidarily responsible with its physicians for Erlinda's
operative evaluation, would have had little difficulty going around the short neck and protruding teeth. 72 Having failed to
condition.
observe common medical standards in pre-operative management and intubation, respondent Dra. Gutierrez' negligence resulted
in cerebral anoxia and eventual coma of Erlinda.
Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the testimonies of the witnesses for
the private respondents. Indeed, as shown by the above discussions, private respondents were unable to rebut the presumption of
We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical team. As the so-called "captain
negligence. Upon these disquisitions we hold that private respondents are solidarily liable for damages under Article 2176 79 of
of the ship," 73 it is the surgeon's responsibility to see to it that those under him perform their task in the proper manner.
the Civil Code.
Respondent Dr. Hosaka's negligence can be found in his failure to exercise the proper authority (as the "captain" of the operative
team) in not determining if his anesthesiologist observed proper anesthesia protocols. In fact, no evidence on record exists to
show that respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly intubated the patient. Furthermore, it does not We now come to the amount of damages due petitioners. The trial court awarded a total of P632,000.00 pesos (should be
escape us that respondent Dr. Hosaka had scheduled another procedure in a different hospital at the same time as Erlinda's P616,000.00) in compensatory damages to the plaintiff, "subject to its being updated" covering the period from 15 November
cholecystectomy, and was in fact over three hours late for the latter's operation. Because of this, he had little or no time to confer 1985 up to 15 April 1992, based on monthly expenses for the care of the patient estimated at P8,000.00.
with his anesthesiologist regarding the anesthesia delivery. This indicates that he was remiss in his professional duties towards
his patient. Thus, he shares equal responsibility for the events which resulted in Erlinda's condition.
At current levels, the P8000/monthly amount established by the trial court at the time of its decision would be grossly inadequate
to cover the actual costs of home-based care for a comatose individual. The calculated amount was not even arrived at by
We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private hospitals) of looking at the actual cost of proper hospice care for the patient. What it reflected were the actual expenses incurred and proved
filling up specialist staff with attending and visiting "consultants," 74 who are allegedly not hospital employees, presents by the petitioners after they were forced to bring home the patient to avoid mounting hospital bills.
problems in apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is only more
apparent than real.
And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice specializing in the care of the
chronically ill for the purpose of providing a proper milieu adequate to meet minimum standards of care. In the instant case for
In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work instance, Erlinda has to be constantly turned from side to side to prevent bedsores and hypostatic pneumonia. Feeding is done by
within the hospital premises. Doctors who apply for "consultant" slots, visiting or attending, are required to submit proof of nasogastric tube. Food preparation should be normally made by a dietitian to provide her with the correct daily caloric
completion of residency, their educational qualifications; generally, evidence of accreditation by the appropriate board requirements and vitamin supplements. Furthermore, she has to be seen on a regular basis by a physical therapist to avoid muscle
(diplomate), evidence of fellowship in most cases, and references. These requirements are carefully scrutinized by members of atrophy, and by a pulmonary therapist to prevent the accumulation of secretions which can lead to respiratory complications.
the hospital administration or by a review committee set up by the hospital who either accept or reject the application. 75 This is
particularly true with respondent hospital.
Given these considerations, the amount of actual damages recoverable in suits arising from negligence should at least reflect the
correct minimum cost of proper care, not the cost of the care the family is usually compelled to undertake at home to avoid
After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-pathological bankruptcy. However, the provisions of the Civil Code on actual or compensatory damages present us with some difficulties.
conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient audits and perform
other tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of
admitting patients into the hospital. In addition to these, the physician's performance as a specialist is generally evaluated by a Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by him as he has duly
proved. The Civil Code provides:
peer review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and
residents. A consultant remiss in his duties, or a consultant who regularly falls short of the minimum standards acceptable to the
hospital or its peer review committee, is normally politely terminated. Art. 2199. — Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such
pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages.
In other words, private hospitals, hire, fire and exercise real control over their attending and visiting "consultant" staff. While
"consultants" are not, technically employees, a point which respondent hospital asserts in denying all responsibility for the Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered as a consequence
patient's condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an of an act of negligence has been completed and that the cost can be liquidated. However, these provisions neglect to take into
employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact account those situations, as in this case, where the resulting injury might be continuing and possible future complications directly
exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating arising from the injury, while certain to occur, are difficult to predict.
responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their

Page 36 of 53 TORTS MEETING 2

In these cases, the amount of damages which should be awarded, if they are to adequately and correctly respond to the injury
caused, should be one which compensates for pecuniary loss incurred and proved, up to the time of trial; and one which would
meet pecuniary loss certain to be suffered but which could not, from the nature of the case, be made with certainty. 80 In other
words, temperate damages can and should be awarded on top of actual or compensatory damages in instances where the injury is
chronic and continuing. And because of the unique nature of such cases, no incompatibility arises when both actual and
temperate damages are provided for. The reason is that these damages cover two distinct phases.
As it would not be equitable — and certainly not in the best interests of the administration of justice — for the victim in such
cases to constantly come before the courts and invoke their aid in seeking adjustments to the compensatory damages previously
awarded — temperate damages are appropriate. The amount given as temperate damages, though to a certain extent speculative,
should take into account the cost of proper care.
In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient who has remained in
that condition for over a decade. Having premised our award for compensatory damages on the amount provided by petitioners
at the onset of litigation, it would be now much more in step with the interests of justice if the value awarded for temperate
damages would allow petitioners to provide optimal care for their loved one in a facility which generally specializes in such care.
They should not be compelled by dire circumstances to provide substandard care at home without the aid of professionals, for
anything less would be grossly inadequate. Under the circumstances, an award of P1,500,000.00 in temperate damages would
therefore be reasonable. 81
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a comatose state for over fourteen
years now. The burden of care has so far been heroically shouldered by her husband and children, who, in the intervening years
have been deprived of the love of a wife and a mother.
Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually impossible to quantify.
Even the temperate damages herein awarded would be inadequate if petitioner's condition remains unchanged for the next ten
years.
We recognized, in Valenzuela that a discussion of the victim's actual injury would not even scratch the surface of the resulting
moral damage because it would be highly speculative to estimate the amount of emotional and moral pain, psychological damage
and injury suffered by the victim or those actually affected by the victim's condition. 84 The husband and the children, all
petitioners in this case, will have to live with the day to day uncertainty of the patient's illness, knowing any hope of recovery is
close to nil. They have fashioned their daily lives around the nursing care of petitioner, altering their long term goals to take into
account their life with a comatose patient. They, not the respondents, are charged with the moral responsibility of the care of the
victim. The family's moral injury and suffering in this case is clearly a real one. For the foregoing reasons, an award of
P2,000,000.00 in moral damages would be appropriate.
Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded. Considering the length and
nature of the instant suit we are of the opinion that attorney's fees valued at P100,000.00 are likewise proper.

In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation where the injury suffered by the plaintiff would
Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not insurers of life and, they
have led to expenses which were difficult to estimate because while they would have been a direct result of the injury
rarely set out to intentionally cause injury or death to their patients. However, intent is immaterial in negligence cases because
(amputation), and were certain to be incurred by the plaintiff, they were likely to arise only in the future. We awarded
where negligence exists and is proven, the same automatically gives the injured a right to reparation for the damage caused.
P1,000,000.00 in moral damages in that case.

Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left lower extremity at the
distal left thigh just above the knee. Because of this, Valenzuela will forever be deprived of the full ambulatory functions of
her left extremity, even with the use of state of the art prosthetic technology. Well beyond the period of hospitalization
(which was paid for by Li), she will be required to undergo adjustments in her prosthetic devise due to the shrinkage of the
stump from the process of healing.
These adjustments entail costs, prosthetic replacements and months of physical and occupational rehabilitation and therapy.
During the lifetime, the prosthetic devise will have to be replaced and readjusted to changes in the size of her lower limb
effected by the biological changes of middle-age, menopause and aging. Assuming she reaches menopause, for example, the
prosthetic will have to be adjusted to respond to the changes in bone resulting from a precipitate decrease in calcium levels
observed in the bones of all post-menopausal women. In other words, the damage done to her would not only be permanent
and lasting, it would also be permanently changing and adjusting to the physiologic changes which her body would normally
undergo through the years. The replacements, changes, and adjustments will require corresponding adjustive physical and
occupational therapy. All of these adjustments, it has been documented, are painful.
Established medical procedures and practices, though in constant flux are devised for the purpose of preventing complications. A
physician's experience with his patients would sometimes tempt him to deviate from established community practices, and he
may end a distinguished career using unorthodox methods without incident. However, when failure to follow established
procedure results in the evil precisely sought to be averted by observance of the procedure and a nexus is made between the
deviation and the injury or damage, the physician would necessarily be called to account for it. In the case at bar, the failure to
observe pre-operative assessment protocol which would have influenced the intubation in a salutary way was fatal to private
respondents' case.
WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so as to award in favor of
petitioners, and solidarily against private respondents the following: 1) P1,352,000.00 as actual damages computed as of the date
of promulgation of this decision plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos expires or
miraculously survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each as
exemplary damages and attorney's fees; and, 5) the costs of the suit.
SO ORDERED.

xxx xxx xxx

A prosthetic devise, however technologically advanced, will only allow a reasonable amount of functional restoration of the
motor functions of the lower limb. The sensory functions are forever lost. The resultant anxiety, sleeplessness, psychological
injury, mental and physical pain are inestimable. 83

The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly much more serious than the
amputation in the Valenzuela case.

Page 37 of 53 TORTS MEETING 2

TORTS 19 Petitioners filed with the Regional Trial Court of Quezon City a civil case for damages against private respondents. After due
trial, the court a quo rendered judgment in favor of petitioners. Essentially, the trial court found that private respondents were
negligent in the performance of their duties to Erlinda. On appeal by private respondents, the Court of Appeals reversed the trial
G.R. No. 124354 April 11, 2002
court’s decision and directed petitioners to pay their "unpaid medical bills" to private respondents.

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the minors, ROMMEL
Petitioners filed with this Court a petition for review on certiorari. The private respondents were then required to submit their
RAMOS, ROY RODERICK RAMOS, and RON RAYMOND RAMOS, petitioners,
respective comments thereon. On December 29, 1999, this Court promulgated the decision which private respondents now seek
vs.
to be reconsidered. The dispositive portion of said Decision states:
COURT OF APPEALS, DE LOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DR. PERFECTA
GUTIERREZ, respondents.
WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so as to award in favor
of petitioners, and solidarily against private respondents the following: 1) P1,352,000.00 as actual damages computed as of
RESOLUTION
the date of promulgation of this decision plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos
expires or miraculously survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate damages; 4)
KAPUNAN, J.: P100,000.00 each exemplary damages and attorney’s fees; and 5) the costs of the suit.2

Private respondents De Los Santos Medical Center, Dr. Orlino Hosaka and Dr. Perfecta Gutierrez move for a reconsideration of In his Motion for Reconsideration, private respondent Dr. Hosaka submits the following as grounds therefor:
the Decision, dated December 29, 1999, of this Court holding them civilly liable for petitioner Erlinda Ramos’ comatose
condition after she delivered herself to them for their professional care and management.
I THE HONORABLE SUPREME COURT COMMITTED REVERSIBLE ERROR WHEN IT HELD RESPONDENT DR.
HOSAKA LIABLE ON THE BASIS OF THE "CAPTAIN-OF-THE-SHIP" DOCTRINE.
For better understanding of the issues raised in private respondents’ respective motions, we will briefly restate the facts of the
case as follows:
II THE HONORABLE SUPREME COURT ERRED IN HOLDING RESPONDENT DR. HOSAKA LIABLE DESPITE THE
FACT THAT NO NEGLIGENCE CAN BE ATTRIBUTABLE TO HIM.
Sometime in 1985, petitioner Erlinda Ramos, after seeking professional medical help, was advised to undergo an operation for
the removal of a stone in her gall bladder (cholecystectomy). She was referred to Dr. Hosaka, a surgeon, who agreed to perform
III ASSUMING WITHOUT ADMITTING THAT RESPONDENT DR. HOSAKA IS LIABLE, THE HONORABLE
the operation on her. The operation was scheduled for June 17, 1985 at 9:00 in the morning at private respondent De Los Santos
SUPREME COURT ERRED IN AWARDING DAMAGES THAT WERE CLEARLY EXCESSIVE AND WITHOUT LEGAL
Medical Center (DLSMC). Since neither petitioner Erlinda nor her husband, petitioner Rogelio, knew of any anesthesiologist,
BASIS.3
Dr. Hosaka recommended to them the services of Dr. Gutierrez.

