PO1 CELSO TABOBO III Y EBID, Petitioner, v. PEOPLE OF THE who was positioned lower than him.10 Dr.

an him.10 Dr. Baluyot also testified that

PHILIPPINES, Respondent.
Martin had various injuries that could have been caused by forceful
contact with hard, blunt objects.11

Facts
On the other hand, the defense presented P/Supt. Pedrozo who
On January 19, 2005, at around 7:00 a.m., Manuel Zachary testified that when he was informed of a robbery incident, he
Escudero y Araneta (Escudero) was walking along P. Ocampo Street, dispatched a team of police officers to investigate. On the same day,
Manila when two men riding on a motorcycle in tandem suddenly he learned that the suspects were arrested. However, he had no
approached him and grabbed his cellphone. The back rider then personal knowledge of the incident surrounding Martin's death.12

fired a shot at Escudero, resulting to his death. The incident was

reported to Police Station 9 (PS-9) of the Manila Police District. PO2 De Leon initially took the witness stand for his direct
Station Commander Police Superintendent Marcelino DL Pedrozo, examination. However, he was not able to complete his testimony
Jr. (P/Supt. Pedrozo) dispatched a team of police officers to the prompting the RTC to order his direct testimony to be stricken off
crime scene. After conducting a manhunt operation, the team the records. Accordingly, the case was considered submitted for
arrested two suspects who fit the description given by witnesses, decision.13

namely, Victor Ramon Martin y Ong (Martin) and Leopoldo

Villanueva. They were directly brought to PS-9 for investigation and Ruling of the RTC

both were detained at the detention cell of the PS-9 located at the
rooftop.5
On May 15, 2013, the RTC rendered a Decision14 convicting the
petitioner of the crime charged. The dispositive portion of the
On January 20, 2005, at around 4:00 a.m., Police Officer 2 Jesus De decision reads:

Leon (PO2 De Leon) was interviewing Martin at the second floor of

PS-9 when the latter requested to remove his handcuffs to answer WHEREFORE, premises considered, judgment is hereby rendered
the call of nature. When PO2 De Leon removed the handcuffs, finding the [petitioner] guilty beyond reasonable doubt for the crime
Martin suddenly grabbed his service firearm. A scuffle ensued and of Homicide and sentencing him to suffer the penalty of reclusion
the gun went off. The petitioner, who was then at the ground floor, temporal, imposed in its medium period.

heard the gunshot and proceeded to the second floor. After seeing
P02 De Leon almost subdued by Martin, the petitioner fired his gun However, for lack of basis, no civil liability is adjudged.

twice and hit Martin on the chest. Martin was rushed to the Ospital
ng Maynila but he was declared dead upon arrival.6
x x x x

Consequently, the petitioner was charged with the crime of SO ORDERED.15

Homicide for Martin's death before the RTC of Manila.7

In so ruling, the RTC held that the petitioner failed to prove that all
The prosecution presented Dr. Ravell Ronald R. Baluyot (Dr. the elements of justifying circumstance of defense of a stranger are
Baluyot), the physician who conducted the autopsy on Martin's present in this case.16

body.8 He testified that Martin bore two gunshot wounds on the

chest.9 Considering that the exit wounds were higher than the On July 1, 2013, the petitioner filed a Very Urgent Motion to allow
entrance wounds, it was possible that Martin was shot by someone accused to avail of the remedy of appeal by accepting his
justification and further allow him temporary liberty under his original The petitioner argues that he was denied due process in court due to
bond. He later filed an Extremely Urgent Motion for Reconsideration the gross negligence and incompetence of his counsel before the
and New Trial. The petitioner alleged that his counsel's gross trial court. Moreover, he asserts that the CA should have considered
mistake and negligence deprived him of his right to due process.17
the stipulations made by the parties respecting the Crime Report
that Senior Police Officer 2 Edmundo C. Cabal (SPO2 Cabal)
The RTC issued an Order allowing the petitioner to post cash bail in executed to the effect that the petitioner acted in defense of PO2 De
the amount of P150,000.00. However, the RTC deferred the Leon when he shot the victim, which consequently relieves him of
resolution of the motion for new trial and informed the petitioner that his duty to prove the elements of the justifying circumstance of
should he choose to avail of the remedy of appeal, the entire records defense of a stranger.25

would be forwarded to the CA. Hence, the petitioner appealed to the

CA.18
Issue

Ruling of the CA Whether or not the CA erred in affirming the petitioner's conviction
The CA in its Decision19 dated January 23, 2015, affirmed the for the crime of homicide.

decision of the RTC, to wit:

Ruling of the Court

WHEREFORE, in view of the foregoing, the Decision dated May 15,
2013 rendered by the RTC of Manila, Branch 41, in Criminal Case The petition is partly meritorious.

No. 06-248576, is AFFIRMED, with the MODIFICATION that the

[petitioner] is sentenced to suffer the indeterminate penalty of "Let it be underscored that appeal in criminal cases throws the
imprisonment ranging from eight (8) years and one (1) day of prision whole case open for review and it is the duty of the appellate court
mayor, as minimum, to fourteen (14) years, eight (8) months and one to correct, cite and appreciate errors in the appealed judgment
(1) day of reclusion temporal, as maximum, and to pay the heirs of whether they are assigned or unassigned."26 This rule is strictly
the victim, [Martin], Fifty Thousand Pesos (P50,000.00) as civil observed, particularly where the liberty of the accused is at stake, as
indemnity.
in the extant case. Thus, while the Court generally firmly adheres to
the principle that factual findings of the RTC, when affirmed by the
SO ORDERED.20 (Citation omitted)
CA, are entitled to great weight and respect by this Court and are
deemed final and conclusive when supported by the evidence on
The CA reasoned that the prosecution need not prove the elements record,27 the same is not ironclad and applicable at all times.

of homicide considering that the burden of proof in this case has

shifted to the petitioner for interposing the justifying circumstance of In convicting the petitioner, the RTC and the CA primarily relied on
defense of a stranger.21 However, it concurred with the findings of the testimony of the prosecution witness, SPO2 Cabal's Crime
the RTC that the defense failed to prove the existence of all the Report, and the petitioner's declarations in his Sworn Statement,
elements of defense of a stranger.22
Counter-Affidavit, and Joint Rejoinder. The CA held that the
petitioner admitted shooting Martin as stated in his Sworn Statement
The petitioner moved for reconsideration23 of the CA decision, but dated January 26, 2006, Counter-Affidavit dated March 21, 2006 and
the motion was denied in a Resolution24 dated October 12, 2015. Joint Rejoinder dated April 25, 2006. It further noted that in his
Hence, the present petition.
Appellant's Brief, the petitioner relied on the "defense of a stranger"
as justification for his act. Thus, the CA concluded that the petitioner affiants themselves are placed on the witness stand to testify
admitted that he killed the victim.28
thereon.32 (Citation omitted)

However, the fact that the petitioner may have admitted shooting The RTC, therefore, should not have readily relied on the said
Martin in the said documents does not necessarily establish his guilt documents to establish the petitioner's admission of the killing, more
for the crime charged. An admission of fact is starkly different from, so when the admission was not corroborated by evidence, except
and is not tantamount to, a confession of guilt. In People of the for the Crime Report.

Philippines v. Buntag,29 the Court elucidated that:

The Court observes that the petitioner pleaded not guilty to the
In criminal cases, an admission is something less than a confession. killing during arraignment and invoked the justifying circumstance of
It is but a statement of facts by the accused, direct or implied, which defense of a stranger under Article 11 of the Revised Penal Code.
do not directly involve an acknowledgment of his guilt or of his One who invokes self-defense admits responsibility for the killing.
criminal intent to commit the offense with which he is bound, against Accordingly, the burden of proof shifts to the accused who must
his interests, of the evidence or truths charged. It is an then prove the justifying circumstance. He must show by clear and
acknowledgment of some facts or circumstances which, in itself, is convincing evidence that he indeed acted in self-defense, or in
insufficient to authorize a conviction and which tends only to defense of a relative or a stranger. With clear and convincing
establish the ultimate facts of guilt. A confession, on the other hand, evidence, all the following elements of self-defense must be
is an acknowledgment, in express terms, of his guilt of the crime established: (1) unlawful aggression on the part of the victim; (2)
charged.30 (Citations omitted)
reasonable necessity of the means employed to prevent or repel it;
and (3) lack of sufficient provocation on the part of the person
In this case, the Court notes that while the Sworn Statement, claiming self-defense.33

Counter-Affidavit, and Joint Rejoinder may be considered as the

petitioner's admission as to the fact of the killing, the same were In People v. Patrolman Belbes,34 the Court ruled:

never identified by the petitioner in court since he never took the

witness stand, and is thus, hearsay as regards to him. As elucidated It is well settled in this jurisdiction that once an accused had
in Republic of the Philippines v. Marcos-Manotoc, et al.,31 affidavits admitted that he inflicted the fatal injuries on the deceased, it was
are considered as hearsay evidence unless the affiants themselves incumbent upon him, in order to avoid criminal liability, to prove the
testify thereon:
justifying circumstance claimed by him with clear, satisfactory and
convincing evidence. He cannot rely on the weakness of the
Basic is the rule that, while affidavits may be considered as public prosecution but on the strength of his own evidence, "for even if the
documents if they are acknowledged before a notary public, these evidence of the prosecution were weak it could not be disbelieved
Affidavits are still classified as hearsay evidence. The reason for this after the accused himself had admitted the killing."35 (Citations
rule is that they are not generally prepared by the affiant, but by omitted)

another one who uses his or her own language in writing the affiant's
statements, parts of which may thus be either omitted or Thus, the petitioner must establish with clear and convincing
misunderstood by the one writing them. Moreover, the adverse party evidence that the killing was justified, and that he incurred no
is deprived of the opportunity to cross-examine the affiants. For this criminal liability therefor. However, the petitioner was deprived of
reason, affidavits are generally rejected for being hearsay, unless the such opportunity to effectively present his evidence and to defend
himself due to the gross and palpable negligence and incompetence
of his counsel. Such deprivation amounts to a denial of the interests of the petitioner, particularly the right to have his conviction
petitioner's due process, vitiating the integrity of the proceedings reviewed by the RTC as the superior tribunal, should not be
before the trial court.
sacrificed in the altar of technicalities.40

Evidently, the trial was marked by gross negligence and Furthermore, in Reyes v.  CA,41 the Court held that in cases where
incompetence of the petitioner's counsel due to numerous delays the counsel is grossly negligent as to deprive the accused of his
and postponements. The Court notes that the petitioner's counsel constitutional right to be heard, the conviction should not be based
failed to attend the hearings set on September 21, 2011, October solely on the evidence of the prosecution, thus:

17, 2011, November 16, 2011, November 5, 2012, November 26,

2012, and March 18, 2013 despite notice, all of which were crucial It was Atty. Tenorio's absences, then, rather than petitioner's, which
for the defense. As a result, the RTC ordered the initial testimony of appear to be the cause for the defense's failure to present its
PO2 De Leon, the sole witness to the shooting, to be stricken off the evidence. Atty. Tenorio's negligence did not consist in error of
records and to consider the presentation of the defense's evidence procedure or even a lapse in strategy but something as basic as
waived.36
failing to appear in court despite clear warning that such failure
would amount to waiver of her client's right to present evidence in
Moreover, the petitioner's counsel failed to ask for reconsideration of her defense.

the RTC order, knowing fully well that PO2 De Leon's testimony of
what transpired in the police station is crucial to the petitioner's Keeping in mind that this case involves personal liberty, the
defense. Likewise, no formal offer of exhibit was filed for the negligence of counsel was certainly so gross that it should not be
defense. Thus, the petitioner's counsel can hardly be considered to allowed to prejudice petitioner's constitutional right to be heard. The
have defended the petitioner at all.
judicial conscience certainly cannot rest easy on a conviction based
solely on the evidence of the prosecution just because the
It is, however, an oft-repeated ruling that the negligence and presentation of the defense evidence had been barred by
mistakes of counsel bind the client. A departure from this rule would technicality. Rigid application of rules must yield to the duty of
bring about never-ending suits, so long as lawyers could allege their courts to render justice where justice is due – to secure to every
own fault or negligence to support the client's case and obtain individual all possible legal means to prove his innocence of a crime
remedies and reliefs already lost by the operation of law.37 The only with which he or she might be charged.42 (Citation omitted)

exception would be where the lawyer's gross negligence would

result in the grave injustice of depriving his client of the due process In the Reyes case, the Court resolved to remand the case to the RTC
of law.38 The Court finds that the exception applies in this case.
for further reception of the accused's evidence. Hence, in
accordance with the Court's pronouncement in Reyes, and in view of
The petitioner is, without doubt, entitled to competent legal the irregularities prejudicial to the rights of the petitioner that
representation from his counsel. In Sanico v. People,39 the Court held attended the trial, the case calls for a new trial pursuant to Section
that:
243 of Rule 121 of the Rules of Court. The case should be remanded
to the trial court to enable the petitioner to effectively defend himself
If the incompetence of counsel was so great and the error and present evidence.

committed as a result was so serious that the client was prejudiced

by a denial of his day in court, the litigation ought to be reopened to WHEREFORE, the petition is PARTIALLY GRANTED. The Decision
give to the client another chance to present his case. The legitimate dated January 23, 2015 and Resolution dated October 12, 2015 of
the Court of Appeals in CA-G.R. CR No. 35948 and the Decision Lacerated wound[,] on left post auricular area

dated May 15, 2013 of the Regional Trial Court of Manila, Branch 41 which wounds or injuries caused his instantaneous death to the
in Criminal Case No. 06-248576 are hereby REVERSED and SET damage and prejudice of his heirs in the following amount:

ASIDE. The case is REMANDED to the Regional Trial Court of ₱50,000.00 as life indemnity of the victim

Manila for a new trial for the purpose of allowing Police Officer 1 ₱15,000.00 as moral damages

Celso Tabobo III y Ebid to present evidence in his defense with ₱15,000.00 as exemplary damages.

directive to the court thereafter to decide the case with all deliberate CONTRARY TO LAW. (In violation of Article 248 of the Revised Penal
speed.
Code).

