Medical Malpractice cases.docx

G.R. No. 177407

February 9, 2011

RICO ROMMEL ATIENZA, Petitioner, vs. BOARD OF MEDICINE and EDITHA SIOSON, Respondents. DECISION NACHURA, J.: Before us is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Decision1 dated September 22, 2006 of the Court of Appeals (CA) in CA-G.R. SP No. 87755. The CA dismissed the petition for certiorari filed by petitioner Rico Rommel Atienza (Atienza), which, in turn, assailed the Orders2 issued by public respondent Board of Medicine (BOM) in Administrative Case No. 1882. The facts, fairly summarized by the appellate court, follow. Due to her lumbar pains, private respondent Editha Sioson went to Rizal Medical Center (RMC) for check-up on February 4, 1995. Sometime in 1999, due to the same problem, she was referred to Dr. Pedro Lantin III of RMC who, accordingly, ordered several diagnostic laboratory tests. The tests revealed that her right kidney is normal. It was ascertained, however, that her left kidney is non-functioning and non-visualizing. Thus, she underwent kidney operation in September, 1999. On February 18, 2000, private respondent’s husband, Romeo Sioson (as complainant), filed a complaint for gross negligence and/or incompetence before the [BOM] against the doctors who allegedly participated in the fateful kidney operation, namely: Dr. Judd dela Vega, Dr. Pedro Lantin, III, Dr. Gerardo Antonio Florendo and petitioner Rico Rommel Atienza. It was alleged in the complaint that the gross negligence and/or incompetence committed by the said doctors, including petitioner, consists of the removal of private respondent’s fully functional right kidney, instead of the left non-functioning and non-visualizing kidney. The complaint was heard by the [BOM]. After complainant Romeo Sioson presented his evidence, private respondent Editha Sioson, also named as complainant there, filed her formal offer of documentary evidence. Attached to the formal offer of documentary evidence are her Exhibits "A" to "D," which she offered for the purpose of proving that her kidneys were both in their proper anatomical locations at the time she was operated. She described her exhibits, as follows: "EXHIBIT ‘A’ – the certified photocopy of the X-ray Request form dated December 12, 1996, which is also marked as Annex ‘2’ as it was actually originally the Annex to x x x Dr. Pedro Lantin, III’s counter affidavit filed with the City Prosecutor of Pasig City in connection with the criminal complaint filed by [Romeo Sioson] with the said office, on which are handwritten entries which are the interpretation of the results of the ultrasound examination. Incidentally, this exhibit happens to be the same as or identical to the certified photocopy of the document marked as Annex ‘2’ to the Counter-Affidavit dated March 15, 2000, filed by x x x Dr. Pedro Lantin, III, on May 4, 2000, with this Honorable Board in answer to this complaint; "EXHIBIT ‘B’ – the certified photo copy of the X-ray request form dated January 30, 1997, which is also marked as Annex ‘3’ as it was actually likewise originally an Annex to x x x Dr. Pedro Lantin, III’s counter-affidavit filed with the Office of the City Prosecutor of Pasig City in connection with the criminal complaint filed by the herein complainant with the said office, on which are handwritten entries which are the interpretation of the results of the examination. Incidentally, this exhibit happens to be also the same as or identical to the certified photo copy of the document marked as Annex ‘3’ which is likewise dated January 30, 1997, which is appended as such Annex ‘3’ to the counter-affidavit dated March 15, 2000, filed by x x x Dr. Pedro Lantin, III on May 4, 2000, with this Honorable Board in answer to this complaint.

"EXHIBIT ‘C’ – the certified photocopy of the X-ray request form dated March 16, 1996, which is also marked as Annex ‘4,’ on which are handwritten entries which are the interpretation of the results of the examination. "EXHIBIT ‘D’ – the certified photocopy of the X-ray request form dated May 20, 1999, which is also marked as Annex ‘16,’ on which are handwritten entries which are the interpretation of the results of the examination. Incidentally, this exhibit appears to be the draft of the typewritten final report of the same examination which is the document appended as Annexes ‘4’ and ‘1’ respectively to the counteraffidavits filed by x x x Dr. Judd dela Vega and Dr. Pedro Lantin, III in answer to the complaint. In the case of Dr. dela Vega however, the document which is marked as Annex ‘4’ is not a certified photocopy, while in the case of Dr. Lantin, the document marked as Annex ‘1’ is a certified photocopy. Both documents are of the same date and typewritten contents are the same as that which are written on Exhibit ‘D.’ Petitioner filed his comments/objections to private respondent’s [Editha Sioson’s] formal offer of exhibits. He alleged that said exhibits are inadmissible because the same are mere photocopies, not properly identified and authenticated, and intended to establish matters which are hearsay. He added that the exhibits are incompetent to prove the purpose for which they are offered. Dispositions of the Board of Medicine The formal offer of documentary exhibits of private respondent [Editha Sioson] was admitted by the [BOM] per its Order dated May 26, 2004. It reads: "The Formal Offer of Documentary Evidence of [Romeo Sioson], the Comments/Objections of [herein petitioner] Atienza, [therein respondents] De la Vega and Lantin, and the Manifestation of [therein] respondent Florendo are hereby ADMITTED by the [BOM] for whatever purpose they may serve in the resolution of this case. "Let the hearing be set on July 19, 2004 all at 1:30 p.m. for the reception of the evidence of the respondents. "SO ORDERED." Petitioner moved for reconsideration of the abovementioned Order basically on the same reasons stated in his comment/objections to the formal offer of exhibits. The [BOM] denied the motion for reconsideration of petitioner in its Order dated October 8, 2004. It concluded that it should first admit the evidence being offered so that it can determine its probative value when it decides the case. According to the Board, it can determine whether the evidence is relevant or not if it will take a look at it through the process of admission. x x x.3 Disagreeing with the BOM, and as previously adverted to, Atienza filed a petition for certiorari with the CA, assailing the BOM’s Orders which admitted Editha Sioson’s (Editha’s) Formal Offer of Documentary Evidence. The CA dismissed the petition for certiorari for lack of merit. Hence, this recourse positing the following issues: I. PROCEDURAL ISSUE: WHETHER PETITIONER ATIENZA AVAILED OF THE PROPER REMEDY WHEN HE FILED THE PETITION FOR CERTIORARI DATED 06 DECEMBER 2004 WITH THE COURT OF APPEALS UNDER RULE 65 OF THE RULES OF COURT TO ASSAIL THE ORDERS DATED 26 MAY 2004 AND 08 OCTOBER 2004 OF RESPONDENT BOARD. II. SUBSTANTIVE ISSUE:

WHETHER THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR AND DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORDANCE WITH LAW AND THE APPLICABLE DECISIONS OF THE HONORABLE COURT WHEN IT UPHELD THE ADMISSION OF INCOMPETENT AND INADMISSIBLE EVIDENCE BY RESPONDENT BOARD, WHICH CAN RESULT IN THE DEPRIVATION OF PROFESSIONAL LICENSE – A PROPERTY RIGHT OR ONE’S LIVELIHOOD.4 We find no reason to depart from the ruling of the CA. Petitioner is correct when he asserts that a petition for certiorari is the proper remedy to assail the Orders of the BOM, admitting in evidence the exhibits of Editha. As the assailed Orders were interlocutory, these cannot be the subject of an appeal separate from the judgment that completely or finally disposes of the case.5 At that stage, where there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, the only and remaining remedy left to petitioner is a petition for certiorari under Rule 65 of the Rules of Court on the ground of grave abuse of discretion amounting to lack or excess of jurisdiction. However, the writ of certiorari will not issue absent a showing that the BOM has acted without or in excess of jurisdiction or with grave abuse of discretion. Embedded in the CA’s finding that the BOM did not exceed its jurisdiction or act in grave abuse of discretion is the issue of whether the exhibits of Editha contained in her Formal Offer of Documentary Evidence are inadmissible. Petitioner argues that the exhibits formally offered in evidence by Editha: (1) violate the best evidence rule; (2) have not been properly identified and authenticated; (3) are completely hearsay; and (4) are incompetent to prove their purpose. Thus, petitioner contends that the exhibits are inadmissible evidence. We disagree. To begin with, it is well-settled that the rules of evidence are not strictly applied in proceedings before administrative bodies such as the BOM.6 Although trial courts are enjoined to observe strict enforcement of the rules of evidence,7in connection with evidence which may appear to be of doubtful relevancy, incompetency, or admissibility, we have held that: [I]t is the safest policy to be liberal, not rejecting them on doubtful or technical grounds, but admitting them unless plainly irrelevant, immaterial or incompetent, for the reason that their rejection places them beyond the consideration of the court, if they are thereafter found relevant or competent; on the other hand, their admission, if they turn out later to be irrelevant or incompetent, can easily be remedied by completely discarding them or ignoring them.8 From the foregoing, we emphasize the distinction between the admissibility of evidence and the probative weight to be accorded the same pieces of evidence. PNOC Shipping and Transport Corporation v. Court of Appeals9 teaches: Admissibility of evidence refers to the question of whether or not the circumstance (or evidence) is to be considered at all. On the other hand, the probative value of evidence refers to the question of whether or not it proves an issue. Second, petitioner’s insistence that the admission of Editha’s exhibits violated his substantive rights leading to the loss of his medical license is misplaced. Petitioner mistakenly relies on Section 20, Article I of the Professional Regulation Commission Rules of Procedure, which reads: Section 20. Administrative investigation shall be conducted in accordance with these Rules. The Rules of Court shall only apply in these proceedings by analogy or on a suppletory character and whenever practicable and convenient. Technical errors in the admission of evidence which do not prejudice the substantive rights of either party shall not vitiate the proceedings.10

As pointed out by the appellate court, the admission of the exhibits did not prejudice the substantive rights of petitioner because, at any rate, the fact sought to be proved thereby, that the two kidneys of Editha were in their proper anatomical locations at the time she was operated on, is presumed under Section 3, Rule 131 of the Rules of Court: Sec. 3. Disputable presumptions. – The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: xxxx (y) That things have happened according to the ordinary course of nature and the ordinary habits of life. The exhibits are certified photocopies of X-ray Request Forms dated December 12, 1996, January 30, 1997, March 16, 1996, and May 20, 1999, filed in connection with Editha’s medical case. The documents contain handwritten entries interpreting the results of the examination. These exhibits were actually attached as annexes to Dr. Pedro Lantin III’s counter affidavit filed with the Office of the City Prosecutor of Pasig City, which was investigating the criminal complaint for negligence filed by Editha against the doctors of Rizal Medical Center (RMC) who handled her surgical procedure. To lay the predicate for her case, Editha offered the exhibits in evidence to prove that her "kidneys were both in their proper anatomical locations at the time" of her operation. The fact sought to be established by the admission of Editha’s exhibits, that her "kidneys were both in their proper anatomical locations at the time" of her operation, need not be proved as it is covered by mandatory judicial notice.11 Unquestionably, the rules of evidence are merely the means for ascertaining the truth respecting a matter of fact.12Thus, they likewise provide for some facts which are established and need not be proved, such as those covered by judicial notice, both mandatory and discretionary.13 Laws of nature involving the physical sciences, specifically biology,14 include the structural make-up and composition of living things such as human beings. In this case, we may take judicial notice that Editha’s kidneys before, and at the time of, her operation, as with most human beings, were in their proper anatomical locations. Third, contrary to the assertion of petitioner, the best evidence rule is inapplicable. Section 3 of Rule 130 provides: 1awphil

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

The subject of inquiry in this case is whether respondent doctors before the BOM are liable for gross negligence in removing the right functioning kidney of Editha instead of the left non-functioning kidney, not the proper anatomical locations of Editha’s kidneys. As previously discussed, the proper anatomical locations of Editha’s kidneys at the time of her operation at the RMC may be established not only through the exhibits offered in evidence. Finally, these exhibits do not constitute hearsay evidence of the anatomical locations of Editha’s kidneys. To further drive home the point, the anatomical positions, whether left or right, of Editha’s kidneys, and the removal of one or both, may still be established through a belated ultrasound or x-ray of her abdominal area. In fact, the introduction of secondary evidence, such as copies of the exhibits, is allowed. 15 Witness Dr. Nancy Aquino testified that the Records Office of RMC no longer had the originals of the exhibits "because [it] transferred from the previous building, x x x to the new building."16 Ultimately, since the originals cannot be produced, the BOM properly admitted Editha’s formal offer of evidence and, thereafter, the BOM shall determine the probative value thereof when it decides the case. WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 87755 is AFFIRMED. Costs against petitioner. SO ORDERED. ANTONIO EDUARDO B. NACHURA Associate Justice Acting Chairperson WE CONCUR: DIOSDADO M. PERALTA Associate Justice MARIANO C. DEL CASTILLO* Associate Justice

MARTIN S. VILLARAMA, JR.** Associate Justice

JOSE CATRAL MENDOZA Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division. ANTONIO EDUARDO B. NACHURA Associate Justice Acting Chairperson, Second Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Acting Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division. RENATO C. CORONA Chief Justice

G.R. No. 156037

May 28, 2007

MERCURY DRUG CORPORATION, Petitioner, vs. SEBASTIAN M. BAKING, Respondent. DECISION SANDOVAL-GUTIERREZ, J.: For our resolution is the instant Petition for Review on Certiorari1 assailing the Decision2 dated May 30, 2002 and Resolution dated November 5, 2002 of the Court of Appeals in CA-G.R. CV No. 57435, entitled "Sebastian M. Baking, plaintiff-appellee, versus Mercury Drug Co. Inc., defendant-appellant." The facts are: On November 25, 1993, Sebastian M. Baking, respondent, went to the clinic of Dr. Cesar Sy for a medical check-up. On the following day, after undergoing an ECG, blood, and hematology examinations and urinalysis, Dr. Sy found that respondent’s blood sugar and triglyceride were above normal levels. Dr. Sy then gave respondent two medical prescriptions – Diamicron for his blood sugar and Benalize tablets for his triglyceride. Respondent then proceeded to petitioner Mercury Drug Corporation (Alabang Branch) to buy the prescribed medicines. However, the saleslady misread the prescription for Diamicron as a prescription for Dormicum. Thus, what was sold to respondent was Dormicum, a potent sleeping tablet. Unaware that what was given to him was the wrong medicine, respondent took one pill of Dormicum on three consecutive days –November 6, 1993 at 9:00 p.m., November 7 at 6:00 a.m., and November 8 at 7:30 a.m. On November 8 or on the third day he took the medicine, respondent figured in a vehicular accident. The car he was driving collided with the car of one Josie Peralta. Respondent fell asleep while driving. He could not remember anything about the collision nor felt its impact. Suspecting that the tablet he took may have a bearing on his physical and mental state at the time of the collision, respondent returned to Dr. Sy’s clinic. Upon being shown the medicine, Dr. Sy was shocked to find that what was sold to respondent was Dormicum, instead of the prescribed Diamicron. Thus, on April 14, 1994, respondent filed with the Regional Trial Court (RTC), Branch 80 of Quezon City a complaint for damages against petitioner, docketed as Civil Case No. Q-94-20193. After hearing, the trial court rendered its Decision dated March 18, 1997 in favor of respondent, thus: WHEREFORE, premises considered, by preponderance of evidence, the Court hereby renders judgment in favor of the plaintiff and against the defendant ordering the latter to pay mitigated damages as follows: 1. P250,000.00 as moral damages; 2. P20,000.00 as attorney’s fees and litigation expenses; 3. plus ½% of the cost of the suit. SO ORDERED. On appeal, the Court of Appeals, in its Decision, affirmed in toto the RTC judgment. Petitioner filed a motion for reconsideration but it was denied in a Resolution dated November 5, 2002.

Hence, this petition. Petitioner contends that the Decision of the Court of Appeals is not in accord with law or prevailing jurisprudence. Respondent, on the other hand, maintains that the petition lacks merit and, therefore, should be denied. The issues for our resolution are: 1. Whether petitioner was negligent, and if so, whether such negligence was the proximate cause of respondent’s accident; and 2. Whether the award of moral damages, attorney’s fees, litigation expenses, and cost of the suit is justified. Article 2176 of the New Civil Code provides: Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. 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. To sustain a claim based on the above provision, the following requisites must concur: (a) damage suffered by the plaintiff; (b) fault or negligence of the defendant; and, (c) connection of cause and effect between the fault or negligence of the defendant and the damage incurred by the plaintiff.3 There is no dispute that respondent suffered damages. It is generally recognized that the drugstore business is imbued with public interest. The health and safety of the people will be put into jeopardy if drugstore employees will not exercise the highest degree of care and diligence in selling medicines. Inasmuch as the matter of negligence is a question of fact, we defer to the findings of the trial court affirmed by the Court of Appeals. Obviously, petitioner’s employee was grossly negligent in selling to respondent Dormicum, instead of the prescribed Diamicron. Considering that a fatal mistake could be a matter of life and death for a buying patient, the said employee should have been very cautious in dispensing medicines. She should have verified whether the medicine she gave respondent was indeed the one prescribed by his physician. The care required must be commensurate with the danger involved, and the skill employed must correspond with the superior knowledge of the business which the law demands.4 1aw phi1.nét

Petitioner contends that the proximate cause of the accident was respondent’s negligence in driving his car. We disagree. Proximate cause is defined as any cause that produces injury in a natural and continuous sequence, unbroken by any efficient intervening cause, such that the result would not have occurred otherwise. Proximate cause is determined from the facts of each case, upon a combined consideration of logic, common sense, policy, and precedent.5 Here, the vehicular accident could not have occurred had petitioner’s employee been careful in reading Dr. Sy’s prescription. Without the potent effects of Dormicum, a sleeping tablet, it was unlikely that respondent would fall asleep while driving his car, resulting in a collision. Complementing Article 2176 is Article 2180 of the same Code which states:

ART. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible. xxx 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. xxx The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed the diligence of a good father of a family to prevent damage. It is thus clear that the employer of a negligent employee is liable for the damages caused by the latter. When an injury is caused by the negligence of an employee, there instantly arises a presumption of the law that there has been negligence on the part of the employer, either in the selection of his employee or in the supervision over him, after such selection. The presumption, however, may be rebutted by a clear showing on the part of the employer that he has exercised the care and diligence of a good father of a family in the selection and supervision of his employee.6 Here, petitioner's failure to prove that it exercised the due diligence of a good father of a family in the selection and supervision of its employee will make it solidarily liable for damages caused by the latter. As regards the award of moral damages, we hold the same to be in order. Moral damages may be awarded whenever the defendant’s wrongful act or omission is the proximate cause of the plaintiff’s physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury in the cases specified or analogous to those provided in Article 2219 of the Civil Code.7 Respondent has adequately established the factual basis for the award of moral damages when he testified that he suffered mental anguish and anxiety as a result of the accident caused by the negligence of petitioner’s employee. There is no hard-and-fast rule in determining what would be a fair and reasonable amount of moral damages, since each case must be governed by its own peculiar facts. However, it must be commensurate to the loss or injury suffered.8 Taking into consideration the attending circumstances here, we are convinced that the amount awarded by the trial court is exorbitant. Thus, we reduce the amount of moral damages from P250,000.00 to P50,000.00 only. In addition, we also deem it necessary to award exemplary damages. Article 2229 allows the grant of exemplary damages by way of example or correction for the public good. As mentioned earlier, the drugstore business is affected with public interest. Petitioner should have exerted utmost diligence in the selection and supervision of its employees. On the part of the employee concerned, she should have been extremely cautious in dispensing pharmaceutical products. Due to the sensitive nature of its business, petitioner must at all times maintain a high level of meticulousness. Therefore, an award of exemplary damages in the amount of P25,000.00 is in order. 1aw phi 1.nét

On the matter of attorney’s fees and expenses of litigation, it is settled that the reasons or grounds for the award thereof must be set forth in the decision of the court.9 Since the trial court’s decision did not give the basis of the award, the same must be deleted. In Vibram Manufacturing Corporation v. Manila Electric Company,10 we held:

Likewise, the award for attorney’s fees and litigation expenses should be deleted. Well-enshrined is that "an award for attorney’s fees must be stated in the text of the court’s decision and not in the dispositive portion only"(Consolidated Bank and Trust Corporation (Solidbank) v. Court of Appeals, 246 SCRA 193 [1995] and Keng Hua Paper Products, Inc. v. Court of Appeals, 286 SCRA 257 [1998]). This is also true with the litigation expenses where the body of the decision discussed nothing for its basis. WHEREFORE, we DENY the petition. The challenged Decision and Resolution of the Court of Appeals in CAG.R. CV No. 57435 are AFFIRMED with modification in the sense that (a) the award of moral damages to respondent is reduced from P250,000.00 to P50,000.00; (b) petitioner is likewise ordered to pay said respondent exemplary damages in the amount of P25,000.00; and (c) the award of attorney’s fees and litigation expenses is deleted. Costs against petitioner. SO ORDERED. ANGELINA SANDOVAL-GUTIERREZ Associate Justice WE CONCUR: REYNATO S. PUNO Chief Justice Chairperson (on leave) RENATO C. CORONA Associate Justice

ADOLFO S. AZCUNA Asscociate Justice CANCIO C. GARCIA Associate Justice CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division. REYNATO S. PUNO Chief Justice G.R. No. 142049

January 30, 2001

GERMAN MARINE AGENCIES, INC. and LUBECA MARINE MANAGEMENT HK LTD., petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION and FROILAN S. DE LARA, respondents. GONZAGA-REYES, J.: On 17 October 1994, private respondent was hired by petitioners to work as a radio officer on board its vessel, the M/V T.A. VOYAGER. Sometime in June, 1995, while the vessel was docked at the port of New Zealand, private respondent was taken ill. His worsening health condition was brought by his crewmates to the attention of the master of the vessel. However, instead of disembarking private respondent so that he may receive immediate medical attention at a hospital in New Zealand, the master of he vessel proceeded to Manila, a

voyage of ten days, during which time the health of private respondent rapidly deteriorated. Upon arrival in Manila, private respondent was not immediately disembarked but was made to wait for several hours until a vacant slot in the Manila pier was available for the vessel to dock. Private respondent was confined in the Manila Doctors Hospital, wherein he was treated by a team of medical specialists from 24 June 1995 to 26 July 1995. 1âw phi1.nêt

After private respondent was discharged from the hospital, he demanded from petitioners the payment of his disability benefits and the unpaid balance of his sickness wages, pursuant to the Standard Employment Contract of the parties. Having been assured by petitioners that all his benefits would be paid in time, private respondent waited for almost a year, to no avail. Eventually, petitioners told private respondent that, aside from the sickness wages that he had already received, no other compensation or benefit was forthcoming. 1 Private respondent filed a complaint with the National Labor Relations Commission (NLRC) for payment of disability benefits and the balance of his sickness wages. On 31 July 1997, the labor arbiter rendered a decision, 2 the pertinent parts of which are quoted hereunder – In the case at bar, there is no issue on the propriety or illegality of complainant's discharge or release from employment as Radio Operator. What complainant is pursuing is limited to compensation benefits due a seaman pursuant to POEA Standard Employment Contract, Part II, Section C, paragraph 4(c) and paragraph 5, which reads: "SECTION C. COMPENSATION BENEFIT xxx

xxx

xxx

"4. The liabilities of the employer when the seaman suffers injury or illness during the term of his contract are as follows: xxx

xxx

xxx

c. The employer shall pay the seaman his basic wages from the time he leaves the vessel for medical treatment. After discharge from the vessel, the seaman is entitled to one hundred percent (100%) of his basic wages until he is declared fit to work or the degree of permanent disability has been assessed by the company-designated physician, but is [sic] no case shall this period exceed one hundred twenty (120) days. For this purpose, the seaman shall submit himself to a post-employment medical examination by the company-designated physician within three working days upon his return, except when he is physically incapacitated to do so, in which case the written notice to the agency within the same period is deemed as compliance x x x. "5. In case of permanent total or partial disability of the seamen [sic] [during] the term of employment caused by either injury or illness, the seamen [sic] shall be compensated in accordance with the schedule of benefits enumerated in Appendix 1 of this Contract. Computation of his benefits arising from an illness or disease shall be governed by the rates and the rules of compensation applicable at the time of [sic] the illness or disease was contracted." The aforecited provisions of the POEA Standards [sic] Employment Contract is clear and unmistakable that its literal meaning should be preserved. Thus, the only question at which the liability of respondents is anchored is whether complainant was really fit to work in his position as radio operator. If this is so, it could mean that he is not entitled to disability compensation which respondents vigorously disputed, citing in support the certification made by Dra. Victoria Forendo [sic] Cayabyab, allegedly "the officially accredited and designated physician of respondents, which is likewise, accredited with the Philippine Overseas Employment Administration" where it is stated that "Nothing [sic] his job description as a radio operator, Mr. De Lara may be

allowed to go back to work." (Annex D & E). Complainant on the other hand disputes respondent's above posture contending that the more persuasive and authentic evidence for purposes of deciding his fitness or lack of fitness to work is the certificate issued by Ms. Naneth [sic] Domingo-Reyes, MD, FPMA where it appears that after submitting himself to another medical examination by his attending physicians at the Manila Doctors Hospital on December 4, 1996, to verify possible mistake in his post treatment examination on March 25, 1996, firmly "was classified under partial permanent disability and is not fit to go back to his previous work due to mental state." (Annex "C", complainant's reply to respondent's position paper). We have gone into a judicious study and analysis of the arguments and exhibits particularly the ones relied upon by the parties and find that of the complainant worthy of consideration. Looking closely at Annexes "D" and "E" of respondents' position paper, there is hardly any clear affirmation that complainant was fully fit to resume his work as radio operator. Although the document alluded to, declares that complainant may be allowed to go back to work, the tenor of the same seems uncertain that complainant is fit to resume his work, and that assuming that such was the message, the words "may be" can not be taken as overriding that coming from the Manila Doctor Hospital which in the beginning handled the medical case of complainant and to which respondents unconditionally referred him and by reason of which six or seven medical especialists [sic] of the hospital took turn [s] studying and reviewing his uncertain ailment after release by respondents. Otherwise stated, unlike the message of annexes D to E of respondents, annex "C" of complainant is clear and unmistakable and confirm complainant's partial permanent disability and his definite unfitness to go back to his previous work due to his mental health. Some pronouncements in this exhibit mentions also that when complainant was admitted an emerging basis for drowsiness, behavioral change and off and on fever" and different procedures were resorted along his case, like emergency CT scan on the brain and his admission in June 24, 1995 was catastropic, whereas, more could be said in three document[s] issued by Dra. Victoria Florendo Cayabyab. Finally, respondents contend that the annexes issued by Dr. Domingo-Reyes of the Manila Doctors Hospital should not be given weight because it is not issued by the hospital or doctor duly accredited by the POEA. Neither would a close look on the applicable provision for seamen show – that a duly accredited hospital or doctor is needed for purposes of the grant of compensation benefits to a such [sic] or ailing seamen. We are more persuaded based on the arguments of the complainant among others, that it is absurd to require an ailing seaman in high seas or in a foreign land to still wait until the ship where he is working land in the country to secure treatment in a duly accredited hospital or doctor. On the basis of the above therefore, and convinced that complainant's "partial permanent disability" which was contracted in the course or on account of his employment as radio operator in foreign principal's vessel, he is entitled to disability benefit in accordance with the schedule of benefits enumerated in Appendix 1 of the Contract, the maximum of which is US $50,000. But since the amount prayed for is US$25,000.00 which were presume has a more realistic basis, the same is hereby granted. Concerning the sickness wage, respondents averred that the same had already been paid. However, there is no evidence that the same has been paid except the payment to the complainant of P49,546.00. Since complainant's salary as US$870 and a seaman's sick wage entitlement is fixed to a maximum of 120 days, his "sickness wages would rest to a total sum of US$3,480 or its peso equivalent. On this, complainant has been paid only [P]49,546.00 (US$1,943), thereby leaving for complainant a balance of US$1,537. Finally, it is also argued that as regards the balance, the same has been paid citing as proof the Sickness Release and Quitclaim signed by complainant (Annexes "C" & "C-1"). Complainant, on the other hand denied this, and contended that the quitclaim and release is invalid. Considering that there is no proof on record that this balance of US$1,537 was paid, unlike the P49,546.00, the same is granted. WHEREFORE, premises above-considered, a decision is hereby issued ordering respondent German Marine Agencies Inc. to pay complainant the following sums: (a) Disability benefit - - - - - - - - - - - - - - - - - US$25,000.00

(b) Sickness wage balance - - - - - - - - - - - - - - - - - US $1,137.00 all in the aggregate of Twenty Six Thousand One Hundred Thirty Seven Dollars (US$26,137.00) or its peso equivalent, the claim for damages being hereby dismissed for lack of merit, plus ten (10%) percent attorney's fees. SO ORDERED. On 29 July 1998, the NLRC3 affirmed the labor arbiter's decision in toto and declared that the latter's findings and conclusions were supported by substantial evidence.4 After its motion for reconsideration was denied by the NLRC on 20 May 1999, petitioners repaired to the Court of Appeals.5 The appellate court's assailed decision was promulgated on 1 December 1999, upholding the decision of the NLRC, with the modification that petitioners were ordered to pay private respondent exemplary damages in the amount of P50,000.00. The appellate court reasoned out its decision,6 thus – The basic issue here is: Whether or not petitioner is liable to pay private respondent's claim as awarded by the NLRC, and whether or not there was abuse of discretion on the part of the NLRC in affirming such decision on appeal? To resolve this issue, this Court took time in looking closely at the pertinent provision of the Standard Employment Contract Governing the Employment of Filipino Seafarers on Board Ocean-Going Vessels, particularly PART II, SECTION C, par. no. 4 (c), and par. no. 5, which states as follows: "SECTION C. COMPENSATION BENEFIT "4. The liabilities of the employer when the seaman suffers injury or illness during the term of his contract are as follows: "xxx

xxx

xxx

c. The employer shall pay the seaman his basic wages from the time he leaves the vessel for medical treatment. After discharge from the vessel, the seaman is entitled to one hundred percent (100%) of his basic wages until he is declared fit to work or his degree of permanent disability has been assessed by the company-designated physician, but in no case shall this period exceed one hundred twenty (120) days. x x x x. "5. In case of permanent total or partial disability of the seamen during the term of his employment caused by either injury or illness the seamen shall be compensated in accordance with the schedule of benefits enumerated in Appendix 1 of his Contract. Computation of his benefits arising from an illness or disease shall be governed by the rates and the rules of compensation applicable at the time the illness or disease was contracted. xxx

xxx

xxx. . ."