Private respondent Dr. Gutierrez, for her part, avers that:

Petitioner Erlinda was admitted to the DLSMC the day before the scheduled operation. By 7:30 in the morning of the following
day, petitioner Erlinda was already being prepared for operation. Upon the request of petitioner Erlinda, her sister-in-law,
Herminda Cruz, who was then Dean of the College of Nursing at the Capitol Medical Center, was allowed to accompany her A. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY OVERLOOKED THE FACT THAT THE
inside the operating room. COURT OF APPEAL’S DECISION DATED 29 MAY 1995 HAD ALREADY BECOME FINAL AND EXECUTORY AS
OF 25 JUNE 1995, THEREBY DEPRIVING THIS HONORABLE COURT OF JURISDICTION OVER THE INSTANT
PETITION;
At around 9:30 in the morning, Dr. Hosaka had not yet arrived so Dr. Gutierrez tried to get in touch with him by phone.
Thereafter, Dr. Gutierrez informed Cruz that the operation might be delayed due to the late arrival of Dr. Hosaka. In the
meantime, the patient, petitioner Erlinda said to Cruz, "Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor." B. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY OVERLOOKED SEVERAL MATERIAL
FACTUAL CIRCUMSTANCES WHICH, IF PROPERLY CONSIDERED, WOULD INDUBITABLY LEAD TO NO
OTHER CONCLUSION BUT THAT PRIVATE RESPONDENT DOCTORS WERE NOT GUILTY OF ANY
By 10:00 in the morning, when Dr. Hosaka was still not around, petitioner Rogelio already wanted to pull out his wife from the
NEGLIGENCE IN RESPECT OF THE INSTANT CASE;
operating room. He met Dr. Garcia, who remarked that he was also tired of waiting for Dr. Hosaka. Dr. Hosaka finally arrived at
the hospital at around 12:10 in the afternoon, or more than three (3) hours after the scheduled operation.
B.1 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY DISCHARGED THE BURDEN OF
EVIDENCE BY SUBSTANTIAL PROOF OF HER COMPLIANCE WITH THE STANDARDS OF DUE CARE
Cruz, who was then still inside the operating room, heard about Dr. Hosaka’s arrival. While she held the hand of Erlinda, Cruz
EXPECTED IN HER RESPECTIVE FIELD OF MEDICAL SPECIALIZATION.
saw Dr. Gutierrez trying to intubate the patient. Cruz heard Dr. Gutierrez utter: "ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan." Cruz noticed a bluish discoloration of Erlinda’s nailbeds on her left hand. She (Cruz) then
heard Dr. Hosaka instruct someone to call Dr. Calderon, another anesthesiologist. When he arrived, Dr. Calderon attempted to B.2 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY DISCHARGED THE BURDEN OF
intubate the patient. The nailbeds of the patient remained bluish, thus, she was placed in a trendelenburg position – a position EVIDENCE BY SUBSTANTIAL PROOF OF HER HAVING SUCCESSFULLY INTUBATED PATIENT ERLINDA
where the head of the patient is placed in a position lower than her feet. At this point, Cruz went out of the operating room to RAMOS
express her concern to petitioner Rogelio that Erlinda’s operation was not going well.
C. THE SUPREME COURT MAY HAVE INADVERTENTLY PLACED TOO MUCH RELIANCE ON THE
Cruz quickly rushed back to the operating room and saw that the patient was still in trendelenburg position. At almost 3:00 in the TESTIMONY OF PETITIONER’S WITNESS HERMINDA CRUZ, DESPITE THE EXISTENCE OF SEVERAL
afternoon, she saw Erlinda being wheeled to the Intensive Care Unit (ICU). The doctors explained to petitioner Rogelio that his FACTUAL CIRCUMSTANCES WHICH RENDERS DOUBT ON HER CREDIBILITY
wife had bronchospasm. Erlinda stayed in the ICU for a month. She was released from the hospital only four months later or on
November 15, 1985. Since the ill-fated operation, Erlinda remained in comatose condition until she died on August 3, 1999. 1

