584 SUPREME COURT REPORTS ANNOTATED
a plaintiff of, the burden of producing specific proof of negligence. In other words,
Ramos vs. Court of Appeals
G.R. No. 124354. December 29, 1999.*
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural
guardians of the minors, ROMMEL RAMOS, ROY RODERICK RAMOS and RON
RAYMOND RAMOS, petitioners, vs. COURT OF APPEALS, DELOS SANTOS
MEDICAL CENTER, DR. ORLINO HOSAKA and DRA. PERFECTA
GUTIERREZ, respondents.
Remedial Law; Pleadings and Practice; When a party is represented by
counsel, all notices should be sent to the partys lawyer at his given address.It is
elementary that when a party is represented by counsel, all notices should be sent
to the partys lawyer at his given address. With a few exceptions, notice to a
litigant without notice to his counsel on record is no notice at all. In the present
case, since a copy of the decision of the appellate court was not sent to the counsel
on record of petitioner, there can be no sufficient notice to speak of. Hence, the
delay in the filing of the motion for reconsideration cannot be taken against
petitioner.
Same; Evidence; Res Ipsa Loquitur; Doctrine of Res Ipsa Loquitur.Res ipsa
loquitur is a Latin phrase which literally means the thing or the transaction
speaks for itself. The phrase res ipsa loquitur is a maxim for the rule that the applies only to such matters clearly within the domain of medical science, and not
fact of the occurrence of an injury, taken with the surrounding circumstances, may
permit an inference or raise a presumption of negligence, or make out a plaintiffs
prima facie case, and present a question of fact for defendant to meet with an
explanation. Where the thing which caused the injury complained of is shown to
be under the management of the defendant or his servants and the accident is
such as in ordinary course of things does not happen if those who have its
management or control use proper care, it affords reasonable evidence, in the
absence of explanation by the defendant, that the accident arose from or was
caused by the defendants want of care.
Same; Same; Same; Same; Res Ipsa Loquitur is applied in conjunction with
the doctrine of common knowledge.The doctrine of res ipsa loquituris simply a
recognition of the postulate that, as a matter of common knowledge and
experience, the very nature of certain types of occurrences may justify an inference
of negligence on the part of the person who controls the instrumentality causing
the injury in the absence of some explanation by the defendant who is charged
with negligence. It is grounded in the superior logic of ordinary human experience
and on the basis of such experience or common knowledge, negligence may be
deduced from the mere occurrence of the accident itself. Hence, res ipsa loquitur is
applied in conjunction with the doctrine of common knowledge.
Same; Same; Same; Same; Mere invocation and application of the doctrine
does not dispense with the requirement of proof of negligence; Requisites before
resort to the doctrine may be allowed.Much has been said that res ipsa
loquitur is not a rule of substantive law and, as such, does not create or constitute
an independent or separate ground of liability. Instead, it is considered as merely
evidentiary or in the nature of a procedural rule. It is regarded as a mode of proof,
or a mere procedural convenience since it furnishes a substitute for, and relieves
mere invocation and application of the doctrine does not dispense with the
requirement of proof of negligence. It is simply a step in the process of such proof,
permitting the plaintiff to present along with the proof of the accident, enough of
the attending circumstances to invoke the doctrine, creating an inference or
presumption of negligence, and to thereby place on the defendant the burden of
going forward with the proof. Still, before resort to the doctrine may be allowed,
the following requisites must be satisfactorily shown: 1. The accident is of a kind
which ordinarily does not occur in the absence of 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.
Same; Same; Same; Same; When the doctrine of res ipsa loqui-tur is availed
by the plaintiff, the need for expert medical testimony is dispensed with because the
injury itself provides the proof of negligence.Although generally, expert medical
testimony is relied upon in malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard medical procedure, when
the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert
medical testimony is dispensed with because the injury itself provides the proof of
negligence. The reason is that the general rule on the necessity of expert testimony
to matters that are within the common knowledge of mankind which may be
testified to by anyone familiar with the facts. Ordinarily, only physicians and
surgeons of skill and experience are competent to testify as to whether a patient
has been treated or operated upon with a reasonable degree of skill and care.
However, testimony as to the statements and acts of physicians and surgeons,
external appearances, and manifest conditions which are observable by any one
may be given by non-expert witnesses.
Same; Same; Same; Same; Res ipsa loquitur is not a rigid or ordinary
doctrine to be perfunctorily used but a rule to be cautiously applied depending upon
the circumstances of each case.Despite the fact that the scope of res ipsa
loquitur has been measurably enlarged, it does not automatically apply to all
cases of medical negligence as to mechanically shift the burden of proof to the
defendant to show that he is not guilty of the ascribed negligence. Res ipsa
loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be
cautiously applied, depending upon the circumstances of each case. It is generally
restricted to situations in malpractice cases where a layman is able to say, as a
matter of common knowledge and observation, that the consequences of
professional care were not as such as would ordinarily have followed if due care
had been exercised.
Same; Same; Same; Same; Res ipsa loquitur is not available in a
malpractice suit if the only showing is that the desired result of an operation or
treatment was not accomplished.It must be conceded that the doctrine of res ipsa
loquitur can have no application in a suit against a physician or surgeon which
involves the merits of a diagnosis or of a scientific treatment. The physician or
surgeon is not required at his peril to explain why any particular diagnosis was
not correct, or why any particular scientific treatment did not produce the desired the case, be made with certainty. In other words, temperate damages can and
result. Thus, res ipsa loquitur is not available in a malpractice suit if the only should be awarded on top of actual or compensatory damages in instances where
showing is that the desired result of an operation or treatment was not the injury is chronic and continuing. And because of the unique nature of such
accomplished. cases, no incompatibility arises when both actual and temperate damages are
provided for. The reason is that these damages cover two distinct phases.
Hospitals; Damages; Proximate Cause Defined.Proximate cause has been
defined as that which, in natural and continuous sequence, unbroken by any PETITION for review on certiorari of a decision of the Court of Appeals.
efficient intervening cause, produces injury, and without which the result would
not have occurred. An injury or damage is proximately caused by an act or a failure The facts are stated in the opinion of the Court.
to act, whenever it appears from the evidence in the case, that the act or omission Luis C.A. Sillano for petitioners.
played a substantial part in bringing about or actually causing the injury or Macarius S. Galutera for private respondent De los Santos Medical Center.
damage; and that the injury or damage was either a direct result or a reasonably Tanjuatco, Sta. Maria, Tanjuatco collaborating counsel for DLSMC.
probable consequence of the act or omission. It is the dominant, moving or Antonio H. Abad & Associates for respondent doctors.
producing cause.
