FIRST DIVISION

[G.R. No. L-12858. January 22, 1918.] THE UNITED STATES, plaintiff and appellee, vs. SANTIAGO PINEDA, defendant-appellant. Francisco & Lualhati for appellant. Acting Attorney-General Paredes for appellee. SYLLABUS 1.EVINDENCE; "RES INTER ALIOS ACTA." As general rule, the evidence of other offenses committed by a defendant is inadmissible. As one exception, however, it is permissible to ascertain defendant's knowledge and intent and to fix his negligence. If the defendant has on more than one occasion performed similar acts, accident in good faith is possibly excluded, negligence is intensified, and fraudulent intent may even be established. There is no better evidence of negligence than the frequency of accidents. 2.ID; DISCRETION OF TRIAL JUDGE. On the trial of a criminal case where the question relates to the tendency of certain testimony to throw light upon a particular fact, or to explain the conduct of a particular person, there is a certain discretion on the part of the trial judge which a court of error will not interfere with, unless it manifestly appear that the testimony has no legitimate bearing upon the question at issue, and is calculated to prejudice the accused. (Moore vs. U.S. [1893], 150 U.S., 57.) 3.ID; CIRCUMSTANTIAL EVIDENCE. Whenever the necessity arises for a resort to circumstantial evidence, either from the nature of the inquiry or the failure of direct proof, objections to the testimony on the ground of irrelevancy are not favored. (Moore vs. U. S. [1893], 150 U.S 57.) 4.ID; MOTIVE. Evidence is admissible in a criminal action which tends to show motive, although it tends to prove the commission of another offense by the defendant. (Moore vs. U.S. [1893], 150 U.S. , 57.) 5.ID; ID. A druggist filled a prescription calling for protassium chlorate with barium chlorate, a poison, causing the death of two horses. After analyzing the packages, two chemists went to the drug store of the defendant and bought potassium chlorate, which when analyzed was found to be barium chlorate. Held: That the

testimony of the chemist was admissible in order to demonstrate defendant's motive and negligence. 6.DRUGGISTS; RESPONSIBILITY. The profession of pharmacy is one demanding care and skill. The responsibility of the druggist to use care can be qualified as the highest degree of care known to practical men. The skill required of the druggist can be qualified as high or ample. In order words, the care required must be commensurate with the danger involved, and the skill employed must correspond with the superior knowledge of the business which the law demands. 7.ID; ID The rule of caveat emptor cannot be applied to the purchase and sale of drugs. An imperative duty is on the druggist to take precautions to prevent death or serious injury to any one who relies on his absolute honesty and peculiar learning. The nature of drugs is such that examination will not avail the purchaser anything, Consequently, it must be that the druggist warrant that he will deliver the drug called for. 8.ID; ID. In civil cases, the druggist is made liable for any injury approximately resulting from his negligence. "Pharmacists or apothecaries who compound or sell medicines, if they carelessly label a poison as a harmless medicine, and send it so labeled into the market are liable to all persons, who, without fault on their part, are injured by using it as such medicine, in consequence of the false label; the rule being that the liability in such a case arises, not out of any contract or direct privity between the wrongdoer and the person injured, but out of the duty which the law imposes on him to avoid acts in their nature dangerous to the lives of others." (Nat. Savings Bank vs. Ward [1879], 100 U.S. 195, following Thomas vs. Winchester [1852], 2 Seld. [N.Y.], 397.) 9.PHARMACY LAW; "FRAUDULENT" CONSTRUED. The Pharmacy Law makes it unlawful for any person to sell any drug under any "fraudulent name." The word "fraudulent" is not here used in all of its strictness. Rather considering the responsibility for the equality of drug which the law imposes on druggists and the position of the word "fraudulent" in juxtaposition to "name" what is made unlawful is the giving of a false name to the drug asked for. 10.PENALTY. The Law penalizes any druggist who shall sell one drug for another whether it be through negligence or mistake. 11.ID.; ID. A druggist in filling a prescription calling for potassium chlorate gave instead to the customer barium chlorate, a poison, and placed this poison in a package of the prescription to two of his sick horses with the result that they died shortly afterwards. Held: That the druggist is guilty of a violation of the Pharmacy Law.

DECISION

MALCOLM, J :
p

This appeal requires a construction and an application, for the first time, of the penal provisions of the Pharmacy Law. Santiago Pineda, the defendant, is a registered pharmacist of long standing and the owner of a drug store located at Nos. 442, 444, Calle Santo Cristo, city of Manila. One Feliciano Santos, having some sick horses, presented a copy of a prescription obtained from Dr. Richardson, and which on other occasions Santos had given to his horses with good results, at Pineda's drug store for filling. The prescription read "clorato de potasa 120 gramos en seis papelitos de 20 gramos, para caballo." Under the supervision of Pineda, the prescription was prepared and returned to Santos in the form of six papers marked, "Botica Pineda Clorato potasa 120.00 seis papeles para caballo Sto. Cristo 442, 444, Binondo, Manila." Santos, under the belief that he had purchased the potasium chlorate which he had asked for, put two of his sick packages in water and gave the doses to two of his sick horses. Another package was mixed with water for another horse, but was not used. The two horses, to which had been given the preparation, died shortly afterwards. Santos, thereupon, took the three remaining packages to the Bureau of Science for examination. Drs. Pea and Darjuan, of the Bureau of Science, on analysis found that the packages contained to potassium chlorate but barium chlorate. At the instance of Santos, the two chemists also went to the drug store of the defendant and bought potassium chlorate, which when analyzed was found to be barium chlorate. (Barium chlorate, it should be noted, is a poison; potassium chlorate is not.) Dr. Buencamino, a veterinarian, performed an autopsy on the horse, and found that death was the result of poisoning. Four assignments of error are made. The first is that the lower court in admitting the testimony of the chemist Pea and Darjuan as to their purchase of potassium chlorate at the drug store of the accused, which substance proved on analysis to be barium chlorate. What appellant is here relying on is the maxim res inter alois acta. As a general rule, the evidence of other offenses committed by a defendant is inadmissible. But appellant has confused this maxim and this rule with certain exceptions thereto. The effort is not to convict the accused of a second offense. Nor is there an attempt to draw the mind away from the point at issue and thus to prejudice defendant's case. The purpose is to ascertain defendant's knowledge and intent, and to fix his negligence is intensified, and fraudulent intent may even be evidence of negligence than the frequency of accidents. (See 10 R. C. L. pp. 938 940.) The United States Supreme Court has held that:
"On the trial of a criminal case where the question relates to the tendency of certain testimony to throw light upon a particular fact, or to explain the conduct of a particular person, there is a certain discretion on the part of the trial judge which a court of errors will not interfere with, unless it manifestly appear that the testimony has no legitimate bearing upon the question at issue, and is calculated to prejudice the accused.

"Whenever the necessity arises for a resort to circumstancial evidence, either from the nature of the inquiry or the failure of direct proof, objections to the testimony on the ground of irrelevancy are not favored. "Evidence is admissible in a criminal action which tends to show motive, although it tends to prove the commission of another offense by the defendant."(Moore vs. U.S. [1893], 150 U.S., 57.)

The second assignment of error is that the lower court erred in finding that the substance sold by the accused to Feliciano Santos on the 22d of June, 1916, was barium chlorate and not potassium chlorate. The proof demonstrates the contrary. The third and fourth assignments of error are that the lower court erred in finding that the accused has been proved quality beyond a reasonable doubt of an infraction of Act No. 597, section 17, as amended. The third assignment contains the points we should consider, including, we may remark, a somewhat difficult question concerning which the briefs have given little assistance. The Pharmacy Law was first enacted as Act No. 597, was later amended by Act Nos. 1921, 2236, and 2382, and is now found as Chapter 30 of the Administrative examiners, and the examination and registration of pharmacists, and finally contains sundry provisions relative to the practice of pharmacy. High qualifications for applicants for the pharmaceutical examination are established. The program of subjects for the examination in wide. Responsibility for the quality of drugs is fixed by section 17 of the Pharmacy Law, as amended (now Administrative Code [1917], section 751), in the following term:
"Every pharmacist shall be responsible for the quality of all drugs, chemicals, medicines, and poisons he may sell or keep for sale; and it shall be unlawful for any person whomsoever to manufacture, prepare, sell, or administer any prescription, drug, chemical, medicine, or poison under any fraudulent name, direction, or pretense, or to adulterate any drug, chemical, or poison so used, sold , or offered for sale. Any drug, chemical, medicine, or poison shall be held to be adultered or deteriorated within the meaning of this section if it differs from the standard of quality or purity given in the United States Pharmacopoeia."

The same action of the Pharmacy Law also contains the following penal provision: "Any person violating the provisions of this Act shall, upon conviction, be punished by a fine not more than five hundred dollars." The Administrative Code, section 2676, changes the penalty somewhat by providing that:
"Any person engaging in the practice of pharmacy in the Philippine Islands contrary to any provision of the Pharmacy Law or violating any provisions of said law for which no specific penalty is provided shall, for each offense, be punished by a fine not to exceed two hundred pesos, or by imprisonment for not more than ninety days, or both, in the direction of the court."

These are the provisions of law, pursuant to which prosecution has been initiated and which it is now incumbent upon us to construe. Turning to the law, certain points therein as bearing on our present facts must be admitted. Thus, defendant is a pharmacist. As a pharmacist, he is made responsible for the quality of all drugs and poisons which he sells. And finally it is provided that it shall be unlawful for him to sell any drug or poison under any "fraudulent name." It is the one word "fraudulent" which has given the court trouble. What did the Legislature intend to convey by this restrictive adjective? Were we to adhere to the technical definition of fraud, which appellant vigorously insists upon, it would be difficult, if not impossible, to convict any druggist of a violation of the law. The prosecution would have to prove to a reasonable degree of certainly that the druggist made a material representation; that it was false; that when he made it he knew that it was false of made it recklessly without any knowledge of its truth and as a positive assertion; that he made it with the intention that it should be acted upon by the purchaser; that the purchaser acted in reliance upon it, and that the purchaser thereby suffered injury. Such a construction with a literal following of well-known principles on the subject of fraud would strip the law of at least much of its force. It would leave the innocent purchaser of drugs, who must blindly trust in the good faith and vigilance of the pharmacist, at the mercy of any unscrupulous vendor. We should not, therefore, without good reason so devitalize the law. The profession of pharmacy, it has been said again and again, is one demanding care and skill. The responsibility of the druggist to use care has been variously qualified as "ordinary care," "care of a specially high degree," "the highest degree of care known to practical men." Even under the first conservative expression, "ordinary care" with reference to the business of a druggist, the Supreme Court of Connecticut has said must be held to signify "the highest practicable degree of prudence, thoughtfulness, and vigilance, and the most exact and reliable safeguards consistent with the reasonable conduct of the business, in order that human life may not constantly be exposed to the danger flowing from the substitution of deadly poisons for harmless medicine." (Tombari vs. Connor [1912], 85 Conn., 235. See also Willson vs. Atkins [1907] 81 N. E., 600.) The "skill " required of a druggist is denominated as "high" or "ample." (Peter vs. Jackson [1902], 50 W. Va., 644; 57 L. R.A., 428.) In order words, the care required must be commensurate with the danger involved, and the skill employed must correspond with the superior knowledge of the business which the law demands. Under one conception, and it should not be forgotten that the cases we consider are civil in nature, the question of negligence or ignorance is irrelevant. The druggist is responsible as an absolute guarantor of what he sells. In a decision which stands alone, the Supreme Court of Kentucky said:

"As applicable to the owners of drug stores, or persons engaged in vending drugs and medicines by retail, the legal maxim should be reversed. Instead of caveat emptor, it should be caveat venditor. That is to say, let him be certain that he does not sell to a purchaser or send to a patient one drug for another, as arsenic for calomel, cartharides for or mixed with snakeroot and Peruvian bark, or even on innocent drug, calculated to produce a certain effect, in place of another sent for and designed to produce a different effect. If he does these things, he cannot escape civil responsibility, upon the alleged pretexts that it was an accidental or an innocent mistake; that he had been very careful and particular, and had used extraordinary care and diligence in preparing or compounding the medicines as required, etc. Such excuses will not avail him."(Fleet vs Hollenkemp [1852], 56 Am. Dec., 563.)

Under the other conception, in which proof of negligence is considered as material, where a customer calls upon a druggist for a harmless remedy, delivery of a poisonous drug by mistake by the druggist is prima facie negligence, placing the burden on him to show that the mistake was under the circumstances consistent with the exercise of due care. (See Knoefel vs. Atkins, supra.) The druggist cannot, for example in filling a prescription calling for potassium chlorate give instead to the customer barium chlorate, a poison, place this poison in a package labeled "potassium chlorate" , and expect to escape responsibility on a plea of mistake. His mistake, under the most favorable aspect for himself, was negligence. So in a case where a druggist filled an order for calomel tablets with morphine and placed the morphine in a box labeled calomel, it was said:
"It is not suggested, nor can we apprehend that it is in any wise probable, that the act of furnishing the wrong drug in this case was willful. If it was furnished by the clerk, it was undoubtedly a mistake and unintentional. However, it was a mistake of the gravest kind, and of the most disastrous effect. We cannot say that one holding himself out as competent to handle such drugs, and who does so, having rightful access to them, and relied upon by those dealing with him to exercise that high degree of caution and care called for by the peculiarly dangerous nature of this business, can be heard to say that his mistakes by which he furnishes a customer the most deadly of drugs for those comparatively harmless is not, in and of itself, gross negligence, and that of an aggravated form." (Smith's Admix. vs. Middelton [1902], 56 L. R., 484.)

The rule of caveat emptor cannot apply to the purchase and sale of drugs. The vendor and the vendee do not stand at arms length as in ordinary transactions. An imperative duty is on the druggist to take precautions to prevent death or serious injury to anyone who relies on his absolute honesty and peculiar learning. The nature of drugs is such that examination would not avail the purchaser anything. It would be idle mockery for the customer to make an examination of a compound of which he can know nothing. Consequently, it must be that the druggist warrants that he will deliver the drug called for.

In civil cases, the druggist is made liable for any injury approximately resulting from his negligence. If B negligently sells poison under the guise of a beneficial drug to A, he is liable for the injury done to A. In a case, which has repeatedly been followed by the United States Supreme Court, it was said, "Pharmacists or apothecaries who compound or sell medicines, if they carelessly label a poison as a harmless medicine, and send it so labeled into the market, are liable to all persons who, without fault on their part, are injured by using it as such medicine, in consequence of the false label; the rule being that the liability in such a case arises not out of any contract or direct privity between the wrong-doer and the person injured, but out of the duty which the law imposes on him to avoid acts in their nature dangerous to the lives of others." (Nat. Savings Bank vs. Ward [1879], 100 U.S., 195, following Thomas vs. Winchester [1852], 2 Seld. [N.Y.] 397.) In reality, for the druggist, mistake is negligence and care is no defense. Throughout the criminal law, run the same rigorous rules. For, example, apothecaries or apothecary clerks, who are quality of negligence in the sale of medicine when death ensues in consequence, have been held guilty of manslaughter. (See Tessymond's Case {1828}, 1 Lewin, C. C., 169.) Bearing these general principles in mind, and remembering particularly the care and skill which are expected of druggists, that in some jurisdictions they are liable even for their mistake and in others have the burden placed upon them to establish that they were not negligent, it cannot be that the Philippine Legislature intended to use the word "fraudulent" in all its strictness. A plea of accident and mistake cannot excuse for they cannot take place unless there be wanton and criminal carelessness and neglect. How the misfortune occurs in unimportant, if under all the circumstances the fact of occurrence is attributable to the druggist as a legal fault. Rather considering the responsibility for the quality of drugs which the law imposes on druggist and the position of the made unlawful is the giving of a false name to the drug asked for. This view is borne out by the Spanish translation, which we are permitted to consult to explain the English text. In the Spanish "supuesto" is used, and this word is certainly not synonymous with "fraudulent." The usual badges of fraud, falsity, deception, and injury must be present but not scienter. In view of the tremendous and imminent danger to the public from the careless sale of poisons and medicines, we do not deem it too rigid a rule to hold that the law penalizes any druggist who shall sell one drug for another whether it be through negligence or mistake. The judgment of the lower court, sentencing the defendant to pay a fine of P100, with subsidiary imprisonment in case of insolvency, and to pay the costs, is affirmed with the costs of this instance against the appellant, without prejudice to any civil action which may be instituted. So ordered. Arellano, C.J., Torres, Johnson, Carson, Araullo, and Street, JJ.., concur.