Page 38 of 53 TORTS MEETING 2

 D. THE SUPREME COURT MAY HAVE INADVERTENTLY DISREGARDED THE EXPERT TESTIMONY OF DR.
JAMORA AND DRA. CALDERON
E. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY AWARDED DAMAGES TO
PETITIONERS DESPITE THE FACT THAT THERE WAS NO NEGLIGENCE ON THE PART OF RESPONDENT
DOCTOR.4
Private respondent De Los Santos Medical Center likewise moves for reconsideration on the following grounds:
I THE HONORABLE COURT ERRED IN GIVING DUE COURSE TO THE INSTANT PETITION AS THE DECISION OF
THE HONORABLE COURT OF APPEALS HAD ALREADY BECOME FINAL AND EXECUTORY
II THE HONORABLE SUPREME COURT ERRED IN FINDING THAT AN EMPLOYER-EMPLOYEE [RELATIONSHIP]
EXISTS BETWEEN RESPONDENT DE LOS SANTOS MEDICAL CENTER AND DRS. ORLINO HOSAKA AND
PERFECTA GUTIERREZ
III THE HONORABLE SUPREME COURT ERRED IN FINDING THAT RESPONDENT DE LOS SANTOS MEDICAL
CENTER IS SOLIDARILY LIABLE WITH RESPONDENT DOCTORS
IV THE HONORABLE SUPREME COURT ERRED IN INCREASING THE AWARD OF DAMAGES IN FAVOR OF
PETITIONERS.5
In the Resolution of February 21, 2000, this Court denied the motions for reconsideration of private respondents Drs. Hosaka
and Gutierrez. They then filed their respective second motions for reconsideration. The Philippine College of Surgeons filed its
Petition-in-Intervention contending in the main that this Court erred in holding private respondent Dr. Hosaka liable under the
captain of the ship doctrine. According to the intervenor, said doctrine had long been abandoned in the United States in
recognition of the developments in modern medical and hospital practice.6 The Court noted these pleadings in the Resolution of
July 17, 2000.7
On March 19, 2001, the Court heard the oral arguments of the parties, including the intervenor. Also present during the hearing
were the amicii curiae: Dr. Felipe A. Estrella, Jr., Consultant of the Philippine Charity Sweepstakes, former Director of the
Philippine General Hospital and former Secretary of Health; Dr. Iluminada T. Camagay, President of the Philippine Society of
Anesthesiologists, Inc. and Professor and Vice-Chair for Research, Department of Anesthesiology, College of Medicine-
Philippine General Hospital, University of the Philippines; and Dr. Lydia M. Egay, Professor and Vice-Chair for Academics,
Department of Anesthesiology, College of Medicine-Philippine General Hospital, University of the Philippines.
The Court enumerated the issues to be resolved in this case as follows:
1. WHETHER OR NOT DR. ORLINO HOSAKA (SURGEON) IS LIABLE FOR NEGLIGENCE;
2. WHETHER OR NOT DR. PERFECTA GUTIERREZ (ANESTHESIOLOGIST) IS LIABLE FOR NEGLIGENCE; AND
3. WHETHER OR NOT THE HOSPITAL (DELOS SANTOS MEDICAL CENTER) IS LIABLE FOR ANY ACT OF
NEGLIGENCE COMMITTED BY THEIR VISITING CONSULTANT SURGEON AND ANESTHESIOLOGIST. 8
We shall first resolve the issue pertaining to private respondent Dr. Gutierrez. She maintains that the Court erred in finding her
negligent and in holding that it was the faulty intubation which was the proximate cause of Erlinda’s comatose condition. The
following objective facts allegedly negate a finding of negligence on her part: 1) That the outcome of the procedure was a
comatose patient and not a dead one; 2) That the patient had a cardiac arrest; and 3) That the patient was revived from that
cardiac arrest.9 In effect, Dr. Gutierrez insists that, contrary to the finding of this Court, the intubation she performed on Erlinda
was successful.
Page 39 of 53 TORTS MEETING 2
Unfortunately, Dr. Gutierrez’ claim of lack of negligence on her part is belied by the records of the case. It has been sufficiently
established that she failed to exercise the standards of care in the administration of anesthesia on a patient. Dr. Egay enlightened
the Court on what these standards are:
x x x What are the standards of care that an anesthesiologist should do before we administer anesthesia? The initial step is
the preparation of the patient for surgery and this is a pre-operative evaluation because the anesthesiologist is responsible for
determining the medical status of the patient, developing the anesthesia plan and acquainting the patient or the responsible
adult particularly if we are referring with the patient or to adult patient who may not have, who may have some mental
handicaps of the proposed plans. We do pre-operative evaluation because this provides for an opportunity for us to establish
identification and personal acquaintance with the patient. It also makes us have an opportunity to alleviate anxiety, explain
techniques and risks to the patient, given the patient the choice and establishing consent to proceed with the plan. And lastly,
once this has been agreed upon by all parties concerned the ordering of pre-operative medications. And following this line at
the end of the evaluation we usually come up on writing, documentation is very important as far as when we train an
anesthesiologist we always emphasize this because we need records for our protection, well, records. And it entails having
brief summary of patient history and physical findings pertinent to anesthesia, plan, organize as a problem list, the plan
anesthesia technique, the plan post operative, pain management if appropriate, special issues for this particular patient.
There are needs for special care after surgery and if it so it must be written down there and a request must be made known to
proper authorities that such and such care is necessary. And the request for medical evaluation if there is an indication.
When we ask for a cardio-pulmonary clearance it is not in fact to tell them if this patient is going to be fit for anesthesia, the
decision to give anesthesia rests on the anesthesiologist. What we ask them is actually to give us the functional capacity of
certain systems which maybe affected by the anesthetic agent or the technique that we are going to use. But the burden of
responsibility in terms of selection of agent and how to administer it rest on the anesthesiologist. 10
The conduct of a preanesthetic/preoperative evaluation prior to an operation, whether elective or emergency, cannot be
dispensed with.11 Such evaluation is necessary for the formulation of a plan of anesthesia care suited to the needs of the patient
concerned.
Pre-evaluation for anesthesia involves taking the patient’s medical history, reviewing his current drug therapy, conducting
physical examination, interpreting laboratory data, and determining the appropriate prescription of preoperative medications as
necessary to the conduct of anesthesia.12
Physical examination of the patient entails not only evaluating the patient’s central nervous system, cardiovascular system and
lungs but also the upper airway. Examination of the upper airway would in turn include an analysis of the patient’s cervical spine
mobility, temporomandibular mobility, prominent central incisors, deceased or artificial teeth, ability to visualize uvula and the
thyromental distance.13
Nonetheless, Dr. Gutierrez omitted to perform a thorough preoperative evaluation on Erlinda. As she herself admitted, she saw
Erlinda for the first time on the day of the operation itself, one hour before the scheduled operation. She auscultated 14 the
patient’s heart and lungs and checked the latter’s blood pressure to determine if Erlinda was indeed fit for operation. 15 However,
she did not proceed to examine the patient’s airway. Had she been able to check petitioner Erlinda’s airway prior to the
operation, Dr. Gutierrez would most probably not have experienced difficulty in intubating the former, and thus the resultant
injury could have been avoided. As we have stated in our Decision:
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the operation
itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative evaluation of Erlinda was done by her.
Until the day of the operation, respondent Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda.
She was likewise not properly informed of the possible difficulties she would face during the administration of anesthesia to
Erlinda. Respondent Dra. Gutierrez’ act of seeing her patient for the first time only an hour before the scheduled operative
procedure was, therefore, an act of exceptional negligence and professional irresponsibility. The measures cautioning
prudence and vigilance in dealing with human lives lie at the core of the physician’s centuries-old Hippocratic Oath. Her
failure to follow this medical procedure is, therefore, a clear indicia of her negligence.16
Further, there is no cogent reason for the Court to reverse its finding that it was the faulty intubation on Erlinda that caused her
comatose condition. There is no question that Erlinda became comatose after Dr. Gutierrez performed a medical procedure on
her. Even the counsel of Dr. Gutierrez admitted to this fact during the oral arguments:
 CHIEF JUSTICE:
Mr. Counsel, you started your argument saying that this involves a comatose patient?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
How do you mean by that, a comatose, a comatose after any other acts were done by Dr. Gutierrez or comatose before any
act was done by her?
ATTY. GANA:
No, we meant comatose as a final outcome of the procedure.
CHIEF JUSTICE:
Meaning to say, the patient became comatose after some intervention, professional acts have been done by Dr. Gutierrez?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
In other words, the comatose status was a consequence of some acts performed by D. Gutierrez?
ATTY. GANA:
It was a consequence of the well, (interrupted)
CHIEF JUSTICE:
An acts performed by her, is that not correct?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
Thank you.17
What is left to be determined therefore is whether Erlinda’s hapless condition was due to any fault or negligence on the part of
Dr. Gutierrez while she (Erlinda) was under the latter’s care. Dr. Gutierrez maintains that the bronchospasm and cardiac arrest
resulting in the patient’s comatose condition was brought about by the anaphylactic reaction of the patient to Thiopental Sodium
(pentothal).18 In the Decision, we explained why we found Dr. Gutierrez’ theory unacceptable. In the first place, Dr. Eduardo
Jamora, the witness who was presented to support her (Dr. Gutierrez) theory, was a pulmonologist. Thus, he could not be
considered an authority on anesthesia practice and procedure and their complications. 19
Secondly, there was no evidence on record to support the theory that Erlinda developed an allergic reaction to pentothal. Dr.
Camagay enlightened the Court as to the manifestations of an allergic reaction in this wise:
DR. CAMAGAY:
All right, let us qualify an allergic reaction. In medical terminology an allergic reaction is something which is not usual
response and it is further qualified by the release of a hormone called histamine and histamine has an effect on all the organs
of the body generally release because the substance that entered the body reacts with the particular cell, the mass cell, and
the mass cell secretes this histamine. In a way it is some form of response to take away that which is not mine, which is not
part of the body. So, histamine has multiple effects on the body. So, one of the effects as you will see you will have redness,
if you have an allergy you will have tearing of the eyes, you will have swelling, very crucial swelling sometimes of the
larynges which is your voice box main airway, that swelling may be enough to obstruct the entry of air to the trachea and
you could also have contraction, constriction of the smaller airways beyond the trachea, you see you have the trachea this
way, we brought some visual aids but unfortunately we do not have a projector. And then you have the smaller airways, the
bronchi and then eventually into the mass of the lungs you have the bronchus. The difference is that these tubes have also in
their walls muscles and this particular kind of muscles is smooth muscle so, when histamine is released they close up like
this and that phenomenon is known as bronco spasm. However, the effects of histamine also on blood vessels are different.
They dilate blood vessel open up and the patient or whoever has this histamine release has hypertension or low blood
pressure to a point that the patient may have decrease blood supply to the brain and may collapse so, you may have people
who have this.20
These symptoms of an allergic reaction were not shown to have been extant in Erlinda’s case. As we held in our Decision, "no
evidence of stridor, skin reactions, or wheezing – some of the more common accompanying signs of an allergic reaction –
appears on record. No laboratory data were ever presented to the court."21
Page 40 of 53 TORTS MEETING 2
Dr. Gutierrez, however, insists that she successfully intubated Erlinda as evidenced by the fact that she was revived after
suffering from cardiac arrest. Dr. Gutierrez faults the Court for giving credence to the testimony of Cruz on the matter of the
administration of anesthesia when she (Cruz), being a nurse, was allegedly not qualified to testify thereon. Rather, Dr. Gutierrez
invites the Court’s attention to her synopsis on what transpired during Erlinda’s intubation:
12:15 p.m. Patient was inducted with sodium pentothal 2.5% (250 mg) given by slow IV. 02 was started by mask. After
pentothal injection this was followed by IV injection of Norcuron 4mg. After 2 minutes 02 was given by positive pressure
for about one minute. Intubation with endotracheal tube 7.5 m in diameter was done with slight difficulty (short neck &
slightly prominent upper teeth) chest was examined for breath sounds & checked if equal on both sides. The tube was then
anchored to the mouth by plaster & cuff inflated. Ethrane 2% with 02 4 liters was given. Blood pressure was checked 120/80
& heart rate regular and normal 90/min.
12:25 p.m. After 10 minutes patient was cyanotic. Ethrane was discontinued & 02 given alone. Cyanosis disappeared. Blood
pressure and heart beats stable.
12:30 p.m. Cyanosis again reappeared this time with sibilant and sonorous rales all over the chest. D_5%_H20 & 1 ampule
of aminophyline by fast drip was started. Still the cyanosis was persistent. Patient was connected to a cardiac monitor.
Another ampule of of [sic] aminophyline was given and solu cortef was given.
12:40 p.m. There was cardiac arrest. Extra cardiac massage and intercardiac injection of adrenalin was given & heart beat
reappeared in less than one minute. Sodium bicarbonate & another dose of solu cortef was given by IV. Cyanosis slowly
disappeared & 02 continuously given & assisted positive pressure. Laboratory exams done (see results in chart).
Patient was transferred to ICU for further management.22
From the foregoing, it can be allegedly seen that there was no withdrawal (extubation) of the tube. And the fact that the cyanosis
allegedly disappeared after pure oxygen was supplied through the tube proved that it was properly placed.
The Court has reservations on giving evidentiary weight to the entries purportedly contained in Dr. Gutierrez’ synopsis. It is
significant to note that the said record prepared by Dr. Gutierrez was made only after Erlinda was taken out of the operating
room. The standard practice in anesthesia is that every single act that the anesthesiologist performs must be recorded. In Dr.
Gutierrez’ case, she could not account for at least ten (10) minutes of what happened during the administration of anesthesia on
Erlinda. The following exchange between Dr. Estrella, one of the amicii curiae, and Dr. Gutierrez is instructive:
DR. ESTRELLA
Q You mentioned that there were two (2) attempts in the intubation period?
DR. GUTIERREZ
Yes.
Q There were two attempts. In the first attempt was the tube inserted or was the laryngoscope only inserted, which was
inserted?
A All the laryngoscope.
Q All the laryngoscope. But if I remember right somewhere in the re-direct, a certain lawyer, you were asked that you
did a first attempt and the question was – did you withdraw the tube? And you said – you never withdrew the tube, is that
right?
A Yes.
Q Yes. And so if you never withdrew the tube then there was no, there was no insertion of the tube during that first
attempt. Now, the other thing that we have to settle here is – when cyanosis occurred, is it recorded in the anesthesia record
when the cyanosis, in your recording when did the cyanosis occur?
A (sic)
Q Is it a standard practice of anesthesia that whatever you do during that period or from the time of induction to the
time that you probably get the patient out of the operating room that every single action that you do is so recorded in your
anesthesia record?
A I was not able to record everything I did not have time anymore because I did that after the, when the patient was
about to leave the operating room. When there was second cyanosis already that was the (interrupted)
Q When was the first cyanosis?
A The first cyanosis when I was (interrupted)
Q What time, more or less?
A I think it was 12:15 or 12:16.
Q Well, if the record will show you started induction at 12:15?
A Yes, Your Honor.
Q And the first medication you gave was what?
A The first medication, no, first the patient was oxygenated for around one to two minutes.
Q Yes, so, that is about 12:13?
A Yes, and then, I asked the resident physician to start giving the pentothal very slowly and that was around one
minute.
Q So, that is about 12:13 no, 12:15, 12:17?
A Yes, and then, after one minute another oxygenation was given and after (interrupted)
Q 12:18?
A Yes, and then after giving the oxygen we start the menorcure which is a relaxant. After that relaxant (interrupted)
Q After that relaxant, how long do you wait before you do any manipulation?
A Usually you wait for two minutes or three minutes.
Q So, if our estimate of the time is accurate we are now more or less 12:19, is that right?
A Maybe.
Q 12:19. And at that time, what would have been done to this patient?
A After that time you examine the, if there is relaxation of the jaw which you push it downwards and when I saw that
the patient was relax because that monorcure is a relaxant, you cannot intubate the patient or insert the laryngoscope if it is
not keeping him relax. So, my first attempt when I put the laryngoscope on I saw the trachea was deeply interiorly. So, what
I did ask "mahirap ata ito ah." So, I removed the laryngoscope and oxygenated again the patient.
Q So, more or less you attempted to do an intubation after the first attempt as you claimed that it was only the
laryngoscope that was inserted.
A Yes.
Q And in the second attempt you inserted the laryngoscope and now possible intubation?
A Yes.
Q And at that point, you made a remark, what remark did you make?
A I said "mahirap ata ito" when the first attempt I did not see the trachea right away. That was when I (interrupted)
Q That was the first attempt?
A Yes.
Q What about the second attempt?
A On the second attempt I was able to intubate right away within two to three seconds.
Q At what point, for purposes of discussion without accepting it, at what point did you make the comment "na mahirap
ata to intubate, mali ata ang pinasukan"
A I did not say "mali ata ang pinasukan" I never said that.
Q Well, just for the information of the group here the remarks I am making is based on the documents that were
forwarded to me by the Supreme Court. That is why for purposes of discussion I am trying to clarify this for the sake of
enlightenment. So, at what point did you ever make that comment?
A Which one, sir?
Q The "mahirap intubate ito" assuming that you (interrupted)
A Iyon lang, that is what I only said "mahirap intubate (interrupted)
Q At what point?
A When the first attempt when I inserted the laryngoscope for the first time.
Q So, when you claim that at the first attempt you inserted the laryngoscope, right?
A Yes.
Q But in one of the recordings somewhere at the, somewhere in the transcript of records that when the lawyer of the
other party try to inquire from you during the first attempt that was the time when "mayroon ba kayong hinugot sa tube, I do
not remember the page now, but it seems to me it is there. So, that it was on the second attempt that (interrupted)
A I was able to intubate.
Q And this is more or less about what time 12:21?
A Maybe, I cannot remember the time, Sir.
Q Okay, assuming that this was done at 12:21 and looking at the anesthesia records from 12:20 to 12:30 there was no
recording of the vital signs. And can we presume that at this stage there was already some problems in handling the patient?
A Not yet.
Q But why are there no recordings in the anesthesia record?
Page 41 of 53 TORTS MEETING 2
A I did not have time.
Q Ah, you did not have time, why did you not have time?
A Because it was so fast, I really (at this juncture the witness is laughing)
Q No, I am just asking. Remember I am not here not to pin point on anybody I am here just to more or less clarify
certainty more ore less on the record.
A Yes, Sir.
Q And so it seems that there were no recording during that span of ten (10) minutes. From 12:20 to 12:30, and going
over your narration, it seems to me that the cyanosis appeared ten (10) minutes after induction, is that right?
A Yes.
Q And that is after induction 12:15 that is 12:25 that was the first cyanosis?
A Yes.
Q And that the 12:25 is after the 12:20?
A We cannot (interrupted)
Q Huwag ho kayong makuwan, we are just trying to enlighten, I am just going over the record ano, kung mali ito kuwan
eh di ano. So, ganoon po ano, that it seems to me that there is no recording from 12:20 to 12:30, so, I am just wondering
why there were no recordings during the period and then of course the second cyanosis, after the first cyanosis. I think that
was the time Dr. Hosaka came in?
A No, the first cyanosis (interrupted).23
We cannot thus give full credence to Dr. Gutierrez’ synopsis in light of her admission that it does not fully reflect the events that
transpired during the administration of anesthesia on Erlinda. As pointed out by Dr. Estrella, there was a ten-minute gap in Dr.
Gutierrez’ synopsis, i.e., the vital signs of Erlinda were not recorded during that time. The absence of these data is particularly
significant because, as found by the trial court, it was the absence of oxygen supply for four (4) to five (5) minutes that caused
Erlinda’s comatose condition.
On the other hand, the Court has no reason to disbelieve the testimony of Cruz. As we stated in the Decision, she is competent to
testify on matters which she is capable of observing such as, the statements and acts of the physician and surgeon, external
appearances and manifest conditions which are observable by any one. 24 Cruz, Erlinda’s sister-in-law, was with her inside the
operating room. Moreover, being a nurse and Dean of the Capitol Medical Center School of Nursing at that, she is not entirely
ignorant of anesthetic procedure. Cruz narrated that she heard Dr. Gutierrez remark, "Ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan." She observed that the nailbeds of Erlinda became bluish and thereafter Erlinda was placed
in trendelenburg position.25 Cruz further averred that she noticed that the abdomen of Erlinda became distended.26
The cyanosis (bluish discoloration of the skin or mucous membranes caused by lack of oxygen or abnormal hemoglobin in the
blood) and enlargement of the stomach of Erlinda indicate that the endotracheal tube was improperly inserted into the esophagus
instead of the trachea. Consequently, oxygen was delivered not to the lungs but to the gastrointestinal tract. This conclusion is
supported by the fact that Erlinda was placed in trendelenburg position. This indicates that there was a decrease of blood supply
to the patient’s brain. The brain was thus temporarily deprived of oxygen supply causing Erlinda to go into coma.
The injury incurred by petitioner Erlinda does not normally happen absent any negligence in the administration of anesthesia and
in the use of an endotracheal tube. As was noted in our Decision, the instruments used in the administration of anesthesia,
including the endotracheal tube, were all under the exclusive control of private respondents Dr. Gutierrez and Dr.
Hosaka.27 In Voss vs. Bridwell,28 which involved a patient who suffered brain damage due to the wrongful administration of
anesthesia, and even before the scheduled mastoid operation could be performed, the Kansas Supreme Court applied the doctrine
of res ipsa loquitur, reasoning that the injury to the patient therein was one which does not ordinarily take place in the absence of
negligence in the administration of an anesthetic, and in the use and employment of an endotracheal tube. The court went on to
say that "[o]rdinarily a person being put under anesthesia is not rendered decerebrate as a consequence of administering such
anesthesia in the absence of negligence. Upon these facts and under these circumstances, a layman would be able to say, as a
matter of common knowledge and observation, that the consequences of professional treatment were not as such as would
ordinarily have followed if due care had been exercised."29 Considering the application of the doctrine of res ipsa loquitur, the
testimony of Cruz was properly given credence in the case at bar.
For his part, Dr. Hosaka mainly contends that the Court erred in finding him negligent as a surgeon by applying the Captain-of-
the-Ship doctrine.30 Dr. Hosaka argues that the trend in United States jurisprudence has been to reject said doctrine in light of the
developments in medical practice. He points out that anesthesiology and surgery are two distinct and specialized fields in
medicine and as a surgeon, he is not deemed to have control over the acts of Dr. Gutierrez. As anesthesiologist, Dr. Gutierrez is a
specialist in her field and has acquired skills and knowledge in the course of her training which Dr. Hosaka, as a surgeon, does
not possess.31 He states further that current American jurisprudence on the matter recognizes that the trend towards specialization
in medicine has created situations where surgeons do not always have the right to control all personnel within the operating
room,32 especially a fellow specialist.33
Dr. Hosaka cites the case of Thomas v. Raleigh General Hospital,34 which involved a suit filed by a patient who lost his voice
due to the wrongful insertion of the endotracheal tube preparatory to the administration of anesthesia in connection with the
laparotomy to be conducted on him. The patient sued both the anesthesiologist and the surgeon for the injury suffered by him.
The Supreme Court of Appeals of West Virginia held that the surgeon could not be held liable for the loss of the patient’s voice,
considering that the surgeon did not have a hand in the intubation of the patient. The court rejected the application of the
"Captain-of-the-Ship Doctrine," citing the fact that the field of medicine has become specialized such that surgeons can no
longer be deemed as having control over the other personnel in the operating room. It held that "[a]n assignment of liability
based on actual control more realistically reflects the actual relationship which exists in a modern operating room." 35 Hence, only
the anesthesiologist who inserted the endotracheal tube into the patient’s throat was held liable for the injury suffered by the
latter.
This contention fails to persuade.
That there is a trend in American jurisprudence to do away with the Captain-of-the-Ship doctrine does not mean that this Court
will ipso facto follow said trend. Due regard for the peculiar factual circumstances obtaining in this case justify the application of
the Captain-of-the-Ship doctrine. From the facts on record it can be logically inferred that Dr. Hosaka exercised a certain degree
of, at the very least, supervision over the procedure then being performed on Erlinda.
First, it was Dr. Hosaka who recommended to petitioners the services of Dr. Gutierrez. In effect, he represented to petitioners
that Dr. Gutierrez possessed the necessary competence and skills. Drs. Hosaka and Gutierrez had worked together since 1977.
Whenever Dr. Hosaka performed a surgery, he would always engage the services of Dr. Gutierrez to administer the anesthesia
on his patient.36
Second, Dr. Hosaka himself admitted that he was the attending physician of Erlinda. Thus, when Erlinda showed signs of
cyanosis, it was Dr. Hosaka who gave instructions to call for another anesthesiologist and cardiologist to help resuscitate
Erlinda.37
Third, it is conceded that in performing their responsibilities to the patient, Drs. Hosaka and Gutierrez worked as a team. Their
work cannot be placed in separate watertight compartments because their duties intersect with each other. 38
While the professional services of Dr. Hosaka and Dr. Gutierrez were secured primarily for their performance of acts within their
respective fields of expertise for the treatment of petitioner Erlinda, and that one does not exercise control over the other, they
were certainly not completely independent of each other so as to absolve one from the negligent acts of the other physician.
That they were working as a medical team is evident from the fact that Dr. Hosaka was keeping an eye on the intubation of the
patient by Dr. Gutierrez, and while doing so, he observed that the patient’s nails had become dusky and had to call Dr.
Gutierrez’s attention thereto. The Court also notes that the counsel for Dr. Hosaka admitted that in practice, the anesthesiologist
would also have to observe the surgeon’s acts during the surgical process and calls the attention of the surgeon whenever
necessary39 in the course of the treatment. The duties of Dr. Hosaka and those of Dr. Gutierrez in the treatment of petitioner
Erlinda are therefore not as clear-cut as respondents claim them to be. On the contrary, it is quite apparent that they have a
common responsibility to treat the patient, which responsibility necessitates that they call each other’s attention to the condition
of the patient while the other physician is performing the necessary medical procedures.
It is equally important to point out that Dr. Hosaka was remiss in his duty of attending to petitioner Erlinda promptly, for he
arrived more than three (3) hours late for the scheduled operation. The cholecystectomy was set for June 17, 1985 at 9:00 a.m.,
but he arrived at DLSMC only at around 12:10 p.m. In reckless disregard for his patient’s well being, Dr. Hosaka scheduled two
procedures on the same day, just thirty minutes apart from each other, at different hospitals. Thus, when the first procedure
(protoscopy) at the Sta. Teresita Hospital did not proceed on time, Erlinda was kept in a state of uncertainty at the DLSMC.
Page 42 of 53 TORTS MEETING 2
The unreasonable delay in petitioner Erlinda’s scheduled operation subjected her to continued starvation and consequently, to the
risk of acidosis,40 or the condition of decreased alkalinity of the blood and tissues, marked by sickly sweet breath, headache,
nausea and vomiting, and visual disturbances.41 The long period that Dr. Hosaka made Erlinda wait for him certainly aggravated
the anxiety that she must have been feeling at the time. It could be safely said that her anxiety adversely affected the
administration of anesthesia on her. As explained by Dr. Camagay, the patient’s anxiety usually causes the outpouring of
adrenaline which in turn results in high blood pressure or disturbances in the heart rhythm:
DR. CAMAGAY:
x x x Pre-operative medication has three main functions: One is to alleviate anxiety. Second is to dry up the secretions and
Third is to relieve pain. Now, it is very important to alleviate anxiety because anxiety is associated with the outpouring of
certain substances formed in the body called adrenalin. When a patient is anxious there is an outpouring of adrenalin which
would have adverse effect on the patient. One of it is high blood pressure, the other is that he opens himself to disturbances
in the heart rhythm, which would have adverse implications. So, we would like to alleviate patient’s anxiety mainly because
he will not be in control of his body there could be adverse results to surgery and he will be opened up; a knife is going to
open up his body. x x x42
Dr. Hosaka cannot now claim that he was entirely blameless of what happened to Erlinda. His conduct clearly constituted a
breach of his professional duties to Erlinda:
CHIEF JUSTICE:
Two other points. The first, Doctor, you were talking about anxiety, would you consider a patient's stay on the operating
table for three hours sufficient enough to aggravate or magnify his or her anxiety?
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
In other words, I understand that in this particular case that was the case, three hours waiting and the patient was already on
the operating table (interrupted)
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
Would you therefore conclude that the surgeon contributed to the aggravation of the anxiety of the patient?
DR. CAMAGAY:
That this operation did not take place as scheduled is already a source of anxiety and most operating tables are very narrow
and that patients are usually at risk of falling on the floor so there are restraints that are placed on them and they are never,
never left alone in the operating room by themselves specially if they are already pre-medicated because they may not be
aware of some of their movement that they make which would contribute to their injury.
CHIEF JUSTICE:
In other words due diligence would require a surgeon to come on time?
DR. CAMAGAY:
I think it is not even due diligence it is courtesy.
CHIEF JUSTICE:
Courtesy.
DR. CAMAGAY:
And care.
CHIEF JUSTICE:
Duty as a matter of fact?
DR. CAMAGAY:
Yes, Your Honor.43
Dr. Hosaka's irresponsible conduct of arriving very late for the scheduled operation of petitioner Erlinda is violative, not only of
his duty as a physician "to serve the interest of his patients with the greatest solicitude, giving them always his best talent and
skill,"44 but also of Article 19 of the Civil Code which requires a person, in the performance of his duties, to act with justice and
give everyone his due.
Anent private respondent DLSMC’s liability for the resulting injury to petitioner Erlinda, we held that respondent hospital is
solidarily liable with respondent doctors therefor under Article 2180 of the Civil Code45 since there exists an employer-employee
relationship between private respondent DLSMC and Drs. Gutierrez and Hosaka:
In other words, private hospitals, hire, fire and exercise real control over their attending and visiting "consultant" staff.
While "consultants" are not, technically employees, x x x the control exercised, the hiring and the right to terminate
consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of
wages. In assessing whether such a relationship in fact exists, the control test is determining. x x x 46
DLSMC however contends that applying the four-fold test in determining whether such a relationship exists between it and the
respondent doctors, the inescapable conclusion is that DLSMC cannot be considered an employer of the respondent doctors.
It has been consistently held that in determining whether an employer-employee relationship exists between the parties, the
following elements must be present: (1) selection and engagement of services; (2) payment of wages; (3) the power to hire and
fire; and (4) the power to control not only the end to be achieved, but the means to be used in reaching such an end. 47
DLSMC maintains that first, a hospital does not hire or engage the services of a consultant, but rather, accredits the latter and
grants him or her the privilege of maintaining a clinic and/or admitting patients in the hospital upon a showing by the consultant
that he or she possesses the necessary qualifications, such as accreditation by the appropriate board (diplomate), evidence of
fellowship and references.48 Second, it is not the hospital but the patient who pays the consultant’s fee for services rendered by
the latter.49 Third, a hospital does not dismiss a consultant; instead, the latter may lose his or her accreditation or privileges
granted by the hospital.50 Lastly, DLSMC argues that when a doctor refers a patient for admission in a hospital, it is the doctor
who prescribes the treatment to be given to said patient. The hospital’s obligation is limited to providing the patient with the
preferred room accommodation, the nutritional diet and medications prescribed by the doctor, the equipment and facilities
necessary for the treatment of the patient, as well as the services of the hospital staff who perform the ministerial tasks of
ensuring that the doctor’s orders are carried out strictly.51
After a careful consideration of the arguments raised by DLSMC, the Court finds that respondent hospital’s position on this issue
is meritorious. There is no employer-employee relationship between DLSMC and Drs. Gutierrez and Hosaka which would hold
DLSMC solidarily liable for the injury suffered by petitioner Erlinda under Article 2180 of the Civil Code.
Thousand Pesos (P1,352,000.00) to cover the expenses for petitioner Erlinda’s treatment and care from the date of promulgation
of the Decision up to the time the patient expires or survives.53 In addition thereto, the Court awarded temperate damages of One
Million Five Hundred Thousand Pesos (P1,500,000.00) in view of the chronic and continuing nature of petitioner Erlinda’s
injury and the certainty of further pecuniary loss by petitioners as a result of said injury, the amount of which, however, could
not be made with certainty at the time of the promulgation of the decision. The Court justified such award in this manner:
Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered as a
consequence of an act of negligence has been completed and that the cost can be liquidated. However, these provisions
neglect to take into account those situations, as in this case, where the resulting injury might be continuing and possible
future complications directly arising from the injury, while certain to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they are to adequately and correctly respond to the injury
caused, should be one which compensates for pecuniary loss incurred and proved, up to the time of trial; and one which
would meet pecuniary loss certain to be suffered but which could not, from the nature of the case, be made with certainty. In
other words, temperate damages can and should be awarded on top of actual or compensatory damages in instances where
the injury is chronic and continuing. And because of the unique nature of such cases, no incompatibility arises when both
actual and temperate damages are provided for. The reason is that these damages cover two distinct phases.
As it would not be equitable—and certainly not in the best interests of the administration of justice—for the victim in such
cases to constantly come before the courts and invoke their aid in seeking adjustments to the compensatory damages
previously awarded—temperate damages are appropriate. The amount given as temperate damages, though to a certain
extent speculative, should take into account the cost of proper care.
In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient who has remained
in that condition for over a decade. Having premised our award for compensatory damages on the amount provided by
petitioners at the onset of litigation, it would be now much more in step with the interests of justice if the value awarded for
temperate damages would allow petitioners to provide optimal care for their loved one in a facility which generally
specializes in such care. They should not be compelled by dire circumstances to provide substandard care at home without
the aid of professionals, for anything less would be grossly inadequate. Under the circumstances, an award of P1,500,000.00
in temperate damages would therefore be reasonable.54

