PRACTICE OF MEDICINE

G.R. No. 144681 June 21, 2004

PROFESSIONAL REGULATION COMMISSION (PRC), CHAIRMAN HERMOGENES P. POBRE, ASSOCIATE COMMISSIONER ARMANDO PASCUAL, BOARD OF MEDICINE, CHAIRMAN RODOLFO P. DE GUZMAN, JOSE S. RAMIREZ, JUANITO B. BILLOTE, RUBEN R. POLICARPIO, EDGARDO T. FERNANDO and RICARDO D. FULGENCIO II, petitioners, vs.ARLENE V. DE GUZMAN, VIOLETA V. MENESES, CELERINA S. NAVARRO, JOSE RAMONCITO P. NAVARRO, ARNEL V. HERRERA and GERALDINE ELIZABETH M. PAGILAGAN, ELNORA R. RAQUENO, MARISSA A. REGODON, LAURA M. SANTOS, KARANGALAN D. SERRANO, DANILO A. VILLAVER, MARIA ROSARIO L. LEONOR, ALICIA S. LIZANO, MARITEL M. ECHIVERRI, BERNADETTE T. MENDOZA, FERNANDO F. MANDAPAT, ALELI A. GOLLAYAN, ELCIN C. ARRIOLA, HERMINIGILDA E. CONEJOS,SALLY B. BUNAGAN, ROGELIO B. ANCHETA, OSCAR H. PADUA, JR., EVELYN D. GRAJO, EVELYN S. ACOSTA, MARGARITA BELINDA L. VICENCIO, VALENTINO P. ARBOLEDA, EVELYN O. RAMOS, ACHILLES J. PERALTA, CORAZON M. CRUZ, LEUVINA P. CHICO, JOSEPH A. JAO, MA. LUISA S. GUTIERREZ, LYDIA C. CHAN, OPHELIA C. HIDALGO, FERNANDO T. CRUZ, MELVIN M. USITA, RAFAEL I. TOLENTINO, GRACE E. UY, CHERYL R. TRIGUERO, MICHAEL L. SERRANO, FEDERICO L. CASTILLO, MELITA J. CAÑEDO, SAMUEL B. BANGOY, BERNARDITA B. SY, GLORIA T. JULARBAL, FREDERICK D. FRANCISCO, CARLOS M. BERNARDO, JR., HUBERT S. NAZARENO, CLARISSA B. BACLIG, DAYMINDA G. BONTUYAN, BERNADETTE H. CABUHAT, NANCY J. CHAVEZ, MARIO D. CUARESMA, ERNESTO L. CUE, EVELYN C. CUNDANGAN, RHONEIL R. DEVERATURDA, DERILEEN D. DORADO, SAIBZUR N. EDDING, VIOLETA C. FELIPE, HERMINIO V. FERNANDEZ, JR., MARIA VICTORIA M. LACSAMANA, NORMA G. LAFAVILLA, RUBY B. LANTIN, MA. ELOISA Q. MALLARI, CLARISA SJ. NICOLAS, PERCIVAL H. PANGILINAN, ARNULFO A. SALVADOR, ROBERT B. SANCHEZ, MERLY D. STA. ANA and YOLANDA P. UNICA, respondents.

D E C I S I O N

TINGA, J.:

This petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeks to nullify the D E C I S I O N,1dated May 16, 2000, of the Court of Appeals in CA-G.R. SP No. 37283. The appellate court affirmed the judgment2 dated December 19, 1994, of the Regional Trial Court (RTC) of Manila, Branch 52, in Civil Case No. 93-66530. The trial court allowed the respondents to take their physician’s oath and to register as duly licensed physicians. Equally challenged is the R E S O L U T I O N3 promulgated on August 25, 2000 of the Court of Appeals, denying petitioners’ Motion for Reconsideration.

The facts of this case are as follows:

The respondents are all graduates of the Fatima College of Medicine, Valenzuela City, Metro Manila. They passed the Physician Licensure Examination conducted in February 1993 by the Board of Medicine (Board). Petitioner Professional Regulation Commission (PRC) then released their names as successful examinees in the medical licensure examination.

Shortly thereafter, the Board observed that the grades of the seventy-nine successfulexaminees from Fatima College in the two most difficult subjects in the medical licensure exam, Biochemistry (Bio-Chem) and Obstetrics and Gynecology (OB-Gyne), were unusually and exceptionally high. Eleven Fatima examinees scored 100% in Bio-Chem and ten got 100% in OB-Gyne, another eleven got 99% in Bio-Chem, and twenty-one scored 99% in OB-Gyne. The Board also observed that many

of those who passed from Fatima got marks of 95% or better in both subjects, and noone got a mark lower than 90%. A comparison of the performances of the candidatesfrom other schools was made. The Board observed that strangely, the unusually highratings were true only for Fatima College examinees. It was a record-breaking phenomenon in the history of the Physician Licensure Examination.

On June 7, 1993, the Board issued Resolution No. 19, withholding the registration as physicians of all the examinees from the Fatima College of Medicine.4 The PRC asked the National Bureau of Investigation (NBI) to investigate whether any anomaly or irregularity marred the February 1993 Physician Licensure Examination.

Prior to the NBI investigation, the Board requested Fr. Bienvenido F. Nebres, S.J., an expert mathematician and authority in statistics, and later president of the Ateneo de Manila University, to conduct a statistical analysis of the results in Bio-Chem and Ob-Gyne of the said examination.

On June 10, 1993, Fr. Nebres submitted his report. He reported that a comparison of the scores in Bio-Chem and Ob-Gyne, of the Fatima College examinees with those of examinees from De La Salle University and Perpetual Help College of Medicine showed that the scores of Fatima College examinees were not only incredibly high but unusually clustered close to each other. He concluded that there must be some unusual reason creating the clustering of scores in the two subjects. It must be a cause "strong enough to eliminate the normal variations that one should expect from the examinees [of Fatima College] in terms of talent, effort, energy, etc."5

For its part, the NBI found that "the questionable passing rate of Fatima examinees in the [1993] Physician Examination leads to the conclusion that the Fatima examinees gained early access to the test questions."6

On July 5, 1993, respondents Arlene V. De Guzman, Violeta V. Meneses, Celerina S. Navarro, Jose Ramoncito P. Navarro, Arnel V. Herrera, and Geraldine Elizabeth M. Pagilagan (Arlene V. De Guzman et al., for brevity) filed a special civil action for mandamus, with prayer for preliminary mandatory injunction docketed as Civil Case No. 93-66530 with the Regional Trial Court (RTC) of Manila, Branch 52. Their petition was adopted by the other respondents as intervenors.

Meanwhile, the Board issued Resolution No. 26, dated July 21, 1993, charging respondents with "immorality, dishonest conduct, fraud, and deceit" in connection with the Bio-Chem and Ob-Gyne examinations. It recommended that the test results of the Fatima examinees be nullified. The case was docketed as Adm. Case No. 1687 by the PRC.

On July 28, 1993, the RTC issued an Order in Civil Case No. 93-66530 granting the preliminary mandatory injunction sought by the respondents. It ordered the petitioners to administer the physician’s oath to Arlene V. De Guzman et al., and enter their names in the rolls of the PRC.

The petitioners then filed a special civil action for certiorari with the Court of Appeals to set aside the mandatory injunctive writ, docketed as CA-G.R. SP No. 31701.

On October 21, 1993, the appellate court decided CA-G.R. SP No. 31701, with the dispositive portion of theDecision ordaining as follows:

WHEREFORE, this petition is GRANTED. Accordingly, the writ of preliminary mandatory injunction issued by the lower court against petitioners is hereby nullified and set aside.

SO ORDERED.7

Arlene V. de Guzman, et al., then elevated the foregoing Decision to this Court in G.R. No. 112315. In ourResolution dated May 23, 1994, we denied the petition for failure to show reversible error on the part of the appellate court.

Meanwhile, on November 22, 1993, during the pendency of the instant petition, the pre-trial conference in Civil Case No. 93-66530 was held. Then, the parties, agreed to reduce the testimonies of their respective witnesses to sworn questions-and-answers. This was without prejudice to cross-examination by the opposing counsel.

On December 13, 1993, petitioners’ counsel failed to appear at the trial in the mistaken beliefthat the trial was set for December 15. The trial court then ruled that petitioners waived their right to cross-examine the witnesses.

On January 27, 1994, counsel for petitioners filed a Manifestation and Motion stating the reasons for her non-appearance and praying that the cross-examination of the witnesses for the opposing parties be reset. The trial court denied the motion for lack of notice to adverse counsel. It also denied the Motion for Reconsideration that followed on the ground that adverse counsel was notified less than three (3) days prior to the hearing.

Meanwhile, to prevent the PRC and the Board from proceeding with Adm. Case No. 1687, the respondents herein moved for the issuance of a restraining order, which the lower court granted in its Order dated April 4, 1994.

The petitioners then filed with this Court a petition for certiorari docketed as G.R. No. 115704, to annul the Ordersof the trial court dated November 13, 1993, February 28, 1994, and April 4, 1994. We referred the petition to the Court of Appeals where it was docketed as CA-G.R. SP No. 34506.

On August 31, 1994, the appellate court decided CA-G.R. SP No. 34506 as follows:

WHEREFORE, the present petition for certiorari with prayer for temporary restrainingorder/preliminary injunction is GRANTED and the Orders of December 13, 1993, February 7, 1994, February 28, 1994, and April 4, 1994 of the RTC-Manila, Branch 52, and all further proceedings taken by it in Special Civil Action No. 93-66530 are hereby DECLARED NULL and VOID. The said RTC-Manila is ordered to allow petitioners’ counsel to cross-examine the respondents’ witnesses, to allow petitionersto present their evidence in due course of trial, and thereafter to decide the case on the merits on the basis of the evidence of the parties. Costs against respondents.

IT IS SO ORDERED.8

The trial was then set and notices were sent to the parties.

A day before the first hearing, on September 22, 1994, the petitioners filed an Urgent Ex-Parte Manifestation and Motion praying for the partial reconsideration of the appellate court’sdecision in CA-G.R. SP No. 34506, and for the outright dismissal of Civil Case No. 93-66530.The petitioners asked for the suspension of the proceedings.

In its Order dated September 23, 1994, the trial court granted the aforesaid motion, cancelled the scheduled hearing dates, and reset the proceedings to October 21 and 28, 1994.

Meanwhile, on October 25, 1994, the Court of Appeals denied the partial motion for reconsideration in CA-G.R. SP No. 34506. Thus, petitioners filed with the Supreme Court a petition for review docketed as G.R. No. 117817, entitled Professional Regulation Commission, et al. v. Court of Appeals, et al.

On November 11, 1994, counsel for the petitioners failed to appear at the trial of Civil Case No. 93-66530. Upon motion of the respondents herein, the trial court ruled that herein

petitioners waived their right to cross-examine the herein respondents. Trial was reset to November 28, 1994.

On November 25, 1994, petitioners’ counsel moved for the inhibition of the trial court judge for alleged partiality. On November 28, 1994, the day the Motion to Inhibit was to be heard, petitioners failed to appear. Thus, the trial court denied the Motion to Inhibit and declared Civil Case No. 93-66530 deemed submitted for decision.

On December 19, 1994, the trial court handed down its judgment in Civil Case No. 93-66530, the fallo of which reads:

WHEREFORE, judgment is rendered ordering the respondents to allow the petitioners and intervenors (except those with asterisks and footnotes in pages 1 & 2 of this decision) [sic],9 to take the physician’s oath and to register them as physicians.

It should be made clear that this decision is without prejudice to any administrative disciplinary action which may be taken against any of the petitioners for such causes and in the manner provided by law and consistent with the requirements of the Constitution as any other professionals.

No costs.

SO ORDERED.10

As a result of these developments, petitioners filed with this Court a petition for review on certiorari docketed as G.R. No. 118437, entitled Professional Regulation Commission v. Hon.David G. Nitafan, praying inter alia, that (1) G.R. No. 118437 be consolidated with G.R. No. 117817; (2) the decision of the Court of Appeals dated August 31, 1994 in CA-G.R. SP No. 34506 be nullified for its failure to decree the dismissal of Civil Case No. 93-66530, and in the alternative, to set aside the decision of the trial court in Civil Case No. 93-66530, order the trial court judge to inhibit himself, and Civil Case No. 93-66530 be re-raffled to another branch.

On December 26, 1994, the petitioners herein filed their Notice of Appeal11 in Civil Case No. 93-66530, thereby elevating the case to the Court of Appeals, where it was docketed as CA-G.R. SP No. 37283.

In our Resolution of June 7, 1995, G.R. No. 118437 was consolidated with G.R. No. 117817.

On July 9, 1998, we disposed of G.R. Nos. 117817 and 118437 in this wise:

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 arepetition of the same or similar acts will be dealt with accordingly.

SO ORDERED.12

While CA-G.R. SP No. 37283 was awaiting disposition by the appellate court, Arnel V. Herrera, one of the original petitioners in Civil Case No. 93-66530, joined by twenty-seven intervenors, to wit: Fernando F. Mandapat, Ophelia C. Hidalgo, Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-Largoza, Cheryl R. Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S. Acosta-Cabanes, Laura M. Santos, Maritel M. Echiverri, Bernadette C. Escusa, Carlosito C. Domingo, Alicia S.Lizano, Elnora R. Raqueno-Rabaino, Saibzur N. Edding, Derileen D. Dorado-Edding, Robert B. Sanchez, Maria Rosario L. Leonor-Lacandula, Geraldine Elizabeth M. Pagilagan-Palma, Margarita Belinda L. Vicencio-Gamilla, Herminigilda E. Conejos, Leuvina P. Chico-Paguio, Elcin C. Arriola-Ocampo, and Jose Ramoncito P. Navarro, manifested that they were no

longer interested in proceeding with the case and moved for its dismissal. A similar manifestation and motion was later filed by intervenors Mary Jean I. Yeban-Merlan, Michael L. Serrano, Norma G. Lafavilla, Arnulfo A. Salvador, Belinda C. Rabara, Yolanda P. Unica, Dayminda G. Bontuyan, Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil R. Deveraturda, Aleli A. Gollayan, Evelyn C. Cundangan, Frederick D. Francisco, Violeta V. Meneses, Melita J. Cañedo, Clarisa SJ. Nicolas, Federico L. Castillo, Karangalan D. Serrano, Danilo A. Villaver, Grace E. Uy, Lydia C. Chan, and Melvin M. Usita. The Court of Appeals ruled that itsdecision in CA-G.R. SP No. 37283 would not apply to them.

On May 16, 2000, the Court of Appeals decided CA-G.R. SP No. 37283, with the following fallo, to wit:

WHEREFORE, finding no reversible error in the decision appealed from, We hereby AFFIRM the same and DISMISS the instant appeal.

No pronouncement as to costs.

SO ORDERED.13

In sustaining the trial court’s decision, the appellate court ratiocinated that the respondents complied with all the statutory requirements for admission into the licensure examination for physicians in February 1993. They all passed the said examination. Having fulfilled the requirements of Republic Act No. 2382,14 they should be allowed to take their oaths as physicians and be registered in the rolls of the PRC.

Hence, this petition raising the following issues:

I

WHETHER OR NOT RESPONDENTS HAVE A VALID CAUSE OF ACTION FOR MANDAMUS AGAINST PETITIONERS IN THE LIGHT OF THE RESOLUTION OF THIS HONORABLE COURT IN G.R. NO. 112315 AFFIRMING THE COURT OF APPEALS’ DECISION DECLARING THAT IF EVER THERE IS SOME DOUBT AS TO THE MORAL FITNESS OF EXAMINEES, THE ISSUANCE OF LICENSE TO PRACTICE MEDICINE IS NOT AUTOMATICALLY GRANTED TO THE SUCCESSFUL EXAMINEES.

II

WHETHER OR NOT THE PETITION FOR MANDAMUS COULD PROCEED DESPITE THE PENDENCY OF ADMINISTRATIVE CASE NO. 1687, WHICH WAS PRECISELY LODGED TO DETERMINE THE MORAL FITNESS OF RESPONDENTS TO BECOME DOCTORS.15

To our mind, the only issue is: Did the Court of Appeals commit a reversible error of law in sustaining the judgment of the trial court that respondents are entitled to a writ of mandamus?

The petitioners submit that a writ of mandamus will not lie in this case. They point out that fora writ of mandamus to issue, the applicant must have a well-defined, clear and certain legal right to the thing demanded and it is the duty of the respondent to perform the act required. Thus, mandamus may be availed of only when the duty sought to be performed is a ministerial and not a discretionary one. The petitioners argue that the appellate court’s decision in CA-G.R. SP No. 37283 upholding the decision of the trial court in Civil Case No. 93-66530 overlooked its own pronouncement in CA-G.R. SP No. 31701. The Court of Appeals held in CA-G.R. SP No. 31701 that the issuance of a license to engage in the practice of medicine becomes discretionary on the PRC if there exists some doubt that the successful examinee has not fully met the requirements of the law. The petitioners stress that this Court’s Resolution dated May 24, 1994 in G.R. No. 112315 held that there was no

showing "that the Court of Appeals had committed any reversible error in rendering the questioned judgment" in CA-G.R. SP No. 31701. The petitioners point out that our Resolution in G.R. No. 112315 has long become final and executory.

Respondents counter that having passed the 1993 licensure examinations for physicians, the petitioners have the obligation to administer to them the oath as physicians and to issue their certificates of registration as physicians pursuant to Section 2016 of Rep. Act No. 2382. The Court of Appeals in CA-G.R. SP No. 37283, found that respondents complied with all therequirements of Rep. Act No. 2382. Furthermore, respondents were admitted by the Medical Board to the licensure examinations and had passed the same. Hence, pursuant to Section 20 of Rep. Act No. 2382, the petitioners had the obligation to administer their oaths as physicians and register them.

Mandamus is a command issuing from a court of competent jurisdiction, in the name of the state or the sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed, or from operation of law.17 Section 3 of Rule 6518 of the 1997 Rules of Civil Procedure outlines two situations when a writ of mandamus may issue, when any tribunal, corporation, board, officeror person unlawfully (1) neglects the performance of an act which the law specifically enjoinsas a duty resulting from an office, trust, or station; or (2) excludes another from the use and enjoyment of a right or office to which the other is entitled.

We shall discuss the issues successively.

1. On The Existence of a Duty of the Board of Medicine To Issue Certificates of Registrationas Physicians under Rep. Act No. 2382.

For mandamus to prosper, there must be a showing that the officer, board, or official concerned, has a clear legal duty, not involving discretion.19 Moreover, there must be statutory authority for the performance of the act,20 and the performance of the duty has beenrefused.21 Thus, it must be pertinently asked now: Did petitioners have the duty to administer the Hippocratic Oath and register respondents as physicians under the Medical Act of 1959?

As found by the Court of Appeals, on which we agree on the basis of the records:

It bears emphasizing herein that petitioner-appellees and intervenor-appellees have fully complied with all the statutory requirements for admission into the licensure examinations for physicians conducted and administered by the respondent-appellants on February 12, 14, 20 and 21, 1993. Stress, too, must be made of the fact that all of them successfully passed the same examinations.22

The crucial query now is whether the Court of Appeals erred in concluding that petitioners should allow the respondents to take their oaths as physicians and register them, steps which would enable respondents to practice the medical profession23 pursuant to Section 20 of the Medical Act of 1959?

The appellate court relied on a single provision, Section 20 of Rep. Act No. 2382, in concluding that the petitioners had the ministerial obligation to administer the Hippocratic Oath to respondents and register them as physicians. But it is a basic rule in statutory construction that each part of a statute should be construed in connection with every other part to produce a harmonious whole, not confining construction to only one section.24 The intent or meaning of the statute should be ascertained from the statute taken as a whole, not from an isolated part of the provision. Accordingly, Section 20, of Rep. Act No. 2382, as amended should be read in conjunction with the other provisions of the Act. Thus, to determine whether the petitioners had the ministerial obligation to administer the Hippocratic Oath to respondents and register them as physicians, recourse must be had to the entirety ofthe Medical Act of 1959.

A careful reading of Section 20 of the Medical Act of 1959 discloses that the law uses the word "shall" with respect to the issuance of certificates of registration. Thus, the petitioners "shall sign and issue certificates of registration to those who have satisfactorily complied with the requirements of the Board." In statutory construction the term "shall" is a word of command. It is given imperative meaning. Thus, when an examinee satisfies the requirements for the grant of his physician’s license, the Board is obliged to administer to himhis oath and register him as a physician, pursuant to Section 20 and par. (1) of Section 2225 of the Medical Act of 1959.

However, the surrounding circumstances in this case call for serious inquiry concerning the satisfactory compliance with the Board requirements by the respondents. The unusually highscores in the two most difficult subjects was phenomenal, according to Fr. Nebres, the consultant of PRC on the matter, and raised grave doubts about the integrity, if not validity, ofthe tests. These doubts have to be appropriately resolved.

Under the second paragraph of Section 22, the Board is vested with the power to conduct administrative investigations and "disapprove applications for examination or registration," pursuant to the objectives of Rep. Act No. 2382 as outlined in Section 126 thereof. In this case, after the investigation, the Board filed before the PRC, Adm. Case No. 1687 against the respondents to ascertain their moral and mental fitness to practice medicine, as required by Section 927 of Rep. Act No. 2382. In its Decision dated July 1, 1997, the Board ruled:

WHEREFORE, the BOARD hereby CANCELS the respondents[’] examination papers in the Physician Licensure Examinations given in February 1993 and further DEBARS them from taking any licensure examination for a period of ONE (1) YEAR from the date of the promulgation of this DECISION. They may, if they so desire, apply for the scheduled examinations for physicians after the lapse of the period imposed by the BOARD.

SO ORDERED.28

Until the moral and mental fitness of the respondents could be ascertained, according to petitioners, the Board has discretion to hold in abeyance the administration of the Hippocratic Oath and the issuance of the certificates to them. The writ of mandamus does not lie to compel performance of an act which is not duly authorized.

The respondents nevertheless argue that under Section 20, the Board shall not issue a certificate of registration only in the following instances: (1) to any candidate who has been convicted by a court of competent jurisdiction of any criminal offense involving moral turpitude; (2) or has been found guilty of immoral or dishonorable conduct after the investigation by the Board; or (3) has been declared to be of unsound mind. They aver that none of these circumstances are present in their case.

Petitioners reject respondents’ argument. We are informed that in Board Resolution No. 26,29 dated July 21, 1993, the Board resolved to file charges against the examinees from Fatima College of Medicine for "immorality, dishonesty, fraud, and deceit in the Obstetrics-Gynecology and Biochemistry examinations." It likewise sought to cancel the examination results obtained by the examinees from the Fatima College.

Section 830 of Rep. Act No. 2382 prescribes, among others, that a person who aspires to practice medicine in the Philippines, must have "satisfactorily passed the corresponding Board Examination." Section 22, in turn, provides that the oath may only be administered "to physicians who qualified in the examinations." The operative word here is "satisfactorily," defined as "sufficient to meet a condition or obligation" or "capable of dispelling doubt or ignorance."31 Gleaned from Board Resolution No. 26, the licensing authority apparently did not find that the respondents "satisfactorily passed" the licensure examinations. The Board instead sought to nullify the examination results obtained by the respondents.

2. On the Right Of The Respondents To Be Registered As Physicians

The function of mandamus is not to establish a right but to enforce one that has been established by law. If no legal right has been violated, there can be no application of a legal remedy, and the writ of mandamus is a legal remedy for a legal right.32 There must be a well-defined, clear and certain legal right to the thing demanded.33 It is long established rule that alicense to practice medicine is a privilege or franchise granted by the government.34

It is true that this Court has upheld the constitutional right35 of every citizen to select a profession or course of study subject to a fair, reasonable, and equitable admission and academic requirements.36 But like all rights and freedoms guaranteed by the Charter, their exercise may be so regulated pursuant to the police power of the State to safeguard health, morals, peace, education, order, safety, and general welfare of the people.37 Thus, persons who desire to engage in the learned professions requiring scientific or technical knowledge may be required to take an examination as a prerequisite to engaging in their chosen careers. This regulation takes particular pertinence in the field of medicine, to protect the public from the potentially deadly effects of incompetence and ignorance among those who would practice medicine. In a previous case, it may be recalled, this Court has ordered the Board of Medical Examiners to annul both its resolution and certificate authorizing a Spanish subject, with the degree of Licentiate in Medicine and Surgery from the University of Barcelona, Spain, to practice medicine in the Philippines, without first passing the examination required by the Philippine Medical Act.38 In another case worth noting, we upheld the power of the State to upgrade the selection of applicants into medical schools through admission tests.39

It must be stressed, nevertheless, that the power to regulate the exercise of a profession or pursuit of an occupation cannot be exercised by the State or its agents in an arbitrary, despotic, or oppressive manner. A political body that regulates the exercise of a particular privilege has the authority to both forbid and grant such privilege in accordance with certain conditions. Such conditions may not, however, require giving up ones constitutional rights as a condition to acquiring the license.40 Under the view that the legislature cannot validly bestow an arbitrary power to grant or refuse a license on a public agency or officer, courts will generally strike down license legislation that vests in public officials discretion to grant or refuse a license to carry on some ordinarily lawful business, profession, or activity without prescribing definite rules and conditions for the guidance of said officials in the exercise of their power.41

In the present case, the aforementioned guidelines are provided for in Rep. Act No. 2382, as amended, which prescribes the requirements for admission to the practice of medicine, the qualifications of candidates for the board examinations, the scope and conduct of the examinations, the grounds for denying the issuance of a physician’s license, or revoking a license that has been issued. Verily, to be granted the privilege to practice medicine, the applicant must show that he possesses all the qualifications and none of the disqualifications. Furthermore, it must appear that he has fully complied with all the conditions and requirements imposed by the law and the licensing authority. Should doubt taint or mar the compliance as being less than satisfactory, then the privilege will not issue. For said privilege is distinguishable from a matter of right, which may be demanded if denied.Thus, without a definite showing that the aforesaid requirements and conditions have been satisfactorily met, the courts may not grant the writ of mandamus to secure said privilege without thwarting the legislative will.

