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2
Upon such findings, amply supported by the evidence on
record, the trial court rendered its decision, the dispositive
part of which reads as follows: 6
WHEREFORE, premises considered, the defendant is
hereby ordered:
a) To pay the plaintiff SEVENTY THOUSAND (P70,000.00)
PESOS actual and compensatory damages;
b) TWO THOUSAND (P2,000.00) PESOS for attorney's fees;
c) FIVE THOUSAND (P5,000.00) PESOS for moral damages;
and
d) To pay the costs of this suit. On the third-party
complaint, the third-party defendant is ordered to
indemnify the defendant/third party plaintiff-.
a) The sum of FIFTY THOUSAND (P50,000.00) PESOS for
actual and compensatory damages; and
b) The costs of this suit.
The Intermediate Appellate Court as earlier stated
reversed the decision of the trial court and dismissed the
complaint, the third-party complaint, and the counterclaims of both appellants. 7
Hence, this petition.
The petitioner alleges the following errors. 8
1. WHETHER UPON THE GIVEN FACTS, THE INTERMEDIATE
APPELLATE COURT ACTED CORRECTLY IN REVERSING AND
SETTING ASIDE AND DISMISSING THE PLAINTIFFAPPELLEE'S COMPLAINT.
2. WHETHER THE INTERMEDIATE APPELLATE COURT
ACTED CORRECTLY IN APPLYING THE DOCTRINE OF "RES
IPSA LOQUITUR" WITH PROPER JURIS- PRUDENTIAL (sic)
BASIS.
The crux of the controversy lies in the correctness or error
of the decision of the respondent court finding the
petitioner negligent under the doctrine of Res ipsa
loquitur (The
thing
speaks
for
itself).<re||
an1w> Corollary thereto, is the question as to who is
negligent, if the doctrine is inapplicable.
The respondent corporation stresses that the issues raised
in the petition being factual, the same is not reviewable by
this Court in a petition for review by certiorari. 9
Indeed, it is an elementary rule in the review of decisions
of the Court of Appeals that its findings of fact are entitled
to great respect and will not ordinarily be disturbed by this
Court. 10 For if we have to review every question of fact
elevated to us, we would hardly have any more time left
for the weightier issues compelling and deserving our
preferential attention. 11 Be that as it may, this rule is not
inflexible. Surely there are established exceptions 12
when the Court should review and rectify the findings of
fact of the lower court, such as:
1) when the conclusion is a finding grounded entirely on
speculation, surmise, or conjecture; 2) the inference made
is manifestly mistaken; 3) there is grave abuse of
discretion; 4) the judgment is based on misapprehension
of facts; 5) the Court of Appeals went beyond the issues of
the case if the findings are contrary to the admission of
both the appellant and the appellee; 6) the findings of the
Court of Appeals are contrary to those of the trial court; 7)
the said findings of fact are conclusions without citation of
specific evidence on which they are based; 8) the facts set
forth in the petition as well as in the petitioner's main and
reply briefs are not disputed by the respondents; and 9)
when the findings of fact of the Court of Appeals are
premised on the absence of evidence and are contradicted
on record.
Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case to
warrant a deviation from the general rule.
From its finding that the parked truck was loaded with ten
(10) big round logs 13 the Court of Appeals inferred that
because of its weight the truck could not have been driven
3
prudent person would have used in the same situation? If
not, then he is guilty of negligence. The law here in effect
adopts the standard supposed to be supplied by the
imaginary conduct of the discreet paterfamilias of the
Roman law. The existence of negligence in a given case is
not determined by reference to the personal judgment of
the actor in the situation before him. The Law considers
what would be reckless, blameworthy, or negligent in the
man of ordinary intelligence and prudence and determines
liability by that.
Respondent Isidro posits that any immobile object along
the highway, like a parked truck, poses serious danger to
a moving vehicle which has the right to be on the highway.
He argues that since the parked cargo truck in this case
was a threat to life and limb and property, it was
incumbent upon the driver as well as the petitioner, who
claims to be a helper of the truck driver, to exercise
extreme care so that the motorist negotiating the road
would be properly forewarned of the peril of a parked
vehicle. Isidro submits that the burden of proving that care
and diligence were observed is shifted to the petitioner,
for, as previously claimed, his (Isidro's) Isuzu truck had a
right to be on the road, while the immobile cargo truck
had no business, so to speak, to be there. Likewise, Isidro
proffers that the petitioner must show to the satisfaction
of a reasonable mind that the driver and he (petitioner)
himself, provided an early warning device, like that
required by law, or, by some other adequate means that
would properly forewarn vehicles of the impending danger
that the parked vehicle posed considering the time, place,
and other peculiar circumstances of the occasion. Absent
such proof of care, as in the case at bar, Isidro concludes,
would, under the doctrine of Res ipsa loquitur, evoke the
presumption of negligence on the part of the driver of the
parked cargo truck as well as his helper, the petitioner
herein, who was fixing the flat tire of the said truck. 27
Respondent Isidro's contention is untenable.
The evidence on record discloses that three or four meters
from the rear of the parked truck, a lighted kerosene lamp
was placed. 28 Moreover, there is the admission of
respondent Isidro's driver, Daniel Serrano, to Wit: 29
Question No. 8 (by Patrolman Josefino Velasco)Will you
narrate to me in brief how the accident happens (sic) if
you can still remember?
Answer: (by Daniel Serrano)
That on or about 10:40 p.m., 15 May 1979 while driving
Isuzu truck at Baretbet, Bagabag, Nueva Vizcaya and at
KM 285, I met another vehicle who (sic) did not dim his
(sic) lights which cause (sic) me to be blinded with intense
glare of the light that's why I did not notice a parked truck
who (sic) was repairing a front flat tire. When I was a few
meters away, I saw the truck which was loaded with round
logs. I step (sic) on my foot brakes but it did not function
with my many attempts. I have (sic) found out later that
the fluid pipe on the rear right was cut that's why the
breaks did not function. (Emphasis supplied).
Whether the cargo truck was parked along the road or on
half the shoulder of the right side of the road would be of
no moment taking into account the warning device
consisting of the lighted kerosene lamp placed three or
four meters from the back of the truck. 30 But despite this
warning which we rule as sufficient, the Isuzu truck driven
by Daniel Serrano, an employee of the private respondent,
still bumped the rear of the parked cargo truck. As a direct
32
4
things would not happen if reasonable care had been
used.
In this jurisdiction we have applied this doctrine in quite a
number of cases, notably in Africa et al. vs. Caltex, Inc., et
al., 35 and the latest is in the case of F.F. Cruz and Co., Inc.
vs. CA. 36
The doctrine of Res ipsa loquitur as a rule of evidence is
peculiar to the law of negligence which recognizes that
prima facie negligence may be established without direct
proof and furnishes a substitute for specific proof of
negligence. 37 The doctrine is not a rule of substantive
law 38 but merely a mode of proof or a mere procedural
convenience. 39 The rule, when applicable to the facts and
circumstances of a particular case, is not intended to and
does not dispense with the requirement of proof of
culpable negligence on the part of the party charged. 40 It
merely determines and regulates what shall be prima facie
evidence thereof and facilitates the burden of plaintiff of
proving a breach of the duty of due care. 41 The doctrine
can be invoked when and only when, under the
circumstances involved, direct evidence is absent and not
readily available. 42 Hence, it has generally been held that
the presumption of inference arising from the doctrine
cannot be availed of, or is overcome, where plaintiff has
knowledge and testifies or presents evidence as to the
specific act of negligence which is the cause of the injury
complained of or where there is direct evidence as to the
precise cause of the accident and all the facts and
circumstances attendant on the occurrence clearly
appear. 43 Finally, once the actual cause of injury is
established beyond controversy, whether by the plaintiff
or by the defendant, no presumptions will be involved and
the
doctrine
becomes
inapplicable
when
the
circumstances have been so completely eludicated that no
inference of defendant's liability can reasonably be made,
whatever the source of the evidence, 44 as in this case.
The private respondent is sued under Art. 2176 in relation
to Art. 2180, paragraph 5, of the Civil Code. In the latter,
when an injury is caused by the negligence of a servant or
employee there instantly arises a presumption of law that
there was negligence on the part of the master or
employer either in the selection of the servant or
employee, or in supervision over him after selection, or
both. Such presumption is juris tantum and not juris et de
jure and consequently, may be rebutted. If follows
necessarily that if the employer shows to the satisfaction
of the court that in the selection and in the supervision he
has exercised the care and diligence of a good father of a
family, the presumption is overcome and he is relieved
from liability. 45 In disclaiming liability for the incident, the
private respondent stresses that the negligence of his
employee has already been adequately overcome by his
driver's statement that he knew his responsibilities as a
driver and that the truck owner used to instruct him to be
careful in driving. 46
We do not agree with the private respondent in his
submission. In the first place, it is clear that the driver did
not know his responsibilities because he apparently did
not check his vehicle before he took it on the road. If he
did he could have discovered earlier that the brake fluid
pipe on the right was cut, and could have repaired it and
thus the accident could have been avoided. Moveover, to
our mind, the fact that the private respondent used to
intruct his driver to be careful in his driving, that the driver
was licensed, and the fact that he had no record of any
accident, as found by the respondent court, are not
sufficient to destroy the finding of negligence of the
5
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
anesthesiologists fee and which was to be paid after the
operation (TSN, October 19, 1989, pp. 14-15, 22-23, 3133; TSN, February 27, 1990, p. 13; and TSN, November 9,
1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was
admitted at one of the rooms of the DLSMC, located along
E. Rodriguez Avenue, Quezon City (TSN, October 19, 1989,
p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in her
room, she was prepared for the operation by the hospital
staff. Her sister-in-law, Herminda Cruz, who was the Dean
of the College of Nursing at the Capitol Medical Center,
was also there for moral support. She reiterated her
previous request for Herminda to be with her even during
the operation. After praying, she was given injections. Her
hands were held by Herminda as they went down from her
room to the operating room (TSN, January 13, 1988, pp. 911). Her husband, Rogelio, was also with her (TSN,
October 19, 1989, p. 18). At the operating room, Herminda
saw about two or three nurses and Dr. Perfecta Gutierrez,
the
other
defendant,
who
was
to
administer
anesthesia. Although not a member of the hospital staff,
Herminda introduced herself as Dean of the College of
Nursing at the Capitol Medical Center who was to provide
moral support to the patient, to them. Herminda was
allowed to stay inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone
to look for Dr. Hosaka who was not yet in (TSN, January 13,
1988, pp. 11-12). Dr. Gutierrez thereafter informed
Herminda Cruz about the prospect of a delay in the arrival
of Dr. Hosaka. Herminda then went back to the patient
who asked, Mindy, wala pa ba ang Doctor? The former
replied, Huwag kang mag-alaala, darating na iyon (ibid.).