Criminal Case No. L-1675

PEOPLE OF THE PHILIPPINES, Plaintiff,

That on the 12th day of May 2000, at about 6:30 o’clock in the
vs.
evening more or less, in Purok 1, Spring, [B]arangay Amaga,
HENRY TOGAHAN, EMELDO LAURO, DANILO BALINDO (at [M]unicipality of Barobo, [P]rovince of Surigao del Sur, Philippines,
large) and MARCO TURGA (at large), Appellants.
and within the jurisdiction of this Honorable Court, the above-named
accused, armed with .38 caliber pistol, conspiring, confederating
Appellants Henry Togahan (Togahan) and Emeldo Lauro (Lauro) and mutually helping each other, with evident prem[e]ditation,
assail the Decision1 of the Court of Appeals dated 5 May 2006, treachery and intent to kill, did then and there willfully, unlawfully and
affirming with modification the Decision2 of the Regional Trial Court felon[i]ously shot one David Gene Richardson, an [A]merican
(RTC), Branch 28,3 Lianga, Surigao del Sur, dated 24 September national, with the use of said weapon, as a result thereof the latter
2003. The RTC had found appellants guilty beyond reasonable was hit and sustained the following wounds or injuries:

doubt for the murder of Ananias Villar, Sr. (Villar), and his son-in-law Gunshot wound[,] right lower quadrant

David Gene Richardson (Richardson).

Hematoma[,] right leg lateral aspect

On 13 September 2000, appellants, together with their co-accused Abrasion, [l]inear right shoulder

Danilo Balindo (Balindo) and Marco Turga (Turga), were charged with Abrasion, linear lumbar area

two (2) counts of murder, in separate Informations4 filed by which wounds or injuries caused his instantaneous death to the
Prosecutor Zacharias P. Joven, the texts of which read:
damage and prejudice of his heirs in the following amount:

Criminal Case No. L-1674

₱100,000.00 as life indemnity of the victim

That on the 12th day of May 2000, at about 6:30 o’clock in the ₱15,000.00 as moral damages

evening more or less, in Purok 1, Spring, [B]arangay Amaga, ₱15,000.00 as exemplary damages.

[M]unicipality of Barobo, [P]rovince of Surigao del Sur, Philippines CONTRARY TO LAW. (In violation of Article 248 of the Revised Penal
and within the jurisdiction of this Honorable Court, the above-named Code).

accused, armed with .38 caliber pistol, conspiring, confederating Custody only of appellants Togahan and Lauro was acquired. Their
and mutually helping each other, with evident premeditation, co-accused Balindo and Turga remained at large then and to this
treachery and intent to kill, did then and there willfully, unlawfully and day. Upon being arraigned separately, both appellants pleaded not
felon[i]ously shot one Ananias Villar, Sr. with the use of said deadly guilty.5 Trial on the merits ensued with the prosecution espousing the
weapon, as a result thereof the latter was hit and sustained the following narration of facts:

following wounds or injuries:

On 12 May 2000, at around 6:30 p.m., Magdalena Villar (Mrs. Villar),
Gunshot wound[,] suprasternal area
her daughter Vilma Villar-Richardson (Mrs. Richardson), son-in-law
Gunshot wound[,] left flank at the level of umbilicus
Richardson, grandchildren Kenneth, Kevin, Junelyn, Jovelyn and
Gunshot wound[,] right upper quadrant parasternal
Michelle, and brother Pedro Castillo were all watching television in
the living room of their residence in Spring, Amaga, Barobo, Surigao accused ran out of the house, removing their masks in the process.
del Sur. Without warning, two armed men wearing bonnets suddenly Witness Lowelito maintained that he had been friends with the
arrived. At that time, the victim Villar, husband of Mrs. Villar, was in accused for five (5) years and recognized them because of their
his room. When Villar heard the commotion, he went to the door and physical features and movements and that he could see the events
tried to prevent the armed men from entering, but he was shot twice, that transpired as there were fluorescent lamps lit inside and outside
pulled towards the balcony and clubbed to death.6
the house.11

One of the armed men, later identified as Togahan, pointed a gun at The prosecution likewise presented witnesses to fortify the charges
Mrs. Richardson and pulled the trigger thrice. The gun did not fire of participation against appellants. Witness Rosemarie Enriquez, a
however. The other man, later identified as Lauro, approached former sweetheart of Togahan, testified that the pair of slippers
Richardson and likewise pointed a gun at him. When Mrs. recovered from the scene of the crime belonged to the latter.12 It was
Richardson heard gunfire, she asked the men: "Who are you, what witness Federico Sayson, Barangay Kagawad of Purok 1, Spring,
do you want?" To this, Lauro replied: "We are here for war."7 Mrs. Amaga, Barobo, Surigao del Sur, who discovered the pair of slippers
Richardson told her husband to run away but the latter, in an attempt and a dirty white jacket about thirty (30) meters from the house of
to protect his wife, struggled and tried to wrestle the gun away from Villar.13

Togahan instead. In the course thereof, Lauro shot Richardson then SPO2 Santo Ocate, the firearm examiner of the Philippine National
ran out of the house with Richardson’s 3-year old son.8 Richardson, Police, Caraga Region who conducted the physical examination of
in spite of his wound, chased Lauro but was later found sitting on two bullets recovered from the crime scene, testified that the bullets
the mud, unable to talk and dying. The rest of the family had fled were discharged from a .38 caliber revolver.14

during the commotion and sought refuge. Villar and Richardson were Upon request of Mrs. Richardson, Dr. Edgar Savella, Medico-Legal
brought to DO Plaza Memorial Hospital in Patin-ay, Prosperidad, Officer of the National Bureau of Investigation–Caraga Region,
Surigao del Sur but were dead upon arrival.9
conducted an autopsy of the bodies of the victims. Dr. Savella
In her testimony, Mrs. Richardson narrated that during the struggle testified that the gunshot wound sustained by Richardson on his
between her husband and Togahan for the gun, the mask of the abdomen was fatal and caused his death, the bullet having hit the
latter was removed by Richardson; thus, she was able to recognize sciatic artery on his right leg, as well as his vertebrae in the lumbar
Togahan as the assailant who poked and tried to fire the gun at her. area.15 Villar, on the other hand, died of multiple gunshot wounds to
Mrs. Richardson was able to identify Lauro through his voice and his chest and abdomen.16 Dr. Savella found no indication of self-
physical appearance as the one who remarked "We are here for defense or struggle-related injuries on both Villar and Richardson.17

war."10 Lauro was alleged to be responsible for shooting her father, Dr. Tomas Centino testified that he conducted the examination of the
Villar, twice and also for shooting her husband, Richardson.
bodies of the victims who were both clinically dead upon arrival at
Eyewitness Lowelito Villar (Lowelito), grandson of victim Villar, the DO Plaza Memorial Hospital.18 He likewise opined that the
testified that on the evening of the incident, he was in his home respective gunshot wounds sustained by Villar and Richardson were
about fifteen (15) meters away from his grandparents’ house when fatal and the immediate cause of their death.19

he heard a gun burst. He immediately ran towards the house of his To counter the prosecution, Togahan presented the defense of alibi.
grandparents and hid behind a coconut tree, also about fifteen (15) He testified that on 12 May 2000, at 6:30 p.m., he was in the home
meters from victim Villar’s house. He claims to have seen three (3) of his parents-in-law in Barangay Bahi, Barobo, Surigao del Sur, with
armed and masked men he identified as Togahan, Lauro and Balindo whom he and his family lived. He averred that he was playing with
enter the victims’ house. According to the witness, Lauro shot his children at that time. Thereafter, he had supper with the entire
Richardson in the house whereas Lauro and Balindo shot and family, retired with the household to the balcony from 7:00 to 9:00
clubbed his grandfather in the balcony. After the attack, all the p.m., and then went to sleep at 9:00 p.m.20 The following day,
appellant maintains that he and his father-in-law repaired the gutter this Court’s ruling in People v. Mateo,28 the case was transferred to
of their house.21 On 14 May 2000, appellant was allegedly fetched the Court of Appeals.

by his brother at 9:00 a.m. to visit their father who was seriously ill in On 5 May 2006, the appellate court rendered its decision affirming
Barangay Tagongon, Barobo, Surigao del Sur.22
with modification appellants’ conviction. In downgrading the penalty
To corroborate Togahan’s alibi, his father-in-law, Segundo Andalan, from death to reclusion perpetua, the Court of Appeals held that the
testified that on 12 May 2000, appellant helped him in repairing their RTC erred in appreciating the generic aggravating circumstances of
house. Beginning around 6:30 p.m., the whole family had dinner, dwelling and nighttime, both of which were not alleged in the
took their rest and then went to bed. He asserted that appellant did Informations.29 Thus, there being no mitigating or aggravating
not leave their house that night. Their repair work on the house circumstance attending the commission of the crimes, the appellate
allegedly continued the next day. According to the witness, court imposed the penalty of reclusion perpetua upon appellants for
appellant’s sister fetched him on 14 May 2000, at around 1:00 p.m. each count of murder. The dispositive portion of the said decision
as their father was ill.23
states:

Similarly, Lauro denied the charges made against him. Appellant "WHEREFORE, in view of the above disquisitions, the decision
maintains that on 12 May 2000, he was in the home of his brother in under review is hereby AFFIRMED with MODIFICATION that the
Purok 4, Barobo, Surigao del Sur, helping the latter arrange stones penalty is reduced to reclusion perpetua for each of the accused-
on which their billiard table was to be placed. At around 6:30 p.m., appellants, and in line with recent jurisprudence the following
appellant allegedly rested in the balcony of his brother’s house with amounts are awarded to the heirs of the victims in each case, to wit:
the latter’s wife and neighbor while his brother prepared supper.24
₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages, and
On rebuttal, the prosecution presented two witnesses, the first of ₱25,000.00 as exemplary damages.

whom negated the claims of Lauro that he had never set foot in Conformably to the ruling in People vs. Mateo, We refrain from
Barangay Amaga, Barobo, Surigao del Sur. According to witness entering judgment therein. The Division Clerk of Court is directed to
Restituto Basada, for about four (4) to five (5) years commencing in elevate the records of this case to the Honorable Supreme Court for
1980, Lauro and his family lived on his property in the said barangay. final disposition.

However, Lauro later fled as Basada filed a case against the former SO ORDERED."30

for stoning him.25

In their brief,31 appellants challenge their conviction for murder,
The second rebuttal witness of the prosecution, Luzviminda Villar stressing that there is a great doubt as to the identities of the
Sabaysabay, was the daughter of victim Villar. She testified that in persons who perpetrated the crime.

March and June 2001, they received letters from Togahan, The issue of whether or not appellants were in fact identified by the
requesting them to visit him in the provincial jail where he was then prosecution witnesses is a question of credibility. It is well-settled
incarcerated. In Togahan’s second letter, she claimed, he requested that factual findings of the trial court on credibility of witnesses and
a visit to reveal to them that Lauro was one of his companions in their testimonies are entitled to the highest respect and will not be
killing Villar.26
disturbed on appeal in the absence of clear showing that the trial
The RTC found appellants guilty of murder on both charges and court overlooked, misunderstood or misapplied some facts or
sentenced each of them to suffer in each case the penalty of death circumstances of weight and substance that would have affected the
and to indemnify the respective heirs of the victims in each case in result of the case. Having seen and heard the witnesses themselves
the amounts of ₱50,000.00 as civil indemnity, ₱15,000.00 as moral and observed their behavior and manner of testifying, the trial court
damages, ₱15,000.00 as exemplary damages and costs.27
was in a better position to decide the question of credibility.32

With the death penalty imposed on appellants, the case was After an exhaustive review of the records, we find no reason to
elevated to this Court on automatic review. However, pursuant to deviate from the trial court’s assessment of the credibility of the
witnesses. The trial court did not err in giving credence to the Q The other accused Emeldo Lauro, was he wearing also a bonnet
testimony of the prosecution witnesses that they were able to at that time?

identify appellants and their co-accused as perpetrators of the A Yes, sir.

crime.
Q Your husband was not able to pull the bonnet out from his face?

Mrs. Richardson, in recounting her horrifying experience in the A No, sir.

hands of the appellants, categorically identified appellants as the Q How could you identify Emeldo Lauro as the very person who was
perpetrators of the vicious crimes, viz:
responsible in killing your husband and your father?

x x x x
A Because when I came here, when I saw his appearance and
Court:
everything, I remembered I heard his voice. You’re the one who said
Few clarificatory question (sic) from the Court.
we’re here for war. Don’t you. You can’t deny it.

Q In Exh. "A-1", which is the question and answer of your sworn Q You can identify him?

statement, you said that you could not identify the culprit in this A Yes, sir, by his voice and his appearance.

case?
Q As you said, it was Henry Togahan who pointed a gun to your
A Yes, sir.
head?

Q But in the direct examination now, you were able to identify the A Yes, sir.

suspects as Emeldo Lauro and Henry Togahan?

Q Is he the same person who shot to death also (sic) your husband?

A Yes, sir.
A No, sir.

Q Why is it now that your testimony is now in conflict with that of Q Who was the person who shot your husband?

your sworn statement?

A That guy there. The one in the middle. (Witness pointing to
A Because they asked me a lot of questions. I was then depressed. I accused Emeldo Lauro)

don’t (sic) know what to do. I lost my husband and when I was told Q That guy?

to go to Barobo, I was in a hurry to call my family in Pennsylvania, A Yes, sir.

sir.
Q Who shot your father also (also)?

Q The height of your husband is 6’2 inches?

A Same guy, sir.

A Yes, sir.
x x x33

Q And he tried to grab the bonnet from the assailants?

Two other prosecution witnesses, Mrs. Villar and Lowelito, similarly
A Yes, sir.
identified appellants as the malefactors.34

Q Was he able to grab the bonnets (sic)?

Appellants failed to show that the prosecution witnesses were
A One of them, sir.
prompted by any ill motive to falsely testify or accused them of so
Q Which one of them that (sic) your husband able to grab the grave a crime as murder. The Court adheres to the established rule
bonnets (sic)?
that, in the absence of any evidence showing reason or motive for
A That guy. (Witness pointing to accused Henry Togahan)
the witness to perjure, their testimony and identification of the
Q Was the bonnet Togahan was wearing held by your husband out assailant should be given full faith and credit.35

of his face?
We cannot see ill-motive on the part of the prosecution witnesses,
A Not all the way, sir.
particularly Mrs. Villar and Mrs. Richardson. As widows of the
Q Until what part of the face of Henry Togahan?
victims, they have more reason to desire punishment for the real
A Up to the eyebrow, sir.
perpetrators of the crime. It is unnatural for a victim’s relative
Q Before the incident, you had not met Henry Togahan?
interested in vindicating the crime to accuse somebody other than
A No, sir.
the real culprit.36 Human nature tells us that the aggrieved relatives
would want the real killer punished for their loss, and not accept a nor should they reflect adversely on the witness’ credibility as they
mere scapegoat to take the rap for the real malefactor.37
erase suspicion that the same was perjured.44

Concomitantly, witnesses need not know the names of the The trial court is correct in disregarding appellants’ defense of alibi
malefactors so long as they recognize their faces. What is imperative and denial. For the defense of alibi to prosper, the accused must
is that the witnesses are positive as to the perpetrators’ physical prove not only that he was at some other place at the time of the
identification from the witnesses’ own personal knowledge, as is commission of the crime but also that it was physically impossible
obtaining in this case.38 It is the natural reaction of victims of criminal for him to be at the locus delicti or within its immediate vicinity.45
violence to strive to see the appearance of their assailants and to Apart from testifying with respect to the distance of their houses
observe the manner in which the crime was committed. Most often, from that of the victims’, appellants were unable to explain and show
the face and body movements of the assailant create an impression that it was physically impossible for them to be at the scene of the
which cannot easily be erased from their memory.39
crime.