KAPUNAN, J.:
Same; Same; For the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect exists between
The Hippocratic Oath mandates physicians to give primordial consideration
hospitals and their attending and visiting physicians.Private hospitals, hire, fire
to the health and welfare of their patients. If a doctor fails to live up to this precept,
and exercise real control over their attending and visiting consultant staff. While
he is made accountable for his acts. A mistake, through gross negligence or
consultants are not, technically employees, a point which respondent hospital
incompetence or plain human error, may spell the difference between life and
asserts in denying all responsibility for the patients condition, the control
death. In this sense, the doctor plays God on his patients fate.1
exercised, the hiring, and the right to terminate consultants all fulfill the
important hallmarks of an employer-employee relationship, with the exception of
In the case at bar, the Court is called upon to rule whether a surgeon, an
the payment of wages. In assessing whether such a relationship in fact exists, the
anesthesiologist and a hospital should be made liable for the unfortunate
control test is determining. Accordingly, on the basis of the foregoing, we rule that
comatose condition of a patient scheduled for cholecystectomy.2
for the purpose of allocating responsibility in medical negligence cases, an
employer-employee relationship in effect exists between hospitals and their
Petitioners seek the reversal of the decision3 of the Court of Appeals, dated 29
attending and visiting physicians. This being the case, the question now arises as
May 1995, which overturned the decision4 of the Regional Trial Court, dated 30
to whether or not respondent hospital is solidarily liable with respondent doctors
January 1992, finding private respondents liable for damages arising from
for petitioners condition.
negligence in the performance of their professional duties towards petitioner
Erlinda Ramos resulting in her comatose condition.
Same; Same; The basis for holding an employer solidarily responsible for the
negligence of its employee is found in Article 2180 of the Civil Code.The basis for
The antecedent facts as summarized by the trial court are reproduced
holding an employer solidarily responsible for the negligence of its employee is
hereunder:
found in Article 2180 of the Civil Code which considers a person accountable not
only for his own acts but also for those of others based on the formers
Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year
responsibility under a relationship of patria potestas. Such responsibility ceases
old (Exh. A) robust woman (TSN, October 19, 1989, p. 10). Except for occasional
when the persons or entity concerned prove that they have observed the diligence
complaints of discomfort due to pains allegedly caused by the presence of a stone
of a good father of the family to prevent damage. In other words, while the burden
in her gall bladder (TSN, January 13, 1988, pp. 4-5), she was as normal as any
of proving negligence rests on the plaintiffs, once negligence is shown, the burden
other woman. Married to Rogelio E. Ramos, an executive of Philippine Long
shifts to the respondents (parent, guardian, teacher or employer) who should
Distance Telephone Company, she has three children whose names are Rommel
prove that they observed the diligence of a good father of a family to prevent
Ramos, Roy Roderick Ramos and Ron Raymond Ramos (TSN, October 19, 1989,
damage.
pp. 5-6).
Same; Same; Amount of damages awarded may be a continuing one where
Because the discomforts somehow interfered with her normal ways, she
the injury is chronic and continuing, as when the patient is comatose.In these
sought professional advice. She was advised to undergo an operation for the
cases, the amount of damages which should be awarded, if they are to adequately
removal of a stone in her gall bladder (TSN, January 13, 1988, p. 5). She
and correctly respond to the injury caused, should be one which compensates for
underwent a series of examinations which included blood and urine tests (Exhs.
pecuniary loss incurred and proved, up to the time of trial; and one which would
A and C) which indicated she was fit for surgery.
meet pecuniary loss certain to be suffered but which could not, from the nature of
 Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13,
1988, p. 7), she and her husband Rogelio met for the first timeDr. 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, 31-33; TSN, February 27,
1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was admitted at one of the
rooms of the DLSMC, located along E. Rodriguez Avenue, Quezon City (TSN,
October 19, 1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in her room, she was
prepared for the operation by the hospital staff. Her sister-in-law, Herminda Cruz,
who was the Dean of the College of Nursing at the Capitol Medical Center, was
also there for moral support. She reiterated her previous request for Herminda to
be with her even during the operation. After praying, she was given injections.
Her hands were held by Herminda as they went down from her room to the
operating room (TSN, January 13, 1988, pp. 9-11). Her husband, Rogelio, was also
with her (TSN, October 19, 1989, p. 18). At the operating room, Herminda saw
about two or three nurses and Dr. Perfecta Gutierrez, the other defendant, who
was to administer anesthesia. Although not a member of the hospital staff,
Herminda introduced herself as Dean of the College of Nursing at the Capitol
Medical Center who was to provide moral
support to the patient, to them. Herminda was allowed to stay inside the operating
room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr.
Hosaka who was not yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez
thereafter informed Herminda Cruz about the prospect of a delay in the arrival of
Dr. Hosaka. Herminda then went back to the patient who asked, Mindy, wala pa
ba ang Doctor? The former replied, Huwag kang mag-alaala, darating na iyon
(ibid.).
Thereafter, Herminda went out of the operating room and informed the
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.
At around 10:00 A.M., Rogelio E. Ramos was already dying [and] waiting for
the arrival of the doctor even as he did his best to find somebody who will allow
him to pull out his wife from the operating room (TSN, October 19, 1989, pp. 19-
20). He also thought of the feeling of his wife, who was inside the operating room
waiting for the doctor to arrive (ibid.). At almost 12:00 noon, he met Dr. Garcia
who remarked that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to
arrive (id., p. 21). While talking to Dr. Garcia at around 12:10 P.M., he came to
know that Dr. Hosaka arrived as a nurse remarked, Nandiyan na si Dr. Hosaka,
dumating na raw. Upon hearing those words, he went down to the lobby and
waited for the operation to be completed (id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the operating room with
the patient, heard somebody say that Dr. Hosaka is already here. She then saw
people inside the operating room moving, doing this and that, [and] preparing
the patient for the operation (TSN, January 13, 1988, p. 16). As she held the hand
of Erlinda Ramos, she then saw Dr. Gutierrez intubating the hapless patient. She
thereafter heard Dr. Gutierrez say, ang hirap maintubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan (id., p. 17). Because of the remarks of Dra.
Gutierrez, she focused her attention on what Dr. Gutierrez was doing. She
thereafter noticed bluish discoloration of the nailbeds of the left hand of the
hapless Erlinda even as Dr. Hosaka approached her.
She then heard Dr. Hosaka issue an order for someone to call Dr. Calderon,
another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the operating
room, she saw this anesthesiologist trying to intubate the patient. The patients
nailbed became bluish and the patient was placed in a trendelenburg positiona
position where the head of the patient is placed in a position lower than her feet
which is an indication that there is a decrease of blood supply to the patients brain
(id., pp. 19-20). Immediately thereafter, she went out of the operating room, and
she told Rogelio E. Ramos that something wrong was x x x happening (ibid.). Dr.
Calderon was then able to intubate the patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw a respiratory
machine being rushed towards the door of the operating room. He also saw several
doctors rushing towards the operating room. When informed by Herminda Cruz
that something wrong was happening, he told her (Herminda) to be back with the
patient inside the operating room (TSN, October 19, 1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the patient was still
in trendelenburg position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of
that fateful day, she saw the patient taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka.
The latter informed the former that something went wrong during the intubation.
Reacting to what was told to him, Rogelio reminded the doctor that the condition
of his wife would not have happened, had he (Dr. Hosaka) looked for a good
anesthesiologist (TSN, October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the hospital to explain what
happened to the patient. The doctors explained that the patient had bronchospasm
(TSN, November 15, 1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a month. About four months thereafter
or on November 15, 1985, the patient was released from the hospital.
 During the whole period of her confinement, she incurred hospital bills
amounting to P93,542.25 which is the subject of a promissory note and affidavit
of undertaking executed by Rogelio E. Ramos in favor of DLSMC. Since that
fateful afternoon of June 17, 1985, she has been in a comatose condition. She
cannot do anything. She cannot move any part of her body. She cannot see or hear.