Thereafter, Herminda went out of the operating room and
informed the patients husband, Rogelio, that the doctor
was not yet around (id., p. 13). When she returned to the
operating room, the patient told her, Mindy, inip na inip na
ako, ikuha mo ako ng ibang Doctor. So, she went out again
and told Rogelio about what the patient said (id., p.
15). Thereafter, she returned to the operating room.
6
Erlinda Ramos stayed at the ICU for a month. About four
months thereafter or on November 15, 1985, the patient
was released from the hospital.
During the whole period of her confinement, she incurred
hospital bills amounting to P93,542.25 which is the subject
of a promissory note and affidavit of undertaking executed
by Rogelio E. Ramos in favor of DLSMC. Since that fateful
afternoon of June 17, 1985, she has been in a comatose
condition. She cannot do anything. She cannot move any
part of her body. She cannot see or hear. She is living on
mechanical means. She suffered brain damage as a result
of the absence of oxygen in her brain for four to five
minutes (TSN, November 9, 1989, pp. 21-22). After being
discharged from the hospital, she has been staying in their
residence, still needing constant medical attention, with
her husband Rogelio incurring a monthly expense ranging
from P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp.
32-34). She was also diagnosed to be suffering from
diffuse cerebral parenchymal damage (Exh. G; see also
TSN, December 21, 1989, p. 6).[5]
Thus, on 8 January 1986, petitioners filed a civil case [6] for
damages with the Regional Trial Court of Quezon City
against herein private respondents alleging negligence in
the management and care of Erlinda Ramos.
During the trial, both parties presented evidence as to the
possible cause of Erlindas injury. Plaintiff presented the
testimonies of Dean Herminda Cruz and Dr. Mariano
Gavino to prove that the damage sustained by Erlinda was
due to lack of oxygen in her brain caused by the faulty
management of her airway by private respondents during
the anesthesia phase. On the other hand, private
respondents primarily relied on the expert testimony of Dr.
Eduardo Jamora, a pulmonologist, to the effect that the
cause of brain damage was Erlindas allergic reaction to
the anesthetic agent, Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the
Regional Trial Court rendered judgment in favor of
petitioners, to wit:
After evaluating the evidence as shown in the finding of
facts set forth earlier, and applying the aforecited
provisions of law and jurisprudence to the case at bar, this
Court finds and so holds that defendants are liable to
plaintiffs for damages. The defendants were guilty of, at
the very least, negligence in the performance of their duty
to plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that
she omitted to exercise reasonable care in not only
intubating the patient, but also in not repeating the
administration of atropine (TSN, August 20, 1991, pp. 510), 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
7
Clerk of Court of the Court of Appeals had not yet served a
copy thereof to the counsel on record. Despite this
explanation, the appellate court still denied the motion to
admit the motion for reconsideration of petitioners in its
Resolution, dated 29 March 1996, primarily on the ground
that the fifteen-day (15) period for filing a motion for
reconsideration had already expired, to wit:
We said in our Resolution on July 25, 1995, that the filing
of a Motion for Reconsideration cannot be extended;
precisely, the Motion for Extension (Rollo, p. 12) was
denied. It is, on the other hand, admitted in the latter
Motion that plaintiffs/appellees received a copy of the
decision as early as June 9, 1995. Computation wise, the
period to file a Motion for Reconsideration expired on June
24. The Motion for Reconsideration, in turn, was received
by the Court of Appeals already on July 4, necessarily, the
15-day period already passed. For that alone, the latter
should be denied.
Even assuming admissibility of the Motion for
Reconsideration,
but
after
considering
the
Comment/Opposition, the former, for lack of merit, is
hereby DENIED.
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]
8
mere invocation and application of the doctrine does not
dispense with the requirement of proof of negligence. It is
simply a step in the process of such proof, permitting the
plaintiff to present along with the proof of the accident,
enough of the attending circumstances to invoke the
doctrine, creating an inference or presumption of
negligence, and to thereby place on the defendant the
burden of going forward with the proof. [20] Still, before
resort to the doctrine may be allowed, the following
requisites must be satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur
in the absence of someones negligence;
2. It is caused by an instrumentality within the exclusive
control of the defendant or defendants; and
3. The possibility of contributing conduct which would
make the plaintiff responsible is eliminated.[21]
In the above requisites, the fundamental element is the
control of the instrumentality which caused the damage.
[22]
Such element of control must be shown to be within
the dominion of the defendant. In order to have the
benefit of the rule, a plaintiff, in addition to proving injury
or damage, must show a situation where it is applicable,
and must establish that the essential elements of the
doctrine were present in a particular incident.[23]
Medical malpractice[24]cases do not escape the application
of this doctrine. Thus, res ipsa loquitur has been applied
when the circumstances attendant upon the harm are
themselves of such a character as to justify an inference
of negligence as the cause of that harm. [25] The application
of res ipsa loquitur in medical negligence cases presents a
question of law since it is a judicial function to determine
whether a certain set of circumstances does, as a matter
of law, permit a given inference.[26]
Although generally, expert medical testimony is relied
upon in malpractice suits to prove that a physician has
done a negligent act or that he has deviated from the
standard medical procedure, when the doctrine of res ipsa
loquitur is availed by the plaintiff, the need for expert
medical testimony is dispensed with because the injury
itself provides the proof of negligence. [27] The reason is
that the general rule on the necessity of expert testimony
applies only to such matters clearly within the domain of
medical science, and not to matters that are within the
common knowledge of mankind which may be testified to
by anyone familiar with the facts.[28] Ordinarily, only
physicians and surgeons of skill and experience are
competent to testify as to whether a patient has been
treated or operated upon with a reasonable degree of skill
and care. However, testimony as to the statements and
acts of physicians and surgeons, external appearances,
and manifest conditions which are observable by any one
may be given by non-expert witnesses.[29] Hence, in cases
where the res ipsa loquitur is applicable, the court is
permitted to find a physician negligent upon proper proof
of injury to the patient, without the aid of expert
testimony, where the court from its fund of common
knowledge can determine the proper standard of care.
[30]
Where common knowledge and experience teach that
a resulting injury would not have occurred to the patient if
due care had been exercised, an inference of negligence
may be drawn giving rise to an application of the doctrine
of res ipsa loquitur without medical evidence, which is
ordinarily required to show not only what occurred but
how and why it occurred.[31] When the doctrine is
appropriate, all that the patient must do is prove a nexus
9
The plaintiff herein submitted himself for a mastoid
operation and delivered his person over to the care,
custody and control of his physician who had complete
and exclusive control over him, but the operation was
never performed. At the time of submission he was
neurologically sound and physically fit in mind and body,
but he suffered irreparable damage and injury rendering
him decerebrate and totally incapacitated. The injury was
one which does not ordinarily occur in the process of a
mastoid operation or in the absence of negligence in the
administration of an anesthetic, and in the use and
employment of an endoctracheal tube. Ordinarily a person
being put under anesthesia is not rendered decerebrate as
a consequence of administering such anesthesia in the
absence of negligence. Upon these facts and under these
circumstances a layman would be able to say, as a matter
of common knowledge and observation, that the
consequences of professional treatment were not as such
as would ordinarily have followed if due care had been
exercised.
Here the plaintiff could not have been guilty of
contributory negligence because he was under the
influence of anesthetics and unconscious, and the
circumstances are such that the true explanation of event
is more accessible to the defendants than to the plaintiff
for they had the exclusive control of the instrumentalities
of anesthesia.
Upon all the facts, conditions and circumstances alleged in
Count II it is held that a cause of action is stated under the
doctrine of res ipsa loquitur.[44]
Indeed, the principles enunciated in the aforequoted case
apply with equal force here. In the present case, Erlinda
submitted herself for cholecystectomy and expected a
routine general surgery to be performed on her gall
bladder. On that fateful day she delivered her person over
to the care, custody and control of private respondents
who exercised complete and exclusive control over her. At
the time of submission, Erlinda was neurologically sound
and, except for a few minor discomforts, was likewise
physically fit in mind and body. However, during the
administration of anesthesia and prior to the performance
of cholecystectomy she suffered irreparable damage to
her brain. Thus, without undergoing surgery, she went out
of the operating room already decerebrate and totally
incapacitated. Obviously, brain damage, which Erlinda
sustained, is an injury which does not normally occur in
the process of a gall bladder operation. In fact, this kind of
situation does not happen in the absence of negligence of
someone in the administration of anesthesia and in the
use of endotracheal tube. Normally, a person being put
under anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia if the
proper
procedure
was
followed. Furthermore,
the
instruments used in the administration of anesthesia,
including the endotracheal tube, were all under the
exclusive control of private respondents, who are the
physicians-in-charge. Likewise, petitioner Erlinda could not
have been guilty of contributory negligence because she
was under the influence of anesthetics which rendered her
unconscious.
Considering that a sound and unaffected member of the
body (the brain) is injured or destroyed while the patient is
unconscious and under the immediate and exclusive
control of the physicians, we hold that a practical
administration of justice dictates the application of res
ipsa loquitur. Upon these facts and under these
circumstances the Court would be able to say, as a matter
10
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 I have said, I was with the patient, I was beside the
stretcher holding the left hand of the patient and all of a
sudden I heard some remarks coming from Dra. Perfecta
Gutierrez herself. She was saying Ang hirap ma-intubate
nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.
xxx
ATTY. PAJARES:
Q: From whom did you hear those words lumalaki ang
tiyan?
A: From Dra. Perfecta Gutierrez.
xxx
After hearing the phrase lumalaki ang tiyan, what did you
notice on the person of the patient?
A: I notice (sic) some bluish discoloration on the nailbeds
of the left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particular
time?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if
any?
A: He made an order to call on the anesthesiologist in the
person of Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the
operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the patient, after
a while the patients nailbed became bluish and I saw the
patient was placed in trendelenburg position.
xxx
Q: Do you know the reason why the patient was placed in
that trendelenburg position?
A: As far as I know, when a patient is in that position,
there is a decrease of blood supply to the brain.[46]
xxx
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
11
The argument does not convince us. If this was indeed
observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough
assessment of Erlindas airway, prior to the induction of
anesthesia, even if this would mean postponing the
procedure. From their testimonies, it appears that the
observation was made only as an afterthought, as a
means of defense.
The pre-operative evaluation of a patient prior to the
administration of anesthesia is universally observed to
lessen the possibility of anesthetic accidents. Preoperative evaluation and preparation for anesthesia
begins when the anesthesiologist reviews the patients
medical records and visits with the patient, traditionally,
the day before elective surgery.[53] It includes taking the
patients 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 patients 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 patients 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 physicians centuries-old
Hippocratic Oath. Her failure to follow this medical
procedure is, therefore, a clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss
over this omission by playing around with the trial court's
ignorance of clinical procedure, hoping that she could get
away with it. Respondent Dra. Gutierrez tried to muddle
the difference between an elective surgery and an
emergency surgery just so her failure to perform the
required
pre-operative
evaluation
would
escape
unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical
practice to see the patient a day before so you can
introduce yourself to establish good doctor-patient
relationship and gain the trust and confidence of the
patient?