Insofar as the alleged inconsistencies between the testimony of Mrs. Between the categorical statements of the prosecution witnesses,
Richardson and her sworn testimony on identifying the appellants on one hand, and the bare denial of appellants, on the other, the
are concerned, suffice it to say that the affidavits are generally not former must perforce prevail.46 An affirmative testimony is far
prepared by the affiants themselves but by others, and affiants are stronger than a negative testimony especially when it comes from
only made to sign them. Certain discrepancies between declarations the mouth of a credible witness. Alibi and denial, if not substantiated
made in the affidavit and those made at the witness stand seldom by clear and convincing evidence, are negative and self-serving
discredit the declarant.40 Moreover, Mrs. Richardson was able to evidence undeserving of weight in law. They are considered with
satisfactorily explain such inconsistency during her testimony.
suspicion and always received with caution, not only because they
Appellants likewise attack the seeming inconsistencies between the are inherently weak and unreliable but also because they are easily
testimonies of Mrs. Villar, Mrs. Richardson and Lowelito. They point fabricated and concocted.47

to two alleged conflicts in those testimonies which, to their mind, are The culpability of appellants and their co-accused is undeniable.
fatal and discredit the reliability of the witnesses: the number of Lauro was consistently identified by the witnesses as the person
assailants and the identification of whom among the culprits shot the responsible for shooting both victims. At the same time, the
victims. These inconsistencies, in our view, are not sufficiently existence of conspiracy among the assailants is patent. Conspiracy
substantial to impair the veracity of the prosecution’s evidence.
has been deduced by the Court in a case where three malefactors
While witnesses may differ in their recollections of an incident, it jointly lifted, carried and dumped their victim in a deep well filled
does not necessarily follow from their disagreement that all of them with water head first and threw rocks inside the well to cover him;48
should be disbelieved as liars and their testimonies completely by the successive acts of three appellants in shooting, clubbing and
discarded as worthless.41 As long as the mass of testimony jibes on piercing the eye of the victim;49 where one appellant put his arms
material points, the slight clashing statements neither dilute the around the body of the victim while his co-appellant held the thighs
witnesses’ credibility nor the veracity of their testimony,42 for indeed, of the victim and while they held him down, one poked and fired the
such inconsistencies are but natural and even enhance credibility as gun at the back of the head of the victim;50 when two accused
these discrepancies indicate that the responses are honest and chased their victim into his house, kicked open the door to enter and
unrehearsed.43
then shot him;51 and when one malefactor hacked the victim and
Witnesses cannot be expected to remember all the details of the two others chased after the latter to finish up the aggression they
harrowing event which unfolded before their eyes. Minor had started.52

discrepancies might be found in their testimony, but they do not In the instant case, by the concurrent acts of barging into the
damage the essential integrity of the evidence in its material whole, residence of the victims, holding them at gunpoint and shooting and
attacking the victims, Lauro, Togahan and their co-accused are vs.

deemed to have agreed to commit the crime of murder. Each of their PEOPLE OF THE PHILIPPINES, respondent.

contributory acts without semblance of desistance reflected their

resolution to commit the crime.53 From a legal standpoint, there is In this Petition for Review on Certiorari under Rule 45 of the Rules of
conspiracy if, at the time of the commission of the offense, the Court,1 petitioner Fernando Estabas Mahawan alias Pado, seeks the
appellants had the same purpose and were united in its execution.54 reversal of the Decision2 of the Court of Appeals in CA-G.R. CR No.
Direct proof of previous agreement to commit a crime is not 00071, dated 25 May 2006, which affirmed in toto the Decision3 of
necessary. Conspiracy may be deduced from the mode and manner the Cebu City Regional Trial Court (RTC), Branch 10, in Criminal
in which the offense was perpetrated, or inferred from the acts of the Case No. CBU-42385, dated 10 August 2004, finding him guilty of
appellants themselves when such acts point to a joint purpose and frustrated homicide.

design, concerted action, and community of intent.55 Where The records of the case bear the following facts:

conspiracy is established, the act of one is the act of all.56

On 18 October 1996, an Information4 was filed before the RTC
We agree with the trial court that treachery qualified the killing of the charging petitioner with frustrated homicide. The accusatory portion
victims. The essence of treachery is the sudden and unexpected of the information reads:

attack by an aggressor on an unsuspecting victim, depriving the The undersigned Prosecutor I of Cebu City accuses FERNANDO
latter of any real chance to defend himself, thereby ensuring its ESTABAS MAHAWAN alias "PADO" of the crime of FRUSTRATED
commission without risk to the aggressor, without the slightest HOMICIDE, committed as follows:

provocation on the part of the victim.57 In the case at bar, four armed That on or about the 5th day of October, 1995, about 9:30 p.m., in
men entered the home of the innocent victims and together used the City of Cebu, Philippines, and within the jurisdiction of this
this advantage to facilitate their crime. Aggravating this was the fact Honorable Court, the said accused, armed with a firearm, with
that Villar was a 68-year old man who could not have been deliberate intent and with intent to kill, did then and there attack,
reasonably able to put up a defense against the much younger and assault and use personal violence upon the person of Diosdada
armed men.
Paradero, by firing shots at said Diosdada Paradero, hitting her on
Thus, we reach the inescapable conclusion that the trial court and the vital parts of her body, thereby inflicting upon her the following
the Court of Appeals were correct in finding appellants guilty of two physical injuries:

counts of murder and affirm the imposition of reclusion perpetua "GUNSHOT WOUND POINT OF ENTRY 3rd ICS (LEFT) MCL. NO
upon them for each of the murders committed. Likewise, in line with POINT OF EXIT, 4 PT. PERFORATION DESCENDING COLON,
recent jurisprudence,58 we affirm the award of damages in favor of GRADE II LIVER INJURY SEGMENT I, 1.5 CM. DIAPHRAGMATIC
the heirs of the victims.
RENT (LEFT) INCISED WOUND (LEFT) EAR LOBULE, (RIGHT)
WHEREFORE, the 5 May 2006 Decision of the Court of Appeals in WRIST"

CA-G.R. CR-HC No. 00156-MIN finding Henry Togahan and Emeldo which injuries, under ordinary circumstance, would cause the death
Lauro guilty beyond reasonable doubt of two counts of murder each, of said Diosdada Paradero, thus performing all the acts of execution
is AFFIRMED. They are sentenced to suffer the penalty of reclusion which would have produced the crime of homicide, but which
perpetua for each count of murder and to pay jointly and severally nevertheless did not produce it by reason of causes independent of
the legal heirs of each victim ₱50,000.00 as civil indemnity, the will of the herein accused, that is, by the timely and able medical
₱50,000.00 as moral damages and ₱25,000.00 as exemplary assistance rendered to said Diosdada Paradero which prevented her
damages.
death.

FERNANDO ESTABAS MAHAWAN alias PADO, petitioner,

When arraigned on 22 April 1997, petitioner, assisted by his counsel The prosecution adduced documentary pieces of evidence to
de parte, pleaded "Not guilty" to the charge.5 Trial on the merits buttress the aforesaid allegations, to wit: (1) medical certificate of
thereafter followed.
Paradero issued by Dr. Guardiario (Exhibit A);7 (2) medical certificate
The prosecution presented as witnesses private complainant of Paradero issued by the chief of Vicente Sotto Memorial Medical
Diosdada S. Paradero (Paradero), Dr. James Guardiario (Dr. Center (Exhibit B);8 (3) list of expenses and official receipts as
Guardiario), and Police Chief Inspector Myrna Arreola (Inspector regards Paradero’s treatment and confinement for a gunshot wound
Arreola). Their testimonies, woven together, produce the following (Exhibit C);9 (4) subpoena duces tecum issued by the RTC to
narrative:
Inspector Arreola (Exhibit D);10 (5) physical science report on the
Paradero is a resident of B. Aranas Extension, Cebu City. Her house paraffin test conducted on petitioner (Exhibit E);11 and (6) letter-
has two floors. She operates a store on the ground floor, while the request for paraffin test on petitioner (Exhibit F).12

second floor is utilized by her and her family as sala and bedrooms.
For its part, the defense presented the testimonies of petitioner and
On 5 October 1996, at about 9:30 p.m., Paradero was tending her his friend/neighbor named Antonio Artiaga (Artiaga) to refute the
store when petitioner arrived and asked her for a bottle of beer. She accusations against him. Petitioner disclaimed any liability and
told petitioner that there was no more beer. When she was about to invoked self-defense. His version of the incident, as corroborated by
open the refrigerator in the store to show petitioner that there was Artiaga on some relevant points, is as follows:

really no more beer, petitioner sneaked inside the store. She closed On 5 October 1996, at around 9:30 p.m., petitioner went to
the refrigerator and faced petitioner. Suddenly, petitioner pulled out a Paradero’s store to buy cigarettes. Upon arriving there, he saw
gun (caliber .38 revolver) and shot her on the left chest. She Paradero standing near the store’s door. He asked Paradero if he
retreated and fell on the ground. As petitioner moved closer to her, could buy cigarettes. Paradero replied in a loud voice that she did
she grabbed a kitchen knife nearby to defend herself. Petitioner shot not have any stock of cigarettes. Suddenly, Paradero, then holding a
Paradero again but the bullet this time merely grazed her left knife, went out of the store and approached him. Paradero tried to
earlobe. Petitioner snatched the kitchen knife from her hand and fled stab him with the knife but he parried the thrust. He and Paradero
the store.
grappled for possession of the knife causing him injury on the left
Paradero’s sister and some neighbors brought her to Chong Hua finger. He did let go of Paradero. The latter, however, attacked him
Hospital where the gunshot wound in her left chest was treated. She again with the knife. This time he was slightly hit by the knife on the
also underwent a surgical operation on her colon (large intestine), stomach. He drew his firearm and shot Paradero who, upon being hit
liver and diaphragm as these vital organs were hit by the trajectory of by the bullet, slumped on the ground. He took Paradero’s knife and
the bullet. Dr. Guardiario performed the said treatment and went home. Subsequently, he proceeded to his brother’s house
operation.
where he called a policeman named Senior Police Officer 2 (SPO2)
Meanwhile, petitioner was brought by the police authorities to the Quevedo. He surrendered to SPO2 Quevedo upon the latter’s arrival
Cebu City Police Station for investigation. Thereupon, a paraffin test at his (petitioner) brother’s house. SPO2 Quevedo brought him to the
was conducted on him by Inspector Arreola. The result of the test Cebu City Police Station where he was investigated. Afterwards, he
showed there was gun powder residue on his right hand.
was taken to the Cebu City Medical Center for treatment of the
On 16 October 1996, Paradero was discharged from the Chong Hua injuries sustained during the incident. Later, he learned that Paradero
Hospital.
attacked him with a knife because Paradero had a quarrel with his
On 3 February 1997, Paradero was confined and she underwent (petitioner) wife’s relative named Dindo Ruiz (Ruiz), who was
another operation on her colon at the Don Vicente Sotto Medical allegedly stabbed and killed by Paradero’s bata-bata (subordinates).
Center. She was discharged therefrom on 14 February 1997.6
13

The defense likewise proffered the medical certificate of petitioner to THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN NOT
support his claims. The medical certificate states that petitioner was FINDING THAT THERE WAS NO INTENT TO KILL ON THE PART OF
treated for incised wounds on the left finger and for abdominal ACUSED-APPELLANT, PETITIONER HEREIN;

abrasion.14
IV.

After trial, the RTC rendered a Decision convicting petitioner of BOTH THE HONORABLE COURT OF APPEALS AND THE
frustrated homicide, sentencing him to an indeterminate term of 6 REGIONAL TRIAL COURT ERRED IN NOT APPRECIATING THE
years of prision correccional, as minimum, to 10 years of prision "EQUIPOISE DOCTRINE" IN FAVOR OF THE ACCUSED-
mayor, as maximum. He was also ordered to pay Paradero the APPELLANT, PETITIONER HEREIN;

amounts of P110,000.00 as actual damages, P50,000.00 as V.

exemplary damages, P9,000.00 as unearned income, and THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING IN
P50,000.00 as attorney’s fees. The dispositive portion of the RTC TOTO THE AWARD FOR DAMAGES GRANTED BY THE LOWER
Decision reads:
COURT;

WHEREFORE, PREMISES CONSIDERED, this Court finds the VI.

accused FERNANDO ESTABAS MAHAWAN, GUILTY of committing THE HONORABLE COURT OF APPEALS ERRED IN DENYING
the crime of FRUSTRATED HOMICIDE. He is hereby sentenced to ACCUSED-APPELLANT’S, PETITIONER HEREIN, EARNEST
suffer the indeterminate term of SIX (6) YEARS of PRISION MOTION FOR RECONSIDERATION WITHOUT CLEARLY SETTING
CORRECCIONAL as minimum to TEN (10) YEARS OF PRISION FORTH THE FACTS AND LAW AS BASIS FOR THE DENIAL
MAYOR as maximum thereto.15
THEREOF.20

Petitioner filed a motion for reconsideration16 of the RTC Decision In the main, petitioner argues he should be acquitted because he
but this was denied.17 Undaunted, he appealed to the Court of merely acted in self-defense when he shot Paradero during the
Appeals.
incident.