A cursory reading of these applicable contractual provisions and a thorough evaluation of the supporting evidence presented by both parties, lends strong credence to the contentions and arguments presented by private respondent. The award of disability compensation has a clear and valid basis in the Standard Employment Contract and the facts as supported by the medical certificate issued by Dr. Nannette Domingo-Reyes of the Manila Doctors Hospital. Petitioners' contention, that dr. Domingo-Reyes is not company designated is far from the truth. The designation of the Manila Doctors Hospital by petitioners as the company doctor for private respondent cannot be denied. Their very act of committing private respondent for treatment at the Manila Doctors Hospital under the care of its physician is tantamount to company designation. The very act of paying the hospital bills by the petitioners constitutes their confirmation of such

designation. Hence, petitioners cannot resort to the convenience of denying this fact just to evade their obligation to pay private respondent of his claims for disability benefit. This Court also finds no basis on (sic) the petitioners' contention that the company-designated [physician] must also be accredited with the POEA before he can engaged in the medical treatment of a sick seaman. There is nothing in the Standard Employment Contract that provides this accreditation requirement, and even if there is, this would be absurd and contrary to public policy as its effect will deny and deprive the ailing seaman of his basic right to seek immediate medical attention from any competent physician. The lack of POEA accreditation of a physician who actually treated the ailing seaman does not render the findings of such physician (declaring the seaman permanently disabled) less authoritative or credible. To our mind, it is the competence of the attending physician, not the POEA accreditation, that determines the true health status of the patient-seaman, which in this instant case, is [sic] the attending physicians from the Manila Doctors Hospital. As to the award of the balance of wages, this Court is inclined not to disturb the factual findings of the NLRC. The failure of the petitioners to present a strong and credible evidence supporting the fact of alleged payment of the balance of sickness justified the award of such claim. The long standing doctrine in labor cases that "in case of doubt, the doubt is resolved in favor of labor" applies. For there are indications that the evidence presented by petitioners appears to be of dubious origin as private respondent challenged the petitioners to present the original copy of the quitclaim and the vouchers in a motion demanding from petitioners to produce the original copy of those documents purporting to show that he had received the alleged sum of P39,803.30, which allegedly shows the payment of the balance of his sickness wages. This motion was vehemently opposed by petitioners. To our mind, such opposition only created more doubts and eroded the veracity and credence of petitioners' documentary evidence. As to the award of attorney's fees, the same is justified by the fact that private respondent actually hired the services of a lawyer to vindicate his right to claim for his disability benefit which is being arbitrarily denied to him by petitioners. Had it not been for the arbitrary denial of petitioners, private respondent could not have been compelled to hire the services of a lawyer to pursue his claims in court, for which he is presumed to have incurred costs. With respect to private respondent's claim for damages, this Court finds that the NLRC overlooked the attendance of negligence on the part of petitioners in their failure to provide immediate medical attention to private respondent. It further appears that negligence not only exists but was deliberately perpetrated by petitioners by its arbitrary refusal to commit the ailing private respondent to a hospital in New Zealand or at any nearest port deprived of his right to immediate medical attention by petitioners, which resulted to the serious deterioration of his health that caused his permanent partial disability. Such deprivation of immediate medical attention appears deliberate by the clear manifestation from petitioners' own words which states that,"the proposition of the complainant that respondents should have taken the complainant to the nearest port of New Zealand is easier said than done. It is worthy to note that deviation from the route of the vessel will definitely result to loss of a fortune in dollars not only to the respondents but likewise to the owners of the cargoes being shipped by the said vessel." By petitioners' own statement, they reveal their utter lack of concern for their Filipino crew. This kind of attitude cannot be taken to pass by this Court without appropriate sanction by way of payment of exemplary damages, if only to show that the life of a Filipino crew must be accorded due attention and respect by the petitioners. For after all, had it not been for the toils of this crew, among others, petitioners would not be doing as good in their business and making "fortunes in dollars." In affirming the decision of the Labor Arbiter, this Court finds that the NLRC never abused its discretion nor exceeded its jurisdiction. Hence, this Court finds no valid basis to disturb the findings of the NLRC.

WHEREFORE, the decision of the NLRC dated 29 July 1998, and the Order dated 20 May 1999, are hereby AFFIRMED, and in addition thereto, petitioners are ordered to pay exemplary damages to private respondent in the sum of Fifty Thousand Pesos (P50,000.00). SO ORDERED. Petitioners' motion for reconsideration was denied by the Court of Appeals in its Resolution of 11 February 2000. Hence, the present appeal. Disability Benefits Petitioners contend that the existence and degree of a seaman's disability must be declared by a "companydesignated physician" who must be accredited with the POEA. Following this line of reasoning, petitioners claim that private respondent is not entitled to disability benefits because he was found fit to return to work by Dr. Victoria Florendo Cayabyab, the designated physician of petitioners, who is also accredited with the POEA. 7 Disagreeing with petitioners' stand, the labor arbiter ruled that, for purposes of determining compensation benefits under the Standard Employment Contract, an ailing seaman need not have his condition assessed by a doctor or hospital accredited with the POEA. Consequently, the labor arbiter gave more weight to the opinion of the specialists from the Manila Doctors Hospital who treated private respondent and declared him as having sustained a partial permanent disability and unfit to go back to his previous work. 8 Meanwhile, the Court of Appeals held that petitioners' act of committing private respondent for treatment at the Manila Doctors Hospital and of paying his hospital bills therein is tantamount to "company-designation," and therefore, the certificate issued by Dr. Nanette Domingo-Reyes of the Manila Doctors Hospital describing private respondent as suffering from a partial permanent disability should be construed as decisive in the matter of private respondent's entitlement to disability benefits. The appellate court also declared that nothing in the Standard Employment Contract requires the company-designated physician or hospital to also be accredited with the POEA.9 In the case at bar, the parties are at odds as to the proper interpretation of the POEA Standard Employment Contract Government the Employment of All Filipino Seamen On Board Ocean-Going Vessels (Standard Employment Contract), particularly Part II, Section C thereof, which provides that – xxx

xxx

xxx

4. The liabilities of the employer when the seaman suffers injury or illness during the term of his contract are as follows: a. The employer shall continue to pay the seaman his basic wages during the time he is on board the vessel; b. If the injury or illness requires medical and/or dental treatment in a foreign port, the employer shall be liable for the full cost of such medical, dental, surgical and hospital treatment as well as board and lodging until the seaman is declared fit to work or to be repatriated. However, if after repatriation the seaman still requires medical attention arising from said injury or illness, he shall be so provided at cost to the employer until such time he is declared fit or the degree of his disability has been established by the company-designated physician. c. The employer shall pay the seaman his basic wages from the time he leaves the vessel for medical treatment. After discharge from the vessel the seaman is entitled to one hundred percent (100%) of his basic wages until he is declared fit to work or the degree of permanent disability has been assessed by the company-designated physician, but in no case shall this period exceed one hundred twenty (120) days. For this purpose, the seaman shall submit

himself to a post-employment medical examination by the company-designated physician within three working days upon his return except when he is physically incapacitated to do so, in which case a written notice to the agency within the same period is deemed as compliance. Failure of the seaman to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the above benefits. xxx

xxx

xxx

5. In case of permanent total or partial disability of the seaman during the term of employment caused by either injury or illness the seaman shall be compensated in accordance with the schedule of benefits enumerated in Appendix 1 of his Contract. Computation of his benefits arising from an illness or disease shall be governed by the rates and the rules of compensation applicable at the time the illness or disease was contracted. xxx

xxx

xxx

Petitioners' contention that the existence and grade of a seaman's disability must be pronounced by a physician accredited by the POEA does not find any support in the abovecited provision, nor in any other portion of the Standard Employment Contract. In order to claim disability benefits under the Standard Employment Contract, it is the "company-designated" physician who must proclaim that the seaman suffered a permanent disability, whether total or partial, due to either injury or illness, during the term of the latter's employment. There is no provision requiring accreditation by the POEA of such physician. In fact, aside from their own gratuitous allegations, petitioners are unable to cite a single provision in the said contract in support of their assertions or to offer any credible evidence to substantiate their claim. If accreditation of the companydesignated physician was contemplated by the POEA, it would have expressly provided for such a qualification, by specifically using the term "accreditation" in the Standard Employment Contract, to denote its intention. For instance, under the Labor Code it is expressly provided that physicians and hospitals providing medical care to an injured or sick employee covered by the Social Security System or Government Service Insurance System must be accredited by the Employees Compensation Commission.10 It is a cardinal rule in the interpretation of contracts that if the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulation shall control.11 There I no ambiguity in the wording of the Standard Employment Contract – the only qualification prescribed for the physician entrusted with the task of assessing the seaman's disability is that he be "company-designated." When the language of the contract is explicit, as in the case at bar, leaving no doubt as to the intention of the drafters thereof, the courts may not read into it any other intention that would contradict its plain import.12 The word "designate" means to specify, to mark out and make known, to identify by name, to indicate, to show, to distinguish by mark or description, or to set apart for a purpose or duty.13 The Court agrees with the appellate court's ruling that petitioners' act of committing private respondent for treatment at the Manila Doctors Hospital and paying the hospital bills therein is tantamount to "company-designation." By such unequivocal acts, petitioners clearly set apart and distinguished the Manila Doctors Hospital, together with its team of specialists, as the ones qualified to assess the existence and degree of private respondent's disability and thereby resolve the question of the latter's entitlement to disability benefits under the Standard Employment Contract. In addition to their having been effectively designated by petitioners, it was the physicians from the Manila Doctors Hospital who examined and treated private respondent for a little more than one month, subjecting the latter to a series of medical procedures, such as medical therapy, neurological surgical drainage for brain abscess, bilateral thalamic area S/P craniotomy (Burr Hole), and opthalmological (orbit) surgery for socket revision and reconstruction of his left eye. The extensive medical attention given to private respondent enabled the Manila Doctors Hospital specialists to acquire a detailed knowledge and familiarity with private respondent's medical condition.14 No doubt such specialized knowledge enabled these physicians to arrive at a much more accurate appraisal of private respondent's condition, including the degree of any disability which he might have sustained, as compared to another physician not privy to private respondent's case from the very beginning. Thus, the appellate court was not mistaken in giving more weight to the certificate issued by Dr. Nanette Domingo-Reyes of the Manila Doctors Hospital dated December 4, 1996, than to the one issued by Dr. Victoria Florendo Cayabyab.

On the strength of Dr. Domingo-Reyes's medical certificate which stated that private respondent "can be classified under partial permanent disability and is not fit to go back to his previous work due to his mental state," the labor arbiter awarded $25,000.00 as disability benefits, which award was upheld by the NLRC and the appellate court. Petitioners insist that there is no factual basis for the award of $25,000.00 since there is no finding as to the grade of permanent partial disability sustained by private respondent, in accordance with Appendix 1 of the Standard Employment Contract (Schedule of Disability or Impediment For Injuries Suffered and Diseases or Illness Contracted), and therefore, no means of determining the exact amount of compensation to which private respondent may be entitled.15 The Court does not agree with petitioners' position. Under the Standard Employment Contract the grade of disability suffered by the seaman must be ascertained in accordance with Appendix 1 of such contract, which is partially reproduced herein – Appendix 1 SCHEDULE OF DISABILITY OR IMPEDIMENT FOR INJURIES SUFFERED AND OR ILLNESS CONTRACTED HEAD Traumatic head injuries that result to:

1.

Apperture unfilled with bone not over three (3) inches without brain injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Gr. 9

2.

Apperture unfilled with bone over three (3) inches without brain injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... Gr. 3

3.

Severe paralysis of both upper or lower extremities or one upper and one lower extremity . . . . . . . . . . . . . . . . . . . . . . . . . ..........

Gr. 1

Moderate paralysis of two (2) extremities producing moderate difficulty in movements with self care activities . . . . . . . . . . .

Gr. 6

Slight paralysis affecting one extremity producing slight difficulty with self-care activities . . . . . . . . . . . . . . . . . . . . . . . . ........

Gr. 10

Severe mental disorder or Severe Complex Cerebral function disturbance or post – traumatic psychoneurosis which require regular aid and attendance as to render worker permanently unable to perform any work . . . . . . . . . . . . . . . . . . . . . . . . . .

Gr. 1

4. 5.

6.

7.

Moderate mental disorder or moderate brain functional disturbance which limits worker to the activities of daily living with some directed care or attendance . . . . . . . . . . . . . . . . . . . Gr. 6

8.

Slight mental disorder or disturbance that requires little attendance or aid and which interferes to a slight degree with the working capacity of the claimant . . . . . . . . . . . . . . . . . . . .

Gr. 10

Incurable imbecility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Gr. 1

9.

Each grade under Appendix 1 has an equivalent disability allowance or benefit expressed in terms of a percentage of the maximum amount of $50,000.00. This is specified in Appendix 1-A of the Standard Employment Contract –

APPENDIX 1-A SCHEDULE OF DISABILITY ALLOWANCES

Impediment Grace

Impediment

1 Maximum Rate

x

120.00%

2"

x

88.81%

3"

x

78.36%

4"

x

68.66%

5"

x

58.96%

6"

x

50.00%

7"

x

41.80%

8"

x

33.59%

9"

x

26.12%

10 "

x

20.15%

11 "

x

14.93%

12 "

x

10.45%

13 "

x

6.72%

14 "

x

3.74%

Maximum Rate: US$50,000. To be paid in Philippine Currency equivalent at the exchange rate prevailing during the time of payment. Private respondent asked petitioner for disability benefits in the amount of $25,000.00, or fifty percent (50%) of the maximum rate of $50,000.00, which, under Appendix 1-A, is awarded when the seaman sustains a grade 6 disability. One of the grade 6 head injuries listed in Appendix 1, specifically number seven (7), is described as a "moderate mental disorder or moderate brain functional disturbance which limits worker to the activities of daily living with some directed care or attendance." This coincides with Dr. Domingo-Reyes' diagnosis of private respondent's condition, as follows – xxx

xxx

xxx

Work-ups and Management: Patient was admitted on an emergency bases for drowsiness, behavioral change and on and off fever. This started with headaches since the first week of June 1995 while on duty (on voyage). Patient progressively deteriorated and arrived here already dehydrated with high grade fever. (emphasis supplied)

Emergency CT Scan of the brain revealed rounded masses in both thalamus on the brain; the larger mass was situated at the right. Burr hole at the right parietal and drainage of the right thalamic abscess was done on June 26, 1995. Repair of shallow fornix of left eye and biopsy was done for culture studies thereafter. Mr. De Lara stayed in the hospital for 33 days and was still in bedridden state when discharge. He became ambulant on mid-August 1996 but his cerebral functions (cognitive and behavioral) remain impaired. This is his 18th month of illness. His admission last June 24, 1995 is considered catastrophic. He now can be classified under partial permanent disability and is not fit to go back to his previous work due to his mental state.16 (emphasis supplied) xxx

xxx

xxx

Thus, the medical certificate of Dr. Domingo-Reyes is more than sufficient basis for the award of disability benefits in the amount of $25,000.00 in favor of private respondent. Sickness wages Petitioners assert that the award of $1,137.00, representing the balance of the sickness wages owed to private respondent, is erroneous and in absolute disregard of their documentary evidence – particularly the three check vouchers in the total amount of P89,354.80, all issued in 1995 in favor of either private respondent or his wife, and the "Sickwages Release & Quitclaim" – which, according to petitioners, taken together would prove that they had paid private respondent the total amount of P89,354.80, or $3,480.00, corresponding to the 120 days sickness wages as required under the Standard Employment Contract. Contrary to petitioners' assertions, the labor arbiter held that only P49,546.00 ($1,943.00) was paid by petitioners and that private respondent is still entitled to the balance of the sickness wages in the amount of $1,537.00. According to the labor arbiter, petitioners failed to prove that they had paid this amount to private respondent, notwithstanding the document entitled "Sickness Release & Quitclaim" introduced by petitioners in evidence, which was not given credence.17 The NLRC and the Court of Appeals concurred with the labor arbiter on this issue. The appellate court held that the documentary evidence of petitioners was insufficient to support their contentions.18 The Supreme Court has always accorded respect and finality to the findings of fact of the NLRC, particularly if they coincide with those of the Labor Arbiter, when supported by substantial evidence. The reason for this is that a quasi-judicial agency like the NLRC has acquired a unique expertise because its jurisdiction is confined to specific matters.19 Whether or not petitioners actually paid the balance of the sickness wages to private respondent is a factual question. In the absence of proof that the labor arbiter or the NLRC had gravely abused their discretion, the Court shall deem conclusive and cannot be compelled to overturn this particular factual finding.20 Damages We affirm the appellate court's finding that petitioners are guilty of negligence in failing to provide immediate medical attention to private respondent. It has been sufficiently established that, while the M/V T.A. VOYAGER was docked at the port of New Zealand, private respondent was taken ill, causing him to lose his memory and rendering him incapable of performing his work as radio officer of the vessel. The crew immediately notified the master of the vessel of private respondent's worsening condition. However, instead of disembarking private respondent so that he may receive immediate medical attention at a hospital in New Zealand or at a nearby port, the master of the vessel proceeded with the voyage, in total disregard of the urgency of private respondent'' condition. Private respondent was kept on board without any medical attention whatsoever for the entire duration of the trip from New Zealand to the Philippines, a voyage of ten days. To make matters worse, when the vessel finally arrived in Manila, petitioners failed to directly disembark private respondent for

immediate hospitalization. Private respondent was made to suffer a wait of several more hours until a vacant slot was available at the pier for the vessel to dock. It was only upon the insistence of private respondent's relatives that petitioners were compelled to disembark private respondent and finally commit him to a hospital.21 There is no doubt that the failure of petitioners to provide private respondent with the necessary medical care caused the rapid deterioration and inevitable worsening of the latter's condition, which eventually resulted in his sustaining a permanent disability. 1âwphi1.nêt

In light of the foregoing, petitioners are liable for moral damages for the physical suffering and mental anguish caused to private respondent.22 There is no hard and fast rule in the determination of what would be a fair amount of moral damages, since each case must be governed by its own peculiar circumstances. 23 In the present case, the Court considers the amount of P50,000.00 in moral damages as proper.24 Meanwhile, exemplary damages are imposed by way of example or correction for the public good, pursuant to Article 2229 of the Civil Code. They are imposed not to enrich one party or impoverish another but to serve as a deterrent against or as a negative incentive to curb socially deleterious actions. While exemplary damages cannot be recovered as a matter of right, they need not be proved, although plaintiff must show that he is entitled to moral, temperate, or compensatory damages before the court may consider the question of whether or not exemplary damages should be awarded.25 In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence.26 Coming now to the case at bar, the appellate court found that – … negligence not only exists but was deliberately perpetrated by petitioners by its arbitrary refusal to commit the ailing private respondent to a hospital in New Zealand or at any nearest port … which resulted to the serious deterioration of his health that caused his permanent partial disability. Such deprivation of immediate medical attention appears deliberate by the clear manifestation from petitioners' own words which states that,"the proposition of the complainant that respondents should have taken the complainant to the nearest port of New Zealand is easier said than done. It is worthy to note that deviation from the route of the vessel will definitely result to loss of a fortune in dollars not only to the respondents [petitioners herein] but likewise to the owners of the cargoes being shipped by the said vessel." Petitioners never denied making this statement. Given the prevailing circumstances, the appellate court's award of P50,000.00 as exemplary damages is adequate, fair, and reasonable.27 Although the labor arbiter awarded attorney's fees, which award was subsequently affirmed by the NLRC and the Court of Appeals, the basis for the same was not discussed in his decision nor borne out by the records of this case, and should therefore be deleted. There must always be a factual basis for the award of attorney's fees.28 This is consistent with the policy that no premium should be placed on the right to litigate. 29 WHEREFORE, the 1 December 1999 Decision and 11 February 2000 Resolution of the Court of Appeals are AFFIRMED, with the modification that petitioners must also pay private respondent P50,000.00 as moral damages and the award of attorney's fees is deleted. SO ORDERED. Melo, Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.

Footnote G.R. No. L-34529 January 27, 1983 MAXIMO MARCIA, AMALIA MOJICA, TIRSO YAP, DAMIANA MARCIA, EDGAR MARCIA, and RENATO YAP,petitioners, vs. COURT OF APPEALS, FELARDO PAJE, and VICTORY LINER, INC., respondents.

Ricardo J. Francisco, for petitioners. Flors, Macapagal, Ocampo & Dizon for private respondents.