FIRST DIVISION
[G.R. No. 112392. February 29, 2000.] BANK OF THE PHILIPPINE ISLANDS, petitioner, vs. COURT OF APPEALS and BENJAMIN C. NAPIZA, respondents. Benedicto Tale & Associates for petitioner. Renato M. Coronado for private respondent. SYNOPSIS By way of accommodation and only for the purpose of clearing, Benjamin Napiza (private respondent herein), deposited a check in the amount of $2,500.00 in his dollar deposit with the petitioner Bank of the Philippine Islands. This check belongs to Henry Chan. Napiza delivered to Chan a signed blank withdrawal slip, with the understanding that as soon as the check is cleared, both of them would go to the bank to withdraw the amount of the check upon private respondent's presentation to the bank of his passbook. However, using the same blank withdrawal slip, a bank employee was able to withdraw the amount of $2,541.67, which was made payable to Ramon A. de Guzman and Agnes C. de Guzman. Later, the bank received a communication that the deposited check was a counterfeit. The bank informed respondent Napiza that the check bounced, hence, the latter tried to locate Chan. Since Napiza was unable to locate Chan, the bank demanded payment from him. Napiza refused to pay on the ground that the check was deposited for clearing purposes only to accommodate Chan. As a result, petitioner bank filed a complaint against private respondent for the return of the amount of $2,500.00 or the prevailing peso equivalent plus interest, attorney's fees, and litigation costs. The lower court dismissed the complaint. The lower court held that having committed a mistake of not waiting for the clearance of the check before authorizing the withdrawal of its value, petitioner should suffer the resultant loss. The Court of Appeals affirmed the lower court's decision and stressed that the mere deposit of the check did not mean that it was already the property of the depositor. The check had to be cleared and its proceeds can only be withdrawn upon presentation of a passbook in accordance with the bank's rules and regulations. Hence, this petition.
SCaITA

The Supreme Court denied the petition. The Court of Appeals correctly held that in depositing the check in his name, private respondent did not become the outright owner of the amount stated therein. Under petitioner bank's own rule, by depositing the check, private respondent was merely designating petitioner as the collecting bank. This is in

consonance with the rule that a negotiable instrument, such as a check, is not a legal tender. SYLLABUS 1.COMMERCIAL LAW; NEGOTIABLE INSTRUMENTS LAW; WARRANTIES OF A PERSON NEGOTIATING AN INSTRUMENT; APPLICATION IN CASE AT BAR. Section 65, on the other hand, provides for the following warranties of a person negotiating an instrument by delivery or by qualified indorsement: (a) that the instrument is genuine and in all respects what it purports to be; (b) that he has a good title to it; and (c) that all prior parties had capacity to contract. In People vs. Maniego, this Court described the liabilities of an indorser as follows: "Appellant's contention that as mere indorser, she may not be liable on account of the dishonor of the checks indorsed by her, is likewise untenable. Under the law, the holder or last indorsee of a negotiable instrument has the right 'to enforce payment of the instrument for the full amount thereof against all parties liable thereon.' Among the 'parties liable thereon' is an indorser of the instrument, i.e., 'a person placing his signature upon an instrument otherwise than as a maker, drawer or acceptor ** unless he clearly indicated by appropriate words his intention to be bound in some other capacity.' Such an indorser 'who indorses without qualification,' inter alia 'engages that on due presentment, ** (the instrument) shall be accepted or paid, or both, as the case may be, according to its tenor, and that if it be dishonored, and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or any subsequent indorser who may be compelled to pay it.' Maniego may also be deemed an 'accommodation party' in the light of the facts, i.e., a person 'who has signed the instrument as maker, drawer, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other person.' As such, she is under the law 'liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew ** (her) to be only an accommodation party,' although she has the right, after paying the holder, to obtain reimbursement from the party accommodated, 'since the relation between them is in effect that of principal and surety, the accommodation party being the surety.'" It is thus clear that ordinarily private respondent may be held liable as an indorser of the check or even as an accommodation party. However, to hold private respondent liable for the amount of the check he deposited by the strict application of the law and without considering the attending circumstances in the case would result in an injustice and in the erosion of the public trust in the banking system. The interest of justice thus demands looking into the events that led to the encashment of the check. 2.ID.; ID.; CHECK DEPOSIT; COLLECTING BANK OR LAST ENDORSER SUFFERS THE LOSS, AS A GENERAL RULE; RATIONALE; CASE AT BAR. As correctly held by the Court of Appeals, in depositing the check in his name, private respondent did not become the outright owner of the amount stated therein. Under the

above rule, by depositing the check with petitioner, private respondent was, in a way, merely designating petitioner as the collecting bank. This is in consonance with the rule that a negotiable instrument, such as a check, whether a manager's check or ordinary check, is not legal tender. As such, after receiving the deposit, under its own rules, petitioner shall credit the amount in private respondent's account or infuse value thereon only after the drawee bank shall have paid the amount of the check or the check has been cleared for deposit. Again, this is in accordance with ordinary banking practices and with this Court's pronouncement that "the collecting bank or last endorser generally suffers the loss because it has the duty to ascertain the genuineness of all prior endorsements considering that the act of presenting the check for payment to the drawee is an assertion that the party making the presentment has done its duty to ascertain the genuineness of the endorsements." The rule finds more meaning in this case where the check involved is drawn on a foreign bank and therefore collection is more difficult than when the drawee bank is a local one even though the check in question is a manager's check. Said ruling brings to light the fact that the banking business is affected with public interest. By the nature of its functions, a bank is under obligation to treat the accounts of its depositors "with meticulous care, always having in mind the fiduciary nature of their relationship." 3.CIVIL LAW; QUASI-DELICTS; NEGLIGENCE; DEFINED; WHEN PRESENT; CASE AT BAR. As such, in dealing with its depositors, a bank should exercise its functions not only with the diligence of a good father of a family but it should do so with the highest degree of care. In the case at bar, petitioner, in allowing the withdrawal of private respondent's deposit, failed to exercise the diligence of a good father of a family. In total disregard of its own rules, petitioner's personnel negligently handled private respondent's account to petitioner's detriment. As this Court once said on this matter: "Negligence 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 do. The seventy-eight (78)-year-old, yet still relevant, case of Picart vs. Smith, provides the test by which to determine the existence of negligence in a particular case which 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 pater-familias 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." 4.ID.; ID.; ID.; PROXIMATE CAUSE, DEFINED; PRESENCE THEREOF IN CASE AT BAR. While it is true that private respondent's having signed a blank withdrawal slip set in motion the events that resulted in the withdrawal and encashment of the counterfeit check, the negligence of petitioner's personnel was the proximate cause of the

loss that petitioner sustained. Proximate cause, which is determined by a mixed consideration of logic, common sense, policy and precedent, 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." The proximate cause of the withdrawal and eventual loss of the amount of $2,500.00 on petitioner's part was its personnel's negligence in allowing such withdrawal in disregard of its own rules and the clearing requirement in the banking system. In so doing, petitioner assumed the risk of incurring a loss on account of a forged or counterfeit foreign check and hence, it should suffer the resulting damage.

DECISION

YNARES-SANTIAGO, J :
p

This is a petition for review on certiorari of the Decision 1 of the Court of Appeals in CA-G.R. CV No. 37392 affirming in toto that of the Regional Trial Court of Makati, Branch 139, 2 which dismissed the complaint filed by petitioner Bank of the Philippine Islands against Benjamin C. Napiza for sum of money.

On September 3, 1987, private respondent deposited in Foreign Currency Deposit Unit (FCDU) Savings Account No. 028-187 3 which he maintained in petitioner bank's Buendia Avenue Extension Branch, Continental Bank Manager's Check No. 00014757 4 dated August 17, 1984, payable to "cash" in the amount of Two Thousand Five Hundred Dollars ($2,500.00) and duly endorsed by private respondent on its dorsal side. 5 It appears that the check belonged to a certain Henry Chan who went to the office of private respondent and requested him to deposit the check in his dollar account by way of accommodation and for the purpose of clearing the same. Private respondent acceded, and agreed to deliver to Chan a signed blank withdrawal slip, with the understanding that as soon as the check is cleared, both of them would go to the bank to withdraw the amount of the check upon private respondent's presentation to the bank of his passbook. Using the blank withdrawal slip given by private respondent to Chan, on October 23, 1984, one Ruben Gayon, Jr. was able to withdraw the amount of $2,541.67 from FCDU Savings Account No. 028-187. Notably, the withdrawal slip shows that the amount was payable to Ramon A. de Guzman and Agnes C. de Guzman and was duly initialed by the branch assistant manager, Teresita Lindo. 6 On November 20, 1984, petitioner received communication from the Wells Fargo Bank International of New York that the said check deposited by private respondent was a

counterfeit check 7 because it was "not of the type or style of checks issued by Continental Bank International." 8 Consequently, Mr. Ariel Reyes, the manager of petitioner's Buendia Avenue Extension Branch, instructed one of its employees, Benjamin D. Napiza IV, who is private respondent's son, to inform his father that the check bounced. 9 Reyes himself sent a telegram to private respondent regarding the dishonor of the check. In turn, private respondent's son wrote to Reyes stating that the check had been assigned "for encashment" to Ramon A. de Guzman and/or Agnes C. de Guzman after it shall have been cleared upon instruction of Chan. He also said that upon learning of the dishonor of the check, his father immediately tried to contact Chan but the latter was out of town. 10 Private respondent's son undertook to return the amount of $2,500.00 to petitioner bank. On December 18, 1984, Reyes reminded private respondent of his son's promise and warned that should he fail to return that amount within seven (7) days, the matter would be referred to the bank's lawyers for appropriate action to protect the bank's interest. 11 This was followed by a letter of the bank's lawyer dated April 8, 1985 demanding the return of the $2,500.00. 12 In reply, private respondent wrote petitioner's counsel on April 20, 1985 13 stating that he deposited the check "for clearing purposes" only to accommodate Chan. He added:
"Further, please take notice that said check was deposited on September 3, 1984 and withdrawn on October 23, 1984, or a total period of fifty (50) days had elapsed at the time of withdrawal. Also, it may not be amiss to mention here that I merely signed an authority to withdraw said deposit subject to its clearing, the reason why the transaction is not reflected in the passbook of the account. Besides, I did not receive its proceeds as may be gleaned from the withdrawal slip under the captioned signature of recipient. "If at all, my obligation on the transaction is moral in nature, which (sic) I have been and is (sic) still exerting utmost and maximum efforts to collect from Mr. Henry Chan who is directly liable under the circumstances. xxx xxx xxx"

On August 12, 1986, petitioner filed a complaint against private respondent, praying for the return of the amount of $2,500.00 or the prevailing peso equivalent plus legal interest from date of demand to date of full payment, a sum equivalent to 20% of the total amount due as attorney's fees, and litigation and/or costs of suit. Private respondent filed his answer, admitting that he indeed signed a "blank" withdrawal slip with the understanding that the amount deposited would be withdrawn only after the check in question has been cleared. He likewise alleged that he instructed the party to whom he issued the signed blank withdrawal slip to return it to him after the bank draft's

clearance so that he could lend that party his passbook for the purpose of withdrawing the amount of $2,500.00. However, without his knowledge, said party was able to withdraw the amount of $2,541.67 from his dollar savings account through collusion with one of petitioner's employees. Private respondent added that he had "given the plaintiff fifty-one (51) days with which to clear the bank draft in question." Petitioner should have disallowed the withdrawal because his passbook was not presented. He claimed that petitioner had no one to blame except itself "for being grossly negligent"; in fact, it had allegedly admitted having paid the amount in the check "by mistake" . . . "if not altogether due to collusion and/or bad faith on the part of (its) employees." Charging petitioner with "apparent ignorance of routine bank procedures," by way of counterclaim, private respondent prayed for moral damages of P100,000.00, exemplary damages of P50,000.00 and attorney's fees of 30% of whatever amount that would be awarded to him plus an honorarium of P500.00 per appearance in court. Private respondent also filed a motion for admission of a third party complaint against Chan. He alleged that "thru statagem and/or manipulation," Chan was able to withdraw the amount of $2,500.00 even without private respondent's passbook. Thus, private respondent prayed that third party defendant Chan be made to refund to him the amount withdrawn and to pay attorney's fees of P5,000.00 plus P300.00 honorarium per appearance. Petitioner filed a comment on the motion for leave of court to admit the third party complaint, wherein it asserted that per paragraph 2 of the Rules and Regulations governing BPI savings accounts, private respondent alone was liable "for the value of the credit given on account of the draft or check deposited." It contended that private respondent was estopped from disclaiming liability because he himself authorized the withdrawal of the amount by signing the withdrawal slip. Petitioner prayed for the denial of the said motion so as not to unduly delay the disposition of the main case asserting that private respondent's claim could be ventilated in another case. Private respondent replied that for the parties to obtain complete relief and to avoid multiplicity of suits, the motion to admit third party complaint should be granted. Meanwhile, the trial court issued orders on August 25, 1987 and October 28, 1987 directing private respondent to actively participate in locating Chan. After private respondent failed to comply, the trial court, on May 18, 1988, dismissed the third party complaint without prejudice. On November 4, 1991, a decision was rendered dismissing the complaint. The lower court held petitioner could not hold private respondent liable based on the check's face value alone. To so hold him liable "would render inutile the requirement of 'clearance' from the drawee bank before the value of a particular foreign check or draft can be credited to the account of a depositor making such deposit." The lower court further held that "it was incumbent upon the petitioner to credit the value of the check in question to

the account of the private respondent only upon receipt of the notice of final payment and should not have authorized the withdrawal from the latter's account of the value or proceeds of the check." Having admitted that it committed a "mistake" in not waiting for the clearance of the check before authorizing the withdrawal of its value or proceeds, petitioner should suffer the resultant loss. On appeal, the Court of Appeals affirmed the lower court's decision. The appellate court held that petitioner committed "clear gross negligence" in allowing Ruben Gayon, Jr. to withdraw the money without presenting private respondent's passbook and, before the check was cleared and in crediting the amount indicated therein in private respondent's account. It stressed that the mere deposit of a check in private respondent's account did not mean that the check was already private respondent's property. The check still had to be cleared and its proceeds can only be withdrawn upon presentation of a passbook in accordance with the bank's rules and regulations. Furthermore, petitioner's contention that private respondent warranted the check's genuineness by endorsing it is untenable for it would render useless the clearance requirement. Likewise, the requirement of presentation of a passbook to ascertain the propriety of the accounting reflected would be a meaningless exercise. After all, these requirements are designed to protect the bank from deception or fraud. The Court of Appeals cited the case of Roman Catholic Bishop of Malolos, Inc. v. IAC, 14 where this Court stated that a personal check is not legal tender or money, and held that the check deposited in this case must be cleared before its value could be properly transferred to private respondent's account. Without filing a motion for the reconsideration of the Court of Appeal's Decision, petitioner filed this petition for review on certiorari, raising the following issues: 1.WHETHER OR NOT RESPONDENT NAPIZA IS LIABLE UNDER HIS WARRANTIES AS A GENERAL INDORSER. 2.WHETHER OR NOT A CONTRACT OF AGENCY WAS CREATED BETWEEN RESPONDENT NAPIZA AND RUBEN GAYON. 3.WHETHER OR NOT PETITIONER WAS GROSSLY NEGLIGENT IN ALLOWING THE WITHDRAWAL. Petitioner claims that private respondent, having affixed his signature at the dorsal side of the check, should be liable for the amount stated therein in accordance with the following provision of the Negotiable Instruments Law (Act No. 2031):

"SECTION 66.Liability of general indorser. Every indorser who indorses without qualification, warrants to all subsequent holders in due course (a)The matters and things mentioned in subdivisions (a), (b), and (c) of the next preceding section; and (b)That the instrument is at the time of his indorsement, valid and subsisting. And, in addition, he engages that on due presentment, it shall be accepted or paid, or both, as the case may be, according to its tenor, and that if it be dishonored, and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to any subsequent indorser who may be compelled to pay it."

Section 65, on the other hand, provides for the following warranties of a person negotiating an instrument by delivery or by qualified indorsement: (a) that the instrument is genuine and in all respects what it purports to be; (b) that he has good title to it, and (c) that all prior parties had capacity to contract. 15 In People v. Maniego, 16 this Court described the liabilities of an indorser as follows:
"Appellant's contention that a mere indorser, she may not be liable on account of the dishonor of the checks indorsed by her, is likewise untenable. Under the law, the holder or last indorsee of a negotiable instrument has the right 'to enforce payment of the instrument for the full amount thereof against all parties liable thereon.' Among the 'parties liable thereon' is an indorser of the instrument, i.e., 'a person placing his signature upon an instrument otherwise than as maker, drawer or acceptor ** unless he clearly indicated by appropriate words his intention to be bound in some other capacity.' Such an indorser 'who indorses without qualification,' inter alia 'engages that on due presentment, ** (the instrument) shall be accepted or paid, or both, as the case may be, according to its tenor, and that if it be dishonored, and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or any subsequent indorser who may be compelled to pay it.' Maniego may also be deemed an 'accommodation party' in the light of the facts, i.e., a person 'who has signed the instrument as maker, drawer, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other person.' As such, she is under the law 'liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew ** (her) to be only an accommodation party,' although she has the right, after paying the holder, to obtain reimbursement from the party accommodated, 'since the relation between them is in effect that of principal and surety, the accommodation party being the surety."

It is thus clear that ordinarily private respondent may be held liable as an indorser of the check or even as an accommodation party. 17 However, to hold private respondent liable for the amount of the check he deposited by the strict application of the law and without

considering the attending circumstances in the case would result in an injustice and in the erosion of the public trust in the banking system. The interest of justice thus demands looking into the events that led to the encashment of the check. Petitioner asserts that by signing the withdrawal slip, private respondent "presented the opportunity for the withdrawal of the amount in question." Petitioner relied "on the genuine signature on the withdrawal slip, the personality of private respondent's son and the lapse of more than fifty (50) days from date of deposit of the Continental Bank draft, without the same being returned yet." 18 We hold however, that the propriety of the withdrawal should be gauged by compliance with the rules thereon that both petitioner bank and its depositors are duty-bound to observe. In the passbook that petitioner issued to private respondent, the following rules on withdrawal of deposits appear:
"4.Withdrawals must be made by the depositor personally but in some exceptional circumstances, the Bank may allow withdrawal by another upon the depositor's written authority duly authenticated; and neither a deposit nor a withdrawal will be permitted except upon the presentation of the depositor's savings passbook, in which the amount deposited withdrawn shall be entered only by the Bank. 5.Withdrawals may be made by draft, mail or telegraphic transfer in currency of the account at the request of the depositor in writing on the withdrawal slip or by authenticated cable. Such request must indicate the name of the payee/s, amount and the place where the funds are to be paid. Any stamp, transmission and other charges related to such withdrawals shall be for the account of the depositor and shall be paid by him/her upon demand. Withdrawals may also be made in the form of travelers checks and in pesos. Withdrawals in the form of notes/bills are allowed subject however, to their (availability). 6.Deposits shall not be subject to withdrawal by check, and may be withdrawn only in the manner above provided, upon presentation of the depositor's savings passbook and with the withdrawal form supplied by the Bank at the counter." 19

Under these rules, to be able to withdraw from the savings account deposit under the Philippine foreign currency deposit system, two requisites must be presented to petitioner bank by the person withdrawing an amount: (a) a duly filled-up withdrawal slip; and (b) the depositor's passbook. Private respondent admits that he signed a blank withdrawal slip ostensibly in violation of Rule No. 6 requiring that the request for withdrawal must name the payee, the amount to be withdrawn and the place where such withdrawal should be made. That the withdrawal slip was in fact a blank one with only private respondent's two signatures affixed on the proper spaces is buttressed by petitioner's allegation in the instant petition that had private respondent indicated therein the person authorized to receive the money, then Ruben Gayon, Jr. could not have withdrawn any amount.