However, subsequent to the promulgation of the Decision, the Court was informed by petitioner Rogelio that petitioner Erlinda
As explained by respondent hospital, that the admission of a physician to membership in DLSMC’s medical staff as active or
died on August 3, 1999.55 In view of this supervening event, the award of temperate damages in addition to the actual or
visiting consultant is first decided upon by the Credentials Committee thereof, which is composed of the heads of the various
compensatory damages would no longer be justified since the actual damages awarded in the Decision are sufficient to cover the
specialty departments such as the Department of Obstetrics and Gynecology, Pediatrics, Surgery with the department head of the
medical expenses incurred by petitioners for the patient. Hence, only the amounts representing actual, moral and exemplary
particular specialty applied for as chairman. The Credentials Committee then recommends to DLSMC's Medical Director or
damages, attorney’s fees and costs of suit should be awarded to petitioners.
Hospital Administrator the acceptance or rejection of the applicant physician, and said director or administrator validates the
committee's recommendation.52 Similarly, in cases where a disciplinary action is lodged against a consultant, the same is initiated
by the department to whom the consultant concerned belongs and filed with the Ethics Committee consisting of the department WHEREFORE, the assailed Decision is hereby modified as follows:
specialty heads. The medical director/hospital administrator merely acts as ex-officio member of said committee.
(1) Private respondent De Los Santos Medical Center is hereby absolved from liability arising from the injury suffered by
Neither is there any showing that it is DLSMC which pays any of its consultants for medical services rendered by the latter to petitioner Erlinda Ramos on June 17, 1985;
their respective patients. Moreover, the contract between the consultant in respondent hospital and his patient is separate and
distinct from the contract between respondent hospital and said patient. The first has for its object the rendition of medical
(2) Private respondents Dr. Orlino Hosaka and Dr. Perfecta Gutierrez are hereby declared to be solidarily liable for the injury
services by the consultant to the patient, while the second concerns the provision by the hospital of facilities and services by its
suffered by petitioner Erlinda on June 17, 1985 and are ordered to pay petitioners—
staff such as nurses and laboratory personnel necessary for the proper treatment of the patient.