3. On the Ripeness of the Petition for Mandamus

Lastly, the petitioners herein contend that the Court of Appeals should have dismissed the petition for mandamus below for being premature. They argue that the administrative remedies had not been exhausted. The records show that this is not the first time that petitioners have sought the dismissal of Civil Case No. 93-66530. This issue was raised in G.R. No. 115704, which petition we referred to the Court of Appeals, where it was docketed as CA-G.R. SP No. 34506. On motion for reconsideration in CA-G.R. SP No. 34506, the appellate court denied the motion to dismiss on the ground that the prayers for the nullification of the order of the trial court and the dismissal of Civil Case No. 93-66530 were

inconsistent reliefs. In G.R. No. 118437, the petitioners sought to nullify the decision of the Court of Appeals in CA-G.R. SP No. 34506 insofar as it did not order the dismissal of Civil Case No. 93-66530. In our consolidated decision, dated July 9, 1998, in G.R. Nos. 117817 & 118437, this Court speaking through Justice Bellosillo opined that:

Indeed, the issue as to whether the Court of Appeals erred in not ordering the dismissal of Civil Case No. 93-66530 sought to be resolved in the instant petition hasbeen rendered meaningless by an event taking place prior to the filing of this petition and denial thereof should follow as a logical consequence.42 There is no longer any justiciable controversy so that any declaration thereon would be of no practical use orvalue.43 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 wasreceived 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 tothem was to appeal the decision to the Court of Appeals, which they in fact did, by filing a notice of appeal on 26 December 1994.44

The petitioners have shown no cogent reason for us to reverse the aforecited ruling. Nor will their reliance upon the doctrine of the exhaustion of administrative remedies in the instant case advance their cause any.

Section 2645 of the Medical Act of 1959 provides for the administrative and judicial remedies that respondents herein can avail to question Resolution No. 26 of the Board of Medicine, namely: (a) appeal the unfavorable judgment to the PRC; (b) should the PRC ruling still be unfavorable, to elevate the matter on appeal to the Office of the President; and (c) should they still be unsatisfied, to ask for a review of the case or to bring the case to court via a special civil action of certiorari. Thus, as a rule, mandamus will not lie when administrative remedies are still available.46 However, the doctrine of exhaustion of administrative remedies does not apply where, as in this case, a pure question of law is raised.47 On this issue, no reversible error may, thus, be laid at the door of the appellate court in CA-G.R. SP No. 37283, when it refused to dismiss Civil Case No. 93-66530.

As we earlier pointed out, herein respondents Arnel V. Herrera, Fernando F. Mandapat, Ophelia C. Hidalgo, Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-Largoza, Cheryl R. Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S. Acosta-Cabanes, Laura M. Santos, Maritel M. Echiverri, Bernadette C. Escusa, Carlosito C. Domingo, Alicia S. Lizano, Elnora R. Raqueno-Rabaino, Saibzur N. Edding, Derileen D. Dorado-Edding, Robert B. Sanchez, Maria Rosario Leonor-Lacandula, Geraldine Elizabeth M. Pagilagan-Palma, Margarita Belinda L. Vicencio-Gamilla, Herminigilda E. Conejos, Leuvina P. Chico-Paguio, Elcin C. Arriola-Ocampo, and Jose Ramoncito P. Navarro manifested to the Court of Appeals during the pendency of CA-G.R. SP No. 37283, that they were no longer interested in proceeding with the case and moved for its dismissal insofar as they were concerned. A similar manifestation and motion were later filed by intervenors Mary Jean I. Yeban-Merlan, Michael L. Serrano, Norma G. Lafavilla,Arnulfo A. Salvador, Belinda C. Rabarra, Yolanda P. Unica, Dayminda G. Bontuyan, Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil R. Deveraturda, Aleli A. Gollayan, Evelyn C. Cundangan, Frederick D. Francisco, Violeta V. Meneses, Melita J. Cañedo, Clarisa SJ. Nicolas, Federico L. Castillo, Karangalan D. Serrano, Danilo A. Villaver, Grace E. Uy, Lydia C. Chan, and Melvin M. Usita. Following these manifestations and motions, the appellate court in CA-G.R. SP No. 37283 decreed that its ruling would not apply to them. Thus, inasmuch as the instant case is a petition for review of the appellate court’s ruling in CA-G.R.SP No. 37283, a decision which is inapplicable to the aforementioned respondents will similarly not apply to them.

As to Achilles J. Peralta, Evelyn O. Ramos, Sally B. Bunagan, Rogelio B. Ancheta, Oscar H. Padua, Jr., Evelyn D. Grajo, Valentino P. Arboleda, Carlos M. Bernardo, Jr., Mario D. Cuaresma, Violeta C. Felipe, Percival H. Pangilinan, Corazon M. Cruz and Samuel B. Bangoy, herein decision shall not apply pursuant to the Orders of the trial court in Civil Case No. 93-66530, dropping their names from the suit.

Consequently, this Decision is binding only on the remaining respondents, namely: Arlene V. de Guzman, Celerina S. Navarro, Rafael I. Tolentino, Bernardita B. Sy, Gloria T. Jularbal, Hubert S. Nazareno, Nancy J. Chavez, Ernesto L. Cue, Herminio V. Fernandez, Jr., Maria Victoria M. Lacsamana and Merly D. Sta. Ana, as well as the petitioners.

WHEREFORE, the instant petition is GRANTED. Accordingly, (1) the assailed decision dated May 16, 2000, of the Court of Appeals, in CA-G.R. SP No. 37283, which affirmed the judgment dated December 19, 1994, of the Regional Trial Court of Manila, Branch 52, in CivilCase No. 93-66530, ordering petitioners to administer the physician’s oath to herein respondents as well as the resolution dated August 25, 2000, of the appellate court, denying the petitioners’ motion for reconsideration, are REVERSED and SET ASIDE; and (2) the writ of mandamus, issued in Civil Case No. 93-66530, and affirmed by the appellate court in CA-G.R. SP No. 37283 is NULLIFIED AND SET ASIDE.

SO ORDERED.

Puno, Quisumbing, Austria-Martinez, and Callejo, Sr., JJ., concur.

G.R. No. 89572 December 21, 1989

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 theNational Medical Admission Test (NMAT) is entitled to take it again.

The petitioner contends he may not, under its rule that-

h) 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 NMATfor 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 itas 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. Theissue 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 employedare 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 notinfiltrated 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 lawnor 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 rightto be a doctor. This is true of any other calling in which the public interest is involved; and thecloser 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 befor 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 toArticle 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 belongingto 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 oroccupation. 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.

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 ofmisfits.

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.

Fernan, C.J., Narvasa Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

MEDICAL NEGLIGENCE CASES

DR. MILAGROS L. CANTRE,Petitioner,

G.R. No. 160889

- versus -

Present: QUISUMBING, J., Chairperson,CARPIO,CARPIO MORALES,TINGA, andVELASCO, JR., JJ.

SPS. JOHN DAVID Z. GO and NORA S. GO,Respondents.

Promulgated: April 27, 2007

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

DECISION QUISUMBING, J.:

For review on certiorari are the Decision[1] dated October 3, 2002 andResolution[2] dated November 19, 2003 of the Court of Appeals in CA-G.R.CV No. 58184, which affirmed with modification the Decision[3] datedMarch 3, 1997 of the Regional Trial Court of Quezon City, Branch 98, inCivil 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 theattending physician of respondent Nora S. Go, who was admitted at the saidhospital on April 19, 1992.

At 1:30 a.m. of April 20, 1992, Nora gave birth to her fourth child, ababy boy. However, at around 3:30 a.m., Nora suffered profuse bleedinginside her womb due to some parts of the placenta which were notcompletely expelled from her womb after delivery. Consequently, Norasuffered hypovolemic shock, resulting in a drop in her blood pressure to 40over 0. Petitioner and the assisting resident physician performed variousmedical procedures to stop the bleeding and to restore Noras bloodpressure. Her blood pressure was frequently monitored with the use of asphygmomanometer. While petitioner was massaging Noras uterus for it tocontract and stop bleeding, she ordered a droplight to warm Nora and herbaby.[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 thenurses what caused the injury. He was informed it was a burn. Forthwith,on April 22, 1992, John David filed a request for investigation.[6] Inresponse, Dr. Rainerio S. Abad, the medical director of the hospital, calledpetitioner 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. FlorestoArizala, Jr.[7] The medico-legal officer later testifiedthat Noras injury appeared to be a burn and that a droplight when placednear the skin for about 10 minutes could cause such burn.[8] He dismissed thelikelihood that the wound was caused by a blood pressure cuff as the scarwas 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 theDr. Jesus Delgado Memorial Hospital for skin grafting.[10] Her wound wascovered with skin sourced from her abdomen, which consequently bore ascar as well. About a year after, on April 30, 1993, scar revision had to beperformed at the same hospital.[11] The surgical operation left a healed linearscar in Noras left arm about three inches in length, the thickest portion risingabout one-fourth (1/4) of an inch from the surface of the skin. The costs ofthe skin grafting and the scar revision were shouldered by the hospital.[12]

Unfortunately, Noras arm would never be the same. Aside from the

unsightly mark, the pain in her left arm remains. When sleeping, she has tocradle her wounded arm. Her movements now are also restricted. Herchildren cannot play with the left side of her body as they might accidentallybump the injured arm, which aches at the slightest touch.

Thus, on June 21, 1993, respondent spouses filed a complaint[13] for

damages against petitioner, Dr. Abad, and the hospital. Finding in favor ofrespondent 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

(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 asattorneys fees; and

(e) to pay Six Thousand Pesos (P6,000.00) litigationexpenses.

SO ORDERED.[14]

Petitioner, Dr. Abad, and the hospital all appealed to the Court ofAppeals, 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 ofBranch 98 of the Regional Trial Court of Quezon City in CivilCase No. Q-93-16562, the same is hereby AFFIRMED, with thefollowing MODIFICATIONS:

1. Ordering defendant-appellant Dra. Milagros[L.] Cantre only to pay plaintiffs-appellees John DavidGo and Nora S. Go the sum of P200,000.00 as moraldamages;

2. Deleting the award [of] exemplary damages,attorneys fees and expenses of litigation;

3. Dismissing the complaint with respect to defendants-appellants Dr. Rainerio S. Abad and Delgado Clinic,Inc.;

4. Dismissing the counterclaims of defendants-appellants for lack of merit; and

5. Ordering defendant-appellant Dra. Milagros[L.] Cantre only to pay the costs.

SO ORDERED.[15]

Petitioners motion for reconsideration was denied by the Court of

Appeals. Hence, the instant petition assigning the following as errors andissues:

I.

WHETHER OR NOT, THE LOWER COURT, AND THECOURT OF APPEALS COMMITTED GRAVE ABUSE OFTHEIR DISCRETION WHEN, NOTWITHSTANDING THATBOTH PARTIES HAVE RESTED THEIR RESPECTIVECASES, THE LOWER COURT ADMITTED THE

ADDITIONAL EXHIBITS FURTHER OFFERED BYRESPONDENTS NOT TESTIFIED TO BY ANYWITNESS AND THIS DECISION OF THE LOWER COURTWAS UPHELD BY THE COURT OF APPEALS LIKEWISECOMMITTING GRAVE ABUSE OF DISCRETION;

II.

WHETHER OR NOT THE LOWER COURT COMMITTEDGRAVE ABUSE OF ITS DISCRETION WHEN, CONTRARYTO PREPONDERANCE OF EVIDENCE PRESENTED BY THEPETITIONER, IT RULED THAT THE PETITIONER HAS NOTAMPLY SHOWED THAT THE DROPLIGHT DID NOTTOUCH THE BODY OF MRS. NORA GO, AND THISDECISION OF THE LOWER COURT WAS UPHELD BY THECOURT OF APPEALS LIKEWISE COMMITTING GRAVEABUSE OF DISCRETION;

III.

WHETHER OR NOT THE LOWER COURT COMMITTEDGRAVE ABUSE OF ITS DISCRETION WHEN, CONTRARYTO PREPONDERANCE OF EVIDENCE PRESENTED BY THEPETITIONER, IT RULED THAT PETITIONER DRA. CANTREWAS NOT ABLE TO AMPLY EXPLAIN HOW THE INJURY(BLISTERS) IN THE LEFT INNER ARM OF RESPONDENTMRS. GO CAME ABOUT;

IV.

WHETHER OR NOT THE COURT OF APPEALSCOMMITTED GRAVE ABUSE OF ITS DISCRETION WHENIT MADE A RULING ON THE RESPONDENTS INJURYQUOTING THE TESTIMONY OF SOMEONE WHO WAS NOTPRESENT AND HAS NOT SEEN THE ORIGINAL, FRESHINJURY OF RESPONDENT MRS. NORA GO;

V.

WHETHER OR NOT THE COURT OF APPEALS GRAVELYABUSING ITS DISCRETION RULED THAT PETITIONERDRA. CANTRE SHOULD HAVE INTENDED TO INFLICTTHE INJURY TO SAVE THE LIFE OF RESPONDENT MRS.GO;

VI.

WHETHER OR NOT THE LOWER COURT AND THE COURT[OF] APPEALS COMMITTED GRAVE ABUSE OFDISCRETION WHEN, CONTRARY TO THE DETAILEDPROCEDURES DONE BY PETITIONER, BOTH RULED

THAT THE RESPONDENT WAS LEFT TO THE CARE OFTHE NURSING STAFF;

VII.

WHETHER OR NOT THE LOWER COURT COMMITTEDGRAVE ABUSE OF DISCRETION WHEN, CONTRARY TOTHE MEDICAL PURPOSES OF COSMETIC SURGERY, ITRULED THAT THE COSMETIC SURGERY MADE THESCARS EVEN MORE UGLY AND DECLARED THECOSMETIC SURGERY A FAILURE;

VIII.

WHETHER OR NOT THE LOWER COURT GRAVELY ABUSEOF (SIC) DISCRETION WHEN, CONTRARY TORESPONDENTS CONTRARY TESTIMONIES AND THEABSENCE OF ANY TESTIMONY, IT RULED THAT THEYARE ENTITLED TO DAMAGES AND WHICH WAS UPHELD,ALTHOUGH MODIFIED, BY THE COURT OF APPEALSLIKEWISE ABUSING ITS DISCRETION.[16]

Petitioner contends that additional documentary exhibits not testified

to by any witness are inadmissible in evidence because they deprived her ofher constitutional right to confront the witnesses against her. Petitionerinsists the droplight could not have touched Noras body. She maintains theinjury was due to the constant taking of Noras blood pressure. Petitioner alsoinsinuates the Court of Appeals was misled by the testimony of the medico-legal officer who never saw the original injury before plastic surgery wasperformed. Finally, petitioner stresses that plastic surgery was not intendedto restore respondents injury to its original state but rather to prevent furthercomplication.

Respondents, however, counter that the genuineness and due

execution of the additional documentary exhibits were duly admitted bypetitioners counsel. Respondents point out that petitioners blood pressurecuff theory is highly improbable, being unprecedented in medical historyand that the injury was definitely caused by the droplight. At any rate, theyargue, 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 liablefor the injury suffered by respondent Nora Go? Thereafter, the inquiry iswhether the appellate court committed grave abuse of discretion in itsassailed 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 exhibitsconsist mostly of Noras medical records, which were produced by thehospital during trial pursuant to a subpoena duces tecum. Petitioners counseladmitted the existence of the same when they were formally offered foradmission by the trial court. In any case, given the particular circumstancesof this case, a ruling on the negligence of petitioner may be made based onthe res ipsaloquitur 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 plasticsurgery was performed is without basis and contradicted by the records.Records show that the medico-legal officer conducted the physicalexamination on May 7, 1992, while the skin grafting and the scar revisionwere 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 tothis precept, he is accountable for his acts. This notwithstanding, courts facea unique restraint in adjudicating medical negligence cases becausephysicians are not guarantors of care and, they never set out to intentionallycause injury to their patients. However, intent is immaterial in negligencecases because where negligence exists and is proven, it automatically givesthe 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 apresumption of negligence on the part of the person who controls theinstrument 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; and3. The possibility of contributing conduct which would make the

plaintiff responsible is eliminated.[18]

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 givingbirth. Such injury could not have happened unless negligence had set insomewhere.

Second, whether the injury was caused by the droplight or by the

blood pressure cuff is of no moment. Both instruments are deemed withinthe exclusive control of the physician in charge under the captain of the shipdoctrine. This doctrine holds the surgeon in charge of an operation liable forthe negligence of his assistants during the time when those assistants areunder the surgeons control.[19] In this particular case, it can be logicallyinferred that petitioner, the senior consultant in charge during the delivery ofNoras baby, exercised control over the assistants assigned to both the use ofthe droplight and the taking of Noras blood pressure. Hence, the use of thedroplight and the blood pressure cuff is also within petitioners exclusivecontrol.

Third, the gaping wound on Noras left arm, by its very nature and

considering her condition, could only be caused by something external to herand outside her control as she was unconscious while in hypovolemic shock.Hence, Nora could not, by any stretch of the imagination, have contributedto 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 wasnecessary given her condition, does not absolve her from liability. Astestified to by the medico-legal officer, Dr. Arizala, Jr., the medical practiceis to deflate the blood pressure cuff immediately after each use. Otherwise,the inflated band can cause injury to the patient similar to what could havehappened in this case. Thus, if Noras wound was caused by the bloodpressure cuff, then the taking of Noras blood pressure must have been doneso negligently as to have inflicted a gaping wound on her arm,[20] for whichpetitioner 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 preventcomplication does not help her case. It does not negate negligence on herpart.

Based on the foregoing, the presumption that petitioner was negligent

in the exercise of her profession stands unrebutted. In this connection, theCivil Code provides:

ART. 2176. Whoever by act or omission causes damage toanother, there being fault or negligence, is obliged to pay for thedamage done.

ART. 2217. Moral damages include physical suffering,mental anguish, fright, serious anxiety, besmirched reputation,wounded feelings, moral shock, social humiliation, and similarinjury. Though incapable of pecuniary computation, moraldamages may be recovered if they are the proximate result of thedefendants 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 petitionersnegligence.

We note, however, that petitioner has served well as Noras

obstetrician for her past three successful deliveries. This is the first timepetitioner is being held liable for damages due to negligence in the practiceof her profession. The fact that petitioner promptly took care of Noraswound before infection and other complications set in is also indicative ofpetitioners good intentions. We also take note of the fact that Nora wassuffering from a critical condition when the injury happened, such thatsaving her life became petitioners elemental concern. Nonetheless, it shouldbe stressed that all these could not justify negligence on the part ofpetitioner.

Hence, considering the specific circumstances in the instant case, wefind no grave abuse of discretion in the assailed decision and resolution ofthe Court of Appeals.Further, we rule that the Court of Appeals award ofTwo Hundred Thousand Pesos (P200,000) as moral damages in favor ofrespondents and against petitioner is just and equitable.[21]

WHEREFORE, the petition is DENIED. The Decisiondated October 3, 2002 and Resolution dated November 19, 2003 of theCourt of Appeals in CA-G.R. CV No. 58184 are AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

[G.R. No. 118231. July 5, 1996]

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

D E C I S I O N

DAVIDE, JR., J.:

Throughout history, patients have consigned their fates and lives tothe skill of their doctors. For a breach of this trust, men have been quickto demand retribution. Some 4,000 years ago, the Code ofHammurabi[1] then already provided: "If a physician make a deepincision 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 anddestroy 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 willfollow that method of treatment which according to my ability andjudgment, I consider for the benefit of my patients, and abstain fromwhatever is deleterious and mischievous . . . . While I continue to keepthis oath unviolated may it be granted me to enjoy life and practice theart, respected by all men at all times but should I trespass and violatethis oath, may the reverse be my lot." At present, the primary objectiveof the medical profession is the preservation of life and maintenance ofthe health of the people.[4]

Needless to say then, when a physician strays from his sacred dutyand endangers instead the life of his patient, he must be made toanswer therefor. Although society today cannot and will not tolerate thepunishment meted out by the ancients, neither will it and this Court, asthis case would show, let the act go uncondemned.

The petitioners appeal from the decision[5] of the Court of Appeals of11 May 1994 in CA-G.R. CV No. 30851, which reversed thedecision[6] of 21 December 1990 of Branch 30 of the Regional TrialCourt (RTC) of Negros Oriental in Civil Case No. 9492.

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

Dr. Batiquin was a Resident Physician at the Negros Oriental ProvincialHospital, Dumaguete City from January 9, 1978 to September1989. Between 1987 and September, 1989 she was also the Actg. Headof the Department of Obstetrics and Gynecology at the said Hospital.

Mrs. Villegas is a married woman who submitted to Dr. Batiquin forprenatal care as the latter's private patient sometime before September21, 1988.

In the morning of September 21, 1988 Dr. Batiquin, with theassistance of Dr. Doris Teresita Sy who was also a Resident Physicianat the same Hospital, C.I. and O.R. Nurse Arlene Diones and somestudent nurses performed a simple cesarean section on Mrs. Villegas atthe Negros Oriental Provincial Hospital and after 45 minutes Mrs.Villegas delivered her first child, Rachel Acogido, at about 11:45 thatmorning. Thereafter, Plaintiff remained confined at the Hospital untilSeptember 27, 1988 during which period of confinement she wasregularly visited by Dr. Batiquin. On September 28, 1988, Mrs. Villegaschecked out of the Hospital . . . and on the same day she paid Dr.Batiquin, thru the latter's secretary, the amount of P1,500.00 as"professional fee" . . . .

Soon after leaving the Hospital Mrs. Villegas began to sufferabdominal pains and complained of being feverish. She also graduallylost her appetite, so she consulted Dr. Batiquin at the latter's polyclinicwho prescribed for her certain medicines . . . which she had been takingup 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 toreturn to her work on November 7, 1988. So, on the second week ofNovember, 1988 Mrs. Villegas returned to her work at the Rural Bank ofAyungon, Negros Oriental.

The abdominal pains and fever kept on recurring and bothered Mrs.Villegas no end and despite the medications administered by Dr.Batiquin. When the pains become unbearable and she was rapidlylosing weight she consulted Dr. Ma. Salud Kho at the Holy Child'sHospital in Dumaguete City on January 20, 1989.

The evidence of Plaintiffs show that when Dr. Ma. Salud Khoexamined Mrs. Villegas at the Holy Child's Hospital on January 20, 1989she found Mrs. Villegas to be feverish, pale and was breathingfast. Upon examination she felt an abdominal mass one finger below theumbilicus which she suspected to be either a tumor of the uterus or anovarian cyst, either of which could be cancerous. She had an x-raytaken of Mrs. Villegas' chest, abdomen and kidney. She also took bloodtests of Plaintiff. A blood count showed that Mrs. Villegas had [an]infection inside her abdominal cavity. The result of all thoseexaminations impelled Dr. Kho to suggest that Mrs. Villegas submit toanother surgery to which the latter agreed.

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

The piece of rubber allegedly found near private respondent FlotildeVillegas' uterus was not presented in court, and although Dr. Ma. SaludKho testified that she sent it to a pathologist in Cebu City forexamination,[8] it was not mentioned in the pathologist's SurgicalPathology Report.[9]

Aside from Dr. Kho's testimony, the evidence which mentioned thepiece of rubber are a Medical Certificate,[10] a Progress Record,[11] anAnesthesia Record,[12] a Nurse's Record,[13] and a Physician's DischargeSummary.[14] The trial court, however, regarded these documentaryevidence as mere hearsay, "there being no showing that the person orpersons who prepared them are deceased or unable to testify on thefacts therein stated . . . . Except for the Medical Certificate (Exhibit "F"),all the above documents were allegedly prepared by persons other thanDr. Kho, and she merely affixed her signature on some of them toexpress her agreement thereto . . . ."[15] The trial court also refused togive weight to Dr. Kho's testimony regarding the subject piece of rubberas Dr. Kho "may not have had first-hand knowledge" thereof, [16] as couldbe gleaned from her statement, thus:

A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign body thatgoes with the tissues but unluckily I don't know where the rubber was.[17]

The trial court deemed vital Dr. Victoria Batiquin's testimony thatwhen she confronted Dr. Kho regarding the piece of rubber, "Dr. Khoanswered that there was rubber indeed but that she threw itaway."[18] This statement, the trial court noted, was never denied nordisputed 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 testimonyand, even without admitting the private respondents' documentaryevidence, deemed Dr. Kho's positive testimony to definitely establishthat a piece of rubber was found near private respondent Villegas'uterus. Thus, the Court of Appeals reversed the decision of the trialcourt, holding:

4. The fault or negligence of appellee Dr. Batiquin is established by preponderance of evidence. The trial court itself had narrated what happened toappellant Flotilde after the cesarean operation made by appellee doctor . . . . After the second operation, appellant Flotilde became well and healthy. Appellant Flotilde's troubles were caused by the infection due to the "rubber" that was left inside her abdomen.Both appellants testified that after theoperation 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 theoperating area; that she examined the portion she operated on before closing thesame . . . . Had she exercised due diligence, appellee Dr. Batiquin would have found the rubber and removed it before closing the operating area.[20]

The appellate court then ruled:

Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of P7,100.00 (Exh. G-1-A) plus hospital and medical expenses together with doctor's fees in the total amount P9,900.00 (Exhs. G and G-2)] for the second operation that saved her life.

