G.R. No. 124354 December 29, 1999
Except for
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf
and as natural guardians of the minors, ROMMEL RAMOS, ROY
RODERICK RAMOS and RON RAYMOND RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR.
ORLINO HOSAKA and DRA. PERFECTA
GUTIERREZ, respondents.
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial
consideration to the health and welfare of their patients. If a doctor
fails to live up to this precept, he is made accountable for his acts. A
mistake, through gross negligence or incompetence or plain human
error, may spell the difference between life and death. In this sense,
the doctor plays God on his patient's fate. 1
In the case at bar, the Court is called upon to rule whether a
surgeon, an anesthesiologist and a hospital should be made liable
for the unfortunate comatose condition of a patient scheduled for
cholecystectomy. 2
Petitioners seek the reversal of the decision 3 of the Court of
Appeals, dated 29 May 1995, which overturned the decision 4 of the
Regional Trial Court, dated 30 January 1992, finding private
respondents liable for damages arising from negligence in the
performance of their professional duties towards petitioner Erlinda
Ramos resulting in her comatose condition.
The antecedent facts as summarized by the trial court are
reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of
June 17, 1985, a 47-year old (Exh. "A") robust
woman (TSN, October 19, 1989, p. 10).
occasional complaints of discomfort due to pains
allegedly caused by the presence of a stone in her
gall bladder (TSN, January 13, 1988, pp. 4-5), she
was as normal as any other woman. Married to
Rogelio E. Ramos, an executive of Philippine Long
Distance Telephone Company, she has three
children whose names are Rommel Ramos, Roy
Roderick Ramos and Ron Raymond Ramos (TSN,
October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with
her normal ways, she sought professional advice.
She was advised to undergo an operation for the
removal of a stone in her gall bladder (TSN, January
13, 1988, p. 5). She underwent a series of
examinations which included blood and urine tests
(Exhs. "A" and "C") which indicated she was fit for
surgery.
Through the intercession of a mutual friend, Dr.
Buenviaje (TSN, January 13, 1988, p. 7), she and
her husband Rogelio met for the first time Dr. Orlino
Hozaka (should be Hosaka; see TSN, February 20,
1990, p. 3), one of the defendants in this case, on
June 10, 1985. They agreed that their date at the
operating table at the DLSMC (another defendant),
would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka
decided that she should undergo a
"cholecystectomy" operation after examining the
documents (findings from the Capitol Medical
Center, FEU Hospital and DLSMC) presented to
him. Rogelio E. Ramos, however, asked Dr. Hosaka
to look for a good anesthesiologist. Dr. Hosaka, in
turn, assured Rogelio that he will get a good
anesthesiologist. Dr. Hosaka charged a fee of
P16,000.00, which was to include the
anesthesiologist's fee and which was to be paid after
the operation (TSN, October 19, 1989, pp. 14-15,
22-23, 31-33; TSN, February 27, 1990, p. 13; and
TSN, November 9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she
was admitted at one of the rooms of the DLSMC,
located along E. Rodriguez Avenue, Quezon City
(TSN, October 19,1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while still
in her room, she was prepared for the operation by
the hospital staff. Her sister-in-law, Herminda Cruz,
who was the Dean of the College of Nursing at the
Capitol Medical Center, was also there for moral
support. She reiterated her previous request for
Herminda to be with her even during the operation.
After praying, she was given injections. Her hands
were held by Herminda as they went down from her
room to the operating room (TSN, January 13, 1988,
pp. 9-11). Her husband, Rogelio, was also with her
(TSN, October 19, 1989, p. 18). At the operating
room, Herminda saw about two or three nurses and
Dr. Perfecta Gutierrez, the other defendant, who
was to administer anesthesia. Although not a
member of the hospital staff, Herminda introduced
herself as Dean of the College of Nursing at the
Capitol Medical Center who was to provide moral
support to the patient, to them. Herminda was
allowed to stay inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby
phone to look for Dr. Hosaka who was not yet in
(TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez
thereafter informed Herminda Cruz about the
prospect of a delay in the arrival of Dr. Hosaka.
Herminda then went back to the patient who asked,
"Mindy, wala pa ba ang Doctor"? The former replied,
"Huwag kang mag-alaala, darating na iyon" (Ibid.).
Thereafter, Herminda went out of the operating room
and informed the patient's husband, Rogelio, that
the doctor was not yet around (id., p. 13). When she
returned to the operating room, the patient told her,
"Mindy, inip na inip na ako, ikuha mo ako ng ibang
Doctor." So, she went out again and told Rogelio
about what the patient said (id., p. 15). Thereafter,
she returned to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was
"already dying [and] waiting for the arrival of the
doctor" even as he did his best to find somebody
who will allow him to pull out his wife from the
operating room (TSN, October 19, 1989, pp. 19-20).
He also thought of the feeling of his wife, who was
inside the operating room waiting for the doctor to
arrive (ibid.). At almost 12:00 noon, he met Dr.
Garcia who remarked that he (Dr. Garcia) was also
tired of waiting for Dr. Hosaka to arrive (id., p. 21).
While talking to Dr. Garcia at around 12:10 P.M., he
came to know that Dr. Hosaka arrived as a nurse
remarked, "Nandiyan na si Dr. Hosaka, dumating na
raw." Upon hearing those words, he went down to
the lobby and waited for the operation to be
completed (id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was
inside the operating room with the patient, heard
somebody say that "Dr. Hosaka is already here."
She then saw people inside the operating room
"moving, doing this and that, [and] preparing the
patient for the operation" (TSN, January 13, 1988, p.
16). As she held the hand of Erlinda Ramos, she
then saw Dr. Gutierrez intubating the hapless
patient. She thereafter heard Dr. Gutierrez say, "ang
hirap ma-intubate nito, mali yata ang pagkakapasok.
O lumalaki ang tiyan" (id., p. 17). Because of the
remarks of Dra. Gutierrez, she focused her attention
on what Dr. Gutierrez was doing. She thereafter
noticed bluish discoloration of the nailbeds of the left
hand of the hapless Erlinda even as Dr. Hosaka
approached her. She then heard Dr. Hosaka issue
an order for someone to call Dr. Calderon, another
anesthesiologist (id., p. 19). After Dr. Calderon
arrived at the operating room, she saw this
anesthesiologist trying to intubate the patient. The
patient's nailbed became bluish and the patient was
placed in a trendelenburg position — a position
where the head of the patient is placed in a position
lower than her feet which is an indication that there
is a decrease of blood supply to the patient's brain
(Id., pp. 19-20). Immediately thereafter, she went out
of the operating room, and she told Rogelio E.
Ramos "that something wrong was . . . happening"
(Ibid.). Dr. Calderon was then able to intubate the
patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating
room, saw a respiratory machine being rushed
towards the door of the operating room. He also saw
several doctors rushing towards the operating room.