Petitioner contends that "(i)n failing to do so (i.e., naming his authorized agent), he practically authorized any possessor thereof to write any amount and to collect the same." 20 Such contention would have been valid if not for the fact that the withdrawal slip itself indicates a special instruction that the amount is payable to "Ramon A. de Guzman &/or Agnes C. de Guzman." Such being the case, petitioner's personnel should have been duly warned that Gayon, who was also employed in petitioner's Buendia Ave. Extension branch, 21 was not the proper payee of the proceeds of the check. Otherwise, either Ramon or Agnes de Guzman should have issued another authority to Gayon for such withdrawal. Of course, at the dorsal side of the withdrawal slip is an "authority to withdraw" naming Gayon the person who can withdraw the amount indicated in the check. Private respondent does not deny having signed such authority. However, considering petitioner's clear admission that the withdrawal slip was a blank one except for private respondent's signature, the unavoidable conclusion is that the typewritten name of "Ruben C. Gayon, Jr." was intercalated and thereafter it was signed by Gayon or whoever was allowed by petitioner to withdraw the amount. Under these facts, there could not have been a principal-agent relationship between private respondent and Gayon so as to render the former liable for the amount withdrawn. Moreover, the withdrawal slip contains a boxed warning that states: "This receipt must be signed and presented with the corresponding foreign currency savings passbook by the depositor in person. For withdrawals thru a representative, depositor should accomplish the authority at the back." The requirement of presentation of the passbook when withdrawing an amount cannot be given mere lip service even though the person making the withdrawal is authorized by the depositor to do so. This is clear from Rule No. 6 set out by petitioner so that, for the protection of the bank's interest and as a reminder to the depositor, the withdrawal shall be entered in the depositor's passbook. The fact that private respondent's passbook was not presented during the withdrawal is evidenced by the entries therein showing that the last transaction that he made with the bank was on September 3, 1984, the date he deposited the controversial check in the amount of $2,500.00. 22 In allowing the withdrawal, petitioner likewise overlooked another rule that is printed in the passbook. Thus:
"2.All deposits will be received as current funds and will be repaid in the same manner; provided, however, that deposits of drafts, checks, money orders, etc. will be accepted as subject to collection only and credited to the account only upon receipt of the notice of final payment. Collection charges by the Bank's foreign correspondent in effecting such collection shall be for the account of the depositor. If the account has sufficient balance, the collection shall be debited by the Bank against the account. If, for any reason, the proceeds of the deposited checks, drafts, money orders, etc., cannot be collected or if the Bank

is required to return such proceeds, the provisional entry therefor made by the Bank in the savings passbook and its records shall be deemed automatically cancelled regardless of the time that has elapsed, and whether or not the defective items can be returned to the depositor; and the Bank is hereby authorized to execute immediately the necessary corrections, amendments or changes in its record, as well as on the savings passbook at the first opportunity to reflect such cancellation." (Emphasis supplied.)

As correctly held by the Court of Appeals, in depositing the check in his name, private respondent did not become the outright owner of the amount stated therein. Under the above rule, by depositing the check with petitioner, private respondent was, in a way, merely designating petitioner as the collecting bank. This is in consonance with the rule that a negotiable instrument, such as a check, whether a manager's check or ordinary check, is not legal tender. 23 As such, after receiving the deposit, under its own rules, petitioner shall credit the amount in private respondent's account or infuse value thereon only after the drawee bank shall have paid the amount of the check or the check has been cleared for deposit. Again, this is in accordance with ordinary banking practices and with this Court's pronouncement that "the collecting bank or last endorser generally suffers the loss because it has the duty to ascertain the genuineness of all prior endorsements considering that the act of presenting the check for payment to the drawee is an assertion that the party making the presentment has done its duty to ascertain the genuineness of the endorsements." 24 The rule finds more meaning in this case where the check involved is drawn on a foreign bank and therefore collection is more difficult than when the drawee bank is a local one even though the check in question is a manager's check. 25

In Banco Atlantico v. Auditor General, 26 Banco Atlantico, a commercial bank in Madrid, Spain, paid the amounts represented in three (3) checks to Virginia Boncan, the finance officer of the Philippine Embassy in Madrid. The bank did so without previously clearing the checks with the drawee bank, the Philippine National Bank in New York, on account of the "special treatment" that Boncan received from the personnel of Banco Atlantico's foreign department. The Court held that the encashment of the checks without prior clearance is "contrary to normal or ordinary banking practice specially so where the drawee bank is a foreign bank and the amounts involved were large." Accordingly, the Court approved the Auditor General's denial of Banco Atlantico's claim for payment of the value of the checks that was withdrawn by Boncan. Said ruling brings to light the fact that the banking business is affected with public interest. By the nature of its functions, a bank is under obligation to treat the accounts of its depositors "with meticulous care, always having in mind the fiduciary nature of their relationship." 27 As such, in dealing with its depositors a bank should exercise its functions not only with the diligence of a good father of a family but it should do so with the highest degree of care. 28

In the case at bar, petitioner, in allowing the withdrawal of private respondent's deposit, failed to exercise the diligence of a good father of a family. In total disregard of its own rules, petitioner's personnel negligently handled private respondent's account to petitioner's detriment. As this Court once said on this matter:
"Negligence 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 do. The seventy-eight (78)-year-old, yet still relevant, case of Picart v. Smith, provides the test by which to determine the existence of negligence in a particular case which 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 pater-familias 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." 29

Petitioner violated its own rules by allowing the withdrawal of an amount that is definitely over and above the aggregate amount of private respondent's dollar deposits that had yet to be cleared. The bank's ledger on private respondent's account shows that before he deposited $2,500.00, private respondent had a balance of only $750.00. 30 Upon private respondent's deposit of $2,500.00 on September 3, 1984, that amount was credited in his ledger as a deposit resulting in the corresponding total balance of $3,250.00. 31 On September 10, 1984, the amount of $600.00 and the additional charges of $10.00 were indicated therein as withdrawn thereby leaving a balance of $2,640.00. On September 30, 1984, an interest of $11.59 was reflected in the ledger and on October 23, 1984, the amount of $2,541.67 was entered as withdrawn with a balance of $109.92. 32 On November 19, 1984 the word "hold" was written beside the balance of $109.92. 33 That must have been the time when Reyes, petitioner's branch manager, was informed unofficially of the fact that the check deposited was a counterfeit, but petitioner's Buendia Ave. Extension Branch received a copy of the communication thereon from Wells Fargo Bank International in New York the following day, November 20, 1984. 34 According to Reyes, Wells Fargo Bank International handled the clearing of checks drawn against U.S. banks that were deposited with petitioner. 35 From these facts on record, it is at once apparent that petitioner's personnel allowed the withdrawal of an amount bigger than the original deposit of $750.00 and the value of the check deposited in the amount of $2,500.00 although they had not yet received notice from the clearing bank in the United States on whether or not the check was funded. Reyes' contention that after the lapse of the 35-day period the amount of a deposited check could be withdrawn even in the absence of a clearance thereon, otherwise it could

take a long time before a depositor could make a withdrawal, 36 is untenable. Said practice amounts to a disregard of the clearance requirement of the banking system. While it is true that private respondent's having signed a blank withdrawal slip set in motion the events that resulted in the withdrawal and encashment of the counterfeit check, the negligence of petitioner's personnel was the proximate cause of the loss that petitioner sustained. Proximate cause, which is determined by a mixed consideration of logic, common sense, policy and precedent, 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." 37 The proximate cause of the withdrawal and eventual loss of the amount of $2,500.00 on petitioner's part was its personnel's negligence in allowing such withdrawal in disregard of its own rules and the clearing requirement in the banking system. In so doing, petitioner assumed the risk of incurring a loss on account of a forged or counterfeit foreign check and hence, it should suffer the resulting damage. WHEREFORE, the petition for review on certiorari is DENIED. The Decision of the Court of Appeals in CA-G.R. CV No. 37392 is AFFIRMED. SO ORDERED.

EN BANC
[G.R. No. 7760. October 1, 1914.] E. M. WRIGHT, plaintiff-appellant, vs. MANILA ELECTRIC R. R. & LIGHT CO., defendant-appellant. W. A. Kincaid, Thomas L. Hartigan, and Jose Robles Lahesa, for plaintiff. Bruce. Lawrence, Ross & Block, for defendant. SYLLABUS 1.APPEAL; FINDINGS; INJURY DUE TO INTOXICATION. Where the plaintiff drove home in the nighttime in a calesa, a two-wheeled vehicle, and, in crossing the tracks of a street-car company, the rails and a part of the ties of which were above the surface of the ground, the horse stumbled, leaped forward and fell causing the vehicle to strike one of the rails with such force as to stop it suddenly and to break one of the wheels, thereby causing the plaintiff to pitch forward from the vehicle, striking upon the tracks and to injure himself severely, the plaintiff being at

the time somewhat intoxicated but able to handle the horse and vehicle with ordinary care and prudence, it is error for the court to find that, if the plaintiff had not been intoxicated, he would not have been injured, as the conclusion that a sober man would not have fallen from the vehicle under the same circumstances is founded on speculation and guesswork. If any conclusion at all can be legitimately drawn from the facts, it is that the sudden falling of the horse, resulting in the quick and decided lowering of the thills, thereby giving the body of the vehicle a sharp forward inclination, together with the sudden stop, would ordinarily be sufficient to throw a sober man from the vehicle and cause the injuries which resulted. 2.STREET RAILROADS; DEFECTS IN TRACKS, NEGLIGENCE. A street-car company which maintains its tracks in the public highway, at a point where they are crossed by travelers, in such condition that the rails and a considerable portion of the ties are above the level of the street, is negligent and is responsible to a person who, having to pass over said tracks at right angles with a vehicle in the nighttime, is injured by reason of the condition of the tracks, he using ordinary care and prudence in making the crossing. 3.INTOXICATION IS NOT NEGLIGENCE. Mere intoxication is not negligence, nor does the mere fact of intoxication establish a want of ordinary care. If a person's conduct is characterized by a proper degree of care and prudence, it is immaterial whether he is drunk or sober.

DECISION

MORELAND, J :
p

This is an action brought to recover damages for injuries sustained in an accident which occurred in Caloocan on the night of August 8, 1909. The defendant is a corporation engaged in operating an electric street railway in the city of Manila and its suburbs, including the municipality of Caloocan. The plaintiff's residence in Caloocan fronts on the street along which defendant's tracks run, so that to enter his premises from the street plaintiff is obliged to cross defendant's tracks. On the night mentioned plaintiff drove home in a calesa and in crossing the tracks to enter his premises the horse stumbled, leaped forward, and fell, causing the vehicle to strike one of the rails with great force. The fall of the horse and the collision of the vehicle with the rails, resulting in a sudden stop, threw plaintiff from the vehicle and caused the injuries complained of. It is undisputed that at the point where plaintiff crossed the tracks on the night in question not only the rails were above-ground, but that the ties upon which the rails

rested projected from one-third to one-half of their depth out of the ground, thus making the tops of the rails some 5 or 6 inches or more above the level of the street. It is admitted that the defendant was negligent in maintaining its tracks as described, but it is contended that the plaintiff was also negligent in that he was intoxicated to such an extent at the time of the accident that he was unable to take care of himself properly and that such intoxication was the primary cause of the accident. The trial court held that both parties were negligent, but that the plaintiff's negligence was not as great as defendant's and under the authority of the case of Rakes vs. A. G. & P. CO. (7 Phil. Rep., 359) apportioned the damages and awarded plaintiff a judgment of P1,000. The question before us is stated by the defendant thus:
"Accepting the findings of the trial court that both plaintiff and defendant were guilty of negligence, the only question to be considered is whether the negligence of plaintiff contributed to the 'principal occurrence' or 'only to his own injury.' If the former, he cannot recover; if the latter, the trial court was correct in apportioning the damages."

The question as stated by plaintiff is as follows: "The main question at issue is whether or not the plaintiff was negligent, and, if so, to what extent. If the negligence of the plaintiff was the primary cause of the accident then, of course, he cannot recover; if his negligence had nothing to do with the accident but contributed to his injury, then the court was right in apportioning the damages, but if there was no negligence on the part of the plaintiff, then he should be awarded damages adequate to the injury sustained." In support of the defendant's contention counsel says:
"Defendant's negligence was its failure properly to maintain the track; plaintiff's negligence was his intoxication; the 'principal occurrence' was plaintiff's fall from his calesa. It seems clear that plaintiff's intoxication contributed to the fall; if he had been sober, it can hardly be doubted that he would have crossed the track safely, as he had done a hundred times before."

While both parties appealed from the decision, the defendant on the ground that it was not liable and the plaintiff on the ground that the damages were insufficient according to the evidence, and while the plaintiff made a motion for a new trial upon the statutory grounds and took proper exception to the denial thereof, thus conferring upon this court jurisdiction to determine the questions of fact, nevertheless, not all of the testimony taken on the trial, so far as can be gathered from the record, has been brought to this court. There seem to have been two hearings, one on the 31st of August and the other on the 28th of September. The evidence taken on the first hearing is here; that taken on the second is not. Not all the evidence taken on the hearings being before the court, we must refuse, under our rules, to consider even that evidence which is here; and, in the decision of this case, we are, therefore, relegated to the facts stated in the opinion of the court and the pleadings filed.

A careful reading of the decision of the trial court leads us to the conclusion that there is nothing in the opinion which sustains the conclusion of the court that the plaintiff was negligent with reference to the accident which is the basis of this action. Mere intoxication is not negligence, nor does the mere fact of intoxication establish a want of ordinary care. It is but a circumstance to be considered with the other evidence tending to prove negligence. It is the general rule that it is immaterial whether a man is drunk or sober if no want of ordinary care or prudence can be imputed to him, and no greater degree of care is required to be exercised by an intoxicated man for his own protection than by a sober one. If one's conduct is characterized by a proper degree of care and prudence, it is immaterial whether he is drunk or sober. (Ward vs. Chicago etc., R. R. Co., 85 Wis., 601; H. & T. C. R. Co. vs. Reason, 61 Tex., 613; Alger vs. Lowell, 3 Allen, Mass., 402; Central R. R. Co. vs. Phinazee, 93 Ga., 488; Maguire vs. Middlesex R. R. Co., 115 Mass., 239; Meyer vs. Pacific R. R. Co., 40 Mo., 151; Chicago & N. W. R. R. Co. vs. Drake, 33 Ill. App., 114.) If intoxication is not in itself negligence, what are the facts found by the trial court and stated in its opinion upon which may be predicated the finding that the plaintiff did not use ordinary care and prudence and that the intoxication contributed to the injury complained of ? After showing clearly and forcibly the negligence of the defendant in leaving its tracks in the condition in which they were on the night of the injury, the court has the following to say and it is all that can be found in its opinion, with reference to the negligence of the plaintiff: "With respect to the condition in which Mr. Wright was on returning to his house on the night in question, the testimony of Doctor Kneedler who was the physician who attended him all hour after the accident, demonstrates that he was intoxicated. . . .
"If the defendant or its employees were negligent by reason of having left the rails and a part of the ties uncovered in a street where there is a large amount of travel, the plaintiff was no less negligent, he not having abstained from his custom of taking more wine than he could carry without disturbing his judgment and his self-control, he knowing that he had to drive a horse and wagon and to cross railroad tracks which were to a certain extent dangerous by reason of the rails being elevated above the level of the street. "If the plaintiff had been prudent on the night in question and had not attempted to drive his conveyance while in a drunken condition, he would certainly have avoided the damages which he received, although the company, on its part, was negligent in maintaining its tracks in a bad condition for travel. "Both parties, therefore, were negligent and both contributed to the damages resulting to the plaintiff, although the plaintiff, in the Judgment of the court, contributed in greater proportion to the damages than did the defendant."

As is clear from reading the opinion, no facts are stated therein which warrant the conclusion that the plaintiff was negligent. The conclusion that if he had been sober he would not have been injured is not warranted by the facts as found. It is

impossible to say that a sober man would not have fallen from the vehicle under the conditions described. A horse crossing the railroad tracks with not only the rails but a portion of the ties themselves aboveground stumbling by reason of the unsure footing and falling, the vehicle crashing against the rails with such force as to break a wheel, this might be sufficient to throw a person from the vehicle no matter what his condition; and to conclude that, under such circumstances, a sober man would not have fallen while a drunken man did, is to draw a conclusion which enters the realm of speculation and guesswork. It having been found that the plaintiff was not negligent, it is unnecessary to discuss the question presented by the appellant company with reference to the applicability of the case of Rakes vs. A. G. & P. Co., above; and we do not find facts in the opinion of the court below which justify a larger verdict than the one found. The judgment appealed from is affirmed, without special finding as to costs. Arellano, C.J., Torres and Araullo, JJ., concur. Johnson, J., dissents.

Separate Opinions
CARSON, J., dissenting: I dissent. I think, in the first place, that before pronouncing judgment the parties should have an opportunity, if they so desire, to correct the manifestly accidental omission from the record of a part of the transcript of the record. It is very clear that when the case was submitted, and the briefs filed, both parties were under the mistaken impression that all the evidence was in the record. I think, furthermore, that if the case is to be decided on the findings of fact by the trial judge, these findings sufficiently establish the negligence of the plaintiff. The trial judge expressly found that
"If the plaintiff had been prudent on the night in question and had not attempted to drive his conveyance while in a drunken condition, he would certainly have avoided the damages which he received, although the company, on its part, was negligent in maintaining its tracks in a bad condition for travel."

