PRACTICE OF MEDICINE

PROFESSIONAL REGULATION COMMISSION (PRC),

HERMOGENES POBRE and ARMANDO
PASCUAL,petitioners,
vs.
COURT OF APPEALS, ARLENE DE GUZMAN,
VIOLETA MENESES, CELERINA NAVARRO, JOSE
RAMONCITO NAVARRO, ARNEL HERRERA and
GERALDINE ELIZABETH PAGILAGAN, respondents.
G.R. No. 118437 July 9, 1998
PROFESSIONAL REGULATION COMMISSION (PRC),
HERMOGENES POBRE and ARMANDO
PASCUAL,petitioners,
vs.
HON. DAVID G. NITAFAN, Presiding Judge, RTC-Br.
52, Manila, ARLENE DE GUZMAN, VIOLETA
MENESES, CELERINA NAVARRO, JOSE RAMONCITO
NAVARRO, ARNEL HERRERA and GERALDINE
ELIZABETH PAGILAGAN, respondents.

BELLOSILLO, J.:p
These are consolidated petitions involving the same
parties although dwelling on different issues.
G.R. No. 117817. On 5 July 1993 private respondents
Arlene de Guzman, Violeta Meneses, Celerina Navarro,
Jose Ramoncito Navarro, Arnel Herrera and Geraldine
Elizabeth Pagilagan filed an amended petition for
mandamus before the Regional Trial Court of Manila
against petitioners Professional Regulation Commission,
Chairman Hermogenes Pobre and Associate
Commissioner Armando Pascual. The amended petition,
docketed as Civil Case No. 93-66530, alleged that
private respondents were graduates of the Fatima
College of Medicine who took the examinations for
physicians conducted by petitioners on 13, 14, 20 and
21 February 1993; that despite their having passed the
examinations petitioners arbitrarily refused to perform
the legal duty of administering private respondents'
oaths and illegally withheld their licenses to practice
medicine; and, that petitioners maliciously singled out
respondents for having obtained unusually high ratings
especially inBiochemistry, and Obstetrics and
Gynecology. Thus private respondents prayed that a
preliminary mandatory injunction be issued ordering

petitioners to immediately allow them to take their

oaths as physicians and thereafter issue their
professional license cards.
On 28 July 1993 the trial court 1 granted a writ of
preliminary mandatory injunction directing petitioners to
administer the oath to the six (6) private respondents
and to register them as professional physicians in the
rolls of the Professional Regulation Commission.
Petitioners questioned the issuance of the writ before
the Court of Appeals. In its decision of 21 October 1993
respondent appellate court nullified the injunctive writ
issued by the lower court. 2 It opined that the authority
of petitioners to determine who should be admitted to
the practice of medicine and regulate the medical
profession required the discharge of discretionary, not
ministerial, functions.
Private respondents led by Arlene de Guzman sought
recourse in this Court through a petition for review
oncertiorari. In a resolution dated 23 May 1994 the
Court denied the petition for failure to sufficiently show
that respondent Court of Appeals had committed any
reversible error in rendering the questioned judgment
setting aside the writ of preliminary mandatory
injunction earlier issued in favor of the medical
examinees. 3
Meanwhile, the pre-trial in Civil Case No. 93-66530 was
set on 22 November 1993 by the presiding judge of the
RTC-Br. 52, Manila. Thereat the parties agreed that
private respondents would simply submit the affidavits
of their witnesses to constitute their direct examination,
subject to cross examination. The next hearing was set
on 13 December 1993.
On 13 December 1993 counsel for petitioners did not
appear and petitioners were declared to have waived
their right to cross examination. On 27 January 1994,
petitioners' counsel filed a manifestation and motion
stating the reasons for her nonappearance and prayed
that she be furnished the 13 December 1993 order and
that the case be set anew for cross examination of
witnesses. The court did not act on the pleading for lack
of proof of service to the adverse counsel.
On 21 February 1994 petitioners proceeded to file a
motion for reconsideration which the Branch Clerk of
Court refused to accept upon instruction of Judge
Nitafan that such motion should be accompanied not by
proof of mailing but by proof of personal service.
Petitioners complied the following day.

On 28 February 1994 the trial court denied the motion

on the ground that the adverse counsel was notified
thereof less than three (3) days prior to the hearing.

a notice of appeal. 8 Pending appeal private respondents

moved for execution of the judgment but the trial court
left the incident for the Court of Appeals to resolve.

Meanwhile, pursuant to Board Resolution No. 26 dated

21 July 1993 of petitioners' Board of Medicine, the
examinees from Fatima College of Medicine, including
private respondents, were charged in Adm. Case No.
1687 with immorality, dishonest conduct, fraud and
deceit in connection with the examinations
in Biochemistry, andObstetrics and Gynecology. On 4
March 1994 private respondents moved for a restraining
order to prevent petitioners from proceeding with the
hearing of Adm. Case No. 1687 which the trial court
granted in its order of 4 April 1994.

Claiming apprehension that any execution pending

appeal would prejudice public interest as private
respondents might be allowed to practice medicine
despite serious questions on their moral and mental
fitness to practice the profession, petitioners secured
from this Court on 6 January 1995 a temporary
restraining order enjoining the implementation of the
trial court's decision in Civil Case No. 93-66530. 9

In a counter move on 20 June 1994 petitioners came to

this Court seeking the nullification of the orders of the
trial court dated 13 December 1993, 28 February 1994
and 4 April 1994 for allegedly having been issued with
grave abuse of discretion. 4 At the same time they
sought the dismissal of Civil Case No. 93-66530 in view
of the 23 May 1994 resolution of the High Court. We
referred the petition to respondent Court of Appeals. 5
On 31 August 1994 the appellate court declared the
questioned orders of the trial court null and void. It
ordered said court to allow petitioners' counsel to cross
examine the witnesses of private respondents, to allow
petitioners to present their evidence in due course of
the trial and thereafter decide Civil Case No. 93-66530
on the merits on the basis of the evidence of the
parties. 6 Petitioners asked for partial reconsideration
insofar as the appellate court did not order the dismissal
of the aforesaid civil case.
On 25 October 1994 the appellate court denied the
motion for reconsideration on the ground that the
prayers for nullification of the orders of the trial court
and the dismissal of the mandamus petition were
inconsistent reliefs. 7
On 23 December 1994 the now infamous "Fatima
controversy" made a comeback in this Court through
the instant petition for review on certiorari assailing the
appellate court for its perceived error in not outrightly
calling for the dismissal of Civil Case No. 93-66530.
In the meantime, on 19 December 1994 the Manila trial
court rendered judgment on the merits in Civil Case No.
93-66530. It ordered petitioners anew to allow private
respondents to take the physician's oath and to register
them as physicians but without prejudice to any
administrative disciplinary action which might be taken
against them. The decision was received by petitioners
on 20 December 1994. On 26 December 1994 they filed

G.R. No. 118437. On 25 November 1994 petitioners

moved for the inhibition of respondent Judge David G.
Nitafan pointing out his proclivity to proceed with the
trial of Civil Case No. 93-66530 despite his knowledge of
petitioners' intention to assail the appellate court's
rulings before this Court. Petitioners moreover alleged
that his partiality towards private respondents was
evident.
But Judge Nitafan refused to inhibit himself, as shown in
his order of 2 December 1994. On 17 January 1995
petitioners went directly to this Court through the
present petition for certiorari praying for the
consolidation of this case with G.R. No. 117817 and that
judgment be rendered nullifying the 31 August 1994
decision of the Court of Appeals insofar as it did not
order respondent Judge Nitafan to dismiss Civil Case No.
93-66530; in the alternative, setting aside the decision
of respondent Judge dated 19 December 1994 and
ordering him to inhibit himself and thereafter to
transmit the records of Civil Case No. 93-66530 to the
Executive Judge of Manila for raffle to the other judges
of the Regional Trial Court of Manila.
On 7 June 1995 the Court granted the consolidation of
G.R. No. 118437 with G.R. No. 117817.
Disposing now of these two (2) cases separately,
petitioners assert in G.R. No. 117817 that the Court of
Appeals should have ordered the dismissal of Civil Case
No. 93-66530 as this Court in its resolution of 23 May
1994 had affirmed the appellate court's ruling that the
issuance of a license to engage in the practice of
medicine was not ministerial on the part of petitioners
upon the examinee's passing the board examinations if
there was doubt that such examinee did not fully meet
the requisites laid down by law.
Respondent examinees, on the other hand, contend that
the present petition has become moot since the Manila
trial court has already rendered a decision in the
mandamus case and petitioners have already filed a
notice of appeal.

Indeed, the issue as to whether the Court of Appeals

erred in not ordering the dismissal of Civil Case No. 9366530 sought to be resolved in the instant petition has
been rendered meaningless by an event taking place
prior to the filing of this petition and denial thereof
should follow as a logical consequence. 10 There is no
longer any justifiable controversy so that any
declaration thereon would be of no practical use or
value. 11 It should be recalled that in its decision of 19
December 1994 the trial court granted the writ of
mandamus prayed for by private respondents which
decision was received by petitioners on 20 December
1994. Three (3) days after, or on 23 December 1994,
petitioners filed the instant petition. By then, the
remedy available to them was to appeal the decision to
the Court of Appeals, which they in fact did, by filing a
notice of appeal on 26 December 1994.
Viewing the circumstances from another angle, it may
be argued that this petition should not have been filed
at all. And so, respondents claim that this petition was
filed despite knowledge by petitioners that the trial
court had already resolved Civil Case No. 93-66530. To
this, petitioners' counsel, then Solicitor (now Assistant
Solicitor General) Amparo Cabotaje-Tang counters
As in any government office, and even
private offices for that matter, there are
standard operating procedures that
have to be observed upon receipt of
documents by its docket/receiving
section or division. Thus, because of
these procedures there is attendant
delay in the routing of these documents.
In this particular case, the Notice of
Decision . . . and Decision of respondent
judge (were) received by the Docket
Division of the OSG on December 20,
1994 as shown in the stamp mark
appearing on the face of the Notice . . .
The same was transmitted to the
Division of ASG Oswaldo D. Agcaoili
onDecember 21, 1994 as shown in the
pertinent page of the record book of the
OSG docket division . . . . After ASG
Agcaoili initialed the Notice of Decision .
. . he returned it to his secretary, Santa
M. Palito, for proper recording. The latter
transmitted the same Notice to the
undersigned ASG's former secretary,
Ma. Zorayda Tejones, on December 23,
1994 as shown in the pertinent page of
her (Santa's) record book . . . . In this
connection, it is respectfully informed
that said Notice was routed to ASG
Agcaoili because Special Civil Action No.

93-66530 was assigned to the

undersigned ASG during her stint as a
Solicitor under his (ASG Agcaoili's) direct
supervision.
Considering that it was late in the
afternoon of December 23, 1994, a
Friday, that the aforesaid Notice was
received by the undersigned ASG's
secretary and the fact that the OSG
employees were allowed to go home at
3:00 o'clock in the afternoon of that
same day . . . the latter was not able to
route it anymore to the undersigned
ASG that same day.
On December 26, 1994, the
undersigned ASG's secretary brought
the same Notice of Decision to her.
Upon seeing it, she immediately
instructed her secretary to prepare the
Notice of Appeal through a marginal
note in a Notice of Decision and
thereafter, initialed the same Notice of
Appeal and inscribed her date of receipt
thereof . . . . 12
Thus, ASG Cabotaje-Tang maintains that at the time of
the filing of this petition on 23 December 1994 she was
not aware of the decision of the trial court. She further
explains that the notice of appeal was filed to preserve
their right of appeal and to avert the execution of the
lower court's decision.
We find the explanation satisfactory. Although there was
an apparent delay in the routing of the decision from
the office of Assistant Solicitor General Oswaldo D.
Agcaoili (now Associate Justice of the Court of Appeals)
to the secretary of ASG Cabotaje-Tang, i.e., the decision
remained there from 21 December up to late afternoon
of 23 December, ASG Cabotaje-Tang had no control over
the action of the secretary of ASG Agcaoili. And even if
the secretary of ASG Cabotaje-Tang immediately
forwarded the decision to the latter upon receipt at
three in the afternoon of 23 December, the filing of this
petition was already a fait accompli at 2:13 that same
afternoon. 13 We shall reserve the discussion on the
effect of petitioners' notice of appeal in the second
petition.
Through the petition in G.R. No. 118437 filed on 17
January 1995 against Judge Nitafan and private
respondents, petitioners seek to nullify the order of
respondent Judge dated 2 December 1994 in Civil Case
No. 93-66530 denying petitioners' motion for his
inhibition, as well as his decision of 19 December 1994

granting the petition for mandamus in favor of

respondent examinees. Petitioners contend that
respondent Judge should have recused himself from
further acting on Civil Case No. 93-66530 because of his
evident partiality towards respondents. Additionally, he
should not have decided the mandamus case with
amazing speed since G.R. No. 117817 was initiated
precisely to review the 31 August 1994 decision of
respondent Court of Appeals.
On the other hand, respondents urge the Court to
declare petitioners guilty of forum shopping for filing
this petition despite the pendency of their appeal before
respondent appellate court in CA - G.R. SP No. 37283.
Petitioners counter by reiterating that they filed their
notice of appeal to preserve their period of appeal and
prevent the execution of the decision. Although the
matter of inhibition could be assigned as error in the
appeal, they aver that it would not constitute a plain,
speedy and adequate remedy; moreover, the decision
was issued without jurisdiction and/or with grave abuse
of discretion correctible by certiorari. They stress that
they never sought a favorable judgment in another
forum after receiving an adverse decision from one
forum except thru an appeal or a petition for review
on certiorari. Neither have they pursued simultaneous
remedies in different fora involving similar or identical
issues in a case.
We hold that the liability of petitioners for forum
shopping has not been established. For forum shopping
to exist, both actions must involve the same
transactions and same essential facts and
circumstances. Furthermore, there must be identical
causes of actions, subject matter and issues. 14 Thus the
mere fact that an appeal by petitioners is pending
before the Court of Appeals based on the same
transactions, essential facts and circumstances and
subject matter, does not suffice to conclude that there
was forum shopping. There should likewise be identical
issues raised. According to petitioners, the issues in
their appeal before the Court of Appeals are different
from those in this petition. This allegation is not
disputed by respondents. It is incumbent upon
respondents to substantiate their charge, for instance,
by furnishing the Court with petitioners' brief or
memorandum filed before the appellate court but they
failed to do so.
At this point, we are more concerned with the propriety
of petitioners' act of filing this petition despite an earlier
perfected appeal before the Court of Appeals.
It is settled that the remedies of an ordinary appeal
and certiorari are mutually exclusive, not alternative or

successive. 15 But in the case of Lansana Jr. v. Court of

Appeals 16 we held that appeal and certiorari may not be
mutually exclusive in view of attendant circumstances.
In Lansana Jr., petitioners were ordered by the trial court
to pay a certain amount of damages to respondents.
Petitioners moved for reconsideration and to allow them
to present evidence on their failure to attend the
scheduled hearing and on the excessive award of
damages. Their motion was denied, prompting them to
file their notice of appeal. The notice was approved and
the records of the case were ordered forwarded to the
appellate court. Later petitioners filed before the latter
court a petition for certiorari directed against the same
denial of their motion. They alleged that they had
perfected their appeal but it was not an adequate,
speedy and plain remedy because of the P250.00 daily
penalty mentioned in the award. Their petition was
dismissed on the ground that the perfected appeal was
inconsistent with certiorari. We overturned this ruling
with the ratiocination that
. . . . After a judgment had been
rendered and an appeal therefrom had
been perfected, a petition
forcertiorari relating to certain incidents
therein may prosper where the appeal
does not appear to be a plain, speedy
and adequate remedy . . . .
Indeed, there are instances when this
Court relaxed the application of Rule 65
on certiorari and allowed the writ to
issue even while appeal was available in
the interest of justice, or due to the
dictates of public welfare and for the
advancement of public policy.
In this case, after judgment was
rendered, petitioners filed a motion for
reconsideration . . . . The failure of
counsel and petitioners to appear on
November 8, 1985 in order to present
(their) evidence was duly explained and
which may be considered excusable.
The courts are called upon to be liberal
in the assessment of the nonappearance of counsel for the party if
only to promote the greater interest of
justice.
While it appears that the vehicle of
petitioners hit the car of private
respondent while parked, it is contended
by petitioners that it was parked in a
prohibited zone. Assuming the
petitioners to be at fault, they contend
the additional damage of P250.00 per

day is unconscionable in addition to the

actual damage to the car of P19,500.00
and P10,000.00 fees and expenses of
litigation. They estimate the damage
awarded can run up to the amount of
P600,000.00.
These circumstances justify the grant to
petitioners of another day in
court . . . . 17
Yet we cannot apply the Lansang Jr. case to the present
petition because recourse to certiorari is no longer
warranted. There is no showing of a need to promptly
extricate petitioners from the unfavorable judgment of
the trial court. 18 Rather we find that their perfected
appeal can adequately grant the relief they seek. We
therefore apply the settled rule mentioned earlier that
the remedies of appeal and certiorari are mutually
exclusive and not alternative or successive.
Furthermore we note that while petitioners claim that
their appeal "would not constitute a plain, speedy and
adequate remedy," they did not see fit to withdraw or
abandon it after filing the instant petition. In fact, their
appeal is still pending resolution in the appellate court.
As it is, respondent court and this Court are reviewing
the same decision of the trial court at the same time.
There is thus the distinct possibility that the appellate
court may reverse the lower court. In such event, its
action could collide with a ruling finding no merit in
petitioners' arguments before this Court. Such a
situation would lead to absurdity and confusion in the
ultimate disposition of the case. This possibility must be
avoided at all costs. 19 A party is not allowed to pursue
simultaneous remedies in two (2) different fora because
such practice works havoc on orderly judicial procedure.
Indeed, the conduct of ASG Cabotaje-Tang in filing the
petition in G.R. No. 118437 borders on the censurable
as she trifled with the courts, abused their processes
and added to the already heavily burdened dockets.
While counsel may owe entire devotion to the interest of
her client, her privilege to practice law carries with it
certain correlative duties to the court one of which is to
assist in the speedy and efficient administration of
justice and not saddle the court with multiple actions
arising from the same cause. A lawyer who performs her
duty with diligence and candor not only protects the
interest of her client, she also serves the ends of justice,
does honor to the bar and helps maintain the respect of
the community to the legal profession. 20
WHEREFORE, the petition in G.R. No. 117817 is
DISMISSED for being moot. The petition in G.R. No.
118437 is likewise DISMISSED on the ground that there

is a pending appeal before the Court of Appeals.

Assistant Solicitor General Amparo M. Cabotaje-Tang is
advised to be more circumspect in her dealings with the
courts as a repetition of the same or similar acts will be
dealt with accordingly.

DEPARTMENT OF EDUCATION, CULTURE AND

SPORTS (DECS) and DIRECTOR OF CENTER FOR
EDUCATIONAL MEASUREMENT, petitioners,
vs.
ROBERTO REY C. SAN DIEGO and JUDGE TERESITA
DIZON-CAPULONG, in her capacity as Presiding
Judge of the Regional Trial Court of Valenzuela,
Metro Manila, Branch 172, respondents.
Ramon M. Guevara for private respondent.

CRUZ, J.:
The issue before us is mediocrity. The question is
whether a person who has thrice failed the National
Medical Admission Test (NMAT) is entitled to take it
again.
The petitioner contends he may not, under its rule thath) A student shall be allowed only three
(3) chances to take the NMAT. After
three (3) successive failures, a student
shall not be allowed to take the NMAT
for the fourth time.
The private respondent insists he can, on constitutional
grounds.
But first the facts.
The private respondent is a graduate of the University
of the East with a degree of Bachelor of Science in
Zoology. The petitioner claims that he took the NMAT
three times and flunked it as many times. 1 When he
applied to take it again, the petitioner rejected his
application on the basis of the aforesaid rule. He then
went to the Regional Trial Court of Valenzuela, Metro
Manila, to compel his admission to the test.
In his original petition for mandamus, he first invoked
his constitutional rights to academic freedom and
quality education. By agreement of the parties, the
private respondent was allowed to take the NMAT
scheduled on April 16, 1989, subject to the outcome of

his petition. 2 In an amended petition filed with leave of

court, he squarely challenged the constitutionality of
MECS Order No. 12, Series of 1972, containing the
above-cited rule. The additional grounds raised were
due process and equal protection.
After hearing, the respondent judge rendered a decision
on July 4, 1989, declaring the challenged order invalid
and granting the petition. Judge Teresita Dizon-Capulong
held that the petitioner had been deprived of his right to
pursue a medical education through an arbitrary
exercise of the police power. 3
We cannot sustain the respondent judge. Her decision
must be reversed.
In Tablarin v. Gutierrez, 4 this Court upheld the
constitutionality of the NMAT as a measure intended to
limit the admission to medical schools only to those who
have initially proved their competence and preparation
for a medical education. Justice Florentino P. Feliciano
declared for a unanimous Court:
Perhaps the only issue that needs some
consideration is whether there is some
reasonable relation between the
prescribing of passing the NMAT as a
condition for admission to medical
school on the one hand, and the
securing of the health and safety of the
general community, on the other hand.
This question is perhaps most usefully
approached by recalling that the
regulation of the pratice of medicine in
all its branches has long been
recognized as a reasonable method of
protecting the health and safety of the
public. That the power to regulate and
control the practice of medicine includes
the power to regulate admission to the
ranks of those authorized to practice
medicine, is also well recognized. Thus,
legislation and administrative
regulations requiring those who wish to
practice medicine first to take and pass
medical board examinations have long
ago been recognized as valid exercises
of governmental power. Similarly, the
establishment of minimum medical
educational requirements-i.e., the
completion of prescribed courses in a
recognized medical school-for admission
to the medical profession, has also been
sustained as a legitimate exercise of the
regulatory authority of the state. What
we have before us in the instant case is
closely related: the regulation of access

to medical schools. MECS Order No. 52,

s. 1985, as noted earlier, articulates the
rationale of regulation of this type: the
improvement of the professional and
technical quality of the graduates of
medical schools, by upgrading the
quality of those admitted to the student
body of the medical schools. That
upgrading is sought by selectivity in the
process of admission, selectivity
consisting, among other things, of
limiting admission to those who exhibit
in the required degree the aptitude for
medical studies and eventually for
medical practice. The need to maintain,
and the difficulties of maintaining, high
standards in our professional schools in
general, and medical schools in
particular, in the current state of our
social and economic development, are
widely known.
We believe that the government is
entitled to prescribe an admission test
like the NMAT as a means of achieving
its stated objective of "upgrading the
selection of applicants into [our] medical
schools" and of "improv[ing] the quality
of medical education in the country."
Given the widespread use today of such
admission tests in, for instance, medical
schools in the United States of America
(the Medical College Admission Test
[MCAT] and quite probably, in other
countries with far more developed
educational resources than our own, and
taking into account the failure or
inability of the petitioners to even
attempt to prove otherwise, we are
entitled to hold that the NMAT is
reasonably related to the securing of the
ultimate end of legislation and
regulation in this area. That end, it is
useful to recall, is the protection of 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.
However, the respondent judge agreed with the
petitioner that the said case was not applicable. Her
reason was that it upheld only the requirement for the
admission test and said nothing about the so-called
"three-flunk rule."

We see no reason why the rationale in the Tablarin case

cannot apply to the case at bar. The issue raised in both
cases is the academic preparation of the applicant. This
may be gauged at least initially by the admission test
and, indeed with more reliability, by the three-flunk rule.
The latter cannot be regarded any less valid than the
former in the regulation of the medical profession.
There is no need to redefine here the police power of
the State. Suffice it to repeat that the power is validly
exercised if (a) the interests of the public generally, as
distinguished from those of a particular class, require
the interference of the State, and (b) the means
employed are reasonably necessary to the attainment
of the object sought to be accomplished and not unduly
oppressive upon individuals. 5
In other words, the proper exercise of the police power
requires the concurrence of a lawful subject and a lawful
method.
The subject of the challenged regulation is certainly
within the ambit of the police power. It is the right and
indeed the responsibility of the State to insure that the
medical profession is not infiltrated by incompetents to
whom patients may unwarily entrust their lives and
health.
The method employed by the challenged regulation is
not irrelevant to the purpose of the law nor is it arbitrary
or oppressive. The three-flunk rule is intended to
insulate the medical schools and ultimately the medical
profession from the intrusion of those not qualified to be
doctors.
While every person is entitled to aspire to be a doctor,
he does not have a constitutional right to be a doctor.
This is true of any other calling in which the public
interest is involved; and the closer the link, the longer
the bridge to one's ambition. The State has the
responsibility to harness its human resources and to see
to it that they are not dissipated or, no less worse, not
used at all. These resources must be applied in a
manner that will best promote the common good while
also giving the individual a sense of satisfaction.
A person cannot insist on being a physician if he will be
a menace to his patients. If one who wants to be a
lawyer may prove better as a plumber, he should be so
advised and adviced. Of course, he may not be forced to
be a plumber, but on the other hand he may not force
his entry into the bar. By the same token, a student who
has demonstrated promise as a pianist cannot be
shunted aside to take a course in nursing, however
appropriate this career may be for others.

The right to quality education invoked by the private

respondent is not absolute. The Constitution also
provides that "every citizen has the right to choose a
profession or course of study, subject to fair, reasonable
and equitable admission and academic requirements. 6
The private respondent must yield to the challenged
rule and give way to those better prepared. Where even
those who have qualified may still not be
accommodated in our already crowded medical schools,
there is all the more reason to bar those who, like him,
have been tested and found wanting.
The contention that the challenged rule violates the
equal protection clause is not well-taken. A law does not
have to operate with equal force on all persons or things
to be conformable to Article III, Section 1 of the
Constitution.
There can be no question that a substantial distinction
exists between medical students and other students
who are not subjected to the NMAT and the three-flunk
rule. The medical profession directly affects the very
lives of the people, unlike other careers which, for this
reason, do not require more vigilant regulation. The
accountant, for example, while belonging to an equally
respectable profession, does not hold the same delicate
responsibility as that of the physician and so need not
be similarly treated.
There would be unequal protection if some applicants
who have passed the tests are admitted and others who
have also qualified are denied entrance. In other words,
what the equal protection requires is equality among
equals.
The Court feels that it is not enough to simply invoke
the right to quality education as a guarantee of the
Constitution: one must show that he is entitled to it
because of his preparation and promise. The private
respondent has failed the NMAT five times. 7 While his
persistence is noteworthy, to say the least, it is certainly
misplaced, like a hopeless love.
No depreciation is intended or made against the private
respondent. It is stressed that a person who does not
qualify in the NMAT is not an absolute incompetent unfit
for any work or occupation. The only inference is that he
is a probably better, not for the medical profession, but
for another calling that has not excited his interest.
In the former, he may be a bungler or at least
lackluster; in the latter, he is more likely to succeed and
may even be outstanding. It is for the appropriate
calling that he is entitled to quality education for the full
harnessing of his potentials and the sharpening of his

latent talents toward what may even be a brilliant

future.
We cannot have a society of square pegs in round holes,
of dentists who should never have left the farm and
engineers who should have studied banking and
teachers who could be better as merchants.

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.

It is time indeed that the State took decisive steps to

regulate and enrich our system of education by
directing the student to the course for which he is best
suited as determined by initial tests and evaluations.
Otherwise, we may be "swamped with mediocrity," in
the words of Justice Holmes, not because we are lacking
in intelligence but because we are a nation of misfits.

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.

WHEREFORE, the petition is GRANTED. The decision of

the respondent court dated January 13, 1989, is
REVERSED, with costs against the private respondent. It
is so ordered.

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.

The facts, as found by the trial court, are as follows:

MEDICAL NEGLIGENCE
DR. VICTORIA L. BATIQUIN and ALLAN
BATIQUIN, petitioners,
vs.
COURT OF APPEALS, SPOUSES QUEDO D.
ACOGIDO and FLOTILDE G. VILLEGAS, respondents.

DAVIDE, JR., J.:p

Throughout history, patients have consigned their fates
and lives to the skill of their doctors. For a breach of this
trust, men have been quick to demand retribution.
Some 4,000 years ago, the Code of Hammurabi 1 then
already provided: "If a physician make a deep incision
upon a man with his bronze lancet and cause the man's
death, or operate on the eye socket of a man with his
bronze lancet and destroy the man's eyes, they shall cut
off his hand." 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 patients,
and abstain from whatever is deleterious and
mischievous. . . . While I continue to keep this oath
unviolated may it be granted me to enjoy life and
practice the art, respected by all men at all times but
should I trespass and violate this oath, may the reverse
be my lot." At present, the primary objective of the
medical profession if the preservation of life and
maintenance of the health of the people. 4

Mrs. Villegas is a married woman who

submitted to Dr. Batiquin for prenatal
care as the latter's private patient
sometime before September 21, 1988.
In the morning of September 21, 1988
Dr. Batiquin, with the assistance of Dr.
Doris Teresita Sy who was also a
Resident Physician at the same Hospital,
C.I. and O.R. Nurse Arlene Diones and
some student nurses performed a
simple caesarean section on Mrs.
Villegas at the Negros Oriental Provincial
Hospital and after 45 minutes Mrs.
Villegas delivered her first child, Rachel
Acogido, at about 11:45 that morning.
Thereafter, Plaintiff remained confined
at the Hospital until September 27,
1988 during which period of
confinement she was regularly visited
by Dr. Batiquin. On September 28, 1988
Mrs. Villegas checked out of the
Hospital. . . and on that same day she
paid Dr. Batiquin, thru the latter's
secretary, the amount of P1,500.00 as
"professional fee". . . .
Soon after leaving the Hospital Mrs.
Villegas began to suffer abdominal pains
and complained of being feverish. She
also gradually lost her appetite, so she
consulted Dr. Batiquin at the latter's

polyclinic who prescribed for her certain

medicines. . . which she had been taking
up to December, 1988.
In the meantime, Mrs. Villegas was
given a Medical Certificate by Dr.
Batiquin on October 31, 1988. . .
certifying to her physical fitness to
return to her work on November 7,
1988. So, on the second week of
November, 1988 Mrs. Villegas returned
to her work at the Rural Bank of
Ayungon, Negros Oriental.
The abdominal pains and fever kept on
recurring and bothered Mrs. Villegas no
end despite the medications
administered by Dr. Batiquin. When the
pains became unbearable and she was
rapidly losing weight she consulted Dr.
Ma. Salud Kho at the Holy Child's
Hospital in Dumaguete City on January
20, 1989.
The evidence of Plaintiffs show that
when Dr. Ma. Salud Kho examined Mrs.
Villegas at the Holy Child's Hospital on
January 20, 1989 she found Mrs. Villegas
to be feverish, pale and was breathing
fast. Upon examination she felt an
abdominal mass one finger below the
umbilicus which she suspected to be
either a tumor of the uterus or an
ovarian cyst, either of which could be
cancerous. She had an x-ray taken of
Mrs. Villegas' chest, abdomen and
kidney. She also took blood tests of
Plaintiff. A blood count showed that Mrs.
Villegas had [an] infection inside her
abdominal cavity. The results of all those
examinations impelled Dr. Kho to
suggest that Mrs. Villegas submit to
another surgery to which the latter
agreed.
When Dr. Kho opened the abdomen of
Mrs. Villegas she found whitish-yellow
discharge inside, an ovarian cyst on
each of the left and right ovaries which
gave out pus, dirt and pus behind the
uterus, and a piece of rubber material
on the right side of the uterus
embedded on [sic] the ovarian cyst, 2
inches by 3/4 inch in size. This piece of
rubber material which Dr. Kho described
as a "foreign body" looked like a piece of
a "rubber glove". . . and which is [sic]

also "rubber-drain like". . . . It could

have been a torn section of a surgeon's
gloves or could have come from other
sources. And this foreign body was the
cause of the infection of the ovaries and
consequently of all the discomfort
suffered by Mrs. Villegas after her
delivery on September 21, 1988. 7
The piece of rubber allegedly found near private
respondent Flotilde Villegas's uterus was not presented
in court, and although Dr. Ma. Salud Kho Testified that
she sent it to a pathologist in Cebu City for
examination, 8 it was not mentioned in the pathologist's
Surgical Pathology Report. 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]
says [sic] there is [sic] a
foreign body that goes
with the tissues but
unluckily I don't know
where the rubber
was. 17
The trial court deemed vital Dr. Victoria Batiquin's
testimony that when she confronted Dr. Kho regarding
the piece of rubber, "Dr. Kho answered that there was
rubber indeed but that she threw it away." 18 This
statement, the trial court noted, was never denied nor
disputed by Dr. Kho, leading it to conclude:
There are now two different versions on
the whereabouts of that offending
"rubber" (1) that it was sent to the
Pathologist in Cebu as testified to in
Court by Dr. Kho and (2) that Dr. Kho
threw it away as told by her to

Defendant. The failure of the Plaintiffs to

reconcile these two different versions
serve only to weaken their claim against
Defendant Batiquin. 19
All told, the trial court held in favor of the petitioners
herein.
The Court of Appeals reviewed the entirety of Dr. Kho's
testimony and, even without admitting the private
respondents' documentary evidence, deemed Dr. Kho's
positive testimony to definitely establish that a piece of
rubber was found near private respondent Villegas's
uterus. Thus, the Court of Appeals reversed the decision
of the trial court, holding:
4. The fault or negligence of appellee Dr.
Batiquin is established by
preponderance of evidence. The trial
court itself had narrated what happened
to appellant Flotilde after the caesarean
operation made by appellee doctor. . . .
After the second operation, appellant
Flotilde became well and healthy.
Appellant Flotilde's troubles were
caused by the infection due to the
"rubber" that was left inside her
abdomen. Both appellant; testified that
after the operation made by appellee
doctor, they did not go to any other
doctor until they finally decided to see
another doctor in January, 1989 when
she was not getting any better under
the care of appellee Dr. Batiquin. . . .
Appellee Dr. Batiquin admitted on the
witness stand that she alone decided
when to close the operating area; that
she examined the portion she operated
on before closing the same. . . Had she
exercised due diligence, appellee Dr.
Batiquin would have found the rubber
and removed it before closing the
operating area. 20
The appellate court then ruled:

negligence of appellee Dr. Batiquin they

are entitled to moral damages in the
amount of P100,000.00; exemplary
damages in the amount of P20,000.00
and attorney's fees in the amount of
P25,000.00.
The fact that appellant Flotilde can no
longer bear children because her uterus
and ovaries were removed by Dr. Kho is
not taken into consideration as it is not
shown that the removal of said organs
were the direct result of the rubber left
by appellee Dr. Batiquin near the uterus.
What is established is that the rubber
left by appellee caused infection, placed
the life of appellant Flotilde in jeopardy
and caused appellant fear, worry and
anxiety. . . .
WHEREFORE, the appealed judgment,
dismissing the complaint for damages is
REVERSED and SET ASIDE. Another
judgment is hereby entered ordering
defendants-appellees to pay plaintiffsappellants the amounts of P17,000.00
as and for actual damages; P100,000.00
as and for moral damages; P20,000.00
as and for exemplary damages; and
P25,000.00 as and for attorney's fees
plus the costs of litigation.
SO ORDERED. 21
From the above judgment, the petitioners appealed to
this Court claiming that the appellate court: (1)
committed grave abuse of discretion by resorting to
findings of fact not supported by the evidence on
record, and (2) exceeded its discretion, amounting to
lack or excess of jurisdiction, when it gave credence to
testimonies punctured with contradictions and falsities.
The private respondents commented that the petition
raised only questions of fact, which were not proper for
review by this Court.

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.

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

For the miseries appellants endured for

more than three (3) months, due to the

After deciphering the cryptic petition, we find that the

focal point of the instant appeal is the appreciation of

10

Dr. Kho's testimony. The petitioners contend that the

Court of Appeals misappreciated the following portion of
Dr. Kho's testimony:
Q What is the purpose of
the examination?
A Just in case, I was just
thinking at the back of
my mind, just in case
this would turn out to be
a medico-legal
case, I have heard some
body that [sic] says [sic]
there is [sic] a
foreign body that goes
with the tissues but unlu
ckily 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:
Q So you did actually
conduct the operation
on her?
A Yes, I did.
Q And what was the
result?
A Opening up her
abdomen, there was
whitish-yellow discharge
inside the abdomen,
there was an ovarian
cyst on the left and side
and there was also an
ovarian cyst on the right
which, on opening up or
freeing it up from the
uterus, turned out to be
pus. Both ovaries turned
out. . . to have pus. And

then, cleaning up the

uterus, at the back of
the uterus it was very
dirty, it was full of pus.
And there was a [piece
of] rubber, we found a
[piece of] rubber on the
right
side. 24
We agree with the Court of Appeals. The phrase relied
upon by the trial court does not negate the fact that Dr.
Kho saw a piece of rubber in private respondent
Villegas's abdomen, and that she sent it to a laboratory
and then to Cebu City for examination by a
pathologist. 25 Not even the Pathologist's Report,
although devoid of any mention of a piece of rubber,
could alter what Dr. Kho saw. Furthermore, Dr. Kho's
knowledge of the piece of rubber could not be based on
other than first-hand knowledge for, as she asserted
before the trial court:
Q But you are sure you
have seen [the piece of
rubber]?
A Oh yes. I was not the
only one who saw it. 26
The petitioners emphasize that the private respondents
never reconciled Dr. Kho's testimony with Dr. Batiquin's
claim on the witness stand that when Dr. Batiquin
confronted Dr. Kho about the foreign body, the latter
said that there was a piece of rubber but that she threw
it away. Although hearsay, Dr. Batiquin's claim was not
objected to, and hence, the same is admissible 27 but it
carries no probative value. 28 Nevertheless, assuming
otherwise, Dr. Batiquin's statement cannot belie the fact
that Dr. Kho found a piece of rubber near private
respondent Villegas's uterus. And even if we were to
doubt Dr. Kho as to what she did to the piece of
rubber, i.e., whether she threw it away or sent it to Cebu
City, we are not justified in distrusting her as to her
recovery of a piece of rubber from private respondent
Villegas's abdomen. On this score, it is perfectly
reasonable to believe the testimony of a witness with
respect to some facts and disbelieve his testimony with
respect to other facts. And it has been aptly said that
even when a witness is found to have deliberately
falsified in some material particulars, it is not required
that the whole of his uncorroborated testimony be
rejected, but such portions thereof deemed worthy of
belief may be credited. 29
It is here worth noting that the trial court paid heed to
the following portions of Dr. Batiquin's testimony: that

11

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 regarding of
the said testimony reveals no such infirmity and
establishes Dr. Kho as a credible witness. Dr. Kho was
frank throughout her turn on the witness stand.
Furthermore, no motive to state any untruth was ever
imputed against Dr. Kho, leaving her trustworthiness
unimpaired. 34 The trial court's following declaration
shows that while it was critical of the lack of care with
which Dr. Kho handled the piece of rubber, it was not
prepared to doubt Dr. Kho's credibility, thus only
supporting our appraisal of Dr. Kho's trustworthiness:
This is not to say that she was less than
honest when she testified about her
findings, but it can also be said that she
did not take the most appropriate
precaution to preserve that "piece of
rubber" as an eloquent evidence of what
she would reveal should there be a
"legal problem" which she claim[s] to
have anticipated. 35
Considering that we have assessed Dr. Kho to be a
credible witness, her positive testimony [that a piece of
rubber was indeed found in private respondent Villega's
abdomen] prevails over the negative testimony in favor
of the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This
Court has had occasion to delve into the nature and
operation of this doctrine:
This doctrine [res ipsa loquitur] is stated
thus: "Where the thing which causes
injury is shown to be under the
management of the defendant, and the
accident is such as in the ordinary
course of things does not happen in
those who have the management use
proper care, it affords reasonable

evidence, in the absence of an

explanation by the defendant, that the
accident arose from want of care." Or
as Black's Law Dictionary puts it:
Res ipsa loquitur. The
thing speaks for itself.
Rebuctable presumption
or inference that
defendant was
negligent, which arises
upon proof that [the]
instrumentality causing
injury was in
defendant's exclusive
control, and that the
accident was one which
ordinary does not
happen in absence of
negligence. Res ipsa
loquitur is [a] rule of
evidence whereby
negligence of [the]
alleged wrongdoer may
be inferred from [the]
mere fact that [the]
accident happened
provided [the] character
of [the] accident and
circumstances attending
it lead reasonably to
belief that in [the]
absence of negligence it
would not have occurred
and that thing which
caused injury is shown
to have been under
[the] management and
control of [the] alleged
wrongdoer. . . . Under
[this] doctrine
. . . the happening of an
injury permits an
inference of negligence
where plaintiff produces
substantial evidence
that [the] injury was
caused by an agency or
instrumentality under
[the] exclusive control
and management of
defendant, and that the
occurrence [sic] was
such that in the ordinary
course of things would
not happen if

12

reasonable care had

been used.
xxx xxx xxx
The doctrine of [r]es
ipsa loquitur as a rule of
evidence is peculiar to
the law of negligence
which recognizes
that prima
facie negligence may be
established without
direct proof and
furnishes a substitute
for specific proof of
negligence. The doctrine
is not a rule of
substantive law, but
merely a mode of proof
or a mere procedural
convenience. The rule,
when applicable to the
facts and circumstances
of a particular case, is
not intended to and
does not dispense with
the requirement of proof
of culpable negligence
on the party charged. It
merely determines and
regulates what shall
beprima facie evidence
thereof and facilitates
the burden of plaintiff of
proving a breach of the
duty of due care. The
doctrine can be invoked
when and only when,
under the circumstances
involved, direct
evidence is absent and
not readily available. 36
In the instant case, all the requisites for recourse to the
doctrine are present. First, the entire proceedings of the
caesarean section were under the exclusive control of
Dr. Batiquin. In this light, the private respondents were
bereft of direct evidence as to the actual culprit or the
exact cause of the foreign object finding its way into
private respondent Villegas's body, which, needless to
say, does not occur unless through the intersection of
negligence. Second, since aside from the caesarean
section, private respondent Villegas underwent no other
operation which could have caused the offending piece
of rubber to appear in her uterus, it stands to reason
that such could only have been a by-product of the

caesarean section performed by Dr. Batiquin. The

petitioners, in this regard, failed to overcome the
presumption of negligence arising from resort to the
doctrine of res ipsa loquitur. Dr. Batiquin is therefore
liable for negligently leaving behind a piece of rubber in
private respondent Villegas's abdomen and for all the
adverse effects thereof.
As a final word, this Court reiterates its recognition of
the vital role the medical profession plays in the lives of
the people, 37 and the State's compelling interest to
enact measures to protect the public from "the
potentially deadly effects of incompetence and
ignorance in those who would undertake to treat our
bodies and minds for disease or trauma." 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 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 CA-G.R. CV No. 30851 is hereby
AFFIRMED in toto.

ROGELIO E. RAMOS and ERLINDA RAMOS, in their

own behalf and as natural guardians of the
minors, ROMMEL RAMOS, ROY RODERICK RAMOS
and RON RAYMOND RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL
CENTER, DR. ORLINO HOSAKA and DRA. PERFECTA
GUTIERREZ, respondents.

KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give
primordial consideration to the health and welfare of
their patients. If a doctor fails to live up to this precept,
he is made accountable for his acts. A mistake, through
gross negligence or incompetence or plain human error,
may spell the difference between life and death. In this
sense, the doctor plays God on his patient's fate. 1
In the case at bar, the Court is called upon to rule
whether a surgeon, an anesthesiologist and a hospital
should be made liable for the unfortunate comatose
condition of a patient scheduled for cholecystectomy. 2

13

Petitioners seek the reversal of the decision 3 of the

Court of Appeals, dated 29 May 1995, which overturned
the decision 4 of the Regional Trial Court, dated 30
January 1992, finding private respondents liable for
damages arising from negligence in the performance of
their professional duties towards petitioner Erlinda
Ramos resulting in her comatose condition.
The antecedent facts as summarized by the trial court
are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the
afternoon of June 17, 1985, a 47-year
old (Exh. "A") robust woman (TSN,
October 19, 1989, p. 10). Except for
occasional complaints of discomfort due
to pains allegedly caused by the
presence of a stone in her gall bladder
(TSN, January 13, 1988, pp. 4-5), she
was as normal as any other woman.
Married to Rogelio E. Ramos, an
executive of Philippine Long Distance
Telephone Company, she has three
children whose names are Rommel
Ramos, Roy Roderick Ramos and Ron
Raymond Ramos (TSN, October 19,
1989, pp. 5-6).
Because the discomforts somehow
interfered with her normal ways, she
sought professional advice. She was
advised to undergo an operation for the
removal of a stone in her gall bladder
(TSN, January 13, 1988, p. 5). She
underwent a series of examinations
which included blood and urine tests
(Exhs. "A" and "C") which indicated she
was fit for surgery.
Through the intercession of a mutual
friend, Dr. Buenviaje (TSN, January 13,
1988, p. 7), she and her husband
Rogelio met for the first time Dr. Orlino
Hozaka (should be Hosaka; see TSN,
February 20, 1990, p. 3), one of the
defendants in this case, on June 10,
1985. They agreed that their date at the
operating table at the DLSMC (another
defendant), would be on June 17, 1985
at 9:00 A.M.. Dr. Hosaka decided that
she should undergo a
"cholecystectomy" operation after
examining the documents (findings from
the Capitol Medical Center, FEU Hospital
and DLSMC) presented to him. Rogelio
E. Ramos, however, asked Dr. Hosaka to
look for a good anesthesiologist. Dr.

Hosaka, in turn, assured Rogelio that he

will get a good anesthesiologist. Dr.
Hosaka charged a fee of P16,000.00,
which was to include the
anesthesiologist's fee and which was to
be paid after the operation (TSN,
October 19, 1989, pp. 14-15, 22-23, 3133; TSN, February 27, 1990, p. 13; and
TSN, November 9, 1989, pp. 3-4, 10,
17).
A day before the scheduled date of
operation, she was admitted at one of
the rooms of the DLSMC, located along
E. Rodriguez Avenue, Quezon City (TSN,
October 19,1989, p. 11).
At around 7:30 A.M. of June 17, 1985
and while still in her room, she was
prepared for the operation by the
hospital staff. Her sister-in-law,
Herminda Cruz, who was the Dean of
the College of Nursing at the Capitol
Medical Center, was also there for moral
support. She reiterated her previous
request for Herminda to be with her
even during the operation. After
praying, she was given injections. Her
hands were held by Herminda as they
went down from her room to the
operating 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 magalaala, darating na iyon" (Ibid.).

14

Thereafter, Herminda went out of the

operating room and informed the
patient's husband, Rogelio, that the
doctor was not yet around (id., p. 13).
When she returned to the operating
room, the patient told her, "Mindy, inip
na inip na ako, ikuha mo ako ng ibang
Doctor." So, she went out again and told
Rogelio about what the patient said (id.,
p. 15). Thereafter, she returned to the
operating room.
At around 10:00 A.M., Rogelio E. Ramos
was "already dying [and] waiting for the
arrival of the doctor" even as he did his
best to find somebody who will allow
him to pull out his wife from the
operating room (TSN, October 19, 1989,
pp. 19-20). He also thought of the
feeling of his wife, who was inside the
operating room waiting for the doctor to
arrive (ibid.). At almost 12:00 noon, he
met Dr. Garcia who remarked that he
(Dr. Garcia) was also tired of waiting for
Dr. Hosaka to arrive (id., p. 21). While
talking to Dr. Garcia at around 12:10
P.M., he came to know that Dr. Hosaka
arrived as a nurse remarked, "Nandiyan
na si Dr. Hosaka, dumating na raw."
Upon hearing those words, he went
down to the lobby and waited for the
operation to be completed (id., pp. 16,
29-30).
At about 12:15 P.M., Herminda Cruz,
who was inside the operating room with
the patient, heard somebody say that
"Dr. Hosaka is already here." She then
saw people inside the operating room
"moving, doing this and that, [and]
preparing the patient for the operation"
(TSN, January 13, 1988, p. 16). As she
held the hand of Erlinda Ramos, she
then saw Dr. Gutierrez intubating the
hapless patient. She thereafter heard Dr.
Gutierrez say, "ang hirap ma-intubate
nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan" (id., p. 17). Because
of the remarks of Dra. Gutierrez, she
focused her attention on what Dr.
Gutierrez was doing. She thereafter
noticed bluish discoloration of the
nailbeds of the left hand of the hapless
Erlinda even as Dr. Hosaka approached
her. She then heard Dr. Hosaka issue an
order for someone to call Dr. Calderon,
another anesthesiologist (id., p. 19).

After Dr. Calderon arrived at the

operating room, she saw this
anesthesiologist trying to intubate the
patient. The patient's nailbed became
bluish and the patient was placed in a
trendelenburg position a position
where the head of the patient is placed
in a position lower than her feet which is
an indication that there is a decrease of
blood supply to the patient's brain (Id.,
pp. 19-20). Immediately thereafter, she
went out of the operating room, and she
told Rogelio E. Ramos "that something
wrong was . . . happening" (Ibid.). Dr.
Calderon was then able to intubate the
patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside
the operating room, saw a respiratory
machine being rushed towards the door
of the operating room. He also saw
several doctors rushing towards the
operating room. When informed by
Herminda Cruz that something wrong
was happening, he told her (Herminda)
to be back with the patient inside the
operating room (TSN, October 19, 1989,
pp. 25-28).
Herminda Cruz immediately rushed
back, and saw that the patient was still
in trendelenburg position (TSN, January
13, 1988, p. 20). At almost 3:00 P.M. of
that fateful day, she saw the patient
taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E.
Ramos was able to talk to Dr. Hosaka.
The latter informed the former that
something went wrong during the
intubation. Reacting to what was told to
him, Rogelio reminded the doctor that
the condition of his wife would not have
happened, had he (Dr. Hosaka) looked
for a good anesthesiologist (TSN,
October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also
asked by the hospital to explain what
happened to the patient. The doctors
explained that the patient had
bronchospasm (TSN, November 15,
1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a
month. About four months thereafter or

15

on November 15, 1985, the patient was

released from the hospital.
During the whole period of her
confinement, she incurred hospital bills
amounting to P93,542.25 which is the
subject of a promissory note and
affidavit of undertaking executed by
Rogelio E. Ramos in favor of DLSMC.
Since that fateful afternoon of June 17,
1985, she has been in a comatose
condition. She cannot do anything. She
cannot move any part of her body. She
cannot see or hear. She is living on
mechanical means. She suffered brain
damage as a result of the absence of
oxygen in her brain for four to five
minutes (TSN, November 9, 1989, pp.
21-22). After being discharged from the
hospital, she has been staying in their
residence, still needing constant
medical attention, with her husband
Rogelio incurring a monthly expense
ranging from P8,000.00 to P10,000.00
(TSN, October 19, 1989, pp. 32-34). She
was also diagnosed to be suffering from
"diffuse cerebral parenchymal damage"
(Exh. "G"; see also TSN, December 21,
1989,
p. 6). 5
Thus, on 8 January 1986, petitioners filed a civil
case 6 for damages with the Regional Trial Court of
Quezon City against herein private respondents alleging
negligence in the management and care of Erlinda
Ramos.
During the trial, both parties presented evidence as to
the possible cause of Erlinda's injury. Plaintiff presented
the testimonies of Dean Herminda Cruz and Dr. Mariano
Gavino to prove that the sustained by Erlinda was due
to lack of oxygen in her brain caused by the faulty
management of her airway by private respondents
during the anesthesia phase. On the other hand, private
respondents primarily relied on the expert testimony of
Dr. Eduardo Jamora, a pulmonologist, to the effect that
the cause of brain damage was Erlinda's allergic
reaction to the anesthetic agent, Thiopental Sodium
(Pentothal).
After considering the evidence from both sides, the
Regional Trial Court rendered judgment in favor of
petitioners, to wit:
After evaluating the evidence as shown
in the finding of facts set forth earlier,

and applying the aforecited provisions of

law and jurisprudence to the case at
bar, this Court finds and so holds that
defendants are liable to plaintiffs for
damages. The defendants were guilty
of, at the very least, negligence in the
performance of their duty to plaintiffpatient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez,
this Court finds that she omitted to
exercise reasonable care in not only
intubating the patient, but also in not
repeating the administration of atropine
(TSN, August 20, 1991, pp. 5-10),
without due regard to the fact that the
patient was inside the operating room
for almost three (3) hours. For after she
committed a mistake in intubating [the]
patient, the patient's nailbed became
bluish and the patient, thereafter, was
placed in trendelenburg position,
because of the decrease of blood supply
to the patient's brain. The evidence
further shows that the hapless patient
suffered brain damage because of the
absence of oxygen in her (patient's)
brain for approximately four to five
minutes which, in turn, caused the
patient to become comatose.
On the part of Dr. Orlino Hosaka, this
Court finds that he is liable for the acts
of Dr. Perfecta Gutierrez whom he had
chosen to administer anesthesia on the
patient as part of his obligation to
provide the patient a good
anesthesiologist', and for arriving for the
scheduled operation almost three (3)
hours late.
On the part of DLSMC (the hospital), this
Court finds that it is liable for the acts of
negligence of the doctors in their
"practice of medicine" in the operating
room. Moreover, the hospital is liable for
failing through its responsible officials,
to cancel the scheduled operation after
Dr. Hosaka inexcusably failed to arrive
on time.
In having held thus, this Court rejects
the defense raised by defendants that
they have acted with due care and
prudence in rendering medical services
to plaintiff-patient. For if the patient was
properly intubated as claimed by them,

16

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.

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.

The decision of the Court of Appeals was received on 9

June 1995 by petitioner Rogelio Ramos who was
mistakenly addressed as "Atty. Rogelio Ramos." No copy
of the decision, however, was sent nor received by the
Coronel Law Office, then counsel on record of
petitioners. Rogelio referred the decision of the
appellate court to a new lawyer, Atty. Ligsay, only on 20
June 1995, or four (4) days before the expiration of the
reglementary period for filing a motion for
reconsideration. On the same day, Atty. Ligsay, filed
with the appellate court a motion for extension of time
to file a motion for reconsideration. The motion for
reconsideration was submitted on 4 July 1995. However,
the appellate court denied the motion for extension of
time in its Resolution dated 25 July 1995. 9Meanwhile,
petitioners engaged the services of another counsel,
Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on
7 August 1995 a motion to admit the motion for
reconsideration contending that the period to file the
appropriate pleading on the assailed decision had not
yet commenced to run as the Division Clerk of Court of
the Court of Appeals had not yet served a copy thereof
to the counsel on record. Despite this explanation, the
appellate court still denied the motion to admit the
motion for reconsideration of petitioners in its
Resolution, dated 29 March 1996, primarily on the
ground that the fifteen-day (15) period for filing a
motion for reconsideration had already expired, to wit:
We said in our Resolution on July 25,
1995, that the filing of a Motion for
Reconsideration cannot be extended;
precisely, the Motion for Extension
(Rollo, p. 12) was denied. It is, on the
other hand, admitted in the latter
Motion that plaintiffs/appellees received
a copy of the decision as early as June 9,
1995. Computation wise, the period to
file a Motion for Reconsideration expired
on June 24. The Motion for
Reconsideration, in turn, was received
by the Court of Appeals already on July
4, necessarily, the 15-day period

17

already passed. For that alone, the

latter should be denied.

by the appellate court for having been filed beyond the

reglementary period. We do not agree.

Even assuming admissibility of the

Motion for the Reconsideration, but after
considering the Comment/Opposition,
the former, for lack of merit, is hereby
DENIED.

A careful review of the records reveals that the reason

behind the delay in filing the motion for reconsideration
is attributable to the fact that the decision of the Court
of Appeals was not sent to then counsel on record of
petitioners, the Coronel Law Office. In fact, a copy of the
decision of the appellate court was instead sent to and
received by petitioner Rogelio Ramos on 9 June 1995
wherein he was mistakenly addressed as Atty. Rogelio
Ramos. Based on the other communications received by
petitioner Rogelio Ramos, the appellate court apparently
mistook him for the counsel on record. Thus, no copy of
the decision of the counsel on record. Petitioner, not
being a lawyer and unaware of the prescriptive period
for filing a motion for reconsideration, referred the same
to a legal counsel only on 20 June 1995.

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

It is elementary that when a party is represented by

counsel, all notices should be sent to the party's lawyer
at his given address. With a few exceptions, notice to a
litigant without notice to his counsel on record is no
notice at all. In the present case, since a copy of the
decision of the appellate court was not sent to the
counsel on record of petitioner, there can be no
sufficient notice to speak of. Hence, the delay in the
filing of the motion for reconsideration cannot be taken
against petitioner. Moreover, since the Court of Appeals
already issued a second Resolution, dated 29 March
1996, which superseded the earlier resolution issued on
25 July 1995, and denied the motion for reconsideration
of petitioner, we believed that the receipt of the former
should be considered in determining the timeliness of
the filing of the present petition. Based on this, the
petition before us was submitted on time.
After resolving the foregoing procedural issue, we shall
now look into the merits of the case. For a more logical
presentation of the discussion we shall first consider the
issue on the applicability of the doctrine of res ipsa
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 faciecase, 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

18

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 that res ipsa loquitur is
not a rule of substantive law and, as such, does not
create or constitute an independent or separate ground
of liability. 17 Instead, it is considered as merely
evidentiary or in the nature of a procedural rule. 18 It is
regarded as a mode of proof, or a mere procedural of
convenience since it furnishes a substitute for, and
relieves a plaintiff of, the burden of producing specific
proof of negligence. 19 In other words, mere invocation
and application of the doctrine does not dispense with
the requirement of proof of negligence. It is simply a
step in the process of such proof, permitting the plaintiff
to present along with the proof of the accident, enough
of the attending circumstances to invoke the doctrine,
creating an inference or presumption of negligence, and
to thereby place on the defendant the burden of going
forward with the proof. 20 Still, before resort to the
doctrine may be allowed, the following requisites must
be satisfactorily shown:
1. The accident is of a
kind which ordinarily
does not occur in the
absence of someone's
negligence;
2. It is caused by an
instrumentality within
the exclusive control of
the defendant or
defendants; and
3. The possibility of
contributing conduct
which would make the
plaintiff responsible is
eliminated. 21

In the above requisites, the fundamental element is the

"control of instrumentality" which caused the
damage. 22Such element of control must be shown to be
within the dominion of the defendant. In order to have
the benefit of the rule, a plaintiff, in addition to proving
injury or damage, must show a situation where it is
applicable, and must establish that the essential
elements of the doctrine were present in a particular
incident. 23
Medical malpractice 24 cases do not escape the
application of this doctrine. Thus, res ipsa loquitur has
been applied when the circumstances attendant upon
the harm are themselves of such a character as to
justify an inference of negligence as the cause of that
harm. 25 The application of res ipsa loquitur in medical
negligence cases presents a question of law since it is a
judicial function to determine whether a certain set of
circumstances does, as a matter of law, permit a given
inference. 26
Although generally, expert medical testimony is relied
upon in malpractice suits to prove that a physician has
done a negligent act or that he has deviated from the
standard medical procedure, when the doctrine of res
ipsa loquitur is availed by the plaintiff, the need for
expert medical testimony is dispensed with because the
injury itself provides the proof of negligence. 27 The
reason is that the general rule on the necessity of
expert testimony applies only to such matters clearly
within the domain of medical science, and not to
matters that are within the common knowledge of
mankind which may be testified to by anyone familiar
with the facts. 28 Ordinarily, only physicians and
surgeons of skill and experience are competent to
testify as to whether a patient has been treated or
operated upon with a reasonable degree of skill and
care. However, testimony as to the statements and acts
of physicians and surgeons, external appearances, and
manifest conditions which are observable by any one
may be given by non-expert witnesses. 29 Hence, in
cases where theres 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

19

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
of res ipsa loquitur may be utilized and the defendant is

called upon to explain the matter, by evidence of

exculpation, if he could. 42
We find the doctrine of res ipsa loquitur appropriate in
the case at bar. As will hereinafter be explained, the
damage sustained by Erlinda in her brain prior to a
scheduled gall bladder operation presents a case for the
application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss
vs. Bridwell, 43 where the Kansas Supreme Court in
applying theres 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

20

held that a cause of action is stated

under the doctrine of res ipsa loquitur.

44

Indeed, the principles enunciated in the aforequoted

case apply with equal force here. In the present case,
Erlinda submitted herself for cholecystectomy and
expected a routine general surgery to be performed on
her gall bladder. On that fateful day she delivered her
person over to the care, custody and control of private
respondents who exercised complete and exclusive
control over her. At the time of submission, Erlinda was
neurologically sound and, except for a few minor
discomforts, was likewise physically fit in mind and
body. However, during the administration of anesthesia
and prior to the performance of cholecystectomy she
suffered irreparable damage to her brain. Thus, without
undergoing surgery, she went out of the operating room
already decerebrate and totally incapacitated.
Obviously, brain damage, which Erlinda sustained, is an
injury which does not normally occur in the process of a
gall bladder operation. In fact, this kind of situation does
not in the absence of negligence of someone in the
administration of anesthesia and in the use of
endotracheal tube. Normally, a person being put under
anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia if the
proper procedure was followed. Furthermore, the
instruments used in the administration of anesthesia,
including the endotracheal tube, were all under the
exclusive control of private respondents, who are the
physicians-in-charge. Likewise, petitioner Erlinda could
not have been guilty of contributory negligence because
she was under the influence of anesthetics which
rendered her unconscious.
Considering that a sound and unaffected member of the
body (the brain) is injured or destroyed while the patient
is unconscious and under the immediate and exclusive
control of the physicians, we hold that a practical
administration of justice dictates the 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 short-acting barbiturate, as testified on by
their expert witness, Dr. Jamora. On the other hand, the
appellate court rejected the testimony of Dean
Herminda Cruz offered in favor of petitioners that the
cause of the brain injury was traceable to the wrongful
insertion of the tube since the latter, being a nurse, was
allegedly not knowledgeable in the process of
intubation. In so holding, the appellate court returned a
verdict in favor of respondents physicians and hospital
and absolved them of any liability towards Erlinda and
her family.
We disagree with the findings of the Court of Appeals.
We hold that private respondents were unable to
disprove the presumption of negligence on their part in
the care of Erlinda and their negligence was the
proximate cause of her piteous condition.
In the instant case, the records are helpful in furnishing
not only the logical scientific evidence of the
pathogenesis of the injury but also in providing the
Court the legal nexus upon which liability is based. As
will be shown hereinafter, private respondents' own
testimonies which are reflected in the transcript of
stenographic notes are replete of signposts indicative of
their negligence in the care and management of Erlinda.

21

With regard to Dra. Gutierrez, we find her negligent in

the care of Erlinda during the anesthesia phase. As
borne by the records, respondent Dra. Gutierrez failed
to properly intubate the patient. This fact was attested
to by Prof. Herminda Cruz, Dean of the Capitol Medical
Center School of Nursing and petitioner's sister-in-law,
who was in the operating room right beside the patient
when the tragic event occurred. Witness Cruz testified
to this effect:
ATTY. PAJARES:
Q: In particular, what did
Dra. Perfecta Gutierrez
do, if any on the
patient?
A: In particular, I could
see that she was
intubating the patient.
Q: Do you know what
happened to that
intubation process
administered by Dra.
Gutierrez?
ATTY. ALCERA:
She will be incompetent
Your Honor.
COURT:
Witness may answer if
she knows.
A: As have said, I was
with the patient, I was
beside the stretcher
holding the left hand of
the patient and all of a
sudden heard some
remarks coming from
Dra. Perfecta Gutierrez
herself. She was saying
"Ang hirap ma-intubate
nito, mali yata ang
pagkakapasok. O
lumalaki ang tiyan.
xxx xxx xxx
ATTY. PAJARES:

Q: From whom did you

hear those words
"lumalaki ang tiyan"?
A: From Dra. Perfecta
Gutierrez.
xxx xxx xxx
Q: After hearing the
phrase "lumalaki ang
tiyan," what did you
notice on the person of
the patient?
A: I notice (sic) some
bluish discoloration on
the nailbeds of the left
hand where I was at.
Q: Where was Dr. Orlino
Ho[s]aka then at that
particular time?
A: I saw him
approaching the patient
during that time.
Q: When he approached
the patient, what did he
do, if any?
A: He made an order to
call on the
anesthesiologist in the
person of Dr. Calderon.
Q: Did Dr. Calderon,
upon being called, arrive
inside the operating
room?
A: Yes sir.
Q: What did [s]he do, if
any?
A: [S]he tried to intubate
the patient.
Q: What happened to
the patient?
A: When Dr. Calderon try
(sic) to intubate the

22

patient, after a while the

patient's nailbed
became bluish and I saw
the patient was placed
in trendelenburg
position.
xxx xxx xxx
Q: Do you know the
reason why the patient
was placed in that
trendelenburg position?
A: As far as I know,
when a patient is in that
position, there is a
decrease of blood
supply to the brain. 46
xxx xxx xxx
The appellate court, however, disbelieved Dean Cruz's
testimony in the trial court by declaring that:
A perusal of the standard nursing
curriculum in our country will show that
intubation is not taught as part of
nursing procedures and techniques.
Indeed, we take judicial notice of the
fact that nurses do not, and cannot,
intubate. Even on the assumption that
she is fully capable of determining
whether or not a patient is properly
intubated, witness Herminda Cruz,
admittedly, did not peep into the throat
of the patient. (TSN, July 25, 1991, p.
13). More importantly, there is no
evidence that she ever auscultated the
patient or that she conducted any type
of examination to check if the
endotracheal tube was in its proper
place, and to determine the condition of
the heart, lungs, and other organs.
Thus, witness Cruz's categorical
statements that appellant Dra. Gutierrez
failed to intubate the appellee Erlinda
Ramos and that it was Dra. Calderon
who succeeded in doing so clearly suffer
from lack of sufficient factual bases. 47
In other words, what the Court of Appeals is trying to
impress is that being a nurse, and considered a layman
in the process of intubation, witness Cruz is not
competent to testify on whether or not the intubation
was a success.