When informed by Herminda Cruz that something
wrong was happening, he told her (Herminda) to be
back with the patient inside the operating room
(TSN, October 19, 1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw
that the patient was still in trendelenburg position
(TSN, January 13, 1988, p. 20). At almost 3:00 P.M.
of that fateful day, she saw the patient taken to the
Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was
able to talk to Dr. Hosaka. The latter informed the
former that something went wrong during the
intubation. Reacting to what was told to him, Rogelio
reminded the doctor that the condition of his wife
would not have happened, had he (Dr. Hosaka)
looked for a good anesthesiologist (TSN, October
19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by
the hospital to explain what happened to the patient.
The doctors explained that the patient had
bronchospasm (TSN, November 15, 1990, pp. 26-
27).
Erlinda Ramos stayed at the ICU for a month. About
four months thereafter or on November 15, 1985,
the patient was released from the hospital.
During the whole period of her confinement, she
incurred hospital bills amounting to P93,542.25
which is the subject of a promissory note and
affidavit of undertaking executed by Rogelio E.
Ramos in favor of DLSMC. Since that fateful
afternoon of June 17, 1985, she has been in a
comatose condition. She cannot do anything. She
cannot move any part of her body. She cannot see
or hear. She is living on mechanical means. She
suffered brain damage as a result of the absence of
oxygen in her brain for four to five minutes (TSN,
November 9, 1989, pp. 21-22). After being
discharged from the hospital, she has been staying
in their residence, still needing constant medical
attention, with her husband Rogelio incurring a
monthly expense ranging from P8,000.00 to
P10,000.00 (TSN, October 19, 1989, pp. 32-34).
She was also diagnosed to be suffering from "diffuse
cerebral parenchymal damage" (Exh. "G"; see
also TSN, December 21, 1989,
p. 6). 5
Thus, on 8 January 1986, petitioners filed a civil case 6 for damages
with the Regional Trial Court of Quezon City against herein private
respondents alleging negligence in the management and care of
Erlinda Ramos.
During the trial, both parties presented evidence as to the possible
cause of Erlinda's injury. Plaintiff presented the testimonies of Dean
Herminda Cruz and Dr. Mariano Gavino to prove that the sustained
by Erlinda was due to lack of oxygen in her brain caused by the
faulty management of her airway by private respondents during the
anesthesia phase. On the other hand, private respondents primarily
relied on the expert testimony of Dr. Eduardo Jamora, a
pulmonologist, to the effect that the cause of brain damage was
Erlinda's allergic reaction to the anesthetic agent, Thiopental Sodium
(Pentothal).
After considering the evidence from both sides, the Regional Trial
Court rendered judgment in favor of petitioners, to wit:
After evaluating the evidence as shown in the finding
of facts set forth earlier, and applying the aforecited
provisions of law and jurisprudence to the case at
bar, this Court finds and so holds that defendants
are liable to plaintiffs for damages. The defendants
were guilty of, at the very least, negligence in the
performance of their duty to plaintiff-patient Erlinda
Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds
that she omitted to exercise reasonable care in not
only intubating the patient, but also in not repeating
the administration of atropine (TSN, August 20,
1991, pp. 5-10), without due regard to the fact that
the patient was inside the operating room for almost
three (3) hours. For after she committed a mistake in
intubating [the] patient, the patient's nailbed became
bluish and the patient, thereafter, was placed in
trendelenburg position, because of the decrease of
blood supply to the patient's brain. The evidence
further shows that the hapless patient suffered brain
damage because of the absence of oxygen in her
(patient's) brain for approximately four to five
minutes which, in turn, caused the patient to become
comatose.
On the part of Dr. Orlino Hosaka, this Court finds
that he is liable for the acts of Dr. Perfecta Gutierrez
whom he had chosen to administer anesthesia on
the patient as part of his obligation to provide the
patient a good anesthesiologist', and for arriving for
the scheduled operation almost three (3) hours late.
On the part of DLSMC (the hospital), this Court finds
that it is liable for the acts of negligence of the
doctors in their "practice of medicine" in the
operating room. Moreover, the hospital is liable for
failing through its responsible officials, to cancel the
scheduled operation after Dr. Hosaka inexcusably
failed to arrive on time.
In having held thus, this Court rejects the defense
raised by defendants that they have acted with due
care and prudence in rendering medical services to
plaintiff-patient. For if the patient was properly
intubated as claimed by them, the patient would not
have become comatose. And, the fact that another
anesthesiologist was called to try to intubate the
patient after her (the patient's) nailbed turned bluish,
belie their claim. Furthermore, the defendants
should have rescheduled the operation to a later
date. This, they should have done, if defendants
acted with due care and prudence as the patient's
case was an elective, not an emergency case.
xxx xxx xxx
WHEREFORE, and in view of the foregoing,
judgment is rendered in favor of the plaintiffs and
against the defendants. Accordingly, the latter are
ordered to pay, jointly and severally, the former the
following sums of money, to wit:
1) the sum of P8,000.00 as actual
monthly expenses for the plaintiff
 Erlinda Ramos reckoned from
November 15, 1985 or in the total
sum of P632,000.00 as of April 15,
1992, subject to its being updated;
2) the sum of P100,000.00 as
reasonable attorney's fees;
3) the sum of P800,000.00 by way
of moral damages and the further
sum of P200,000,00 by way of
exemplary damages; and,
4) the costs of the suit.
SO ORDERED. 7
Private respondents seasonably interposed an appeal to the Court of
Appeals. The appellate court rendered a Decision, dated 29 May
1995, reversing the findings of the trial court. The decretal portion of
the decision of the appellate court reads:
WHEREFORE, for the foregoing premises the
appealed decision is hereby REVERSED, and the
complaint below against the appellants is hereby
ordered DISMISSED. The counterclaim of appellant
De Los Santos Medical Center is GRANTED but
only insofar as appellees are hereby ordered to pay
the unpaid hospital bills amounting to P93,542.25,
plus legal interest for justice must be tempered with
mercy.
SO ORDERED. 8
The decision of the Court of Appeals was received on 9 June 1995
by petitioner Rogelio Ramos who was mistakenly addressed as
"Atty. Rogelio Ramos." No copy of the decision, however, was sent
nor received by the Coronel Law Office, then counsel on record of
petitioners. Rogelio referred the decision of the appellate court to a
new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days
before the expiration of the reglementary period for filing a motion for
reconsideration. On the same day, Atty. Ligsay, filed with the
appellate court a motion for extension of time to file a motion for
reconsideration. The motion for reconsideration was submitted on 4
July 1995. However, the appellate court denied the motion for
extension of time in its Resolution dated 25 July 1995. 9Meanwhile,
petitioners engaged the services of another counsel, Atty. Sillano, to
replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to
admit the motion for reconsideration contending that the period to file
the appropriate pleading on the assailed decision had not yet
commenced to run as the Division Clerk of Court of the Court of
Appeals had not yet served a copy thereof to the counsel on record.