DRA. GUTIERREZ:
12
the drug not from the practical experience gained by a
specialist or expert in the administration and use of
Sodium Pentothal on patients, but only from reading
certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have
any occasion to use pentothal as a method of
management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when
they have to intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is
based only on what you have read from books and not by
your own personal application of the medicine pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during
my appendectomy.
Q: And because they have used it on you and on account
of your own personal experience you feel that you can
testify on pentothal here with medical authority?
A: No. That is why I used references to support my claims.
[61]
13
result of the inadequate oxygenation of her brain for about
four to five minutes.[68]
The above conclusion is not without basis. Scientific
studies point out that intubation problems are responsible
for one-third (1/3) of deaths and serious injuries
associated with anesthesia.[69]Nevertheless, ninety-eight
percent (98%) or the vast majority of difficult intubations
may be anticipated by performing a thorough evaluation
of the patients 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 preoperative evaluation, respondent physician could have
been much more prepared to meet the contingency
brought about by the perceived anatomic variations in the
patients neck and oral area, defects which would have
been easily overcome by a prior knowledge of those
variations together with a change in technique. [71] In other
words, an experienced anesthesiologist, adequately
alerted by a thorough pre-operative evaluation, would
have had little difficulty going around the short neck and
protruding teeth.[72] Having failed to observe common
medical standards in pre-operative management and
intubation, respondent Dra. Gutierrez negligence resulted
in cerebral anoxia and eventual coma of Erlinda.
We now determine the responsibility of respondent Dr.
Orlino Hosaka as the head of the surgical team. As the socalled captain of the ship,[73] it is the surgeons
responsibility to see to it that those under him perform
their task in the proper manner. Respondent Dr. Hosakas
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 Erlindas cholecystectomy, and was in fact
over three hours late for the latters 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 Erlindas 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.
14
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 homebased care for a comatose individual.The calculated
amount was not even arrived at by looking at the actual
cost of proper hospice care for the patient. What it
reflected were the actual expenses incurred and proved by
the petitioners after they were forced to bring home the
patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a
hospital or be transferred to a hospice specializing in the
care of the chronically ill for the purpose of providing a
proper milieu adequate to meet minimum standards of
care. In the instant case for instance, Erlinda has to be
constantly turned from side to side to prevent bedsores
and hypostatic pneumonia. Feeding is done by nasogastric
tube. Food preparation should be normally made by a
dietitian to provide her with the correct daily caloric
requirements and vitamin supplements. Furthermore, she
has to be seen on a regular basis by a physical therapist
to avoid muscle atrophy, and by a pulmonary therapist to
prevent the accumulation of secretions which can lead to
respiratory complications.
Given these considerations, the amount of actual
damages recoverable in suits arising from negligence
should at least reflect the correct minimum cost of proper
care, not the cost of the care the family is usually
compelled
to
undertake
at
home
to
avoid
bankruptcy. However, the provisions of the Civil Code on
actual or compensatory damages present us with some
difficulties.
Well-settled is the rule that actual damages which may be
claimed by the plaintiff are those suffered by him as he
has duly proved. The Civil Code provides:
Art. 2199. - Except as provided by law or by stipulation,
one is entitled to an adequate compensation only for such
pecuniary loss suffered by him as he has duly
proved. Such compensation is referred to as actual or
compensatory damages.
Our rules on actual or compensatory damages generally
assume that at the time of litigation, the injury suffered as
a consequence of an act of negligence has been
completed and that the cost can be liquidated. However,
these provisions neglect to take into account those
situations, as in this case, where the resulting injury might
be continuing and possible future complications directly
arising from the injury, while certain to occur, are difficult
to predict.
In these cases, the amount of damages which should be
awarded, if they are to adequately and correctly respond
to the injury caused, should be one which compensates
for pecuniary loss incurred and proved, up to the time of
trial; and one which would meet pecuniary loss certain to
be suffered but which could not, from the nature of the
case, be made with certainty. [80] In other words, temperate
15
therapy. All of these
documented, are painful.
adjustments,
it
has
been
intubation in a salutary
respondents case.
way
was
fatal
to
private
D.
M.
CONSUNJI,
INC., petitioner,
vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.
KAPUNAN, J.:
16
3. P464,000.00 for the loss of Jose A. Juegos earning
capacity.
4. P100,000.00 as moral damages.
5. P20,000.00 as attorneys fees, plus the costs of suit.
SO ORDERED.2
On appeal by D. M. Consunji, the Court of Appeals (CA)
affirmed the decision of the RTC in toto.
D. M. Consunji now seeks the reversal of the CA decision
on the following grounds:
17
such documents, which is not extended to private
documents. (3 Wigmore on Evidence, Sec. 1631).
18
agency which caused the injury was under the exclusive
control of the person charged with negligence; and (3) the
injury suffered must not have been due to any voluntary
action or contribution on the part of the person injured. x x
x.
No worker is going to fall from the 14th floor of a building
to the basement while performing work in a construction
site unless someone is negligent[;] thus, the first requisite
for the application of the rule of res ipsa loquitur is
present. As explained earlier, the construction site with all
its paraphernalia and human resources that likely caused
the injury is under the exclusive control and management
of appellant[;] thus[,] the second requisite is also present.
No contributory negligence was attributed to the
appellees deceased husband[;] thus[,] the last requisite is
also present. All the requisites for the application of the
rule of res ipsa loquitur are present, thus a reasonable
presumption or inference of appellants negligence arises.
x x x.24
Petitioner does not dispute the existence of the requisites
for the application of res ipsa loquitur, but argues that the
presumption or inference that it was negligent did not
arise since it "proved that it exercised due care to avoid
the accident which befell respondents husband."
Petitioner apparently misapprehends the procedural effect
of the doctrine. As stated earlier, the defendants
negligence is presumed or inferred25 when the plaintiff
establishes the requisites for the application of res ipsa
loquitur. Once the plaintiff makes out a prima facie case of
all the elements, the burden then shifts to defendant to
explain.26 The presumption or inference may be rebutted
or overcome by other evidence and, under appropriate
circumstances disputable presumption, such as that of
due care or innocence, may outweigh the inference.27 It is
not for the defendant to explain or prove its defense to
prevent the presumption or inference from arising.
Evidence by the defendant of say, due care, comes into
play only after the circumstances for the application of the
doctrine has been established.1wphi1.nt
In any case, petitioner cites the sworn statement of its
leadman Ferdinand Fabro executed before the police
investigator as evidence of its due care. According to
Fabros sworn statement, the company enacted rules and
regulations for the safety and security of its workers.
Moreover, the leadman and the bodegero inspect the
chain block before allowing its use.
It is ironic that petitioner relies on Fabros sworn
statement as proof of its due care but, in arguing that
private respondent failed to prove negligence on the part
of petitioners employees, also assails the same statement
for being hearsay.
Petitioner is correct. Fabros sworn statement is hearsay
and inadmissible. Affidavits are inadmissible as evidence
under the hearsay rule, unless the affiant is placed on the
witness stand to testify thereon.28 The inadmissibility of
this sort of evidence is based not only on the lack of
opportunity on the part of the adverse party to crossexamine the affiant, but also on the commonly known fact
that, generally, an affidavit is not prepared by the affiant
himself but by another who uses his own language in
writing the affiants statements which may either be
omitted or misunderstood by
the one
writing
them.29 Petitioner, therefore, cannot use said statement as
proof of its due care any more than private respondent
can use it to prove the cause of her husbands death.
19
In disposing of a similar issue, this Court in Pacaa vs.
Cebu Autobus Company, 32 SCRA 442, ruled that an
injured worker has a choice of either to recover from the
employer the fixed amounts set by the Workmens
Compensation Act or to prosecute an ordinary civil action
against the tortfeasor for higher damages but he cannot
pursue
both
courses
of
action
simultaneously.
[Underscoring supplied.]
20
not know that she may also recover more from the Civil
Code than from the ECC. x x x.36
21
pension from November 1990 to March 1991. Her initial
monthly pension, according to the same Exhibit "K," was
P596.97 and present total monthly pension was P716.40.
Whether the total amount she will eventually receive from
the ECC is less than the sum of P644,000.00 in total
damages awarded by the trial court is subject to
speculation, and the case is remanded to the trial court for
such determination. Should the trial court find that its
award is greater than that of the ECC, payments already
received by private respondent under the Labor Code shall
be deducted from the trial court' award of damages.
Consistent with our ruling in Floresca, this adjudication
aims to prevent double compensation.
WHEREFORE, the case is REMANDED to the Regional Trial
Court of Pasig City to determine whether the award
decreed in its decision is more than that of the ECC.
Should the award decreed by the trial court be greater
than that awarded by the ECC, payments already made to
private respondent pursuant to the Labor Code shall be
deducted therefrom. In all other respects, the Decision of
the Court of Appeals is AFFIRMED.
FAR
EASTERN
SHIPPING
COMPANY, petitioner,
vs. COURT OF APPELAS and PHILIPPINE PORTS
AUTHORITY, respondents.
[G.R. No. 130150. October 1, 1998]
MANILA
PILOTS
ASSOCIATION, petitioner,
vs. PHILIPPINE PORTS AUTHORITY and FAR EASTERN
SHIPPING COMPANY, respondents.
DECISION
REGALADO, J.:
These consolidated petitions for review on certiorari seek
in unison to annul and set aside the decision [1] of
respondent Court of Appeals of November 15, 1996 and
its resolution[2]dated July 31, 1997 in CA-G.R. CV No.
24072, entitled Philippine Ports Authority, PlaintiffAppellee vs. Far Eastern Shipping Company, Senen C.
Gavino
and
Manila
Pilots
Association.DefendantsAppellants, which affirmed with modification the judgment
of the trial court holding the defendants-appellants therein
solidarily liable for damages in favor of herein private
respondent.
There is no dispute about the facts as found by the
appellate court, thus -x x x On June 20, 1980, the M/V PAVLODAR, flying under
the flagship of the USSR, owned and operated by the Far
Eastern Shipping Company (FESC for brevitys sake),
arrived at the Port of Manila from Vancouver, British
Columbia at about 7:00 oclock in the morning. The vessel
was assigned Berth 4 of the Manila International Port, as
its berthing space. Captain Roberto Abellana was tasked
by the Philippine Port Authority to supervise the berthing
of the vessel. Appellant Senen Gavino was assigned by the
appellant Manila Pilots Association (MPA for brevitys sake)
to conduct docking maneuvers for the safe berthing of the
vessel to Berth No. 4.
Gavino boarded the vessel at the quarantine anchorage
and stationed himself in the bridge, with the master of the
vessel, Victor Kavankov, beside him. After a briefing of
Gavino by Kavankov of the particulars of the vessel and its
cargo, the vessel lifted anchor from the quarantine
anchorage and proceeded to the Manila International
Port. The sea was calm and the wind was ideal for docking
maneuvers.