For the miseries appellants endured for more than three (3) months, due to the negligence of appellee Dr. Batiquin, they are entitled to moral damages in the amount of P100,000.00; exemplary damages in the amount of P20,000.00 and attorney's fees in the amount of P25,000.00.

The fact that appellant Flotilde can no longer bear children because her uterus and ovaries were removed by Dr. Kho is not taken into consideration as it is notshown that the removal of said organs were the direct result of the rubber left by appellee Dr. Batiquin near the uterus. What is established is that the rubber left by appellee cause infection, placed the life of appellant Flotilde in jeopardy and caused appellants fear, worry and anxiety . . . .

WHEREFORE, the appealed judgment, dismissing the complaint for damages is REVERSED and SET ASIDE. Another judgment is hereby entered ordering defendants-appellees to pay plaintiffs-appellants the 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 cost of litigation.

SO ORDERED.[21]

From the above judgment, the petitioners appealed to this Courtclaiming that the appellate court; (1) committed grave abuse ofdiscretion by resorting to findings of fact not supported by the evidenceon record, and (2) exceeded its discretion, amounting to lack or excessof jurisdiction, when it gave credence to testimonies punctured withcontradictions and falsities.

The private respondents commented that the petition raised onlyquestions of fact, which were not proper for review by this Court.

While the rule is that only questions of law may be raised in apetition for review on certiorari, there are exceptions, among which arewhen the factual findings of the trial court and the appellate courtconflict, when the appealed decision is clearly contradicted by theevidence on record, or when the appellate court misapprehended thefacts.[22]

After deciphering the cryptic petition, we find that the focal point ofthe instant appeal is the appreciation of Dr. Kho's testimony. Thepetitioners contend that the Court of Appeals misappreciated thefollowing 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 turnout to be a medico-legal case, I have heard somebody that [sic] says [sic] thereis [sic] a foreign body that goes with the tissues but unluckily I don't know wherethe rubber was. It was not in the Lab, it was not in Cebu.[23] (Italics supplied)

The petitioners prefer the trial court's interpretation of the abovetestimony, i.e., that Dr. Kho's knowledge of the piece of rubber wasbased on hearsay. The Court of Appeals, on the other hand, concludedthat the underscored phrase was taken out of context by the trialcourt. According to the Court of Appeals, the trial court should havelikewise considered the other portions of Dr. Kho's testimony, especiallythe 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 theabdomen, there was an ovarian cyst on the left and side and there was also anovarian 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 ofpus. And there was a [piece of] rubber, we found a [piece of] rubber on the rightside.[24]

We agree with the Court of Appeals. The phrase relied upon by thetrial court does not negate the fact that Dr. Kho saw a piece of rubber inprivate respondent Villegas' abdomen, and that she sent it to alaboratory and then to Cebu City for examination by a pathologist.[25] Noteven the Pathologist's Report, although devoid of any mention of apiece of rubber, could alter what Dr. Kho saw. Furthermore, Dr. Kho'sknowledge of the piece of rubber could not be based on other than firsthand 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 neverreconciled Dr. Kho's testimony with Dr. Batiquin's claim on the witnessstand 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 itaway. Although hearsay, Dr. Batiquin's claim was not objected to, andhence, the same is admissible[27] but it carries no probative value.[28] Nevertheless, assuming otherwise, Dr. Batiquin's statement cannotbelie the fact that Dr. Kho found a piece of rubber near privaterespondent Villegas' uterus. And even if we were to doubt Dr. Kho as towhat she did to the piece of rubber, i.e., whether she threw it away orsent it to Cebu City, we are not justified in distrusting her as to herrecovery of a piece of rubber from private respondent Villegas'abdomen. On this score, it is perfectly reasonable to believe thetestimony of a witness with respect to some facts and disbelieve histestimony with respect to other facts. And it has been aptly said thateven when a witness is found to have deliberately falsified in somematerial particulars, it is not required that the whole of hisuncorroborated testimony be rejected, but such portions thereofdeemed worthy of belief may be credited.[29]

It is here worth nothing that the trial court paid heed to the followingportions of Dr. Batiquin's testimony: that no rubber drain was used in theoperation,[30] and that there was neither any tear on Dr. Batiquin's glovesafter the operation nor blood smears on her hands upon removing hergloves.[31] Moreover, the trial court pointed out that the absence of arubber drain was corroborated by Dr. Doris Sy, Dr. Batiquin's assistantduring the operation on private respondent Villegas.[32] But the trial courtfailed to recognize that the assertions of Drs. Batiquin and Sy weredenials or negative testimonies. Well-settled is the rule that positivetestimony is stronger than negative testimony.[33] Of course, as thepetitioners advocate, such positive testimony must come from a crediblesource, which leads us to the second assigned error.

While the petitioners claim that contradictions and falsities puncturedDr. Kho's testimony, a reading of the said testimony reveals no such

infirmity and establishes Dr. Kho as a credible witness. Dr. Kho wasfrank throughout her turn on the witness stand. Furthermore, no motiveto state any untruth was ever imputed against Dr. Kho, leaving hertrustworthiness unimpaired.[34] The trial court's following declarationshows that while it was critical of the lack of care with which Dr. Khohandled the piece of rubber, it was not prepared to doubt Dr. Kho'scredibility, thus only supporting out appraisal of Dr. Kho'strustworthiness:

This is not to say that she was less than honest when she testifiedabout her findings, but it can also be said that she did not take the mostappropriate precaution to preserve that "piece of rubber" as an eloquentevidence 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 crediblewitness, her positive testimony [that a piece of rubber was indeed foundin private respondent Villegas' abdomen] prevails over the negativetestimony in favor of the petitioners.

As such, the rule of res ipsa loquitur comes to fore. This Court hashad occasion to delve into the nature and operation of this doctrine:

This doctrine [res ipsa loquitur] is stated thus: "Where the thingwhich causes injury is shown to be under the management of thedefendant, and the accident is such as in the ordinary course of thingsdoes not happen if those who have the management use proper care, itaffords reasonable evidence, in the absence of an explanation by thedefendant, that the accident arose from want of care." Or as Black'sLaw Dictionary puts it:

Res ipsa loquitur. The thing speaks for itself. Rebuttable presumption or inference that defendant was negligent, which arises upon proof that [the] instrumentality causing injury was in defendant's exclusive control, and that theaccident 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] accidenthappened 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 controland management of defendant, and that the occurrence [sic] was such that in the ordinary course of things would not happen if reasonable care had been used.

xxx xxx xxx

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

In the instant case, all the requisites for recourse to the doctrine arepresent. First, the entire proceedings of the cesarean section wereunder the exclusive control of Dr. Batiquin. In this light, the privaterespondents were bereft of direct evidence as to the actual culprit or theexact cause of the foreign object finding its way into private respondentVillegas' body, which, needless to say, does not occur unless throughthe intervention of negligence. Second, since aside from the cesareansection, private respondent Villegas underwent no other operation whichcould 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 thecesarean section performed by Dr. Batiquin. The petitioners, in thisregard, failed to overcome the presumption of negligence arising fromresort to the doctrine of res ipsa loquitur. Dr. Batiquin is therefore liablefor negligently leaving behind a piece of rubber in private respondentVillegas' abdomen and for all the adverse effects thereof.

As a final word, this Court reiterates its recognition of the vital rolethe medical profession plays in the lives of the people,[37] and State'scompelling interest to enact measures to protect the public from "thepotentially deadly effects of incompetence and ignorance in those whowould undertake to treat our bodies and minds for disease ortrauma."[38] Indeed, a physician is bound to serve the interest of hispatients "with the greatest of solicitude, giving them always his besttalent and skill."[39] Through her tortious conduct, the petitionerendangered the life of Flotilde Villegas, in violation of her profession'srigid ethical code and in contravention of the legal standards set forth forprofessionals, in the general,[40] and members of the medical profession,[41] in particular.

WHEREFORE, the challenged decision of 11 May 1994 of the Courtof Appeals in CA-G.R. CV No. 30851 is hereby AFFIRMED in toto.

Costs against the petitioners.

SO ORDERED.

Narvasa, C.J., (Chairman), Melo, Francisco, and Panganiban,JJ., concur.

THIRD DIVISION

FE CAYAO-LASAM, G.R. No. 159132

Petitioner,

Present:

YNARES-SANTIAGO, J.,

Chairperson,

- versus - AUSTRIA-MARTINEZ,

CHICO-NAZARIO,

NACHURA, and

REYES, JJ.

SPOUSES CLARO and

EDITHA RAMOLETE, Promulgated:

Respondents. December 18, 2008

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

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of theRules of Court filed by Dr. Fe Cayao-Lasam (petitioner) seeking to annul theDecision[1] 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 monthspregnant Editha Ramolete (Editha) was brought tothe Lorma Medical Center (LMC) in San Fernando, La Union dueto vaginal bleeding.Upon advice of petitionerrelayed via telephone, Editha was admitted to the LMC on thesame day. A pelvic sonogram[2] was then conductedon Editha revealing the fetus weak cardiac pulsation.[3] Thefollowing day, Edithas repeat pelvic sonogram[4] showed thataside from the fetus weak cardiac pulsation, no fetal movementwas also appreciated. Due to persistent and profuse vaginalbleeding, petitioner advised Editha to undergo a Dilatation andCurettage Procedure (D&C) or raspa.

On July 30, 1994, petitioner performed the D&Cprocedure. Editha was discharged from the hospital the followingday.

On September 16, 1994, Editha was once again brought at theLMC, as she was suffering from vomiting and severe abdominalpains. Editha was attended by Dr. Beatriz de la Cruz, Dr. Victor B.Mayo and Dr. Juan V. Komiya. Dr. Mayo allegedlyinformed Editha that there was a dead fetus in the latterswomb. After, Editha underwent laparotomy,[5] she was found tohave a massive intra-abdominal hemorrhage and a ruptureduterus. Thus, Editha had to undergo a procedure forhysterectomy[6] and as a result, she has no more chance to beara child.

On November 7, 1994, Editha and herhusband Claro Ramolete (respondents) filed a Complaint[7] forGross Negligence and Malpractice against petitioner before theProfessional Regulations Commission (PRC).

Respondents alleged that Edithas hysterectomy wascaused by petitioners unmitigated negligence and professionalincompetence in conducting the D&C procedure and thepetitioners failure to remove the fetus inside Edithas womb.[8] Among the alleged acts of negligence were: first, petitionersfailure 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 beperformed on Editha without conducting any internalexamination prior to the procedure;[10] third, petitionerimmediately suggested a D&C procedure instead of closelymonitoring the state of pregnancy of Editha.[11]

In her Answer,[12] petitioner denied the allegations of negligenceand incompetence with the following explanations:upon Edithas confirmation that she would seek admission at theLMC, petitioner immediately called the hospital to anticipate thearrival of Editha and ordered through the telephone themedicines Editha needed to take, which the nurses carried out;petitioner visitedEditha on the morning of July 28, 1994 duringher rounds; on July 29, 1994, she performed an internalexamination on Editha and she discovered that the latters cervixwas already open, thus, petitioner discussed the possible D&Cprocedure, should the bleeding become more profuse; on July 301994, she conducted another internal examination on Editha,which revealed that the latters cervix was stillopen; Editha persistently complained of her vaginal bleeding andher passing out of some meaty mass in the process of urinationand bowel movement; thus, petitioner advised Editha to undergoD&C procedure which the respondents consented to; petitionerwas very vocal in the operating room about not being able to seean abortus;[13] taking the words ofEditha to mean that she waspassing out some meaty mass and clotted blood, she assumedthat the abortus must have been expelled in the process ofbleeding; it was Editha who insisted that she wanted to bedischarged; petitioner agreed, but she advised Editha to returnfor check-up on August 5, 1994, which the latter failed to do.

Petitioner contended that it was Edithas gross negligence and/oromission in insisting to be discharged on July 31, 1994 againstdoctors advice and her unjustified failure to return for check-upas directed by petitioner that contributed to her life-threateningcondition on September 16, 1994; that Edithas hysterectomywas brought about by her very abnormal pregnancy knownas placentaincreta, which was an extremely rare and veryunusual case of abdominal placental implantation. Petitionerargued that whether or not a D&C procedure was done by her orany other doctor, there would be no difference at all because at

any stage of gestation before term, the uterus would rupture justthe same.

On March 4, 1999, the Board of Medicine (the Board) of the PRCrendered a Decision,[14] exonerating petitioner from the chargesfiled against her. The Board held:

Based on the findings of the doctors who conductedthe laparotomy on Editha, hers is a case of Ectopic PregnancyInterstitial. This type of ectopic pregnancy is one that is being protectedby the uterine muscles and manifestations may take later than four (4)months and only attributes to two percent (2%) of ectopic pregnancycases.

When complainant Editha was admittedat Lorma Medical Center on July 28, 1994 due to vaginal bleeding, anultra-sound was performed upon her and the result of the Sonogram Testreveals a morbid fetus but did not specify where the fetus was located.Obstetricians will assume that the pregnancy is within the uterus unlessso specified by the Sonologist who conducted the ultra-sound. Respondent (Dr. Lasam) cannot be faulted if she was not able todetermine that complainant Editha is having an ectopic pregnancyinterstitial. The D&C conducted on Editha is necessary considering thather cervix is already open and so as to stop the profuse bleeding. Simplecurettage cannot remove a fetus if the patient is havingan ectopic pregnancy, since ectopic pregnancy is pregnancy conceivedoutside the uterus and curettage is done only within the uterus.Therefore,a more extensive operation needed in this case of pregnancy in order toremove the fetus.[15]

Feeling aggrieved, respondents went to the PRC on appeal. On November22, 2000, the PRC rendered a Decision[16] reversing the findings of the Board andrevoking 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 Rule43 of the Rules of Court. Petitioner also dubbed her petition as onefor certiorari[18] under Rule 65 of the Rules of Court.

In the Decision dated July 4, 2003, the CA held that the Petition for Reviewunder Rule 43 of the Rules of Court was an improper remedy, as the enumeration ofthe 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 tothe CA, thus, the petition for review of the PRC Decision, filed at the CA, wasimproper. The CA further held that should the petition be treated as a petitionfor certiorari under Rule 65, the same would still be dismissed for being improperand premature. Citing Section 26[20] of Republic Act (R.A.) No. 2382 or theMedical Act of 1959, the CA held that the plain, speedy and adequate remedy underthe ordinary course of law which petitioner should have availed herself of was toappeal to the Office of the President.[21]

Hence, herein petition, assailing the decision of the CA on thefollowing grounds:

1. THE COURT OF APPEALS ERRED ON AQUESTION OF LAW IN HOLDING THAT THEPROFESSIONAL REGULATION[S] COMMISSION(PRC) WAS EXCLUDED AMONG THE QUASI-JUDICIAL AGENCIES CONTEMPLATED UNDER RULE43 OF THE RULES OF CIVIL PROCEDURE;

2. EVEN ASSUMING, ARGUENDO, THAT PRCWAS EXCLUDED FROM THE PURVIEW OF RULE 43OF THE RULES OF CIVIL PROCEDURE, THEPETITIONER WAS NOT PRECLUDED FROM FILING APETITION FOR CERTIORARI WHERE THE DECISIONWAS ALSO ISSUED IN EXCESS OF ORWITHOUT JURISDICTION, OR WHERE THEDECISION WAS A PATENT NULLITY;

3. HEREIN RESPONDENTS-SPOUSES ARENOT ALLOWED BY LAW TO APPEAL FROM THEDECISION OF THE BOARD OF MEDICINE TO THEPROFESSIONAL REGULATION[S] COMMISSION;

4. THE COURT OF APPEALS COMMITTEDGRAVE ABUSE OF DISCRETION IN DENYING FORIMPROPER FORUM THE PETITION FOR

REVIEW/PETITION FOR CERTIORARI WITHOUTGOING OVER THE MERITS OF THE GROUNDSRELIED UPON BY THE PETITIONER;

5. PRCS GRAVE OMISSION TO AFFORDHEREIN PETITONER A CHANCE TO BE HEARD ONAPPEAL IS A CLEAR VIOLATION OF HERCONSTITUTIONAL RIGHT TO DUE PROCESS ANDHAS THE EFFECT OF RENDERING THE JUDGMENTNULL AND VOID;

6. COROLLARY TO THE FOURTH ASSIGNEDERROR, PRC COMMITTED GRAVE ABUSE OFDISCRETION, AMOUNTING TO LACK OFJURISDICTION, IN ACCEPTING AND CONSIDERINGTHE MEMORANDUM ON APPEAL WITHOUT PROOFOF SERVICE TO HEREIN PETITIONER, AND INVIOLATION OF ART. IV, SEC. 35 OF THE RULES ANDREGULATIONS GOVERNING THE REGULATION ANDPRACTICE OF PROFESSIONALS;

7. PRC COMMITTED GRAVE ABUSE OFDISCRETION IN REVOKING PETITIONERS LICENSETO PRACTICE MEDICINE WITHOUT AN EXPERTTESTIMONY TO SUPPORT ITS CONCLUSION AS TOTHE CAUSE OF RESPONDENT EDITHAT [SIC]RAMOLETES INJURY;

8. PRC COMMITTED AN EVEN GRAVERABUSE OF DISCRETION IN TOTALLY DISREGARDINGTHE FINDING OF THE BOARD OF MEDICINE, WHICHHAD THE NECESSARY COMPETENCE ANDEXPERTISE TO ESTABLISH THE CAUSE OFRESPONDENT EDITHAS INJURY, AS WELL AS THETESTIMONY OF THE EXPERT WITNESS AUGUSTOMANALO, M.D. ;[AND]

9. PRC COMMITTED GRAVE ABUSE OF DISCRETIONIN MAKING CONCLUSIONS OF FACTS THAT WERENOT ONLY UNSUPPORTED BY EVIDENCE BUT WEREACTUALLY CONTRARY TO EVIDENCE ON RECORD.[22]

The Court will first deal with the procedural issues.

Petitioner claims that the law does not allow complainants toappeal to the PRC from the decision of the Board. She invokesArticle IV, Section 35 of the Rules and Regulations Governing theRegulation and Practice of Professionals, which provides:

Sec. 35. The respondent may appeal the decision of the Boardwithin thirty days from receipt thereof to the Commission whosedecision shall be final. Complainant, when allowed by law, mayinterpose an appeal from the Decision of the Board within the sameperiod. (Emphasis supplied)

Petitioner asserts that a careful reading of the above law indicates that whilethe respondent, as a matter of right, may appeal the Decision of the Board to theCommission, the complainant may interpose an appeal from the decision of theBoard only when so allowed by law.[23] Petitioner cited Section 26 of Republic ActNo. 2382 or The Medical Act of 1959, to wit:

Section 26. Appeal from judgment. The decision of the Board ofMedical Examiners (now Medical Board) shall automatically becomefinal thirty days after the date of its promulgation unless the respondent,during the same period, has appealed to the Commissioner of CivilService (now Professional Regulations Commission) and later to theOffice of the President of the Philippines. If the final decision is notsatisfactory, the respondent may ask for a review of the case, or may filein court a petition for certiorari.

Petitioner posits that the reason why the Medical Act of 1959 allows only therespondent in an administrative case to file an appeal with the Commission whilethe complainant is not allowed to do so is double jeopardy. Petitioner is of the beliefthat 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 inadministrative cases. Double jeopardy attaches only: (1) upon avalid indictment; (2) before a competent court; (3) afterarraignment; (4) when a valid plea has been entered; and (5)when the defendant was acquitted or convicted, or the case wasdismissed or otherwise terminated without the express consentof the accused.[25] These elements were not present in theproceedings before the Board of Medicine, as the proceedingsinvolved in the instant case were administrative and not criminalin nature. The Court has already held that double jeopardy doesnot lie in administrative cases.[26]

Moreover, Section 35 of the Rules and Regulations Governing theRegulation and Practice of Professionals cited by petitioner wassubsequently amended to read:

Sec. 35. The complainant/respondent may appeal the order, theresolution or the decision of the Board within thirty (30) days fromreceipt thereof to the Commission whose decision shall be finaland executory.Interlocutory order shall not be appealable to theCommission. (Amended by Res. 174, Series of 1990).[27] (Emphasissupplied)

Whatever doubt was created by the previous provision was settledwith said amendment. It is axiomatic that the right to appeal is not a naturalright or a part of due process, but a mere statutory privilege that may beexercised only in the manner prescribed by law.[28] In this case, the clearintent of the amendment is to render the right to appeal from a decision ofthe Board available to both complainants and respondents.

Such conclusion is bolstered by the fact that in 2006, the PRC issuedResolution No. 06-342(A), or the New Rules of Procedure in AdministrativeInvestigations in the Professional Regulations Commission and the ProfessionalRegulatory Boards, which provides for the method of appeal, to wit:

Sec. 1. Appeal; Period Non-Extendible.- The decision, order orresolution of the Board shall be final and executory after the lapse offifteen (15) days from receipt of the decision, order or resolution without

an appeal being perfected or taken by either the respondent or thecomplainant. A party aggrieved by the decision, order or resolutionmay file a notice of appeal from the decision, order or resolution ofthe Board to the Commission within fifteen (15) days from receiptthereof, and serving upon the adverse party a notice of appeal togetherwith the appellants brief or memorandum on appeal, and paying theappeal and legal research fees. x x x[29]

The above-stated provision does not qualify whether only the complainant orrespondent may file an appeal; rather, the new rules provide that a party aggrievedmay file a notice of appeal.Thus, either the complainant or the respondent who hasbeen aggrieved by the decision, order or resolution of the Board may appeal to theCommission. It is an elementary rule that when the law speaks in clear andcategorical language, there is no need, in the absence of legislative intent to thecontrary, for any interpretation.[30] Words and phrases used in the statute should begiven their plain, ordinary, and common usage or meaning.[31]

Petitioner also submits that appeals from the decisions ofthe PRC should be with the CA, as Rule 43[32] of the Rules of Courtwas precisely formulated and adopted to provide for a uniformrule of appellate procedure for quasi-judicial agencies.[33] Petitioner further contends that a quasi-judicial body is notexcluded from the purview of Rule 43 just because it is notmentioned 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 toappeals from judgments or final orders of the Court ofTax Appeals, and from awards, judgments, finalorders or resolutions of or authorized by anyquasi-judicial agency in the exercise of its quasi-judicial functions. Among these agencies are the CivilService Commission, Central Board of AssessmentAppeals, Securities and Exchange Commission, Office ofthe President, Land Registration Authority, SocialSecurity Commission, Civil Aeronautics Board, Bureau ofPatents, Trademarks and Technology Transfer, National

Electrification Administration, Energy Regulatory Board,National Telecommunications Commission, Departmentof Agrarian Reform under Republic Act No. 6657,Government Service Insurance System, EmployeesCompensation Commission, Agricultural InventionsBoard, Insurance Commission, Philippine Atomic EnergyCommission, Board of Investments, ConstructionIndustry Arbitration Commission, and voluntaryarbitrators authorized by law.(Emphasis supplied)

Indeed, the PRC is not expressly mentioned as one of the agencies which areexpressly enumerated under Section 1, Rule 43 of the Rules of Court. However, itsabsence from the enumeration does not, by this fact alone, imply its exclusion fromthe coverage of said Rule.[35] The Rule expressly provides that it should be appliedto appeals from awards, judgments final orders or resolutions of any quasi-judicialagency in the exercise of its quasi-judicial functions. The phrase among theseagencies confirms that the enumeration made in the Rule is not exclusive to theagencies therein listed.[36]

Specifically, the Court, in Yang v. Court of Appeals,[37] ruledthat Batas Pambansa (B.P.) Blg. 129[38] conferred upon the CAexclusive appellate jurisdiction over appeals from decisions of thePRC. The Court held:

The law has since been changed, however, at leastin the matter of the particular court to which appealsfrom the Commission should be taken. On August 14,1981, Batas Pambansa Bilang 129 became effectiveand in its Section 29, conferred on the Court of Appealsexclusive appellate jurisdiction over all final judgments,decisions, resolutions, orders or awards of Regional TrialCourts and quasi-judicial agencies, instrumentalities,boards or commissions except those falling under theappellate jurisdiction of the Supreme Court. x x x. Invirtue of BP 129, appeals from the ProfessionalRegulations Commission are now exclusivelycognizable by the Court of Appeals.[39] (Emphasissupplied)

Clearly, the enactment of B.P. Blg. 129, the precursor of the present Rules ofCivil Procedure,[40] lodged with the CA such jurisdiction over the appeals ofdecisions made by the PRC.

Anent the substantive merits of the case, petitioner questions thePRC decision for being without an expert testimony to support itsconclusion and to establish the cause of Edithas injury.Petitioneravers that in cases of medical malpractice, expert testimony isnecessary to support the conclusion as to the cause of the injury.[41]

Medical malpractice is a particular form of negligence whichconsists in the failure of a physician or surgeon to apply to hispractice of medicine that degree of care and skill which isordinarily employed by the profession generally, under similarconditions, and in like surrounding circumstances.[42] In order tosuccessfully pursue such a claim, a patient must prove that thephysician or surgeon either failed to do something which areasonably 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 createdwhen Editha employed the services of thepetitioner. As Edithas physician, petitioner was duty-bound to useat least the same level of care that any reasonably competentdoctor would use to treat a condition under the samecircumstances.[45] The breach of these professional duties of skilland care, or their improper performance by a physician surgeon,whereby the patient is injured in body or in health, constitutesactionable malpractice.[46] As to this aspect of medicalmalpractice, the determination of the reasonable level of careand the breach thereof, expert testimony is essential.[47] Further,inasmuch as the causes of the injuries involved in malpracticeactions are determinable only in the light of scientific knowledge,it has been recognized that expert testimony is usually necessaryto support the conclusion as to causation.[48]

In the present case, respondents did not present any experttestimony to support their claim that petitioner failed to dosomething which a reasonably prudent physician or surgeonwould have done.