She is living on mechanical means. She suffered brain damage as a result of the
absence of oxygen in her brain for four to five minutes (TSN, November 9, 1989,
pp. 21-22). After being discharged from the hospital, she has been staying in their
residence, still needing constant medical attention, with her husband Rogelio
incurring a monthly expense ranging from P8,000.00 to P10,000.00 (TSN, October
19, 1989, pp. 32-34). She was also diagnosed to be suffering from diffuse cerebral
parenchymal damage (Exh. G; see also TSN, December 21, 1989, p. 6). 5 nailbed turned bluish, belie their claim. Furthermore, the defendants should have
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. 5-10), without
due regard to the fact that the patient was inside the operating room for almost
three (3) hours. For after she committed a mistake in intubating [the] patient, the
patients nailbed became bluish and the patient, thereafter, was placed in
trendelenburg position, because of the decrease of blood supply to the patients
brain. The evidence further shows that the hapless patient suffered brain damage
because of the absence of oxygen in her (patients) brain for approximately four to
five minutes which, in turn, caused the patient to become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts
of Dr. Perfecta Gutierrez whom he had chosen to administer anesthesia on the
patient as part of his obligation to provide the patient a good anesthesiologist,
and for arriving for the scheduled operation almost three (3) hours late.
On the part of DLSMC (the hospital), this Court finds that it is liable for the
acts of negligence of the doctors in their practice of medicine in the operating
room. Moreover, the hospital is liable for failing through its responsible officials,
to cancel the scheduled operation after Dr. Hosaka inexcusably failed to arrive on
time.
In having held thus, this Court rejects the defense raised by defendants that
they have acted with due care and prudence in rendering medical services to
plaintiff-patient. For if the patient was properly intubated as claimed by them,
the patient would not have become comatose. And, the fact that another
anesthesiologist was called to try to intubate the patient after her (the patients)
rescheduled the operation to a later date. This, they should have done, if
defendants acted with due care and prudence as the patients case was an elective,
not an emergency case.
xxx
WHEREFORE, and in view of the foregoing, judgment is rendered in favor of
the plaintiffs and against the defendants. Accordingly, the latter are ordered to
pay, jointly and severally, the former the following sums of money, to wit:
1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda
Ramos reckoned from November 15, 1985 or in the total sum of P632,000.00
as of April 15, 1992, subject to its being updated;
2) the sum of P100,000.00 as reasonable attorneys fees;
3) the sum of P800,000.00 by way of moral damages and the further sum of
P200,000.00 by way of exemplary damages; and,
4) the costs of the suit.
SO ORDERED.7
Private respondents seasonably interposed an appeal to the Court of Appeals.
The appellate court rendered a Decision, dated 29 May 1995, reversing the
findings of the trial court. The decretal portion of the decision of the appellate
court reads:
WHEREFORE, for the foregoing premises the appealed decision is hereby
REVERSED, and the complaint below against the appellants is hereby ordered
DISMISSED. The counterclaim of appellant De Los Santos Medical Center is
GRANTED but only insofar as appellees are hereby ordered to pay the unpaid
hospital bills amounting to P93,542.25, plus legal interest for justice must be
tempered with mercy.
SO ORDERED.8
 The decision of the Court of Appeals was received on 9 June 1995 by petitioner IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS
Rogelio Ramos who was mistakenly addressed as Atty. Rogelio Ramos. No copy DRA. GUTIERREZ, DRA. CALDERON AND DR. JAMORA;
of the decision, however, was sent nor received by the Coronel Law Office, then
counsel on record of petitioners. Rogelio referred the decision of the appellate court II
to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before the
expiration of the reglementary period for filing a motion for reconsideration. On IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID
the same day, Atty. Ligsay, filed with the appellate court a motion for extension NOT CAUSE THE UNFORTUNATE COMATOSE CONDITION OF
of time to file a motion for reconsideration. The motion for reconsideration was PETITIONER ERLINDA RAMOS;
submitted on 4 July 1995. However, the appellate court denied the motion for
extension of time in its Resolution dated 25 July 1995.9 Meanwhile, petitioners III
engaged the services of another counsel, Atty. Sillano, to replace Atty. Ligsay.
Atty.
IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR.11
Sillano filed on 7 August 1995 a motion to admit the motion for reconsideration
Before we discuss the merits of the case, we shall first dispose of the procedural
contending that the period to file the appropriate pleading on the assailed decision
issue on the timeliness of the petition in relation to the motion for reconsideration
had not yet commenced to run as the Division Clerk of Court of the Court of
filed by petitioners with the Court of Appeals. In their Comment,12 private
Appeals had not yet served a copy thereof to the counsel on record. Despite this
respondents contend that the petition should not be given due course since the
explanation, the appellate court still denied the motion to admit the motion for
motion for reconsideration of the petitioners on the decision of the Court of
reconsideration of petitioners in its Resolution, dated 29 March 1996, primarily
Appeals was validly dismissed by the appellate court for having been filed beyond
on the ground that the fifteen-day (15) period for filing a motion for
the reglementary period. We do not agree.
reconsideration had already expired, to wit:
A careful review of the records reveals that the reason behind the delay in
We said in our Resolution on July 25, 1995, that the filing of a Motion for
filing the motion for reconsideration is attributable to the fact that the decision of
Reconsideration cannot be extended; precisely, the Motion for Extension (Rollo, p.
the Court of Appeals was not sent to then counsel on record of petitioners, the
12) was denied. It is, on the other hand, admitted in the latter Motion that
Coronel Law Office. In fact, a copy of the decision of the appellate court was
plaintiffs/appellees received a copy of the decision as early as June 9, 1995.
instead sent to and received by petitioner Rogelio Ramos on 9 June 1995 wherein
Computation wise, the period to file a Motion for Reconsideration expired on June
he was mistakenly addressed as Atty. Rogelio Ramos. Based on the other
24. The Motion for Reconsideration, in turn, was received by the Court of Appeals
communications received by petitioner Rogelio Ramos, the appellate court
already on July 4, necessarily, the 15-day period already passed. For that alone,
apparently mistook him for the counsel on record. Thus, no copy of the decision of
the latter should be denied.
the appellate court was furnished to the counsel on record. Petitioner, not being a
lawyer and unaware of the prescriptive period for filing a motion for
Even assuming admissibility of the Motion for Reconsideration, but after
reconsideration, referred the same to a legal counsel only on 20 June 1995.
considering the Comment/Opposition, the former, for lack of merit, is hereby
DENIED.
It is elementary that when a party is represented by counsel, all notices should
be sent to the partys lawyer at his given address. With a few exceptions, notice to
SO ORDERED.10
a litigant without notice to his counsel on record is no notice at all. In the present
case, since a copy of the decision of the appellate court was not sent to the counsel
A copy of the above resolution was received by Atty. Sillano on 11 April 1996.
on record of petitioner, there can be no sufficient notice to speak of. Hence, the
The next day, or on 12 April 1996, Atty. Sillano filed before this Court a motion
delay in the filing of the motion for reconsideration cannot be taken against
for extension of time to file the present petition for certiorari under Rule 45. The
petitioner. Moreover, since the Court of Appeals already issued a second
Court granted the motion for extension of time and gave petitioners additional
Resolution, dated 29 March 1996, which superseded the earlier resolution issued
thirty (30) days after the expiration of the fifteen-day (15) period counted from the
on 25 July 1995, and denied the motion for reconsideration of petitioner, we
receipt of the resolution of the Court of Appeals within which to submit the
believe that the receipt of the former should be considered in determining the
petition. The due date fell on 27 May 1996. The petition was filed on 9 May 1996,
timeliness of the filing of the present petition. Based on this, the petition before
well within the extended period given by the Court.
us was submitted on time.