We do not agree with the above reasoning of the

appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters
on which she is capable of observing such as, the
statements and acts of the physician and surgeon,
external appearances, and manifest conditions which
are observable by any one. 48 This is precisely allowed
under the doctrine of res ipsa loquitur where the
testimony of expert witnesses is not required. It is the
accepted rule that expert testimony is not necessary for
the proof of negligence in non-technical matters or
those of which an ordinary person may be expected to
have knowledge, or where the lack of skill or want of
care is so obvious as to render expert testimony
unnecessary. 49 We take judicial notice of the fact that
anesthesia procedures have become so common, that
even an ordinary person can tell if it was administered
properly. As such, it would not be too difficult to tell if
the tube was properly inserted. This kind of observation,
we believe, does not require a medical degree to be
acceptable.
At any rate, without doubt, petitioner's witness, an
experienced clinical nurse whose long experience and
scholarship led to her appointment as Dean of the
Capitol Medical Center School at Nursing, was fully
capable of determining whether or not the intubation
was a success. She had extensive clinical experience
starting as a staff nurse in Chicago, Illinois; staff nurse
and clinical instructor in a teaching hospital, the FEUNRMF; Dean of the Laguna College of Nursing in San
Pablo City; and then Dean of the Capitol Medical Center
School of Nursing. 50Reviewing witness Cruz'
statements, we find that the same were delivered in a
straightforward manner, with the kind of detail, clarity,
consistency and spontaneity which would have been
difficult to fabricate. With her clinical background as a
nurse, the Court is satisfied that she was able to
demonstrate through her testimony what truly
transpired on that fateful day.
Most of all, her testimony was affirmed by no less than
respondent Dra. Gutierrez who admitted that she
experienced difficulty in inserting the tube into Erlinda's
trachea, to wit:
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:

23

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 iintubate," that was the
patient.
Q: So, you found some
difficulty in inserting the
tube?
A: Yes, because of (sic)
my first attempt, I did
not see right away. 51
Curiously in the case at bar, respondent Dra. Gutierrez
made the haphazard defense that she encountered
hardship in the insertion of the tube in the trachea of
Erlinda because it was positioned more anteriorly
(slightly deviated from the normal anatomy of a
person) 52 making it harder to locate and, since Erlinda
is obese and has a short neck and protruding teeth, it
made intubation even more difficult.
The argument does not convince us. If this was indeed
observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough
assessment of Erlinda's airway, prior to the induction of
anesthesia, even if this would mean postponing the
procedure. From their testimonies, it appears that the
observation was made only as an afterthought, as a
means of defense.
The pre-operative evaluation of a patient prior to the
administration of anesthesia is universally observed to
lessen the possibility of anesthetic accidents. Preoperative 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 pre-operative evaluation would escape
unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree,
Doctor, that it is good
medical practice to see
the patient a day before
so you can introduce
yourself to establish
good doctor-patient
relationship and gain

24

the trust and confidence

of the patient?
DRA. GUTIERREZ:
A: As I said in my
previous statement, it
depends on the
operative procedure of
the anesthesiologist and
in my case, with elective
cases and normal
cardio-pulmonary
clearance like that, I
usually don't do it
except on emergency
and on cases that have
an abnormalities
(sic). 58
However, the exact opposite is true. In an emergency
procedure, there is hardly enough time available for the
fastidious demands of pre-operative procedure so that
an anesthesiologist is able to see the patient only a few
minutes before surgery, if at all. Elective procedures, on
the other hand, are operative procedures that can wait
for days, weeks or even months. Hence, in these cases,
the anesthesiologist possesses the luxury of time to be
at the patient's beside to do a proper interview and
clinical evaluation. There is ample time to explain the
method of anesthesia, the drugs to be used, and their
possible hazards for purposes of informed consent.
Usually, the pre-operative assessment is conducted at
least one day before the intended surgery, when the
patient is relaxed and cooperative.
Erlinda's case was elective and this was known to
respondent Dra. Gutierrez. Thus, she had all the time to
make a thorough evaluation of Erlinda's case prior to
the operation and prepare her for anesthesia. However,
she never saw the patient at the bedside. She herself
admitted that she had seen petitioner only in the
operating room, and only on the actual date of the
cholecystectomy. She negligently failed to take
advantage of this important opportunity. As such, her
attempt to exculpate herself must fail.
Having established that respondent Dra. Gutierrez failed
to perform pre-operative evaluation of the patient
which, in turn, resulted to a wrongful intubation, we now
determine if the faulty intubation is truly the proximate
cause of Erlinda's comatose condition.
Private respondents repeatedly hammered the view that
the cerebral anoxia which led to Erlinda's coma was due
to bronchospasm 59 mediated by her allergic response

to the drug, Thiopental Sodium, introduced into her

system. Towards this end, they presented Dr. Jamora, a
Fellow of the Philippine College of Physicians and
Diplomate of the Philippine Specialty Board of Internal
Medicine, who advanced private respondents' theory
that the oxygen deprivation which led to anoxic
encephalopathy, 60 was due to an unpredictable drug
reaction to the short-acting barbiturate. We find the
theory of private respondents unacceptable.
First of all, Dr. Jamora cannot be considered an authority
in the field of anesthesiology simply because he is not
an anesthesiologist. Since Dr. Jamora is a pulmonologist,
he could not have been capable of properly enlightening
the court about anesthesia practice and procedure and
their complications. Dr. Jamora is likewise not an
allergologist and could not therefore properly advance
expert opinion on allergic-mediated processes.
Moreover, he is not a pharmacologist and, as such,
could not have been capable, as an expert would, of
explaining to the court the pharmacologic and toxic
effects of the supposed culprit, Thiopental Sodium
(Pentothal).
The inappropriateness and absurdity of accepting Dr.
Jamora's testimony as an expert witness in the
anesthetic practice of Pentothal administration is further
supported by his own admission that he formulated his
opinions on the drug not from the practical experience
gained by a specialist or expert in the administration
and use of Sodium Pentothal on patients, but only from
reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of
expertise on
pulmonology, did you
have any occasion to
use pentothal as a
method of
management?
DR. JAMORA:
A: We do it in
conjunction with the
anesthesiologist when
they have to intubate
our patient.
Q: But not in particular
when you practice
pulmonology?
A: No.

25

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
expert witnesses states:

62

regarding

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.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, allergic-mediated bronchospasm
happens only very rarely. If courts were to accept
private respondents' hypothesis without supporting
medical proof, and against the weight of available
evidence, then every anesthetic accident would be an
act of God. Evidently, the Thiopental-allergy theory
vigorously asserted by private respondents was a mere
afterthought. Such an explanation was advanced in
order to advanced in order to absolve them of any and
all responsibility for the patient's condition.
In view of the evidence at hand, we are inclined to
believe petitioners' stand that it was the faulty
intubation which was the proximate cause of Erlinda's
comatose condition.
Proximate cause has been defined as that which, in
natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and without
which the result would not have occurred. 64 An injury or
damage is proximately caused by an act or a failure to
act, whenever it appears from the evidence in the case,
that the act or omission played a substantial part in
bringing about or actually causing the injury or damage;
and that the injury or damage was either a direct result
or a reasonably probable consequence of the act or
omission. 65 It is the dominant, moving or producing
cause.

26

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 preoperative 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.
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

27

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 employeremployee 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

28

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.

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.

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.

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

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:
Art. 2199. Except as provided by law
or by stipulation, one is entitled to an
adequate compensation only for such
pecuniary loss suffered by him as he has
duly proved. Such compensation is
referred to as actual or compensatory
damages.
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. 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

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 the lifetime, the
prosthetic devise will have to be
replaced and readjusted to changes in
the size of her lower limb effected by

29

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.
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. 84The 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 preoperative 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.

30

ROGELIO P. NOGALES, for himself and on behalf of

the minors, ROGER ANTHONY, ANGELICA, NANCY,
and MICHAEL CHRISTOPHER, all surnamed
NOGALES, petitioners,
vs.
CAPITOL MEDICAL CENTER, DR. OSCAR ESTRADA,
DR. ELY VILLAFLOR, DR. ROSA UY, DR. JOEL
ENRIQUEZ, DR. PERPETUA LACSON, DR. NOE
ESPINOLA, and NURSE J. DUMLAO, respondents.

DECISION

CARPIO, J.:
The Case
This petition for review1 assails the 6 February 1998
Decision2 and 21 March 2000 Resolution3 of the Court of
Appeals in CA-G.R. CV No. 45641. The Court of Appeals
affirmed in toto the 22 November 1993 Decision4 of the
Regional Trial Court of Manila, Branch 33, finding Dr.
Oscar Estrada solely liable for damages for the death of
his patient, Corazon Nogales, while absolving the
remaining respondents of any liability. The Court of
Appeals denied petitioners' motion for reconsideration.
The Facts
Pregnant with her fourth child, Corazon Nogales
("Corazon"), who was then 37 years old, was under the
exclusive prenatal care of Dr. Oscar Estrada ("Dr.
Estrada") beginning on her fourth month of pregnancy
or as early as December 1975. While Corazon was on
her last trimester of pregnancy, Dr. Estrada noted an
increase in her blood pressure and development of leg
edema5 indicating preeclampsia,6 which is a dangerous
complication of pregnancy.7
Around midnight of 25 May 1976, Corazon started to
experience mild labor pains prompting Corazon and
Rogelio Nogales ("Spouses Nogales") to see Dr. Estrada
at his home. After examining Corazon, Dr. Estrada
advised her immediate admission to the Capitol Medical
Center ("CMC").
On 26 May 1976, Corazon was admitted at 2:30 a.m. at
the CMC after the staff nurse noted the written
admission request8 of Dr. Estrada. Upon Corazon's
admission at the CMC, Rogelio Nogales ("Rogelio")
executed and signed the "Consent on Admission and
Agreement"9 and "Admission Agreement."10 Corazon
was then brought to the labor room of the CMC.
Dr. Rosa Uy ("Dr. Uy"), who was then a resident
physician of CMC, conducted an internal examination of

Corazon. Dr. Uy then called up Dr. Estrada to notify him

of her findings.
Based on the Doctor's Order Sheet,11 around 3:00 a.m.,
Dr. Estrada ordered for 10 mg. of valium to be
administered immediately by intramuscular injection.
Dr. Estrada later ordered the start of intravenous
administration of syntocinon admixed with dextrose,
5%, in lactated Ringers' solution, at the rate of eight to
ten micro-drops per minute.
According to the Nurse's Observation Notes,12 Dr. Joel
Enriquez ("Dr. Enriquez"), an anesthesiologist at CMC,
was notified at 4:15 a.m. of Corazon's admission.
Subsequently, when asked if he needed the services of
an anesthesiologist, Dr. Estrada refused. Despite Dr.
Estrada's refusal, Dr. Enriquez stayed to observe
Corazon's condition.
At 6:00 a.m., Corazon was transferred to Delivery Room
No. 1 of the CMC. At 6:10 a.m., Corazon's bag of water
ruptured spontaneously. At 6:12 a.m., Corazon's cervix
was fully dilated. At 6:13 a.m., Corazon started to
experience convulsions.
At 6:15 a.m., Dr. Estrada ordered the injection of ten
grams of magnesium sulfate. However, Dr. Ely Villaflor
("Dr. Villaflor"), who was assisting Dr. Estrada,
administered only 2.5 grams of magnesium sulfate.
At 6:22 a.m., Dr. Estrada, assisted by Dr. Villaflor,
applied low forceps to extract Corazon's baby. In the
process, a 1.0 x 2.5 cm. piece of cervical tissue was
allegedly torn. The baby came out in an apnic, cyanotic,
weak and injured condition. Consequently, the baby had
to be intubated and resuscitated by Dr. Enriquez and Dr.
Payumo.
At 6:27 a.m., Corazon began to manifest moderate
vaginal bleeding which rapidly became profuse.
Corazon's blood pressure dropped from 130/80 to 60/40
within five minutes. There was continuous profuse
vaginal bleeding. The assisting nurse administered
hemacel through a gauge 19 needle as a side drip to
the ongoing intravenous injection of dextrose.
At 7:45 a.m., Dr. Estrada ordered blood typing and cross
matching with bottled blood. It took approximately 30
minutes for the CMC laboratory, headed by Dr. Perpetua
Lacson ("Dr. Lacson"), to comply with Dr. Estrada's order
and deliver the blood.
At 8:00 a.m., Dr. Noe Espinola ("Dr. Espinola"), head of
the Obstetrics-Gynecology Department of the CMC, was
apprised of Corazon's condition by telephone. Upon
being informed that Corazon was bleeding profusely, Dr.
Espinola ordered immediate hysterectomy. Rogelio was
made to sign a "Consent to Operation."13
Due to the inclement weather then, Dr. Espinola, who
was fetched from his residence by an ambulance,
arrived at the CMC about an hour later or at 9:00 a.m.
He examined the patient and ordered some

31

resuscitative measures to be administered. Despite Dr.

Espinola's efforts, Corazon died at 9:15 a.m. The cause
of death was "hemorrhage, post partum."14
On 14 May 1980, petitioners filed a complaint for
damages15 with the Regional Trial Court16 of Manila
against CMC, Dr. Estrada, Dr. Villaflor, Dr. Uy, Dr.
Enriquez, Dr. Lacson, Dr. Espinola, and a certain Nurse J.
Dumlao for the death of Corazon. Petitioners mainly
contended that defendant physicians and CMC
personnel were negligent in the treatment and
management of Corazon's condition. Petitioners charged
CMC with negligence in the selection and supervision of
defendant physicians and hospital staff.
For failing to file their answer to the complaint despite
service of summons, the trial court declared Dr. Estrada,
Dr. Enriquez, and Nurse Dumlao in default.17 CMC, Dr.
Villaflor, Dr. Uy, Dr. Espinola, and Dr. Lacson filed their
respective answers denying and opposing the
allegations in the complaint. Subsequently, trial ensued.
After more than 11 years of trial, the trial court rendered
judgment on 22 November 1993 finding Dr. Estrada
solely liable for damages. The trial court ruled as
follows:
The victim was under his pre-natal care,
apparently, his fault began from his incorrect
and inadequate management and lack of
treatment of the pre-eclamptic condition of his
patient. It is not disputed that he misapplied the
forceps in causing the delivery because it
resulted in a large cervical tear which had
caused the profuse bleeding which he also failed
to control with the application of inadequate
injection of magnesium sulfate by his assistant
Dra. Ely Villaflor. Dr. Estrada even failed to
notice the erroneous administration by nurse
Dumlao of hemacel by way of side drip, instead
of direct intravenous injection, and his failure to
consult a senior obstetrician at an early stage of
the problem.
On the part however of Dra. Ely Villaflor, Dra.
Rosa Uy, Dr. Joel Enriquez, Dr. Lacson, Dr.
Espinola, nurse J. Dumlao and CMC, the Court
finds no legal justification to find them civilly
liable.
On the part of Dra. Ely Villaflor, she was only
taking orders from Dr. Estrada, the principal
physician of Corazon Nogales. She can only
make suggestions in the manner the patient
maybe treated but she cannot impose her will
as to do so would be to substitute her good
judgment to that of Dr. Estrada. If she failed to
correctly diagnose the true cause of the
bleeding which in this case appears to be a
cervical laceration, it cannot be safely
concluded by the Court that Dra. Villaflor had
the correct diagnosis and she failed to inform Dr.
Estrada. No evidence was introduced to show
that indeed Dra. Villaflor had discovered that

there was laceration at the cervical area of the

patient's internal organ.
On the part of nurse Dumlao, there is no
showing that when she administered the
hemacel as a side drip, she did it on her own. If
the correct procedure was directly thru the
veins, it could only be because this was what
was probably the orders of Dr. Estrada.
While the evidence of the plaintiffs shows that
Dr. Noe Espinola, who was the Chief of the
Department of Obstetrics and Gynecology who
attended to the patient Mrs. Nogales, it was only
at 9:00 a.m. That he was able to reach the
hospital because of typhoon Didang (Exhibit 2).
While he was able to give prescription in the
manner Corazon Nogales may be treated, the
prescription was based on the information given
to him by phone and he acted on the basis of
facts as presented to him, believing in good
faith that such is the correct remedy. He was not
with Dr. Estrada when the patient was brought
to the hospital at 2:30 o'clock a.m. So, whatever
errors that Dr. Estrada committed on the patient
before 9:00 o'clock a.m. are certainly the errors
of Dr. Estrada and cannot be the mistake of Dr.
Noe Espinola. His failure to come to the hospital
on time was due to fortuitous event.
On the part of Dr. Joel Enriquez, while he was
present in the delivery room, it is not incumbent
upon him to call the attention of Dr. Estrada,
Dra. Villaflor and also of Nurse Dumlao on the
alleged errors committed by them. Besides, as
anesthesiologist, he has no authority to control
the actuations of Dr. Estrada and Dra. Villaflor.
For the Court to assume that there were errors
being committed in the presence of Dr. Enriquez
would be to dwell on conjectures and
speculations.
On the civil liability of Dr. Perpetua Lacson, [s]he
is a hematologist and in-charge of the blood
bank of the CMC. The Court cannot accept the
theory of the plaintiffs that there was delay in
delivering the blood needed by the patient. It
was testified, that in order that this blood will be
made available, a laboratory test has to be
conducted to determine the type of blood, cross
matching and other matters consistent with
medical science so, the lapse of 30 minutes
maybe considered a reasonable time to do all of
these things, and not a delay as the plaintiffs
would want the Court to believe.
Admittedly, Dra. Rosa Uy is a resident physician
of the Capitol Medical Center. She was sued
because of her alleged failure to notice the
incompetence and negligence of Dr. Estrada.
However, there is no evidence to support such
theory. No evidence was adduced to show that
Dra. Rosa Uy as a resident physician of Capitol
Medical Center, had knowledge of the

32

mismanagement of the patient Corazon

Nogales, and that notwithstanding such
knowledge, she tolerated the same to happen.
In the pre-trial order, plaintiffs and CMC agreed
that defendant CMC did not have any hand or
participation in the selection or hiring of Dr.
Estrada or his assistant Dra. Ely Villaflor as
attending physician[s] of the deceased. In other
words, the two (2) doctors were not employees
of the hospital and therefore the hospital did not
have control over their professional conduct.
When Mrs. Nogales was brought to the hospital,
it was an emergency case and defendant CMC
had no choice but to admit her. Such being the
case, there is therefore no legal ground to apply
the provisions of Article 2176 and 2180 of the
New Civil Code referring to the vicarious liability
of an employer for the negligence of its
employees. If ever in this case there is fault or
negligence in the treatment of the deceased on
the part of the attending physicians who were
employed by the family of the deceased, such
civil liability should be borne by the attending
physicians under the principle of "respondeat
superior".
WHEREFORE, premises considered, judgment is
hereby rendered finding defendant Dr. Estrada
of Number 13 Pitimini St. San Francisco del
Monte, Quezon City civilly liable to pay plaintiffs:
1) By way of actual damages in the amount
of P105,000.00; 2) By way of moral damages in
the amount of P700,000.00; 3) Attorney's fees in
the amount of P100,000.00 and to pay the costs
of suit.
For failure of the plaintiffs to adduce evidence to
support its [sic] allegations against the other
defendants, the complaint is hereby ordered
dismissed. While the Court looks with disfavor
the filing of the present complaint against the
other defendants by the herein plaintiffs, as in a
way it has caused them personal inconvenience
and slight damage on their name and
reputation, the Court cannot accepts [sic]
however, the theory of the remaining
defendants that plaintiffs were motivated in bad
faith in the filing of this complaint. For this
reason defendants' counterclaims are hereby
ordered dismissed.
SO ORDERED.18
Petitioners appealed the trial court's decision.
Petitioners claimed that aside from Dr. Estrada, the
remaining respondents should be held equally liable for
negligence. Petitioners pointed out the extent of each
respondent's alleged liability.
On 6 February 1998, the Court of Appeals affirmed the
decision of the trial court.19 Petitioners filed a motion for
reconsideration which the Court of Appeals denied in its
Resolution of 21 March 2000.20

Hence, this petition.

Meanwhile, petitioners filed a Manifestation dated 12
April 200221 stating that respondents Dr. Estrada, Dr.
Enriquez, Dr. Villaflor, and Nurse Dumlao "need no
longer be notified of the petition because they are
absolutely not involved in the issue raised before the
[Court], regarding the liability of [CMC]."22 Petitioners
stressed that the subject matter of this petition is the
liability of CMC for the negligence of Dr. Estrada. 23
The Court issued a Resolution dated 9 September
200224 dispensing with the requirement to submit the
correct and present addresses of respondents Dr.
Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao.
The Court stated that with the filing of petitioners'
Manifestation, it should be understood that they are
claiming only against respondents CMC, Dr. Espinola, Dr.
Lacson, and Dr. Uy who have filed their respective
comments. Petitioners are foregoing further claims
against respondents Dr. Estrada, Dr. Enriquez, Dr.
Villaflor, and Nurse Dumlao.
The Court noted that Dr. Estrada did not appeal the
decision of the Court of Appeals affirming the decision
of the Regional Trial Court. Accordingly, the decision of
the Court of Appeals, affirming the trial court's
judgment, is already final as against Dr. Oscar Estrada.
Petitioners filed a motion for reconsideration25 of the
Court's 9 September 2002 Resolution claiming that Dr.
Enriquez, Dr. Villaflor and Nurse Dumlao were notified of
the petition at their counsels' last known addresses.
Petitioners reiterated their imputation of negligence on
these respondents. The Court denied petitioners' Motion
for Reconsideration in its 18 February 2004 Resolution. 26
The Court of Appeals' Ruling
In its Decision of 6 February 1998, the Court of Appeals
upheld the trial court's ruling. The Court of Appeals
rejected petitioners' view that the doctrine in Darling v.
Charleston Community Memorial Hospital 27 applies to
this case. According to the Court of Appeals, the present
case differs from the Darling case since Dr. Estrada is an
independent contractor-physician whereas
the Darling case involved a physician and a nurse who
were employees of the hospital.
Citing other American cases, the Court of Appeals
further held that the mere fact that a hospital permitted
a physician to practice medicine and use its facilities is
not sufficient to render the hospital liable for the
physician's negligence.28 A hospital is not responsible for
the negligence of a physician who is an independent
contractor.29
The Court of Appeals found the cases of Davidson v.
Conole30 and Campbell v. Emma Laing Stevens
Hospital31applicable to this case. Quoting Campbell, the
Court of Appeals stated that where there is no proof that
defendant physician was an employee of defendant
hospital or that defendant hospital had reason to know

33

that any acts of malpractice would take place,

defendant hospital could not be held liable for its failure
to intervene in the relationship of physician-patient
between defendant physician and plaintiff.

Art. 2180. The obligation imposed by article

2176 is demandable not only for one's own acts
or omissions, but also for those of persons for
whom one is responsible.

On the liability of the other respondents, the Court of

Appeals applied the "borrowed servant" doctrine
considering that Dr. Estrada was an independent
contractor who was merely exercising hospital
privileges. This doctrine provides that once the surgeon
enters the operating room and takes charge of the
proceedings, the acts or omissions of operating room
personnel, and any negligence associated with such
acts or omissions, are imputable to the surgeon. 32 While
the assisting physicians and nurses may be employed
by the hospital, or engaged by the patient, they
normally become the temporary servants or agents of
the surgeon in charge while the operation is in progress,
and liability may be imposed upon the surgeon for their
negligent acts under the doctrine of respondeat
superior.33

xxxx

The Court of Appeals concluded that since Rogelio

engaged Dr. Estrada as the attending physician of his
wife, any liability for malpractice must be Dr. Estrada's
sole responsibility.
While it found the amount of damages fair and
reasonable, the Court of Appeals held that no interest
could be imposed on unliquidated claims or damages.
The Issue
Basically, the issue in this case is whether CMC is
vicariously liable for the negligence of Dr. Estrada. The
resolution of this issue rests, on the other hand, on the
ascertainment of the relationship between Dr. Estrada
and CMC. The Court also believes that a determination
of the extent of liability of the other respondents is
inevitable to finally and completely dispose of the
present controversy.
The Ruling of the Court
The petition is partly meritorious.
On the Liability of CMC
Dr. Estrada's negligence in handling the treatment and
management of Corazon's condition which ultimately
resulted in Corazon's death is no longer in issue. Dr.
Estrada did not appeal the decision of the Court of
Appeals which affirmed the ruling of the trial court
finding Dr. Estrada solely liable for damages.
Accordingly, the finding of the trial court on Dr.
Estrada's negligence is already final.
Petitioners maintain that CMC is vicariously liable for Dr.
Estrada's negligence based on Article 2180 in relation to
Article 2176 of the Civil Code. These provisions
pertinently state:

Employers shall be liable for the damages

caused by their employees and household
helpers acting within the scope of their assigned
tasks, even though the former are not engaged
in any business or industry.
xxxx
The responsibility treated of in this article shall
cease when the persons herein mentioned
prove that they observed all the diligence of a
good father of a family to prevent damage.
Art. 2176. Whoever by act or omission causes
damage to another, there being fault or
negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no
pre-existing contractual relation between the
parties, is called a quasi-delict and is governed
by the provisions of this Chapter.
Similarly, in the United States, a hospital which is the
employer, master, or principal of a physician employee,
servant, or agent, may be held liable for the physician's
negligence under the doctrine of respondeat superior.34
In the present case, petitioners maintain that CMC, in
allowing Dr. Estrada to practice and admit patients at
CMC, should be liable for Dr. Estrada's malpractice.
Rogelio claims that he knew Dr. Estrada as an
accredited physician of CMC, though he discovered later
that Dr. Estrada was not a salaried employee of the
CMC.35 Rogelio further claims that he was dealing with
CMC, whose primary concern was the treatment and
management of his wife's condition. Dr. Estrada just
happened to be the specific person he talked to
representing CMC.36 Moreover, the fact that CMC made
Rogelio sign a Consent on Admission and Admission
Agreement37 and a Consent to Operation printed on the
letterhead of CMC indicates that CMC considered Dr.
Estrada as a member of its medical staff.
On the other hand, CMC disclaims liability by asserting
that Dr. Estrada was a mere visiting physician and that
it admitted Corazon because her physical condition then
was classified an emergency obstetrics case.38
CMC alleges that Dr. Estrada is an independent
contractor "for whose actuations CMC would be a total
stranger." CMC maintains that it had no control or
supervision over Dr. Estrada in the exercise of his
medical profession.
The Court had the occasion to determine the
relationship between a hospital and a consultant or

34

visiting physician and the liability of such hospital for

that physician's negligence in Ramos v. Court of
Appeals,39 to wit:
In the first place, hospitals exercise significant
control in the hiring and firing of consultants
and in the conduct of their work within the
hospital premises. Doctors who apply for
"consultant" slots, visiting or attending, are
required to submit proof of completion of
residency, their educational qualifications;
generally, evidence of accreditation by the
appropriate board (diplomate), evidence of
fellowship in most cases, and references. These
requirements are carefully scrutinized by
members of the hospital administration or by a
review committee set up by the hospital who
either accept or reject the application. This is
particularly true with respondent hospital.
After a physician is accepted, either as a visiting
or attending consultant, he is normally required
to attend 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 employeremployee relationship in effect exists
between hospitals and their attending and
visiting physicians. This being the case, the
question now arises as to whether or not
respondent hospital is solidarily liable with
respondent doctors for petitioner's condition.

The basis for holding an employer solidarily

responsible for the negligence of its employee is
found in Article 2180 of the Civil Code which
considers a person accountable not only for his
own acts but also for those of others based on
the former's responsibility under a relationship
of patria potestas. x x x40(Emphasis supplied)
While the Court in Ramos did not expound on the
control test, such test essentially determines whether
an employment relationship exists between a physician
and a hospital based on the exercise of control over the
physician as to details. Specifically, the employer (or the
hospital) must have the right to control both the means
and the details of the process by which the employee
(or the physician) is to accomplish his task.41
After a thorough examination of the voluminous records
of this case, the Court finds no single evidence pointing
to CMC's exercise of control over Dr. Estrada's treatment
and management of Corazon's condition. It is
undisputed that throughout Corazon's pregnancy, she
was under the exclusive prenatal care of Dr. Estrada. At
the time of Corazon's admission at CMC and during her
delivery, it was Dr. Estrada, assisted by Dr. Villaflor, who
attended to Corazon. There was no showing that CMC
had a part in diagnosing Corazon's condition. While Dr.
Estrada enjoyed staff privileges at CMC, such fact alone
did not make him an employee of CMC.42 CMC merely
allowed Dr. Estrada to use its facilities 43 when Corazon
was about to give birth, which CMC considered an
emergency. Considering these circumstances, Dr.
Estrada is not an employee of CMC, but an independent
contractor.
The question now is whether CMC is automatically
exempt from liability considering that Dr. Estrada is an
independent contractor-physician.
In general, a hospital is not liable for the negligence of
an independent contractor-physician. There is, however,
an exception to this principle. The hospital may be liable
if the physician is the "ostensible" agent of the
hospital.44This exception is also known as the "doctrine
of apparent authority."45 In Gilbert v. Sycamore
Municipal Hospital,46 the Illinois Supreme Court
explained the doctrine of apparent authority in this
wise:
[U]nder the doctrine of apparent authority a
hospital can be held vicariously liable for the
negligent acts of a physician providing care at
the hospital, regardless of whether the
physician is an independent contractor, unless
the patient knows, or should have known, that
the physician is an independent contractor. The
elements of the action have been set out as
follows:
"For a hospital to be liable under the doctrine of
apparent authority, a plaintiff must show that:
(1) the hospital, or its agent, acted in a manner
that would lead a reasonable person to conclude
that the individual who was alleged to be

35

negligent was an employee or agent of the

hospital; (2) where the acts of the agent create
the appearance of authority, the plaintiff must
also prove that the hospital had knowledge of
and acquiesced in them; and (3) the plaintiff
acted in reliance upon the conduct of the
hospital or its agent, consistent with ordinary
care and prudence."

Second, CMC made Rogelio sign consent forms printed

on CMC letterhead. Prior to Corazon's admission and
supposed hysterectomy, CMC asked Rogelio to sign
release forms, the contents of which reinforced Rogelio's
belief that Dr. Estrada was a member of CMC's medical
staff.50 The Consent on Admission and Agreement
explicitly provides:
KNOW ALL MEN BY THESE PRESENTS:

The element of "holding out" on the part of the

hospital does not require an express
representation by the hospital that the person
alleged to be negligent is an employee. Rather,
the element is satisfied if the hospital holds
itself out as a provider of emergency room care
without informing the patient that the care is
provided by independent contractors.
The element of justifiable reliance on the part of
the plaintiff is satisfied if the plaintiff relies upon
the hospital to provide complete emergency
room care, rather than upon a specific
physician.
The doctrine of apparent authority essentially involves
two factors to determine the liability of an independentcontractor physician.
The first factor focuses on the hospital's manifestations
and is sometimes described as an inquiry whether the
hospital acted in a manner which would lead a
reasonable person to conclude that the individual who
was alleged to be negligent was an employee or agent
of the hospital.47 In this regard, the hospital need
not make express representations to the patient
that the treating physician is an employee of the
hospital; rather a representation may be general
and implied.48
The doctrine of apparent authority is a species of the
doctrine of estoppel. Article 1431 of the Civil Code
provides that "[t]hrough estoppel, an admission or
representation is rendered conclusive upon the person
making it, and cannot be denied or disproved as against
the person relying thereon." Estoppel rests on this rule:
"Whenever a party has, by his own declaration, act, or
omission, intentionally and deliberately led another to
believe a particular thing true, and to act upon such
belief, he cannot, in any litigation arising out of such
declaration, act or omission, be permitted to falsify it."49
In the instant case, CMC impliedly held out Dr. Estrada
as a member of its medical staff. Through CMC's acts,
CMC clothed Dr. Estrada with apparent authority thereby
leading the Spouses Nogales to believe that Dr. Estrada
was an employee or agent of CMC. CMC cannot now
repudiate such authority.
First, CMC granted staff privileges to Dr. Estrada. CMC
extended its medical staff and facilities to Dr. Estrada.
Upon Dr. Estrada's request for Corazon's admission,
CMC, through its personnel, readily accommodated
Corazon and updated Dr. Estrada of her condition.

I, Rogelio Nogales, of legal age, a resident of

1974 M. H. Del Pilar St., Malate Mla., being the
father/mother/brother/sister/spouse/relative/
guardian/or person in custody of Ma. Corazon,
and representing his/her family, of my own
volition and free will, do consent and submit
said Ma. Corazon to Dr. Oscar Estrada
(hereinafter referred to as Physician) for cure,
treatment, retreatment, or emergency
measures, that the Physician, personally or
by and through the Capitol Medical Center
and/or its staff, may use, adapt, or employ
such means, forms or methods of cure,
treatment, retreatment, or emergency
measures as he may see best and most
expedient; that Ma. Corazon and I will
comply with any and all rules, regulations,
directions, and instructions of the
Physician, the Capitol Medical Center
and/or its staff; and, that I will not hold liable
or responsible and hereby waive and forever
discharge and hold free the Physician, the
Capitol Medical Center and/or its staff, from any
and all claims of whatever kind of nature,
arising from directly or indirectly, or by reason
of said cure, treatment, or retreatment, or
emergency measures or intervention of said
physician, the Capitol Medical Center and/or its
staff.
x x x x51 (Emphasis supplied)
While the Consent to Operation pertinently reads, thus:
I, ROGELIO NOGALES, x x x, of my own volition
and free will, do consent and submit said
CORAZON NOGALES to Hysterectomy, by
the Surgical Staff and Anesthesiologists of
Capitol Medical Centerand/or whatever
succeeding operations, treatment, or
emergency measures as may be necessary and
most expedient; and, that I will not hold liable or
responsible and hereby waive and forever
discharge and hold free the Surgeon, his
assistants, anesthesiologists, the Capitol
Medical Center and/or its staff, from any and all
claims of whatever kind of nature, arising from
directly or indirectly, or by reason of said
operation or operations, treatment, or
emergency measures, or intervention of the
Surgeon, his assistants, anesthesiologists, the
Capitol Medical Center and/or its
staff.52 (Emphasis supplied)

36

Without any indication in these consent forms that Dr.

Estrada was an independent contractor-physician, the
Spouses Nogales could not have known that Dr. Estrada
was an independent contractor. Significantly, no one
from CMC informed the Spouses Nogales that Dr.
Estrada was an independent contractor. On the
contrary, Dr. Atencio, who was then a member of CMC
Board of Directors, testified that Dr. Estrada was part of
CMC's surgical staff.53
Third, Dr. Estrada's referral of Corazon's profuse vaginal
bleeding to Dr. Espinola, who was then the Head of the
Obstetrics and Gynecology Department of CMC, gave
the impression that Dr. Estrada as a member of CMC's
medical staff was collaborating with other CMCemployed specialists in treating Corazon.
The second factor focuses on the patient's reliance. It is
sometimes characterized as an inquiry on whether the
plaintiff acted in reliance upon the conduct of the
hospital or its agent, consistent with ordinary care and
prudence.54
The records show that the Spouses Nogales relied upon
a perceived employment relationship with CMC in
accepting Dr. Estrada's services. Rogelio testified that
he and his wife specifically chose Dr. Estrada to handle
Corazon's delivery not only because of their friend's
recommendation, but more importantly because of Dr.
Estrada's "connection with a reputable hospital, the
[CMC]."55 In other words, Dr. Estrada's relationship with
CMC played a significant role in the Spouses Nogales'
decision in accepting Dr. Estrada's services as the
obstetrician-gynecologist for Corazon's delivery.
Moreover, as earlier stated, there is no showing that
before and during Corazon's confinement at CMC, the
Spouses Nogales knew or should have known that Dr.
Estrada was not an employee of CMC.
Further, the Spouses Nogales looked to CMC to provide
the best medical care and support services for
Corazon's delivery. The Court notes that prior to
Corazon's fourth pregnancy, she used to give birth
inside a clinic. Considering Corazon's age then, the
Spouses Nogales decided to have their fourth child
delivered at CMC, which Rogelio regarded one of the
best hospitals at the time.56 This is precisely because
the Spouses Nogales feared that Corazon might
experience complications during her delivery which
would be better addressed and treated in a modern and
big hospital such as CMC. Moreover, Rogelio's consent in
Corazon's hysterectomy to be performed by a different
physician, namely Dr. Espinola, is a clear indication of
Rogelio's confidence in CMC's surgical staff.
CMC's defense that all it did was "to extend to [Corazon]
its facilities" is untenable. The Court cannot close its
eyes to the reality that hospitals, such as CMC, are in
the business of treatment. In this regard, the Court
agrees with the observation made by the Court of
Appeals of North Carolina in Diggs v. Novant Health,
Inc.,57 to wit:

"The conception that the hospital does not

undertake to treat the patient, does not
undertake to act through its doctors and nurses,
but undertakes instead simply to procure them
to act upon their own responsibility, no longer
reflects the fact. Present day hospitals, as
their manner of operation plainly
demonstrates, do far more than furnish
facilities for treatment. They regularly
employ on a salary basis a large staff of
physicians, nurses and internes [sic], as
well as administrative and manual
workers, and they charge patients for
medical care and treatment, collecting for
such services, if necessary, by legal action.
Certainly, the person who avails himself of
'hospital facilities' expects that the
hospital will attempt to cure him, not that
its nurses or other employees will act on
their own responsibility." x x x (Emphasis
supplied)
Likewise unconvincing is CMC's argument that
petitioners are estopped from claiming damages based
on the Consent on Admission and Consent to Operation.
Both release forms consist of two parts. The first part
gave CMC permission to administer to Corazon any form
of recognized medical treatment which the CMC medical
staff deemed advisable. The second part of the
documents, which may properly be described as the
releasing part, releases CMC and its employees "from
any and all claims" arising from or by reason of the
treatment and operation.
The documents do not expressly release CMC from
liability for injury to Corazon due to negligence during
her treatment or operation. Neither do the consent
forms expressly exempt CMC from liability for Corazon's
death due to negligence during such treatment or
operation. Such release forms, being in the nature of
contracts of adhesion, are construed strictly against
hospitals. Besides, a blanket release in favor of hospitals
"from any and all claims," which includes claims due to
bad faith or gross negligence, would be contrary to
public policy and thus void.
Even simple negligence is not subject to blanket release
in favor of establishments like hospitals but may only
mitigate liability depending on the
circumstances.58 When a person needing urgent medical
attention rushes to a hospital, he cannot bargain on
equal footing with the hospital on the terms of
admission and operation. Such a person is literally at
the mercy of the hospital. There can be no clearer
example of a contract of adhesion than one arising from
such a dire situation. Thus, the release forms of CMC
cannot relieve CMC from liability for the negligent
medical treatment of Corazon.
On the Liability of the Other Respondents
Despite this Court's pronouncement in its 9 September
200259 Resolution that the filing of petitioners'
Manifestation confined petitioners' claim only against

37

CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy, who have filed
their comments, the Court deems it proper to resolve
the individual liability of the remaining respondents to
put an end finally to this more than two-decade old
controversy.
a) Dr. Ely Villaflor
Petitioners blame Dr. Ely Villaflor for failing to diagnose
the cause of Corazon's bleeding and to suggest the
correct remedy to Dr. Estrada.60 Petitioners assert that it
was Dr. Villaflor's duty to correct the error of Nurse
Dumlao in the administration of hemacel.
The Court is not persuaded. Dr. Villaflor admitted
administering a lower dosage of magnesium sulfate.
However, this was after informing Dr. Estrada that
Corazon was no longer in convulsion and that her blood
pressure went down to a dangerous level.61 At that
moment, Dr. Estrada instructed Dr. Villaflor to reduce
the dosage of magnesium sulfate from 10 to 2.5 grams.
Since petitioners did not dispute Dr. Villaflor's allegation,
Dr. Villaflor's defense remains uncontroverted. Dr.
Villaflor's act of administering a lower dosage of
magnesium sulfate was not out of her own volition or
was in contravention of Dr. Estrada's order.
b) Dr. Rosa Uy
Dr. Rosa Uy's alleged negligence consisted of her failure
(1) to call the attention of Dr. Estrada on the incorrect
dosage of magnesium sulfate administered by Dr.
Villaflor; (2) to take corrective measures; and (3) to
correct Nurse Dumlao's wrong method of hemacel
administration.
The Court believes Dr. Uy's claim that as a second year
resident physician then at CMC, she was merely
authorized to take the clinical history and physical
examination of Corazon.62 However, that routine internal
examination did not ipso facto make Dr. Uy liable for the
errors committed by Dr. Estrada. Further, petitioners'
imputation of negligence rests on their baseless
assumption that Dr. Uy was present at the delivery
room. Nothing shows that Dr. Uy participated in
delivering Corazon's baby. Further, it is unexpected from
Dr. Uy, a mere resident physician at that time, to call
the attention of a more experienced specialist, if ever
she was present at the delivery room.
c) Dr. Joel Enriquez
Petitioners fault Dr. Joel Enriquez also for not calling the
attention of Dr. Estrada, Dr. Villaflor, and Nurse Dumlao
about their errors.63 Petitioners insist that Dr. Enriquez
should have taken, or at least suggested, corrective
measures to rectify such errors.
The Court is not convinced. Dr. Enriquez is an
anesthesiologist whose field of expertise is definitely not
obstetrics and gynecology. As such, Dr. Enriquez was
not expected to correct Dr. Estrada's errors. Besides,
there was no evidence of Dr. Enriquez's knowledge of

any error committed by Dr. Estrada and his failure to act

upon such observation.
d) Dr. Perpetua Lacson
Petitioners fault Dr. Perpetua Lacson for her purported
delay in the delivery of blood Corazon
needed.64Petitioners claim that Dr. Lacson was remiss in
her duty of supervising the blood bank staff.
As found by the trial court, there was no unreasonable
delay in the delivery of blood from the time of the
request until the transfusion to Corazon. Dr. Lacson
competently explained the procedure before blood could
be given to the patient.65 Taking into account the
bleeding time, clotting time and cross-matching, Dr.
Lacson stated that it would take approximately 45-60
minutes before blood could be ready for
transfusion.66 Further, no evidence exists that Dr. Lacson
neglected her duties as head of the blood bank.
e) Dr. Noe Espinola
Petitioners argue that Dr. Espinola should not have
ordered immediate hysterectomy without determining
the underlying cause of Corazon's bleeding. Dr. Espinola
should have first considered the possibility of cervical
injury, and advised a thorough examination of the
cervix, instead of believing outright Dr. Estrada's
diagnosis that the cause of bleeding was uterine atony.
Dr. Espinola's order to do hysterectomy which was
based on the information he received by phone is not
negligence. The Court agrees with the trial court's
observation that Dr. Espinola, upon hearing such
information about Corazon's condition, believed in good
faith that hysterectomy was the correct remedy. At any
rate, the hysterectomy did not push through because
upon Dr. Espinola's arrival, it was already too late. At the
time, Corazon was practically dead.
f) Nurse J. Dumlao
In Moore v. Guthrie Hospital Inc.,67 the US Court of
Appeals, Fourth Circuit, held that to recover, a patient
complaining of injuries allegedly resulting when the
nurse negligently injected medicine to him
intravenously instead of intramuscularly had to show
that (1) an intravenous injection constituted a lack of
reasonable and ordinary care; (2) the nurse injected
medicine intravenously; and (3) such injection was the
proximate cause of his injury.
In the present case, there is no evidence of Nurse
Dumlao's alleged failure to follow Dr. Estrada's specific
instructions. Even assuming Nurse Dumlao defied Dr.
Estrada's order, there is no showing that side-drip
administration of hemacel proximately caused
Corazon's death. No evidence linking Corazon's death
and the alleged wrongful hemacel administration was
introduced. Therefore, there is no basis to hold Nurse
Dumlao liable for negligence.

38

On the Award of Interest on Damages

The award of interest on damages is proper and allowed
under Article 2211 of the Civil Code, which states that in
crimes and quasi-delicts, interest as a part of the
damages may, in a proper case, be adjudicated in the
discretion of the court.68
WHEREFORE, the Court PARTLY GRANTS the petition.
The Court finds respondent Capitol Medical Center
vicariously liable for the negligence of Dr. Oscar Estrada.
The amounts of P105,000 as actual damages
andP700,000 as moral damages should each earn legal
interest at the rate of six percent (6%) per annum
computed from the date of the judgment of the trial
court. The Court affirms the rest of the Decision dated 6
February 1998 and Resolution dated 21 March 2000 of
the Court of Appeals in CA-G.R. CV No. 45641.

DR. MILAGROS L. CANTRE, Petitioner,

vs.
SPS. JOHN DAVID Z. GO and NORA S.
GO, Respondents.
DECISION
QUISUMBING, J.:
For review on certiorari are the Decision1 dated October
3, 2002 and Resolution2 dated November 19, 2003 of
the Court of Appeals in CA-G.R. CV No. 58184, which
affirmed with modification the Decision3 dated March 3,
1997 of the Regional Trial Court of Quezon City, Branch
98, in Civil Case No. Q-93-16562.
The facts, culled from the records, are as follows:
Petitioner Dr. Milagros L. Cantre is a specialist in
Obstetrics and Gynecology at the Dr. Jesus Delgado
Memorial Hospital. She was the attending physician of
respondent Nora S. Go, who was admitted at the said
hospital on April 19, 1992.
At 1:30 a.m. of April 20, 1992, Nora gave birth to her
fourth child, a baby boy. However, at around 3:30 a.m.,
Nora suffered profuse bleeding inside her womb due to
some parts of the placenta which were not completely
expelled from her womb after delivery. Consequently,
Nora suffered hypovolemic shock, resulting in a drop in
her blood pressure to "40" over "0." Petitioner and the
assisting resident physician performed various medical
procedures to stop the bleeding and to restore Noras
blood pressure. Her blood pressure was frequently
monitored with the use of a sphygmomanometer. While
petitioner was massaging Noras uterus for it to contract
and stop bleeding, she ordered a droplight to warm Nora

and her baby.4 Nora remained unconscious until she

recovered.
While in the recovery room, her husband, respondent
John David Z. Go noticed a fresh gaping wound two and
a half (2 ) by three and a half (3 ) inches in the inner
portion of her left arm, close to the armpit.5 He asked
the nurses what caused the injury. He was informed it
was a burn. Forthwith, on April 22, 1992, John David
filed a request for investigation.6 In response, Dr.
Rainerio S. Abad, the medical director of the hospital,
called petitioner and the assisting resident physician to
explain what happened. Petitioner said the blood
pressure cuff caused the injury.
On May 7, 1992, John David brought Nora to the
National Bureau of Investigation for a physical
examination, which was conducted by medico-legal
officer Dr. Floresto Arizala, Jr.7 The medico-legal officer
later testified that Noras injury appeared to be a burn
and that a droplight when placed near the skin for about
10 minutes could cause such burn.8 He dismissed the
likelihood that the wound was caused by a blood
pressure cuff as the scar was not around the arm, but
just on one side of the arm.9
On May 22, 1992, Noras injury was referred to a plastic
surgeon at the Dr. Jesus Delgado Memorial Hospital for
skin grafting.10 Her wound was covered with skin
sourced from her abdomen, which consequently bore a
scar as well. About a year after, on April 30, 1993, scar
revision had to be performed at the same hospital.11 The
surgical operation left a healed linear scar in Noras left
arm about three inches in length, the thickest portion
rising about one-fourth (1/4) of an inch from the surface
of the skin. The costs of the skin grafting and the scar
revision were shouldered by the hospital.12
Unfortunately, Noras arm would never be the
same.1a\^/phi1.net Aside from the unsightly mark, the
pain in her left arm remains. When sleeping, she has to
cradle her wounded arm. Her movements now are also
restricted. Her children cannot play with the left side of
her body as they might accidentally bump the injured
arm, which aches at the slightest touch.
Thus, on June 21, 1993, respondent spouses filed a
complaint13 for damages against petitioner, Dr. Abad,
and the hospital. Finding in favor of respondent spouses,
the trial court decreed:
In view of the foregoing consideration, judgment is
hereby rendered in favor of the plaintiffs and against the
defendants, directing the latters, (sic) jointly and
severally

39

(a) to pay the sum of Five Hundred Thousand

Pesos (P500,000.00) in moral damages;
(b) to pay the sum of One Hundred Fifty
Thousand Pesos (P150,000.00) exemplary
damages;
(c) to pay the sum of Eighty Thousand Pesos
(P80,000.00) nominal damages;
(d) to pay Fifty Thousand Pesos (P50,000.00) for
and as attorneys fees; and
(e) to pay Six Thousand Pesos (P6,000.00)
litigation expenses.
SO ORDERED.14
Petitioner, Dr. Abad, and the hospital all appealed to the
Court of Appeals, which affirmed with modification the
trial court decision, thus:
WHEREFORE, in view of all the foregoing, and finding no
reversible error in the appealed Decision dated March 3,
1997 of Branch 98 of the Regional Trial Court of Quezon
City in Civil Case No. Q-93-16562, the same is hereby
AFFIRMED, with the following MODIFICATIONS:
1. Ordering defendant-appellant Dra. Milagros
[L.] Cantre only to pay plaintiffs-appellees John
David Go and Nora S. Go the sum of
P200,000.00 as moral damages;
2. Deleting the award [of] exemplary damages,
attorneys fees and expenses of
litigation;1awphi1.nt
3. Dismissing the complaint with respect to
defendants-appellants Dr. Rainerio S. Abad and
Delgado Clinic, Inc.;

WHETHER OR NOT, THE LOWER COURT, AND THE

COURT OF APPEALS COMMITTED GRAVE ABUSE OF
THEIR DISCRETION WHEN, NOTWITHSTANDING THAT
BOTH PARTIES HAVE RESTED THEIR RESPECTIVE CASES,
THE LOWER COURT ADMITTED THE ADDITIONAL
EXHIBITS FURTHER OFFERED BY RESPONDENTS NOT
TESTIFIED TO BY ANY WITNESS AND THIS DECISION OF
THE LOWER COURT WAS UPHELD BY THE COURT OF
APPEALS LIKEWISE COMMITTING GRAVE ABUSE OF
DISCRETION;
II.
WHETHER OR NOT THE LOWER COURT COMMITTED
GRAVE ABUSE OF ITS DISCRETION WHEN, CONTRARY TO
PREPONDERANCE OF EVIDENCE PRESENTED BY THE
PETITIONER, IT RULED THAT THE PETITIONER HAS NOT
AMPLY SHOWED THAT THE DROPLIGHT DID NOT TOUCH
THE BODY OF MRS. NORA GO, AND THIS DECISION OF
THE LOWER COURT WAS UPHELD BY THE COURT OF
APPEALS LIKEWISE COMMITTING GRAVE ABUSE OF
DISCRETION;
III.
WHETHER OR NOT THE LOWER COURT COMMITTED
GRAVE ABUSE OF ITS DISCRETION WHEN, CONTRARY TO
PREPONDERANCE OF EVIDENCE PRESENTED BY THE
PETITIONER, IT RULED THAT PETITIONER DRA. CANTRE
WAS NOT ABLE TO AMPLY EXPLAIN HOW THE INJURY
(BLISTERS) IN THE LEFT INNER ARM OF RESPONDENT
MRS. GO CAME ABOUT;
IV.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED
GRAVE ABUSE OF ITS DISCRETION WHEN IT MADE A
RULING ON THE RESPONDENTS INJURY QUOTING THE
TESTIMONY OF SOMEONE WHO WAS NOT PRESENT AND
HAS NOT SEEN THE ORIGINAL, FRESH INJURY OF
RESPONDENT MRS. NORA GO;

4. Dismissing the counterclaims of defendantsappellants for lack of merit; and

V.

5. Ordering defendant-appellant Dra. Milagros

[L.] Cantre only to pay the costs.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY

ABUSING ITS DISCRETION RULED THAT PETITIONER DRA.
CANTRE SHOULD HAVE INTENDED TO INFLICT THE
INJURY TO SAVE THE LIFE OF RESPONDENT MRS. GO;

SO ORDERED.15
Petitioners motion for reconsideration was denied by
the Court of Appeals. Hence, the instant petition
assigning the following as errors and issues:
I.

VI.
WHETHER OR NOT THE LOWER COURT AND THE COURT
[OF] APPEALS COMMITTED GRAVE ABUSE OF
DISCRETION WHEN, CONTRARY TO THE DETAILED
PROCEDURES DONE BY PETITIONER, BOTH RULED THAT

40

THE RESPONDENT WAS LEFT TO THE CARE OF THE

NURSING STAFF;
VII.
WHETHER OR NOT THE LOWER COURT COMMITTED
GRAVE ABUSE OF DISCRETION WHEN, CONTRARY TO
THE MEDICAL PURPOSES OF COSMETIC SURGERY, IT
RULED THAT THE COSMETIC SURGERY MADE THE SCARS
EVEN MORE UGLY AND DECLARED THE COSMETIC
SURGERY A FAILURE;
VIII.
WHETHER OR NOT THE LOWER COURT GRAVELY ABUSE
OF (SIC) DISCRETION WHEN, CONTRARY TO
RESPONDENTS CONTRARY TESTIMONIES AND THE
ABSENCE OF ANY TESTIMONY, IT RULED THAT THEY ARE
ENTITLED TO DAMAGES AND WHICH WAS UPHELD,
ALTHOUGH MODIFIED, BY THE COURT OF APPEALS
LIKEWISE ABUSING ITS DISCRETION.16
Petitioner contends that additional documentary
exhibits not testified to by any witness are inadmissible
in evidence because they deprived her of her
constitutional right to confront the witnesses against
her. Petitioner insists the droplight could not have
touched Noras body. She maintains the injury was due
to the constant taking of Noras blood pressure.
Petitioner also insinuates the Court of Appeals was
misled by the testimony of the medico-legal officer who
never saw the original injury before plastic surgery was
performed. Finally, petitioner stresses that plastic
surgery was not intended to restore respondents injury
to its original state but rather to prevent further
complication.
Respondents, however, counter that the genuineness
and due execution of the additional documentary
exhibits were duly admitted by petitioners counsel.
Respondents point out that petitioners blood pressure
cuff theory is highly improbable, being unprecedented in
medical history and that the injury was definitely caused
by the droplight. At any rate, they argue, even if the
injury was brought about by the blood pressure cuff,
petitioner was still negligent in her duties as Noras
attending physician.
Simply put, the threshold issues for resolution are: (1)
Are the questioned additional exhibits admissible in
evidence? (2) Is petitioner liable for the injury suffered
by respondent Nora Go? Thereafter, the inquiry is
whether the appellate court committed grave abuse of
discretion in its assailed issuances.

As to the first issue, we agree with the Court of Appeals

that said exhibits are admissible in evidence. We note
that the questioned exhibits consist mostly of Noras
medical records, which were produced by the hospital
during trial pursuant to a subpoena duces tecum.
Petitioners counsel admitted the existence of the same
when they were formally offered for admission by the
trial court. In any case, given the particular
circumstances of this case, a ruling on the negligence of
petitioner may be made based on the res ipsa
loquitur doctrine even in the absence of such additional
exhibits.
Petitioners contention that the medico-legal officer who
conducted Noras physical examination never saw her
original injury before plastic surgery was performed is
without basis and contradicted by the records. Records
show that the medico-legal officer conducted the
physical examination on May 7, 1992, while the skin
grafting and the scar revision were performed on Nora
on May 22, 1992 and April 30, 1993, respectively.
Coming now to the substantive matter, is petitioner
liable for the injury suffered by respondent Nora Go?
The Hippocratic Oath mandates physicians to give
primordial consideration to the well-being of their
patients. If a doctor fails to live up to this precept, he is
accountable for his acts. This notwithstanding, courts
face a unique restraint in adjudicating medical
negligence cases because physicians are not guarantors
of care and, they never set out to intentionally cause
injury to their patients. However, intent is immaterial in
negligence cases because where negligence exists and
is proven, it automatically gives the injured a right to
reparation for the damage caused.17
In cases involving medical negligence, the doctrine
of res ipsa loquitur allows the mere existence of an
injury to justify a presumption of negligence on the part
of the person who controls the instrument causing the
injury, provided that the following requisites concur:
1. The accident is of a kind which ordinarily does
not occur in the absence of someones
negligence;
2. It is caused by an instrumentality within the
exclusive control of the defendant or
defendants; and
3. The possibility of contributing conduct which
would make the plaintiff responsible is
eliminated.18

41

As to the first requirement, the gaping wound on Noras

arm is certainly not an ordinary occurrence in the act of
delivering a baby, far removed as the arm is from the
organs involved in the process of giving birth. Such
injury could not have happened unless negligence had
set in somewhere.
Second, whether the injury was caused by the droplight
or by the blood pressure cuff is of no moment. Both
instruments are deemed within the exclusive control of
the physician in charge under the "captain of the ship"
doctrine. This doctrine holds the surgeon in charge of an
operation liable for the negligence of his assistants
during the time when those assistants are under the
surgeons control.19 In this particular case, it can be
logically inferred that petitioner, the senior consultant in
charge during the delivery of Noras baby, exercised
control over the assistants assigned to both the use of
the droplight and the taking of Noras blood pressure.
Hence, the use of the droplight and the blood pressure
cuff is also within petitioners exclusive control.
Third, the gaping wound on Noras left arm, by its very
nature and considering her condition, could only be
caused by something external to her and outside her
control as she was unconscious while in hypovolemic
shock. Hence, Nora could not, by any stretch of the
imagination, have contributed to her own injury.
Petitioners defense that Noras wound was caused not
by the droplight but by the constant taking of her blood
pressure, even if the latter was necessary given her
condition, does not absolve her from liability. As testified
to by the medico-legal officer, Dr. Arizala, Jr., the
medical practice is to deflate the blood pressure cuff
immediately after each use. Otherwise, the inflated
band can cause injury to the patient similar to what
could have happened in this case. Thus, if Noras wound
was caused by the blood pressure cuff, then the taking
of Noras blood pressure must have been done so
negligently as to have inflicted a gaping wound on her
arm,20 for which petitioner cannot escape liability under
the "captain of the ship" doctrine.
Further, petitioners argument that the failed plastic
surgery was not intended as a cosmetic procedure, but
rather as a measure to prevent complication does not
help her case. It does not negate negligence on her
part.
Based on the foregoing, the presumption that petitioner
was negligent in the exercise of her profession stands
unrebutted. In this connection, the Civil Code provides:

ART. 2176. Whoever by act or omission causes damage

to another, there being fault or negligence, is obliged to
pay for the damage done.
ART. 2217. Moral damages include physical suffering,
mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social
humiliation, and similar injury. Though incapable of
pecuniary computation, moral damages may be
recovered if they are the proximate result of the
defendants wrongful act or omission.
Clearly, under the law, petitioner is obliged to pay Nora
for moral damages suffered by the latter as a proximate
result of petitioners negligence.
We note, however, that petitioner has served well as
Noras obstetrician for her past three successful
deliveries. This is the first time petitioner is being held
liable for damages due to negligence in the practice of
her profession. The fact that petitioner promptly took
care of Noras wound before infection and other
complications set in is also indicative of petitioners
good intentions. We also take note of the fact that Nora
was suffering from a critical condition when the injury
happened, such that saving her life became petitioners
elemental concern. Nonetheless, it should be stressed
that all these could not justify negligence on the part of
petitioner.
Hence, considering the specific circumstances in the
instant case, we find no grave abuse of discretion in the
assailed decision and resolution of the Court of Appeals.
Further, we rule that the Court of Appeals award of Two
Hundred Thousand Pesos (P200,000) as moral damages
in favor of respondents and against petitioner is just and
equitable.21
WHEREFORE, the petition is DENIED. The Decision
dated October 3, 2002 and Resolution dated November
19, 2003 of the Court of Appeals in CA-G.R. CV No.
58184 are AFFIRMED.

FE CAYAO-LASAM, petitioner,
vs.
SPOUSES CLARO and EDITHA
RAMOLETE, respondents.*
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review
on Certiorari under Rule 45 of the Rules of Court filed by

42

Dr. Fe Cayao-Lasam (petitioner) seeking to annul the

Decision1 dated July 4, 2003 of the Court of Appeals (CA)
in CA-G.R. SP No. 62206.
The antecedent facts:
On July 28, 1994, respondent, three months pregnant
Editha Ramolete (Editha) was brought to the Lorma
Medical Center (LMC) in San Fernando, La Union due to
vaginal bleeding. Upon advice of petitioner
relayed viatelephone, Editha was admitted to the LMC
on the same day. A pelvic sonogram2 was then
conducted on Editha revealing the fetus weak cardiac
pulsation.3 The following day, Edithas repeat pelvic
sonogram4 showed that aside from the fetus weak
cardiac pulsation, no fetal movement was also
appreciated. Due to persistent and profuse vaginal
bleeding, petitioner advised Editha to undergo a
Dilatation and Curettage Procedure (D&C) or "raspa."
On July 30, 1994, petitioner performed the D&C
procedure. Editha was discharged from the hospital the
following day.
On September 16, 1994, Editha was once again brought
at the LMC, as she was suffering from vomiting and
severe abdominal pains. Editha was attended by Dr.
Beatriz de la Cruz, Dr. Victor B. Mayo and Dr. Juan V.
Komiya. Dr. Mayo allegedly informed Editha that there
was a dead fetus in the latters womb. After, Editha
underwent laparotomy,5 she was found to have a
massive intra-abdominal hemorrhage and a ruptured
uterus. Thus, Editha had to undergo a procedure for
hysterectomy6 and as a result, she has no more chance
to bear a child.
On November 7, 1994, Editha and her husband Claro
Ramolete (respondents) filed a Complaint7 for Gross
Negligence and Malpractice against petitioner before
the Professional Regulations Commission (PRC).
Respondents alleged that Edithas hysterectomy was
caused by petitioners unmitigated negligence and
professional incompetence in conducting the D&C
procedure and the petitioners failure to remove the
fetus inside Edithas womb.8 Among the alleged acts of
negligence were: first, petitioners failure to check up,
visit or administer medication on Editha during her first
day of confinement at the LMC;9 second, petitioner
recommended that a D&C procedure be performed on
Editha without conducting any internal examination
prior to the procedure;10 third, petitioner immediately
suggested a D&C procedure instead of closely
monitoring the state of pregnancy of Editha.11

In her Answer,12 petitioner denied the allegations of

negligence and incompetence with the following
explanations: upon Edithas confirmation that she would
seek admission at the LMC, petitioner immediately
called the hospital to anticipate the arrival of Editha and
ordered through the telephone the medicines Editha
needed to take, which the nurses carried out; petitioner
visited Editha on the morning of July 28, 1994 during
her rounds; on July 29, 1994, she performed an internal
examination on Editha and she discovered that the
latters cervix was already open, thus, petitioner
discussed the possible D&C procedure, should the
bleeding become more profuse; on July 30 1994, she
conducted another internal examination on Editha,
which revealed that the latters cervix was still open;
Editha persistently complained of her vaginal bleeding
and her passing out of some meaty mass in the process
of urination and bowel movement; thus, petitioner
advised Editha to undergo D&C procedure which the
respondents consented to; petitioner was very vocal in
the operating room about not being able to see an
abortus;13 taking the words of Editha to mean that she
was passing out some meaty mass and clotted blood,
she assumed that the abortus must have been expelled
in the process of bleeding; it was Editha who insisted
that she wanted to be discharged; petitioner agreed, but
she advised Editha to return for check-up on August 5,
1994, which the latter failed to do.
Petitioner contended that it was Edithas gross
negligence and/or omission in insisting to be discharged
on July 31, 1994 against doctors advice and her
unjustified failure to return for check-up as directed by
petitioner that contributed to her life-threatening
condition on September 16, 1994; that Edithas
hysterectomy was brought about by her very abnormal
pregnancy known as placenta increta, which was an
extremely rare and very unusual case of abdominal
placental implantation. Petitioner argued that whether
or not a D&C procedure was done by her or any other
doctor, there would be no difference at all because at
any stage of gestation before term, the uterus would
rupture just the same.
On March 4, 1999, the Board of Medicine (the Board) of
the PRC rendered a Decision,14 exonerating petitioner
from the charges filed against her. The Board held:
Based on the findings of the doctors who
conducted the laparotomy on Editha, hers is a
case of Ectopic Pregnancy Interstitial. This type
of ectopic pregnancy is one that is being
protected by the uterine muscles and
manifestations may take later than four (4)
months and only attributes to two percent (2%)
of ectopic pregnancy cases.

43

When complainant Editha was admitted at

Lorma Medical Center on July 28, 1994 due to
vaginal bleeding, an ultra-sound was performed
upon her and the result of the Sonogram Test
reveals a morbid fetus but did not specify where
the fetus was located. Obstetricians will assume
that the pregnancy is within the uterus unless
so specified by the Sonologist who conducted
the ultra-sound. Respondent (Dr. Lasam) cannot
be faulted if she was not able to determine that
complainant Editha is having an ectopic
pregnancy interstitial. The D&C conducted on
Editha is necessary considering that her cervix
is already open and so as to stop the profuse
bleeding. Simple curettage cannot remove a
fetus if the patient is having an ectopic
pregnancy, since ectopic pregnancy is
pregnancy conceived outside the uterus and
curettage is done only within the uterus.
Therefore, a more extensive operation needed
in this case of pregnancy in order to remove the
fetus.15
Feeling aggrieved, respondents went to the PRC on
appeal. On November 22, 2000, the PRC rendered a
Decision16 reversing the findings of the Board and
revoking petitioners authority or license to practice her
profession as a physician.17
Petitioner brought the matter to the CA in a Petition for
Review under Rule 43 of the Rules of Court. Petitioner
also dubbed her petition as one for certiorari18 under
Rule 65 of the Rules of Court.
In the Decision dated July 4, 2003, the CA held that the
Petition for Review under Rule 43 of the Rules of Court
was an improper remedy, as the enumeration of
the quasi-judicial agencies in Rule 43 is exclusive.19 PRC
is not among the quasi-judicial bodies whose judgment
or final orders are subject of a petition for review to the
CA, thus, the petition for review of the PRC Decision,
filed at the CA, was improper. The CA further held that
should the petition be treated as a petition
for certiorari under Rule 65, the same would still be
dismissed for being improper and premature. Citing
Section 2620 of Republic Act (R.A.) No. 2382 or the
Medical Act of 1959, the CA held that the plain, speedy
and adequate remedy under the ordinary course of law
which petitioner should have availed herself of was to
appeal to the Office of the President.21
Hence, herein petition, assailing the decision of the CA
on the following grounds:
1. THE COURT OF APPEALS ERRED ON A
QUESTION OF LAW IN HOLDING THAT THE

PROFESSIONAL REGULATION[S] COMMISSION

(PRC) WAS EXCLUDED AMONG THE QUASIJUDICIAL AGENCIES CONTEMPLATED UNDER
RULE 43 OF THE RULES OF CIVIL PROCEDURE;
2. EVEN ASSUMING, ARGUENDO, THAT PRC WAS
EXCLUDED FROM THE PURVIEW OF RULE 43 OF
THE RULES OF CIVIL PROCEDURE, THE
PETITIONER WAS NOT PRECLUDED FROM FILING
A PETITION FOR CERTIORARI WHERE THE
DECISION WAS ALSO ISSUED IN EXCESS OF OR
WITHOUT JURISDICTION, OR WHERE THE
DECISION WAS A PATENT NULLITY;
3. HEREIN RESPONDENTS-SPOUSES ARE NOT
ALLOWED BY LAW TO APPEAL FROM THE
DECISION OF THE BOARD OF MEDICINE TO THE
PROFESSIONAL REGULATION[S] COMMISSION;
4. THE COURT OF APPEALS COMMITTED GRAVE
ABUSE OF DISCRETION IN DENYING FOR
IMPROPER FORUM THE PETITION FOR
REVIEW/PETITION FOR CERTIORARI WITHOUT
GOING OVER THE MERITS OF THE GROUNDS
RELIED UPON BY THE PETITIONER;
5. PRCS GRAVE OMISSION TO AFFORD HEREIN
PETITONER A CHANCE TO BE HEARD ON APPEAL
IS A CLEAR VIOLATION OF HER CONSTITUTIONAL
RIGHT TO DUE PROCESS AND HAS THE EFFECT
OF RENDERING THE JUDGMENT NULL AND VOID;
6. COROLLARY TO THE FOURTH ASSIGNED
ERROR, PRC COMMITTED GRAVE ABUSE OF
DISCRETION, AMOUNTING TO LACK OF
JURISDICTION, IN ACCEPTING AND CONSIDERING
THE MEMORANDUM ON APPEAL WITHOUT
PROOF OF SERVICE TO HEREIN PETITIONER,
AND IN VIOLATION OF ART. IV, SEC. 35 OF THE
RULES AND REGULATIONS GOVERNING THE
REGULATION AND PRACTICE OF
PROFESSIONALS;
7. PRC COMMITTED GRAVE ABUSE OF
DISCRETION IN REVOKING PETITIONERS
LICENSE TO PRACTICE MEDICINE WITHOUT AN
EXPERT TESTIMONY TO SUPPORT ITS
CONCLUSION AS TO THE CAUSE OF
RESPONDENT EDITHAT [SIC] RAMOLETES
INJURY;
8. PRC COMMITTED AN EVEN GRAVER ABUSE OF
DISCRETION IN TOTALLY DISREGARDING THE
FINDING OF THE BOARD OF MEDICINE, WHICH
HAD THE NECESSARY COMPETENCE AND
EXPERTISE TO ESTABLISH THE CAUSE OF

44

RESPONDENT EDITHAS INJURY, AS WELL AS THE

TESTIMONY OF THE EXPERT WITNESS AUGUSTO
MANALO, M.D. ;[and]
9. PRC COMMITTED GRAVE ABUSE OF
DISCRETION IN MAKING CONCLUSIONS OF
FACTS THAT WERE NOT ONLY UNSUPPORTED BY
EVIDENCE BUT WERE ACTUALLY CONTRARY TO
EVIDENCE ON RECORD.22
The Court will first deal with the procedural issues.
Petitioner claims that the law does not allow
complainants to appeal to the PRC from the decision of
the Board. She invokes Article IV, Section 35 of the
Rules and Regulations Governing the Regulation and
Practice of Professionals, which provides:
Sec. 35. The respondent may appeal the
decision of the Board within thirty days from
receipt thereof to the Commission whose
decision shall be final. Complainant, when
allowed by law, may interpose an appeal
from the Decision of the Board within the
same period. (Emphasis supplied)
Petitioner asserts that a careful reading of the above law
indicates that while the respondent, as a matter of right,
may appeal the Decision of the Board to the
Commission, the complainant may interpose an appeal
from the decision of the Board only when so allowed by
law.23 Petitioner cited Section 26 of Republic Act No.
2382 or "The Medical Act of 1959," to wit:
Section 26. Appeal from judgment. The decision
of the Board of Medical Examiners (now Medical
Board) shall automatically become final thirty
days after the date of its promulgation unless
the respondent, during the same period, has
appealed to the Commissioner of Civil Service
(now Professional Regulations Commission) and
later to the Office of the President of the
Philippines. If the final decision is not
satisfactory, the respondent may ask for a
review of the case, or may file in court a petition
for certiorari.
Petitioner posits that the reason why the Medical Act of
1959 allows only the respondent in an administrative
case to file an appeal with the Commission while the
complainant is not allowed to do so is double jeopardy.
Petitioner is of the belief that the revocation of license
to practice a profession is penal in nature.24
The Court does not agree.