RELOVA, J.: Appeal by certiorari from the decision of the Court of Appeals affirming the judgment of the Court of First Instance of Rizal, which dismissed the complaint filed by tile petitioners against private respondents in the concept of an independent civil action for damages for physical injuries resulting from reckless imprudence. On December 23, 1956, in the municipality of Lubao, Pampanga, a passenger bus operated by private respondent Victory Liner, Inc. and driven by its employee. private respondent Felardo Paje, collided with a jeep driven by Clemente Marcia, resulting in the latter's death and in physical injuries to herein petitioners, Edgar Marcia and Renato Yap. Thereupon, an information for homicide and serious physical injuries thru reckless imprudence was filed against Felardo Paje in the Court of First Instance of Pampanga (Criminal Case No. 2745). On January 23, 1957, an action for damages (Civil Case No. 4425) was filed in the Court of First Instance of Rizal by Edgar Marcia and Renato Yap, together with their respective parents. against the Victory Liner, Inc. and Felardo Paje, alleging that, the mishap was due to the reckless imprudence and negligence of the latter in driving the passenger bus. While said Civil Case No. 4425 was in progress in the Court of First Instance of Rizal, the criminal action proceeded in the Court of First Instance of Pampanga (Criminal Case No. 2745). The accused Felardo Paje was convicted of the offense charged. However, on appeal to the Court of Appeals, he was acquitted in a decision promulgated on November 3, 1982, based on the findings, to wit: 1 That the Victory Liner bus left its post, kilometer post no. 156, in San Marcelino, Zambales, at about 2:00 AM 2 That on the highway at Lubao, Pampanga, between Posts Nos. 83 and 84, the appellant driver thereof, saw a cargo truck parked in the middle of the right lane of the road to Manila, without 3 That appellant slackened the speed of his truck from 60 km. p.h. to 35 or 40 km. p. h. in order to pass said truck; 4 That the appellant did not see the oncoming jeep until it swerved to the left. 5 That the jeep was still far so appellant attempted to pass the truck but before he could do so, the jeep came very fast at the center of the road and out of its lane. 6 That the passengers of the bus shouted at the appellant to bring the bus to the side so as to avoid a frontal collision with he jeep, and appellant brought his bus to the right shoulder of the road going to Bataan; 7 That the jeep driven by the deceased Clemente Marcia was running at a fast pace for which reason the driver lost control and veered sharply to the right shoulder of the road and crashed into the bus, parked thereat a few seconds before. 8 That appellant was not speeding, was diligent, and hence, not liable for the collision which at the least, was a fortuitous event for which no one was responsible.

and the conclusion that "CRIMINAL NEGLIGENCE is WANTING in this case, and that appellant was NOT even guilty of CIVIL NEGLIGENCE, Insofar as appellant was concerned, it was a case of PURE ACCIDENT." As a consequence, herein private respondents, defendants in Civil Case No. 4425 of the Court of First Instance of Rizal, moved for the dismissal of the complaint invoking the decision of the Court of Appeals acquitting Felardo Paje and citing Section I (d), Rule 107 of the Rules of Court now Section 3 (c), Rule I I I of the New Rules of Court), which reads: SECTION 1. Rules governing civil actions arising from offenses. — Except as otherwise provided by law, the following rules shall be observed: xxx xxx xxx (d) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. In the other cases, the persons entitled to the civil action may institute it in the jurisdiction and in the manner provided by law against the person who may be liable for restitution of the thing and reparation or indemnity for the damages suffered. The trial court denied the motion to dismiss and, thereafter, continued to hear defendants' (herein private respondents) evidence. The following were presented as defendants' evidence in chief: (a) the whole record of Criminal Case No. 2745 of the Court of First Instance of Pampanga in which defendant Felardo Paje was by reason of the occurrence prosecuted criminally and convicted of homicide with serious physical injuries thru reckless imprudence; (b) the decision of the Court of Appeals in CA-G.R. No. 01691 Cr, acquitting the accused; and (c) copy of the brief of the said defendant as accused-appellant in the said Court of Appeals case. On August 10, 1966, the Court of First Instance of Rizal rendered a decision dismissing plaintiffs' complaint against the defendants Victory Liner, Inc. and Felardo Paje, without pronouncement as to costs. Petitioners appealed the case to the (Court of Appeals CA-G.R. No. 38964-R) alleging that the acquittal of Paje in the criminal action for homicide and serious physical injuries thru reckless imprudence "is not a ground for dismissing the complaint in the instant civil action; that the instant civil action is entirely separate and distinct from the criminal action and shall proceed independently of the criminal prosecution, so that whatever may have been the result of the criminal action is irrelevant to this civil action; that Section 2 of Rule 111 of the Rules of Court and not Section 3, paragraph (c) of the said rule applies; that the statement in the decision of the Court of Appeals in the criminal action that defendant Paje as accused therein was not guilty of civil negligence is without the jurisdiction of the said Court to make and is to be completely disregarded as an extraneous, officious and void statement which cannot affect in any way the instant civil action; that the records of the criminal action against defendant Paje are inadmissible evidence; that it has been established in the case at bar, not only by preponderance of evidence but by uncontradicted, conclusive evidence that petitioners suffered damages as a proximate result of the negligence of respondent Paje and that it has been established, not only by preponderance of evidence but by uncontradicted, conclusive evidence, that the damages suffered by petitioners as a result of the negligence of private respondents is in the amount of P250,817.96, and that the latter should be sentenced, jointly and severally, to pay the same to petitioner. In the meantime, the heirs of Clemente Marcia who, as aforesaid, died as a result of the collision, instituted a separate civil action in the Court of First Instance of Rizal (Civil Case No. 6880) for damages based on the alleged reckless imprudence of bus driver Felardo Paje, praying that the driver and the Victory Liner, Inc. be ordered to pay jointly and severally the amount of damages claimed. The complaint of the heirs of Clemente Marcia was dismissed by the trial court. Appeal on questions of law was taken to this Court (Laura Corpus et al vs. Felardo Paje at al, 28 SCRA 1062) which, however, affirmed the order for the reason, among others, that

"(1) The acquittal of the defendant Felardo Paje by the Court of Appeals in the criminal action on the ground that the reckless imprudence or criminal negligence charged against him did not exist and that the collision was a case of pure accident, was a bar to the civil action for damages for the death of Clemente Marcia, which action was based upon the same criminal negligence of which the defendant Felardo Paje was acquitted in the criminal action." Following the ruling of this Court in the Corpus vs. Paje decision, respondent Court of Appeals held that the private respondents Cannot be held civilly liable after it had ruled in the criminal action that negligence was wanting and that the collision was a case of pure accident. Dissatisfied with the decision, petitioners have come to US alleging that the Court of Appeals erred: I. IN NOT HOLDING THAT PETITIONERS INSTANT CIVIL ACTION FOR DAMAGES AGAINST PRIVATE RESPONDENTS FOR PHYSICAL INJURIES RESULTING FROM NEGLIGENCE IS AN INDEPENDENT ONE, ENTIRELY SEPARATE AND DISTINCT FROM THE CRIMINAL ACTION, UNDER THE PROVISIONS OF ARTICLES 33, 2176 AND 2177 OF THE NEW (CIVIL CODE AND SECTION 2 OF RULE 111 OF THE RULES OF COURT. AND IN INSTEAD HOLDING THAT THE INSTANT ACTION IS NOT AMONG THE INDEPENDENT CIVIL ACTIONS AUTHORIZED BY THE SAID PROVISIONS. II. IN NOT HOLDING THAT THE ACQUITTAL OF RESPONDENT FELARDO PAJE, DRIVER OF RESPONDENT VICTORY LINER, INC., IN THE CRIMINAL ACTION BASED ON THE SAID PHYSICAL INJURIES AND NEGLIGENCE IS ENTIRELY IRRELEVANT TO THE INSTANT CIVIL ACTION FOR DAMAGES BY VIRTUE OF THE AFORECITED PROVISIONS OF THE NEW CIVIL CODE AND THE RULES OF COURT, AND IN INSTEAD HOLDING THAT THE SAID ACQUITTAL IS A BAR TO THE INSTANT CIVIL ACTION UNDER SECTION 3 (c) OF RULE I I I AND SECTION 49 (c) OF RULE 39 OF THE RULES OF COURT. III. IN NOT HOLDING THAT THE EVIDENCE ADDUCED BY PRIVATE RESPONDENTS IN THE INSTANT CIVIL ACTION FOR DAMAGES, CONSISTING OF THE RECORDS OF THE CRIMINAL ACTION IN THE TRIAL COURT, THE DECISION OF THE COURT OF APPEALS ACQUITTING RESPONDENT PAJE AND THE COPY OF THE BRIEF OF THE SAID RESPONDENT AS ACCUSED-APPELLANT, ARE INADMISSIBLE IN THE INSTANT CIVIL ACTION FOR DAMAGES. IV. IN NOT HOLDING THAT IT HAS BEEN ESTABLISHED IN THE CASE AT BAR, NOT ONLY BY PREPONDERANCE OF EVIDENCE BUT BY UNCONTRADICTED, CONCLUSIVE EVIDENCE, THAT PETITIONERS SUFFERED DAMAGES AS A PROXIMATE RESULT OF THE NEGLIGENCE OF RESPONDENT PAJE. V. IN NOT HOLDING THAT IT HAS BEEN ESTABLISHED, NOT ONLY BY PREPONDERANCE OF EVIDENCE BUT BY UNCONTRADICTED, CONCLUSIVE EVIDENCE, THAT THE DAMAGES SUFFERED BY PETITIONERS AS A RESULT OF THE NEGLIGENCE OF

DEFENDANTS IS IN THE AMOUNT OF P250,817.96, AND IN NOT SENTENCING PRIVATE RESPONDENTS JOINTLY AND SEVERALLY TO PAY THE SAME TO PETITIONERS. It is the stand of herein petitioners that Section 2, Rule 111 of the Rules of Court, not Section 3 (c) thereof, should apply in the case at bar. Sec. 2. Independent civil action. — In the cases provided for in Articles 31, 32, 33, 34 and 2177 of the Civil Code of the Philippines, an independent civil action entirely separate and distinct from the criminal action, may be brought by the injured party during the pendency of the criminal case, provided the right is reserved as required in the preceding section. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. We do not agree, Section 2 of Rule 111 merely refers to the institution of an independent civil action without waiting for the filing or termination of the criminal action and requires only preponderance of evidence to prosper and not proof beyond reasonable doubt as required for conviction in criminal cases. However, an acquittal based on the finding that the facts upon which civil liability did not exist, bars the filing of an independent civil action if it is based on the crime. As early as 1952, We have held in the case of Tan vs. Standard Vacuum Oil Company 91 Phil. 672, that "the acquittal of the accused from the criminal charge will not necessarily extinguish the civil liability unless the court declares in the judgment that the fact from which the civil liability might arise did not exist. Where the court states 'that the evidence throws no light on the cause of fire and that it was an unfortunate accident for which the accused cannot be held responsible,' this declaration fits well into the exception of the rule which exempts the accused, from civil liability. " Likewise, in Albornoz vs. Albornoz, 98 Phil. 785, it was the ruling that "where the judgment in a criminal action contains an express declaration that the basis of claimant's action did not exist, the latter's action for civil liability is barred under section 1 (d) Rule 107 of the Rules of Court." And, in De Mesa vs. Priela 24 SCRA 582, this Court, speaking through then Chief Justice Roberto Concepcion, ruled that extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. In other cases, the person entitled to the civil action may institute it in the jurisdiction and in the manner provided by law against the person who may be liable for restitution of the thing and reparation or indemnity for the damage suffered (Sec. 3 [c], Rule 111, Rules of Court.)" As held in Corpus vs. Paje, supra, reckless imprudence or criminal negligence is not one of the three crimes mentioned in Article 33 of the Civil Code, which provides: ART. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. The above article speaks only of defamation, fraud and physical injuries. The injuries suffered by herein petitioners were alleged to be the result of criminal negligence; they were not inflicted with malice. Hence, no independent civil action for damages may be instituted in connection therewith. Further, Section 3 (c), Rule 111 of the Rules of Court states that "(c) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist." Otherwise stated, unless the act from which the civil liability arises is declared to be nonexistent in the final judgment, the extinction of the criminal liability will not carry with it the extinction of the civil liability. Thus, if a person is charged with homicide and successfully pleaded self-defense, his acquittal by reason thereof will extinguish his civil liability. He has not incurred any criminal liability. On the other hand, if his acquittal is, for instance, due to the fact that he was not sufficiently Identified to be the assailant, a civil action for damages may be maintained. His acquittal is not due to non-existence of the crime from which civil liability might arise, but because he was not, in the eyes of the court, sufficiently Identified as the perpetrator of the crime. In People vs. Buan, 22 SCRA 1383, this Court, speaking through Mr. Justice J.B.L. Reyes, said that "the essence of the quasi offense of criminal negligence under Article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law

penalizes the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty; it does not qualify the substance of the offense. The charge against Felardo Paje was not for homicide and physical injuries but for reckless imprudence or criminal negligence resulting in homicide (death of Clemente Marcia) and physical injuries suffered by Edgar Marcia and Renato Yap. They are not one of the three (3) crimes mentioned in Article 33 of the Civil Code and, therefore, no civil action shall proceed independently of the criminal prosecution. The case of Laura Corpus vs. Felardo Paje (supra) is the same as the case at bar, the only difference being the party-plaintiffs or petitioners. Clemente Marcia died, while Edgar Marcia and Renato Yap suffered physical injuries in the same accident. The heirs of Clemente Marcia filed Civil Case No. 6880 in the Court of First Instance of Rizal against herein respondents. The case was dismissed and appealed directly to this Court. The order appealed from was affirmed, as recorded in Laura Corpus vs. Felardo Paje, 28 SCRA 1062. 1äw phï1.ñët

The case at bar (Civil Case No. 4425) was filed by Edgar Marcia and Renato Yap against the same defendants in the Court of First Instance of Rizal. After trial, the case was dismissed and affirmed by the Court of Appeals. It is now before Us on appeal by certiorari from the said decision. Relative to the admissibility of the documents, to wit; (a) the records of the criminal case against Paje, (b) the decision of the Court of Appeals acquitting the latter; and (c) copy of the brief of the respondent Paje as accused-appellant, suffice it to say that since petitioners' cause of action is based on the alleged recklessness and imprudence of respondent Paje it necessarily follows that his acquittal by the Court of Appeals and its declaration that the mishap was "pure accident" are relevant and material evidence. In fact, the lower court may even take judicial notice of the decision of the Court of Appeals in said criminal case. Finally, with respect to the findings of fact of the Court of Appeals, well settled is the rule that the same are final and cannot be disturbed by Us, particularly where they are based, as they are in the case at bar, upon substantial evidence. WHEREFORE, the decision appealed from is hereby AFFIRMED in toto. With costs against the petitioners. SO ORDERED. Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur. G.R. No. 130547

October 3, 2000

LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, and minors LLOYD and KRISTINE, all surnamed REYES, represented by their mother, LEAH ALESNA REYES, petitioners, vs. SISTERS OF MERCY HOSPITAL, SISTER ROSE PALACIO, DR. MARVIE BLANES, and DR. MARLYN RICO,respondents. DECISION MENDOZA, J.: This is a petition for review of the decision1 of the Court of Appeals in CA-G.R. CV No. 36551 affirming the decision of the Regional Trial Court, Branch IX, Cebu City which dismissed a complaint for damages filed by petitioners against respondents. The facts are as follows: Petitioner Leah Alesna Reyes is the wife of the late Jorge Reyes. The other petitioners, namely, Rose Nahdja, Johnny, Lloyd, and Kristine, all surnamed Reyes, were their children. Five days before his death on January 8,

1987, Jorge had been suffering from a recurring fever with chills. After he failed to get relief from some home medication he was taking, which consisted of analgesic, antipyretic, and antibiotics, he decided to see the doctor. On January 8, 1987, he was taken to the Mercy Community Clinic by his wife. He was attended to by respondent Dr. Marlyn Rico, resident physician and admitting physician on duty, who gave Jorge a physical examination and took his medical history. She noted that at the time of his admission, Jorge was conscious, ambulatory, oriented, coherent, and with respiratory distress.2 Typhoid fever was then prevalent in the locality, as the clinic had been getting from 15 to 20 cases of typhoid per month.3 Suspecting that Jorge could be suffering from this disease, Dr. Rico ordered a Widal Test, a standard test for typhoid fever, to be performed on Jorge. Blood count, routine urinalysis, stool examination, and malarial smear were also made.4 After about an hour, the medical technician submitted the results of the test from which Dr. Rico concluded that Jorge was positive for typhoid fever. As her shift was only up to 5:00 p.m., Dr. Rico indorsed Jorge to respondent Dr. Marvie Blanes. Dr. Marvie Blanes attended to Jorge at around six in the evening. She also took Jorge’s history and gave him a physical examination. Like Dr. Rico, her impression was that Jorge had typhoid fever. Antibiotics being the accepted treatment for typhoid fever, she ordered that a compatibility test with the antibiotic chloromycetin be done on Jorge. Said test was administered by nurse Josephine Pagente who also gave the patient a dose of triglobe. As she did not observe any adverse reaction by the patient to chloromycetin, Dr. Blanes ordered the first five hundred milligrams of said antibiotic to be administered on Jorge at around 9:00 p.m. A second dose was administered on Jorge about three hours later just before midnight. At around 1:00 a.m. of January 9, 1987, Dr. Blanes was called as Jorge’s temperature rose to 41°C. The patient also experienced chills and exhibited respiratory distress, nausea, vomiting, and convulsions. Dr. Blanes put him under oxygen, used a suction machine, and administered hydrocortisone, temporarily easing the patient’s convulsions. When he regained consciousness, the patient was asked by Dr. Blanes whether he had a previous heart ailment or had suffered from chest pains in the past. Jorge replied he did not. 5 After about 15 minutes, however, Jorge again started to vomit, showed restlessness, and his convulsions returned. Dr. Blanes re-applied the emergency measures taken before and, in addition, valium was administered. Jorge, however, did not respond to the treatment and slipped into cyanosis, a bluish or purplish discoloration of the skin or mucous membrane due to deficient oxygenation of the blood. At around 2:00 a.m., Jorge died. He was forty years old. The cause of his death was "Ventricular Arrythemia Secondary to Hyperpyrexia and typhoid fever." On June 3, 1987, petitioners filed before the Regional Trial Court of Cebu City a complaint6 for damages against respondents Sisters of Mercy, Sister Rose Palacio, Dr. Marvie Blanes, Dr. Marlyn Rico, and nurse Josephine Pagente. On September 24, 1987, petitioners amended their complaint to implead respondent Mercy Community Clinic as additional defendant and to drop the name of Josephine Pagente as defendant since she was no longer connected with respondent hospital. Their principal contention was that Jorge did not die of typhoid fever.7 Instead, his death was due to the wrongful administration of chloromycetin. They contended that had respondent doctors exercised due care and diligence, they would not have recommended and rushed the performance of the Widal Test, hastily concluded that Jorge was suffering from typhoid fever, and administered chloromycetin without first conducting sufficient tests on the patient’s compatibility with said drug. They charged respondent clinic and its directress, Sister Rose Palacio, with negligence in failing to provide adequate facilities and in hiring negligent doctors and nurses.8 Respondents denied the charges. During the pre-trial conference, the parties agreed to limit the issues on the following: (1) whether the death of Jorge Reyes was due to or caused by the negligence, carelessness, imprudence, and lack of skill or foresight on the part of defendants; (2) whether respondent Mercy Community Clinic was negligent in the hiring of its employees; and (3) whether either party was entitled to damages. The case was then heard by the trial court during which, in addition to the testimonies of the parties, the testimonies of doctors as expert witnesses were presented. Petitioners offered the testimony of Dr. Apolinar Vacalares, Chief Pathologist at the Northern Mindanao Training Hospital, Cagayan de Oro City. On January 9, 1987, Dr. Vacalares performed an autopsy on Jorge Reyes to determine the cause of his death. However, he did not open the skull to examine the brain. His

findings9 showed that the gastro-intestinal tract was normal and without any ulceration or enlargement of the nodules. Dr. Vacalares testified that Jorge did not die of typhoid fever. He also stated that he had not seen a patient die of typhoid fever within five days from the onset of the disease. For their part, respondents offered the testimonies of Dr. Peter Gotiong and Dr. Ibarra Panopio. Dr. Gotiong is a diplomate in internal medicine whose expertise is microbiology and infectious diseases. He is also a consultant at the Cebu City Medical Center and an associate professor of medicine at the South Western University College of Medicine in Cebu City. He had treated over a thousand cases of typhoid patients. According to Dr. Gotiong, the patient’s history and positive Widal Test results ratio of 1:320 would make him suspect that the patient had typhoid fever. As to Dr. Vacalares’ observation regarding the absence of ulceration in Jorge’s gastro-intestinal tract, Dr. Gotiong said that such hyperplasia in the intestines of a typhoid victim may be microscopic. He noted that since the toxic effect of typhoid fever may lead to meningitis, Dr. Vacalares’ autopsy should have included an examination of the brain.10 The other doctor presented was Dr. Ibarra Panopio, a member of the American Board of Pathology, examiner of the Philippine Board of Pathology from 1978 to 1991, fellow of the Philippine Society of Pathologist, associate professor of the Cebu Institute of Medicine, and chief pathologist of the Andres Soriano Jr. Memorial Hospital in Toledo City. Dr. Panopio stated that although he was partial to the use of the culture test for its greater reliability in the diagnosis of typhoid fever, the Widal Test may also be used. Like Dr. Gotiong, he agreed that the 1:320 ratio in Jorge’s case was already the maximum by which a conclusion of typhoid fever may be made. No additional information may be deduced from a higher dilution.11 He said that Dr. Vacalares’ autopsy on Jorge was incomplete and thus inconclusive. On September 12, 1991, the trial court rendered its decision absolving respondents from the charges of negligence and dismissing petitioners’ action for damages. The trial court likewise dismissed respondents’ counterclaim, holding that, in seeking damages from respondents, petitioners were impelled by the honest belief that Jorge’s death was due to the latter’s negligence. Petitioners brought the matter to the Court of Appeals. On July 31, 1997, the Court of Appeals affirmed the decision of the trial court. Hence this petition. Petitioners raise the following assignment of errors: I. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT THE DOCTRINE OF RES IPSA LOQUITUR IS NOT APPLICABLE IN THE INSTANT CASE. II. THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT MADE AN UNFOUNDED ASSUMPTION THAT THE LEVEL OF MEDICAL PRACTICE IS LOWER IN ILIGAN CITY. III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED FOR A LESSER STANDARD OF CARE AND DEGREE OF DILIGENCE FOR MEDICAL PRACTICE IN ILIGAN CITY WHEN IT APPRECIATE[D] NO DOCTOR’S NEGLIGENCE IN THE TREATMENT OF JORGE REYES. Petitioner’s action is for medical malpractice. This is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances. 12 In order to successfully pursue such a claim, a patient must prove that the physician or surgeon either failed to do something which a reasonably prudent physician or surgeon would have done, or that he or she did something that a reasonably prudent physician or surgeon would not have done, and that the failure or action caused injury to the patient.13 There are thus four elements involved in medical negligence cases, namely: duty, breach, injury, and proximate causation.

In the present case, there is no doubt that a physician-patient relationship existed between respondent doctors and Jorge Reyes. Respondents were thus duty-bound to use at least the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances. It is breach of this duty which constitutes actionable malpractice.14 As to this aspect of medical malpractice, the determination of the reasonable level of care and the breach thereof, expert testimony is essential. Inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation. 15 Res Ipsa Loquitur There is a case when expert testimony may be dispensed with, and that is under the doctrine of res ipsa loquitur. As held in Ramos v. Court of Appeals:16 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 loquitor is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission 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 loquitor 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, injuries sustained on a healthy part of the body which was not under, or in the area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth while a patient’s jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient was under the influence of anesthetic, during or following an operation for appendicitis, among others.17 Petitioners asserted in the Court of Appeals that the doctrine of res ipsa loquitur applies to the present case because Jorge Reyes was merely experiencing fever and chills for five days and was fully conscious, coherent, and ambulant when he went to the hospital. Yet, he died after only ten hours from the time of his admission. This contention was rejected by the appellate court. Petitioners now contend that all requisites for the application of res ipsa loquitur were present, namely: (1) the accident was of a kind which does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused the injury was under the exclusive control of the person in charge; and (3) the injury suffered must not have been due to any voluntary action or contribution of the person injured. 18 The contention is without merit. We agree with the ruling of the Court of Appeals. In the Ramos case, the question was whether a surgeon, an anesthesiologist, and a hospital should be made liable for the comatose condition of a patient scheduled for cholecystectomy.19 In that case, the patient was given anesthesia prior to her operation. Noting that the patient was neurologically sound at the time of her operation, the Court applied the doctrine of res ipsa loquitur as mental brain damage does not normally occur in a gallblader operation in the

absence of negligence of the anesthesiologist. Taking judicial notice that anesthesia procedures had become so common that even an ordinary person could tell if it was administered properly, we allowed the testimony of a witness who was not an expert. In this case, while it is true that the patient died just a few hours after professional medical assistance was rendered, there is really nothing unusual or extraordinary about his death. Prior to his admission, the patient already had recurring fevers and chills for five days unrelieved by the analgesic, antipyretic, and antibiotics given him by his wife. This shows that he had been suffering from a serious illness and professional medical help came too late for him. Respondents alleged failure to observe due care was not immediately apparent to a layman so as to justify application of res ipsa loquitur. The question required expert opinion on the alleged breach by respondents of the standard of care required by the circumstances. Furthermore, on the issue of the correctness of her diagnosis, no presumption of negligence can be applied to Dr. Marlyn Rico.As held in Ramos: . . . . Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or a surgeon which involves the merits of a diagnosis or of a scientific treatment. The physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result.20 Specific Acts of Negligence We turn to the question whether petitioners have established specific acts of negligence allegedly committed by respondent doctors. Petitioners contend that: (1) Dr. Marlyn Rico hastily and erroneously relied upon the Widal test, diagnosed Jorge’s illness as typhoid fever, and immediately prescribed the administration of the antibiotic chloromycetin;21 and (2) Dr. Marvie Blanes erred in ordering the administration of the second dose of 500 milligrams of chloromycetin barely three hours after the first was given.22 Petitioners presented the testimony of Dr. Apolinar Vacalares, Chief Pathologist of the Northern Mindanao Training Hospital, Cagayan de Oro City, who performed an autopsy on the body of Jorge Reyes. Dr. Vacalares testified that, based on his findings during the autopsy, Jorge Reyes did not die of typhoid fever but of shock undetermined, which could be due to allergic reaction or chloromycetin overdose. We are not persuaded. First. While petitioners presented Dr. Apolinar Vacalares as an expert witness, we do not find him to be so as he is not a specialist on infectious diseases like typhoid fever. Furthermore, although he may have had extensive experience in performing autopsies, he admitted that he had yet to do one on the body of a typhoid victim at the time he conducted the postmortem on Jorge Reyes. It is also plain from his testimony that he has treated only about three cases of typhoid fever. Thus, he testified that:23 ATTY. PASCUAL: Q Why? Have you not testified earlier that you have never seen a patient who died of typhoid fever? A In autopsy. But, that was when I was a resident physician yet. Q But you have not performed an autopsy of a patient who died of typhoid fever? A I have not seen one. Q And you testified that you have never seen a patient who died of typhoid fever within five days?

A I have not seen one. Q How many typhoid fever cases had you seen while you were in the general practice of medicine? A In our case we had no widal test that time so we cannot consider that the typhoid fever is like this and like that. And the widal test does not specify the time of the typhoid fever. Q The question is: how many typhoid fever cases had you seen in your general practice regardless of the cases now you practice? A I had only seen three cases. Q And that was way back in 1964? A Way back after my training in UP. Q Clinically? A Way back before my training. He is thus not qualified to prove that Dr. Marlyn Rico erred in her diagnosis. Both lower courts were therefore correct in discarding his testimony, which is really inadmissible. In Ramos, the defendants presented the testimony of a pulmonologist to prove that brain injury was due to oxygen deprivation after the patient had bronchospasms24 triggered by her allergic response to a drug,25 and not due to faulty intubation by the anesthesiologist. As the issue was whether the intubation was properly performed by an anesthesiologist, we rejected the opinion of the pulmonologist on the ground that he was not: (1) an anesthesiologist who could enlighten the court about anesthesia practice, procedure, and their complications; nor (2) an allergologist who could properly advance expert opinion on allergic mediated processes; nor (3) a pharmacologist who could explain the pharmacologic and toxic effects of the drug allegedly responsible for the bronchospasms. Second. On the other hand, the two doctors presented by respondents clearly were experts on the subject. They vouched for the correctness of Dr. Marlyn Rico’s diagnosis. Dr. Peter Gotiong, a diplomate whose specialization is infectious diseases and microbiology and an associate professor at the Southwestern University College of Medicine and the Gullas College of Medicine, testified that he has already treated over a thousand cases of typhoid fever.26 According to him, when a case of typhoid fever is suspected, the Widal test is normally used,27 and if the 1:320 results of the Widal test on Jorge Reyes had been presented to him along with the patient’s history, his impression would also be that the patient was suffering from typhoid fever. 28 As to the treatment of the disease, he stated that chloromycetin was the drug of choice.29 He also explained that despite the measures taken by respondent doctors and the intravenous administration of two doses of chloromycetin, complications of the disease could not be discounted. His testimony is as follows: 30 ATTY. PASCUAL: Q If with that count with the test of positive for 1 is to 320, what treatment if any would be given? A If those are the findings that would be presented to me, the first thing I would consider would be typhoid fever. Q And presently what are the treatments commonly used? A Drug of choice of chloramphenical.