This is a finding of fact the fact of negligence and I know of no rule which requires the trial court to set forth not only the ultimate facts found by it, but also all the evidentiary facts on which such conclusions are based The finding is not in conflict with the other facts found by the trial judge, and though it is not fully sustained thereby, we must assume, if we decline to examine the record, that there were evidentiary facts disclosed at the trial which were sufficient to sustain the finding of negligence. "The statement of facts must contain only those facts which are

essential to a clear understanding of the issues presented and the facts involved." (Act No. 190, sec. 133.)
"The facts required to be found are the ultimate facts forming the issues presented by the pleadings, and which constitute the foundation for a judgment, ,and not those that are merely evidentiary of them. The court is not required to find merely evidentiary facts, or to set forth and explain the means or processes by which he arrived at such findings. Neither evidence, argument, nor comment has any legitimate place in findings of facts." (Conlan vs. Grace, 36 Minn., 276,282.)

EN BANC
[G.R. No. 6659. September 1, 1911.] THE UNITED STATES, plaintiff-appellee, vs. BAGGAY, JR., defendant-appellant. Roman Lacson, for appellant. Acting Attorney-General Harvey, for appellee. SYLLABUS 1.CIVIL LIABILITY IN CRIME; INSANE PERSONS. Civil liability generally accompanies criminal liability, because every person liable criminally is also liable for reparation of damage and for indemnification for the harm done; but by express provision of the penal laws there may be civil liability even when the perpetrator is held to be exempt from criminal liability. Such is the case of a lunatic or demented person who, in spite of his deranged mind is still-reasonably and justly liable with his property for the consequences of his acts, even though they be performed unwittingly. Law and society are under obligation to protect him, and, when so declared liable with his property for reparation and indemnification, he is still entitled to reservation of what is necessary for his decent maintenance, but this protection does not exclude liability for damages caused to those who may have the misfortune to suffer the consequences of his acts.

DECISION

TORRES, J :
p

This is an appeal by the defendant from the judgment rendered on April 28, 1910, whereby he was declared exempt from criminal liability but was obligated to indemnify the heirs of the murdered woman, Bil-liingan, in the sum of P1,000, to pay the costs in the case and to be confined in an institution for the insane until further order of the court. About the 4th of October, 1909, several persons were assembled in the defendant's house in the township of Pearrubia, Abra, Province of Ilocos Sur, for the purpose of holding a song service called "buni" according to the Tinguian custom, when he, the non-Christian Baggay, without provocation suddenly attacked the woman Bil-liingan with a bolo, inflicting a serious wound on her head from which she expired immediately; and with the same bolo he likewise inflicted various wounds on the women named Calbayan, Agueng, Quisamay, Calapini, and on his own mother, named Dioalan. For this reason the provincial fiscal filed a complaint in the court of Ilocos Sur, dated February 15, charging the non-Christian Baggay, jr., with murder, because of the violent death of the woman Bil-liingan. This cause was instituted separately from the other, No. 1109, for lesiones. After trial and proof that the defendant was suffering from mental aberration, the judge on April 28 rendered the judgment cited above, whereupon the defendant's colmsel appealed to this court. By another writing of June 27, the same counsel asked for immediate suspension of execution of the judgment, because it had been appealed and had not become final. He also requested annulment of the sale at public auction of the property attached by the sheriff or his deputy under order of the court, for making indemnification with the defendant's property in accordance with said judgment, as the attachment had been executed upon the property of the non-Christian woman named Dioalan and of other persons and not upon that of the defendant. In opposition thereto, the provincial fiscal on the 30th of the same month requested in writing that the appeal from this judgment filed by the counsel for the defense be not admitted or carried forward, representing that it was out of order as having been submitted beyond the time limit; for on the very day said judgment was rendered, April 28, 1910, the accused's counsel, Sotero Serrano, was verbally notified thereof, and it is therefore untrue that he was notified only on June 17 of said year, on which date he read and examined the case and without the clerk's knowledge signed the same, making it appear that he was notified on that date, June 17, when he had known since April 28 of the judgment, of which the judge had verbally informed him, although the latter did not then have him sign it.

In reply to this motion of the provincial fiscal, the defense requested that the appeal filed be admitted and carried for ward, representing that, when the court verbally announced his decision to defendant's counsel, the judgment had not yet been entered, and therefore neither the defendant nor his counsel could be notified thereof in legal form until said date, June 17. Passing upon this motion on August 2, 1910, the court declared said appeal out of order and dismissed it; and furthermore, denied the petition for suspension of judgment, as said Judgment had become final. Thereupon, counsel for the defendant resorted to this court with a petition praying that a writ be issued directing said judge, Chanco, to admit the appeal and forward it, at the same time annulling all action taken for execution of the judgments rendered in the causes for murder and for lesiones. After consideration thereof, the Attorney-General on behalf of said judge and of the provincial fiscal, requested that this remedy be declared out of order, as the issuance of such a writ against the judge of the Court of First Instance of Ilocos Sur, and much more against the provincial fiscal, was not in accordance with law; but this court by order of November 15 saw fit to declare said remedy of mandamus to be in order and issued a written order directing the judge of the Court of First Instance to immediately admit the appeal filed in these two causes and to forward all the records to this higher court. At the same time he was instructed to refrain absolutely from executing said judgments or causing them to be executed while said appeals were pending, a prohibition that was extended to the provincial sheriff, his agents and representatives, until further order from this court. Upon notification of the foregoing and in compliance therewith, the judge by order of November 22 admitted the appeal filed by counsel for the defense both in the cause for murder and in that for lesiones. The question raised on the appeal filed in this case by counsel for the insane defendant, Baggay, jr., is solely whether he, notwithstanding that he was held exempt from criminal liability, has nevertheless incurred civil liability, with obligation to indemnify the heirs of the murdered woman and to pay the costs. Article 17 of the Penal Code states:
"Every person criminally liable for a crime or misdemeanor is also civilly liable."

Article 18 of the same code says:

"The exemption from criminal liability declared in Nos. 1, 2, 3, 7, and 10 of article 8 does not include exemption from civil liability, which shall be enforced, subject to the following: "(1)In cases 1, 2, and 3, the persons who are civilly liable for acts committed by a lunatic or imbecile, or a person under 9 years of age, or over this age and under 15, who has not acted with the exercise of judgment, are those who have them under their authority, legal guardianship or power, unless they prove that there was no blame or negligence on their part.

"Should there be no person having them under his authority, legal guardianship, or power, or if such person be insolvent, the said lunatics, imbeciles, or minors shall answer with their own property, excepting that part which is exempted for their support in accordance with the civil law."

True it is that civil liability accompanies criminal-liability, because every person liable criminally for a crime or misdemeanor is also liable for reparation of damage and for indemnification of the harm done, but there may be civil liability because of acts ordinarily punishable, although the law has declared their perpetrators exempt from criminal liability. Such is the case of a lunatic or insane person who, in spite of his irresponsibility on account of the deplorable condition of his deranged mind, is still reasonably and justly liable with his property for the consequences of his acts, even though they be performed unwittingly, for the reason that his fellows ought not to suffer from the disastrous results of his harmful acts more than is necessary, in spite of his unfortunate condition. Law and society are under obligation to protect him during his illness and so when he is declared to be liable with his property for reparation and indemnification, he is still entitled to the benefit of what is necessary for his decent maintenance, but this protection does not exclude liability for damage caused to those who may have the misfortune to suffer the consequences of his acts. According to the law, the persons in the first place liable. are those who have the insane party under their care or guardianship, unless they prove that there was no blame or negligence on their part; but if the demented person or imbecile lack a guardian or some person charged with his care, or if the latter be insolvent, then his own property must meet the civil liability of indemnifying or repairing the damage done, and for this reason judges and courts in rendering judgment in a criminal cause prosecuted against an insane or demented person, even when they hold the accused exempt from criminal liability, must fix the civil liability of the persons charged with watching over and caring for him or the liability of the demented person himself with his property for reparation of the damage and indemnification for the harm done, unless the offended party or the heirs of the person murdered expressly renounce such reparation or indemnification. Therefore, the judgment appealed from being in accordance with law, affirmation thereof is proper, and it is hereby affirmed, with costs against the appellant. Mapa, Johnson, Carson and Moreland, JJ., concur.

FIRST DIVISION
[G.R. No. 75364. November 23, 1988.]

SECOND DIVISION
[G.R. No. 73998. November 14, 1988.] PEDRO T. LAYUGAN, petitioner, vs. INTERMEDIATE APPELLATE COURT, GODOFREDO ISIDRO, and TRAVELLERS MULTI-INDEMNITY CORPORATION, respondents. Edralin S. Mateo for petitioner. Orlando L. Espinas for respondent Travellers Multi-Indemnity Corp. Roberto T . Vallarta for respondent Godofredo Isidro. SYLLABUS 1.REMEDIAL LAW; CIVIL PROCEDURE; APPEAL; FINDINGS OF FACT OF COURT OF APPEALS ARE ENTITLED TO GREAT RESPECT AND ORDINARILY NOT DISTURBED ON APPEAL. It is an elementary rule in the review of decisions of the Court of Appeals that its findings of fact are entitled to great respect and will not ordinarily be disturbed by this Court. For if we have to review every question of fact elevated to us, we would hardly have any more time left for the weightier issues compelling and deserving our preferential attention. 2.ID.; ID.; ID.; ID.; EXCEPTIONS. Surely there are established exceptions when the Court should review and rectify the findings of fact of the lower court, such as: 1) when the conclusion is a finding grounded entirely on speculation, surmise, or conjecture; 2) the inference made is manifestly mistaken; 3) there is grave abuse of discretion; 4) the judgment is based on misapprehension of facts; 5) the Court of Appeals went beyond the issues of the case if the findings are contrary to the admission of both the appellant and the appellee; 6) the findings of the Court of Appeals are contrary to those of the trial court; 7) the said findings of fact are conclusions without citation of specific evidence on which they are based; 8) the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; and 9) when the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted on record. 3.CIVIL LAW; CIVIL CODE; QUASI-DELICT; NEGLIGENCE; DEFINED. Negligence 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, 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." 4.ID.; ID.; ID.; ID.; TEST TO DETERMINE EXISTENCE. In Picart vs. Smith, decided more than seventy years ago but still a sound rule, we held: 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. 5.ID.; ID.; ID.; ID.; DOCTRINE OF RES IPSA LOQUITUR; EXPLAINED. The doctrine res ipsa loquitur is stated thus: "Where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care." (Cocley on Torts, Vol. 3, 369) 6.ID.; ID.; ID.; ID.; ID.; APPLICATION. The doctrine of res ipsa loquitur as a rule of evidence is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. The doctrine is not a rule of substantive law but merely a mode of proof or a mere procedural convenience. The rule, when applicable to the facts and circumstances of a particular case, is not intended to and does not dispense with the requirement of proof of culpable negligence on the part of the party charged. It merely determines and regulates what shall be prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of due care. The doctrine can be invoked when and only when, under the circumstances involved, direct evidence is absent and not readily available. 7.ID.; ID.; ID.; ID.; DOCTRINE IS INAPPLICABLE WHERE THE ACTUAL CAUSE OF INJURY IS ESTABLISHED BEYOND CONTROVERSY. It has generally been held that the presumption of inference arising from the doctrine cannot be availed of, or is overcome, where plaintiff has knowledge and testifies or presents evidence as to the specific act of negligence which is the cause of the injury complained of or where there is direct evidence as to the precise cause of the accident and all the facts and circumstances attendant on the occurrence clearly appear. Finally, once the actual cause of injury is

established beyond controversy, whether by the plaintiff or by the defendant, no presumptions will be involved and the doctrine becomes inapplicable when the circumstances have been so completely eludicated that no inference of defendant's liability can reasonably be made, whatever the source of the evidence, as in this case. 8.ID.; ID.; ID.; ID.; DOCTRINE OF RESPONDENT SUPERIOR; MASTER OR EMPLOYER IS PRESUMED NEGLIGENT; PRESUMPTION IS OVERCOME OF A GOOD FATHER OF THE FAMILY. The private respondent is sued under Art. 2176 in relation to Art. 2180, paragraph 5, of the Civil Code. In the latter, when an injury is caused by the negligence of a servant or employee there instantly arises a presumption of law that there was negligence on the part of the master or employer either in the selection of the servant or employee, or in supervision over him after selection, or both. Such presumption is juris tantum and not juris et de jure and consequently, may be rebutted. If follows necessarily that if the employer shows to the satisfaction of the court that in the selection and in the supervision he has exercised the care and diligence of a good father of a family, the presumption is overcome and he is relieved from liability.

DECISION

SARMIENTO, J :
p

Assailed in this petition for review on certiorari are 1) the decision 1 of the then Intermediate Appellate Court 2 in AC-G.R. CV No. 01055, entitled "Pedro T. Layugan, Plaintiff-Appellee, versus Godofredo Isidro, Defendant-Appellant and Third-Party Plaintiff-Appellee, versus Travellers Multi-Indemnity Corporation, Third Party Defendant-Appellant, "which reversed and set aside the decision 3 of the Regional Trial Court, Third Judicial Region, Branch XXVI, Cabanatuan City, and also dismissed the complaint, third party complaint, and the counter claims of the parties and 2) the resolution 4 denying the plaintiff-appellee's (herein petitioner) motion for reconsideration, for lack of merit. The findings of fact by the trial court which were adopted by the appellate court are as follows: 5
xxx xxx xxx "Pedro T. Layugan filed an action for damages against Godofredo Isidro, alleging that on May 15, 1979 while at Baretbet, Bagabag, Nueva Vizcaya, the Plaintiff and a companion were repairing the tire of their cargo truck with Plate No. SU-730 which was parked along the right side of the National Highway; that defendant's truck bearing Plate No. PW-583, driven recklessly by Daniel

Serrano bumped the plaintiff; that as a result, plaintiff was injured and hospitalized at Dr. Paulino J. Garcia Research and Medical Center and the Our Lady of Lourdes Hospital; that he spent TEN THOUSAND PESOS (P10,000.00) and will incur more expenses as he recuperates from said injuries; that because of said injuries he would be deprived of a lifetime income in the sum of SEVENTY THOUSAND PESOS (P70,000.00); and that he agreed to pay his lawyer the sum of TEN THOUSAND PESOS (P10,000.00). As prayed for by the plaintiffs counsel, the Court declared the defendant in default on October 12, 1979, and plaintiffs evidence was received ex-parte on January 11, 1978 and February 19, 1980. The decision on behalf of the plaintiff was set aside to give a chance to the defendant to file his answer and later on, a third-party complaint.
prcd

Defendant admitted his ownership of the vehicle involved in the accident driven by Daniel Serrano. Defendant countered that the plaintiff was merely a bystander, not a truck helper being a brother-in-law of the driver of said truck; that the truck allegedly being repaired was parked, occupying almost half of the light lane towards Solano, Nueva Vizcaya, light after the curve; that the proximate cause of the incident was the failure of the driver of the parked truck in installing the early warning device, hence the driver of the parked car should be liable for damages sustained by the truck of the herein defendant in the amount of more than P20,000.00; that plaintiff being a mere bystander and hitchhiker must suffer all the damages he incurred. By way of counterclaim defendant alleged that due to plaintiffs baseless complaint he was constrained to engage the services of counsel for P5,000.00 and P200.00 per court appearance; that he suffered sleepless nights, humiliation, wounded feelings which may be estimated at P30.000.00. On May 29, 1981, a third-party complaint was filed by the defendant against his insurer, the Travellers Multi Indemnity Corporation; that the third-party plaintiff, without admitting his liability to the plaintiff, claimed that the thirdparty defendant is liable to the former for contribution, indemnity and subrogation by virtue of their contract under Insurance Policy No. 11723 which covers the insurer's liability for damages arising from death, bodily injuries and damage to property.

Third-party defendant answered that, even assuming that the subject matter of the complaint is covered by a valid and existing insurance policy, its liability shall in no case exceed the limit defined under the terms and conditions stated therein; that the complaint is premature as no claim has been submitted to the third party defendant as prescribed under the Insurance Code; that the accident in question was approximately caused by the carelessness and gross negligence

of the plaintiff; that by reason of the third-party complaint, third-party defendant was constrained to engage the services of counsel for a fee of P3,000.00.
LexLib

Pedro Layugan declared that he is a married man with one (1) child. He was employed as security guard in Mandaluyong, Metro Manila, with a salary of SIX HUNDRED PESOS (600.00) a month. When he is off-duty, he worked as a truck helper and while working as such, he sustained injuries as a result of the bumping of the cargo truck they were repairing at Baretbet, Bagabag, Nueva Vizcaya by the driver of the defendant. He used to earn TWO HUNDRED PESOS (P200.00) to THREE HUNDRED PESOS (P300.00) monthly, at the rate of ONE HUNDRED PESOS (P100.00) per trip. Due to said injuries, his left leg was amputated so he had to use crutches to walk. Prior to the incident, he supported his family sufficiently, but after getting injured, his family is now being supported by his parents and brother. GODOFREDO ISIDRO, defendant/third-party plaintiff, testified that his truck involved in this vehicular accident is insured with the Travellers Multi Indemnity Corporation covering own damage and third-party liability, under vehicle policy No. 11723 (Exh. `1') dated May 30, 1978; that after he filed the insurance claim the insurance company paid him the sum of P18,000.00 for the damages sustained by this truck but not the third party liability. DANIEL SERRANO, defendant driver, declared that he gave a statement before the municipal police of Bagabag, Nueva Vizcaya on May 16, 1979; that he knew the responsibilities of s driver; that before leaving, he checked the truck. The truck owner used to instruct him to be careful in driving. He bumped the truck being repaired by Pedro Layugan, plaintiff, while the same was at a stop position. From the evidence presented, it has been established clearly that the injuries sustained by the plaintiff was caused by defendant's driver, Daniel Serrano. The police report confirmed the allegation of the plaintiff and admitted by Daniel Serrano on cross-examination. The collision dislodged the jack from the parked truck and pinned the plaintiff to the ground. As a result thereof, plaintiff sustained injuries on his left forearm and left foot. The left leg of the plaintiff from below the knee was later on amputated (Exh. 'C') when gangrene had set in, thereby rendering him incapacitated for work depriving him of his income." (pp. 118 to 120, Record on Appeal.) xxx xxx xxx

Upon such findings, amply supported by the evidence on record, the trial court rendered its decision, the dispositive part of which reads as follows: 6
WHEREFORE, premises considered, the defendant is hereby ordered:

a)To pay the plaintiff SEVENTY THOUSAND (P70,000.00) PESOS actual and compensatory damages; b)TWO THOUSAND (P2,000.00) PESOS for attorney's fees; c)FIVE THOUSAND (P5,000.00) PESOS for moral damages; and d)To pay the costs of this suit. On the third-party complaint, the third-party defendant is ordered to indemnify the defendant/third party plaintiff: a)The sum of FIFTY THOUSAND (P50,000.00) PESOS for actual and compensatory damages; and b)The costs of this suit.