Petitioners assail the decision of the Court Of Appeals on the following
grounds:
After resolving the foregoing procedural issue, we shall now look into the
merits of the case. For a more logical presentation of the discussion we shall first
I consider the issue on the applicability of the doctrine of res ipsa loquitur to the
instant case. Thereafter, the first two assigned errors shall be tackled in relation
to the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means the thing or the
transaction speaks for itself. The phrase res ipsa loquitur is a maxim for the
rule that the fact of the occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a presumption of negligence, or
make out a plaintiffs prima facie case, and present a question of fact for defendant
to meet with an explanation.13 Where the thing which caused the injury
complained of is shown to be under the management of the defendant or his
servants and the accident is such as in ordinary course of things does not happen
if those who have its management or control use proper care, it affords reasonable
evidence, in the absence of explanation by the defendant, that the accident arose
from or was caused by the defendants want of care.14
The doctrine of res ipsa loquitur is simply a recognition of the postulate that,
as a matter of common knowledge and experience, the very nature of certain types
of occurrences may justify an inference of negligence on the part of the person who
controls the instrumentality causing the injury in the absence of some explanation
by the defendant who is charged with negligence.15 It is grounded in the superior
logic of ordinary human experience and on the basis of such experience or common
knowledge, negligence may be deduced from the mere occurrence of the accident
itself.16 Hence, res ipsa loquitur is applied in conjunction with the doctrine of
common knowledge.
However, much has been said that res ipsa loquitur is not a rule of substantive
law and, as such, does not create or constitute an independent or separate ground
of liability.17 Instead, it is considered as merely evidentiary or in the nature of a
procedural rule.18 It is regarded as a mode of proof, or a mere procedural
convenience since it furnishes a substitute for, and relieves a plaintiff of, the
burden of producing specific proof of negligence.19 In other words, mere invocation
and application of the doctrine does not dispense with the requirement of proof of
negligence. It is simply a step in the process of such proof, permitting the plaintiff
to present along with the proof of the accident, enough of the attending
circumstances to invoke the doctrine, creating an inference or presumption of
negligence, and to thereby place on the defendant the burden of going forward
with the proof.20 Still, before resort to the doctrine may be allowed, the following
requisites must be satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in the absence
of 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 malpractice24 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.30Where common knowledge
and experience teach that a resulting injury would not have occurred to the
patient if due care had been exercised, an inference of negligence may be drawn
giving rise to an application of the doctrine of res ipsa loquitur without medical
evidence, which is ordinarily required to show not only what occurred but how and
why it occurred.31 When the doctrine is appropriate, all that the patient must do
is prove a nexus between the particular act or omission complained of and the
injury sustained while under the custody and management of the defendant
without need to produce expert medical testimony to establish the standard of
care. Resort to res ipsa loquitur is allowed because there is no other way, under
usual and ordinary conditions, by which the patient can obtain redress for injury
suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following
situations: leaving of a foreign object in the body of the patient after an
operation,32 injuries sustained on a healthy part of the body which was not under,
or in the area, of treatment,33 removal of the wrong part of the body when another
part was intended,34knocking out a tooth while a patients jaw was under
anesthetic for the removal of his tonsils,35 and loss of an eye while the patient
plaintiff was under the influence of anesthetic, during or following an operation
for appendicitis,36 among others.
Nevertheless, despite the fact that the scope of res ipsa loquiturhas been
measurably enlarged, it does not automatically apply to all cases of medical
negligence as to mechanically shift the burden of proof to the defendant to show
that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or
ordinary doctrine to be perfunctorily used but a rule to be cautiously applied,
depending upon the circumstances of each case. It is generally restricted to
situations in malpractice cases where a layman is able to say, as a matter of
common knowledge and observation, that the consequences of professional care
were not as such as would ordinarily have followed if due care had been
exercised.37 A distinction must be made between the failure to secure results, and
the occurrence of something more unusual and not ordinarily found if the service
or treatment rendered followed the usual procedure of those skilled in that
particular practice. It must be conceded that the doctrine of res ipsa loquitur can
have no application in a suit against a physician or surgeon which involves the
merits of a diagnosis or of a scientific treatment.38 The physician or surgeon is not
required at his peril to explain why any particular diagnosis was not correct, or
why any particular scientific treatment did not produce the desired
result.39Thus, res ipsa loquitur is not available in a malpractice suit if the only
showing is that the desired result of an operation or treatment was not
accomplished.40 The real question, therefore, is whether or not in the process of
the operation any extraordinary incident or unusual event outside of the routine
performance occurred which is beyond the regular scope of customary professional
activity in such operations, which, if unexplained would themselves reasonably
speak to the average man as the negligent cause or causes of the untoward
consequence.41 If there was such extraneous interventions, the doctrine of res ipsa
loquitur may be utilized and the defendant is called upon to explain the matter,
by evidence of exculpation, if he could.42
We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will
hereinafter be explained, the damage sustained by Erlinda in her brain prior to a
scheduled gall bladder operation presents a case for the application of res ipsa
loquitur.
A case strikingly similar to the one before us is Voss vs. Bridwell,43 where the
Kansas Supreme Court in applying the res ipsa loquitur stated:
The plaintiff herein submitted himself for a mastoid operation and delivered
his person over to the care, custody and control of his physician who had complete
and exclusive control over him, but the operation was never performed. At the time
of submission he was neurologically sound and physically fit in mind and body,
but he suffered irreparable damage and injury rendering him decerebrate and
totally incapacitated. The injury was one which does not ordinarily occur in the
process of a mastoid operation or in the absence of negligence in the
administration of an anesthetic, and in the use and employment of an
endoctracheal tube. Ordinarily a person being put under anesthesia is not
rendered decerebrate as a consequence of administering such anesthesia in the
absence of negligence. Upon these facts and under these circumstances a layman
would be able to say, as a matter of common knowledge and observation, that the
consequences of professional treatment were not as such as would ordinarily have
followed if due care had been exercised.
Here the plaintiff could not have been guilty of contributory negligence
because he was under the influence of anesthetics and unconscious, and the
circumstances are such that the true explanation of event is more accessible to the
defendants than to the plaintiff for they had the exclusive control of the
instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances alleged in Count II it is held
that a cause of action is stated under the doctrine of res ipsa loquitur.44
Indeed, the principles enunciated in the aforequoted case apply with equal
force here. In the present case, Erlinda submitted herself for cholecystectomy and
expected a routine general surgery to be performed on her gall bladder. On that
fateful day she delivered her person over to the care, custody and control of private
respondents who exercised complete and exclusive control over her. At the time of
submission, Erlinda was neurologically sound and, except for a few minor
discomforts, was likewise physically fit in mind and body.
However, during the administration of anesthesia and prior to the
performance of cholecystectomy she suffered irreparable damage to her brain.