Q Doctor, if given the same patient and after you have administered chloramphenical about 3 1/2 hours later, the patient associated with chills, temperature - 41oC, what could possibly come to your mind? A Well, when it is change in the clinical finding, you have to think of complication. Q And what will you consider on the complication of typhoid? A One must first understand that typhoid fever is toximia. The problem is complications are caused by toxins produced by the bacteria . . . whether you have suffered complications to think of -- heart toxic myocardities; then you can consider a toxic meningitis and other complications and perforations and bleeding in the ilium. Q Even that 40-year old married patient who received medication of chloromycetin of 500 milligrams intravenous, after the skin test, and received a second dose of chloromycetin of 500 miligrams, 3 hours later, the patient developed chills . . . rise in temperature to 41oC, and then about 40 minutes later the temperature rose to 100oF, cardiac rate of 150 per minute who appeared to be coherent, restless, nauseating, with seizures: what significance could you attach to these clinical changes? A I would then think of toxemia, which was toxic meningitis and probably a toxic meningitis because of the high cardiac rate. Q Even if the same patient who, after having given intramuscular valium, became conscious and coherent about 20 minutes later, have seizure and cyanosis and rolling of eyeballs and vomitting . . . and death: what significance would you attach to this development? A We are probably dealing with typhoid to meningitis. Q In such case, Doctor, what finding if any could you expect on the post-mortem examination? A No, the finding would be more on the meninges or covering of the brain. Q And in order to see those changes would it require opening the skull? A Yes. As regards Dr. Vacalares’ finding during the autopsy that the deceased’s gastro-intestinal tract was normal, Dr. Rico explained that, while hyperplasia31 in the payer’s patches or layers of the small intestines is present in typhoid fever, the same may not always be grossly visible and a microscope was needed to see the texture of the cells.32 Respondents also presented the testimony of Dr. Ibarra T. Panopio who is a member of the Philippine and American Board of Pathology, an examiner of the Philippine Board of Pathology, and chief pathologist at the MetroCebu Community Hospital, Perpetual Succor Hospital, and the Andres Soriano Jr. Memorial Medical Center. He stated that, as a clinical pathologist, he recognized that the Widal test is used for typhoid patients, although he did not encourage its use because a single test would only give a presumption necessitating that the test be repeated, becoming more conclusive at the second and third weeks of the disease. 33 He corroborated Dr. Gotiong’s testimony that the danger with typhoid fever is really the possible complications which could develop like perforation, hemorrhage, as well as liver and cerebral complications.34 As regards the 1:320 results of the Widal test on Jorge Reyes, Dr. Panopio stated that no additional information could be obtained from a higher ratio.35 He also agreed with Dr. Gotiong that hyperplasia in the payer’s patches may be microscopic.36 Indeed, the standard contemplated is not what is actually the average merit among all known practitioners from the best to the worst and from the most to the least experienced, but the reasonable average merit among the ordinarily good physicians.37 Here, Dr. Marlyn Rico did not depart from the reasonable standard recommended by the experts as she in fact observed the due care required under the circumstances. Though the Widal test is

not conclusive, it remains a standard diagnostic test for typhoid fever and, in the present case, greater accuracy through repeated testing was rendered unobtainable by the early death of the patient. The results of the Widal test and the patient’s history of fever with chills for five days, taken with the fact that typhoid fever was then prevalent as indicated by the fact that the clinic had been getting about 15 to 20 typhoid cases a month, were sufficient to give upon any doctor of reasonable skill the impression that Jorge Reyes had typhoid fever. Dr. Rico was also justified in recommending the administration of the drug chloromycetin, the drug of choice for typhoid fever. The burden of proving that Jorge Reyes was suffering from any other illness rested with the petitioners. As they failed to present expert opinion on this, preponderant evidence to support their contention is clearly absent. Third. Petitioners contend that respondent Dr. Marvie Blanes, who took over from Dr. Rico, was negligent in ordering the intravenous administration of two doses of 500 milligrams of chloromycetin at an interval of less than three hours. Petitioners claim that Jorge Reyes died of anaphylactic shock38 or possibly from overdose as the second dose should have been administered five to six hours after the first, per instruction of Dr. Marlyn Rico. As held by the Court of Appeals, however: That chloromycetin was likewise a proper prescription is best established by medical authority. Wilson, et. al., inHarrison’s Principle of Internal Medicine, 12th ed. write that chlorampenicol (which is the generic of chloromycetin) is the drug of choice for typhoid fever and that no drug has yet proven better in promoting a favorable clinical response. "Chlorampenicol (Chloromycetin) is specifically indicated for bacterial meningitis, typhoid fever, rickettsial infections, bacteriodes infections, etc." (PIMS Annual, 1994, p. 211) The dosage likewise including the first administration of five hundred milligrams (500 mg.) at around nine o’clock in the evening and the second dose at around 11:30 the same night was still within medically acceptable limits, since the recommended dose of chloromycetin is one (1) gram every six (6) hours. (cf. Pediatric Drug Handbook, 1st Ed., Philippine Pediatric Society, Committee on Therapeutics and Toxicology, 1996). The intravenous route is likewise correct. (Mansser, O’Nick, Pharmacology and Therapeutics) Even if the test was not administered by the physician-on-duty, the evidence introduced that it was Dra. Blanes who interpreted the results remain uncontroverted. (Decision, pp. 16-17) Once more, this Court rejects any claim of professional negligence in this regard. .... As regards anaphylactic shock, the usual way of guarding against it prior to the administration of a drug, is the skin test of which, however, it has been observed: "Skin testing with haptenic drugs is generally not reliable. Certain drugs cause nonspecific histamine release, producing a weal-and-flare reaction in normal individuals. Immunologic activation of mast cells requires a polyvalent allergen, so a negative skin test to a univalent haptenic drug does not rule out anaphylactic sensitivity to that drug." (Terr, "Anaphylaxis and Urticaria" in Basic and Clinical Immunology, p. 349) What all this means legally is that even if the deceased suffered from an anaphylactic shock, this, of itself, would not yet establish the negligence of the appellee-physicians for all that the law requires of them is that they perform the standard tests and perform standard procedures. The law cannot require them to predict every possible reaction to all drugs administered. The onus probandi was on the appellants to establish, before the trial court, that the appellee-physicians ignored standard medical procedure, prescribed and administered medication with recklessness and exhibited an absence of the competence and skills expected of general practitioners similarly situated.39 Fourth. Petitioners correctly observe that the medical profession is one which, like the business of a common carrier, is affected with public interest. Moreover, they assert that since the law imposes upon common carriers the duty of observing extraordinary diligence in the vigilance over the goods and for the safety of the passengers,40physicians and surgeons should have the same duty toward their patients.41 They also contend that the Court of Appeals erred when it allegedly assumed that the level of medical practice is lower in Iligan City, thereby reducing the standard of care and degree of diligence required from physicians and surgeons in Iligan City. The standard of extraordinary diligence is peculiar to common carriers. The Civil Code provides:

Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to the circumstances of each case. . . . The practice of medicine is a profession engaged in only by qualified individuals. It is a right earned through years of education, training, and by first obtaining a license from the state through professional board examinations. Such license may, at any time and for cause, be revoked by the government. In addition to state regulation, the conduct of doctors is also strictly governed by the Hippocratic Oath, an ancient code of discipline and ethical rules which doctors have imposed upon themselves in recognition and acceptance of their great responsibility to society. Given these safeguards, there is no need to expressly require of doctors the observance of "extraordinary" diligence. As it is now, the practice of medicine is already conditioned upon the highest degree of diligence. And, as we have already noted, the standard contemplated for doctors is simply the reasonable average merit among ordinarily good physicians. That is reasonable diligence for doctors or, as the Court of Appeals called it, the reasonable "skill and competence . . . that a physician in the same or similar locality . . . should apply." 1âwphi1

WHEREFORE, the instant petition is DENIED and the decision of the Court of Appeals is AFFIRMED. SO ORDERED. Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur. G.R. No. 178763

April 21, 2009

PETER PAUL PATRICK LUCAS, FATIMA GLADYS LUCAS, ABBEYGAIL LUCAS AND GILLIAN LUCAS,Petitioners, vs. DR. PROSPERO MA. C. TUAÑO, Respondent. DECISION CHICO-NAZARIO, J.: In this petition for review on certiorari1 under Rule 45 of the Revised Rules of Court, petitioners Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas seek the reversal of the 27 September 2006 Decision2 and 3 July 2007 Resolution,3 both of the Court of Appeals in CA-G.R. CV No. 68666, entitled "Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C. Tuaño." In the questioned decision and resolution, the Court of Appeals affirmed the 14 July 2000 Decision of the Regional Trial Court (RTC), Branch 150, Makati City, dismissing the complaint filed by petitioners in a civil case entitled, "Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C. Tuaño," docketed as Civil Case No. 92-2482. From the record of the case, the established factual antecedents of the present petition are: Sometime in August 1988, petitioner Peter Paul Patrick Lucas (Peter) contracted "sore eyes" in his right eye. On 2 September 1988, complaining of a red right eye and swollen eyelid, Peter made use of his health care insurance issued by Philamcare Health Systems, Inc. (Philamcare), for a possible consult. The Philamcare Coordinator, Dr. Edwin Oca, M.D., referred Peter to respondent, Dr. Prospero Ma. C. Tuaño, M.D. (Dr. Tuaño), an ophthalmologist at St. Luke’s Medical Center, for an eye consult. Upon consultation with Dr. Tuaño, Peter narrated that it had been nine (9) days since the problem with his right eye began; and that he was already taking Maxitrol to address the problem in his eye. According to Dr. Tuaño,

he performed "ocular routine examination" on Peter’s eyes, wherein: (1) a gross examination of Peter’s eyes and their surrounding area was made; (2) Peter’s visual acuity were taken; (3) Peter’s eyes were palpated to check the intraocular pressure of each; (4) the motility of Peter’s eyes was observed; and (5) the ophthalmoscopy4 on Peter’s eyes was used. On that particular consultation, Dr. Tuaño diagnosed that Peter was suffering from conjunctivitis5 or "sore eyes." Dr. Tuaño then prescribed Spersacet-C6 eye drops for Peter and told the latter to return for follow-up after one week. As instructed, Peter went back to Dr. Tuaño on 9 September 1988. Upon examination, Dr. Tuaño told Peter that the "sore eyes" in the latter’s right eye had already cleared up and he could discontinue the Spersacet-C. However, the same eye developed Epidemic Kerato Conjunctivitis (EKC),7 a viral infection. To address the new problem with Peter’s right eye, Dr. Tuaño prescribed to the former a steroid-based eye drop called Maxitrol,8 a dosage of six (6) drops per day.9 To recall, Peter had already been using Maxitrol prior to his consult with Dr. Tuaño. On 21 September 1988, Peter saw Dr. Tuaño for a follow-up consultation. After examining both of Peter’s eyes, Dr. Tuaño instructed the former to taper down10 the dosage of Maxitrol, because the EKC in his right eye had already resolved. Dr. Tuaño specifically cautioned Peter that, being a steroid, Maxitrol had to be withdrawn gradually; otherwise, the EKC might recur.11 Complaining of feeling as if there was something in his eyes, Peter returned to Dr. Tuaño for another check-up on 6 October 1988. Dr. Tuaño examined Peter’s eyes and found that the right eye had once more developed EKC. So, Dr. Tuaño instructed Peter to resume the use of Maxitrol at six (6) drops per day. On his way home, Peter was unable to get a hold of Maxitrol, as it was out of stock. Consequently, Peter was told by Dr. Tuano to take, instead, Blephamide12 another steroid-based medication, but with a lower concentration, as substitute for the unavailable Maxitrol, to be used three (3) times a day for five (5) days; two (2) times a day for five (5) days; and then just once a day.13 Several days later, on 18 October 1988, Peter went to see Dr. Tuaño at his clinic, alleging severe eye pain, feeling as if his eyes were about to "pop-out," a headache and blurred vision. Dr. Tuaño examined Peter’s eyes and discovered that the EKC was again present in his right eye. As a result, Dr. Tuaño told Peter to resume the maximum dosage of Blephamide. Dr. Tuaño saw Peter once more at the former’s clinic on 4 November 1988. Dr. Tuaño’s examination showed that only the periphery of Peter’s right eye was positive for EKC; hence, Dr. Tuaño prescribed a lower dosage of Blephamide. It was also about this time that Fatima Gladys Lucas (Fatima), Peter’s spouse, read the accompanying literature of Maxitrol and found therein the following warning against the prolonged use of such steroids: WARNING: Prolonged use may result in glaucoma, with damage to the optic nerve, defects in visual acuity and fields of vision, and posterior, subcapsular cataract formation. Prolonged use may suppress the host response and thus increase the hazard of secondary ocular infractions, in those diseases causing thinning of the cornea or sclera, perforations have been known to occur with the use of topical steroids. In acute purulent conditions of the eye, steroids may mask infection or enhance existing infection. If these products are used for 10 days or longer, intraocular pressure should be routinely monitored even though it may be difficult in children and uncooperative patients. Employment of steroid medication in the treatment of herpes simplex requires great caution. xxxx ADVERSE REACTIONS:

Adverse reactions have occurred with steroid/anti-infective combination drugs which can be attributed to the steroid component, the anti-infective component, or the combination. Exact incidence figures are not available since no denominator of treated patients is available. Reactions occurring most often from the presence of the anti-infective ingredients are allergic sensitizations. The reactions due to the steroid component in decreasing order to frequency are elevation of intra-ocular pressure (IOP) with possible development of glaucoma, infrequent optic nerve damage; posterior subcapsular cataract formation; and delayed wound healing. Secondary infection: The development of secondary has occurred after use of combination containing steroids and antimicrobials. Fungal infections of the correa are particularly prone to develop coincidentally with longterm applications of steroid. The possibility of fungal invasion must be considered in any persistent corneal ulceration where steroid treatment has been used. Secondary bacterial ocular infection following suppression of host responses also occurs. On 26 November 1988, Peter returned to Dr. Tuaño’s clinic, complaining of "feeling worse."14 It appeared that the EKC had spread to the whole of Peter’s right eye yet again. Thus, Dr. Tuaño instructed Peter to resume the use of Maxitrol. Petitioners averred that Peter already made mention to Dr. Tuaño during said visit of the above-quoted warning against the prolonged use of steroids, but Dr. Tuaño supposedly brushed aside Peter’s concern as mere paranoia, even assuring him that the former was taking care of him (Peter). Petitioners further alleged that after Peter’s 26 November 1988 visit to Dr. Tuaño, Peter continued to suffer pain in his right eye, which seemed to "progress," with the ache intensifying and becoming more frequent. Upon waking in the morning of 13 December 1988, Peter had no vision in his right eye. Fatima observed that Peter’s right eye appeared to be bloody and swollen.15 Thus, spouses Peter and Fatima rushed to the clinic of Dr. Tuaño. Peter reported to Dr. Tuaño that he had been suffering from constant headache in the afternoon and blurring of vision. Upon examination, Dr. Tuaño noted the hardness of Peter’s right eye. With the use of a tonometer16 to verify the exact intraocular pressure17 (IOP) of Peter’s eyes, Dr. Tuaño discovered that the tension in Peter’s right eye was39.0 Hg, while that of his left was 17.0 Hg.18 Since the tension in Peter’s right eye was way over the normal IOP, which merely ranged from 10.0 Hg to 21.0 Hg,19 Dr. Tuaño ordered20 him to immediately discontinue the use of Maxitrol and prescribed to the latter Diamox21 and Normoglaucon, instead.22 Dr. Tuaño also required Peter to go for daily check-up in order for the former to closely monitor the pressure of the latter’s eyes. On 15 December 1988, the tonometer reading of Peter’s right eye yielded a high normal level, i.e., 21.0 Hg. Hence, Dr. Tuaño told Peter to continue using Diamox and Normoglaucon. But upon Peter’s complaint of "stomach pains and tingling sensation in his fingers,"23 Dr. Tuaño discontinued Peter’s use of Diamox.24 Peter went to see another ophthalmologist, Dr. Ramon T. Batungbacal (Dr. Batungbacal), on 21 December 1988, who allegedly conducted a complete ophthalmological examination of Peter’s eyes. Dr. Batungbacal’s diagnosis was Glaucoma25 O.D.26 He recommended Laser Trabeculoplasty27 for Peter’s right eye. When Peter returned to Dr. Tuaño on 23 December 1988,28 the tonometer measured the IOP of Peter’s right eye to be 41.0 Hg,29 again, way above normal. Dr. Tuaño addressed the problem by advising Peter to resume taking Diamox along with Normoglaucon. During the Christmas holidays, Peter supposedly stayed in bed most of the time and was not able to celebrate the season with his family because of the debilitating effects of Diamox.30 On 28 December 1988, during one of Peter’s regular follow-ups with Dr. Tuaño, the doctor conducted another ocular routine examination of Peter’s eyes. Dr. Tuaño noted the recurrence of EKC in Peter’s right eye. Considering, however, that the IOP of Peter’s right eye was still quite high at 41.0 Hg, Dr. Tuaño was at a loss

as to how to balance the treatment of Peter’s EKC vis-à-vis the presence of glaucoma in the same eye. Dr. Tuaño, thus, referred Peter to Dr. Manuel B. Agulto, M.D. (Dr. Agulto), another ophthalmologist specializing in the treatment of glaucoma.31 Dr. Tuaño’s letter of referral to Dr. Agulto stated that: Referring to you Mr. Peter Lucas for evaluation & possible management. I initially saw him Sept. 2, 1988 because of conjunctivitis. The latter resolved and he developed EKC for which I gave Maxitrol. The EKC was recurrent after stopping steroid drops. Around 1 month of steroid treatment, he noted blurring of vision & pain on the R. however, I continued the steroids for the sake of the EKC. A month ago, I noted iris atrophy, so I took the IOP and it was definitely elevated. I stopped the steroids immediately and has (sic) been treating him medically. It seems that the IOP can be controlled only with oral Diamox, and at the moment, the EKC has recurred and I’m in a fix whether to resume the steroid or not considering that the IOP is still uncontrolled. 32 On 29 December 1988, Peter went to see Dr. Agulto at the latter’s clinic. Several tests were conducted thereat to evaluate the extent of Peter’s condition. Dr. Agulto wrote Dr. Tuaño a letter containing the following findings and recommendations: Thanks for sending Peter Lucas. On examination conducted vision was 20/25 R and 20/20L. Tension curve 19 R and 15 L at 1210 H while on Normoglaucon BID OD & Diamox ½ tab every 6h po. Slit lamp evaluation33 disclosed subepithelial corneal defect outer OD. There was circumferential peripheral iris atrophy, OD. The lenses were clear. Funduscopy34 showed vertical cup disc of 0.85 R and 0.6 L with temporal slope R>L. Zeiss gonioscopy35 revealed basically open angles both eyes with occasional PAS,36 OD. Rolly, I feel that Peter Lucas has really sustained significant glaucoma damage. I suggest that we do a baseline visual fields and push medication to lowest possible levels. If I may suggest further, I think we should prescribe Timolol37 BID38 OD in lieu of Normoglaucon. If the IOP is still inadequate, we may try D’epifrin39 BID OD (despite low PAS). I’m in favor of retaining Diamox or similar CAI.40 If fields show further loss in say – 3 mos. then we should consider trabeculoplasty. I trust that this approach will prove reasonable for you and Peter.41 Peter went to see Dr. Tuaño on 31 December 1988, bearing Dr. Agulto’s aforementioned letter. Though Peter’s right and left eyes then had normal IOP of 21.0 Hg and 17.0 Hg, respectively, Dr. Tuaño still gave him a prescription for Timolol B.I.D. so Peter could immediately start using said medication. Regrettably, Timolol B.I.D. was out of stock, so Dr. Tuaño instructed Peter to just continue using Diamox and Normoglaucon in the meantime. Just two days later, on 2 January 1989, the IOP of Peter’s right eye remained elevated at 21.0 Hg,42 as he had been without Diamox for the past three (3) days. On 4 January 1989, Dr. Tuaño conducted a visual field study43 of Peter’s eyes, which revealed that the latter had tubular vision44 in his right eye, while that of his left eye remained normal. Dr. Tuaño directed Peter to religiously use the Diamox and Normoglaucon, as the tension of the latter’s right eye went up even further to 41.0 Hg in just a matter of two (2) days, in the meantime that Timolol B.I.D. and D’epifrin were still not available in the market. Again, Dr. Tuaño advised Peter to come for regular check-up so his IOP could be monitored. Obediently, Peter went to see Dr. Tuaño on the 7th, 13th, 16th and 20th of January 1989 for check-up and IOP monitoring.

In the interregnum, however, Peter was prodded by his friends to seek a second medical opinion. On 13 January 1989, Peter consulted Dr. Jaime Lapuz, M.D. (Dr. Lapuz), an ophthalmologist, who, in turn, referred Peter to Dr. Mario V. Aquino, M.D. (Dr. Aquino), another ophthalmologist who specializes in the treatment of glaucoma and who could undertake the long term care of Peter’s eyes. According to petitioners, after Dr. Aquino conducted an extensive evaluation of Peter’s eyes, the said doctor informed Peter that his eyes were relatively normal, though the right one sometimes manifested maximum borderline tension. Dr. Aquino also confirmed Dr. Tuaño’s diagnosis of tubular vision in Peter’s right eye. Petitioners claimed that Dr. Aquino essentially told Peter that the latter’s condition would require lifetime medication and follow-ups. In May 1990 and June 1991, Peter underwent two (2) procedures of laser trabeculoplasty to attempt to control the high IOP of his right eye. Claiming to have steroid-induced glaucoma45 and blaming Dr. Tuaño for the same, Peter, joined by: (1) Fatima, his spouse46; (2) Abbeygail, his natural child47; and (3) Gillian, his legitimate child48 with Fatima, instituted on 1 September 1992, a civil complaint for damages against Dr. Tuaño, before the RTC, Branch 150, Quezon City. The case was docketed as Civil Case No. 92-2482. In their Complaint, petitioners specifically averred that as the "direct consequence of [Peter’s] prolonged use of Maxitrol, [he] suffered from steroid induced glaucoma which caused the elevation of his intra-ocular pressure. The elevation of the intra-ocular pressure of [Peter’s right eye] caused the impairment of his vision which impairment is not curable and may even lead to total blindness."49 Petitioners additionally alleged that the visual impairment of Peter’s right eye caused him and his family so much grief. Because of his present condition, Peter now needed close medical supervision forever; he had already undergone two (2) laser surgeries, with the possibility that more surgeries were still needed in the future; his career in sports casting had suffered and was continuing to suffer;50 his anticipated income had been greatly reduced as a result of his "limited" capacity; he continually suffered from "headaches, nausea, dizziness, heart palpitations, rashes, chronic rhinitis, sinusitis,"51 etc.; Peter’s relationships with his spouse and children continued to be strained, as his condition made him highly irritable and sensitive; his mobility and social life had suffered; his spouse, Fatima, became the breadwinner in the family;52 and his two children had been deprived of the opportunity for a better life and educational prospects. Collectively, petitioners lived in constant fear of Peter becoming completely blind.53 In the end, petitioners sought pecuniary award for their supposed pain and suffering, which were ultimately brought about by Dr. Tuaño’s grossly negligent conduct in prescribing to Peter the medicine Maxitrol for a period of three (3) months, without monitoring Peter’s IOP, as required in cases of prolonged use of said medicine, and notwithstanding Peter’s constant complaint of intense eye pain while using the same. Petitioners particularly prayed that Dr. Tuaño be adjudged liable for the following amounts: 1. The amount of P2,000,000.00 to plaintiff Peter Lucas as and by way of compensation for his impaired vision. 2. The amount of P300,000.00 to spouses Lucas as and by way of actual damages plus such additional amounts that may be proven during trial. 3. The amount of P1,000,000.00 as and by way of moral damages. 4. The amount of P500,000.00 as and by way of exemplary damages. 5. The amount of P200,000.00 as and by way of attorney’s fees plus costs of suit.54 In rebutting petitioners’ complaint, Dr. Tuaño asserted that the "treatment made by [him] more than three years ago has no causal connection to [Peter’s] present glaucoma or condition." 55 Dr. Tuaño explained that "[d]rug-

induced glaucoma is temporary and curable, steroids have the side effect of increasing intraocular pressure. Steroids are prescribed to treat Epidemic Kerato Conjunctivitis or EKC which is an infiltration of the cornea as a result of conjunctivitis or sore eyes."56 Dr. Tuaño also clarified that (1) "[c]ontrary to [petitioners’] fallacious claim, [he] did NOT continually prescribe the drug Maxitrol which contained steroids for any prolonged period"57 and "[t]he truth was the Maxitrol was discontinued x x x as soon as EKC disappeared and was resumed only when EKC reappeared"58; (2) the entire time he was treating Peter, he "continually monitored the intraocular pressure of [Peter’s eyes] by palpating the eyes and by putting pressure on the eyeballs," and no hardening of the same could be detected, which meant that there was no increase in the tension or IOP, a possible side reaction to the use of steroid medications; and (3) it was only on 13 December 1988 that Peter complained of a headache and blurred vision in his right eye, and upon measuring the IOP of said eye, it was determined for the first time that the IOP of the right eye had an elevated value. But granting for the sake of argument that the "steroid treatment of [Peter’s] EKC caused the steroid induced glaucoma,"59 Dr. Tuaño argued that: [S]uch condition, i.e., elevated intraocular pressure, is temporary. As soon as the intake of steroids is discontinued, the intraocular pressure automatically is reduced. Thus, [Peter’s] glaucoma can only be due to other causes not attributable to steroids, certainly not attributable to [his] treatment of more than three years ago x x x. From a medical point of view, as revealed by more current examination of [Peter], the latter’s glaucoma can only be long standing glaucoma, open angle glaucoma, because of the large C:D ratio. The steroids provoked the latest glaucoma to be revealed earlier as [Peter] remained asymptomatic prior to steroid application. Hence, the steroid treatment was in fact beneficial to [Peter] as it revealed the incipient open angle glaucoma of [Peter] to allow earlier treatment of the same.60 In a Decision dated 14 July 2000, the RTC dismissed Civil Case No. 92-2482 "for insufficiency of evidence."61 The decretal part of said Decision reads: Wherefore, premises considered, the instant complaint is dismissed for insufficiency of evidence. The counter claim (sic) is likewise dismissed in the absence of bad faith or malice on the part of plaintiff in filing the suit.62 The RTC opined that petitioners failed to prove by preponderance of evidence that Dr. Tuaño was negligent in his treatment of Peter’s condition. In particular, the record of the case was bereft of any evidence to establish that the steroid medication and its dosage, as prescribed by Dr. Tuaño, caused Peter’s glaucoma. The trial court reasoned that the "recognized standards of the medical community has not been established in this case, much less has causation been established to render [Tuaño] liable."63 According to the RTC: [Petitioners] failed to establish the duty required of a medical practitioner against which Peter Paul’s treatment by defendant can be compared with. They did not present any medical expert or even a medical doctor to convince and expertly explain to the court the established norm or duty required of a physician treating a patient, or whether the non taking (sic) by Dr. Tuaño of Peter Paul’s pressure a deviation from the norm or his non-discovery of the glaucoma in the course of treatment constitutes negligence. It is important and indispensable to establish such a standard because once it is established, a medical practitioner who departed thereof breaches his duty and commits negligence rendering him liable. Without such testimony or enlightenment from an expert, the court is at a loss as to what is then the established norm of duty of a physician against which defendant’s conduct can be compared with to determine negligence. 64 The RTC added that in the absence of "any medical evidence to the contrary, this court cannot accept [petitioners’] claim that the use of steroid is the proximate cause of the damage sustained by [Peter’s] eye."65 Correspondingly, the RTC accepted Dr. Tuaño’s medical opinion that "Peter Paul must have been suffering from normal tension glaucoma, meaning, optic nerve damage was happening but no elevation of the eye pressure is manifested, that the steroid treatment actually unmasked the condition that resulted in the earlier treatment of the glaucoma. There is nothing in the record to contradict such testimony. In fact, plaintiff’s Exhibit ‘S’ even tends to support them."