Despite this explanation, the appellate court still denied the motion to
admit the motion for reconsideration of petitioners in its Resolution,
dated 29 March 1996, primarily on the ground that the fifteen-day
(15) period for filing a motion for reconsideration had already
expired, to wit:
We said in our Resolution on July 25, 1995, that the
filing of a Motion for Reconsideration cannot be
extended; precisely, the Motion for Extension (Rollo,
p. 12) was denied. It is, on the other hand, admitted
in the latter Motion that plaintiffs/appellees received
a copy of the decision as early as June 9, 1995.
Computation wise, the period to file a Motion for
Reconsideration expired on June 24. The Motion for
Reconsideration, in turn, was received by the Court
of Appeals already on July 4, necessarily, the 15-
day period already passed. For that alone, the latter
should be denied.
Even assuming admissibility of the Motion for the
Reconsideration, but after considering the
Comment/Opposition, the former, for lack of merit, is
hereby DENIED.
SO ORDERED. 10
A copy of the above resolution was received by Atty. Sillano on 11
April 1996. The next day, or on 12 April 1996, Atty. Sillano filed
before this Court a motion for extension of time to file the present
petition for certiorari under Rule 45. The Court granted the motion for
extension of time and gave petitioners additional thirty (30) days after
the expiration of the fifteen-day (15) period counted from the receipt
of the resolution of the Court of Appeals within which to submit the
petition. The due date fell on 27 May 1996. The petition was filed on
9 May 1996, well within the extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on the
following grounds:
I Thus, no copy of the decision of the counsel on record. Petitioner,
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
petitioners on the decision of the Court of Appeals was validly
dismissed by the appellate court for having been filed beyond the
reglementary period. We do not agree.
A careful review of the records reveals that the reason behind the
delay in filing the motion for reconsideration is attributable to the fact
that the decision of the Court of Appeals was not sent to then
counsel on record of petitioners, the Coronel Law Office. In fact, a
copy of the decision of the appellate court was instead sent to and
received by petitioner Rogelio Ramos on 9 June 1995 wherein he
was mistakenly addressed as Atty. Rogelio Ramos. Based on the
other communications received by petitioner Rogelio Ramos, the
appellate court apparently mistook him for the counsel on record.
not being a lawyer and unaware of the prescriptive period for filing a
motion for reconsideration, referred the same to a legal counsel only
on 20 June 1995.
It is elementary that when a party is represented by counsel, all
notices should be sent to the party's lawyer at his given address.
With a few exceptions, notice to a litigant without notice to his
counsel on record is no notice at all. In the present case, since a
copy of the decision of the appellate court was not sent to the
counsel on record of petitioner, there can be no sufficient notice to
speak of. Hence, the delay in the filing of the motion for
reconsideration cannot be taken against petitioner. Moreover, since
the Court of Appeals already issued a second Resolution, dated 29
March 1996, which superseded the earlier resolution issued on 25
July 1995, and denied the motion for reconsideration of petitioner,
we believed that the receipt of the former should be considered in
determining the timeliness of the filing of the present petition. Based
on this, the petition before us was submitted on time.

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
After resolving the foregoing procedural issue, we shall now look into
the merits of the case. For a more logical presentation of the
discussion we shall first consider the issue on the applicability of the
doctrine of res ipsa loquiturto the instant case. Thereafter, the first
two assigned errors shall be tackled in relation to the res ipsa
loquiturdoctrine.
Res ipsa loquitur is a Latin phrase which literally means "the thing or
the transaction speaks for itself." The phrase "res ipsa loquitur'' is a
maxim for the rule that the fact of the occurrence of an injury, taken
with the surrounding circumstances, may permit an inference or raise
a presumption of negligence, or make out a plaintiff's prima
facie case, and present a question of fact for defendant to meet with
an explanation. 13 Where the thing which caused the injury
complained of is shown to be under the management of the
defendant or his servants and the accident is such as in ordinary
course of things does not happen if those who have its management
or control use proper care, it affords reasonable evidence, in the
absence of explanation by the defendant, that the accident arose
from or was caused by the defendant's want of care. 14
The doctrine of res ipsa loquitur is simply a recognition of the
postulate that, as a matter of common knowledge and experience,
the very nature of certain types of occurrences may justify an
inference of negligence on the part of the person who controls the
instrumentality causing the injury in the absence of some explanation
by the defendant who is charged with negligence. 15 It is grounded in
the superior logic of ordinary human experience and on the basis of
such experience or common knowledge, negligence may be
deduced from the mere occurrence of the accident
itself. 16 Hence, res ipsa loquitur is applied in conjunction with the
doctrine of common knowledge.
However, much has been said that res ipsa loquitur is not a rule of
substantive law and, as such, does not create or constitute an
independent or separate ground of liability. 17 Instead, it is
considered as merely evidentiary or in the nature of a procedural
rule. 18 It is regarded as a mode of proof, or a mere procedural of
convenience since it furnishes a substitute for, and relieves a plaintiff
of, the burden of producing specific proof of negligence. 19 In other
words, mere invocation and application of the doctrine does not
dispense with the requirement of proof of negligence. It is simply a
step in the process of such proof, permitting the plaintiff to present
along with the proof of the accident, enough of the attending
circumstances to invoke the doctrine, creating an inference or
presumption of negligence, and to thereby place on the defendant
the burden of going forward with the proof. 20 Still, before resort to
the doctrine may be allowed, the following requisites must be
satisfactorily shown:
1. The accident is of a kind which
ordinarily does not occur in the
absence of someone's negligence;
2. It is caused by an instrumentality
within the exclusive control of the
defendant or defendants; and
3. The possibility of contributing
conduct which would make the
plaintiff responsible is eliminated. 21
In the above requisites, the fundamental element is the "control of
instrumentality" which caused the damage. 22Such element of control
must be shown to be within the dominion of the defendant. In order
to have the benefit of the rule, a plaintiff, in addition to proving injury
or damage, must show a situation where it is applicable, and must
establish that the essential elements of the doctrine were present in
a particular incident. 23
Medical malpractice 24 cases do not escape the application of this
doctrine. Thus, res ipsa loquitur has been applied when the
circumstances attendant upon the harm are themselves of such a
character as to justify an inference of negligence as the cause of that
harm. 25 The application of res ipsa loquitur in medical negligence
cases presents a question of law since it is a judicial function to
determine whether a certain set of circumstances does, as a matter
of law, permit a given inference. 26
Although generally, expert medical testimony is relied upon in
malpractice suits to prove that a physician has done a negligent act
or that he has deviated from the standard medical procedure, when
the doctrine of res ipsa loquitur is availed by the plaintiff, the need for
expert medical testimony is dispensed with because the injury itself
provides the proof of negligence. 27 The reason is that the general
rule on the necessity of expert testimony applies only to such matters
clearly within the domain of medical science, and not to matters that
are within the common knowledge of mankind which may be testified
to by anyone familiar with the facts. 28 Ordinarily, only physicians and
surgeons of skill and experience are competent to testify as to
whether a patient has been treated or operated upon with a
reasonable degree of skill and care. However, testimony as to the
statements and acts of physicians and surgeons, external
appearances, and manifest conditions which are observable by any
one may be given by non-expert witnesses. 29 Hence, in cases
where the res ipsa loquitur is applicable, the court is permitted to find