When the vessel reached the landmark (the big church by
the Tondo North Harbor) one-half mile from the pier,
Gavino ordered the engine stopped. When the vessel was
already about 2,000 feet from the pier, Gavino ordered the
anchor dropped. Kavankov relayed the orders to the crew
of the vessel on the bow. The left anchor, with two (2)
shackles were dropped.However, the anchor did not take
hold as expected. The speed of the vessel did not
slacken. A commotion ensued between the crew
members. A brief conference ensued between Kavankov
and the crew members. When Gavino inquired what was
all the commotion about, Kavankov assured Gavino that
there was nothing of it.
After Gavino noticed that the anchor did not take hold, he
ordered the engines half-astern. Abellana, who was then
on the pier apron, noticed that the vessel was approaching
the pier fast.Kavankov likewise noticed that the anchor did
not take hold. Gavino thereafter gave the full-astern
code. Before the right anchor and additional shackles
could be dropped, the bow of the vessel rammed into the
apron of the pier causing considerable damage to the
pier. The vessel sustained damage too. (Exhibit 7-Far
Eastern Shipping). Kavankov filed his sea protest
(Exhibit 1-Vessel). Gavino submitted his report to the Chief
Pilot (Exhibit 1-Pilot) who referred the report to the
Philippine Ports Authority (Exhibit 2-Pilot) Abellana likewise
submitted his report of the incident (Exhibit B).
Per contract and supplemental contract of the Philippine
Ports Authority and the contractor for the rehabilitation of
the damaged pier, the same cost the Philippine Ports
Authority the amount of P1,126,132.25 (Exhibits D and E).
[3]
22
from Capt. Gavino for such amount of the adjudged
pecuniary liability in excess of the amount equivalent to
seventy-five percent (75%) of its prescribed reserve fund.
[8]
23
which provided for what has come to be known as the
certification against forum shopping as an additional
requisite for petitions filed with the Supreme Court and
the Court of Appeals, aside from the other requirements
contained in pertinent provisions of the Rules of Court
therefor, with the end in view of preventing the filing of
multiple complaints involving the same issues in the
Supreme Court, Court of Appeals or different divisions
thereof or any other tribunal or agency.
More particularly, the second paragraph of Section 2, Rule
42 provides:
The petitioner shall also submit together with the petition
a certification under oath that he has not therefore
commenced any other action involving the same issues in
the Supreme Court, the Court of Appeals or different
divisions thereof, or any other tribunal or agency; if there
is such other action or proceeding, he must state the
status of the same; and if he should thereafter learn that
a similar action or proceeding has been filed or is pending
before the Supreme Court, the Court of Appeals or
different divisions thereof, or any other tribunal or agency,
he undertakes to promptly inform the aforesaid courts
and other tribunal or agency thereof within five (5) days
therefrom. (Italics supplied.)
For petitions for review filed before the Supreme Court,
Section 4(e), Rule 45 specifically requires that such
petition shall contain a sworn certification against forum
shopping as provided in the last paragraph of Section 2,
Rule 42.
The records show that the law firm of Del Rosario and Del
Rosario through its associate, Atty. Herbert A. Tria, is the
counsel of record for FESC in both G.R. No. 130068 and
G.R. No. 130150.
G.R. No. 130068, which is assigned to the Court's Second
Division, commenced with the filing by FESC through
counsel on August 22, 1997 of a verified motion for
extension of time to file its petition for thirty (30) days
from August 28, 1997 or until September 27, 1997. [20] Said
motion contained the following certification against forum
shopping[21] signed by Atty. Herbert A. Tria as affiant:
CERTIFICATION
AGAINST FORUM SHOPPING
VERIFICATION AND CERTIFICATION
AGAINST FORUM SHOPPING
in compliance with Section 4(e), Rule 45 in relation to
Section 2, Rule 42 of the Revised Rules of Civil Procedure
I, Teodoro P. Lopez, of legal age, after being duly sworn,
depose and state:
1. That I am the Manager, Claims Department of Filsov
Shipping Company, the local agent of petitioner in this
case.
2. That I have caused the preparation of this Petition for
Review on Certiorari.
3. That I have read the same and the allegations therein
contained are true and correct based on the records of
this case.
4. That I certify that petitioner has not commenced any
other action or proceeding involving the same issues in
24
than faithful commitment to its undertakings to this Court
in the interest of just, speedy and orderly administration
of court proceedings.
As between the lawyer and the courts, a lawyer owes
candor, fairness and good faith to the court. [26] He is an
officer of the court exercising a privilege which is
indispensable
in
the
administration
of
justice.
[27]
Candidness, especially towards the courts, is essential
for the expeditious administration of justice. Courts are
entitled to expect only complete honesty from lawyers
appearing and pleading before them. [28] Candor in all
dealings is the very essence of honorable membership in
the legal profession.[29] More specifically, a lawyer is
obliged to observe the rules of procedure and not to
misuse them to defeat the ends of justice. [30] It behooves a
lawyer, therefore, to exert every effort and consider it his
duty to assist in the speedy and efficient administration of
justice.[31] Being an officer of the court, a lawyer has a
responsibility in the proper administration of justice. Like
the court itself, he is an instrument to advance its ends -the speedy, efficient, impartial, correct and inexpensive
adjudication of cases and the prompt satisfaction of final
judgments. A lawyer should not only help attain these
objectives but should likewise avoid any unethical or
improper practices that impede, obstruct or prevent their
realization, charged as he is with the primary task of
assisting in the speedy and efficient administration of
justice.[32]
Sad to say, the members of said law firm sorely failed to
observe their duties as responsible members of the
Bar. Their actuations are indicative of their predisposition
to take lightly the avowed duties of officers of the Court to
promote respect for law and for legal processes. [33] We
cannot allow this state of things to pass judicial muster.
In view of the fact that at around the time these petitions
were commenced, the 1997 Rules of Civil Procedure had
just taken effect, the Court treated infractions of the new
Rules then with relative liberality in evaluating full
compliance therewith. Nevertheless, it would do well to
remind all concerned that the penal provisions of Circular
No. 28-91 which remain operative provides, inter alia:
3. Penalties.xxxxxxxxx
(c) The submission of a false certification under Par. 2 of
the Circular shall likewise constitute contempt of court,
without prejudice to the filing of criminal action against
the guilty party. The lawyer may also be subjected to
disciplinary proceedings.
It must be stressed that the certification against forum
shopping ordained under the Rules is to be executed by
the petitioner, and not by counsel. Obviously it is the
petitioner, and not always the counsel whose professional
services have been retained for a particular case, who is in
the best position to know whether he or it actually filed or
caused the filing of a petition in that case. Hence, a
certification against forum shopping by counsel is a
defective certification. It is clearly equivalent to noncompliance with the requirement under Section 2, Rule 42
in relation to Section 4, Rule 45, and constitutes a valid
cause for dismissal of the petition.
Hence, the initial certification appended to the motion for
extension of time to file petition n G.R. No. 130068
executed in behalf of FESC by Atty. Tria is procedurally
deficient. But considering that it was a superfluity at that
25
required to furnish it with a copy of the petition under pain
of dismissal of the petition for failure otherwise. [40]
26
there is a presumption of fault against a moving vessel
that strikes a stationary object such as a dock or
navigational aid. In admiralty, this presumption does more
than merely require the ship to go forward and produce
some evidence on the presumptive matter. The moving
vessel must show that it was without fault or that the
collision was occasioned by the fault of the stationary
object or was the result of inevitable accident. It has been
held that such vessel must exhaust every reasonable
possibility which the circumstances admit and show that
in each, they did all that reasonable care required. [50] In
the absence of sufficient proof in rebuttal, the
presumption of fault attaches to a moving vessel which
collides with a fixed object and makes a prima facie case
of fault against the vessel.[51] Logic and experience
support this presumption:
The common sense behind the rule makes the burden a
heavy one. Such accidents simply do not occur in the
ordinary course of things unless the vessel has been
mismanaged in some way. It is not sufficient for the
respondent to produce witnesses who testify that as soon
as the danger became apparent everything possible was
done to avoid an accident. The question remains, How
then did the collision occur? The answer must be either
that, in spite of the testimony of the witnesses, what was
done was too little or too late or, if not, then the vessel
was at fault for being in a position in which an unavoidable
collision would occur.[52]
The task, therefore, in these cases is to pinpoint who was
negligent - the master of the ship, the harbor pilot or both.
A pilot, in maritime law, is a person duly qualified, and
licensed, to conduct a vessel into or out of ports, or in
certain waters. In a broad sense, the term "pilot" includes
both (1) those whose duty it is to guide vessels into or out
of ports, or in particular waters and (2) those entrusted
with the navigation of vessels on the high seas.
[53]
However, the term "pilot" is more generally understood
as a person taken on board at a particular place for the
purpose of conducting a ship through a river, road or
channel, or from a port.[54]
Under English and American authorities, generally
speaking, the pilot supersedes the master for the time
being in the command and navigation of the ship, and his
orders must be obeyed in all matters connected with her
navigation. He becomes the master pro hac vice and
should give all directions as to speed, course, stopping
and reversing, anchoring, towing and the like. And when a
licensed pilot is employed in a place where pilotage is
compulsory, it is his duty to insist on having effective
control of the vessel, or to decline to act as pilot. Under
certain systems of foreign law, the pilot does not take
entire charge of the vessel, but is deemed merely the
adviser of the master, who retains command and control
of the navigation even on localities where pilotage is
compulsory.[55]
It is quite common for states and localities to provide for
compulsory pilotage, and safety laws have been enacted
requiring vessels approaching their ports, with certain
exceptions, to take on board pilots duly licensed under
local law. The purpose of these laws is to create a body of
seamen thoroughly acquainted with the harbor, to pilot
vessels seeking to enter or depart, and thus protect life
and property from the dangers of navigation.[56]
In line with such established doctrines, Chapter II of
Customs Administrative Order No. 15-65 prescribes the
27
of care and diligence required of pilots in the performance
of their duties. Witness this testimony of Capt. Gavino:
Court:
You have testified before that the reason why the vessel
bumped the pier was because the anchor was not
released immediately or as soon as you have given the
order. Do you remember having stated that?
A Yes, your Honor.
Q And you gave this order to the captain of the vessel?
A Yes, your Honor.
Q By that testimony, you are leading the Court to
understand that is that anchor was released immediately
at the time you gave the order, the incident would not
have happened. Is that correct?
A Yes, sir, but actually it was only a presumption on my
part because there was a commotion between the officers
who are in charge of the dropping of the anchor and the
captain. I could not understand their language, it was in
Russian, so I presumed the anchor was not dropped on
time.
Q So, you are not sure whether it was really dropped on
time or not?
A I am not sure, your Honor.