Undaunted, petitioners appealed the foregoing RTC decision to the Court of Appeals. Their appeal was docketed as CA-G.R. CV No. 68666. On 27 September 2006, the Court of Appeals rendered a decision in CA-G.R. CV No. 68666 denying petitioners’ recourse and affirming the appealed RTC Decision. The fallo of the judgment of the appellate court states: WHEREFORE, the Decision appealed from is AFFIRMED.66 The Court of Appeals faulted petitioners because they – [D]id not present any medical expert to testify that Dr. Tuano’s prescription of Maxitrol and Blephamide for the treatment of EKC on Peter’s right eye was not proper and that his palpation of Peter’s right eye was not enough to detect adverse reaction to steroid. Peter testified that Dr. Manuel Agulto told him that he should not have used steroid for the treatment of EKC or that he should have used it only for two (2) weeks, as EKC is only a viral infection which will cure by itself. However, Dr. Agulto was not presented by [petitioners] as a witness to confirm what he allegedly told Peter and, therefore, the latter’s testimony is hearsay. Under Rule 130, Section 36 of the Rules of Court, a witness can testify only to those facts which he knows of his own personal knowledge, x x x. Familiar and fundamental is the rule that hearsay testimony is inadmissible as evidence. 67 Like the RTC, the Court of Appeals gave great weight to Dr. Tuaño’s medical judgment, specifically the latter’s explanation that: [W]hen a doctor sees a patient, he cannot determine whether or not the latter would react adversely to the use of steroids, that it was only on December 13, 1989, when Peter complained for the first time of headache and blurred vision that he observed that the pressure of the eye of Peter was elevated, and it was only then that he suspected that Peter belongs to the 5% of the population who reacts adversely to steroids. 68 Petitioners’ Motion for Reconsideration was denied by the Court of Appeals in a Resolution dated 3 July 2007. Hence, this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court premised on the following assignment of errors: I. THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN AFFIRMING THE DECISION OF THE TRIAL COURT DISMISSING THE PETITIONERS’ COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT ON THE GROUND OF INSUFFICIENCY OF EVIDENCE; II. THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN DISMISSING THE PETITIONERS’ COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT ON THE GROUND THAT NO MEDICAL EXPERT WAS PRESENTED BY THE PETITIONERS TO PROVE THEIR CLAIM FOR MEDICAL NEGLIGENCE AGAINST THE RESPONDENT; AND III. THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN NOT FINDING THE RESPONDENT LIABLE TO THE PETITIONERS’ FOR ACTUAL, MORAL AND EXEMPLARY DAMAGES, ASIDE FROM ATTORNEY’S FEES, COSTS OF SUIT, AS A RESULT OF HIS GROSS NEGLIGENCE. 69 A reading of the afore-quoted reversible errors supposedly committed by the Court of Appeals in its Decision and Resolution would reveal that petitioners are fundamentally assailing the finding of the Court of Appeals that the evidence on record is insufficient to establish petitioners’ entitlement to any kind of damage. Therefore, it

could be said that the sole issue for our resolution in the Petition at bar is whether the Court of Appeals committed reversible error in affirming the judgment of the RTC that petitioners failed to prove, by preponderance of evidence, their claim for damages against Dr. Tuaño. Evidently, said issue constitutes a question of fact, as we are asked to revisit anew the factual findings of the Court of Appeals, as well as of the RTC. In effect, petitioners would have us sift through the evidence on record and pass upon whether there is sufficient basis to establish Dr. Tuaño’s negligence in his treatment of Peter’s eye condition. This question clearly involves a factual inquiry, the determination of which is not within the ambit of this Court’s power of review under Rule 45 of the 1997 Rules Civil Procedure, as amended. 70 Elementary is the principle that this Court is not a trier of facts; only errors of law are generally reviewed in petitions for review on certiorari criticizing decisions of the Court of Appeals. Questions of fact are not entertained.71 Nonetheless, the general rule that only questions of law may be raised on appeal in a petition for review under Rule 45 of the Rules of Court admits of certain exceptions, including the circumstance when the finding of fact of the Court of Appeals is premised on the supposed absence of evidence, but is contradicted by the evidence on record. Although petitioners may not explicitly invoke said exception, it may be gleaned from their allegations and arguments in the instant Petition. 1avv phi 1.zw+

Petitioners contend, that "[c]ontrary to the findings of the Honorable Court of Appeals, [they] were more than able to establish that: Dr. Tuaño ignored the standard medical procedure for ophthalmologists, administered medication with recklessness, and exhibited an absence of competence and skills expected from him."72 Petitioners reject the necessity of presenting expert and/or medical testimony to establish (1) the standard of care respecting the treatment of the disorder affecting Peter’s eye; and (2) whether or not negligence attended Dr. Tuaño’s treatment of Peter, because, in their words – That Dr. Tuaño was grossly negligent in the treatment of Peter’s simple eye ailment is a simple case of cause and effect. With mere documentary evidence and based on the facts presented by the petitioners, respondent can readily be held liable for damages even without any expert testimony. In any case, however, and contrary to the finding of the trial court and the Court of Appeals, there was a medical expert presented by the petitioner showing the recklessness committed by [Dr. Tuaño] – Dr. Tuaño himself. [Emphasis supplied.] They insist that Dr. Tuaño himself gave sufficient evidence to establish his gross negligence that ultimately caused the impairment of the vision of Peter’s right eye,73 i.e., that "[d]espite [Dr. Tuaño’s] knowledge that 5% of the population reacts adversely to Maxitrol, [he] had no qualms whatsoever in prescribing said steroid to Peter without first determining whether or not the (sic) Peter belongs to the 5%."74 We are not convinced. The judgments of both the Court of Appeals and the RTC are in accord with the evidence on record, and we are accordingly bound by the findings of fact made therein. Petitioners’ position, in sum, is that Peter’s glaucoma is the direct result of Dr. Tuaño’s negligence in his improper administration of the drug Maxitrol; "thus, [the latter] should be liable for all the damages suffered and to be suffered by [petitioners]."75 Clearly, the present controversy is a classic illustration of a medical negligence case against a physician based on the latter’s professional negligence. In this type of suit, the patient or his heirs, in order to prevail, is required to prove by preponderance of evidence that the physician failed to exercise that degree of skill, care, and learning possessed by other persons in the same profession; and that as a proximate result of such failure, the patient or his heirs suffered damages. For lack of a specific law geared towards the type of negligence committed by members of the medical profession, such claim for damages is almost always anchored on the alleged violation of Article 2176 of the Civil Code, which states that: ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

In medical negligence cases, also called medical malpractice suits, there exist a physician-patient relationship between the doctor and the victim. But just like any other proceeding for damages, four essential (4) elements i.e., (1) duty; (2) breach; (3) injury; and (4) proximate causation,76 must be established by the plaintiff/s. All the four (4) elements must co-exist in order to find the physician negligent and, thus, liable for damages. When a patient engages the services of a physician, a physician-patient relationship is generated. And in accepting a case, the physician, for all intents and purposes, represents that he has the needed training and skill possessed by physicians and surgeons practicing in the same field; and that he will employ such training, care, and skill in the treatment of the patient.77 Thus, in treating his patient, a physician is under a duty to [the former] to exercise that degree of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases. 78 Stated otherwise, the physician has the duty to use at least the same level of care that any other reasonably competent physician would use to treat the condition under similar circumstances. This standard level of care, skill and diligence is a matter best addressed by expert medical testimony, because the standard of care in a medical malpractice case is a matter peculiarly within the knowledge of experts in the field.79 There is breach of duty of care, skill and diligence, or the improper performance of such duty, by the attending physician when the patient is injured in body or in health [and this] constitutes the actionable malpractice.80 Proof of such breach must likewise rest upon the testimony of an expert witness that the treatment accorded to the patient failed to meet the standard level of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases. Even so, proof of breach of duty on the part of the attending physician is insufficient, for there must be a causal connection between said breach and the resulting injury sustained by the patient. Put in another way, in order that there may be a recovery for an injury, it must be shown that the "injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes";81 that is, the negligence must be theproximate cause of the injury. And the proximate cause of an injury is that cause, which, in the natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.82 Just as with the elements of duty and breach of the same, in order to establish the proximate cause [of the injury] by a preponderance of the evidence in a medical malpractice action, [the patient] must similarly use expert testimony, because the question of whether the alleged professional negligence caused [the patient’s] injury is generally one for specialized expert knowledge beyond the ken of the average layperson; using the specialized knowledge and training of his field, the expert’s role is to present to the [court] a realistic assessment of the likelihood that [the physician’s] alleged negligence caused [the patient’s] injury.83 From the foregoing, it is apparent that medical negligence cases are best proved by opinions of expert witnesses belonging in the same general neighborhood and in the same general line of practice as defendant physician or surgeon. The deference of courts to the expert opinion of qualified physicians [or surgeons] stems from the former’s realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating;84 hence, the indispensability of expert testimonies. In the case at bar, there is no question that a physician-patient relationship developed between Dr. Tuaño and Peter when Peter went to see the doctor on 2 September 1988, seeking a consult for the treatment of his sore eyes. Admittedly, Dr. Tuaño, an ophthalmologist, prescribed Maxitrol when Peter developed and had recurrent EKC. Maxitrol or neomycin/polymyxin B sulfates/dexamethasone ophthalmic ointment is a multiple-dose antiinfective steroid combination in sterile form for topical application.85 It is the drug which petitioners claim to have caused Peter’s glaucoma. However, as correctly pointed out by the Court of Appeals, "[t]he onus probandi was on the patient to establish before the trial court that the physicians ignored standard medical procedure, prescribed and administered medication with recklessness and exhibited an absence of the competence and skills expected of general

practitioners similarly situated."86 Unfortunately, in this case, there was absolute failure on the part of petitioners to present any expert testimony to establish: (1) the standard of care to be implemented by competent physicians in treating the same condition as Peter’s under similar circumstances; (2) that, in his treatment of Peter, Dr. Tuaño failed in his duty to exercise said standard of care that any other competent physician would use in treating the same condition as Peter’s under similar circumstances; and (3) that the injury or damage to Peter’s right eye, i.e., his glaucoma, was the result of his use of Maxitrol, as prescribed by Dr. Tuaño. Petitioners’ failure to prove the first element alone is already fatal to their cause. Petitioners maintain that Dr. Tuaño failed to follow in Peter’s case the required procedure for the prolonged use of Maxitrol. But what is actually the required procedure in situations such as in the case at bar? To be precise, what is the standard operating procedure when ophthalmologists prescribe steroid medications which, admittedly, carry some modicum of risk? Absent a definitive standard of care or diligence required of Dr. Tuaño under the circumstances, we have no means to determine whether he was able to comply with the same in his diagnosis and treatment of Peter. This Court has no yardstick upon which to evaluate or weigh the attendant facts of this case to be able to state with confidence that the acts complained of, indeed, constituted negligence and, thus, should be the subject of pecuniary reparation. Petitioners assert that prior to prescribing Maxitrol, Dr. Tuaño should have determined first whether Peter was a "steroid responder."87 Yet again, petitioners did not present any convincing proof that such determination is actually part of the standard operating procedure which ophthalmologists should unerringly follow prior to prescribing steroid medications. In contrast, Dr. Tuaño was able to clearly explain that what is only required of ophthalmologists, in cases such as Peter’s, is the conduct of standard tests/procedures known as "ocular routine examination," 88 composed of five (5) tests/procedures – specifically, gross examination of the eyes and the surrounding area; taking of the visual acuity of the patient; checking the intraocular pressure of the patient; checking the motility of the eyes; and using ophthalmoscopy on the patient’s eye – and he did all those tests/procedures every time Peter went to see him for follow-up consultation and/or check-up. We cannot but agree with Dr. Tuaño’s assertion that when a doctor sees a patient, he cannot determine immediately whether the latter would react adversely to the use of steroids; all the doctor can do is map out a course of treatment recognized as correct by the standards of the medical profession. It must be remembered that a physician is not an insurer of the good result of treatment. The mere fact that the patient does not get well or that a bad result occurs does not in itself indicate failure to exercise due care. 89 The result is not determinative of the performance [of the physician] and he is not required to be infallible. 90 Moreover, that Dr. Tuaño saw it fit to prescribe Maxitrol to Peter was justified by the fact that the latter was already using the same medication when he first came to see Dr. Tuaño on 2 September 1988 and had exhibited no previous untoward reaction to that particular drug. 91 Also, Dr. Tuaño categorically denied petitioners’ claim that he never monitored the tension of Peter’s eyes while the latter was on Maxitrol. Dr. Tuaño testified that he palpated Peter’s eyes every time the latter came for a check-up as part of the doctor’s ocular routine examination, a fact which petitioners failed to rebut. Dr. Tuaño’s regular conduct of examinations and tests to ascertain the state of Peter’s eyes negate the very basis of petitioners’ complaint for damages. As to whether Dr. Tuaño’s actuations conformed to the standard of care and diligence required in like circumstances, it is presumed to have so conformed in the absence of evidence to the contrary. Even if we are to assume that Dr. Tuaño committed negligent acts in his treatment of Peter’s condition, the causal connection between Dr. Tuaño’s supposed negligence and Peter’s injury still needed to be established. The critical and clinching factor in a medical negligence case is proof of the causal connection between the negligence which the evidence established and the plaintiff’s injuries.92 The plaintiff must plead and prove not only that he has been injured and defendant has been at fault, but also that the defendant’s fault caused the injury. A verdict in a malpractice action cannot be based on speculation or conjecture. Causation must be proven within a reasonable medical probability based upon competent expert testimony.93

The causation between the physician’s negligence and the patient’s injury may only be established by the presentation of proof that Peter’s glaucoma would not have occurred but for Dr. Tuaño’s supposed negligent conduct. Once more, petitioners failed in this regard. Dr. Tuaño does not deny that the use of Maxitrol involves the risk of increasing a patient’s IOP. In fact, this was the reason why he made it a point to palpate Peter’s eyes every time the latter went to see him -- so he could monitor the tension of Peter’s eyes. But to say that said medication conclusively caused Peter’s glaucoma is purely speculative. Peter was diagnosed with open-angle glaucoma. This kind of glaucoma is characterized by an almost complete absence of symptoms and a chronic, insidious course.94 In open-angle glaucoma, halos around lights and blurring of vision do not occur unless there has been a sudden increase in the intraocular vision.95 Visual acuity remains good until late in the course of the disease.96 Hence, Dr. Tuaño claims that Peter’s glaucoma "can only be long standing x x x because of the large C:D97 ratio," and that "[t]he steroids provoked the latest glaucoma to be revealed earlier" was a blessing in disguise "as [Peter] remained asymptomatic prior to steroid application." Who between petitioners and Dr. Tuaño is in a better position to determine and evaluate the necessity of using Maxitrol to cure Peter’s EKC vis-à-vis the attendant risks of using the same? That Dr. Tuaño has the necessary training and skill to practice his chosen field is beyond cavil. Petitioners do not dispute Dr. Tuaño’s qualifications – that he has been a physician for close to a decade and a half at the time Peter first came to see him; that he has had various medical training; that he has authored numerous papers in the field of ophthalmology, here and abroad; that he is a Diplomate of the Philippine Board of Ophthalmology; that he occupies various teaching posts (at the time of the filing of the present complaint, he was the Chair of the Department of Ophthalmology and an Associate Professor at the University of the Philippines-Philippine General Hospital and St. Luke’s Medical Center, respectively); and that he held an assortment of positions in numerous medical organizations like the Philippine Medical Association, Philippine Academy of Ophthalmology, Philippine Board of Ophthalmology, Philippine Society of Ophthalmic Plastic and Reconstructive Surgery, Philippine Journal of Ophthalmology, Association of Philippine Ophthalmology Professors, et al. It must be remembered that when the qualifications of a physician are admitted, as in the instant case, there is an inevitable presumption that in proper cases, he takes the necessary precaution and employs the best of his knowledge and skill in attending to his clients, unless the contrary is sufficiently established. 98 In making the judgment call of treating Peter’s EKC with Maxitrol, Dr. Tuaño took the necessary precaution by palpating Peter’s eyes to monitor their IOP every time the latter went for a check-up, and he employed the best of his knowledge and skill earned from years of training and practice. In contrast, without supporting expert medical opinions, petitioners’ bare assertions of negligence on Dr. Tuaño’s part, which resulted in Peter’s glaucoma, deserve scant credit. Our disposition of the present controversy might have been vastly different had petitioners presented a medical expert to establish their theory respecting Dr. Tuaño’s so-called negligence. In fact, the record of the case reveals that petitioners’ counsel recognized the necessity of presenting such evidence. Petitioners even gave an undertaking to the RTC judge that Dr. Agulto or Dr. Aquino would be presented. Alas, no follow-through on said undertaking was made. 1avv phi1

The plaintiff in a civil case has the burden of proof as he alleges the affirmative of the issue. However, in the course of trial in a civil case, once plaintiff makes out a prima facie case in his favor, the duty or the burden of evidence shifts to defendant to controvert plaintiff’s prima facie case; otherwise, a verdict must be returned in favor of plaintiff.99 The party having the burden of proof must establish his case by a preponderance of evidence.100 The concept of "preponderance of evidence" refers to evidence which is of greater weight or more convincing than that which is offered in opposition to it;101 in the last analysis, it means probability of truth. It is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto.102 Rule 133, Section 1 of the Revised Rules of Court provides the guidelines for determining preponderance of evidence, thus:

In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies the court may consider all the facts and circumstances of the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number. Herein, the burden of proof was clearly upon petitioners, as plaintiffs in the lower court, to establish their case by a preponderance of evidence showing a reasonable connection between Dr. Tuaño’s alleged breach of duty and the damage sustained by Peter’s right eye. This, they did not do. In reality, petitioners’ complaint for damages is merely anchored on a statement in the literature of Maxitrol identifying the risks of its use, and the purported comment of Dr. Agulto – another doctor not presented as witness before the RTC – concerning the prolonged use of Maxitrol for the treatment of EKC. It seems basic that what constitutes proper medical treatment is a medical question that should have been presented to experts. If no standard is established through expert medical witnesses, then courts have no standard by which to gauge the basic issue of breach thereof by the physician or surgeon. The RTC and Court of Appeals, and even this Court, could not be expected to determine on its own what medical technique should have been utilized for a certain disease or injury. Absent expert medical opinion, the courts would be dangerously engaging in speculations. All told, we are hard pressed to find Dr. Tuaño liable for any medical negligence or malpractice where there is no evidence, in the nature of expert testimony, to establish that in treating Peter, Dr. Tuaño failed to exercise reasonable care, diligence and skill generally required in medical practice. Dr. Tuaño’s testimony, that his treatment of Peter conformed in all respects to standard medical practice in this locality, stands unrefuted. Consequently, the RTC and the Court of Appeals correctly held that they had no basis at all to rule that petitioners were deserving of the various damages prayed for in their Complaint. WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The assailed Decision dated 27 September 2006 and Resolution dated 3 July 2007, both of the Court of Appeals in CA-G.R. CV No. 68666, are hereby AFFIRMED. No cost. SO ORDERED.

G.R. No. L-14160

June 30, 1960

PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. ANUNCIACION VDA. DE GOLEZ, defendant-appellee. Assistant Solicitor General Antonio A. Torres and Solicitor Jorge R. Coquia for appellant. Aniceto V. Zezobrado for appellee. REYES, J. B. L., J.: On October 2, 1957, the provincial fiscal of Negros Occidental filed an information in the Court of First Instance of that province charging Anunciacion Vda. de Golez with the crime of homicide through reckless imprudence, as follows:

That on or about the period comprised from December 12, 1956 to December 24, 1956, in the municipality of San Carlos, province of Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the herein accused, without being duly licensed to practice medicine and with reckless negligence and without taking due precaution, did, then and there, wilfully, unlawfully, and feloniosly diagnose, prescribe, and treat one Susana Tam, who had been suffering for sometime with bodily ailment, knowing fully well that she is incompetent and not possessing the necessary technical or scientific knowledge or skill, and as a consequence of such negligence and carelessness and lack of medical skill, said Susana Tam died thereafter.

The accused pleaded not guilty to the information. When the case was called for trial, the assistant fiscal made a manifestation that the accused had also been charged with the crime of illegal practice of medicine before another sala of the same court. In view of this manifestation, the trial court motu proprio dismissed the information for being fatally defective, without prejudice to the filing of the proper information against the same accused. The grounds given for the dismissal were the following: In view of the foregoing manifestation of the Fiscal, the Court finds that the information is fatally defective and, therefore, should be dismissed under Par. (a), Sec. 2 of Rule 113 of the Rules of Court inasmuch as the facts charged do not constitute the offense of homicide thru reckless imprudence because illegal practice of medicine is malicious per se, and when the accused practiced medicine without academical preparation and without a license to do so, then she is per se committing a criminal act for which the criminal intent is presumed. Although the crime of homicide thru reckless imprudence can be committed by a duly licensed physician when in the practice of his profession he fails to exercise due care and diligence from which the criminal act arises, this crime cannot be imputed to a person who has no authority to practice this profession, which act is malicious per se. The crime described in Article 365 of the Revised Penal Code results from the performance of a lawful act which was done without exercising the care and diligence that is required by the circumstances, and not from the performance of an unlawful act which is the subject of the information in this case because a quack doctor who practices medicine does so against the law, and, therefore, his act is necessarily malicious and criminal.

From the above order, the provincial fiscal appealed to this Court, and, through the Solicitor General, urges that the court below erred in dismissing the information for being fatally defective because the facts charged therein allegedly do not constitute the crime of homicide thru reckless imprudence. We agree with appellant that the order of dismissal is erroneous, in that the crime of illegal practice of medicine is a statutory offense wherein criminal intent is taken for granted, so that a person may be convicted thereof irrespective of his intention and

in spite of his having acted in good faith and without malice; i.e., even if he was not motivated by an evil desire to injure or hurt another, but by an honest desire to cure or alleviate the pain of a patient. In fact, as defined by Section 2678 of the Revised Administrative Code (the law then in force), the offense consists in the mere act of practicing medicine in violation of the Medical Law, even if no injury to another, much less death, results from such malpractice. When, therefore, the patient dies, the illegal practitioner should be equally responsible for the death of his patient, an offense independent of and distinct from the illegal practice of medicine. The allegations in the information in this case that the accused acted with reckless negligence in diagnosing, prescribing for, and treating the deceased Susana Tam, knowing that she did not possess the necessary technical knowledge or skill to do so, thus causing her death, sufficiently charge the crime of homicide through reckless imprudence, since ordinary diligence counsels one not to tamper with human life by trying to treat a sick man when he knows that he does not have the special skill, knowledge, and competence to attempt such treatment and cure, and may consequently reasonably foresee harm or injury to the latter, said accused was found guilty and convicted by this Court of physical injuries through imprudence under the old Penal Code (U. S. vs. Feliciano Divino, 12 Phil., 175). However, in view of the error of the lower court in dismissing the information, we cannot sustain this appeal for the reason that it would place the accused in double jeopardy. The present information being valid and sufficient in form and substance to sustain a conviction, the dismissal thereof by the court after the accused had pleaded not guilty to the charge and without his consent constitutes jeopardy as to bar further proceedings upon the case (U. S vs. Yam Tung Way, 21 Phil., 67; People vs. Hernandez, 94 Phil., 49; 49 Off. Gaz. No. 12, 5342; People vs. Ferrer, 100 Phil., 124; 55 Off. Gaz. [4] 620). The failure of the accused to file a brief and raise the question of double jeopardy in this appeal does not mean that section 2, Rule 118, providing that the People can not appeal if the defendant would be placed in double jeopardy would no longer apply (People vs. Bao, 106 Phil., 243; 56 Off. Gaz. [51] 7768). The unfortunate result in this case could have been avoided if the trial court had proceeded more deliberately, without allowing its judgment to be influenced by preconceived notions or undue haste in dispatching cases. The appeal is, therefore, dismissed, with costs de oficio. Paras, C. J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Barrera, and Gutierrez David, G.R. No. 177407

February 9, 2011

RICO ROMMEL ATIENZA, Petitioner, vs. BOARD OF MEDICINE and EDITHA SIOSON, Respondents. DECISION NACHURA, J.: Before us is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Decision1 dated September 22, 2006 of the Court of Appeals (CA) in CA-G.R. SP No. 87755. The CA dismissed the petition for certiorari filed by petitioner Rico Rommel Atienza (Atienza), which, in turn, assailed the Orders2 issued by public respondent Board of Medicine (BOM) in Administrative Case No. 1882. The facts, fairly summarized by the appellate court, follow. Due to her lumbar pains, private respondent Editha Sioson went to Rizal Medical Center (RMC) for check-up on February 4, 1995. Sometime in 1999, due to the same problem, she was referred to Dr. Pedro Lantin III of RMC who, accordingly, ordered several diagnostic laboratory tests. The tests revealed that her right kidney is normal. It was ascertained, however, that her left kidney is non-functioning and non-visualizing. Thus, she underwent kidney operation in September, 1999. On February 18, 2000, private respondent’s husband, Romeo Sioson (as complainant), filed a complaint for gross negligence and/or incompetence before the [BOM] against the doctors who allegedly participated in the fateful kidney operation, namely: Dr. Judd dela Vega, Dr. Pedro Lantin, III, Dr. Gerardo Antonio Florendo and petitioner Rico Rommel Atienza. It was alleged in the complaint that the gross negligence and/or incompetence committed by the said doctors, including petitioner, consists of the removal of private respondent’s fully functional right kidney, instead of the left non-functioning and nonvisualizing kidney. The complaint was heard by the [BOM]. After complainant Romeo Sioson presented his evidence, private respondent Editha Sioson, also named as complainant there, filed her formal offer of documentary evidence. Attached to the formal offer of documentary evidence are her Exhibits "A" to "D," which she offered for the purpose of proving that her kidneys were both in their proper anatomical locations at the time she was operated. She described her exhibits, as follows: "EXHIBIT ‘A’ – the certified photocopy of the X-ray Request form dated December 12, 1996, which is also marked as Annex ‘2’ as it was actually originally the Annex to x x x Dr. Pedro Lantin, III’s counter affidavit filed with the City Prosecutor of Pasig City in connection with the criminal complaint filed by

[Romeo Sioson] with the said office, on which are handwritten entries which are the interpretation of the results of the ultrasound examination. Incidentally, this exhibit happens to be the same as or identical to the certified photocopy of the document marked as Annex ‘2’ to the Counter-Affidavit dated March 15, 2000, filed by x x x Dr. Pedro Lantin, III, on May 4, 2000, with this Honorable Board in answer to this complaint; "EXHIBIT ‘B’ – the certified photo copy of the X-ray request form dated January 30, 1997, which is also marked as Annex ‘3’ as it was actually likewise originally an Annex to x x x Dr. Pedro Lantin, III’s counter-affidavit filed with the Office of the City Prosecutor of Pasig City in connection with the criminal complaint filed by the herein complainant with the said office, on which are handwritten entries which are the interpretation of the results of the examination. Incidentally, this exhibit happens to be also the same as or identical to the certified photo copy of the document marked as Annex ‘3’ which is likewise dated January 30, 1997, which is appended as such Annex ‘3’ to the counter-affidavit dated March 15, 2000, filed by x x x Dr. Pedro Lantin, III on May 4, 2000, with this Honorable Board in answer to this complaint. "EXHIBIT ‘C’ – the certified photocopy of the X-ray request form dated March 16, 1996, which is also marked as Annex ‘4,’ on which are handwritten entries which are the interpretation of the results of the examination. "EXHIBIT ‘D’ – the certified photocopy of the X-ray request form dated May 20, 1999, which is also marked as Annex ‘16,’ on which are handwritten entries which are the interpretation of the results of the examination. Incidentally, this exhibit appears to be the draft of the typewritten final report of the same examination which is the document appended as Annexes ‘4’ and ‘1’ respectively to the counter-affidavits filed by x x x Dr. Judd dela Vega and Dr. Pedro Lantin, III in answer to the complaint. In the case of Dr. dela Vega however, the document which is marked as Annex ‘4’ is not a certified photocopy, while in the case of Dr. Lantin, the document marked as Annex ‘1’ is a certified photocopy. Both documents are of the same date and typewritten contents are the same as that which are written on Exhibit ‘D.’