a physician negligent upon proper proof of injury to the patient,
without the aid of expert testimony, where the court from its fund of
common knowledge can determine the proper standard of
care. 30 Where common knowledge and experience teach that a
resulting injury would not have occurred to the patient if due care had
been exercised, an inference of negligence may be drawn giving rise
to an application of the doctrine of res ipsa loquitur without medical
evidence, which is ordinarily required to show not only what occurred
but how and why it occurred. 31 When the doctrine is appropriate, all
that the patient must do is prove a nexus between the particular act
or omission complained of and the injury sustained while under the
custody and management of the defendant without need to produce
expert medical testimony to establish the standard of care. Resort
to res ipsa loquitur is allowed because there is no other way, under
usual and ordinary conditions, by which the patient can obtain
redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the
following situations: leaving of a foreign object in the body of the
patient after an operation, 32 injuries sustained on a healthy part of
the body which was not under, or in the area, of
treatment, 33 removal of the wrong part of the body when another
part was intended, 34 knocking out a tooth while a patient's jaw was
under anesthetic for the removal of his tonsils, 35 and loss of an eye
while the patient plaintiff was under the influence of anesthetic,
during or following an operation for appendicitis, 36 among others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has
been measurably enlarged, it does not automatically apply to all
cases of medical negligence as to mechanically shift the burden of
proof to the defendant to show that he is not guilty of the ascribed
negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be
perfunctorily used but a rule to be cautiously applied, depending
upon the circumstances of each case. It is generally restricted to
situations in malpractice cases where a layman is able to say, as a
matter of common knowledge and observation, that the
consequences of professional care were not as such as would
ordinarily have followed if due care had 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. 40The real
question, therefore, is whether or not in the process of the operation
any extraordinary incident or unusual event outside of the routine
performance occurred which is beyond the regular scope of
customary professional activity in such operations, which, if
unexplained would themselves reasonably speak to the average
man as the negligent cause or causes of the untoward
consequence. 41 If there was such extraneous interventions, the
doctrine of res ipsa loquitur may be utilized and the defendant is
called upon to explain the matter, by evidence of exculpation, if he
could. 42
We find the doctrine of res ipsa loquitur appropriate in the case at
bar. As will hereinafter be explained, the damage sustained by
Erlinda in her brain prior to a scheduled gall bladder operation
presents a case for the application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss
vs. Bridwell, 43 where the Kansas Supreme Court in applying the res
ipsa loquitur stated:
 The plaintiff herein submitted himself for a mastoid
operation and delivered his person over to the care,
custody and control of his physician who had
complete and exclusive control over him, but the
operation was never performed. At the time of
submission he was neurologically sound and
physically fit in mind and body, but he suffered
irreparable damage and injury rendering him
decerebrate and totally incapacitated. The injury was
one which does not ordinarily occur in the process of
a mastoid operation or in the absence of negligence
in the administration of an anesthetic, and in the use
and employment of an endoctracheal tube.
Ordinarily a person being put under anesthesia is
not rendered decerebrate as a consequence of
administering such anesthesia in the absence of
negligence. Upon these facts and under these
circumstances a layman would be able to say, as a
matter of common knowledge and observation, that
the consequences of professional treatment were
not as such as would ordinarily have followed if due
care had been exercised.
Here the plaintiff could not have been guilty of
contributory negligence because he was under the
influence of anesthetics and unconscious, and the
circumstances are such that the true explanation of
event is more accessible to the defendants than to
the plaintiff for they had the exclusive control of the
instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances
alleged in Count II it is held that a cause of action is
stated under the doctrine of res ipsa loquitur. 44
Indeed, the principles enunciated in the aforequoted case apply with
equal force here. In the present case, Erlinda submitted herself for
cholecystectomy and expected a routine general surgery to be
performed on her gall bladder. On that fateful day she delivered her
person over to the care, custody and control of private respondents
who exercised complete and exclusive control over her. At the time
of submission, Erlinda was neurologically sound and, except for a
few minor discomforts, was likewise physically fit in mind and body.
However, during the administration of anesthesia and prior to the
performance of cholecystectomy she suffered irreparable damage to
her brain. Thus, without undergoing surgery, she went out of the
operating room already decerebrate and totally incapacitated.
Obviously, brain damage, which Erlinda sustained, is an injury which
does not normally occur in the process of a gall bladder operation. In
fact, this kind of situation does not in the absence of negligence of
someone in the administration of anesthesia and in the use of
endotracheal tube. Normally, a person being put under anesthesia is
not rendered decerebrate as a consequence of administering such
anesthesia if the proper procedure was followed. Furthermore, the
instruments used in the administration of anesthesia, including the
endotracheal tube, were all under the exclusive control of private
respondents, who are the physicians-in-charge. Likewise, petitioner
Erlinda could not have been guilty of contributory negligence
because she was under the influence of anesthetics which rendered
her unconscious.
Considering that a sound and unaffected member of the body (the
brain) is injured or destroyed while the patient is unconscious and
under the immediate and exclusive control of the physicians, we hold
that a practical administration of justice dictates the 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 In the instant case, the records are helpful in furnishing not only the
ipsa loquitur coverage. logical scientific evidence of the pathogenesis of the injury but also in
providing the Court the legal nexus upon which liability is based. As
Having in mind the applicability of the res ipsa loquitur doctrine and will be shown hereinafter, private respondents' own testimonies
the presumption of negligence allowed therein, the Court now comes which are reflected in the transcript of stenographic notes are replete
to the issue of whether the Court of Appeals erred in finding that of signposts indicative of their negligence in the care and
private respondents were not negligent in the care of Erlinda during management of Erlinda.
the anesthesia phase of the operation and, if in the affirmative,
whether the alleged negligence was the proximate cause of Erlinda's With regard to Dra. Gutierrez, we find her negligent in the care of
comatose condition. Corollary thereto, we shall also determine if the Erlinda during the anesthesia phase. As borne by the records,
Court of Appeals erred in relying on the testimonies of the witnesses respondent Dra. Gutierrez failed to properly intubate the patient. This
for the private respondents. fact was attested to by Prof. Herminda Cruz, Dean of the Capitol
Medical Center School of Nursing and petitioner's sister-in-law, who
In sustaining the position of private respondents, the Court of was in the operating room right beside the patient when the tragic
Appeals relied on the testimonies of Dra. Gutierrez, Dra. Calderon event occurred. Witness Cruz testified to this effect:
and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez,
the Court of Appeals rationalized that she was candid enough to ATTY. PAJARES:
admit that she experienced some difficulty in the endotracheal
intubation 45 of the patient and thus, cannot be said to be covering Q: In particular, what did Dra.
her negligence with falsehood. The appellate court likewise opined Perfecta Gutierrez do, if any on the
that private respondents were able to show that the brain damage patient?
sustained by Erlinda was not caused by the alleged faulty intubation
but was due to the allergic reaction of the patient to the drug
A: In particular, I could see that she
Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified was intubating the patient.