Petitioner, on the other hand, presented the testimony ofDr. Augusto M. Manalo, who was clearly an expert on the subject.

Generally, to qualify as an expert witness, one must haveacquired special knowledge of the subject matter about which heor she is to testify, either by the study of recognized authoritieson 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 casewas Ectopic Pregnancy Interstitial (also referred to as Cornual),Ruptured.[51] In stating that the D&C procedure was not theproximate cause of the rupture ofEdithas uterus resulting in herhysterectomy, Dr. Manalo testified as follows:

Atty. Hidalgo:

Q: Doctor, we want to be clarified on this matter. Thecomplainant had testified here that the D&C wasthe proximate cause of the rupture of theuterus. The condition which she found herself in onthe second admission. Will you please tell uswhether that is true or not?

A: Yah, I do not think so for two reasons. One, as Ihave said earlier, the instrument cannot reach thesite of the pregnancy, for it to further push thepregnancy outside the uterus. And, No. 2, I wasthinking a while ago about another reason- well,why I dont think so, because it is the triggeringfactor for the rupture, it could havethe rupturecould have occurred much earlier, right after theD&C or a few days after the D&C.

Q: In this particular case, doctor, the rupture occurred tohave happened minutes prior to the hysterectomyor right upon admission on September 15,1994 which is about 1 months after the patientwas discharged, after the D&C wasconducted. Would you tell us whether there is anyrelation at all of the D&C and the rupture in thisparticular instance?

A: I dont think so for the two reasons that I havejust mentioned- that it would not be possiblefor the instrument to reach the site ofpregnancy. And, No. 2, if it is because of the D&Cthat rupture could have occurred earlier.[52] (Emphases supplied)

Clearly, from the testimony of the expert witness and thereasons given by him, it is evident that the D&C procedure wasnot the proximate cause of the rupture of Edithas uterus.

During his cross-examination, Dr. Manalo testified on howhe would have addressed Edithas condition should he be placedin a similar circumstance as the petitioner. He stated:

Atty. Ragonton:

Q: Doctor, as a practicing OB-Gyne, when do youconsider that you have done a good, correct andideal dilatation and curettage procedure?

A: Well, if the patient recovers. If the patient gets well.Because even after the procedure, even after theprocedure you may feel that you have scrapedeverything, the patient stops bleeding, she feelswell, I think you should still have somereservations, and wait a little more time.

Q: If you were the OB-Gyne who performed theprocedure on patient Editha Ramolete, would it beyour standard practice to check the fetal parts orfetal tissues that were allegedly removed?

A: From what I have removed, yes. But in this particularcase, I think it was assumed that it was part of the

meaty mass which was expelled at the time shewas urinating and flushed in the toilet. So theresno way.

Q: There was [sic] some portions of the fetal parts thatwere removed?

A: No, it was described as scanty scraping if I rememberit rightscanty.

Q: And you would not mind checking those scant orthose little parts that were removed?

A: Well, the fact that it was described means, Iassume that it was checked, no. It wasdescribed as scanty and the color also, I think wasdescribed. Because it would be very unusual,even improbable that it would not beexamined, because when you scrape, thespecimens are right there before your eyes.Its in front of you. You can touch it. In fact,some of them will stick to the instrumentand therefore to peel it off from theinstrument, you have to touch them. So,automatically they are examined closely.

Q: As a matter of fact, doctor, you also give telephoneorders to your patients through telephone?

A: Yes, yes, we do that, especially here in Manilabecause you know, sometimes a doctor can alsobe tied-up somewhere and if you have to wait untilhe arrive at a certain place before you give theorder, then it would be a lot of timewasted. Because if you know your patient, if youhave handled your patient, some of the symptomsyou can interpret that comes with practice. And, Isee no reason for not allowing telephoneorders unless it is the first time that you willbe encountering the patient. That you have noidea what the problem is.

Q: But, doctor, do you discharge patients without seeingthem?

A: Sometimes yes, depending on how familiar I am withthe patient. We are on the question of telephoneorders. I am not saying that that is the idle [sic]thing to do, but I think the reality of presentday practice somehow justifies telephoneorders. I have patients whom I have justified andthen all of a sudden, late in the afternoon or late inthe evening, would suddenly call they havedecided that they will go home inasmuch as theyanticipated that I will discharge them the followingday. So, I just call and ask our resident on duty orthe nurse to allow them to go because I have seenthat patient and I think I have full grasp of herproblems. So, thats when I make this telephoneorders. And, of course before giving that order I askabout how she feels.[53] (Emphases supplied)

From the foregoing testimony, it is clear that the D&C procedure wasconducted in accordance with the standard practice, with the same level of care thatany reasonably competent doctor would use to treat a condition under the samecircumstances, and that there was nothing irregular in the way the petitioner dealtwith Editha.

Medical malpractice, in our jurisdiction, is often brought as acivil action for damages under Article 2176[54] of the CivilCode. The defenses in an action for damages, provided for underArticle 2179 of the Civil Code are:

Art. 2179. When the plaintiffs own negligencewas the immediate and proximate cause of hisinjury, he cannot recover damages. But if hisnegligence was only contributory, the immediate andproximate cause of the injury being the defendants lackof due care, the plaintiff may recover damages, but thecourts shall mitigate the damages to be awarded.

Proximate cause has been defined as that which, in natural and continuoussequence, unbroken by any efficient intervening cause, produces injury, and withoutwhich 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 thecase that the act or omission played a substantial part in bringing about or actuallycausing the injury or damage; and that the injury or damage was either a directresult or a reasonably probable consequence of the act or omission.[56]

In the present case, the Court notes the findings of theBoard of Medicine:

When complainant was discharged on July 31, 1994,herein respondent advised her to returnon August 4, 1994 or four (4) days after theD&C. This advise was clear in complainantsDischarge Sheet.However, complainant failed todo so. This being the case, the chain of continuity asrequired in order that the doctrine of proximate causecan be validly invoked was interrupted. Had shereturned, the respondent could have examinedher thoroughly.[57] x x x (Emphases supplied)

Also, in the testimony of Dr. Manalo, he stated further thatassuming that there was in fact a misdiagnosis, the same wouldhave been rectified if Editha followed the petitioners order toreturn for a check-up on August 4, 1994. Dr. Manalo stated:

Granting that the obstetrician-gynecologist hasbeen misled (justifiably) up to thus point thatthere would have been ample opportunity torectify the misdiagnosis, had the patientreturned, as instructed for her follow-upevaluation. It was one and a half months laterthat the patient sought consultation with anotherdoctor. The continued growth of an ectopic pregnancy,until its eventual rupture, is a dynamic process. Muchchange in physical findings could be expected in 1months, including the emergence of suggestive ones.[58]

It is undisputed that Editha did not return for a follow-upevaluation, in defiance of the petitioners advise. Editha omittedthe diligence required by the circumstances which could have

avoided the injury. The omission in not returning for a follow-upevaluation played a substantial part in bringingabout Edithas own injury. Had Editha returned, petitioner couldhave conducted the proper medical tests and procedurenecessary to determine Edithas health condition and applied thecorresponding treatment which could have prevented the ruptureof Edithas uterus. The D&C procedure having been conducted inaccordance with the standard medical practice, it is clearthat Edithas omission was the proximate cause of her own injuryand not merely a contributory negligence on her part.

Contributory negligence is the act or omission amounting towant of ordinary care on the part of the person injured, which,concurring with the defendants negligence, is the proximatecause of the injury.[59] Difficulty seems to be apprehended indeciding which acts of the injured party shall be consideredimmediate causes of the accident.[60] Where the immediate causeof an accident resulting in an injury is the plaintiffs own act, whichcontributed to the principal occurrence as one of its determiningfactors, he cannot recover damages for the injury.[61] Again,based on the evidence presented in the present caseunder review, in which no negligence can be attributed tothe petitioner, the immediate cause of the accidentresulting in Edithas injury was her own omission whenshe did not return for a follow-up check up, in defiance ofpetitioners orders. The immediate cause of Edithas injurywas her own act; thus, she cannot recover damages fromthe injury.

Lastly, petitioner asserts that her right to due process wasviolated because she was never informed by either respondentsor by the PRC that an appeal was pending before the PRC.[62] Petitioner claims that a verification with the records section ofthe PRC revealed that on April 15, 1999, respondents filed aMemorandum on Appeal before the PRC, which did not attach theactual registry receipt but was merely indicated therein.[63]

Respondents, on the other hand avers that if the original registryreceipt was not attached to the Memorandum on Appeal, PRCwould not have entertained the appeal or accepted suchpleading for lack of notice or proof of service on the other party.[64] Also, the registry receipt could not be appended to the copyfurnished to petitioners former counsel, because the registry

receipt was already appended to the original copy of theMemorandum of Appeal filed with PRC.[65]

It is a well-settled rule that when service of notice is an issue, therule is that the person alleging that the notice was served mustprove the fact of service. The burden of proving notice rests uponthe party asserting its existence.[66] In the present case,respondents did not present any proof that petitioner was serveda copy of the Memorandum on Appeal. Thus, respondents werenot able to satisfy the burden of proving that they had in factinformed the petitioner of the appeal proceedings before the PRC.

In EDI-Staffbuilders International, Inc. v. National LaborRelations Commission,[67] in which the National Labor RelationsCommission failed to order the private respondent to furnish thepetitioner a copy of the Appeal Memorandum, the Court held thatsaid failure deprived the petitioner of procedural due processguaranteed by the Constitution, which could have served as basisfor the nullification of the proceedings in the appeal. The sameholds true in the case at bar. The Court finds that the failure ofthe respondents to furnish the petitioner a copy of theMemorandum of Appeal submitted to the PRC constitutes aviolation of due process. Thus, the proceedings before the PRCwere null and void.

All told, doctors are protected by a special rule of law. Theyare not guarantors of care. They are not insurers against mishapsor unusual consequences[68] specially so if the patient herself didnot exercise the proper diligence required to avoid the injury.

WHEREFORE, the petition is GRANTED. The assailedDecision of the Court of Appeals dated July 4, 2003 in CA-GR SPNo. 62206 is hereby REVERSED and SET ASIDE. The Decisionof the Board of Medicine dated March 4, 1999 exoneratingpetitioner is AFFIRMED. No pronouncement as to costs. SOORDERED.

THIRD DIVISION

G.R. No. 142625 December 19, 2006

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.

D E C I S I O N

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 ofmagnesium 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 througha 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 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 ofManila 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 incorrectand 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 noticethe 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 justificationto 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 errorsthat 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 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 anyhand 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) doctorswere 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 borneby the attending physicians under the principle of "respondeat superior".

WHEREFORE, premises considered, judgment is hereby rendered finding defendantDr. 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 Petitionersfiled 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 theircounsels' 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 Hospital27 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 thenegligence 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 thatwhere there is no proof that defendant physician was an employee of defendant hospital or that defendant hospital had reason to know 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.

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

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:

Art. 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible.

x x x x

Employers shall be liable for the damages caused by their employees and householdhelpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.

x x x x

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.

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 anemergency obstetrics case.38

CMC alleges that Dr. Estrada is an independent contractor "for whose actuations CMC wouldbe 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 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 eitheraccept 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 roundsfor 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 acceptableto 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 whetheror 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 admissionat 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 facilities43 when Corazon wasabout 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 isthe "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 whetherthe 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 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 knowledgeof 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."

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 ofan independent-contractor 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 theCivil 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.

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:

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 foreverdischarge 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)

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 CMC-employed 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 asignificant 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 Courtcannot 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. Presentday 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 formsconsist 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 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, shewas 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 Corazonneeded.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 thetime 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 administrationwas introduced. Therefore, there is no basis to hold Nurse Dumlao liable for negligence.

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 CapitolMedical 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.

SO ORDERED.

Quisumbing, J., Chairperson, Carpio Morales, Tinga, and Velasco, Jr., JJ., concur.

G.R. No. 126297 January 31, 2007

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.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

Hospitals, having undertaken one of mankind’s most important and delicate endeavors, mustassume 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 maybe, must meet standards of responsibility commensurate with the undertaking to preserve and protect the health, and indeed, the very lives of those placed in the hospital’s keeping.1

Assailed in these three consolidated petitions for review on certiorari is the Court of Appeals’ Decision2 dated September 6, 1996 in CA-G.R. CV No. 42062 and CA-G.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. Q-43322 and nullifying its Order dated September 21, 1993.

The facts, as culled from the records, are:

On April 4, 1984, Natividad Agana was rushed to the Medical City General Hospital (Medical City Hospital) because of difficulty of bowel movement and bloody anal discharge. After a series of medical examinations, Dr. Miguel Ampil, petitioner in G.R. No. 127590, diagnosed her to be suffering from "cancer of the sigmoid."

On April 11, 1984, Dr. Ampil, assisted by the medical staff4 of the Medical City Hospital, performed an anterior resection surgery on Natividad. He found that the malignancy in her sigmoid area had spread on her left ovary, necessitating the removal of certain portions of it. Thus, Dr. Ampil obtained the consent of Natividad’s husband, Enrique Agana, to permit Dr. Juan Fuentes, respondent in G.R. No. 126467, to perform hysterectomy on her.

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 naturalconsequence of the surgery. Dr. Ampil then recommended that she consult an oncologist to examine the cancerous nodes which were not removed during the operation.

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 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.

Dr. Ampil’s assurance did not come true. Instead, the pains intensified, prompting Natividad to seek treatment at the Polymedic General Hospital. While confined there, Dr. Ramon Gutierrez detected the presence of another foreign object in her vagina -- a foul-smelling gauze measuring 1.5 inches in width which badly infected her vaginal vault. A recto-vaginal fistula had formed in her reproductive organs which forced stool to excrete through the vagina. Another surgical operation was needed to remedy the damage. Thus, in October 1984, Natividad underwent another surgery.

On November 12, 1984, Natividad and her husband filed with the RTC, Branch 96, Quezon City a complaint for damages against the Professional Services, Inc. (PSI), owner of the Medical City Hospital, Dr. Ampil, and Dr. Fuentes, docketed as Civil Case No. Q-43322. Theyalleged that the latter are liable for negligence for leaving two pieces of gauze inside Natividad’s body and malpractice for concealing their acts of negligence.

Meanwhile, Enrique Agana also filed with the Professional Regulation Commission (PRC) anadministrative 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 tothe plaintiffs, jointly and severally, except in respect of the award for exemplary damages andthe interest thereon which are the liabilities of defendants Dr. Ampil and Dr. Fuentes only, as follows:

1. As actual damages, the following amounts:

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

b. The sum of P4,800.00 as travel taxes of plaintiffs and their physician daughter;

c. The total sum of P45,802.50, representing the cost of hospitalization at Polymedic Hospital, medical fees, and cost of the saline solution;

2. As moral damages, the sum of P2,000,000.00;

3. As exemplary damages, the sum of P300,000.00;

4. As attorney’s fees, the sum of P250,000.00;

5. Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove, from date of filing of the complaint until full payment; and

6. Costs of suit.

SO ORDERED.

Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the Court of Appeals, docketed as CA-G.R. CV No. 42062.

Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion for a partial execution of its Decision, which was granted in an Order dated May 11, 1993. Thereafter, the sheriff levied upon certain properties of Dr. Ampil and sold them for P451,275.00 and delivered the amount to the Aganas.

Following their receipt of the money, the Aganas entered into an agreement with PSI and Dr. Fuentes to indefinitely suspend any further execution of the RTC Decision. However, not long thereafter, the Aganas again filed a motion for an alias writ of execution against the properties of PSI and Dr. Fuentes. On September 21, 1993, the RTC granted the motion andissued the corresponding writ, prompting Dr. Fuentes to file with the Court of Appeals a petition for certiorari and prohibition, with prayer for preliminary injunction, docketed as CA-G.R. SP No. 32198. During its pendency, the Court of Appeals issued a Resolution5 dated October 29, 1993 granting Dr. Fuentes’ prayer for injunctive relief.

On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with CA-G.R. CV No. 42062.

Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its 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 Natividad’s body; and that he concealed such fact from Natividad.

On September 6, 1996, the Court of Appeals rendered its Decision jointly disposing of CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198, thus:

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

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 aliaswrit 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 solidarilyliable with Dr. Ampil; and (3) it is not entitled to its counterclaim against the Aganas. PSI contends that Dr. Ampil is not its employee, but a mere consultant or independent contractor.As such, he alone should answer for his negligence.

In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in finding that Dr. Fuentes is not guilty of negligence or medical malpractice, invoking the doctrine of res ipsa loquitur. They contend that the pieces of gauze are prima facie proofs that the operating surgeons have been negligent.

Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals erred in finding him liable for negligence and malpractice sans evidence that he left the two pieces of gauze in Natividad’s vagina. He pointed to other probable causes, such as: (1) it was Dr. Fuentes whoused gauzes in performing the hysterectomy; (2) the attending nurses’ failure to properly count the gauzes used during surgery; and (3) the medical intervention of the American doctors who examined Natividad in the United States of America.

For our resolution are these three vital issues: first, whether the Court of Appeals erred in holding Dr. Ampil liable for negligence and malpractice; second, whether the Court of Appeals erred in absolving Dr. Fuentes of any liability; and third, whether PSI may be held solidarily liable for the negligence of Dr. Ampil.

I - G.R. No. 127590

Whether the Court of Appeals Erred in Holding Dr. Ampil

Liable for Negligence and Malpractice.

Dr. Ampil, in an attempt to absolve himself, gears the Court’s attention to other possible causes of Natividad’s detriment. He argues that the Court should not discount either of the following possibilities: first, Dr. Fuentes left the gauzes in Natividad’s body after performing hysterectomy; second, the attending nurses erred in counting the gauzes; and third, the American doctors were the ones who placed the gauzes in Natividad’s body.

Dr. Ampil’s arguments are purely conjectural and without basis. Records show that he did notpresent any evidence to prove that the American doctors were the ones who put or left the gauzes in Natividad’s body. Neither did he submit evidence to rebut the correctness of the record of operation, particularly the number of gauzes used. As to the alleged negligence of Dr. Fuentes, we are mindful that Dr. Ampil examined his (Dr. Fuentes’) work and found it in order.

The glaring truth is that all the major circumstances, taken together, as specified by the Courtof 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 negligenceby 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 effectthat such act is negligence per se.9

Of course, the Court is not blind to the reality that there are times when danger to a patient’s life precludes a surgeon from further searching missing sponges or foreign objects left in the body. But this does not leave him free from any obligation. Even if it has been shown that a surgeon was required by the urgent necessities of the case to leave a sponge in his patient’sabdomen, 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 patient’s body that should be removedas part of the operation, he thereby leaves his operation uncompleted and creates a new condition which imposes upon him the legal duty of calling the new condition to his patient’s attention, and endeavoring with the means he has at hand to minimize and avoid untoward results likely to ensue therefrom.

Here, Dr. Ampil did not inform Natividad about the missing two pieces of gauze. Worse, he even misled her that the pain she was experiencing was the ordinary consequence of her operation. Had he been more candid, Natividad could have taken the immediate and appropriate medical remedy to remove the gauzes from her body. To our mind, what was initially an act of negligence by Dr. Ampil has ripened into a deliberate wrongful act of deceiving his patient.

This is a clear case of medical malpractice or more appropriately, medical negligence. To successfully pursue this kind of case, a patient must only prove that a health care provider either failed to do something which a reasonably prudent health care provider would have done, or that he did something that a reasonably prudent provider would not have done; and that failure or action caused injury to the patient.11 Simply put, the elements are duty, breach, injury and proximate causation. Dr, Ampil, as the lead surgeon, had the duty to remove all foreign objects, such as gauzes, from Natividad’s body before closure of the incision. When he failed to do so, it was his duty to inform Natividad about it. Dr. Ampil breached both duties.Such breach caused injury to Natividad, necessitating her further examination by American doctors and another surgery. That Dr. Ampil’s negligence is the proximate cause12 of Natividad’s injury could be traced from his act of closing the incision despite the information given by the attending nurses that two pieces of gauze were still missing. That they were later on extracted from Natividad’s vagina established the causal link between Dr. Ampil’s negligence and the injury. And what further aggravated such injury was his deliberate concealment of the missing gauzes from the knowledge of Natividad and her family.

II - G.R. No. 126467

Whether the Court of Appeals Erred in Absolving

Dr. Fuentes of any Liability

The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes on the ground that it is contrary to the doctrine of res ipsa loquitur. According to them, the fact that the two pieces of gauze were left inside Natividad’s body is a prima facie evidence of Dr. Fuentes’ negligence.

We are not convinced.

Literally, res ipsa loquitur means "the thing speaks for itself." It is the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference

or raise a presumption of negligence, or make out a plaintiff’s prima facie case, and present a question of fact for defendant to meet with an explanation.13 Stated differently, where the thing which caused the injury, without the fault of the injured, is under the exclusive control ofthe defendant and the injury is such that it should not have occurred if he, having such control used proper care, it affords reasonable evidence, in the absence of explanation that the injury arose from the defendant’s want of care, and the burden of proof is shifted to him to establish that he has observed due care and diligence.14

From the foregoing statements of the rule, the requisites for the applicability of the doctrine of res ipsa loquitur are: (1) the occurrence of an injury; (2) the thing which caused the injury was under the control and management of the defendant; (3) the occurrence was such that in the ordinary course of things, would not have happened if those who had control or management used proper care; and (4) the absence of explanation by the defendant. Of the foregoing requisites, the most instrumental is the "control and management of the thing which caused the injury."15

We find the element of "control and management of the thing which caused the injury" to be wanting. Hence, the doctrine of res ipsa loquitur will not lie.

It was duly established that Dr. Ampil was the lead surgeon during the operation of Natividad.He requested the assistance of Dr. Fuentes only to perform hysterectomy when he (Dr. Ampil) found that the malignancy in her sigmoid area had spread to her left ovary. Dr. Fuentes performed the surgery and thereafter reported and showed his work to Dr. Ampil. The latter examined it and finding everything to be in order, allowed Dr. Fuentes to leave the operating room. Dr. Ampil then resumed operating on Natividad. He was about to finish the procedure when the attending nurses informed him that two pieces of gauze were missing. A"diligent search" was conducted, but the misplaced gauzes were not found. Dr. Ampil then directed that the incision be closed. During this entire period, Dr. Fuentes was no longer in the operating room and had, in fact, left the hospital.

Under the "Captain of the Ship" rule, the operating surgeon is the person in complete charge of the surgery room and all personnel connected with the operation. Their duty is to obey his orders.16 As stated before, Dr. Ampil was the lead surgeon. In other words, he was the "Captain of the Ship." That he discharged such role is evident from his following conduct: (1) calling Dr. Fuentes to perform a hysterectomy; (2) examining the work of Dr. Fuentes and finding it in order; (3) granting Dr. Fuentes’ permission to leave; and (4) ordering the closure of the incision. To our mind, it was this act of ordering the closure of the incision notwithstanding that two pieces of gauze remained unaccounted for, that caused injury to Natividad’s body. Clearly, the control and management of the thing which caused the injury was in the hands of Dr. Ampil, not Dr. Fuentes.

In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence, does not per se create or constitute an independent or separate ground of liability, being a mere evidentiary rule.17 In other words, mere invocation and application of the doctrine does not dispense with the requirement of proof of negligence. Here, the negligence was proven to have been committed by Dr. Ampil and not by Dr. Fuentes.

III - G.R. No. 126297

Whether PSI Is Liable for the Negligence of Dr. Ampil

The third issue necessitates a glimpse at the historical development of hospitals and the resulting theories concerning their liability for the negligence of physicians.

Until the mid-nineteenth century, hospitals were generally charitable institutions, providing medical services to the lowest classes of society, without regard for a patient’s ability to pay.18 Those who could afford medical treatment were usually treated at home by their doctors.19 However, the days of house calls and philanthropic health care are over. The modern health care industry continues to distance itself from its charitable past and has experienced a significant conversion from a not-for-profit health care to for-profit hospital businesses. Consequently, significant changes in health law have accompanied the business-related changes in the hospital industry. One important legal change is an increase

in hospital liability for medical malpractice. Many courts now allow claims for hospital vicarious liability under the theories of respondeat superior, apparent authority, ostensible authority, or agency by estoppel. 20

In this jurisdiction, the statute governing liability for negligent acts is Article 2176 of the Civil Code, which reads:

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

A derivative of this provision is Article 2180, the rule governing vicarious liability under the doctrine of respondeat superior, thus:

ART. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible.

x x x x x x

The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions.

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks even though the former are not engaged in any business or industry.

x x x x x x

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.

A prominent civilist commented that professionals engaged by an employer, such as physicians, dentists, and pharmacists, are not "employees" under this article because the manner in which they perform their work is not within the control of the latter (employer). In other words, professionals are considered personally liable for the fault or negligence they commit in the discharge of their duties, and their employer cannot be held liable for such fault or negligence. In the context of the present case, "a hospital cannot be held liable for the fault or negligence of a physician or surgeon in the treatment or operation of patients."21

The foregoing view is grounded on the traditional notion that the professional status and the very nature of the physician’s calling preclude him from being classed as an agent or employee of a hospital, whenever he acts in a professional capacity.22 It has been said that medical practice strictly involves highly developed and specialized knowledge,23 such that physicians are generally free to exercise their own skill and judgment in rendering medical services sans interference.24 Hence, when a doctor practices medicine in a hospital setting, the hospital and its employees are deemed to subserve him in his ministrations to the patientand 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 increasinglytaking active role in supplying and regulating medical care to patients. No longer were a hospital’s functions limited to furnishing room, food, facilities for treatment and operation, andattendants 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 patientsfor medical care and treatment, even collecting for such services through legal action, if necessary. The court then concluded that there is no reason to exempt hospitals from the universal rule of respondeat superior.