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

"The Formal Offer of Documentary Evidence of [Romeo Sioson], the Comments/Objections of [herein petitioner] Atienza, [therein respondents] De la Vega and Lantin, and the Manifestation of [therein] respondent Florendo are hereby ADMITTED by the [BOM] for whatever purpose they may serve in the resolution of this case. "Let the hearing be set on July 19, 2004 all at 1:30 p.m. for the reception of the evidence of the respondents. "SO ORDERED." Petitioner moved for reconsideration of the abovementioned Order basically on the same reasons stated in his comment/objections to the formal offer of exhibits. The [BOM] denied the motion for reconsideration of petitioner in its Order dated October 8, 2004. It concluded that it should first admit the evidence being offered so that it can determine its probative value when it decides the case. According to the Board, it can determine whether the evidence is relevant or not if it will take a look at it through the process of admission. x x x.3 Disagreeing with the BOM, and as previously adverted to, Atienza filed a petition for certiorari with the CA, assailing the BOM’s Orders which admitted Editha Sioson’s (Editha’s) Formal Offer of Documentary Evidence. The CA dismissed the petition for certiorari for lack of merit. Hence, this recourse positing the following issues: I. PROCEDURAL ISSUE: WHETHER PETITIONER ATIENZA AVAILED OF THE PROPER REMEDY WHEN HE FILED THE PETITION FOR CERTIORARI DATED 06 DECEMBER 2004 WITH THE COURT OF APPEALS UNDER RULE 65 OF THE RULES OF COURT TO ASSAIL THE ORDERS DATED 26 MAY 2004 AND 08 OCTOBER 2004 OF RESPONDENT BOARD. II. SUBSTANTIVE ISSUE: WHETHER THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR AND DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORDANCE WITH LAW AND THE APPLICABLE DECISIONS OF THE HONORABLE COURT WHEN IT UPHELD THE ADMISSION OF INCOMPETENT AND INADMISSIBLE EVIDENCE BY RESPONDENT BOARD, WHICH CAN RESULT IN THE DEPRIVATION OF PROFESSIONAL LICENSE – A PROPERTY RIGHT OR ONE’S LIVELIHOOD.4

We find no reason to depart from the ruling of the CA. Petitioner is correct when he asserts that a petition for certiorari is the proper remedy to assail the Orders of the BOM, admitting in evidence the exhibits of Editha. As the assailed Orders were interlocutory, these cannot be the subject of an appeal separate from the judgment that completely or finally disposes of the case. 5 At that stage, where there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, the only and remaining remedy left to petitioner is a petition for certiorari under Rule 65 of the Rules of Court on the ground of grave abuse of discretion amounting to lack or excess of jurisdiction. However, the writ of certiorari will not issue absent a showing that the BOM has acted without or in excess of jurisdiction or with grave abuse of discretion. Embedded in the CA’s finding that the BOM did not exceed its jurisdiction or act in grave abuse of discretion is the issue of whether the exhibits of Editha contained in her Formal Offer of Documentary Evidence are inadmissible. Petitioner argues that the exhibits formally offered in evidence by Editha: (1) violate the best evidence rule; (2) have not been properly identified and authenticated; (3) are completely hearsay; and (4) are incompetent to prove their purpose. Thus, petitioner contends that the exhibits are inadmissible evidence. We disagree. To begin with, it is well-settled that the rules of evidence are not strictly applied in proceedings before administrative bodies such as the BOM.6 Although trial courts are enjoined to observe strict enforcement of the rules of evidence,7in connection with evidence which may appear to be of doubtful relevancy, incompetency, or admissibility, we have held that: [I]t is the safest policy to be liberal, not rejecting them on doubtful or technical grounds, but admitting them unless plainly irrelevant, immaterial or incompetent, for the reason that their rejection places them beyond the consideration of the court, if they are thereafter found relevant or competent; on the other hand, their admission, if they turn out later to be irrelevant or incompetent, can easily be remedied by completely discarding them or ignoring them.8 From the foregoing, we emphasize the distinction between the admissibility of evidence and the probative weight to be accorded the same pieces of evidence. PNOC Shipping and Transport Corporation v. Court of Appeals9 teaches: Admissibility of evidence refers to the question of whether or not the circumstance (or evidence) is to be considered at all. On the other hand, the probative value of evidence refers to the question of whether or not it proves an issue.

Second, petitioner’s insistence that the admission of Editha’s exhibits violated his substantive rights leading to the loss of his medical license is misplaced. Petitioner mistakenly relies on Section 20, Article I of the Professional Regulation Commission Rules of Procedure, which reads: Section 20. Administrative investigation shall be conducted in accordance with these Rules. The Rules of Court shall only apply in these proceedings by analogy or on a suppletory character and whenever practicable and convenient. Technical errors in the admission of evidence which do not prejudice the substantive rights of either party shall not vitiate the proceedings.10 As pointed out by the appellate court, the admission of the exhibits did not prejudice the substantive rights of petitioner because, at any rate, the fact sought to be proved thereby, that the two kidneys of Editha were in their proper anatomical locations at the time she was operated on, is presumed under Section 3, Rule 131 of the Rules of Court: Sec. 3. Disputable presumptions. – The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: xxxx (y) That things have happened according to the ordinary course of nature and the ordinary habits of life. The exhibits are certified photocopies of X-ray Request Forms dated December 12, 1996, January 30, 1997, March 16, 1996, and May 20, 1999, filed in connection with Editha’s medical case. The documents contain handwritten entries interpreting the results of the examination. These exhibits were actually attached as annexes to Dr. Pedro Lantin III’s counter affidavit filed with the Office of the City Prosecutor of Pasig City, which was investigating the criminal complaint for negligence filed by Editha against the doctors of Rizal Medical Center (RMC) who handled her surgical procedure. To lay the predicate for her case, Editha offered the exhibits in evidence to prove that her "kidneys were both in their proper anatomical locations at the time" of her operation. The fact sought to be established by the admission of Editha’s exhibits, that her "kidneys were both in their proper anatomical locations at the time" of her operation, need not be proved as it is covered by mandatory judicial notice.11 Unquestionably, the rules of evidence are merely the means for ascertaining the truth respecting a matter of fact.12Thus, they likewise provide for some facts which are established and need not be proved, such as those covered by judicial notice, both mandatory and discretionary.13 Laws of nature involving the physical sciences, specifically biology,14 include the structural make-up and composition of living things

such as human beings. In this case, we may take judicial notice that Editha’s kidneys before, and at the time of, her operation, as with most human beings, were in their proper anatomical locations. Third, contrary to the assertion of petitioner, the best evidence rule is inapplicable. Section 3 of Rule 130 provides: 1aw phil

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

The subject of inquiry in this case is whether respondent doctors before the BOM are liable for gross negligence in removing the right functioning kidney of Editha instead of the left non-functioning kidney, not the proper anatomical locations of Editha’s kidneys. As previously discussed, the proper anatomical locations of Editha’s kidneys at the time of her operation at the RMC may be established not only through the exhibits offered in evidence. Finally, these exhibits do not constitute hearsay evidence of the anatomical locations of Editha’s kidneys. To further drive home the point, the anatomical positions, whether left or right, of Editha’s kidneys, and the removal of one or both, may still be established through a belated ultrasound or x-ray of her abdominal area. In fact, the introduction of secondary evidence, such as copies of the exhibits, is allowed.15 Witness Dr. Nancy Aquino testified that the Records Office of RMC no longer had the originals of the exhibits "because [it] transferred from the previous building, x x x to the new building."16 Ultimately, since the originals cannot be produced, the BOM properly admitted Editha’s formal offer of evidence and,

thereafter, the BOM shall determine the probative value thereof when it decides the case. WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CAG.R. SP No. 87755 is AFFIRMED. Costs against petitioner. SO ORDERED. ANTONIO EDUARDO B. NACHURA Associate Justice Acting Chairperson WE CONCUR: DIOSDADO M. PERALTA Associate Justice MARIANO C. DEL CASTILLO* Associate Justice

MARTIN S. VILLARAMA, JR.** Associate Justice

JOSE CATRAL MENDOZA Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division. ANTONIO EDUARDO B. NACHURA Associate Justice Acting Chairperson, Second Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Acting Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division. RENATO C. CORONA Chief Justice

SECOND DIVISION G.R. No. 158996

November 14, 2008

SPOUSES FREDELICTO FLORES (deceased) and FELICISIMA FLORES, petitioners, vs. SPOUSES DOMINADOR PINEDA and VIRGINIA SACLOLO, and FLORENCIO, CANDIDA, MARTA, GODOFREDO, BALTAZAR and LUCENA, all surnamed PINEDA, as heirs of the deceased TERESITA S. PINEDA, and UNITED DOCTORS MEDICAL CENTER, INC., respondents. DECISION BRION, J.: This petition involves a medical negligence case that was elevated to this Court through an appeal bycertiorari under Rule 45 of the Rules of Court. The petition assails the Decision1 of the Court of Appeals (CA) in CA G.R. CV No. 63234, which affirmed with modification the Decision2 of the Regional Trial Court (RTC) of Nueva Ecija, Branch 37 in Civil Case No. SD-1233. The dispositive portion of the assailed CA decision states: WHEREFORE, premises considered, the assailed Decision of the Regional Trial Court of Baloc, Sto. Domingo, Nueva Ecija, Branch 37 is hereby AFFIRMED but with modifications as follows: 1) Ordering defendant-appellants Dr. and Dra. Fredelicto A. Flores and the United Doctors Medical Center, Inc. to jointly and severally pay the plaintiff-appellees - heirs of Teresita Pineda, namely, Spouses Dominador Pineda and Virginia Saclolo and Florencio, Candida, Marta, Godofredo, Baltazar and Lucena, all surnamed Pineda, the sum of P400,000.00 by way of moral damages; 2) Ordering the above-named defendant-appellants to jointly and severally pay the above-named plaintiff-appellees the sum of P100,000.00 by way of exemplary damages; 3) Ordering the above-named defendant-appellants to jointly and severally pay the above-named plaintiff-appellees the sum of P36,000.00 by way of actual and compensatory damages; and 4) Deleting the award of attorney's fees and costs of suit. SO ORDERED.

While this case essentially involves questions of facts, we opted for the requested review in light of questions we have on the findings of negligence below, on the awarded damages and costs, and on the importance of this type of ruling on medical practice.3 BACKGROUND FACTS Teresita Pineda (Teresita) was a 51-year old unmarried woman living in Sto. Domingo, Nueva Ecija. She consulted on April 17, 1987 her townmate, Dr. Fredelicto Flores, regarding her medical condition. She complained of general body weakness, loss of appetite, frequent urination and thirst, and on-and-off vaginal bleeding. Dr. Fredelicto initially interviewed the patient and asked for the history of her monthly period to analyze the probable cause of the vaginal bleeding. He advised her to return the following week or to go to the United Doctors Medical Center (UDMC) in Quezon City for a general check-up. As for her other symptoms, he suspected that Teresita might be suffering from diabetes and told her to continue her medications.4 Teresita did not return the next week as advised. However, when her condition persisted, she went to further consult Dr. Flores at his UDMC clinic on April 28, 1987, travelling for at least two hours from Nueva Ecija to Quezon City with her sister, Lucena Pineda. They arrived at UDMC at around 11:15 a.m.. Lucena later testified that her sister was then so weak that she had to lie down on the couch of the clinic while they waited for the doctor. When Dr. Fredelicto arrived, he did a routine check-up and ordered Teresita's admission to the hospital. In the admission slip, he directed the hospital staff to prepare the patient for an "on call" D&C5 operation to be performed by his wife, Dr. Felicisima Flores (Dr. Felicisima). Teresita was brought to her hospital room at around 12 noon; the hospital staff forthwith took her blood and urine samples for the laboratory tests6 which Dr. Fredelicto ordered. At 2:40 p.m. of that same day, Teresita was taken to the operating room. It was only then that she met Dr. Felicisima, an obstetrician and gynecologist. The two doctors - Dr. Felicisima and Dr. Fredelicto, conferred on the patient's medical condition, while the resident physician and the medical intern gave Dr. Felicisima their own briefings. She also interviewed and conducted an internal vaginal examination of the patient which lasted for about 15 minutes. Dr. Felicisima thereafter called up the laboratory for the results of the tests. At that time, only the results for the blood sugar (BS), uric acid determination, cholesterol determination, and complete blood count (CBC) were available. Teresita's BS count was 10.67mmol/l7 and her CBC was 109g/l.8

Based on these preparations, Dr. Felicisima proceeded with the D&C operation with Dr. Fredelicto administering the general anesthesia. The D&C operation lasted for about 10 to 15 minutes. By 3:40 p.m., Teresita was wheeled back to her room. A day after the operation (or on April 29, 1987), Teresita was subjected to an ultrasound examination as a confirmatory procedure. The results showed that she had an enlarged uterus and myoma uteri.9Dr. Felicisima, however, advised Teresita that she could spend her recovery period at home. Still feeling weak, Teresita opted for hospital confinement. Teresita's complete laboratory examination results came only on that day (April 29, 1987). Teresita's urinalysis showed a three plus sign (+++) indicating that the sugar in her urine was very high. She was then placed under the care of Dr. Amado Jorge, an internist. By April 30, 1987, Teresita's condition had worsened. She experienced difficulty in breathing and was rushed to the intensive care unit. Further tests confirmed that she was suffering from Diabetes Mellitus Type II.10 Insulin was administered on the patient, but the medication might have arrived too late. Due to complications induced by diabetes, Teresita died in the morning of May 6, 1987.11 Believing that Teresita's death resulted from the negligent handling of her medical needs, her family (respondents) instituted an action for damages against Dr. Fredelicto Flores and Dr. Felicisima Flores (collectively referred to as the petitioner spouses) before the RTC of Nueva Ecija. The RTC ruled in favor of Teresita's family and awarded actual, moral, and exemplary damages, plus attorney's fees and costs.12 The CA affirmed the judgment, but modified the amount of damages awarded and deleted the award for attorney's fees and costs of suit.13 Through this petition for review on certiorari, the petitioner spouses -Dr. Fredelicto (now deceased) and Dr. Felicisima Flores - allege that the RTC and CA committed a reversible error in finding them liable through negligence for the death of Teresita Pineda. ASSIGNMENT OF ERRORS The petitioner spouses contend that they exercised due care and prudence in the performance of their duties as medical professionals. They had attended

to the patient to the best of their abilities and undertook the management of her case based on her complaint of an on-and-off vaginal bleeding. In addition, they claim that nothing on record shows that the death of Teresita could have been averted had they employed means other than what they had adopted in the ministration of the patient. THE COURT'S RULING We do not find the petition meritorious. The respondents' claim for damages is predicated on their allegation that the decision of the petitioner spouses to proceed with the D&C operation, notwithstanding Teresita's condition and the laboratory test results, amounted to negligence. On the other hand, the petitioner spouses contend that a D&C operation is the proper and accepted procedure to address vaginal bleeding the medical problem presented to them. Given that the patient died after the D&C, the core issue is whether the decision to proceed with the D&C operation was an honest mistake of judgment or one amounting to negligence. Elements of a Medical Negligence Case A medical negligence case is a type of claim to redress a wrong committed by a medical professional, that has caused bodily harm to or the death of a patient. There are four elements involved in a medical negligence case, namely: duty, breach, injury, and proximate causation.14 Duty refers to the standard of behavior which imposes restrictions on one's conduct.15 The standard in turn refers to the amount of competence associated with the proper discharge of the profession. A physician is expected to use at least the same level of care that any other reasonably competent doctor would use under the same circumstances. Breach of duty occurs when the physician fails to comply with these professional standards. If injury results to the patient as a result of this breach, the physician is answerable for negligence.16 As in any civil action, the burden to prove the existence of the necessary elements rests with the plaintiff.17 To successfully pursue a claim, the plaintiff must prove by preponderance of evidence that,one, the physician 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 two, the failure or action caused injury to the patient.18 Expert

testimony is therefore essential since the factual issue of whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is generally a matter of expert opinion.19 Standard of Care and Breach of Duty D&C is the classic gynecologic procedure for the evaluation and possible therapeutic treatment for abnormal vaginal bleeding.20 That this is the recognized procedure is confirmed by Drs. Salvador Nieto (Dr. Nieto) and Joselito Mercado (Dr. Mercado), the expert witnesses presented by the respondents: DR. NIETO: [W]hat I know among obstetricians, if there is bleeding, they perform what we call D&C for diagnostic purposes. xxx xxx xxx Q: So are you trying to tell the Court that D&C can be a diagnostic treatment? A: Yes, sir. Any doctor knows this.21 Dr. Mercado, however, objected with respect to the time the D&C operation should have been conducted in Teresita's case. He opined that given the blood sugar level of Teresita, her diabetic condition should have been addressed first: Q: Why do you consider the time of performance of the D&C not appropriate? A: Because I have read the record and I have seen the urinalysis, [there is] spillage in the urine, and blood sugar was 10.67 Q: What is the significance of the spillage in the urine? A: It is a sign that the blood sugar is very high. Q: Does it indicate sickness? A: 80 to 95% it means diabetes mellitus. The blood sugar was 10.67. xxx xxx xxx

COURT: In other words, the operation conducted on the patient, your opinion, that it is inappropriate? A: The timing of [when] the D&C [was] done, based on the record, in my personal opinion, that D&C should be postponed a day or two.22 The petitioner spouses countered that, at the time of the operation, there was nothing to indicate that Teresita was afflicted with diabetes: a blood sugar level of 10.67mmol/l did not necessarily mean that she was a diabetic considering that this was random blood sugar;23 there were other factors that might have caused Teresita's blood sugar to rise such as the taking of blood samples during lunchtime and while patient was being given intravenous dextrose.24 Furthermore, they claim that their principal concern was to determine the cause of and to stop the vaginal bleeding. The petitioner spouses' contentions, in our view, miss several points. First, as early as April 17, 1987, Teresita was already suspected to be suffering from diabetes.25 This suspicion again arose rightbefore the D&C operation on April 28, 1987 when the laboratory result revealed Teresita's increased blood sugar level.26 Unfortunately, the petitioner spouses did not wait for the full medical laboratory results before proceeding with the D&C, a fact that was never considered in the courts below.Second, the petitioner spouses were duly advised that the patient was experiencing general body weakness, loss of appetite, frequent urination, and thirst - all of which are classic symptoms of diabetes.27 When a patient exhibits symptoms typical of a particular disease, these symptoms should, at the very least, alert the physician of the possibility that the patient may be afflicted with the suspected disease: Expert testimony for the plaintiff showed that] tests should have been ordered immediately on admission to the hospital in view of the symptoms presented, and that failure to recognize the existence of diabetes constitutes negligence.28

Third, the petitioner spouses cannot claim that their principal concern was the vaginal bleeding and should not therefore be held accountable for complications coming from other sources. This is a very narrow and selfserving view that even reflects on their competence. Taken together, we find that reasonable prudence would have shown that diabetes and its complications were foreseeable harm that should have been taken into consideration by the petitioner spouses. If a patient suffers from some disability that increases the magnitude of risk to him, that disability must be taken into account so long as it is or should have

been known to the physician.29 And when the patient is exposed to an increased risk, it is incumbent upon the physician to take commensurate and adequate precautions. Taking into account Teresita's high blood sugar,30 Dr. Mendoza opined that the attending physician should have postponed the D&C operation in order to conduct a confirmatory test to make a conclusive diagnosis of diabetes and to refer the case to an internist or diabetologist. This was corroborated by Dr. Delfin Tan (Dr. Tan), an obstetrician and gynecologist, who stated that the patient's diabetes should have been managed by an internist prior to, during, and after the operation.31 Apart from bleeding as a complication of pregnancy, vaginal bleeding is only rarely so heavy and life-threatening that urgent first-aid measures are required.32 Indeed, the expert witnesses declared that a D&C operation on a hyperglycemic patient may be justified only when it is an emergency case when there is profuse vaginal bleeding. In this case, we choose not to rely on the assertions of the petitioner spouses that there was profuse bleeding, not only because the statements were self-serving, but also because the petitioner spouses were inconsistent in their testimonies. Dr. Fredelicto testified earlier that on April 28, he personally saw the bleeding,33 but later on said that he did not see it and relied only on Teresita's statement that she was bleeding.34 He went on to state that he scheduled the D&C operation without conducting any physical examination on the patient. The likely story is that although Teresita experienced vaginal bleeding on April 28, it was not sufficiently profuse to necessitate an immediate emergency D&C operation. Dr. Tan35 and Dr. Mendoza36 both testified that the medical records of Teresita failed to indicate that there was profuse vaginal bleeding. The claim that there was profuse vaginal bleeding although this was not reflected in the medical records strikes us as odd since the main complaint is vaginal bleeding. A medical record is the only document that maintains a longterm transcription of patient care and as such, its maintenance is considered a priority in hospital practice. Optimal record-keeping includes all patient interactions. The records should always be clear, objective, and up-todate.37 Thus, a medical record that does not indicate profuse medical bleeding speaks loudly and clearly of what it does not contain. That the D&C operation was conducted principally to diagnose the cause of the vaginal bleeding further leads us to conclude that it was merely an elective procedure, not an emergency case. In an elective procedure, the physician must conduct a thorough pre-operative evaluation of the patient in order to

adequately prepare her for the operation and minimize possible risks and complications. The internist is responsible for generating a comprehensive evaluation of all medical problems during the pre-operative evaluation.38 The aim of pre-operative evaluation is not to screen broadly for undiagnosed disease, but rather to identify and quantify comorbidity that may impact on the operative outcome. This evaluation is driven by findings on history and physical examination suggestive of organ system dysfunction…The goal is to uncover problem areas that may require further investigation or be amenable to preoperative optimization. If the preoperative evaluation uncovers significant comorbidity or evidence of poor control of an underlying disease process, consultation with an internist or medical specialist may be required to facilitate the work-up and direct management. In this process, communication between the surgeons and the consultants is essential to define realistic goals for this optimization process and to expedite surgical management.39 [Emphasis supplied.] Significantly, the evidence strongly suggests that the pre-operative evaluation was less than complete as the laboratory results were fully reported only on the day following the D&C operation. Dr. Felicisima only secured a telephone report of the preliminary laboratory result prior to the D&C. This preliminary report did not include the 3+ status of sugar in the patient's urine40 - a result highly confirmatory of diabetes. Because the D&C was merely an elective procedure, the patient's uncontrolled hyperglycemia presented a far greater risk than her on-and-off vaginal bleeding. The presence of hyperglycemia in a surgical patient is associated with poor clinical outcomes, and aggressive glycemic control positively impacts on morbidity and mortality.41 Elective surgery in people with uncontrolled diabetes should preferably be scheduled after acceptable glycemic control has been achieved.42 According to Dr. Mercado, this is done by administering insulin on the patient.43 The management approach in this kind of patients always includes insulin therapy in combination with dextrose and potassium infusion. Insulin xxx promotes glucose uptake by the muscle and fat cells while decreasing glucose production by the liver xxx. The net effect is to lower blood glucose levels.44

The prudent move is to address the patient's hyperglycemic state immediately and promptly before any other procedure is undertaken. In this case, there was no evidence that insulin was administered on Teresita prior to or during the D&C operation. Insulin was only administered two days after the operation. As Dr. Tan testified, the patient's hyperglycemic condition should have been managed not only before and during the operation, but also immediately after. Despite the possibility that Teresita was afflicted with diabetes, the possibility was casually ignored even in the post-operative evaluation of the patient; the concern, as the petitioner spouses expressly admitted, was limited to the complaint of vaginal bleeding. Interestingly, while the ultrasound test confirmed that Teresita had a myoma in her uterus, she was advised that she could be discharged a day after the operation and that her recovery could take place at home. This advice implied that a day after the operation and even after the complete laboratory results were submitted, the petitioner spouses still did not recognize any post-operative concern that would require the monitoring of Teresita's condition in the hospital. The above facts, point only to one conclusion - that the petitioner spouses failed, as medical professionals, to comply with their duty to observe the standard of care to be given to hyperglycemic/diabetic patients undergoing surgery. Whether this breach of duty was the proximate cause of Teresita's death is a matter we shall next determine. Injury and Causation As previously mentioned, the critical and clinching factor in a medical negligence case is proof of thecausal connection between the negligence which the evidence established and the plaintiff's injuries;45 the plaintiff must plead and prove not only that he had been injured and defendant has been at fault, but also that the defendant's fault caused the injury. A verdict in a malpractice action cannot be based on speculation or conjecture. Causation must be proven within a reasonable medical probability based upon competent expert testimony.46 The respondents contend that unnecessarily subjecting Teresita to a D&C operation without adequately preparing her, aggravated her hyperglycemic state and caused her untimely demise. The death certificate of Teresita lists down the following causes of death:

Immediate cause:

Cardiorespiratory arrest

Antecedent cause:

Septicemic shock,ketoacidocis

Underlying cause:

Diabetes Mellitus II

Other significant conditions contributing to death:

Renal Failure - Acute47

Stress, whether physical or emotional, is a factor that can aggravate diabetes; a D&C operation is a form of physical stress. Dr. Mendoza explained how surgical stress can aggravate the patient's hyperglycemia: when stress occurs, the diabetic's body, especially the autonomic system, reacts by secreting hormones which are counter-regulatory; she can have prolonged hyperglycemia which, if unchecked, could lead to death.48 Medical literature further explains that if the blood sugar has become very high, the patient becomes comatose (diabetic coma). When this happens over several days, the body uses its own fat to produce energy, and the result is high levels of waste products (called ketones) in the blood and urine (called diabetic ketoacidiosis, a medical emergency with a significant mortality).49 This was apparently what happened in Teresita's case; in fact, after she had been referred to the internist Dr. Jorge, laboratory test showed that her blood sugar level shot up to 14.0mmol/l, way above the normal blood sugar range. Thus, between the D&C and death was the diabetic complication that could have been prevented with the observance of standard medical precautions. The D&C operation and Teresita's death due to aggravated diabetic condition is therefore sufficiently established. The trial court and the appellate court pinned the liability for Teresita's death on both the petitioner spouses and this Court finds no reason to rule otherwise. However, we clarify that Dr. Fredelicto's negligence is not solely the act of ordering an "on call" D&C operation when he was mainly ananaesthesiologist who had made a very cursory examination of the patient's vaginal bleeding complaint. Rather, it was his failure from the very start to identify and confirm, despite the patient's complaints and his own suspicions, that diabetes was a risk factor that should be guarded against, and his participation in the imprudent decision to proceed with the D&C operation despite his early suspicion and the confirmatory early laboratory results. The latter point comes out clearly from the following exchange during the trial: Q: On what aspect did you and your wife consult [with] each other?