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 Q: Do you know what happened to
traceable to the wrongful insertion of the tube since the latter, being that intubation process administered
a nurse, was allegedly not knowledgeable in the process of by Dra. Gutierrez?
intubation. In so holding, the appellate court returned a verdict in
favor of respondents physicians and hospital and absolved them of ATTY. ALCERA:
any liability towards Erlinda and her family.
She will be incompetent Your
We disagree with the findings of the Court of Appeals. We hold that Honor.
private respondents were unable to disprove the presumption of
negligence on their part in the care of Erlinda and their negligence COURT:
was the proximate cause of her piteous condition.
Witness may answer if she knows.
 A: As have said, I was with the A: He made an order to call on the
patient, I was beside the stretcher anesthesiologist in the person of Dr.
holding the left hand of the patient Calderon.
and all of a sudden heard some
remarks coming from Dra. Perfecta Q: Did Dr. Calderon, upon being
Gutierrez herself. She was saying called, arrive inside the operating
"Ang hirap ma-intubate nito, mali room?
yata ang pagkakapasok. O lumalaki
ang tiyan. A: Yes sir.

xxx xxx xxx

Q: What did [s]he do, if any?

ATTY. PAJARES: A: [S]he tried to intubate the patient.

Q: From whom did you hear those

Q: What happened to the patient?
words "lumalaki ang tiyan"?
A: When Dr. Calderon try (sic) to
A: From Dra. Perfecta Gutierrez.
intubate the patient, after a while the
patient's nailbed became bluish and
xxx xxx xxx I saw the patient was placed in
trendelenburg position.
Q: After hearing the phrase
"lumalaki ang tiyan," what did you xxx xxx xxx
notice on the person of the patient?
Q: Do you know the reason why the
A: I notice (sic) some bluish patient was placed in that
discoloration on the nailbeds of the trendelenburg position?
left hand where I was at.
A: As far as I know, when a patient
Q: Where was Dr. Orlino Ho[s]aka is in that position, there is a
then at that particular time? decrease of blood supply to the
brain. 46
A: I saw him approaching the patient
during that time. xxx xxx xxx

Q: When he approached the patient, The appellate court, however, disbelieved Dean Cruz's testimony in
what did he do, if any? the trial court by declaring that:
 A perusal of the standard nursing curriculum in our
country will show that intubation is not taught as part
of nursing procedures and techniques. Indeed, we
take judicial notice of the fact that nurses do not, and
cannot, intubate. Even on the assumption that she is
fully capable of determining whether or not a patient
is properly intubated, witness Herminda Cruz,
admittedly, did not peep into the throat of the patient.
(TSN, July 25, 1991, p. 13). More importantly, there
is no evidence that she ever auscultated the patient
or that she conducted any type of examination to
check if the endotracheal tube was in its proper
place, and to determine the condition of the heart,
lungs, and other organs. Thus, witness Cruz's
categorical statements that appellant Dra. Gutierrez
failed to intubate the appellee Erlinda Ramos and
that it was Dra. Calderon who succeeded in doing so
clearly suffer from lack of sufficient factual bases. 47
In other words, what the Court of Appeals is trying to impress is that
being a nurse, and considered a layman in the process of intubation,
witness Cruz is not competent to testify on whether or not the
intubation was a success.
We do not agree with the above reasoning of the appellate court.
Although witness Cruz is not an anesthesiologist, she can very well
testify upon matters on which she is capable of observing such as,
the statements and acts of the physician and surgeon, external
appearances, and manifest conditions which are observable by any
one. 48 This is precisely allowed under the doctrine of res ipsa
loquitur where the testimony of expert witnesses is not required. It is
the accepted rule that expert testimony is not necessary for the proof
of negligence in non-technical matters or those of which an ordinary
person may be expected to have knowledge, or where the lack of
skill or want of care is so obvious as to render expert testimony
unnecessary. 49 We take judicial notice of the fact that anesthesia
procedures have become so common, that even an ordinary person
can tell if it was administered properly. As such, it would not be too
difficult to tell if the tube was properly inserted. This kind of
observation, we believe, does not require a medical degree to be
acceptable.
At any rate, without doubt, petitioner's witness, an experienced
clinical nurse whose long experience and scholarship led to her
appointment as Dean of the Capitol Medical Center School at
Nursing, was fully capable of determining whether or not the
intubation was a success. She had extensive clinical experience
starting as a staff nurse in Chicago, Illinois; staff nurse and clinical
instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna
College of Nursing in San Pablo City; and then Dean of the Capitol
Medical Center School of Nursing. 50Reviewing witness Cruz'
statements, we find that the same were delivered in a straightforward
manner, with the kind of detail, clarity, consistency and spontaneity
which would have been difficult to fabricate. With her clinical
background as a nurse, the Court is satisfied that she was able to
demonstrate through her testimony what truly transpired on that
fateful day.
Most of all, her testimony was affirmed by no less than respondent
Dra. Gutierrez who admitted that she experienced difficulty in
inserting the tube into Erlinda's trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora,
while you were intubating at your
first attempt (sic), you did not
immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube
immediately?
A: You do not pull the . . .
 Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said "mahirap yata
ito," what were you referring to?
A: "Mahirap yata itong i-intubate,"
that was the patient.
Q: So, you found some difficulty in
inserting the tube?
A: Yes, because of (sic) my first
attempt, I did not see right away. 51
Curiously in the case at bar, respondent Dra. Gutierrez made the
haphazard defense that she encountered hardship in the insertion of
the tube in the trachea of Erlinda because it was positioned more
anteriorly (slightly deviated from the normal anatomy of a
person) 52 making it harder to locate and, since Erlinda is obese and
has a short neck and protruding teeth, it made intubation even more
difficult.
The argument does not convince us. If this was indeed observed,
private respondents adduced no evidence demonstrating that they
proceeded to make a thorough assessment of Erlinda's airway, prior
to the induction of anesthesia, even if this would mean postponing
the procedure. From their testimonies, it appears that the
observation was made only as an afterthought, as a means of
defense.
The pre-operative evaluation of a patient prior to the administration
of anesthesia is universally observed to lessen the possibility of
anesthetic accidents. Pre-operative evaluation and preparation for
anesthesia begins when the anesthesiologist reviews the patient's
medical records and visits with the patient, traditionally, the day
before elective surgery. 53 It includes taking the patient's medical
history, review of current drug therapy, physical examination and
interpretation of laboratory data. 54 The physical examination
performed by the anesthesiologist is directed primarily toward the
central nervous system, cardiovascular system, lungs and upper
airway. 55 A thorough analysis of the patient's airway normally
involves investigating the following: cervical spine mobility,
temporomandibular mobility, prominent central incisors, diseased or
artificial teeth, ability to visualize uvula and the thyromental
distance. 56Thus, physical characteristics of the patient's upper
airway that could make tracheal intubation difficult should be
studied. 57 Where the need arises, as when initial assessment
indicates possible problems (such as the alleged short neck and
protruding teeth of Erlinda) a thorough examination of the patient's
airway would go a long way towards decreasing patient morbidity
and mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she saw
Erlinda for the first time on the day of the operation itself, on 17 June
1985. Before this date, no prior consultations with, or pre-operative
evaluation of Erlinda was done by her. Until the day of the operation,
respondent Dra. Gutierrez was unaware of the physiological make-
up and needs of Erlinda. She was likewise not properly informed of
the possible difficulties she would face during the administration of
anesthesia to Erlinda. Respondent Dra. Gutierrez' act of seeing her
patient for the first time only an hour before the scheduled operative
procedure was, therefore, an act of exceptional negligence and
professional irresponsibility. The measures cautioning prudence and
vigilance in dealing with human lives lie at the core of the physician's
centuries-old Hippocratic Oath. Her failure to follow this medical
procedure is, therefore, a clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this
omission by playing around with the trial court's ignorance of clinical
procedure, hoping that she could get away with it. Respondent Dra.