For one, the principle of double jeopardy finds no

application in administrative cases. Double jeopardy
attaches only: (1) upon a valid indictment; (2) before a
competent court; (3) after arraignment; (4) when a valid
plea has been entered; and (5) when the defendant was
acquitted or convicted, or the case was dismissed or
otherwise terminated without the express consent of the
accused.25 These elements were not present in the
proceedings before the Board of Medicine, as the
proceedings involved in the instant case were
administrative and not criminal in nature. The Court has
already held that double jeopardy does not lie in
administrative cases.26
Moreover, Section 35 of the Rules and Regulations
Governing the Regulation and Practice of Professionals
cited by petitioner was subsequently amended to read:
Sec. 35. The complainant/respondent may
appeal the order, the resolution or the decision
of the Board within thirty (30) days from receipt
thereof to the Commission whose decision shall
be final and executory. Interlocutory order shall
not be appealable to the Commission.
(Amended by Res. 174, Series of
1990).27(Emphasis supplied)
Whatever doubt was created by the previous provision
was settled with said amendment. It is axiomatic that
the right to appeal is not a natural right or a part of due
process, but a mere statutory privilege that may be
exercised only in the manner prescribed by law.28 In this
case, the clear intent of the amendment is to render the
right to appeal from a decision of the Board available to
both complainants and respondents.
Such conclusion is bolstered by the fact that in 2006,
the PRC issued Resolution No. 06-342(A), or the New
Rules of Procedure in Administrative Investigations in
the Professional Regulations Commission and the
Professional Regulatory Boards, which provides for the
method of appeal, to wit:
Sec. 1. Appeal; Period Non-Extendible.- The
decision, order or resolution of the Board shall
be final and executory after the lapse of fifteen
(15) days from receipt of the decision, order or
resolution without an appeal being perfected or
taken by either the respondent or the
complainant. A party aggrieved by the
decision, order or resolution may file a
notice of appeal from the decision, order
or resolution of the Board to the
Commission within fifteen (15) days from
receipt thereof, and serving upon the adverse
party a notice of appeal together with the

45

appellants brief or memorandum on appeal,

and paying the appeal and legal research fees. x
x x29
The above-stated provision does not qualify whether
only the complainant or respondent may file an appeal;
rather, the new rules provide that "a party aggrieved"
may file a notice of appeal. Thus, either the complainant
or the respondent who has been aggrieved by the
decision, order or resolution of the Board may appeal to
the Commission. It is an elementary rule that when the
law speaks in clear and categorical language, there is
no need, in the absence of legislative intent to the
contrary, for any interpretation.30 Words and phrases
used in the statute should be given their plain, ordinary,
and common usage or meaning.31
Petitioner also submits that appeals from the decisions
of the PRC should be with the CA, as Rule 4332 of the
Rules of Court was precisely formulated and adopted to
provide for a uniform rule of appellate procedure for
quasi-judicial agencies.33 Petitioner further contends
that a quasi-judicial body is not excluded from the
purview of Rule 43 just because it is not mentioned
therein.34
On this point, the Court agrees with the petitioner.
Sec. 1, Rule 43 of the Rules of Court provides:
Section 1. Scope. - This Rule shall apply to
appeals from judgments or final orders of the
Court of Tax Appeals, and from awards,
judgments, final orders or resolutions of or
authorized by any quasi-judicial agency in
the exercise of its quasi-judicial functions.
Among these agencies are the Civil Service
Commission, Central Board of Assessment
Appeals, Securities and Exchange Commission,
Office of the President, Land Registration
Authority, Social Security Commission, Civil
Aeronautics Board, Bureau of Patents,
Trademarks and Technology Transfer, National
Electrification Administration, Energy Regulatory
Board, National Telecommunications
Commission, Department of Agrarian Reform
under Republic Act No. 6657, Government
Service Insurance System, Employees
Compensation Commission, Agricultural
Inventions Board, Insurance Commission,
Philippine Atomic Energy Commission, Board of
Investments, Construction Industry Arbitration
Commission, and voluntary arbitrators
authorized by law. (Emphasis supplied)

Indeed, the PRC is not expressly mentioned as one of

the agencies which are expressly enumerated under
Section 1, Rule 43 of the Rules of Court. However, its
absence from the enumeration does not, by this fact
alone, imply its exclusion from the coverage of said
Rule.35 The Rule expressly provides that it should be
applied to appeals from awards, judgments final orders
or resolutions of any quasi-judicial agency in the
exercise of its quasi-judicial functions. The phrase
"among these agencies" confirms that the enumeration
made in the Rule is not exclusive to the agencies therein
listed.36
Specifically, the Court, in Yang v. Court of
Appeals,37 ruled
that Batas Pambansa (B.P.) Blg. 12938 conferred upon
the CA exclusive appellate jurisdiction over appeals
from decisions of the PRC. The Court held:
The law has since been changed, however, at
least in the matter of the particular court to
which appeals from the Commission should be
taken. On August 14, 1981, Batas Pambansa
Bilang 129 became effective and in its Section
29, conferred on the Court of Appeals "exclusive
appellate jurisdiction over all final judgments,
decisions, resolutions, orders or awards of
Regional Trial Courts and quasi-judicial agencies,
instrumentalities, boards or commissions except
those falling under the appellate jurisdiction of
the Supreme Court. x x x." In virtue of BP
129, appeals from the Professional
Regulations Commission are now
exclusively cognizable by the Court of
Appeals.39 (Emphasis supplied)
Clearly, the enactment of B.P. Blg. 129, the precursor of
the present Rules of Civil Procedure,40 lodged with the
CA such jurisdiction over the appeals of decisions made
by the PRC.
Anent the substantive merits of the case, petitioner
questions the PRC decision for being without an expert
testimony to support its conclusion and to establish the
cause of Edithas injury. Petitioner avers that in cases of
medical malpractice, expert testimony is necessary to
support the conclusion as to the cause of the injury. 41
Medical malpractice is a particular form of negligence
which consists in the failure of a physician or surgeon to
apply to his practice of medicine that degree of care and
skill which is ordinarily employed by the profession
generally, under similar conditions, and in like
surrounding circumstances.42 In order to successfully
pursue such a claim, a patient must prove that the
physician or surgeon either failed to do something

46

which a reasonably prudent physician or surgeon would

not have done, and that the failure or action caused
injury to the patient.43
There are four elements involved in medical negligence
cases: duty, breach, injury and proximate causation.44
A physician-patient relationship was created when
Editha employed the services of the petitioner. As
Edithas physician, petitioner was duty-bound to use at
least the same level of care that any reasonably
competent doctor would use to treat a condition under
the same circumstances.45 The breach of these
professional duties of skill and care, or their improper
performance by a physician surgeon, whereby the
patient is injured in body or in health, constitutes
actionable malpractice.46 As to this aspect of medical
malpractice, the determination of the reasonable level
of care and the breach thereof, expert testimony is
essential.47 Further, inasmuch as the causes of the
injuries involved in malpractice actions are
determinable only in the light of scientific knowledge, it
has been recognized that expert testimony is usually
necessary to support the conclusion as to causation. 48
In the present case, respondents did not present any
expert testimony to support their claim that petitioner
failed to do something which a reasonably prudent
physician or surgeon would have done.
Petitioner, on the other hand, presented the testimony
of Dr. Augusto M. Manalo, who was clearly an expert on
the subject.
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.49
Dr. Manalo specializes in gynecology and obstetrics,
authored and co-authored various publications on the
subject, and is a professor at the University of the
Philippines.50 According to him, his diagnosis of Edithas
case was "Ectopic Pregnancy Interstitial (also referred to
as Cornual), Ruptured."51 In stating that the D&C
procedure was not the proximate cause of the rupture of
Edithas uterus resulting in her hysterectomy, Dr.
Manalo testified as follows:
Atty. Hidalgo:
Q:
Doctor, we want to be clarified on this
matter. The complainant had testified here that
the D&C was the proximate cause of the rupture
of the uterus. The condition which she found

herself in on the second admission. Will you

please tell us whether that is true or not?
A:
Yah, I do not think so for two
reasons. One, as I have said earlier, the
instrument cannot reach the site of the
pregnancy, for it to further push the pregnancy
outside the uterus. And, No. 2, I was thinking a
while ago about another reason- well, why I
dont think so, because it is the triggering factor
for the rupture, it could havethe rupture could
have occurred much earlier, right after the D&C
or a few days after the D&C.
Q:
In this particular case, doctor, the rupture
occurred to have happened minutes prior to the
hysterectomy or right upon admission on
September 15, 1994 which is about 1 months
after the patient was discharged, after the D&C
was conducted. Would you tell us whether there
is any relation at all of the D&C and the rupture
in this particular instance?
A:
I dont think so for the two reasons
that I have just mentioned- that it would
not be possible for the instrument to reach
the site of pregnancy. And, No. 2, if it is
because of the D&C that rupture could have
occurred earlier.52 (Emphases supplied)
Clearly, from the testimony of the expert witness and
the reasons given by him, it is evident that the D&C
procedure was not the proximate cause of the rupture of
Edithas uterus.
During his cross-examination, Dr. Manalo testified on
how he would have addressed Edithas condition should
he be placed in a similar circumstance as the petitioner.
He stated:
Atty. Ragonton:
Q:
Doctor, as a practicing OB-Gyne, when do
you consider that you have done a good, correct
and ideal dilatation and curettage procedure?
A:
Well, if the patient recovers. If the patient
gets well. Because even after the procedure,
even after the procedure you may feel that you
have scraped everything, the patient stops
bleeding, she feels well, I think you should still
have some reservations, and wait a little more
time.
Q:
If you were the OB-Gyne who performed
the procedure on patient Editha Ramolete,

47

would it be your standard practice to check the

fetal parts or fetal tissues that were allegedly
removed?
A:
From what I have removed, yes. But in this
particular case, I think it was assumed that it
was part of the meaty mass which was expelled
at the time she was urinating and flushed in the
toilet. So theres no way.
Q:
There was [sic] some portions of the fetal
parts that were removed?
A:
No, it was described as scanty scraping if I
remember it rightscanty.
Q:
And you would not mind checking those
scant or those little parts that were removed?
A:
Well, the fact that it was described
means, I assume that it was checked, no. It
was described as scanty and the color also, I
think was described. Because it would be
very unusual, even improbable that it
would not be examined, because when you
scrape, the specimens are right there
before your eyes. Its in front of you. You
can touch it. In fact, some of them will
stick to the instrument and therefore to
peel it off from the instrument, you have
to touch them. So, automatically they are
examined closely.
Q:
As a matter of fact, doctor, you also give
telephone orders to your patients through
telephone?
A:
Yes, yes, we do that, especially here in
Manila because you know, sometimes a doctor
can also be tied-up somewhere and if you have
to wait until he arrive at a certain place before
you give the order, then it would be a lot of time
wasted. Because if you know your patient, if you
have handled your patient, some of the
symptoms you can interpret that comes with
practice. And, I see no reason for not
allowing telephone orders unless it is the
first time that you will be encountering the
patient. That you have no idea what the
problem is.
Q:
But, doctor, do you discharge patients
without seeing them?
A:
Sometimes yes, depending on how familiar
I am with the patient. We are on the question of

telephone orders. I am not saying that that is

the idle [sic] thing to do, but I think the reality
of present day practice somehow justifies
telephone orders. I have patients whom I
have justified and then all of a sudden, late in
the afternoon or late in the evening, would
suddenly call they have decided that they will
go home inasmuch as they anticipated that I will
discharge them the following day. So, I just call
and ask our resident on duty or the nurse to
allow them to go because I have seen that
patient and I think I have full grasp of her
problems. So, thats when I make this telephone
orders. And, of course before giving that order I
ask about how she feels.53 (Emphases supplied)
From the foregoing testimony, it is clear that the D&C
procedure was conducted in accordance with the
standard practice, with the same level of care that any
reasonably competent doctor would use to treat a
condition under the same circumstances, and that there
was nothing irregular in the way the petitioner dealt
with Editha.
Medical malpractice, in our jurisdiction, is often brought
as a civil action for damages under Article 2176 54 of the
Civil Code. The defenses in an action for damages,
provided for under Article 2179 of the Civil Code are:
Art. 2179. When the plaintiffs own
negligence was the immediate and
proximate cause of his injury, he cannot
recover damages. But if his negligence was
only contributory, the immediate and proximate
cause of the injury being the defendants lack of
due care, the plaintiff may recover damages,
but the courts shall mitigate the damages to be
awarded.
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.55 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.56
In the present case, the Court notes the findings of the
Board of Medicine:
When complainant was discharged on July 31,
1994, herein respondent advised her to

48

return on August 4, 1994 or four (4) days

after the D&C. This advise was clear in
complainants Discharge
Sheet. However, complainant failed to do
so. This being the case, the chain of continuity
as required in order that the doctrine of
proximate cause can be validly invoked was
interrupted. Had she returned, the
respondent could have examined her
thoroughly.57 x x x (Emphases supplied)
Also, in the testimony of Dr. Manalo, he stated further
that assuming that there was in fact a misdiagnosis, the
same would have been rectified if Editha followed the
petitioners order to return for a check-up on August 4,
1994. Dr. Manalo stated:
Granting that the obstetriciangynecologist has been misled (justifiably)
up to thus point that there would have
been ample opportunity to rectify the
misdiagnosis, had the patient returned, as
instructed for her follow-up evaluation. It
was one and a half months later that the
patient sought consultation with another
doctor. The continued growth of an ectopic
pregnancy, until its eventual rupture, is a
dynamic process. Much change in physical
findings could be expected in 1 months,
including the emergence of suggestive ones.58
It is undisputed that Editha did not return for a follow-up
evaluation, in defiance of the petitioners advise. Editha
omitted the diligence required by the circumstances
which could have avoided the injury. The omission in not
returning for a follow-up evaluation played a substantial
part in bringing about Edithas own injury. Had Editha
returned, petitioner could have conducted the proper
medical tests and procedure necessary to determine
Edithas health condition and applied the corresponding
treatment which could have prevented the rupture of
Edithas uterus. The D&C procedure having been
conducted in accordance with the standard medical
practice, it is clear that Edithas omission was the
proximate cause of her own injury and not merely a
contributory negligence on her part.
Contributory negligence is the act or omission
amounting to want of ordinary care on the part of the
person injured, which, concurring with the defendants
negligence, is the proximate cause of the
injury.59 Difficulty seems to be apprehended in deciding
which acts of the injured party shall be considered
immediate causes of the accident.60 Where the
immediate cause of an accident resulting in an injury is
the plaintiffs own act, which contributed to the principal
occurrence as one of its determining factors, he cannot

recover damages for the injury.61 Again, based on the

evidence presented in the present case under
review, in which no negligence can be attributed
to the petitioner, the immediate cause of the
accident resulting in Edithas injury was her own
omission when she did not return for a follow-up
check up, in defiance of petitioners orders. The
immediate cause of Edithas injury was her own
act; thus, she cannot recover damages from the
injury.
Lastly, petitioner asserts that her right to due process
was violated because she was never informed by either
respondents or by the PRC that an appeal was pending
before the PRC.62 Petitioner claims that a verification
with the records section of the PRC revealed that on
April 15, 1999, respondents filed a Memorandum on
Appeal before the PRC, which did not attach the actual
registry receipt but was merely indicated therein.63
Respondents, on the other hand avers that if the original
registry receipt was not attached to the Memorandum
on Appeal, PRC would not have entertained the appeal
or accepted such pleading for lack of notice or proof of
service on the other party.64 Also, the registry receipt
could not be appended to the copy furnished to
petitioners former counsel, because the registry receipt
was already appended to the original copy of the
Memorandum of Appeal filed with PRC.65
It is a well-settled rule that when service of notice is an
issue, the rule is that the person alleging that the notice
was served must prove the fact of service. The burden
of proving notice rests upon the party asserting its
existence.66 In the present case, respondents did not
present any proof that petitioner was served a copy of
the Memorandum on Appeal. Thus, respondents were
not able to satisfy the burden of proving that they had
in fact informed the petitioner of the appeal proceedings
before the PRC.
In EDI-Staffbuilders International, Inc. v. National Labor
Relations Commission,67 in which the National Labor
Relations Commission failed to order the private
respondent to furnish the petitioner a copy of the
Appeal Memorandum, the Court held that said failure
deprived the petitioner of procedural due process
guaranteed by the Constitution, which could have
served as basis for the nullification of the proceedings in
the appeal. The same holds true in the case at bar. The
Court finds that the failure of the respondents to furnish
the petitioner a copy of the Memorandum of Appeal
submitted to the PRC constitutes a violation of due
process. Thus, the proceedings before the PRC were null
and void.

49

All told, doctors are protected by a special rule of law.

They are not guarantors of care. They are not insurers
against mishaps or unusual consequences68 specially so
if the patient herself did not exercise the proper
diligence required to avoid the injury.
WHEREFORE, the petition is GRANTED. The assailed
Decision of the Court of Appeals dated July 4, 2003 in
CA-GR SP No. 62206 is hereby REVERSED and SET
ASIDE. The Decision of the Board of Medicine dated
March 4, 1999 exonerating petitioner is AFFIRMED. No
pronouncement as to costs.

PETER PAUL PATRICK LUCAS, FATIMA GLADYS

LUCAS, ABBEYGAIL LUCAS AND GILLIAN
LUCAS,Petitioners,
vs.
DR. PROSPERO MA. C. TUAO, Respondent.
DECISION
CHICO-NAZARIO, J.:
In this petition for review on certiorari1 under Rule 45 of
the Revised Rules of Court, petitioners Peter Paul Patrick
Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian
Lucas seek the reversal of the 27 September 2006
Decision2 and 3 July 2007 Resolution,3 both of the Court
of Appeals in CA-G.R. CV No. 68666, entitled "Peter Paul
Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and
Gillian Lucas v. Prospero Ma. C. Tuao."
In the questioned decision and resolution, the Court of
Appeals affirmed the 14 July 2000 Decision of the
Regional Trial Court (RTC), Branch 150, Makati City,
dismissing the complaint filed by petitioners in a civil
case entitled, "Peter Paul Patrick Lucas, Fatima Gladys
Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma.
C. Tuao," docketed as Civil Case No. 92-2482.
From the record of the case, the established factual
antecedents of the present petition are:
Sometime in August 1988, petitioner Peter Paul Patrick
Lucas (Peter) contracted "sore eyes" in his right eye.
On 2 September 1988, complaining of a red right eye
and swollen eyelid, Peter made use of his health care
insurance issued by Philamcare Health Systems, Inc.
(Philamcare), for a possible consult. The Philamcare
Coordinator, Dr. Edwin Oca, M.D., referred Peter to
respondent, Dr. Prospero Ma. C. Tuao, M.D. (Dr. Tuao),
an ophthalmologist at St. Lukes Medical Center, for an
eye consult.

Upon consultation with Dr. Tuao, Peter narrated that it

had been nine (9) days since the problem with his right
eye began; and that he was already taking Maxitrol to
address the problem in his eye. According to Dr. Tuao,
he performed "ocular routine examination" on Peters
eyes, wherein: (1) a gross examination of Peters eyes
and their surrounding area was made; (2) Peters visual
acuity were taken; (3) Peters eyes were palpated to
check the intraocular pressure of each; (4) the motility
of Peters eyes was observed; and (5) the
ophthalmoscopy4 on Peters eyes was used. On that
particular consultation, Dr. Tuao diagnosed that Peter
was suffering from conjunctivitis 5 or "sore eyes." Dr.
Tuao then prescribed Spersacet-C6 eye drops for Peter
and told the latter to return for follow-up after one
week.
As instructed, Peter went back to Dr. Tuao on 9
September 1988. Upon examination, Dr. Tuao told
Peter that the "sore eyes" in the latters right eye had
already cleared up and he could discontinue the
Spersacet-C. However, the same eye developed
Epidemic Kerato Conjunctivitis (EKC),7 a viral infection.
To address the new problem with Peters right eye, Dr.
Tuao prescribed to the former a steroid-based eye drop
called Maxitrol,8 a dosage of six (6) drops per day.9 To
recall, Peter had already been using Maxitrol prior to his
consult with Dr. Tuao.
On 21 September 1988, Peter saw Dr. Tuao for a followup consultation. After examining both of Peters eyes,
Dr. Tuao instructed the former to taper down10 the
dosage of Maxitrol, because the EKC in his right eye had
already resolved. Dr. Tuao specifically cautioned Peter
that, being a steroid, Maxitrol had to be withdrawn
gradually; otherwise, the EKC might recur.11
Complaining of feeling as if there was something in his
eyes, Peter returned to Dr. Tuao for another check-up
on 6 October 1988. Dr. Tuao examined Peters eyes
and found that the right eye had once more developed
EKC. So, Dr. Tuao instructed Peter to resume the use of
Maxitrol at six (6) drops per day.
On his way home, Peter was unable to get a hold of
Maxitrol, as it was out of stock. Consequently, Peter was
told by Dr. Tuano to take, instead, Blephamide12 another
steroid-based medication, but with a lower
concentration, as substitute for the unavailable Maxitrol,
to be used three (3) times a day for five (5) days; two
(2) times a day for five (5) days; and then just once a
day.13
Several days later, on 18 October 1988, Peter went to
see Dr. Tuao at his clinic, alleging severe eye pain,
feeling as if his eyes were about to "pop-out," a

50

headache and blurred vision. Dr. Tuao examined

Peters eyes and discovered that the EKC was again
present in his right eye. As a result, Dr. Tuao told Peter
to resume the maximum dosage of Blephamide.
Dr. Tuao saw Peter once more at the formers clinic on
4 November 1988. Dr. Tuaos examination showed that
only the periphery of Peters right eye was positive for
EKC; hence, Dr. Tuao prescribed a lower dosage of
Blephamide.
It was also about this time that Fatima Gladys Lucas
(Fatima), Peters spouse, read the accompanying
literature of Maxitrol and found therein the following
warning against the prolonged use of such steroids:
WARNING:
Prolonged use may result in glaucoma, with damage to
the optic nerve, defects in visual acuity and fields of
vision, and posterior, subcapsular cataract formation.
Prolonged use may suppress the host response and thus
increase the hazard of secondary ocular infractions, in
those diseases causing thinning of the cornea or sclera,
perforations have been known to occur with the use of
topical steroids. In acute purulent conditions of the eye,
steroids may mask infection or enhance existing
infection. If these products are used for 10 days or
longer, intraocular pressure should be routinely
monitored even though it may be difficult in children
and uncooperative patients.
Employment of steroid medication in the treatment of
herpes simplex requires great caution.
xxxx
ADVERSE REACTIONS:
Adverse reactions have occurred with steroid/antiinfective combination drugs which can be attributed to
the steroid component, the anti-infective component, or
the combination. Exact incidence figures are not
available since no denominator of treated patients is
available.
Reactions occurring most often from the presence of the
anti-infective ingredients are allergic sensitizations. The
reactions due to the steroid component in decreasing
order to frequency are elevation of intra-ocular pressure
(IOP) with possible development of glaucoma,
infrequent optic nerve damage; posterior subcapsular
cataract formation; and delayed wound healing.

and antimicrobials. Fungal infections of the correa are

particularly prone to develop coincidentally with longterm applications of steroid. The possibility of fungal
invasion must be considered in any persistent corneal
ulceration where steroid treatment has been used.
Secondary bacterial ocular infection following
suppression of host responses also occurs.
On 26 November 1988, Peter returned to Dr. Tuaos
clinic, complaining of "feeling worse."14 It appeared that
the EKC had spread to the whole of Peters right eye yet
again. Thus, Dr. Tuao instructed Peter to resume the
use of Maxitrol. Petitioners averred that Peter already
made mention to Dr. Tuao during said visit of the
above-quoted warning against the prolonged use of
steroids, but Dr. Tuao supposedly brushed aside Peters
concern as mere paranoia, even assuring him that the
former was taking care of him (Peter).
Petitioners further alleged that after Peters 26
November 1988 visit to Dr. Tuao, Peter continued to
suffer pain in his right eye, which seemed to "progress,"
with the ache intensifying and becoming more frequent.
Upon waking in the morning of 13 December 1988,
Peter had no vision in his right eye. Fatima observed
that Peters right eye appeared to be bloody and
swollen.15 Thus, spouses Peter and Fatima rushed to the
clinic of Dr. Tuao. Peter reported to Dr. Tuao that he
had been suffering from constant headache in the
afternoon and blurring of vision.
Upon examination, Dr. Tuao noted the hardness of
Peters right eye. With the use of a tonometer 16 to verify
the exact intraocular pressure17 (IOP) of Peters eyes, Dr.
Tuao discovered that the tension in Peters right eye
was39.0 Hg, while that of his left was 17.0 Hg.18 Since
the tension in Peters right eye was way over
the normal IOP, which merely ranged from 10.0 Hg to
21.0 Hg,19 Dr. Tuao ordered20 him to immediately
discontinue the use of Maxitrol and prescribed to the
latter Diamox21 and Normoglaucon, instead.22 Dr. Tuao
also required Peter to go for daily check-up in order for
the former to closely monitor the pressure of the latters
eyes.
On 15 December 1988, the tonometer reading of Peters
right eye yielded a high normal level, i.e., 21.0 Hg.
Hence, Dr. Tuao told Peter to continue using Diamox
and Normoglaucon. But upon Peters complaint of
"stomach pains and tingling sensation in his
fingers,"23 Dr. Tuao discontinued Peters use of
Diamox.24

Secondary infection: The development of secondary has

occurred after use of combination containing steroids

51

Peter went to see another ophthalmologist, Dr. Ramon T.

Batungbacal (Dr. Batungbacal), on 21 December 1988,
who allegedly conducted a complete ophthalmological
examination of Peters eyes. Dr. Batungbacals diagnosis
was Glaucoma25 O.D.26 He recommended Laser
Trabeculoplasty27 for Peters right eye.

19 R and 15 L at 1210 H while on Normoglaucon BID OD

& Diamox tab every 6h po.

When Peter returned to Dr. Tuao on 23 December

1988,28 the tonometer measured the IOP of Peters right
eye to be 41.0 Hg,29 again, way above normal. Dr.
Tuao addressed the problem by advising Peter to
resume taking Diamox along with Normoglaucon.

Funduscopy34 showed vertical cup disc of 0.85 R and 0.6

L with temporal slope R>L.

During the Christmas holidays, Peter supposedly stayed

in bed most of the time and was not able to celebrate
the season with his family because of the debilitating
effects of Diamox.30

Rolly, I feel that Peter Lucas has really sustained

significant glaucoma damage. I suggest that we do a
baseline visual fields and push medication to lowest
possible levels. If I may suggest further, I think we
should prescribe Timolol37 BID38 OD in lieu of
Normoglaucon. If the IOP is still inadequate, we may try
Depifrin39 BID OD (despite low PAS). Im in favor of
retaining Diamox or similar CAI.40

On 28 December 1988, during one of Peters regular

follow-ups with Dr. Tuao, the doctor conducted another
ocular routine examination of Peters eyes. Dr. Tuao
noted the recurrence of EKC in Peters right eye.
Considering, however, that the IOP of Peters right eye
was still quite high at 41.0 Hg, Dr. Tuao was at a loss
as to how to balance the treatment of Peters EKC vis-vis the presence of glaucoma in the same eye. Dr.
Tuao, thus, referred Peter to Dr. Manuel B. Agulto, M.D.
(Dr. Agulto), another ophthalmologist specializing in the
treatment of glaucoma.31 Dr. Tuaos letter of referral to
Dr. Agulto stated that:
Referring to you Mr. Peter Lucas for evaluation &
possible management. I initially saw him Sept. 2, 1988
because of conjunctivitis. The latter resolved and he
developed EKC for which I gave Maxitrol. The EKC was
recurrent after stopping steroid drops. Around 1 month
of steroid treatment, he noted blurring of vision & pain
on the R. however, I continued the steroids for the sake
of the EKC. A month ago, I noted iris atrophy, so I took
the IOP and it was definitely elevated. I stopped the
steroids immediately and has (sic) been treating him
medically.
It seems that the IOP can be controlled only with oral
Diamox, and at the moment, the EKC has recurred and
Im in a fix whether to resume the steroid or not
considering that the IOP is still uncontrolled. 32
On 29 December 1988, Peter went to see Dr. Agulto at
the latters clinic. Several tests were conducted thereat
to evaluate the extent of Peters condition. Dr. Agulto
wrote Dr. Tuao a letter containing the following findings
and recommendations:

Slit lamp evaluation33 disclosed subepithelial corneal

defect outer OD. There was circumferential peripheral
iris atrophy, OD. The lenses were clear.

Zeiss gonioscopy35 revealed basically open angles both

eyes with occasional PAS,36 OD.

If fields show further loss in say 3 mos. then we should

consider trabeculoplasty.
I trust that this approach will prove reasonable for you
and Peter.41
Peter went to see Dr. Tuao on 31 December 1988,
bearing Dr. Agultos aforementioned letter. Though
Peters right and left eyes then had normal IOP of 21.0
Hg and 17.0 Hg, respectively, Dr. Tuao still gave him a
prescription for Timolol B.I.D. so Peter could
immediately start using said medication. Regrettably,
Timolol B.I.D. was out of stock, so Dr. Tuao instructed
Peter to just continue using Diamox and Normoglaucon
in the meantime.
Just two days later, on 2 January 1989, the IOP of Peters
right eye remained elevated at 21.0 Hg,42 as he had
been without Diamox for the past three (3) days.
On 4 January 1989, Dr. Tuao conducted a visual field
study43 of Peters eyes, which revealed that the latter
had tubular vision44 in his right eye, while that of his left
eye remained normal. Dr. Tuao directed Peter to
religiously use the Diamox and Normoglaucon, as the
tension of the latters right eye went up even further
to 41.0 Hg in just a matter of two (2) days, in the
meantime that Timolol B.I.D. and Depifrin were still not
available in the market. Again, Dr. Tuao advised Peter
to come for regular check-up so his IOP could be
monitored.

Thanks for sending Peter Lucas. On examination

conducted vision was 20/25 R and 20/20L. Tension curve

52

Obediently, Peter went to see Dr. Tuao on the 7th, 13th,

16th and 20th of January 1989 for check-up and IOP
monitoring.
In the interregnum, however, Peter was prodded by his
friends to seek a second medical opinion. On 13 January
1989, Peter consulted Dr. Jaime Lapuz, M.D. (Dr. Lapuz),
an ophthalmologist, who, in turn, referred Peter to Dr.
Mario V. Aquino, M.D. (Dr. Aquino), another
ophthalmologist who specializes in the treatment of
glaucoma and who could undertake the long term care
of Peters eyes.
According to petitioners, after Dr. Aquino conducted an
extensive evaluation of Peters eyes, the said doctor
informed Peter that his eyes were relatively normal,
though the right one sometimes manifested maximum
borderline tension. Dr. Aquino also confirmed Dr. Tuaos
diagnosis of tubular vision in Peters right eye.
Petitioners claimed that Dr. Aquino essentially told Peter
that the latters condition would require lifetime
medication and follow-ups.
In May 1990 and June 1991, Peter underwent two (2)
procedures of laser trabeculoplasty to attempt to control
the high IOP of his right eye.
Claiming to have steroid-induced glaucoma45 and
blaming Dr. Tuao for the same, Peter, joined by: (1)
Fatima, his spouse46; (2) Abbeygail, his natural child47;
and (3) Gillian, his legitimate child 48 with Fatima,
instituted on 1 September 1992, a civil complaint for
damages against Dr. Tuao, before the RTC, Branch 150,
Quezon City. The case was docketed as Civil Case No.
92-2482.
In their Complaint, petitioners specifically averred that
as the "direct consequence of [Peters] prolonged use of
Maxitrol, [he] suffered from steroid induced glaucoma
which caused the elevation of his intra-ocular pressure.
The elevation of the intra-ocular pressure of [Peters
right eye] caused the impairment of his vision which
impairment is not curable and may even lead to total
blindness."49
Petitioners additionally alleged that the visual
impairment of Peters right eye caused him and his
family so much grief. Because of his present condition,
Peter now needed close medical supervision forever; he
had already undergone two (2) laser surgeries, with the
possibility that more surgeries were still needed in the
future; his career in sports casting had suffered and was
continuing to suffer;50 his anticipated income had been
greatly reduced as a result of his "limited" capacity; he
continually suffered from "headaches, nausea,
dizziness, heart palpitations, rashes, chronic rhinitis,

sinusitis,"51 etc.; Peters relationships with his spouse

and children continued to be strained, as his condition
made him highly irritable and sensitive; his mobility and
social life had suffered; his spouse, Fatima, became the
breadwinner in the family;52 and his two children had
been deprived of the opportunity for a better life and
educational prospects. Collectively, petitioners lived in
constant fear of Peter becoming completely blind.53
In the end, petitioners sought pecuniary award for their
supposed pain and suffering, which were ultimately
brought about by Dr. Tuaos grossly negligent conduct
in prescribing to Peter the medicine Maxitrol for a period
of three (3) months, without monitoring Peters IOP, as
required in cases of prolonged use of said medicine, and
notwithstanding Peters constant complaint of intense
eye pain while using the same. Petitioners particularly
prayed that Dr. Tuao be adjudged liable for the
following amounts:
1. The amount of P2,000,000.00 to plaintiff
Peter Lucas as and by way of compensation for
his impaired vision.
2. The amount of P300,000.00 to spouses Lucas
as and by way of actual damages plus such
additional amounts that may be proven during
trial.
3. The amount of P1,000,000.00 as and by way
of moral damages.
4. The amount of P500,000.00 as and by way of
exemplary damages.
5. The amount of P200,000.00 as and by way of
attorneys fees plus costs of suit.54
In rebutting petitioners complaint, Dr. Tuao asserted
that the "treatment made by [him] more than three
years ago has no causal connection to [Peters] present
glaucoma or condition."55 Dr. Tuao explained that
"[d]rug-induced glaucoma is temporary and curable,
steroids have the side effect of increasing intraocular
pressure. Steroids are prescribed to treat Epidemic
Kerato Conjunctivitis or EKC which is an infiltration of
the cornea as a result of conjunctivitis or sore
eyes."56 Dr. Tuao also clarified that (1) "[c]ontrary to
[petitioners] fallacious claim, [he] did NOT continually
prescribe the drug Maxitrol which contained steroids for
any prolonged period"57 and "[t]he truth was the
Maxitrol was discontinued x x x as soon as EKC
disappeared and was resumed only when EKC
reappeared"58; (2) the entire time he was treating Peter,
he "continually monitored the intraocular pressure of
[Peters eyes] by palpating the eyes and by putting

53

pressure on the eyeballs," and no hardening of the

same could be detected, which meant that there was no
increase in the tension or IOP, a possible side reaction to
the use of steroid medications; and (3) it was only on 13
December 1988 that Peter complained of a headache
and blurred vision in his right eye, and upon measuring
the IOP of said eye, it was determined for the first time
that the IOP of the right eye had an elevated value.
But granting for the sake of argument that the "steroid
treatment of [Peters] EKC caused the steroid induced
glaucoma,"59 Dr. Tuao argued that:
[S]uch condition, i.e., elevated intraocular pressure, is
temporary. As soon as the intake of steroids is
discontinued, the intraocular pressure automatically is
reduced. Thus, [Peters] glaucoma can only be due to
other causes not attributable to steroids, certainly not
attributable to [his] treatment of more than three years
ago x x x.
From a medical point of view, as revealed by more
current examination of [Peter], the latters glaucoma
can only be long standing glaucoma, open angle
glaucoma, because of the large C:D ratio. The steroids
provoked the latest glaucoma to be revealed earlier as
[Peter] remained asymptomatic prior to steroid
application. Hence, the steroid treatment was in fact
beneficial to [Peter] as it revealed the incipient open
angle glaucoma of [Peter] to allow earlier treatment of
the same.60
In a Decision dated 14 July 2000, the RTC dismissed Civil
Case No. 92-2482 "for insufficiency of evidence."61The
decretal part of said Decision reads:
Wherefore, premises considered, the instant complaint
is dismissed for insufficiency of evidence. The counter
claim (sic) is likewise dismissed in the absence of bad
faith or malice on the part of plaintiff in filing the suit. 62

doctor to convince and expertly explain to the court the

established norm or duty required of a physician
treating a patient, or whether the non taking (sic) by Dr.
Tuao of Peter Pauls pressure a deviation from the norm
or his non-discovery of the glaucoma in the course of
treatment constitutes negligence. It is important and
indispensable to establish such a standard because
once it is established, a medical practitioner who
departed thereof breaches his duty and commits
negligence rendering him liable. Without such testimony
or enlightenment from an expert, the court is at a loss
as to what is then the established norm of duty of a
physician against which defendants conduct can be
compared with to determine negligence.64
The RTC added that in the absence of "any medical
evidence to the contrary, this court cannot accept
[petitioners] claim that the use of steroid is the
proximate cause of the damage sustained by [Peters]
eye."65
Correspondingly, the RTC accepted Dr. Tuaos medical
opinion that "Peter Paul must have been suffering from
normal tension glaucoma, meaning, optic nerve damage
was happening but no elevation of the eye pressure is
manifested, that the steroid treatment actually
unmasked the condition that resulted in the earlier
treatment of the glaucoma. There is nothing in the
record to contradict such testimony. In fact, plaintiffs
Exhibit S even tends to support them."
Undaunted, petitioners appealed the foregoing RTC
decision to the Court of Appeals. Their appeal was
docketed as CA-G.R. CV No. 68666.
On 27 September 2006, the Court of Appeals rendered a
decision in CA-G.R. CV No. 68666 denying petitioners
recourse and affirming the appealed RTC Decision. The
fallo of the judgment of the appellate court states:
WHEREFORE, the Decision appealed from is AFFIRMED. 66

The RTC opined that petitioners failed to prove by

preponderance of evidence that Dr. Tuao was negligent
in his treatment of Peters condition. In particular, the
record of the case was bereft of any evidence to
establish that the steroid medication and its dosage, as
prescribed by Dr. Tuao, caused Peters glaucoma. The
trial court reasoned that the "recognized standards of
the medical community has not been established in this
case, much less has causation been established to
render [Tuao] liable."63 According to the RTC:
[Petitioners] failed to establish the duty required of a
medical practitioner against which Peter Pauls
treatment by defendant can be compared with. They did
not present any medical expert or even a medical

The Court of Appeals faulted petitioners because they

[D]id not present any medical expert to testify that Dr.
Tuanos prescription of Maxitrol and Blephamide for the
treatment of EKC on Peters right eye was not proper
and that his palpation of Peters right eye was not
enough to detect adverse reaction to steroid. Peter
testified that Dr. Manuel Agulto told him that he should
not have used steroid for the treatment of EKC or that
he should have used it only for two (2) weeks, as EKC is
only a viral infection which will cure by itself. However,
Dr. Agulto was not presented by [petitioners] as a
witness to confirm what he allegedly told Peter and,
therefore, the latters testimony is hearsay. Under Rule

54

130, Section 36 of the Rules of Court, a witness can

testify only to those facts which he knows of his own
personal knowledge, x x x. Familiar and fundamental is
the rule that hearsay testimony is inadmissible as
evidence.67
Like the RTC, the Court of Appeals gave great weight to
Dr. Tuaos medical judgment, specifically the latters
explanation that:
[W]hen a doctor sees a patient, he cannot determine
whether or not the latter would react adversely to the
use of steroids, that it was only on December 13, 1989,
when Peter complained for the first time of headache
and blurred vision that he observed that the pressure of
the eye of Peter was elevated, and it was only then that
he suspected that Peter belongs to the 5% of the
population who reacts adversely to steroids.68
Petitioners Motion for Reconsideration was denied by
the Court of Appeals in a Resolution dated 3 July 2007.
Hence, this Petition for Review on Certiorari under Rule
45 of the Revised Rules of Court premised on the
following assignment of errors:
I.
THE COURT OF APPEALS COMMITTED GRAVE
REVERSIBLE ERROR IN AFFIRMING THE DECISION OF
THE TRIAL COURT DISMISSING THE PETITIONERS
COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT
ON THE GROUND OF INSUFFICIENCY OF EVIDENCE;
II.
THE COURT OF APPEALS COMMITTED GRAVE
REVERSIBLE ERROR IN DISMISSING THE PETITIONERS
COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT
ON THE GROUND THAT NO MEDICAL EXPERT WAS
PRESENTED BY THE PETITIONERS TO PROVE THEIR
CLAIM FOR MEDICAL NEGLIGENCE AGAINST THE
RESPONDENT; AND
III.
THE COURT OF APPEALS COMMITTED GRAVE
REVERSIBLE ERROR IN NOT FINDING THE RESPONDENT
LIABLE TO THE PETITIONERS FOR ACTUAL, MORAL AND
EXEMPLARY DAMAGES, ASIDE FROM ATTORNEYS FEES,
COSTS OF SUIT, AS A RESULT OF HIS GROSS
NEGLIGENCE.69
A reading of the afore-quoted reversible errors
supposedly committed by the Court of Appeals in its

Decision and Resolution would reveal that petitioners

are fundamentally assailing the finding of the Court of
Appeals that the evidence on record is insufficient to
establish petitioners entitlement to any kind of
damage. Therefore, it could be said that the sole issue
for our resolution in the Petition at bar is whether the
Court of Appeals committed reversible error in affirming
the judgment of the RTC that petitioners failed to prove,
by preponderance of evidence, their claim for damages
against Dr. Tuao.
Evidently, said issue constitutes a question of fact, as
we are asked to revisit anew the factual findings of the
Court of Appeals, as well as of the RTC. In effect,
petitioners would have us sift through the evidence on
record and pass upon whether there is sufficient basis to
establish Dr. Tuaos negligence in his treatment of
Peters eye condition. This question clearly involves a
factual inquiry, the determination of which is not within
the ambit of this Courts power of review under Rule 45
of the 1997 Rules Civil Procedure, as amended.70
Elementary is the principle that this Court is not a trier
of facts; only errors of law are generally reviewed in
petitions for review on certiorari criticizing decisions of
the Court of Appeals. Questions of fact are not
entertained.71
Nonetheless, the general rule that only questions of law
may be raised on appeal in a petition for review under
Rule 45 of the Rules of Court admits of certain
exceptions, including the circumstance when the finding
of fact of the Court of Appeals is premised on the
supposed absence of evidence, but is contradicted by
the evidence on record. Although petitioners may not
explicitly invoke said exception, it may be gleaned from
their allegations and arguments in the instant
Petition.1avvphi1.zw+
Petitioners contend, that "[c]ontrary to the findings of
the Honorable Court of Appeals, [they] were more than
able to establish that: Dr. Tuao ignored the standard
medical procedure for ophthalmologists, administered
medication with recklessness, and exhibited an absence
of competence and skills expected from
him."72Petitioners reject the necessity of presenting
expert and/or medical testimony to establish (1) the
standard of care respecting the treatment of the
disorder affecting Peters eye; and (2) whether or not
negligence attended Dr. Tuaos treatment of Peter,
because, in their words
That Dr. Tuao was grossly negligent in the treatment of
Peters simple eye ailment is a simple case of cause and
effect. With mere documentary evidence and based on
the facts presented by the petitioners, respondent can

55

readily be held liable for damages even without any

expert testimony. In any case, however, and contrary to
the finding of the trial court and the Court of Appeals,
there was a medical expert presented by the petitioner
showing the recklessness committed by [Dr. Tuao] Dr.
Tuao himself. [Emphasis supplied.]
They insist that Dr. Tuao himself gave sufficient
evidence to establish his gross negligence that
ultimately caused the impairment of the vision of
Peters right eye,73 i.e., that "[d]espite [Dr. Tuaos]
knowledge that 5% of the population reacts adversely to
Maxitrol, [he] had no qualms whatsoever in prescribing
said steroid to Peter without first determining whether
or not the (sic) Peter belongs to the 5%."74
We are not convinced. The judgments of both the Court
of Appeals and the RTC are in accord with the evidence
on record, and we are accordingly bound by the findings
of fact made therein.
Petitioners position, in sum, is that Peters glaucoma is
the direct result of Dr. Tuaos negligence in his
improper administration of the drug Maxitrol; "thus, [the
latter] should be liable for all the damages suffered and
to be suffered by [petitioners]."75 Clearly, the present
controversy is a classic illustration of a medical
negligence case against a physician based on the
latters professional negligence. In this type of suit, the
patient or his heirs, in order to prevail, is required to
prove by preponderance of evidence that the physician
failed to exercise that degree of skill, care, and learning
possessed by other persons in the same profession; and
that as a proximate result of such failure, the patient or
his heirs suffered damages.
For lack of a specific law geared towards the type of
negligence committed by members of the medical
profession, such claim for damages is almost always
anchored on the alleged violation of Article 2176 of the
Civil Code, which states that:
ART. 2176. Whoever by act or omission causes damage
to another, there being fault or negligence, is obliged to
pay for the damage done. Such fault or negligence, if
there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
In medical negligence cases, also called medical
malpractice suits, there exist a physician-patient
relationship between the doctor and the victim. But just
like any other proceeding for damages, four essential
(4) elements i.e., (1) duty; (2) breach; (3) injury; and (4)
proximate causation,76 must be established by the
plaintiff/s. All the four (4) elements must co-exist in

order to find the physician negligent and, thus, liable for

damages.
When a patient engages the services of a physician, a
physician-patient relationship is generated. And in
accepting a case, the physician, for all intents and
purposes, represents that he has the needed training
and skill possessed by physicians and surgeons
practicing in the same field; and that he will employ
such training, care, and skill in the treatment of the
patient.77 Thus, in treating his patient, a physician is
under a duty to [the former] to exercise that degree of
care, skill and diligence which physicians in the same
general neighborhood and in the same general line of
practice ordinarily possess and exercise in like
cases.78 Stated otherwise, the physician has the duty to
use at least the same level of care that any other
reasonably competent physician would use to treat the
condition under similar circumstances.
This standard level of care, skill and diligence is a
matter best addressed by expert medical testimony,
because the standard of care in a medical malpractice
case is a matter peculiarly within the knowledge of
experts in the field.79
There is breach of duty of care, skill and diligence, or
the improper performance of such duty, by the
attending physician when the patient is injured in body
or in health [and this] constitutes the actionable
malpractice.80 Proof of such breach must likewise rest
upon the testimony of an expert witness that the
treatment accorded to the patient failed to meet the
standard level of care, skill and diligence which
physicians in the same general neighborhood and in the
same general line of practice ordinarily possess and
exercise in like cases.
Even so, proof of breach of duty on the part of the
attending physician is insufficient, for there must be a
causal connection between said breach and the
resulting injury sustained by the patient. Put in another
way, in order that there may be a recovery for an injury,
it must be shown that the "injury for which recovery is
sought must be the legitimate consequence of the
wrong done; the connection between the negligence
and the injury must be a direct and natural sequence of
events, unbroken by intervening efficient causes"; 81 that
is, the negligence must be the proximate cause of the
injury. And the proximate cause of an injury is that
cause, which, in the natural and continuous sequence,
unbroken by any efficient intervening cause, produces
the injury, and without which the result would not have
occurred.82

56

Just as with the elements of duty and breach of the

same, in order to establish the proximate cause [of the
injury] by a preponderance of the evidence in a medical
malpractice action, [the patient] must similarly use
expert testimony, because the question of whether the
alleged professional negligence caused [the patients]
injury is generally one for specialized expert knowledge
beyond the ken of the average layperson; using the
specialized knowledge and training of his field, the
experts role is to present to the [court] a realistic
assessment of the likelihood that [the physicians]
alleged negligence caused [the patients] injury. 83
From the foregoing, it is apparent that medical
negligence cases are best proved by opinions of expert
witnesses belonging in the same general neighborhood
and in the same general line of practice as defendant
physician or surgeon. The deference of courts to the
expert opinion of qualified physicians [or surgeons]
stems from the formers realization that the latter
possess unusual technical skills which laymen in most
instances are incapable of intelligently
evaluating;84 hence, the indispensability of expert
testimonies.
In the case at bar, there is no question that a physicianpatient relationship developed between Dr. Tuao and
Peter when Peter went to see the doctor on 2
September 1988, seeking a consult for the treatment of
his sore eyes. Admittedly, Dr. Tuao, an
ophthalmologist, prescribed Maxitrol when Peter
developed and had recurrent EKC. Maxitrol or
neomycin/polymyxin B sulfates/dexamethasone
ophthalmic ointment is a multiple-dose anti-infective
steroid combination in sterile form for topical
application.85 It is the drug which petitioners claim to
have caused Peters glaucoma.
However, as correctly pointed out by the Court of
Appeals, "[t]he onus probandi was on the patient to
establish before the trial court that the physicians
ignored standard medical procedure, prescribed and
administered medication with recklessness and
exhibited an absence of the competence and skills
expected of general practitioners similarly
situated."86 Unfortunately, in this case, there was
absolute failure on the part of petitioners to present any
expert testimony to establish: (1) the standard of care
to be implemented by competent physicians in treating
the same condition as Peters under similar
circumstances; (2) that, in his treatment of Peter, Dr.
Tuao failed in his duty to exercise said standard of care
that any other competent physician would use in
treating the same condition as Peters under similar
circumstances; and (3) that the injury or damage to
Peters right eye, i.e., his glaucoma, was the result of his
use of Maxitrol, as prescribed by Dr. Tuao. Petitioners

failure to prove the first element alone is already fatal to

their cause.
Petitioners maintain that Dr. Tuao failed to follow in
Peters case the required procedure for the prolonged
use of Maxitrol. But what is actually the required
procedure in situations such as in the case at bar? To be
precise, what is the standard operating procedure when
ophthalmologists prescribe steroid medications which,
admittedly, carry some modicum of risk?
Absent a definitive standard of care or diligence
required of Dr. Tuao under the circumstances, we have
no means to determine whether he was able to comply
with the same in his diagnosis and treatment of Peter.
This Court has no yardstick upon which to evaluate or
weigh the attendant facts of this case to be able to state
with confidence that the acts complained of, indeed,
constituted negligence and, thus, should be the subject
of pecuniary reparation.
Petitioners assert that prior to prescribing Maxitrol, Dr.
Tuao should have determined first whether Peter was a
"steroid responder."87 Yet again, petitioners did not
present any convincing proof that such determination is
actually part of the standard operating procedure which
ophthalmologists should unerringly follow prior to
prescribing steroid medications.
In contrast, Dr. Tuao was able to clearly explain that
what is only required of ophthalmologists, in cases such
as Peters, is the conduct of standard tests/procedures
known as "ocular routine examination,"88 composed of
five (5) tests/procedures specifically, gross
examination of the eyes and the surrounding area;
taking of the visual acuity of the patient; checking the
intraocular pressure of the patient; checking the motility
of the eyes; and using ophthalmoscopy on the patients
eye and he did all those tests/procedures every time
Peter went to see him for follow-up consultation and/or
check-up.
We cannot but agree with Dr. Tuaos assertion that
when a doctor sees a patient, he cannot determine
immediately whether the latter would react adversely to
the use of steroids; all the doctor can do is map out a
course of treatment recognized as correct by the
standards of the medical profession. It must be
remembered that a physician is not an insurer of the
good result of treatment. The mere fact that the patient
does not get well or that a bad result occurs does not in
itself indicate failure to exercise due care.89 The result is
not determinative of the performance [of the physician]
and he is not required to be infallible.90

57

Moreover, that Dr. Tuao saw it fit to prescribe Maxitrol

to Peter was justified by the fact that the latter was
already using the same medication when he first came
to see Dr. Tuao on 2 September 1988 and had
exhibited no previous untoward reaction to that
particular drug. 91
Also, Dr. Tuao categorically denied petitioners claim
that he never monitored the tension of Peters eyes
while the latter was on Maxitrol. Dr. Tuao testified that
he palpated Peters eyes every time the latter came for
a check-up as part of the doctors ocular routine
examination, a fact which petitioners failed to rebut. Dr.
Tuaos regular conduct of examinations and tests to
ascertain the state of Peters eyes negate the very basis
of petitioners complaint for damages. As to whether Dr.
Tuaos actuations conformed to the standard of care
and diligence required in like circumstances, it is
presumed to have so conformed in the absence of
evidence to the contrary.
Even if we are to assume that Dr. Tuao committed
negligent acts in his treatment of Peters condition, the
causal connection between Dr. Tuaos supposed
negligence and Peters injury still needed to be
established. The critical and clinching factor in a
medical negligence case is proof of the causal
connection between the negligence which the evidence
established and the plaintiffs injuries.92 The plaintiff
must plead and prove not only that he has been injured
and defendant has been at fault, but also that the
defendants fault caused the injury. A verdict in a
malpractice action cannot be based on speculation or
conjecture. Causation must be proven within a
reasonable medical probability based upon competent
expert testimony.93
The causation between the physicians negligence and
the patients injury may only be established by the
presentation of proof that Peters glaucoma would not
have occurred but for Dr. Tuaos supposed negligent
conduct. Once more, petitioners failed in this regard.
Dr. Tuao does not deny that the use of Maxitrol
involves the risk of increasing a patients IOP. In fact,
this was the reason why he made it a point to palpate
Peters eyes every time the latter went to see him -- so
he could monitor the tension of Peters eyes. But to say
that said medication conclusively caused Peters
glaucoma is purely speculative. Peter was diagnosed
with open-angle glaucoma. This kind of glaucoma is
characterized by an almost complete absence of
symptoms and a chronic, insidious course.94 In openangle glaucoma, halos around lights and blurring of
vision do not occur unless there has been a sudden
increase in the intraocular vision.95Visual acuity remains
good until late in the course of the disease.96 Hence, Dr.

Tuao claims that Peters glaucoma "can only be long

standing x x x because of the large C:D97 ratio," and that
"[t]he steroids provoked the latest glaucoma to be
revealed earlier" was a blessing in disguise "as [Peter]
remained asymptomatic prior to steroid application."
Who between petitioners and Dr. Tuao is in a better
position to determine and evaluate the necessity of
using Maxitrol to cure Peters EKC vis--vis the attendant
risks of using the same?
That Dr. Tuao has the necessary training and skill to
practice his chosen field is beyond cavil. Petitioners do
not dispute Dr. Tuaos qualifications that he has been
a physician for close to a decade and a half at the time
Peter first came to see him; that he has had various
medical training; that he has authored numerous papers
in the field of ophthalmology, here and abroad; that he
is a Diplomate of the Philippine Board of
Ophthalmology; that he occupies various teaching posts
(at the time of the filing of the present complaint, he
was the Chair of the Department of Ophthalmology and
an Associate Professor at the University of the
Philippines-Philippine General Hospital and St. Lukes
Medical Center, respectively); and that he held an
assortment of positions in numerous medical
organizations like the Philippine Medical Association,
Philippine Academy of Ophthalmology, Philippine Board
of Ophthalmology, Philippine Society of Ophthalmic
Plastic and Reconstructive Surgery, Philippine Journal of
Ophthalmology, Association of Philippine Ophthalmology
Professors, et al.
It must be remembered that when the qualifications of a
physician are admitted, as in the instant case, there is
an inevitable presumption that in proper cases, he takes
the necessary precaution and employs the best of his
knowledge and skill in attending to his clients, unless
the contrary is sufficiently established.98 In making the
judgment call of treating Peters EKC with Maxitrol, Dr.
Tuao took the necessary precaution by palpating
Peters eyes to monitor their IOP every time the latter
went for a check-up, and he employed the best of his
knowledge and skill earned from years of training and
practice.
In contrast, without supporting expert medical opinions,
petitioners bare assertions of negligence on Dr. Tuaos
part, which resulted in Peters glaucoma, deserve scant
credit.
Our disposition of the present controversy might have
been vastly different had petitioners presented a
medical expert to establish their theory respecting Dr.
Tuaos so-called negligence. In fact, the record of the
case reveals that petitioners counsel recognized the

58

necessity of presenting such evidence. Petitioners even

gave an undertaking to the RTC judge that Dr. Agulto or
Dr. Aquino would be presented. Alas, no follow-through
on said undertaking was made.1avvphi1
The plaintiff in a civil case has the burden of proof as he
alleges the affirmative of the issue. However, in the
course of trial in a civil case, once plaintiff makes out a
prima facie case in his favor, the duty or the burden of
evidence shifts to defendant to controvert plaintiffs
prima facie case; otherwise, a verdict must be returned
in favor of plaintiff.99 The party having the burden of
proof must establish his case by a preponderance of
evidence.100 The concept of "preponderance of
evidence" refers to evidence which is of greater weight
or more convincing than that which is offered in
opposition to it;101 in the last analysis, it means
probability of truth. It is evidence which is more
convincing to the court as worthy of belief than that
which is offered in opposition thereto.102 Rule 133,
Section 1 of the Revised Rules of Court provides the
guidelines for determining preponderance of evidence,
thus:
In civil cases, the party having the burden of proof must
establish his case by a preponderance of evidence. In
determining where the preponderance or superior
weight of evidence on the issues involved lies the court
may consider all the facts and circumstances of the
case, the witnesses manner of testifying, their
intelligence, their means and opportunity of knowing
the facts to which they are testifying, the nature of the
facts to which they testify, the probability or
improbability of their testimony, their interest or want of
interest, and also their personal credibility so far as the
same legitimately appear upon the trial. The court may
also consider the number of witnesses, though the
preponderance is not necessarily with the greater
number.
Herein, the burden of proof was clearly upon petitioners,
as plaintiffs in the lower court, to establish their case by
a preponderance of evidence showing a reasonable
connection between Dr. Tuaos alleged breach of duty
and the damage sustained by Peters right eye. This,
they did not do. In reality, petitioners complaint for
damages is merely anchored on a statement in the
literature of Maxitrol identifying the risks of its use, and
the purported comment of Dr. Agulto another doctor
not presented as witness before the RTC concerning
the prolonged use of Maxitrol for the treatment of EKC.
It seems basic that what constitutes proper medical
treatment is a medical question that should have been
presented to experts. If no standard is established
through expert medical witnesses, then courts have no
standard by which to gauge the basic issue of breach

thereof by the physician or surgeon. The RTC and Court

of Appeals, and even this Court, could not be expected
to determine on its own what medical technique should
have been utilized for a certain disease or injury. Absent
expert medical opinion, the courts would be
dangerously engaging in speculations.
All told, we are hard pressed to find Dr. Tuao liable for
any medical negligence or malpractice where there is
no evidence, in the nature of expert testimony, to
establish that in treating Peter, Dr. Tuao failed to
exercise reasonable care, diligence and skill generally
required in medical practice. Dr. Tuaos testimony, that
his treatment of Peter conformed in all respects to
standard medical practice in this locality, stands
unrefuted. Consequently, the RTC and the Court of
Appeals correctly held that they had no basis at all to
rule that petitioners were deserving of the various
damages prayed for in their Complaint.
WHEREFORE, premises considered, the instant petition
is DENIED for lack of merit. The assailed Decision dated
27 September 2006 and Resolution dated 3 July 2007,
both of the Court of Appeals in CA-G.R. CV No. 68666,
are hereby AFFIRMED. No cost.

PROFESSIONAL SERVICES, INC., Petitioner,

vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.
x-----------------------x
G.R. No. 126467

January 31, 2007

NATIVIDAD (Substituted by her children

MARCELINO AGANA III, ENRIQUE AGANA, JR.,
EMMA AGANA ANDAYA, JESUS AGANA, and
RAYMUND AGANA) and ENRIQUE
AGANA, Petitioners,
vs.
JUAN FUENTES, Respondent.
x- - - - - - - - - - - - - - - - - - - -- - - - x
G.R. No. 127590

January 31, 2007

MIGUEL AMPIL, Petitioner,

vs.
NATIVIDAD AGANA and ENRIQUE
AGANA, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:

59

Hospitals, having undertaken one of mankinds most

important and delicate endeavors, must assume the
grave responsibility of pursuing it with appropriate care.
The care and service dispensed through this high trust,
however technical, complex and esoteric its character
may be, must meet standards of responsibility
commensurate with the undertaking to preserve and
protect the health, and indeed, the very lives of those
placed in the hospitals keeping.1

to examine the cancerous nodes which were not

removed during the operation.

Assailed in these three consolidated petitions for review

on certiorari is the Court of Appeals Decision 2 dated
September 6, 1996 in CA-G.R. CV No. 42062 and CAG.R. SP No. 32198 affirming with modification the
Decision3 dated March 17, 1993 of the Regional Trial
Court (RTC), Branch 96, Quezon City in Civil Case No. Q43322 and nullifying its Order dated September 21,
1993.

On August 31, 1984, Natividad flew back to the

Philippines, still suffering from pains. Two weeks
thereafter, her daughter found a piece of gauze
protruding from her vagina. Upon being informed about
it, Dr. Ampil proceeded to her house where he managed
to extract by hand a piece of gauze measuring 1.5
inches in width. He then assured her that the pains
would soon vanish.

The facts, as culled from the records, are:

Dr. Ampils assurance did not come true. Instead, the

pains intensified, prompting Natividad to seek treatment
at the Polymedic General Hospital. While confined there,
Dr. Ramon Gutierrez detected the presence of another
foreign object in her vagina -- a foul-smelling gauze
measuring 1.5 inches in width which badly infected her
vaginal vault. A recto-vaginal fistula had formed in her
reproductive organs which forced stool to excrete
through the vagina. Another surgical operation was
needed to remedy the damage. Thus, in October 1984,
Natividad underwent another surgery.

On April 4, 1984, Natividad Agana was rushed to the

Medical City General Hospital (Medical City Hospital)
because of difficulty of bowel movement and bloody
anal discharge. After a series of medical examinations,
Dr. Miguel Ampil, petitioner in G.R. No. 127590,
diagnosed her to be suffering from "cancer of the
sigmoid."
On April 11, 1984, Dr. Ampil, assisted by the medical
staff4 of the Medical City Hospital, performed an anterior
resection surgery on Natividad. He found that the
malignancy in her sigmoid area had spread on her left
ovary, necessitating the removal of certain portions of
it. Thus, Dr. Ampil obtained the consent of Natividads
husband, Enrique Agana, to permit Dr. Juan Fuentes,
respondent in G.R. No. 126467, to perform
hysterectomy on her.
After Dr. Fuentes had completed the hysterectomy, Dr.
Ampil took over, completed the operation and closed
the incision.
However, the operation appeared to be flawed. In the
corresponding Record of Operation dated April 11, 1984,
the attending nurses entered these remarks:
"sponge count lacking 2
"announced to surgeon searched (sic) done but to no
avail continue for closure."
On April 24, 1984, Natividad was released from the
hospital. Her hospital and medical bills, including the
doctors fees, amounted to P60,000.00.
After a couple of days, Natividad complained of
excruciating pain in her anal region. She consulted both
Dr. Ampil and Dr. Fuentes about it. They told her that
the pain was the natural consequence of the surgery. Dr.
Ampil then recommended that she consult an oncologist

On May 9, 1984, Natividad, accompanied by her

husband, went to the United States to seek further
treatment. After four months of consultations and
laboratory examinations, Natividad was told she was
free of cancer. Hence, she was advised to return to the
Philippines.

On November 12, 1984, Natividad and her husband filed

with the RTC, Branch 96, Quezon City a complaint for
damages against the Professional Services, Inc. (PSI),
owner of the Medical City Hospital, Dr. Ampil, and Dr.
Fuentes, docketed as Civil Case No. Q-43322. They
alleged that the latter are liable for negligence for
leaving two pieces of gauze inside Natividads body and
malpractice for concealing their acts of negligence.
Meanwhile, Enrique Agana also filed with the
Professional Regulation Commission (PRC) an
administrative complaint for gross negligence and
malpractice against Dr. Ampil and Dr. Fuentes, docketed
as Administrative Case No. 1690. The PRC Board of
Medicine heard the case only with respect to Dr. Fuentes
because it failed to acquire jurisdiction over Dr. Ampil
who was then in the United States.
On February 16, 1986, pending the outcome of the
above cases, Natividad died and was duly substituted
by her above-named children (the Aganas).
On March 17, 1993, the RTC rendered its Decision in
favor of the Aganas, finding PSI, Dr. Ampil and Dr.
Fuentes liable for negligence and malpractice, the
decretal part of which reads:
WHEREFORE, judgment is hereby rendered for the
plaintiffs ordering the defendants PROFESSIONAL
SERVICES, INC., DR. MIGUEL AMPIL and DR. JUAN
FUENTES to pay to the plaintiffs, jointly and severally,
except in respect of the award for exemplary damages

60

and the interest thereon which are the liabilities of

defendants Dr. Ampil and Dr. Fuentes only, as follows:
1. As actual damages, the following amounts:

On January 24, 1994, CA-G.R. SP No. 32198 was

consolidated with CA-G.R. CV No. 42062.

a. The equivalent in Philippine Currency

of the total of US$19,900.00 at the rate
of P21.60-US$1.00, as reimbursement of
actual expenses incurred in the United
States of America;

Meanwhile, on January 23, 1995, the PRC Board of

Medicine rendered its Decision6 in Administrative Case
No. 1690 dismissing the case against Dr. Fuentes. The
Board held that the prosecution failed to show that Dr.
Fuentes was the one who left the two pieces of gauze
inside Natividads body; and that he concealed such fact
from Natividad.

b. The sum of P4,800.00 as travel taxes

of plaintiffs and their physician
daughter;

On September 6, 1996, the Court of Appeals rendered

its Decision jointly disposing of CA-G.R. CV No. 42062
and CA-G.R. SP No. 32198, thus:

c. The total sum of P45,802.50,

representing the cost of hospitalization
at Polymedic Hospital, medical fees, and
cost of the saline solution;

WHEREFORE, except for the modification that the case

against defendant-appellant Dr. Juan Fuentes is hereby
DISMISSED, and with the pronouncement that
defendant-appellant Dr. Miguel Ampil is liable to
reimburse defendant-appellant Professional Services,
Inc., whatever amount the latter will pay or had paid to
the plaintiffs-appellees, the decision appealed from is
hereby AFFIRMED and the instant appeal DISMISSED.