(a) P1,352,000.00 as actual damages;

Further, no evidence was adduced to show that the injury suffered by petitioner Erlinda was due to a failure on the part of
(b) P2,000,000.00 as moral damages;
respondent DLSMC to provide for hospital facilities and staff necessary for her treatment.
(c) P100,000.00 as exemplary damages;
(d) P100,000.00 as attorney’s fees; and
For these reasons, we reverse the finding of liability on the part of DLSMC for the injury suffered by petitioner Erlinda. (e) the costs of the suit.

Finally, the Court also deems it necessary to modify the award of damages to petitioners in view of the supervening event of SO ORDERED.
petitioner Erlinda’s death. In the assailed Decision, the Court awarded actual damages of One Million Three Hundred Fifty Two

Page 43 of 53 TORTS MEETING 2

TORTS 20 After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over, completed the operation and closed the incision.

G.R. No. 126297 January 31, 2007 However, the operation appeared to be flawed. In the corresponding Record of Operation dated April 11, 1984, the attending
nurses entered these remarks:
PROFESSIONAL SERVICES, INC., Petitioner,
vs. "sponge count lacking 2
NATIVIDAD and ENRIQUE AGANA, Respondents.
"announced to surgeon searched (sic) done but to no avail continue for closure."
x-----------------------x
On April 24, 1984, Natividad was released from the hospital. Her hospital and medical bills, including the doctors’ fees,
G.R. No. 126467 January 31, 2007 amounted to P60,000.00.

NATIVIDAD (Substituted by her children MARCELINO AGANA III, ENRIQUE AGANA, JR., EMMA AGANA After a couple of days, Natividad complained of excruciating pain in her anal region. She consulted both Dr. Ampil and Dr.
ANDAYA, JESUS AGANA, and RAYMUND AGANA) and ENRIQUE AGANA, Petitioners, Fuentes about it. They told her that the pain was the natural consequence of the surgery. Dr. Ampil then recommended that she
vs. consult an oncologist to examine the cancerous nodes which were not removed during the operation.
JUAN FUENTES, Respondent.
On May 9, 1984, Natividad, accompanied by her husband, went to the United States to seek further treatment. After four months
x- - - - - - - - - - - - - - - - - - - -- - - - x of consultations and laboratory examinations, Natividad was told she was free of cancer. Hence, she was advised to return to the
Philippines.
G.R. No. 127590 January 31, 2007
On August 31, 1984, Natividad flew back to the Philippines, still suffering from pains. Two weeks thereafter, her daughter found
a piece of gauze protruding from her vagina. Upon being informed about it, Dr. Ampil proceeded to her house where he
MIGUEL AMPIL, Petitioner,
managed to extract by hand a piece of gauze measuring 1.5 inches in width. He then assured her that the pains would soon
vs.
vanish.
NATIVIDAD AGANA and ENRIQUE AGANA, Respondents.

DECISION
SANDOVAL-GUTIERREZ, J.:
Hospitals, having undertaken one of mankind’s most important and delicate endeavors, must assume the grave responsibility of
pursuing it with appropriate care. The care and service dispensed through this high trust, however technical, complex and
esoteric its character may be, must meet standards of responsibility commensurate with the undertaking to preserve and protect
the health, and indeed, the very lives of those placed in the hospital’s keeping. 1
Assailed in these three consolidated petitions for review on certiorari is the Court of Appeals’ Decision 2 dated September 6, 1996
in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198 affirming with modification the Decision3dated March 17, 1993 of the
Regional Trial Court (RTC), Branch 96, Quezon City in Civil Case No. Q-43322 and nullifying its Order dated September 21,
1993.
The facts, as culled from the records, are:
On April 4, 1984, Natividad Agana was rushed to the Medical City General Hospital (Medical City Hospital) because of
difficulty of bowel movement and bloody anal discharge. After a series of medical examinations, Dr. Miguel Ampil, petitioner in
G.R. No. 127590, diagnosed her to be suffering from "cancer of the sigmoid."
On April 11, 1984, Dr. Ampil, assisted by the medical staff4 of the Medical City Hospital, performed an anterior resection
surgery on Natividad. He found that the malignancy in her sigmoid area had spread on her left ovary, necessitating the removal
of certain portions of it. Thus, Dr. Ampil obtained the consent of Natividad’s husband, Enrique Agana, to permit Dr. Juan
Fuentes, respondent in G.R. No. 126467, to perform hysterectomy on her.
Dr. Ampil’s assurance did not come true. Instead, the pains intensified, prompting Natividad to seek treatment at the Polymedic
General Hospital. While confined there, Dr. Ramon Gutierrez detected the presence of another foreign object in her vagina -- a
foul-smelling gauze measuring 1.5 inches in width which badly infected her vaginal vault. A recto-vaginal fistula had formed in
her reproductive organs which forced stool to excrete through the vagina. Another surgical operation was needed to remedy the
damage. Thus, in October 1984, Natividad underwent another surgery.
On November 12, 1984, Natividad and her husband filed with the RTC, Branch 96, Quezon City a complaint for damages
against the Professional Services, Inc. (PSI), owner of the Medical City Hospital, Dr. Ampil, and Dr. Fuentes, docketed as Civil
Case No. Q-43322. They alleged that the latter are liable for negligence for leaving two pieces of gauze inside Natividad’s body
and malpractice for concealing their acts of negligence.
Meanwhile, Enrique Agana also filed with the Professional Regulation Commission (PRC) an administrative complaint for gross
negligence and malpractice against Dr. Ampil and Dr. Fuentes, docketed as Administrative Case No. 1690. The PRC Board of
Medicine heard the case only with respect to Dr. Fuentes because it failed to acquire jurisdiction over Dr. Ampil who was then in
the United States.
On February 16, 1986, pending the outcome of the above cases, Natividad died and was duly substituted by her above-named
children (the Aganas).
On March 17, 1993, the RTC rendered its Decision in favor of the Aganas, finding PSI, Dr. Ampil and Dr. Fuentes liable for
negligence and malpractice, the decretal part of which reads:
WHEREFORE, judgment is hereby rendered for the plaintiffs ordering the defendants PROFESSIONAL SERVICES, INC., DR.
MIGUEL AMPIL and DR. JUAN FUENTES to pay to the plaintiffs, jointly and severally, except in respect of the award for
exemplary damages and the interest thereon which are the liabilities of defendants Dr. Ampil and Dr. Fuentes only, as follows:

Page 44 of 53 TORTS MEETING 2

 1. As actual damages, the following amounts:
a. The equivalent in Philippine Currency of the total of US$19,900.00 at the rate of P21.60-US$1.00, as reimbursement
of actual expenses incurred in the United States of America;
b. The sum of P4,800.00 as travel taxes of plaintiffs and their physician daughter;
c. The total sum of P45,802.50, representing the cost of hospitalization at Polymedic Hospital, medical fees, and cost of the
saline solution;
2. As moral damages, the sum of P2,000,000.00;
3. As exemplary damages, the sum of P300,000.00;
4. As attorney’s fees, the sum of P250,000.00;
5. Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove, from date of filing of the complaint until full payment;
and
6. Costs of suit.
SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the Court of Appeals, docketed as CA-G.R. CV No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion for a partial execution of its Decision, which was granted
in an Order dated May 11, 1993. Thereafter, the sheriff levied upon certain properties of Dr. Ampil and sold them for
P451,275.00 and delivered the amount to the Aganas.
Following their receipt of the money, the Aganas entered into an agreement with PSI and Dr. Fuentes to indefinitely suspend any
further execution of the RTC Decision. However, not long thereafter, the Aganas again filed a motion for an alias writ of
execution against the properties of PSI and Dr. Fuentes. On September 21, 1993, the RTC granted the motion and issued the
corresponding writ, prompting Dr. Fuentes to file with the Court of Appeals a petition for certiorari and prohibition, with prayer
for preliminary injunction, docketed as CA-G.R. SP No. 32198. During its pendency, the Court of Appeals issued a
Resolution5 dated October 29, 1993 granting Dr. Fuentes’ prayer for injunctive relief.
On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with CA-G.R. CV No. 42062.
Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its Decision 6 in Administrative Case No. 1690
dismissing the case against Dr. Fuentes. The Board held that the prosecution failed to show that Dr. Fuentes was the one who left
the two pieces of gauze inside Natividad’s body; and that he concealed such fact from Natividad.
On September 6, 1996, the Court of Appeals rendered its Decision jointly disposing of CA-G.R. CV No. 42062 and CA-G.R. SP
No. 32198, thus:
WHEREFORE, except for the modification that the case against defendant-appellant Dr. Juan Fuentes is hereby DISMISSED,
and with the pronouncement that defendant-appellant Dr. Miguel Ampil is liable to reimburse defendant-appellant Professional
Services, Inc., whatever amount the latter will pay or had paid to the plaintiffs-appellees, the decision appealed from is hereby
AFFIRMED and the instant appeal DISMISSED.
Page 45 of 53 TORTS MEETING 2
Concomitant with the above, the petition for certiorari and prohibition filed by herein defendant-appellant Dr. Juan Fuentes in
CA-G.R. SP No. 32198 is hereby GRANTED and the challenged order of the respondent judge dated September 21, 1993, as
well as the alias writ of execution issued pursuant thereto are hereby NULLIFIED and SET ASIDE. The bond posted by the
petitioner in connection with the writ of preliminary injunction issued by this Court on November 29, 1993 is hereby cancelled.
Costs against defendants-appellants Dr. Miguel Ampil and Professional Services, Inc.
SO ORDERED.
Only Dr. Ampil filed a motion for reconsideration, but it was denied in a Resolution 7 dated December 19, 1996.
Hence, the instant consolidated petitions.
In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals erred in holding that: (1) it is estopped from raising the
defense that Dr. Ampil is not its employee; (2) it is solidarily liable with Dr. Ampil; and (3) it is not entitled to its counterclaim
against the Aganas. PSI contends that Dr. Ampil is not its employee, but a mere consultant or independent contractor. As such,
he alone should answer for his negligence.
In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in finding that Dr. Fuentes is not guilty of negligence
or medical malpractice, invoking the doctrine of res ipsa loquitur. They contend that the pieces of gauze are prima facie proofs
that the operating surgeons have been negligent.
Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals erred in finding him liable for negligence and
malpractice sans evidence that he left the two pieces of gauze in Natividad’s vagina. He pointed to other probable causes, such
as: (1) it was Dr. Fuentes who used gauzes in performing the hysterectomy; (2) the attending nurses’ failure to properly count the
gauzes used during surgery; and (3) the medical intervention of the American doctors who examined Natividad in the United
States of America.
For our resolution are these three vital issues: first, whether the Court of Appeals erred in holding Dr. Ampil liable for
negligence and malpractice; second, whether the Court of Appeals erred in absolving Dr. Fuentes of any liability; and third,
whether PSI may be held solidarily liable for the negligence of Dr. Ampil.
I - G.R. No. 127590
Whether the Court of Appeals Erred in Holding Dr. Ampil
Liable for Negligence and Malpractice.
Dr. Ampil, in an attempt to absolve himself, gears the Court’s attention to other possible causes of Natividad’s detriment. He
argues that the Court should not discount either of the following possibilities: first, Dr. Fuentes left the gauzes in Natividad’s
body after performing hysterectomy; second, the attending nurses erred in counting the gauzes; and third, the American doctors
were the ones who placed the gauzes in Natividad’s body.
Dr. Ampil’s arguments are purely conjectural and without basis. Records show that he did not present any evidence to prove that
the American doctors were the ones who put or left the gauzes in Natividad’s body. Neither did he submit evidence to rebut the
correctness of the record of operation, particularly the number of gauzes used. As to the alleged negligence of Dr. Fuentes, we
are mindful that Dr. Ampil examined his (Dr. Fuentes’) work and found it in order.
The glaring truth is that all the major circumstances, taken together, as specified by the Court of Appeals, directly point to Dr.
Ampil as the negligent party, thus:
 First, it is not disputed that the surgeons used gauzes as sponges to control the bleeding of the patient during the
surgical operation.
Second, immediately after the operation, the nurses who assisted in the surgery noted in their report that the ‘sponge
count (was) lacking 2’; that such anomaly was ‘announced to surgeon’ and that a ‘search was done but to no avail’
prompting Dr. Ampil to ‘continue for closure’ x x x.
Third, after the operation, two (2) gauzes were extracted from the same spot of the body of Mrs. Agana where the
surgery was performed.
An operation requiring the placing of sponges in the incision is not complete until the sponges are properly removed, and it is
settled that the leaving of sponges or other foreign substances in the wound after the incision has been closed is at least prima
facie negligence by the operating surgeon.8 To put it simply, such act is considered so inconsistent with due care as to raise an
inference of negligence. There are even legions of authorities to the effect that such act is negligence per se. 9
Of course, the Court is not blind to the reality that there are times when danger to a patient’s life precludes a surgeon from
further searching missing sponges or foreign objects left in the body. But this does not leave him free from any obligation. Even
if it has been shown that a surgeon was required by the urgent necessities of the case to leave a sponge in his patient’s abdomen,
because of the dangers attendant upon delay, still, it is his legal duty to so inform his patient within a reasonable time thereafter
by advising her of what he had been compelled to do. This is in order that she might seek relief from the effects of the foreign
object left in her body as her condition might permit. The ruling in Smith v. Zeagler 10 is explicit, thus:
The removal of all sponges used is part of a surgical operation, and when a physician or surgeon fails to remove a sponge he has
placed in his patient’s body that should be removed as part of the operation, he thereby leaves his operation uncompleted and
creates a new condition which imposes upon him the legal duty of calling the new condition to his patient’s attention, and
endeavoring with the means he has at hand to minimize and avoid untoward results likely to ensue therefrom.
Here, Dr. Ampil did not inform Natividad about the missing two pieces of gauze. Worse, he even misled her that the pain she
was experiencing was the ordinary consequence of her operation. Had he been more candid, Natividad could have taken the
immediate and appropriate medical remedy to remove the gauzes from her body. To our mind, what was initially an act of
negligence by Dr. Ampil has ripened into a deliberate wrongful act of deceiving his patient.
This is a clear case of medical malpractice or more appropriately, medical negligence. To successfully pursue this kind of case, a
patient must only prove that a health care provider either failed to do something which a reasonably prudent health care provider
would have done, or that he did something that a reasonably prudent provider would not have done; and that failure or action
caused injury to the patient.11 Simply put, the elements are duty, breach, injury and proximate causation. Dr, Ampil, as the lead
surgeon, had the duty to remove all foreign objects, such as gauzes, from Natividad’s body before closure of the incision. When
he failed to do so, it was his duty to inform Natividad about it. Dr. Ampil breached both duties. Such breach caused injury to
Natividad, necessitating her further examination by American doctors and another surgery. That Dr. Ampil’s negligence is the
proximate cause12 of Natividad’s injury could be traced from his act of closing the incision despite the information given by the
attending nurses that two pieces of gauze were still missing. That they were later on extracted from Natividad’s vagina
established the causal link between Dr. Ampil’s negligence and the injury. And what further aggravated such injury was his
deliberate concealment of the missing gauzes from the knowledge of Natividad and her family.
II - G.R. No. 126467
Whether the Court of Appeals Erred in Absolving
Dr. Fuentes of any Liability
Page 46 of 53 TORTS MEETING 2
The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes on the ground that it is contrary to the
doctrine of res ipsa loquitur. According to them, the fact that the two pieces of gauze were left inside Natividad’s body is a prima
facie evidence of Dr. Fuentes’ negligence.
We are not convinced.
Literally, res ipsa loquitur means "the thing speaks for itself." It is the rule that the fact of the occurrence of an injury, taken with
the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff’s prima
facie case, and present a question of fact for defendant to meet with an explanation.13 Stated differently, where the thing which
caused the injury, without the fault of the injured, is under the exclusive control of the defendant and the injury is such that it
should not have occurred if he, having such control used proper care, it affords reasonable evidence, in the absence of
explanation that the injury arose from the defendant’s want of care, and the burden of proof is shifted to him to establish that he
has observed due care and diligence.14
From the foregoing statements of the rule, the requisites for the applicability of the doctrine of res ipsa loquitur are: (1) the
occurrence of an injury; (2) the thing which caused the injury was under the control and management of the defendant; (3) the
occurrence was such that in the ordinary course of things, would not have happened if those who had control or management
used proper care; and (4) the absence of explanation by the defendant. Of the foregoing requisites, the most instrumental is the
"control and management of the thing which caused the injury."15
We find the element of "control and management of the thing which caused the injury" to be wanting. Hence, the doctrine of res
ipsa loquitur will not lie.
It was duly established that Dr. Ampil was the lead surgeon during the operation of Natividad. He requested the assistance of Dr.
Fuentes only to perform hysterectomy when he (Dr. Ampil) found that the malignancy in her sigmoid area had spread to her left
ovary. Dr. Fuentes performed the surgery and thereafter reported and showed his work to Dr. Ampil. The latter examined it and
finding everything to be in order, allowed Dr. Fuentes to leave the operating room. Dr. Ampil then resumed operating on
Natividad. He was about to finish the procedure when the attending nurses informed him that two pieces of gauze were missing.
A "diligent search" was conducted, but the misplaced gauzes were not found. Dr. Ampil then directed that the incision be closed.
During this entire period, Dr. Fuentes was no longer in the operating room and had, in fact, left the hospital.
Under the "Captain of the Ship" rule, the operating surgeon is the person in complete charge of the surgery room and all
personnel connected with the operation. Their duty is to obey his orders.16 As stated before, Dr. Ampil was the lead surgeon. In
other words, he was the "Captain of the Ship." That he discharged such role is evident from his following conduct: (1) calling
Dr. Fuentes to perform a hysterectomy; (2) examining the work of Dr. Fuentes and finding it in order; (3) granting Dr. Fuentes’
permission to leave; and (4) ordering the closure of the incision. To our mind, it was this act of ordering the closure of the
incision notwithstanding that two pieces of gauze remained unaccounted for, that caused injury to Natividad’s body. Clearly, the
control and management of the thing which caused the injury was in the hands of Dr. Ampil, not Dr. Fuentes.
In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence, does not per se create or constitute an independent or
separate ground of liability, being a mere evidentiary rule.17 In other words, mere invocation and application of the doctrine does
not dispense with the requirement of proof of negligence. Here, the negligence was proven to have been committed by Dr. Ampil
and not by Dr. Fuentes.
III - G.R. No. 126297
Whether PSI Is Liable for the Negligence of Dr. Ampil
The third issue necessitates a glimpse at the historical development of hospitals and the resulting theories concerning their
liability for the negligence of physicians.
Until the mid-nineteenth century, hospitals were generally charitable institutions, providing medical services to the lowest
classes of society, without regard for a patient’s ability to pay.18 Those who could afford medical treatment were usually treated
at home by their doctors.19 However, the days of house calls and philanthropic health care are over. The modern health care
industry continues to distance itself from its charitable past and has experienced a significant conversion from a not-for-profit
health care to for-profit hospital businesses. Consequently, significant changes in health law have accompanied the business-
related changes in the hospital industry. One important legal change is an increase in hospital liability for medical malpractice.
Many courts now allow claims for hospital vicarious liability under the theories of respondeat superior, apparent authority,
ostensible authority, or agency by estoppel. 20
In this jurisdiction, the statute governing liability for negligent acts is Article 2176 of the Civil Code, which reads:
Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict
and is governed by the provisions of this Chapter.
A derivative of this provision is Article 2180, the rule governing vicarious liability under the doctrine of respondeat superior,
thus:
ART. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those
of persons for whom one is responsible.
x x x x x x
The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in
the service of the branches in which the latter are employed or on the occasion of their functions.
Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their
assigned tasks even though the former are not engaged in any business or industry.
x x x x x x
The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.
A prominent civilist commented that professionals engaged by an employer, such as physicians, dentists, and pharmacists, are
not "employees" under this article because the manner in which they perform their work is not within the control of the latter
(employer). In other words, professionals are considered personally liable for the fault or negligence they commit in the
discharge of their duties, and their employer cannot be held liable for such fault or negligence. In the context of the present case,
"a hospital cannot be held liable for the fault or negligence of a physician or surgeon in the treatment or operation of patients."21
The foregoing view is grounded on the traditional notion that the professional status and the very nature of the physician’s
calling preclude him from being classed as an agent or employee of a hospital, whenever he acts in a professional capacity. 22 It
has been said that medical practice strictly involves highly developed and specialized knowledge, 23 such that physicians are
generally free to exercise their own skill and judgment in rendering medical services sans interference. 24 Hence, when a doctor
practices medicine in a hospital setting, the hospital and its employees are deemed to subserve him in his ministrations to the
patient and his actions are of his own responsibility.25
The case of Schloendorff v. Society of New York Hospital26 was then considered an authority for this view. The "Schloendorff
doctrine" regards a physician, even if employed by a hospital, as an independent contractor because of the skill he exercises and
the lack of control exerted over his work. Under this doctrine, hospitals are exempt from the application of the respondeat
superior principle for fault or negligence committed by physicians in the discharge of their profession.
Page 47 of 53 TORTS MEETING 2
However, the efficacy of the foregoing doctrine has weakened with the significant developments in medical care. Courts came to
realize that modern hospitals are increasingly taking active role in supplying and regulating medical care to patients. No longer
were a hospital’s functions limited to furnishing room, food, facilities for treatment and operation, and attendants for its patients.
Thus, in Bing v. Thunig,27 the New York Court of Appeals deviated from the Schloendorff doctrine, noting that modern
hospitals actually do far more than provide facilities for treatment. Rather, they regularly employ, on a salaried basis, a large
staff of physicians, interns, nurses, administrative and manual workers. They charge patients for medical care and treatment,
even collecting for such services through legal action, if necessary. The court then concluded that there is no reason to exempt
hospitals from the universal rule of respondeat superior.
In our shores, the nature of the relationship between the hospital and the physicians is rendered inconsequential in view of our
categorical pronouncement in Ramos v. Court of Appeals28 that for purposes of apportioning responsibility in medical
negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting
physicians. This Court held:
"We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private hospitals) of
filling up specialist staff with attending and visiting "consultants," who are allegedly not hospital employees, presents problems
in apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is more apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work
within the hospital premises. Doctors who apply for ‘consultant’ slots, visiting or attending, are required to submit proof of
completion of residency, their educational qualifications, generally, evidence of accreditation by the appropriate board
(diplomate), evidence of fellowship in most cases, and references. These requirements are carefully scrutinized by members of
the hospital administration or by a review committee set up by the hospital who either accept or reject the application. x x x.
After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-pathological
conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient audits and perform
other tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of
admitting patients into the hospital. In addition to these, the physician’s performance as a specialist is generally evaluated by a
peer review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and
residents. A consultant remiss in his duties, or a consultant who regularly falls short of the minimum standards acceptable to the
hospital or its peer review committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over their attending and visiting ‘consultant’ staff. While
‘consultants’ are not, technically employees, x x x, the control exercised, the hiring, and the right to terminate consultants all
fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing
whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that
for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists
between hospitals and their attending and visiting physicians. "
But the Ramos pronouncement is not our only basis in sustaining PSI’s liability. Its liability is also anchored upon the agency
principle of apparent authority or agency by estoppel and the doctrine of corporate negligence which have gained acceptance in
the determination of a hospital’s liability for negligent acts of health professionals. The present case serves as a perfect platform
to test the applicability of these doctrines, thus, enriching our jurisprudence.
Apparent authority, or what is sometimes referred to as the "holding
out" theory, or doctrine of ostensible agency or agency by estoppel,29 has its origin from the law of agency. It imposes liability,
not as the result of the reality of a contractual relationship, but rather because of the actions of a principal or an employer in
somehow misleading the public into believing that the relationship or the authority exists.30 The concept is essentially one of
estoppel and has been explained in this manner:
"The principal is bound by the acts of his agent with the apparent authority which he knowingly permits the agent to assume, or
which he holds the agent out to the public as possessing. The question in every case is whether the principal has by his voluntary
act placed the agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the
particular business, is justified in presuming that such agent has authority to perform the particular act in question. 31
The applicability of apparent authority in the field of hospital liability was upheld long time ago in Irving v. Doctor Hospital of
Lake Worth, Inc.32 There, it was explicitly stated that "there does not appear to be any rational basis for excluding the concept of
apparent authority from the field of hospital liability." Thus, in cases where it can be shown that a hospital, by its actions, has
held out a particular physician as its agent and/or employee and that a patient has accepted treatment from that physician in the
reasonable belief that it is being rendered in behalf of the hospital, then the hospital will be liable for the physician’s negligence.
Our jurisdiction recognizes the concept of an agency by implication or estoppel. Article 1869 of the Civil Code reads:
ART. 1869. Agency may be express, or implied from the acts of the principal, from his silence or lack of action, or his failure to
repudiate the agency, knowing that another person is acting on his behalf without authority.
In this case, PSI publicly displays in the lobby of the Medical City Hospital the names and specializations of the physicians
associated or accredited by it, including those of Dr. Ampil and Dr. Fuentes. We concur with the Court of Appeals’ conclusion
that it "is now estopped from passing all the blame to the physicians whose names it proudly paraded in the public directory
leading the public to believe that it vouched for their skill and competence." Indeed, PSI’s act is tantamount to holding out to the
public that Medical City Hospital, through its accredited physicians, offers quality health care services. By accrediting Dr. Ampil
and Dr. Fuentes and publicly advertising their qualifications, the hospital created the impression that they were its agents,
authorized to perform medical or surgical services for its patients. As expected, these patients, Natividad being one of them,
accepted the services on the reasonable belief that such were being rendered by the hospital or its employees, agents, or servants.
The trial court correctly pointed out:
x x x regardless of the education and status in life of the patient, he ought not be burdened with the defense of absence of
employer-employee relationship between the hospital and the independent physician whose name and competence are certainly
certified to the general public by the hospital’s act of listing him and his specialty in its lobby directory, as in the case herein.
The high costs of today’s medical and health care should at least exact on the hospital greater, if not broader, legal responsibility
for the conduct of treatment and surgery within its facility by its accredited physician or surgeon, regardless of whether he is
independent or employed."33
The wisdom of the foregoing ratiocination is easy to discern. Corporate entities, like PSI, are capable of acting only through
other individuals, such as physicians. If these accredited physicians do their job well, the hospital succeeds in its mission of
offering quality medical services and thus profits financially. Logically, where negligence mars the quality of its services, the
hospital should not be allowed to escape liability for the acts of its ostensible agents.
We now proceed to the doctrine of corporate negligence or corporate responsibility.
One allegation in the complaint in Civil Case No. Q-43332 for negligence and malpractice is that PSI as owner, operator and
manager of Medical City Hospital, "did not perform the necessary supervision nor exercise diligent efforts in the supervision of
Drs. Ampil and Fuentes and its nursing staff, resident doctors, and medical interns who assisted Drs. Ampil and Fuentes in the
performance of their duties as surgeons."34 Premised on the doctrine of corporate negligence, the trial court held that PSI is
directly liable for such breach of duty.
We agree with the trial court.
Recent years have seen the doctrine of corporate negligence as the judicial answer to the problem of allocating hospital’s liability
for the negligent acts of health practitioners, absent facts to support the application of respondeat superior or apparent authority.
Its formulation proceeds from the judiciary’s acknowledgment that in these modern times, the duty of providing quality medical
service is no longer the sole prerogative and responsibility of the physician. The modern hospitals have changed structure.
Hospitals now tend to organize a highly professional medical staff whose competence and performance need to be monitored by
the hospitals commensurate with their inherent responsibility to provide quality medical care. 35
Page 48 of 53 TORTS MEETING 2
The doctrine has its genesis in Darling v. Charleston Community Hospital.36 There, the Supreme Court of Illinois held that "the
jury could have found a hospital negligent, inter alia, in failing to have a sufficient number of trained nurses attending the
patient; failing to require a consultation with or examination by members of the hospital staff; and failing to review the treatment
rendered to the patient." On the basis of Darling, other jurisdictions held that a hospital’s corporate negligence extends to
permitting a physician known to be incompetent to practice at the hospital. 37 With the passage of time, more duties were
expected from hospitals, among them: (1) the use of reasonable care in the maintenance of safe and adequate facilities and
equipment; (2) the selection and retention of competent physicians; (3) the overseeing or supervision of all persons who practice
medicine within its walls; and (4) the formulation, adoption and enforcement of adequate rules and policies that ensure quality
care for its patients.38 Thus, in Tucson Medical Center, Inc. v. Misevich,39 it was held that a hospital, following the doctrine of
corporate responsibility, has the duty to see that it meets the standards of responsibilities for the care of patients. Such duty
includes the proper supervision of the members of its medical staff. And in Bost v. Riley, 40 the court concluded that a patient
who enters a hospital does so with the reasonable expectation that it will attempt to cure him. The hospital accordingly has the
duty to make a reasonable effort to monitor and oversee the treatment prescribed and administered by the physicians practicing
in its premises.
In the present case, it was duly established that PSI operates the Medical City Hospital for the purpose and under the concept of
providing comprehensive medical services to the public. Accordingly, it has the duty to exercise reasonable care to protect from
harm all patients admitted into its facility for medical treatment. Unfortunately, PSI failed to perform such duty. The findings of
the trial court are convincing, thus:
x x x PSI’s liability is traceable to its failure to conduct an investigation of the matter reported in the nota bene of the count
nurse. Such failure established PSI’s part in the dark conspiracy of silence and concealment about the gauzes. Ethical
considerations, if not also legal, dictated the holding of an immediate inquiry into the events, if not for the benefit of the patient
to whom the duty is primarily owed, then in the interest of arriving at the truth. The Court cannot accept that the medical and the
healing professions, through their members like defendant surgeons, and their institutions like PSI’s hospital facility, can
callously turn their backs on and disregard even a mere probability of mistake or negligence by refusing or failing to investigate
a report of such seriousness as the one in Natividad’s case.
It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad with the assistance of the Medical City Hospital’s
staff, composed of resident doctors, nurses, and interns. As such, it is reasonable to conclude that PSI, as the operator of the
hospital, has actual or constructive knowledge of the procedures carried out, particularly the report of the attending nurses that
the two pieces of gauze were missing. In Fridena v. Evans, 41 it was held that a corporation is bound by the knowledge acquired
by or notice given to its agents or officers within the scope of their authority and in reference to a matter to which their authority
extends. This means that the knowledge of any of the staff of Medical City Hospital constitutes knowledge of PSI. Now, the
failure of PSI, despite the attending nurses’ report, to investigate and inform Natividad regarding the missing gauzes amounts to
callous negligence. Not only did PSI breach its duties to oversee or supervise all persons who practice medicine within its walls,
it also failed to take an active step in fixing the negligence committed. This renders PSI, not only vicariously liable for the
negligence of Dr. Ampil under Article 2180 of the Civil Code, but also directly liable for its own negligence under Article 2176.
In Fridena, the Supreme Court of Arizona held:
x x x In recent years, however, the duty of care owed to the patient by the hospital has expanded. The emerging trend is to hold
the hospital responsible where the hospital has failed to monitor and review medical services being provided within its walls. See
Kahn Hospital Malpractice Prevention, 27 De Paul . Rev. 23 (1977).
Among the cases indicative of the ‘emerging trend’ is Purcell v. Zimbelman, 18 Ariz. App. 75,500 P. 2d 335 (1972). In Purcell,
the hospital argued that it could not be held liable for the malpractice of a medical practitioner because he was an independent
contractor within the hospital. The Court of Appeals pointed out that the hospital had created a professional staff whose
competence and performance was to be monitored and reviewed by the governing body of the hospital, and the court held that a
hospital would be negligent where it had knowledge or reason to believe that a doctor using the facilities was employing a
method of treatment or care which fell below the recognized standard of care.
Subsequent to the Purcell decision, the Arizona Court of Appeals held that a hospital has certain inherent responsibilities
regarding the quality of medical care furnished to patients within its walls and it must meet the standards of responsibility
commensurate with this undertaking. Beeck v. Tucson General Hospital, 18 Ariz. App. 165, 500 P. 2d 1153 (1972). This court
has confirmed the rulings of the Court of Appeals that a hospital has the duty of supervising the competence of the doctors on its
staff. x x x.