Thus, without undergoing surgery, she went out of the operating room already
decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda
sustained, is an injury which does not normally occur in the process of a gall
bladder operation. In fact, this kind of situation does not happen in the absence of
negligence of someone in the administration of anesthesia and in the use of
endotracheal tube. Normally, a person being put under anesthesia is not rendered
decerebrate as a consequence of administering such anesthesia if the proper
procedure was followed. Furthermore, the instruments used in the administration
of anesthesia, including the endotracheal tube, were all under the exclusive
control of private respondents, who are the physicians-in-charge.
Likewise, petitioner Erlinda could not have been guilty of contributory
negligence because she was under the influence of anesthetics which rendered
her unconscious.
Considering that a sound and unaffected member of the body (the brain) is
injured or destroyed while the patient is unconscious and under the immediate
and exclusive control of the physicians, we hold that a practical administration of
justice dictates the application of res ipsa loquitur. Upon these facts and under
these circumstances the Court would be able to say, as a matter of common
knowledge and observation, if negligence attended the management and care of
the patient. Moreover, the liability of the physicians and the hospital in this case
is not predicated upon an alleged failure to secure the desired results of an
operation nor on an alleged lack of skill in the diagnosis or treatment as in fact no
operation or treatment was ever performed on Erlinda. Thus, upon all these initial
determination a case is made out for the application of the doctrine of res ipsa
loquitur.

Nonetheless, in holding that res ipsa loquitur is available to the present case
we are not saying that the doctrine is applicable in any and all cases where injury
occurs to a patient while under anesthesia, or to any and all anesthesia cases.
Each case must be viewed in its own light and scrutinized in order to be within
the res ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine and the
presumption of negligence allowed therein, the Court now comes to the issue of
whether the Court of Appeals erred in finding that private respondents were not
negligent in the care of Erlinda during the anesthesia phase of the operation and,
if in the affirmative, whether the alleged negligence was the proximate cause of
Erlindas comatose condition. Corollary thereto, we shall also determine if the
Court of Appeals erred in relying on the testimonies of the witnesses for the
private respondents.
In sustaining the position of private respondents, the Court of Appeals relied
on the testimonies of Dra. Gutierrez, Dra. Calderon and Dr. Jamora. In giving
weight to the testimony of Dra. Gutierrez, the Court of Appeals rationalized that
she was candid enough to admit that she experienced some difficulty in the
endotracheal intubation45 of the patient and thus, cannot be said to be covering
her negligence with falsehood. The appellate court likewise opined that private
respondents were able to show that the brain damage sustained by Erlinda was
not caused by the alleged faulty intubation but was due to the allergic reaction of
the patient to the drug Thiopental Sodium (Pentothal), a short-acting barbiturate,
as testified on by their expert witness, Dr. Jamora. On the other hand, the
appellate court rejected the testimony of Dean Herminda Cruz offered in favor of
petitioners that the cause of the brain injury was traceable to the wrongful
insertion of the tube since the latter, being a nurse, was allegedly not
knowledgeable in the process of intubation. In so holding, the appellate court
returned a verdict in favor of respondents physicians
________________
45 It is the method of intubating a patient through the oral cavity. Under this
procedure, after the patient has been preoxygenated and paralyzed and is no
longer breathing on his own, the anesthetist inserts an instrument called a
laryngoscope into the patients oral pharynx. The patients neck is hyperextended, Q:
that is, bent back as far as possible so that the anesthetist can see or visualize A:
the patients epiglottis and vocal cords. The anesthetist will then thread the
endotracheal tube between the patients vocal cords into the trachea, and then
hook the tube to the breathing bag and anesthetic machine.
607
VOL. 321, DECEMBER 29, 1999 607
Ramos vs. Court of Appeals
and hospital and absolved them of any liability towards Er-linda and her family.
We disagree with the findings of the Court of Appeals. We hold that private
respondents were unable to disprove the presumption of negligence on their part
in the care of Erlinda and their negligence was the proximate cause of her piteous
condition.
In the instant case, the records are helpful in furnishing not only the logical
scientific evidence of the pathogenesis of the injury but also in providing the Court
the legal nexus upon which liability is based. As will be shown hereinafter, private
respondents own testimonies which are reflected in the transcript of stenographic
notes are replete of signposts indicative of their negligence in the care and
management of Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda
during the anesthesia phase. As borne by the records, respondent Dra. Gutierrez
failed to properly intubate the patient. This fact was attested to by Prof. Herminda
Cruz, Dean of the Capitol Medical Center School of Nursing and petitioners 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 maintubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan.
xxx
ATTY. PAJARES:
From whom did you hear those words lumalaki ang tiyan?
From Dra. Perfecta Gutierrez.
xxx
Q. After hearing the phrase lumalaki ang tiyan, what did you notice on the person of
the patient?
A: I notice (sic) some bluish discoloration on the nailbeds ofthe left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particulartime?
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 thepatient 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 Cruzs 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
Cruzs categorical statements that appellant Dra. Gutierrez failed to intubate the
appellee Erlinda Ramos and that it was Dra. Calderon who succeeded in doing so
clearly suffer from lack of sufficient factual bases.47
In other words, what the Court of Appeals is trying to impress is that being a
nurse, and considered a layman in the process of intubation, witness Cruz is not
competent to testify on whether or not the intubation was a success.
We do not agree with the above reasoning of the appellate court. Although
witness Cruz is not an anesthesiologist, she can very well testify upon matters on
which she is capable of observing such as, the statements and acts of the physician
and surgeon, external appearances, and manifest conditions which are observable
by any one.48 This is precisely allowed under the doctrine of res ipsa
loquitur where the testimony of expert witnesses is not required. It is the accepted
rule that expert testimony is not necessary for the proof of negligence in
nontechnical matters or those of which an ordinary person may be expected to
have knowledge, or where the lack of skill or want of care is so obvious as to render
expert testimony
unnecessary.49 We take judicial notice of the fact that anesthesia procedures have
become so common, that even an ordinary person can tell if it was administered
properly. As such, it would not be too difficult to tell if the tube was properly
inserted. This kind of observation, we believe, does not require a medical degree
to be acceptable.
At any rate, without doubt, petitioners witness, an experienced clinical nurse
whose long experience and scholarship led to her appointment as Dean of the
Capitol Medical Center School of Nursing, was fully capable of determining
whether or not the intubation was a success. She had extensive clinical experience
starting as a staff nurse in Chicago, Illinois; staff nurse and clinical instructor in
a teaching hospital, the FEU-NRMF; Dean of the Laguna College of Nursing in
San Pablo City; and then Dean of the Capitol Medical Center School of
Nursing.50 Reviewing witness Cruz statements, we find that the same were
delivered in a straightforward manner, with the kind of detail, clarity, consistency
and spontaneity which would have been difficult to fabricate. With her clinical
background as a nurse, the Court is satisfied that she was able to demonstrate
through her testimony what truly transpired on that fateful day.
Most of all, her testimony was affirmed by no less than respondent Dra.
Gutierrez who admitted that she experienced difficulty in inserting the tube into
Erlindas trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at your first attempt (sic),
you did not immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the . . .
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said mahirap yata ito, what were you referring to?
A: Mahirap yata itong i-intubate, that was the patient.
Q: So, you found some difficulty in inserting the tube?