2. As moral damages, the sum of

P2,000,000.00;
3. As exemplary damages, the sum of
P300,000.00;
4. As attorneys fees, the sum of P250,000.00;
5. Legal interest on items 1 (a), (b), and (c); 2;
and 3 hereinabove, from date of filing of the
complaint until full payment; and
6. Costs of suit.
SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an
appeal to the Court of Appeals, docketed as CA-G.R. CV
No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with the
RTC a motion for a partial execution of its Decision,
which was granted in an Order dated May 11, 1993.
Thereafter, the sheriff levied upon certain properties of
Dr. Ampil and sold them for P451,275.00 and delivered
the amount to the Aganas.
Following their receipt of the money, the Aganas
entered into an agreement with PSI and Dr. Fuentes to
indefinitely suspend any further execution of the RTC
Decision. However, not long thereafter, the Aganas
again filed a motion for an alias writ of execution
against the properties of PSI and Dr. Fuentes. On
September 21, 1993, the RTC granted the motion and
issued the corresponding writ, prompting Dr. Fuentes to
file with the Court of Appeals a petition for certiorari and
prohibition, with prayer for preliminary injunction,
docketed as CA-G.R. SP No. 32198. During its pendency,
the Court of Appeals issued a Resolution 5 dated October
29, 1993 granting Dr. Fuentes prayer for injunctive
relief.

Concomitant with the above, the petition for certiorari

and prohibition filed by herein defendant-appellant Dr.
Juan Fuentes in CA-G.R. SP No. 32198 is hereby
GRANTED and the challenged order of the respondent
judge dated September 21, 1993, as well as the alias
writ of execution issued pursuant thereto are hereby
NULLIFIED and SET ASIDE. The bond posted by the
petitioner in connection with the writ of preliminary
injunction issued by this Court on November 29, 1993 is
hereby cancelled.
Costs against defendants-appellants Dr. Miguel Ampil
and Professional Services, Inc.
SO ORDERED.
Only Dr. Ampil filed a motion for reconsideration, but it
was denied in a Resolution7 dated December 19, 1996.
Hence, the instant consolidated petitions.
In G.R. No. 126297, PSI alleged in its petition that the
Court of Appeals erred in holding that: (1) it is estopped
from raising the defense that Dr. Ampil is not its
employee; (2) it is solidarily liable with Dr. Ampil; and
(3) it is not entitled to its counterclaim against the
Aganas. PSI contends that Dr. Ampil is not its employee,
but a mere consultant or independent contractor. As
such, he alone should answer for his negligence.
In G.R. No. 126467, the Aganas maintain that the Court
of Appeals erred in finding that Dr. Fuentes is not guilty
of negligence or medical malpractice, invoking the
doctrine of res ipsa loquitur. They contend that the
pieces of gauze are prima facie proofs that the
operating surgeons have been negligent.

61

Finally, in G.R. No. 127590, Dr. Ampil asserts that the

Court of Appeals erred in finding him liable for
negligence and malpractice sans evidence that he left
the two pieces of gauze in Natividads vagina. He
pointed to other probable causes, such as: (1) it was Dr.
Fuentes who used gauzes in performing the
hysterectomy; (2) the attending nurses failure to
properly count the gauzes used during surgery; and (3)
the medical intervention of the American doctors who
examined Natividad in the United States of America.
For our resolution are these three vital issues: first,
whether the Court of Appeals erred in holding Dr. Ampil
liable for negligence and malpractice; second, whether
the Court of Appeals erred in absolving Dr. Fuentes of
any liability; and third, whether PSI may be held
solidarily liable for the negligence of Dr. Ampil.
I - G.R. No. 127590
Whether the Court of Appeals Erred in Holding Dr. Ampil
Liable for Negligence and Malpractice.
Dr. Ampil, in an attempt to absolve himself, gears the
Courts attention to other possible causes of Natividads
detriment. He argues that the Court should not discount
either of the following possibilities: first, Dr. Fuentes left
the gauzes in Natividads body after performing
hysterectomy; second, the attending nurses erred in
counting the gauzes; and third, the American doctors
were the ones who placed the gauzes in Natividads
body.
Dr. Ampils arguments are purely conjectural and
without basis. Records show that he did not present any
evidence to prove that the American doctors were the
ones who put or left the gauzes in Natividads body.
Neither did he submit evidence to rebut the correctness
of the record of operation, particularly the number of
gauzes used. As to the alleged negligence of Dr.
Fuentes, we are mindful that Dr. Ampil examined his (Dr.
Fuentes) work and found it in order.
The glaring truth is that all the major circumstances,
taken together, as specified by the Court of Appeals,
directly point to Dr. Ampil as the negligent party, thus:
First, it is not disputed that the surgeons used
gauzes as sponges to control the bleeding of the
patient during the surgical operation.
Second, immediately after the operation, the
nurses who assisted in the surgery noted in
their report that the sponge count (was) lacking
2; that such anomaly was announced to
surgeon and that a search was done but to no
avail prompting Dr. Ampil to continue for
closure x x x.

Third, after the operation, two (2) gauzes were

extracted from the same spot of the body of
Mrs. Agana where the surgery was performed.
An operation requiring the placing of sponges in the
incision is not complete until the sponges are properly
removed, and it is settled that the leaving of sponges or
other foreign substances in the wound after the incision
has been closed is at least prima facie negligence by
the operating surgeon.8 To put it simply, such act is
considered so inconsistent with due care as to raise an
inference of negligence. There are even legions of
authorities to the effect that such act is negligence per
se.9
Of course, the Court is not blind to the reality that there
are times when danger to a patients life precludes a
surgeon from further searching missing sponges or
foreign objects left in the body. But this does not leave
him free from any obligation. Even if it has been shown
that a surgeon was required by the urgent necessities of
the case to leave a sponge in his patients abdomen,
because of the dangers attendant upon delay, still, it is
his legal duty to so inform his patient within a
reasonable time thereafter by advising her of what he
had been compelled to do. This is in order that she
might seek relief from the effects of the foreign object
left in her body as her condition might permit. The
ruling in Smith v. Zeagler10 is explicit, thus:
The removal of all sponges used is part of a surgical
operation, and when a physician or surgeon fails to
remove a sponge he has placed in his patients body
that should be removed as part of the operation, he
thereby leaves his operation uncompleted and creates a
new condition which imposes upon him the legal duty of
calling the new condition to his patients attention, and
endeavoring with the means he has at hand to minimize
and avoid untoward results likely to ensue therefrom.
Here, Dr. Ampil did not inform Natividad about the
missing two pieces of gauze. Worse, he even misled her
that the pain she was experiencing was the ordinary
consequence of her operation. Had he been more
candid, Natividad could have taken the immediate and
appropriate medical remedy to remove the gauzes from
her body. To our mind, what was initially an act of
negligence by Dr. Ampil has ripened into a deliberate
wrongful act of deceiving his patient.
This is a clear case of medical malpractice or more
appropriately, medical negligence. To successfully
pursue this kind of case, a patient must only prove that
a health care provider either failed to do something
which a reasonably prudent health care provider would
have done, or that he did something that a reasonably
prudent provider would not have done; and that failure
or action caused injury to the patient.11 Simply put, the
elements are duty, breach, injury and proximate
causation. Dr, Ampil, as the lead surgeon, had the duty
to remove all foreign objects, such as gauzes, from
Natividads body before closure of the incision. When he
failed to do so, it was his duty to inform Natividad about
it. Dr. Ampil breached both duties. Such breach caused

62

injury to Natividad, necessitating her further

examination by American doctors and another surgery.
That Dr. Ampils negligence is the proximate cause12 of
Natividads injury could be traced from his act of closing
the incision despite the information given by the
attending nurses that two pieces of gauze were still
missing. That they were later on extracted from
Natividads vagina established the causal link between
Dr. Ampils negligence and the injury. And what further
aggravated such injury was his deliberate concealment
of the missing gauzes from the knowledge of Natividad
and her family.
II - G.R. No. 126467
Whether the Court of Appeals Erred in Absolving
Dr. Fuentes of any Liability
The Aganas assailed the dismissal by the trial court of
the case against Dr. Fuentes on the ground that it is
contrary to the doctrine of res ipsa loquitur. According to
them, the fact that the two pieces of gauze were left
inside Natividads body is a prima facie evidence of Dr.
Fuentes negligence.
We are not convinced.
Literally, res ipsa loquitur means "the thing speaks for
itself." It is the rule that the fact of the occurrence of an
injury, taken with the surrounding circumstances, may
permit an inference or raise a presumption of
negligence, or make out a plaintiffs prima facie case,
and present a question of fact for defendant to meet
with an explanation.13 Stated differently, where the
thing which caused the injury, without the fault of the
injured, is under the exclusive control of the defendant
and the injury is such that it should not have occurred if
he, having such control used proper care, it affords
reasonable evidence, in the absence of explanation that
the injury arose from the defendants want of care, and
the burden of proof is shifted to him to establish that he
has observed due care and diligence.14
From the foregoing statements of the rule, the requisites
for the applicability of the doctrine of res ipsa loquitur
are: (1) the occurrence of an injury; (2) the thing which
caused the injury was under the control and
management of the defendant; (3) the occurrence was
such that in the ordinary course of things, would not
have happened if those who had control or
management used proper care; and (4) the absence of
explanation by the defendant. Of the foregoing
requisites, the most instrumental is the "control and
management of the thing which caused the injury." 15
We find the element of "control and management of the
thing which caused the injury" to be wanting. Hence,
the doctrine of res ipsa loquitur will not lie.
It was duly established that Dr. Ampil was the lead
surgeon during the operation of Natividad. He requested
the assistance of Dr. Fuentes only to perform

hysterectomy when he (Dr. Ampil) found that the

malignancy in her sigmoid area had spread to her left
ovary. Dr. Fuentes performed the surgery and thereafter
reported and showed his work to Dr. Ampil. The latter
examined it and finding everything to be in order,
allowed Dr. Fuentes to leave the operating room. Dr.
Ampil then resumed operating on Natividad. He was
about to finish the procedure when the attending nurses
informed him that two pieces of gauze were missing. A
"diligent search" was conducted, but the misplaced
gauzes were not found. Dr. Ampil then directed that the
incision be closed. During this entire period, Dr. Fuentes
was no longer in the operating room and had, in fact,
left the hospital.
Under the "Captain of the Ship" rule, the operating
surgeon is the person in complete charge of the surgery
room and all personnel connected with the operation.
Their duty is to obey his orders.16 As stated before, Dr.
Ampil was the lead surgeon. In other words, he was the
"Captain of the Ship." That he discharged such role is
evident from his following conduct: (1) calling Dr.
Fuentes to perform a hysterectomy; (2) examining the
work of Dr. Fuentes and finding it in order; (3) granting
Dr. Fuentes permission to leave; and (4) ordering the
closure of the incision. To our mind, it was this act of
ordering the closure of the incision notwithstanding that
two pieces of gauze remained unaccounted for, that
caused injury to Natividads body. Clearly, the control
and management of the thing which caused the injury
was in the hands of Dr. Ampil, not Dr. Fuentes.
In this jurisdiction, res ipsa loquitur is not a rule of
substantive law, hence, does not per se create or
constitute an independent or separate ground of
liability, being a mere evidentiary rule.17 In other words,
mere invocation and application of the doctrine does not
dispense with the requirement of proof of negligence.
Here, the negligence was proven to have been
committed by Dr. Ampil and not by Dr. Fuentes.
III - G.R. No. 126297
Whether PSI Is Liable for the Negligence of Dr. Ampil
The third issue necessitates a glimpse at the historical
development of hospitals and the resulting theories
concerning their liability for the negligence of
physicians.
Until the mid-nineteenth century, hospitals were
generally charitable institutions, providing medical
services to the lowest classes of society, without regard
for a patients ability to pay.18 Those who could afford
medical treatment were usually treated at home by
their doctors.19 However, the days of house calls and
philanthropic health care are over. The modern health
care industry continues to distance itself from its
charitable past and has experienced a significant
conversion from a not-for-profit health care to for-profit
hospital businesses. Consequently, significant changes
in health law have accompanied the business-related
changes in the hospital industry. One important legal
change is an increase in hospital liability for medical

63

malpractice. Many courts now allow claims for hospital

vicarious liability under the theories of respondeat
superior, apparent authority, ostensible authority, or
agency by estoppel. 20
In this jurisdiction, the statute governing liability for
negligent acts is Article 2176 of the Civil Code, which
reads:
Art. 2176. Whoever by act or omission causes damage
to another, there being fault or negligence, is obliged to
pay for the damage done. Such fault or negligence, if
there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
A derivative of this provision is Article 2180, the rule
governing vicarious liability under the doctrine of
respondeat superior, thus:
ART. 2180. The obligation imposed by Article 2176 is
demandable not only for ones own acts or omissions,
but also for those of persons for whom one is
responsible.
x x x
x x

The owners and managers of an establishment or

enterprise are likewise responsible for damages caused
by their employees in the service of the branches in
which the latter are employed or on the occasion of
their functions.
Employers shall be liable for the damages caused by
their employees and household helpers acting within
the scope of their assigned tasks even though the
former are not engaged in any business or industry.

x x x
x

physicians calling preclude him from being classed as

an agent or employee of a hospital, whenever he acts in
a professional capacity.22 It has been said that medical
practice strictly involves highly developed and
specialized knowledge,23 such that physicians are
generally free to exercise their own skill and judgment
in rendering medical services sans
interference.24 Hence, when a doctor practices medicine
in a hospital setting, the hospital and its employees are
deemed to subserve him in his ministrations to the
patient and his actions are of his own responsibility. 25
The case of Schloendorff v. Society of New York
Hospital26 was then considered an authority for this
view. The "Schloendorff doctrine" regards a physician,
even if employed by a hospital, as an independent
contractor because of the skill he exercises and the lack
of control exerted over his work. Under this doctrine,
hospitals are exempt from the application of the
respondeat superior principle for fault or negligence
committed by physicians in the discharge of their
profession.
However, the efficacy of the foregoing doctrine has
weakened with the significant developments in medical
care. Courts came to realize that modern hospitals are
increasingly taking active role in supplying and
regulating medical care to patients. No longer were a
hospitals functions limited to furnishing room, food,
facilities for treatment and operation, and attendants for
its patients. Thus, in Bing v. Thunig,27 the New York
Court of Appeals deviated from the Schloendorff
doctrine, noting that modern hospitals actually do far
more than provide facilities for treatment. Rather, they
regularly employ, on a salaried basis, a large staff of
physicians, interns, nurses, administrative and manual
workers. They charge patients for medical care and
treatment, even collecting for such services through
legal action, if necessary. The court then concluded that
there is no reason to exempt hospitals from the
universal rule of respondeat superior.

The responsibility treated of in this article shall cease

when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to
prevent damage.
A prominent civilist commented that professionals
engaged by an employer, such as physicians, dentists,
and pharmacists, are not "employees" under this article
because the manner in which they perform their work is
not within the control of the latter (employer). In other
words, professionals are considered personally liable for
the fault or negligence they commit in the discharge of
their duties, and their employer cannot be held liable for
such fault or negligence. In the context of the present
case, "a hospital cannot be held liable for the fault or
negligence of a physician or surgeon in the treatment or
operation of patients."21
The foregoing view is grounded on the traditional notion
that the professional status and the very nature of the

In our shores, the nature of the relationship between the

hospital and the physicians is rendered inconsequential
in view of our categorical pronouncement in Ramos v.
Court of Appeals28 that for purposes of apportioning
responsibility in medical negligence cases, an employeremployee relationship in effect exists between hospitals
and their attending and visiting physicians. This Court
held:
"We now discuss the responsibility of the hospital in this
particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending and
visiting "consultants," who are allegedly not hospital
employees, presents problems in apportioning
responsibility for negligence in medical malpractice
cases. However, the difficulty is more apparent than
real.
In the first place, hospitals exercise significant control in
the hiring and firing of consultants and in the conduct of
their work within the hospital premises. Doctors who
apply for consultant slots, visiting or attending, are

64

required to submit proof of completion of residency,

their educational qualifications, generally, evidence of
accreditation by the appropriate board (diplomate),
evidence of fellowship in most cases, and references.
These requirements are carefully scrutinized by
members of the hospital administration or by a review
committee set up by the hospital who either accept or
reject the application. x x x.

agent to assume, or which he holds the agent out to the

public as possessing. The question in every case is
whether the principal has by his voluntary act placed
the agent in such a situation that a person of ordinary
prudence, conversant with business usages and the
nature of the particular business, is justified in
presuming that such agent has authority to perform the
particular act in question.31

After a physician is accepted, either as a visiting or

attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside
rounds for clerks, interns and residents, moderate grand
rounds and patient audits and perform other tasks and
responsibilities, for the privilege of being able to
maintain a clinic in the hospital, and/or for the privilege
of admitting patients into the hospital. In addition to
these, the physicians performance as a specialist is
generally evaluated by a peer review committee on the
basis of mortality and morbidity statistics, and feedback
from patients, nurses, interns and residents. A
consultant remiss in his duties, or a consultant who
regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee,
is normally politely terminated.

The applicability of apparent authority in the field of

hospital liability was upheld long time ago in Irving v.
Doctor Hospital of Lake Worth, Inc.32 There, it was
explicitly stated that "there does not appear to be any
rational basis for excluding the concept of apparent
authority from the field of hospital liability." Thus, in
cases where it can be shown that a hospital, by its
actions, has held out a particular physician as its agent
and/or employee and that a patient has accepted
treatment from that physician in the reasonable belief
that it is being rendered in behalf of the hospital, then
the hospital will be liable for the physicians negligence.

In other words, private hospitals, hire, fire and exercise

real control over their attending and visiting consultant
staff. While consultants are not, technically employees,
x x x, the control exercised, the hiring, and the right to
terminate consultants all fulfill the important hallmarks
of an employer-employee relationship, with the
exception of the payment of wages. In assessing
whether such a relationship in fact exists, the control
test is determining. Accordingly, on the basis of the
foregoing, we rule that for the purpose of allocating
responsibility in medical negligence cases, an employeremployee relationship in effect exists between hospitals
and their attending and visiting physicians. "

ART. 1869. Agency may be express, or implied from the

acts of the principal, from his silence or lack of action, or
his failure to repudiate the agency, knowing that
another person is acting on his behalf without authority.

But the Ramos pronouncement is not our only basis in

sustaining PSIs liability. Its liability is also anchored
upon the agency principle of apparent authority or
agency by estoppel and the doctrine of corporate
negligence which have gained acceptance in the
determination of a hospitals liability for negligent acts
of health professionals. The present case serves as a
perfect platform to test the applicability of these
doctrines, thus, enriching our jurisprudence.
Apparent authority, or what is sometimes referred to as
the "holding
out" theory, or doctrine of ostensible agency or agency
by estoppel,29 has its origin from the law of agency. It
imposes liability, not as the result of the reality of a
contractual relationship, but rather because of the
actions of a principal or an employer in somehow
misleading the public into believing that the relationship
or the authority exists.30 The concept is essentially one
of estoppel and has been explained in this manner:
"The principal is bound by the acts of his agent with the
apparent authority which he knowingly permits the

Our jurisdiction recognizes the concept of an agency by

implication or estoppel. Article 1869 of the Civil Code
reads:

In this case, PSI publicly displays in the lobby of the

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

65

physician or surgeon, regardless of whether he is

independent or employed."33
The wisdom of the foregoing ratiocination is easy to
discern. Corporate entities, like PSI, are capable of
acting only through other individuals, such as
physicians. If these accredited physicians do their job
well, the hospital succeeds in its mission of offering
quality medical services and thus profits financially.
Logically, where negligence mars the quality of its
services, the hospital should not be allowed to escape
liability for the acts of its ostensible agents.
We now proceed to the doctrine of corporate negligence
or corporate responsibility.
One allegation in the complaint in Civil Case No. Q43332 for negligence and malpractice is that PSI as
owner, operator and manager of Medical City Hospital,
"did not perform the necessary supervision nor exercise
diligent efforts in the supervision of Drs. Ampil and
Fuentes and its nursing staff, resident doctors, and
medical interns who assisted Drs. Ampil and Fuentes in
the performance of their duties as surgeons."34 Premised
on the doctrine of corporate negligence, the trial court
held that PSI is directly liable for such breach of duty.
We agree with the trial court.
Recent years have seen the doctrine of corporate
negligence as the judicial answer to the problem of
allocating hospitals liability for the negligent acts of
health practitioners, absent facts to support the
application of respondeat superior or apparent authority.
Its formulation proceeds from the judiciarys
acknowledgment that in these modern times, the duty
of providing quality medical service is no longer the sole
prerogative and responsibility of the physician. The
modern hospitals have changed structure. Hospitals
now tend to organize a highly professional medical staff
whose competence and performance need to be
monitored by the hospitals commensurate with their
inherent responsibility to provide quality medical care.35
The doctrine has its genesis in Darling v. Charleston
Community Hospital.36 There, the Supreme Court of
Illinois held that "the jury could have found a hospital
negligent, inter alia, in failing to have a sufficient
number of trained nurses attending the patient; failing
to require a consultation with or examination by
members of the hospital staff; and failing to review the
treatment rendered to the patient." On the basis of
Darling, other jurisdictions held that a hospitals
corporate negligence extends to permitting a physician
known to be incompetent to practice at the
hospital.37 With the passage of time, more duties were
expected from hospitals, among them: (1) the use of
reasonable care in the maintenance of safe and
adequate facilities and equipment; (2) the selection and
retention of competent physicians; (3) the overseeing or
supervision of all persons who practice medicine within
its walls; and (4) the formulation, adoption and
enforcement of adequate rules and policies that ensure
quality care for its patients.38 Thus, in Tucson Medical

Center, Inc. v. Misevich,39 it was held that a hospital,

following the doctrine of corporate responsibility, has
the duty to see that it meets the standards of
responsibilities for the care of patients. Such duty
includes the proper supervision of the members of its
medical staff. And in Bost v. Riley,40 the court concluded
that a patient who enters a hospital does so with the
reasonable expectation that it will attempt to cure him.
The hospital accordingly has the duty to make a
reasonable effort to monitor and oversee the treatment
prescribed and administered by the physicians
practicing in its premises.
In the present case, it was duly established that PSI
operates the Medical City Hospital for the purpose and
under the concept of providing comprehensive medical
services to the public. Accordingly, it has the duty to
exercise reasonable care to protect from harm all
patients admitted into its facility for medical treatment.
Unfortunately, PSI failed to perform such duty. The
findings of the trial court are convincing, thus:
x x x PSIs liability is traceable to its failure to conduct
an investigation of the matter reported in the nota bene
of the count nurse. Such failure established PSIs part in
the dark conspiracy of silence and concealment about
the gauzes. Ethical considerations, if not also legal,
dictated the holding of an immediate inquiry into the
events, if not for the benefit of the patient to whom the
duty is primarily owed, then in the interest of arriving at
the truth. The Court cannot accept that the medical and
the healing professions, through their members like
defendant surgeons, and their institutions like PSIs
hospital facility, can callously turn their backs on and
disregard even a mere probability of mistake or
negligence by refusing or failing to investigate a report
of such seriousness as the one in Natividads case.
It is worthy to note that Dr. Ampil and Dr. Fuentes
operated on Natividad with the assistance of the
Medical City Hospitals staff, composed of resident
doctors, nurses, and interns. As such, it is reasonable to
conclude that PSI, as the operator of the hospital, has
actual or constructive knowledge of the procedures
carried out, particularly the report of the attending
nurses that the two pieces of gauze were missing. In
Fridena v. Evans,41 it was held that a corporation is
bound by the knowledge acquired by or notice given to
its agents or officers within the scope of their authority
and in reference to a matter to which their authority
extends. This means that the knowledge of any of the
staff of Medical City Hospital constitutes knowledge of
PSI. Now, the failure of PSI, despite the attending
nurses report, to investigate and inform Natividad
regarding the missing gauzes amounts to callous
negligence. Not only did PSI breach its duties to oversee
or supervise all persons who practice medicine within its
walls, it also failed to take an active step in fixing the
negligence committed. This renders PSI, not only
vicariously liable for the negligence of Dr. Ampil under
Article 2180 of the Civil Code, but also directly liable for
its own negligence under Article 2176. In Fridena, the
Supreme Court of Arizona held:

66

x x x In recent years, however, the duty of care owed to

the patient by the hospital has expanded. The emerging
trend is to hold the hospital responsible where the
hospital has failed to monitor and review medical
services being provided within its walls. See Kahn
Hospital Malpractice Prevention, 27 De Paul . Rev. 23
(1977).

WHEREFORE, we DENY all the petitions and AFFIRM the

challenged Decision of the Court of Appeals in CA-G.R.
CV No. 42062 and CA-G.R. SP No. 32198.

Among the cases indicative of the emerging trend is

Purcell v. Zimbelman, 18 Ariz. App. 75,500 P. 2d 335
(1972). In Purcell, the hospital argued that it could not
be held liable for the malpractice of a medical
practitioner because he was an independent contractor
within the hospital. The Court of Appeals pointed out
that the hospital had created a professional staff whose
competence and performance was to be monitored and
reviewed by the governing body of the hospital, and the
court held that a hospital would be negligent where it
had knowledge or reason to believe that a doctor using
the facilities was employing a method of treatment or
care which fell below the recognized standard of care.

DR. RUBI LI, Petitioner,

vs.
SPOUSES REYNALDO and LINA SOLIMAN, as
parents/heirs of deceased Angelica
Soliman, Respondents.

Subsequent to the Purcell decision, the Arizona Court of

Appeals held that a hospital has certain inherent
responsibilities regarding the quality of medical care
furnished to patients within its walls and it must meet
the standards of responsibility commensurate with this
undertaking. Beeck v. Tucson General Hospital, 18 Ariz.
App. 165, 500 P. 2d 1153 (1972). This court has
confirmed the rulings of the Court of Appeals that a
hospital has the duty of supervising the competence of
the doctors on its staff. x x x.
x

In the amended complaint, the plaintiffs did plead that

the operation was performed at the hospital with its
knowledge, aid, and assistance, and that the negligence
of the defendants was the proximate cause of the
patients injuries. We find that such general allegations
of negligence, along with the evidence produced at the
trial of this case, are sufficient to support the hospitals
liability based on the theory of negligent supervision."
Anent the corollary issue of whether PSI is solidarily
liable with Dr. Ampil for damages, let it be emphasized
that PSI, apart from a general denial of its responsibility,
failed to adduce evidence showing that it exercised the
diligence of a good father of a family in the
accreditation and supervision of the latter. In neglecting
to offer such proof, PSI failed to discharge its burden
under the last paragraph of Article 2180 cited earlier,
and, therefore, must be adjudged solidarily liable with
Dr. Ampil. Moreover, as we have discussed, PSI is also
directly liable to the Aganas.
One final word. Once a physician undertakes the
treatment and care of a patient, the law imposes on him
certain obligations. In order to escape liability, he must
possess that reasonable degree of learning, skill and
experience required by his profession. At the same time,
he must apply reasonable care and diligence in the
exercise of his skill and the application of his knowledge,
and exert his best judgment.

Costs against petitioners PSI and Dr. Miguel Ampil.

DECISION
VILLARAMA, JR., J.:
Challenged in this petition for review on certiorari is the
Decision1 dated June 15, 2004 as well as the
Resolution2dated September 1, 2004 of the Court of
Appeals (CA) in CA-G.R. CV No. 58013 which modified
the Decision3dated September 5, 1997 of the Regional
Trial Court of Legazpi City, Branch 8 in Civil Case No.
8904.
The factual antecedents:
On July 7, 1993, respondents 11-year old daughter,
Angelica Soliman, underwent a biopsy of the mass
located in her lower extremity at the St. Lukes Medical
Center (SLMC). Results showed that Angelica was
suffering from osteosarcoma, osteoblastic type,4 a highgrade (highly malignant) cancer of the bone which
usually afflicts teenage children. Following this diagnosis
and as primary intervention, Angelicas right leg was
amputated by Dr. Jaime Tamayo in order to remove the
tumor. As adjuvant treatment to eliminate any
remaining cancer cells, and hence minimize the chances
of recurrence and prevent the disease from spreading to
other parts of the patients body (metastasis),
chemotherapy was suggested by Dr. Tamayo. Dr.
Tamayo referred Angelica to another doctor at SLMC,
herein petitioner Dr. Rubi Li, a medical oncologist.
On August 18, 1993, Angelica was admitted to SLMC.
However, she died on September 1, 1993, just eleven
(11) days after the (intravenous) administration of the
first cycle of the chemotherapy regimen. Because SLMC
refused to release a death certificate without full
payment of their hospital bill, respondents brought the
cadaver of Angelica to the Philippine National Police
(PNP) Crime Laboratory at Camp Crame for post-mortem
examination. The Medico-Legal Report issued by said
institution indicated the cause of death as "Hypovolemic
shock secondary to multiple organ hemorrhages and
Disseminated Intravascular Coagulation."5

67

On the other hand, the Certificate of Death6 issued by

SLMC stated the cause of death as follows:
Immediate cause : a. Osteosarcoma, Status Post
AKA
Antecedent cause : b. (above knee amputation)
Underlying cause : c. Status Post Chemotherapy
On February 21, 1994, respondents filed a damage
suit7 against petitioner, Dr. Leo Marbella, Mr. Jose
Ledesma, a certain Dr. Arriete and SLMC. Respondents
charged them with negligence and disregard of
Angelicas safety, health and welfare by their careless
administration of the chemotherapy drugs, their failure
to observe the essential precautions in detecting early
the symptoms of fatal blood platelet decrease and
stopping early on the chemotherapy, which bleeding led
to hypovolemic shock that caused Angelicas untimely
demise. Further, it was specifically averred that
petitioner assured the respondents that Angelica would
recover in view of 95% chance of healing with
chemotherapy ("Magiging normal na ang anak nyo
basta ma-chemo. 95% ang healing") and when asked
regarding the side effects, petitioner mentioned only
slight vomiting, hair loss and weakness ("Magsusuka ng
kaunti. Malulugas ang buhok. Manghihina").
Respondents thus claimed that they would not have
given their consent to chemotherapy had petitioner not
falsely assured them of its side effects.
In her answer,8 petitioner denied having been negligent
in administering the chemotherapy drugs to Angelica
and asserted that she had fully explained to
respondents how the chemotherapy will affect not only
the cancer cells but also the patients normal body
parts, including the lowering of white and red blood cells
and platelets. She claimed that what happened to
Angelica can be attributed to malignant tumor cells
possibly left behind after surgery. Few as they may be,
these have the capacity to compete for nutrients such
that the body becomes so weak structurally (cachexia)
and functionally in the form of lower resistance of the
body to combat infection. Such infection becomes
uncontrollable and triggers a chain of events (sepsis or
septicemia) that may lead to bleeding in the form of
Disseminated Intravascular Coagulation (DIC), as what
the autopsy report showed in the case of Angelica.
Since the medical records of Angelica were not
produced in court, the trial and appellate courts had to
rely on testimonial evidence, principally the declarations
of petitioner and respondents themselves. The following
chronology of events was gathered:

On July 23, 1993, petitioner saw the respondents at the

hospital after Angelicas surgery and discussed with
them Angelicas condition. Petitioner told respondents
that Angelica should be given two to three weeks to
recover from the operation before starting
chemotherapy. Respondents were apprehensive due to
financial constraints as Reynaldo earns only
from P70,000.00 to P150,000.00 a year from his jewelry
and watch repairing business.9Petitioner, however,
assured them not to worry about her professional fee
and told them to just save up for the medicines to be
used.
Petitioner claimed that she explained to respondents
that even when a tumor is removed, there are still small
lesions undetectable to the naked eye, and that
adjuvant chemotherapy is needed to clean out the small
lesions in order to lessen the chance of the cancer to
recur. She did not give the respondents any assurance
that chemotherapy will cure Angelicas cancer. During
these consultations with respondents, she explained the
following side effects of chemotherapy treatment to
respondents: (1) falling hair; (2) nausea and vomiting;
(3) loss of appetite; (4) low count of white blood cells
[WBC], red blood cells [RBC] and platelets; (5) possible
sterility due to the effects on Angelicas ovary; (6)
damage to the heart and kidneys; and (7) darkening of
the skin especially when exposed to sunlight. She
actually talked with respondents four times, once at the
hospital after the surgery, twice at her clinic and the
fourth time when Angelicas mother called her through
long distance.10 This was disputed by respondents who
countered that petitioner gave them assurance that
there is 95% chance of healing for Angelica if she
undergoes chemotherapy and that the only side effects
were nausea, vomiting and hair loss.11Those were the
only side-effects of chemotherapy treatment mentioned
by petitioner.12
On July 27, 1993, SLMC discharged Angelica, with
instruction from petitioner that she be readmitted after
two or three weeks for the chemotherapy.
On August 18, 1993, respondents brought Angelica to
SLMC for chemotherapy, bringing with them the results
of the laboratory tests requested by petitioner:
Angelicas chest x-ray, ultrasound of the liver, creatinine
and complete liver function tests.13 Petitioner proceeded
with the chemotherapy by first administering hydration
fluids to Angelica.14
The following day, August 19, petitioner began
administering three chemotherapy drugs
Cisplatin,15Doxorubicin16 and Cosmegen17
intravenously. Petitioner was supposedly assisted by her
trainees Dr. Leo Marbella18 and Dr. Grace Arriete.19 In his

68

testimony, Dr. Marbella denied having any participation

in administering the said chemotherapy drugs.20
On the second day of chemotherapy, August 20,
respondents noticed reddish discoloration on Angelicas
face.21They asked petitioner about it, but she merely
quipped, "Wala yan. Epekto ng gamot."22 Petitioner
recalled noticing the skin rashes on the nose and cheek
area of Angelica. At that moment, she entertained the
possibility that Angelica also had systemic lupus and
consulted Dr. Victoria Abesamis on the matter.23
On the third day of chemotherapy, August 21, Angelica
had difficulty breathing and was thus provided with
oxygen inhalation apparatus. This time, the reddish
discoloration on Angelicas face had extended to her
neck, but petitioner dismissed it again as merely the
effect of medicines.24 Petitioner testified that she did not
see any discoloration on Angelicas face, nor did she
notice any difficulty in the childs breathing. She
claimed that Angelica merely complained of nausea and
was given ice chips.251avvphi1
On August 22, 1993, at around ten oclock in the
morning, upon seeing that their child could not anymore
bear the pain, respondents pleaded with petitioner to
stop the chemotherapy. Petitioner supposedly replied:
"Dapat 15 Cosmegen pa iyan. Okay, lets observe. If
pwede na, bigyan uli ng chemo." At this point,
respondents asked petitioners permission to bring their
child home. Later in the evening, Angelica passed black
stool and reddish urine.26 Petitioner countered that there
was no record of blackening of stools but only an
episode of loose bowel movement (LBM). Petitioner also
testified that what Angelica complained of was carpopedal spasm, not convulsion or epileptic attack, as
respondents call it (petitioner described it in the
vernacular as "naninigas ang kamay at paa"). She then
requested for a serum calcium determination and
stopped the chemotherapy. When Angelica was given
calcium gluconate, the spasm and numbness
subsided.27
The following day, August 23, petitioner yielded to
respondents request to take Angelica home. But prior
to discharging Angelica, petitioner requested for a
repeat serum calcium determination and explained to
respondents that the chemotherapy will be temporarily
stopped while she observes Angelicas muscle twitching
and serum calcium level. Take-home medicines were
also prescribed for Angelica, with instructions to
respondents that the serum calcium test will have to be
repeated after seven days. Petitioner told respondents
that she will see Angelica again after two weeks, but
respondents can see her anytime if any immediate
problem arises.28

However, Angelica remained in confinement because

while still in the premises of SLMC, her "convulsions"
returned and she also had LBM. Angelica was given
oxygen and administration of calcium continued.29
The next day, August 24, respondents claimed that
Angelica still suffered from convulsions. They also
noticed that she had a fever and had difficulty
breathing.30 Petitioner insisted it was carpo-pedal
spasm, not convulsions. She verified that at around 4:50
that afternoon, Angelica developed difficulty in
breathing and had fever. She then requested for an
electrocardiogram analysis, and infused calcium
gluconate on the patient at a "stat dose." She further
ordered that Angelica be given Bactrim,31 a synthetic
antibacterial combination drug,32 to combat any
infection on the childs body.33
By August 26, Angelica was bleeding through the
mouth. Respondents also saw blood on her anus and
urine. When Lina asked petitioner what was happening
to her daughter, petitioner replied, "Bagsak ang
platelets ng anak mo." Four units of platelet
concentrates were then transfused to Angelica.
Petitioner prescribed Solucortef. Considering that
Angelicas fever was high and her white blood cell count
was low, petitioner prescribed Leucomax. About four to
eight bags of blood, consisting of packed red blood cells,
fresh whole blood, or platelet concentrate, were
transfused to Angelica. For two days (August 27 to 28),
Angelica continued bleeding, but petitioner claimed it
was lesser in amount and in frequency. Petitioner also
denied that there were gadgets attached to Angelica at
that time.34
On August 29, Angelica developed ulcers in her mouth,
which petitioner said were blood clots that should not be
removed. Respondents claimed that Angelica passed
about half a liter of blood through her anus at around
seven oclock that evening, which petitioner likewise
denied.
On August 30, Angelica continued bleeding. She was
restless as endotracheal and nasogastric tubes were
inserted into her weakened body. An aspiration of the
nasogastric tube inserted to Angelica also revealed a
bloody content. Angelica was given more platelet
concentrate and fresh whole blood, which petitioner
claimed improved her condition. Petitioner told Angelica
not to remove the endotracheal tube because this may
induce further bleeding.35 She was also transferred to
the intensive care unit to avoid infection.
The next day, respondents claimed that Angelica
became hysterical, vomited blood and her body turned
black. Part of Angelicas skin was also noted to be

69

shredding by just rubbing cotton on it. Angelica was so

restless she removed those gadgets attached to her,
saying "Ayaw ko na"; there were tears in her eyes and
she kept turning her head. Observing her daughter to be
at the point of death, Lina asked for a doctor but the
latter could not answer her anymore.36 At this time, the
attending physician was Dr. Marbella who was shaking
his head saying that Angelicas platelets were down and
respondents should pray for their daughter. Reynaldo
claimed that he was introduced to a pediatrician who
took over his daughters case, Dr. Abesamis who also
told him to pray for his daughter. Angelica continued to
have difficulty in her breathing and blood was being
suctioned from her stomach. A nurse was posted inside
Angelicas room to assist her breathing and at one point
they had to revive Angelica by pumping her chest.
Thereafter, Reynaldo claimed that Angelica already
experienced difficulty in urinating and her bowel
consisted of blood-like fluid. Angelica requested for an
electric fan as she was in pain. Hospital staff attempted
to take blood samples from Angelica but were
unsuccessful because they could not even locate her
vein. Angelica asked for a fruit but when it was given to
her, she only smelled it. At this time, Reynaldo claimed
he could not find either petitioner or Dr. Marbella. That
night, Angelica became hysterical and started removing
those gadgets attached to her. At three oclock in the
morning of September 1, a priest came and they prayed
before Angelica expired. Petitioner finally came back
and supposedly told respondents that there was
"malfunction" or bogged-down machine.37
By petitioners own account, Angelica was merely
irritable that day (August 31). Petitioner noted though
that Angelicas skin was indeed sloughing off. 38 She
stressed that at 9:30 in the evening, Angelica pulled out
her endotracheal tube.39 On September 1, exactly two
weeks after being admitted at SLMC for chemotherapy,
Angelica died.40 The cause of death, according to
petitioner, was septicemia, or overwhelming infection,
which caused Angelicas other organs to fail.41 Petitioner
attributed this to the patients poor defense mechanism
brought about by the cancer itself.42
While he was seeking the release of Angelicas cadaver
from SLMC, Reynaldo claimed that petitioner acted
arrogantly and called him names. He was asked to sign
a promissory note as he did not have cash to pay the
hospital bill.43
Respondents also presented as witnesses Dr. Jesusa
Nieves-Vergara, Medico-Legal Officer of the PNP-Crime
Laboratory who conducted the autopsy on Angelicas
cadaver, and Dr. Melinda Vergara Balmaceda who is a
Medical Specialist employed at the Department of
Health (DOH) Operations and Management Services.

Testifying on the findings stated in her medico-legal

report, Dr. Vergara noted the following: (1) there were
fluids recovered from the abdominal cavity, which is not
normal, and was due to hemorrhagic shock secondary
to bleeding; (2) there was hemorrhage at the left side of
the heart; (3) bleeding at the upper portion of and areas
adjacent to, the esophagus; (4) lungs were heavy with
bleeding at the back and lower portion, due to
accumulation of fluids; (4) yellowish discoloration of the
liver; (5) kidneys showed appearance of facial shock on
account of hemorrhages; and (6) reddishness on
external surface of the spleen. All these were the end
result of "hypovolemic shock secondary to multiple
organ hemorrhages and disseminated intravascular
coagulation." Dr. Vergara opined that this can be
attributed to the chemical agents in the drugs given to
the victim, which caused platelet reduction resulting to
bleeding sufficient to cause the victims death. The time
lapse for the production of DIC in the case of Angelica
(from the time of diagnosis of sarcoma) was too short,
considering the survival rate of about 3 years. The
witness conceded that the victim will also die of
osteosarcoma even with amputation or chemotherapy,
but in this case Angelicas death was not caused by
osteosarcoma. Dr. Vergara admitted that she is not a
pathologist but her statements were based on the
opinion of an oncologist whom she had interviewed. This
oncologist supposedly said that if the victim already had
DIC prior to the chemotherapy, the hospital staff could
have detected it.44
On her part, Dr. Balmaceda declared that it is the
physicians duty to inform and explain to the patient or
his relatives every known side effect of the procedure or
therapeutic agents to be administered, before securing
the consent of the patient or his relatives to such
procedure or therapy. The physician thus bases his
assurance to the patient on his personal assessment of
the patients condition and his knowledge of the general
effects of the agents or procedure that will be allowed
on the patient. Dr. Balmaceda stressed that the patient
or relatives must be informed of all known side effects
based on studies and observations, even if such will
aggravate the patients condition.45
Dr. Jaime Tamayo, the orthopaedic surgeon who
operated on Angelicas lower extremity, testified for the
defendants. He explained that in case of malignant
tumors, there is no guarantee that the ablation or
removal of the amputated part will completely cure the
cancer. Thus, surgery is not enough. The mortality rate
of osteosarcoma at the time of modern chemotherapy
and early diagnosis still remains at 80% to 90%. Usually,
deaths occur from metastasis, or spread of the cancer
to other vital organs like the liver, causing systemic
complications. The modes of therapy available are the
removal of the primary source of the cancerous growth

70

and then the residual cancer cells or metastasis should

be treated with chemotherapy. Dr. Tamayo further
explained that patients with osteosarcoma have poor
defense mechanism due to the cancer cells in the blood
stream. In the case of Angelica, he had previously
explained to her parents that after the surgical
procedure, chemotherapy is imperative so that
metastasis of these cancer cells will hopefully be
addressed. He referred the patient to petitioner because
he felt that petitioner is a competent oncologist.
Considering that this type of cancer is very aggressive
and will metastasize early, it will cause the demise of
the patient should there be no early intervention (in this
case, the patient developed sepsis which caused her
death). Cancer cells in the blood cannot be seen by the
naked eye nor detected through bone scan. On crossexamination, Dr. Tamayo stated that of the more than
50 child patients who had osteogenic sarcoma he had
handled, he thought that probably all of them died
within six months from amputation because he did not
see them anymore after follow-up; it is either they died
or had seen another doctor.46
In dismissing the complaint, the trial court held that
petitioner was not liable for damages as she observed
the best known procedures and employed her highest
skill and knowledge in the administration of
chemotherapy drugs on Angelica but despite all efforts
said patient died. It cited the testimony of Dr. Tamayo
who testified that he considered petitioner one of the
most proficient in the treatment of cancer and that the
patient in this case was afflicted with a very aggressive
type of cancer necessitating chemotherapy as adjuvant
treatment. Using the standard of negligence laid down
in Picart v. Smith,47 the trial court declared that
petitioner has taken the necessary precaution against
the adverse effect of chemotherapy on the patient,
adding that a wrong decision is not by itself negligence.
Respondents were ordered to pay their unpaid hospital
bill in the amount ofP139,064.43.48
Respondents appealed to the CA which, while
concurring with the trial courts finding that there was
no negligence committed by the petitioner in the
administration of chemotherapy treatment to Angelica,
found that petitioner as her attending physician failed to
fully explain to the respondents all the known side
effects of chemotherapy. The appellate court stressed
that since the respondents have been told of only three
side effects of chemotherapy, they readily consented
thereto. Had petitioner made known to respondents
those other side effects which gravely affected their
child -- such as carpo-pedal spasm, sepsis, decrease in
the blood platelet count, bleeding, infections and
eventual death -- respondents could have decided
differently or adopted a different course of action which

could have delayed or prevented the early death of their

child.
The CA thus declared:
Plaintiffs-appellants child was suffering from a
malignant disease. The attending physician
recommended that she undergo chemotherapy
treatment after surgery in order to increase her chances
of survival. Appellants consented to the chemotherapy
treatment because they believed in Dr. Rubi Lis
representation that the deceased would have a strong
chance of survival after chemotherapy and also because
of the representation of appellee Dr. Rubi Li that there
were only three possible side-effects of the treatment.
However, all sorts of painful side-effects resulted from
the treatment including the premature death of
Angelica. The appellants were clearly and totally
unaware of these other side-effects which manifested
only during the chemotherapy treatment. This was
shown by the fact that every time a problem would take
place regarding Angelicas condition (like an unexpected
side-effect manifesting itself), they would immediately
seek explanation from Dr. Rubi Li. Surely, those
unexpected side-effects culminating in the loss of a
love[d] one caused the appellants so much trouble, pain
and suffering.
On this point therefore, [w]e find defendant-appellee Dr.
Rubi Li negligent which would entitle plaintiffsappellants to their claim for damages.
xxxx
WHEREFORE, the instant appeal is hereby GRANTED.
Accordingly, the assailed decision is hereby modified to
the extent that defendant-appellee Dr. Rubi Li is ordered
to pay the plaintiffs-appellants the following amounts:
1. Actual damages of P139,064.43, plus
P9,828.00 for funeral expenses;
2. Moral damages of P200,000.00;
3. Exemplary damages of P50,000.00;
4. Attorneys fee of P30,000.00.
SO ORDERED.49 (Emphasis supplied.)
Petitioner filed a motion for partial reconsideration
which the appellate court denied.
Hence, this petition.

71

Petitioner assails the CA in finding her guilty of

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

The issue to be resolved is whether the petitioner can

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

On her supposed non-disclosure of all possible side

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

The type of lawsuit which has been called medical

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

Citing numerous trainings, distinctions and

achievements in her field and her current position as codirector for clinical affairs of the Medical Oncology,
Department of Medicine of SLMC, petitioner contends
that in the absence of any clear showing or proof, she
cannot be charged with negligence in not informing the
respondents all the side effects of chemotherapy or in
the pre-treatment procedures done on Angelica.
As to the cause of death, petitioner insists that Angelica
did not die of platelet depletion but of sepsis which is a
complication of the cancer itself. Sepsis itself leads to
bleeding and death. She explains that the response rate
to chemotherapy of patients with osteosarcoma is high,
so much so that survival rate is favorable to the patient.
Petitioner then points to some probable consequences if
Angelica had not undergone chemotherapy. Thus,
without chemotherapy, other medicines and supportive
treatment, the patient might have died the next day
because of massive infection, or the cancer cells might
have spread to the brain and brought the patient into a
coma, or into the lungs that the patient could have been
hooked to a respirator, or into her kidneys that she
would have to undergo dialysis. Indeed, respondents
could have spent as much because of these
complications. The patient would have been deprived of
the chance to survive the ailment, of any hope for life
and her "quality of life" surely compromised. Since she
had not been shown to be at fault, petitioner maintains
that the CA erred in holding her liable for the damages
suffered by the respondents.50

The petition is meritorious.

This Court has recognized that medical negligence

cases are best proved by opinions of expert witnesses
belonging in the same general neighborhood and in the
same general line of practice as defendant physician or
surgeon. The deference of courts to the expert opinion
of qualified physicians stems from the formers
realization that the latter possess unusual technical
skills which laymen in most instances are incapable of
intelligently evaluating, hence the indispensability of
expert testimonies.52
In this case, both the trial and appellate courts
concurred in finding that the alleged negligence of
petitioner in the administration of chemotherapy drugs
to respondents child was not proven considering that
Drs. Vergara and Balmaceda, not being oncologists or
cancer specialists, were not qualified to give expert
opinion as to whether petitioners lack of skill,
knowledge and professional competence in failing to
observe the standard of care in her line of practice was
the proximate cause of the patients death.
Furthermore, respondents case was not at all helped by
the non-production of medical records by the hospital
(only the biopsy result and medical bills were submitted
to the court). Nevertheless, the CA found petitioner
liable for her failure to inform the respondents on all
possible side effects of chemotherapy before securing
their consent to the said treatment.
The doctrine of informed consent within the context of
physician-patient relationships goes far back into
English common law. As early as 1767, doctors were
charged with the tort of "battery" (i.e., an unauthorized
physical contact with a patient) if they had not gained

72

the consent of their patients prior to performing a

surgery or procedure. In the United States, the seminal
case was Schoendorff v. Society of New York
Hospital53 which involved unwanted treatment
performed by a doctor. Justice Benjamin Cardozos oftquoted opinion upheld the basic right of a patient to
give consent to any medical procedure or treatment:
"Every human being of adult years and sound mind has
a right to determine what shall be done with his own
body; and a surgeon who performs an operation without
his patients consent, commits an assault, for which he
is liable in damages."54 From a purely ethical norm,
informed consent evolved into a general principle of law
that a physician has a duty to disclose what a
reasonably prudent physician in the medical community
in the exercise of reasonable care would disclose to his
patient as to whatever grave risks of injury might be
incurred from a proposed course of treatment, so that a
patient, exercising ordinary care for his own welfare,
and faced with a choice of undergoing the proposed
treatment, or alternative treatment, or none at all, may
intelligently exercise his judgment by reasonably
balancing the probable risks against the probable
benefits.55
Subsequently, in Canterbury v. Spence56 the court
observed that the duty to disclose should not be limited
to medical usage as to arrogate the decision on
revelation to the physician alone. Thus, respect for the
patients right of self-determination on particular
therapy demands a standard set by law for physicians
rather than one which physicians may or may not
impose upon themselves.57 The scope of disclosure is
premised on the fact that patients ordinarily are persons
unlearned in the medical sciences. Proficiency in
diagnosis and therapy is not the full measure of a
physicians responsibility. It is also his duty to warn of
the dangers lurking in the proposed treatment and to
impart information which the patient has every right to
expect. Indeed, the patients reliance upon the
physician is a trust of the kind which traditionally has
exacted obligations beyond those associated with
armslength transactions.58 The physician is not expected
to give the patient a short medical education, the
disclosure rule only requires of him a reasonable
explanation, which means generally informing the
patient in nontechnical terms as to what is at stake; the
therapy alternatives open to him, the goals expectably
to be achieved, and the risks that may ensue from
particular treatment or no treatment.59 As to the issue of
demonstrating what risks are considered material
necessitating disclosure, it was held that experts are
unnecessary to a showing of the materiality of a risk to
a patients decision on treatment, or to the reasonably,
expectable effect of risk disclosure on the decision. Such
unrevealed risk that should have been made known
must further materialize, for otherwise the omission,

however unpardonable, is without legal consequence.

And, as in malpractice actions generally, there must be
a causal relationship between the physicians failure to
divulge and damage to the patient.60
Reiterating the foregoing considerations, Cobbs v.
Grant61 deemed it as integral part of physicians overall
obligation to patient, the duty of reasonable disclosure
of available choices with respect to proposed therapy
and of dangers inherently and potentially involved in
each. However, the physician is not obliged to discuss
relatively minor risks inherent in common procedures
when it is common knowledge that such risks inherent
in procedure of very low incidence. Cited as exceptions
to the rule that the patient should not be denied the
opportunity to weigh the risks of surgery or treatment
are emergency cases where it is evident he cannot
evaluate data, and where the patient is a child or
incompetent.62 The court thus concluded that the
patients right of self-decision can only be effectively
exercised if the patient possesses adequate information
to enable him in making an intelligent choice. The scope
of the physicians communications to the patient, then
must be measured by the patients need, and that need
is whatever information is material to the decision. The
test therefore for determining whether a potential peril
must be divulged is its materiality to the patients
decision.63
Cobbs v. Grant further reiterated the pronouncement in
Canterbury v. Spence that for liability of the physician
for failure to inform patient, there must be causal
relationship between physicians failure to inform and
the injury to patient and such connection arises only if it
is established that, had revelation been made, consent
to treatment would not have been given.
There are four essential elements a plaintiff must prove
in a malpractice action based upon the doctrine of
informed consent: "(1) the physician had a duty to
disclose material risks; (2) he failed to disclose or
inadequately disclosed those risks; (3) as a direct and
proximate result of the failure to disclose, the patient
consented to treatment she otherwise would not have
consented to; and (4) plaintiff was injured by the
proposed treatment." The gravamen in an informed
consent case requires the plaintiff to "point to significant
undisclosed information relating to the treatment which
would have altered her decision to undergo it.64
Examining the evidence on record, we hold that there
was adequate disclosure of material risks inherent in the
chemotherapy procedure performed with the consent of
Angelicas parents. Respondents could not have been
unaware in the course of initial treatment and
amputation of Angelicas lower extremity, that her
immune system was already weak on account of the

73

malignant tumor in her knee. When petitioner informed

the respondents beforehand of the side effects of
chemotherapy which includes lowered counts of white
and red blood cells, decrease in blood platelets, possible
kidney or heart damage and skin darkening, there is
reasonable expectation on the part of the doctor that
the respondents understood very well that the severity
of these side effects will not be the same for all patients
undergoing the procedure. In other words, by the nature
of the disease itself, each patients reaction to the
chemical agents even with pre-treatment laboratory
tests cannot be precisely determined by the physician.
That death can possibly result from complications of the
treatment or the underlying cancer itself, immediately
or sometime after the administration of chemotherapy
drugs, is a risk that cannot be ruled out, as with most
other major medical procedures, but such conclusion
can be reasonably drawn from the general side effects
of chemotherapy already disclosed.
As a physician, petitioner can reasonably expect the
respondents to have considered the variables in the
recommended treatment for their daughter afflicted
with a life-threatening illness. On the other hand, it is
difficult to give credence to respondents claim that
petitioner told them of 95% chance of recovery for their
daughter, as it was unlikely for doctors like petitioner
who were dealing with grave conditions such as cancer
to have falsely assured patients of chemotherapys
success rate. Besides, informed consent laws in other
countries generally require only a reasonable
explanation of potential harms, so specific disclosures
such as statistical data, may not be legally necessary. 65
The element of ethical duty to disclose material risks in
the proposed medical treatment cannot thus be reduced
to one simplistic formula applicable in all instances.
Further, in a medical malpractice action based on lack of
informed consent, "the plaintiff must prove both the
duty and the breach of that duty through expert
testimony.66Such expert testimony must show the
customary standard of care of physicians in the same
practice as that of the defendant doctor. 67
In this case, the testimony of Dr. Balmaceda who is not
an oncologist but a Medical Specialist of the DOHs
Operational and Management Services charged with
receiving complaints against hospitals, does not qualify
as expert testimony to establish the standard of care in
obtaining consent for chemotherapy treatment. In the
absence of expert testimony in this regard, the Court
feels hesitant in defining the scope of mandatory
disclosure in cases of malpractice based on lack of
informed consent, much less set a standard of
disclosure that, even in foreign jurisdictions, has been
noted to be an evolving one.

As society has grappled with the juxtaposition between

personal autonomy and the medical profession's
intrinsic impetus to cure, the law defining "adequate"
disclosure has undergone a dynamic evolution. A
standard once guided solely by the ruminations of
physicians is now dependent on what a reasonable
person in the patients position regards as significant.
This change in perspective is especially important as
medical breakthroughs move practitioners to the cutting
edge of technology, ever encountering new and
heretofore unimagined treatments for currently
incurable diseases or ailments. An adaptable standard is
needed to account for this constant progression.
Reasonableness analyses permeate our legal system for
the very reason that they are determined by social
norms, expanding and contracting with the ebb and flow
of societal evolution.
As we progress toward the twenty-first century, we now
realize that the legal standard of disclosure is not
subject to construction as a categorical imperative.
Whatever formulae or processes we adopt are only
useful as a foundational starting point; the particular
quality or quantity of disclosure will remain inextricably
bound by the facts of each case. Nevertheless, juries
that ultimately determine whether a physician properly
informed a patient are inevitably guided by what they
perceive as the common expectation of the medical
consumer"a reasonable person in the patients
position when deciding to accept or reject a
recommended medical procedure."68(Emphasis
supplied.)
WHEREFORE, the petition for review on certiorari is
GRANTED. The Decision dated June 15, 2004 and the
Resolution dated September 1, 2004 of the Court of
Appeals in CA-G.R. CV No. 58013 are SET ASIDE.
The Decision dated September 5, 1997 of the Regional
Trial Court of Legazpi City, Branch 8, in Civil Case No.
8904 is REINSTATED and UPHELD.

DR. PEDRO DENNIS CERENO, and DR. SANTOS

ZAFE, Petitioners,
vs.
COURT OF APPEALS, SPOUSES DIOGENES S.
OLAVERE and FE R. SERRANO, Respondents.
DECISION
PEREZ, J.:
Before the Court is a Petition for Review on
Certiorari 1 under Rule 45 of the Rules of Court seeking

74

the annulment and setting aside of the 21 February

2005 decision2 of the Court of Appeals (CA) in CA-G.R.
CV No. 65800. In the assailed decision, the CA affirmed
in toto the decision of the Regional Trial Court (R TC),
Branch 22, Nag a City finding herein petitioners Dr.
Pedro Dennis Cereno (Dr. Cereno) and Dr. Santos Zafe
(Dr. Zafe) liable for damages.
Culled from the records are the following antecedent
facts:
At about 9:15 in the evening of 16 September 1995,
Raymond S. Olavere (Raymond), a victim of a stabbing
incident, was rushed to the emergency room of the Bicol
Regional Medical Center (BRMC). There, Raymond was
attended to by Nurse Arlene Balares (Nurse Balares) and
Dr. Ruel Levy Realuyo (Dr. Realuyo) the emergency
room resident physician.
Subsequently, the parents of Raymondthe spouses
Deogenes Olavere (Deogenes) and Fe R. Serrano
arrived at the BRMC. They were accompanied by one
Andrew Olavere, the uncle of Raymond.
After extending initial medical treatment to Raymond,
Dr. Realuyo recommended that the patient undergo
"emergency exploratory laparotomy." Dr. Realuyo then
requested the parents of Raymond to procure 500 cc of
type "O" blood needed for the operation. Complying
with the request, Deogenes and Andrew Olavere went to
the Philippine National Red Cross to secure the required
blood.
At 10:30 P.M., Raymond was wheeled inside the
operating room. During that time, the hospital surgeons,
Drs. Zafe and Cereno, were busy operating on gunshot
victim Charles Maluluy-on. Assisting them in the said
operation was Dr. Rosalina Tatad (Dr. Tatad), who was
the only senior anesthesiologist on duty at BRMC that
night. Dr. Tatad also happened to be the head of
Anesthesiology Department of the BRMC.
Just before the operation on Maluluy-on was finished,
another emergency case involving Lilia Aguila, a woman
who was giving birth to triplets, was brought to the
operating room.
At 10:59 P.M., the operation on Charles Maluluy-on was
finished. By that time, however, Dr. Tatad was already
working with the obstetricians who will perform surgery
on Lilia Aguila. There being no other available
anesthesiologist to assist them, Drs. Zafe and Cereno
decided to defer the operation on Raymond.
Drs. Zafe and Cereno, in the meantime, proceeded to
examine Raymond and they found that the latters

blood pressure was normal and "nothing in him was

significant."3 Dr. Cereno reported that based on the xray
result he interpreted, the fluid inside the thoracic cavity
of Raymond was minimal at around 200-300 cc.
At 11:15 P.M., Deogenes and Andrew Olavere returned
to the BRMC with a bag containing the requested 500 cc
type "O" blood. They handed over the bag of blood to
Dr. Realuyo.
After Dr. Tatad finished her work with the Lilia Aguila
operation, petitioners immediately started their
operation on Raymond at around 12:15 A.M. of 17
September 1995. Upon opening of Raymonds thoracic
cavity, they found that 3,200 cc of blood was stocked
therein. The blood was evacuated and petitioners found
a puncture at the inferior pole of the left lung.
In his testimony, Dr. Cereno stated that considering the
loss of blood suffered by Raymond, he did not
immediately transfuse blood because he had to control
the bleeders first.4
Blood was finally transfused on Raymond at 1:40 A.M. At
1:45 A.M., while the operation was on-going, Raymond
suffered a cardiac arrest. The operation ended at 1:50
A.M. and Raymond was pronounced dead at 2:30 A.M.
Raymonds death certificate5 indicated that the
immediate cause of death was "hypovolemic shock" or
the cessation of the functions of the organs of the body
due to loss of blood.6
Claiming that there was negligence on the part of those
who attended to their son, the parents of Raymond, on
25 October 1995, filed before the RTC, Branch 22, Naga
City a complaint for damages7 against Nurse Balares, Dr.
Realuyo and attending surgeons Dr. Cereno and Dr.
Zafe.
During trial, the parents of Raymond testified on their
own behalf. They also presented the testimonies of
Andrew Olavere and one Loira Oira, the aunt of
Raymond. On the other hand, Dr. Cereno, Dr. Realuyo,
Nurse Balares and Security Guard Diego Reposo
testified for the defense. On rebuttal, the parents of
Raymond presented Dr. Tatad, among others.
On 15 October 1999, the trial court rendered a
decision8 the dispositive portion of which reads:
WHEREFORE, premises considered, this Court hereby
renders judgment:
1. Dismissing the case against Dr. Ruel Levy
Realuyo and Arlene Balares for lack of merit;

75

2. Ordering defendants Dr. Santos Zafe and Dr.

Dennis Cereno to pay the heirs of Raymond
Olavere, jointly and severally the following
amounts:
1. P 50,000.00 for the death of the
victim;
2. P 150,000.00 as moral damages;
3. P 100,000.00 as exemplary damages;
4. P 30,000.00 for attorneys fees; and
5. Cost of suit.

x x x x.
The trial court found petitioners negligent in not
immediately conducting surgery on Raymond. It noted
that petitioners have already finished operating on
Charles Maluluy-on as early as 10:30 in the evening,
and yet they only started the operation on Raymond at
around 12:15 early morning of the following day. The
trial court held that had the surgery been performed
promptly, Raymond would not have lost so much blood
and, therefore, could have been saved.10
The trial court also held that the non-availability of Dr.
Tatad after the operation on Maluluy-on was not a
sufficient excuse for the petitioners to not immediately
operate on Raymond. It called attention to the
testimony of Dr. Tatad herself, which disclosed the
possibility of calling a standby anesthesiologist in that
situation. The trial court opined that the petitioners
could have just requested for the standby
anesthesiologist from Dr. Tatad, but they did not.
Lastly, the trial court faulted petitioners for the delay in
the transfusion of blood on Raymond.
On appeal, the CA in a decision dated 21 February 2005
affirmed in toto the judgment rendered by the RTC
finding herein petitioners guilty of gross negligence in
the performance of their duties and awarding damages
to private respondents.
Hence, this petition for review on certiorari under Rule
45 of the Rules of Court assailing the CA decision on the
following grounds:
1. THAT THE CA ERRED IN RULING THAT
PETITIONERS WERE GROSSLY NEGLIGENT IN THE
PERFORMANCE OF THEIR DUTIES;

2. THAT THE CA ERRED IN NOT CONSIDERING

THE BICOL REGIONAL MEDICAL CENTER AS AN
INDISPENSABLE PARTY AND SUBSIDIARILY
LIABLE SHOULD PETITIONERS BE FOUND LIABLE
FOR DAMAGES; and
3. THAT THE CA ERRED IN NOT FINDING THE
AWARD OF MORAL AND EXEMPLARY DAMAGES
AS WELL AS ATTORNEYS FEES EXORBITANT OR
EXCESSIVE.
We grant the petition
It is well-settled that under Rule 45 of the Rules of
Court, only questions of law may be raised. The reason
behind this is that this Court is not a trier of facts and
will not re-examine and re-evaluate the evidence on
record.11Factual findings of the CA, affirming that of the
trial court, are therefore generally final and conclusive
on this Court. This rule is subject to the following
exceptions: (1) the conclusion is grounded on
speculations, surmises or conjectures; (2) the inference
is manifestly mistaken, absurd or impossible; (3) there is
grave abuse of discretion; (4) the judgment is based on
a misapprehension of facts; (5) the findings of fact are
conflicting; (6) there is no citation of specific evidence
on which the factual findings are based; (7) the findings
of absence of fact are contradicted by the presence of
evidence on record; (8) the findings of the CA are
contrary to those of the trial court; (9) the CA manifestly
overlooked certain relevant and undisputed facts that, if
properly considered, would justify a different conclusion;
(10) the findings of the CA are beyond the issues of the
case; and (11) such findings are contrary to the
admissions of both parties.12 In this case, We find
exceptions (1) and (4) to be applicable.
The type of lawsuit which has been called medical
malpractice or, more appropriately, medical negligence,
is that type of claim which a victim has available to him
or her to redress a wrong committed by a medical
professional which has caused bodily harm. In order to
successfully pursue such a claim, a patient must
prove that a health care provider, in most cases a
physician, either failed to do something which a
reasonably prudent health care provider would
have done, or that he or she did something that a
reasonably prudent provider would not have
done; and that the failure or action caused injury to
the patient.13 Stated otherwise, the complainant must
prove: (1) that the health care provider, either by his act
or omission, had been negligent, and (2) that such act
or omission proximately caused the injury complained
of.