In our shores, the nature of the relationship between the hospital and the physicians is rendered inconsequential in view of our categorical pronouncement in Ramos v. Court of Appeals28 that for purposes of apportioning responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. This Court held:

"We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private hospitals) of filling up specialist staff with attending and visiting "consultants," who are allegedly not hospital employees, presents problems in apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is more apparent than real.

In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work within the hospital premises. Doctors who apply for ‘consultant’ slots, visiting or attending, are required to submit proof of completion of residency, their educational qualifications, generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references. These requirements are carefully scrutinized by members of the hospital administration or by a review committee set up by the hospital who either accept or reject the application. x x x.

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

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

But the Ramos pronouncement is not our only basis in sustaining PSI’s liability. Its liability is also anchored upon the agency principle of apparent authority or agency by estoppel and thedoctrine of corporate negligence which have gained acceptance in the determination of a hospital’s liability for negligent acts of health professionals. The present case serves as a perfect platform to test the applicability of these doctrines, thus, enriching our jurisprudence.

Apparent authority, or what is sometimes referred to as the "holding

out" theory, or doctrine of ostensible agency or agency by estoppel,29 has its origin from the law of agency. It imposes liability, not as the result of the reality of a contractual relationship, but rather because of the actions of a principal or an employer in somehow misleading the public into believing that the relationship or the authority exists.30 The concept is essentially one of estoppel and has been explained in this manner:

"The principal is bound by the acts of his agent with the apparent authority which he knowingly permits the agent to assume, or which he holds the agent out to the public as possessing. The question in every case is whether the principal has by his voluntary act placed the agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that suchagent has authority to perform the particular act in question.31

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

Our jurisdiction recognizes the concept of an agency by implication or estoppel. Article 1869 of the Civil Code reads:

ART. 1869. Agency may be express, or implied from the acts of the principal, from his silenceor lack of action, or his failure to repudiate the agency, knowing that another person is acting on his behalf without authority.

In this case, PSI publicly displays in the lobby of the Medical City Hospital the names and specializations of the physicians associated or accredited by it, including those of Dr. Ampil and Dr. Fuentes. We concur with the Court of Appeals’ conclusion that it "is now estopped from passing all the blame to the physicians whose names it proudly paraded in the public directory leading the public to believe that it vouched for their skill and competence." Indeed, PSI’s act is tantamount to holding out to the public that Medical City Hospital, through its accredited physicians, offers quality health care services. By accrediting Dr. Ampil and Dr. Fuentes and publicly advertising their qualifications, the hospital created the impression that they were its agents, authorized to perform medical or surgical services for its patients. As expected, these patients, Natividad being one of them, accepted the services on the reasonable belief that such were being rendered by the hospital or its employees, agents, or servants. The trial court correctly pointed out:

x x x regardless of the education and status in life of the patient, he ought not be burdened with the defense of absence of employer-employee relationship between the hospital and theindependent physician whose name and competence are certainly certified to the general public by the hospital’s act of listing him and his specialty in its lobby directory, as in the caseherein. The high costs of today’s medical and health care should at least exact on the hospital greater, if not broader, legal responsibility for the conduct of treatment and surgery within its facility by its accredited physician or surgeon, regardless of whether he is independent or employed."33

The wisdom of the foregoing ratiocination is easy to discern. Corporate entities, like PSI, are capable of acting only through other individuals, such as physicians. If these accredited physicians do their job well, the hospital succeeds in its mission of offering quality medical services and thus profits financially. Logically, where negligence mars the quality of its services, the hospital should not be allowed to escape liability for the acts of its ostensible agents.

We now proceed to the doctrine of corporate negligence or corporate responsibility.

One allegation in the complaint in Civil Case No. Q-43332 for negligence and malpractice is that PSI as owner, operator and manager of Medical City Hospital, "did not perform the necessary supervision nor exercise diligent efforts in the supervision of Drs. Ampil and Fuentes and its nursing staff, resident doctors, and medical interns who assisted Drs. Ampil and Fuentes in the performance of their duties as surgeons."34 Premised on the doctrine of corporate negligence, the trial court held that PSI is directly liable for such breach of duty.

We agree with the trial court.

Recent years have seen the doctrine of corporate negligence as the judicial answer to the problem of allocating hospital’s liability for the negligent acts of health practitioners, absent facts to support the application of respondeat superior or apparent authority. Its formulation proceeds from the judiciary’s acknowledgment that in these modern times, the duty of providing quality medical service is no longer the sole prerogative and responsibility of the physician. The modern hospitals have changed structure. Hospitals now tend to organize a highly professional medical staff whose competence and performance need to be monitored by the hospitals commensurate with their inherent responsibility to provide quality medical care.35

The doctrine has its genesis in Darling v. Charleston Community Hospital.36 There, the Supreme Court of Illinois held that "the jury could have found a hospital negligent, inter alia, in failing to have a sufficient number of trained nurses attending the patient; failing to require a consultation with or examination by members of the hospital staff; and failing to review the treatment rendered to the patient." On the basis of Darling, other jurisdictions held that a hospital’s corporate negligence extends to permitting a physician known to be incompetent topractice 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 propersupervision of the members of its medical staff. And in Bost v. Riley,40 the court concluded that a patient who enters a hospital does so with the reasonable expectation that it will attempt to cure him. The hospital accordingly has the duty to make a reasonable effort to monitor and oversee the treatment prescribed and administered by the physicians practicing in its premises.

In the present case, it was duly established that PSI operates the Medical City Hospital for the purpose and under the concept of providing comprehensive medical services to the public. Accordingly, it has the duty to exercise reasonable care to protect from harm all patients admitted into its facility for medical treatment. Unfortunately, PSI failed to perform such duty. The findings of the trial court are convincing, thus:

x x x PSI’s liability is traceable to its failure to conduct an investigation of the matter reported in the nota bene of the count nurse. Such failure established PSI’s part in the dark conspiracy of silence and concealment about the gauzes. Ethical considerations, if not also legal, dictated the holding of an immediate inquiry into the events, if not for the benefit of the patient to whom the duty is primarily owed, then in the interest of arriving at the truth. The Court cannot accept that the medical and the healing professions, through their members like defendant surgeons, and their institutions like PSI’s hospital facility, can callously turn their backs on and disregard even a mere probability of mistake or negligence by refusing or failing to investigate a report of such seriousness as the one in Natividad’s case.

It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad with the assistance of the Medical City Hospital’s staff, composed of resident doctors, nurses, and interns. As such, it is reasonable to conclude that PSI, as the operator of the hospital, has actual or constructive knowledge of the procedures carried out, particularly the report of the attending nurses that the two pieces of gauze were missing. In Fridena v. Evans,41 it was held that a corporation is bound by the knowledge acquired by or notice given to its agents or officers within the scope of their authority and in reference to a matter to which their authority extends. This means that the knowledge of any of the staff of Medical City Hospital constitutes knowledge of PSI. Now, the failure of PSI, despite the attending nurses’ report, toinvestigate and inform Natividad regarding the missing gauzes amounts to callous negligence. Not only did PSI breach its duties to oversee or supervise all persons who practice medicine within its walls, it also failed to take an active step in fixing the negligence committed. This renders PSI, not only vicariously liable for the negligence of Dr. Ampil under Article 2180 of the Civil Code, but also directly liable for its own negligence under Article 2176. In Fridena, the Supreme Court of Arizona held:

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

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

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

x x x x x x

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

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

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

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

Costs against petitioners PSI and Dr. Miguel Ampil.

SO ORDERED.

G.R. No. 124354 December 29, 1999

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

KAPUNAN, J.:

The Hippocratic Oath mandates physicians to give primordial consideration to the health andwelfare of their patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A mistake, through gross negligence or incompetence or plain human error, may spell the difference between life and death. In this sense, the doctor plays God on his patient's fate. 1

In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital should be made liable for the unfortunate comatose condition of a patient scheduled for cholecystectomy. 2

Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29 May 1995, which overturned the decision 4 of the Regional Trial Court, dated 30 January 1992, finding private respondents liable for damages arising from negligence in the performance of their professional duties towards petitioner Erlinda Ramos resulting in her comatose condition.

The antecedent facts as summarized by the trial court are reproduced hereunder:

Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. "A") robust woman (TSN, October 19, 1989, p. 10). Except for occasional complaints of discomfort due to pains allegedly caused by the presence of a stone in her gall bladder (TSN, January 13, 1988, pp. 4-5), shewas 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 therooms 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 requestfor Herminda to be with her even during the operation. After praying, she wasgiven 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. Gutierrezthereafter 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 nainip 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 withthe 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 intubatethe 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 intrendelenburg position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. ofthat 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 fiveminutes (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 atbar, 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 toplaintiff-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 defendantsshould have rescheduled the operation to a later date. This, they should havedone, 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 topay, 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 appellatecourt 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 on7 August 1995 a motion to admit the motion for reconsideration contending that the period to file the appropriate pleading on the assailed decision had not yet commenced to run as the Division Clerk of Court of the Court of Appeals had not yet served a copy thereof to the counsel on record.Despite this explanation, the appellate court still denied the motion to admit the motion for reconsideration of petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day (15) period for filing a motion for reconsideration had already expired, to wit:

We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration cannot be extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, on the other hand, admitted in the latter Motion that plaintiffs/appellees received a copy of the decision as early as June 9, 1995. Computation wise, the period to file a Motion for Reconsideration expired on June 24. The Motion for Reconsideration, in turn,was received by the Court of Appeals already on July 4, necessarily, the 15-day period already passed. For that alone, the latter should be denied.

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

SO ORDERED. 10

A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12 April 1996, Atty. Sillano filed before this Court a motion for extension of time to file the present petition for certiorari under Rule 45. The Court granted the motion for extension of time and gave petitioners additional thirty (30) days after the expiration of the fifteen-day (15) period counted from the receipt of the resolution of the Court of Appeals within which to submit the petition. The due date fell on 27 May 1996. The petition was filed on 9 May 1996, well within the extended period given by the Court.

Petitioners assail the decision of the Court of Appeals on the following grounds:

I

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA. GUTIERREZ, DRA. CALDERON AND DR. JAMORA;

II

IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE UNFORTUNATE COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;

III

IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11

Before we discuss the merits of the case, we shall first dispose of the procedural issue on the timeliness of the petition in relation to the motion for reconsideration filed by petitioners with the Court of Appeals. In their Comment, 12 private respondents contend that the petition should not be given due course since the motion for reconsideration of the petitioners on the decision of the Court of Appeals was validly dismissed by the appellate court for having been filed beyond the reglementary period. Wedo 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 notsent 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 Ramoson 9 June 1995 wherein he was mistakenly addressed as Atty. Rogelio Ramos. Based on theother communications received by petitioner Rogelio Ramos, the appellate court apparently mistook him for the counsel on record. Thus, no copy of the decision of the counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive period for filing a motion for reconsideration, referred the same to a legal counsel only on 20 June 1995.

It is elementary that when a party is represented by counsel, all notices should be sent to theparty'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 aquestion of fact for defendant to meet with an explanation. 13 Where the thing which caused theinjury 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, itis 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 alongwith 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 ajudicial 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 ofexpert 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 wouldnot have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it

occurred. 31 When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of the patient after an operation, 32 injuries sustained on a healthy part of the body which was not under, or in the area, of treatment, 33 removal of the wrong part of the body when another part was intended, 34 knocking out a tooth while a patient's jaw was under anesthetic for the removal of his tonsils, 35 and loss of an eye while the patient plaintiff was under the influence of anesthetic, during or following an operation for appendicitis, 36 among others.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to the defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. 37 A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific treatment. 38 The physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result. 39 Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that the desired result of an operation or treatment was not accomplished. 40 The real question, therefore, is whether or notin 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 thecircumstances 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, aperson 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 resipsa 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 hospitalin 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 caseis 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 DeanHerminda 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 knowledgeablein the process of intubation. In so holding, the appellate court returned a verdict in favor of respondents physicians and hospital and absolved them of any liability towards Erlinda and her family.

We disagree with the findings of the Court of Appeals. We hold that private respondents were unable to disprove the presumption of negligence on their part in the care of Erlinda and their negligence was the proximate cause of her piteous condition.

In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the pathogenesis of the injury but also in providing the Court the legal nexus upon which liability is based. As will be shown hereinafter, private respondents' own testimonies which are reflected in the transcript of stenographic notes are replete of signposts indicative of their negligence in the care and management of Erlinda.

With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia phase. As borne by the records, respondent Dra. Gutierrez failed to properly intubate the patient. This fact was attested to by Prof. Herminda Cruz, Dean of the Capitol Medical Center School of Nursing and petitioner's sister-in-law, who was in the operating room right beside the patient when the tragic event occurred. Witness Cruz testified to this effect:

ATTY. PAJARES:

Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?

A: In particular, I could see that she was intubating the patient.

Q: Do you know what happened to that intubation process administered by Dra. Gutierrez?

ATTY. ALCERA:

She will be incompetent Your Honor.

COURT:

Witness may answer if she knows.

A: As have said, I was with the patient, I was beside the stretcher holding the left hand of the patient and all of a sudden heard some remarks coming from Dra. Perfecta Gutierrez herself. She was saying "Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.

xxx xxx xxx

ATTY. PAJARES:

Q: From whom did you hear those words "lumalaki ang tiyan"?

A: From Dra. Perfecta Gutierrez.

xxx xxx xxx

Q: After hearing the phrase "lumalaki ang tiyan," what did younotice on the person of the patient?

A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I was at.

Q: Where was Dr. Orlino Ho[s]aka then at that particular time?

A: I saw him approaching the patient during that time.

Q: When he approached the patient, what did he do, if any?

A: He made an order to call on the anesthesiologist in the person of Dr. Calderon.

Q: Did Dr. Calderon, upon being called, arrive inside the operating room?

A: Yes sir.

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

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

Q: What happened to the patient?

A: When Dr. Calderon try (sic) to intubate the patient, after a while the patient's nailbed became bluish and I saw the patient was placed in trendelenburg position.

xxx xxx xxx

Q: Do you know the reason why the patient was placed in thattrendelenburg position?

A: As far as I know, when a patient is in that position, there is a decrease of blood supply to the brain. 46

xxx xxx xxx

The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:

A perusal of the standard nursing curriculum in our country will show that intubation is not taught as part of nursing procedures and techniques. Indeed, we take judicial notice of the fact that nurses do not, and cannot, intubate. Even on the assumption that she is fully capable of determining whether or not a patient is properly intubated, witness Herminda Cruz, admittedly, did not peep into the throat of the patient. (TSN, July 25, 1991, p. 13). More importantly, there is no evidence that she ever auscultated the patient or that she conducted any type of examination to check if the endotracheal tube was in its proper place, and to determine the condition of the heart, lungs, and other organs. Thus, witness Cruz's categorical statements that appellant Dra. Gutierrez failed to intubate the appellee Erlinda Ramos and that it was Dra. Calderon who succeeded in doing so clearly suffer from lack of sufficient factual bases. 47

In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a layman in the process of intubation, witness Cruz is not competent to testify on whether or not the intubation was a success.

We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an anesthesiologist, she can very well testify upon matters on which she is capable of observing such as, the statements and acts of the physician and surgeon, external appearances, and manifest conditions which are observable by any one. 48 This is precisely allowed under the doctrine of res ipsa loquitur where the testimony of expert witnesses is not required. It is the accepted rule that expert testimony is not necessary for the proof of negligence in non-technical matters or those of which an ordinary person may be expected to have knowledge, or where the lack of skill or want of care is so obvious as to render expert testimony unnecessary. 49 We take judicial notice of the fact that anesthesia procedures have become so common, that even an ordinary person can tell if it was administered properly. As such, it would not be too difficult to tell if the tube was properly inserted. This kind of observation, we believe, does not require a medical degree to be acceptable.

At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience and scholarship led to her appointment as Dean of the Capitol Medical Center School at Nursing, was fully capable of determining whether or not the intubation was a success. She had extensive clinical experience starting as a staff nurse in Chicago, Illinois; staff nurse and clinical instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna College of Nursing in San Pablo City; and then Dean of the Capitol Medical Center School ofNursing. 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 waspositioned 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 ofErlinda's airway, prior to the induction of anesthesia, even if this would mean postponing the procedure. From their testimonies, it appears that the observation was made only as an afterthought, as a means of defense.

The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed to lessen the possibility of anesthetic accidents. Pre-operative evaluation and preparation for anesthesia begins when the anesthesiologist reviews the patient's medical records and visits with the patient, traditionally, the day before elective surgery. 53 It includes taking the patient's medical history, review of current drug therapy, physical examination and interpretation of laboratory data. 54 The physical examination performed by the anesthesiologist is directed primarily toward the central nervous system, cardiovascular system, lungs and upper airway. 55 A thorough analysis of the patient's airway normally involves investigating the following: cervical spine mobility, temporomandibular mobility, prominent central incisors, diseased or artificial teeth, ability to visualize uvula and the thyromental distance. 56 Thus, physical characteristics of the patient's upper airway that could make tracheal intubation difficult should be studied. 57 Where the need arises, as when initial assessment indicates possible problems (such as the alleged short neck and protruding teeth of Erlinda) a thorough examination of the patient's airway would go a long way towards decreasing patient morbidity and mortality.

In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the operation itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative evaluation of Erlinda was done by her. Until the day of the operation, respondent Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda. She was likewise not properly informed of the possible difficulties she would face during the administration of anesthesia to Erlinda. Respondent Dra. Gutierrez' act of seeing her patient for the first time only an hour before the scheduled operative procedure was, therefore, an act of exceptional negligence and professional irresponsibility. The measures cautioning prudence and vigilance in dealing with human lives lie at the core of the physician's centuries-old Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of her negligence.

Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the trial court's ignorance of clinical procedure, hoping that she could get away with it. Respondent Dra. Gutierrez tried to muddle the difference between an elective surgery and an emergency surgery just so her failure to perform the required 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 trustand 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 timeavailable 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 dateof 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 theyhave to intubate our patient.

Q: But not in particular when you practice pulmonology?

A: No.

Q: In other words, your knowledge about pentothal is based only on what you have read from books and not by your own personal application of the medicine pentothal?

A: Based on my personal experience also on pentothal.

Q: How many times have you used pentothal?

A: They used it on me. I went into bronchospasm during my appendectomy.

Q: And because they have used it on you and on account of your own personal experience you feel that you can testify on pentothal here with medical authority?

A: No. That is why I used references to support my claims. 61

An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy belongs to the field of neurology. While admittedly, many bronchospastic-mediated pulmonary diseases are within the expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic drug-induced, allergic mediated bronchospasm alleged in this case is within the disciplines of anesthesiology, allergology and pharmacology.On the basis of the foregoing transcript, in which the pulmonologist himself admitted that he could not testify about the drug with medical authority, it is clear that the appellate court erredin giving weight to Dr. Jamora's testimony as an expert in the administration of Thiopental Sodium.

The provision in the rules of evidence 62 regarding expert witnesses states:

Sec. 49. Opinion of expert witness. — The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown topossess, 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 specialistin the wrong field, private respondents' intentionally avoided providing testimony by competent and independent experts in the proper areas.

Moreover, private respondents' theory, that Thiopental Sodium may have produced Erlinda's coma by triggering an allergic mediated response, has no support in evidence. No evidence of stridor, skin reactions, or wheezing — some of the more common accompanying signs of an allergic reaction — appears on record. No laboratory data were ever presented to the court.

In any case, private respondents themselves admit that Thiopental induced, allergic-mediated bronchospasm happens only very rarely. If courts were to accept private respondents' hypothesis without supporting medical proof, and against the weight of available evidence, then every anesthetic accident would be an act of God. Evidently, the Thiopental-allergy theory vigorously asserted by private respondents was a mere afterthought. Such an explanation was advanced in order to advanced in order to absolve them of any and all responsibility for the patient's condition.

In view of the evidence at hand, we are inclined to believe petitioners' stand that it was the faulty intubation which was the proximate cause of Erlinda's comatose condition.

Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred. 64 An injury or damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission. 65 It is the dominant, moving or producing cause.

Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the proximate cause which triggered the chain of events leading to Erlinda's braindamage 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. Thedevelopment of abdominal distention, together with respiratory embarrassment indicates thatthe 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. Evengranting 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 intubationsmay 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 otherwords, 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 toit 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 controlexercised, 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 isfound 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 relationshipof patria potestas. 77 Such responsibility ceases when the persons or entity concerned prove thatthey 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 agood 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 hospicespecializing 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 tobe 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 thecare 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 anadequate 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 injurysuffered by the plaintiff would have led to expenses which were difficult to estimate because whilethey would have been a direct result of the injury (amputation), and were certain to be incurred bythe 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 artprosthetic 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. 84The husband and the children, all petitioners in this case, will have to live with the day to day uncertainty of the patient'sillness, 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 careof 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.

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

G.R. No. 167366 September 26, 2012

DR. PEDRO DENNIS CERENO, and DR. SANTOS ZAFE, Petitioners, vs.COURT OF APPEALS, SPOUSES DIOGENES S. OLAVERE and FE R. SERRANO, Respondents.

D E C I S I O N

PEREZ, J.:

Before the Court is a Petition for Review on Certiorari 1 under Rule 45 of the Rules of Court seeking 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 Raymond—the spouses Deogenes Olavere (Deogenes) and FeR. 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 wasthe 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 latter’s 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 Raymond’s 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.

Raymond’s 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;

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 attorney’s fees; and

5. Cost of suit.9

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 havebeen 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 ATTORNEY’S 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 graveabuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findingsof 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, Wefind 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 redressa 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 mostcases 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.

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 theformer’s realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating, hence, the indispensability of expert testimonies.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 performthe 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 anesthesiologistcould 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 tocall 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 standbyanesthesiologist?

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 hospital’s 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 anesthesiologistsrests 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.

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.

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.

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 latter’s 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 200-300 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. Tatad’s, on which it may be inferred that petitioners failed to exercise the standard of care, diligence, learning and skillexpected from practitioners of their profession. Dr. Tatad, however, is an expert neither in thefield of surgery nor of surgical practices and diagnoses. Her expertise is in the administrationof 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:

Q: In this case of Raymond Olavere was blood transfused to him while he was inside the operating room?

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

x x x x

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?

x x x x

A: 9:30.

x x x x

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.

x x x x

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.

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?

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

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 11:15P.M., the 500 cc of blood was given to Dr. Realuyo by Raymond’s 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.

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.

Second, Dr. Cereno, in his unchallenged testimony, aptly explained the apparent delay in thetransfusion of blood on Raymond before and during the operation.

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: 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.

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

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 latter’s 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?

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 bloodand there is no more bleeding…

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

A: The evacuation did not take 45 minutes.

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.

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 onthe 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 Raymond’s 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 Raymond’s 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 son’s death. 1âwphi1 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 Peñafrancia 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 wasnot 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.

SO ORDERED.

DR. EMMANUEL JARCIA,JR.and DR. MARILOUBASTAN,

Petitioners,

- versus -

PEOPLE OF THEPHILIPPINES,

G.R. No. 187926

Present:

CARPIO,* J.,

PERALTA,** Acting Chairperson,

ABAD,

PEREZ,*** and

MENDOZA, JJ.

Promulgated:

February 15, 2012

Respondent.

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

D E C I S I O N

MENDOZA, J.:

Even early on, patients have consigned theirlives to the skill of their doctors. Time and again, itcan be said that the most important goal of themedical profession is the preservation of life andhealth of the people. Corollarily, when a physiciandeparts from his sacred duty and endangersinstead the life of his patient, he must be madeliable for the resulting injury. This Court, as thiscase would show, cannot and will not let the act gounpunished.[1]

This is a petition for review under Rule 45 of the Rulesof Court challenging the August 29, 2008 Decision[2] of theCourt of Appeals (CA), and its May 19, 2009 Resolution[3] inCA-G.R. CR No. 29559, dismissing the appeal and affirming intoto the June 14, 2005 Decision[4] of the Regional Trial Court,Branch 43, Manila (RTC), finding the accused guilty beyondreasonable doubt of simple imprudence resulting to seriousphysical injuries.

THE FACTS

Belinda Santiago (Mrs. Santiago) lodged a complaintwith the National Bureau of Investigation (NBI) against thepetitioners, Dr. Emmanuel Jarcia, Jr. (Dr. Jarcia) and Dr.Marilou Bastan (Dr. Bastan), for their alleged neglect ofprofessional duty which caused her son, Roy AlfonsoSantiago (Roy Jr.), to suffer serious physical injuries. Uponinvestigation, the NBI found that Roy Jr. was hit by a taxicab;that he was rushed to the Manila Doctors Hospital for anemergency medical treatment; that an X-ray of the victimsankle was ordered; that the X-ray result showed no fractureas read by Dr. Jarcia; that Dr. Bastan entered the emergencyroom (ER) and, after conducting her own examination of thevictim, informed Mrs. Santiago that since it was only theankle that was hit, there was no need to examine the upperleg; 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 thatthe X-ray revealed a right mid-tibial fracture and a linearhairline fracture in the shaft of the bone.

The NBI indorsed the matter to the Office of the CityProsecutor of Manila for preliminary investigation. Probablecause was found and a criminal case for reckless imprudenceresulting 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 GUILTYbeyond reasonable doubt of the crime of SIMPLE IMPRUDENCERESULTING TO SERIOUS PHYSICAL INJURIES and are herebysentenced to suffer the penalty of ONE (1) MONTH and ONE (1)DAY to TWO (2) MONTHS and to indemnify MRS. BELINDASANTIAGO the amount of ₱3,850.00 representing medical expenseswithout subsidiary imprisonment in case of insolvency and to pay thecosts.