On 25 May 2006, the appellate court promulgated its Decision It is axiomatic that where an accused pleads self-defense, he
affirming in toto the RTC Decision. Petitioner sought a thereby admits authorship of the crime. Accordingly, the burden of
reconsideration18 of the appellate court’s decision but it was denied. evidence is shifted to the accused who must then prove with clear
19 Thus, petitioner lodged the instant petition before us assigning the and convincing proof the following elements of self-defense: (1)
following errors:
unlawful aggression on the part of the victim; (2) reasonable
I.
necessity of the means employed to prevent or repel the attack; and
THE HONORABLE COURT OF APPEALS ERRED IN CONCLUDING (3) lack of sufficient provocation on the part of the person defending
IN ITS QUESTIONED DECISION THAT ACCUSED-APPELLANT, himself. Although all three elements must concur, self-defense must
PETITIONER HEREIN, FAILED TO FIRMLY ESTABLISH THAT rest firstly on proof of unlawful aggression on the part of the victim. If
UNLAWFUL AGGRESSION PRECEDED HIS ATTACK ON THE no unlawful aggression attributed to the victim is established, there
PRIVATE OFFENDED PARTY;
can be no self-defense, whether complete or incomplete. Unlawful
II.
aggression is a condition sine qua non for the justifying
COROLLARILY TO THE FOREGOING, BOTH THE HONORABLE circumstance of self-defense to apply.21

COURT OF APPEALS AND THE REGIONAL TRIAL COURT As an element of self-defense, unlawful aggression refers to an
LIKEWISE ERRED IN CONCLUDING THAT THE SECOND AND assault or attack, or a threat thereof in an imminent and immediate
THIRD ELEMENTS OF SELF-DEFENSE ARE WANTING IN THE manner, which places the defendant’s life in actual peril. There is an
CASE AT BAR;
unlawful aggression on the part of the victim when he puts in actual
III.
or imminent danger the life, limb, or right of the person invoking self-
defense. There must be actual physical force or actual use of In the case at bar, there is insufficient evidence to determine who
weapon. To constitute unlawful aggression, the person attacked was the unlawful aggressor from the start, which would qualify
must be confronted by a real threat on his life and limb; and the peril accused’s claim of self-defense. It was thus held that:

sought to be avoided is imminent and actual, not merely imaginary.22

"In the absence of evidence showing that the victim was the unlawful
Petitioner asserts that the findings of the RTC and the Court of aggressor at the start, the law will consider the aggression as
Appeals are in contrast as to whether there was unlawful aggression reciprocal between the combatants."25

on the part of Paradero during the incident; that the Court of The subsequent disposition of the RTC implies that although the
Appeals erred in concluding that he failed to establish unlawful prosecution failed to show by sufficient evidence that it was
aggression on the part of Paradero; that such conclusion contradicts petitioner who first attacked Paradero, the defense likewise failed to
the RTC’s finding that there was unlawful aggression on the part of establish that unlawful aggression on the part of Paradero preceded
Paradero; and that the RTC’s view is more consistent with the facts petitioner’s attack on her. This, in effect, means that petitioner failed
and evidence on record as compared with the disquisition of the to discharge his burden of proving with clear and convincing
Court of Appeals.23
evidence that there was unlawful aggression on the part of Paradero.
We shall first ascertain whether the findings of the RTC and the This conclusion was evident from the fact that the RTC disregarded
Court of Appeals are contradictory as to whether petitioner failed to petitioner’s claim of self-defense and convicted the latter of
establish unlawful aggression on the part of Paradero.
frustrated homicide.26

In support of his claim that the RTC found unlawful aggression on The seemingly confusing statements in the RTC Decision may be a
the part of Paradero, petitioner quoted the following excerpts24 from mere result of inadvertence in the drafting of the same. Nevertheless,
the RTC Decision:
petitioner cannot capitalize on such in arguing his case. He cannot
This Court cannot sustain private complainant’s claim that accused pluck and cite some portions of the RTC Decision which fit his
Mahawan, for a flimsy reason that she had no more beer, would defense and disregard or omit those parts which are adverse to him.
immediately enter her store and shoot her with his firearm. x x x.
It should be borne in mind that the decision of the court should be
x x x x
read and understood in its entirety.27

Correspondingly, this Court would find Mahawan’s claim that it was Given the foregoing, we rule that there is no contradiction between
the private complainant who attacked him first, to be in accordance the findings of the RTC and the Court of Appeals that petitioner
with human knowledge and experience of mankind, more so, that failed to establish unlawful aggression on the part of Paradero.

accused has a corroborative witness in the person of Mr. Antonio We shall now determine whether the findings of both courts that
Artiaga, who testified that he saw private complainant holding a knife petitioner failed to establish unlawful aggression on the part of
and was attempting to stab the accused.
Paradero were correct.

As can be gleaned from the foregoing, the RTC believed petitioner’s Paradero testified that on the night of the incident, petitioner went to
allegation that it was Paradero who attacked first during the incident. her store and asked for a bottle of beer. When she told petitioner
It should be observed, however, that the RTC does not specifically that there was no more beer, the latter entered her store, confronted
state or conclude that there was unlawful aggression on the part of her, and shot her with a gun. There is nothing in the foregoing which
Paradero.
evinces unlawful aggression on the part of Paradero. What is clear is
In the succeeding paragraph, the RTC categorically pronounced that that petitioner was the aggressor during the incident. We have
there was insufficient evidence to determine the unlawful aggressor carefully examined the testimony of Paradero and found it to be
during the incident, thus:
credible and trustworthy. She testified in a clear and consistent
manner during the trial. She was faithful and steadfast in recounting
her ordeal despite the grueling cross-examination of the defense.
Besides, Paradero testified that petitioner was drunk at the time of number of wounds she sustained belie self-defense on petitioner’s
the incident. She also declared that she had known petitioner since part.31

1988 and that the latter had, under the influence of alcohol, Hence, the RTC and the Court of Appeals were correct in concluding
assaulted several persons.28 These circumstances reinforce the that petitioner failed to establish unlawful aggression on the part of
allegation petitioner’s propensity for harming people when he gets Paradero.

drunk.
Apropos the second issue, petitioner maintains that the second
On the other hand, petitioner narrated that when he went to element of self-defense, which is reasonable necessity of the means
Paradero’s store to buy cigarettes, the latter replied in a loud voice employed to prevent or repel the attack, was present in the instant
that she did not have any stock of cigarettes. Paradero, then holding case; that although he was younger, taller, and heavier than
a knife, suddenly went out of the store and attacked him. This Paradero, it does not mean that there was no reasonable necessity
testimony does not inspire belief. It is inconsistent with logic and on his part to shoot Paradero; that the RTC and the Court of Appeals
human experience that after Paradero told petitioner that there were overlooked the fact that he was forced to shoot Paradero because
no more cigarettes, Paradero would thereafter immediately attack the latter had already stabbed him twice and thus caused a wound
petitioner. Precisely, there was no reason for Paradero to be angry on his belly measuring 4 centimeters; that people react differently to
and thereupon assault petitioner. It was petitioner who had more a given situation, and that he merely acted under the instinct of self-
reason to be angry and attack Paradero, because the latter had told preservation; that any person placed in his situation during the
him in a loud voice that there were no more cigarettes. Petitioner incident would do the same thing he did and would not risk the
alleged that Paradero attacked him because she had a grudge chance of being stabbed for the third time or expose himself to
against his wife’s relative named Dindo Ruiz. He also claimed that unnecessary danger; and that it was unfair to judge his act as totally
Ruiz had been stabbed and killed by Paradero’s bata-bata and morally wrong.

(subordinates). These uncorroborated allegations deserve scant Further, petitioner avers that the third element of self-defense, which
consideration for being unsubstantiated and unsupported by is lack of sufficient provocation on the part of the person making the
evidence.
defense, was present in the case at bar; and that he did not commit
The fact that petitioner sustained injuries on his hand and stomach, any act or omission which provoked Paradero to attack him.32

allegedly caused by Paradero’s knife, does not signify that he was a The second element of self-defense requires that the means
victim of unlawful aggression. The medical certificate presented by employed by the person defending himself must be reasonably
petitioner states that the latter sustained incised wounds on the 2nd necessary to prevent or repel the unlawful aggression of the victim.
and 5th fingers measuring 2 centimeters and abdominal abrasion The reasonableness of the means employed may take into account
measuring 2.5 centimeters. Petitioner was discharged on the same the weapons, the physical condition of the parties and other
day he was treated in the hospital.29 It is clear from the foregoing circumstances showing that there is a rational equivalence between
that the injuries he sustained were not serious or severe. The the means of attack and the defense.33

superficiality of the injuries was not indication that his life and limb In the case at bar, there was no reason or necessity for petitioner to
were in actual peril.30
shoot Paradero with a gun. Paradero was merely tending her store
In stark contrast, Paradero sustained a gunshot wound on the left and did not attack or place in danger the life of petitioner during the
chest. The trajectory of the bullet hit and seriously injured her liver, incident. Even if we are to adopt petitioner’s version of the incident,
colon and diaphragm. This caused her to undergo two surgical his act of shooting Paradero would not also be a reasonable and
operations. She also sustained wounds on her left forearm, right necessary means of repelling the aggression allegedly initiated by
wrist and left earlobe. Based on the foregoing, it is difficult to believe Paradero. As aptly observed by the RTC:

that Paradero was the unlawful aggressor. The gravity, location, and
Indubitably, considering the age, height, built and sex of the accused Regarding the third issue, petitioner posits that the fact that he shot
and the victim, the accused was 31 years old and about 5’9 to 5’10 Paradero only once showed that he had no intent to kill her. There
in height and heavily built, while the victim is frail and about 5’1, would have been intent to kill on his part if he shot Paradero several
more or less, in height, the struggle for the possession of the knife times, but such was not the case. Further, when Paradero fell on the
would be over in a few seconds and accused would be able to ground, he immediately left the scene. He could have finished her off
disarm the victim. There is, therefore, no immediate need for the at that moment if he really intended to kill her.37

accused to fire his gun to stop the victim from attacking him. Proof An essential element of homicide, whether in its consummated,
of this is the knife presented by the accused in court which he had frustrated or attempted stage, is intent of the offender to kill the
allegedly confiscated from the private complainant.34
victim immediately before or simultaneously with the infliction of
In addition, petitioner was armed with a gun while Paradero injuries. Intent to kill is a specific intent which the prosecution must
supposedly held a knife. Petitioner should have fired a warning shot prove by direct or circumstantial evidence, while general criminal
first to ward off Paradero or, if the latter persisted in attacking, fired a intent is presumed from the commission of a felony by dolo.38

shot at a non-vital portion of her body in order to disable her instead Evidence to prove intent to kill in crimes against persons may
of shooting her instantly in the chest. Further, when Paradero consist, inter alia, of the means used by the malefactors; the nature,
allegedly approached and tried to stab him, petitioner was not location and number of wounds sustained by the victim; the conduct
trapped or cornered in a specific area such that he had no way out. of the malefactors before, at the time of, or immediately after the
He testified that he and Paradero were outside the store during the killing of the victim, the circumstances under which the crime was
incident. He could have run away and called the neighbors or police committed; and the motive of the accused.39

for help. In short, petitioner had other less harmful options than to In the instant case, petitioner used a lethal weapon, i.e., a gun, in
shoot Paradero. Indeed, petitioner’s act failed to pass the test of assaulting Paradero. He shot Paradero twice at a distance of two
reasonableness of the means employed in preventing or repelling an meters.40 The bullet from the first shot hit Paradero’s left chest. The
unlawful aggression.
trajectory of the bullet hit Paradero’s vital organs such as the liver
As we earlier found, petitioner shot Paradero when she told him and colon. The bullet from the second shot hit Paradero’s left
there was no more stock of cigarettes. Paradero then was forced to earlobe. Moreover, Dr. Guardiario testified that the injury on
grab a knife to defend herself. Clearly, petitioner provoked Paradero Paradero’s colon was fatal and would have caused her death were it
and not the other way around. Hence, the element of lack of not for the timely medical attention given her.41 The seriousness of
sufficient provocation on the part of the person making the defense Paradero’s injuries was also shown by the fact that she was confined
is also wanting in the present case.
and operated on twice in different hospitals for the wound sustained
Self-defense is inherently a weak defense because, as experience in the colon. Verily, the foregoing circumstances clearly manifest
has demonstrated, it is easy to fabricate and difficult to prove.35 intent to kill on the part of petitioner.

Thus, for this defense to prosper, the accused must prove with clear Even assuming, arguendo, that Paradero sustained only one gunshot
and convincing evidence the elements of self-defense. He must rely wound, such does not negate intent to kill on the part of petitioner.
on the strength of his own evidence and not on the weakness of that The number of wounds inflicted is not the sole consideration in
of the prosecution. Even if the evidence of the prosecution is weak, it proving intent to kill.42 As earlier mentioned, the means used by the
cannot be disbelieved if the accused admitted responsibility for the malefactors and the nature and location of the wounds also manifest
crime charged.36 In the case before us, petitioner failed to prove with intent to kill. Petitioner’s use of a gun in shooting Paradero on the
plausible evidence all the elements of self-defense. Hence, his plea chest and the fact that the bullet hit some of her vital organs of
of self-defense must fail.
Paradero clearly indicate intent to kill.

With regard to the fourth issue, petitioner claims that his testimony more issue as to the innocence or guilt of petitioner. What is left to
was corroborated by Artiaga, while the testimony of Paradero was be resolved is whether he can be relieved of liability by virtue of the
uncorroborated. As such, his testimony deserves credence and the self-defense he pleaded. We have earlier held that petitioner failed to
equipoise doctrine should be applied in his favor.43
discharge his burden of proving with clear and convincing evidence
Credibility is weighed not by the number of witnesses but by the the presence of the elements of self-defense. Thus, the equipoise
quality of their testimonies.44 Witnesses are to be weighed, not rule does not apply to this case.

numbered. Evidence is assessed in terms of quality and not quantity. As regards the fifth issue, petitioner avers that the award of actual
Therefore, it is not uncommon to reach a conclusion of guilt on the damages to Paradero in the amount of P110,000.00 was
basis of the testimony of a lone witness. For although the number of unwarranted, because her name was not indicated in the hospital
witnesses may be considered a factor in the appreciation of and medication receipts presented by the prosecution; that the grant
evidence, preponderance is not necessarily on the greatest number, of exemplary damages was not proper because there was unlawful
and conviction can still be had on the basis of the credible and aggression on the part of Paradero; that the award of P9,000.00 as
positive testimony of a single witness.45
unearned income was inappropriate, as there was no basis or
We have earlier found the sole testimony of Paradero to be more evidence to support the same; and that the award of attorney’s fees
credible than that of petitioner, even if the latter’s testimony was amounting to P50,000.00 was improper because there was unlawful
corroborated by Artiaga on some relevant points. Paradero’s aggression on the part of Paradero.49

account of the incident was clear and consistent. On the other hand, To be entitled to an award of actual damages, there must be
petitioner’s narration of the incident, though corroborated by Artiaga, competent proof of the actual amount of loss. Credence can only be
hardly inspires belief, as it does not conform to reason and human given to those that are supported by receipts.50

experience. Further, the RTC and CA upheld the sole testimony of Most of the receipts on record51 were issued in Paradero’s name.
Paradero over that of petitioner. They concluded that petitioner failed Although her name was not stated in the other receipts, it appears,
to prove his claim of self-defense despite the fact that her testimony however, that these receipts were issued to Paradero’s relatives and
was corroborated by Artiaga. Basic is the rule that factual findings of that the items covered by the same were purchased for Paradero.
the trial court deserve great weight and respect especially when Also, it is a fact that some pharmacy outlets do not specify the name
affirmed by the appellate court.46 We found no compelling reason to of the purchaser in the receipts they issue, but only indicate the
disturb the ruling of both courts. Given the foregoing, Paradero’s items sold and their corresponding amounts.

testimony outweighs the testimonies of petitioner and Artiaga.