Gutierrez tried to muddle the difference between an elective surgery
and an emergency surgery just so her failure to perform the required
pre-operative evaluation would escape unnoticed. In her testimony
she asserted:
ATTY. LIGSAY:
 Q: Would you agree, Doctor, that it
is good medical practice to see the
patient a day before so you can
introduce yourself to establish good
doctor-patient relationship and gain
the trust and confidence of the
patient?
DRA. GUTIERREZ:
A: As I said in my previous
statement, it depends on the
operative procedure of the
anesthesiologist and in my case,
with elective cases and normal
cardio-pulmonary clearance like
that, I usually don't do it except on
emergency and on cases that have
an abnormalities (sic). 58
However, the exact opposite is true. In an emergency procedure,
there is hardly enough time available for the fastidious demands of
pre-operative procedure so that an anesthesiologist is able to see
the patient only a few minutes before surgery, if at all. Elective
procedures, on the other hand, are operative procedures that can
wait for days, weeks or even months. Hence, in these cases, the
anesthesiologist possesses the luxury of time to be at the patient's
beside to do a proper interview and clinical evaluation. There is
ample time to explain the method of anesthesia, the drugs to be
used, and their possible hazards for purposes of informed consent.
Usually, the pre-operative assessment is conducted at least one day
before the intended surgery, when the patient is relaxed and
cooperative.
Erlinda's case was elective and this was known to respondent Dra.
Gutierrez. Thus, she had all the time to make a thorough evaluation
of Erlinda's case prior to the operation and prepare her for
anesthesia. However, she never saw the patient at the bedside. She
herself admitted that she had seen petitioner only in the operating
room, and only on the actual date of the cholecystectomy. She
negligently failed to take advantage of this important opportunity. As
such, her attempt to exculpate herself must fail.
Having established that respondent Dra. Gutierrez failed to perform
pre-operative evaluation of the patient which, in turn, resulted to a
wrongful intubation, we now determine if the faulty intubation is truly
the proximate cause of Erlinda's comatose condition.
Private respondents repeatedly hammered the view that the cerebral
anoxia which led to Erlinda's coma was due to
bronchospasm 59 mediated by her allergic response to the drug,
Thiopental Sodium, introduced into her system. Towards this end,
they presented Dr. Jamora, a Fellow of the Philippine College of
Physicians and Diplomate of the Philippine Specialty Board of
Internal Medicine, who advanced private respondents' theory that the
oxygen deprivation which led to anoxic encephalopathy, 60 was due
to an unpredictable drug reaction to the short-acting barbiturate. We
find the theory of private respondents unacceptable.
First of all, Dr. Jamora cannot be considered an authority in the field
of anesthesiology simply because he is not an anesthesiologist.
Since Dr. Jamora is a pulmonologist, he could not have been
capable of properly enlightening the court about anesthesia practice
and procedure and their complications. Dr. Jamora is likewise not an
allergologist and could not therefore properly advance expert opinion
on allergic-mediated processes. Moreover, he is not a
pharmacologist and, as such, could not have been capable, as an
expert would, of explaining to the court the pharmacologic and toxic
effects of the supposed culprit, Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamora's
testimony as an expert witness in the anesthetic practice of
Pentothal administration is further supported by his own admission
that he formulated his opinions on the drug not from the practical
experience gained by a specialist or expert in the administration and
use of Sodium Pentothal on patients, but only from reading certain
references, to wit:
ATTY. LIGSAY: you can testify on pentothal here
with medical authority?
Q: In your line of expertise on
pulmonology, did you have any A: No. That is why I used references
occasion to use pentothal as a to support my claims. 61
method of management?
An anesthetic accident caused by a rare drug-induced
DR. JAMORA: bronchospasm properly falls within the fields of anesthesia, internal
medicine-allergy, and clinical pharmacology. The resulting anoxic
A: We do it in conjunction with the encephalopathy belongs to the field of neurology. While admittedly,
anesthesiologist when they have to many bronchospastic-mediated pulmonary diseases are within the
intubate our patient. 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
Q: But not in particular when you
pharmacology. On the basis of the foregoing transcript, in which the
practice pulmonology?
pulmonologist himself admitted that he could not testify about the
drug with medical authority, it is clear that the appellate court erred in
A: No. giving weight to Dr. Jamora's testimony as an expert in the
administration of Thiopental Sodium.
Q: In other words, your knowledge
about pentothal is based only on The provision in the rules of evidence 62 regarding expert witnesses
what you have read from books and states:
not by your own personal
application of the medicine
Sec. 49. Opinion of expert witness. — The opinion of
pentothal?
a witness on a matter requiring special knowledge,
skill, experience or training which he is shown to
A: Based on my personal possess, may be received in evidence.
experience also on pentothal.
Generally, to qualify as an expert witness, one must have acquired
Q: How many times have you used special knowledge of the subject matter about which he or she is to
pentothal? testify, either by the study of recognized authorities on the subject or
by practical experience. 63Clearly, Dr. Jamora does not qualify as an
A: They used it on me. I went into expert witness based on the above standard since he lacks the
bronchospasm during my necessary knowledge, skill, and training in the field of
appendectomy. anesthesiology. Oddly, apart from submitting testimony from a
specialist in the wrong field, private respondents' intentionally
Q: And because they have used it avoided providing testimony by competent and independent experts
on you and on account of your own in the proper areas.
personal experience you feel that
Moreover, private respondents' theory, that Thiopental Sodium may
have produced Erlinda's coma by triggering an allergic mediated
response, has no support in evidence. No evidence of stridor, skin
reactions, or wheezing — some of the more common accompanying
signs of an allergic reaction — appears on record. No laboratory data
were ever presented to the court.
In any case, private respondents themselves admit that Thiopental
induced, allergic-mediated bronchospasm happens only very rarely.
If courts were to accept private respondents' hypothesis without
supporting medical proof, and against the weight of available
evidence, then every anesthetic accident would be an act of God.
Evidently, the Thiopental-allergy theory vigorously asserted by
private respondents was a mere afterthought. Such an explanation
was advanced in order to advanced in order to absolve them of any
and all responsibility for the patient's condition.