Q You are not even sure what could have caused the
incident. What factor could have caused the incident?
A Well, in this case now, because either the anchor was
not dropped on time or the anchor did not hold, that was
the cause of the incident, your Honor.[60]
It is disconcertingly riddled with too much incertitude and
manifests a seeming indifference for the possibly injurious
consequences his commands as pilot may have. Prudence
required that he, as pilot, should have made sure that his
directions were promptly and strictly followed. As correctly
noted by the trial court Moreover, assuming that he did indeed give the command
to drop the anchor on time, as pilot he should have seen
to it that the order was carried out, and he could have
done this in a number of ways, one of which was to
inspect the bow of the vessel where the anchor
mechanism was installed. Of course, Captain Gavino
makes reference to a commotion among the crew
members which supposedly caused the delay in the
execution of the command. This account was reflected in
the pilot's report prepared four hours later, but Capt.
Kavankov, while not admitting whether or not such a
commotion occurred, maintained that the command to
drop
anchor
was
followed
"immediately
and
precisely." Hence, the Court cannot give much weight or
consideration to this portion of Gavino's testimony."[61]
An act may be negligent if it is done without the
competence that a reasonable person in the position of
the actor would recognize as necessary to prevent it from
creating an unreasonable risk of harm to another. [62] Those
who undertake any work calling for special skills are
required not only to exercise reasonable care in what they
do but also possess a standard minimum of special
knowledge and ability.[63]
28
The harbor pilots are especially trained for this job. In the
Philippines, one may not be a harbor pilot unless he
passed the required examination and training conducted
then by the Bureau of Custom, under Customs
Administrative Order No. 15-65, now under the Philippine
Ports Authority under PPA Administrative Order 6385. Paragraph XXXIX of the Customs Administrative Order
No. 15-65 provides that "the pilot shall be held responsible
for the direction of the vessel from the time he assumes
control thereof, until he leaves it anchored free from shoal:
Provided, that his responsibility shall cease at the moment
the master neglects or refuse(s) to carry out his
instructions." The overall direction regarding the
procedure for docking and undocking the vessel emanates
from the harbor pilot. In the present recourse, Gavino
failed to live up to his responsibilities and exercise
reasonable care or that degree of care required by the
exigencies of the occasion. Failure on his part to exercise
the degree of care demanded by the circumstances is
negligence (Reese versus Philadelphia & RR Co. 239 US
463, 60 L ed. 384, 57 Am Jur. 2d 12age 418).[67]
This affirms the findings of the trial court regarding
Capt. Gavino's negligence:
This discussion should not however, divert the court from
the fact that negligence in manuevering the vessel must
be attributed to Capt. Senen Gavino. He was an
experienced pilot and by this time should have long
familiarized himself with the depth of the port and the
distance he could keep between the vessel and port in
order to berth safely.[68]
The negligence on the part of Capt. Gavino is evident; but
Capt. Kabankov is no less responsible for the allision. His
unconcerned lethargy as master of the ship in the face of
troublous exigence constitutes negligence.
While it is indubitable that in exercising his functions a
pilot-is in sole command of the ship[69] and supersedes the
master for the time being in the command and navigation
of a ship and that he becomes master pro hac vice of a
vessel piloted by him,[70] there is overwhelming authority
to the effect that the master does not surrender his vessel
to the pilot and the pilot is not the master. The master is
still in command of the vessel notwithstanding the
presence of a pilot. There are occasions when the master
may and should interfere and even displace the pilot, as
when the pilot is obviously incompetent or intoxicated and
the circumstances may require the master to displace a
compulsory pilot because of incompetency or physical
incapacity. If, however, the master does not observe that a
compulsory
pilot
is
incompetent
or
physically
incapacitated, the master is justified in relying on the
pilot, but not blindly.[71]
The master is not wholly absolved from his duties while a
pilot is on board his vessel, and may advise with or offer
suggestions to him. He is still in command of the vessel,
except so far as her navigation is concerned, and must
cause the ordinary work of the vessel to be properly
carried on and the usual precaution taken. Thus, in
particular, he is bound to see that there is sufficient watch
on deck, and that the men are attentive to their duties,
also that engines are stopped, towlines cast off, and the
anchors clear and ready to go at the pilot's order. [72]
A perusal of Capt. Kabankov's testimony makes it
apparent that he was remiss in the discharge of his duties
as master of the ship, leaving the entire docking
29
A Yes sir, it is possible.
Q What is possible?
A I think, the 2 shackles were not enough to hold the
vessel.
Q Did you know that the 2 shackles were dropped?
A Yes sir, I knew that.
Q If you knew that the shackles were not enough to hold
the ship, did you not make any protest to the pilot?
A No sir, after the incident, that was my assumption.
Q Did you come to know later whether that presumption is
correct?
A I still don't know the ground in the harbor or the depths.
Q So from the beginning, you were not competent
whether the 2 shackles were also dropped to hold the
ship?
A No sir, at the beginning, I did not doubt it because I
believe Capt. Gavino to be an experienced pilot and he
should be more aware as to the depths of the harbor and
the ground and I was confident in his actions.
xxxxxxxxx
Solicitor Abad (to the witness)
Q Now, you were standing with the pilot on the bridge of
the vessel before the incident happened, were you not?
A Yes sir, all the time, I was standing with the pilot.
Q And so whatever the pilot saw, you could also see from
that point of view?
A That is right.
Q Whatever the pilot can read from the panel of the
bridge, you also could read, is that correct?
A What is the meaning of panel'?
Q All indications necessary for men on the bridge to be
informed of the movements of the ship?
A That is right.
Q And whatever sound the captain... Capt. Gavino would
hear from the bridge, you could also hear?
A That is right.
Q Now, you said that when the command to lower the
anchor was given, it was obeyed, is that right?
A This command was executed by the third mate and
boatswain.
Court (to the witness)
Q Mr. Witness, earlier in today's hearing, you said that you
did not intervene with the duties of the pilot and that, in
your opinion, you can only intervene if the ship is placed
in imminent danger, is that correct?
A That is right, I did say that.
Q In your observation before the incident actually
happened, did you observe whether or not the ship,
before the actual incident, the ship was placed in
imminent danger?.
A No sir, I did not observe.
Q By that answer, are you leading the court to understand
that because you did not intervene and because you
believed that it was your duty to intervene when the
vessel is placed in imminent danger to which you did not
observe any imminent danger thereof, you have not
intervened in any manner to the command of the pilot?
A That is right, sir.
xxxxxxxxx
Q Assuming that you disagreed with the pilot regarding
the step being taken by the pilot in maneuvering the
vessel. whose command will prevail, in case of imminent
danger to the vessel?
A I did not consider the situation as having an imminent
danger. I believed that the vessel will dock alongside the
pier.
Q You want us to understand that you did not see an
imminent danger to your ship, is that what you mean?
A Yes sir, up to the very last moment, I believed that there
was no imminent danger.
Q Because of that, did you ever intervene in the command
of the pilot?
A Yes sir, I did not intervene because I believed that the
command of the pilot to be correct.
Solicitor Abad (to the witness)
Q As a captain of M/V Pavlodar, you consider docking
maneuvers a serious matter, is it not?
A Yes sir, that is right.
Q Since it affects not only the safety of the port or pier,
but also the safety of the vessel and the cargo, is it not?
A That is right.
30
A In any case, which he thinks the pilot is not
maneuvering correctly, the Captain always has the
prerogative to countermand the pilot's order.
Q But insofar as competence, efficiency and functional
knowledge of the seabed which are vital or decisive in the
safety (sic) bringing of a vessel to the port, he is not
competent?
A Yes, your Honor. That is why they hire a pilot in an
advisory capacity, but still, the safety of the vessel rest(s)
upon the Captain, the Master of the vessel.
Q In this case, there was not a disagreement between you
and the Captain of the vessel in the bringing of the vessel
to port?
A No, your Honor.
Court:
May proceed.
Atty. Catris:
In fact, the Master of the vessel testified here that he was
all along in conformity with the orders you gave to him,
and, as matter of fact, as he said, he obeyed all your
orders. Can you tell, if in the course of giving such normal
orders for the saf(e) docking of the MV Pavlodar, do you
remember of any instance that the Master of the vessel
did not obey your command for the safety docking of the
MV Pavlodar?
Atty. del Rosario:
Already answered, he already said yes sir.
Court:
Yes, he has just answered yes sir to the Court that there
was no disagreement insofar as the bringing of the vessel
safely to the port.
Atty. Catris:
But in this instance of docking of the MV Pavlodar, do you
remember of a time during the course of the docking that
the MV Pavlodar was in imminent danger of bumping the
pier?
A When we were about more than one thousand meters
from the pier. I think, the anchor was not holding, so I
immediately ordered to push the bow at a fourth quarter,
at the back of the vessel in order to swing the bow away
from the pier and at the same time, I ordered for a full
astern of the engine."[75]
These conflicting reactions can only imply, at the very
least,
unmindful disregard or,
worse,
neglectful
relinquishment of duty by the shipmaster, tantamount to
negligence.
The findings of the trial court on this aspect is noteworthy:
For, while the pilot Gavino may indeed have been charged
with the task of docking the vessel in the berthing space,
it is undisputed that the master of the vessel had the
corresponding duty to countermand any of the orders
made by the pilot, aid even maneuver the vessel himself,
in case of imminent danger to the vessel and the port.
In fact, in his testimony, Capt. Kavankov admitted that all
throughout the man(eu)vering procedures he did not
notice anything was going wrong, and even observed that
the order given to drop the anchor, was done at the
proper time. He even ventured the opinion that the
accident occurred because the anchor failed to take hold
but that this did not alarm him because there was still
time to drop a second anchor.
Under normal circumstances, the above-mentioned facts
would have caused the master of a vessel to take charge
of the situation and see to the man(eu)vering of the vessel
himself.Instead, Capt. Kavankov chose to rely blindly upon
31
Walsh,[78] that it is the duty of the master to interfere in
cases of the pilot's intoxication or manifest incapacity, in
cases of danger which he does not foresee, and in all
cases of great necessity. The master has the same power
to displace the pilot that he has to remove any
subordinate officer of the vessel, at his discretion.
In 1895, the U.S. Supreme Court, this time through Mr.
Justice Brown, emphatically ruled that:
Nor are we satisfied with the conduct of the master in
leaving the pilot in sole charge of the vessel. While the
pilot doubtless supersedes the master for the time being
in the command and navigation of the ship, and his orders
must be obeyed in all matters connected with her
navigation, the master is not wholly absolved from his
duties while the pilot is on board, and may advise with
him, and even displace him in case he is intoxicated or
manifestly incompetent. He is still in command of the
vessel, except so far as her navigation is concerned, and
bound to see that there is a sufficient watch on deck, and
that the men are attentive to their duties.
xxx (N)otwithstanding the pilot has charge, it is the duty
of the master to prevent accident, and not to abandon the
vessel entirely to the pilot; but that there are certain
duties he has to discharge (notwithstanding there is a pilot
on board) for the benefit of the owners. x x x that in well
conducted ships the master does not regard the presence
of a duly licensed pilot in compulsory pilot waters as
freeing him from every obligation to attend to the safety
of the vessel; but that, while the master sees that his
officers and crew duly attend to the pilot's orders, he
himself is bound to keep a vigilant eye on the navigation
of the vessel, and, when exceptional circumstances exist,
not only to urge upon the pilot to use every precaution,
but to insist upon, such being taken."[79] (Italics for
emphasis.)