76

The best way to prove these is through the opinions of

expert witnesses belonging in the same neighborhood
and in the same general line of practice as defendant
physician or surgeon. The deference of courts to the
expert opinion of qualified physicians stems from the
formers realization that the latter possess unusual
technical skills which laymen in most instances are
incapable of intelligently evaluating, hence, the
indispensability of expert testimonies.14
Guided by the foregoing standards, We dissect the
issues at hand.
Petitioners Not Negligent
The trial court first imputed negligence on the part of
the petitioners by their failure to perform the operation
on Raymond immediately after finishing the Maluluy-on
operation. It rejected as an excuse the nonavailability of
Dr. Tatad. The trial court relied on the testimony of Dr.
Tatad about a "BRMC protocol" that introduces the
possibility that a standby anesthesiologist could have
been called upon. The pertinent portions of the
testimony of Dr. Tatad provides:
Q: Aside from you and Dr. Rebancos, who was the
standby anesthesiologist?
A: We have a protocol at the Bicol Medical Center to
have a consultant who is on call.
Q: How many of them?
A: One.
Q: Who is she?
A: Dra. Flores.
Q: What is the first name?
A: Rosalina Flores.
Q: Is she residing in Naga City?
A: In Camaligan.
Q: She is on call anytime when there is an emergency
case to be attended to in the Bicol Medical Center?
A: Yes sir.15
Dr. Tatad further testified:

Q: Alright (sic), considering that you said you could not

attend to Raymond Olavere because another patient
was coming in the person of Lilia Aguila, did you not
suggest to Dr. Cereno to call the standby
anesthesiologist?
A: They are not ones to do that. They have no right to
call for the standby anesthesiologist.
Q: Then, who should call for the standby
anesthesiologist?
A: It is me if the surgeon requested.
Q: But in this case, the surgeon did not request you?
A: No. It is their prerogative.
Q: I just want to know that in this case the surgeon did
not request you to call for the standby anesthesiologist?
A: No sir.16
From there, the trial court concluded that it was the
duty of the petitioners to request Dr. Tatad to call on Dr.
Rosalina Flores, the standby anesthesiologist. Since
petitioners failed to do so, their inability to promptly
perform the operation on Raymond becomes negligence
on their part.
This Court does not agree with the aforesaid conclusion.
First. There is nothing in the testimony of Dr. Tatad, or in
any evidence on the record for that matter, which shows
that the petitioners were aware of the "BRMC protocol"
that the hospital keeps a standby anesthesiologist
available on call. Indeed, other than the testimony of Dr.
Tatad, there is no evidence that proves that any such
"BRMC protocol" is being practiced by the hospitals
surgeons at all.
Evidence to the effect that petitioners knew of the
"BRMC protocol" is essential, especially in view of the
contrary assertion of the petitioners that the matter of
assigning anesthesiologists rests within the full
discretion of the BRMC Anesthesiology Department.
Without any prior knowledge of the "BRMC protocol," We
find that it is quite reasonable for the petitioners to
assume that matters regarding the administration of
anesthesia and the assignment of anesthesiologists are
concerns of the Anesthesiology Department, while
matters pertaining to the surgery itself fall under the
concern of the surgeons. Certainly, We cannot hold
petitioners accountable for not complying with
something that they, in the first place, do not know.

77

Second. Even assuming ex gratia argumenti that there

is such "BRMC protocol" and that petitioners knew about
it, We find that their failure to request for the assistance
of the standby anesthesiologist to be reasonable when
taken in the proper context. There is simply no
competent evidence to the contrary.

Q: In this case of Raymond Olavere was blood

transfused to him while he was inside the operating
room?

From the testimony of Dr. Tatad herself, it is clear that

the matter of requesting for a standby anaesthesiologist
is not within the full discretion of petitioners. The "BRMC
protocol" described in the testimony requires the
petitioners to course such request to Dr. Tatad who, as
head of the Department of Anesthesiology, has the final
say of calling the standby anesthesiologist.

xxxx

As revealed by the facts, however, after the Maluluy-on

operation, Dr. Tatad was already assisting in the Lilia
Aguila operation. Drs. Zafe and Cereno then proceeded
to examine Raymond and they found that the latters
blood pressure was normal and "nothing in him was
significant."17 Dr. Cereno even concluded that based on
the x-ray result he interpreted, the fluid inside the
thoracic cavity of Raymond was minimal at around 200300 cc. Such findings of Drs. Cereno and Zafe were
never challenged and were unrebutted.
Given that Dr. Tatad was already engaged in another
urgent operation and that Raymond was not showing
any symptom of suffering from major blood loss
requiring an immediate operation, We find it reasonable
that petitioners decided to wait for Dr. Tatad to finish her
surgery and not to call the standby anesthesiologist
anymore. There is, after all, no evidence that shows that
a prudent surgeon faced with similar circumstances
would decide otherwise.
Here, there were no expert witnesses presented to
testify that the course of action taken by petitioners
were not in accord with those adopted by other
reasonable surgeons in similar situations. Neither was
there any testimony given, except that of Dr. Tatads, on
which it may be inferred that petitioners failed to
exercise the standard of care, diligence, learning and
skill expected from practitioners of their profession. Dr.
Tatad, however, is an expert neither in the field of
surgery nor of surgical practices and diagnoses. Her
expertise is in the administration of anesthesia and not
in the determination of whether surgery ought or not
ought to be performed.
Another ground relied upon by the trial court in holding
petitioners negligent was their failure to immediately
transfuse blood on Raymond. Such failure allegedly led
to the eventual death of Raymond through
"hypovolemic shock." The trial court relied on the
following testimony of Dr. Tatad:

A: The blood arrived at 1:40 a.m. and that was the time
when this blood was hooked to the patient.

Q: Prior to the arrival of the blood, you did not request

for blood?
A: I requested for blood.
Q: From whom?
A: From the attending physician, Dr. Realuyo.
Q: What time was that?
xxxx
A: 9:30.
xxxx
Q: Had this blood been given to you before the
operation you could have transfused the blood to the
patient?
A: Of course, yes.
Q: And the blood was transfused only after the
operation?
A: Because that was the time when the blood was given
to us.
xxxx
Q: Have you monitored the condition of Raymond
Olavere?
A: I monitored the condition during the time when I
would administer anesthesia.
Q: What time was that?
A: 11:45 already.
Q: What was the condition of the blood pressure at that
time?
A: 60/40 initial.

78

Q: With that kind of blood pressure the patient must

have been in critical condition?
A: At the time when the blood pressure was 60/40 I
again told Dr. Cereno that blood was already needed.
Q: With that condition, Doctor, that the patient had
60/40 blood pressure you did not decide on transfusing
blood to him?

Q: But certainly, you learned of that fact that there was

500 cc of blood, which was due for crossmatching
immediately prior to the operation?
A: Yes, sir.
Q: And the operation was done at 12:15 of September
17?
A: Yes, sir.

A: I was asking for blood but there was no blood

available.

Q: And that was the reason why you could not use the
blood because it was being crossmatched?

Q: From whom did you ask?

A: From the surgeon. According to Dr. Zafe there was
only 500 cc but still for cross-matching.18
From the aforesaid testimony, the trial court ruled that
there was negligence on the part of petitioners for their
failure to have the blood ready for transfusion. It was
alleged that at 11:15 P.M., the 500 cc of blood was given
to Dr. Realuyo by Raymonds parents. At 11:45 P.M.,
when Dr. Tatad was asking for the blood, 30 minutes
had passed. Yet, the blood was not ready for transfusion
as it was still being cross-matched.19 It took another two
hours before blood was finally transfused to Raymond at
1:40 A.M. of 17 September 1995.
Again, such is a mistaken conclusion.

A: No, sir. That was done only for a few minutes. We did
not transfuse at that time because there was no
need.There is a necessity to transfuse blood when
we saw there is gross bleeding inside the
body. 20(Emphasis supplied)
During the operation, on the other hand, Dr. Cereno was
already able to discover that 3,200 cc of blood was
stocked in the thoracic cavity of Raymond due to the
puncture in the latters left lung. Even then, however,
immediate blood transfusion was not feasible because:
Q: Now considering the loss of blood suffered by
Raymund Olavere, why did you not immediately
transfuse blood to the patient and you waited for 45
minutes to elapse before transfusing the blood?

First, the alleged delay in the cross-matching of the

blood, if there was any, cannot be attributed as the fault
of the petitioners. The petitioners were never shown to
be responsible for such delay. It is highly unreasonable
and the height of injustice if petitioners were to be
sanctioned for lapses in procedure that does not fall
within their duties and beyond their control.

A: I did not transfuse blood because I had to

control the bleeders. If you will transfuse blood
just the same the blood that you transfuse will be
lost. After evacuation of blood and there is no
more bleeding

Second, Dr. Cereno, in his unchallenged testimony, aptly

explained the apparent delay in the transfusion of blood
on Raymond before and during the operation.

A: The evacuation did not take 45 minutes.

Before the operation, Dr. Cereno explained that the

reason why no blood transfusion was made on Raymond
was because they did not then see the need to
administer such transfusion, viz:
Q: Now, you stated in your affidavit that prior to the
operation you were informed that there was 500 cc of
blood available and was still to be cross-matched. What
time was that when you were informed that 500 cc of
blood was due for crossmatching?
A: I am not sure of the time.

Q: It took you 45 minutes to evacuate the blood?

Q: So what was the cause of the delay why you only

transfuse blood after 45 minutes?
A: We have to look for some other lesions. It does
not mean that when you slice the chest you will
see the lesions already.21
(Emphasis supplied)
Again, the foregoing testimonies of Dr. Cereno went
unchallenged or unrebutted. The parents of Raymond
were not able to present any expert witness to dispute
the course of action taken by the petitioners.

79

Causation Not Proven

In medical negligence cases, it is settled that the
complainant has the burden of establishing breach of
duty on the part of the doctors or surgeons. It must be
proven that such breach of duty has a causal connection
to the resulting death of the patient.22 A verdict in
malpractice action cannot be based on speculation or
conjecture. Causation must be proven within a
reasonable medical probability based upon competent
expert testimony.
The parents of Raymond failed in this respect. Aside
from their failure to prove negligence on the part of the
petitioners, they also failed to prove that it was
petitioners fault that caused the injury. Their cause
stands on the mere assumption that Raymonds life
would have been saved had petitioner surgeons
immediately operated on him; had the blood been
cross-matched immediately and had the blood been
transfused immediately. There was, however, no proof
presented that Raymonds life would have been saved
had those things been done. Those are mere
assumptions and cannot guarantee their desired result.
Such cannot be made basis of a decision in this case,
especially considering that the name, reputation and
career of petitioners are at stake.
The Court understands the parents grief over their
sons death.1wphi1 That notwithstanding, it cannot
hold petitioners liable. It was noted that Raymond, who
was a victim of a stabbing incident, had multiple
wounds when brought to the hospital. Upon opening of
his thoracic cavity, it was discovered that there was
gross bleeding inside the body. Thus, the need for
petitioners to control first what was causing the
bleeding. Despite the situation that evening i.e.
numerous patients being brought to the hospital for
emergency treatment considering that it was the height
of the Peafrancia Fiesta, it was evident that petitioners
exerted earnest efforts to save the life of Raymond. It
was just unfortunate that the loss of his life was not
prevented.
In the case of Dr. Cruz v. CA, it was held that "[d]octors
are protected by a special law. They are not guarantors
of care. They do not even warrant a good result. They
are not insurers against mishaps or unusual
consequences. Furthermore, they are not liable for
honest mistake of judgment"23
This Court affirms the ruling of the CA that the BRMC is
not an indispensible party. The core issue as agreed
upon by the parties and stated in the pre-trial order is
whether petitioners were negligent in the performance
of their duties. It pertains to acts/omissions of

petitioners for which they could be held liable. The

cause of action against petitioners may be prosecuted
fully and the determination of their liability may be
arrived at without impleading the hospital where they
are employed. As such, the BRMC cannot be considered
an indispensible party without whom no final
determination can be had of an action.24
IN THE LIGHT OF THE FOREGOING, the instant
Petition for Review on Certiorari is
hereby GRANTED. The Court of Appeals decision dated
21 February 2005 in CA-G.R. CV No. 65800 is
hereby REVERSED and SET ASIDE. No costs.

Dr. EMMANUEL JARCIA, Jr. and Dr. MARILOU

BASTAN, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
MENDOZA, J.:
Even early on, patients have consigned their lives to the
skill of their doctors. Time and again, it can be said that
the most important goal of the medical profession is the
preservation of life and health of the people. Corollarily,
when a physician departs from his sacred duty and
endangers instead the life of his patient, he must be
made liable for the resulting injury. This Court, as this
case would show, cannot and will not let the act go
unpunished.1
This is a petition for review under Rule 45 of the Rules of
Court challenging the August 29, 2008 Decision 2 of the
Court of Appeals (CA), and its May 19, 2009
Resolution3 in CA-G.R. CR No. 29559, dismissing the
appeal and affirming in toto the June 14, 2005
Decision4 of the Regional Trial Court, Branch 43,
Manila (RTC), finding the accused guilty beyond
reasonable doubt of simple imprudence resulting to
serious physical injuries.
THE FACTS
Belinda Santiago (Mrs. Santiago) lodged a complaint
with the National Bureau of Investigation (NBI) against
the petitioners, Dr. Emmanuel Jarcia, Jr. (Dr. Jarcia) and
Dr. Marilou Bastan (Dr. Bastan), for their alleged neglect
of professional duty which caused her son, Roy Alfonso
Santiago (Roy Jr.), to suffer serious physical injuries.
Upon investigation, the NBI found that Roy Jr. was hit by
a taxicab; that he was rushed to the Manila Doctors
Hospital for an emergency medical treatment; that an X-

80

ray of the victims ankle was ordered; that the X-ray

result showed no fracture as read by Dr. Jarcia; that Dr.
Bastan entered the emergency room (ER) and, after
conducting her own examination of the victim, informed
Mrs. Santiago that since it was only the ankle that was
hit, there was no need to examine the upper leg; that
eleven (11) days later, Roy Jr. developed fever, swelling
of the right leg and misalignment of the right foot; that
Mrs. Santiago brought him back to the hospital; and that
the X-ray revealed a right mid-tibial fracture and a linear
hairline fracture in the shaft of the bone.
The NBI indorsed the matter to the Office of the City
Prosecutor of Manila for preliminary investigation.
Probable cause was found and a criminal case for
reckless imprudence resulting to serious physical
injuries, was filed against Dr. Jarcia, Dr. Bastan and Dr.
Pamittan,5 before the RTC, docketed as Criminal Case
No. 01-196646.
On June 14, 2005, the RTC found the petitioners guilty
beyond reasonable doubt of the crime of Simple
Imprudence Resulting to Serious Physical Injuries. The
decretal portion of the RTC decision reads:
WHEREFORE, premises considered, the Court finds
accused DR. EMMANUEL JARCIA, JR. and DR. MARILOU
BASTAN GUILTY beyond reasonable doubt of the crime
of SIMPLE IMPRUDENCE RESULTING TO SERIOUS
PHYSICAL INJURIES and are hereby sentenced to suffer
the penalty of ONE (1) MONTH and ONE (1) DAY to TWO
(2) MONTHS and to indemnify MRS. BELINDA SANTIAGO
the amount of P 3,850.00 representing medical
expenses without subsidiary imprisonment in case of
insolvency and to pay the costs.
It appearing that Dr. Pamittan has not been
apprehended nor voluntarily surrendered despite
warrant issued for her arrest, let warrant be issued for
her arrest and the case against her be ARCHIVED, to be
reinstated upon her apprehension.
SO ORDERED.6
The RTC explained:
After a thorough and in depth evaluation of the
evidence adduced by the prosecution and the defense,
this court finds that the evidence of the prosecution is
the more credible, concrete and sufficient to create that
moral certainty in the mind of the Court that accused
herein [are] criminally responsible. The Court believes
that accused are negligent when both failed to exercise
the necessary and reasonable prudence in ascertaining
the extent of injury of Alfonso Santiago, Jr.

However, the negligence exhibited by the two doctors

does not approximate negligence of a reckless nature
but merely amounts to simple imprudence. Simple
imprudence consists in the lack of precaution displayed
in those cases in which the damage impending to be
caused is not the immediate nor the danger clearly
manifest. The elements of simple imprudence are as
follows.
1. that there is lack of precaution on the part of
the offender; and
2. that the damage impending to be caused is
not immediate of the danger is not clearly
manifest.
Considering all the evidence on record, The Court finds
the accused guilty for simple imprudence resulting to
physical injuries. Under Article 365 of the Revised Penal
Code, the penalty provided for is arresto mayor in its
minimum period.7
Dissatisfied, the petitioners appealed to the CA.
As earlier stated, the CA affirmed the RTC decision in
toto. The August 29, 2008 Decision of the CA pertinently
reads:
This Court holds concurrently and finds the foregoing
circumstances sufficient to sustain a judgment of
conviction against the accused-appellants for the crime
of simple imprudence resulting in serious physical
injuries. The elements of imprudence are: (1) that the
offender does or fails to do an act; (2) that the doing or
the failure to do that act is voluntary; (3) that it be
without malice; (4) that material damage results from
the imprudence; and (5) that there is inexcusable lack
of precaution on the part of the offender, taking into
consideration his employment or occupation, degree of
intelligence, physical condition, and other
circumstances regarding persons, time and place.
Whether or not Dr. Jarcia and Dr. Bastan had committed
an "inexcusable lack of precaution" in the treatment of
their patient is to be determined according to the
standard of care observed by other members of the
profession in good standing under similar
circumstances, bearing in mind the advanced state of
the profession at the time of treatment or the present
state of medical science. In the case of Leonila GarciaRueda v. Pascasio, the Supreme Court stated that, in
accepting a case, a doctor in effect represents that,
having the needed training and skill possessed by
physicians and surgeons practicing in the same field, he
will employ such training, care and skill in the treatment
of his patients. He therefore has a duty to use at least

81

the same level of care that any other reasonably

competent doctor would use to treat a condition under
the same circumstances.
In litigations involving medical negligence, the plaintiff
has the burden of establishing accused-appellants
negligence, and for a reasonable conclusion of
negligence, there must be proof of breach of duty on
the part of the physician as well as a causal connection
of such breach and the resulting injury of his patient.
The connection between the negligence and the injury
must be a direct and natural sequence of events,
unbroken by intervening efficient causes. In other
words, the negligence must be the proximate cause of
the injury. Negligence, no matter in what it consists,
cannot create a right of action unless it is the proximate
cause of the injury complained of. The proximate cause
of an injury is that cause which, in natural and
continuous sequence, unbroken by any efficient
intervening cause, produces the injury and without
which the result would not have occurred.

Fiscal Formoso:
Q: Now, he is an intern did you not consult the doctors,
Dr. Jarcia or Dra. Pamittan to confirm whether you
should go home or not?
A: Dra. Pamittan was inside the cubicle of the nurses
and I asked her, you let us go home and you dont even
clean the wounds of my son.
Q: And what did she [tell] you?
A: They told me they will call a resident doctor, sir.
xxx

xxx

xxx

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

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

In the case at bench, the accused-appellants questioned

the imputation against them and argued that there is no
causal connection between their failure to diagnose the
fracture and the injury sustained by Roy.
We are not convinced.
The prosecution is however after the cause which
prolonged the pain and suffering of Roy and not on the
failure of the accused-appellants to correctly diagnose
the extent of the injury sustained by Roy.

A: Yes, sir.
Q: What did you [tell] her?
A: I told her, sir, while she was cleaning the wounds of
my son, are you not going to x-ray up to the knee
because my son was complaining pain from his ankle up
to the middle part of the right leg.
Q: And what did she tell you?

For a more logical presentation of the discussion, we

shall first consider the applicability of the doctrine of res
ipsa loquitur to the instant case. Res ipsa loquitur is a
Latin phrase which literally means "the thing or the
transaction speaks for itself. The doctrine of res ipsa
loquitur is simply a recognition of the postulate that, as
a matter of common knowledge and experience, the
very nature of certain types of occurrences may justify
an inference of negligence on the part of the person
who controls the instrumentality causing the injury in
the absence of some explanation by the accusedappellant 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.

A: According to Dra. Bastan, there is no need to x-ray

because it was the ankle part that was run over.

The specific acts of negligence was narrated by Mrs.

Santiago who accompanied her son during the latters
ordeal at the hospital. She testified as follows:

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

return my son.

Q: What did you do or tell her?

A: I told her, sir, why is it that they did not examine[x]
the whole leg. They just lifted the pants of my son.
Q: So you mean to say there was no treatment made at
all?
A: None, sir.
xxx

xxx

xxx

xxx

xxx

xxx

xxx

xxx

xxx

82

xxx

xxx

xxx

Q: And you were present when they were called?

A: Yes, sir.
Q: And what was discussed then by Sis. Retoria?
A: When they were there they admitted that they have
mistakes, sir.
Still, before resort to the doctrine may be allowed, the
following requisites must be satisfactorily shown:
1. The accident is of a kind which ordinarily does
not occur in the absence of someones
negligence;
2. It is caused by an instrumentality within the
exclusive control of the defendant or
defendants; and
3. The possibility of contributing conduct which
would make the plaintiff responsible is
eliminated.
In the above requisites, the fundamental element is the
"control of the instrumentality" which caused the
damage. Such element of control must be shown to be
within the dominion of the accused-appellants. In order
to have the benefit of the rule, a plaintiff, in addition to
proving injury or damage, must show a situation where
it is applicable and must establish that the essential
elements of the doctrine were present in a particular
incident. The early treatment of the leg of Roy would
have lessen his suffering if not entirely relieve him from
the fracture. A boy of tender age whose leg was hit by a
vehicle would engender a well-founded belief that his
condition may worsen without proper medical attention.
As junior residents who only practice general surgery
and without specialization with the case consulted
before them, they should have referred the matter to a
specialist. This omission alone constitutes simple
imprudence on their part. When Mrs. Santiago insisted
on having another x-ray of her child on the upper part of
his leg, they refused to do so. The mother would not
have asked them if they had no exclusive control or
prerogative to request an x-ray test. Such is a fact
because a radiologist would only conduct the x-ray test
upon request of a physician.
The testimony of Mrs. Santiago was corroborated by a
bone specialist Dr. Tacata. He further testified based on
his personal knowledge, and not as an expert, as he
examined himself the child Roy. He testified as follows:

Fiscal Macapagal:
Q: And was that the correct respon[se] to the medical
problem that was presented to Dr. Jarcia and Dra.
Bastan?
A: I would say at that stage, yes. Because they have
presented the patient and the history. "At sabi nila,
nadaanan lang po ito." And then, considering their year
of residency they are still junior residents, and they are
not also orthopedic residents but general surgery
residents, its entirely different thing. Because if you are
an orthopedic resident, I am not trying to saybut if I
were an orthopedic resident, there would be more
precise and accurate decision compare to a general
surgery resident in so far as involved.
Q: You mean to say there is no supervisor attending the
emergency room?
A: At the emergency room, at the Manila Doctors
Hospital, the supervisor there is a consultant that
usually comes from a family medicine. They see where a
certain patient have to go and then if they cannot
manage it, they refer it to the consultant on duty. Now
at that time, I dont [know] why they dont.Because at
that time, I think, it is the decision. Since the x-rays.
Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a
patient has been treated or operated upon with a
reasonable degree of skill and care. However, testimony
as to the statements and acts of physicians, external
appearances, and manifest conditions which are
observable by any one may be given by non-expert
witnesses. Hence, in cases where the res ipsa loquitur is
applicable, the court is permitted to find a physician
negligent upon proper proof of injury to the patient,
without the aid of expert testimony, where the court
from its fund of common knowledge can determine the
proper standard of care. Where common knowledge and
experience teach that a resulting injury would not have
occurred to the patient if due care had been exercised,
an inference of negligence may be drawn giving rise to
an application of the doctrine of res ipsa
loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and
why it occurred. In the case at bench, we give credence
to the testimony of Mrs. Santiago by applying the
doctrine of res ipsa loquitur.
Res ipsa loquitur is not a rigid or ordinary doctrine to be
perfunctorily used but a rule to be cautiously applied,
depending upon the circumstances of each case. It is
generally restricted to situations in malpractice cases
where a layman is able to say, as a matter of common

83

knowledge and observation, that the consequences of

professional care were not as such as would ordinarily
have followed if due care had been exercised. A
distinction must be made between the failure to secure
results and the occurrence of something more unusual
and not ordinarily found if the service or treatment
rendered followed the usual procedure of those skilled in
that particular practice. The latter circumstance is the
primordial issue that confronted this Court and we find
application of the doctrine of res ipsa loquitur to be in
order.
WHEREFORE, in view of the foregoing, the appeal in
this case is hereby DISMISSED and the assailed
decision of the trial court finding accused-appellants
guilty beyond reasonable doubt of simple imprudence
resulting in serious physical injuries is
hereby AFFIRMED in toto.
SO ORDERED.8
The petitioners filed a motion for reconsideration, but it
was denied by the CA in its May 19, 2009 Resolution.
Hence, this petition.
The petitioners pray for the reversal of the decision of
both the RTC and the CA anchored on the following
GROUNDS1. IN AFFIRMING ACCUSED-PETITIONERS
CONVICTION, THE COURT OF APPEALS
ERRED IN NOT HOLDING THAT THE ACTUAL,
DIRECT, IMMEDIATE, AND PROXIMATE
CAUSE OF THE PHYSICAL INJURY OF THE
PATIENT (FRACTURE OF THE LEG BONE OR
TIBIA), WHICH REQUIRED MEDICAL
ATTENDANCE FOR MORE THAN THIRTY (30)
DAYS AND INCAPACITATED HIM FROM
PERFORMING HIS CUSTOMARY DUTY
DURING THE SAME PERIOD OF TIME, WAS
THE VEHICULAR ACCIDENT WHERE THE
PATIENTS RIGHT LEG WAS HIT BY A TAXI,
NOT THE FAILURE OF THE ACCUSEDPETITIONERS TO SUBJECT THE PATIENTS
WHOLE LEG TO AN X-RAY EXAMINATION.
2. THE COURT OF APPEALS ERRED IN
DISREGARDING ESTABLISHED FACTS
CLEARLY NEGATING PETITIONERS ALLEGED
NEGLIGENCE OR IMPRUDENCE.
SIGNIFICANTLY, THE COURT OF APPEALS
UNJUSTIFIABLY DISREGARDED THE
OPINION OF THE PROSECUTIONS EXPERT
WITNESS, DR. CIRILO TACATA, THAT

PETITIONERS WERE NOT GUILTY OF

NEGLIGENCE OR IMPRUDENCE
COMPLAINED OF.
3. THE COURT OF APPEALS ERRED IN
HOLDING THAT THE FAILURE OF
PETITIONERS TO SUBJECT THE PATIENTS
WHOLE LEG TO AN X-RAY EXAMINATION
PROLONGED THE PAIN AND SUFFERING OF
THE PATIENT, SUCH CONCLUSION BEING
UNSUPPORTED BY, AND EVEN CONTRARY
TO, THE EVIDENCE ON RECORD.
4. ASSUMING ARGUENDO THAT THE
PATIENT EXPERIENCED PROLONGED PAIN
AND SUFFERING, THE COURT OF APPEALS
ERRED IN NOT HOLDING THAT THE
ALLEGED PAIN AND SUFFERING WERE DUE
TO THE UNJUSTIFIED FAILURE OF THE
PATIENTS MOTHER, A NURSE HERSELF, TO
IMMEDIATELY BRING THE PATIENT BACK TO
THE HOSPITAL, AS ADVISED BY THE
PETITIONERS, AFTER HE COMPLAINED OF
SEVERE PAIN IN HIS RIGHT LEG WHEN HE
REACHED HOME AFTER HE WAS SEEN BY
PETITIONERS AT THE HOSPITAL. THUS, THE
PATIENTS ALLEGED INJURY (PROLONGED
PAIN AND SUFFERING) WAS DUE TO HIS
OWN MOTHERS ACT OR OMISSION.
5. THE COURT OF APPEALS ERRED IN NOT
HOLDING THAT NO PHYSICIAN-PATIENT
RELATIONSHIP EXISTED BETWEEN
PETITIONERS AND PATIENT ALFONSO
SANTIAGO, JR., PETITIONERS NOT BEING
THE LATTERS ATTENDING PHYSICIAN AS
THEY WERE MERELY REQUESTED BY THE
EMERGENCY ROOM (ER) NURSE TO SEE THE
PATIENT WHILE THEY WERE PASSING BY
THE ER FOR THEIR LUNCH.
6. THE COURT OF APPEALS GRAVELY ERRED
IN NOT ACQUITTING ACCUSEDPETITIONERS OF THE CRIME CHARGED."9
The foregoing can be synthesized into two basic issues:
[1] whether or not the doctrine of res ipsa loquitur is
applicable in this case; and [2] whether or not the
petitioners are liable for criminal negligence.
THE COURTS RULING
The CA is correct in finding that there was negligence on
the part of the petitioners. After a perusal of the
records, however, the Court is not convinced that the
petitioners are guilty of criminal negligence complained

84

of. The Court is also of the view that the CA erred in

applying the doctrine of res ipsa loquitur in this
particular case.
As to the Application of The Doctrine of Res Ipsa
Loquitur
This doctrine of res ipsa loquitur means "Where the
thing which causes injury is shown to be under the
management of the defendant, and the accident is such
as in the ordinary course of things does not happen if
those who have the management use proper care, it
affords reasonable evidence, in the absence of an
explanation by the defendant, that the accident arose
from want of care." The Black's Law Dictionary defines
the said doctrine. Thus:
The thing speaks for itself. Rebuttable presumption or
inference that defendant was negligent, which arises
upon proof that the instrumentality causing injury was
in defendant's exclusive control, and that the accident
was one which ordinarily does not happen in absence of
negligence. Res ipsa loquitur is a rule of evidence
whereby negligence of the alleged wrongdoer may be
inferred from the mere fact that the accident happened
provided the character of the accident and
circumstances attending it lead reasonably to belief that
in the absence of negligence it would not have occurred
and that thing which caused injury is shown to have
been under the management and control of the alleged
wrongdoer. Under this doctrine, the happening of an
injury permits an inference of negligence where plaintiff
produces substantial evidence that the injury was
caused by an agency or instrumentality under the
exclusive control and management of defendant, and
that the occurrence was such that in the ordinary course
of things would not happen if reasonable care had been
used.10
The doctrine of res ipsa loquitur as a rule of evidence is
unusual to the law of negligence which recognizes
thatprima facie negligence may be established without
direct proof and furnishes a substitute for specific proof
of negligence. The doctrine, however, is not a rule of
substantive law, but merely a mode of proof or a mere
procedural convenience. The rule, when applicable to
the facts and circumstances of a given case, is not
meant to and does not dispense with the requirement of
proof of culpable negligence on the party charged. It
merely determines and regulates what shall
be prima facie evidence thereof and helps the plaintiff in
proving a breach of the duty. The doctrine can be
invoked when and only when, under the circumstances
involved, direct evidence is absent and not readily
available.11

The requisites for the application of the doctrine of res

ipsa loquitur are: (1) the accident was of a kind which
does not ordinarily occur unless someone is negligent;
(2) the instrumentality or agency which caused the
injury was under the exclusive control of the person in
charge; and (3) the injury suffered must not have been
due to any voluntary action or contribution of the
person injured.12
In this case, the circumstances that caused patient Roy
Jr.s injury and the series of tests that were supposed to
be undergone by him to determine the extent of the
injury suffered were not under the exclusive control of
Drs. Jarcia and Bastan. It was established that they are
mere residents of the Manila Doctors Hospital at that
time who attended to the victim at the emergency
room.13 While it may be true that the circumstances
pointed out by the courts below seem doubtless to
constitute reckless imprudence on the part of the
petitioners, this conclusion is still best achieved, not
through the scholarly assumptions of a layman like the
patients mother, but by the unquestionable knowledge
of expert witness/es. As to whether the petitioners have
exercised the requisite degree of skill and care in
treating patient Roy, Jr. is generally a matter of expert
opinion.
As to Dr. Jarcia and Dr. Bastans negligence
The totality of the evidence on record clearly points to
the negligence of the petitioners. At the risk of being
repetitious, the Court, however, is not satisfied that Dr.
Jarcia and Dr. Bastan are criminally negligent in this
case.
Negligence is defined as the failure to observe for the
protection of the interests of another person that degree
of care, precaution, and vigilance which the
circumstances justly demand, whereby such other
person suffers injury.14
Reckless imprudence consists of voluntarily doing or
failing to do, without malice, an act from which material
damage results by reason of an inexcusable lack of
precaution on the part of the person performing or
failing to perform such act.15
The elements of simple negligence are: (1) that there is
lack of precaution on the part of the offender, and (2)
that the damage impending to be caused is not
immediate or the danger is not clearly manifest.16
In this case, the Court is not convinced with moral
certainty that the petitioners are guilty of reckless
imprudence or simple negligence. The elements thereof

85

were not proved by the prosecution beyond reasonable

doubt.

Q: Mid-tibial, will you please point to us, doctor, where

the tibial is?

The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a

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

(Witness pointing to his lower leg)

Q: Will you please tell us, for the record, doctor, what is
your specialization?

A: Yes, actually, that was a routine part of our

examination that once a patient comes in, before we
actually examine the patient, we request for a detailed
history. If it is an accident, then, we request for the
exact mechanism of injuries.

A: At present I am the chairman department of

orthopedic in UP-PGH and I had special training in
pediatric orthopedic for two (2) years.
Q: In June 1998, doctor, what was your position and
what was your specialization at that time?
A: Since 1980, I have been specialist in pediatric
orthopedic.
Q: When Alfonso Santiago, Jr. was brought to you by his
mother, what did you do by way of physicians as first
step?
A: As usual, I examined the patient physically and, at
that time as I have said, the patient could not walk so I
[began] to suspect that probably he sustained a fracture
as a result of a vehicular accident. So I examined the
patient at that time, the involved leg, I dont know if
that is left or right, the involved leg then was swollen
and the patient could not walk, so I requested for the xray of [the] lower leg.
Q: What part of the leg, doctor, did you request to be
examined?
A: If we refer for an x-ray, usually, we suspect a fracture
whether in approximal, middle or lebistal tinial, we
usually x-ray the entire extremity.
Q: And what was the result?
A: Well, I can say that it was a spiral fracture of the midtibial, it is the bigger bone of the leg.
Q: And when you say spiral, doctor, how long was this
fracture?
A: When we say spiral, it is a sort of letter S, the length
was about six (6) to eight (8) centimeters.

A: The tibial is here, there are two bones here, the

bigger one is the tibial and the smaller one is the fibula.
The bigger one is the one that get fractured.
Q: And in the course of your examination of Alfonso
Santiago, Jr. did you ask for the history of such injury?

Q: And as far as you can recall, Doctor, what was the

history of that injury that was told to you?
A: The patient was sideswiped, I dont know if it is a car,
but it is a vehicular accident.
Q: Who did you interview?
A: The mother.
Q: How about the child himself, Alfonso Santiago, Jr.?
A: Normally, we do not interview the child because,
usually, at his age, the answers are not accurate. So, it
was the mother that I interviewed.
Q: And were you informed also of his early medication
that was administered on Alfonso Santiago, Jr.?
A: No, not actually medication. I was informed that this
patient was seen initially at the emergency room by the
two (2) physicians that you just mentioned, Dr. Jarcia
and Dra. Bastan, that time who happened to be my
residents who were [on] duty at the emergency room.
xxxx
A: At the emergency room, at the Manila Doctors
Hospital, the supervisor there is a consultant that
usually comes from a family medicine. They see where a
certain patient have to go and then if they cannot
manage it, they refer it to the consultant on duty. Now
at that time, I dont why they dont Because at that
time, I think, it is the decision. Since the x-rays
xxx

86

Q: You also said, Doctor, that Dr. Jarcia and Dra. Bastan
are not even an orthopedic specialist.
A: They are general surgeon residents. You have
to man[x] the emergency room, including
neurology, orthopedic, general surgery, they see
everything at the emergency room.
xxxx
Q: But if initially, Alfonso Santiago, Jr. and his case was
presented to you at the emergency room, you would
have subjected the entire foot to x-ray even if the
history that was given to Dr. Jarcia and Dra. Bastan is
the same?
A: I could not directly say yes, because it would still
depend on my examination, we cannot subject the
whole body for x-ray if we think that the damaged was
only the leg.
Q: Not the entire body but the entire leg?
A: I think, if my examination requires it, I would.
Q: So, you would conduct first an examination?
A: Yes, sir.
Q: And do you think that with that examination that you
would have conducted you would discover the necessity
subjecting the entire foot for x-ray?
A: It is also possible but according to them, the foot and
the ankle were swollen and not the leg, which
sometimes normally happens that the actual fractured
bone do not get swollen.
xxxx
Q: Doctor, if you know that the patient sustained
a fracture on the ankle and on the foot and the
history that was told to you is the region that was
hit is the region of the foot, will the doctor
subject the entire leg for x-ray?
A: I am an orthopedic surgeon, you have to
subject an x-ray of the leg. Because you have to
consider the kind of fracture that the patient
sustained would you say the exact mechanism of
injury. For example spiral, "paikot yung bale nya,"
so it was possible that the leg was run over, the
patient fell, and it got twisted. Thats why the leg
seems to be fractured.17 [Emphases supplied]

It can be gleaned from the testimony of Dr. Tacata that a

thorough examination was not performed on Roy Jr. As
residents on duty at the emergency room, Dr. Jarcia and
Dr. Bastan were expected to know the medical protocol
in treating leg fractures and in attending to victims of
car accidents. There was, however, no precise evidence
and scientific explanation pointing to the fact that the
delay in the application of the cast to the patients
fractured leg because of failure to immediately diagnose
the specific injury of the patient, prolonged the pain of
the child or aggravated his condition or even caused
further complications. Any person may opine that had
patient Roy Jr. been treated properly and given the
extensive X-ray examination, the extent and severity of
the injury, spiral fracture of the mid-tibial part or the
bigger bone of the leg, could have been detected early
on and the prolonged pain and suffering of Roy Jr. could
have been prevented. But still, that opinion, even how
logical it may seem would not, and could not, be enough
basis to hold one criminally liable; thus, a reasonable
doubt as to the petitioners guilt.
Although the Court sympathizes with the plight of the
mother and the child in this case, the Court is bound by
the dictates of justice which hold inviolable the right of
the accused to be presumed innocent until proven guilty
beyond reasonable doubt. The Court, nevertheless, finds
the petitioners civilly liable for their failure to sufficiently
attend to Roy Jr.s medical needs when the latter was
rushed to the ER, for while a criminal conviction requires
proof beyond reasonable doubt, only a preponderance
of evidence is required to establish civil liability. Taken
into account also was the fact that there was no bad
faith on their part.
Dr. Jarcia and Dr. Bastan cannot pass on the liability to
the taxi driver who hit the victim. It may be true that the
actual, direct, immediate, and proximate cause of the
injury (fracture of the leg bone or tibia) of Roy Jr. was
the vehicular accident when he was hit by a taxi. The
petitioners, however, cannot simply invoke such fact
alone to excuse themselves from any liability. If this
would be so, doctors would have a ready defense should
they fail to do their job in attending to victims of hitand-run, maltreatment, and other crimes of violence in
which the actual, direct, immediate, and proximate
cause of the injury is indubitably the act of the
perpetrator/s.
In failing to perform an extensive medical examination
to determine the extent of Roy Jr.s injuries, Dr. Jarcia
and Dr. Bastan were remiss of their duties as members
of the medical profession. Assuming for the sake of
argument that they did not have the capacity to make
such thorough evaluation at that stage, they should
have referred the patient to another doctor with

87

sufficient training and experience instead of assuring

him and his mother that everything was all right.
This Court cannot also stamp its imprimatur on the
petitioners contention that no physician-patient
relationship existed between them and patient Roy Jr.,
since they were not his attending physicians at that
time. They claim that they were merely requested by
the ER nurse to see the patient while they were passing
by the ER for their lunch. Firstly, this issue was never
raised during the trial at the RTC or even before the CA.
The petitioners, therefore, raise the want of doctorpatient relationship for the first time on appeal with this
Court. It has been settled that "issues raised for the first
time on appeal cannot be considered because a party is
not permitted to change his theory on appeal. To allow
him to do so is unfair to the other party and offensive to
the rules of fair play, justice and due process." 18 Stated
differently, basic considerations of due process dictate
that theories, issues and arguments not brought to the
attention of the trial court need not be, and ordinarily
will not be, considered by a reviewing court.19
Assuming again for the sake of argument that the
petitioners may still raise this issue of "no physician
patient relationship," the Court finds and so holds that
there was a "physicianpatient" relationship in this case.
In the case of Lucas v. Tuao,20 the Court wrote that
"[w]hen a patient engages the services of a physician, a
physician-patient relationship is generated. And in
accepting a case, the physician, for all intents and
purposes, represents that he has the needed training
and skill possessed by physicians and surgeons
practicing in the same field; and that he will employ
such training, care, and skill in the treatment of the
patient. Thus, in treating his patient, a physician is
under a duty to exercise that degree of care, skill and
diligence which physicians in the same general
neighborhood and in the same general line of practice
ordinarily possess and exercise in like cases. Stated
otherwise, the physician has the obligation to use at
least the same level of care that any other reasonably
competent physician would use to treat the condition
under similar circumstances."
Indubitably, a physician-patient relationship exists
between the petitioners and patient Roy Jr. Notably, the
latter and his mother went to the ER for an immediate
medical attention. The petitioners allegedly passed by
and were requested to attend to the victim (contrary to
the testimony of Dr. Tacata that they were, at that time,
residents on duty at the ER).21 They obliged and
examined the victim, and later assured the mother that
everything was fine and that they could go home.
Clearly, a physician-patient relationship was established
between the petitioners and the patient Roy Jr.

To repeat for clarity and emphasis, if these doctors knew

from the start that they were not in the position to
attend to Roy Jr., a vehicular accident victim, with the
degree of diligence and commitment expected of every
doctor in a case like this, they should have not made a
baseless assurance that everything was all right. By
doing so, they deprived Roy Jr. of adequate medical
attention that placed him in a more dangerous situation
than he was already in. What petitioners should have
done, and could have done, was to refer Roy Jr. to
another doctor who could competently and thoroughly
examine his injuries.
All told, the petitioners were, indeed, negligent but only
civilly, and not criminally, liable as the facts show.
Article II, Section 1 of the Code of Medical Ethics of the
Medical Profession in the Philippines states:
A physician should attend to his patients faithfully and
conscientiously. He should secure for them all possible
benefits that may depend upon his professional skill and
care. As the sole tribunal to adjudge the physicians
failure to fulfill his obligation to his patients is, in most
cases, his own conscience, violation of this rule on his
part is discreditable and inexcusable.22
Established medical procedures and practices, though in
constant instability, are devised for the purpose of
preventing complications. In this case, the petitioners
failed to observe the most prudent medical procedure
under the circumstances to prevent the complications
suffered by a child of tender age.
As to the Award of Damages
While no criminal negligence was found in the
petitioners failure to administer the necessary medical
attention to Roy Jr., the Court holds them civilly liable for
the resulting damages to their patient. While it was the
taxi driver who ran over the foot or leg of Roy Jr., their
negligence was doubtless contributory.
It appears undisputed that the amount of P 3,850.00, as
expenses incurred by patient Roy Jr., was adequately
supported by receipts. The Court, therefore, finds the
petitioners liable to pay this amount by way of actual
damages.
The Court is aware that no amount of compassion can
suffice to ease the sorrow felt by the family of the child
at that time. Certainly, the award of moral and
exemplary damages in favor of Roy Jr. in the amount
of P 100,000.00 and P 50,000.00, respectively, is proper
in this case.

88

It is settled that moral damages are not punitive in

nature, but are designed to compensate and alleviate in
some way the physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar
injury unjustly inflicted on a person. Intended for the
restoration of the psychological or emotional status quo
ante, the award of moral damages is designed to
compensate emotional injury suffered, not to impose a
penalty on the wrongdoer.23
The Court, likewise, finds the petitioners also liable for
exemplary damages in the said amount.1wphi1 Article
2229 of the Civil Code provides that exemplary
damages may be imposed by way of example or
correction for the public good.
WHEREFORE, the petition is PARTLY GRANTED. The
Decision of the Court of Appeals dated August 29, 2008
isREVERSED and SET ASIDE. A new judgment is
entered ACQUITTING Dr. Emmanuel Jarcia, Jr. and Dr.
Marilou Bastan of the crime of reckless imprudence
resulting to serious physical injuries but declaring them
civilly liable in the amounts of:
(1) P 3,850.00 as actual damages;
(2) P 100,000.00 as moral damages;
(3) P 50,000.00 as exemplary damages; and
(4) Costs of the suit.
with interest at the rate of 6% per annum from the date
of the filing of the Information. The rate shall be 12%
interest per annum from the finality of judgment until
fully paid.

DR. FERNANDO P. SOLIDUM, Petitioner,

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

The antecedents are as follows:

Gerald Albert Gercayo (Gerald) was born on June 2,
19922 with an imperforate anus. Two days after his birth,
Gerald underwent colostomy, a surgical procedure to
bring one end of the large intestine out through the
abdominal wall,3 enabling him to excrete through a
colostomy bag attached to the side of his body.4
On May 17, 1995, Gerald, then three years old, was
admitted at the Ospital ng Maynila for a pull-through
operation.5 Dr. Leandro Resurreccion headed the
surgical team, and was assisted by Dr. Joselito Luceo,
Dr. Donatella Valea and Dr. Joseph Tibio. The
anesthesiologists included Dr. Marichu Abella, Dr. Arnel
Razon and petitioner Dr. Fernando Solidum (Dr.
Solidum).6 During the operation, Gerald experienced
bradycardia,7 and went into a coma.8 His coma lasted
for two weeks,9 but he regained consciousness only
after a month.10 He could no longer see, hear or move.11
Agitated by her sons helpless and unexpected
condition, Ma. Luz Gercayo (Luz) lodged a complaint for
reckless imprudence resulting in serious physical
injuries with the City Prosecutors Office of Manila
against the attending physicians.12
Upon a finding of probable cause, the City Prosecutors
Office filed an information solely against Dr.
Solidum,13alleging:
That on or about May 17, 1995, in the City of Manila,
Philippines, the said accused, being then an
anesthesiologist at the Ospital ng Maynila, Malate, this
City, and as such was tasked to administer the
anesthesia on three-year old baby boy GERALD ALBERT
GERCAYO, represented by his mother, MA. LUZ
GERCAYO, the former having been born with an
imperforate anus [no anal opening] and was to undergo
an operation for anal opening [pull through operation],
did then and there willfully, unlawfully and feloniously
fail and neglect to use the care and diligence as the
best of his judgment would dictate under said
circumstance, by failing to monitor and regulate
properly the levels of anesthesia administered to said
GERALD ALBERT GERCAYO and using 100% halothane
and other anesthetic medications, causing as a
consequence of his said carelessness and negligence,
said GERALD ALBERT GERCAYO suffered a cardiac arrest
and consequently a defect called hypoxic
encephalopathy meaning insufficient oxygen supply in
the brain, thereby rendering said GERALD ALBERT
GERCAYO incapable of moving his body, seeing,
speaking or hearing, to his damage and prejudice.
Contrary to law.14

89

The case was initially filed in the Metropolitan Trial Court

of Manila, but was transferred to the RTC pursuant to
Section 5 of Republic Act No. 8369 (The Family Courts
Act of 1997),15 where it was docketed as Criminal Case
No. 01-190889.
Judgment of the RTC
On July 19, 2004, the RTC rendered its judgment finding
Dr. Solidum guilty beyond reasonable doubt of reckless
imprudence resulting to serious physical
injuries,16 decreeing:
WHEREFORE, premises considered, the Court finds
accused DR. FERNANDO P. SOLIDUM GUILTY beyond
reasonable doubt as principal of the crime charged and
is hereby sentenced to suffer the indeterminate penalty
of TWO (2) MONTHS and ONE (1) DAY of arresto mayor
as minimum to ONE (1) YEAR, ONE (1) MONTH and TEN
(10) DAYS of prision correccional as maximum and to
indemnify, jointly and severally with the Ospital ng
Maynila, Dr. Anita So and Dr. Marichu Abella, private
complainant Luz Gercayo, the amount of P500,000.00
as moral damages and P100,000.00 as exemplary
damages and to pay the costs.
Accordingly, the bond posted by the accused for his
provisional liberty is hereby CANCELLED.
SO ORDERED.17
Upon motion of Dr. Anita So and Dr. Marichu Abella to
reconsider their solidary liability,18 the RTC excluded
them from solidary liability as to the damages,
modifying its decision as follows:
WHEREFORE, premises considered, the Court finds
accused Dr. Fernando Solidum, guilty beyond
reasonable doubt as principal of the crime charged and
is hereby sentenced to suffer the indeterminate penalty
of two (2) months and one (1) day of arresto mayor as
minimum to one (1) year, one (1) month and ten (10)
days of prision correccional as maximum and to
indemnify jointly and severally with Ospital ng Maynila,
private complainant Luz Gercayo the amount
of P500,000.00 as moral damages and P100,000 as
exemplary damages and to pay the costs.
Accordingly, the bond posted by the accused for his
provisional liberty is hereby cancelled.19
Decision of the CA
On January 20, 2010, the CA affirmed the conviction of
Dr. Solidum,20 pertinently stating and ruling:

The case appears to be a textbook example of res ipsa

loquitur.
xxxx
x x x [P]rior to the operation, the child was evaluated
and found fit to undergo a major operation. As noted by
the OSG, the accused himself testified that preoperation tests were conducted to ensure that the child
could withstand the surgery. Except for his imperforate
anus, the child was healthy. The tests and other
procedures failed to reveal that he was suffering from
any known ailment or disability that could turn into a
significant risk. There was not a hint that the nature of
the operation itself was a causative factor in the events
that finally led to hypoxia.
In short, the lower court has been left with no
reasonable hypothesis except to attribute the accident
to a failure in the proper administration of anesthesia,
the gravamen of the charge in this case. The High Court
elucidates in Ramos vs. Court of Appeals 321 SCRA 584

In cases where the res ipsa loquitur is applicable, the

court is permitted to find a physician negligent upon
proper proof of injury to the patient, without the aid of
expert testimony, where the court from its fund of
common knowledge can determine the proper standard
of care.
Where common knowledge and experience teach that a
resulting injury would not have occurred to the patient if
due care had been exercised, an inference of negligence
may be drawn giving rise to an application of the
doctrine of res ipsa loquitur without medical evidence,
which is ordinarily required to show not only what
occurred but how and why it occurred. When the
doctrine is appropriate, all that the patient must do is
prove a nexus between the particular act or omission
complained of and the injury sustained while under the
custody and management of the defendant without
need to produce expert medical testimony to establish
the standard of care. Resort to res ipsa loquitur is
allowed because there is no other way, under usual and
ordinary conditions, by which the patient can obtain
redress for injury suffered by him.
The lower court has found that such a nexus exists
between the act complained of and the injury sustained,
and in line with the hornbook rules on evidence, we will
afford the factual findings of a trial court the respect
they deserve in the absence of a showing of
arbitrariness or disregard of material facts that might
affect the disposition of the case. People v. Paraiso 349
SCRA 335.

90

The res ipsa loquitur test has been known to be applied

in criminal cases. Although it creates a presumption of
negligence, it need not offend due process, as long as
the accused is afforded the opportunity to go forward
with his own evidence and prove that he has no criminal
intent. It is in this light not inconsistent with the
constitutional presumption of innocence of an accused.
IN VIEW OF THE FOREGOING, the modified decision of
the lower court is affirmed.
SO ORDERED.21
Dr. Solidum filed a motion for reconsideration, but the
CA denied his motion on May 7, 2010.22

CONTRADICTED THE ESTABLISHED FACTS AND

THE LAW APPLICABLE IN THE CASE.
III.
THE AWARD OF MORAL DAMAGES AND
EXEMPLARY DAMAGES IS NOT JUSTIFIED THERE
BEING NO NEGLIGENCE ON THE PART OF THE
PETITIONER. ASSUMING THAT THE CHILD IS
ENTITLED TO FINANCIAL CONSIDERATION, IT
SHOULD BE ONLY AS A FINANCIAL ASSISTANCE,
BECAUSE THERE WAS NO NEGLIGENCE, AND NO
OVERDOSING OF ANESTHETIC AGENT AND AS
SUCH, THE AWARD IS SO EXCESSIVE, AND NO
FACTUAL AND LEGAL BASIS.23
To simplify, the following are the issues for resolution,
namely: (a) whether or not the doctrine of res ipsa
loquitur was applicable herein; and (b) whether or not
Dr. Solidum was liable for criminal negligence.

Hence, this appeal.

Issues
Dr. Solidum avers that:

Ruling
I.

THE HONORABLE COURT OF APPEALS ERRED IN

AFFIRMING THE DECISION OF THE LOWER
COURT IN UPHOLDING THE PETITIONERS
CONVICTION FOR THE CRIME CHARGED BASED
ON THE TRIAL COURTS OPINION, AND NOT ON
THE BASIS OF THE FACTS ESTABLISHED DURING
THE TRIAL. ALSO, THERE IS A CLEAR
MISAPPREHENSION OF FACTS WHICH IF
CORRECTED, WILL RESULT TO THE ACQUITTAL
OF THE PETITIONER. FURTHER, THE HONORABLE
COURT ERRED IN AFFIRMING THE SAID
DECISION OF THE LOWER COURT, AS THIS
BREACHES THE CRIMINAL LAW PRINCIPLE THAT
THE PROSECUTION MUST PROVE THE
ALLEGATIONS OF THE INFORMATION BEYOND
REASONABLE DOUBT, AND NOT ON THE BASIS
OF ITS PRESUMPTIVE CONCLUSION.
II.
THE HONORABLE COURT OF APPEALS ERRED IN
APPLYING THE PRINCIPLE OF RES IPSA
LOQUITOR (sic) WHEN THE DEFENSE WAS ABLE
TO PROVE THAT THERE IS NO NEGLIGENCE ON
THE PART OF THE PETITIONER, AND NO
OVERDOSING IN THE APPLICATION OF THE
ANESTHETIC AGENT BECAUSE THERE WAS NO
100% HALOTHANE ADMINISTERED TO THE
CHILD, BUT ONLY ONE (1%) PERCENT AND THE
APPLICATION THEREOF, WAS REGULATED BY AN
ANESTHESIA MACHINE. THUS, THE APPLICATION
OF THE PRINCIPLE OF RES IPSA LOQUITOR (sic)

The appeal is meritorious.

Applicability of the Doctrine of Res Ipsa Loquitur
Res ipsa loquitur is literally translated as "the thing or
the transaction speaks for itself." The doctrine res ipsa
loquitur means that "where the thing which causes
injury is shown to be under the management of the
defendant, and the accident is such as in the ordinary
course of things does not happen if those who have the
management use proper care, it affords reasonable
evidence, in the absence of an explanation by the
defendant, that the accident arose from want of
care."24 It is simply "a recognition of the postulate that,
as a matter of common knowledge and experience, the
very nature of certain types of occurrences may justify
an inference of negligence on the part of the person
who controls the instrumentality causing the injury in
the absence of some explanation by the defendant who
is charged with negligence. It is grounded in the
superior logic of ordinary human experience and on the
basis of such experience or common knowledge,
negligence may be deduced from the mere occurrence
of the accident itself.
Hence, res ipsa loquitur is applied in conjunction with
the doctrine of common knowledge."25
Jarcia, Jr. v. People26 has underscored that the doctrine is
not a rule of substantive law, but merely a mode of
proof or a mere procedural convenience. The doctrine,
when applicable to the facts and circumstances of a
given case, is not meant to and does not dispense with

91

the requirement of proof of culpable negligence against

the party charged. It merely determines and regulates
what shall be prima facie evidence thereof, and helps
the plaintiff in proving a breach of the duty. The doctrine
can be invoked when and only when, under the
circumstances involved, direct evidence is absent and
not readily available.27

complained of and the injury sustained while under the

custody and management of the defendant without
need to produce expert medical testimony to establish
the standard of care. Resort to res ipsa loquitur is
allowed because there is no other way, under usual and
ordinary conditions, by which the patient can obtain
redress for injury suffered by him.

The applicability of the doctrine of res ipsa loquitur in

medical negligence cases was significantly and
exhaustively explained in Ramos v. Court of
Appeals,28 where the Court said

Thus, courts of other jurisdictions have applied the

doctrine in the following situations: leaving of a foreign
object in the body of the patient after an operation,
injuries sustained on a healthy part of the body which
was not under, or in the area, of treatment, removal of
the wrong part of the body when another part was
intended, knocking out a tooth while a patients jaw was
under anesthetic for the removal of his tonsils, and loss
of an eye while the patient plaintiff was under the
influence of anesthetic, during or following an operation
for appendicitis, among others.

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

Nevertheless, despite the fact that the scope of res ipsa

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

92

utilized and the defendant is called upon to explain the

matter, by evidence of exculpation, if he could.
In order to allow resort to the doctrine, therefore, the
following essential requisites must first be satisfied, to
wit: (1) the accident was of a kind that does not
ordinarily occur unless someone is negligent; (2) the
instrumentality or agency that caused the injury was
under the exclusive control of the person charged; and
(3) the injury suffered must not have been due to any
voluntary action or contribution of the person injured. 29
The Court considers the application here of the doctrine
of res ipsa loquitur inappropriate. Although it should be
conceded without difficulty that the second and third
elements were present, considering that the anesthetic
agent and the instruments were exclusively within the
control of Dr. Solidum, and that the patient, being then
unconscious during the operation, could not have been
guilty of contributory negligence, the first element was
undeniably wanting. Luz delivered Gerald to the care,
custody and control of his physicians for a pull-through
operation. Except for the imperforate anus, Gerald was
then of sound body and mind at the time of his
submission to the physicians. Yet, he experienced
bradycardia during the operation, causing loss of his
senses and rendering him immobile. Hypoxia, or the
insufficiency of oxygen supply to the brain that caused
the slowing of the heart rate, scientifically termed as
bradycardia, would not ordinarily occur in the process of
a pull-through operation, or during the administration of
anesthesia to the patient, but such fact alone did not
prove that the negligence of any of his attending
physicians, including the anesthesiologists, had caused
the injury. In fact, the anesthesiologists attending to him
had sensed in the course of the operation that the lack
of oxygen could have been triggered by the vago-vagal
reflex, prompting them to administer atropine to the
patient.30
This conclusion is not unprecedented. It was similarly
reached in Swanson v. Brigham,31 relevant portions of
the decision therein being as follows:
On January 7, 1973, Dr. Brigham admitted 15-year-old
Randall Swanson to a hospital for the treatment of
infectious mononucleosis. The patient's symptoms had
included a swollen throat and some breathing difficulty.
Early in the morning of January 9 the patient was
restless, and at 1:30 a.m. Dr. Brigham examined the
patient. His inspection of the patient's air passage
revealed that it was in satisfactory condition. At 4:15
a.m. Dr. Brigham received a telephone call from the
hospital, advising him that the patient was having
respiratory difficulty. The doctor ordered that oxygen be
administered and he prepared to leave for the hospital.
Ten minutes later, 4:25 a.m., the hospital called a

second time to advise the doctor that the patient was

not responding. The doctor ordered that a medicine be
administered, and he departed for the hospital. When
he arrived, the physician who had been on call at the
hospital had begun attempts to revive the patient. Dr.
Brigham joined him in the effort, but the patient died.
The doctor who performed the autopsy concluded that
the patient died between 4:25 a.m. and 4:30 a.m. of
asphyxia, as a result of a sudden, acute closing of the
air passage. He also found that the air passage had
been adequate to maintain life up to 2 or 3 minutes
prior to death. He did not know what caused the air
passage to suddenly close.
xxxx
It is a rare occurrence when someone admitted to a
hospital for the treatment of infectious mononucleosis
dies of asphyxiation. But that is not sufficient to invoke
res ipsa loquitur. The fact that the injury rarely occurs
does not in itself prove that the injury was probably
caused by someone's negligence. Mason v. Ellsworth, 3
Wn. App. 298, 474 P.2d 909 (1970). Nor is a bad result
by itself enough to warrant the application of the
doctrine. Nelson v. Murphy, 42 Wn.2d 737, 258 P.2d 472
(1953). See 2 S. Speiser, The Negligence Case Res
Ipsa Loquitur 24:10 (1972). The evidence presented is
insufficient to establish the first element necessary for
application of res ipsa loquitur doctrine. The acute
closing of the patients air passage and his resultant
asphyxiation took place over a very short period of time.
Under these circumstances it would not be reasonable
to infer that the physician was negligent. There was no
palpably negligent act. The common experience of
mankind does not suggest that death would not be
expected without negligence. And there is no expert
medical testimony to create an inference that
negligence caused the injury.
Negligence of Dr. Solidum
In view of the inapplicability of the doctrine of res ipsa
loquitur, the Court next determines whether the CA
correctly affirmed the conviction of Dr. Solidum for
criminal negligence.
Negligence is defined as the failure to observe for the
protection of the interests of another person that degree
of care, precaution, and vigilance that the
circumstances justly demand, whereby such other
person suffers injury.32Reckless imprudence, on the
other hand, consists of voluntarily doing or failing to do,
without malice, an act from which material damage
results by reason of an inexcusable lack of precaution

93

on the part of the person performing or failing to

perform such act.33

On the witness stand, Dr. Vertido made a significant

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

bradycardia persisted, but for one reason or another, he

read it as 100% halothane. He was asked to read the
anesthesia record on the percentage of the dosage
indicated, but he could only sheepishly note I cant
understand the number. There are no clues in the
clinical abstract on the quantity of the anesthetic agent
used. It only contains the information that the
anesthetic plan was to put the patient under general
anesthesia using a nonrebreathing system with
halothane as the sole anesthetic agent and that 1 hour
and 45 minutes after the operation began, bradycardia
occurred after which the inhalational agent was shut off
and the patient administered with 100% oxygen. It
would be apparent that the 100% oxygen that Dr.
Vertido said should be read in lieu of 100% halothane
was the pure oxygen introduced after something went
amiss in the operation and the halothane itself was
reduced or shut off.

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

following:

The key question remains what was the quantity of

halothane used before bradycardia set in?

Dr. Solidums conviction by the RTC was primarily based

on his failure to monitor and properly regulate the level
of anesthetic agent administered on Gerald by
overdosing at 100% halothane. In affirming the
conviction, the CA observed:

(a) the anesthesia record A portion of the chart

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

The implication of Dr. Vertidos admission is that there

was no overdose of the anesthetic agent, and the
accused Dr. Solidum stakes his liberty and reputation on
this conclusion. He made the assurance that he gave his
patient the utmost medical care, never leaving the
operating room except for a few minutes to answer the
call of nature but leaving behind the other members of
his team Drs. Abella and Razon to monitor the
operation. He insisted that he administered only a point
1% not 100% halothane, receiving corroboration from
Dr. Abella whose initial MA in the record should be
enough to show that she assisted in the operation and
was therefore conversant of the things that happened.
She revealed that they were using a machine that
closely monitored the concentration of the agent during
the operation.
But most compelling is Dr. Solidums interpretation of
the anesthesia record itself, as he takes the bull by the
horns, so to speak. In his affidavit, he says, reading from
the record, that the quantity of halothane used in the
operation is one percent (1%) delivered at time intervals
of 15 minutes. He studiedly mentions the
concentration of halothane as reflected in the
anesthesia record (Annex D of the complaint-affidavit) is
only one percent (1%) The numbers indicated in 15
minute increments for halothane is an indication that
only 1% halothane is being delivered to the patient
Gerard Gercayo for his entire operation; The amount of
halothane delivered in this case which is only one
percent cannot be summated because halothane is
constantly being rapidly eliminated by the body during
the entire operation.
xxxx

94

In finding the accused guilty, despite these

explanations, the RTC argued that the volte-face of Dr.
Vertido on the question of the dosage of the anesthetic
used on the child would not really validate the non-guilt
of the anesthesiologist. Led to agree that the halothane
used was not 100% as initially believed, he was
nonetheless unaware of the implications of the change
in his testimony. The court observed that Dr. Vertido had
described the condition of the child as hypoxia which is
deprivation of oxygen, a diagnosis supported by the
results of the CT Scan. All the symptoms attributed to a
failing central nervous system such as stupor, loss of
consciousness, decrease in heart rate, loss of usual
acuity and abnormal motor function, are manifestations
of this condition or syndrome. But why would there be
deprivation of oxygen if 100% oxygen to 1% halothane
was used? Ultimately, to the court, whether oxygen or
halothane was the object of mistake, the detrimental
effects of the operation are incontestable, and they can
only be led to one conclusion if the application of
anesthesia was really closely monitored, the event could
not have happened.34
The Prosecution did not prove the elements of reckless
imprudence beyond reasonable doubt because the
circumstances cited by the CA were insufficient to
establish that Dr. Solidum had been guilty of
inexcusable lack of precaution in monitoring the
administration of the anesthetic agent to Gerald. The
Court aptly explained in Cruz v. Court of Appeals35 that:
Whether or not a physician has committed an
"inexcusable lack of precaution" in the treatment of his
patient is to be determined according to the standard of
care observed by other members of the profession in
good standing under similar circumstances bearing in
mind the advanced state of the profession at the time of
treatment or the present state of medical science. In the
recent case of Leonila Garcia-Rueda v. Wilfred L.
Pacasio, et. al., this Court stated that in accepting a
case, a doctor in effect represents that, having the
needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ
such training, care and skill in the treatment of his
patients. He therefore has a duty to use at least the
same level of care that any other reasonably competent
doctor would use to treat a condition under the same
circumstances. It is in this aspect of medical malpractice
that expert testimony is essential to establish not only
the standard of care of the profession but also that the
physician's conduct in the treatment and care falls
below such standard. Further, inasmuch as the causes
of the injuries involved in malpractice actions are
determinable only in the light of scientific knowledge, it
has been recognized that expert testimony is usually
necessary to support the conclusion as to causation.

xxxx
In litigations involving medical negligence, the plaintiff
has the burden of establishing appellant's negligence
and for a reasonable conclusion of negligence, there
must be proof of breach of duty on the part of the
surgeon as well as a causal connection of such breach
and the resulting death of his patient. In Chan Lugay v.
St Luke's Hospital, Inc., where the attending physician
was absolved of liability for the death of the
complainants wife and newborn baby, this Court held
that:
"In order that there may be a recovery for an injury,
however, it must be shown that the injury for which
recovery is sought must be the legitimate consequence
of the wrong done; the connection between the
negligence and the injury must be a direct and natural
sequence of events, unbroken by intervening efficient
causes. In other words, the negligence must be the
proximate cause of the injury. For, negligence, no
matter in what it consists, cannot create a right of
action unless it is the proximate cause of the injury
complained of. And the proximate cause of an injury is
that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces
the injury, and without which the result would not have
occurred."
An action upon medical negligence whether criminal,
civil or administrative calls for the plaintiff to prove by
competent evidence each of the following four
elements, namely: (a) the duty owed by the physician to
the patient, as created by the physician-patient
relationship, to act in accordance with the specific
norms or standards established by his profession; (b)
the breach of the duty by the physicians failing to act in
accordance with the applicable standard of care; (3) the
causation, i.e., there must be a reasonably close and
causal connection between the negligent act or
omission and the resulting injury; and (4) the damages
suffered by the patient.36
In the medical profession, specific norms or standards to
protect the patient against unreasonable risk,
commonly referred to as standards of care, set the duty
of the physician to act in respect of the patient.
Unfortunately, no clear definition of the duty of a
particular physician in a particular case exists. Because
most medical malpractice cases are highly technical,
witnesses with special medical qualifications must
provide guidance by giving the knowledge necessary to
render a fair and just verdict. As a result, the standard
of medical care of a prudent physician must be
determined from expert testimony in most cases; and in
the case of a specialist (like an anesthesiologist), the
standard of care by which the specialist is judged is the

95

care and skill commonly possessed and exercised by

similar specialists under similar circumstances. The
specialty standard of care may be higher than that
required of the general practitioner.37
The standard of care is an objective standard by which
the conduct of a physician sued for negligence or
malpractice may be measured, and it does not depend,
therefore, on any individual physicians own knowledge
either. In attempting to fix a standard by which a court
may determine whether the physician has properly
performed the requisite duty toward the patient, expert
medical testimony from both plaintiff and defense
experts is required. The judge, as the trier of fact,
ultimately determines the standard of care, after
listening to the testimony of all medical experts. 38
Here, the Prosecution presented no witnesses with
special medical qualifications in anesthesia to provide
guidance to the trial court on what standard of care was
applicable. It would consequently be truly difficult, if not
impossible, to determine whether the first three
elements of a negligence and malpractice action were
attendant.
Although the Prosecution presented Dr. Benigno Sulit,
Jr., an anesthesiologist himself who served as the
Chairman of the Committee on Ethics and Malpractice of
the Philippine Society of Anesthesiologists that
investigated the complaint against Dr. Solidum, his
testimony mainly focused on how his Committee had
conducted the investigation.39 Even then, the report of
his Committee was favorable to Dr. Solidum,40 to wit:
Presented for review by this committee is the case of a
3 year old male who underwent a pull-thru operation
and was administered general anesthesia by a team of
anesthesia residents. The patient, at the time when the
surgeons was manipulating the recto-sigmoid and
pulling it down in preparation for the anastomosis, had
bradycardia. The anesthesiologists, sensing that the
cause thereof was the triggering of the vago-vagal
reflex, administered atropine to block it but despite the
administration of the drug in two doses, cardiac arrest
ensued. As the records show, prompt resuscitative
measures were administered and spontaneous cardiac
function re-established in less than five (5) minutes and
that oxygen was continuously being administered
throughout, unfortunately, as later become manifest,
patient suffered permanent irreversible brain damage.