In view of the evidence at hand, we are inclined to believe
petitioners' stand that it was the faulty intubation which was the
proximate cause of Erlinda's comatose condition.
Proximate cause has been defined as that which, in natural and
continuous sequence, unbroken by any efficient intervening cause,
produces injury, and without which the result would not have
occurred. 64 An injury or damage is proximately caused by an act or
a failure to act, whenever it appears from the evidence in the case,
that the act or omission played a substantial part in bringing about or
actually causing the injury or damage; and that the injury or damage
was either a direct result or a reasonably probable consequence of
the act or omission. 65 It is the dominant, moving or producing cause.
Applying the above definition in relation to the evidence at hand,
faulty intubation is undeniably the proximate cause which triggered
the chain of events leading to Erlinda's brain damage and, ultimately,
her comatosed condition.
Private respondents themselves admitted in their testimony that the
first intubation was a failure. This fact was likewise observed by
witness Cruz when she heard respondent Dra. Gutierrez remarked,
"Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki
ang tiyan." Thereafter, witness Cruz noticed abdominal distention on
the body of Erlinda. The development of abdominal distention,
together with respiratory embarrassment indicates that the
endotracheal tube entered the esophagus instead of the respiratory
tree. In other words, instead of the intended endotracheal intubation
what actually took place was an esophageal intubation. During
intubation, such distention indicates that air has entered the
gastrointestinal tract through the esophagus instead of the lungs
through the trachea. Entry into the esophagus would certainly cause
some delay in oxygen delivery into the lungs as the tube which
carries oxygen is in the wrong place. That abdominal distention had
been observed during the first intubation suggests that the length of
time utilized in inserting the endotracheal tube (up to the time the
tube was withdrawn for the second attempt) was fairly significant.
Due to the delay in the delivery of oxygen in her lungs Erlinda
showed signs of cyanosis. 66 As stated in the testimony of Dr.
Hosaka, the lack of oxygen became apparent only after he noticed
that the nailbeds of Erlinda were already blue. 67 However, private
respondents contend that a second intubation was executed on
Erlinda and this one was successfully done. We do not think so. No
evidence exists on record, beyond private respondents' bare claims,
which supports the contention that the second intubation was
successful. Assuming that the endotracheal tube finally found its way
into the proper orifice of the trachea, the same gave no guarantee of
oxygen delivery, the hallmark of a successful intubation. In fact,
cyanosis was again observed immediately after the second
intubation. Proceeding from this event (cyanosis), it could not be
claimed, as private respondents insist, that the second intubation
was accomplished. Even granting that the tube was successfully
inserted during the second attempt, it was obviously too late. As
aptly explained by the trial court, Erlinda already suffered brain
damage as a result of the inadequate oxygenation of her brain for
about four to five minutes. 68
The above conclusion is not without basis. Scientific studies point out
that intubation problems are responsible for one-third (1/3) of deaths
and serious injuries associated with anesthesia. 69 Nevertheless,
ninety-eight percent (98%) or the vast majority of difficult intubations
may be anticipated by performing a thorough evaluation of the
patient's airway prior to the operation. 70 As stated beforehand,
respondent Dra. Gutierrez failed to observe the proper pre-operative
protocol which could have prevented this unfortunate incident. Had
appropriate diligence and reasonable care been used in the pre-
operative evaluation, respondent physician could have been much
more prepared to meet the contingency brought about by the
perceived anatomic variations in the patient's neck and oral area,
defects which would have been easily overcome by a prior
knowledge of those variations together with a change in
technique. 71 In other words, an experienced anesthesiologist,
adequately alerted by a thorough pre-operative evaluation, would
have had little difficulty going around the short neck and protruding
teeth. 72 Having failed to observe common medical standards in pre-
operative management and intubation, respondent Dra. Gutierrez'
negligence resulted in cerebral anoxia and eventual coma of Erlinda.
We now determine the responsibility of respondent Dr. Orlino
Hosaka as the head of the surgical team. As the so-called "captain of
the ship," 73 it is the surgeon's responsibility to see to it that those
under him perform their task in the proper manner. Respondent Dr.
Hosaka's negligence can be found in his failure to exercise the
proper authority (as the "captain" of the operative team) in not
determining if his anesthesiologist observed proper anesthesia
protocols. In fact, no evidence on record exists to show that
respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly
intubated the patient. Furthermore, it does not escape us that
respondent Dr. Hosaka had scheduled another procedure in a
different hospital at the same time as Erlinda's cholecystectomy, and
was in fact over three hours late for the latter's operation. Because of
this, he had little or no time to confer with his anesthesiologist
regarding the anesthesia delivery. This indicates that he was remiss
in his professional duties towards his patient. Thus, he shares equal
responsibility for the events which resulted in Erlinda's condition.
We now discuss the responsibility of the hospital in this particular
incident. The unique practice (among private hospitals) of filling up
specialist staff with attending and visiting "consultants," 74 who are
allegedly not hospital employees, presents problems in apportioning
responsibility for negligence in medical malpractice cases. However,
the difficulty is only more apparent than real.
In the first place, hospitals exercise significant control in the hiring
and firing of consultants and in the conduct of their work within the
hospital premises. Doctors who apply for "consultant" slots, visiting
or attending, are required to submit proof of completion of residency,
their educational qualifications; generally, evidence of accreditation
by the appropriate board (diplomate), evidence of fellowship in most
cases, and references. These requirements are carefully scrutinized
by members of the hospital administration or by a review committee
set up by the hospital who either accept or reject the
application. 75 This is particularly true with respondent hospital.
After a physician is accepted, either as a visiting or attending
consultant, he is normally required to attend clinico-pathological
conferences, conduct bedside rounds for clerks, interns and
residents, moderate grand rounds and patient audits and perform
other tasks and responsibilities, for the privilege of being able to
maintain a clinic in the hospital, and/or for the privilege of admitting
patients into the hospital. In addition to these, the physician's
performance as a specialist is generally evaluated by a peer review
committee on the basis of mortality and morbidity statistics, and
feedback from patients, nurses, interns and residents. A consultant
remiss in his duties, or a consultant who regularly falls short of the
minimum standards acceptable to the hospital or its peer review
committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control
over their attending and visiting "consultant" staff. While
"consultants" are not, technically employees, a point which
respondent hospital asserts in denying all responsibility for the
patient's condition, the control exercised, the hiring, and the right to
terminate consultants all fulfill the important hallmarks of an
employer-employee relationship, with the exception of the payment
of wages. In assessing whether such a relationship in fact exists, the
control test is determining. Accordingly, on the basis of the foregoing,
we rule that for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect exists
between hospitals and their attending and visiting physicians. This
being the case, the question now arises as to whether or not
respondent hospital is solidarily liable with respondent doctors for
petitioner's condition. 76
The basis for holding an employer solidarily responsible for the
negligence of its employee is found in Article 2180 of the Civil Code
which considers a person accountable not only for his own acts but
also for those of others based on the former's responsibility under a
relationship of patria potestas. 77 Such responsibility ceases when
the persons or entity concerned prove that they have observed the
diligence of a good father of the family to prevent damage. 78 In other
words, while the burden of proving negligence rests on the plaintiffs,
once negligence is shown, the burden shifts to the respondents
(parent, guardian, teacher or employer) who should prove that they
observed the diligence of a good father of a family to prevent
damage.