A: We discussed on the finding of the laboratory [results] because the hemoglobin was below normal, the blood sugar was elevated, so that we have to evaluate these laboratory results - what it means. Q: So it was you and your wife who made the evaluation when it was phoned in? A: Yes, sir. Q: Did your wife, before performing D&C ask your opinion whether or not she can proceed? A: Yes, anyway, she asked me whether we can do D&C based on my experience. Q: And your answer was in the positive notwithstanding the elevation of blood sugar? A: Yes, sir, it was both our disposition to do the D&C. [Emphasis supplied.]50 If Dr. Fredelicto believed himself to be incompetent to treat the diabetes, not being an internist or a diabetologist (for which reason he referred Teresita to Dr. Jorge),51 he should have likewise refrained from making a decision to proceed with the D&C operation since he was niether an obstetrician nor a gynecologist. These findings lead us to the conclusion that the decision to proceed with the D&C operation, notwithstanding Teresita's hyperglycemia and without adequately preparing her for the procedure, was contrary to the standards observed by the medical profession. Deviation from this standard amounted to a breach of duty which resulted in the patient's death. Due to this negligent conduct, liability must attach to the petitioner spouses. Liability of the Hospital In the proceedings below, UDMC was the spouses Flores' co-defendant. The RTC found the hospital jointly and severally liable with the petitioner spouses, which decision the CA affirmed. In a Resolution dated August 28, 2006, this Court however denied UDMC's petition for review on certiorari. Since UDMC's appeal has been denied and they are not parties to this case, we find it

unnecessary to delve on the matter. Consequently, the RTC's decision, as affirmed by the CA, stands. Award of Damages Both the trial and the appellate court awarded actual damages as compensation for the pecuniary loss the respondents suffered. The loss was presented in terms of the hospital bills and expenses the respondents incurred on account of Teresita's confinement and death. The settled rule is that a plaintiff is entitled to be compensated for proven pecuniary loss.52 This proof the respondents successfully presented. Thus, we affirm the award of actual damages of P36,000.00 representing the hospital expenses the patient incurred. In addition to the award for actual damages, the respondent heirs of Teresita are likewise entitled toP50,000.00 as death indemnity pursuant to Article 2206 of the Civil Code, which states that "the amount of damages for death caused by a xxx quasi-delict shall be at least three thousand pesos,53even though there may have been mitigating circumstances xxx." This is a question of law that the CA missed in its decision and which we now decide in the respondents' favor. The same article allows the recovery of moral damages in case of death caused by a quasi-delict and enumerates the spouse, legitimate or illegitimate ascendants or descendants as the persons entitled thereto. Moral damages are designed to compensate the claimant for the injury suffered, that is, for the mental anguish, serious anxiety, wounded feelings which the respondents herein must have surely felt with the unexpected loss of their daughter. We affirm the appellate court's award ofP400,000.00 by way of moral damages to the respondents. We similarly affirm the grant of exemplary damages. Exemplary damages are imposed by way of example or correction for the public good.54 Because of the petitioner spouses' negligence in subjecting Teresita to an operation without first recognizing and addressing her diabetic condition, the appellate court awarded exemplary damages to the respondents in the amount of P100,000.00. Public policy requires such imposition to suppress the wanton acts of an offender.55 We therefore affirm the CA's award as an example to the medical profession and to stress that the public good requires stricter measures to avoid the repetition of the type of medical malpractice that happened in this case.

With the award of exemplary damages, the grant of attorney's fees is legally in order.56 We therefore reverse the CA decision deleting these awards, and grant the respondents the amount ofP100,000.00 as attorney's fees taking into consideration the legal route this case has taken. WHEREFORE, we AFFIRM the Decision of the CA dated June 20, 2003 in CA G.R. CV No. 63234 finding petitioner spouses liable for negligent medical practice. We likewise AFFIRM the awards of actual and compensatory damages of P36,000.00; moral damages of P400,000.00; and exemplary damages of P100,000.00. We MODIFY the CA Decision by additionally granting an award of P50,000.00 as death indemnity and by reversing the deletion of the award of attorney's fees and costs and restoring the award ofP100,000.00 as attorney's fees. Costs of litigation are adjudged against petitioner spouses. To summarize, the following awards shall be paid to the family of the late Teresita Pineda: 1. The sum of P36,000.00 by way of actual and compensatory damages; 2. The sum of P50,000.00 by way of death indemnity; 3. The sum of P400,000.00 by way of moral damages; 4. The sum of P100,000.00 by way of exemplary damages; 5. The sum of P100,000.00 by way of attorney's fees; and 6. Costs. SO ORDERED. G.R. No. 192123

March 10, 2014

DR. FERNANDO P. SOLIDUM, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION BERSAMIN, J.:

This appeal is taken by a physician-anesthesiologist who has been pronounced guilty of reckless imprudence resulting in serious physical injuries by the Regional Trial Court (RTC) and the Court of Appeals (CA). He had been part of the team of anesthesiologists during the surgical pull-through operation conducted on a threeyear old patient born with an imperforate anus.1 The antecedents are as follows: Gerald Albert Gercayo (Gerald) was born on June 2, 19922 with an imperforate anus. Two days after his birth, Gerald underwent colostomy, a surgical procedure to bring one end of the large intestine out through the abdominal wall,3 enabling him to excrete through a colostomy bag attached to the side of his body.4 On May 17, 1995, Gerald, then three years old, was admitted at the Ospital ng Maynila for a pull-through operation.5Dr. Leandro Resurreccion headed the surgical team, and was assisted by Dr. Joselito Luceño, Dr. Donatella Valeña and Dr. Joseph Tibio. The anesthesiologists included Dr. Marichu Abella, Dr. Arnel Razon and petitioner Dr. Fernando Solidum (Dr. Solidum).6 During the operation, Gerald experienced bradycardia,7 and went into a coma.8His coma lasted for two weeks,9 but he regained consciousness only after a month.10 He could no longer see, hear or move.11 Agitated by her son’s helpless and unexpected condition, Ma. Luz Gercayo (Luz) lodged a complaint for reckless imprudence resulting in serious physical injuries with the City Prosecutor’s Office of Manila against the attending physicians. 12 Upon a finding of probable cause, the City Prosecutor’s Office filed an information solely against Dr. Solidum,13alleging: – That on or about May 17, 1995, in the City of Manila, Philippines, the said accused, being then an anesthesiologist at the Ospital ng Maynila, Malate, this City, and as such was tasked to administer the anesthesia on three-year old baby boy GERALD ALBERT GERCAYO, represented by his mother, MA. LUZ GERCAYO, the former having been born with an imperforate anus [no anal opening] and was to undergo an operation for anal opening [pull through operation], did then and there willfully, unlawfully and feloniously fail and neglect to use the care and diligence as the best of his judgment would dictate under said circumstance, by failing to monitor and regulate properly the levels of anesthesia administered to said GERALD ALBERT GERCAYO and using 100% halothane and other anesthetic medications, causing as a consequence of his said carelessness and negligence, said GERALD ALBERT GERCAYO suffered a cardiac arrest and consequently a defect called hypoxic encephalopathy meaning insufficient oxygen supply in the brain, thereby rendering said GERALD ALBERT GERCAYO incapable of moving his body, seeing, speaking or hearing, to his damage and prejudice.

Contrary to law.14 The case was initially filed in the Metropolitan Trial Court of Manila, but was transferred to the RTC pursuant to Section 5 of Republic Act No. 8369 (The Family Courts Act of 1997),15 where it was docketed as Criminal Case No. 01-190889. Judgment of the RTC On July 19, 2004, the RTC rendered its judgment finding Dr. Solidum guilty beyond reasonable doubt of reckless imprudence resulting to serious physical injuries,16 decreeing: WHEREFORE, premises considered, the Court finds accused DR. FERNANDO P. SOLIDUM GUILTY beyond reasonable doubt as principal of the crime charged and is hereby sentenced to suffer the indeterminate penalty of TWO (2) MONTHS and ONE (1) DAY of arresto mayor as minimum to ONE (1) YEAR, ONE (1) MONTH and TEN (10) DAYS of prision correccional as maximum and to indemnify, jointly and severally with the Ospital ng Maynila, Dr. Anita So and Dr. Marichu Abella, private complainant Luz Gercayo, the amount of P500,000.00 as moral damages and P100,000.00 as exemplary damages and to pay the costs. Accordingly, the bond posted by the accused for his provisional liberty is hereby CANCELLED. SO ORDERED.17 Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider their solidary liability,18 the RTC excluded them from solidary liability as to the damages, modifying its decision as follows: WHEREFORE, premises considered, the Court finds accused Dr. Fernando Solidum, guilty beyond reasonable doubt as principal of the crime charged and is hereby sentenced to suffer the indeterminate penalty of two (2) months and one (1) day of arresto mayor as minimum to one (1) year, one (1) month and ten (10) days of prision correccional as maximum and to indemnify jointly and severally with Ospital ng Maynila, private complainant Luz Gercayo the amount of P500,000.00 as moral damages and P100,000 as exemplary damages and to pay the costs. Accordingly, the bond posted by the accused for his provisional liberty is hereby cancelled.19 Decision of the CA On January 20, 2010, the CA affirmed the conviction of Dr. Solidum, 20 pertinently stating and ruling:

The case appears to be a textbook example of res ipsa loquitur. xxxx x x x [P]rior to the operation, the child was evaluated and found fit to undergo a major operation. As noted by the OSG, the accused himself testified that preoperation tests were conducted to ensure that the child could withstand the surgery. Except for his imperforate anus, the child was healthy. The tests and other procedures failed to reveal that he was suffering from any known ailment or disability that could turn into a significant risk. There was not a hint that the nature of the operation itself was a causative factor in the events that finally led to hypoxia. In short, the lower court has been left with no reasonable hypothesis except to attribute the accident to a failure in the proper administration of anesthesia, the gravamen of the charge in this case. The High Court elucidates in Ramos vs. Court of Appeals 321 SCRA 584 – In cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him. The lower court has found that such a nexus exists between the act complained of and the injury sustained, and in line with the hornbook rules on evidence, we will afford the factual findings of a trial court the respect they deserve in the absence of a showing of arbitrariness or disregard of material facts that might affect the disposition of the case. People v. Paraiso 349 SCRA 335. The res ipsa loquitur test has been known to be applied in criminal cases. Although it creates a presumption of negligence, it need not offend due process, as long as the accused is afforded the opportunity to go forward with his own evidence and prove that he has no criminal intent. It is in this light not inconsistent with the constitutional presumption of innocence of an accused.

IN VIEW OF THE FOREGOING, the modified decision of the lower court is affirmed. SO ORDERED.21 Dr. Solidum filed a motion for reconsideration, but the CA denied his motion on May 7, 2010.22 Hence, this appeal. Issues Dr. Solidum avers that: I. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE LOWER COURT IN UPHOLDING THE PETITIONER’S CONVICTION FOR THE CRIME CHARGED BASED ON THE TRIAL COURT’S OPINION, AND NOT ON THE BASIS OF THE FACTS ESTABLISHED DURING THE TRIAL. ALSO, THERE IS A CLEAR MISAPPREHENSION OF FACTS WHICH IF CORRECTED, WILL RESULT TO THE ACQUITTAL OF THE PETITIONER. FURTHER, THE HONORABLE COURT ERRED IN AFFIRMING THE SAID DECISION OF THE LOWER COURT, AS THIS BREACHES THE CRIMINAL LAW PRINCIPLE THAT THE PROSECUTION MUST PROVE THE ALLEGATIONS OF THE INFORMATION BEYOND REASONABLE DOUBT, AND NOT ON THE BASIS OF ITS PRESUMPTIVE CONCLUSION. II. THE HONORABLE COURT OF APPEALS ERRED IN APPLYING THE PRINCIPLE OF RES IPSA LOQUITOR (sic) WHEN THE DEFENSE WAS ABLE TO PROVE THAT THERE IS NO NEGLIGENCE ON THE PART OF THE PETITIONER, AND NO OVERDOSING IN THE APPLICATION OF THE ANESTHETIC AGENT BECAUSE THERE WAS NO 100% HALOTHANE ADMINISTERED TO THE CHILD, BUT ONLY ONE (1%) PERCENT AND THE APPLICATION THEREOF, WAS REGULATED BY AN ANESTHESIA MACHINE. THUS, THE APPLICATION OF THE PRINCIPLE OF RES IPSA LOQUITOR (sic) CONTRADICTED THE ESTABLISHED FACTS AND THE LAW APPLICABLE IN THE CASE. III. THE AWARD OF MORAL DAMAGES AND EXEMPLARY DAMAGES IS NOT JUSTIFIED THERE BEING NO NEGLIGENCE ON THE PART OF THE PETITIONER. ASSUMING THAT THE CHILD IS ENTITLED TO FINANCIAL CONSIDERATION, IT SHOULD BE ONLY AS A FINANCIAL ASSISTANCE,

BECAUSE THERE WAS NO NEGLIGENCE, AND NO OVERDOSING OF ANESTHETIC AGENT AND AS SUCH, THE AWARD IS SO EXCESSIVE, AND NO FACTUAL AND LEGAL BASIS.23

To simplify, the following are the issues for resolution, namely: (a) whether or not the doctrine of res ipsa loquitur was applicable herein; and (b) whether or not Dr. Solidum was liable for criminal negligence. Ruling The appeal is meritorious. Applicability of the Doctrine of Res Ipsa Loquitur Res ipsa loquitur is literally translated as "the thing or the transaction speaks for itself." The doctrine res ipsa loquitur means that "where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care." 24 It is simply "a recognition of the postulate that, as a matter of common knowledge and experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the instrumentality causing the injury in the absence of some explanation by the defendant who is charged with negligence. It is grounded in the superior logic of ordinary human experience and on the basis of such experience or common knowledge, negligence may be deduced from the mere occurrence of the accident itself. Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge."25 Jarcia, Jr. v. People26 has underscored that the doctrine is not a rule of substantive law, but merely a mode of proof or a mere procedural convenience. The doctrine, when applicable to the facts and circumstances of a given case, is not meant to and does not dispense with the requirement of proof of culpable negligence against the party charged. It merely determines and regulates what shall be prima facie evidence thereof, and helps the plaintiff in proving a breach of the duty. The doctrine can be invoked when and only when, under the circumstances involved, direct evidence is absent and not readily available.27 The applicability of the doctrine of res ipsa loquitur in medical negligence cases was significantly and exhaustively explained in Ramos v. Court of Appeals,28 where the Court said –

Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when the circumstances attendant upon the harm are themselves of such a character as to justify an inference of negligence as the cause of that harm. The application of res ipsa loquitur in medical negligence cases presents a question of law since it is a judicial function to determine whether a certain set of circumstances does, as a matter of law, permit a given inference. Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission 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, injuries sustained on a healthy part of the body which was not under, or in the area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth while a patient’s jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient plaintiff was under the influence of anesthetic, during or following an operation for appendicitis, among others. Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not automatically apply to all cases of medical

negligence as to mechanically shift the burden of proof to the defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific treatment. The physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result. Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that the desired result of an operation or treatment was not accomplished. The real question, therefore, is whether or not in the process of the operation any extraordinary incident or unusual event outside of the routine performance occurred which is beyond the regular scope of customary professional activity in such operations, which, if unexplained would themselves reasonably speak to the average man as the negligent cause or causes of the untoward consequence. If there was such extraneous intervention, the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to explain the matter, by evidence of exculpation, if he could. In order to allow resort to the doctrine, therefore, the following essential requisites must first be satisfied, to wit: (1) the accident was of a kind that does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency that caused the injury was under the exclusive control of the person charged; and (3) the injury suffered must not have been due to any voluntary action or contribution of the person injured.29 The Court considers the application here of the doctrine of res ipsa loquitur inappropriate. Although it should be conceded without difficulty that the second and third elements were present, considering that the anesthetic agent and the instruments were exclusively within the control of Dr. Solidum, and that the patient, being then unconscious during the operation, could not have been guilty of contributory negligence, the first element was undeniably wanting. Luz delivered Gerald to the care, custody and control of his physicians for a pull-through operation. Except for the imperforate anus, Gerald was then of sound body and mind at the time of his submission to the physicians. Yet, he experienced bradycardia during the operation, causing loss of his senses and rendering him immobile. Hypoxia, or the insufficiency of oxygen supply to the brain that caused the slowing of the heart rate, scientifically termed as bradycardia, would not ordinarily occur in the process of a pull-through operation, or during the administration of anesthesia to the patient, but

such fact alone did not prove that the negligence of any of his attending physicians, including the anesthesiologists, had caused the injury. In fact, the anesthesiologists attending to him had sensed in the course of the operation that the lack of oxygen could have been triggered by the vago-vagal reflex, prompting them to administer atropine to the patient.30 This conclusion is not unprecedented. It was similarly reached in Swanson v. Brigham,31 relevant portions of the decision therein being as follows: On January 7, 1973, Dr. Brigham admitted 15-year-old Randall Swanson to a hospital for the treatment of infectious mononucleosis. The patient's symptoms had included a swollen throat and some breathing difficulty. Early in the morning of January 9 the patient was restless, and at 1:30 a.m. Dr. Brigham examined the patient. His inspection of the patient's air passage revealed that it was in satisfactory condition. At 4:15 a.m. Dr. Brigham received a telephone call from the hospital, advising him that the patient was having respiratory difficulty. The doctor ordered that oxygen be administered and he prepared to leave for the hospital. Ten minutes later, 4:25 a.m., the hospital called a second time to advise the doctor that the patient was not responding. The doctor ordered that a medicine be administered, and he departed for the hospital. When he arrived, the physician who had been on call at the hospital had begun attempts to revive the patient. Dr. Brigham joined him in the effort, but the patient died. The doctor who performed the autopsy concluded that the patient died between 4:25 a.m. and 4:30 a.m. of asphyxia, as a result of a sudden, acute closing of the air passage. He also found that the air passage had been adequate to maintain life up to 2 or 3 minutes prior to death. He did not know what caused the air passage to suddenly close. xxxx It is a rare occurrence when someone admitted to a hospital for the treatment of infectious mononucleosis dies of asphyxiation. But that is not sufficient to invoke res ipsa loquitur. The fact that the injury rarely occurs does not in itself prove that the injury was probably caused by someone's negligence. Mason v. Ellsworth, 3 Wn. App. 298, 474 P.2d 909 (1970). Nor is a bad result by itself enough to warrant the application of the doctrine. Nelson v. Murphy, 42 Wn.2d 737, 258 P.2d 472 (1953). See 2 S. Speiser, The Negligence Case – Res Ipsa Loquitur § 24:10 (1972). The evidence presented is insufficient to establish the first element necessary for application of res ipsa loquitur doctrine. The acute closing of the patient’s air passage and his resultant asphyxiation took place over a very short period of time. Under these circumstances it would not be reasonable to infer that the physician was negligent. There was no palpably negligent act. The common experience of mankind does not suggest that death would not be expected without negligence.

And there is no expert medical testimony to create an inference that negligence caused the injury. Negligence of Dr. Solidum In view of the inapplicability of the doctrine of res ipsa loquitur, the Court next determines whether the CA correctly affirmed the conviction of Dr. Solidum for criminal negligence. Negligence is defined as the failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance that the circumstances justly demand, whereby such other person suffers injury.32Reckless imprudence, on the other hand, consists of voluntarily doing or failing to do, without malice, an act from which material damage results by reason of an inexcusable lack of precaution on the part of the person performing or failing to perform such act.33 Dr. Solidum’s conviction by the RTC was primarily based on his failure to monitor and properly regulate the level of anesthetic agent administered on Gerald by overdosing at 100% halothane. In affirming the conviction, the CA observed: On the witness stand, Dr. Vertido made a significant turnaround. He affirmed the findings and conclusions in his report except for an observation which, to all intents and purposes, has become the storm center of this dispute. He wanted to correct one piece of information regarding the dosage of the anesthetic agent administered to the child. He declared that he made a mistake in reporting a 100% halothane and said that based on the records it should have been 100% oxygen. The records he was relying on, as he explains, are the following: (a) the anesthesia record – A portion of the chart in the record was marked as Exhibit 1-A and 1-B to indicate the administration at intervals of the anesthetic agent. (b) the clinical abstract – A portion of this record that reads as follows was marked Exhibit 3A. 3B – Approximately 1 hour and 45 minutes through the operation, patient was noted to have bradycardia (CR = 70) and ATSO4 0.2 mg was immediately administered. However, the bradycardia persisted, the inhalational agent was shut off, and the patient was ventilated with 100% oxygen and another dose of ATSO4 0.2 mg was given. However, the patient did not respond until no cardiac rate can be auscultated and the surgeons were immediately told to stop the operation. The patient was put on a supine position and CPR was initiated. Patient was given 1 amp of epinephrine initially while continuously doing cardiac massage – still with no cardiac rate appreciated; another ampule of epinephrine was given and after 45 secs, patient’s vital signs returned to normal. The entire resuscitation lasted approximately 3-5 mins. The

surgeons were then told to proceed to the closure and the child’s vital signs throughout and until the end of surgery were: BP = 110/70; CR = 116/min and RR = 20-22 cycles/min (on assisted ventilation).

Dr. Vertido points to the crucial passage in the clinical abstract that the patient was ventilated with 100% oxygen and another dose of ATSO4 when the bradycardia persisted, but for one reason or another, he read it as 100% halothane. He was asked to read the anesthesia record on the percentage of the dosage indicated, but he could only sheepishly note I can’t understand the number. There are no clues in the clinical abstract on the quantity of the anesthetic agent used. It only contains the information that the anesthetic plan was to put the patient under general anesthesia using a nonrebreathing system with halothane as the sole anesthetic agent and that 1 hour and 45 minutes after the operation began, bradycardia occurred after which the inhalational agent was shut off and the patient administered with 100% oxygen. It would be apparent that the 100% oxygen that Dr. Vertido said should be read in lieu of 100% halothane was the pure oxygen introduced after something went amiss in the operation and the halothane itself was reduced or shut off. The key question remains – what was the quantity of halothane used before bradycardia set in? The implication of Dr. Vertido’s admission is that there was no overdose of the anesthetic agent, and the accused Dr. Solidum stakes his liberty and reputation on this conclusion. He made the assurance that he gave his patient the utmost medical care, never leaving the operating room except for a few minutes to answer the call of nature but leaving behind the other members of his team Drs. Abella and Razon to monitor the operation. He insisted that he administered only a point 1% not 100% halothane, receiving corroboration from Dr. Abella whose initial MA in the record should be enough to show that she assisted in the operation and was therefore conversant of the things that happened. She revealed that they were using a machine that closely monitored the concentration of the agent during the operation. But most compelling is Dr. Solidum’s interpretation of the anesthesia record itself, as he takes the bull by the horns, so to speak. In his affidavit, he says, reading from the record, that the quantity of halothane used in the operation is one percent (1%) delivered at time intervals of 15 minutes. He studiedly mentions – the concentration of halothane as reflected in the anesthesia record (Annex D of the complaintaffidavit) is only one percent (1%) – The numbers indicated in 15 minute increments for halothane is an indication that only 1% halothane is being delivered to the patient Gerard Gercayo for his entire operation; The amount of halothane delivered in this case which is only one percent cannot be summated because halothane is constantly being rapidly eliminated by the body during the entire operation. xxxx

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

such breach and the resulting death of his patient. In Chan Lugay v. St Luke's Hospital, Inc., where the attending physician was absolved of liability for the death of the complainant’s wife and newborn baby, this Court held that: "In order that there may be a recovery for an injury, however, it must be shown that the ‘injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes.’ In other words, the negligence must be the proximate cause of the injury. For, ‘negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of.’ And ‘the proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.’" An action upon medical negligence – whether criminal, civil or administrative – calls for the plaintiff to prove by competent evidence each of the following four elements, namely: (a) the duty owed by the physician to the patient, as created by the physician-patient relationship, to act in accordance with the specific norms or standards established by his profession; (b) the breach of the duty by the physician’s failing to act in accordance with the applicable standard of care; (3) the causation, i.e., there must be a reasonably close and causal connection between the negligent act or omission and the resulting injury; and (4) the damages suffered by the patient.36 In the medical profession, specific norms or standards to protect the patient against unreasonable risk, commonly referred to as standards of care, set the duty of the physician to act in respect of the patient. Unfortunately, no clear definition of the duty of a particular physician in a particular case exists. Because most medical malpractice cases are highly technical, witnesses with special medical qualifications must provide guidance by giving the knowledge necessary to render a fair and just verdict. As a result, the standard of medical care of a prudent physician must be determined from expert testimony in most cases; and in the case of a specialist (like an anesthesiologist), the standard of care by which the specialist is judged is the care and skill commonly possessed and exercised by similar specialists under similar circumstances. The specialty standard of care may be higher than that required of the general practitioner.37 The standard of care is an objective standard by which the conduct of a physician sued for negligence or malpractice may be measured, and it does not depend, therefore, on any individual physician’s own knowledge either. In attempting to fix a standard by which a court may determine whether the physician has properly performed the requisite duty toward the patient, expert medical testimony from both plaintiff and defense experts is required. The judge, as the trier of fact, ultimately

determines the standard of care, after listening to the testimony of all medical experts.38 Here, the Prosecution presented no witnesses with special medical qualifications in anesthesia to provide guidance to the trial court on what standard of care was applicable. It would consequently be truly difficult, if not impossible, to determine whether the first three elements of a negligence and malpractice action were attendant. Although the Prosecution presented Dr. Benigno Sulit, Jr., an anesthesiologist himself who served as the Chairman of the Committee on Ethics and Malpractice of the Philippine Society of Anesthesiologists that investigated the complaint against Dr. Solidum, his testimony mainly focused on how his Committee had conducted the investigation.39 Even then, the report of his Committee was favorable to Dr. Solidum,40 to wit: Presented for review by this committee is the case of a 3 year old male who underwent a pull-thru operation and was administered general anesthesia by a team of anesthesia residents. The patient, at the time when the surgeons was manipulating the recto-sigmoid and pulling it down in preparation for the anastomosis, had bradycardia. The anesthesiologists, sensing that the cause thereof was the triggering of the vago-vagal reflex, administered atropine to block it but despite the administration of the drug in two doses, cardiac arrest ensued. As the records show, prompt resuscitative measures were administered and spontaneous cardiac function re-established in less than five (5) minutes and that oxygen was continuously being administered throughout, unfortunately, as later become manifest, patient suffered permanent irreversible brain damage. In view of the actuations of the anaesthesiologists and the administration of anaesthesia, the committee find that the same were all in accordance with the universally accepted standards of medical care and there is no evidence of any fault or negligence on the part of the anaesthesiologists. Dr. Antonio Vertido, a Senior Medico-Legal Officer of the National Bureau of Investigation, was also presented as a Prosecution witness, but his testimony concentrated on the results of the physical examination he had conducted on Gerald, as borne out by the following portions of his direct examination, to wit: FISCAL CABARON Doctor, what do you mean by General Anesthetic Agent? WITNESS General Anesthetic Agent is a substance used in the conduction of Anesthesia and in this case, halothane was used as a sole anesthetic agent. xxxx