A: Yes, because of (sic) my first attempt, I did not see right away.51
Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard
defense that she encountered hardship in the insertion of the tube in the trachea
of Erlinda because it was positioned more anteriorly (slightly deviated from the
normal anatomy of a person)52making it harder to locate and, since Erlinda is
obese and has a short neck and protruding teeth, it made intubation even more
difficult.
The argument does not convince us. If this was indeed observed, private
respondents adduced no evidence demonstrating that they proceeded to make a
thorough assessment of 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.
Pre-operative 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
patients 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 courts 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
gainthe trust and confidence of the patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the operative procedure of the
anesthesiologist and in my case, with elective cases and normal cardio-pulmonary
clearance like that, I usually dont do it except on emergency and on cases that have
an abnormalities (sic).58
However, the exact opposite is true. In an emergency procedure, there is
hardly enough time available for the fastidious demands of preoperative
procedure so that an anesthesiologist is able to see the patient only a few minutes
before surgery, if at all. Elective procedures, on the other hand, are operative
procedures that can wait for days, weeks or even months. Hence, in these cases,
the anesthesiologist possesses the luxury of time to make a proper assessment,
including the time to be at the patients bedside to do a proper interview and
clinical evaluation. There is ample time to explain the method of anesthesia, the
drugs to be used, and their possible hazards for purposes of informed consent.
Usually, the pre-operative assessment is conducted at least one day before the
intended surgery, when the patient is relaxed and cooperative.
Erlindas case was elective and this was known to respondent Dra. Gutierrez.
Thus, she had all the time to make a thorough evaluation of Erlindas case prior
to the operation and prepare her for anesthesia. However, she never saw the
patient at the bedside. She herself admitted that she had seen petitioner only in
the operating room, and only on the actual date of the cholecystectomy. She
negligently failed to take advantage of this important opportunity. As such, her
attempt to exculpate herself must fail. Having established that respondent Dra.
Gutierrez failed to perform pre-operative evaluation of the patient which, in turn,
resulted to a wrongful intubation, we now determine if the faulty intubation is
truly the proximate cause of Erlindas comatose condition.
Private respondents repeatedly hammered the view that the cerebral anoxia
which led to Erlindas coma was due to bronchospasm59 mediated by her allergic
response to the drug, Thiopental Sodium, introduced into her system. Towards
this end, they presented Dr. Jamora, a Fellow of the Philippine College of
Physicians and Diplomate of the Philippine Specialty Board of Internal Medicine,
who advanced private re-spondents theory that the oxygen deprivation which led
to anoxic encephalopathy,60 was due to an unpredictable drug reaction to the
short-acting barbiturate. We find the theory of private respondents unacceptable.
First of all, Dr. Jamora cannot be considered an authority in the field of
anesthesiology simply because he is not an anesthesiologist. Since Dr. Jamora is
a pulmonologist, he could not have been capable of properly enlightening the court
about anesthesia practice and procedure and their complications. Dr. Jamora is
likewise not an allergologist and could not therefore properly advance expert
opinion on allergic-mediated processes. Moreover, he is not a pharmacologist and,
as such, could not have been capable, as an expert would, of explaining to the court
the pharmacologic and toxic effects of the supposed culprit, Thiopental Sodium
(Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamoras testimony as
an expert witness in the anesthetic
________________
59 Constriction of the air passages of the lung by spasmodic contraction of the
bronchial muscles (as in asthma).
60 Permanent damage to the brain caused by inadequate oxygenation.
615
 VOL. 321, DECEMBER 29, 1999
Ramos vs. Court of Appeals
practice of Pentothal administration is further supported by his own admission
that he formulated his opinions on the drug not from the practical experience
gained by a specialist or expert in the administration and use of Sodium Pentothal
on patients, but only from reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any occasion to use pentothal
as a method of management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they have to intubate our
patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is based only on what you have read
from books and not by your own personal application of the medicine pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during my appendectomy.
Q: And because they have used it on you and on account of your own personal
experience you feel that you can testify on pentothal here with medical authority?
A: No. That is why I used references to support my claims.61
An anesthetic accident caused by a rare drug-induced bronchospasm properly
falls within the fields of anesthesia, internal medicine-allergy, and clinical
pharmacology. The resulting anoxic encephalopathy belongs to the field of
neurology. While admittedly, many bronchospastic-mediated pulmonary diseases
are within the expertise of pulmonary medicine, Dr. Jamoras field, the anesthetic
drug-induced, allergic mediated bronchospasm alleged in this case is within the
disciplines of anesthesiology, allergology and pharmacology. On the basis of the
foregoing transcript, in which the pulmonologist himself admitted that he could
not testify about the drug with medical authority, it is clear that the appellate
court erred in giving weight to Dr. Jamoras testimony as an expert in the
administration of Thiopental Sodium.
The provision in the rules of evidence62 regarding expert witnesses states:
Sec. 49. Opinion of expert witness.The opinion of a witness on a matter requiring
special knowledge, skill, experience or training which he is shown to possess, may
be received in evidence.
Generally, to qualify as an expert witness, one must have acquired special
knowledge of the subject matter about which he or she is to testify, either by the
study of recognized authorities on the subject or by practical experience.63 Clearly,
615 Dr. Jamora does not qualify as an expert witness based on the above standard
since he lacks the necessary knowledge, skill, and training in the field of
anesthesiology. Oddly, apart from submitting testimony from a specialist in the
wrong field, private respondents intentionally avoided providing testimony by
competent and independent experts in the proper areas.
Moreover, private respondents theory, that Thiopental Sodium may have
produced Erlindas coma by triggering an allergic mediated response, has no
support in evidence. No evidence of stridor, skin reactions, or wheezingsome of
the more common accompanying signs of an allergic reactionappears on record.
No laboratory data were ever presented to the court.
In any case, private respondents themselves admit that Thiopental induced,
allergic-mediated bronchospasm happens only very rarely. If courts were to accept
private respondents hypothesis without supporting medical proof, and against the
weight of available evidence, then every anesthetic accident would be an act of
God. Evidently, the Thiopentalallergy theory vigorously asserted by private
respondents was a mere afterthought. Such an explanation was advanced in order
to absolve them of any and all responsibility for the patients condition.
In view of the evidence at hand, we are inclined to believe petitioners stand
that it was the faulty intubation which was the proximate cause of Erlindas
comatose condition.
Proximate cause has been defined as that which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces injury, and
without which the result would not have occurred.64 An injury or damage is
proximately caused by an act or a failure to act, whenever it appears from the
evidence in the case, that the act or omission played a substantial part in bringing
about or actually causing the injury or damage; and that the injury or damage was
either a direct result or a reasonably probable consequence of the act or
omission.65 It is the dominant, moving or producing cause.
Applying the above definition in relation to the evidence at hand, faulty
intubation is undeniably the proximate cause which triggered the chain of events
leading to Erlindas brain damage and, ultimately, her comatosed condition.