In view of the actuations of the anaesthesiologists and

the administration of anaesthesia, the committee find
that the same were all in accordance with the
universally accepted standards of medical care and
there is no evidence of any fault or negligence on the
part of the anaesthesiologists.
Dr. Antonio Vertido, a Senior Medico-Legal Officer of the
National Bureau of Investigation, was also presented as
a Prosecution witness, but his testimony concentrated
on the results of the physical examination he had
conducted on Gerald, as borne out by the following
portions of his direct examination, to wit:
FISCAL CABARON Doctor, what do you mean by General
Anesthetic Agent?
WITNESS General Anesthetic Agent is a substance used
in the conduction of Anesthesia and in this case,
halothane was used as a sole anesthetic agent.
xxxx
Q Now under paragraph two of page 1 of your report
you mentioned that after one hour and 45 minutes after
the operation, the patient experienced a bradycardia or
slowing of heart rate, now as a doctor, would you be
able to tell this Honorable Court as to what cause of the
slowing of heart rate as to Gerald Gercayo?
WITNESS Well honestly sir, I cannot give you the reason
why there was a bradycardia of time because is some
reason one way or another that might caused
bradycardia.
FISCAL CABARON What could be the possible reason?
A Well bradycardia can be caused by anesthetic agent
itself and that is a possibility, were talking about
possibility here.
Q What other possibility do you have in mind, doctor?
A Well, because it was an operation, anything can
happen within that situation.
FISCAL CABARON Now, this representation would like to
ask you about the slowing of heart rate, now what is the
immediate cause of the slowing of the heart rate of a
person?
WITNESS Well, one of the more practical reason why
there is slowing of the heart rate is when you do a vagal
reflex in the neck wherein the vagal receptors are
located at the lateral part of the neck, when you press

96

that, you produce the slowing of the heart rate that

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

xxxx
ATTY. COMIA Doctor tell this Honorable Court where is
that 100, 1-0-0 and if there is, you just call me and even
the attention of the Presiding Judge of this Court. Okay,
you read one by one.
WITNESS Well, are you only asking 100%, sir?

A Well that is a possibility sir, I mean not as slowing of

the heart rate, if there is a hypoxia or there is a low
oxygen level in the blood, the normal thing for the heart
is to pump or to do not a bradycardia but a to counter
act the Hypoxia that is being experienced by the patient

ATTY. COMIA Im asking you, just answer my question,

did you see there 100% and 100 figures, tell me, yes or
no?

(sic).

WITNESS Im trying to look at the 100%, there is no

100% there sir.
xxxx

Q Now, you made mention also doctor that the use of

general anesthesia using 100% halothane and other
anesthetic medications probably were contributory to
the production of hypoxia.
A Yes, sir in general sir.41
On cross-examination, Dr. Vertido expounded more
specifically on his interpretation of the anesthesia
record and the factors that could have caused Gerald to
experience bradycardia, viz:
ATTY. COMIA I noticed in, may I see your report Doctor,
page 3, will you kindly read to this Honorable court your
last paragraph and if you will affirm that as if it is
correct?
A "The use of General Anesthesia, that is using 100%
Halothane probably will be contributory to the
production of Hypoxia and - - - -"
ATTY COMIA And do you affirm the figure you mentioned
in this Court Doctor?
WITNESS Based on the records, I know the - - Q 100%?
A 100% based on the records.
Q I will show you doctor a clinical record. I am a lawyer I
am not a doctor but will you kindly look at this and tell
me where is 100%, the word "one hundred" or 1-0-0, will
you kindly look at this Doctor, this Xerox copy if you can
show to this Honorable Court and even to this
representation the word "one hundred" or 1-0-0 and
then call me.

ATTY. COMIA Okay, that was good, so you Honor please,

may we request also temporarily, because this is just a
xerox copy presented by the fiscal, that the percentage
here that the Halothane administered by Dr. Solidum to
the patient is 1% only so may we request that this
portion, temporarily your Honor, we are marking this
anesthesia record as our Exhibit 1 and then this 1%
Halothane also be bracketed and the same be marked
as our Exhibit "1-A".
xxxx
ATTY. COMIA Doctor, my attention was called also when
you said that there are so many factors that contributed
to Hypoxia is that correct?
WITNESS Yes, sir.
Q I remember doctor, according to you there are so
many factors that contributed to what you call hypoxia
and according to you, when this Gerald suffered
hypoxia, there are other factors that might lead to this
Hypoxia at the time of this operation is that correct?
WITNESS The possibility is there, sir.
Q And according to you, it might also be the result of
such other, some or it might be due to operations being
conducted by the doctor at the time when the operation
is being done might also contribute to that hypoxia is
that correct?
A That is a possibility also.
xxxx
ATTY. COMIA How will you classify now the operation
conducted to this Gerald, Doctor?

97

WITNESS Well, that is a major operation sir.

Q In other words, when you say major operation
conducted to this Gerald, there is a possibility that this
Gerald might [be] exposed to some risk is that correct?
A That is a possibility sir.
Q And which according to you that Gerald suffered
hypoxia is that correct?
A Yes, sir.
Q And that is one of the risk of that major operation is
that correct?
A That is the risk sir.42
At the continuation of his cross-examination, Dr. Vertido
maintained that Geralds operation for his imperforate
anus, considered a major operation, had exposed him to
the risk of suffering the same condition.43 He then
corrected his earlier finding that 100% halothane had
been administered on Gerald by saying that it should be
100% oxygen.44
Dr. Solidum was criminally charged for "failing to
monitor and regulate properly the levels of anesthesia
administered to said Gerald Albert Gercayo and using
100% halothane and other anesthetic
medications."45However, the foregoing circumstances,
taken together, did not prove beyond reasonable doubt
that Dr. Solidum had been recklessly imprudent in
administering the anesthetic agent to Gerald. Indeed,
Dr. Vertidos findings did not preclude the probability
that other factors related to Geralds major operation,
which could or could not necessarily be attributed to the
administration of the anesthesia, had caused the
hypoxia and had then led Gerald to experience
bradycardia. Dr. Vertido revealingly concluded in his
report, instead, that "although the anesthesiologist
followed the normal routine and precautionary
procedures, still hypoxia and its corresponding side
effects did occur."46
The existence of the probability about other factors
causing the hypoxia has engendered in the mind of the
Court a reasonable doubt as to Dr. Solidums guilt, and
moves us to acquit him of the crime of reckless
imprudence resulting to serious physical injuries. "A
reasonable doubt of guilt," according to United States v.
Youthsey:47
x x x is a doubt growing reasonably out of evidence or
the lack of it. It is not a captious doubt; not a doubt
engendered merely by sympathy for the unfortunate

position of the defendant, or a dislike to accept the

responsibility of convicting a fellow man. If, having
weighed the evidence on both sides, you reach the
conclusion that the defendant is guilty, to that degree of
certainty as would lead you to act on the faith of it in
the most important and crucial affairs of your life, you
may properly convict him. Proof beyond reasonable
doubt is not proof to a mathematical demonstration. It is
not proof beyond the possibility of mistake.
We have to clarify that the acquittal of Dr. Solidum
would not immediately exempt him from civil
liability.1wphi1 But we cannot now find and declare
him civilly liable because the circumstances that have
been established here do not present the factual and
legal bases for validly doing so. His acquittal did not
derive only from reasonable doubt. There was really no
firm and competent showing how the injury to Gerard
had been caused. That meant that the manner of
administration of the anesthesia by Dr. Solidum was not
necessarily the cause of the hypoxia that caused the
bradycardia experienced by Gerard. Consequently, to
adjudge Dr. Solidum civilly liable would be to speculate
on the cause of the hypoxia. We are not allowed to do
so, for civil liability must not rest on speculation but on
competent evidence.
Liability of Ospital ng Maynila
Although the result now reached has resolved the issue
of civil liability, we have to address the unusual decree
of the RTC, as affirmed by the CA, of expressly holding
Ospital ng Maynila civilly liable jointly and severally with
Dr. Solidum. The decree was flawed in logic and in law.
In criminal prosecutions, the civil action for the recovery
of civil liability that is deemed instituted with the
criminal action refers only to that arising from the
offense charged.48 It is puzzling, therefore, how the RTC
and the CA could have adjudged Ospital ng Maynila
jointly and severally liable with Dr. Solidum for the
damages despite the obvious fact that Ospital ng
Maynila, being an artificial entity, had not been charged
along with Dr. Solidum. The lower courts thereby acted
capriciously and whimsically, which rendered their
judgment against Ospital ng Maynila void as the product
of grave abuse of discretion amounting to lack of
jurisdiction.
Not surprisingly, the flawed decree raises other material
concerns that the RTC and the CA overlooked. We deem
it important, then, to express the following observations
for the instruction of the Bench and Bar.
For one, Ospital ng Maynila was not at all a party in the
proceedings. Hence, its fundamental right to be heard

98

was not respected from the outset. The R TC and the CA

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

PEDRITO DELA TORRE, Petitioner,

vs.
DR. ARTURO IMBUIDO, DRA. NORMA IMBUIDO in
their capacity as owners and operators of DIVINE
SPIRIT GENERAL HOSPITAL and/or DR. NESTOR
PASAMBA, Respondents.
RESOLUTION
REYES, J.:

This resolves the petition for review on certiorari 1 filed

by petitioner Pedrito Dela Torre (Pedrito) assailing the
Decision2 dated December 15, 2009 and
Resolution3 dated July 27, 2010 of the Court of Appeals
(CA) in CA-G.R. CV No. 78534.
The case stemmed from a complaint4 for damages filed
by Pedrito against herein respondents Dr. ArturoImbuido
and Dr. Norma Imbuido (Dr. Norma), in their capacity as
the ownersand operators of the Divine Spirit General
Hospital in Olongapo City, and Dr. Nestor Pasamba (Dr.
Nestor) (respondents). Pedrito alleged in his complaint
that he was married to one Carmen Castillo Dela
Torre(Carmen), who died while admitted at the Divine
Spirit General Hospital on February 13, 1992. Carmen
was due to give birth on February 2,1992 and was
brought at around 11:30 p.m. on that day by Pedrito to
the Divine Spirit General Hospital. When Carmen still
had not delivered her baby at the expected time, Dr.
Norma discussed with Pedrito the possibility of a
caesarean section operation.5
At around 3:00 p.m. on February 3, 1992, Carmen was
brought to the hospitals operating room for her
caesarian section operation, which was to be performed
by Dr. Nestor. By 5:30 p.m. of the same day, Pedrito was
informed of his wifes delivery of a baby boy. In the early
morning of February 4, 1992, Carmen experienced
abdominal pain and difficulty in urinating. She was
diagnosed to be suffering from urinary tract infection
(UTI), and was prescribed medications by Dr. Norma. On
February 10, 1992, Pedrito noticed that Carmens
stomach was getting bigger, but Dr. Norma dismissed
the patients condition as mere flatulence (kabag).6
When Carmens stomach still grewbigger despite
medications, Dr. Norma advised Pedrito of the possibility
of a second operation on Carmen. Dr. Norma, however,
provided no detailson its purpose and the doctor who
would perform it. At around 3:00 p.m. on February 12,
1992, Carmen had her second operation. Later in the
evening, Dr. Norma informed Pedrito that "everything
was going on fine with [his] wife."7
The condition of Carmen, however, did not improve. It
instead worsened that on February 13, 1992, she
vomited dark red blood. At 9:30 p.m. on the same day,
Carmen died.8 Per her certificate of death upon
information provided by the hospital,the immediate
cause of Carmens death was "cardio-respiratory arrest
secondary to cerebro vascular accident, hypertension
and chronic nephritis induced by pregnancy."9 An
autopsy Report10prepared by Dr. Richard Patilano(Dr.
Patilano), Medico-Legal Officer-Designate of Olongapo
City, however, provided that the cause of Carmens
death was "shock due to peritonitis, severe, with

99

multiple intestinal adhesions; Status post C[a]esarian

Section and Exploratory Laparotomy."
Pedrito claimed in his complaint that the respondents
"failed to exercise the degree of diligence required of
them" as members of the medical profession, and were
"negligent for practicing surgery on [Carmen] in the
most unskilled, ignorant and cruel manner, x x x[.]"11
In their answer12 to the complaint, the respondents
argued that they "observed the required standard of
medical care in attending to the needs of
Carmen."13 The respondents explained that Carmen was
admitted in Divine Spirit General Hospital for
"pregnancy in labor and pre-eclampsia." Her condition
was closely monitored during her confinement. A
caesarian section operation became necessary, as she
manifested no significant progress for the spontaneous
delivery of her baby.14 No unusual events were observed
during the course of Carmens caesarian section
operation. The second surgery, however, became
necessary due to suspected intestinal obstruction and
adhesions. This procedure was fully explained to
Carmen and Pedrito prior to its conduct. During the
second operation, the diagnosis of intestinal obstruction
and adhesion was confirmed but resolved by her
doctors. Despite the observance of due care by the
doctors, however, Carmen died on February 13, 1992. 15
The respondents included in their answer a
counterclaim for P48,515.58 as unpaid hospital charges,
professional fees and medicines, P3,000,000.00 for
moral damages, P1,500,000.00 for exemplary damages,
and attorneys fees.16
After the pre-trial conference, trial proper ensued. To
support his claim, Pedrito presented the testimony of Dr.
Patilano, the medicolegal officer who conducted an
autopsy on the body of Carmen upon a telephone
request made by the City Health Officer of Olongapo
City, Dr. Generoso Espinosa. Among Dr. Patilanos
observations, as narrated in the lower courts decision,
were as follows:
In the intestines, [Dr. Patilano] found outthat it was
more reddish than the normal condition which is
supposed to bepinkish. There was presence of
adhesions, meaning, it sticks to each other and these
areas were dilated. There were constricted areas. He
concluded that there might have been foreign organic
matters in the intestines. He did not see any swelling
but assuming that there was, it would be concomitant to
the enlargement. x x x He came to the conclusion that
the cause of death was peritonitis, with the multiple
adhesions status in the post caesarian section. In
connection with peritonitis, this is the inflammation of

the abdomen. This peritonitis in the abdominal cavity

may be caused by several conditions which are
supposed to be infections, entrance of foreign bodies in
the intestines in connection with ruptured peptic ulcer
or [may be] somewhere in the spleen. The entrance of
foreign object in the abdominal cavities may cause
severe infections of the intra-abdominal cavities
resulting [in] multiple adhesions of the intestines. In
cases of surgical operation, it [may be] due to the
conditions of the instruments used, the materials used
in the operating room being not aseptic and the ladies
assisting the operation were not in uniform. x x x. 17
Dr. Patilano claimed that peritonitis could have been
prevented through proper medical procedures and
medicines. He also stated that if the cause of Carmens
death was actually cerebro-vascular accident, there
would have been ruptured blood vessels and blood clot
in her head; but there were none in Carmens case. 18
Among those who testified to refutePedritos claim was
Dr. Nestor. He claimed that when Carmen was referred
to him on February 3, 1992, she was in full term uterine
pregnancy, with pre-eclampsia, fetal distress and active
labor pains. A caesarian section operation became
necessary to terminate the pregnancy for her safety.
Carmen was ready to go home four days after giving
birth, but was advised by the doctors to stay more
because of her persistent hypertension.19
The second surgery performed on Carmen was
necessary after she showed symptoms of intestinal
obstruction, which happens as the intestines get twisted
due to adhesions and the normal flow of intestinal
contents are obstructed. For Dr. Nestor, this occurrence
was not preventable since any interference of the
abdominal cavity would irritate the serosa of the
intestines, inviting adhesions that could cause
obstruction. Surgery could remedy the adhesions and
obstruction.20 Both Carmen and Pedrito gave their
written consent to this second procedure.21
Dr. Bienvenido G. Torres (Dr. Torres), Chief of the MedicoLegal Division of the Philippine National Police (PNP)
Crime Laboratory Service,22 also testified for the
respondents.He claimed that based on Dr. Patilanos
report, vital internal organs of Carmen, such as her
brain, lungs, kidneys, liver and adrenal glands, were not
examined during the autopsy.23
On January 28, 2003, the Regional Trial Court (RTC) of
Olongapo City, Branch 75, rendered its Decision 24 in
favor of Pedrito. The trial court gave greater weight to
the testimony of Dr. Patilano and thus disposed of the
case as follows:

100

WHEREFORE, premises considered, judgment is hereby

rendered in favor of the plaintiff and against the
defendants, ordering the latter to pay jointly and
severally, the former, the following sums of money, to
wit:
1.) the sum of Php 28,759.46 as actual
damages;
2.) the sum of Fifty Thousand (Php 50,000.00)
Pesos as indemnity for the death of Carmen dela
Torre;
3.) the sum of Fifty Thousand (Php 50,000.00)
Pesos as moral damages and the further sum of
Twenty Thousand (Php 20,000.00) Pesos as
exemplary damages;
4.) the sum of Twenty Thousand (Php 20,000.00)
Pesos as attorneys fees; and
5.) the costs of [suit].
SO ORDERED.25
Dissatisfied with the RTC ruling, the respondents
appealed to the CA. On December 15, 2009, the CA
rendered its Decision reversing and setting aside the
decision of the RTC. For the appellate court, it was not
established that the respondents failed to exercisethe
degree of diligence required of them by their profession
as doctors. The CA also granted the respondents
counterclaim for the amount of P48,515.58, as it held:
WHEREFORE, the Decision of the Regional Trial Court of
Olongapo City dated January 28, 2003 in Civil Case No.
165-0-92 is hereby REVERSED AND SET ASIDE.
Plaintiff-appellee is directed to pay the unpaid balance
for hospital bills, professional fees and other expenses
in the amount of [P]48,515.58.
SO ORDERED.26
Hence, this petition for review on certiorariin which
Pedrito insists that the respondents should be held liable
for the death of Carmen.
The petition is denied.
"[M]edical malpractice or, more appropriately, medical
negligence, is that type of claim which a victim has
available to him or her to redress a wrong committed by
a medical professionalwhich has caused bodily harm." In
order to successfully pursue such a claim, a patient, or

his or her family as in this case, "must prove that a

health care provider, in most cases a physician, either
failed to do something which a reasonably prudent
health care provider would have done, or that he or she
did something that a reasonably prudent provider would
not have done; and that failure or action caused injury
to the patient."27
The Court emphasized in Lucas, et al. v. Tuao 28 that in
medical negligence cases, there is a physician-patient
relationship between the doctor and the victim, but just
like in any other proceeding for damages, four essential
elements must be established by the plaintiff, namely:
(1) duty; (2) breach; (3) injury; and (4) proximate
causation. All four elements must be present in order to
find the physician negligent and, thus, liable for
damages.29
It is settled that a physicians duty tohis patient relates
to his exercise of the degree of care, skill and diligence
which physicians in the same general neighborhood,
and in the same general line of practice, ordinarily
possess and exercise in like cases. There is breach of
this duty when the patient is injured in body or in
health. Proof of this breach rests upon the testimony of
an expert witness that the treatment accorded to the
patient failed to meet the standard level of care, skill
and diligence. To justify an award of damages, the
negligence of the doctor must be established to be the
proximate cause of the injury.30
Through the instant petition, Pedritoseeks the
reinstatement of the decision of the RTC whose finding
of the respondents medical negligence depended
mainly on the testimony of Dr. Patilano. Upon review,
however, the Court agrees with the CA that the report
and testimony of Dr. Patilano failed to justify Pedritos
entitlement to the damages awarded by the RTC.
For the trial court to give weightto Dr. Patilanos report,
it was necessary to show first Dr. Patilanos
specialization and competence to testify on the degree
of care, skill and diligence needed for the treatment of
Carmens case. Considering that it was not duly
established that Dr. Patilano practiced and was an
expert inthe fields that involved Carmens condition, he
could not have accurately identified the said degree of
care, skill, diligence and the medical procedures that
should have been applied by her attending physicians.
Similarly, such duty, degree of care, skill and diligence
were not sufficiently established in this case because
the testimony of Dr. Patilano was based solely on the
results of his autopsy on the cadaver of Carmen. His
study and assessment were restrictedby limitations that
denied his full evaluation of Carmens case. He could

101

have only deduced from the injuries apparent in

Carmens body, and in the condition when the body was
examined. Judging from his testimony, Dr. Patilano did
not even take full consideration of the medical history of
Carmen, her actual health condition at the time of
hospital admission, and her condition as it progressed
while she was being monitored and treated by the
respondents. There was also no reference to the
respondents defense that the emergency caesarian
section operation had to be performed in order to
protect the lives and safety of Carmen and her then
unborn child. For lack of sufficient information on
Carmens health condition while still alive, Dr. Patilano
could not have fully evaluated the suitability of the
respondents decisions in handling Carmens medical
condition as it turned critical.
On the other hand, the CA pointed out that Dr. Nestor, a
surgeon, possessed the reasonable degree of learning,
skill and experience required by his profession for the
treatment ofCarmen. The respondents also emphasized
in their pleadings beforethe RTC that Dr. Nestor had his
training and experience in surgery and obstetrics since
1970.1wphi1 Without sufficient proof from the claimant
on a different degree of care, skill and diligence that
should be expected from the respondents, it could not
be said with certainty that a breachwas actually
committed.
Moreover, while Dr. Patilano opined that Carmen died of
peritonitis which could be due to the poor state of the
hospital equipment and medical supplies used during
her operation, there was no sufficient proof that any
such fault actually attended the surgery of Carmen,
caused her illness and resulted in her death. It is also
significant that the Chief of the Medico-Legal Division of
the PNP Crime Laboratory Service, Dr. Torres, testified
before the trial court that based on the autopsy report
issued by Dr. Patilano, the latter did not comply with the
basic autopsy procedure when he examined the cadaver
of Carmen. Dr. Patilano did not appear to have
thoroughly examined Carmens vital organs such as her
heart, lungs, uterus and brain during the autopsy. His
findings were then inconclusive on the issue of the
actual cause of Carmen's death, and the claim of
negligence allegedly committed by the respondents.
As the Court held in Spouses Flores v. Spouses Pineda,
et al.,31 the critical and clinching factor in a medical
negligence case is proof of the causal connection
between the negligence and the injuries. The claimant
must prove not only the injury but also the defendant's
fault, and that such fault caused the injury. A verdict in a
malpractice action cannot be based on speculation or
conjecture. Causation must be proven within a
reasonable medical probability based upon competent
expert testimony,32 which the Court finds absent in the

case at bar. As regards the respondents' counterclaim,

the CA's award of P48,515.58 is sustained, considering
that among the parties' stipulations during the pre-trial
indicated:
5. That at the time of the death of the patient Carmen
C. dela Torrell there was an unpaid balance for hospital
bills, professional fees and other expenses in the
amount of P48,515.58, incurred by plaintiff when the
patient was confined at said hospital from February 3 to
13, 1992.33
WHEREFORE, the petition is DENIED. The Decision dated
December 15, 2009 and Resolution dated July 27, 2010
of the Court of Appeals in CA-G.R. CV No. 78534 are
AFFIRMED.

DR. ANTONIO P. CABUGAO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES and SPOUSES
RODOLFO M. PALMA and ROSARIO F.
PALMA, Respondents.
x-----------------------x
G.R. No. 165805
DR. CLENIO YNZON, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES and SPOUSES
RODOLFO M. PALMA AND ROSARIO F.
PALMA,Respondents.
DECISION
PERALTA, J.:
Before this Court are appeals via Rule 45 from the
Decision1 dated June 4, 2004 of the Court of Appeals in
CA-G.R. CR No. 27293, affirming the Decision2 dated
February 28,2003 of the Regional Trial Court (RTC),
convicting appellant Dr. Antonio P. Cabugao (Dr.
Cabugao) and Dr. Clenio Ynzon (Dr. Ynzon) of the crime
of Reckless Imprudence Resulting to Homicide.
The Information3 alleged
That on or about June 17, 2000in the City of Dagupan,
Philippines, and within the jurisdiction of this Honorable
Court, the abovenamed accused, DR. ANTONIO
P.CABUGAO and DR. CLENIO YNZON, being then the
attending physicians of one RODOLFO PALMA, JR., a
minor 10 years old, confederating and acting jointly with
one another, did, then and there, willfully, unlawfully

102

and feloniously fail through negligence, carelessness

and imprudence to perform immediate operation upon
their patient, RODOLFO PALMA, JR. of acute appendicitis,
when they, the said physicians, should have been done
so considering that examinations conducted upon their
patient Rodolfo Palma, Jr. seriously manifest todo so,
causing by such negligence, carelessness, and
imprudence the victim, RODOLFO PALMA JR., to die due
to:
"CARDIORESPIRATORY ARREST, METABOLIC
ENCEPHALOPATHY, SEPTICEMIA (ACUTE APPENDICITIS),
CEREBRAL ANEURYSM RUPTURED (?)"
As per Certificate of Death issued by accused Dr.
Antonio P. Cabugao, to the damage and prejudice of the
legal heirs of said deceased RODOLFO PALMA, JR. and
other consequential damages relative thereto.
CONTRARY to Article 365, 1st par. of the Revised Penal
Code.
Dagupan City, Philippines, January 29, 2001.
Arising from the same events, the Court resolved to
consolidate these cases.4 The facts, as culled from the
records, are as follows:
On June 14, 2000, at around 4 o'clock in the afternoon,
ten (10)-year old Rodolfo F. Palma, Jr. (JR) complained of
abdominal pain to his mother, Rosario Palma. At 5
oclock that sameafternoon, Palma's mother and father,
Atty. Rodolfo Palma Sr., brought JR to the clinic of
accused Dr. Cabugao. Dr. Cabugao, a general
practitioner, specializing in familymedicine gave
medicines for the pain and told Palma's parents to call
him up if his stomach pains continue. Due to persistent
abdominal pains, at 4:30 in the early morning of June
15, 2000, they returnedto Dr. Cabugao, who advised
them to bring JR to the Nazareth General Hospital in
Dagupan City, for confinement. JR was admitted at the
said hospital at 5:30 in the morning.5

There is localized tenderness in the paraumbilical

region, more so in the supra and right paraumbilical
areas.
There is a vague elongated hypoechoic focus in the
right periumbilical region roughly about 47 x 18 mm
surrounded by undistended gas-filled bowels. This is
suggestive of an inflammatory process wherein
appendiceal or periappendiceal pathology cannot be
excluded. Clinical correlation is essential."6
Dr. Cabugao did a rectal examination noting the
following: "rectal: good sphincter, negative tenderness,
negative mass." The initial impression was Acute
Appendicitis,7 and hence, he referred the case to his coaccused, Dr. Ynzon, a surgeon.8 In the later part of the
morning of June 15, 2000, Dr. Ynzon went to the hospital
and readthe CBC and ultrasound results. The
administration of massive antibiotics and pain reliever
to JRwere ordered. Thereafter, JR was placed on
observation for twenty-four (24) hours.
In the morning of June 16, 2000, JR complained again of
abdominal pain and his parents noticeda swelling in his
scrotum. In the afternoon of the same day, JR vomitted
out greenish stuff three (3) times and had watery
bowels also three (3) times. The nurses on-duty relayed
JR's condition to Dr. Ynzon who merely gaveorders via
telephone.9 Accused continued medications to alleviate
JR's abdominal spasms and diarrhea. By midnight, JR
again vomitted twice, had loose bowel movements and
was unable to sleep. The following morning, June
17,2000, JR's condition worsened, he had a running
fever of 38C. JR's fever remained uncontrolled and he
became unconscious, he was given Aeknil (1 ampule)
and Valium (1 ampule). JR's condition continued to
deteriorate that by 2 o'clock in the afternoon, JR's
temperature soared to 42C, had convulsions and finally
died.
The Death Certificate10 dated June 19, 2000 prepared by
Dr. Cabugao indicated the following causes of death:

Blood samples were taken from JR for laboratory testing.

The complete blood count conveyed the following result:
wbc 27.80 x 10 9/L; lymphocytes 0.10 and
neutrophils 0.90. Diagnostic ultrasound was likewise
conducted on the patient's lower abdomen by
radiologist, Dr. Ricky V. Querubin, with the following
findings:

Immediate cause: CARDIORESPIRATORY ARREST

Normal liver, bile ducts, gallbladder, pancreas, spleen,

kidneys and urinary bladder.

Other significant conditionscontributing to

death:

There is no free peritoneal fluid.

CEREBRAL ANEURYSM RUPTURED (?)

Antecedent cause: METABOLIC

ENCEPHALOPATHY
Underlying cause: SEPTICEMIA (ACUTE
APPENDICITIS)

103

No post-mortem examination was conducted on JR. On

February 1, 2001, an Information was filed against
accused for reckless imprudence resulting to homicide.
At their arraignment, both accused, duly assisted by
counsel, pleaded not guilty to the charge.
On February 28, 2003, in convicting both the accused,
the trial court found the following circumstances as
sufficient basis to conclude that accused were indeed
negligent in the performance of their duties:
It is unquestionable that JR was under the medical care
of the accused from the time of his admission for
confinement at the Nazareth General Hospital until his
death. Upon his admission, the initial working diagnosis
was to consider acute appendicitis. To assist the
accused in the consideration of acute appendicitis, Dr.
Cabugao requested for a complete blood count (CBC)
and a diagnostic ultrasound on JR. The findings of the
CBC and ultrasound showed that an inflammatory
process or infection was going on inside the body of JR.
Said inflammatory process was happening in the
periumbilical region where the appendix could be
located. The initial diagnosis of acute appendicitis
appears to be a distinct possibility. x x x.
Dr. Ynzon ordered medications to treat the symptoms
being manifested by JR. Thereafter, he ordered that JR
be observed for 24 hours. However, the accused, as the
attending physicians, did not personally monitor JR in
order to check on subtle changes that may occur.
Rather, they left the monitoring and actual observation
to resident physicians who are just on residency training
and in doing so, they substituted their own expertise,
skill and competence with those of physicians who are
merely new doctors still on training. Not having
personally observed JR during this 24-hour critical
period of observation, the accused relinquished their
duty and thereby were unable to give the proper and
correct evaluation as to the real condition of JR. In
situations where massive infection is going on as shown
by the aggressive medication of antibiotics, the
condition of the patient is serious which necessitated
personal, not delegated, attention of attending
physicians, namely JR and the accused in this case.
xxxx
Throughout the course of the hospitalization and
treatment of JR, the accused failed to address the acute
appendicitis which was the initial diagnosis. They did
not take steps to find out if indeed acute appendicitis
was what was causing the massive infection that was
ongoing inside the body of JR even when the
inflammatory process was located at the paraumbilical
region where the appendix can be located. x x x

There may have been other diseases but the records do

not show that the accused took steps to find outwhat
disease exactly was plaguing JR. It was their duty to find
out the disease causing the health problem of JR, but
they did not perform any process of elimination.
Appendicitis, according to expert testimonies, could be
eliminated only by surgery but no surgery was done by
the accused. But the accused could not have found out
the real disease of JR because they were treating merely
and exclusively the symptoms by means of the different
medications to arrest the manifested symptoms. In fact,
by treating the symptoms alone, the accused were
recklessly and wantonly ignoring the same as signs of
the graver health problem of JR. This gross negligence
on the part of the accused allowed the infection to
spread inside the body of JR unabated. The infection
obviously spread so fastand was so massive that within
a period of only two and a half (2 ) days from the day
of admission to the hospital on June 15, 2000, JR who
was otherwise healthy died [of] Septicemia (Acute
Appendicitis) on June 17, 2000.11
On June 4, 2004, in affirming the accused' conviction,
the Court of Appeals gave similar observations, to wit:
The foregoing expert testimony clearly revealed such
want of reasonable skill and care on the part of JR's
attending physicians, appellants Dr. Cabugao and Dr.
Ynzon in neglecting to monitor effectively and
sufficiently the developments/changes during the
observation period and act upon the situation after said
24-hour period when his abdominal pain subsisted, his
condition even worsened with the appearance of more
serious symptoms of nausea, vomiting and diarrhea.
Considering the brief visit only made on regular rounds,
the records clearly show such gross negligence in failing
to take appropriate steps to determine the real cause of
JR's abdominal pain so that the crucial decision to
perform surgery (appendectomy) had even been ruled
out precisely because of the inexcusable neglect to
undertake suchefficient diagnosis by process of
elimination, as correctly pointed out by the trial court.
As has been succinctly emphasized by Dr. Mateo, acute
appendicitis was the working diagnosis, and with the
emergence of symptoms after the 24-hour observation
(high fever, vomiting, diarrhea) still, appellants ruled out
surgery, not even considering exploratory laparoscopy.
Dr. Mateo also expressed the opinion that the decision
to operate could have been made after the result of the
ultrasound test, considering that acute appendicitis was
the initial diagnosis by Dr. Cabugao after he had
conducted a rectal examination.
Medical records buttress the trial court's finding that in
treating JR, appellants have demonstrated indifference
and neglect of the patient's condition as a serious case.
Indeed, appendicitis remains a clinical emergencyand a

104

surgical disease, as correctly underscored by Dr. Mateo,

a practicing surgeon who has already performed over a
thousand appendectomy. In fact, appendectomy is the
only rational therapy for acute appendicitis; it avoids
clinical deterioration and may avoid chronic or recurrent
appendicitis. Although difficult, prompt recognition and
immediate treatment of the disease prevent
complications. Under the factual circumstances, the
inaction, neglect and indifference of appellants who,
after the day of admission and after being apprised of
the ongoing infection from the CBC and initial diagnosis
as acute appendicitis from rectal examination and
ultrasound testand only briefly visited JR once during
regular rounds and gave medication orders by
telephone constitutes gross negligenceleading to the
continued deterioration of the patient, his infection
having spread in sofast a pace that he died within just
two and a half (2 ) days stay inthe hospital.
Authorities state that if the clinical picture is unclear a
short period of 4 to 6 hours of watchful waiting and a CT
scan may improve diagnostic accuracy and help to
hasten diagnosis.Even assuming that JR's case had an
atypical presentation in view of the location of his
appendix, laboratory tests could have helped to confirm
diagnosis, as Dr. Mateo opined thatthe possibility of JR
having a retrocecal appendicitis should have been a
strong consideration. Lamentably, however, as found by
the trial court, appellants had not taken steps towards
correct diagnosis and demonstrated laxity even when JR
was already running a high fever in the morning of June
17, 2000 and continued vomiting with diarrhea, his
abdominal pain becoming more intense. This is the
reason why private complainants were not even
apprised of the progress of appellants' diagnosis
appellants have nothing to report because they did
nothing towards the end and merely gave medications
to address the symptoms.12
Thus, these appeals brought beforethis Court raising the
following arguments:
I
WHETHER THE CAUSE OF ACCUSATION AS CONTAINED
IN THE INFORMATION IS "FAILURE TO PERFORM
IMMEDIATE OPERATION UPON THE PATIENT ROFOLFO
PALMA JR. OF ACUTE APPENDICITIS;
II
WHETHER THE SUBJECT INFORMATION APPEARS TO
HAVE ACCUSED BOTH ACCUSED DOCTORS OF
CONSPIRACY AND THE APPEALED DECISION SEEMS TO
HAVE TREATED BOTH ACCUSED DOCTORS TO BE IN
CONSPIRACY;

III
WHETHER PETITIONER DR. CABUGAO IS A GENERAL
PRACTITIONER (NOT A SURGEON) AND HAVE EXCLUDED
SURGERY FROM THE LIMITS OFHIS PRACTICE, AND IT
WAS NOT AND NEVER HIS DUTY TO OPERATE THE
PATIENT RODOLFO PALMA JR., THAT WAS WHY HE
REFERRED SUBJECT PATIENT TO A SURGEON, DR.
CLENIO YNZON;
IV
WHETHER THE DEFENSE NEVER STATED THAT THERE IS
GUARANTEE THAT DOING SURGERY WOULD HAVE
SAVED THE PATIENT;
V
WHETHER THE WITNESSES FOR THE PROSECUTION
INCLUDING PROSECUTION'S EXPERT WITNESSES EVER
DECLARED/TESTIFIED THAT PETITIONER DR. CABUGAO
HAD THE DUTY TO PERFORM IMMEDIATE OPERATION ON
RODOLFO PALMA, JR., AND THEY FAILED TO
STATE/SHOW THAT THE PROXIMATE CAUSE OF DEATH
OF JR WAS ACUTE APPENDICITIS;
VI
WHETHER THE EXPERT WITNESSES PRESENTED BY THE
PROSECUTION EVER QUESTIONED THE MANAGEMENT
AND CARE APPLIED BY PETITIONER DR. CABUGAO;
VII
WHETHER THE EXPERT WITNESSES PRESENTED BY THE
DEFENSE ARE UNANIMOUS IN APPROVING THE METHOD
OF TREATMENT APPLIED BY BOTH ACCUSED DOCTORS
ON SUBJECT PATIENT, AND THEY DECLARED/AFFIRMED
THAT THEY WOULD FIRST PLACE SUBJECT THE PATIENT
UNDER OBSERVATION, AND WOULD NOT PERFORM
IMMEDIATE OPERATION;
VIII
WHETHER THE CONVICTION OF PETITIONER DR. YNZON
WAS ESTABLISHED WITH THE REQUIRED QUANTUM OF
PROOF BEYOND REASONABLE DOUBT THAT THE PATIENT
WAS SPECIFICALLY SUFFERING FROM AND DIED OF
ACUTE APPENDICITIS; and
IX
WHETHER THE FAILURE TO CONDUCT THE SPECIFIC
SURGICAL OPERATION KNOWN AS APPENDECTOMY
CONSTITUTED CRIMINAL NEGLIGENCE.

105

In a nutshell, the petition brought before this Court

raises the issue of whether or not petitioners' conviction
of the crime of reckless imprudence resulting in
homicide, arising from analleged medical malpractice, is
supported by the evidence on record.

A Yes, sir.16

Worth noting is that the assigned errors are actually

factual in nature, which as a general rule, findings of
factof the trial court and the Court of Appeals are
binding and conclusiveupon this Court, and we will not
normally disturb such factual findings unless the
findings of the court are palpably unsupported by the
evidence on record or unless the judgment itself is
based on misapprehension of facts. Inthe instant case,
we find the need to make certain exception.

Q You stated a while ago doctor thatyou are going to

[do] surgery to the patient, why doctor, if you are
notgoing to do surgery, what will happen?

AS TO DR. YNZON'S LIABILITY:

Reckless imprudence consists of voluntarily doing or
failing to do, without malice, an act from which material
damage results by reason of an inexcusable lack of
precautionon the part of the person performing or failing
to perform such act.13 The elements of reckless
imprudence are: (1) that the offender does or fails to do
an act; (2) that the doing or the failure to do that act is
voluntary; (3) that it bewithout malice; (4) that material
damage results from the reckless imprudence; and (5)
that there is inexcusable lack of precaution on the part
of the offender, taking into consideration his
employment or occupation, degree of intelligence,
physical condition, and other circumstances regarding
persons, time and place.14
With respect to Dr. Ynzon, all the requisites of the
offense have been clearly established by the evidence
on record. The court a quoand the appellate court were
one in concluding that Dr. Ynzon failed to observe the
required standard of care expected from doctors.
In the instant case, it was sufficiently established that to
prevent certain death, it was necessary to perform
surgery on JR immediately. Even the prosecutions own
expert witness, Dr. Antonio Mateo,15 testified during
cross-examination that he would perform surgery on JR:
ATTY. CASTRO:
Q. Given these data soft non-tender abdomen,
ambulatory, watery diarrhea, Exhibit C which is the
ultrasound result, with that laboratory would you
operate the patient?
A Yes, I would do surgery.
Q And you should have done surgery with this particular
case?"

xxxx
COURT:

A If this would be appendicitis, the usual progress would

be that it would be ruptured and generalized peritonitis
and eventually septicemia, sir.
Q What do you mean by that doctor?
A That means that infection would spread throughout
the body, sir.
Q If unchecked doctor, what will happen?
A It will result to death.17
xxxx
Q And what would have you doneif you entertain other
considerations from the time the patient was admitted?
A From the time the patient was admitted until the
report of the sonologist, I would have made a decision
by then.
Q And when to decide the surgery would it be a
particular exact time, would it be the same for all
surgeons?
A If you are asking acute appendicitis, it would be about
24 hours because acute appendicitis is a 24-hour
disease, sir.
Q. And would it be correct to say that it depends on the
changes on the condition of the patient?
A. Yes, sir.
Q. So, are you saying more than 24 hours when there
are changes?
A. If there are changes in the patient pointing towards
appendicitis then you have to decide right there and
then, sir.
Q. So if there are changes in the patient pointing to
appendicitis?

106

A. It depends now on what you are trying to wait for in

the observation period, sir.

perform a personal and thorough physical examination

of the patient as frequent as every 4 to 6 hours, to wit:

Q. So precisely if the change is a condition which bring

you in doubt that there is something else other than
appendicitis, would you extend over a period of 24
hours?

ATTY. CASTRO:

A. It depends on the emergent development, sir.

Q. That is the point, if you are the attending physician
and there is a change not pointing to appendicitis,
would you extend over a period of 24 hours?
A. In 24 hours you have to decide, sir.
xxxx
Q. And that is based on the assessment of the attending
physician?
A. Yes, sir.

Q. As an expert doctor, if you were faced with a history

of abdominal pain with nausea, vomiting, fever,
anurecia (sic), elevated white blood cell count, physical
examination of a positive psoas sign, observation of the
sonologist of abdominal tenderness and the ultrasound
findings of the probability of appendiceal (sic)
pathology, what will you do if you have faced these
problems, Doctor?
A. I will examine the patient thoroughly and it will
depend on my physical examination and that isprobably
every 4 to 6 hours, sir.20
On cross-examination, Dr. Villaflor affirmed:
Cross Exam. By Atty. Marteja:

18

Dr. Mateo further testified on cross-examination:

ATTY. CASTRO:
Q: So you will know yourself, as far as the record is
concerned, because if you will agree with me, you did
not even touch the patient?
A. Yes, I based my opinion on what is put on record, sir.
The records show that after the observation period, the
abdominal pain is still there plus there are already other
signs and symptoms which are not seen or noted.
Q. But insofar as you yourself not having touched the
abdomen of the patient, would you give a comment on
that?
A. Yes, based on the record, after 24 hours of
observation, the pain apparently was still there and
there was more vomiting and there was diarrhea. In my
personal opinion, I think the condition of the patient was
deteriorating.
Q. Even though you have not touched the patient?
A. I based on what was on the record, sir.19
From the foregoing, it is clear that if JRs condition
remained unchecked it would ultimately result in his
death, as what actually happened in the present case.
Another expert witness for the defense, Dr. Vivencio
Villaflor, Jr. testified on direct examination that he would

Q. x x x However, there are corrections and admissions

made at that time, your Honor, do I understand thatT/C
does not mean ruled out but rather to consider the
matter?
A. Yes, now that I have seen the records of the patient, it
says here, impression and T/C means to consider the
appendicitis.
Q. Isn't it that it is worth then to say that the initial
working diagnosis on Rodolfo Palma, Jr., otherwise
known as JR, to whom I shall now refer to as JR, the
primary consideration then is acute appendicitis, is that
correct to say Doctor?
A. I think so, that is the impression.
Q. x x x Now if it is to be considered as the primary
consideration in the initial working diagnosis, isn't it a
fact that it has tobe ruled out in order to consider it as
not the disease of JR?
A. Yes. Sir.
Q. Isn't it a fact thatto rule out acute appendicitis as not
the disease of JR, surgery or operation must be done,
isn't it Doctor?
A. You have to correlate all the findings.
Q. Is it yes or no, Doctor?
A. Yes.

107

Q. So, you are saying then that in order to rule out acute
appendicitis there must be an operation, that is right
Doctor?
A. No, sir. If your diagnosis is toreally determine if it is
an acute appendicitis, you have to operate.21
xxxx
Q. Now Doctor, considering the infection, considering
that there was a [symptom] that causes pain,
considering that JR likewise was feverish and that he
was vomiting, does that not show a disease of acute
appendicitis Doctor?
A. Its possible.
Q. So that if that is possible, are we getting the
impression then Doctor what you have earlier
mentioned that the only way to rule out the suspect
which is acute appendicitis is by surgery, you have said
that earlier Doctor, I just want any confirmation of it?
A. Yes, sir.22
Verily, whether a physician or surgeon has exercised the
requisite degree of skill and care in the treatment of his
patient is, in the generality of cases, a matter of expert
opinion. The deference of courts to the expert opinions
of qualified physicians stems from its realization that
the latter possess unusual technical skills which laymen
in most instances are incapable of intelligently
evaluating.23 From the testimonies of the expert
witnesses presented, it was irrefutably proven that Dr.
Ynzon failed to practice that degree of skill and care
required in the treatment of his patient.
As correctly observed by the appellate court, Dr. Ynzon
revealed want of reasonable skill and care in attending
to the needs of JR by neglecting to monitor effectively
the developmentsand changes on JR's condition during
the observation period, and to act upon the situation
after the 24-hour period when his abdominal pain
persisted and his condition worsened. Lamentable, Dr.
Ynzon appeared to have visited JRbriefly only during
regular rounds in the mornings. He was not there during
the crucial times on June 16, 2000 when JR's condition
started to deteriorate until JR's death. As the attending
surgeon, he should be primarily responsible in
monitoring the condition of JR, as he is in the best
position considering his skills and experience to know if
the patient's condition had deteriorated. While the
resident-doctors-onduty could likewise monitor the
patientscondition, he is the one directly responsible for
the patient as the attending surgeon. Indeed, it is
reckless and gross negligence of duty to relegate his

personal responsibility to observe the condition of the

patient. Again, acute appendicitis was the working
diagnosis, and with the emergence of graver symptoms
after the 24-hour observation, Dr. Ynzon ruled out
surgery for no apparent reason. We, likewise, note that
the records are devoid of showing of any reasonable
cause which would lead Dr. Ynzon tooverrule
appendectomy despite the initial diagnosis of
appendicitis. Neitherwas there any showing that he was
entertaining another diagnosis nor he took appropriate
steps towards another diagnosis.
Among the elements constitutive of reckless
imprudence, what perhaps is most central to a finding of
guilt is the conclusive determination that the accused
has exhibited, by his voluntary act without malice, an
inexcusable lack of precaution. It is that which supplies
the criminal intent so indispensable as tobring an act of
mere negligence and imprudence under the operation
of the penal law. This is because a conscious
indifference to the consequences of the conduct is all
that is required from the standpoint of the frame of
mind of the accused.24Quasioffenses penalize the
mental attitudeor condition behind the act, the
dangerous recklessness, the lack of care or foresight,
the "imprudencia punible," unlike willful offenses which
punish the intentional criminal act.25 This is precisely
where this Court found Dr. Ynzon to be guilty of - his
seemingly indifference to the deteriorating condition of
JR that he as a consequence, failed to exercise lack of
precaution which eventually led to JR's death.
To be sure, whether or not a physician has committed
an "inexcusable lack of precaution" in the treatment of
his patient is to be determined according to the
standard of care observed by other members of the
profession in good standing under similar circumstances
bearing in mind the advanced state of the profession at
the time of treatment or the present state of medical
science. In accepting a case, a doctor in effect
represents that, having the needed training and skill
possessed by physicians and surgeons practicing in the
same field, he will employ such training, care and skill in
the treatment of his patients. He, therefore, has a duty
to use at least the same level of care that any other
reasonably competent doctor would use to treat a
condition under the same circumstances.26 Sadly, Dr.
Ynzon did not display that degree of care and
precaution demanded by the circumstances.
AS TO DR. CABUGAO'S LIABILITY:
Every criminal conviction requires of the prosecution to
prove two things the fact of the crime, i.e., the
presence of all the elements of the crime for which the
accused stands charged, and the fact that the accused
is the perpetrator of the crime. Based on the above

108

disquisitions, however, the prosecution failed to prove

these two things. The Court is not convinced with moral
certainty that Dr. Cabugao isguilty of reckless
imprudence as the elements thereof were not proven by
the prosecution beyond a reasonable doubt.
Both the trial court and the appellate court bewail the
failure to perform appendectomy on JR, or the failure to
determine the source of infection which caused the
deterioration of JR's condition. However, a review of the
records fail to show that Dr. Cabugao is in any position
to perform the required appendectomy.
Immediately apparent from a review of the records of
this case is the fact that Dr. Cabugao is not a
surgeon,but a general practitioner specializing in family
medicine;27 thus, even if he wanted to, he cannot do an
operation, much less an appendectomy on JR. It is
precisely for this reason why he referred JR to Dr. Ynzon
after he suspected appendicitis. Dr. Mateo, the
prosecutions expert witness, emphasized the role of the
surgeon during direct examination, to wit:
ATTY. MARTEJA:
Q. You had mentioned that under this circumstances
and condition, you have mentioned that surgery is the
solution, would you have allowed then a 24 hour
observation?
A. If there is a lingering doubt, inshort period of
observation of 18-24 hours can be allowed provided that
there would be close monitoring of the patient, sir.
Q. Would you please tell us who would be doing the
monitoring doctor?
A. The best person should be the first examiner, the
best surgeon, sir.
Q. So that would you say that it is incumbent on the
surgeon attending to the case to have been the one to
observe within the period of observation?
A. Yes, because he will be in the best position to observe
the sudden changes in the condition of the patient, sir.
Q. And how often would in your experience doctor, how
often would the surgeon re-assist (sic) the condition of
the patient during the period of observation?
A. Most foreign authors would recommend every four (4)
hours, some centers will recommend hourly or every
two hours but here in the Philippines, would recommend
for 4 to 6 hours, sir.28

Dr. Cabugaos supervision does not cease upon his

endorsement of his patient to the surgeon. Here, Dr.
Cabugao has shown to have exerted all efforts to
monitor his patient and under these circumstances he
did not have any cause to doubt Dr. Ynzons
competence and diligence. Expert testimonies have
been offered to prove the circumstances surrounding
the case of JR and the need to perform an operation.
Defense witness, Dr. Villaflor, on cross examination
testified, to wit:
Q. Isn't it a fact that torule out acute appendicitis as
notthe disease of JR, surgery or operation mustbe done,
isn't it Doctor?
A. You have to [correlate] all the findings.
Q. Is it yes or no, Doctor?
A. Yes.
Q. So, you are saying then that in order to rule out acute
appendicitis there must be an operation, that is right
Doctor?
A. No, sir. If your diagnosis is to really determine if it is
an acute appendicitis, you have to operate.29
xxxx
Q. Now Doctor, considering the infection, considering
that there was a [symptom] that causes pain,
considering that JR likewise was feverish and that he
was vomitting, does that not show a disease of acute
appendicitis Doctor?
A. Its possible.
Q. So that if that is possible, are we getting the
impression then Doctor what you have earlier
mentioned that the only way to rule out the suspect
which is acute appendicitis is by surgery, you have said
that earlier Doctor, I just want any confirmation of it?
A. Yes, sir.30
Neither do we find evidence that Dr. Cabugao has been
negligent or lacked the necessary precaution in his
performance of his duty as a family doctor. On the
contrary, a perusal ofthe medical records would show
that during the 24-hour monitoring on JR, it was Dr.
Cabugao who frequently made orders on the
administration of antibiotics and pain relievers. There
was also repetitive instructions from Dr. Cabugao to
refer JR to Dr. Ynzon as it appeared that he is suspecting

109

appendicitis. The referral of JR to Dr. Ynzon, a surgeon,

is actually an exercise of precaution as he knew that
appendicitis is not within his scope of expertise. This
clearly showed that he employed the best of his
knowledge and skill in attending to JR's condition, even
after the referral of JR to Dr. Ynzon. To be sure, the
calculated assessment of Dr. Cabugao to refer JRto a
surgeon who has sufficient training and experience to
handle JRs case belies the finding that he displayed
inexcusable lack of precaution in handling his patient. 31
We likewise note that Dr. Cabugao was out of town
when JR's condition began to deteriorate. Even so,
before he left, he made endorsement and notified the
resident-doctor and nurses-on-duty that he will be on
leave.
Moreover, while both appeared to be the attending
physicians of JR during his hospital confinement, it
cannot be said that the finding of guilt on Dr. Ynzon
necessitates the same finding on the co-accused Dr.
Cabugao. Conspiracy is inconsistent with the idea of a
felony committed by means of culpa.32 Thus, the
accused-doctors to be found guilty of reckless
imprudence resulting in homicide, it must be shown that
both accused-doctors demonstratedan act executed
without malice or criminal intent but with lack of
foresight, carelessness, or negligence. Noteworthy, the
evidence on record clearly points to the reckless
imprudence of Dr. Ynzon; however, the same cannot be
said in Dr. Cabugao's case.
AS TO CIVIL LIABILITY
While this case is pending appeal, counsel for petitioner
Dr. Ynzon informed the Court that the latter died on
December 23, 2011 due to "multiorgan failure" as
evidenced by a copy of death certificate.33 Thus, the
effect of death, pending appeal of his conviction of
petitioner Dr. Ynzon with regard to his criminal and
pecuniary liabilities should be in accordance to People v.
Bayotas,34 wherein the Court laid down the rules in case
the accused dies prior to final judgment:
1. Death of the accused pending appeal of his
conviction extinguishes his criminal liability as
well as the civil liability based solely thereon. As
opined by Justice Regalado, in this regard, "the
death of the accused prior to final judgment
terminates his criminal liability and only the civil
liability directly arising from and based solely on
the offense committed, i.e.,civil liability ex
delictoin senso strictiore."
2. Corollarily, the claim for civil liability survives
notwithstanding the death of accused, if the

same may also be predicated on a source of

obligation other than delict. Article 1157 of the
Civil Code enumerates these other sources of
obligation fromwhich the civil liability may arise
as a result of the same act or omission:
a) Law
b) Contracts
c) Quasi-contracts
d) x x x x x x x x x
e) Quasi-delicts
3. Where the civil liability survives, as explained
in Number 2 above, an action for recovery
therefor may be pursued but only by way of
filing a separate civil action and subject to
Section 1, Rule 111 of the 1985 Rules on
Criminal Procedure as amended. This separate
civil action may be enforced either againstthe
executor/administrator or the estate of the
accused, depending on the source of obligation
upon which the same is based as explained
above.
4. Finally, the private offended party need not
fear a forfeiture of his right to file this separate
civil action by prescription, in cases where
during the prosecution of the criminal action
and prior to its extinction, the private-offended
party instituted together therewith the civil
action. In such case, the statute of limitationson
the civil liability is deemed interrupted during
the pendency of the criminal case, conformably
with provisions of Article 1155 of the Civil Code,
that should thereby avoid any apprehension on
a possible privation of right by prescription.35
In view of the foregoing, it is clear that the death of the
accused Dr. Ynzon pending appeal of his conviction
extinguishes his criminal liability. However, the recovery
of civil liability subsists as the same is not based on
delictbut by contract and the reckless imprudence he
was guilty of under Article 365 of the Revised Penal
Code.1wphi1For this reason, a separate civil action
may be enforced either against the
executor/administrator or the estate of the accused,
depending on the source of obligation upon which the
same is based,36 and in accordance with Section 4, Rule
111 of the Rules on Criminal Procedure, we quote:
Sec. 4. Effect of death on civil actions. The death of
the accused after arraignment and during the pendency

110

of the criminal action shall extinguish the civil liability

arising from the delict. However, the independent civil
action instituted under section 3 of this Rule or which
thereafter is instituted to enforce liability arising from
other sources of obligation may be continued against
the estate or legal representative of the accused after
proper substitution or against said estate, as the case
may be. The heirs of the accused may besubstituted for
the deceased without requiring the appointment of an
executor or administrator and the court may appoint a
guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative
or representatives to appear and be substituted within a
period of thirty (30) days from notice.
A final judgment entered in favor of the offended party
shall be enforced in the manner especially provided in
these rules for prosecuting claims against the estate of
the deceased.
If the accused dies before arraignment, the case shall
be dismissed without prejudice to any civil action the
offended party may file against the estate of the
deceased. (Emphases ours)
In sum, upon the extinction of the criminal liability and
the offended party desires to recover damages from the
same act or omission complained of, the party may file
a separate civil action based on the other sources of
obligation in accordance with Section 4, Rule 111. 37 If
the same act or omission complained of arises from
quasi-delict,as in this case, a separate civil action must
be filed against the executor or administrator of the
estate of the accused, pursuant to Section 1, Rule 87 of
the Rules of Court:38
Section 1. Actions which may and which may not be
brought against executor or administrator. No action
upon a claim for the recovery of money or debtor
interest thereon shall be commenced against the
executor or administrator; but to recover real or
personal property, or an interest therein, from the
estate, or to enforce a lien thereon, and actions to
recover damages for an injury to person or property,
real or personal, may be commenced against him.
(Emphases ours)
Conversely, if the offended party desires to recover
damages from the same act or omission complained of
arising from contract, the filing of a separate civil action
must be filed against the estate, pursuant to Section 5,
Rule 86 of the Rules of Court, to wit:
Section 5. Claims which must be filed under the notice.
If not filed, barred; exceptions. All claims for money

against the decent, arising from contract, express or

implied, whether the same be due, not due, or
contingent, all claims for funeral expenses and expense
for the last sickness of the decedent, and judgment for
money against the decent, must be filed within the time
limited in the notice; otherwise they are barred forever,
except that they may be set forth as counterclaims in
any action that the executor or administrator may bring
against the claimants. Where an executor or
administrator commencesan action, or prosecutes an
action already commenced by the deceased in his
lifetime, the debtor may set forth by answer the claims
he has against the decedent, instead of presenting
them independently to the court as herein provided, and
mutual claims may be set off against each other in such
action; and if final judgment is rendered in favor of the
defendant, the amount so determined shall be
considered the true balance against the estate, as
though the claim had been presented directly beforethe
court in the administration proceedings. Claims not yet
due, or contingent, may be approved at their present
value.
As a final note, we reiterate thatthe policy against
double recovery requires that only one action be
maintained for the same act or omission whether the
action is brought against the executor or administrator,
or the estate.39 The heirs of JR must choose which of the
available causes of action for damages they will bring.
WHEREFORE, premises considered, petitioner DR.
ANTONIO P. CABUGAO is hereby ACQUITTEDof the crime
of reckless imprudence resulting to homicide.
Due to the death of accused Dr. Clenio Ynzon prior to
the disposition of this case, his criminal liability is
extinguished; however, his civil liability subsists. A
separate civil action may be filed either against the
executor/administrator, or the estateof Dr. Ynzon,
depending on the source of obligation upon which the
same are based.

MEDICAL WITNESSES AND EVIDENCE

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
JIMMY ALVERIO, Accused-Appellant.
DECISION
VELASCO, JR., J.:
The Case

111

This is an appeal from the March 25, 2010 Decision 1 of

the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00020,
which affirmed the August 26, 2004 Decision in Criminal
Case No. CB-02-195 of the Regional Trial Court (RTC),
Branch 37 in Caibiran, Naval, Biliran.2 The RTC convicted
accused Jimmy Alverio (Alverio) of rape.

the back of the barangay hall.9 There, Alverio held her

hair, undressed her, and started to kiss her. 10 AAA kept
on resisting and even punched Alverio after he kissed
her, at which point, Alverio told her that it was painful
and that he might retaliate if she continued.11 This
caused AAA to stop resisting and Alverio then
proceeded to insert his penis in her vagina repeatedly. 12

The Facts
The charge against Alverio stemmed from the following
Information:
That on or about the 3rd day of June, 2002, at about
2:00 oclock early dawn, more or less, at
[PPP],3 Philippines, and within the jurisdiction of this
Honorable Court, while [AAA] was on her way to her
grandmothers house from the benefit dance, herein
accused, a cousin of herein complainant, with lewd
designs, and by means of force and intimidation, get
hold of her arm and did then and there drag her to the
back of the barangay hall, by holding her hair and
forcibly laid her to the ground, willfully, unlawfully and
feloniously poked her a short bladed weapon known as
pisao forcibly took off her pants and panty and
succeeded in having carnal knowledge with her against
her will to her damage and prejudice.
Contrary to law.4
On July 3, 2003, Alverio, with the assistance of his
counsel de oficio, was arraigned, and he pleaded "not
guilty" to the charge against him. After the pre-trial, trial
on the merits ensued.
During the trial, the prosecution offered the sole
testimony of the private complainant. On the other
hand, the defense presented accused Alverio, Henry
Toledo (Toledo), and Lily Toledo as its witnesses.
The Prosecutions Version of Facts
In the afternoon of June 2, 2002, AAA, along with her
friends Belen Sabanag (Sabanag) and Aileen Sinangote
(Sinangote), went to the house of her grandmother to
attend a dance event.5 At around 8:30 in the evening,
they proceeded to the dance hall because the dance
would start at around 9 oclock.6 During the dance,
Sabanag and Sinangote danced with Alverio but AAA did
not.7 At 2 oclock in the morning of June 3, 2002, AAA
noticed that her friends were no longer at the dance so
she decided to go home to her grandmothers house.8
As she was nearing the barangay hall, Alverio suddenly
appeared and took hold of AAA. She tried to resist him
but he was too strong and he managed to pull her away.
AAA started to cry while she was being dragged towards

After having carnal knowledge with her, Alverio stood up

and put on his clothes. He warned AAA that if she told
anyone about what happened, he will kill her.13 After
threatening her, he left.
During this entire incident, Alverio was armed with a
knife which he used to poke AAAs side.
Dazed, AAA could not muster enough strength to go
home. She just sat on the road beside the barangay hall
until 5 oclock in the morning when her Uncle Intoy
passed by. He brought her home to her parents but she
did not tell him anything. Upon reaching home, AAA told
her parents about what happened.14
Version of the Defense
Alverios defense, on the other hand, was confined to
his denial of the accusation and an alibi, to wit:
Sometime around 7:30 in the evening of June 2, 2002,
Alverio recalled that he was in the barangay chapel with
his friend, Toledo, waiting for the dance to begin. 15 The
dance hall was just adjacent to the barangay chapel. At
8:30 in the evening, the dance started. He danced with
some persons whose names he could no longer
recall.16But he categorically remembered that he did not
see AAA in the dance area.17
At 12:00 midnight, Alverio and Toledo walked home to
Toledos house, where Alverio was staying.18 On their
way home, they passed by the barangay hall.19 Upon
reaching home, they slept and woke up at 5:30 in the
morning of June 3, 2002.20
In his testimony, Alverio admitted that he and AAA are
cousins, their mothers being sisters.21
His testimony was corroborated by Toledo22 and Toledos
mother, Lily Toledo.23
Ruling of the Trial Court
After trial, the RTC convicted Alverio. The dispositive
portion of its August 26, 2004 Decision reads:

112

WHEREFORE, premises considered, judgment is hereby

rendered finding the accused JIMMY ALVERIO guilty
beyond reasonable doubt of the crime of rape. With no
aggravating or mitigating circumstance, he is sentenced
to the lesser penalty of reclusion perpetua; to indemnify
[AAA] Fifty Thousand (P50,000.00) Pesos; and to pay the
costs.
SO ORDERED.24
On appeal to the CA, Alverio disputed the trial courts
finding of his guilt beyond reasonable doubt of the
crime charged. He argued that the presumption of
innocence should prevail especially considering that the
prosecution only had a single testimony to support the
charge of rape.
Ruling of the Appellate Court
On March 25, 2010, the CA affirmed the judgment of the
RTC. The dispositive portion of the CA Decision reads:
IN LIGHT OF ALL THE FOREGOING, the Decision of the
Regional Trial Court, Branch 37, Caibiran, Naval, Biliran
in Criminal Case No. CB-02-195 convicting the accusedappellant is AFFIRMED with MODIFICATION in that he is
also hereby adjudged liable to pay the victim the
amount of Php50,000.00 as moral damages.
His penalty of reclusion perpetua and the award of civil
indemnity of Php50,000.00 stands.
Costs against the accused-appellant.
SO ORDERED.25
The Issue
Alverio now comes before this Court with the lone
assignment of error contending that "[t]he trial court
gravely erred in finding the accused-appellant guilty
beyond reasonable doubt of rape."26
The Courts Ruling
We sustain Alverios conviction.
In his Brief, Alverio argues that the trial court should
have taken the lone testimony of the complainant with
caution and that the testimony should have been
weighed carefully, taking into consideration the
constitutional precept that in all criminal prosecutions,
the accused must be presumed innocent unless the
contrary is proved.

Alverio raises three (3) grounds in support of his

argument. First, he assails the trial court for giving
credence to the sole testimony of the victim. He claims
that the prosecution should have presented other
witnesses to corroborate the testimony of the victim.
Second, he contends that the medical certificate
presented as evidence was not testified to by the
signatory himself and should therefore not be
considered as corroborative evidence. Lastly, he claims
that the trial court gravely erred in convicting him of the
crime of rape for failure of the prosecution to prove his
guilt beyond reasonable doubt.
After a careful perusal of the records of this case,
however, the Court is satisfied that the prosecutions
evidence sufficiently established Alverios guilt with
moral certainty.
In People v. Malate,27 We reiterated the principles with
which courts are guided in determining the guilt or
innocence of the accused in rape cases, viz:
x x x (1) an accusation of rape can be made with facility
and while the accusation is difficult to prove, it is even
more difficult for the person accused, though innocent,
to disprove the charge; (2) considering that, in the
nature of things, only two persons are usually involved
in the crime of rape, the testimony of the complainant
should be scrutinized with great caution; and (3) the
evidence of the prosecution must stand or fall on its
own merit, and cannot be allowed to draw strength from
the weakness of the evidence for the defense.
Moreover, in that same case, this Court held that "in
cases involving the prosecution for forcible rape x x x
corroboration of the victims testimony is not a
necessary condition to a conviction for rape where the
victims testimony is credible, or clear and convincing or
sufficient to prove the elements of the offense beyond a
reasonable doubt."28 As such, appellate courts generally
do not disturb the findings of the trial court with regard
to the assessment of the credibility of witnesses, 29 the
reason being that the trial court has the "unique
opportunity to observe the witnesses first hand and
note their demeanor, conduct and attitude under grilling
examination."30 More importantly, courts generally give
full credence to the testimony of a complainant for rape,
especially one who is only a minor.31
The exceptions to this rule are when the trial courts
findings of facts and conclusions are not supported by
the evidence on record, or when certain facts of
substance and value likely to change the outcome of the
case have been overlooked by the lower court, or when
the assailed decision is based on a misapprehension of

113

facts.32However, this Court finds none of these

exceptions present in the instant case.
The victim testified in a steadfast and straightforward
manner, to wit:

Q When you were already undressed what

happened, can you tell this to the Honorable
Court?
A He tried kissed [sic] me several times and I
resisted and I boxed him.