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 bereinstated upon her apprehension.

SO ORDERED.[6]

The RTC explained:

After a thorough and in depth evaluation of theevidence adduced by the prosecution and the defense, thiscourt finds that the evidence of the prosecution is the morecredible, concrete and sufficient to create that moralcertainty in the mind of the Court that accused herein [are]criminally responsible. The Court believes that accused arenegligent when both failed to exercise the necessary andreasonable prudence in ascertaining the extent of injury ofAlfonso Santiago, Jr.

However, the negligence exhibited by the two doctors doesnot approximate negligence of a reckless nature but merelyamounts to simple imprudence. Simple imprudence consistsin the lack of precaution displayed in those cases in whichthe damage impending to be caused is not the immediatenor the danger clearly manifest. The elements of simpleimprudence are as follows.

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

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

Considering all the evidence on record, The Courtfinds the accused guilty for simple imprudence resulting tophysical injuries. Under Article 365 of the Revised PenalCode, the penalty provided for is arresto mayor in itsminimum 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 convictionagainst the accused-appellants for the crime of simpleimprudence resulting in serious physical injuries. Theelements of imprudence are: (1) that the offender does orfails to do an act; (2) that the doing or the failure to do thatact is voluntary; (3) that it be without malice; (4) thatmaterial damage results from the imprudence; and (5) thatthere is inexcusable lack of precaution on the part of theoffender, taking into consideration his employment oroccupation, degree of intelligence, physical condition, andother circumstances regarding persons, time and place.

Whether or not Dr. Jarcia and Dr. Bastan had committed aninexcusable lack of precaution in the treatment of theirpatient is to be determined according to the standard of careobserved by other members of the profession in goodstanding under similar circumstances, bearing in mind theadvanced state of the profession at the time of treatment orthe present state of medical science. In the case of LeonilaGarcia-Rueda v. Pascasio, the Supreme Court stated that, inaccepting a case, a doctor in effect represents that, havingthe needed training and skill possessed by physicians andsurgeons practicing in the same field, he will employ suchtraining, care and skill in the treatment of his patients. Hetherefore has a duty to use at least the same level of carethat any other reasonably competent doctor would use totreat a condition under the same circumstances.

In litigations involving medical negligence, the plaintiff hasthe burden of establishing accused-appellants negligence,and for a reasonable conclusion of negligence, there must beproof of breach of duty on the part of the physician as wellas a causal connection of such breach and the resultinginjury of his patient. The connection between the negligenceand the injury must be a direct and natural sequence ofevents, unbroken by intervening efficient causes. In otherwords, the negligence must be the proximate cause of theinjury. Negligence, no matter in what it consists, cannotcreate a right of action unless it is the proximate cause of the

injury complained of. The proximate cause of an injury isthat cause which, in natural and continuous sequence,unbroken by any efficient intervening cause, produces theinjury and without which the result would not haveoccurred.

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

We are not convinced.

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

For a more logical presentation of the discussion, we shallfirst consider the applicability of the doctrine of res ipsaloquitur to the instant case. Res ipsa loquitur is a Latinphrase which literally means the thing or the transactionspeaks for itself. The doctrine of res ipsa loquitur is simply arecognition of the postulate that, as a matter of commonknowledge and experience, the very nature of certain typesof occurrences may justify an inference of negligence on thepart of the person who controls the instrumentality causingthe injury in the absence of some explanation by theaccused-appellant who is charged with negligence. It isgrounded in the superior logic of ordinary humanexperience and, on the basis of such experience or commonknowledge, negligence may be deduced from the mereoccurrence of the accident itself. Hence, res ipsa loquitur isapplied in conjunction with the doctrine of commonknowledge.

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

Fiscal Formoso:

Q: Now, he is an intern did you not consult thedoctors, Dr. Jarcia or Dra. Pamittan toconfirm whether you should go home ornot?

A: Dra. Pamittan was inside the cubicle of thenurses and I asked her, you let us gohome and you dont even clean thewounds of my son.

Q: And what did she [tell] you?

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

x x x x x x x x x

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 bedone?

A: Yes, sir.

Q: What did you [tell] her?

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

Q: And what did she tell you?

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

Q: What did you do or tell her?

A: I told her, sir, why is it that they did notexamine[x] the whole leg. They just liftedthe pants of my son.

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

A: None, sir.

x x x x x x x x x

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

x x x x x x x x x

Q: And you were present when they werecalled?

A: Yes, sir.

Q: And what was discussed then bySis. Retoria?

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

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

1. The accident is of a kind which ordinarilydoes not occur in the absence of someonesnegligence;

2. It is caused by an instrumentality within theexclusive control of the defendant ordefendants; and

3. The possibility of contributing conduct whichwould make the plaintiff responsible iseliminated.

In the above requisites, the fundamental element is thecontrol of the instrumentality which caused thedamage. Such element of control must be shown to bewithin the dominion of the accused-appellants. In order tohave the benefit of the rule, a plaintiff, in addition toproving injury or damage, must show a situation where it isapplicable and must establish that the essential elements ofthe doctrine were present in a particular incident. The earlytreatment of the leg of Roy would have lessen his suffering ifnot entirely relieve him from the fracture. A boy of tenderage whose leg was hit by a vehicle would engender a well-founded belief that his condition may worsen withoutproper medical attention. As junior residents who onlypractice general surgery and without specialization with thecase consulted before them, they should have referred thematter to a specialist. This omission alone constitutessimple imprudence on their part. When Mrs. Santiagoinsisted on having another x-ray of her child on the upperpart of his leg, they refused to do so. The mother would nothave asked them if they had no exclusive control orprerogative to request an x-ray test. Such is a fact because aradiologist would only conduct the x-ray test upon requestof a physician.

The testimony of Mrs. Santiago was corroborated by a bonespecialist Dr. Tacata. He further testified based on hispersonal knowledge, and not as an expert, as he examinedhimself the child Roy. He testified as follows:

Fiscal Macapagal:

Q: And was that the correct respon[se] to themedical problem that was presented toDr. Jarcia and Dra. Bastan?

A: I would say at that stage, yes. Because theyhave presented the patient and thehistory. At sabi nila, nadaanan lang poito. And then, considering their year ofresidency they are still junior residents,

and they are not also orthopedic residentsbut general surgery residents, its entirelydifferent thing. Because if you are anorthopedic resident, I am not trying tosaybut if I were an orthopedic resident,there would be more precise and accuratedecision compare to a general surgeryresident in so far as involved.

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

A: At the emergency room, at the ManilaDoctors Hospital, the supervisor there is aconsultant that usually comes from afamily medicine. They see where a certainpatient have to go and then if they cannotmanage it, they refer it to the consultanton duty. Now at that time, I dont [know]why they dont.Because at that time, Ithink, it is the decision. Since the x-rays.

Ordinarily, only physicians and surgeons of skill andexperience are competent to testify as to whether a patienthas been treated or operated upon with a reasonable degreeof skill and care. However, testimony as to the statementsand acts of physicians, external appearances, and manifestconditions which are observable by any one may be given bynon-expert witnesses. Hence, in cases where the res ipsaloquitur is applicable, the court is permitted to find aphysician negligent upon proper proof of injury to thepatient, without the aid of expert testimony, where the courtfrom its fund of common knowledge can determine theproper standard of care. Where common knowledge andexperience teach that a resulting injury would not haveoccurred to the patient if due care had been exercised, aninference of negligence may be drawn giving rise to anapplication of the doctrine of res ipsa loquitur withoutmedical evidence, which is ordinarily required to show notonly what occurred but how and why it occurred. In the caseat bench, we give credence to the testimony of Mrs. Santiagoby applying the doctrine of res ipsa loquitur.

Res ipsa loquitur is not a rigid or ordinary doctrine to beperfunctorily used but a rule to be cautiously applied,

depending upon the circumstances of each case. It isgenerally restricted to situations in malpractice cases wherea layman is able to say, as a matter of common knowledgeand observation, that the consequences of professional carewere not as such as would ordinarily have followed if duecare had been exercised. A distinction must be madebetween the failure to secure results and the occurrence ofsomething more unusual and not ordinarily found if theservice or treatment rendered followed the usual procedureof those skilled in that particular practice. The lattercircumstance is the primordial issue that confronted thisCourt and we find application of the doctrine of res ipsaloquitur to be in order.

WHEREFORE, in view of the foregoing, the appeal in thiscase is hereby DISMISSED and the assailed decision of thetrial court finding accused-appellants guilty beyondreasonable doubt of simple imprudence resulting in seriousphysical 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 followingGROUNDS-

1. IN AFFIRMING ACCUSED-PETITIONERS

CONVICTION, THE COURT OF APPEALS ERRED IN NOTHOLDING THAT THE ACTUAL, DIRECT, IMMEDIATE, ANDPROXIMATE CAUSE OF THE PHYSICAL INJURY OF THEPATIENT (FRACTURE OF THE LEG BONE OR TIBIA), WHICHREQUIRED MEDICAL ATTENDANCE FOR MORE THANTHIRTY (30) DAYS AND INCAPACITATED HIM FROMPERFORMING HIS CUSTOMARY DUTY DURING THE SAMEPERIOD OF TIME, WAS THE VEHICULAR ACCIDENT WHERETHE PATIENTS RIGHT LEG WAS HIT BY A TAXI, NOT THEFAILURE OF THE ACCUSED-PETITIONERS TO SUBJECT THEPATIENTS WHOLE LEG TO AN X-RAY EXAMINATION.

2. THE COURT OF APPEALS ERRED INDISREGARDING ESTABLISHED FACTS CLEARLY NEGATINGPETITIONERS ALLEGED NEGLIGENCE OR IMPRUDENCE.SIGNIFICANTLY, THE COURT OF APPEALS UNJUSTIFIABLYDISREGARDED THE OPINION OF THE PROSECUTIONSEXPERT WITNESS, DR. CIRILO TACATA, THAT PETITIONERSWERE NOT GUILTY OF NEGLIGENCE OR IMPRUDENCECOMPLAINED OF.

3. THE COURT OF APPEALS ERRED IN HOLDING

THAT THE FAILURE OF PETITIONERS TO SUBJECT THEPATIENTS WHOLE LEG TO AN X-RAY EXAMINATIONPROLONGED THE PAIN AND SUFFERING OF THE PATIENT,SUCH CONCLUSION BEING UNSUPPORTED BY, AND EVENCONTRARY TO, THE EVIDENCE ON RECORD.

4. ASSUMING ARGUENDO THAT THE PATIENT

EXPERIENCED PROLONGED PAIN AND SUFFERING, THECOURT OF APPEALS ERRED IN NOT HOLDING THAT THEALLEGED PAIN AND SUFFERING WERE DUE TO THEUNJUSTIFIED FAILURE OF THE PATIENTS MOTHER, ANURSE HERSELF, TO IMMEDIATELY BRING THE PATIENTBACK TO THE HOSPITAL, AS ADVISED BY THEPETITIONERS, AFTER HE COMPLAINED OF SEVERE PAIN INHIS RIGHT LEG WHEN HE REACHED HOME AFTER HE WASSEEN BY PETITIONERS AT THE HOSPITAL. THUS, THEPATIENTS ALLEGED INJURY (PROLONGED PAIN ANDSUFFERING) WAS DUE TO HIS OWN MOTHERS ACT OROMISSION.

5. THE COURT OF APPEALS ERRED IN NOT HOLDING

THAT NO PHYSICIAN-PATIENT RELATIONSHIP EXISTEDBETWEEN PETITIONERS AND PATIENT ALFONSOSANTIAGO, JR., PETITIONERS NOT BEING THE LATTERSATTENDING PHYSICIAN AS THEY WERE MERELYREQUESTED BY THE EMERGENCY ROOM (ER) NURSE TOSEE THE PATIENT WHILE THEY WERE PASSING BY THE ERFOR THEIR LUNCH.

6. THE COURT OF APPEALS GRAVELY ERRED IN NOT

ACQUITTING ACCUSED-PETITIONERS OF THE CRIMECHARGED.[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 negligenceon the part of the petitioners. After a perusal of the records,however, the Court is not convinced that the petitioners areguilty of criminal negligence complained of. The Court is also

of the view that the CA erred in applying the doctrine of resipsa 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 whichcauses injury is shown to be under the management of the defendant, and theaccident is such as in the ordinary course of things does not happen if thosewho have the management use proper care, it affords reasonable evidence, inthe absence of an explanation by the defendant, that the accident arose fromwant 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 instrumentalityunder the exclusive control and management of defendant, and thatthe 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 isunusual to the law of negligence which recognizes that primafacie negligence may be established without direct proof andfurnishes a substitute for specific proof of negligence. Thedoctrine, however, is not a rule of substantive law, butmerely a mode of proof or a mere proceduralconvenience. The rule, when applicable to the facts andcircumstances of a given case, is not meant to and does not

dispense with the requirement of proof of culpablenegligence on the party charged. It merely determines andregulates what shall be prima facie evidence thereof andhelps the plaintiff in proving a breach of the duty. Thedoctrine can be invoked when and only when, under thecircumstances involved, direct evidence is absent and notreadily available.[11]

The requisites for the application of the doctrine of resipsa loquitur are: (1) the accident was of a kind which doesnot ordinarily occur unless someone is negligent; (2) theinstrumentality or agency which caused the injury was underthe exclusive control of the person in charge; and (3) theinjury suffered must not have been due to any voluntaryaction or contribution of the person injured.[12]

In this case, the circumstances that caused patient Roy Jr.s injury andthe series of tests that were supposed to be undergone by him to determinethe extent of the injury suffered were not under the exclusive control of Drs.Jarcia and Bastan. It was established that they are mere residents ofthe Manila Doctors Hospital at that time who attended to the victim at theemergency room.[13] While it may be true that the circumstances pointed outby the courts below seem doubtless to constitute reckless imprudence on thepart of the petitioners, this conclusion is still best achieved, not through thescholarly assumptions of a layman like the patients mother, but by theunquestionable knowledge of expert witness/es. As to whether thepetitioners have exercised the requisite degree of skill and care in treatingpatient 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 negligenceof the petitioners. At the risk of being repetitious, the Court, however, is notsatisfied that Dr. Jarcia and Dr. Bastan are criminally negligent in this case.

Negligence is defined as the failure to observe for theprotection of the interests of another person that degree ofcare, precaution, and vigilance which the circumstancesjustly demand, whereby such other person suffers injury.[14]

Reckless imprudence consists of voluntarily doing orfailing to do, without malice, an act from which materialdamage results by reason of an inexcusable lack ofprecaution on the part of the person performing or failing toperform such act.[15]

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

In this case, the Court is not convinced with moral certainty that thepetitioners are guilty of reckless imprudence or simple negligence. Theelements thereof were not proved by the prosecution beyond reasonabledoubt.

The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a specialist inpediatric orthopedic, although pointing to some medical procedures thatcould 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. wereindeed aggravated by the petitioners judgment call and their diagnosis orappreciation of the condition of the victim at the time they assessed him.Thus:

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

A: At present I am the chairman department of orthopedicin UP-PGH and I had special training in pediatricorthopedic for two (2) years.

Q: In June 1998, doctor, what was your position and whatwas 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 hismother, what did you do by way of physicians as firststep?

A: As usual, I examined the patient physically and, at thattime as I have said, the patient could not walk so I[began] to suspect that probably he sustained a fractureas a result of a vehicular accident. So I examined thepatient at that time, the involved leg, I dont know if thatis left or right, the involved leg then was swollen andthe patient could not walk, so I requested for the x-rayof [the] lower leg.

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

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

Q: And what was the result?

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

Q: And when you say spiral, doctor, how long was thisfracture?

A: When we say spiral, it is a sort of letter S, the length wasabout six (6) to eight (8) centimeters.

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

(Witness pointing to his lower leg)

A: The tibial is here, there are two bones here, the biggerone is the tibial and the smaller one is the fibula. Thebigger one is the one that get fractured.

Q: And in the course of your examination of AlfonsoSantiago, Jr. did you ask for the history of such injury?

A: Yes, actually, that was a routine part of our examinationthat once a patient comes in, before we actuallyexamine the patient, we request for a detailed history. Ifit is an accident, then, we request for the exactmechanism of injuries.

Q: And as far as you can recall, Doctor, what was the historyof that injury that was told to you?

A: The patient was sideswiped, I dont know if it is a car, butit 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 themother that I interviewed.

Q: And were you informed also of his early medication thatwas administered on Alfonso Santiago, Jr.?

A: No, not actually medication. I was informed that thispatient was seen initially at the emergency room by thetwo (2) physicians that you just mentioned, Dr. Jarciaand Dra. Bastan, that time who happened to be myresidents who were [on] duty at the emergency room.

x x x x

A: At the emergency room, at the Manila Doctors Hospital,the supervisor there is a consultant that usually comesfrom a family medicine. They see where a certainpatient 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 isthe decision. Since the x-rays

x x x

Q: You also said, Doctor, that Dr. Jarcia and Dra. Bastan arenot even an orthopedic specialist.

A: They are general surgeon residents. You have to man[x] theemergency room, including neurology, orthopedic,general surgery, they see everything at the emergencyroom.

x x x x

Q: But if initially, Alfonso Santiago, Jr. and his case waspresented to you at the emergency room, you would havesubjected the entire foot to x-ray even if the history thatwas given to Dr. Jarcia and Dra. Bastan is the same?

A: I could not directly say yes, because it would still depend onmy 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 youwould have conducted you would discover the necessitysubjecting the entire foot for x-ray?

A: It is also possible but according to them, the foot and theankle were swollen and not the leg, which sometimesnormally happens that the actual fractured bone do notget swollen.

x x x x

Q: Doctor, if you know that the patient sustained a fracture onthe ankle and on the foot and the history that was told toyou is the region that was hit is the region of the foot, willthe doctor subject the entire leg for x-ray?

A: I am an orthopedic surgeon, you have to subject an x-ray ofthe leg. Because you have to consider the kind of fracturethat the patient sustained would you say the exactmechanism of injury. For example spiral, paikot yungbale nya, so it was possible that the leg was run over, thepatient fell, and it got twisted. Thats why the leg seems tobe fractured.[17] [Emphases supplied]

It can be gleaned from the testimony of Dr. Tacata that a thoroughexamination was not performed on Roy Jr. As residents on duty at theemergency room, Dr. Jarcia and Dr. Bastan were expected to know themedical protocol in treating leg fractures and in attending to victims of caraccidents. There was, however, no precise evidence and scientificexplanation pointing to the fact that the delay in the application of the cast tothe patients fractured leg because of failure to immediately diagnose thespecific injury of the patient, prolonged the pain of the child or aggravatedhis condition or even caused further complications. Any person may opine

that had patient Roy Jr. been treated properly and given the extensive X-rayexamination, 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 onand 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 couldnot, be enough basis to hold one criminally liable; thus, a reasonable doubtas to the petitioners guilt.

Although the Court sympathizes with the plight of the mother and thechild in this case, the Court is bound by the dictates of justice which holdinviolable the right of the accused to be presumed innocent until provenguilty beyond reasonable doubt. The Court, nevertheless, finds thepetitioners civilly liable for their failure to sufficiently attend to Roy Jr.smedical needs when the latter was rushed to the ER, for while a criminalconviction requires proof beyond reasonable doubt, only a preponderance ofevidence is required to establish civil liability. Taken into account also wasthe fact that there was no bad faith on their part.

Dr. Jarcia and Dr. Bastan cannot pass on the liability to the taxi driverwho hit the victim. It may be true that the actual, direct, immediate, andproximate 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 fromany liability. If this would be so, doctors would have a ready defense shouldthey fail to do their job in attending to victims of hit-and-run, maltreatment,and other crimes of violence in which the actual, direct, immediate, andproximate cause of the injury is indubitably the act of the perpetrator/s.

In failing to perform an extensive medical examination to determinethe extent of Roy Jr.s injuries, Dr. Jarcia and Dr. Bastan were remiss of theirduties as members of the medical profession. Assuming for the sake ofargument that they did not have the capacity to make such thoroughevaluation at that stage, they should have referred the patient to anotherdoctor with sufficient training and experience instead of assuring him andhis mother that everything was all right.

This Court cannot also stamp its imprimatur on the petitionerscontention 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 thepatient while they were passing by the ER for their lunch. Firstly, this issuewas never raised during the trial at the RTC or even before the CA. Thepetitioners, therefore, raise the want of doctor-patient relationship for thefirst time on appeal with this Court. It has been settled that issues raised forthe first time on appeal cannot be considered because a party is not permittedto change his theory on appeal. To allow him to do so is unfair to the otherparty and offensive to the rules of fair play, justice and due process. [18] Stateddifferently, basic considerations of due process dictate that theories, issuesand arguments not brought to the attention of the trial court need not be, andordinarily will not be, considered by a reviewing court.[19]

Assuming again for the sake of argument that the petitioners may stillraise this issue of no physicianpatient relationship, the Court finds and soholds 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, aphysician-patient relationship is generated. And in acceptinga case, the physician, for all intents and purposes,represents that he has the needed training and skillpossessed by physicians and surgeons practicing in thesame field; and that he will employ such training, care, andskill in the treatment of the patient. Thus, in treating hispatient, a physician is under a duty to exercise that degreeof care, skill and diligence which physicians in the samegeneral neighborhood and in the same general line ofpractice ordinarily possess and exercise in like cases. Statedotherwise, the physician has the obligation to use at leastthe same level of care that any other reasonably competentphysician would use to treat the condition under similarcircumstances.

Indubitably, a physician-patient relationship existsbetween the petitioners and patient Roy Jr. Notably, thelatter and his mother went to the ER for an immediatemedical attention. The petitioners allegedly passed by andwere 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 examinedthe victim, and later assured the mother that everything wasfine and that they could go home. Clearly, a physician-patient relationship was established between the petitionersand the patient Roy Jr.

To repeat for clarity and emphasis, if these doctors knew from thestart that they were not in the position to attend to Roy Jr., a vehicularaccident victim, with the degree of diligence and commitment expected ofevery doctor in a case like this, they should have not made a baselessassurance that everything was all right. By doing so, they deprived Roy Jr. ofadequate medical attention that placed him in a more dangerous situationthan he was already in. What petitioners should have done, and could havedone, was to refer Roy Jr. to another doctor who could competently andthoroughly examine his injuries.

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

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

A physician should attend to his patients faithfullyand conscientiously. He should secure for them all possiblebenefits that may depend upon his professional skill andcare. As the sole tribunal to adjudge the physicians failure tofulfill his obligation to his patients is, in most cases, his ownconscience, violation of this rule on his part is discreditableand 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 thepetitioners failure to administer the necessary medicalattention to Roy Jr., the Court holds them civilly liable for theresulting damages to their patient. While it was the taxidriver who ran over the foot or leg of Roy Jr., their negligencewas doubtless contributory.

It appears undisputed that the amount of ₱3,850.00, asexpenses incurred by patient Roy Jr., was adequatelysupported by receipts. The Court, therefore, finds thepetitioners liable to pay this amount by way of actualdamages.

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

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

The Court, likewise, finds the petitioners also liable for

exemplary damages in the said amount. Article 2229 of the

Civil Code provides that exemplary damages may be

imposed by way of example or correction for the public

good.

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

(1) ₱3,850.00 as actual damages;

(2) ₱100,000.00 as moral damages;

(3) ₱50,000.00 as exemplary damages; and

(4) Costs of the suit.

with interest at the rate of 6% per annum from the date ofthe filing of the Information. The rate shall be 12%interest per annum from the finality of judgment until fullypaid.

SO ORDERED.

EN BANC

DR. RUBI LI,Petitioner,

- versus -

G.R. No. 165279 Present: CORONA, C.J.,CARPIO,CARPIO MORALES,VELASCO, JR.,NACHURA,LEONARDO-DE CASTRO,BRION,PERALTA,BERSAMIN,DEL CASTILLO,

ABAD,VILLARAMA, JR.,PEREZ,MENDOZA, andSERENO, JJ.

SPOUSES REYNALDO and LINASOLIMAN, as parents/heirs ofdeceased Angelica Soliman,Respondents.

Promulgated:

June 7, 2011

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

DECISION

VILLARAMA, JR., J.: Challenged in this petition for review on certiorari is theDecision[1] dated June 15, 2004 as well as the Resolution[2] dated September1, 2004 of the Court of Appeals (CA) in CA-G.R. CV No. 58013 whichmodified the Decision[3] dated September 5, 1997 ofthe 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 sufferingfrom osteosarcoma, osteoblastic type,[4] a high-grade (highly malignant)cancer of the bone which usually afflicts teenage children.Following thisdiagnosis and as primary intervention, Angelicas right leg was amputated by

Dr. Jaime Tamayo in order to remove the tumor. As adjuvant treatment toeliminate any remaining cancer cells, and hence minimize the chances ofrecurrence and prevent the disease from spreading to other parts of thepatients 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 diedon September 1, 1993, just eleven (11) days after the (intravenous)administration of the first cycle of the chemotherapy regimen. BecauseSLMC refused to release a death certificate without full payment of theirhospital bill, respondents brought the cadaver of Angelica to the PhilippineNational Police (PNP) Crime Laboratory at Camp Crame for post-mortemexamination. The Medico-Legal Report issued by said institution indicatedthe cause of death as Hypovolemic shock secondary to multiple organhemorrhages and Disseminated Intravascular Coagulation.[5]

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

Immediate cause : a. Osteosarcoma, Status Post AKAAntecedent cause : b. (above knee amputation)Underlying cause : c. Status Post Chemotherapy

On February 21, 1994, respondents filed a damage suit[7] against petitioner,Dr. Leo Marbella, Mr. Jose Ledesma, a certain Dr. Arriete and SLMC.Respondents charged them with negligence and disregard of Angelicassafety, health and welfare by their careless administration of thechemotherapy drugs, their failure to observe the essential precautions indetecting early the symptoms of fatal blood platelet decrease and stoppingearly on the chemotherapy, which bleeding led to hypovolemic shock thatcaused Angelicas untimely demise. Further, it was specifically averred thatpetitioner assured the respondents that Angelica would recover in view of95% chance of healing with chemotherapy (Magiging normal na ang anaknyo basta ma-chemo. 95% ang healing) and when asked regarding the sideeffects, petitioner mentioned only slight vomiting, hair loss and weakness(Magsusuka ng kaunti. Malulugas ang buhok. Manghihina). Respondentsthus claimed that they would not have given their consent to chemotherapyhad petitioner not falsely assured them of its side effects.