In the instant case, respondent hospital, apart from a general denial
of its responsibility over respondent physicians, failed to adduce
evidence showing that it exercised the diligence of a good father of a
family in the hiring and supervision of the latter. It failed to adduce
evidence with regard to the degree of supervision which it exercised
over its physicians. In neglecting to offer such proof, or proof of a
similar nature, respondent hospital thereby failed to discharge its
burden under the last paragraph of Article 2180. Having failed to do
this, respondent hospital is consequently solidarily responsible with
its physicians for Erlinda's condition.
Based on the foregoing, we hold that the Court of Appeals erred in
accepting and relying on the testimonies of the witnesses for the
private respondents. Indeed, as shown by the above discussions,
private respondents were unable to rebut the presumption of
negligence. Upon these disquisitions we hold that private
respondents are solidarily liable for damages under Article 2176 79 of
the Civil Code.
We now come to the amount of damages due petitioners. The trial
court awarded a total of P632,000.00 pesos (should be P616,000.00)
in compensatory damages to the plaintiff, "subject to its being
updated" covering the period from 15 November 1985 up to 15 April
1992, based on monthly expenses for the care of the patient
estimated at P8,000.00.
At current levels, the P8000/monthly amount established by the trial
court at the time of its decision would be grossly inadequate to cover
the actual costs of home-based care for a comatose individual. The
calculated amount was not even arrived at by looking at the actual
cost of proper hospice care for the patient. What it reflected were the
actual expenses incurred and proved by the petitioners after they
were forced to bring home the patient to avoid mounting hospital
bills.
And yet ideally, a comatose patient should remain in a hospital or be
transferred to a hospice specializing in the care of the chronically ill
for the purpose of providing a proper milieu adequate to meet
minimum standards of care. In the instant case for instance, Erlinda
has to be constantly turned from side to side to prevent bedsores
and hypostatic pneumonia. Feeding is done by nasogastric tube.
Food preparation should be normally made by a dietitian to provide
her with the correct daily caloric requirements and vitamin
supplements. Furthermore, she has to be seen on a regular basis by
a physical therapist to avoid muscle atrophy, and by a pulmonary
therapist to prevent the accumulation of secretions which can lead to
respiratory complications.
Given these considerations, the amount of actual damages
recoverable in suits arising from negligence should at least reflect
the correct minimum cost of proper care, not the cost of the care the
family is usually compelled to undertake at home to avoid
bankruptcy. However, the provisions of the Civil Code on actual or
compensatory damages present us with some difficulties.
Well-settled is the rule that actual damages which may be claimed by
the plaintiff are those suffered by him as he has duly proved. The
Civil Code provides:
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 the compensatory damages previously awarded —
temperate damages are appropriate. The amount given as
temperate damages, though to a certain extent speculative, should
take into account the cost of proper care.
In the instant case, petitioners were able to provide only home-based
nursing care for a comatose patient who has remained in that
condition for over a decade. Having premised our award for
compensatory damages on the amount provided by petitioners at the
onset of litigation, it would be now much more in step with the
interests of justice if the value awarded for temperate damages
would allow petitioners to provide optimal care for their loved one in
a facility which generally specializes in such care. They should not
be compelled by dire circumstances to provide substandard care at
home without the aid of professionals, for anything less would be
grossly inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be
reasonable. 81
In Valenzuela vs. Court of Appeals, 82 this Court was confronted with
a situation where the injury suffered by the plaintiff would have led to
expenses which were difficult to estimate because while they would
have been a direct result of the injury (amputation), and were certain
to be incurred by the plaintiff, they were likely to arise only in the
future. We awarded P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes Valenzuela
underwent a traumatic amputation of her left lower
extremity at the distal left thigh just above the knee.
Because of this, Valenzuela will forever be deprived
of the full ambulatory functions of her left extremity,
even with the use of state of the art prosthetic
technology. Well beyond the period of hospitalization
(which was paid for by Li), she will be required to
undergo adjustments in her prosthetic devise due to
the shrinkage of the stump from the process of
healing.
These adjustments entail costs, prosthetic
replacements and months of physical and
occupational rehabilitation and therapy. During the
lifetime, the prosthetic devise will have to be
replaced and readjusted to changes in the size of
her lower limb effected by the biological changes of
middle-age, menopause and aging. Assuming she
reaches menopause, for example, the prosthetic will
have to be adjusted to respond to the changes in
bone resulting from a precipitate decrease in
calcium levels observed in the bones of all post-
menopausal women. In other words, the damage
done to her would not only be permanent and
lasting, it would also be permanently changing and
adjusting to the physiologic changes which her body
 would normally undergo through the years. The
replacements, changes, and adjustments will require
corresponding adjustive physical and occupational
therapy. All of these adjustments, it has been
documented, are painful.
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. 84 The husband and the children, all petitioners in this
case, will have to live with the day to day uncertainty of the patient's
illness, knowing any hope of recovery is close to nil. They have
fashioned their daily lives around the nursing care of petitioner,
altering their long term goals to take into account their life with a
comatose patient. They, not the respondents, are charged with the
moral responsibility of the care of the victim. The family's moral injury
and suffering in this case is clearly a real one. For the foregoing
reasons, an award of P2,000,000.00 in moral damages would be
appropriate.
Finally, by way of example, exemplary damages in the amount of
P100,000.00 are hereby awarded. Considering the length and nature
of the instant suit we are of the opinion that attorney's fees valued at
P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating medical negligence
cases because physicians are not insurers of life and, they rarely set
out to intentionally cause injury or death to their patients. However,
intent is immaterial in negligence cases because where negligence
exists and is proven, the same automatically gives the injured a right
to reparation for the damage caused.
Established medical procedures and practices, though in constant
flux are devised for the purpose of preventing complications. A
physician's experience with his patients would sometimes tempt him
to deviate from established community practices, and he may end a
distinguished career using unorthodox methods without incident.
However, when failure to follow established procedure results in the
evil precisely sought to be averted by observance of the procedure
and a nexus is made between the deviation and the injury or
damage, the physician would necessarily be called to account for it.
In the case at bar, the failure to observe pre-operative assessment
protocol which would have influenced the intubation in a salutary way
was fatal to private respondents' case.
WHEREFORE, the decision and resolution of the appellate court
appealed from are hereby modified so as to award in favor of
petitioners, and solidarily against private respondents the following:
1) P1,352,000.00 as actual damages computed as of the date of
promulgation of this decision plus a monthly payment of P8,000.00
up to the time that petitioner Erlinda Ramos expires or miraculously
survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each as exemplary damages
and attorney's fees; and, 5) the costs of the suit.

SO ORDERED.