x x x x x x

In the amended complaint, the plaintiffs did plead that the operation was performed at the hospital with its knowledge, aid, and
assistance, and that the negligence of the defendants was the proximate cause of the patient’s injuries. We find that such general
allegations of negligence, along with the evidence produced at the trial of this case, are sufficient to support the hospital’s
liability based on the theory of negligent supervision."

Anent the corollary issue of whether PSI is solidarily liable with Dr. Ampil for damages, let it be emphasized that PSI, apart
from a general denial of its responsibility, failed to adduce evidence showing that it exercised the diligence of a good father of a
family in the accreditation and supervision of the latter. In neglecting to offer such proof, PSI failed to discharge its burden under
the last paragraph of Article 2180 cited earlier, and, therefore, must be adjudged solidarily liable with Dr. Ampil. Moreover, as
we have discussed, PSI is also directly liable to the Aganas.

One final word. Once a physician undertakes the treatment and care of a patient, the law imposes on him certain obligations. In
order to escape liability, he must possess that reasonable degree of learning, skill and experience required by his profession. At
the same time, he must apply reasonable care and diligence in the exercise of his skill and the application of his knowledge, and
exert his best judgment.

WHEREFORE, we DENY all the petitions and AFFIRM the challenged Decision of the Court of Appeals in CA-G.R. CV No.
42062 and CA-G.R. SP No. 32198.

Costs against petitioners PSI and Dr. Miguel Ampil.

SO ORDERED.