In her answer,[8] petitioner denied having been negligent in administering thechemotherapy drugs to Angelica and asserted that she had fully explained torespondents how the chemotherapy will affect not only the cancer cells butalso the patients normal body parts, including the lowering of white and redblood cells and platelets. She claimed that what happened to Angelica can beattributed to malignant tumor cells possibly left behind after surgery. Few asthey may be, these have the capacity to compete for nutrients such that the

body becomes so weak structurally (cachexia) and functionally in the formof lower resistance of the body to combat infection. Such infection becomesuncontrollable and triggers a chain of events (sepsis or septicemia) that maylead 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 trialand appellate courts had to rely on testimonial evidence, principally thedeclarations of petitioner and respondents themselves. The followingchronology of events was gathered:

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

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

On July 27, 1993, SLMC discharged Angelica, with instruction frompetitioner that she be readmitted after two or three weeks for thechemotherapy.

On August 18, 1993, respondents brought Angelica to SLMC forchemotherapy, bringing with them the results of the laboratory testsrequested by petitioner: Angelicas chest x-ray, ultrasound of the liver,

creatinine and complete liver function tests.[13] Petitioner proceeded with thechemotherapy by first administering hydration fluids to Angelica.[14]

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

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

On the third day of chemotherapy, August 21, Angelica had difficultybreathing and was thus provided with oxygen inhalation apparatus. Thistime, 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 Angelicasface, nor did she notice any difficulty in the childs breathing. She claimedthat Angelica merely complained of nausea and was given ice chips.[25]

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

The following day, August 23, petitioner yielded to respondentsrequest to take Angelica home. But prior to discharging Angelica, petitionerrequested for a repeat serum calcium determination and explained torespondents that the chemotherapy will be temporarily stopped while sheobserves Angelicas muscle twitching and serum calcium level.Take-homemedicines were also prescribed for Angelica, with instructions torespondents that the serum calcium test will have to be repeated after seven

days. Petitioner told respondents that she will see Angelica again after twoweeks, but respondents can see her anytime if any immediate problemarises.[28]

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

The next day, August 24, respondents claimed that Angelica stillsuffered from convulsions. They also noticed that she had a fever and haddifficulty breathing.[30]Petitioner insisted it was carpo-pedal spasm, notconvulsions. She verified that at around 4:50 that afternoon, Angelicadeveloped difficulty in breathing and had fever. She then requested for anelectrocardiogram analysis, and infused calcium gluconate on the patient at astat dose. She further ordered that Angelica be given Bactrim,[31] a syntheticantibacterial 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 askedpetitioner what was happening to her daughter, petitioner replied, Bagsakang platelets ng anak mo. Four units of platelet concentrates were thentransfused to Angelica. Petitioner prescribed Solucortef. Considering thatAngelicas fever was high and her white blood cell count was low, petitionerprescribed Leucomax. About four to eight bags of blood, consisting ofpacked red blood cells, fresh whole blood, or platelet concentrate, weretransfused to Angelica. For two days (August 27 to 28), Angelica continuedbleeding, but petitioner claimed it was lesser in amount and infrequency. Petitioner also denied that there were gadgets attached toAngelica at that time.[34]

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

On August 30, Angelica continued bleeding. She was restless asendotracheal and nasogastric tubes were inserted into her weakened body.An aspiration of the nasogastric tube inserted to Angelica also revealed abloody content. Angelica was given more platelet concentrate and freshwhole blood, which petitioner claimed improved her condition.Petitionertold Angelica not to remove the endotracheal tube because this may inducefurther bleeding.[35] She was also transferred to the intensive care unit toavoid infection.

The next day, respondents claimed that Angelica became hysterical,vomited blood and her body turned black. Part of Angelicas skin was alsonoted to be shredding by just rubbing cotton on it. Angelica was so restlessshe removed those gadgets attached to her, saying Ayaw ko na; there weretears in her eyes and she kept turning her head.Observing her daughter to beat the point of death, Lina asked for a doctor but the latter could not answerher anymore.[36] At this time, the attending physician was Dr. Marbella whowas shaking his head saying that Angelicas platelets were down andrespondents should pray for their daughter. Reynaldo claimed that he wasintroduced to a pediatrician who took over his daughters case, Dr. Abesamiswho also told him to pray for his daughter. Angelica continued to havedifficulty in her breathing and blood was being suctioned from herstomach. A nurse was posted inside Angelicas room to assist her breathingand at one point they had to revive Angelica by pumping her chest.Thereafter, Reynaldo claimed that Angelica already experienced difficulty inurinating and her bowel consisted of blood-like fluid. Angelica requested foran electric fan as she was in pain. Hospital staff attempted to take bloodsamples from Angelica but were unsuccessful because they could not evenlocate her vein. Angelica asked for a fruit but when it was given to her, sheonly smelled it. At this time, Reynaldo claimed he could not find eitherpetitioner or Dr. Marbella. That night, Angelica became hysterical andstarted removing those gadgets attached to her. At three oclock in themorning of September 1, a priest came and they prayed before Angelicaexpired. Petitioner finally came back and supposedly told respondents thatthere 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 indeedsloughing off.[38] She stressed that at 9:30 in the evening, Angelica pulled outher endotracheal tube.[39] On September 1, exactly two weeks after beingadmitted at SLMC for chemotherapy, Angelica died.[40]The cause of death,according to petitioner, was septicemia, or overwhelming infection, whichcaused Angelicas other organs to fail.[41] Petitioner attributed this to thepatients 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. Hewas asked to sign a promissory note as he did not have cash to pay thehospital bill.[43]

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

Testifying on the findings stated in her medico-legal report, Dr.Vergara noted the following: (1) there were fluids recovered from theabdominal cavity, which is not normal, and was due to hemorrhagic shocksecondary 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 toaccumulation of fluids; (4) yellowish discoloration of the liver; (5) kidneysshowed appearance of facial shock on account of hemorrhages; and (6)reddishness on external surface of the spleen. All these were the end result ofhypovolemic shock secondary to multiple organ hemorrhages anddisseminated intravascular coagulation. Dr. Vergara opined that this can beattributed to the chemical agents in the drugs given to the victim, whichcaused platelet reduction resulting to bleeding sufficient to cause the victimsdeath. The time lapse for the production of DIC in the case of Angelica(from the time of diagnosis of sarcoma) was too short, considering thesurvival rate of about 3 years. The witness conceded that the victim will alsodie of osteosarcoma even with amputation or chemotherapy, but in this caseAngelicas death was not caused by osteosarcoma. Dr. Vergara admitted thatshe is not a pathologist but her statements were based on the opinion of anoncologist whom she had interviewed. This oncologist supposedly said thatif the victim already had DIC prior to the chemotherapy, the hospital staffcould have detected it.[44]

On her part, Dr. Balmaceda declared that it is the physicians duty toinform and explain to the patient or his relatives every known side effect ofthe procedure or therapeutic agents to be administered, before securing theconsent of the patient or his relatives to such procedure or therapy. Thephysician thus bases his assurance to the patient on his personal assessmentof the patients condition and his knowledge of the general effects of theagents or procedure that will be allowed on the patient. Dr. Balmacedastressed that the patient or relatives must be informed of all known sideeffects based on studies and observations, even if such will aggravate thepatients condition.[45]

Dr. Jaime Tamayo, the orthopaedic surgeon who operated onAngelicas lower extremity, testified for the defendants. He explained that incase of malignant tumors, there is no guarantee that the ablation or removalof the amputated part will completely cure the cancer. Thus, surgery is notenough. The mortality rate of osteosarcoma at the time of modernchemotherapy and early diagnosis still remains at 80% to 90%. Usually,deaths occur from metastasis, or spread of the cancer to other vital organslike the liver, causing systemic complications. The modes of therapyavailable are the removal of the primary source of the cancerous growth andthen the residual cancer cells or metastasis should be treated withchemotherapy. Dr. Tamayo further explained that patients with osteosarcomahave poor defense mechanism due to the cancer cells in the blood stream. Inthe case of Angelica, he had previously explained to her parents that after the

surgical procedure, chemotherapy is imperative so that metastasis of thesecancer cells will hopefully be addressed. He referred the patient to petitionerbecause he felt that petitioner is a competent oncologist. Considering thatthis type of cancer is very aggressive and will metastasize early, it will causethe demise of the patient should there be no early intervention (in this case,the patient developed sepsis which caused her death). Cancer cells in theblood cannot be seen by the naked eye nor detected through bone scan. Oncross-examination, Dr. Tamayo stated that of the more than 50 child patientswho had osteogenic sarcoma he had handled, he thought that probably all ofthem died within six months from amputation because he did not see themanymore 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 liablefor damages as she observed the best known procedures and employed herhighest skill and knowledge in the administration of chemotherapy drugs onAngelica but despite all efforts said patient died. It cited the testimony of Dr.Tamayo who testified that he considered petitioner one of the most proficientin the treatment of cancer and that the patient in this case was afflicted witha very aggressive type of cancer necessitating chemotherapy as adjuvanttreatment. Using the standard of negligence laid down in Picart v. Smith,[47] the trial court declared that petitioner has taken the necessary precautionagainst the adverse effect of chemotherapy on the patient, adding that awrong decision is not by itself negligence. Respondents were ordered to paytheir unpaid hospital bill in the amount of P139,064.43.[48]

Respondents appealed to the CA which, while concurring with the trialcourts finding that there was no negligence committed by the petitioner inthe administration of chemotherapy treatment to Angelica, found thatpetitioner as her attending physician failed to fully explain to therespondents all the known side effects of chemotherapy. The appellate courtstressed that since the respondents have been told of only three side effectsof chemotherapy, they readily consented thereto. Had petitioner made knownto 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 decideddifferently or adopted a different course of action which could have delayedor prevented the early death of their child.

The CA thus declared:

Plaintiffs-appellants child was suffering from a malignantdisease. The attending physician recommended that she undergochemotherapy treatment after surgery in order to increase her chances ofsurvival. Appellants consented to the chemotherapy treatment becausethey believed in Dr. Rubi Lis representation that the deceased would havea strong chance of survival after chemotherapy and also because of therepresentation of appellee Dr. Rubi Li that there were only three possibleside-effects of the treatment. However, all sorts of painful side-effectsresulted from the treatment including the premature death of

Angelica. The appellants were clearly and totally unaware of theseother side-effects which manifested only during the chemotherapytreatment. This was shown by the fact that every time a problemwould take place regarding Angelicas condition (like an unexpectedside-effect manifesting itself), they would immediately seekexplanation from Dr. Rubi Li. Surely, those unexpected side-effectsculminating in the loss of a love[d] one caused the appellants so muchtrouble, pain and suffering.

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

x x x x

WHEREFORE, the instant appeal is herebyGRANTED. Accordingly, the assailed decision is hereby modified to theextent 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 funeralexpenses;

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 courtdenied.

Hence, this petition.

Petitioner assails the CA in finding her guilty of negligence in notexplaining to the respondents all the possible side effects of thechemotherapy on their child, and in holding her liable for actual, moral andexemplary damages and attorneys fees. Petitioner emphasized that she wasnot negligent in the pre-chemotherapy procedures and in the administrationof chemotherapy treatment to Angelica.

On her supposed non-disclosure of all possible side effects of chemotherapy,including death, petitioner argues that it was foolhardy to imagine her to beall-knowing/omnipotent.While the theoretical side effects of chemotherapywere explained by her to the respondents, as these should be known to acompetent doctor, petitioner cannot possibly predict how a particularpatients genetic make-up, state of mind, general health and body constitutionwould respond to the treatment. These are obviously dependent on too manyknown, unknown and immeasurable variables, thus requiring that Angelicabe, as she was, constantly and closely monitored during the

treatment. Petitioner asserts that she did everything within her professionalcompetence to attend to the medical needs of Angelica.

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

As to the cause of death, petitioner insists that Angelica did not die ofplatelet depletion but of sepsis which is a complication of the canceritself. Sepsis itself leads to bleeding and death. She explains that theresponse rate to chemotherapy of patients with osteosarcoma is high, somuch so that survival rate is favorable to the patient. Petitioner then points tosome probable consequences if Angelica had not undergone chemotherapy.Thus, without chemotherapy, other medicines and supportive treatment, thepatient might have died the next day because of massive infection, or thecancer cells might have spread to the brain and brought the patient into acoma, or into the lungs that the patient could have been hooked to arespirator, or into her kidneys that she would have to undergodialysis. Indeed, respondents could have spent as much because of thesecomplications. The patient would have been deprived of the chance tosurvive the ailment, of any hope for life and her quality of life surelycompromised. Since she had not been shown to be at fault, petitionermaintains that the CA erred in holding her liable for the damages suffered bythe respondents.[50]

The issue to be resolved is whether the petitioner can be held liable forfailure to fully disclose serious side effects to the parents of the child patientwho died while undergoing chemotherapy, despite the absence of findingthat petitioner was negligent in administering the said treatment.

The petition is meritorious.

The type of lawsuit which has been called medical malpractice or,more appropriately, medical negligence, is that type of claim which a victimhas available to him or her to redress a wrong committed by a medicalprofessional which has caused bodily harm. In order to successfully pursuesuch a claim, a patient must prove that a health care provider, in most cases aphysician, either failed to do something which a reasonably prudent healthcare provider would have done, or that he or she did something that areasonably prudent provider would not have done; and that that failure oraction caused injury to the patient.[51]

This Court has recognized that medical negligence cases are best proved byopinions of expert witnesses belonging in the same general neighborhoodand in the same general line of practice as defendant physician or surgeon.The deference of courts to the expert opinion of qualified physicians stemsfrom the formers realization that the latter possess unusual technical skillswhich 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 thealleged negligence of petitioner in the administration of chemotherapy drugsto respondents child was not proven considering that Drs. Vergara andBalmaceda, not being oncologists or cancer specialists, were not qualified togive expert opinion as to whether petitioners lack of skill, knowledge andprofessional competence in failing to observe the standard of care in her lineof practice was the proximate cause of the patients death. Furthermore,respondents case was not at all helped by the non-production of medicalrecords by the hospital (only the biopsy result and medical bills weresubmitted to the court). Nevertheless, the CA found petitioner liable for herfailure to inform the respondents on all possible side effects ofchemotherapy before securing their consent to the said treatment.

The doctrine of informed consent within the context of physician-patientrelationships goes far back into English common law. As early as 1767,doctors were charged with the tort of battery (i.e., an unauthorized physicalcontact with a patient) if they had not gained the consent of their patientsprior to performing a surgery or procedure. In the United States, the seminalcase was Schoendorff v. Society of New York Hospital[53] which involvedunwanted treatment performed by a doctor. Justice Benjamin Cardozos oft-quoted opinion upheld the basic right of a patient to give consent to anymedical procedure or treatment: Every human being of adult years andsound 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 purelyethical norm, informed consent evolved into a general principle of law that aphysician has a duty to disclose what a reasonably prudent physician in themedical community in the exercise of reasonable care would disclose to hispatient as to whatever grave risks of injury might be incurred from aproposed course of treatment, so that a patient, exercising ordinary care forhis own welfare, and faced with a choice of undergoing the proposedtreatment, or alternative treatment, or none at all, may intelligently exercisehis judgment by reasonably balancing the probable risks against the probablebenefits.[55]

Subsequently, in Canterbury v. Spence[56] the court observed that the duty todisclose should not be limited to medical usage as to arrogate the decisionon revelation to the physician alone. Thus, respect for the patients right of

self-determination on particular therapy demands a standard set by law forphysicians rather than one which physicians may or may not impose uponthemselves.[57] The scope of disclosure is premised on the fact that patientsordinarily are persons unlearned in the medical sciences. Proficiency indiagnosis and therapy is not the full measure of a physicians responsibility. Itis also his duty to warn of the dangers lurking in the proposed treatment andto impart information which the patient has every right to expect. Indeed, thepatients reliance upon the physician is a trust of the kind which traditionallyhas exacted obligations beyond those associated with armslengthtransactions.[58] The physician is not expected to give the patient a shortmedical education, the disclosure rule only requires of him a reasonableexplanation, which means generally informing the patient in nontechnicalterms as to what is at stake; the therapy alternatives open to him, the goalsexpectably to be achieved, and the risks that may ensue from particulartreatment or no treatment.[59] As to the issue of demonstrating what risks areconsidered material necessitating disclosure, it was held that experts areunnecessary to a showing of the materiality of a risk to a patients decision ontreatment, or to the reasonably, expectable effect of risk disclosure on thedecision. Such unrevealed risk that should have been made known mustfurther materialize, for otherwise the omission, however unpardonable, iswithout legal consequence.And, as in malpractice actions generally, theremust be a causal relationship between the physicians failure to divulge anddamage to the patient.[60]

Reiterating the foregoing considerations, Cobbs v. Grant[61] deemed it asintegral part of physicians overall obligation to patient, the duty ofreasonable disclosure of available choices with respect to proposed therapyand of dangers inherently and potentially involved in each. However, thephysician is not obliged to discuss relatively minor risks inherent in commonprocedures when it is common knowledge that such risks inherent inprocedure of very low incidence. Cited as exceptions to the rule that thepatient should not be denied the opportunity to weigh the risks of surgery ortreatment are emergency cases where it is evident he cannot evaluate data,and where the patient is a child or incompetent.[62] The court thus concludedthat the patients right of self-decision can only be effectively exercised if thepatient possesses adequate information to enable him in making anintelligent choice. The scope of the physicians communications to thepatient, then must be measured by the patients need, and that need iswhatever information is material to the decision. The test therefore fordetermining whether a potential peril must be divulged is its materiality tothe 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, theremust be causal relationship between physicians failure to inform and the

injury to patient and such connection arises only if it is established that, hadrevelation been made, consent to treatment would not have been given.

There are four essential elements a plaintiff must prove in a malpracticeaction based upon the doctrine of informed consent: (1) the physician had aduty to disclose material risks; (2) he failed to disclose or inadequatelydisclosed those risks; (3) as a direct and proximate result of the failure todisclose, the patient consented to treatment she otherwise would not haveconsented to; and (4) plaintiff was injured by the proposed treatment. Thegravamen in an informed consent case requires the plaintiff to point tosignificant undisclosed information relating to the treatment which wouldhave altered her decision to undergo it.[64]

Examining the evidence on record, we hold that there was adequatedisclosure of material risks inherent in the chemotherapy procedureperformed with the consent of Angelicas parents. Respondents could nothave been unaware in the course of initial treatment and amputation ofAngelicas lower extremity, that her immune system was already weak onaccount of the malignant tumor in her knee. When petitioner informed therespondents beforehand of the side effects of chemotherapy which includeslowered counts of white and red blood cells, decrease in blood platelets,possible kidney or heart damage and skin darkening, there is reasonableexpectation on the part of the doctor that the respondents understood verywell that the severity of these side effects will not be the same for all patientsundergoing the procedure. In other words, by the nature of the disease itself,each patients reaction to the chemical agents even with pre-treatmentlaboratory tests cannot be precisely determined by the physician. Thatdeath can possibly result from complications of the treatment or theunderlying cancer itself, immediately or sometime after the administration ofchemotherapy drugs, is a risk that cannot be ruled out, as with most othermajor medical procedures, but such conclusion can be reasonably drawnfrom the general side effects of chemotherapy already disclosed.

As a physician, petitioner can reasonably expect the respondents tohave considered the variables in the recommended treatment for theirdaughter afflicted with a life-threatening illness. On the other hand, it isdifficult to give credence to respondents claim that petitioner told them of95% chance of recovery for their daughter, as it was unlikely for doctors likepetitioner who were dealing with grave conditions such as cancer to havefalsely assured patients of chemotherapys success rate. Besides, informedconsent laws in other countries generally require only a reasonableexplanation of potential harms, so specific disclosures such as statisticaldata, may not be legally necessary.[65]

The element of ethical duty to disclose material risks in the proposedmedical treatment cannot thus be reduced to one simplistic formula

applicable in all instances. Further, in a medical malpractice action based onlack of informed consent, the plaintiff must prove both the duty and thebreach of that duty through expert testimony.[66] Such expert testimony mustshow the customary standard of care of physicians in the same practice asthat of the defendant doctor.[67]

In this case, the testimony of Dr. Balmaceda who is not an oncologist but aMedical Specialist of the DOHs Operational and Management Servicescharged with receiving complaints against hospitals, does not qualify asexpert testimony to establish the standard of care in obtaining consent forchemotherapy treatment. In the absence of expert testimony in this regard,the Court feels hesitant in defining the scope of mandatory disclosure incases of malpractice based on lack of informed consent, much less set astandard of disclosure that, even in foreign jurisdictions, has been noted tobe an evolving one.

As society has grappled with the juxtaposition betweenpersonal autonomy and the medical profession's intrinsic impetusto cure, the law defining adequate disclosure has undergone adynamic evolution. A standard once guided solely by theruminations of physicians is now dependent on what a reasonableperson in the patients position regards as significant. This changein perspective is especially important as medical breakthroughsmove practitioners to the cutting edge of technology, everencountering new and heretofore unimagined treatments forcurrently incurable diseases or ailments. An adaptable standard isneeded to account for this constant progression. Reasonablenessanalyses permeate our legal system for the very reason that theyare determined by social norms, expanding and contracting withthe 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 acategorical imperative. Whatever formulae or processes we adopt areonly useful as a foundational starting point; the particular quality orquantity of disclosure will remain inextricably bound by the facts ofeach case. Nevertheless, juries that ultimately determine whether aphysician properly informed a patient are inevitably guided by what theyperceive as the common expectation of the medical consumera reasonableperson in the patients position when deciding to accept or reject arecommended medical procedure.[68] (Emphasis supplied.)

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

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

No costs.

SO ORDERED.

MEDICAL WITNESS AND EVIDENCE

G.R. No. 194259 March 16, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.JIMMY ALVERIO, Accused-Appellant.

D E C I S I O N

VELASCO, JR., J.:

The Case

This is an appeal from the March 25, 2010 Decision1 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 Facts

The charge against Alverio stemmed from the following Information:

That on or about the 3rd day of June, 2002, at about 2:00 o’clock 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 grandmother’s 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 theother hand, the defense presented accused Alverio, Henry Toledo (Toledo), and Lily Toledo as its witnesses.

The Prosecution’s 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 o’clock.6 During the dance, Sabanag and Sinangote danced with Alverio but AAA did not.7 At 2 o’clock 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 grandmother’s house.8

As she was nearing the barangay hall, Alverio suddenly appeared and took hold of AAA. Shetried to resist him but he was too strong and he managed to pull her away. AAA started to crywhile she was being dragged towards 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

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 AAA’s side.

Dazed, AAA could not muster enough strength to go home. She just sat on the road beside the barangay hall until 5 o’clock 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 herparents about what happened.14

Version of the Defense

Alverio’s 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 Toledo’s 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 Toledo’s 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:

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 court’s 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 chargeof 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 accused-appellant 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 Court’s Ruling

We sustain Alverio’s 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 prosecution’s evidence sufficiently established Alverio’s 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 victim’s testimony is not a necessary condition to a conviction for rape where the victim’s 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 court’s findings of facts and conclusions are notsupported 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 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:

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?

A When I was walking I was suddenly held by Jimmy Alverio.

Q Where were you already walking did Jimmy Alverio suddenly held you?

A Near Brgy. Hall of Brgy. Maurang.

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 Then even if you were already crying what next happened?

A He drag me towards the back of the Brgy hall.

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

A Yes sir.

Q While you were at the back of the brgy. hall can you tell this Honorable Court what happened?

A [He] held my hair and he tried to undressed me but I resisted.

Q Since he tried to undressed [sic] you and you were resisted [sic] was he able or was he successful in undressing you?

A Yes sir.

Q Despite of your resistance?

A Yes sir.

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.

Q After you have boxed him after kissing you what next happened?

A He said that is painful I might retaliate with you.

Q After hearing on that what did Jimmy had done to you?

A I just cried I did not mind him anymore.

Q How about Jimmy what was he doing?

A He continued kissing me.

Q After kissing you what next follow?

ATTY. SABANDAL:

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…

PROS. JOBOCO:

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.

ATTY. SABANDAL:

It was not established that she is a minor, Your Honor.

COURT:

She is 14 years old.

FROM THE COURT:

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 Yes sir.

Q And when Jimmy Alverio kissing you several times were you already naked?

A Yes sir.

x x x x

Q What did Jimmy do more while he was kissing several times and you were naked?

COURT INTERPRETER:

At this juncture Your Honor the witness is crying.

COURT:

Q And when you were naked was Jimmy also naked?

A Yes sir.

x x x x

Q You were naked and Jimmy Alverio was also naked and Jimmy Alverio was kissingyou so many times, what more did Jimmy Alverio do to you?