The Intermediate Appellate Court as earlier stated reversed the decision of the trial court and dismissed the complaint, the third-party complaint, and the counter-claims of both appellants. 7 Hence, this petition. The petitioner alleges the following errors. 8
1.WHETHER UPON THE GIVEN FACTS, THE INTERMEDIATE APPELLATE COURT ACTED CORRECTLY IN REVERSING AND SETTING ASIDE AND DISMISSING THE PLAINTIFF-APPELLEE'S COMPLAINT. 2.WHETHER THE INTERMEDIATE APPELLATE COURT ACTED CORRECTLY IN APPLYING THE DOCTRINE OF "RES IPSA LOQUITUR" WITH PROPER JURIS-PRUDENTIAL (sic) BASIS.

The crux of the controversy lies in the correctness or error of the decision of the respondent court finding the petitioner negligent under the doctrine of Res ipsa loquitur (The thing speaks for itself). Corollary thereto, is the question as to who is negligent, if the doctrine is inapplicable. The respondent corporation stresses that the issues raised in the petition being factual, the same is not reviewable by this Court in a petition for review by certiorari. 9 Indeed, it is an elementary rule in the review of decisions of the Court of Appeals that its findings of fact are entitled to great respect and will not ordinarily be disturbed by this Court. 10 For if we have to review every question of fact elevated to us, we would hardly

have any more time left for the weightier issues compelling and deserving our preferential attention. 11 Be that as it may, this rule is not inflexible. Surely there are established exceptions 12 when the Court should review and rectify the findings of fact of the lower court, such as: 1)when the conclusion is a finding grounded entirely on speculation, surmise, or conjecture; 2) the inference made is manifestly mistaken; 3) there is grave abuse of discretion; 4) the judgment is based on misapprehension of facts; 5) the Court of Appeals went beyond the issues of the case if the findings are contrary to the admission of both the appellant and the appellee; 6) the findings of the Court of Appeals are contrary to those of the trial court; 7) the said findings of fact are conclusions without citation of specific evidence on which they are based; 8) the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; and 9) when the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted on record. Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case to warrant a deviation from the general rule. From its finding that the parked truck was loaded with ten (10) big round logs, 13 the Court of Appeals inferred that because of its weight the truck could not have been driven to the shoulder of the road and concluded that the same was parked on a portion of the road 14 at the time of the accident. Consequently, the respondent court inferred that the mishap was due to the negligence of the driver of the parked truck.15 The inference or conclusion is manifestly erroneous. In a large measure, it is grounded on speculation, surmise, or conjecture. How the respondent court could have reversed the finding of the trial court that a warning device was installed 16 escapes us because it is evident from the record that really such a device, in the form of a lighted kerosene lamp, was installed by the driver of the parked truck three to four meters from the rear of his parked truck. 17 We see this negative finding of the respondent appellate court as a misreading of the facts and the evidence on record and directly contravening the positive finding of the trial court that an early warning device was in proper place when the accident happened and that the driver of the private respondent was the one negligent. On the other hand, the respondent court, in refusing to give its "imprimatur to the trial court's finding and conclusion that Daniel Serrano (private respondent Isidro's driver) was negligent in driving the truck that bumped the parked truck", did not cite specific evidence to support its conclusion. In cavalier fashion, it simply and nebulously adverted to unspecified "scanty evidence on record." 18 On the technical aspect of the case, the respondent corporation would want us to dismiss this petition on the ground that it was filed out of time. It must be noted that there was a motion for extension, 19 albeit filed erroneously with the respondent court, dated March 19, 1986, requesting for 30 days from March 20, 1986, to file the necessary petition or

pleading before the Supreme Court". Also, on April 1, 1986, an appearance of a new lawyer for the petitioner before the Supreme Court" with motion 20 was filed, again erroneously, with the Court of Appeals, requesting for 20 days extension "to file the Petition for Review on Certiorari." Likewise a similar motion 21 was filed with this Court also on April 1, 1986. On the other hand, the instant petition for review was filed on April 17, 1986 22 but it was only after three months, on August i, 1986, in its comment, 23 that the respondent corporation raised the issue of tardiness. The respondent corporation should not have waited in ambush before the comment was required and before due course was given. In any event, to exact its "a pound of flesh", so to speak, at this very late stage, would cause a grave miscarriage of justice. Parenthetically, it must be noted that private respondent Isidro did not raise this issue of late filing. We now come to the merits of this petition. The question before us is who was negligent? Negligence 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, 24 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." 25 In Picart vs. Smith, 26 decided more than seventy years ago but still a sound rule, we held:
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.

Respondent Isidro posits that any immobile object along the highway, like a parked truck, poses serious danger to a moving vehicle which has the right to be on the highway. He argues that since the parked cargo truck in this case was a threat to life and limb and property, it was incumbent upon the driver as well as the petitioner, who claims to be a helper of the truck driver, to exercise extreme care so that the motorist negotiating the road would be properly forewarned of the peril of a parked vehicle. Isidro submits that

the burden of proving that care and diligence were observed is shifted to the petitioner, for, as previously claimed, his (Isidro's) Isuzu truck had a right to be on the road, while the immobile cargo truck had no business, so to speak, to be there. Likewise, Isidro proffers that the petitioner must show to the satisfaction of a reasonable mind that the driver and he (petitioner) himself, provided an early warning device, like that required by law, or, by some other adequate means that would properly forewarn vehicles of the impending danger that the parked vehicle posed considering the time, place, and other peculiar circumstances of the occasion. Absent such proof of care, as in the case at bar, Isidro concludes, would, under the doctrine of Res ipsa loquitur, evoke the presumption of negligence on the part of the driver of the parked cargo truck as well as his helper, the petitioner herein, who was fixing the flat tire of the said truck. 27 Respondent Isidro's contention is untenable. The evidence on record discloses that three or four meters from the rear of the parked truck, a lighted kerosene lamp was placed. 28 Moreover, there is the admission of respondent Isidro's driver, Daniel Serrano, to wit: 29
"Question No. 8 (by Patrolman Josefino Velasco) Will you narrate to me in brief how the accident happens (sic) if you can still remember? Answer:(by Daniel Serrano) That on or about 10:40 p.m., 15 May 1979 while driving Isuzu truck at Baretbet, Bagabag, Nueva Vizcaya and at KM 285, I met another vehicle who (sic) did not dim his (sic) lights which cause (sic) me to be blinded with intense glare of the light that's why I did not notice a parked truck who (sic) was repairing a front flat tire. When I was a few meters away, I saw the truck which was loaded with round logs. I step (sic) on my foot brakes but it did not function with my many attempts. I have (sic) found out later that the fluid pipe on the rear right was cut that's why the breaks did not function." (Emphasis supplied).

Whether the cargo truck was parked along the road or on half the shoulder of the right side of the road would be of no moment taking into account the warning device consisting of the lighted kerosene lamp placed three or four meters from the back of the truck. 30 But despite this warning which we rule as sufficient, the Isuzu truck driven by Daniel Serrano, an employee of the private respondent, still bumped the rear of the parked cargo truck. As a direct consequence of such accident the petitioner sustained injuries on his left forearm and left foot. His left leg was later amputated from below the knee when gangrene had set in. 31 It is clear from the foregoing disquisition that the absence or want of care of Daniel Serrano has been established by clear and convincing evidence. It follows that in

stamping its imprimatur upon the invocation by respondent Isidro of the doctrine of Res ipsa loquitur to escape liability for the negligence of his employee, the respondent court committed reversible error. The respondent court ruled: 32
xxx xxx xxx In addition to this, we agree with the following arguments of appellant Godofredo Isidro which would show that the accident was caused due to the negligence of the driver of the cargo truck: xxx xxx xxx ". . . In the case at bar the burden of proving that care and diligence was (sic) observed is shifted evidently to the plaintiff, for, as adverted to, the motorists have the right to be on the road, while the immobile truck has no business, so to speak, to be there. It is thus for the plaintiff to show to the satisfaction of a reasonable mind that the driver and he himself did employ early warning device such as that required by law or by some other adequate means or device that would properly forewarn vehicles of the impending danger that the parked vehicle posed considering the time, place and other peculiar circumstances of the occasion. Absent such proof of care, as in the case at bar, will evoke the presumption of negligence under the doctrine of res ipsa loquitur, on the part of the driver of the parked cargo truck as well as plaintiff who was fixing the flat tire of said truck. (pp. 14-17, Appellant's Brief)." (Emphasis supplied).

At this juncture, it may be enlightening and helpful in the proper resolution of the issue of negligence to examine the doctrine of Res ipsa loquitur. This doctrine is stated thus: "Where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management usde proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care." 33 Or as Black's Law Dictionary 34 puts it:
Res ipsa loquitur. The thing speaks for itself Rebuttable presumption or inference that defendant was negligent, which arises upon proof that instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinarily does not happen in absence of negligence. Res ipsa loquitur is rule of evidence whereby negligence of alleged wrongdoer may be inferred from mere fact that accident happened provided character of accident and circumstances attending it lead reasonably to belief that in absence of negligence it would not have occurred and that thing which caused injury is shown to have been under management and control of alleged wrongdoer.

Hillen v. Hooker Const. Co., Tex. Civ. App., 484 S.W. 2d 133, 155. Under doctrine of "res ipsa loquitur" the happening of an injury permits an inference of negligence where plaintiff produces substantial evidence that injury was caused by an agency or instrumentality under exclusive control and management of defendant, and that the occurrence was such that in the ordinary course of things would not happen if reasonable care had been used.

In this jurisdiction we have applied this doctrine in quite a number of cases, notably in Africa et al. vs. Caltex, Inc., et al., 35 and the latest is in the case of F.F. Cruz and Co., Inc. vs. C A . 36 The doctrine of Res ipsa loquitur as a rule of evidence is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. 37 The doctrine is not a rule of substantive law 38 but merely a mode of proof or a mere procedural convenience. 39 The rule, when applicable to the facts and circumstances of a particular case, is not intended to and does not dispense with the requirement of proof of culpable negligence on the part of the party charged. 40 It merely determines and regulates what shall be prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of due care. 41 The doctrine can be invoked when and only when, under the circumstances involved, direct evidence is absent and not readily available. 42 Hence, it has generally been held that the presumption of inference arising from the doctrine cannot be availed of, or is overcome, where plaintiff has knowledge and testifies or presents evidence as to the specific act of negligence which is the cause of the injury complained of or where there is direct evidence as to the precise cause of the accident and all the facts and circumstances attendant on the occurrence clearly appear. 43 Finally, once the actual cause of injury is established beyond controversy, whether by the plaintiff or by the defendant, no presumptions will be involved and the doctrine becomes inapplicable when the circumstances have been so completely eludicated that no inference of defendant's liability can reasonably be made, whatever the source of the evidence, 44 as in this case. The private respondent is sued under Art. 2176 in relation to Art. 2180, paragraph 5, of the Civil Code. In the latter, when an injury is caused by the negligence of a servant or employee there instantly arises a presumption of law that there was negligence on the part of the master or employer either in the selection of the servant or employee, or in supervision over him after selection, or both. Such presumption is juris tantum and not juris et de jure and consequently, may be rebutted. If follows necessarily that if the employer shows to the satisfaction of the court that in the selection and in the supervision he has exercised the care and diligence of a good father of a family, the presumption is overcome and he is relieved from liability. 45 In disclaiming liability for the incident, the private respondent stresses that the negligence of his employee has already been adequately overcome by his driver's statement that he knew his responsibilities as a driver and that the truck owner used to instruct him to be careful in driving. 46

We do not agree with the private respondent in his submission. In the first place, It is clear that the driver did not know his responsibilities because he apparently did not check his vehicle before he took it on the road. If he did he could have discovered earlier that the brake fluid pipe on the right was cut, and could have repaired it and thus the accident could have been avoided. Moreover, to our mind, the fact that the private respondent used to instruct his driver to be careful in his driving, that the driver was licensed, and the fact that he had no record of any accident, as found by the respondent court, are not sufficient to destroy the finding of negligence of the Regional Trial Court given the facts established at the trial 47 The private respondent or his mechanic, who must be competent, should have conducted a thorough inspection of his vehicle before allowing his driver to drive it. In the light of the circumstances obtaining in the case, we hold that Isidro failed to prove the diligence of a good father of a family in the supervision of his employees which would exculpate him from solidary liability with his driver to the petitioner. But even if we concede that the diligence of a good father of a family was observed by Isidro in the supervision of his driver, there is not an iota of evidence on record of the observance by Isidro of the same quantum of diligence in the supervision of his mechanic, if any, who would be directly in charge in maintaining the road worthiness of his (Isidro's) truck. But that is not all. There is paucity of proof that Isidro exercised the diligence of a good father of a family in the selection of his driver, Daniel Serrano, as well as in the selection of his mechanic, if any, in order to insure the safe operation of his truck and thus prevent damage to others. Accordingly, the responsibility of Isidro as employer treated in Article 2180, paragraph 5, of the Civil Code has not ceased.
prLL

WHEREFORE, the petition is hereby GRANTED. The Decision of the respondent court as well as its Resolution denying the petitioner's motion for reconsideration are hereby SET ASIDE and the decision of the trial court, dated January 20, 1983, is hereby REINSTATED in toto. With costs against the private respondents. SO ORDERED. Melencio-Herrera, Paras and Padilla, JJ., concur.

FIRST DIVISION
[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. Luis C. A. Sillano for petitioners. Antonio H. Abad & Associates for respondents Doctors. Tanjuatco, Sta. Maria, Tanjuatco for respondent DLSMC. SYNOPSIS In the morning of June 17, 1985, Erlinda Ramos was brought into the operating room of the Delos Santos Medical Center for a cholecystectomy. She was then a robust woman, normal as any other except for occasional complaints of discomfort due to pains allegedly caused by the presence of stones in her gall bladder. At around 3:00 p.m. of that day, Erlinda was taken to the Intensive Care unit of the hospital, comatose. On January 8, 1986, Erlinda's husband filed a civil case for damages against said hospital and Drs. Orlino Hosaka and Perfecta Gutierrez. The Regional Trial Court ruled in favor of the plaintiffs. The Court of Appeals, however, reversed the decision of the lower court and ordered the dismissal of the complaint. Hence, this petition. The doctrine of res ipsa loquitur is 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. 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.
aACHDS

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 happen in the absence of negligence of someone in the administration of anesthesia and in the use of endotracheal tube. Moreover, 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. SYLLABUS 1.REMEDIAL LAW; CIVIL PROCEDURE; MOTION FOR RECONSIDERATION; NO DELAY OF FILING IN CASE AT BAR. 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 believe 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. 2.CIVIL LAW; DOCTRINE OF RES IPSA LOQUITUR; ELUCIDATED. 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 plaintiffs prima facie case, and present a question of fact for defendant to meet with an explanation. 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. 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. It is grounded in the superior logic of ordinary human experience and on the basis of such experience or common knowledge, negligence may be deduced from the mere occurrence of the accident itself. Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge. 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. Instead, it is considered as merely evidentiary or in the nature of a procedural rule. It is regarded as a mode of proof, or a mere procedural convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing specific proof of negligence. 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. 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. In the above requisites, the fundamental element is the "control of the

instrumentality" which caused the damage. Such element of control must be shown to be within the dominion of the 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.
TaHDAS

3.ID.; ID.; APPLICATION IN MEDICAL MALPRACTICE. Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when the circumstances attendant upon the harm are themselves of such a character as to justify an inference of negligence as the cause of that harm. The application of res ipsa loquitur in medical negligence cases presents a question of law since it is a judicial function to determine whether a certain set of circumstances does, as a matter of law, permit a given inference. Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him. Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth while a patient's jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient plaintiff was under the influence of

anesthetic, during or following an operation for appendicitis, among others. Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to the defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific treatment. The physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result. Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that the desired result of an operation or treatment was not accomplished. The real question, therefore, is whether or not in the process of the operation any extraordinary incident or unusual event outside of the routine performance occurred which is beyond the regular scope of customary professional activity in such operations, which, if unexplained would themselves reasonably speak to the average man as the negligent cause or causes of the untoward consequence. If there was such extraneous 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.