Q Now under paragraph two of page 1 of your report you mentioned that after one hour and 45 minutes after the operation, the patient experienced a bradycardia or slowing of heart rate, now as a doctor, would you be able to tell this Honorable Court as to what cause of the slowing of heart rate as to Gerald Gercayo? WITNESS Well honestly sir, I cannot give you the reason why there was a bradycardia of time because is some reason one way or another that might caused bradycardia. FISCAL CABARON What could be the possible reason? A Well bradycardia can be caused by anesthetic agent itself and that is a possibility, we’re talking about possibility here. Q What other possibility do you have in mind, doctor? A Well, because it was an operation, anything can happen within that situation. FISCAL CABARON Now, this representation would like to ask you about the slowing of heart rate, now what is the immediate cause of the slowing of the heart rate of a person? WITNESS Well, one of the more practical reason why there is slowing of the heart rate is when you do a vagal reflex in the neck wherein the vagal receptors are located at the lateral part of the neck, when you press that, you produce the slowing of the heart rate that produce bradycardia. Q I am pro[p]ounding to you another question doctor, what about the deficiency in the supply of oxygen by the patient, would that also cause the slowing of the heart rate? A Well that is a possibility sir, I mean not as slowing of the heart rate, if there is a hypoxia or there is a low oxygen level in the blood, the normal thing for the heart is to pump or to do not a bradycardia but a … to counter act the Hypoxia that is being experienced by the patient (sic). xxxx Q Now, you made mention also doctor that the use of general anesthesia using 100% halothane and other anesthetic medications probably were contributory to the production of hypoxia. A Yes, sir in general sir.41

On cross-examination, Dr. Vertido expounded more specifically on his interpretation of the anesthesia record and the factors that could have caused Gerald to experience bradycardia, viz: ATTY. COMIA I noticed in, may I see your report Doctor, page 3, will you kindly read to this Honorable court your last paragraph and if you will affirm that as if it is correct? A "The use of General Anesthesia, that is using 100% Halothane probably will be contributory to the production of Hypoxia and - - - -" ATTY COMIA And do you affirm the figure you mentioned in this Court Doctor? WITNESS Based on the records, I know the - - Q 100%? A 100% based on the records. Q I will show you doctor a clinical record. I am a lawyer I am not a doctor but will you kindly look at this and tell me where is 100%, the word "one hundred" or 1-0-0, will you kindly look at this Doctor, this Xerox copy if you can show to this Honorable Court and even to this representation the word "one hundred" or 1-0-0 and then call me. xxxx ATTY. COMIA Doctor tell this Honorable Court where is that 100, 1-0-0 and if there is, you just call me and even the attention of the Presiding Judge of this Court. Okay, you read one by one. WITNESS Well, are you only asking 100%, sir? ATTY. COMIA I’m asking you, just answer my question, did you see there 100% and 100 figures, tell me, yes or no? WITNESS I’m trying to look at the 100%, there is no 100% there sir. ATTY. COMIA Okay, that was good, so you Honor please, may we request also temporarily, because this is just a xerox copy presented by the fiscal, that the percentage here that the Halothane administered by Dr. Solidum to the patient is 1% only so may we request that this portion, temporarily your Honor, we are marking this anesthesia record as our Exhibit 1 and then this 1% Halothane also be bracketed and the same be marked as our Exhibit "1-A".

xxxx ATTY. COMIA Doctor, my attention was called also when you said that there are so many factors that contributed to Hypoxia is that correct? WITNESS Yes, sir. Q I remember doctor, according to you there are so many factors that contributed to what you call hypoxia and according to you, when this Gerald suffered hypoxia, there are other factors that might lead to this Hypoxia at the time of this operation is that correct? WITNESS The possibility is there, sir. Q And according to you, it might also be the result of such other, some or it might be due to operations being conducted by the doctor at the time when the operation is being done might also contribute to that hypoxia is that correct? A That is a possibility also. xxxx ATTY. COMIA How will you classify now the operation conducted to this Gerald, Doctor? WITNESS Well, that is a major operation sir. Q In other words, when you say major operation conducted to this Gerald, there is a possibility that this Gerald might [be] exposed to some risk is that correct? A That is a possibility sir. Q And which according to you that Gerald suffered hypoxia is that correct? A Yes, sir. Q And that is one of the risk of that major operation is that correct? A That is the risk sir.42 At the continuation of his cross-examination, Dr. Vertido maintained that Gerald’s operation for his imperforate anus, considered a major operation, had exposed him to the risk of suffering the same condition.43 He then corrected his earlier finding that 100% halothane had been administered on Gerald by saying that it should be 100% oxygen.44

Dr. Solidum was criminally charged for "failing to monitor and regulate properly the levels of anesthesia administered to said Gerald Albert Gercayo and using 100% halothane and other anesthetic medications."45However, the foregoing circumstances, taken together, did not prove beyond reasonable doubt that Dr. Solidum had been recklessly imprudent in administering the anesthetic agent to Gerald. Indeed, Dr. Vertido’s findings did not preclude the probability that other factors related to Gerald’s major operation, which could or could not necessarily be attributed to the administration of the anesthesia, had caused the hypoxia and had then led Gerald to experience bradycardia. Dr. Vertido revealingly concluded in his report, instead, that "although the anesthesiologist followed the normal routine and precautionary procedures, still hypoxia and its corresponding side effects did occur."46 The existence of the probability about other factors causing the hypoxia has engendered in the mind of the Court a reasonable doubt as to Dr. Solidum’s guilt, and moves us to acquit him of the crime of reckless imprudence resulting to serious physical injuries. "A reasonable doubt of guilt," according to United States v. Youthsey:47 x x x is a doubt growing reasonably out of evidence or the lack of it. It is not a captious doubt; not a doubt engendered merely by sympathy for the unfortunate position of the defendant, or a dislike to accept the responsibility of convicting a fellow man. If, having weighed the evidence on both sides, you reach the conclusion that the defendant is guilty, to that degree of certainty as would lead you to act on the faith of it in the most important and crucial affairs of your life, you may properly convict him. Proof beyond reasonable doubt is not proof to a mathematical demonstration. It is not proof beyond the possibility of mistake. We have to clarify that the acquittal of Dr. Solidum would not immediately exempt him from civil liability. But we cannot now find and declare him civilly liable because the circumstances that have been established here do not present the factual and legal bases for validly doing so. His acquittal did not derive only from reasonable doubt. There was really no firm and competent showing how the injury to Gerard had been caused. That meant that the manner of administration of the anesthesia by Dr. Solidum was not necessarily the cause of the hypoxia that caused the bradycardia experienced by Gerard. Consequently, to adjudge Dr. Solidum civilly liable would be to speculate on the cause of the hypoxia. We are not allowed to do so, for civil liability must not rest on speculation but on competent evidence. 1âwphi1

Liability of Ospital ng Maynila Although the result now reached has resolved the issue of civil liability, we have to address the unusual decree of the RTC, as affirmed by the CA, of expressly holding Ospital ng Maynila civilly liable jointly and severally with Dr. Solidum. The decree was flawed in logic and in law.

In criminal prosecutions, the civil action for the recovery of civil liability that is deemed instituted with the criminal action refers only to that arising from the offense charged.48 It is puzzling, therefore, how the RTC and the CA could have adjudged Ospital ng Maynila jointly and severally liable with Dr. Solidum for the damages despite the obvious fact that Ospital ng Maynila, being an artificial entity, had not been charged along with Dr. Solidum. The lower courts thereby acted capriciously and whimsically, which rendered their judgment against Ospital ng Maynila void as the product of grave abuse of discretion amounting to lack of jurisdiction. Not surprisingly, the flawed decree raises other material concerns that the RTC and the CA overlooked. We deem it important, then, to express the following observations for the instruction of the Bench and Bar. For one, Ospital ng Maynila was not at all a party in the proceedings. Hence, its fundamental right to be heard was not respected from the outset. The R TC and the CA should have been alert to this fundamental defect. Verily, no person can be prejudiced by a ruling rendered in an action or proceeding in which he was not made a party. Such a rule would enforce the constitutional guarantee of due process of law. Moreover, Ospital ng Maynila could be held civilly liable only when subsidiary liability would be properly enforceable pursuant to Article 103 of the Revised Penal Code. But the subsidiary liability seems far-fetched here. The conditions for subsidiary liability to attach to Ospital ng Maynila should first be complied with. Firstly, pursuant to Article 103 of the Revised Penal Code, Ospital ng Maynila must be shown to be a corporation "engaged in any kind of industry." The term industry means any department or branch of art, occupation or business, especially one that employs labor and capital, and is engaged in industry.49 However, Ospital ng Maynila, being a public hospital, was not engaged in industry conducted for profit but purely in charitable and humanitarian work.50 Secondly, assuming that Ospital ng Maynila was engaged in industry for profit, Dr. Solidum must be shown to be an employee of Ospital ng Maynila acting in the discharge of his duties during the operation on Gerald. Yet, he definitely was not such employee but a consultant of the hospital. And, thirdly, assuming that civil liability was adjudged against Dr. Solidum as an employee (which did not happen here), the execution against him was unsatisfied due to his being insolvent. WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES AND SETS ASIDE the decision promulgated on January 20, 2010; ACQUITS Dr. Fernando P. Solidum of the crime of reckless imprudence resulting to serious physical injuries; and MAKES no pronouncement on costs of suit. SO ORDERED.

LUCAS P. BERSAMIN Associate Justice WE CONCUR: MARIA LOURDES P. A. SERENO G.R. No. 167366

September 26, 2012

DR. PEDRO DENNIS CERENO, and DR. SANTOS ZAFE, Petitioners, vs. COURT OF APPEALS, SPOUSES DIOGENES S. OLAVERE and FE R. SERRANO, Respondents. DECISION PEREZ, J.: Before the Court is a Petition for Review on Certiorari 1 under Rule 45 of the Rules of Court seeking the annulment and setting aside of the 21 February 2005 decision2 of the Court of Appeals (CA) in CA-G.R. CV No. 65800. In the assailed decision, the CA affirmed in toto the decision of the Regional Trial Court (R TC), Branch 22, Nag a City finding herein petitioners Dr. Pedro Dennis Cereno (Dr. Cereno) and Dr. Santos Zafe (Dr. Zafe) liable for damages. Culled from the records are the following antecedent facts: At about 9:15 in the evening of 16 September 1995, Raymond S. Olavere (Raymond), a victim of a stabbing incident, was rushed to the emergency room of the Bicol Regional Medical Center (BRMC). There, Raymond was attended to by Nurse Arlene Balares (Nurse Balares) and Dr. Ruel Levy Realuyo (Dr. Realuyo) — the emergency room resident physician. Subsequently, the parents of Raymond—the spouses Deogenes Olavere (Deogenes) and Fe R. Serrano—arrived at the BRMC. They were accompanied by one Andrew Olavere, the uncle of Raymond. After extending initial medical treatment to Raymond, Dr. Realuyo recommended that the patient undergo "emergency exploratory laparotomy." Dr. Realuyo then requested the parents of Raymond to procure 500 cc of type "O" blood needed for the operation. Complying with the request, Deogenes and Andrew Olavere went to the Philippine National Red Cross to secure the required blood. At 10:30 P.M., Raymond was wheeled inside the operating room. During that time, the hospital surgeons, Drs. Zafe and Cereno, were busy operating on gunshot victim

Charles Maluluy-on. Assisting them in the said operation was Dr. Rosalina Tatad (Dr. Tatad), who was the only senior anesthesiologist on duty at BRMC that night. Dr. Tatad also happened to be the head of Anesthesiology Department of the BRMC. Just before the operation on Maluluy-on was finished, another emergency case involving Lilia Aguila, a woman who was giving birth to triplets, was brought to the operating room. At 10:59 P.M., the operation on Charles Maluluy-on was finished. By that time, however, Dr. Tatad was already working with the obstetricians who will perform surgery on Lilia Aguila. There being no other available anesthesiologist to assist them, Drs. Zafe and Cereno decided to defer the operation on Raymond. Drs. Zafe and Cereno, in the meantime, proceeded to examine Raymond and they found that the latter’s blood pressure was normal and "nothing in him was significant."3 Dr. Cereno reported that based on the xray result he interpreted, the fluid inside the thoracic cavity of Raymond was minimal at around 200-300 cc. At 11:15 P.M., Deogenes and Andrew Olavere returned to the BRMC with a bag containing the requested 500 cc type "O" blood. They handed over the bag of blood to Dr. Realuyo. After Dr. Tatad finished her work with the Lilia Aguila operation, petitioners immediately started their operation on Raymond at around 12:15 A.M. of 17 September 1995. Upon opening of Raymond’s thoracic cavity, they found that 3,200 cc of blood was stocked therein. The blood was evacuated and petitioners found a puncture at the inferior pole of the left lung. In his testimony, Dr. Cereno stated that considering the loss of blood suffered by Raymond, he did not immediately transfuse blood because he had to control the bleeders first.4 Blood was finally transfused on Raymond at 1:40 A.M. At 1:45 A.M., while the operation was on-going, Raymond suffered a cardiac arrest. The operation ended at 1:50 A.M. and Raymond was pronounced dead at 2:30 A.M. Raymond’s death certificate5 indicated that the immediate cause of death was "hypovolemic shock" or the cessation of the functions of the organs of the body due to loss of blood.6 Claiming that there was negligence on the part of those who attended to their son, the parents of Raymond, on 25 October 1995, filed before the RTC, Branch 22, Naga City a complaint for damages7 against Nurse Balares, Dr. Realuyo and attending surgeons Dr. Cereno and Dr. Zafe.

During trial, the parents of Raymond testified on their own behalf. They also presented the testimonies of Andrew Olavere and one Loira Oira, the aunt of Raymond. On the other hand, Dr. Cereno, Dr. Realuyo, Nurse Balares and Security Guard Diego Reposo testified for the defense. On rebuttal, the parents of Raymond presented Dr. Tatad, among others. On 15 October 1999, the trial court rendered a decision8 the dispositive portion of which reads: WHEREFORE, premises considered, this Court hereby renders judgment: 1. Dismissing the case against Dr. Ruel Levy Realuyo and Arlene Balares for lack of merit; 2. Ordering defendants Dr. Santos Zafe and Dr. Dennis Cereno to pay the heirs of Raymond Olavere, jointly and severally the following amounts: 1. P 50,000.00 for the death of the victim; 2. P 150,000.00 as moral damages; 3. P 100,000.00 as exemplary damages; 4. P 30,000.00 for attorney’s fees; and 5. Cost of suit.9 x x x x.

The trial court found petitioners negligent in not immediately conducting surgery on Raymond. It noted that petitioners have already finished operating on Charles Maluluy-on as early as 10:30 in the evening, and yet they only started the operation on Raymond at around 12:15 early morning of the following day. The trial court held that had the surgery been performed promptly, Raymond would not have lost so much blood and, therefore, could have been saved.10 The trial court also held that the non-availability of Dr. Tatad after the operation on Maluluy-on was not a sufficient excuse for the petitioners to not immediately operate on Raymond. It called attention to the testimony of Dr. Tatad herself, which disclosed the possibility of calling a standby anesthesiologist in that situation. The trial court opined that the petitioners could have just requested for the standby anesthesiologist from Dr. Tatad, but they did not. Lastly, the trial court faulted petitioners for the delay in the transfusion of blood on Raymond.

On appeal, the CA in a decision dated 21 February 2005 affirmed in toto the judgment rendered by the RTC finding herein petitioners guilty of gross negligence in the performance of their duties and awarding damages to private respondents. Hence, this petition for review on certiorari under Rule 45 of the Rules of Court assailing the CA decision on the following grounds: 1. THAT THE CA ERRED IN RULING THAT PETITIONERS WERE GROSSLY NEGLIGENT IN THE PERFORMANCE OF THEIR DUTIES; 2. THAT THE CA ERRED IN NOT CONSIDERING THE BICOL REGIONAL MEDICAL CENTER AS AN INDISPENSABLE PARTY AND SUBSIDIARILY LIABLE SHOULD PETITIONERS BE FOUND LIABLE FOR DAMAGES; and 3. THAT THE CA ERRED IN NOT FINDING THE AWARD OF MORAL AND EXEMPLARY DAMAGES AS WELL AS ATTORNEY’S FEES EXORBITANT OR EXCESSIVE.

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

his act or omission, had been negligent, and (2) that such act or omission proximately caused the injury complained of. The best way to prove these is through the opinions of expert witnesses belonging in the same neighborhood and in the same general line of practice as defendant physician or surgeon. The deference of courts to the expert opinion of qualified physicians stems from the former’s realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating, hence, the indispensability of expert testimonies.14 Guided by the foregoing standards, We dissect the issues at hand. Petitioners Not Negligent The trial court first imputed negligence on the part of the petitioners by their failure to perform the operation on Raymond immediately after finishing the Maluluy-on operation. It rejected as an excuse the nonavailability of Dr. Tatad. The trial court relied on the testimony of Dr. Tatad about a "BRMC protocol" that introduces the possibility that a standby anesthesiologist could have been called upon. The pertinent portions of the testimony of Dr. Tatad provides: Q: Aside from you and Dr. Rebancos, who was the standby anesthesiologist? A: We have a protocol at the Bicol Medical Center to have a consultant who is on call. Q: How many of them? A: One. Q: Who is she? A: Dra. Flores. Q: What is the first name? A: Rosalina Flores. Q: Is she residing in Naga City? A: In Camaligan. Q: She is on call anytime when there is an emergency case to be attended to in the Bicol Medical Center?

A: Yes sir.15 Dr. Tatad further testified: Q: Alright (sic), considering that you said you could not attend to Raymond Olavere because another patient was coming in the person of Lilia Aguila, did you not suggest to Dr. Cereno to call the standby anesthesiologist? A: They are not ones to do that. They have no right to call for the standby anesthesiologist. Q: Then, who should call for the standby anesthesiologist? A: It is me if the surgeon requested. Q: But in this case, the surgeon did not request you? A: No. It is their prerogative. Q: I just want to know that in this case the surgeon did not request you to call for the standby anesthesiologist? A: No sir.16 From there, the trial court concluded that it was the duty of the petitioners to request Dr. Tatad to call on Dr. Rosalina Flores, the standby anesthesiologist. Since petitioners failed to do so, their inability to promptly perform the operation on Raymond becomes negligence on their part. This Court does not agree with the aforesaid conclusion. First. There is nothing in the testimony of Dr. Tatad, or in any evidence on the record for that matter, which shows that the petitioners were aware of the "BRMC protocol" that the hospital keeps a standby anesthesiologist available on call. Indeed, other than the testimony of Dr. Tatad, there is no evidence that proves that any such "BRMC protocol" is being practiced by the hospital’s surgeons at all. Evidence to the effect that petitioners knew of the "BRMC protocol" is essential, especially in view of the contrary assertion of the petitioners that the matter of assigning anesthesiologists rests within the full discretion of the BRMC Anesthesiology Department. Without any prior knowledge of the "BRMC protocol," We find that it is quite reasonable for the petitioners to assume that matters regarding the administration of anesthesia and the assignment of anesthesiologists are concerns of the Anesthesiology Department, while matters pertaining to the surgery itself fall under the concern of the surgeons. Certainly, We cannot hold

petitioners accountable for not complying with something that they, in the first place, do not know. Second. Even assuming ex gratia argumenti that there is such "BRMC protocol" and that petitioners knew about it, We find that their failure to request for the assistance of the standby anesthesiologist to be reasonable when taken in the proper context. There is simply no competent evidence to the contrary. From the testimony of Dr. Tatad herself, it is clear that the matter of requesting for a standby anaesthesiologist is not within the full discretion of petitioners. The "BRMC protocol" described in the testimony requires the petitioners to course such request to Dr. Tatad who, as head of the Department of Anesthesiology, has the final say of calling the standby anesthesiologist. As revealed by the facts, however, after the Maluluy-on operation, Dr. Tatad was already assisting in the Lilia Aguila operation. Drs. Zafe and Cereno then proceeded to examine Raymond and they found that the latter’s blood pressure was normal and "nothing in him was significant."17 Dr. Cereno even concluded that based on the x-ray result he interpreted, the fluid inside the thoracic cavity of Raymond was minimal at around 200-300 cc. Such findings of Drs. Cereno and Zafe were never challenged and were unrebutted. Given that Dr. Tatad was already engaged in another urgent operation and that Raymond was not showing any symptom of suffering from major blood loss requiring an immediate operation, We find it reasonable that petitioners decided to wait for Dr. Tatad to finish her surgery and not to call the standby anesthesiologist anymore. There is, after all, no evidence that shows that a prudent surgeon faced with similar circumstances would decide otherwise. Here, there were no expert witnesses presented to testify that the course of action taken by petitioners were not in accord with those adopted by other reasonable surgeons in similar situations. Neither was there any testimony given, except that of Dr. Tatad’s, on which it may be inferred that petitioners failed to exercise the standard of care, diligence, learning and skill expected from practitioners of their profession. Dr. Tatad, however, is an expert neither in the field of surgery nor of surgical practices and diagnoses. Her expertise is in the administration of anesthesia and not in the determination of whether surgery ought or not ought to be performed. Another ground relied upon by the trial court in holding petitioners negligent was their failure to immediately transfuse blood on Raymond. Such failure allegedly led to the eventual death of Raymond through "hypovolemic shock." The trial court relied on the following testimony of Dr. Tatad:

Q: In this case of Raymond Olavere was blood transfused to him while he was inside the operating room? A: The blood arrived at 1:40 a.m. and that was the time when this blood was hooked to the patient. xxxx Q: Prior to the arrival of the blood, you did not request for blood? A: I requested for blood. Q: From whom? A: From the attending physician, Dr. Realuyo. Q: What time was that? xxxx A: 9:30. xxxx Q: Had this blood been given to you before the operation you could have transfused the blood to the patient? A: Of course, yes. Q: And the blood was transfused only after the operation? A: Because that was the time when the blood was given to us. xxxx Q: Have you monitored the condition of Raymond Olavere? A: I monitored the condition during the time when I would administer anesthesia. Q: What time was that? A: 11:45 already. Q: What was the condition of the blood pressure at that time?

A: 60/40 initial. Q: With that kind of blood pressure the patient must have been in critical condition? A: At the time when the blood pressure was 60/40 I again told Dr. Cereno that blood was already needed. Q: With that condition, Doctor, that the patient had 60/40 blood pressure you did not decide on transfusing blood to him? A: I was asking for blood but there was no blood available. Q: From whom did you ask? A: From the surgeon. According to Dr. Zafe there was only 500 cc but still for crossmatching.18 From the aforesaid testimony, the trial court ruled that there was negligence on the part of petitioners for their failure to have the blood ready for transfusion. It was alleged that at 11:15 P.M., the 500 cc of blood was given to Dr. Realuyo by Raymond’s parents. At 11:45 P.M., when Dr. Tatad was asking for the blood, 30 minutes had passed. Yet, the blood was not ready for transfusion as it was still being cross-matched.19 It took another two hours before blood was finally transfused to Raymond at 1:40 A.M. of 17 September 1995. Again, such is a mistaken conclusion. First, the alleged delay in the cross-matching of the blood, if there was any, cannot be attributed as the fault of the petitioners. The petitioners were never shown to be responsible for such delay. It is highly unreasonable and the height of injustice if petitioners were to be sanctioned for lapses in procedure that does not fall within their duties and beyond their control. Second, Dr. Cereno, in his unchallenged testimony, aptly explained the apparent delay in the transfusion of blood on Raymond before and during the operation. Before the operation, Dr. Cereno explained that the reason why no blood transfusion was made on Raymond was because they did not then see the need to administer such transfusion, viz: Q: Now, you stated in your affidavit that prior to the operation you were informed that there was 500 cc of blood available and was still to be cross-matched. What time was that when you were informed that 500 cc of blood was due for crossmatching? A: I am not sure of the time.

Q: But certainly, you learned of that fact that there was 500 cc of blood, which was due for crossmatching immediately prior to the operation? A: Yes, sir. Q: And the operation was done at 12:15 of September 17? A: Yes, sir. Q: And that was the reason why you could not use the blood because it was being crossmatched? A: No, sir. That was done only for a few minutes. We did not transfuse at that time because there was no need.There is a necessity to transfuse blood when we saw there is gross bleeding inside the body. 20 (Emphasis supplied) During the operation, on the other hand, Dr. Cereno was already able to discover that 3,200 cc of blood was stocked in the thoracic cavity of Raymond due to the puncture in the latter’s left lung. Even then, however, immediate blood transfusion was not feasible because: Q: Now considering the loss of blood suffered by Raymund Olavere, why did you not immediately transfuse blood to the patient and you waited for 45 minutes to elapse before transfusing the blood? A: I did not transfuse blood because I had to control the bleeders. If you will transfuse blood just the same the blood that you transfuse will be lost. After evacuation of blood and there is no more bleeding… Q: It took you 45 minutes to evacuate the blood? A: The evacuation did not take 45 minutes. Q: So what was the cause of the delay why you only transfuse blood after 45 minutes? A: We have to look for some other lesions. It does not mean that when you slice the chest you will see the lesions already.21 (Emphasis supplied) Again, the foregoing testimonies of Dr. Cereno went unchallenged or unrebutted. The parents of Raymond were not able to present any expert witness to dispute the course of action taken by the petitioners.

Causation Not Proven In medical negligence cases, it is settled that the complainant has the burden of establishing breach of duty on the part of the doctors or surgeons. It must be proven that such breach of duty has a causal connection to the resulting death of the patient.22 A verdict in malpractice action cannot be based on speculation or conjecture. Causation must be proven within a reasonable medical probability based upon competent expert testimony. The parents of Raymond failed in this respect. Aside from their failure to prove negligence on the part of the petitioners, they also failed to prove that it was petitioners’ fault that caused the injury. Their cause stands on the mere assumption that Raymond’s life would have been saved had petitioner surgeons immediately operated on him; had the blood been cross-matched immediately and had the blood been transfused immediately. There was, however, no proof presented that Raymond’s life would have been saved had those things been done. Those are mere assumptions and cannot guarantee their desired result. Such cannot be made basis of a decision in this case, especially considering that the name, reputation and career of petitioners are at stake. The Court understands the parents’ grief over their son’s death. That notwithstanding, it cannot hold petitioners liable. It was noted that Raymond, who was a victim of a stabbing incident, had multiple wounds when brought to the hospital. Upon opening of his thoracic cavity, it was discovered that there was gross bleeding inside the body. Thus, the need for petitioners to control first what was causing the bleeding. Despite the situation that evening i.e. numerous patients being brought to the hospital for emergency treatment considering that it was the height of the Peñafrancia Fiesta, it was evident that petitioners exerted earnest efforts to save the life of Raymond. It was just unfortunate that the loss of his life was not prevented. 1âwphi 1

In the case of Dr. Cruz v. CA, it was held that "[d]octors are protected by a special law. They are not guarantors of care. They do not even warrant a good result. They are not insurers against mishaps or unusual consequences. Furthermore, they are not liable for honest mistake of judgment…"23 This Court affirms the ruling of the CA that the BRMC is not an indispensible party. The core issue as agreed upon by the parties and stated in the pre-trial order is whether petitioners were negligent in the performance of their duties. It pertains to acts/omissions of petitioners for which they could be held liable. The cause of action against petitioners may be prosecuted fully and the determination of their liability may be arrived at without impleading the hospital where they are employed. As such, the BRMC cannot be considered an indispensible party without whom no final determination can be had of an action.24

IN THE LIGHT OF THE FOREGOING, the instant Petition for Review on Certiorari is hereby GRANTED. The Court of Appeals decision dated 21 February 2005 in CAG.R. CV No. 65800 is hereby REVERSED and SET ASIDE. No costs. SO ORDERED. JOSE PORTUGAL PEREZ Associate Justice WE CONCUR: ANTONIO T. CARPIO