The receipts on record show that Paradero incurred expenses in the
Petitioner’s reliance on the equipoise rule is misplaced. Under the amount of P22,426.06. She claimed other expenses, but they are not
equipoise rule, where the evidence on an issue of fact is in equipoise supported by receipts or other competent proofs. As such, the
(evenly balanced), or there is doubt on which side the evidence amount of actual damages awarded by the RTC and the Court of
preponderates, the party having the burden of proof loses.47 The Appeals should be reduced from P110,000.00 to P22,426.06.
equipoise rule finds application if the inculpatory facts and However, we have held that when actual damages proven by
circumstances are capable of two or more explanations -- one of receipts amount to less than P25,000.00, such as in the present
which is consistent with the innocence of the accused and the other case, the award of temperate damages amounting to P25,000.00 is
with his guilt -- in which case the evidence does not fulfill the test of justified in lieu of actual damages for a lesser amount.52 This is
moral certainty and is not sufficient to support a conviction.48
based on a sound reasoning that it would be anomalous and unfair
In the instant case, there are no inculpatory facts and circumstances that the victim who tried but succeeded in proving actual damages
which are capable of two or more explanations because petitioner of less than P25,000.00 only would be in a worse situation than
has already admitted shooting Paradero. In other words, there is no another who might have presented no receipts at all but would be
entitled to P25,000.00 temperate damages.53 Thus, instead of Likewise the award of attorney’s fees in the amount of P50,000.00 is
P22,426.06, the amount of P25,000.00 as temperate damages in order58 because the record shows that Paradero incurred such
should be awarded to Paradero.
expenses in hiring a private prosecutor for the instant case.59

We agree with petitioner that Paradero is not entitled to exemplary In his last assigned error, petitioner insists that the Court of Appeals
damages, but we differ in his reason for the disallowance thereof. erred in denying his motion for reconsideration without setting forth
Exemplary damages may be awarded only when one or more the factual and legal bases for the denial.

aggravating/qualifying circumstances are alleged in the information Art. VIII, Sec. 14 of the Constitution provides that "no petition for
and proved during the trial.54 In the instant case, no aggravating/ review or motion for reconsideration of a decision of the court
qualifying circumstance was alleged in the information. Hence, the shall be refused due course or denied without stating the legal
award of exemplary damages by the RTC and the Court of Appeals basis therefor." This requirement was fully complied with when the
is unwarranted.
Court of Appeals, in denying reconsideration of its decision, stated
The general rule is that documentary evidence should be presented in its resolution that it found no reason to change its ruling, because
to substantiate a claim for damages for loss of earning capacity. As petitioner had not raised anything new.60 Thus, its resolution denying
an exception, damages may be awarded in the absence of petitioner’s motion for reconsideration states:

documentary evidence, provided that there is testimony that the For consideration is accused-appellant’s motion for reconsideration
victim was either (1) self-employed and earning less than the of this Court’s decision promulgated on May 25, 2006. Acting on the
minimum wage under current labor laws, and judicial notice may be motion filed by the accused-appellant, and considering that the
taken of the fact that in victim’s line of work, no documentary same discloses no substantial argument or cogent reason to warrant
evidence is available; or (2) employed as a daily wage worker a reconsideration or modification of our assailed decision which has
earning less than the minimum wage under current labor laws.55 In already considered, if not squarely ruled upon, the arguments herein
the case under consideration, no documentary evidence was presented, we resolve to deny the motion.

adduced to support Paradero’s claim for loss of earning capacity. WHEREFORE, there being no cogent reason for us to depart from
Nonetheless, Paradero testified that she derived her income from our questioned findings, we hereby DENY the aforementioned
operating a small sari-sari store, which she also owned. She also motion.61

stated that she earned less than P50.00 a day from selling goods in We shall now determine the propriety of petitioner’s conviction for
her sari-sari store.56 It is a fact and commonly recognized in our frustrated homicide and the corresponding prison term imposed.

country that owners or operators of small sari-sari store, such as We have held that the crime of frustrated homicide is committed if
Paradero, do not issue official receipts since the quantity of the the following are present: (1) the accused intended to kill his victim,
items being sold is minimal and these are sold cheap. Thus, as manifested by his use of a deadly weapon in his assault; (2) the
Paradero is entitled to indemnity for loss of earning capacity. As to victim sustained fatal or mortal wound/s but did not die because of
its proper amount, we agree with the RTC and the Court of Appeals timely medical assistance; and (3) none of the qualifying
that Paradero is entitled to P9,000.00. Records57 show that Paradero circumstance for murder under Article 248 of the Revised Penal
underwent treatment and medication, which incapacitated her from Code is present.62

working in her store for a period of 6 months. Hence, the All of the aforementioned are present and were duly establish in the
computation is P50.00 multiplied by 180 days or 6 months. case at bar. First, petitioner’s use of a gun and his act of firing it
Consequently, the amount which she could have earned during the twice from a distance of 2 meters towards Paradero clearly indicated
said period was P9,000.00.
his intent to kill her. Second, vital organs of Paradero like her liver
and colon were hit by the trajectory of the bullet. Dr. Guardiario
testified that the injury on Paradero’s colon was fatal and would have
caused her death were it not for the timely medical attention given ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf
her. And third, none of the qualifying circumstances for murder was and as natural guardians of the minors, ROMMEL RAMOS, ROY
alleged in the information. Thus, the RTC and the Court of Appeals RODERICK RAMOS, and RON RAYMOND RAMOS, petitioners,

were correct in convicting petitioner of frustrated homicide.

vs.

Petitioner, nonetheless, alleges that he is entitled to the mitigating COURT OF APPEALS, DE LOS SANTOS MEDICAL CENTER, DR.
circumstance of voluntary surrender. We agree on this point with ORLINO HOSAKA and DR. PERFECTA GUTIERREZ, respondents.

petitioner. For voluntary surrender to be appreciated as a mitigating

circumstance, the following requisites must concur: (1) that the Private respondents De Los Santos Medical Center, Dr. Orlino
offender has not been actually arrested; (2) that the offender Hosaka and Dr. Perfecta Gutierrez move for a reconsideration of the
surrendered himself to a person in authority; and (3) that the Decision, dated December 29, 1999, of this Court holding them
surrender was voluntary.63 The foregoing requisites are present in the civilly liable for petitioner Erlinda Ramos’ comatose condition after
case before us. Petitioner has not been actually arrested. After the she delivered herself to them for their professional care and
incident, he immediately went to his brother’s house and thereupon management.

called via telephone a policeman named SPO2 Quevedo. He told For better understanding of the issues raised in private respondents’
SPO2 Quevedo that he wanted to surrender. Upon the latter’s arrival respective motions, we will briefly restate the facts of the case as
at the house of petitioner’s brother, petitioner turned himself in and, follows:

thereafter, he was brought to the police station.64 The prosecution Sometime in 1985, petitioner Erlinda Ramos, after seeking
did not rebut the foregoing facts.
professional medical help, was advised to undergo an operation for
The penalty for frustrated homicide, pursuant to Article 250 of the the removal of a stone in her gall bladder (cholecystectomy). She
Revised Penal Code, is prision mayor. There being one mitigating was referred to Dr. Hosaka, a surgeon, who agreed to perform the
circumstance and no aggravating circumstance, pursuant to Article operation on her. The operation was scheduled for June 17, 1985 at
64(2) of the Revised Penal Code, the minimum period of prision 9:00 in the morning at private respondent De Los Santos Medical
mayor should be imposed. Applying the Indeterminate Sentence Center (DLSMC). Since neither petitioner Erlinda nor her husband,
Law, the range of the penalty is 4 years, 2 months and 1 day to 6 petitioner Rogelio, knew of any anesthesiologist, Dr. Hosaka
years of prision correccional as minimum, to 6 years and 1 day to 8 recommended to them the services of Dr. Gutierrez.

years of prision mayor as maximum. Thus, the RTC and the Court of Petitioner Erlinda was admitted to the DLSMC the day before the
Appeals erred in sentencing petitioner to a term of 6 years of prision scheduled operation. By 7:30 in the morning of the following day,
correccional as minimum to 10 years of prision mayor as maximum. petitioner Erlinda was already being prepared for operation. Upon
The proper penalty to be imposed on petitioner is 6 years of prision the request of petitioner Erlinda, her sister-in-law, Herminda Cruz,
correccional, as minimum to 8 years of prision mayor, as maximum.
who was then Dean of the College of Nursing at the Capitol Medical
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR Center, was allowed to accompany her inside the operating room.

No. 00071, dated 25 May 2006, is hereby AFFIRMED with the At around 9:30 in the morning, Dr. Hosaka had not yet arrived so Dr.
following MODIFICATIONS: (1) petitioner Fernando Estabas Gutierrez tried to get in touch with him by phone. Thereafter, Dr.
Mahawan is sentenced to an indeterminate sentence of 6 years of Gutierrez informed Cruz that the operation might be delayed due to
prision correccional, as minimum to 8 years of prision mayor, as the late arrival of Dr. Hosaka. In the meantime, the patient, petitioner
maximum; (2) the amount of P25,000.00 as temperate damages is Erlinda said to Cruz, "Mindy, inip na inip na ako, ikuha mo ako ng
awarded to Diosdada Pardero in lieu of the actual damages; and (3) ibang Doctor."

the award of exemplary damages in the amount of P50,000.00 is By 10:00 in the morning, when Dr. Hosaka was still not around,
deleted.
petitioner Rogelio already wanted to pull out his wife from the
operating room. He met Dr. Garcia, who remarked that he was also WHEREFORE, the decision and resolution of the appellate court
tired of waiting for Dr. Hosaka. Dr. Hosaka finally arrived at the appealed from are hereby modified so as to award in favor of
hospital at around 12:10 in the afternoon, or more than three (3) petitioners, and solidarily against private respondents the following:
hours after the scheduled operation.
1) P1,352,000.00 as actual damages computed as of the date of
Cruz, who was then still inside the operating room, heard about Dr. promulgation of this decision plus a monthly payment of P8,000.00
Hosaka’s arrival. While she held the hand of Erlinda, Cruz saw Dr. up to the time that petitioner Erlinda Ramos expires or miraculously
Gutierrez trying to intubate the patient. Cruz heard Dr. Gutierrez survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as
utter: "ang hirap ma-intubate nito, mali yata ang pagkakapasok. O temperate damages; 4) P100,000.00 each exemplary damages and
lumalaki ang tiyan." Cruz noticed a bluish discoloration of Erlinda’s attorney’s fees; and 5) the costs of the suit.2

nailbeds on her left hand. She (Cruz) then heard Dr. Hosaka instruct In his Motion for Reconsideration, private respondent Dr. Hosaka
someone to call Dr. Calderon, another anesthesiologist. When he submits the following as grounds therefor:

arrived, Dr. Calderon attempted to intubate the patient. The nailbeds I

of the patient remained bluish, thus, she was placed in a THE HONORABLE SUPREME COURT COMMITTED REVERSIBLE
trendelenburg position – a position where the head of the patient is ERROR WHEN IT HELD RESPONDENT DR. HOSAKA LIABLE ON
placed in a position lower than her feet. At this point, Cruz went out THE BASIS OF THE "CAPTAIN-OF-THE-SHIP" DOCTRINE.

of the operating room to express her concern to petitioner Rogelio II

that Erlinda’s operation was not going well.