4.ID.; ID.; APPLICABLE IN CASE AT BAR. We find the doctrine of res ipsa loquitur appropriate in the case at bar. . . . 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 happen 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.
CaTSEA

5.ID.; ID.; CONTRIBUTORY NEGLIGENCE. 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 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 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. 6.REMEDIAL LAW; EVIDENCE; WITNESS; COMPETENCE; UPHELD IN CASE AT BAR. 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. 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. 7.ID.; ID.; RULES OF ADMISSIBILITY; TESTIMONIAL EVIDENCE; OPINION OF EXPERT WITNESS; NOT ADMITTED IN CASE AT BAR. The provision in the rules of evidence 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. Clearly, 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. 8.CIVIL LAW; DAMAGES; EXCEPTIONAL NEGLIGENCE AND PROFESSIONAL IRRESPONSIBILITY IN THE MEDICAL FIELD IN CASE AT BAR. 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. 9.ID.; ID.; ID. As the so-called "captain of the ship," it is the surgeon's responsibility to see to it that those under him perform their task in the proper manner. 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 escape us that respondent Dr. Hosaka had scheduled another procedure in a different hospital at the same time as Erlinda's 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 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. 10.ID.; TORTS; PROXIMATE CAUSE; ELUCIDATED. 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. 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. 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. 11ID.; EXTRA-CONTRACTUAL OBLIGATIONS; QUASI-DELICTS; EMPLOYEREMPLOYEE RELATIONSHIP EXISTS BETWEEN HOSPITALS AND CONSULTANTS FOR THE PURPOSE OF ALLOCATING RESPONSIBILITY IN MEDICAL NEGLIGENCE CASES. Hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work within the hospital premises. Doctors who apply for "consultant" slots, visiting or attending, are required to submit proof of completion of residency, their educational qualifications; generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references. These requirements are carefully scrutinized by members of the hospital administration or by a review committee set up by the hospital who either accept or reject the application. This is particularly true with respondent hospital. After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend 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, a point which respondent hospital asserts in denying all

responsibility for the patient's condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians.
DCTSEA

12.ID.; ID.; ID.; EMPLOYERS LIABLE FOR THE DAMAGES CAUSED BY THEIR EMPLOYEES. The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of others based on the former's responsibility under a relationship of patria potestas. 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. In other words, while the burden of proving negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents (parent, guardian, teacher or employer) who should prove that they observed the diligence of a good father of a family to prevent damage. In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent physicians, failed to adduce evidence showing that it exercised the diligence of a good father of a family in the hiring and supervision of the latter. It failed to adduce evidence with regard to the degree of supervision which it exercised over its physicians. In neglecting to offer such proof, or proof of a similar nature, respondent hospital thereby failed to discharge its burden under the last paragraph of Article 2180. Having failed to do this, respondent hospital is consequently solidarily responsible with its physicians for Erlinda's condition. 13.ID.; DAMAGES; ACTUAL AND TEMPERATE DAMAGES; PROPER IN CASE AT BAR. 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 bankruptcy. However, the provisions of the Civil Code on actual or compensatory damages present us with some difficulties. 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. 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 homebased nursing care for a comatose patient who has remained in that condition for over a decade. Having premised our award for compensatory damages on the amount provided by petitioners at the onset of litigation, it would be now much more in step with the interests of justice if the value awarded for temperate damages would allow petitioners to provide optimal care for their loved one in a facility which generally specializes in such care. They should not be compelled by dire circumstances to provide substandard care at home without the aid of professionals, for anything less would be grossly inadequate.

14.ID.; ID.; PROPER MORAL DAMAGES. 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 that 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. 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. 15.ID.; ID.; EXEMPLARY DAMAGES AND ATTORNEY'S FEES. 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. Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not insurers of life and, they rarely set out to intentionally cause injury or death to their patients. However, intent is immaterial in negligence cases because where negligence exists and is proven, the

same automatically gives the injured a right to reparation for the damage caused. 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.
TCacIA

DECISION

KAPUNAN, J :
p

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.
cdrep

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, 2223, 31-33; TSN, February 27, 1990, p. 13; and TSN, November 9, 1989, pp. 34, 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 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).
prLL

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 damage 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.
cdphil

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

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. 9 Meanwhile, 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 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.

cdphil

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 appellate court was furnished to 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 believe 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 loquitur to the instant case. Thereafter, the first two assigned errors shall be tackled in relation to the res ipsa loquitur doctrine. 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, 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 the res ipsa loquitur is not a ruled 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, of a mere procedural 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 the instrumentality" which caused the damage. 22 Such 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 been 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. 40 The real question, therefore, is whether or not in the process of the operation any extraordinary incident or unusual event outside of the routine performance occurred which is beyond the regular scope of customary professional activity in such operations, which, if unexplained would themselves reasonably speak to the average man as the negligent cause or causes of the untoward consequence. 41 If there was such extraneous interventions, the doctrine or 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 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.
LLjur

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 happen 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 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 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 shortacting 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:
cdasia

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 I have said, I was with the patient, I was beside the stretcher holding the left hand of the patient and all of a sudden I heard some remarks coming from Dra. Perfecta Gutierrez herself. She was saying "Ang hirap maintubate 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 as 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 of 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. 50 Reviewing 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:
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.
cdphil

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. 56 Thus, 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 preoperative 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 make a proper assessment, including the time to be at the patient's bedside 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:
dctai

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

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:
SECTION 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. 63 Clearly, 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, allergicmediated 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 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 way into the proper orifice of the trachea, the same gave no guarantee of oxygen delivery, the hallmark of a successful 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 was successfully inserted during the second attempt, it, was obviously too late. As aptly explained by the trial court, Erlinda already suffered brain damage as a result of the inadequate oxygenation of her brain for about four to five minutes. 68 The above conclusion is not without basis. Scientific studies point out that intubation problems are responsible for one-third (1/3) of deaths and serious injuries associated with anesthesia. 69 Nevertheless, ninety-eight percent (98%) or the vast majority of 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 unfortunate incident. Had appropriate diligence and reasonable care been used in the pre-operative evaluation, respondent physician could have been much more prepared to meet the contingency brought about by the perceived anatomic variations in the patient's neck and oral area, defects which would have been easily overcome by a prior knowledge of those variations together with a change in technique. 71 In other words, an experienced anesthesiologist, adequately alerted by a thorough pre-operative evaluation, would have had little difficulty going around the short neck and protruding teeth. 72 Having failed to observe common medical standards in pre-operative management and intubation, respondent Dra. Gutierrez' negligence resulted in cerebral anoxia and eventual coma of Erlinda.
cda

We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical team. As the so-called "captain 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. 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 escape us that respondent Dr. Hosaka had scheduled another procedure in a different hospital at the same time as Erlinda's 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 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. 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," 74 who are allegedly not hospital employees, presents problems in apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is only 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. 75 This is particularly true with respondent hospital. After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend 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, a point which respondent hospital asserts in denying all responsibility for the patient's condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. This being the case, the question now arises as to whether or not respondent hospital is solidarily liable with respondent doctors for petitioner's condition. 76

The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of others based on the former's responsibility under a relationship of patria potestas. 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 proving negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents (parent, guardian, teacher or employer) who should prove that they observed the diligence of a good father of a family to prevent damage. In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent physicians, failed to adduce evidence showing that it exercised the diligence of a good father of a family in the hiring and supervision of the latter. It failed to adduce evidence with regard to the degree of supervision which it exercised over its physicians. In neglecting to offer such proof, or proof of a similar nature, respondent hospital thereby failed to discharge its burden under the last paragraph of Article 2180. Having failed to do this, respondent hospital is consequently solidarily responsible with its physicians for Erlinda's condition. 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 negligence. Upon these disquisitions we hold that private respondents are solidarily liable for damages under Article 2176 79 of the Civil Code. We now come to the amount of damages due petitioners. The trial court awarded a total of P632,000.00 pesos (should be P616,000.00) in compensatory damages to the plaintiff, "subject to its being updated" covering the period from 15 November 1985 up to 15 April 1992, based on monthly expenses for the care of the patient estimated at P8,000.00. 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 looking at the actual cost of proper hospice care for the patient. What it reflected were the actual expenses incurred and proved by the petitioners after they were forced to bring home the patient to avoid mounting hospital bills. 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 instance, Erlinda has to be constantly turned from side to side to prevent bedsores and hypostatic pneumonia. Feeding is done by nasogastric tube. Food preparation should be normally made by a dietitian to provide her with the correct daily caloric requirements and vitamin

supplements. Furthermore, she has to be seen on a regular basis by a physical therapist to avoid muscle atrophy, and by a pulmonary therapist to prevent the accumulation of secretions which can lead to respiratory complications. 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 bankruptcy. However, the provisions of the Civil Code on actual or compensatory damages present us with some difficulties. 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:
ARTICLE 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.

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.
LexLib

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 In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation where the injury suffered by the plaintiff would have led to expenses which were difficult to estimate because while they would have been a direct result of the injury (amputation), and were certain to be incurred by the plaintiff, they were likely to arise only in the future. We awarded 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 her 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. 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. 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.
cdrep

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. Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not insurers of life and, they rarely set out to intentionally cause injury or death to their patients. However, intent is immaterial in negligence cases because where negligence exists and is proven, the same automatically gives the injured a right to reparation for the damage caused. 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.
llcd

Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.

FIRST DIVISION
[G.R. No. 124354. April 11, 2002.] ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the minors, ROMMEL RAMOS, ROY RODERICK RAMOS, and RON RAYMOND RAMOS, petitioners, vs. COURT OF APPEALS, DE LOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DR. PERFECTA GUTIERREZ, respondents. Luis C.A. Sillano for petitioners. Walter Young & Associates for Movant-Intervenors. Brian Keith F. Hosaka, Miguelito Ocampo, Emmanuel Ypil, & Ret. Justice Hector Hofilena for respondent Dr. O. Hosaka. Macarius Gaslutera & Philip De Clara and Tanjuatco Sta. Maria Tanjuatco for respondent Delos Santos Medical Center. Antonio H. Abad & Associates for respondents-doctors. Gana Law Offices collaborating counsel for respondent Dra. Perfecta Gutierrez.

SYNOPSIS Petitioners Rogelio Ramos and Erlinda Ramos filed with the Regional Trial Court of Quezon City a civil case for damages against private respondents De los Santos Medical Center (DLSMC), Dr. Orlino Hosaka and Dr. Perfecta Gutierrez. 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 petitioner Erlinda Ramos. On appeal by private respondents, the Court of Appeals reversed the trial court's decision and directed petitioners to pay their "unpaid medical bills" to private respondents. Petitioners filed with the Court a petition for review on certiorari. The Court held private respondents civilly liable for petitioner Erlinda Ramos' comatose condition after she delivered herself to them for their professional care and management. Hence, the present motion for reconsideration. Subsequent to the promulgation of the Decision, the Court was informed by petitioner Rogelio Ramos that petitioner Erlinda died on August 3, 1999.
aIcSED

The Supreme Court found no sufficient reason to modify its ruling holding private respondents Dr. Orlino Hosaka and Dr. Perfecta Reyes civilly liable for the comatose condition of petitioner Erlinda Ramos. According to the Court, the injury incurred by Erlinda does not normally happen absent any negligence in the administration of anesthesia and in the use of an endotracheal tube. The Court ruled that although there is indeed a trend in American jurisprudence to do away with the Captain-of-the-Ship doctrine, it 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 by Dr. Gutierrez. The Court, however, absolved respondent Delos Santos Medical Center from liability. According to the Court, 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. The contract between the consultant in respondent hospital and his patient is separate and distinct from the contract between respondent hospital and said patient. The first has for its object the rendition of medical services by the consultant to the patient, while the second concerns the provision by the hospital of facilities and services by its staff such as nurses and laboratory personnel necessary for the proper treatment of the patient. Further, no evidence was adduced to show that the injury suffered by petitioner Erlinda was due to a failure on the part of respondent DLSMC to provide for hospital facilities and staff necessary for her treatment. SYLLABUS

1.CIVIL LAW; DAMAGES; MEDICAL NEGLIGENCE; DOCTRINE OF RES IPSA LOQUITOR; APPLICABLE IN CASE AT BAR; INJURY INCURRED BY DECEASE PATIENT DOES NOT NORMALLY HAPPEN ABSENT ANY NEGLIGENCE IN THE ADMINISTRATION OF ANESTHESIA AND IN THE USE OF AN ENDOTRACHEAL TUBE. 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. In Voss vs. Bridwell, 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 ipso 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." Considering the application of the doctrine of res ipsa loquitur, the testimony of Cruz was properly given credence in the case at bar. 2.ID.; ID.; ID.; DUE REGARD FOR THE PECULIAR FACTUAL CIRCUMSTANCES OBTAINING IN CASE AT BAR JUSTIFY THE APPLICATION OF THE "CAPTAINOF-THE-SHIP-DOCTRINE"; IT CAN BE LOGICALLY INFERRED FROM THE FACTS ON RECORD THAT RESPONDENT SURGEON EXERCISED A CERTAIN DEGREE, AT THE VERY LEAST, SUPERVISION OVER PROCEDURE THEN BEING PERFORMED ON THE PATIENT. 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. 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. 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. 3.ID.; ID.; ID.; WHILE THE SURGEON AND THE ANESTHESIOLOGIST 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. 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 call the attention of the surgeon whenever necessary 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.
CIAcSa

4.ID.; ID.; ID.; THE SURGEON'S IRRESPONSIBLE CONDUCT OF ARRIVING VERY LATE FOR THE SCHEDULED OPERATION IS VIOLATIVE NOT ONLY OF HIS DUTY AS PHYSICIAN 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. 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. The unreasonable delay in petitioner Erlinda's scheduled operation subjected her to continued starvation and consequently, to the risk of acidosis, or the condition of decreased alkalinity of the blood and tissues, marked by sickly sweet breath, headache, nausea and vomiting, and visual disturbances. 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. 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: 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," 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.

5.ID.; ID.; ID.; NO EMPLOYER-EMPLOYEE RELATIONSHIP EXISTS BETWEEN THE HOSPITAL AND THE TWO PHYSICIANS IN CASE AT BAR WHICH WOULD HOLD THE FORMER SOLIDARILY LIABLE FOR THE INJURY SUFFERED BY THE PATIENT UNDER ARTICLE 2180 OF THE CIVIL CODE. There is no employer-employee relationship between DLSMC and Drs. Gutierrez and Hosaka which would hold DLSMC solidarily liable for the injury suffered by petitioner Erlinda under Article 2180 of the Civil Code. As explained by respondent hospital, that the admission of a physician to membership in DLSMC's medical staff as active or visiting consultant is first decided upon by the Credentials Committee thereof, which is composed of the heads of the various specialty departments such as the Department of Obstetrics and Gynecology, Pediatrics, Surgery with the department head of the particular specialty applied for as chairman. The Credentials Committee then recommends to DLSMC's Medical Director or Hospital Administrator the acceptance or rejection of the applicant physician, and said director or administrator validates the committee's recommendation. Similarly, in cases where a disciplinary action is lodged against a consultant, the same is initiated by the department to whom the consultant concerned belongs and filed with the Ethics Committee consisting of the department specialty heads. The medical director/hospital administrator merely acts as ex-oficio member of said committee. Neither is there any showing that it is DLSMC which pays any of its consultants for medical services rendered by the latter to their respective patients. Moreover, the contract between the consultant in respondent hospital and his patient is separate and distinct from the contract between respondent hospital and said patient. The first has for its object the rendition of medical services by the consultant to the patient, while the second concerns the provision by the hospital of facilities and services by its staff such as nurses and laboratory personnel necessary for the proper treatment of the patient. Further, no evidence was adduced to show that the injury suffered by petitioner Erlinda was due to a failure on the part of respondent DLSMC to provide for hospital facilities and staff necessary for her treatment. For these reasons, we reverse the finding of liability on the part of DLSMC for the injury suffered by petitioner Erlinda.