In Jure vs. United Fruit Co.,[80] which, like the present
petitions, involved compulsory pilotage, with a similar
scenario where at and prior to the time of injury, the
vessel was in the charge of a pilot with the master on the
bridge of the vessel beside said pilot, the court therein
ruled:
The authority of the master of a vessel is not in complete
abeyance while a pilot, who is required by law to be
accepted, is in discharge of his functions. x x x It is the
duty of the master to interfere in cases of the pilot's
intoxication or manifest incapacity, in cases of danger
which he does not foresee, and in all cases of great
necessity . The master has the same power to displace the
pilot that he has to remove any subordinate officer of the
vessel. He may exercise it, or not, according to his
discretion. There was evidence to support findings that
plaintiff's injury was due to the negligent operation of the
Atenas, and that the master of that vessel was negligent
in failing to take action to avoid endangering a vessel
situated as the City of Canton was and persons or
property thereon.
A phase of the evidence furnished support for the
inferences x x x that he negligently failed to suggest to
the pilot the danger which was disclosed, and means of
avoiding such danger; and that the master's negligence in
failing to give timely admonition to the pilot proximately
contributed to the injury complained of. We are of opinion
that the evidence mentioned tended to prove conduct of
the pilot, known to the master, giving rise to a case of
danger or great necessity, calling for the intervention of
32
Since the colliding vessel is prima facie responsible, the
burden of proof is upon the party claiming benefit of the
exemption from liability. It must be shown affirmatively
that the pilot was at fault, and that there was no fault on
the part of the officers or crew, which might have been
conducive to the damage. The fact that the law compelled
the master to take the pilot does not exonerate the vessel
from liability. The parties who suffer are entitled to have
their remedy against the vessel that occasioned the
damage, and are not under necessity to look to the pilot
from
whom
redress
is
not
always
had
for
compensation. The owners of the vessel are responsible to
the injured party for the acts of the pilot, and they must
be left to recover the amount as well as they can against
him. It cannot be maintained that the circumstance of
having a pilot on board, and acting in conformity to his
directions operate as a discharge of responsibility of the
owners.[90] Except insofar as their liability is limited or
exempted by statute, the vessel or her owner are liable for
all damages caused by the negligence or other wrongs of
the owners or those in charge of the vessel. Where the
pilot of a vessel is not a compulsory one in the sense that
the owner or master of the vessel are bound to accept
him, but is employed voluntarily, the owners of the vessel
are, all the more, liable for his negligent act.[91]
In the United States, the owners of a vessel are not
personally liable for the negligent acts of a compulsory
pilot, but by admiralty law, the fault or negligence of a
compulsory pilot is imputable to the vessel and it may be
held liable therefor in rem. Where, however, by the
provisions of the statute the pilot is compulsory only in the
sense that his fee must be paid, and is not in compulsory
charge of the vessel, there is no exemption from
liability. Even though the pilot is compulsory, if his
negligence was not the sole cause of the injury, but the
negligence of the master or crew contributed thereto, the
owners are liable.[92] But the liability of the ship in
rem does not release the pilot from the consequences of
his own negligence.[93] The rationale for this rule is that the
master is not entirely absolved of responsibility with
respect to navigation when a compulsory pilot is in
charge.[94]
By way of validation and in light of the aforecited
guidepost rulings in American maritime cases, we declare
that our rulings during the early years of this century in
City of Manila vs.Gambe, [95] China Navigation Co., Ltd.
vs. Vidal,[96] and Yap Tico & Co. vs. Anderson, et al. [97] have
withstood the proverbial test of time and remain good and
relevant case law to this day.
City of Manila stands for the doctrine that the pilot who
was in command and complete control of a vessel, and
not the owners, must be held responsible for an accident
which was solely the result of the mistake of the pilot in
not giving proper orders, and which did not result from the
failure of the owners to equip the vessel with the most
modern and improved machinery. In China Navigation Co.,
the pilot deviated from the ordinary and safe course,
without heeding the warnings of the ship captain. It was
this careless deviation that caused the vessel to collide
with a pinnacle rock which, though uncharted, was known
to pilots and local navigators. Obviously, the captain was
blameless. It was the negligence of the pilot alone which
was the proximate cause of the collision. The Court could
not but then rule that The pilot in the case at bar having deviated from the usual
and ordinary course followed by navigators in passing
through the strait in question, without a substantial
33
Pascual Barral, witness for PPA, on cross and redirect
examination, appears to be grounded on practical
considerations:
Q So that the cost of the two additional piles as well as the
(two) square meters is already included in this
-P1,300,999.77.
A Yes sir, everything. It is (the) final cost already.
Q For the eight piles.
A Including the reduced areas and other reductions.
Q (A)nd the two square meters.
A Yes sir.
Q In other words, this P1,300,999.77 does not represent
only for the six piles that was damaged as well as the
corresponding two piles.
A The area was corresponding, was increased by almost
two in the actual payment. That was why the contract was
decreased, the real amount was P1,124,627.40 and the
final one is P1300,999.77.
Q Yes, but that P1,300,999.77 included the additional two
new posts.
A It was increased.
Q Why was it increased?
A The original was 48 and the actual was 46.
Q Now, the damage was somewhere in 1980. It took place
in 1980 and you started the repair and reconstruction in
1982, that took almost two years?
A Yes sir.
Q May it not happen that by natural factors, the existing
damage in 1980 was aggravated for the 2 year period that
the damage portion was not repaired?
A I don't think so because that area was at once marked
and no vehicles can park, it was closed.
Q Even if or even natural elements cannot affect the
damage?
A Cannot, sir.
xxxxxxxxx
Q You said in the cross-examination that there were six
piles damaged by the accident, but that in the
reconstruction of the pier, PPA drove and constructed 8
piles. Will you explain to us why there was change in the
number of piles from the original number?
A In piers where the piles are withdrawn or pulled out, you
cannot re-drive or drive piles at the same point. You have
to redesign the driving of the piles. We cannot drive the
piles at the same point where the piles are broken or
damaged or pulled out. We have to redesign, and you will
note that in the reconstruction, we redesigned such that it
necessitated 8 piles.
Q Why not, why could you not drive the same number of
piles and on the same spot?
A The original location was already disturbed. We cannot
get required bearing capacity. The area is already
disturbed.
Q Nonetheless, if you drove the original number of piles,
six, on different places, would not that have sustained the
same load?
A It will not suffice, sir."[103]
We quote the findings of the lower court with approval:
With regards to the amount of damages that is to be
awarded to plaintiff, the Court finds that the amount
of P1,053,300.00 is justified. Firstly, the doctrine of res
ipsa loquitur best expounded upon in the landmark case of
Republic vs. Luzon Stevedoring Corp. (21 SCRA 279)
establishes the presumption that in the ordinary course of
events the ramming of the dock would not have occurred
if proper care was used.
Secondly, the various estimates and plans justify the cost
of the port construction price. The new structure
constructed not only replaced the damaged one but was
built of stronger materials to forestall the possibility of any
similar accidents in the future.
The Court inevitably finds that the plaintiff is entitled to an
award of P1,053,300.00 which represents actual damages
caused by the damage to Berth 4 of the Manila
International Port. Co-defendants Far Eastern Shipping,
of
Customs
34
property resulting from the acts of members in the
performance of their duties.
Correlatively, the relevant provisions of PPA Administrative
Order No. 03-85, which timely amended this applicable
maritime regulation, state:
Article IV
SEC. 17. Pilots' Association -- The Pilots in a Pilotage
District shall organize themselves into a Pilots' Association
or firm, the members of which shall promulgate their own
By-Laws not in conflict with the rules and regulations
promulgated by the Authority. These By-Laws shall be
submitted not later than one (1) month after the
organization of the Pilots' Association for approval by the
General
Manager
of
the
Authority. Subsequent
amendments thereto shall likewise be submitted for
approval.
SEC. 25. Indemnity Insurance and Reserve Fund-a) Each Pilots' Association shall collectively insure its
membership at the rate of P50,000.00 each member to
cover in whole or in part any liability arising from any
accident resulting in damage to vessel(s), port facilities
and other properties and/or injury to persons or death
which any member may have caused in the course of his
performance of pilotage duties. x x x.
b) The Pilotage Association shall likewise set up and
maintain a reserve fund which shall answer for any part of
the liability referred to in the immediately preceding
paragraph which is left unsatisfied by the insurance
proceeds, in the following manner:
1) Each pilot in the Association shall contribute from his
own account an amount of P4,000.00 (P6,000.00 in the
Manila Pilotage District) to the reserve fund. This fund
shall not be considered part of the capital of the
Association nor charged as an expense thereof.
2) Seventy-five percent (75%) of the reserve fund shall be
set aside for use, in the payment of damages referred to
above incurred in the actual performance of pilots' duties
and the excess shall be paid from the personal funds of
the member concerned.
35
relationship between MPA and Capt. Gavino precludes the
application of Article 2180 of the Civil Code.
True, Customs Administrative Order No. 15-65 does not
categorically characterize or label MPA's liability as
solidary in nature. Nevertheless, a careful reading and
proper analysis of the correlated provisions lead to the
conclusion that MPA is solidarity liable for the negligence
of its member pilots, without prejudice to subsequent
reimbursement from the pilot at fault.
Article 1207 of the Civil Code provides that there is
solidary liability only when the obligation expressly so
states, or when the law or the nature of the obligation
requires solidarity.Plainly, Customs Administrative Order
No. 15-65, which as an implementing rule has the force
and effect of law, can validly provide for solidary
liability. We note the Solicitor General's comment hereon,
to wit:
x x x Customs Administrative Order No. 15-65 may be a
mere rule and regulation issued by an administrative
agency pursuant to a delegated authority to fix "the
details" in the execution or enforcement of a policy set out
in the law itself. Nonetheless, said administrative order,
which adds to the procedural or enforcing provisions of
substantive law, is legally binding and receives the same
statutory force upon going into effect. In that sense, it has
equal, not lower, statutory force and effect as a regular
statute passed by the legislature."[112]
MPA's prayer for modification of the appellate court's
decision under review by exculpating petitioner MPA "from
liability beyond seventy-five percent (75%) of Reserve
Fund" is unnecessary because the liability of MPA under
Par. XXVIII of Customs Administrative Order No. 15-65 is in
fact limited to seventy-five percent (75%) of its prescribed
reserve fund, any amount of liability beyond that being for
the personal account of the erring pilot and subject to
reimbursement in case of a finding of fault by the member
concerned. This is clarified by the Solicitor General:
Moreover, contrary to petitioners pretensions, the
provisions of Customs Administrative Order No. 15-65 do
not limit the liability of petitioner as a pilots' association to
an absurdly small amount of seventy-five per centum
(75%) of the member pilots' contribution of P2,000.00 to
the reserve fund. The law speaks of the entire reserve
fund required to be maintained by the pilots' association
to answer (for) whatever liability arising from the tortious
act of its members. And even if the association is held
liable for an amount greater than the reserve fund, the
association may not resist the liability by claiming to be
liable only up to seventy-five per centum (75%) of the
reserve fund because in such instance it has the right to
be reimbursed by the offending member pilot for the
excess."[113]
WHEREFORE, in view of all of the foregoing, the
consolidated petitions for review are DENIED and the
assailed decision of the Court of Appeals is AFFIRMED in
toto.