THE HONORABLE SUPREME COURT ERRED IN HOLDING
Cruz quickly rushed back to the operating room and saw that the RESPONDENT DR. HOSAKA LIABLE DESPITE THE FACT THAT NO
patient was still in trendelenburg position. At almost 3:00 in the NEGLIGENCE CAN BE ATTRIBUTABLE TO HIM.

afternoon, she saw Erlinda being wheeled to the Intensive Care Unit III

(ICU). The doctors explained to petitioner Rogelio that his wife had ASSUMING WITHOUT ADMITTING THAT RESPONDENT DR.
bronchospasm. Erlinda stayed in the ICU for a month. She was HOSAKA IS LIABLE, THE HONORABLE SUPREME COURT ERRED
released from the hospital only four months later or on November IN AWARDING DAMAGES THAT WERE CLEARLY EXCESSIVE AND
15, 1985. Since the ill-fated operation, Erlinda remained in comatose WITHOUT LEGAL BASIS.3

condition until she died on August 3, 1999.1

Private respondent Dr. Gutierrez, for her part, avers that:

Petitioners filed with the Regional Trial Court of Quezon City a civil A . T H E H O N O R A B L E S U P R E M E C O U R T M AY H A V E
case for damages against private respondents. After due trial, the INADVERTENTLY OVERLOOKED THE FACT THAT THE COURT OF
court a quo rendered judgment in favor of petitioners. Essentially, the APPEAL’S DECISION DATED 29 MAY 1995 HAD ALREADY
trial court found that private respondents were negligent in the BECOME FINAL AND EXECUTORY AS OF 25 JUNE 1995,
performance of their duties to Erlinda. On appeal by private THEREBY DEPRIVING THIS HONORABLE COURT OF
respondents, the Court of Appeals reversed the trial court’s decision JURISDICTION OVER THE INSTANT PETITION;

and directed petitioners to pay their "unpaid medical bills" to private B . T H E H O N O R A B L E S U P R E M E C O U R T M AY H AV E

respondents.
INADVERTENTLY OVERLOOKED SEVERAL MATERIAL FACTUAL
Petitioners filed with this Court a petition for review on certiorari. The CIRCUMSTANCES WHICH, IF PROPERLY CONSIDERED, WOULD
private respondents were then required to submit their respective INDUBITABLY LEAD TO NO OTHER CONCLUSION BUT THAT
comments thereon. On December 29, 1999, this Court promulgated PRIVATE RESPONDENT DOCTORS WERE NOT GUILTY OF ANY
the decision which private respondents now seek to be NEGLIGENCE IN RESPECT OF THE INSTANT CASE;

reconsidered. The dispositive portion of said Decision states:

B.1 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS
SUFFICIENTLY DISCHARGED THE BURDEN OF EVIDENCE BY
SUBSTANTIAL PROOF OF HER COMPLIANCE WITH THE In the Resolution of February 21, 2000, this Court denied the
STANDARDS OF DUE CARE EXPECTED IN HER RESPECTIVE motions for reconsideration of private respondents Drs. Hosaka and
FIELD OF MEDICAL SPECIALIZATION.
Gutierrez. They then filed their respective second motions for
B.2 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS reconsideration. The Philippine College of Surgeons filed its Petition-
SUFFICIENTLY DISCHARGED THE BURDEN OF EVIDENCE BY in-Intervention contending in the main that this Court erred in
SUBSTANTIAL PROOF OF HER HAVING SUCCESSFULLY holding private respondent Dr. Hosaka liable under the captain of the
INTUBATED PATIENT ERLINDA RAMOS
ship doctrine. According to the intervenor, said doctrine had long
C. THE SUPREME COURT MAY HAVE INADVERTENTLY PLACED been abandoned in the United States in recognition of the
TOO MUCH RELIANCE ON THE TESTIMONY OF PETITIONER’S developments in modern medical and hospital practice.6 The Court
WITNESS HERMINDA CRUZ, DESPITE THE EXISTENCE OF noted these pleadings in the Resolution of July 17, 2000.7

SEVERAL FACTUAL CIRCUMSTANCES WHICH RENDERS DOUBT On March 19, 2001, the Court heard the oral arguments of the
ON HER CREDIBILITY
parties, including the intervenor. Also present during the hearing
D. THE SUPREME COURT MAY HAVE INADVERTENTLY were the amicii curiae: Dr. Felipe A. Estrella, Jr., Consultant of the
DISREGARDED THE EXPERT TESTIMONY OF DR. JAMORA AND Philippine Charity Sweepstakes, former Director of the Philippine
DRA. CALDERON
General Hospital and former Secretary of Health; Dr. Iluminada T.
E . T H E H O N O R A B L E S U P R E M E C O U R T M AY H A V E Camagay, President of the Philippine Society of Anesthesiologists,
INADVERTENTLY AWARDED DAMAGES TO PETITIONERS DESPITE Inc. and Professor and Vice-Chair for Research, Department of
THE FACT THAT THERE WAS NO NEGLIGENCE ON THE PART OF Anesthesiology, College of Medicine-Philippine General Hospital,
RESPONDENT DOCTOR.4
University of the Philippines; and Dr. Lydia M. Egay, Professor and
Private respondent De Los Santos Medical Center likewise moves Vice-Chair for Academics, Department of Anesthesiology, College of
for reconsideration on the following grounds:
Medicine-Philippine General Hospital, University of the Philippines.

I
The Court enumerated the issues to be resolved in this case as
THE HONORABLE COURT ERRED IN GIVING DUE COURSE TO follows:

THE INSTANT PETITION AS THE DECISION OF THE HONORABLE 1. WHETHER OR NOT DR. ORLINO HOSAKA (SURGEON) IS
COURT OF APPEALS HAD ALREADY BECOME FINAL AND LIABLE FOR NEGLIGENCE;

EXECUTORY
2 . W H E T H E R O R N O T D R . P E R F E C TA G U T I E R R E Z
II
(ANESTHESIOLOGIST) IS LIABLE FOR NEGLIGENCE; AND

THE HONORABLE SUPREME COURT ERRED IN FINDING THAT AN 3. WHETHER OR NOT THE HOSPITAL (DELOS SANTOS MEDICAL
EMPLOYER-EMPLOYEE [RELATIONSHIP] EXISTS BETWEEN CENTER) IS LIABLE FOR ANY ACT OF NEGLIGENCE COMMITTED
RESPONDENT DE LOS SANTOS MEDICAL CENTER AND DRS. B Y T H E I R V I S I T I N G C O N S U LTA N T S U R G E O N A N D
ORLINO HOSAKA AND PERFECTA GUTIERREZ
ANESTHESIOLOGIST.8

III
We shall first resolve the issue pertaining to private respondent Dr.
THE HONORABLE SUPREME COURT ERRED IN FINDING THAT Gutierrez. She maintains that the Court erred in finding her negligent
RESPONDENT DE LOS SANTOS MEDICAL CENTER IS SOLIDARILY and in holding that it was the faulty intubation which was the
LIABLE WITH RESPONDENT DOCTORS
proximate cause of Erlinda’s comatose condition. The following
IV
objective facts allegedly negate a finding of negligence on her part:
THE HONORABLE SUPREME COURT ERRED IN INCREASING THE 1) That the outcome of the procedure was a comatose patient and
AWARD OF DAMAGES IN FAVOR OF PETITIONERS.5
not a dead one; 2) That the patient had a cardiac arrest; and 3) That
the patient was revived from that cardiac arrest.9 In effect, Dr.
Gutierrez insists that, contrary to the finding of this Court, the burden of responsibility in terms of selection of agent and how to
intubation she performed on Erlinda was successful.
administer it rest on the anesthesiologist.10

Unfortunately, Dr. Gutierrez’ claim of lack of negligence on her part is The conduct of a preanesthetic/preoperative evaluation prior to an
belied by the records of the case. It has been sufficiently established operation, whether elective or emergency, cannot be dispensed with.
that she failed to exercise the standards of care in the administration 11 Such evaluation is necessary for the formulation of a plan of

of anesthesia on a patient. Dr. Egay enlightened the Court on what anesthesia care suited to the needs of the patient concerned.

these standards are:

Pre-evaluation for anesthesia involves taking the patient’s medical
x x x What are the standards of care that an anesthesiologist should history, reviewing his current drug therapy, conducting physical
do before we administer anesthesia? The initial step is the examination, interpreting laboratory data, and determining the
preparation of the patient for surgery and this is a pre-operative appropriate prescription of preoperative medications as necessary to
evaluation because the anesthesiologist is responsible for the conduct of anesthesia.12

determining the medical status of the patient, developing the Physical examination of the patient entails not only evaluating the
anesthesia plan and acquainting the patient or the responsible adult patient’s central nervous system, cardiovascular system and lungs
particularly if we are referring with the patient or to adult patient who but also the upper airway. Examination of the upper airway would in
may not have, who may have some mental handicaps of the turn include an analysis of the patient’s cervical spine mobility,
proposed plans. We do pre-operative evaluation because this temporomandibular mobility, prominent central incisors, deceased or
provides for an opportunity for us to establish identification and artificial teeth, ability to visualize uvula and the thyromental distance.
personal acquaintance with the patient. It also makes us have an 13

opportunity to alleviate anxiety, explain techniques and risks to the Nonetheless, Dr. Gutierrez omitted to perform a thorough
patient, given the patient the choice and establishing consent to preoperative evaluation on Erlinda. As she herself admitted, she saw
proceed with the plan. And lastly, once this has been agreed upon Erlinda for the first time on the day of the operation itself, one hour
by all parties concerned the ordering of pre-operative medications. before the scheduled operation. She auscultated14 the patient’s heart
And following this line at the end of the evaluation we usually come and lungs and checked the latter’s blood pressure to determine if
up on writing, documentation is very important as far as when we Erlinda was indeed fit for operation.15 However, she did not proceed
train an anesthesiologist we always emphasize this because we to examine the patient’s airway. Had she been able to check
need records for our protection, well, records. And it entails having petitioner Erlinda’s airway prior to the operation, Dr. Gutierrez would
brief summary of patient history and physical findings pertinent to most probably not have experienced difficulty in intubating the
anesthesia, plan, organize as a problem list, the plan anesthesia former, and thus the resultant injury could have been avoided. As we
technique, the plan post operative, pain management if appropriate, have stated in our Decision:

special issues for this particular patient. There are needs for special In the case at bar, respondent Dra. Gutierrez admitted that she saw
care after surgery and if it so it must be written down there and a Erlinda for the first time on the day of the operation itself, on 17 June
request must be made known to proper authorities that such and 1985. Before this date, no prior consultations with, or pre-operative
such care is necessary. And the request for medical evaluation if evaluation of Erlinda was done by her. Until the day of the operation,
there is an indication. When we ask for a cardio-pulmonary respondent Dra. Gutierrez was unaware of the physiological make-
clearance it is not in fact to tell them if this patient is going to be fit up and needs of Erlinda. She was likewise not properly informed of
for anesthesia, the decision to give anesthesia rests on the the possible difficulties she would face during the administration of
anesthesiologist. What we ask them is actually to give us the anesthesia to Erlinda. Respondent Dra. Gutierrez’ act of seeing her
functional capacity of certain systems which maybe affected by the patient for the first time only an hour before the scheduled operative
anesthetic agent or the technique that we are going to use. But the procedure was, therefore, an act of exceptional negligence and
professional irresponsibility. The measures cautioning prudence and What is left to be determined therefore is whether Erlinda’s hapless
vigilance in dealing with human lives lie at the core of the physician’s condition was due to any fault or negligence on the part of Dr.
centuries-old Hippocratic Oath. Her failure to follow this medical Gutierrez while she (Erlinda) was under the latter’s care. Dr. Gutierrez
procedure is, therefore, a clear indicia of her negligence.16
maintains that the bronchospasm and cardiac arrest resulting in the
Further, there is no cogent reason for the Court to reverse its finding patient’s comatose condition was brought about by the anaphylactic
that it was the faulty intubation on Erlinda that caused her comatose reaction of the patient to Thiopental Sodium (pentothal).18 In the
condition. There is no question that Erlinda became comatose after Decision, we explained why we found Dr. Gutierrez’ theory
Dr. Gutierrez performed a medical procedure on her. Even the unacceptable. In the first place, Dr. Eduardo Jamora, the witness
counsel of Dr. Gutierrez admitted to this fact during the oral who was presented to support her (Dr. Gutierrez) theory, was a
arguments:
pulmonologist. Thus, he could not be considered an authority on
CHIEF JUSTICE:
anesthesia practice and procedure and their complications.19

Mr. Counsel, you started your argument saying that this involves a Secondly, there was no evidence on record to support the theory
comatose patient?
that Erlinda developed an allergic reaction to pentothal. Dr. Camagay
ATTY. GANA:
enlightened the Court as to the manifestations of an allergic reaction
Yes, Your Honor.
in this wise:

CHIEF JUSTICE:
DR. CAMAGAY:

How do you mean by that, a comatose, a comatose after any other All right, let us qualify an allergic reaction. In medical terminology an
acts were done by Dr. Gutierrez or comatose before any act was allergic reaction is something which is not usual response and it is
done by her?
further qualified by the release of a hormone called histamine and
ATTY. GANA:
histamine has an effect on all the organs of the body generally
No, we meant comatose as a final outcome of the procedure.
release because the substance that entered the body reacts with the
CHIEF JUSTICE:
particular cell, the mass cell, and the mass cell secretes this
Meaning to say, the patient became comatose after some histamine. In a way it is some form of response to take away that
intervention, professional acts have been done by Dr. Gutierrez?
which is not mine, which is not part of the body. So, histamine has
ATTY. GANA:
multiple effects on the body. So, one of the effects as you will see
Yes, Your Honor.
you will have redness, if you have an allergy you will have tearing of
CHIEF JUSTICE:
the eyes, you will have swelling, very crucial swelling sometimes of
In other words, the comatose status was a consequence of some the larynges which is your voice box main airway, that swelling may
acts performed by D. Gutierrez?
be enough to obstruct the entry of air to the trachea and you could
ATTY. GANA:
also have contraction, constriction of the smaller airways beyond the
It was a consequence of the well, (interrupted)
trachea, you see you have the trachea this way, we brought some
CHIEF JUSTICE:
visual aids but unfortunately we do not have a projector. And then
An acts performed by her, is that not correct?
you have the smaller airways, the bronchi and then eventually into
ATTY. GANA:
the mass of the lungs you have the bronchus. The difference is that
Yes, Your Honor.
these tubes have also in their walls muscles and this particular kind
CHIEF JUSTICE:
of muscles is smooth muscle so, when histamine is released they
Thank you.17
close up like this and that phenomenon is known as bronco spasm.
However, the effects of histamine also on blood vessels are different.
They dilate blood vessel open up and the patient or whoever has this
histamine release has hypertension or low blood pressure to a point continuously given & assisted positive pressure. Laboratory exams
that the patient may have decrease blood supply to the brain and done (see results in chart).

may collapse so, you may have people who have this.20
Patient was transferred to ICU for further management.22

These symptoms of an allergic reaction were not shown to have From the foregoing, it can be allegedly seen that there was no
been extant in Erlinda’s case. As we held in our Decision, "no withdrawal (extubation) of the tube. And the fact that the cyanosis
evidence of stridor, skin reactions, or wheezing – some of the more allegedly disappeared after pure oxygen was supplied through the
common accompanying signs of an allergic reaction – appears on tube proved that it was properly placed.

record. No laboratory data were ever presented to the court."21

The Court has reservations on giving evidentiary weight to the
Dr. Gutierrez, however, insists that she successfully intubated Erlinda entries purportedly contained in Dr. Gutierrez’ synopsis. It is
as evidenced by the fact that she was revived after suffering from significant to note that the said record prepared by Dr. Gutierrez was
cardiac arrest. Dr. Gutierrez faults the Court for giving credence to made only after Erlinda was taken out of the operating room. The
the testimony of Cruz on the matter of the administration of standard practice in anesthesia is that every single act that the
anesthesia when she (Cruz), being a nurse, was allegedly not anesthesiologist performs must be recorded. In Dr. Gutierrez’ case,
qualified to testify thereon. Rather, Dr. Gutierrez invites the Court’s she could not account for at least ten (10) minutes of what happened
attention to her synopsis on what transpired during Erlinda’s during the administration of anesthesia on Erlinda. The following
intubation:
exchange between Dr. Estrella, one of the amicii curiae, and Dr.
12:15 p.m. Patient was inducted with sodium pentothal 2.5% (250 Gutierrez is instructive:

mg) given by slow IV. 02 was started by mask. After pentothal DR. ESTRELLA

injection this was followed by IV injection of Norcuron 4mg. After 2 Q         You mentioned that there were two (2) attempts in the
minutes 02 was given by positive pressure for about one minute. intubation period?