RESOLUTION

KAPUNAN, J :
p

Private respondents De Los Santos Medical Center, Dr. Orlino Hosaka and Dr. Perfecta Gutierrez move for a reconsideration of the Decision, dated December 29, 1999, of this Court holding them civilly liable for petitioner Erlinda Ramos' comatose condition after she delivered herself to them for their professional care and management.
EICDSA

For better understanding of the issues raised in private respondents' respective motions, we will briefly restate the facts of the case as follows: Sometime in 1985, petitioner Erlinda Ramos, after seeking professional medical help, was advised to undergo an operation for the removal of a stone in her gall bladder (cholecystectomy). She was referred to Dr. Hosaka, a surgeon, who agreed to perform the operation on her. The operation was scheduled for June 17, 1985 at 9:00 in the morning at private respondent De Los Santos Medical Center (DLSMC). Since neither petitioner Erlinda nor her husband, petitioner Rogelio, knew of any anesthesiologist, Dr. Hosaka recommended to them the services of Dr. Gutierrez. Petitioner Erlinda was admitted to the DLSMC the day before the scheduled operation. By 7:30 in the morning of the following day, petitioner Erlinda was already being prepared for operation. Upon the request of petitioner Erlinda, her sister-in-law, Herminda Cruz, who was then Dean of the College of Nursing at the Capitol Medical Center, was allowed to accompany her inside the operating room. At around 9:30 in the morning, Dr. Hosaka had not yet arrived so Dr. Gutierrez tried to get in touch with him by phone. Thereafter, Dr. Gutierrez informed Cruz that the operation might be delayed due to the late arrival of Dr. Hosaka. In the meantime, the patient, petitioner Erlinda said to Cruz, "Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor." By 10:00 in the morning, when Dr. Hosaka was still not around, petitioner Rogelio already wanted to pull out his wife from the operating room. He met Dr. Garcia, who remarked that he was also tired of waiting for Dr. Hosaka. Dr. Hosaka finally arrived at the hospital at around 12:10 in the afternoon, or more than three (3) hours after the scheduled operation. Cruz, who was then still inside the operating room, heard about Dr. Hosaka's arrival. While she held the hand of Erlinda, Cruz 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 intubate the patient. The nailbeds of the patient remained bluish, thus, she was placed in a

trendelenburg position a position where the head of the patient is placed in a position lower than her feet. At this point, Cruz went out of the operating room to express her concern to petitioner Rogelio that Erlinda's operation was not going well. Cruz quickly rushed back to the operating room and saw that the patient was still in trendelenburg position. At almost 3:00 in the afternoon, she saw Erlinda being wheeled to the Intensive Care Unit (ICU). The doctors explained to petitioner Rogelio that his wife had bronchospasm. Erlinda stayed in the ICU for a month. She was released from the hospital only four months later or on November 15, 1985. Since the ill-fated operation, Erlinda remained in comatose condition until she died on August 3, 1999. 1 Petitioners filed with the Regional Trial Court of Quezon City a civil case for damages against private respondents. After due trial, the court a quo rendered judgment in favor of petitioners. Essentially, the trial court found that private respondents were negligent in the performance of their duties to Erlinda. On appeal by private respondents, the Court of Appeals reversed the trial court's decision and directed petitioners to pay their "unpaid medical bills" to private respondents. Petitioners filed with this Court a petition for review on certiorari. The private respondents were then required to submit their respective comments thereon. On December 29, 1999, this Court promulgated the decision which private respondents now seek to be reconsidered. The dispositive portion of said Decision states:
WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so as to award in favor of petitioners, and solidarily against private respondents the following: 1) P1,352,000.00 as actual damages computed as of the date of promulgation of this decision plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each exemplary damages and attorney's fees; and 5) the costs of the suit. 2

In his Motion for Reconsideration, private respondent Dr. Hosaka submits the following as grounds therefor:
I THE HONORABLE SUPREME COURT COMMITTED REVERSIBLE ERROR WHEN IT HELD RESPONDENT DR. HOSAKA LIABLE ON THE BASIS OF THE "CAPTAIN-OF-THE-SHIP" DOCTRINE. II

THE HONORABLE SUPREME COURT ERRED IN HOLDING RESPONDENT DR. HOSAKA LIABLE DESPITE THE FACT THAT NO NEGLIGENCE CAN BE ATTRIBUTABLE TO HIM. III ASSUMING WITHOUT ADMITTING THAT RESPONDENT DR. HOSAKA IS LIABLE, THE HONORABLE SUPREME COURT ERRED IN AWARDING DAMAGES THAT WERE CLEARLY EXCESSIVE AND WITHOUT LEGAL BASIS. 3

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

A.THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY OVERLOOKED THE FACT THAT THE COURT OF 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; B.THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY OVERLOOKED SEVERAL MATERIAL FACTUAL CIRCUMSTANCES WHICH, IF PROPERLY CONSIDERED, WOULD INDUBITABLY LEAD TO NO OTHER CONCLUSION BUT THAT PRIVATE RESPONDENT DOCTORS WERE NOT GUILTY OF ANY NEGLIGENCE IN RESPECT OF THE INSTANT CASE; B.1RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY DISCHARGED THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF OF HER COMPLIANCE WITH THE STANDARDS OF DUE CARE EXPECTED IN HER RESPECTIVE FIELD OF MEDICAL SPECIALIZATION. B.2RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY DISCHARGED THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF OF HER HAVING SUCCESSFULLY INTUBATED PATIENT ERLINDA RAMOS. C.THE SUPREME COURT MAY HAVE INADVERTENTLY PLACED TOO MUCH RELIANCE ON THE TESTIMONY OF PETITIONER'S WITNESS HERMINDA CRUZ, DESPITE THE EXISTENCE OF SEVERAL FACTUAL CIRCUMSTANCES WHICH RENDERS DOUBT ON HER CREDIBILITY;

D.THE SUPREME COURT MAY HAVE INADVERTENTLY DISREGARDED THE EXPERT TESTIMONY OF DR. JAMORA AND DRA. CALDERON; E.THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY AWARDED DAMAGES TO PETITIONERS DESPITE THE FACT THAT THERE WAS NO NEGLIGENCE ON THE PART OF RESPONDENT DOCTOR. 4

Private respondent De Los Santos Medical Center likewise moves for reconsideration on the following grounds:
I THE HONORABLE COURT ERRED IN GIVING DUE COURSE TO THE INSTANT PETITION AS THE DECISION OF THE HONORABLE COURT OF APPEALS HAD ALREADY BECOME FINAL AND EXECUTORY II THE HONORABLE SUPREME COURT ERRED IN FINDING THAT AN EMPLOYER-EMPLOYEE [RELATIONSHIP] EXISTS BETWEEN RESPONDENT DE LOS SANTOS MEDICAL CENTER AND DRS. ORLINO HOSAKA AND PERFECTA GUTIERREZ III THE HONORABLE SUPREME COURT ERRED IN FINDING THAT RESPONDENT DE LOS SANTOS MEDICAL CENTER IS SOLIDARILY LIABLE WITH RESPONDENT DOCTORS

IV THE HONORABLE SUPREME COURT ERRED IN INCREASING THE AWARD OF DAMAGES IN FAVOR OF PETITIONERS. 5

In the Resolution of February 21, 2000, this Court denied the motions for reconsideration of private respondents Drs. Hosaka and Gutierrez. They then filed their respective second motions for reconsideration. The Philippine College of Surgeons filed its Petition-inIntervention 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. 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:
. . . 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 may be 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 Dr. 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 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 4 mg. 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%_H2O & 1 ampule of aminophyline by fast drip was started. Still the cyanosis was persistent. Patient was connected to a cardiac monitor. Another ampule of of [sic] aminophyline was given and solu cortef was given. 12:40 p.m.There was cardiac arrest. Extra cardiac massage and intercardiac injection of adrenalin was given & heart beat reappeared in less than one minute. Sodium bicarbonate & another dose of solu cortef was given by IV. Cyanosis slowly disappeared & 02 continuously given & assisted positive pressure. Laboratory exams done (see results in chart).

Patient was transferred to ICU for further management. 22 From the foregoing, it can be allegedly seen that there was no withdrawal (extubation) of the tube. And the fact that the cyanosis allegedly disappeared after pure oxygen was supplied through the tube proved that it was properly placed. The Court has reservations on giving evidentiary weight to the entries purportedly contained in Dr. Gutierrez' synopsis. It is significant to note that the said record prepared by Dr. Gutierrez was made only after Erlinda was taken out of the operating room. The standard practice in anesthesia is that every single act that the anesthesiologist performs must be recorded. In Dr. Gutierrez' case, she could not account for at least ten (10) minutes of what happened during the administration of anesthesia on Erlinda. The following exchange between Dr. Estrella, one of the amicii curiae, and Dr. Gutierrez is instructive:
DR. ESTRELLA You mentioned that there were two (2) attempts in the intubation period? DR. GUTIERREZ Yes. QThere were two attempts. In the first attempt was the tube inserted or was the laryngoscope only inserted, which was inserted? AAll the laryngoscope.

QAll 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? AYes. QYes. 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) QIs 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? AI 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) QWhen was the first cyanosis? AThe first cyanosis when I was (interrupted) QWhat time, more or less? AI think it was 12:15 or 12:16. QWell, if the record will show you started induction at 12:15? AYes, Your Honor. QAnd the first medication you gave was what? AThe first medication, no, first the patient was oxygenated for around one to two minutes. QYes, so, that is about 12:13? AYes, and then, I asked the resident physician to start giving the pentothal very slowly and that was around one minute.

QSo, that is about 12:13 no, 12:15, 12:17? AYes, and then, after one minute another oxygenation was given and after (interrupted) Q12:18? AYes, and then after giving the oxygen we start the menorcure which is a relaxant. After that relaxant (interrupted) QAfter that relaxant, how long do you wait before you do any manipulation? AUsually you wait for two minutes or three minutes. QSo, if our estimate of the time is accurate we are now more or less 12:19, is that right? AMay be. Q12:19. And at that time, what would have been done to this patient? AAfter 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. QSo, 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. AYes. QAnd in the second attempt you inserted the laryngoscope and now possible intubation? AYes. QAnd at that point, you made a remark, what remark did you make? AI said "mahirap ata ito" when the first attempt I did not see the trachea right away. That was when I (interrupted) QThat was the first attempt?

AYes. QWhat about the second attempt? AOn the second attempt I was able to intubate right away within two to three seconds. QAt 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"? AI did not say "mali ata ang pinasukan" I never said that. QWell, 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? AWhich one, sir? QThe "mahirap intubate ito" assuming that you (interrupted) AIyon lang, that is what I only said "mahirap intubate (interrupted) QAt what point? AWhen the first attempt when I inserted the laryngoscope for the first time. QSo, when you claim that at the first attempt you inserted the laryngoscope, right? AYes. QBut 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) AI was able to intubate. QAnd this is more or less about what time 12:21? AMay be, I cannot remember the time, Sir.

QOkay, 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? ANot yet. QBut why are there no recordings in the anesthesia record? AI did not have time. QAh, you did not have time, why did you not have time? ABecause it was so fast, I really (at this juncture the witness is laughing) QNo, 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 or less on the record. AYes, Sir. QAnd 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? AYes. QAnd that is after induction 12:15 that is 12:25 that was the first cyanosis? AYes. QAnd that the 12:25 is after the 12:20? AWe cannot (interrupted) QHuwag 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? ANo, 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 maintubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan." She observed that the nailbeds of Erlinda became bluish and thereafter Erlinda was placed in trendelenburg position. 25 Cruz further averred that she noticed that the abdomen of Erlinda became distended. 26

The cyanosis (bluish discoloration of the skin or mucous membranes caused by lack of oxygen or abnormal hemoglobin in the blood) and enlargement of the stomach of Erlinda indicate that the endotracheal tube was improperly inserted into the esophagus instead of the trachea. Consequently, oxygen was delivered not to the lungs but to the gastrointestinal tract. This conclusion is supported by the fact that Erlinda was placed in trendelenburg position. This indicates that there was a decrease of blood supply to the 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 necessary 39 in the course of the treatment. The duties of Dr. Hosaka and those of Dr. Gutierrez in the treatment of petitioner Erlinda are therefore not as clear-cut as respondents claim them to be. On the contrary, it is quite apparent that they have a common responsibility to treat the patient, which responsibility necessitates that they call each 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. 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: . . . 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. . . . 42

Dr. Hosaka cannot now claim that he was entirely blameless of what happened to Erlinda. His conduct clearly constituted a breach of his professional duties to Erlinda:
CHIEF JUSTICE: Two other points. The first, Doctor, you were talking about anxiety, would you consider a patient's stay on the operating table for three hours sufficient enough to aggravate or magnify his or her anxiety? DR. CAMAGAY: Yes. CHIEF JUSTICE: In other words, I understand that in this particular case that was the case, three hours waiting and the patient was already on the operating table (interrupted) DR. CAMAGAY: Yes. CHIEF JUSTICE: Would you therefore conclude that the 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.
EaCDAT

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 Code 45 since there exists an employer-employee relationship between private respondent DLSMC and Drs. Gutierrez and Hosaka:

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting "consultant" staff. While "consultants" are not, technically employees, . . . the control exercised, the hiring and the right to terminate consultants all fulfill the important hallmarks of an employeremployee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining . . . .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 employeremployee relationship between DLSMC and Drs. Gutierrez and Hosaka which would hold DLSMC solidarily liable for the injury suffered by petitioner Erlinda under Article 2180 of the Civil Code. As explained by respondent hospital, that the admission of a physician to membership in DLSMC's medical staff as active or visiting consultant is first decided upon by the Credentials Committee thereof, which is composed of the heads of the various specialty departments such as the Department of Obstetrics and Gynecology, Pediatrics, Surgery with the department head of the particular specialty applied for as chairman. The Credentials Committee then recommends to DLSMC's Medical Director or Hospital

Administrator the acceptance or rejection of the applicant physician, and said director or administrator validates the committee's recommendation. 52 Similarly, in cases where a disciplinary action is lodged against a consultant, the same is initiated by the department to whom the consultant concerned belongs and filed with the Ethics Committee consisting of the department specialty heads. The medical director/hospital administrator merely acts as ex-officio member of said committee.
IESTcD

Neither is there any showing that it is DLSMC which pays any of its consultants for medical services rendered by the latter to their respective patients. Moreover, the contract between the consultant in respondent hospital and his patient is separate and distinct from the contract between respondent hospital and said patient. The first has for its object the rendition of medical services by the consultant to the patient, while the second concerns the provision by the hospital of facilities and services by its staff such as nurses and laboratory personnel necessary for the proper treatment of the patient. Further, no evidence was adduced to show that the injury suffered by petitioner Erlinda was due to a failure on the part of respondent DLSMC to provide for hospital facilities and staff necessary for her treatment. For these reasons, we reverse the finding of liability on the part of DLSMC for the injury suffered by petitioner Erlinda. Finally, the Court also deems it necessary to modify the award of damages to petitioners in view of the supervening event of petitioner Erlinda's death. In the assailed Decision, the Court awarded actual damages of One Million Three Hundred Fifty-Two Thousand Pesos (P1,352,000.00) to cover the expenses for petitioner 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:
TCcDaE

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 died on August 3, 1999. 55 In view of this supervening event, the award of temperate damages in addition to the actual or compensatory damages would no longer be justified since the actual damages awarded in the Decision are sufficient to cover the medical expenses incurred by petitioners for the patient. Hence, only the amounts representing actual, moral and exemplary damages, attorney's fees and costs of suit should be awarded to petitioners.
HScCEa

WHEREFORE, the assailed Decision is hereby modified as follows: (1)Private respondent De Los Santos Medical Center is hereby absolved from liability arising from the injury suffered by petitioner Erlinda Ramos on June 17, 1985; (2)Private respondents Dr. Orlino Hosaka and Dr. Perfecta Gutierrez are hereby declared to be solidarily liable for the injury suffered by petitioner Erlinda on June 17, 1985 and are ordered to pay petitioners (a)P1,352,000.00 as actual damages;

(b)P2,000,000.00 as moral damages; (c)P100,000.00 as exemplary damages; (d)P100,000.00 as attorney's fees; and (e)the costs of the suit. SO ORDERED. Davide, Jr., C.J., Puno and Ynares-Santiago, JJ., concur.
EcICSA

THIRD DIVISION
[G.R. No. 118231. July 5, 1996.] DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners, vs. COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G. VILLEGAS, respondents. Paras & Associates for petitioners. Frederick E. Bustamante for private respondents. SYLLABUS 1.REMEDIAL LAW; SPECIAL CIVIL ACTIONS; AS A GENERAL RULE, ONLY QUESTIONS OF LAW MAY BE RAISED IN A PETITION FOR REVIEW ON CERTIORARI; EXCEPTIONS. While the rule is that only questions of law may be raised in a petition for review on certiorari, there are exceptions, among which are when the factual findings of the trial court and the appellate court conflict, when the appealed decision is clearly contradicted by the evidence on record, or when the appellate court misapprehended the facts. 2.ID.; EVIDENCE; CREDIBILITY OF WITNESSES; EVEN WHEN A WITNESS IS FOUND TO HAVE DELIBERATELY FALSIFIED IN SOME MATERIAL PARTICULARS, IT IS NOT REQUIRED THAT THE WHOLE OF HIS UNCORROBORATED TESTIMONY BE REJECTED, BUT SUCH PORTIONS THEREOF DEEMED WORTHY OF BELIEF BE CREDITED. The phrase relied upon by the trial court does not negate the fact that Dr. Kho saw a piece of rubber in private respondent Villegas' abdomen, and that she sent it to a laboratory and then to

Cebu City for examination by a pathologist. Not even the Pathologist's Report, although devoid of any mention of a piece of rubber, could alter what Dr. Kho saw. Furthermore, Dr. Kho's knowledge of the piece of rubber could not be based on other than first hand knowledge for, as she asserted before the trial court. The petitioners emphasize that the private respondents never reconciled Dr. Kho's testimony with Dr. Batiquin's claim on the witness stand that when Dr. Batiquin confronted Dr. Kho about the foreign body, the latter said that there was a piece of rubber but that she threw it away. Although hearsay, Dr. Batiquin's claim was not objected to, and hence, the same is admissible but it carries no probative value. Nevertheless, assuming otherwise, Dr. Batiquin's statement cannot belie the fact that Dr. Kho found a piece of rubber near private respondent Villegas's uterus. And even if we were to doubt Dr. Kho as to what she did to the piece of rubber, i.e., whether she threw it away or sent it to Cebu City, we are not justified in distrusting her as to her recovery of a piece of rubber from private respondent Villegas' abdomen. On this score, it is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve his testimony with respect to other facts. And it has been aptly said that even when a witness is found to have deliberately falsified in some material particulars, it is not required that the whole of his uncorroborated testimony be rejected, but such portions thereof deemed worthy of belief may be credited. 3.ID.; ID.; ID.; POSITIVE TESTIMONY IS STRONGER THAN NEGATIVE TESTIMONY. It is here worth nothing that the trial court paid heed to the following portions of Dr. Batiquin's testimony: that no rubber drain was used in the operation, and that there was neither any tear on Dr. Batiquin's gloves after the operation nor blood smears on her hands upon removing her gloves. Moreover, the trial court pointed out that the absence of a rubber drain was corroborated by Dr. Doris Sy, Dr. Batiquin's assistant during the operation on private respondent Villegas. But the trial court failed to recognize that the assertions of Drs. Batiquin and Sy were denials or negative testimonies. Wellsettled is the rule that positive testimony is stronger than negative testimony. Of course, as the petitioners advocate, such positive testimony must come from a credible source, which leads us to the second assigned error. While the petitioners claim that contradictions and falsities punctured Dr. Kho's testimony, a reading of the said testimony reveals no such infirmity and establishes Dr. Kho as a credible witness. Dr. Kho was frank throughout her turn on the witness stand. Furthermore, no motive to state any untruth was ever imputed against Dr. Kho, leaving her trustworthiness unimpaired. The trial court's following declaration shows that while it was critical of the lack of care with which Dr. Kho handled the piece of rubber, it was not prepared to doubt Dr. Kho's credibility, thus only supporting out appraisal of Dr. Kho's trustworthiness. Considering that we have assessed Dr. Kho to be a credible witness, her positive testimony [that a piece of rubber was indeed found in private respondent Villegas' abdomen] prevails over the negative testimony in favor of the petitioners. 4.ID.; ID.; ID.; DOCTRINE OF RES IPSA LOQUITUR; APPLICABLE IN CASE AT BAR. In the instant case, all the requisites for recourse to the doctrine of res ipsa

loquitur are present. First, the entire proceedings of the cesarean section were under the exclusive control of Dr. Batiquin. In this light, the private respondents were bereft of direct evidence as to the actual culprit or the exact cause of the foreign object finding its way into private respondent Villegas's body, which, needless to say, does not occur unless through the intervention of negligence. Second, since aside from the cesarean section, private respondent Villegas underwent no other operation which could have caused the offending piece of rubber to appear in her uterus, it stands to reason that such could only have been a by-product of the cesarean section performed by Dr. Batiquin. The petitioners, in this regard, failed to overcome the presumption of negligence arising from resort to the doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for negligently leaving behind a piece of rubber in private respondent Villegas' abdomen and for all the adverse effects thereof.