Page 49 of 53 TORTS MEETING 2

TORTS 21
G.R. No. 165279 June 7, 2011
DR. RUBI LI, Petitioner,
vs.
SPOUSES REYNALDO and LINA SOLIMAN, as parents/heirs of deceased Angelica Soliman, Respondents.
DECISION
VILLARAMA, JR., J.:
Challenged in this petition for review on certiorari is the Decision1 dated June 15, 2004 as well as the Resolution2dated
September 1, 2004 of the Court of Appeals (CA) in CA-G.R. CV No. 58013 which modified the Decision 3dated 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. Luke’s 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, Angelica’s 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 patient’s 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 Death6 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 suit7 against petitioner, Dr. Leo Marbella, Mr. Jose Ledesma, a certain Dr.
Arriete and SLMC. Respondents charged them with negligence and disregard of Angelica’s 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 Angelica’s 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.
Page 50 of 53 TORTS MEETING 2
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 patient’s 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 Angelica’s surgery and discussed with them Angelica’s
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 ₱70,000.00 to
₱150,000.00 a year from his jewelry and watch repairing business.9Petitioner, 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 Angelica’s 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 Angelica’s 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 Angelica’s 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: Angelica’s 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 Doxorubicin16and
Cosmegen17 – intravenously. Petitioner was supposedly assisted by her trainees Dr. Leo Marbella18 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 Angelica’s face. 21They 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 Angelica’s 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 Angelica’s face, nor did she notice
any difficulty in the child’s breathing. She claimed that Angelica merely complained of nausea and was given ice
chips.251avvphi1
On August 22, 1993, at around ten o’clock in the morning, upon seeing that their child could not anymore bear the pain, hysterical and started removing those gadgets attached to her. At three o’clock in the morning of September 1, a priest came and
respondents pleaded with petitioner to stop the chemotherapy. Petitioner supposedly replied: "Dapat 15 Cosmegen pa iyan. they prayed before Angelica expired. Petitioner finally came back and supposedly told respondents that there was "malfunction"
Okay, let’s observe. If pwede na, bigyan uli ng chemo." At this point, respondents asked petitioner’s permission to bring their or bogged-down machine.37
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
By petitioner’s own account, Angelica was merely irritable that day (August 31). Petitioner noted though that Angelica’s skin
complained of was carpo-pedal spasm, not convulsion or epileptic attack, as respondents call it (petitioner described it in the
was indeed sloughing off.38 She stressed that at 9:30 in the evening, Angelica pulled out her endotracheal tube. 39 On September
vernacular as "naninigas ang kamay at paa"). She then requested for a serum calcium determination and stopped the
1, exactly two weeks after being admitted at SLMC for chemotherapy, Angelica died. 40 The cause of death, according to
chemotherapy. When Angelica was given calcium gluconate, the spasm and numbness subsided. 27
petitioner, was septicemia, or overwhelming infection, which caused Angelica’s other organs to fail. 41 Petitioner attributed this to
the patient’s poor defense mechanism brought about by the cancer itself. 42
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
While he was seeking the release of Angelica’s cadaver from SLMC, Reynaldo claimed that petitioner acted arrogantly and
be temporarily stopped while she observes Angelica’s muscle twitching and serum calcium level. Take-home medicines were
called him names. He was asked to sign a promissory note as he did not have cash to pay the hospital bill. 43
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 Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-Legal Officer of the PNP-Crime Laboratory who
conducted the autopsy on Angelica’s cadaver, and Dr. Melinda Vergara Balmaceda who is a Medical Specialist employed at the
Department of Health (DOH) Operations and Management Services.
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
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
The next day, August 24, respondents claimed that Angelica still suffered from convulsions. They also noticed that she had a
hemorrhage at the left side of the heart; (3) bleeding at the upper portion of and areas adjacent to, the esophagus; (4) lungs were
fever and had difficulty breathing.30 Petitioner insisted it was carpo-pedal spasm, not convulsions. She verified that at around
heavy with bleeding at the back and lower portion, due to accumulation of fluids; (4) yellowish discoloration of the liver; (5)
4:50 that afternoon, Angelica developed difficulty in breathing and had fever. She then requested for an electrocardiogram
kidneys showed appearance of facial shock on account of hemorrhages; and (6) reddishness on external surface of the spleen. All
analysis, and infused calcium gluconate on the patient at a "stat dose." She further ordered that Angelica be given Bactrim, 31 a
these were the end result of "hypovolemic shock secondary to multiple organ hemorrhages and disseminated intravascular
synthetic antibacterial combination drug,32 to combat any infection on the child’s body.33
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 victim’s death. The time lapse for the production of DIC in the
By August 26, Angelica was bleeding through the mouth. Respondents also saw blood on her anus and urine. When Lina asked case of Angelica (from the time of diagnosis of sarcoma) was too short, considering the survival rate of about 3 years. The
petitioner what was happening to her daughter, petitioner replied, "Bagsak ang platelets ng anak mo." Four units of platelet witness conceded that the victim will also die of osteosarcoma even with amputation or chemotherapy, but in this case
concentrates were then transfused to Angelica. Petitioner prescribed Solucortef. Considering that Angelica’s fever was high and Angelica’s death was not caused by osteosarcoma. Dr. Vergara admitted that she is not a pathologist but her statements were
her white blood cell count was low, petitioner prescribed Leucomax. About four to eight bags of blood, consisting of packed red based on the opinion of an oncologist whom she had interviewed. This oncologist supposedly said that if the victim already had
blood cells, fresh whole blood, or platelet concentrate, were transfused to Angelica. For two days (August 27 to 28), Angelica DIC prior to the chemotherapy, the hospital staff could have detected it. 44
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 her part, Dr. Balmaceda declared that it is the physician’s 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
On August 29, Angelica developed ulcers in her mouth, which petitioner said were blood clots that should not be removed. relatives to such procedure or therapy. The physician thus bases his assurance to the patient on his personal assessment of the
Respondents claimed that Angelica passed about half a liter of blood through her anus at around seven o’clock that evening, patient’s condition and his knowledge of the general effects of the agents or procedure that will be allowed on the patient. Dr.
which petitioner likewise denied. 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 patient’s condition.45
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 Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelica’s lower extremity, testified for the defendants. He
more platelet concentrate and fresh whole blood, which petitioner claimed improved her condition. Petitioner told Angelica not explained that in case of malignant tumors, there is no guarantee that the ablation or removal of the amputated part will
to remove the endotracheal tube because this may induce further bleeding.35She was also transferred to the intensive care unit to completely cure the cancer. Thus, surgery is not enough. The mortality rate of osteosarcoma at the time of modern chemotherapy
avoid infection. 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
The next day, respondents claimed that Angelica became hysterical, vomited blood and her body turned black. Part of Angelica’s
explained that patients with osteosarcoma have poor defense mechanism due to the cancer cells in the blood stream. In the case
skin was also noted to be shredding by just rubbing cotton on it. Angelica was so restless she removed those gadgets attached to
of Angelica, he had previously explained to her parents that after the surgical procedure, chemotherapy is imperative so that
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
metastasis of these cancer cells will hopefully be addressed. He referred the patient to petitioner because he felt that petitioner is
of death, Lina asked for a doctor but the latter could not answer her anymore. 36 At this time, the attending physician was Dr.
a competent oncologist. Considering that this type of cancer is very aggressive and will metastasize early, it will cause the
Marbella who was shaking his head saying that Angelica’s platelets were down and respondents should pray for their daughter.
demise of the patient should there be no early intervention (in this case, the patient developed sepsis which caused her death).
Reynaldo claimed that he was introduced to a pediatrician who took over his daughter’s case, Dr. Abesamis who also told him to
Cancer cells in the blood cannot be seen by the naked eye nor detected through bone scan. On cross-examination, Dr. Tamayo
pray for his daughter. Angelica continued to have difficulty in her breathing and blood was being suctioned from her stomach. A
stated that of the more than 50 child patients who had osteogenic sarcoma he had handled, he thought that probably all of them
nurse was posted inside Angelica’s room to assist her breathing and at one point they had to revive Angelica by pumping her
died within six months from amputation because he did not see them anymore after follow-up; it is either they died or had seen
chest. Thereafter, Reynaldo claimed that Angelica already experienced difficulty in urinating and her bowel consisted of blood-
another doctor.46
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
Page 51 of 53 TORTS MEETING 2
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
₱139,064.43.48
Respondents appealed to the CA which, while concurring with the trial court’s 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 Li’s 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 Angelica’s 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. Attorney’s 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.
Page 52 of 53 TORTS MEETING 2
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 attorney’s 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
patient’s 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 former’s realization that the latter possess unusual technical skills which
laymen in most instances are incapable of intelligently evaluating, hence the indispensability of expert testimonies. 52
In this case, both the trial and appellate courts concurred in finding that the alleged negligence of petitioner in the administration
of chemotherapy drugs to respondents’ child was not proven considering that Drs. Vergara and Balmaceda, not being oncologists
or cancer specialists, were not qualified to give expert opinion as to whether petitioner’s lack of skill, knowledge and
professional competence in failing to observe the standard of care in her line of practice was the proximate cause of the patient’s
death. Furthermore, respondents’ case was not at all helped by the non-production of medical records by the hospital (only the
biopsy result and medical bills were submitted to the court). Nevertheless, the CA found petitioner liable for her failure to inform
the respondents on all possible side effects of chemotherapy before securing their consent to the said treatment.
The doctrine of informed consent within the context of physician-patient relationships goes far back into English common law.
As early as 1767, doctors were charged with the tort of "battery" (i.e., an unauthorized physical contact with a patient) if they
had not gained the consent of their patients prior to performing a surgery or procedure. In the United States, the seminal case was
Schoendorff v. Society of New York Hospital53 which involved unwanted treatment performed by a doctor. Justice Benjamin
Cardozo’s oft-quoted opinion upheld the basic right of a patient to give consent to any medical procedure or treatment: "Every
human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who
performs an operation without his patient’s consent, commits an assault, for which he is liable in damages." 54 From a purely
ethical norm, informed consent evolved into a general principle of law that a physician has a duty to disclose what a 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
effects will not be the same for all patients undergoing the procedure. In other words, by the nature of the disease itself, each
patient’s 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 chemotherapy’s 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

Subsequently, in Canterbury v. Spence56 the court observed that the duty to disclose should not be limited to medical usage as to
arrogate the decision on revelation to the physician alone. Thus, respect for the patient’s right of self-determination on particular
therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon
themselves.57 The scope of disclosure is premised on the fact that patients ordinarily are persons unlearned in the medical
sciences. Proficiency in diagnosis and therapy is not the full measure of a physician’s responsibility. It is also his duty to warn of
the dangers lurking in the proposed treatment and to impart information which the patient has every right to expect. Indeed, the
patient’s reliance upon the physician is a trust of the kind which traditionally has exacted obligations beyond those associated
with armslength transactions.58 The physician is not expected to give the patient a short medical education, the disclosure rule
only requires of him a reasonable explanation, which means generally informing the patient in nontechnical terms as to what is at
stake; the therapy alternatives open to him, the goals expectably to be achieved, and the risks that may ensue from particular
treatment or no treatment.59 As to the issue of demonstrating what risks are considered material necessitating disclosure, it was
held that experts are unnecessary to a showing of the materiality of a risk to a patient’s decision on treatment, or to the
reasonably, expectable effect of risk disclosure on the decision. Such unrevealed risk that should have been made known must
further materialize, for otherwise the omission, however unpardonable, is without legal consequence. And, as in malpractice
actions generally, there must be a causal relationship between the physician’s failure to divulge and damage to the patient. 60
Reiterating the foregoing considerations, Cobbs v. Grant61 deemed it as integral part of physician’s overall obligation to patient,
the duty of reasonable disclosure of available choices with respect to proposed therapy and of dangers inherently and potentially
involved in each. However, the physician is not obliged to discuss relatively minor risks inherent in common procedures when it
is common knowledge that such risks inherent in procedure of very low incidence. Cited as exceptions to the rule that the patient
should not be denied the opportunity to weigh the risks of surgery or treatment are emergency cases where it is evident he cannot
evaluate data, and where the patient is a child or incompetent. 62 The court thus concluded that the patient’s right of self-decision
can only be effectively exercised if the patient possesses adequate information to enable him in making an intelligent choice. The
scope of the physician’s communications to the patient, then must be measured by the patient’s need, and that need is whatever
information is material to the decision. The test therefore for determining whether a potential peril must be divulged is its
materiality to the patient’s decision.63
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 DOH’s 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 patient’s 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 consumer—"a reasonable person in the patient’s position when deciding to accept or reject a
recommended medical procedure."68 (Emphasis supplied.)

Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that for liability of the physician for failure to
inform patient, there must be causal relationship between physician’s failure to inform and the injury to patient and such 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.
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 Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch 8, in Civil Case No. 8904 is
REINSTATED and UPHELD.
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 No costs.
significant undisclosed information relating to the treatment which would have altered her decision to undergo it. 64
SO ORDERED.
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 Angelica’s parents. Respondents could not have been unaware in the course of initial
treatment and amputation of Angelica’s 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
Page 53 of 53 TORTS MEETING 2