Intubation with endotracheal tube 7.5 m in diameter was done with DR. GUTIERREZ

slight difficulty (short neck & slightly prominent upper teeth) chest Yes.

was examined for breath sounds & checked if equal on both sides. Q         There were two attempts. In the first attempt was the tube
The tube was then anchored to the mouth by plaster & cuff inflated. inserted or was the laryngoscope only inserted, which was inserted?

Ethrane 2% with 02 4 liters was given. Blood pressure was checked A         All the laryngoscope.

120/80 & heart rate regular and normal 90/min.

Q         All the laryngoscope. But if I remember right somewhere in
12:25 p.m. After 10 minutes patient was cyanotic. Ethrane was the re-direct, a certain lawyer, you were asked that you did a first
discontinued & 02 given alone. Cyanosis disappeared. Blood attempt and the question was – did you withdraw the tube? And you
pressure and heart beats stable.
said – you never withdrew the tube, is that right?

12:30 p.m. Cyanosis again reappeared this time with sibilant and A         Yes.

sonorous rales all over the chest. D_5%_H20 & 1 ampule of Q         Yes. And so if you never withdrew the tube then there was
aminophyline by fast drip was started. Still the cyanosis was no, there was no insertion of the tube during that first attempt. Now,
persistent. Patient was connected to a cardiac monitor. Another the other thing that we have to settle here is – when cyanosis
ampule of of [sic] aminophyline was given and solu cortef was given.
occurred, is it recorded in the anesthesia record when the cyanosis,
12:40 p.m. There was cardiac arrest. Extra cardiac massage and in your recording when did the cyanosis occur?

intercardiac injection of adrenalin was given & heart beat reappeared A         (sic)

in less than one minute. Sodium bicarbonate & another dose of solu Q         Is it a standard practice of anesthesia that whatever you do
cortef was given by IV. Cyanosis slowly disappeared & 02 during that period or from the time of induction to the time that you
probably get the patient out of the operating room that every single Q         So, more or less you attempted to do an intubation after the
action that you do is so recorded in your anesthesia record?
first attempt as you claimed that it was only the laryngoscope that
A         I was not able to record everything I did not have time was inserted.

anymore because I did that after the, when the patient was about to A         Yes.

leave the operating room. When there was second cyanosis already Q         And in the second attempt you inserted the laryngoscope
that was the (interrupted)
and now possible intubation?

Q         When was the first cyanosis?

A         Yes.

A         The first cyanosis when I was (interrupted)

Q         And at that point, you made a remark, what remark did you
Q         What time, more or less?
make?

A         I think it was 12:15 or 12:16.

A         I said "mahirap ata ito" when the first attempt I did not see
Q         Well, if the record will show you started induction at 12:15?
the trachea right away. That was when I (interrupted)

A         Yes, Your Honor.

Q         That was the first attempt?

Q         And the first medication you gave was what?

A         Yes.

A         The first medication, no, first the patient was oxygenated for Q         What about the second attempt?

around one to two minutes.

A         On the second attempt I was able to intubate right away
Q         Yes, so, that is about 12:13?
within two to three seconds.

A         Yes, and then, I asked the resident physician to start giving Q         At what point, for purposes of discussion without accepting
the pentothal very slowly and that was around one minute.
it, at what point did you make the comment "na mahirap ata to
Q         So, that is about 12:13 no, 12:15, 12:17?
intubate, mali ata ang pinasukan"

A         Yes, and then, after one minute another oxygenation was A         I did not say "mali ata ang pinasukan" I never said that.

given and after (interrupted)

Q         Well, just for the information of the group here the remarks I
Q         12:18?
am making is based on the documents that were forwarded to me
A         Yes, and then after giving the oxygen we start the menorcure by the Supreme Court. That is why for purposes of discussion I am
which is a relaxant. After that relaxant (interrupted)
trying to clarify this for the sake of enlightenment. So, at what point
Q         After that relaxant, how long do you wait before you do any did you ever make that comment?

manipulation?
A         Which one, sir?

A         Usually you wait for two minutes or three minutes.

Q         The "mahirap intubate ito" assuming that you (interrupted)

Q         So, if our estimate of the time is accurate we are now more or A         Iyon lang, that is what I only said "mahirap intubate
less 12:19, is that right?
(interrupted)

A         Maybe.
Q         At what point?

Q         12:19. And at that time, what would have been done to this A         When the first attempt when I inserted the laryngoscope for
patient?
the first time.

A         After that time you examine the, if there is relaxation of the Q         So, when you claim that at the first attempt you inserted the
jaw which you push it downwards and when I saw that the patient laryngoscope, right?

was relax because that monorcure is a relaxant, you cannot intubate A         Yes.

the patient or insert the laryngoscope if it is not keeping him relax. Q         But in one of the recordings somewhere at the, somewhere in
So, my first attempt when I put the laryngoscope on I saw the the transcript of records that when the lawyer of the other party try
trachea was deeply interiorly. So, what I did ask "mahirap ata ito ah." to inquire from you during the first attempt that was the time when
So, I removed the laryngoscope and oxygenated again the patient.
"mayroon ba kayong hinugot sa tube, I do not remember the page
now, but it seems to me it is there. So, that it was on the second transpired during the administration of anesthesia on Erlinda. As
attempt that (interrupted)
pointed out by Dr. Estrella, there was a ten-minute gap in Dr.
A         I was able to intubate.
Gutierrez’ synopsis, i.e., the vital signs of Erlinda were not recorded
Q         And this is more or less about what time 12:21?
during that time. The absence of these data is particularly significant
A         Maybe, I cannot remember the time, Sir.
because, as found by the trial court, it was the absence of oxygen
Q         Okay, assuming that this was done at 12:21 and looking at supply for four (4) to five (5) minutes that caused Erlinda’s comatose
the anesthesia records from 12:20 to 12:30 there was no recording condition.

of the vital signs. And can we presume that at this stage there was On the other hand, the Court has no reason to disbelieve the
already some problems in handling the patient?
testimony of Cruz. As we stated in the Decision, she is competent to
A         Not yet.
testify on matters which she is capable of observing such as, the
Q         But why are there no recordings in the anesthesia record?
statements and acts of the physician and surgeon, external
A         I did not have time.
appearances and manifest conditions which are observable by any
Q         Ah, you did not have time, why did you not have time?
one.24 Cruz, Erlinda’s sister-in-law, was with her inside the operating
A         Because it was so fast, I really (at this juncture the witness is room. Moreover, being a nurse and Dean of the Capitol Medical
laughing)
Center School of Nursing at that, she is not entirely ignorant of
Q         No, I am just asking. Remember I am not here not to pin anesthetic procedure. Cruz narrated that she heard Dr. Gutierrez
point on anybody I am here just to more or less clarify certainty more remark, "Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O
ore less on the record.
lumalaki ang tiyan." She observed that the nailbeds of Erlinda
A         Yes, Sir.
became bluish and thereafter Erlinda was placed in trendelenburg
Q         And so it seems that there were no recording during that position.25 Cruz further averred that she noticed that the abdomen of
span of ten (10) minutes. From 12:20 to 12:30, and going over your Erlinda became distended.26

narration, it seems to me that the cyanosis appeared ten (10) The cyanosis (bluish discoloration of the skin or mucous membranes
minutes after induction, is that right?
caused by lack of oxygen or abnormal hemoglobin in the blood) and
A         Yes.
enlargement of the stomach of Erlinda indicate that the endotracheal
Q         And that is after induction 12:15 that is 12:25 that was the tube was improperly inserted into the esophagus instead of the
first cyanosis?
trachea. Consequently, oxygen was delivered not to the lungs but to
A         Yes.
the gastrointestinal tract. This conclusion is supported by the fact
Q         And that the 12:25 is after the 12:20?
that Erlinda was placed in trendelenburg position. This indicates that
A         We cannot (interrupted)
there was a decrease of blood supply to the patient’s brain. The
Q         Huwag ho kayong makuwan, we are just trying to enlighten, I brain was thus temporarily deprived of oxygen supply causing
am just going over the record ano, kung mali ito kuwan eh di ano. Erlinda to go into coma.

So, ganoon po ano, that it seems to me that there is no recording The injury incurred by petitioner Erlinda does not normally happen
from 12:20 to 12:30, so, I am just wondering why there were no absent any negligence in the administration of anesthesia and in the
recordings during the period and then of course the second use of an endotracheal tube. As was noted in our Decision, the
cyanosis, after the first cyanosis. I think that was the time Dr. Hosaka instruments used in the administration of anesthesia, including the
came in?
endotracheal tube, were all under the exclusive control of private
A         No, the first cyanosis (interrupted).23
respondents Dr. Gutierrez and Dr. Hosaka.27 In Voss vs. Bridwell,28
We cannot thus give full credence to Dr. Gutierrez’ synopsis in light which involved a patient who suffered brain damage due to the
of her admission that it does not fully reflect the events that wrongful administration of anesthesia, and even before the
scheduled mastoid operation could be performed, the Kansas rejected the application of the "Captain-of-the-Ship Doctrine," citing
Supreme Court applied the doctrine of res ipsa loquitur, reasoning the fact that the field of medicine has become specialized such that
that the injury to the patient therein was one which does not surgeons can no longer be deemed as having control over the other
ordinarily take place in the absence of negligence in the personnel in the operating room. It held that "[a]n assignment of
administration of an anesthetic, and in the use and employment of liability based on actual control more realistically reflects the actual
an endotracheal tube. The court went on to say that "[o]rdinarily a relationship which exists in a modern operating room."35 Hence, only
person being put under anesthesia is not rendered decerebrate as a the anesthesiologist who inserted the endotracheal tube into the
consequence of administering such anesthesia in the absence of patient’s throat was held liable for the injury suffered by the latter.

negligence. Upon these facts and under these circumstances, a This contention fails to persuade.

layman would be able to say, as a matter of common knowledge and That there is a trend in American jurisprudence to do away with the
observation, that the consequences of professional treatment were Captain-of-the-Ship doctrine does not mean that this Court will ipso
not as such as would ordinarily have followed if due care had been facto follow said trend. Due regard for the peculiar factual
exercised."29 Considering the application of the doctrine of res ipsa circumstances obtaining in this case justify the application of the
loquitur, the testimony of Cruz was properly given credence in the Captain-of-the-Ship doctrine. From the facts on record it can be
case at bar.
logically inferred that Dr. Hosaka exercised a certain degree of, at the
For his part, Dr. Hosaka mainly contends that the Court erred in very least, supervision over the procedure then being performed on
finding him negligent as a surgeon by applying the Captain-of-the- Erlinda.

Ship doctrine.30 Dr. Hosaka argues that the trend in United States First, it was Dr. Hosaka who recommended to petitioners the
jurisprudence has been to reject said doctrine in light of the services of Dr. Gutierrez. In effect, he represented to petitioners that
developments in medical practice. He points out that anesthesiology Dr. Gutierrez possessed the necessary competence and skills. Drs.
and surgery are two distinct and specialized fields in medicine and Hosaka and Gutierrez had worked together since 1977. Whenever
as a surgeon, he is not deemed to have control over the acts of Dr. Dr. Hosaka performed a surgery, he would always engage the
Gutierrez. As anesthesiologist, Dr. Gutierrez is a specialist in her field services of Dr. Gutierrez to administer the anesthesia on his patient.
and has acquired skills and knowledge in the course of her training 36

which Dr. Hosaka, as a surgeon, does not possess.31 He states Second, Dr. Hosaka himself admitted that he was the attending
further that current American jurisprudence on the matter recognizes physician of Erlinda. Thus, when Erlinda showed signs of cyanosis, it
that the trend towards specialization in medicine has created was Dr. Hosaka who gave instructions to call for another
situations where surgeons do not always have the right to control all anesthesiologist and cardiologist to help resuscitate Erlinda.37

personnel within the operating room,32 especially a fellow specialist. Third, it is conceded that in performing their responsibilities to the
33
patient, Drs. Hosaka and Gutierrez worked as a team. Their work
Dr. Hosaka cites the case of Thomas v. Raleigh General Hospital,34 cannot be placed in separate watertight compartments because
which involved a suit filed by a patient who lost his voice due to the their duties intersect with each other.38

wrongful insertion of the endotracheal tube preparatory to the While the professional services of Dr. Hosaka and Dr. Gutierrez were
administration of anesthesia in connection with the laparotomy to be secured primarily for their performance of acts within their respective
conducted on him. The patient sued both the anesthesiologist and fields of expertise for the treatment of petitioner Erlinda, and that
the surgeon for the injury suffered by him. The Supreme Court of one does not exercise control over the other, they were certainly not
Appeals of West Virginia held that the surgeon could not be held completely independent of each other so as to absolve one from the
liable for the loss of the patient’s voice, considering that the surgeon negligent acts of the other physician.

did not have a hand in the intubation of the patient. The court
That they were working as a medical team is evident from the fact relieve pain. Now, it is very important to alleviate anxiety because
that Dr. Hosaka was keeping an eye on the intubation of the patient anxiety is associated with the outpouring of certain substances
by Dr. Gutierrez, and while doing so, he observed that the patient’s formed in the body called adrenalin. When a patient is anxious there
nails had become dusky and had to call Dr. Gutierrez’s attention is an outpouring of adrenalin which would have adverse effect on the
thereto. The Court also notes that the counsel for Dr. Hosaka patient. One of it is high blood pressure, the other is that he opens
admitted that in practice, the anesthesiologist would also have to himself to disturbances in the heart rhythm, which would have
observe the surgeon’s acts during the surgical process and calls the adverse implications. So, we would like to alleviate patient’s anxiety
attention of the surgeon whenever necessary39 in the course of the mainly because he will not be in control of his body there could be
treatment. The duties of Dr. Hosaka and those of Dr. Gutierrez in the adverse results to surgery and he will be opened up; a knife is going
treatment of petitioner Erlinda are therefore not as clear-cut as to open up his body. x x x42

respondents claim them to be. On the contrary, it is quite apparent Dr. Hosaka cannot now claim that he was entirely blameless of what
that they have a common responsibility to treat the patient, which happened to Erlinda. His conduct clearly constituted a breach of his
responsibility necessitates that they call each other’s attention to the professional duties to Erlinda:

condition of the patient while the other physician is performing the CHIEF JUSTICE:

necessary medical procedures.