Counsel for FESC, the law firm of Del Rosario and Del
Rosario, specifically its associate, Atty. Herbert A. Tria, is
REPRIMANDED and WARNED that a repetition of the same
or similar acts of heedless disregard of its undertakings
under the Rules shall be dealt with more severely.
The original members of the legal team of the Office of the
Solicitor General assigned to this case, namely, Assistant
Solicitor General Roman G. Del Rosario and Solicitor Luis F.
36
In the morning of September 21, 1988 Dr. Batiquin, with
the assistance of Dr. Doris Teresita Sy who was also a
Resident Physician at the same Hospital, C.I. and O.R.
Nurse Arlene Diones and some student nurses performed
a simple cesarean section on Mrs. Villegas at the Negros
Oriental Provincial Hospital and after 45 minutes Mrs.
Villegas delivered her first child, Rachel Acogido, at about
11:45 that morning. Thereafter, Plaintiff remained
confined at the Hospital until September 27, 1988 during
which period of confinement she was regularly visited by
Dr. Batiquin. On September 28, 1988, Mrs. Villegas
checked out of the Hospital . . . and on the same day she
paid Dr. Batiquin, thru the latter's secretary, the amount of
P1,500.00 as "professional fee" . . . .
Soon after leaving the Hospital Mrs. Villegas began to
suffer abdominal pains and complained of being
feverish. She also gradually lost her appetite, so she
consulted Dr. Batiquin at the latter's polyclinic who
prescribed for her certain medicines . . . which she had
been taking up to December, 1988.
In the meantime, Mrs. Villegas was given a Medical
Certificate by Dr. Batiquin on October 31, 1988 . . .
certifying to her physical fitness to return to her work on
November 7, 1988. So, on the second week of November,
1988 Mrs. Villegas returned to her work at the Rural Bank
of Ayungon, Negros Oriental.
The abdominal pains and fever kept on recurring and
bothered Mrs. Villegas no end and despite the medications
administered by Dr. Batiquin. When the pains become
unbearable and she was rapidly losing weight she
consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in
Dumaguete City on January 20, 1989.
The evidence of Plaintiffs show that when Dr. Ma. Salud
Kho examined Mrs. Villegas at the Holy Child's Hospital on
January 20, 1989 she found Mrs. Villegas to be feverish,
pale and was breathing fast. Upon examination she felt an
abdominal mass one finger below the umbilicus which she
suspected to be either a tumor of the uterus or an ovarian
cyst, either of which could be cancerous. She had an x-ray
taken of Mrs. Villegas' chest, abdomen and kidney. She
also took blood tests of Plaintiff. A blood count showed
that Mrs. Villegas had [an] infection inside her abdominal
cavity. The result of all those examinations impelled Dr.
Kho to suggest that Mrs. Villegas submit to another
surgery to which the latter agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas she
found whitish-yellow discharge inside, an ovarian cyst on
each of the left and right ovaries which gave out pus, dirt
and pus behind the uterus, and a piece of rubber
materials on the right side of the uterus embedded on
[sic] the ovarian cyst, 2 inches by 3/4 inch in size. This
piece of rubber material which Dr. Kho described as a
"foreign body" looked like a piece of a "rubber glove" . . .
and which is [sic] also "rubber-drain like . . . . It could have
been a torn section of a surgeon's gloves or could have
come from other sources. And this foreign body was the
cause of the infection of the ovaries and consequently of
all the discomfort suffered by Mrs. Villegas after her
delivery on September 21, 1988.[7]
The piece of rubber allegedly found near private
respondent Flotilde Villegas' uterus was not presented in
court, and although Dr. Ma. Salud Kho testified that she
sent it to a pathologist in Cebu City for examination, [8] it
was not mentioned in the pathologist's Surgical Pathology
Report.[9]
37
in the total amount P9,900.00 (Exhs. G and G-2)] for the
second operation that saved her life.
For the miseries appellants endured for more than three
(3) months, due to the negligence of appellee Dr. Batiquin,
they are entitled to moral damages in the amount of
P100,000.00; exemplary damages in the amount of
P20,000.00 and attorney's fees in the amount of
P25,000.00.
The fact that appellant Flotilde can no longer bear children
because her uterus and ovaries were removed by Dr. Kho
is not taken into consideration as it is not shown that the
removal of said organs were the direct result of the rubber
left by appellee Dr. Batiquin near the uterus. What is
established is that the rubber left by appellee cause
infection, placed the life of appellant Flotilde in jeopardy
and caused appellants fear, worry and anxiety . . . .
WHEREFORE, the appealed judgment, dismissing the
complaint for damages is REVERSED and SET
ASIDE. Another judgment is hereby entered ordering
defendants-appellees to pay plaintiffs-appellants the
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
Court claiming that the appellate court; (1) committed
grave abuse of discretion by resorting to findings of fact
not supported by the evidence on record, and (2)
exceeded its discretion, amounting to lack or excess of
jurisdiction, when it gave credence to testimonies
punctured with contradictions and falsities.
The private respondents commented that the petition
raised only questions of fact, which were not proper for
review by this Court.
While the rule is that only questions of law may be raised
in a petition for review on certiorari, there are exceptions,
among which are when the factual findings of the trial
court and the appellate court conflict, when the appealed
decision is clearly contradicted by the evidence on record,
or when the appellate court misapprehended the facts. [22]
After deciphering the cryptic petition, we find that the
focal point of the instant appeal is the appreciation of Dr.
Kho's testimony. The petitioners contend that the Court of
Appeals misappreciated the following portion of Dr. Kho's
testimony:
Q What is the purpose of the examination?
A Just in case, I was just thinking at the back of my mind,
just in case this would turn out to be a medico-legal case,
I have heard somebody that [sic] says [sic] there is [sic] a
foreign body that goes with the tissues but unluckily I
don't know where the rubber was. It was not in the Lab, it
was not in Cebu.[23] (Italics supplied)
The petitioners prefer the trial court's interpretation of the
above testimony, i.e., that Dr. Kho's knowledge of the
piece of rubber was based on hearsay. The Court of
Appeals, on the other hand, concluded that the
underscored phrase was taken out of context by the trial
court. According to the Court of Appeals, the trial court
should have likewise considered the other portions of Dr.
Kho's testimony, especially the following:
38
While the petitioners claim that contradictions and
falsities punctured Dr. Kho's testimony, a reading of the
said testimony reveals no such infirmity and establishes
Dr. Kho as a credible witness. Dr. Kho was frank
throughout her turn on the witness stand. Furthermore, no
motive to state any untruth was ever imputed against Dr.
Kho, leaving her trustworthiness unimpaired.[34] The trial
court's following declaration shows that while it was
critical of the lack of care with which Dr. Kho handled the
piece of rubber, it was not prepared to doubt Dr. Kho's
credibility, thus only supporting out appraisal of Dr. Kho's
trustworthiness:
This is not to say that she was less than honest when she
testified about her findings, but it can also be said that
she did not take the most appropriate precaution to
preserve that "piece of rubber" as an eloquent evidence of
what she would reveal should there be a "legal problem"
which she claim[s] to have anticipated.[35]
Considering that we have assessed Dr. Kho to be a
credible witness, her positive testimony [that a piece of
rubber was indeed found in private respondent Villegas'
abdomen] prevails over the negative testimony in favor of
the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This
Court has had occasion to delve into the nature and
operation of this doctrine:
This doctrine [res ipsa loquitur] is stated thus: "Where the
thing which causes injury is shown to be under the
management of the defendant, and the accident is such
as in the ordinary course of things does not happen if
those who have the management use proper care, it
affords reasonable evidence, in the absence of an
explanation by the defendant, that the accident arose
from want of care." Or as Black's Law Dictionary puts it:
Res ipsa loquitur. The thing speaks for itself. Rebuttable
presumption or inference that defendant was negligent,
which arises upon proof that [the] instrumentality causing
injury was in defendant's exclusive control, and that the
accident was one which ordinary does not happen in
absence of negligence. Res ipsa loquitur is [a] rule of
evidence whereby negligence of [the] alleged wrongdoer
may be inferred from [the] mere fact that [the] accident
happened provided [the] character of [the] accident and
circumstances attending it lead reasonably to belief that
in [the] absence of negligence it would not have occurred
and that thing which caused injury is shown to have been
under [the] management and control of [the] alleged
wrongdoer . . . . Under [this] doctrine . . . the happening of
an injury permits an inference of negligence where
plaintiff produces substantial evidence that [the] injury
was caused by an agency or instrumentality under [the]
exclusive control and management of defendant, and that
the occurrence [sic] was such that in the ordinary course
of things would not happen if reasonable care had been
used.
xxx xxx xxx
The doctrine of [r]es ipsa loquitur as a rule of evidence is
peculiar to the law of negligence which recognizes
that prima facie negligence may be established without
direct proof and furnishes a substitute for specific proof of
negligence. The doctrine is not a rule of substantive law,
but merely a mode of proof or a mere procedural
convenience. The rule, when applicable to the facts and
circumstances of a particular case, is not intended to and
PROFESSIONAL
SERVICES,
INC., Petitioner,
vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.
x-----------------------x
G.R. No. 126467
39
MIGUEL
vs.
NATIVIDAD
AGANA
AGANA, Respondents.
AMPIL, Petitioner,
and
ENRIQUE
DECISION
SANDOVAL-GUTIERREZ, J.:
Hospitals, having undertaken one of mankinds most
important and delicate endeavors, must assume the grave
responsibility of pursuing it with appropriate care. The
care and service dispensed through this high trust,
however technical, complex and esoteric its character
may be, must meet standards of responsibility
commensurate with the undertaking to preserve and
protect the health, and indeed, the very lives of those
placed in the hospitals keeping.1
Assailed in these three consolidated petitions for review
on certiorari is the Court of Appeals Decision 2 dated
September 6, 1996 in CA-G.R. CV No. 42062 and CA-G.R.