Private respondents themselves admitted in their testimony that the first
intubation was a failure. This fact was likewise observed by witness Cruz when
she heard respondent Dra. Gutierrez remarked, Ang hirap ma-intubate nito, mali
yata ang pagkakapasok. O lumalaki ang tiyan. Thereafter, witness Cruz noticed
abdominal distention on the body of Erlinda. The development of abdominal
distention, together with respiratory embarrassment indicates that the
endotracheal tube entered the esophagus instead of the respiratory tree. In other
words, instead of the intended endotracheal intubation what actually took place
was an esophageal intubation. During intubation, such distention indicates that
air has entered the gastrointestinal tract through the esophagus instead of the
lungs through the trachea. Entry into the esophagus would certainly cause some
delay in oxygen delivery into the lungs as the tube which carries oxygen is in the
wrong place. That abdominal distention had been observed during the first
intubation suggests that the length of time utilized in inserting the endotracheal
tube (up to the time the tube was withdrawn for the second attempt) was fairly
significant. Due to the delay in the delivery of oxygen in her lungs Erlinda showed
signs of cyanosis.66 As stated in the testimony of Dr. Hosaka, the lack of oxygen
became apparent only after he noticed that the nailbeds of Erlinda were already
blue.67 However, private respondents contend that a second intubation was
executed on Erlinda and this one was successfully done. We do not think so. No
evidence exists on record, beyond private respondents bare claims, which
supports the contention that the second intubation was successful. Assuming that
the endotracheal tube finally found its way into the proper orifice of the trachea,
the same gave no guarantee of oxygen delivery, the hallmark of a successful
intubation. In fact, cyanosis was again observed immediately after the second
intubation. Proceeding from this event (cyanosis), it could not be claimed, as
private respondents insist, that the second intubation was accomplished. Even
granting that the tube was successfully inserted during the second attempt, it was
obviously too late. As aptly explained by the trial court, Erlinda already suffered
brain damage as a result of the inadequate oxygenation of her brain for about four
to five minutes.68
The above conclusion is not without basis. Scientific studies point out that
intubation problems are responsible for one-third (1/3) of deaths and serious
injuries associated with anes-
________________
66 It is a bluish coloration of the skin or mucous membranes caused by lack of
oxygen or abnormal hemoglobin in the blood.
VOL. 321, DECEMBER 29, 1999 619
Ramos vs. Court of Appeals
thesia.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.70As stated beforehand, respondent Dra.
Gutierrez failed to observe the proper pre-operative protocol which could have
prevented this unfortunate incident. Had appropriate diligence and reasonable
care been used in the pre-operative evaluation, respondent physician could have
been much more prepared to meet the contingency brought about by the perceived
anatomic variations in the 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 so-called 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
________________
73 Under this doctrine, the surgeon is likened to a ship captain who must not
only be responsible for the safety of the crew but also of the passengers of the
vessel. The head surgeon is made responsible for everything that goes wrong
within the four corners of the operating room. It enunciates the liability of the
surgeon not only for the wrongful acts of those who are under his physical control
but also those wherein he has extension of control.
620 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
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,74who 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
________________
74 The term consultant is loosely used by hospitals to distinguish their
attending and visiting physicians from the residents, who are also physicians. In
most hospitals abroad, the term visiting or attending physician, not consultant, is
used.
621
VOL. 321, DECEMBER 29, 1999 621
 Ramos vs. Court of Appeals
the application.75 This is particularly true with respondent hospital.
After a physician is accepted, either as a visiting or attending consultant, he
is normally required to attend clinico-pathological conferences, conduct bedside
rounds for clerks, interns and residents, moderate grand rounds and patient
audits and perform other tasks and responsibilities, for the privilege of being able
to maintain a clinic in the hospital, and/or for the privilege of admitting patients
into the hospital. In addition to these, the 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, a point which respondent hospital asserts in denying all responsibility
for the patients condition, the control exercised, the hiring, and the right to
terminate consultants all fulfill the important hallmarks of an employer-employee
relationship, with the exception of the payment of wages. In assessing whether
such a relationship in fact exists, the control test is determining. Accordingly, on
the basis of the foregoing, we rule that for the purpose of allocating responsibility
in medical negligence cases, an employer-employee relationship in effect exists
between hospitals and their attending and visiting physicians. This being the case,
the question now arises as to whether or not respondent hospital is solidarily
liable with respondent doctors for petitioners condition.76
________________
75 These requirements are in fact found in the standard application forms for
visiting and attending physicians of respondent hospital.
76 The hospitals control over respondent physicians is all the more significant
when one considers the fact that it controls every-
622
622 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
The basis for holding an employer solidarily responsible for the negligence of
its employee is found in Article 2180 of the Civil Code which considers a person
accountable not only for his own acts but also for those of others based on the
formers responsibility under a relationship of patria potestas.77 Such
responsibility ceases when the persons or entity concerned prove that they have
observed the diligence of a good father of the family to prevent damage.78 In other
words, while the burden of proving negligence rests on the plaintiffs, once
negligence is shown, the burden shifts to the respondents (parent, guardian,
teacher or employer) who should prove that they observed the diligence of a good
father of a family to prevent damage.
In the instant case, respondent hospital, apart from a general denial of its
responsibility over respondent physicians, failed to adduce evidence showing that
it exercised the diligence of a good father of a family in the hiring and supervi-
________________
thing which occurs in an operating room, through its nursing supervisors and
charge nurses. No operations can be undertaken without the hospitals direct or
indirect consent.
77 VITUG, COMPENDIUM OF CIVIL LAW AND JURISPRUDENCE, 822
(1993).
78 Art. 2180 of the Civil Code provides: 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.
The father and, in case of his death or incapacity, the mother, are responsible
for the damages caused by the minor children who live in their company.
Guardians are liable for damages caused by the minors or incapacitated
persons who are under their authority and live in their company.
The owners and managers of an establishment or enterprise are likewise
responsible for damages caused by their employees in the service of the branches
in which the latter are employed or on the occasion of their functions.
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though the
former are not engaged in any business or industry.
VOL. 321, DECEMBER 29, 1999 623
Ramos vs. Court of Appeals
sion of the latter. It failed to adduce evidence with regard to the degree of
supervision which it exercised over its physicians. In neglecting to offer such proof,
or proof of a similar nature, respondent hospital thereby failed to discharge its
burden under the last paragraph of Article 2180. Having failed to do this,
respondent hospital is consequently solidarily responsible with its physicians for
Erlindas condition.
Based on the foregoing, we hold that the Court of Appeals erred in accepting
and relying on the testimonies of the witnesses for the private respondents.
Indeed, as shown by the above discussions, private respondents were unable to
rebut the presumption of negligence. Upon these disquisitions we hold that
private respondents are solidarily liable for damages under Article 2176 79 of the
Civil Code.
We now come to the amount of damages due petitioners. The trial court
awarded a total of P632,000.00 pesos (should be P616,000.00) in compensatory
damages to the plaintiff, subject to its being updated covering the period from
15 November 1985 up to 15 April 1992, based on monthly expenses for the care of
the patient estimated at P8,000.00.
At current levels, the P8,000/monthly amount established by the trial court at
the time of its decision would be grossly inadequate to cover the actual costs of
home-based care for a comatose individual. The calculated amount was not even
arrived at by looking at the actual cost of proper hospice care for the patient. What
it reflected were the actual expenses incurred and proved by the petitioners after
they were forced to bring home the patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a hospital or be
transferred to a hospice specializing in the care of the chronically ill for the
purpose of providing a proper milieu adequate to meet minimum standards of
care. In the instant case for instance, Erlinda has to be constantly turned from
side to side to prevent bedsores and hypostatic pneumonia.
________________
Whoever by act or omission causes damage to another, there being fault or
79
negligence, is obliged to pay for the damage done.