A He inserted his penis.

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

A Lying position.

Q Or something was placed on the ground?

A On the ground.

COURT:

Alright Pros. Joboco you can proceed the continuation of your direct examination.

PROS. JOBOCO:

Q When you said when Jimmy Alverio was inserted his penis where was inserted?

A to my vagina.

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

A I felt pain.

Q And when you felt pain what did you do?

A I kept on crying.

PROS. JOBOCO:

I think that would be all Your Honor I think the witness already crying.

COURT:

How many times did Jimmy insert his penis to your vagina?

A three (3) times.

Q After the three (3) times intercourse with you what did Jimmy 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 Iwill kill you.

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

A Yes sir.

Q What arm or firearm or what?

A a knife.

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

A Yes sir.

Q By what means did he threatened you?

A He poke it at my side.

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 AAA’s 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 theRevised 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, Alverio’s 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 cannotprevail 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.

G.R. No. 130612 May 11, 1999

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 bodyof 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 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 barangayGuilig, 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 accused-appellant 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 accused-appellant. 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. Iwill 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 itwith 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 towardsthe 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 accused-appellant 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 akilometer 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 ofJennifer Domantay.

SPO1 Espinoza testified that he investigated accused-appellant 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, accused-appellant 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 stationbased 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 "JuniorOtot"?

A I asked him what was his purpose for human interest's sakeas 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 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 JuniorOtot, 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 thevictim 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 drinkingand 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 packof 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 Alacanpassing 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 theMormon church, just outside of the town proper of Malasiqui to meet his brother. As his brother did not come, accused-appellant proceeded to town and reported for work. That night, while he was in the Malasiqui public market, he was picked up by three policemen andbrought 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 accused-appellant 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 inwhich 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 theevening 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 choiceand 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] wherehe 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 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 thinkthe 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 accused-appellant 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 treasonshall 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 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 eachother, 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 bamboogrove 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 Domantayand 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 yearsold.

For the foregoing reasons, the Court is convinced of accused-appellant's guilt with respect tothe 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 accused-appellant'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 38stab 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 [theaccused] 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

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 bysomething 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 itis 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 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 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.

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 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 accused-appellant 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 thiscase, 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 accused-appellant 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 accused-appellant 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.1âwphi1.nêt

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Pardo, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.

Purisima and Buena, JJ., no took part.

G.R. No. 159738 December 9, 2004

UNION MOTOR CORPORATION, petitioner, vs.NATIONAL LABOR RELATIONS COMMISSION and ALEJANDRO A. ETIS, respondents.

D E C I S I O N

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 mechanicat the service department in the latter’s 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 became a member of the Exclusive P40,000.00 Club and received the Model Employee Award in the same year.

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 respondent’s 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 respondent’s 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 September 27, 1997, Dr. Pamor rescheduled the respondent’s 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 respondent’s tooth. As soon as hehad recovered, the respondent reported for work, but was denied entry into the company’s 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 hisdismissal,4 which was denied. Sometime thereafter, the union’s 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. 00-05-05691-99.5

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 employee’s gross and habitual neglect of his duties is a just cause for termination. It further alleged that the respondent’s repetitive and habitual acts of being absent without notification constituted nothing less than abandonment, which is a form of neglect of duties.6

On October 19, 2000, the Labor Arbiter rendered a Decision dismissing the complaint. The Labor Arbiter ruled that the respondent’s failure to report for work for ten (10) days without anapproved leave of absence was equivalent to gross neglect of duty, and that his claim that hehad 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."

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 tothe 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 latter’s 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 respondent’s 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.

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 latter’s illness, as well as the tooth extraction procedure performed on him by the dentist. The CA concluded that since the respondent’s absences were substantiated, the petitioner’s 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 respondent’s unblemished service, from 1993 up to the time of hisdismissal, and the latter’s 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 Court’s 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 respondent’s absences were unauthorized, and that the latter failed to notify the petitioner in writing of such absences, the reasons therefor, and his (respondent’s) whereabouts as prescribed by the company rules. The petitioner avers that itssecurity 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 respondent’s dismissal was also justified under Article 282(b) of the Labor Code, which provides that an employer may dismiss an employee due togross 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 companynurse, and that the petitioner even dispatched a security guard to the respondent’s house to ascertain the reason of his absences, thus:

The termination by respondent-appellee of complainant’s service despite knowledge of complainant’s ailment, as shown by the telephone calls made by the latter to the company nurse and the actual confirmation made by respondent’s company guard, who personally visited complainant’s residence, clearly establishes the illegality of complainant’s dismissal. The documentary testimonies of the nurse, Miss Rosita delaCruz, regarding complainant’s telephone calls and the confirmation made by respondent’s security guard, Mr. Dumagan, are evidentiary matters which are relevant and material and must be 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. Maybedoubts 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 complainant’s 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 employee’s 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 respondent’s 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 petitioner’s 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 dentist’s letterhead. Neither do we agree with the petitioner’s argument that evenassuming 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. Cabanting 16 is not applicable in this case.

It bears stressing that the petitioner made the same arguments in the NLRC and the CA, andboth 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 respondent’s 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 complainant’s 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 theproceedings 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 complainant’s 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 complainant’s tooth was finally extracted.

…

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 uponrecovery, 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 approvalwould be unreasonable.19 While it is true that the petitioner had objected to the veracity of themedical 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 onthe 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.

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 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 petitioner’s claim of gross and habitual neglect of duty pales in comparison to the respondent’s unblemished record. The respondent did not incur any intermittent absences. His only recorded absence was the consecutive ten-day unauthorized absence, albeit due topainful and unbearable toothache. The petitioner’s claim that the respondent had manifestedpoor work attitude was belied by its own recognition of the respondent’s dedication to his job as evidenced by the latter’s 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.

SO ORDERED

G.R. No. 200792 November 14, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.NEIL B. COLORADO, Accused-Appellant.

D E C I S I O N

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. 8-390 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-namedaccused, 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

Colorado pleaded "not guilty" upon arraignment. During the pre-trial, the parties stipulated onthe 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 AAA’s shorts and panty, inserted his penis into the young girl’s vagina, then made apush and pull movement. AAA tried to resist her brother’s sexual aggression, but miserably failed despite her efforts because of her brother’s 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 sister’s 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 o’clock position with bleeding-

-Vagina admits 2 fingers with slight resistance-

-Uterus small-

-(+) bleeding-

x 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 Osmeña, Dasol. Colorado claimed that on the night of the alleged incident, he was fishing with his brother-in-law, and that they returned to Osmeña, 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 andP75,000.00 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 accusedto 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 RTC’s 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 AAA’s examining doctor, and considered by the trial court in determining his culpability, could have been caused not by him, but by the sexual aggressions committed by their brother DDD or their brother-in-law unto AAA.

The Ruling of the CA

The CA affirmed Colorado’s 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 FiftyThousand 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 Court’s Ruling

The appeal lacks merit.

Colorado was charged with the crime of rape, qualified by the victim’s 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.

x x x x

Art. 266-B. Penalties. – x x x.

x x x x

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;

x x x x

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 thecommon-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 crime’s commission is undisputed. During the pre-trial, the parties agreed on the existence of AAA’s 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 case’s pre-trial.

The grounds now being raised by Colorado to justify his exoneration delve mainly on the alleged absence of the crime’s third element. He denies AAA’s claim that he had ravished her, raising the defense of alibi and the alleged doubt and suspicion that should be ascribed to AAA’s accusations. On this matter, settled is the rule that the findings of the trial court on the credibility of a 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 court’s assessment of the credibilityof witnesses.13

We then take due consideration of the trial court’s findings of fact, its assessment of AAA’s credibility, her testimony and the manner by which her statements were relayed, as discussed in the RTC’s 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.

x x x x

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 victim’s testimony is corroborated by the physician’s 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 AAA’s 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.

x x x x

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 thatColorado 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 crime’s commission is inconsequential to Colorado’s 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 AAA’s and her testimony’s credibility.

Contrary to Colorado’s contention, AAA’s 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 AAA’s credible testimony, Colorado’s defenses lack persuasion. 1âwphi1 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 Osmeña, Dasol at the time of the crime’s 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 Osmeña, 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. Sanchez’s medico-legal certificate, arguing that AAA’s 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 party’s 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 evidenceof 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 AAA’s 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 CA-G.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.

SO ORDERED.

SECOND DIVISION

RICO ROMMEL ATIENZA,Petitioner,

- versus - BOARD OF MEDICINE and EDITHA SIOSON,Respondents.

G.R. No. 177407 Present:NACHURA,Acting Chairperson,PERALTA,DEL CASTILLO,*

VILLARAMA, JR.,** andMENDOZA, JJ. Promulgated: February 9, 2011

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

DECISION

NACHURA, J.: Before us is a petition for review on certiorari under Rule 45 of the Rules ofCourt, assailing the Decision[1] dated September 22, 2006 of the Court ofAppeals (CA) in CA-G.R. SP No. 87755. The CA dismissed the petitionfor certiorari filed by petitioner Rico Rommel Atienza (Atienza), which, inturn, assailed the Orders[2] issued by public respondent Board of Medicine(BOM) in Administrative Case No. 1882. The facts, fairly summarized by the appellate court, follow.

Due to her lumbar pains, private respondent Editha Sioson went toRizal Medical Center (RMC) for check-up on February 4, 1995.Sometime in 1999, due to the same problem, she was referred toDr. Pedro Lantin III of RMC who, accordingly, ordered severaldiagnostic laboratory tests. The tests revealed that her right kidneyis normal. It was ascertained, however, that her left kidney is non-functioning and non-visualizing. Thus, she underwent kidneyoperation in September, 1999. On February 18, 2000, private respondents husband, RomeoSioson (as complainant), filed a complaint for gross negligence

and/or incompetence before the [BOM] against the doctors whoallegedly participated in the fateful kidney operation, namely: Dr.Judd dela Vega, Dr. Pedro Lantin, III, Dr. Gerardo AntonioFlorendo and petitioner Rico Rommel Atienza. It was alleged in the complaint that the gross negligence and/orincompetence committed by the said doctors, including petitioner,consists of the removal of private respondents fully functionalright kidney, instead of the left non-functioning and non-visualizing kidney. The complaint was heard by the [BOM]. After complainantRomeo Sioson presented his evidence, private respondent EdithaSioson, also named as complainant there, filed her formal offer ofdocumentary evidence. Attached to the formal offer ofdocumentary evidence are her Exhibits A to D, which she offeredfor the purpose of proving that her kidneys were both in theirproper anatomical locations at the time she was operated. Shedescribed her exhibits, as follows:

EXHIBIT A the certified photocopy of the X-rayRequest form dated December 12, 1996, which isalso marked as Annex 2 as it was actually originallythe Annex to x x x Dr. Pedro Lantin, IIIs counteraffidavit filed with the City Prosecutor of Pasig Cityin connection with the criminal complaint filed by[Romeo Sioson] with the said office, on which arehandwritten entries which are the interpretation ofthe results of the ultrasound examination.Incidentally, this exhibit happens to be the same asor identical to the certified photocopy of thedocument marked as Annex 2 to the Counter-Affidavit dated March 15, 2000, filed by x x x Dr.Pedro Lantin, III, on May 4, 2000, with thisHonorable Board in answer to this complaint; EXHIBIT B the certified photo copy of the X-rayrequest form dated January 30, 1997, which is alsomarked as Annex 3 as it was actually likewiseoriginally an Annex to x x x Dr. Pedro Lantin, IIIscounter-affidavit filed with the Office of the CityProsecutor of Pasig City in connection with thecriminal complaint filed by the herein complainantwith the said office, on which are handwritten entrieswhich are the interpretation of the results of theexamination. Incidentally, this exhibit happens to bealso the same as or identical to the certified photocopy of the document marked as Annex 3 which islikewise dated January 30, 1997, which is appendedas such Annex 3 to the counter-affidavit dated March

15, 2000, filed by x x x Dr. Pedro Lantin, III on May4, 2000, with this Honorable Board in answer to thiscomplaint. EXHIBIT C the certified photocopy of the X-rayrequest form dated March 16, 1996, which is alsomarked as Annex 4, on which are handwritten entrieswhich are the interpretation of the results of theexamination. EXHIBIT D the certified photocopy of the X-rayrequest form dated May 20, 1999, which is alsomarked as Annex 16, on which are handwrittenentries which are the interpretation of the results ofthe examination. Incidentally, this exhibit appears tobe the draft of the typewritten final report of thesame examination which is the document appendedas Annexes 4 and 1 respectively to the counter-affidavits filed by x x x Dr. Judd dela Vega and Dr.Pedro Lantin, III in answer to the complaint. In thecase of Dr. dela Vega however, the document whichis marked as Annex 4 is not a certified photocopy,while in the case of Dr. Lantin, the document markedas Annex 1 is a certified photocopy. Both documentsare of the same date and typewritten contents are thesame as that which are written on Exhibit D.

Petitioner filed his comments/objections to private respondents[Editha Siosons] formal offer of exhibits. He alleged that saidexhibits are inadmissible because the same are mere photocopies,not properly identified and authenticated, and intended toestablish matters which are hearsay. He added that the exhibits areincompetent to prove the purpose for which they are offered. Dispositions of the Board ofMedicine The formal offer of documentary exhibits of private respondent[Editha Sioson] was admitted by the [BOM] per its Order datedMay 26, 2004. It reads:

The Formal Offer of Documentary Evidence of[Romeo Sioson], the Comments/Objections of[herein petitioner] Atienza, [therein respondents] Dela Vega and Lantin, and the Manifestation of[therein] respondent Florendo are herebyADMITTED by the [BOM] for whatever purposethey may serve in the resolution of this case.

Let the hearing be set on July 19, 2004 all at 1:30p.m. for the reception of the evidence of therespondents. SO ORDERED.

Petitioner moved for reconsideration of the abovementionedOrder basically on the same reasons stated in hiscomment/objections to the formal offer of exhibits. The [BOM] denied the motion for reconsideration of petitioner inits Order dated October 8, 2004. It concluded that it should firstadmit the evidence being offered so that it can determine itsprobative value when it decides the case. According to the Board,it can determine whether the evidence is relevant or not if it willtake a look at it through the process of admission. x x x.[3]

Disagreeing with the BOM, and as previously adverted to, Atienza

filed a petition for certiorari with the CA, assailing the BOMs Orders whichadmitted Editha Siosons (Edithas) Formal Offer of Documentary Evidence.The CA dismissed the petition for certiorari for lack of merit.

Hence, this recourse positing the following issues: I. PROCEDURAL ISSUE: WHETHER PETITIONER ATIENZA AVAILED OF THE

PROPER REMEDY WHEN HE FILED THE PETITIONFOR CERTIORARI DATED 06 DECEMBER 2004 WITHTHE COURT OF APPEALS UNDER RULE 65 OF THERULES OF COURT TO ASSAIL THE ORDERS DATED26 MAY 2004 AND 08 OCTOBER 2004 OFRESPONDENT BOARD.

II. SUBSTANTIVE ISSUE: WHETHER THE COURT OF APPEALS COMMITTED GRAVE

REVERSIBLE ERROR AND DECIDED A QUESTIONOF SUBSTANCE IN A WAY NOT IN ACCORDANCEWITH LAW AND THE APPLICABLE DECISIONS OFTHE HONORABLE COURT WHEN IT UPHELD THEADMISSION OF INCOMPETENT ANDINADMISSIBLE EVIDENCE BY RESPONDENTBOARD, WHICH CAN RESULT IN THE DEPRIVATIONOF PROFESSIONAL LICENSE A PROPERTY RIGHTOR ONES LIVELIHOOD.[4]

We find no reason to depart from the ruling of the CA. Petitioner is correct when he asserts that a petition for certiorari is theproper remedy to assail the Orders of the BOM, admitting in evidence theexhibits of Editha. As the assailed Orders were interlocutory, these cannot bethe subject of an appeal separate from the judgment that completely orfinally disposes of the case.[5] At that stage, where there is no appeal, or anyplain, speedy, and adequate remedy in the ordinary course of law, the onlyand remaining remedy left to petitioner is a petition for certiorari under Rule65 of the Rules of Court on the ground of grave abuse of discretionamounting to lack or excess of jurisdiction.

However, the writ of certiorari will not issue absent a showing thatthe BOM has acted without or in excess of jurisdiction or with grave abuseof discretion. Embedded in the CAs finding that the BOM did not exceed itsjurisdiction or act in grave abuse of discretion is the issue of whether theexhibits of Editha contained in her Formal Offer of Documentary Evidenceare inadmissible.

Petitioner argues that the exhibits formally offered in evidence by

Editha: (1) violate the best evidence rule; (2) have not been properlyidentified and authenticated; (3) are completely hearsay; and (4) areincompetent to prove their purpose. Thus, petitioner contends that theexhibits are inadmissible evidence.

We disagree. To begin with, it is well-settled that the rules of evidence are not

strictly applied in proceedings before administrative bodies such as theBOM.[6] Although trial courts are enjoined to observe strict enforcement ofthe rules of evidence,[7] in connection with evidence which may appear to beof doubtful relevancy, incompetency, or admissibility, we have held that:

[I]t is the safest policy to be liberal, not rejecting them on doubtfulor technical grounds, but admitting them unless plainly irrelevant,immaterial or incompetent, for the reason that their rejectionplaces them beyond the consideration of the court, if they arethereafter found relevant or competent; on the other hand, theiradmission, if they turn out later to be irrelevant or incompetent,can easily be remedied by completely discarding them or ignoringthem.[8]

From the foregoing, we emphasize the distinction between the admissibilityof evidence and the probative weight to be accorded the same pieces of

evidence. PNOC Shipping and Transport Corporation v. Court ofAppeals[9] teaches:

Admissibility of evidence refers to the question of whether or notthe circumstance (or evidence) is to be considered at all. On theother hand, the probative value of evidence refers to the questionof whether or not it proves an issue. Second, petitioners insistence that the admission of Edithas exhibits

violated his substantive rights leading to the loss of his medical license ismisplaced. Petitioner mistakenly relies on Section 20, Article I of theProfessional Regulation Commission Rules of Procedure, which reads:

Section 20. Administrative investigation shall be conducted inaccordance with these Rules. The Rules of Court shall only apply in theseproceedings by analogy or on a suppletory character and wheneverpracticable and convenient. Technical errors in the admission of evidencewhich do not prejudice the substantive rights of either party shall notvitiate the proceedings.[10]

As pointed out by the appellate court, the admission of the exhibits did notprejudice the substantive rights of petitioner because, at any rate, the factsought to be proved thereby, that the two kidneys of Editha were in theirproper anatomical locations at the time she was operated on, is presumedunder Section 3, Rule 131 of the Rules of Court:

Sec. 3. Disputable presumptions. The following presumptions aresatisfactory if uncontradicted, but may be contradicted andovercome by other evidence: x x x x (y) That things have happened according to the ordinary course ofnature and the ordinary habits of life.

The exhibits are certified photocopies of X-ray Request Forms dated

December 12, 1996, January 30, 1997, March 16, 1996, and May 20, 1999,filed in connection with Edithas medical case. The documents containhandwritten entries interpreting the results of the examination. Theseexhibits were actually attached as annexes to Dr. Pedro Lantin IIIs counteraffidavit filed with the Office of the City Prosecutor of Pasig City, whichwas investigating the criminal complaint for negligence filed by Edithaagainst the doctors of Rizal Medical Center (RMC) who handled her surgicalprocedure. To lay the predicate for her case, Editha offered the exhibits inevidence to prove that her kidneys were both in their proper anatomicallocations at the time of her operation.

The fact sought to be established by the admission of Edithas exhibits,

that her kidneys were both in their proper anatomical locations at the time ofher operation, need not be proved as it is covered by mandatory judicialnotice.[11]

Unquestionably, the rules of evidence are merely the means for

ascertaining the truth respecting a matter of fact.[12] Thus, they likewiseprovide for some facts which are established and need not be proved, such asthose covered by judicial notice, both mandatory and discretionary.[13] Lawsof nature involving the physical sciences, specifically biology,[14] include the

structural make-up and composition of living things such as human beings.In this case, we may take judicial notice that Edithas kidneys before, and atthe time of, her operation, as with most human beings, were in their properanatomical locations.Third, contrary to the assertion of petitioner, the best evidence rule isinapplicable. Section 3 of Rule 130 provides:

1. Best Evidence Rule Sec. 3. Original document must be produced; exceptions. Whenthe subject of inquiry is the contents of a document, no evidenceshall be admissible other than the original document itself, exceptin the following cases: (a) When the original has been lost or destroyed, or cannot beproduced in court, without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of theparty against whom the evidence is offered, and the latter fails toproduce it after reasonable notice; (c) When the original consists of numerous accounts or otherdocuments which cannot be examined in court without great lossof time and the fact sought to be established from them is only thegeneral result of the whole; and (d) When the original is a public record in the custody of a publicofficer or is recorded in a public office.

The subject of inquiry in this case is whether respondent doctors before theBOM are liable for gross negligence in removing the right functioningkidney of Editha instead of the left non-functioning kidney, not the properanatomical locations of Edithas kidneys. As previously discussed, the properanatomical locations of Edithas kidneys at the time of her operation at theRMC may be established not only through the exhibits offered in evidence.

Finally, these exhibits do not constitute hearsay evidence of theanatomical locations of Edithas kidneys. To further drive home the point, theanatomical positions, whether left or right, of Edithas kidneys, and theremoval of one or both, may still be established through a belated ultrasoundor x-ray of her abdominal area. In fact, the introduction of secondary evidence, such as copies of theexhibits, is allowed.[15] Witness Dr. Nancy Aquino testified that the RecordsOffice of RMC no longer had the originals of the exhibits because [it]

transferred from the previous building, x x x to the new building.[16] Ultimately, since the originals cannot be produced, the BOM properlyadmitted Edithas formal offer of evidence and, thereafter, the BOM shalldetermine the probative value thereof when it decides the case.

WHEREFORE, the petition is DENIED. The Decision of the Courtof Appeals in CA-G.R. SP No. 87755 is AFFIRMED. Costs againstpetitioner.

SO ORDERED.

G.R. Nos. 96027-28 March 08, 2005

BRIG. GEN. LUTHER A. CUSTODIO*, CAPT. ROMEO M. BAUTISTA, 2nd LT. JESUS D. CASTRO, SGT. 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.

R E S O L U T I O N

PUNO, J.:

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 Aquino’s 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. TheCourt 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

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 Attorney’s 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 re-opening of the case:

I

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 theSandiganbayan, 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

There was serious misapprehension of facts on the part of the Sandiganbayan basedon false forensic evidence, which entitles petitioners-movants 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 ofthe 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 submittedto 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 Court’s 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 theaccused 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.

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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 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 renderedaccordingly. (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 anadverse 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 wouldprobably 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 thetestimony 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 tothe latter that the requirement of due diligence has relevance.14 We have held that in 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 conductedby the NBI Medico-legal team headed by Dr. Mu[ñ]oz; and the autopsy report of the late Sen. Benigno Aquino[,] Jr. signed by Dr. Mu[ñ]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 military’s 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 slug’s 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 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 thedefense 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 physicalevidence

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 inthe autopsy, Dr. Bienvenido Muñoz, 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 Muñoz 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. Muñoz 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 Muñoz in this regard notwithstanding, We hold that thetrajectory 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 whichthough 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 Muñoz, manifested before the Court, that, since the wound of entrance appeared ovaloid andthere 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 woundof 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. Muñoz that the trajectory was upward, downward and medially. On the other hand, Dr. Juanito Billote and photographer Alexander Loinaz witnessed the fact that Dr. Muñoz’[s] understudy, Alejandrino Javier, had successfully made a probe from the wound of entrance directly towards the wound of exit. Alejandrino Javier shouted withexcitement 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")

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 wouldhave 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, itcould 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.

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 explanationsfor the fracture of the petrous bone:

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.

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.

Doubt was expressed by Dr. Pedro Solis as to whether the metal fragments alleged by Dr. Bienvenido Muñoz 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.

Finding of a downwardtrajectory of thefatal bullet fatalto the credibilityof defense witnesses.

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 Quijano’s 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 SandraJean 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.

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 fromthe 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 asregards the bridge stairs:

"Observations:

The length of one block covering the tarmac – 19’6";

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 – 12’6";

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 – 20’8";

Distance from the first rung of the stairway up to the 20th rung until the edge of the exit door – 23’11";

Distance from the 4th rung up to the exit door – 21’;

Distance from the 5th rung up to the exit door – 19’11";

Length of one rung including railpost – 3’4";

Space between two rungs of stairway – 9";

Width of each rung – 11-1/2";

Length of each rung (end to end) – 2’9":

Height of railpost from edge of rung to railing – 2’5".

(underlining supplied)20

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-t-2" indicated a downward trajectory ofthe fatal bullet when it stated that the fatal bullet was "forward, downward, and medially . . ."

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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 Muñoz, 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 ofapproach, 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 thatof 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 Muñoz 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 Billote’s testimony in this regard had amplified the matter with clarity.

xxx

These physical facts, notwithstanding the arguments and protestations of counsel forthe 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 aperson 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.

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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, theparticipants in the conspiracy, the individual roles of the accused and their respectiveparts 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 bebelieved 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 thatthey 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 Senator’s 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 latter’s nape. As earlier quoted, the Sandiganbayan found their testimonies to be more consistent with the physical evidence. SPO4 Cantimbuhan’s testimony will not in any way alter the court’s 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 isof 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.

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 notallege 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 thetrial 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, thesufficiency, 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 hadcounsel proceeded differently. (citations omitted)

Finally, we are not moved by petitioners’ assertion that the forensic evidence may have beenmanipulated 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.

SO ORDERED.