PROS. JOCOBO:
Q Now can you tell now [since] there are no
more persons around except you and the
accused can tell to the Court, or were you able
to reach in the house of your lola?

Q After you have boxed him after kissing you

what next happened?
A He said that is painful I might retaliate with
you.

A When I was walking I was suddenly held by

Jimmy Alverio.

Q After hearing on that what did Jimmy had

done to you?

Q Where were you already walking did Jimmy

Alverio suddenly held you?

A I just cried I did not mind him anymore.

Q How about Jimmy what was he doing?

A Near Brgy. Hall of Brgy. Maurang.

A He continued kissing me.
Q What happened next after you were held by
Jimmy Alverio near the brgy. hall of Maurang?
A He tried to pull me but then I resisted, and
Jimmy insisted by pulling me until I cried.

Q After kissing you what next follow?

ATTY. SABANDAL:

Q Did you in fact drag to the brgy. hall?

I would like to request Your Honor that the

prosecution would discontinue and encouraging
very much because its up to the witness to
answer Your Honor the question. Since
previously it would [seem] that the witness
could be able to answer only after so much
question

A Yes sir.

PROS. JOBOCO:

Q While you were at the back of the brgy. hall

can you tell this Honorable Court what
happened?

Your Honor please according to the circular on

examining minors we will to give full support
and we to understand the minors especially if
victims of minor cases.

A [He] held my hair and he tried to undressed

me but I resisted.

ATTY. SABANDAL:

Q Then even if you were already crying what

next happened?
A He drag me towards the back of the Brgy hall.

Q Since he tried to undressed [sic] you and you

were resisted [sic] was he able or was he
successful in undressing you?

It was not established that she is a minor, Your

Honor.
COURT:

A Yes sir.
She is 14 years old.
Q Despite of your resistance?
FROM THE COURT:
A Yes sir.

114

Q Now you said that you were undressed by

Jimmy Alverio, do you mean to say that you
were already naked when you said undressed?

A to my vagina.
Q And when Jimmy inserted his penis to your
vagina what did you feel?

A Yes sir.
A I felt pain.
Q And when Jimmy Alverio kissing you several
times were you already naked?

Q And when you felt pain what did you do?

A Yes sir.

A I kept on crying.

xxxx

PROS. JOBOCO:

Q What did Jimmy do more while he was kissing

several times and you were naked?

I think that would be all Your Honor I think the

witness already crying.

COURT INTERPRETER:

COURT:

At this juncture Your Honor the witness is crying.

How many times did Jimmy insert his penis to

your vagina?

COURT:
A three (3) times.
Q And when you were naked was Jimmy also
naked?

Q After the three (3) times intercourse with you

what did Jimmy do to you?

A Yes sir.
xxxx
Q You were naked and Jimmy Alverio was also
naked and Jimmy Alverio was kissing you so
many times, what more did Jimmy Alverio do to
you?

A He stood up and he dressed himself and he

left me.
Q Did he not leave words to you?
A He told me that if you will told anybody in
your family, your mother and your father I will
kill you.

A He inserted his penis.

Q What were your position, were you standing,
or you were lying down?

Q Was she have arm [sic] at that time of the

incident?
A Yes sir.

A Lying position.
Q What arm or firearm or what?
Q Or something was placed on the ground?
A a knife.
A On the ground.
COURT:
Alright Pros. Joboco you can proceed the
continuation of your direct examination.

Q Did he use that in forcing you to do the sexual

acts?
A Yes sir.
Q By what means did he threatened you?

PROS. JOBOCO:
A He poke it at my side.
Q When you said when Jimmy Alverio was
inserted his penis where was inserted?

115

Q Now what would you mean, he poke it at my

side, what did you do?
A I remain there crying.33
It is strikingly clear from the above transcript that AAAs
testimony was very coherent and candid. Thus, We find
no reason to overturn the findings of the trial court.
In addition, Alverio submits that although the medical
certificate was presented as evidence, its contents were
never testified to by the signatory himself and, as such,
cannot be considered as corroborative of the claim of
the victim that she was raped.
Such argument, however, cannot prosper. Medical
evidence is dispensable and merely corroborative in
proving the crime of rape. Besides, a medical certificate
is not even necessary to prove the crime of rape.34 The
gravamen of rape is carnal knowledge of a woman
through force and intimidation.35
The elements needed to prove the crime of rape under
paragraph 1(a) of Article 266-A of the Revised Penal
Code are: (1) the offender is a man; (2) the offender had
carnal knowledge of a woman; and (3) the act is
accomplished by using force or intimidation. All these
elements were sufficiently proved by the prosecution.
The testimony of AAA overwhelmingly proves that
Alverio raped her with the use of force and intimidation.
Furthermore, Alverios defense of alibi cannot stand
versus the positive identification of AAA. Nothing is
more settled in criminal law jurisprudence than the rule
that alibi and denial cannot prevail over the positive and
categorical testimony and identification of the accused
by the complainant.36
Accordingly, We find that the prosecution has
discharged its burden of proving the guilt of Alverio
beyond reasonable doubt.
As to the award of damages, the CA was correct in
awarding PhP 50,000 as moral damages without need of
proof. However, in line with current jurisprudence,37 an
additional award of PhP 30,000 as exemplary damages
should likewise be given, as well as interest of six
percent (6%) per annum on all damages awarded from
the finality of judgment until fully paid.
WHEREFORE, the appeal is DENIED. The CA Decision in
CA-G.R. CR-H.C. No. 00020 finding accused-appellant
Jimmy Alverio guilty of the crime charged is AFFIRMED
with MODIFICATION. As modified, the ruling of the trial
court should read as follows:

WHEREFORE, premises considered, judgment is hereby

rendered finding the accused JIMMY ALVERIO guilty
beyond reasonable doubt of the crime of rape. With no
aggravating or mitigating circumstance, he is sentenced
to the lesser penalty of reclusion perpetua; to pay [AAA]
Fifty Thousand (P50,000.00) Pesos as civil indemnity,
Fifty Thousand (P50,000.00) as moral damages and
Thirty Thousand (P30,000.00) as exemplary damages
with interest of six percent (6%) per annum on all
awards of damages from the finality of judgment until
fully paid; and to pay the costs.
SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BERNARDINO DOMANTAY, @ "JUNIOR
OTOT," accused-appellant.

MENDOZA, J.:
This case is here on appeal from the decision 1 of the
Regional Trial Court of Dagupan City (Branch 57), finding
accused-appellant guilty of rape with homicide and
sentencing him to death, and to indemnify the heirs of
the victim in the amount of P480,000.00, and to pay the
costs.
The facts hark back to the afternoon of October 17,
1996, at around 4 o'clock, when the body of six-year old
Jennifer Domantay was found sprawled amidst a
bamboo grove in Guilig, Malasiqui, Pangasinan. The
child's body bore several stab wounds. Jennifer had
been missing since lunch time.
The medical examination conducted the following day
by Dr. Ma. Fe Leticia Macaranas, the rural health
physician of Malasiqui, showed that Jennifer died of
multiple organ failure and hypovolemic shock secondary
to 38 stab wounds at the back. Dr. Macaranas found no
lacerations or signs of inflammation of the outer and
inner labia and the vaginal walls of the victim's
genitalia, although the vaginal canal easily admitted the
little finger with minimal resistance. Noting possible
commission of acts of lasciviousness, Dr. Macaranas
recommended an autopsy by a medico-legal expert of
the NBI. 2
The investigation by the Malasiqui police pointed to
accused-appellant Bernardino Domantay, a cousin of
the victim's grandfather, as the lone suspect in the
gruesome crime. At around 6:30 in the evening of that

116

day, police officers Montemayor, de la Cruz, and de

Guzman of the Malasiqui Philippine National Police (PNP)
picked up accused-appellant at the Malasiqui public
market and took him to the police station where
accused-appellant, upon questioning by SPO1 Antonio
Espinoza, confessed to killing Jennifer Domantay. He
likewise disclosed that at around 3:30 that afternoon, he
had given the fatal weapon used, a bayonet, to Elsa and
Jorge Casingal, his aunt and uncle respectively, in
Poblacion Sur, Bayambang, Pangasinan. The next day,
October 18, 1996, SPO1 Espinoza and another
policeman took accused-appellant to Bayambang and
recovered the bayonet from a tricycle belonging to the
Casingal spouses. The police officers executed a receipt
to evidence the confiscation of the weapon. 3
On the basis of the post-mortem findings of Dr.
Macaranas, SPO4 Juan Carpizo, the Philippine National
Police chief investigator at Malasiqui, filed, on October
21, 1996, a criminal complaint for murder against
accused-appellant before the Municipal Trial Court (MTC)
of Malasiqui. On October 25, 1996, Dr. Ronald Bandonill,
medico-legal expert of the NBI, performed an autopsy
on the embalmed body of Jennifer. The result of his
examination of the victim's genitalia indicated that the
child's hymen had been completely lacerated on the
right side. Based on this finding, SPO4 Carpizo amended
the criminal complaint against accused-appellant to
rape with homicide. Subsequently, the following
information was filed: 4
That on or about the 17th day of
October, 1996, in the afternoon, in
barangay Guilig, Municipality of
Malasiqui, province of Pangasinan,
Philippines and within the jurisdiction of
this Honorable Court, the above-named
accused, with lewd design and armed
with a bayonnete, did then and there,
wilfully, unlawfully and feloniously have
sexual intercourse with Jennifer
Domantay, a minor of 6 years old
against her will and consent, and on the
same occasion, the said accused with
intent to kill, then and there, wilfully,
unlawfully and feloniously stab with the
use of a bayonnete, the said Jennifer
Domantay, inflicting upon her multiple
stab wounds, which resulted to her
death, to the damage and prejudice of
her heirs.
At the trial, the prosecution presented seven witnesses,
namely, Edward, Jiezl, Lorenzo, all surnamed Domantay,
Joselito Mejia, Antonio Espinoza, Celso Manuel, and Dr.
Ronald Bandonill, to establish its charge that accusedappellant had raped and killed Jennifer Domantay.

Edward Domantay testified that in the morning of

October 17, 1996, accused-appellant and his two
brothers-in-law, Jaime Caballero and Daudencio
Macasaeb, had a round of drinks in front of the latter's
house in Guilig, Malasiqui, Pangasinan. Edward
Domantay said that he was in front of Macasaeb's
house, tending to some pigeons in his yard. 5 After the
group had consumed several bottles of San Miguel gin,
accused-appellant gave money to Edward Domantay
and asked him to buy two bottles of gin and a bottle of
Sprite. 6 Edward said he joined the group and sat
between Daudencio Macasaeb and accusedappellant. 7 Edward said that accused-appellant, who,
apparently had one too many then, rolled up his shirt
and said: "No diad Antipolo tan L[i]pa et walay
massacre, diad Guilig wala, walay massacren kod dia,
walay onakis-akis" ("In Antipolo and Lipa, there were
massacres; here in Guilig, there will also be a massacre.
I will massacre somebody here, and they will cry and
cry"). Edward Domantay saw that tucked in the left side
of accused-appellant's waistline was a bayonet without
a cover handle. 8 It was not the first time that Edward
had seen accused-appellant with the knife as the latter
usually carried it with him. 9
Jiezl Domantay, 10, likewise testified. She said that, at
about 2 o'clock in the afternoon on October 17, 1996,
she and four other children were playing in front of their
house in Guilig, Malasiqui, Pangasinan. Jiezl saw
accused-appellant and Jennifer Domantay walking
towards the bamboo grove of Amparo Domantay where
Jennifer's body was later found. Accused-appellant was
about two meters ahead of Jennifer. The bamboo grove
was about 8 to 10 meters from the house of Jiezl
Domantay. 10
Lorenzo Domantay, a relative of the victim,
corroborated Jiezl's testimony that accused-appellant
had gone to Amparo Domantay's bamboo grove in the
afternoon of October 17, 1996. Lorenzo said that
afternoon, on his way to his farm, he saw accusedappellant about 30 meters away, standing at the spot in
the bamboo grove where Jennifer's body was later
found. Accused-appellant appeared restless and worried
as he kept looking around. However, as Lorenzo was in a
hurry, he did not try to find out why accused-appellant
appeared to be nervous. 11
Prosecution witness Joselito Mejia, a tricycle driver, said
that, in the afternoon of October 17, 1996, he was about
to take his lunch at home in Alacan, a neighboring
barangay about half a kilometer from Guilig, when
accused-appellant implored Mejia to take him to
Malasiqui at once. Mejia told accused-appellant that he
was going to take his lunch first, but the latter pleaded
with him, saying they will not be gone for long. Mejia,
therefore, agreed. Mejia noticed that accused-appellant

117

was nervous and afraid. Accused-appellant later

changed his mind. Instead of going to the town proper,
he alighted near the Mormon's church, outside
Malasiqui. 12
In addition, the prosecution presented SPO1 Antonio
Espinoza and Celso Manuel who testified that, on
separate occasions, accused-appellant had confessed to
the brutal killing of Jennifer Domantay.
SPO1 Espinoza testified that he investigated accusedappellant after the latter had been brought to the
Malasiqui police station in the evening of October 17,
1996. Before he commenced his questioning, he
apprised accused-appellant of his constitutional right to
remain silent and to have competent and independent
counsel, in English, which was later translated into
Pangasinense. 13 According to SPO1 Espinoza, accusedappellant agreed to answer the questions of the
investigator even in the absence of counsel and
admitted killing the victim. Accused-appellant also
disclosed the location of the bayonet he used in killing
the victim. 14 On cross-examination, Espinoza admitted
that at no time during the course of his questioning was
accused-appellant assisted by counsel. Neither was
accused-appellant's confession reduced in
writing. 15 Espinoza's testimony was admitted by the
trial court over the objection of the defense.
Celso Manuel, for his part, testified that he is a radio
reporter of station DWPR, an AM station based in
Dagupan City. He covers the third district of Pangasinan,
including Malasiqui. Sometime in October 1996, an
uncle of the victim came to Dagupan City and informed
the station about Jennifer Domantay's case. 16 On
October 23, 1996, Manuel went to Malasiqui to interview
accused-appellant who was then detained in the
municipal jail. He described what transpired during the
interview thus: 17
PROS. QUINIT:
Q Did you introduce
yourself as a media
practitioner?
A Yes, sir.
Q How did you introduce
yourself to the accused?
A I showed to
Bernardino
Domantay alias "Junior
Otot" my I.D. card and I
presented myself as a

media practitioner with

my tape recorder [in]
my hand, sir.
Q What was his reaction
to your request for an
interview?
A He was willing to state
what had happened, sir.
Q What are those
matters which you
brought out in that
interview with the
accused Bernardino
Domantay alias "Junior
Otot"?
A I asked him what was
his purpose for human
interest's sake as a
reporter, why did he
commit that alleged
crime. And I asked also
if he committed the
crime and he answered
"yes." That's it.
xxx xxx xxx
PROS. QUINIT:
Q You mentioned about
accused admitting to
you on the commi[ssion]
of the crime, how did
you ask him that?
A I asked him very
politely.
Q More or less what
have you asked him on
that particular matter?
A I asked "Junior Otot,"
Bernardino Domantay,
"Kung pinagsisisihan mo
ba ang iyong ginawa?"
"Opo" sabi niya, "Ibig
mo bang sabihin Jun,
ikaw ang pumatay kay
Jennifer?", "Ako nga po"
The [l]ast part of my
interview, "Kung

118

nakikinig ang mga

magulang ni Jennifer,
ano ang gusto mong
iparating?", "kung gusto
nilang makamtan ang
hustisya ay tatanggapin
ko". That is what he
said, and I also asked
Junior Otot, what was his
purpose, and he said, it
was about the boundary
dispute, and he used
that little girl in his
revenge.
On cross-examination, Manuel explained that the
interview was conducted in the jail, about two to three
meters away from the police station. An uncle of the
victim was with him and the nearest policemen present
were about two to three meters from him, including
those who were in the radio room. 18 There was no
lawyer present. Before interviewing accused-appellant,
Manuel said he talked to the chief of police and asked
permission to interview accused-appellant. 19 On
questioning by the court, Manuel said that it was the
first time he had been called to testify regarding an
interview he had conducted. 20 As in the case of the
testimony of SPO1 Espinoza, the defense objected to
the admission of Manuel's testimony, but the lower
court allowed it.
Dr. Bandonill, the NBI medico-legal who conducted an
autopsy of the victim on October 25, 1996, testified that
Jennifer Domantay died as a result of the numerous stab
wounds she sustained on her back, 21 the average depth
of which was six inches. 22 He opined that the wounds
were probably caused by a "pointed sharp-edged
instrument." 23 He also noted on the aforehead, neck,
and breast bone of the victim. 24 As for the results of the
genital examination of the victim, Dr. Bandonill said he
found that the laceration on the right side of the hymen
was caused within 24 hours of her death. He added that
the genital area showed signs of inflammation. 25
Pacifico Bulatao, the photographer who took the
pictures of the scene of the crime and of the victim after
the latter's body was brought to her parents' house,
identified and authenticated the five pictures (Exhibits
A, B, C, D, and E) offered by the prosecution.
The defense then presented accused-appellant as its
lone witness. Accused-appellant denied the allegation
against him. He testified he is an uncle of Jennifer
Domantay (he and her grandfather are cousins) and
that he worked as a janitor at the Malasiqui Municipal
Hall. He said that at around 1 o'clock in the afternoon of
October 17, 1996, he was bathing his pigs outside in the

house of his brother-in-law Daudencio Macasaeb in

Guilig, Malasiqui, Pangasinan. He confirmed that
Daudencio was then having drinks in front of his
(Macasaeb's) house. Accused-appellant claimed,
however, that he did not join in the drinking and that it
was Edward Domantay, whom the prosecution had
presented as witness, and a certain Jaime Caballero who
joined the party. He also claimed that it was he whom
Macasaeb had requested to buy some more liquor, for
which reason he gave money to Edward Domantay so
that the latter could get two bottles of gin, a bottle of
Sprite, and a pack of cigarettes. 26 He denied Edward
Domantay's claim that he (accused-appellant) had
raised his shirt to show a bayonet tucked in his waistline
and that he had said he would massacre someone in
Guilig. 27
Accused-appellant also confirmed that, at about 2
o'clock in the afternoon, he went to Alacan passing on
the trail beside the bamboo grove of Amparo Domantay.
But he said he did not know that Jennifer Domantay was
following him. He further confirmed that in Alacan, he
took a tricycle to Malasiqui. The tricycle was driven by
Joselito Mejia. He said he alighted near the Mormon
church, just outside of the town proper of Malasiqui to
meet his brother. As his brother did not come, accusedappellant proceeded to town and reported for work.
That night, while he was in the Malasiqui public market,
he was picked up by three policemen and brought to the
Malasiqui police station where he was interrogated by
SPO1 Espinoza regarding the killing of Jennifer
Domantay. He denied having owned to the killing of
Jennifer Domantay to SPO1 Espinoza. He denied he had
a grudge against the victim's parents because of a
boundary dispute. 28 With respect to his extrajudicial
confession to Celso Manuel, he admitted that he had
been interviewed by the latter, but he denied that he
ever admitted anything to the former. 29
As already stated, the trial court found accusedappellant guilty as charged. The dispositive portion of
its decision reads: 30
WHEREFORE, in light of all the
foregoing, the Court hereby finds the
accused, Bernardino Domantay @
"Junior Otot" guilty beyond reasonable
doubt with the crime of Rape with
Homicide defined and penalized under
Article 335 of the Revised Penal Code in
relation and as amended by Republic
Act No. 7659 and accordingly, the Court
hereby sentences him to suffer the
penalty of death by lethal injection, and
to indemnify the heirs of the victim in
the total amount of Four Hundred Eighty

119

Thousand Pesos (P480,000.00),

pay the costs.

31

and to

SO ORDERED.
In this appeal, accused-appellant alleges that:

starts to focus on a particular person as a

suspect." 34 R.A. No. 7438 has extended the
constitutional guarantee to situations in which an
individual has not been formally arrested but has merely
been "invited" for questioning. 35

32

I
THE COURT A QUO ERRED IN
APPRECIATING THE EXTRAJUDICIAL
CONFESSION[S] MADE BY THE
ACCUSED-APPELLANT.
II
THE COURT A QUO ERRED IN
CONVICTING THE ACCUSED DESPITE
FAILURE OF THE PROSECUTION TO
PROVE HIS GUILT BEYOND REASONABLE
DOUBT.
First. Accused-appellant contends that his alleged
confessions to SPO1 Antonio Espinoza and Celso Manuel
are inadmissible in evidence because they had been
obtained in violation of Art. III, 12(1) of the
Constitution and that, with these vital pieces of
evidence excluded, the remaining proof of his alleged
guilt, consisting of circumstantial evidence, is
inadequate to establish his guilt beyond reasonable
doubt. 33
Art. III, 12 of the Constitution in part provides:
(1) Any person under investigation for
the commission of an offense shall have
the right to be informed of his right to
remain silent and to have competent
and independent counsel preferably of
his own choice. If the person cannot
afford the services of counsel, he must
be provided with one. These rights
cannot be waived except in writing and
in the presence of counsel.
xxx xxx xxx
(3) Any confession or admission
obtained in violation of this section or
section 17 hereof shall be inadmissible
in evidence.
This provision applies to the stage of custodial
investigation, that is, "when the investigation is no
longer a general inquiry into an unsolved crime but

Decisions 36 of this Court hold that for an extrajudicial

confession to be admissible, it must satisfy the following
requirements: (1) it must be voluntary; (2) it must be
made with the assistance of competent and
independent counsel; (3) it must be express; and (4) it
must be in writing.
In the case at bar, when accused-appellant was brought
to the Malasiqui police station in the evening of October
17, 1996, 37 he was already a suspect, in fact the only
one, in the brutal slaying of Jennifer Domantay. He was,
therefore, already under custodial investigation and the
rights guaranteed in Art. III, 12(1) of the Constitution
applied to him. SPO1 Espinoza narrated what transpired
during accused-appellant's interrogation: 38
[I] interrogated Bernardino Domantay,
prior to the interrogation conducted to
him, I informed him of his constitutional
right as follows; that he has the right to
remain silent; that he has the right to a
competent lawyer of his own choice and
if he can not afford [a counsel] then he
will be provided with one, and further
informed [him] that all he will say will be
reduced into writing and will be used the
same in the proceedings of the case,
but he told me that he will cooperate
even in the absence of his counsel; that
he admitted to me that he killed Jennifer
Domantay, and he revealed also the
weapon used [and] where he gave [it]
to.
But though he waived the assistance of counsel, the
waiver was neither put in writing nor made in the
presence of counsel. For this reason, the waiver is
invalid and his confession is inadmissible. SPO1
Espinoza's testimony on the alleged confession of
accused-appellant should have been excluded by the
trial court. So is the bayonet inadmissible in evidence,
being, as it were, the "fruit of the poisonous tree." As
explained in People v. Alicando: 39
. . . According to this rule, once the
primary source (the "tree") is shown to
have been unlawfully obtained, any
secondary or derivative evidence (the
"fruit") derived from it is also
inadmissible. Stated otherwise, illegally

120

seized evidence is obtained as a direct

result of the illegal act, whereas the
"fruit of the poisonous tree" is at least
once removed from the illegally seized
evidence, but it is equally inadmissible.
The rule is based the principle that
evidence illegally obtained by the State
should not be used to gain other
evidence because the originally illegal
obtained evidence taints all evidence
subsequently obtained.
We agree with the Solicitor General, however, that
accused-appellant's confession to the radio reporter,
Celso Manuel, is admissible. In People v.
Andan, 40 the accused in a rape with homicide case
confessed to the crime during interviews with the
media. In holding the confession admissible, despite the
fact that the accused gave his answers without the
assistance of counsel, this Court said: 41
[A]ppellant's [oral] confessions to the
newsmen are not covered by Section
12(1) and (3) of Article III of the
Constitution. The Bill of Rights does not
concern itself with the relation between
a private individual and another
individual. It governs the relationship
between the individual and the State.
The prohibitions therein are primarily
addressed to the State and its agents.
Accused-appellant claims, however, that the
atmosphere in the jail when he was interviewed was
"tense and intimidating" and was similar to that which
prevails in a custodial investigation. 42 We are not
persuaded. Accused-appellant was interviewed while he
was inside his cell. The interviewer stayed outside the
cell and the only person besides him was an uncle of
the victim. Accused-appellant could have refused to be
interviewed, but instead, he agreed. He answered
questions freely and spontaneously. According to Celso
Manuel, he said he was willing to accept the
consequences of his act.
Celso Manuel admitted that there were indeed some
police officers around because about two to three
meters from the jail were the police station and the
radio room. 43 We do not think the presence of the police
officers exerted any undue pressure or influence on
accused-appellant and coerced him into giving his
confession.
Accused-appellant contends that "it is . . . not altogether
improbable for the police investigators to ask the police
reporter (Manuel) to try to elicit some incriminating

information from the accused." 44 This is pure

conjecture. Although he testified that he had
interviewed inmates before, there is no evidence to
show that Celso was a police beat reporter. Even
assuming that he was, it has not been shown that, in
conducting the interview in question, his purpose was to
elicit incriminating information from accused-appellant.
To the contrary, the media are known to take an
opposite stance against the government by exposing
official wrongdoings.
Indeed, there is no showing that the radio reporter was
acting for the police or that the interview was conducted
under circumstances where it is apparent that accusedappellant confessed to the killing our of fear. As already
stated, the interview was conducted on October 23,
1996, 6 days after accused-appellant had already
confessed to the killing to the police.
Accused-appellant's extrajudicial confession is
corroborated by evidence of corpus delicti, namely, the
fact of death of Jennifer Domantay. In addition, the
circumstantial evidence furnished by the other
prosecution witnesses dovetails in material points with
his confession. He was seen walking toward the bamboo
grove, followed by the victim. Later, he was seen
standing near the bamboo grove where the child's body
was found. Rule 133 of the Revised Rules on Evidence
provides:
3. Extrajudicial confession, not
sufficient ground for conviction. An
extrajudicial confession made by an
accused, shall not be sufficient ground
for conviction, unless corroborated by
evidence ofcorpus delicti.
4. Evidence necessary in treason
cases. No person charged with
treason shall be convicted unless on the
testimony of two witnesses to the same
overt act, or on confession in open
court.
Accused-appellant argues that it was improbable for a
brutal killing to have been committed without the
children who were playing about eight to ten meters
from Amparo Domantay's grove, where the crime took
place, having heard any commotion. 45 The contention
has no merit. Accused-appellant could have covered the
young child's mouth to prevent her from making any
sound. In fact, Dr. Bandonill noted a five by two inch (5"
x 2") contusion on the left side of the victim's forehead,
which he said could have been caused by a hard blunt
instrument or by impact as her head hit the
ground.46 The blow could have rendered her

121

unconscious, thus precluding her from shouting or

crying.
Accused-appellant also contends that the testimony of
Jiezl Domantay contradicts that of Lorenzo Domantay
because while Jiezl said she had seen accused-appellant
walking towards the bamboo grove, followed by the
victim, at around 2 o'clock in the afternoon on October
17, 1996. Lorenzo said he saw accused-appellant
standing near the bamboo grove at about the same
time.
These witnesses, however, did not testify concerning
what they saw exactly the same time. What they told
the court was what they had seen "at around" 2 o'clock
in the afternoon. There could have been a between
difference in time, however little it was, between the
time Jiezl saw accused-appellant and the victim walking
and the time Lorenzo saw accused-appellant near the
place where the victim's body was later found. Far from
contradicting each other, these witnesses confirmed
what each had said each one saw. What is striking about
their testimonies is that while Jiezl said she saw
accused-appellant going toward the bamboo grove
followed by the victim "at around" 2 o'clock in the
afternoon on October 17, 1996, Lorenzo said he had
seen accused-appellant near the bamboo grove "at
around" that time. He described accused-appellant as
nervous and worried. There is no reason to doubt the
claim of these witnesses. Lorenzo is a relative of
accused-appellant. There is no reason he would testified
falsely against the latter. Jiezl, on the other hand, is also
surnamed Domantay and could also be related to
accused-appellant and has not been shown to have any
reason to testify falsely against accused-appellant. At
the time of the incident, she was only 10 years old.
For the foregoing reasons, the Court is convinced of
accused-appellant's guilt with respect to the killing of
the child. It is clear that the prosecution has proven
beyond reasonable doubt that accused-appellant is
guilty of homicide. Art. 249 of the Revised Penal Code
provides:
Any person who, not falling within the
provisions of Article 246 [parricide] shall
kill another without the attendance of
any of the circumstances enumerated in
the next preceding article [murder],
shall be deemed guilty of homicide and
be punished by reclusion temporal.
The killing was committed with the generic aggravating
circumstance of abuse of superior strength. The record
shows that the victim, Jennifer Domantay, was six years
old at the time of the killing. She was a child of small

build, 46" in height. 47 It is clear then that she could not

have put up much of a defense against accusedappellant's assault, the latter being a fully grown man of
29 years. Indeed, the physical evidence supports a
finding of abuse of superior strength: accused-appellant
had a weapon, while the victim was not shown to have
had any; there were 38 stab wounds; and all the knife
wounds are located at the back of Jennifer's body.
But we think the lower court erred in finding that the
killing was committed with cruelty. 48 The trial court
appears to have been led to this conclusion by the
number of wounds inflicted on the victim. But the
number of wounds is not a test for determining whether
there was circumstance. 49 "The rest . . . is whether the
accused deliberately and sadistically augmented the
victim's suffering thus . . . there must be proof that the
victim was made to agonize before the [the accused]
rendered the blow which snuffed out [her] life." 50 In this
case, there is no such proof of cruelty. Dr. Bandonill
testified that any of the major wounds on the victim's
back could have caused her death as they penetrated
her heart, lungs and liver, kidney and intestines. 51
Second. There is, however, no sufficient evidence to
hold accused-appellant guilty of raping Jennifer
Domantay. Art. 335. of the Revised Penal Code, as
amended, in part provides:
Art. 335. When and how rape is
committed. Rape is committed by
having carnal knowledge of a woman
under any of the following
circumstances.
1. By using force or intimidation;
2. When the woman is deprive of reason
or otherwise unconscious; and
3. When the woman is under twelve
years of age or is demented.
As the victim here was six years old, only carnal
knowledge had to be proved to establish rape.
Carnal knowledge is defined as the act of a man
having sexual intercourse or sexual bodily
connections with a woman. 52 For this purpose,
it is enough if there was even the slightest
contact of the male sex organ with the labia of
the victim's genitalia. 53 However, there must be
proof, by direct or indirect evidence, of such
contact.
Dr. Ronald Bandonill's report on the genital examination
he had performed on the deceased reads: 54

122

GENITAL EXAMINATION; showed a

complete laceration of the right side of
the hymen. The surrounding genital
area shows signs of inflammation.
xxx xxx xxx
REMARKS: 1) Findings at the genital
area indicate the probability of
penetration of that area by a hard, rigid
instrument.
Hymenal laceration is not necessary to prove
rape; 55 neither does its presence prove its commission.
As held inPeople v. Ulili, 56 a medical certificate or the
testimony of the physician is presented not to prove
that the victim was raped but to show that the latter
had lost her virginity. Consequently, standing alone, a
physician's finding that the hymen of the alleged victim
was lacerated does not prove rape. It is only when this
is corroborated by other evidence proving carnal
knowledge that rape may be deemed to have been
established. 57
This conclusion is based on the medically accepted fact
that a hymenal tear may be caused by objects other
than the male sex organ 58 or may arise from other
causes. 59 Dr. Bandonill himself admitted this. He
testified that the right side of the victim's hymen had
been completely lacerated while the surrounding genital
area showed signs of inflammation.60 He opined that the
laceration had been inflicted within 24 hours of the
victim's death and that the inflammation was due to a
trauma in that area. 61 When asked by the private
prosecutor whether the lacerations of the hymen could
have been caused by the insertion of a male organ he
said this was possible. But he also said when questioned
by the defense that the lacerations could have been
caused by something blunt other than the male organ.
Thus, he testified: 62
PROS. F. QUINIT:
Q Now, what might have
caused the complete
laceration of the right
side of the
hymen,doctor?
A Well, sir, if you look at
my report there is a
remark and it says
there; findings at the
genital area indicated
the probability of
penetration of that area

by a hard rigid
instrument.
Q Could it have been
caused by a human
organ?
A If the human male
organ is erect, fully
erect and hard then it is
possible, sir.
xxx xxx xxx
ATTY. VALDEZ:
Q In your remarks;
finding at the genital
area indicates the
probability of
penetration of that area
by a hard rigid
instrument, this may
have also been caused
by a dagger used in the
killing of Jennifer
Domantay is that
correct?
A Well, sir when I say
hard rigid instrument it
should not be sharp
pointed and share
rigid, it should be a hard
bl[u]nt instrument.
Q Do you consider a
bolo a bl[u] instrument,
or a dagger?
A The dagger is a sharp
rigid but it is not a
bl[u]nt instrument, sir.
Q This Genital
Examination showed a
complete laceration of
the right side of the
hymen, this may have
been possibly caused by
a dagger, is it not?
A No, sir. I won't say
that this would have
been caused by a
dagger, because a

123

dagger would have

made at its incision . . .
not a laceration, sir.

Q How about two

fingers?
A Possible, sir.

Q But this laceration

may also have been
caused by other factors
other the human male
organ, is that correct?
A A hard bl[u]nt
instrument, sir could
show.
Q My question is other
than the human male
organ?
A Possible, sir.
xxx xxx xxx
COURT:
Q You mentioned that
the hymen was
lacerated on the right
side?
A Yes, your Honor.
Q And if there is a
complete erection by a
human organ is this
possible that the
laceration can only be
on the right side of the
hymen?
A Yes, your Honor, its
possible.
Q How about if the
penetration was done by
a finger, was it the same
as the human organ?
A Well, it defends on the
size of the finger that
penetrat[es] that organ,
if the finger is small it
could the superficial
laceration, and if the
finger is large then it is
possible your honor.

To be sure, this Court has sustained a number of

convictions for rape with homicide based on purely
circumstantial evidence. In those instances, however,
the prosecution was able to present other tell-tale signs
of rape such as the location and description of the
victim's clothings, especially her undergarments, the
position of the body when found and the
like. 63 In People v. Macalino, 64 for instance, the Court
affirmed a conviction for the rape of a two-year old child
on the basis of circumstantial evidence. 65
The Court notes that the testimony or
medical opinion of Dr. Gajardo that the
fresh laceration had been produced by
sexual intercourse is corroborated by
the testimony given by complainant.
Elizabeth that when she rushed upstairs
upon hearing her daughter suddenly cry
out, she found appellant Macalino
beside the child buttoning his own pants
and that she found some sticky fluid on
the child's buttocks and some blood on
her private part.(Emphasis in the
original)
In contrast, in the case at bar, there is no circumstantial
evidence from which to infer that accused-appellant
sexually abused the victim. The only circumstance from
which such inference might be made is that accusedappellant was seen with the victim walking toward the
place where the girl's body was found. Maybe he raped
the girl. Maybe he did not. Maybe he simply inserted a
blunt object into her organ, thus causing the lacerations
in the hymen. Otherwise, there is no circumstance from
which it might reasonably be inferred that he abused
her, e.g., that he was zipping up his pants, that there
was spermatozoa in the girl's vaginal canal.
Indeed, the very autopsy report of Dr. Bandonill
militates against the finding of rape. In describing the
stab wounds on the body of the victim, he testified: 66
[A]fter examining the body I took note
that were several stab wounds . . . these
were all found at the back area sir . . .
extending from the back shoulder down
to the lower back area from the left to
the right.
Considering the relative physical positions of the
accused and the victim in crimes of rape, the

124

usual location of the external bodily injuries of

the victim is on the face, 67 neck, 68 and anterior
portion 69 of her body. Although it is not
unnatural to find contusions on the posterior
side, these are usually caused by the downward
pressure on the victim's body during the sexual
assault. 70 It is unquestionably different when, as
in this case, all the stab wounds (except for a
minor cut in the lower left leg) had their entry
points at the back running from the upper left
shoulder to the lower right buttocks.
It is noteworthy that the deceased was fully clothed in
blue shorts and white shirt when her body was
immediately after it was found. 71 Furthermore, there is
a huge bloodstain in the back portion of her
shorts. 72 This must be because she wearing this piece
of clothing when the stab wounds were inflicated or
immediately thereafter, thus allowing the blood to seep
into her shorts to such an extent. As accused-appellant
would naturally have to pull down the girl's lower
garments in order to consummate the rape, then, he
must have, regardless of when the stab wounds were
inflicted, pulled up the victim's shorts and
undergarments after the alleged rape, otherwise, the
victim's shorts would not have been stained so
extensively. Again, this is contrary to ordinary human
experience.
Even assuming that Jennifer had been raped, there is no
sufficient proof that it was accused-appellant who had
raped her. He did not confess to having raped the
victim.

In addition, the heirs of Jennifer Domantay are entitled

to recover exemplary damages in view of the presence
of the aggravating circumstance of abuse of superior
strength. Art. 2230 of the Civil Code provides for the
payment of exemplary damages when the crime is
committed with one or more aggravating circumstance.
An amount of P25,000.00 is deemed appropriate. 74
In accordance with our rulings in People
v. Robles 75 and People v. Mengote, 76 the indemnity
should be fixed at P50,000.00 and the moral damages
at P50,000.00. 77
WHEREFORE, the judgment of the trial court is SET
ASIDE and another one is rendered FINDING accusedappellant guilty of homicide with the aggravating
circumstance of abuse of superior strength and
sentencing him to a prison term of 12 years of prision
mayor, as minimum, to 20 years of reclusion temporal,
as maximum, and ORDERING him to pay the heirs of
Jennifer Domantay the amounts of P50,000.00, as
indemnity, P50,000.00, as moral damages, P25,000.00,
as exemplary damages, and P12,000.00, as actual
damages, and the costs.1wphi1.nt

UNION MOTOR CORPORATION, petitioner,

vs.
NATIONAL LABOR RELATIONS COMMISSION and
ALEJANDRO A. ETIS, respondents.

From the foregoing, we cannot find that accusedappellant also committed rape. In the special complex
crime of rape with homicide, both the rape and the
homicide must be established beyond reasonable
doubt. 73
Third. The trial court ordered accused-appellant to pay
the heirs of Jennifer Domantay the amount of
P30,000.00 as actual damages. However, the list of
expenses produced by the victim's father, Jaime
Domantay, only totaled P28,430.00. Of this amount,
only P12,000.00 was supported by a receipt. Art. 2199
of the Civil Code provides that a party may recover
actual or compensatory damages only for such loss as
he has duly proved. Therefore, the award of actual
damages should be reduced to P12,000.00.

DECISION

CALLEJO, SR., J.:

This is a petition for review on certiorari filed by
petitioner Union Motor Corporation of the April 10, 2003
Decision1of the Court of Appeals (CA) in CA-G.R. SP No.
73602 which affirmed the decision of the National Labor
Relations Commission (NLRC) holding that respondent
Alejandro A. Etis was illegally dismissed from his
employment.
On October 23, 1993, the respondent was hired by the
petitioner as an automotive mechanic at the service
department in the latters Paco Branch. In 1994, he was
transferred to the Caloocan City Branch, where his latest
monthly salary was P6,330.00. During his employment,
he was awarded the "Top Technician" for the month of
May in 1995 and Technician of the Year (1995). He also

125

became a member of the Exclusive P40,000.00 Club and

received the Model Employee Award in the same year.

notification constituted nothing less than abandonment,

which is a form of neglect of duties.6

On September 22, 1997, the respondent made a phone

call to Rosita dela Cruz, the company nurse, and
informed her that he had to take a sick leave as he had
a painful and unbearable toothache. The next day, he
again phoned Dela Cruz and told her that he could not
report for work because he still had to consult a doctor.
Finding that the respondents ailment was due to a
tooth inflammation, the doctor referred him to a dentist
for further management.2 Dr. Rodolfo Pamor, a dentist,
then scheduled the respondents tooth extraction on
September 27, 1997, hoping that, by that time, the
inflammation would have subsided. Upon instructions
from the management, Mr. Dumagan, a company
security guard, visited the respondent in his house on
September 24, 1997 and confirmed that the latter was
ill.

On October 19, 2000, the Labor Arbiter rendered a

Decision dismissing the complaint. The Labor Arbiter
ruled that the respondents failure to report for work for
ten (10) days without an approved leave of absence was
equivalent to gross neglect of duty, and that his claim
that he had been absent due to severe toothache
leading to a tooth extraction was unsubstantiated. The
Labor Arbiter stressed that "unnotarized medical
certificates were self-serving and had no probative
weight."

On September 27, 1997, Dr. Pamor rescheduled the

respondents tooth extraction on October 4, 1997
because the inflammation had not yet subsided and
recommended that he rest. Thus, the respondent was
not able to report for work due to the painful and
unbearable toothache.
On October 2, 1997, the petitioner issued an Inter Office
Memorandum3 through Angelo B. Nicolas, the manager
of its Human Resources Department, terminating the
services of the respondent for having incurred more
than five (5) consecutive absences without proper
notification. The petitioner considered the consecutive
absences of the respondent as abandonment of office
under Section 6.1.1, Article III of the Company Rules.
On October 4, 1997, Dr. Pamor successfully extracted
the respondents tooth. As soon as he had recovered,
the respondent reported for work, but was denied entry
into the companys premises. He was also informed that
his employment had already been terminated. The
respondent sought help from the union which, in turn,
included his grievance in the arbitration before the
National Conciliation and Mediation Board (NCMB).
Pending the resolution thereof, the respondent wrote to
the petitioner asking for the reconsideration of his
dismissal,4 which was denied. Sometime thereafter, the
unions complaints were dismissed by the NCMB.
Left with no other recourse, the respondent filed, on
May 18, 1999, a complaint for illegal dismissal before
the arbitration branch of the NLRC against the petitioner
and/or Benito Cua, docketed as NLRC-NCR Case No. 0005-05691-99.5
The respondent alleged that he was dismissed from his
employment without just and legal basis. For its part,
the petitioner averred that his dismissal was justified by
his ten (10) unauthorized absences. It posited that,
under Article 282 of the Labor Code, an employees
gross and habitual neglect of his duties is a just cause
for termination. It further alleged that the respondents
repetitive and habitual acts of being absent without

Aggrieved, the respondent appealed the decision to the

NLRC, docketed as NLRC NCR CA No. 027002-01. He
alleged therein that
I
THE HONORABLE LABOR ARBITER COMMITTED
GRAVE ABUSE OF DISCRETION IN DISMISSING
THE COMPLAINT.
II
THERE ARE SERIOUS ERRORS IN THE FINDINGS
OF FACTS WHICH WOULD CAUSE GRAVE OR
IRREPARABLE DAMAGE OR INJURY TO HEREIN
COMPLAINANT.7
On November 29, 2001, the NLRC issued a Resolution
reversing the decision of the Labor Arbiter. The
dispositive portion of the resolution reads:
WHEREFORE, the assailed decision dated
October 19, 2000 is SET ASIDE and REVERSED.
Accordingly, the respondent-appellee is hereby
ordered to immediately reinstate complainant to
his former position without loss of seniority
rights and other benefits and payment of his full
backwages from the time of his actual dismissal
up to the time of his reinstatement.
All other claims are dismissed for lack of merit. 8
The NLRC upheld the claim of the respondent that his
successive absences due to severe toothache was
known to management. It ruled that the medical
certificates issued by the doctor and dentist who
attended to the respondent substantiated the latters
medical problem. It also declared that the lack of
notarization of the said certificates was not a valid
justification for their rejection as evidence. The NLRC
declared that the respondents absence for ten (10)
consecutive days could not be classified as gross and
habitual neglect of duty under Article 282 of the Labor
Code.
The NLRC resolved to deny the motion for
reconsideration of the petitioner, per its
Resolution9 dated August 26, 2002.

126

The petitioner, thereafter, filed a petition for certiorari

under Rule 65 of the Rules of Court before the CA,
docketed as CA-G.R. SP No. 73602. It raised the
following issues:
Whether or not the public respondent gravely
abused it[s] discretion, amounting to lack or
excess of jurisdiction in reversing the decision of
the labor arbiter a quo and finding that private
respondent Alejandro A. Etis was illegally
dismissed.
Whether or not public respondent gravely
abused its discretion in reinstating private
respondent Alejandro A. Etis to his former
position without loss of seniority rights and
awarding him full backwages.10
In its Decision11 dated April 10, 2003, the CA affirmed in
toto the November 29, 2001 Resolution of the NLRC.
The CA agreed with the ruling of the NLRC that medical
certificates need not be notarized in order to be
admitted in evidence and accorded full probative
weight. It held that the medical certificates which bore
the names and licenses of the doctor and the dentist
who attended to the respondent adequately
substantiated the latters illness, as well as the tooth
extraction procedure performed on him by the dentist.
The CA concluded that since the respondents absences
were substantiated, the petitioners termination of his
employment was without legal and factual basis.
The CA similarly pointed out that even if the ten-day
absence of the respondent was unauthorized, the same
was not equivalent to gross and habitual neglect of duty.
The CA took into consideration the respondents
unblemished service, from 1993 up to the time of his
dismissal, and the latters proven dedication to his job
evidenced by no less than the following awards: Top
Technician of the Year (1995), Member of the
ExclusiveP40,000.00 Club, and Model Employee of the
Year (1995).
The motion for reconsideration of the petitioner was
denied by the appellate court. Hence, the petition at
bar.
The petitioner raises the following issues for the Courts
resolution:
I
WHETHER OR NOT THE HONORABLE COURT OF
APPEALS COMMITTED REVERSIBLE ERROR IN
GIVING MUCH EVIDENTIARY WEIGHT TO THE
MEDICAL CERTIFICATES SUBMITTED BY THE
PRIVATE RESPONDENT.
II

WHETHER OR NOT THE HONORABLE LABOR

ARBITER COMMITTED A REVERSIBLE ERROR IN
RULING THAT PRIVATE RESPONDENT WAS
ILLEGALLY DISMISSED.12
As had been enunciated in numerous cases, the issues
that can be delved with in a petition for review under
Rule 45 are limited to questions of law. The Court is not
tasked to calibrate and assess the probative weight of
evidence adduced by the parties during trial all over
again.13 Well-established is the principle that findings of
fact of quasi-judicial bodies, like the NLRC, are accorded
with respect, even finality, if supported by substantial
evidence.14 However, if, as in this case, the findings of
the Labor Arbiter clash with those of the NLRC and CA,
this Court is compelled to go over the records of the
case, as well as the submissions of the parties, and
resolve the factual issues.
The petitioner avers that the respondents absences
were unauthorized, and that the latter failed to notify
the petitioner in writing of such absences, the reasons
therefor, and his (respondents) whereabouts as
prescribed by the company rules. The petitioner avers
that its security guard caught the respondent at home,
fit to work. The petitioner further asserts that it was
justified in dismissing the respondent under Section
6.1.1, Article III of the Company Rules which reads:
An employee who commits unauthorized
absences continuously for five (5) consecutive
working days without notice shall be considered
as having abandoned his job and shall be
terminated for cause with applicable laws.
The petitioner contends that the respondents dismissal
was also justified under Article 282(b) of the Labor
Code, which provides that an employer may dismiss an
employee due to gross and habitual neglect of his
duties.
The contention of the petitioner has no merit.
The NLRC ruled that the respondent notified the
petitioner of his illness through the company nurse, and
that the petitioner even dispatched a security guard to
the respondents house to ascertain the reason of his
absences, thus:
The termination by respondent-appellee of
complainants service despite knowledge of
complainants ailment, as shown by the
telephone calls made by the latter to the
company nurse and the actual confirmation
made by respondents company guard, who
personally visited complainants residence,
clearly establishes the illegality of complainants
dismissal. The documentary testimonies of the
nurse, Miss Rosita dela Cruz, regarding
complainants telephone calls and the
confirmation made by respondents security
guard, Mr. Dumagan, are evidentiary matters
which are relevant and material and must be

127

considered to the fullest by the Labor Arbiter a

quo. These circumstantial facts were miserably
set aside by the Labor Arbiter a quo wherein he
concluded that complainant committed gross
neglect of duty on alleged continued absences
is to our mind, not fully substantiated and ought
not be given credence by this Commission. Time
and again, this Tribunal impresses that, in labor
proceedings, in case of doubt, the doubt must
be reasonably in favor of labor. Maybe doubts
hang in this case but these doubts must be
resolved in favor of labor as mandated by law
and our jurisprudence. From the facts of this
case, it is only but reasonable to conclude that
complainants service was, indeed, terminated
without legal or valid cause. Where the law
protects the right of employer to validly exercise
management prerogative such as to terminate
the services of an employee, such exercise must
be with legal cause as enumerated in Article
282 of the Labor Code or by authorized cause as
defined in Article 283 of the Labor Code.15
The CA affirmed the findings of facts of the NLRC.
We agree with the rulings of the NLRC and the CA. We
note that the company rules do not require that the
notice of an employees absence and the reasons
therefor be in writing and for such notice to be given to
any specific office and/or employee of the petitioner.
Hence, the notice may be verbal; it is enough then that
an officer or employee of the petitioner, competent and
responsible enough to receive such notice for and in
behalf of the petitioner, was informed of such absence
and the corresponding reason.
The evidence on record shows that the respondent
informed the petitioner of his illness through the
company nurse. The security guard who was dispatched
by the petitioner to verify the information received by
the company nurse, confirmed the respondents illness.
We find and so hold that the respondent complied with
the requisite of giving notice of his illness and the
reason for his absences to the petitioner.
We reject the petitioners contention that the medical
certificates adduced in evidence by the respondent to
prove (a) his illness, the nature and the duration of the
procedures performed by the dentist on him; and (b) the
period during which he was incapacitated to work are
inadmissible in evidence and barren of probative weight
simply because they were not notarized, and the
medical certificate dated September 23, 1997 was not
written on paper bearing the dentists letterhead.
Neither do we agree with the petitioners argument that
even assuming that the respondent was ill and had
been advised by his dentist to rest, the same does not
appear on the medical certificate dated September 23,
1997; hence, it behooved the respondent to report for
work on September 23, 1997. The ruling of the Court
in Maligsa v. Atty. Cabanting16 is not applicable in this
case.

It bears stressing that the petitioner made the same

arguments in the NLRC and the CA, and both tribunals
ruled as follows:
First, We concur with the ratiocination of
respondent NLRC when it ruled that a medical
certificate need not be notarized, to quote:
xxx. He was dismissed by reason of the
fact that the Medical Certificate
submitted by the complainant should
not be given credence for not being
notarized and that no affidavit was
submitted by the nurse to prove that the
complainant, indeed, called the
respondents office by telephone.
After full scrutiny and judicious
evaluation of the records of this case,
We find the appeal to be meritorious.
Regrettably, the Labor Arbiter a quo
clearly failed to appreciate
complainants pieces of evidence.
Nowhere in our jurisprudence requires
that all medical certificates be notarized
to be accepted as a valid evidence. In
this case, there is [neither] difficulty nor
an obstacle to claim that the medical
certificates presented by complainant
are genuine and authentic. Indeed, the
physician and the dentist who examined
the complainant, aside from their
respective letterheads, had written their
respective license numbers below their
names and signatures. These facts have
not been impugned nor rebutted by
respondent-appellee throughout the
proceedings of his case. Common sense
dictates that an ordinary worker does
not need to have these medical
certificates to be notarized for proper
presentation to his company to prove
his ailment; hence, the Labor Arbiter a
quo, in cognizance with the liberality
and the appreciation on the rules on
evidence, must not negate the
acceptance of these medical certificates
as valid pieces of evidence.
We believe, as we ought to hold, that
the medical certificates can prove
clearly and convincingly the
complainants allegation that he
consulted a physician because of tooth
inflammation on September 23, 1997
and a dentist who later advised him to
rest and, thus, clinically extended his
tooth extraction due to severe pain and
inflammation. Admittingly, it was only
on October 4, 1997 that complainants
tooth was finally extracted.

128

From these disquisitions, it is clear that the

absences of private respondent are justifiable.17
We agree with the NLRC and the appellate court. In light
of the findings of facts of the NLRC and the CA, the
petitioner cannot find solace in the ruling of this Court in
Maligsa v. Atty. Cabantnig.18
While the records do not reveal that the respondent
filed the required leave of absence for the period during
which he suffered from a toothache, he immediately
reported for work upon recovery, armed with medical
certificates to attest to the cause of his absence. The
respondent could not have anticipated the cause of his
illness, thus, to require prior approval would be
unreasonable.19 While it is true that the petitioner had
objected to the veracity of the medical certificates
because of lack of notarization, it has been said that
verification of documents is not necessary in order that
the said documents could be considered as substantial
evidence.20 The medical certificates were properly
signed by the physicians; hence, they bear all the
earmarks of regularity in their issuance and are entitled
to full probative weight.21
The petitioner, likewise, failed to prove the factual basis
for its dismissal of the respondent on the ground of
gross and habitual negligence under Article 282(b) of
the Labor Code of the Philippines, or even under Section
6.1.1, Rule III of the Company Rules.

and regulation. The petitioner also failed to prove that

the respondent abandoned his job. The bare fact that
the respondent incurred excusable and unavoidable
absences does not amount to an abandonment of his
employment.
The petitioners claim of gross and habitual neglect of
duty pales in comparison to the respondents
unblemished record. The respondent did not incur any
intermittent absences. His only recorded absence was
the consecutive ten-day unauthorized absence, albeit
due to painful and unbearable toothache. The
petitioners claim that the respondent had manifested
poor work attitude was belied by its own recognition of
the respondents dedication to his job as evidenced by
the latters awards: Top Technician of the Year (1995),
Member of the ExclusiveP40,000.00 Club, and Model
Employee of the Year (1995).
IN LIGHT OF ALL THE FOREGOING, the petition is
DENIED DUE COURSE. The Decision of the Court of
Appeals in CA-G.R. SP No. 73602 is AFFIRMED.

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
NEIL B. COLORADO, Accused-Appellant.
DECISION

Dismissal is the ultimate penalty that can be meted to

an employee. Thus, it must be based on just cause and
must be supported by clear and convincing
evidence.22 To effect a valid dismissal, the law requires
not only that there be just and valid cause for
termination; it, likewise, enjoins the employer to afford
the employee the opportunity to be heard and to defend
himself.23 Article 282 of the Labor Code enumerates the
just causes for the termination of employment by the
employer:
ART. 282. TERMINATION BY EMPLOYER
An employer may terminate an employment for
any of the following causes:
(a) Serious misconduct or willful disobedience
by the employee of the lawful orders of his
employer or representative in connection with
his work;
(b) Gross and habitual neglect by the employee
of his duties.
To warrant removal from service, the negligence should
not merely be gross but also habitual. Gross negligence
implies a want or absence of or failure to exercise slight
care or diligence, or the entire absence of care. It
evinces a thoughtless disregard of consequences
without exerting any effort to avoid them.24 The
petitioner has not sufficiently shown that the
respondent had willfully disobeyed the company rules

REYES, J.:
For the Court's review is the Decision1 dated August
19,2011 of the Court of Appeals (CA) in CA-G.R. CR-HC
No. 03767, which affirmed with modification the
Decision2 dated June 19, 2008 in Criminal Case No. 8390 of the Regional Trial Court ( RTC), Burgos,
Pangasinan, Branch 70 finding herein accused-appellant
Neil B. Colorado (Colorado) guilty beyond reasonable
doubt of the crime of rape.
The Facts
Accused-appellant Colorado was charged with the crime
of rape in an Information that reads:
That sometime in December, 2002 in the evening in
Sitio x x x, Brgy. Iliw-Iliw, Burgos, Pangasinan,
Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, being the brother of
AAA,3 inside their house, by means of force, threats and
intimidation did then and there willfully, unlawfully and
feloniously have carnal knowledge with AAA, a twelve
(12) years (sic) old girl, against her will and consent, to
her damage and prejudice.4

129

Colorado pleaded "not guilty" upon arraignment. During

the pre-trial, the parties stipulated on the following: (1)
the existence of the Medico Legal Certificate and the
Birth Certificate of AAA; (2) that Colorado is a full-blood
brother of AAA; and (3) that Colorado and AAA lived
under the same roof.5 After pre-trial, trial on the merits
ensued.
Records indicate that AAA was born on October 10,
1990. She was the second to the youngest in a family of
twelve siblings. Colorado was an older brother who lived
with her, their parents and two other brothers, BBB and
CCC, in Burgos, Pangasinan.
AAA testified that sometime in December 2002, her
parents attended a wedding celebration somewhere in
Hermosa, Dasol, Pangasinan, leaving behind AAA,
Colorado and their two other brothers in the house.
When their parents had not yet arrived in the evening,
Colorado committed the dastardly act against AAA. She
was twelve (12) years old at that time, while Colorado
was already twenty-four (24) years old. He approached
AAA, held her two hands, even threatened her with a
knife and covered her mouth with a handkerchief. He
then removed AAAs shorts and panty, inserted his
penis into the young girls vagina, then made a push
and pull movement. AAA tried to resist her brothers
sexual aggression, but miserably failed despite her
efforts because of her brothers greater strength.
Colorado later left AAA, who put back her shorts and
underwear, but remained awake because of fear and
trauma with what she had gone through.
On that same night, Colorado raped AAA twice more,
unmindful of the presence of their two other brothers
who were then sleeping inside the room where Colorado
ravished AAA. In both instances, Colorado still
threatened AAA with a knife, removed her shorts and
panty, inserted his penis into his sisters vagina, then
performed the push and pull movement. Colorado
warned AAA that he would stab her should she report to
anyone what he had done. AAA then did not dare reveal
these incidents to anybody, until she had the courage to
report them to their mother.
Also in her testimony before the trial court, AAA
disclosed that she had been raped by Colorado when
she was just nine (9) years old. She also revealed
having been ravished on different dates by another
brother, DDD, and a brother-in-law.
A Medico-Legal Certificate6 prepared by Dr. Ma. Teresa
Sanchez (Dr. Sanchez), Medical Officer III of the Western
Pangasinan District Hospital who examined AAA on
January 10, 2003, contained the following findings:

=INTERNAL EXAM FINDINGS:

-Nonparous Introitus-Hymenal laceration at 6 oclock position with
bleeding-Vagina admits 2 fingers with slight resistance-Uterus small-(+) bleedingx x x x7
Colorado testified for his defense. He denied having
raped AAA, arguing that he was not living with AAA in
their parents house in December 2002. Allegedly, he
was at that time staying with an older sister in Osmea,
Dasol. Colorado claimed that on the night of the alleged
incident, he was fishing with his brother-in-law, and that
they returned to Osmea, Dasol in the morning of the
following day.
The Ruling of the RTC
On June 19, 2008, the RTC rendered its decision finding
Colorado guilty beyond reasonable doubt of the crime of
qualified rape, and sentencing him to suffer the penalty
of reclusion perpetua. He was also ordered to pay AAA
the amount of P50,000.00 as moral damages and
P75,000.00 as civil indemnity. The dispositive portion of
its decision reads:
WHEREFORE, in view of the foregoing, this Court finds
accused NEIL B. COLORADO, GUILTY beyond reasonable
doubt of the crime of rape. In view of the enactment of
Republic Act [No.] 9346 prohibiting the imposition of
death penalty this Court sentences the accused to
suffer the penalty of RECLUSION PERPETUA.
Further, accused shall indemnify [AAA] the amount of
Php 50,000.00 as moral damages and Php 75,000.00 as
civil indemnity. (People vs. Ambray, 303 SCRA 709).
SO ORDERED.8
Feeling aggrieved, Colorado appealed from the RTCs
decision to the CA, reiterating in his appeal the defenses
of denial and alibi. He further sought his acquittal by
arguing that the hymenal lacerations discovered by
AAAs examining doctor, and considered by the trial
court in determining his culpability, could have been
caused not by him, but by the sexual aggressions

130

committed by their brother DDD or their brother-in-law

unto AAA.

xxxx
Art. 266-B. Penalties. x x x.

The Ruling of the CA

xxxx
The CA affirmed Colorados conviction, but modified his
civil liability. The decretal portion of its Decision dated
August 19, 2011 reads:
WHEREFORE, the appealed Decision of the Regional Trial
Court of Burgos, Pangasinan (Branch 70), dated 19 June
2008, is AFFIRMED with the MODIFICATION that, in
addition to the civil indemnity of Seventy-Five Thousand
Pesos (P75,000.00), appellant is ordered to pay the
victim moral damages of Seventy-Five Thousand Pesos
(P75,000.00) instead of Fifty Thousand Pesos
(P50,000.00), and to pay exemplary damages of Thirty
Thousand Pesos (P30,000.00).
SO ORDERED.9
Hence, this appeal. Both Colorado and the Office of the
Solicitor General, as counsel for plaintiff-appellee People
of the Philippines, dispensed with the filing with the
Court of supplemental briefs, and adopted instead their
respective briefs with the CA.
This Courts Ruling
The appeal lacks merit.
Colorado was charged with the crime of rape, qualified
by the victims minority and her relationship to her
ravisher, as defined and penalized under Article 266-A,
in relation to Article 266-B, of the Revised Penal Code
(RPC), as follows:
Art. 266-A. Rape; When and How Committed. Rape is
committed:
1) By a man who shall have carnal knowledge of a
woman under any of the following circumstances:
a. Through force, threat or intimidation;
b. When the offended party is deprived of
reason or otherwise unconscious;
c. By means of fraudulent machination or grave
abuse of authority; and
d. When the offended party is under twelve (12)
years of age or is demented, even though none
of the circumstances mentioned above be
present.

The death penalty shall also be imposed if the crime of

rape is committed with any of the following
aggravating/qualifying circumstances:
1) When the victim is under eighteen (18) years of age
and the offender is a parent, ascendant, stepparent,
guardian, relative by consanguinity or affinity within the
third civil degree, or the common-law spouse of the
parent of the victim;
xxxx
Both the RTC and the CA correctly ruled on the
concurrence of the following elements of qualified rape,
as defined in the aforequoted provisions of the RPC: (1)
that the victim is a female over 12 years but under 18
years of age; (2) that the offender is a parent,
ascendant, stepparent, guardian or relative by
consanguinity or affinity within the third civil degree, or
the common-law spouse of the parent of the victim; and
(3) that the offender has carnal knowledge of the victim
either through force, threat or intimidation; or when she
is deprived of reason or is otherwise unconscious; or by
means of fraudulent machinations or grave abuse of
authority.10
The age of the victim at the time of the crimes
commission is undisputed. During the pre-trial, the
parties agreed on the existence of AAAs Certificate of
Live Birth,11 a "certified true/xerox copy" of which forms
part of the records and provides that AAA was born on
October 10, 1990. AAA was then only 12 years old in
December 2002, a significant fact that was sufficiently
alleged in the Information. In People v. Pruna,12 we held
that the best evidence to prove the age of the offended
party is an original or certified true copy of the
certificate of live birth of such party.
As to the second element, there is no dispute that
Colorado is a full-blood brother of AAA, as this was also
among the parties stipulated facts during the cases
pre-trial.
The grounds now being raised by Colorado to justify his
exoneration delve mainly on the alleged absence of the
crimes third element. He denies AAAs claim that he
had ravished her, raising the defense of alibi and the
alleged doubt and suspicion that should be ascribed to
AAAs accusations. On this matter, settled is the rule
that the findings of the trial court on the credibility of a

131

witness deserve great weight, given the clear

advantage of a trial judge in the appreciation of
testimonial evidence. We have repeatedly recognized
that the trial court is in the best position to assess the
credibility of witnesses and their testimonies, because
of its unique opportunity to observe the witnesses first
hand and to note their demeanor, conduct, and attitude
under grueling examination. These are significant
factors in evaluating the sincerity of witnesses, in the
process of unearthing the truth. The rule finds even
more stringent application where the said findings are
sustained by the CA. Thus, except for compelling
reasons, we are doctrinally bound by the trial courts
assessment of the credibility of witnesses.13
We then take due consideration of the trial courts
findings of fact, its assessment of AAAs credibility, her
testimony and the manner by which her statements
were relayed, as discussed in the RTCs Decision
convicting Colorado and which reads in part:
AAA testified directly and categorically how she was
raped by the accused Neil Colorado who is her full-blood
brother sometime in the night of December 2002.
That while AAA was sleeping with her older brother BBB
and her younger brother CCC, accused went near her
and held her two (2) hands, covered her mouth with
handkerchief. Thereafter, accused removed her short
pants and underwear, and inserted his penis into her
vagina. After removing his penis, accused went back to
sleep.
AAA however could no longer sleep because she was
already afraid that the accused will return which the
accused did. For the second time, accused raped AAA.
Accused covered her mouth with a handkerchief,
inserted his penis into her vagina and accused did the
push and pull movement.
xxxx
When AAA declares that she has been raped, she says
in effect all that would be necessary to show that rape
did take place (PP. vs. Maglantay, 304 SCRA 272), for as
long as the testimony of AAA is free from serious or
major incongruence and unbridled by suspicion or
doubt. The testimony of AAA is simple, candid,
straightforward and consistent on material points
detailing every single bestial act of her brother in
ravishing her. Moreover, AAA on several occasions
(August 1, 2006 and September 19, 2006) was on the
verge of crying and in fact shed tears during her direct
examination. Crying of the victim during her testimony
is evidence of the credibility of the rape charge with the
verity born out of human nature and experience (PP. vs.

Agustin, 365 SCRA 167; PP vs. Garcia, supra). Though a

medical certificate is not necessary to prove the
commission of rape (PP. vs. Bares, 355 SCRA 435), but
when the victims testimony is corroborated by the
physicians findings of penetration (Exh. "A") or hymenal
laceration as when the hymen is no longer intact, there
is sufficient foundation to find the existence of the
essential requisite of carnal knowledge (PP. vs. Montejo,
355 SCRA 210; PP. vs. Bation, 305 SCRA 253). Further,
no young and decent woman in her right mind
especially of tender age as that of AAA who is fifteen
(15) years old would concoct a story of defloration,
allow an examination of her private parts and thereafter
pervert herself by being subjected to a public trial, if she
was not motivated solely by her desire to obtain justice
for the wrong committed against her. (PP. vs. Albior, 352
SCRA 35; PP. vs. Vidal, 353 SCRA 194) 14 (Emphasis ours)
These observations were affirmed by the CA on appeal,
as it held:
A conscientious review of the records shows that AAAs
testimonies in this case bear the marks of truthfulness,
spontaneity and sincerity. She was crying while
answering questions about the rape incident. Obviously,
the process called to her mind not only the mere details
of the sexual abuse but the lingering hurt and pain that
come with it. Her tears were unimpeachable testaments
to the truth of her allegations.
xxxx
During cross-examination, AAA remained steadfast,
unwavering and spontaneous. Significantly also, her
testimony is supported by the medical evidence on
record, which showed that she had a laceration in her
hymen and was thus in a non-virgin state.15 (Citations
omitted and emphasis ours)
The Court finds no cogent reasons to overturn these
findings. Indeed, it was established that Colorado
succeeded in having carnal knowledge of the victim,
employing force, threat and intimidation that allowed
him to consummate his bestial act. AAA had positively
identified Colorado as her rapist. Such identification of
Colorado could not have been difficult for AAA
considering that Colorado was a brother who lived with
her in their parents house. Even the failure of AAA to
identify the exact date of the crimes commission is
inconsequential to Colorados conviction. In rape cases,
the date of commission is not an essential element of
the offense; what is material is its occurrence,16 a fact
that was sufficiently established given AAAs and her
testimonys credibility.