624 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
Feeding is done by nasogastric tube. Food preparation should be normally made
by a dietitian to provide her with the correct daily caloric requirements and
vitamin supplements. Furthermore, she has to be seen on a regular basis by a
physical therapist to avoid muscle atrophy, and by a pulmonary therapist to
prevent the accumulation of secretions which can lead to respiratory
complications.
Given these considerations, the amount of actual damages recoverable in suits
arising from negligence should at least reflect the correct minimum cost of proper
care, not the cost of the care the family is usually compelled to undertake at home
to avoid bankruptcy. However, the provisions of the Civil Code on actual or
compensatory damages present us with some difficulties.
Well-settled is the rule that actual damages which may be claimed by the
plaintiff are those suffered by him as he has duly proved. The Civil Code provides:
Art. 2199.Except as provided by law or by stipulation, one is entitled to an
adequate compensation only for such pecuniary loss suffered by him as he has
duly proved. Such compensation is referred to as actual or compensatory damages.
Our rules on actual or compensatory damages generally assume that at the
time of litigation, the injury suffered as a consequence of an act of negligence has
been completed and that the cost can be liquidated. However, these provisions
neglect to take into account those situations, as in this case, where the resulting
injury might be continuing and possible future complications directly arising from
the injury, while certain to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they are
to adequately and correctly respond to the injury caused, should be one which
compensates for pecuniary loss incurred and proved, up to the time of
trial; and one which would meet pecuniary loss certain to be suffered but which
could not, from the nature of the case, be made with certainty. 80 In other words,
temperate damages can and should be awarded on top of actual or compensatory
damages in instances where the injury is chronic and continuing. And because of
the unique nature of such cases, no incompatibility arises when both actual and
temperate damages are provided for. The reason is that these damages cover two
distinct phases.
As it would not be equitableand certainly not in the best interests of the
administration of justicefor the victim in such cases to constantly come before
the courts and invoke their aid in seeking adjustments to the compensatory
damages previously awardedtemperate damages are appropriate. The amount
given as temperate damages, though to a certain extent speculative, should take
into account the cost of proper care.
In the instant case, petitioners were able to provide only home-based nursing
care for a comatose patient who has remained in that condition for over a decade.
Having premised our award for compensatory damages on the amount provided
by petitioners at the onset of litigation, it would be now much more in step with
the interests of justice if the value awarded for temperate damages would allow
petitioners to provide optimal care for their loved one in a facility which generally
specializes in such care. They should not be compelled by dire circumstances to
provide substandard care at home without the aid of professionals, for anything
less would be grossly inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be reasonable. 81
In Valenzuela vs. Court of Appeals,82 this Court was confronted with a
situation where the injury suffered by the plaintiff would have led to expenses
which were difficult to
________________
Art. 2224, CIVIL CODE.
80
Should petitioner remain in the same condition for another ten years, the
81
amount awarded in the form of temperate damages would in fact, be inadequate.
626 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
estimate because while they would have been a direct result of the injury
(amputation), and were certain to be incurred by the plaintiff, they were likely to
arise only in the future. We awarded P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic
amputation of her left lower extremity at the distal left thigh just above the knee.
Because of this, Valenzuela will forever be deprived of the full ambulatory
functions of her left extremity, even with the use of state of the art prosthetic
technology. Well beyond the period of hospitalization (which was paid for by Li),
she will be required to undergo adjustments in her prosthetic devise due to the
shrinkage of the stump from the process of healing.
 These adjustments entail costs, prosthetic replacements and months of
physical and occupational rehabilitation and therapy. During her lifetime, the
prosthetic devise will have to be replaced and readjusted to changes in the size of
her lower limb effected by the biological changes of middle-age, menopause and
aging. Assuming she reaches menopause, for example, the prosthetic will have to
be adjusted to respond to the changes in bone resulting from a precipitate decrease
in calcium levels observed in the bones of all postmenopausal women. In other
words, the damage done to her would not only be permanent and lasting, it would
also be permanently changing and adjusting to the physiologic changes which her
body would normally undergo through the years. The replacements, changes, and
adjustments will require corresponding adjustive physical and occupational
therapy. All of these adjustments, it has been documented, are painful.
x x x.
A prosthetic devise, however technologically advanced, will only allow a
reasonable amount of functional restoration of the motor functions of the lower
limb. The sensory functions are forever lost. The resultant anxiety, sleeplessness,
psychological injury, mental and physical pain are inestimable.83
The injury suffered by Erlinda as a consequence of private respondents
negligence is certainly much more serious than the amputation in
the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred.
She has been in a comatose state for over fourteen years now. The burden of care
has so far been heroically shouldered by her husband and children, who, in the
intervening years have been deprived of the love of a wife and a mother.
Meanwhile, the actual physical, emotional and financial cost of the care of
petitioner would be virtually impossible to quantify. Even the temperate damages
herein awarded would be inadequate if petitioners condition remains unchanged
for the next ten years.
We recognized, in Valenzuela that a discussion of the victims actual injury
would not even scratch the surface of the resulting moral damage because it would
be highly speculative to estimate the amount of emotional and moral pain,
psychological damage and injury suffered by the victim or those actually affected
by the victims condition.84 The husband and the children, all petitioners in this
case, will have to live with the day to day uncertainty of the patients illness,
knowing any hope of recovery is close to nil. They have fashioned their daily lives
around the nursing care of petitioner, altering their long term goals to take into
account their life with a comatose patient. They, not the respondents, are charged
with the moral responsibility of the care of the victim. The familys moral injury
and suffering in this case is clearly a real one. For the foregoing reasons, an award
of P2,000,000.00 in moral damages would be appropriate.
Finally, by way of example, exemplary damages in the amount of P100,000.00
are hereby awarded. Considering the length and nature of the instant suit we are
of the opinion that attorneys fees valued at P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating medical negligence cases
because physicians are not insurers of life and, they rarely set out to intentionally
cause injury or death to their patients. However, intent is immaterial in
negligence cases because where negligence exists and is proven, the same
automatically gives the injured a right to reparation for the damage caused.
Established medical procedures and practices, though in constant flux are
devised for the purpose of preventing complications. A physicians experience with
his patients would sometimes tempt him to deviate from established community
practices, and he may end a distinguished career using unorthodox methods
without incident. However, when failure to follow established procedure results in
the evil precisely sought to be averted by observance of the procedure and a nexus
is made between the deviation and the injury or damage, the physician would
necessarily be called to account for it. In the case at bar, the failure to observe
preoperative assessment protocol which would have influenced the intubation in
a salutary way was fatal to private respondents case.
WHEREFORE, the decision and resolution of the appellate court appealed
from are hereby modified so as to award in favor of petitioners, and solidarily
against private respondents the following: 1) P1,352,000.00 as actual damages
computed as of the date of promulgation of this decision plus a monthly payment
of P8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously
survives; 2) P2,000,000.00 as moral damages; 3) P1,500,000.00 as temperate
damages; 4) P100,000.00 each as exemplary damages and attorneys fees; and, 5)
the costs of the suit.
SO ORDERED.
Judgment modified.
Note.Proximate cause is determined on the facts of each case upon mixed
considerations of logic, common sense, policy and precedent. (Philippine Bank of
Commerce vs. Court of Appeals, 269 SCRA 695 [1997])
o0o