DECISION

DAVIDE, JR., J :
p

Throughout history, patients have consigned their fates and lives to the skill of their doctors. For a breach of this trust, men have been quick to demand retribution. Some 4,000 years ago, the Code of Hammurabi 1 then already provided: "If a physician make a deep incision upon a man with his bronze lancet and cause the man's death, or operate on the eye socket of a man with his bronze lancet and destroy the man's eyes, they shall cut off his hand." 2 Subsequently, Hippocrates 3 wrote what was to become part of the healer's oath: "I will follow that method of treatment which according to my ability and judgment, I consider for the benefit of my patents, and abstain from whatever is deleterious and mischievous . . . While I continue to keep this oath unviolated may it be granted me to enjoy life and practice the art, respected by all men at all times but should I trespass and violate this oath, may the reverse be my lot." At present, the primary objective of the medical profession is the preservation of life and maintenance of the health of the people. 4 Needless to say then, when a physician strays from his sacred duty and endangers instead the life of his patient, he must be made to answer therefor. Although society today cannot and will not tolerate the punishment meted out by the ancients, neither will it and this Court, as this case would show, let the act go uncondemned. The petitioners appeal from the decision 5 of the Court of Appeals of 11 May 1994 in CA-G.R. CV No. 30851, which reversed the decision 6 of 21 December 1990 of Branch 30 of the Regional Trial Court (RTC) of Negros Oriental in Civil Case No. 9492. The facts, as found by the trial court, are as follows:

Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital, Dumaguete City from January 9, 1978 to September 1989. Between 1987 and September, 1989 she was also the Actg. Head of the Department of Obstetrics and Gynecology at the said Hospital. Mrs. Villegas is a married woman who submitted to Dr. Batiquin for prenatal care as the latter's private patient sometime before September 21, 1988. In the morning of September 21, 1988 Dr. Batiquin with the assistance of Dr. Doris Teresita Sy who was also a Resident Physician at the same Hospital, C.I. and O.R. Nurse Arlene Diones and some student nurses performed a simple cesarean section on Mrs. Villegas at the Negros Oriental Provincial Hospital and after 45 minutes Mrs. Villegas delivered her first Child, Rachel Acogido, at about 11:45 that morning. Thereafter, Plaintiff remained confined at the Hospital until September 27, 1988 during which period of confinement she was regularly visited by Dr. Batiquin. On September 28, 1988 Mrs. Villegas checked out of the Hospital . . . and on the same day she paid Dr. Batiquin, thru the latter's secretary, the amount of P1,500.00 as "professional fee" . . . Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal pains and complained of being feverish. She also gradually lost her appetite, so she consulted Dr. Batiquin at the latter's polyclinic who prescribed for her certain medicines . . . which she had been taking up to December, 1988. In the meantime, Mrs. Villegas was given a Medical Certificate by Dr. Batiquin on October 31, 1988 . . . certifying to her physical fitness to return to her work on November 7, 1988. So on the second week of November, 1988 Mrs. Villegas returned to her work at the Rural Bank of Ayungon, Negros Oriental. The abdominal pains and fever kept on recurring and bothered Mrs. Villegas no end and despite the medications administered by Dr. Batiquin. When the pains become unbearable and she was rapidly losing weight she consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in Dumaguete City on January 20, 1989. The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs. Villegas at the Holy Child's Hospital on January 20, 1989 she found Mrs. Villegas to be feverish, pale and was breathing fast. Upon examination she felt an abdominal mass one finger below the umbilicus which she suspected to be either a tumor of the uterus or an ovarian cyst, either of which could be cancerous. She had an x-ray taken of Mrs. Villegas ' chest, abdomen and kidney. She also took blood tests of Plaintiff. A blood count showed that Mrs. Villegas had [an] infection inside her abdominal cavity. The results of all those examinations impelled Dr. Kho to suggest that Mrs. Villegas submit to another surgery to which the latter agreed.

When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-yellow discharge inside, an ovarian cyst on each of the left and right ovaries which gave out pus, dirt and pus behind the uterus, and a piece of rubber materials on the right side of the uterus embedded on [sic] the ovarian cyst. 2 inches by 3/4 inch in size. This piece of rubber material which Dr. Kho described as a "foreign body" looked like a piece of a "rubber glove" . . . and which is [sic] also "rubber-drain like . . . It could have been a torn section of a surgeon's gloves or could have come from other sources. And this foreign body was the cause of the infection of the ovaries and consequently of all the discomfort suffered by Mrs. Villegas after her delivery on September 21, 1988. 7

The piece of rubber allegedly found near private respondent Flotilde Villegas's uterus was not presented in court, and although Dr. Ma. Salud Kho testified that she sent it to a pathologist in Cebu City for examination, 8 it was not mentioned in the pathologist's Surgical Pathology Report. 9 Aside from Dr. Kho's testimony, the evidence which mentioned the piece of rubber are a Medical Certificate, 10 a Progress Record, 11 an Anesthesia Record, 12 a Nurse's Record, 13 and a Physician's Discharge Summary. 14 The trial court, however, regarded these documentary evidence as mere hearsay, "there being no showing that the person or persons who prepared them are deceased or unable to testify on the facts therein stated . . . Except for the Medical Certificate (Exhibit "F"), all the above documents were allegedly prepared by persons other than Dr. Kho, and she merely affixed her signature on some of them to express her agreement thereto . . . " 15 The trial court also refused to give weight to Dr. Kho's testimony regarding the subject piece of rubber as Dr. Kho "may not have had first-hand knowledge" thereof, 16 as could be gleaned from her statement, thus:
A. . . I have heard somebody that [sic] say [sic] there is [sic] a foreign body that goes with the tissues but unluckily I don't know where the rubber was.

17 The trial court deemed vital Dr. Victoria Batiquin's testimony that when she confronted Dr. Kho regarding the piece of rubber, "Dr. Kho answered that there was rubber indeed but that she threw it away. " 18 This statement, the trial court noted, was never denied nor disputed by Dr. Kho, leading it to conclude:
There are now two different versions on the whereabouts of that offending "rubber" (1) that it was sent to the Pathologist in Cebu as testified to in Court by Dr. Kho and (2) that Dr. Kho threw it away as told by her to Defendant. The failure of the Plaintiffs to reconcile these two different versions serve only to weaken their claim against Defendant Batiquin. 19

All told, the trial court held in favor of the petitioners herein.

The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even without admitting the private respondents' documentary evidence, deemed Dr. Kho's positive testimony to definitely establish that a piece of rubber was found near private respondent Villegas's uterus. Thus, the Court of Appeals reversed the decision of the trial court, holding:
4.The fault or negligence of appellee Dr. Batiquin is established by preponderance of evidence. The trial court itself had narrated what happened to appellant Flotilde after the caesarean operation made by appellee doctor . . . After the second operation, appellant Flotilde became well and healthy. Appellant Flotilde's troubles were caused by the infection due to the "rubber" that was left inside her abdomen. Both appellants testified that after the operation made by appellee doctor, they did not go to any other doctor until they finally decided to see another doctor in January, 1989 when she was not getting any better under the care of appellee Dr. Batiquin . . . Appellee Dr. Batiquin admitted on the witness stand that she alone decided when to close the operating area; that she examined the portion she operated on before closing the same . . . Had she exercised due diligence, appellee Dr. Batiquin would have found the rubber and removed it before closing the operating area. 20

The appellate court then ruled:

Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of P7,100.00 (Exh. G-1-A) plus hospital and medical expenses together with doctor's fees in the total amount P9,900.00 (Exhs. G and G-2)] for the second operation that saved her life. For the miseries appellants endured for more than three (3) months, due to the negligence of appellee Dr. Batiquin, they are entitled to moral damages in the amount of P100,000.00; exemplary damages in the amount of P20,000.00 and attorney's fees in the amount of P25,000.00. The fact that appellant Flotilde can no longer bear children because her uterus and ovaries were removed by Dr. Kho is not taken into consideration as it is not shown that the removal of said organs were the direct result of the rubber left by appellee Dr. Batiquin near the uterus. What is established is that the rubber left by appellee cause infection, placed the life of appellant Flotilde in jeopardy and caused appellants fear, worry and anxiety . . . WHEREFORE, the appealed judgment, dismissing the complaint for damages is REVERSED and SET ASIDE. Another judgment is hereby entered ordering defendants-appellees to pay plaintiffs-appellants the amount of P17,000.00 as and for actual damages; P100,000.00 as and for moral damages; P20,000.00 as and for exemplary damages; and P25,000.00 as and for attorney's fees plus the cost of litigation.

SO ORDERED. 21

From the above judgment, the petitioners appealed to this Court claiming that the appellate court; (1) committed grave abuse of discretion by resorting to findings of fact not supported by the evidence on record, and (2) exceeded its discretion, amounting to lack or excess of jurisdiction, when it gave credence to testimonies punctured with contradictions and falsities. The private respondents commented that the petition raised only questions of fact, which were not proper for review by this Court. While the rule is that only questions of law may be raised in a petition for review on certiorari, there are exceptions, among which are when the factual findings of the trial court and the appellate court conflict, when the appealed decision is clearly contradicted by the evidence on record, or when the appellate court misapprehended the facts. 22 After deciphering the cryptic petition, we find that the focal point of the instant appeal is the appreciation of Dr. Kho's testimony. The petitioner contend that the Court of Appeals misappreciated the following portion of Dr. Kho's testimony:
QWhat is the purpose of the examination? AJust in case, I was just thinking at the back of my mind, just in case this would turn out to be a medico-legal case, I have heard somebody that [sic] says [sic] there is [sic] a foreign body that goes with the tissues but unluckily I don't know where the rubber was. It was not in the Lab, it was not in Cebu. 23 (emphasis supplied)

The petitioners prefer the trial court's interpretation of the above testimony, i.e., that Dr. Kho's knowledge of the piece of rubber was based on hearsay. The Court of Appeals, on the other hand, concluded that the underscored phrase was taken out of context by the trial court. According to the Court of Appeals, the trial court should have likewise considered the other portions of Dr. Kho's testimony, especially the following:
QSo you did actually conduct the operation on her? AYes, I did. QAnd what was the result? AOpening up her abdomen, there was whitish-yellow discharge inside the abdomen, there was an ovarian cyst on the left and side and there was also an ovarian cyst on the right which, on opening up or freeing it up from the uterus, turned out to be pus. Both ovaries turned out . . . to have pus. And the, cleaning up the uterus, at the back of the uterus it was very

dirty, it was full of pus. And there was a [piece of] rubber we found a [piece of] rubber on the right side. 24

We agree with the Court of Appeals. The phrase relied upon by the trial court does not negate the fact that Dr. Kho saw a piece of rubber in private respondent Villegas's abdomen, and that she sent it to a laboratory and then to Cebu City for examination by a pathologist. 25 Not even the Pathologist's Report, although devoid of any mention of a piece of rubber, could alter what Dr. Kho saw. Furthermore, Dr. Kho's knowledge of the piece of rubber could not be based on other than first hand knowledge for, as she asserted before the trial court:
QBut you are sure you have seen [the piece of rubber]? AOh yes. I was not the only one who saw it. 26

The petitioners emphasize that the private respondents never reconciled Dr. Kho's testimony with Dr. Batiquin's claim on the witness stand that when Dr. Batiquin confronted Dr. Kho about the foreign body, the latter said that there was a piece of rubber but that she threw it away. Although hearsay, Dr. Batiquin's claim was not objected to, and hence, the same is admissible 27 but it carries no probative value. 28 Nevertheless, assuming otherwise, Dr. Batiquin's statement cannot belie the fact that Dr. Kho found a piece of rubber near private respondent Villegas uterus. And even if we were to doubt Dr. Kho as to what she did to the piece of rubber, i.e., whether she threw it away or sent it to Cebu City, we are not justified in distrusting her as to her recovery of a piece of rubber from private respondent Villegas's abdomen. On this score, it is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve his testimony with respect to other facts. And it has been aptly said that even when a witness it found to have deliberately falsified in some material particulars, it is not required that the whole of his uncorroborated testimony be rejected, but such portions thereof deemed worthy of belief may be credited. 29

It is here worth nothing that the trial court paid heed to the following portions of Dr. Batiquin's testimony: that no rubber drain was used in the operation, 30 and that there was neither any tear on Dr. Batiquin's gloves after the operation nor blood smears on her hands upon removing her gloves. 31 Moreover, the trial court pointed out that the absence of a rubber drain was corroborated by Dr. Doris Sy, Dr. Batiquin's assistant during the operation on private respondent Villegas. 32 But the trial court failed to recognize that the assertions of Drs. Batiquin and Sy were denials or negative testimonies. Well-settled is the rule that positive testimony is stronger than negative testimony. 33 Of course, as the petitioners advocate, such positive testimony must come from a credible source, which leads us to the second assigned error.

While the petitioners claim that contradictions and falsities punctured Dr. Kho's testimony, a reading of the said testimony reveals no such infirmity and establishes Dr. Kho as a credible witness. Dr. Kho was frank throughout her turn on the witness stand. Furthermore, no motive to state any untruth was ever imputed against Dr. Kho, leaving her trustworthiness unimpaired. 34 The trial court's following declaration shows that while it was critical of the lack of care with which Dr. Kho handled the piece of rubber, it was not prepared to doubt Dr. Kho's credibility, thus only supporting out appraisal of Dr. Kho's trustworthiness:
This is not to say that she was less than honest when she testified about her findings, but it can also be said that she did not take the most appropriate precaution to preserve that "piece of rubber" as an eloquent evidence of what she would reveal should there be a "legal problem" which she claim[s] to have anticipated. 35

Considering that we have assessed Dr. Kho to be a credible witness, her positive testimony [that a piece of rubber was indeed found in private respondent Villegas's abdomen] prevails over the negative testimony in favor of the petitioners. As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion to delve into the nature and operation of this doctrine: This doctrine [res ipsa loquitur] is stated thus: "Where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care." Or as Black's Law Dictionary puts it:
Res ipsa loquitur.The thing speaks for itself. Rebuttable presumption or inference that defendant was negligent, which arises upon proof that [the] instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinary does not happen in absence of negligence. Res ipsa loquitur is [a] rule of evidence whereby negligence of [the] alleged wrongdoer may be inferred from [the] mere fact that [the] accident happened provided [the] character of [the] accident and circumstances attending it lead reasonably to belief that in [the] absence of negligence it would not have occurred and that thing which caused injury is shown to have been under [the] management and control of [the] alleged wrongdoer . . . Under [this] doctrine . . . the happening of an injury permits an inference of negligence where the plaintiff produces substantial evidence that [the] injury was caused by an agency or instrumentality under [the] exclusive control and management of defendant, and that the occurrence [sic] was such that in the ordinary course of things would not happen if reasonable care had been used. xxx xxx xxx

The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. The doctrine is not a rule of substantive law, but merely a mode of proof or a mere procedural convenience. The rule, when applicable to the facts and circumstances of a particular case, is not intended to and does not dispense with the requirement of proof of culpable negligence on the party charged. It merely determines and regulates what shall the prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of due care. The doctrine can be invoked when and only when, under the circumstances involved direct evidence is absent and not readily available. 36

In the instant case, all the requisites for recourse to the doctrine are present. First, the entire proceedings of the caesarean section were under the exclusive control of Dr. Batiquin. In this light, the private respondents were bereft of direct evidence as to the actual culprit or the exact cause of the foreign object finding its way into private respondent Villegas's body, which, needless to say, does not occur unless through the intervention of negligence. Second, since aside from the caesarean section, private respondent Villegas underwent no other operation which could have caused the offending piece of rubber to appear in her uterus, it stands to reason that such could only have been a by-product of the cesarean section performed by Dr. Batiquin. The petitioners, in this regard, failed to overcome the presumption of negligence arising from resort to the doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for negligently leaving behind a piece of rubber in private respondent Villegas's abdomen and for all the adverse effects thereof. As a final word, this Court reiterates its recognition of the vital role the medical profession plays in the lives of the people, 37 and State's compelling interest to enact measures to protect the public from " the potentially deadly effects of incompetence and ignorance in those who would undertake to treat our bodies and minds for disease or trauma." 38 Indeed, a physician is bound to serve the interest of his patients "with the greatest of solicitude, giving them always his best talent and skill. " 39 Through her tortious conduct, the petitioner endangered the life of Flotilde Villegas, in violation of her profession's rigid ethical code and in contravention of the legal standards set forth for professionals, in the general, 40 and members of the medical profession, 41 in particular. WHEREFORE, the challenged decision of 11 May 1994 of the Court of Appeals in CAG.R. CV No. 30851 is hereby AFFIRMED in toto. Costs against the petitioners. SO ORDERED. Narvasa, C . J ., Melo, Francisco and Panganiban, JJ ., concur.