SP
No.
32198
affirming
with
modification
the
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 Natividads
husband, Enrique Agana, to permit Dr. Juan Fuentes,
respondent in G.R. No. 126467, to perform hysterectomy
on her.
After Dr. Fuentes had completed the hysterectomy, Dr.
Ampil took over, completed the operation and closed the
incision.
However, the operation appeared to be flawed. In the
corresponding Record of Operation dated April 11, 1984,
the attending nurses entered these remarks:
"sponge count lacking 2
"announced to surgeon searched (sic) done but to no avail
continue for closure."
On April 24, 1984, Natividad was released from the
hospital. Her hospital and medical bills, including the
doctors fees, amounted to P60,000.00.
After a couple of days, Natividad complained of
excruciating pain in her anal region. She consulted both
Dr. Ampil and Dr. Fuentes about it. They told her that the
pain was the natural consequence of the surgery. Dr.
Ampil then recommended that she consult an oncologist
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
40
5. Legal interest on items 1 (a), (b), and (c); 2; and 3
hereinabove, from date of filing of the complaint until full
payment; and
6. Costs of suit.
SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an
appeal to the Court of Appeals, docketed as CA-G.R. CV
No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with the
RTC a motion for a partial execution of its Decision, which
was granted in an Order dated May 11, 1993. Thereafter,
the sheriff levied upon certain properties of Dr. Ampil and
sold them for P451,275.00 and delivered the amount to
the Aganas.
Following their receipt of the money, the Aganas entered
into an agreement with PSI and Dr. Fuentes to indefinitely
suspend any further execution of the RTC Decision.
However, not long thereafter, the Aganas again filed a
motion for an alias writ of execution against the properties
of PSI and Dr. Fuentes. On September 21, 1993, the RTC
granted the motion and issued the corresponding writ,
prompting Dr. Fuentes to file with the Court of Appeals a
petition for certiorari and prohibition, with prayer for
preliminary injunction, docketed as CA-G.R. SP No. 32198.
During its pendency, the Court of Appeals issued a
Resolution5 dated October 29, 1993 granting Dr. Fuentes
prayer for injunctive relief.
On January 24, 1994, CA-G.R. SP No.
consolidated with CA-G.R. CV No. 42062.
32198
was
41
to no avail prompting Dr. Ampil to continue for closure x
x x.
Third, after the operation, two (2) gauzes were extracted
from the same spot of the body of Mrs. Agana where the
surgery was performed.
An operation requiring the placing of sponges in the
incision is not complete until the sponges are properly
removed, and it is settled that the leaving of sponges or
other foreign substances in the wound after the incision
has been closed is at least prima facie negligence by the
operating surgeon.8 To put it simply, such act is considered
so inconsistent with due care as to raise an inference of
negligence. There are even legions of authorities to the
effect that such act is negligence per se.9
Of course, the Court is not blind to the reality that there
are times when danger to a patients life precludes a
surgeon from further searching missing sponges or foreign
objects left in the body. But this does not leave him free
from any obligation. Even if it has been shown that a
surgeon was required by the urgent necessities of the
case to leave a sponge in his patients abdomen, because
of the dangers attendant upon delay, still, it is his legal
duty to so inform his patient within a reasonable time
thereafter by advising her of what he had been compelled
to do. This is in order that she might seek relief from the
effects of the foreign object left in her body as her
condition might permit. The ruling in Smith v. Zeagler 10 is
explicit, thus:
The removal of all sponges used is part of a surgical
operation, and when a physician or surgeon fails to
remove a sponge he has placed in his patients body that
should be removed as part of the operation, he thereby
leaves his operation uncompleted and creates a new
condition which imposes upon him the legal duty of calling
the new condition to his patients attention, and
endeavoring with the means he has at hand to minimize
and avoid untoward results likely to ensue therefrom.
Here, Dr. Ampil did not inform Natividad about the missing
two pieces of gauze. Worse, he even misled her that the
pain she was experiencing was the ordinary consequence
of her operation. Had he been more candid, Natividad
could have taken the immediate and appropriate medical
remedy to remove the gauzes from her body. To our mind,
what was initially an act of negligence by Dr. Ampil has
ripened into a deliberate wrongful act of deceiving his
patient.
This is a clear case of medical malpractice or more
appropriately, medical negligence. To successfully pursue
this kind of case, a patient must only prove that a health
care provider either failed to do something which a
reasonably prudent health care provider would have done,
or that he did something that a reasonably prudent
provider would not have done; and that failure or action
caused injury to the patient. 11 Simply put, the elements
are duty, breach, injury and proximate causation. Dr,
Ampil, as the lead surgeon, had the duty to remove all
foreign objects, such as gauzes, from Natividads body
before closure of the incision. When he failed to do so, it
was his duty to inform Natividad about it. Dr. Ampil
breached both duties. Such breach caused injury to
Natividad, necessitating her further examination by
American doctors and another surgery. That Dr. Ampils
negligence is the proximate cause12 of Natividads injury
could be traced from his act of closing the incision despite
the information given by the attending nurses that two
42
Under the "Captain of the Ship" rule, the operating
surgeon is the person in complete charge of the surgery
room and all personnel connected with the operation.
Their duty is to obey his orders. 16 As stated before, Dr.
Ampil was the lead surgeon. In other words, he was the
"Captain of the Ship." That he discharged such role is
evident from his following conduct: (1) calling Dr. Fuentes
to perform a hysterectomy; (2) examining the work of Dr.
Fuentes and finding it in order; (3) granting Dr. Fuentes
permission to leave; and (4) ordering the closure of the
incision. To our mind, it was this act of ordering the closure
of the incision notwithstanding that two pieces of gauze
remained unaccounted for, that caused injury to
Natividads body. Clearly, the control and management of
the thing which caused the injury was in the hands of Dr.
Ampil, not Dr. Fuentes.
In this jurisdiction, res ipsa loquitur is not a rule of
substantive law, hence, does not per se create or
constitute an independent or separate ground of liability,
being a mere evidentiary rule.17 In other words, mere
invocation and application of the doctrine does not
dispense with the requirement of proof of negligence.
Here, the negligence was proven to have been committed
by Dr. Ampil and not by Dr. Fuentes.
III - G.R. No. 126297
Whether PSI Is Liable for the Negligence of Dr. Ampil
The third issue necessitates a glimpse at the historical
development of hospitals and the resulting theories
concerning their liability for the negligence of physicians.
Until the mid-nineteenth century, hospitals were generally
charitable institutions, providing medical services to the
lowest classes of society, without regard for a patients
ability to pay.18 Those who could afford medical treatment
were usually treated at home by their doctors. 19 However,
the days of house calls and philanthropic health care are
over. The modern health care industry continues to
distance itself from its charitable past and has
experienced a significant conversion from a not-for-profit
health care to for-profit hospital businesses. Consequently,
significant changes in health law have accompanied the
business-related changes in the hospital industry. One
important legal change is an increase in hospital liability
for medical malpractice. Many courts now allow claims for
hospital vicarious liability under the theories of respondeat
superior, apparent authority, ostensible authority, or
agency by estoppel. 20
In this jurisdiction, the statute governing liability for
negligent acts is Article 2176 of the Civil Code, which
reads:
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay
for the damage done. Such fault or negligence, if there is
no pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of
this Chapter.
A derivative of this provision is Article 2180, the rule
governing vicarious liability under the doctrine of
respondeat superior, thus:
ART. 2180. The obligation imposed by Article 2176 is
demandable not only for ones own acts or omissions, but
also for those of persons for whom one is responsible.
x x x
x x
x
The owners and managers of
enterprise are likewise responsible
their employees in the service of
the latter are employed or on
functions.
an establishment or
for damages caused by
the branches in which
the occasion of their
x x
x
43
patients for medical care and treatment, even collecting
for such services through legal action, if necessary. The
court then concluded that there is no reason to exempt
hospitals from the universal rule of respondeat superior.
In our shores, the nature of the relationship between the
hospital and the physicians is rendered inconsequential in
view of our categorical pronouncement in Ramos v. Court
of
Appeals28 that
for
purposes
of
apportioning
responsibility in medical negligence cases, an employeremployee relationship in effect exists between hospitals
and their attending and visiting physicians. This Court
held:
"We now discuss the responsibility of the hospital in this
particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending and
visiting "consultants," who are allegedly not hospital
employees,
presents
problems
in
apportioning
responsibility for negligence in medical malpractice cases.
However, the difficulty is more apparent than real.
In the first place, hospitals exercise significant control in
the hiring and firing of consultants and in the conduct of
their work within the hospital premises. Doctors who apply
for consultant slots, visiting or attending, are 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
physicians performance as a specialist is generally
evaluated by a peer review committee on the basis of
mortality and morbidity statistics, and feedback from
patients, nurses, interns and residents. A consultant
remiss in his duties, or a consultant who regularly falls
short of the minimum standards acceptable to the hospital
or its peer review committee, is normally politely
terminated.
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 PSIs liability. Its liability is also anchored upon
the agency principle of apparent authority or agency by
estoppel and the doctrine of corporate negligence which
have gained acceptance in the determination of a
hospitals liability for negligent acts of health
44
competence are certainly certified to the general public by
the hospitals act of listing him and his specialty in its
lobby directory, as in the case herein. The high costs of
todays medical and health care should at least exact on
the hospital greater, if not broader, legal responsibility for
the conduct of treatment and surgery within its facility by
its accredited 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 hospitals liability for the negligent acts of
health practitioners, absent facts to support the
application of respondeat superior or apparent authority.
Its
formulation
proceeds
from
the
judiciarys
acknowledgment that in these modern times, the duty of
providing quality medical service is no longer the sole
prerogative and responsibility of the physician. The
modern hospitals have changed structure. Hospitals now
tend to organize a highly professional medical staff whose
competence and performance need to be monitored by
the hospitals commensurate with their inherent
responsibility to provide quality medical care.35
The doctrine has its genesis in Darling v. Charleston
Community Hospital.36 There, the Supreme Court of Illinois
held that "the jury could have found a hospital negligent,
inter alia, in failing to have a sufficient number of trained
nurses attending the patient; failing to require a
consultation with or examination by members of the
hospital staff; and failing to review the treatment rendered
to the patient." On the basis of Darling, other jurisdictions
held that a hospitals corporate negligence extends to
permitting a physician known to be incompetent to
practice at the hospital.37 With the passage of time, more
duties were expected from hospitals, among them: (1) the
use of reasonable care in the maintenance of safe and
adequate facilities and equipment; (2) the selection and
retention of competent physicians; (3) the overseeing or
supervision of all persons who practice medicine within its
walls; and (4) the formulation, adoption and enforcement
of adequate rules and policies that ensure quality care for
its patients.38 Thus, in Tucson Medical Center, Inc. v.
Misevich,39 it was held that a hospital, following the
doctrine of corporate responsibility, has the duty to see
45
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