132

Contrary to Colorados contention, AAAs claim that two

other siblings were sleeping in the same room where
she was raped did not render her statements incredible.
Time and again, we have taken into consideration how
rapists are not deterred by the presence of people
nearby, such as the members of their own family inside
the same room, with the likelihood of being discovered,
since lust respects no time, locale or circumstance. 17
As against AAAs credible testimony, Colorados
defenses lack persuasion.1wphi1 While Colorado
denied in his testimony that he lived with AAA, such fact
was already admitted by the parties during the pre-trial.
His defense that he was in Osmea, Dasol at the time of
the crimes commission was even uncorroborated by
any other witness. By jurisprudence, denial is an
intrinsically weak defense which must be buttressed by
strong evidence of non-culpability to merit credibility.
Mere denial, without any strong evidence to support it,
can scarcely overcome the positive declaration by the
child-victim of the identity of the appellant and his
involvement in the crime attributed to him.18 Moreover,
for the defense of alibi to prosper, two requisites must
concur: first, the appellant was at a different place at
the time the crime was committed; and second, it was
physically impossible for him to be at the crime scene at
the time of its commission.19 The defense failed to
establish these requisites. On the contrary, Colorado
testified that from Osmea, where he claimed to have
lived with an older sister, he could normally reach his
parents house by a three-hour walk. There were also
other means of transportation in these two
places,20 which then could have allowed Colorado to
travel the distance over a shorter period of time.
Colorado also questions the weight of Dr. Sanchezs
medico-legal certificate, arguing that AAAs hymenal
lacerations could have resulted from the sexual
aggressions allegedly committed against her by DDD
and their brother-in-law. Such contention, however,
deserves no consideration, given that results of an
offended partys medical examination are merely
corroborative in character. As explained by the Court in
People v. Balonzo,21 a medical certificate is not
necessary to prove the commission of rape, as even a
medical examination of the victim is not indispensable
in a prosecution for rape. Expert testimony is merely
corroborative in character and not essential to
conviction. An accused can still be convicted of rape on
the basis of the sole testimony of the private
complainant.22 Furthermore, laceration of the hymen,
even if considered the most telling and irrefutable
physical evidence of sexual assault, is not always
essential to establish the consummation of the crime of
rape. In the context that is used in the RPC, "carnal
knowledge," unlike its ordinary connotation of sexual
intercourse, does not necessarily require that the vagina

be penetrated or that the hymen be ruptured.23 Thus,

even granting that AAAs lacerations were not caused
by Colorado, the latter could still be declared guilty of
rape, after it was established that he succeeded in
having carnal knowledge of the victim.
Given the foregoing, the CA did not err in affirming the
trial court's conviction of Colorado. The crime is
qualified by the victim's minority and her relationship to
Colorado, yet the appellate court correctly explained
that the imposable penalty is reclusion pe1petua, in lieu
of death, taking into account the provisions of Republic
Act (R.A.) No. 9346 that prohibit the imposition of death
penalty in criminal cases. We however clarify that
Colorado shall be ineligible for parole, a requirement
under Section 3 of R.A. No. 9346 that was not
mentioned in the assailed CA decision and which, must
then be rectified by this Decision.24 The civil indemnity,
moral damages and exemplary damages, as modified
and awarded by the CA, conform to prevailing
jurisprudence.
WHEREFORE, in view of the foregoing, the Decision
dated August 19, 2011 of the Com1 of Appeals in CAG.R. CR-HC No. 03767 is AFFIRMED with MODIFICATION
in that accused-appellant Neil B. Colorado is sentenced
to suffer the penalty of reclusion pe1petua, without
eligibility for parole. The accused is likewise ordered to
pay legal interest on all damages awarded at the legal
rate of 6% from the date of finality of this Decision until
fully satisfied.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BERNARDINO DOMANTAY, @ "JUNIOR
OTOT," accused-appellant.

MENDOZA, J.:
This case is here on appeal from the decision 1 of the
Regional Trial Court of Dagupan City (Branch 57), finding
accused-appellant guilty of rape with homicide and
sentencing him to death, and to indemnify the heirs of
the victim in the amount of P480,000.00, and to pay the
costs.
The facts hark back to the afternoon of October 17,
1996, at around 4 o'clock, when the body of six-year old
Jennifer Domantay was found sprawled amidst a
bamboo grove in Guilig, Malasiqui, Pangasinan. The
child's body bore several stab wounds. Jennifer had
been missing since lunch time.

133

The medical examination conducted the following day

by Dr. Ma. Fe Leticia Macaranas, the rural health
physician of Malasiqui, showed that Jennifer died of
multiple organ failure and hypovolemic shock secondary
to 38 stab wounds at the back. Dr. Macaranas found no
lacerations or signs of inflammation of the outer and
inner labia and the vaginal walls of the victim's
genitalia, although the vaginal canal easily admitted the
little finger with minimal resistance. Noting possible
commission of acts of lasciviousness, Dr. Macaranas
recommended an autopsy by a medico-legal expert of
the NBI. 2
The investigation by the Malasiqui police pointed to
accused-appellant Bernardino Domantay, a cousin of
the victim's grandfather, as the lone suspect in the
gruesome crime. At around 6:30 in the evening of that
day, police officers Montemayor, de la Cruz, and de
Guzman of the Malasiqui Philippine National Police (PNP)
picked up accused-appellant at the Malasiqui public
market and took him to the police station where
accused-appellant, upon questioning by SPO1 Antonio
Espinoza, confessed to killing Jennifer Domantay. He
likewise disclosed that at around 3:30 that afternoon, he
had given the fatal weapon used, a bayonet, to Elsa and
Jorge Casingal, his aunt and uncle respectively, in
Poblacion Sur, Bayambang, Pangasinan. The next day,
October 18, 1996, SPO1 Espinoza and another
policeman took accused-appellant to Bayambang and
recovered the bayonet from a tricycle belonging to the
Casingal spouses. The police officers executed a receipt
to evidence the confiscation of the weapon. 3
On the basis of the post-mortem findings of Dr.
Macaranas, SPO4 Juan Carpizo, the Philippine National
Police chief investigator at Malasiqui, filed, on October
21, 1996, a criminal complaint for murder against
accused-appellant before the Municipal Trial Court (MTC)
of Malasiqui. On October 25, 1996, Dr. Ronald Bandonill,
medico-legal expert of the NBI, performed an autopsy
on the embalmed body of Jennifer. The result of his
examination of the victim's genitalia indicated that the
child's hymen had been completely lacerated on the
right side. Based on this finding, SPO4 Carpizo amended
the criminal complaint against accused-appellant to
rape with homicide. Subsequently, the following
information was filed: 4
That on or about the 17th day of
October, 1996, in the afternoon, in
barangay Guilig, Municipality of
Malasiqui, province of Pangasinan,
Philippines and within the jurisdiction of
this Honorable Court, the above-named
accused, with lewd design and armed
with a bayonnete, did then and there,
wilfully, unlawfully and feloniously have

sexual intercourse with Jennifer

Domantay, a minor of 6 years old
against her will and consent, and on the
same occasion, the said accused with
intent to kill, then and there, wilfully,
unlawfully and feloniously stab with the
use of a bayonnete, the said Jennifer
Domantay, inflicting upon her multiple
stab wounds, which resulted to her
death, to the damage and prejudice of
her heirs.
At the trial, the prosecution presented seven witnesses,
namely, Edward, Jiezl, Lorenzo, all surnamed Domantay,
Joselito Mejia, Antonio Espinoza, Celso Manuel, and Dr.
Ronald Bandonill, to establish its charge that accusedappellant had raped and killed Jennifer Domantay.
Edward Domantay testified that in the morning of
October 17, 1996, accused-appellant and his two
brothers-in-law, Jaime Caballero and Daudencio
Macasaeb, had a round of drinks in front of the latter's
house in Guilig, Malasiqui, Pangasinan. Edward
Domantay said that he was in front of Macasaeb's
house, tending to some pigeons in his yard. 5 After the
group had consumed several bottles of San Miguel gin,
accused-appellant gave money to Edward Domantay
and asked him to buy two bottles of gin and a bottle of
Sprite. 6 Edward said he joined the group and sat
between Daudencio Macasaeb and accusedappellant. 7 Edward said that accused-appellant, who,
apparently had one too many then, rolled up his shirt
and said: "No diad Antipolo tan L[i]pa et walay
massacre, diad Guilig wala, walay massacren kod dia,
walay onakis-akis" ("In Antipolo and Lipa, there were
massacres; here in Guilig, there will also be a massacre.
I will massacre somebody here, and they will cry and
cry"). Edward Domantay saw that tucked in the left side
of accused-appellant's waistline was a bayonet without
a cover handle. 8 It was not the first time that Edward
had seen accused-appellant with the knife as the latter
usually carried it with him. 9
Jiezl Domantay, 10, likewise testified. She said that, at
about 2 o'clock in the afternoon on October 17, 1996,
she and four other children were playing in front of their
house in Guilig, Malasiqui, Pangasinan. Jiezl saw
accused-appellant and Jennifer Domantay walking
towards the bamboo grove of Amparo Domantay where
Jennifer's body was later found. Accused-appellant was
about two meters ahead of Jennifer. The bamboo grove
was about 8 to 10 meters from the house of Jiezl
Domantay. 10
Lorenzo Domantay, a relative of the victim,
corroborated Jiezl's testimony that accused-appellant
had gone to Amparo Domantay's bamboo grove in the

134

afternoon of October 17, 1996. Lorenzo said that

afternoon, on his way to his farm, he saw accusedappellant about 30 meters away, standing at the spot in
the bamboo grove where Jennifer's body was later
found. Accused-appellant appeared restless and worried
as he kept looking around. However, as Lorenzo was in a
hurry, he did not try to find out why accused-appellant
appeared to be nervous. 11
Prosecution witness Joselito Mejia, a tricycle driver, said
that, in the afternoon of October 17, 1996, he was about
to take his lunch at home in Alacan, a neighboring
barangay about half a kilometer from Guilig, when
accused-appellant implored Mejia to take him to
Malasiqui at once. Mejia told accused-appellant that he
was going to take his lunch first, but the latter pleaded
with him, saying they will not be gone for long. Mejia,
therefore, agreed. Mejia noticed that accused-appellant
was nervous and afraid. Accused-appellant later
changed his mind. Instead of going to the town proper,
he alighted near the Mormon's church, outside
Malasiqui. 12
In addition, the prosecution presented SPO1 Antonio
Espinoza and Celso Manuel who testified that, on
separate occasions, accused-appellant had confessed to
the brutal killing of Jennifer Domantay.
SPO1 Espinoza testified that he investigated accusedappellant after the latter had been brought to the
Malasiqui police station in the evening of October 17,
1996. Before he commenced his questioning, he
apprised accused-appellant of his constitutional right to
remain silent and to have competent and independent
counsel, in English, which was later translated into
Pangasinense. 13 According to SPO1 Espinoza, accusedappellant agreed to answer the questions of the
investigator even in the absence of counsel and
admitted killing the victim. Accused-appellant also
disclosed the location of the bayonet he used in killing
the victim. 14 On cross-examination, Espinoza admitted
that at no time during the course of his questioning was
accused-appellant assisted by counsel. Neither was
accused-appellant's confession reduced in
writing. 15 Espinoza's testimony was admitted by the
trial court over the objection of the defense.

PROS. QUINIT:
Q Did you introduce
yourself as a media
practitioner?
A Yes, sir.
Q How did you introduce
yourself to the accused?
A I showed to
Bernardino
Domantay alias "Junior
Otot" my I.D. card and I
presented myself as a
media practitioner with
my tape recorder [in]
my hand, sir.
Q What was his reaction
to your request for an
interview?
A He was willing to state
what had happened, sir.
Q What are those
matters which you
brought out in that
interview with the
accused Bernardino
Domantay alias "Junior
Otot"?
A I asked him what was
his purpose for human
interest's sake as a
reporter, why did he
commit that alleged
crime. And I asked also
if he committed the
crime and he answered
"yes." That's it.
xxx xxx xxx

Celso Manuel, for his part, testified that he is a radio

reporter of station DWPR, an AM station based in
Dagupan City. He covers the third district of Pangasinan,
including Malasiqui. Sometime in October 1996, an
uncle of the victim came to Dagupan City and informed
the station about Jennifer Domantay's case. 16 On
October 23, 1996, Manuel went to Malasiqui to interview
accused-appellant who was then detained in the
municipal jail. He described what transpired during the
interview thus: 17

PROS. QUINIT:
Q You mentioned about
accused admitting to
you on the commi[ssion]
of the crime, how did
you ask him that?

135

A I asked him very

politely.
Q More or less what
have you asked him on
that particular matter?
A I asked "Junior Otot,"
Bernardino Domantay,
"Kung pinagsisisihan mo
ba ang iyong ginawa?"
"Opo" sabi niya, "Ibig
mo bang sabihin Jun,
ikaw ang pumatay kay
Jennifer?", "Ako nga po"
The [l]ast part of my
interview, "Kung
nakikinig ang mga
magulang ni Jennifer,
ano ang gusto mong
iparating?", "kung gusto
nilang makamtan ang
hustisya ay tatanggapin
ko". That is what he
said, and I also asked
Junior Otot, what was his
purpose, and he said, it
was about the boundary
dispute, and he used
that little girl in his
revenge.
On cross-examination, Manuel explained that the
interview was conducted in the jail, about two to three
meters away from the police station. An uncle of the
victim was with him and the nearest policemen present
were about two to three meters from him, including
those who were in the radio room. 18 There was no
lawyer present. Before interviewing accused-appellant,
Manuel said he talked to the chief of police and asked
permission to interview accused-appellant. 19 On
questioning by the court, Manuel said that it was the
first time he had been called to testify regarding an
interview he had conducted. 20 As in the case of the
testimony of SPO1 Espinoza, the defense objected to
the admission of Manuel's testimony, but the lower
court allowed it.
Dr. Bandonill, the NBI medico-legal who conducted an
autopsy of the victim on October 25, 1996, testified that
Jennifer Domantay died as a result of the numerous stab
wounds she sustained on her back, 21 the average depth
of which was six inches. 22 He opined that the wounds
were probably caused by a "pointed sharp-edged
instrument." 23 He also noted on the aforehead, neck,
and breast bone of the victim. 24 As for the results of the
genital examination of the victim, Dr. Bandonill said he

found that the laceration on the right side of the hymen

was caused within 24 hours of her death. He added that
the genital area showed signs of inflammation. 25
Pacifico Bulatao, the photographer who took the
pictures of the scene of the crime and of the victim after
the latter's body was brought to her parents' house,
identified and authenticated the five pictures (Exhibits
A, B, C, D, and E) offered by the prosecution.
The defense then presented accused-appellant as its
lone witness. Accused-appellant denied the allegation
against him. He testified he is an uncle of Jennifer
Domantay (he and her grandfather are cousins) and
that he worked as a janitor at the Malasiqui Municipal
Hall. He said that at around 1 o'clock in the afternoon of
October 17, 1996, he was bathing his pigs outside in the
house of his brother-in-law Daudencio Macasaeb in
Guilig, Malasiqui, Pangasinan. He confirmed that
Daudencio was then having drinks in front of his
(Macasaeb's) house. Accused-appellant claimed,
however, that he did not join in the drinking and that it
was Edward Domantay, whom the prosecution had
presented as witness, and a certain Jaime Caballero who
joined the party. He also claimed that it was he whom
Macasaeb had requested to buy some more liquor, for
which reason he gave money to Edward Domantay so
that the latter could get two bottles of gin, a bottle of
Sprite, and a pack of cigarettes. 26 He denied Edward
Domantay's claim that he (accused-appellant) had
raised his shirt to show a bayonet tucked in his waistline
and that he had said he would massacre someone in
Guilig. 27
Accused-appellant also confirmed that, at about 2
o'clock in the afternoon, he went to Alacan passing on
the trail beside the bamboo grove of Amparo Domantay.
But he said he did not know that Jennifer Domantay was
following him. He further confirmed that in Alacan, he
took a tricycle to Malasiqui. The tricycle was driven by
Joselito Mejia. He said he alighted near the Mormon
church, just outside of the town proper of Malasiqui to
meet his brother. As his brother did not come, accusedappellant proceeded to town and reported for work.
That night, while he was in the Malasiqui public market,
he was picked up by three policemen and brought to the
Malasiqui police station where he was interrogated by
SPO1 Espinoza regarding the killing of Jennifer
Domantay. He denied having owned to the killing of
Jennifer Domantay to SPO1 Espinoza. He denied he had
a grudge against the victim's parents because of a
boundary dispute. 28 With respect to his extrajudicial
confession to Celso Manuel, he admitted that he had
been interviewed by the latter, but he denied that he
ever admitted anything to the former. 29

136

As already stated, the trial court found accusedappellant guilty as charged. The dispositive portion of
its decision reads: 30
WHEREFORE, in light of all the
foregoing, the Court hereby finds the
accused, Bernardino Domantay @
"Junior Otot" guilty beyond reasonable
doubt with the crime of Rape with
Homicide defined and penalized under
Article 335 of the Revised Penal Code in
relation and as amended by Republic
Act No. 7659 and accordingly, the Court
hereby sentences him to suffer the
penalty of death by lethal injection, and
to indemnify the heirs of the victim in
the total amount of Four Hundred Eighty
Thousand Pesos (P480,000.00), 31 and to
pay the costs.
SO ORDERED.
In this appeal, accused-appellant alleges that:

32

I
THE COURT A QUO ERRED IN
APPRECIATING THE EXTRAJUDICIAL
CONFESSION[S] MADE BY THE
ACCUSED-APPELLANT.
II
THE COURT A QUO ERRED IN
CONVICTING THE ACCUSED DESPITE
FAILURE OF THE PROSECUTION TO
PROVE HIS GUILT BEYOND REASONABLE
DOUBT.
First. Accused-appellant contends that his alleged
confessions to SPO1 Antonio Espinoza and Celso Manuel
are inadmissible in evidence because they had been
obtained in violation of Art. III, 12(1) of the
Constitution and that, with these vital pieces of
evidence excluded, the remaining proof of his alleged
guilt, consisting of circumstantial evidence, is
inadequate to establish his guilt beyond reasonable
doubt. 33
Art. III, 12 of the Constitution in part provides:
(1) Any person under investigation for
the commission of an offense shall have
the right to be informed of his right to
remain silent and to have competent
and independent counsel preferably of

his own choice. If the person cannot

afford the services of counsel, he must
be provided with one. These rights
cannot be waived except in writing and
in the presence of counsel.
xxx xxx xxx
(3) Any confession or admission
obtained in violation of this section or
section 17 hereof shall be inadmissible
in evidence.
This provision applies to the stage of custodial
investigation, that is, "when the investigation is no
longer a general inquiry into an unsolved crime but
starts to focus on a particular person as a
suspect." 34 R.A. No. 7438 has extended the
constitutional guarantee to situations in which an
individual has not been formally arrested but has merely
been "invited" for questioning. 35
Decisions 36 of this Court hold that for an extrajudicial
confession to be admissible, it must satisfy the following
requirements: (1) it must be voluntary; (2) it must be
made with the assistance of competent and
independent counsel; (3) it must be express; and (4) it
must be in writing.
In the case at bar, when accused-appellant was brought
to the Malasiqui police station in the evening of October
17, 1996, 37 he was already a suspect, in fact the only
one, in the brutal slaying of Jennifer Domantay. He was,
therefore, already under custodial investigation and the
rights guaranteed in Art. III, 12(1) of the Constitution
applied to him. SPO1 Espinoza narrated what transpired
during accused-appellant's interrogation: 38
[I] interrogated Bernardino Domantay,
prior to the interrogation conducted to
him, I informed him of his constitutional
right as follows; that he has the right to
remain silent; that he has the right to a
competent lawyer of his own choice and
if he can not afford [a counsel] then he
will be provided with one, and further
informed [him] that all he will say will be
reduced into writing and will be used the
same in the proceedings of the case,
but he told me that he will cooperate
even in the absence of his counsel; that
he admitted to me that he killed Jennifer
Domantay, and he revealed also the
weapon used [and] where he gave [it]
to.

137

But though he waived the assistance of counsel, the

waiver was neither put in writing nor made in the
presence of counsel. For this reason, the waiver is
invalid and his confession is inadmissible. SPO1
Espinoza's testimony on the alleged confession of
accused-appellant should have been excluded by the
trial court. So is the bayonet inadmissible in evidence,
being, as it were, the "fruit of the poisonous tree." As
explained in People v. Alicando: 39
. . . According to this rule, once the
primary source (the "tree") is shown to
have been unlawfully obtained, any
secondary or derivative evidence (the
"fruit") derived from it is also
inadmissible. Stated otherwise, illegally
seized evidence is obtained as a direct
result of the illegal act, whereas the
"fruit of the poisonous tree" is at least
once removed from the illegally seized
evidence, but it is equally inadmissible.
The rule is based the principle that
evidence illegally obtained by the State
should not be used to gain other
evidence because the originally illegal
obtained evidence taints all evidence
subsequently obtained.
We agree with the Solicitor General, however, that
accused-appellant's confession to the radio reporter,
Celso Manuel, is admissible. In People v.
Andan, 40 the accused in a rape with homicide case
confessed to the crime during interviews with the
media. In holding the confession admissible, despite the
fact that the accused gave his answers without the
assistance of counsel, this Court said: 41
[A]ppellant's [oral] confessions to the
newsmen are not covered by Section
12(1) and (3) of Article III of the
Constitution. The Bill of Rights does not
concern itself with the relation between
a private individual and another
individual. It governs the relationship
between the individual and the State.
The prohibitions therein are primarily
addressed to the State and its agents.
Accused-appellant claims, however, that the
atmosphere in the jail when he was interviewed was
"tense and intimidating" and was similar to that which
prevails in a custodial investigation. 42 We are not
persuaded. Accused-appellant was interviewed while he
was inside his cell. The interviewer stayed outside the
cell and the only person besides him was an uncle of
the victim. Accused-appellant could have refused to be
interviewed, but instead, he agreed. He answered

questions freely and spontaneously. According to Celso

Manuel, he said he was willing to accept the
consequences of his act.
Celso Manuel admitted that there were indeed some
police officers around because about two to three
meters from the jail were the police station and the
radio room. 43 We do not think the presence of the police
officers exerted any undue pressure or influence on
accused-appellant and coerced him into giving his
confession.
Accused-appellant contends that "it is . . . not altogether
improbable for the police investigators to ask the police
reporter (Manuel) to try to elicit some incriminating
information from the accused." 44 This is pure
conjecture. Although he testified that he had
interviewed inmates before, there is no evidence to
show that Celso was a police beat reporter. Even
assuming that he was, it has not been shown that, in
conducting the interview in question, his purpose was to
elicit incriminating information from accused-appellant.
To the contrary, the media are known to take an
opposite stance against the government by exposing
official wrongdoings.
Indeed, there is no showing that the radio reporter was
acting for the police or that the interview was conducted
under circumstances where it is apparent that accusedappellant confessed to the killing our of fear. As already
stated, the interview was conducted on October 23,
1996, 6 days after accused-appellant had already
confessed to the killing to the police.
Accused-appellant's extrajudicial confession is
corroborated by evidence of corpus delicti, namely, the
fact of death of Jennifer Domantay. In addition, the
circumstantial evidence furnished by the other
prosecution witnesses dovetails in material points with
his confession. He was seen walking toward the bamboo
grove, followed by the victim. Later, he was seen
standing near the bamboo grove where the child's body
was found. Rule 133 of the Revised Rules on Evidence
provides:
3. Extrajudicial confession, not
sufficient ground for conviction. An
extrajudicial confession made by an
accused, shall not be sufficient ground
for conviction, unless corroborated by
evidence ofcorpus delicti.
4. Evidence necessary in treason
cases. No person charged with
treason shall be convicted unless on the
testimony of two witnesses to the same

138

overt act, or on confession in open

court.
Accused-appellant argues that it was improbable for a
brutal killing to have been committed without the
children who were playing about eight to ten meters
from Amparo Domantay's grove, where the crime took
place, having heard any commotion. 45 The contention
has no merit. Accused-appellant could have covered the
young child's mouth to prevent her from making any
sound. In fact, Dr. Bandonill noted a five by two inch (5"
x 2") contusion on the left side of the victim's forehead,
which he said could have been caused by a hard blunt
instrument or by impact as her head hit the
ground.46 The blow could have rendered her
unconscious, thus precluding her from shouting or
crying.
Accused-appellant also contends that the testimony of
Jiezl Domantay contradicts that of Lorenzo Domantay
because while Jiezl said she had seen accused-appellant
walking towards the bamboo grove, followed by the
victim, at around 2 o'clock in the afternoon on October
17, 1996. Lorenzo said he saw accused-appellant
standing near the bamboo grove at about the same
time.
These witnesses, however, did not testify concerning
what they saw exactly the same time. What they told
the court was what they had seen "at around" 2 o'clock
in the afternoon. There could have been a between
difference in time, however little it was, between the
time Jiezl saw accused-appellant and the victim walking
and the time Lorenzo saw accused-appellant near the
place where the victim's body was later found. Far from
contradicting each other, these witnesses confirmed
what each had said each one saw. What is striking about
their testimonies is that while Jiezl said she saw
accused-appellant going toward the bamboo grove
followed by the victim "at around" 2 o'clock in the
afternoon on October 17, 1996, Lorenzo said he had
seen accused-appellant near the bamboo grove "at
around" that time. He described accused-appellant as
nervous and worried. There is no reason to doubt the
claim of these witnesses. Lorenzo is a relative of
accused-appellant. There is no reason he would testified
falsely against the latter. Jiezl, on the other hand, is also
surnamed Domantay and could also be related to
accused-appellant and has not been shown to have any
reason to testify falsely against accused-appellant. At
the time of the incident, she was only 10 years old.
For the foregoing reasons, the Court is convinced of
accused-appellant's guilt with respect to the killing of
the child. It is clear that the prosecution has proven
beyond reasonable doubt that accused-appellant is

guilty of homicide. Art. 249 of the Revised Penal Code

provides:
Any person who, not falling within the
provisions of Article 246 [parricide] shall
kill another without the attendance of
any of the circumstances enumerated in
the next preceding article [murder],
shall be deemed guilty of homicide and
be punished by reclusion temporal.
The killing was committed with the generic aggravating
circumstance of abuse of superior strength. The record
shows that the victim, Jennifer Domantay, was six years
old at the time of the killing. She was a child of small
build, 46" in height. 47 It is clear then that she could not
have put up much of a defense against accusedappellant's assault, the latter being a fully grown man of
29 years. Indeed, the physical evidence supports a
finding of abuse of superior strength: accused-appellant
had a weapon, while the victim was not shown to have
had any; there were 38 stab wounds; and all the knife
wounds are located at the back of Jennifer's body.
But we think the lower court erred in finding that the
killing was committed with cruelty. 48 The trial court
appears to have been led to this conclusion by the
number of wounds inflicted on the victim. But the
number of wounds is not a test for determining whether
there was circumstance. 49 "The rest . . . is whether the
accused deliberately and sadistically augmented the
victim's suffering thus . . . there must be proof that the
victim was made to agonize before the [the accused]
rendered the blow which snuffed out [her] life." 50 In this
case, there is no such proof of cruelty. Dr. Bandonill
testified that any of the major wounds on the victim's
back could have caused her death as they penetrated
her heart, lungs and liver, kidney and intestines. 51
Second. There is, however, no sufficient evidence to
hold accused-appellant guilty of raping Jennifer
Domantay. Art. 335. of the Revised Penal Code, as
amended, in part provides:
Art. 335. When and how rape is
committed. Rape is committed by
having carnal knowledge of a woman
under any of the following
circumstances.
1. By using force or intimidation;
2. When the woman is deprive of reason
or otherwise unconscious; and

139

3. When the woman is under twelve

years of age or is demented.
As the victim here was six years old, only carnal
knowledge had to be proved to establish rape.
Carnal knowledge is defined as the act of a man
having sexual intercourse or sexual bodily
connections with a woman. 52 For this purpose,
it is enough if there was even the slightest
contact of the male sex organ with the labia of
the victim's genitalia. 53 However, there must be
proof, by direct or indirect evidence, of such
contact.
Dr. Ronald Bandonill's report on the genital examination
he had performed on the deceased reads: 54
GENITAL EXAMINATION; showed a
complete laceration of the right side of
the hymen. The surrounding genital
area shows signs of inflammation.
xxx xxx xxx
REMARKS: 1) Findings at the genital
area indicate the probability of
penetration of that area by a hard, rigid
instrument.
Hymenal laceration is not necessary to prove
rape; 55 neither does its presence prove its commission.
As held inPeople v. Ulili, 56 a medical certificate or the
testimony of the physician is presented not to prove
that the victim was raped but to show that the latter
had lost her virginity. Consequently, standing alone, a
physician's finding that the hymen of the alleged victim
was lacerated does not prove rape. It is only when this
is corroborated by other evidence proving carnal
knowledge that rape may be deemed to have been
established. 57

This conclusion is based on the medically accepted fact

that a hymenal tear may be caused by objects other
than the male sex organ 58 or may arise from other
causes. 59 Dr. Bandonill himself admitted this. He
testified that the right side of the victim's hymen had
been completely lacerated while the surrounding genital
area showed signs of inflammation.60 He opined that the
laceration had been inflicted within 24 hours of the
victim's death and that the inflammation was due to a
trauma in that area. 61 When asked by the private
prosecutor whether the lacerations of the hymen could
have been caused by the insertion of a male organ he
said this was possible. But he also said when questioned
by the defense that the lacerations could have been
caused by something blunt other than the male organ.
Thus, he testified: 62
PROS. F. QUINIT:
Q Now, what might have
caused the complete
laceration of the right
side of the
hymen,doctor?
A Well, sir, if you look at
my report there is a
remark and it says
there; findings at the
genital area indicated
the probability of
penetration of that area
by a hard rigid
instrument.
Q Could it have been
caused by a human
organ?
A If the human male
organ is erect, fully
erect and hard then it is
possible, sir.
xxx xxx xxx
ATTY. VALDEZ:
Q In your remarks;
finding at the genital
area indicates the
probability of
penetration of that area
by a hard rigid
instrument, this may
have also been caused

140

by a dagger used in the

killing of Jennifer
Domantay is that
correct?

Q You mentioned that

the hymen was
lacerated on the right
side?

A Well, sir when I say

hard rigid instrument it
should not be sharp
pointed and share
rigid, it should be a hard
bl[u]nt instrument.

A Yes, your Honor.

Q Do you consider a
bolo a bl[u] instrument,
or a dagger?
A The dagger is a sharp
rigid but it is not a
bl[u]nt instrument, sir.
Q This Genital
Examination showed a
complete laceration of
the right side of the
hymen, this may have
been possibly caused by
a dagger, is it not?
A No, sir. I won't say
that this would have
been caused by a
dagger, because a
dagger would have
made at its incision . . .
not a laceration, sir.
Q But this laceration
may also have been
caused by other factors
other the human male
organ, is that correct?
A A hard bl[u]nt
instrument, sir could
show.
Q My question is other
than the human male
organ?
A Possible, sir.
xxx xxx xxx
COURT:

Q And if there is a
complete erection by a
human organ is this
possible that the
laceration can only be
on the right side of the
hymen?
A Yes, your Honor, its
possible.
Q How about if the
penetration was done by
a finger, was it the same
as the human organ?
A Well, it defends on the
size of the finger that
penetrat[es] that organ,
if the finger is small it
could the superficial
laceration, and if the
finger is large then it is
possible your honor.
Q How about two
fingers?
A Possible, sir.
To be sure, this Court has sustained a number of
convictions for rape with homicide based on purely
circumstantial evidence. In those instances, however,
the prosecution was able to present other tell-tale signs
of rape such as the location and description of the
victim's clothings, especially her undergarments, the
position of the body when found and the
like. 63 In People v. Macalino, 64 for instance, the Court
affirmed a conviction for the rape of a two-year old child
on the basis of circumstantial evidence. 65
The Court notes that the testimony or
medical opinion of Dr. Gajardo that the
fresh laceration had been produced by
sexual intercourse is corroborated by
the testimony given by complainant.
Elizabeth that when she rushed upstairs
upon hearing her daughter suddenly cry
out, she found appellant Macalino

141

beside the child buttoning his own pants

and that she found some sticky fluid on
the child's buttocks and some blood on
her private part.(Emphasis in the
original)
In contrast, in the case at bar, there is no circumstantial
evidence from which to infer that accused-appellant
sexually abused the victim. The only circumstance from
which such inference might be made is that accusedappellant was seen with the victim walking toward the
place where the girl's body was found. Maybe he raped
the girl. Maybe he did not. Maybe he simply inserted a
blunt object into her organ, thus causing the lacerations
in the hymen. Otherwise, there is no circumstance from
which it might reasonably be inferred that he abused
her, e.g., that he was zipping up his pants, that there
was spermatozoa in the girl's vaginal canal.
Indeed, the very autopsy report of Dr. Bandonill
militates against the finding of rape. In describing the
stab wounds on the body of the victim, he testified: 66
[A]fter examining the body I took note
that were several stab wounds . . . these
were all found at the back area sir . . .
extending from the back shoulder down
to the lower back area from the left to
the right.
Considering the relative physical positions of the
accused and the victim in crimes of rape, the
usual location of the external bodily injuries of
the victim is on the face, 67 neck, 68 and anterior
portion 69 of her body. Although it is not
unnatural to find contusions on the posterior
side, these are usually caused by the downward
pressure on the victim's body during the sexual
assault. 70 It is unquestionably different when, as
in this case, all the stab wounds (except for a
minor cut in the lower left leg) had their entry
points at the back running from the upper left
shoulder to the lower right buttocks.
It is noteworthy that the deceased was fully clothed in
blue shorts and white shirt when her body was
immediately after it was found. 71 Furthermore, there is
a huge bloodstain in the back portion of her
shorts. 72 This must be because she wearing this piece
of clothing when the stab wounds were inflicated or
immediately thereafter, thus allowing the blood to seep
into her shorts to such an extent. As accused-appellant
would naturally have to pull down the girl's lower
garments in order to consummate the rape, then, he
must have, regardless of when the stab wounds were
inflicted, pulled up the victim's shorts and

undergarments after the alleged rape, otherwise, the

victim's shorts would not have been stained so
extensively. Again, this is contrary to ordinary human
experience.
Even assuming that Jennifer had been raped, there is no
sufficient proof that it was accused-appellant who had
raped her. He did not confess to having raped the
victim.
From the foregoing, we cannot find that accusedappellant also committed rape. In the special complex
crime of rape with homicide, both the rape and the
homicide must be established beyond reasonable
doubt. 73
Third. The trial court ordered accused-appellant to pay
the heirs of Jennifer Domantay the amount of
P30,000.00 as actual damages. However, the list of
expenses produced by the victim's father, Jaime
Domantay, only totaled P28,430.00. Of this amount,
only P12,000.00 was supported by a receipt. Art. 2199
of the Civil Code provides that a party may recover
actual or compensatory damages only for such loss as
he has duly proved. Therefore, the award of actual
damages should be reduced to P12,000.00.
In addition, the heirs of Jennifer Domantay are entitled
to recover exemplary damages in view of the presence
of the aggravating circumstance of abuse of superior
strength. Art. 2230 of the Civil Code provides for the
payment of exemplary damages when the crime is
committed with one or more aggravating circumstance.
An amount of P25,000.00 is deemed appropriate. 74
In accordance with our rulings in People
v. Robles 75 and People v. Mengote, 76 the indemnity
should be fixed at P50,000.00 and the moral damages
at P50,000.00. 77
WHEREFORE, the judgment of the trial court is SET
ASIDE and another one is rendered FINDING accusedappellant guilty of homicide with the aggravating
circumstance of abuse of superior strength and
sentencing him to a prison term of 12 years of prision
mayor, as minimum, to 20 years of reclusion temporal,
as maximum, and ORDERING him to pay the heirs of
Jennifer Domantay the amounts of P50,000.00, as
indemnity, P50,000.00, as moral damages, P25,000.00,
as exemplary damages, and P12,000.00, as actual
damages, and the costs.1wphi1.nt

BRIG. GEN. LUTHER A. CUSTODIO*, CAPT. ROMEO

M. BAUTISTA, 2nd LT. JESUS D. CASTRO, SGT.

142

CLARO L. LAT, SGT. ARNULFO B. DE MESA, C1C

ROGELIO B. MORENO, C1C MARIO E. LAZAGA, SGT.
FILOMENO D. MIRANDA, SGT. ROLANDO C. DE
GUZMAN, SGT. ERNESTO M. MATEO, SGT.
RODOLFO M. DESOLONG, A1C CORDOVA G.
ESTELO, MSGT. PABLO S. MARTINEZ, SGT. RUBEN
AQUINO, SGT. ARNULFO ARTATES, A1C FELIZARDO
TARAN, Petitioners,
vs.
SANDIGANBAYAN and PEOPLE OF THE
PHILIPPINES, Respondents.
RESOLUTION

In August 2004, petitioners sought legal assistance from

the Chief Public Attorney who, in turn, requested the
Independent Forensic Group of the University of the
Philippines to make a thorough review of the forensic
evidence in the double murder case. The petitioners,
assisted by the Public Attorneys Office, now want to
present the findings of the forensic group to this Court
and ask the Court to allow the re-opening of the cases
and the holding of a third trial to determine the
circumstances surrounding the death of Senator
Benigno Aquino, Jr. and Rolando Galman.
Petitioners invoke the following grounds for the reopening of the case:

PUNO, J.:
I
Before us is a Motion To Re-Open Case With Leave Of
Court filed by petitioners who were convicted and
sentenced to reclusion perpetua by the Sandiganbayan
in Criminal Cases Nos. 10010 and 10011 for the double
murder of Senator Benigno Aquino, Jr. and Rolando
Galman on August 21, 1983.1
Petitioners were members of the military who acted as
Senator Aquinos security detail upon his arrival in
Manila from his three-year sojourn in the United States.
They were charged, together with several other
members of the military, before the Sandiganbayan for
the killing of Senator Aquino who was fatally shot as he
was coming down from the aircraft of China Airlines at
the Manila International Airport. Petitioners were also
indicted for the killing of Rolando Galman who was also
gunned down at the airport tarmac.
On December 2, 1985, the Sandiganbayan rendered a
Decision in Criminal Cases Nos. 10010-10011 acquitting
all the accused, which include the petitioners. However,
the proceedings before the Sandiganbayan were later
found by this Court to be a sham trial. The Court thus
nullified said proceedings, as well as the judgment of
acquittal, and ordered a re-trial of the cases.2
A re-trial ensued before the Sandiganbayan.
In its decision dated September 28, 1990, the
Sandiganbayan, while acquitting the other accused,
found the petitioners guilty as principals of the crime of
murder in both Criminal Cases Nos. 10010 and 10011. It
sentenced them to reclusion perpetua in each
case.3 The judgment became final after this Court
denied petitioners petition for review of the
Sandiganbayan decision for failure to show reversible
error in the questioned decision,4 as well as their
subsequent motion for reconsideration.5

Existence of newly discovered pieces of

evidence that were not available during the
second trial of the above-entitled cases which
could have altered the judgment of the
Sandiganbayan, specifically:
A) Independent forensic evidence
uncovering the false forensic claims that
led to the unjust conviction of the
petitioners-movants.
B) A key defense eyewitness to the
actual killing of Senator Benigno Aquino,
Jr.
II
There was a grave violation of due process by
reason of:
A) Insufficient legal assistance of
counsel;
B) Deprivation of right to counsel of
choice;
C) Testimonies of defense witnesses
were under duress;
D) Willful suppression of evidence;
E) Use of false forensic evidence that led
to the unjust conviction of the
petitioners-movants.
III

143

There was serious misapprehension of facts on

the part of the Sandiganbayan based on false
forensic evidence, which entitles petitionersmovants to a re-trial.6
Petitioners seek to present as new evidence the findings
of the forensic group composed of Prof. Jerome B.
Bailen, a forensic anthropologist from the University of
the Philippines, Atty. Erwin P. Erfe, M.D., a medico-legal
practitioner, Benito E. Molino, M.D., a forensic
consultant and Human Rights and Peace Advocate, and
Anastacio N. Rosete, Jr., D.M.D., a forensic dentistry
consultant. Their report essentially concludes that it was
not possible, based on the forensic study of the
evidence in the double murder case, that C1C Rogelio
Moreno fired at Senator Aquino as they descended the
service stairway from the aircraft. They posit that
Senator Aquino was shot while he was walking on the
airport tarmac toward the waiting AVSECOM van which
was supposed to transport him from the airport to Fort
Bonifacio. This is contrary to the finding of the
Sandiganbayan in the second trial that it was C1C
Moreno, the security escort positioned behind Senator
Aquino, who shot the latter. The report also suggests
that the physical evidence in these cases may have
been misinterpreted and manipulated to mislead the
court. Thus, petitioners assert that the September 28,
1990 decision of the Sandiganbayan should be voided
as it was based on false forensic evidence. Petitioners
submit that the review by the forensic group of the
physical evidence in the double murder case
constitutes newly discovered evidence which would
entitle them to a new trial under Rule 121 of the 2000
Rules of Criminal Procedure. In addition to the report of
the forensic group, petitioners seek to present the
testimony of an alleged eyewitness, the driver of the
waiting AVSECOM van, SPO4 Ruben M. Cantimbuhan. In
his affidavit submitted to this Court, SPO4 Cantimbuhan
states that he saw a man in blue uniform similar to that
of the Philippine Airlines maintenance crew, suddenly
fire at Senator Aquino as the latter was about to board
the van. The man in blue was later identified as Rolando
Galman.
Petitioners pray that the Court issue a resolution:
1. [a]nnulling and setting aside this Honorable
Courts Resolutions dated July 23, 1991 and
September 10, 1991;
2. [a]nnulling and setting aside the Decision of
the Sandiganbayan (3rd Division) dated
September 28, 1990 in People vs. Custodio, et
al., Case No. 10010-10011[;]
3. [o]rdering the re-opening of this case; [and]

4. [o]rdering the Sandiganbayan to allow the

reception of additional defense evidence/re-trial
in the above entitled cases.7
The issue now is whether petitioners are entitled to
a third trial under Rule 121 of the 2000 Rules of
Criminal Procedure.
The pertinent sections of Rule 121 of the 2000 Rules of
Criminal Procedure provide:
Section 1. New Trial or reconsideration.
At any time before a judgment of conviction
becomes final, the court may, on motion of the
accused or at its own instance but with the
consent of the accused, grant a new trial or
reconsideration.
Sec. 2. Grounds for a new trial. The court
shall grant a new trial on any of the following
grounds:
(a) That errors of law or irregularities
prejudicial to the substantial rights of
the accused have been committed
during the trial;
(b) That new and material evidence
has been discovered which the
accused could not with reasonable
diligence have discovered and
produced at the trial and which if
introduced and admitted would
probably change the judgment.
xxx
Sec. 6. Effects of granting a new trial or
reconsideration. The effects of granting a
new trial or reconsideration are the following:
(a) When a new trial is granted on the
ground of errors of law or irregularities
committed during the trial, all the
proceedings and evidence affected
thereby shall be set aside and taken
anew. The court may, in the interest of
justice, allow the introduction of
additional evidence.
(b) When a new trial is granted on the
ground of newly discovered evidence,
the evidence already adduced shall
stand and the newly-discovered and
such other evidence as the court may,
in the interest of justice, allow to be

144

introduced shall be taken and

considered together with the evidence
already in the record.
(c) In all cases, when the court grants
new trial or reconsideration, the original
judgment shall be set aside or vacated
and a new judgment rendered
accordingly. (emphasis supplied)
In line with the objective of the Rules of Court to set
guidelines in the dispensation of justice, but without
shackling the hands that dispense it, the remedy of new
trial has been described as "a new invention to temper
the severity of a judgment or prevent the failure of
justice."8 Thus, the Rules allow the courts to grant a new
trial when there are errors of law or irregularities
prejudicial to the substantial rights of the accused
committed during the trial, or when there exists newly
discovered evidence. In the proceedings for new trial,
the errors of law or irregularities are expunged from the
record or new evidence is introduced. Thereafter, the
original judgment is vacated and a new one is
rendered.9
Under the Rules, a person convicted of a crime may
avail of the remedy of new trial before the judgment of
conviction becomes final. Petitioners admit that the
decision of the Sandiganbayan in Criminal Cases Nos.
10010 and 10011 became final and executory upon
denial of their petition for review filed before this Court
and their motion for reconsideration. Entry of judgment
has in fact been made on September 30,
1991.10 Nonetheless, they maintain that equitable
considerations exist in this case to justify the relaxation
of the Rules and re-open the case to accord petitioners
the opportunity to present evidence that will exonerate
them from the charges against them. We do not find
merit in their submission.
Petitioners anchor their motion on the ground of newly
discovered evidence. Courts are generally reluctant in
granting motions for new trial on the ground of newly
discovered evidence for it is presumed that the moving
party has had ample opportunity to prepare his case
carefully and to secure all the necessary evidence
before the trial. Such motions are treated with great
caution due to the danger of perjury and the manifest
injustice of allowing a party to allege that which may be
the consequence of his own neglect to defeat an
adverse judgment. Hence, the moving party is often
required to rebut a presumption that the judgment is
correct and that there has been a lack of due diligence,
and to establish other facts essential to warrant the
granting of a new trial on the ground of newly
discovered evidence.11 This Court has repeatedly held
that before a new trial may be granted on the ground of

newly discovered evidence, it must be shown (1) that

the evidence was discovered after trial; (2) that such
evidence could not have been discovered and produced
at the trial even with the exercise of reasonable
diligence; (3) that it is material, not merely cumulative,
corroborative, or impeaching; and (4) the evidence is of
such weight that it would probably change the judgment
if admitted. If the alleged newly discovered evidence
could have been very well presented during the trial
with the exercise of reasonable diligence, the same
cannot be considered newly discovered.12
These standards, also known as the "Berry" rule, trace
their origin to the 1851 case of Berry vs. State of
Georgia13 where the Supreme Court of Georgia held:
Applications for new trial on account of newly
discovered evidence, are not favored by the
Courts. x x x Upon the following points there
seems to be a pretty general concurrence of
authority, viz; that it is incumbent on a party
who asks for a new trial, on the ground of newly
discovered evidence, to satisfy the Court, 1st.
That the evidence has come to his knowledge
since the trial. 2d. That it was not owing to the
want of due diligence that it did not come
sooner. 3d. That it is so material that it would
produce a different verdict, if the new trial were
granted. 4th. That it is not cumulative only viz;
speaking to facts, in relation to which there was
evidence on the trial. 5th. That the affidavit of
the witness himself should be produced, or its
absence accounted for. And 6th, a new trial will
not be granted, if the only object of the
testimony is to impeach the character or credit
of a witness. (citations omitted)
These guidelines have since been followed by our courts
in determining the propriety of motions for new trial
based on newly discovered evidence.
It should be emphasized that the applicant for new trial
has the burden of showing that the new evidence he
seeks to present has complied with the requisites to
justify the holding of a new trial.
The threshold question in resolving a motion for new
trial based on newly discovered evidence is whether the
proferred evidence is in fact a "newly discovered
evidence which could not have been discovered by due
diligence." The question of whether evidence is
newly discovered has two aspects: a temporal
one, i.e., when was the evidence discovered, and
a predictive one, i.e., when should or could it have
been discovered. It is to the latter that the requirement
of due diligence has relevance.14 We have held that in

145

order that a particular piece of evidence may be

properly regarded as newly discovered to justify new
trial, what is essential is not so much the time when the
evidence offered first sprang into existence nor the time
when it first came to the knowledge of the party now
submitting it; what is essential is that the offering party
had exercised reasonable diligence in seeking to
locate such evidence before or during trial but had
nonetheless failed to secure it.15
The Rules do not give an exact definition of due
diligence, and whether the movant has exercised due
diligence depends upon the particular circumstances of
each case.16 Nonetheless, it has been observed that the
phrase is often equated with "reasonable promptness to
avoid prejudice to the defendant." In other words, the
concept of due diligence has both a
time component and a good faith component. The
movant for a new trial must not only act in a timely
fashion in gathering evidence in support of the motion;
he must act reasonably and in good faith as well. Due
diligence contemplates that the defendant acts
reasonably and in good faith to obtain the evidence, in
light of the totality of the circumstances and the facts
known to him.17
Applying the foregoing tests, we find that petitioners
purported evidence does not qualify as newly
discovered evidence that would justify the re-opening of
the case and the holding of a third trial.
The report of the forensic group may not be considered
as newly discovered evidence as petitioners failed to
show that it was impossible for them to secure an
independent forensic study of the physical evidence
during the trial of the double murder case. It appears
from their report that the forensic group used the
same physical and testimonial evidence proferred
during the trial, but made their own analysis and
interpretation of said evidence. They cited the
materials and methods that they used for their
study, viz:
MATERIALS AND METHODS
MATERIALS:
a. Court records of the case, especially
photographs of: a) the stairway where the late
Sen. Aquino and his escorts descended; b) the
part of the tarmac where the lifeless bodies of
the late Sen. Aquino and Galman fell; and c) the
autopsy conducted by the NBI Medico-legal
team headed by Dr. Mu[]oz; and the autopsy
report of the late Sen. Benigno Aquino[,] Jr.
signed by Dr. Mu[]oz and Dr. Solis;

b. The gun and live ammunitions collected at

the crime scene;
c. A reference human skull photos and X-rays of
the same to demonstrate wound location and
bullet trajectory;
d. The reports of interviews and statements by
the convicted military escorts, and other
witnesses;
e. Re-enactment of the killing of Aquino based
on the military escorts[] version, by the military
escorts themselves in the Bilibid Prison and by
volunteers at the NAIA Tarmac;
f. Various books and articles on forensic and the
medico-legal field[;]
g. Results of Forensic experiments conducted in
relation to the case.
METHODS:
a. Review of the forensic exhibits presented in
the court;
b. Review of TSNs relevant to the forensic
review;
c. Study of and research on the guns, slugs and
ammunitions allegedly involved in the crime;
d. Interviews/re-enactment of the crime based
on the militarys accounts, both in the Bilibid
Prison where the convicts are confined and the
MIA (now NAIA) stairway and tarmac;
e. Conduct of ocular inspection and
measurements on the actual crime scene
(stairway and tarmac) at the old Manila
International Airport (now NAIA);
f. Retracing the slugs trajectory based on the
autopsy reports and experts testimonies using
an actual human skull;
g. X-rays of the skull with the retraced trajectory
based on the autopsy report and experts
testimonies;
h. Evaluation of the presented facts and
opinions of local experts in relation to accepted
forensic findings in international publications on

146

forensic science, particularly on guns and

[gunshot] wound injuries;
i. Forensic experiments and simulations of
events in relation to this case.18
These materials were available to the parties during the
trial and there was nothing that prevented the
petitioners from using them at the time to support their
theory that it was not the military, but Rolando Galman,
who killed Senator Aquino. Petitioners, in their present
motion, failed to present any new forensic evidence that
could not have been obtained by the defense at the
time of the trial even with the exercise of due diligence.
If they really wanted to seek and offer the opinion of
other forensic experts at the time regarding the physical
evidence gathered at the scene of the crime, there was
ample opportunity for them to do so before the case
was finally submitted and decided.19
A reading of the Sandiganbayan decision dated
September 28, 1990 shows a thorough study by the
court of the forensic evidence presented during the
trial, viz:
COURT FINDINGS
As to the physical
evidence
Great significance has to be accorded the
trajectory of the single bullet that penetrated
the head and caused the death of Sen. Benigno
Aquino, Jr. Basic to the question as to trajectory
ought to be the findings during the autopsy. The
prosector in the autopsy, Dr. Bienvenido Muoz,
NBI Medico-Legal Officer, reported in his
Autopsy Report No. N-83-22-36, that the
trajectory of the gunshot, the wound of entrance
having been located at the mastoid region, left,
below the external auditory meatus, and the
exit wound having been at the anterior portion
of the mandible, was "forward, downward and
medially." (Autopsy Report No. N-83-22-36,
Exhibit "NNNN-2-t-2")
A controversy as to this trajectory came about
when, upon being cross-examined by counsel
for the defense, Dr. Bienvenido Muoz made a
significant turn-about by stating that the correct
trajectory of the fatal bullet was "upward,
downward, and medially." The present position
of Dr. Muoz is premised upon the alleged fact
that he found the petrous bone fractured,
obviously hit by the fatal bullet. He concluded,
in view of this finding, that the fatal bullet must

have gone upward from the wound of entrance.

Since the fatal bullet exited at the mandible, it is
his belief that the petrous bone deflected the
trajectory of the bullet and, thus, the bullet
proceeded downwards from the petrous bone to
the mandible.
This opinion of Dr. Bienvenido Muoz in this
regard notwithstanding, We hold that the
trajectory of the fatal bullet which killed Sen.
Benigno Aquino, Jr. was, indeed, "forward,
downward and medially." For the reason that the
wound of entrance was at a higher elevation
than the wound of exit, there can be no other
conclusion but that the trajectory was
downward. The bullet when traveling at a fast
rate of speed takes a straight path from the
wound of entrance to the wound of exit. It is
unthinkable that the bullet, while projected
upwards, would, instead of exiting to the roof of
the head, go down to the mandible because it
was allegedly deflected by a petrous bone which
though hard is in fact a mere spongy
protuberance, akin to a cartilage.
Clear is proof of the downward trajectory of the
fatal bullet; First, as Dr. Pedro Solis and Dr.
Ceferino Cunanan, the immediate superiors of
Dr. Bienvenido Muoz, manifested before the
Court, that, since the wound of entrance
appeared ovaloid and there is what is known as
a contusion collar which was widest at the
superior portion, indicating an acute angle of
approach, a downward trajectory of the bullet is
indicated. This phenomenon indicates that the
muzzle of the fatal gun was at a level higher
than that of the point of entry of the fatal bullet.
There was no showing as to whether a probe
could have been made from the wound of
entrance to the petrous bone. Out of curiosity,
Dr. Juanito Billote tried to insert a probe from
the wound of exit into the petrous bone. He was
unsuccessful notwithstanding four or five
attempts. If at all, this disproves the theory of
Dr. Muoz that the trajectory was upward,
downward and medially. On the other hand, Dr.
Juanito Billote and photographer Alexander
Loinaz witnessed the fact that Dr. Muoz[s]
understudy, Alejandrino Javier, had successfully
made a probe from the wound of entrance
directly towards the wound of exit. Alejandrino
Javier shouted with excitement upon his success
and Alexander Loinaz promptly photographed
this event with Alejandrino Javier holding the
protruding end of the probe at the mandible.
(Exhibit "XXXXX-39-A")

147

To be sure, had the main bullet hit the petrous

bone, this spongy mash of cartilage would have
been decimated or obliterated. The fact that the
main bullet was of such force, power and speed
that it was able to bore a hole into the mandible
and crack it, is an indication that it could not
have been stopped or deflected by a mere
petrous bone. By its power and force, it must
have been propelled by a powerful gun. It would
have been impossible for the main bullet to
have been deflected form an upward course by
a mere spongy protuberance. Granting that it
was so deflected, however, it could not have
maintained the same power and force as when
it entered the skull at the mastoid region so as
to crack the mandible and make its exit there.

The fact that there was found a fracture of the

petrous bone is not necessarily indicative of the
theory that the main bullet passed through the
petrous bone.

But what caused the fracture of the petrous

bone? Was there a cause of the fracture, other
than that the bullet had hit it? Dr. Pedro Solis,
maintaining the conclusion that the trajectory of
the bullet was downward, gave the following
alternative explanations for the fracture of the
petrous bone:

Finding of a downward
trajectory of the
fatal bullet fatal
to the credibility
of defense witnesses.

First, the petrous bone could have been hit by a

splinter of the main bullet, particularly, that
which was found at the temporal region; and,
Second, the fracture must have been caused by
the kinetic force applied to the point of entrance
at the mastoid region which had the tendency of
being radiated towards the petrous bone.
Thus, the fracture in the occipital bone, of the
temporal bone, and of the parietal bone, Dr.
Pedro Solis pointed out, had been caused by the
aforesaid kinetic force. When a force is applied
to the mastoid region of the head, Dr. Pedro
Solis emphasized, a radiation of forces is
distributed all over the cranial back, including,
although not limited to, the parietal bone. The
skull, Dr. Solis explains, is a box-like structure.
The moment you apply pressure on the portion,
a distortion, tension or some other mechanical
defect is caused. This radiation of forces
produces what is known as the "spider web
linear fracture" which goes to different parts of
the body. The so-called fracturing of the petrous
portion of the left temporal bone is one of the
consequences of the kinetic force forcefully
applied to the mastoid region.

Doubt was expressed by Dr. Pedro Solis as to

whether the metal fragments alleged by Dr.
Bienvenido Muoz to have been found by him
inside the skull or at the wound of exit were
really parts of the main bullet which killed the
Senator. When Dr. Pedro Solis examined these
fragments, he found that two (2) of the
fragments were larger in size, and were of such
shapes, that they could not have gone out of
the wound of exit considering the size and
shape of the exit wound.

The finding that the fatal bullet which killed Sen.

Benigno Aquino, Jr. was directed downwards
sustains the allegation of prosecution
eyewitnesses to the effect that Sen. Benigno
Aquino, Jr. was shot by a military soldier at the
bridge stairs while he was being brought down
from the plane. Rebecca Quijano saw that the
senator was shot by the military man who was
directly behind the Senator while the Senator
and he were descending the stairs. Rebecca
Quijanos testimony in this regard is echoed by
Jessie Barcelona, Ramon Balang, Olivia
Antimano, and Mario Laher, whose testimonies
this Court finds likewise as credible.
The downward trajectory of the bullet having
been established, it stands to reason that the
gun used in shooting the Senator was fired from
an elevation higher than that of the wound of
entrance at the back of the head of the Senator.
This is consistent with the testimony of
prosecution witnesses to the effect that the
actual killer of the Senator shot as he stood at
the upper step of the stairs, the second or third
behind Senator Aquino, while Senator Aquino
and the military soldiers bringing him were at
the bridge stairs. This is likewise consistent with
the statement of Sandra Jean Burton that the
shooting of Senator Aquino occurred while the
Senator was still on the bridge stairs, a
conclusion derived from the fact that the fatal
shot was fired ten (10) seconds after Senator
Aquino crossed the service door and was led
down the bridge stairs.

148

It was the expert finding of Dr. Matsumi Suzuki

that, as was gauged from the sounds of the
footsteps of Senator Aquino, as the Senator
went down the bridge stairs, the shooting of the
Senator occurred while the Senator had stepped
on the 11th step from the top.
At the ocular inspection conducted by this
Court, with the prosecution and the defense in
attendance, it should be noted that the
following facts were established as regards the
bridge stairs:
"Observations:
The length of one block covering the tarmac
196";
The width of one block covering the tarmac
10;
The distance from the base of the staircase
leading to the emergency tube to the Ninoy
marker at the tarmac 126";
There are 20 steps in the staircase including the
landing;
The distance from the first rung of the stairway
up to the 20th rung which is the landing of stairs
208";
Distance from the first rung of the stairway up
to the 20th rung until the edge of the exit door
2311";
Distance from the 4th rung up to the exit door
21;
Distance from the 5th rung up to the exit door
1911";
Length of one rung including railpost 34";
Space between two rungs of stairway 9";
Width of each rung 11-1/2";
Length of each rung (end to end) 29":
Height of railpost from edge of rung to railing
25".

The Sandiganbayan again exhaustively analyzed and

discussed the forensic evidence in its resolution dated
November 15, 1990 denying the motion for
reconsideration filed by the convicted accused. The
court held:
The Autopsy Report No. N-83-2236, Exhibit "NNNN-2-t2" indicated a downward trajectory of the fatal bullet
when it stated that the fatal bullet was "forward,
downward, and medially . . ."
xxx
II
The wound of entrance having been at a higher
elevation than the wound of exit, there can be
no other conclusion but that the trajectory was
downward. The fatal bullet, whether it be a
Smith and Wesson Caliber .357 magnum
revolver or a .45 caliber, must have traveled at
a fast rate of speed and it stands to reason that
it took a straight path from the wound of
entrance to the wound of exit. A hole indicating
this straight path was proven to have existed. If,
as contended on cross-examination by Dr.
Bienvenido Muoz, that the bullet was projected
upwards, it ought to have exited at the roof of
the head. The theory that the fatal bullet was
deflected by a mere petrous bone is
inconceivable.
III
Since the wound of entrance appeared ovaloid
and there is what is known as a contusion collar
which was widest at the superior portion,
indicating an acute angle of approach, a
downward trajectory of the fatal bullet is
conclusively indicated. This phenomenon
indicates that the muzzle of the fatal gun was at
a level higher than that of the point of entry of
the fatal bullet.
IV
There was no hole from the petrous bone to the
mandible where the fatal bullet had exited and,
thus, there is no support to the theory of Dr.
Bienvenido Muoz that the fatal bullet had hit
the petrous bone on an upward trajectory and
had been deflected by the petrous bone towards
the mandible. Dr. Juanito Billotes testimony in
this regard had amplified the matter with clarity.

(underlining supplied)20
xxx

149

These physical facts, notwithstanding the

arguments and protestations of counsel for the
defense as now and heretofore avowed, compel
the Court to maintain the holding: (1) that the
trajectory of the fatal bullet which hit and killed
Senator Benigno Aquino, Jr. was "forward,
downward and medially"; (2) that the Senator
was shot by a person who stood at a higher
elevation than he; and (3) that the Senator was
shot and killed by CIC Rogelio Moreno on the
bridge stairs and not on the tarmac, in
conspiracy with the rest of the accused
convicted herein.21
This Court affirmed said findings of the Sandiganbayan
when it denied the petition for review in its resolution of
July 25, 1991. The Court ruled:
The Court has carefully considered and
deliberated upon all the contentions of the
petitioners but finds no basis for the allegation
that the respondent Sandiganbayan has gravely
erred in resolving the factual issues.
The attempt to place a constitutional dimension
in the petition is a labor in vain. Basically, only
questions of fact are raised. Not only is it
axiomatic that the factual findings of the
Sandiganbayan are final unless they fall within
specifically recognized exceptions to the rule
but from the petition and its annexes alone, it is
readily apparent that the respondent Court
correctly resolved the factual issues.
xxx

The trajectory of the fatal bullet, whether or not

the victim was descending the stairway or was
on the tarmac when shot, the circumstances
showing conspiracy, the participants in the
conspiracy, the individual roles of the accused
and their respective parts in the conspiracy, the
absence of evidence against thirteen accused
and their co-accused Col. Vicente B. Tigas, Jr.,
the lack of credibility of the witnesses against
former Minister Jose D. Aspiras, Director Jesus Z.
Singson, Col. Arturo A. Custodio, Hermilo
Gosuico, Major General Prospero Olivas, and the
shooting of Rolando Galman are all factual
matters w[h]ich the respondent court discussed
with fairness and at length. The petitioners
insistence that a few witnesses in their favor
should be believed while that of some witnesses
against them should be discredited goes into
the question of credibility of witnesses, a matter
which under the records of this petition is best
left to the judgment of the Sandiganbayan.22
The report of the forensic group essentially
reiterates the theory presented by the defense
during the trial of the double murder case. Clearly,
the report is not newly discovered, but rather recently
sought, which is not allowed by the Rules.23 If at all, it
only serves to discredit the version of the prosecution
which had already been weighed and assessed, and
thereafter upheld by the Sandiganbayan.
The same is true with the statement of the alleged
eyewitness, SPO4 Cantimbuhan. His narration merely
corroborates the testimonies of other defense witnesses
during the trial that they saw Senator Aquino already
walking on the airport tarmac toward the AVSECOM van
when a man in blue-gray uniform darted from behind
and fired at the back of the Senators head.24 The
Sandiganbayan, however, did not give weight to their
account as it found the testimonies of prosecution
eyewitnesses Rebecca Quijano and Jessie Barcelona
more credible. Quijano and Barcelona testified that they
saw the soldier behind Senator Aquino on the stairway
aim and fire a gun on the latters nape. As earlier
quoted, the Sandiganbayan found their testimonies to
be more consistent with the physical evidence. SPO4
Cantimbuhans testimony will not in any way alter the
courts decision in view of the eyewitness account of
Quijano and Barcelona, taken together with the physical
evidence presented during the trial. Certainly, a new
trial will only be allowed if the new evidence is of
such weight that it would probably change the
judgment if admitted.25 Also, new trial will not be
granted if the new evidence is merely cumulative,
corroborative or impeaching.

150

As additional support to their motion for new trial,

petitioners also claim that they were denied due process
because they were deprived of adequate legal
assistance by counsel. We are not persuaded. The
records will bear out that petitioners were ably
represented by Atty. Rodolfo U. Jimenez during the trial
and when the case was elevated to this Court. An
experienced lawyer in criminal cases, Atty. Jimenez
vigorously defended the petitioners cause throughout
the entire proceedings. The records show that the
defense presented a substantial number of witnesses
and exhibits during the trial. After the Sandiganbayan
rendered its decision, Atty. Jimenez filed a petition for
review with this Court, invoking all conceivable grounds
to acquit the petitioners. When the Court denied the
petition for review, he again filed a motion for
reconsideration exhausting his deep reservoir of legal
talent. We therefore find petitioners claim to be
unblushingly unsubstantiated. We note that they did not
allege any specific facts in their present motion to show
that Atty. Jimenez had been remiss in his duties as
counsel. Petitioners are therefore bound by the acts and
decisions of their counsel as regards the conduct of the
case. The general rule is that the client is bound by the
action of his counsel in the conduct of his case and
cannot be heard to complain that the result of the
litigation might have been different had his counsel
proceeded differently.26 We held in People vs. Umali:27
In criminal as well as civil cases, it has
frequently been held that the fact that blunders
and mistakes may have been made in the
conduct of the proceedings in the trial court, as
a result of the ignorance, inexperience, or

incompetence of counsel, does not furnish a

ground for a new trial.
If such grounds were to be admitted as reasons
for reopening cases, there would never be an
end to a suit so long as new counsel could be
employed who could allege and show that prior
counsel had not been sufficiently diligent, or
experienced, or learned.
So it has been held that mistakes of attorneys
as to the competency of a witness, the
sufficiency, relevancy, materiality, or
immateriality of a certain evidence, the proper
defense, or the burden of proof are not proper
grounds for a new trial; and in general the client
is bound by the action of his counsel in the
conduct of his case, and can not be heard to
complain that the result of the litigation might
have been different had counsel proceeded
differently. (citations omitted)
Finally, we are not moved by petitioners assertion that
the forensic evidence may have been manipulated and
misinterpreted during the trial of the case. Again,
petitioners did not allege concrete facts to support their
crass claim. Hence, we find the same to be unfounded
and purely speculative.
IN VIEW WHEREOF, the motion is DENIED.

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