Two other points. The first, Doctor, you were talking about anxiety,
It is equally important to point out that Dr. Hosaka was remiss in his would you consider a patient's stay on the operating table for three
duty of attending to petitioner Erlinda promptly, for he arrived more hours sufficient enough to aggravate or magnify his or her anxiety?

than three (3) hours late for the scheduled operation. The DR. CAMAGAY:

cholecystectomy was set for June 17, 1985 at 9:00 a.m., but he Yes.

arrived at DLSMC only at around 12:10 p.m. In reckless disregard for CHIEF JUSTICE:

his patient’s well being, Dr. Hosaka scheduled two procedures on In other words, I understand that in this particular case that was the
the same day, just thirty minutes apart from each other, at different case, three hours waiting and the patient was already on the
hospitals. Thus, when the first procedure (protoscopy) at the Sta. operating table (interrupted)

Teresita Hospital did not proceed on time, Erlinda was kept in a state DR. CAMAGAY:

of uncertainty at the DLSMC.

Yes.

The unreasonable delay in petitioner Erlinda’s scheduled operation CHIEF JUSTICE:

subjected her to continued starvation and consequently, to the risk Would you therefore conclude that the surgeon contributed to the
of acidosis,40 or the condition of decreased alkalinity of the blood aggravation of the anxiety of the patient?

and tissues, marked by sickly sweet breath, headache, nausea and DR. CAMAGAY:

vomiting, and visual disturbances.41 The long period that Dr. Hosaka That this operation did not take place as scheduled is already a
made Erlinda wait for him certainly aggravated the anxiety that she source of anxiety and most operating tables are very narrow and that
must have been feeling at the time. It could be safely said that her patients are usually at risk of falling on the floor so there are
anxiety adversely affected the administration of anesthesia on her. restraints that are placed on them and they are never, never left
As explained by Dr. Camagay, the patient’s anxiety usually causes alone in the operating room by themselves specially if they are
the outpouring of adrenaline which in turn results in high blood already pre-medicated because they may not be aware of some of
pressure or disturbances in the heart rhythm:
their movement that they make which would contribute to their
DR. CAMAGAY:
injury.

x x x Pre-operative medication has three main functions: One is to CHIEF JUSTICE:

alleviate anxiety. Second is to dry up the secretions and Third is to

In other words due diligence would require a surgeon to come on the power to control not only the end to be achieved, but the means
time?
to be used in reaching such an end.47

DR. CAMAGAY:
DLSMC maintains that first, a hospital does not hire or engage the
I think it is not even due diligence it is courtesy.
services of a consultant, but rather, accredits the latter and grants
CHIEF JUSTICE:
him or her the privilege of maintaining a clinic and/or admitting
Courtesy.
patients in the hospital upon a showing by the consultant that he or
DR. CAMAGAY:
she possesses the necessary qualifications, such as accreditation by
And care.
the appropriate board (diplomate), evidence of fellowship and
CHIEF JUSTICE:
references.48 Second, it is not the hospital but the patient who pays
Duty as a matter of fact?
the consultant’s fee for services rendered by the latter.49 Third, a
DR. CAMAGAY:
hospital does not dismiss a consultant; instead, the latter may lose
Yes, Your Honor.43
his or her accreditation or privileges granted by the hospital.50 Lastly,
Dr. Hosaka's irresponsible conduct of arriving very late for the DLSMC argues that when a doctor refers a patient for admission in a
scheduled operation of petitioner Erlinda is violative, not only of his hospital, it is the doctor who prescribes the treatment to be given to
duty as a physician "to serve the interest of his patients with the said patient. The hospital’s obligation is limited to providing the
greatest solicitude, giving them always his best talent and skill,"44 patient with the preferred room accommodation, the nutritional diet
but also of Article 19 of the Civil Code which requires a person, in and medications prescribed by the doctor, the equipment and
the performance of his duties, to act with justice and give everyone facilities necessary for the treatment of the patient, as well as the
his due.
services of the hospital staff who perform the ministerial tasks of
Anent private respondent DLSMC’s liability for the resulting injury to ensuring that the doctor’s orders are carried out strictly.51

petitioner Erlinda, we held that respondent hospital is solidarily liable After a careful consideration of the arguments raised by DLSMC, the
with respondent doctors therefor under Article 2180 of the Civil Court finds that respondent hospital’s position on this issue is
Code45 since there exists an employer-employee relationship meritorious. There is no employer-employee relationship between
between private respondent DLSMC and Drs. Gutierrez and Hosaka:
DLSMC and Drs. Gutierrez and Hosaka which would hold DLSMC
In other words, private hospitals, hire, fire and exercise real control solidarily liable for the injury suffered by petitioner Erlinda under
over their attending and visiting "consultant" staff. While Article 2180 of the Civil Code.

"consultants" are not, technically employees, x x x the control As explained by respondent hospital, that the admission of a
exercised, the hiring and the right to terminate consultants all fulfill physician to membership in DLSMC’s medical staff as active or
the important hallmarks of an employer-employee relationship, with visiting consultant is first decided upon by the Credentials
the exception of the payment of wages. In assessing whether such a Committee thereof, which is composed of the heads of the various
relationship in fact exists, the control test is determining. x x x46
specialty departments such as the Department of Obstetrics and
DLSMC however contends that applying the four-fold test in Gynecology, Pediatrics, Surgery with the department head of the
determining whether such a relationship exists between it and the particular specialty applied for as chairman. The Credentials
respondent doctors, the inescapable conclusion is that DLSMC Committee then recommends to DLSMC's Medical Director or
cannot be considered an employer of the respondent doctors.
Hospital Administrator the acceptance or rejection of the applicant
It has been consistently held that in determining whether an physician, and said director or administrator validates the
employer-employee relationship exists between the parties, the committee's recommendation. 52 Similarly, in cases where a
following elements must be present: (1) selection and engagement of disciplinary action is lodged against a consultant, the same is
services; (2) payment of wages; (3) the power to hire and fire; and (4) initiated by the department to whom the consultant concerned
belongs and filed with the Ethics Committee consisting of the continuing and possible future complications directly arising from the
department specialty heads. The medical director/hospital injury, while certain to occur, are difficult to predict.

administrator merely acts as ex-officio member of said committee.

In these cases, the amount of damages which should be awarded, if
Neither is there any showing that it is DLSMC which pays any of its they are to adequately and correctly respond to the injury caused,
consultants for medical services rendered by the latter to their should be one which compensates for pecuniary loss incurred and
respective patients. Moreover, the contract between the consultant proved, up to the time of trial; and one which would meet pecuniary
in respondent hospital and his patient is separate and distinct from loss certain to be suffered but which could not, from the nature of
the contract between respondent hospital and said patient. The first the case, be made with certainty. In other words, temperate
has for its object the rendition of medical services by the consultant damages can and should be awarded on top of actual or
to the patient, while the second concerns the provision by the compensatory damages in instances where the injury is chronic and
hospital of facilities and services by its staff such as nurses and continuing. And because of the unique nature of such cases, no
laboratory personnel necessary for the proper treatment of the incompatibility arises when both actual and temperate damages are
patient.
provided for. The reason is that these damages cover two distinct
Further, no evidence was adduced to show that the injury suffered phases.

by petitioner Erlinda was due to a failure on the part of respondent As it would not be equitable—and certainly not in the best interests
DLSMC to provide for hospital facilities and staff necessary for her of the administration of justice—for the victim in such cases to
treatment.
constantly come before the courts and invoke their aid in seeking
For these reasons, we reverse the finding of liability on the part of adjustments to the compensatory damages previously awarded—
DLSMC for the injury suffered by petitioner Erlinda.
temperate damages are appropriate. The amount given as temperate
Finally, the Court also deems it necessary to modify the award of damages, though to a certain extent speculative, should take into
damages to petitioners in view of the supervening event of petitioner account the cost of proper care.

Erlinda’s death. In the assailed Decision, the Court awarded actual In the instant case, petitioners were able to provide only home-
damages of One Million Three Hundred Fifty Two Thousand Pesos based nursing care for a comatose patient who has remained in that
(P1,352,000.00) to cover the expenses for petitioner Erlinda’s condition for over a decade. Having premised our award for
treatment and care from the date of promulgation of the Decision up compensatory damages on the amount provided by petitioners at
to the time the patient expires or survives.53 In addition thereto, the the onset of litigation, it would be now much more in step with the
Court awarded temperate damages of One Million Five Hundred interests of justice if the value awarded for temperate damages
Thousand Pesos (P1,500,000.00) in view of the chronic and would allow petitioners to provide optimal care for their loved one in
continuing nature of petitioner Erlinda’s injury and the certainty of a facility which generally specializes in such care. They should not
further pecuniary loss by petitioners as a result of said injury, the be compelled by dire circumstances to provide substandard care at
amount of which, however, could not be made with certainty at the home without the aid of professionals, for anything less would be
time of the promulgation of the decision. The Court justified such grossly inadequate. Under the circumstances, an award of
award in this manner:
P1,500,000.00 in temperate damages would therefore be
Our rules on actual or compensatory damages generally assume reasonable.54

that at the time of litigation, the injury suffered as a consequence of However, subsequent to the promulgation of the Decision, the Court
an act of negligence has been completed and that the cost can be was informed by petitioner Rogelio that petitioner Erlinda died on
liquidated. However, these provisions neglect to take into account August 3, 1999.55 In view of this supervening event, the award of
those situations, as in this case, where the resulting injury might be temperate damages in addition to the actual or compensatory
damages would no longer be justified since the actual damages
awarded in the Decision are sufficient to cover the medical expenses On April 4, 1984, Natividad Agana was rushed to the Medical City
incurred by petitioners for the patient. Hence, only the amounts General Hospital (Medical City Hospital) because of difficulty of
representing actual, moral and exemplary damages, attorney’s fees bowel movement and bloody anal discharge. After a series of
and costs of suit should be awarded to petitioners.
medical examinations, Dr. Miguel Ampil, petitioner in G.R. No.
WHEREFORE, the assailed Decision is hereby modified as follows:
127590, diagnosed her to be suffering from "cancer of the sigmoid."

(1) Private respondent De Los Santos Medical Center is hereby On April 11, 1984, Dr. Ampil, assisted by the medical staff4 of the
absolved from liability arising from the injury suffered by petitioner Medical City Hospital, performed an anterior resection surgery on
Erlinda Ramos on June 17, 1985;
Natividad. He found that the malignancy in her sigmoid area had
(2) Private respondents Dr. Orlino Hosaka and Dr. Perfecta Gutierrez spread on her left ovary, necessitating the removal of certain
are hereby declared to be solidarily liable for the injury suffered by portions of it. Thus, Dr. Ampil obtained the consent of Natividad’s
petitioner Erlinda on June 17, 1985 and are ordered to pay husband, Enrique Agana, to permit Dr. Juan Fuentes, respondent in
petitioners—
G.R. No. 126467, to perform hysterectomy on her.

(a) P1,352,000.00 as actual damages;

After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took
(b) P2,000,000.00 as moral damages;
over, completed the operation and closed the incision.

(c) P100,000.00 as exemplary damages;

However, the operation appeared to be flawed. In the corresponding
(d) P100,000.00 as attorney’s fees; and
Record of Operation dated April 11, 1984, the attending nurses
(e) the costs of the suit.
entered these remarks:

SO ORDERED.
"sponge count lacking 2

"announced to surgeon searched (sic) done but to no avail continue

PROFESSIONAL SERVICES, INC., Petitioner,
for closure."

vs.
On April 24, 1984, Natividad was released from the hospital. Her
NATIVIDAD and ENRIQUE AGANA, Respondents.
hospital and medical bills, including the doctors’ fees, amounted to
P60,000.00.

Hospitals, having undertaken one of mankind’s most important and After a couple of days, Natividad complained of excruciating pain in
delicate endeavors, must assume the grave responsibility of her anal region. She consulted both Dr. Ampil and Dr. Fuentes about
pursuing it with appropriate care. The care and service dispensed it. They told her that the pain was the natural consequence of the
through this high trust, however technical, complex and esoteric its surgery. Dr. Ampil then recommended that she consult an oncologist
character may be, must meet standards of responsibility to examine the cancerous nodes which were not removed during the
commensurate with the undertaking to preserve and protect the operation.

health, and indeed, the very lives of those placed in the hospital’s On May 9, 1984, Natividad, accompanied by her husband, went to
keeping.1
the United States to seek further treatment. After four months of
Assailed in these three consolidated petitions for review on certiorari consultations and laboratory examinations, Natividad was told she
is the Court of Appeals’ Decision2 dated September 6, 1996 in CA- was free of cancer. Hence, she was advised to return to the
G.R. CV No. 42062 and CA-G.R. SP No. 32198 affirming with Philippines.

modification the Decision3 dated March 17, 1993 of the Regional On August 31, 1984, Natividad flew back to the Philippines, still
Trial Court (RTC), Branch 96, Quezon City in Civil Case No. Q-43322 suffering from pains. Two weeks thereafter, her daughter found a
and nullifying its Order dated September 21, 1993.
piece of gauze protruding from her vagina. Upon being informed
The facts, as culled from the records, are:
about it, Dr. Ampil proceeded to her house where he managed to
extract by hand a piece of gauze measuring 1.5 inches in width. He a. The equivalent in Philippine Currency of the total of US$19,900.00
then assured her that the pains would soon vanish.
at the rate of P21.60-US$1.00, as reimbursement of actual expenses
Dr. Ampil’s assurance did not come true. Instead, the pains incurred in the United States of America;

intensified, prompting Natividad to seek treatment at the Polymedic b. The sum of P4,800.00 as travel taxes of plaintiffs and their
General Hospital. While confined there, Dr. Ramon Gutierrez physician daughter;

detected the presence of another foreign object in her vagina -- a c. The total sum of P45,802.50, representing the cost of
foul-smelling gauze measuring 1.5 inches in width which badly hospitalization at Polymedic Hospital, medical fees, and cost of the
infected her vaginal vault. A recto-vaginal fistula had formed in her saline solution;

reproductive organs which forced stool to excrete through the 2. As moral damages, the sum of P2,000,000.00;

vagina. Another surgical operation was needed to remedy the 3. As exemplary damages, the sum of P300,000.00;

damage. Thus, in October 1984, Natividad underwent another 4. As attorney’s fees, the sum of P250,000.00;

surgery.
5. Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove,
On November 12, 1984, Natividad and her husband filed with the from date of filing of the complaint until full payment; and

RTC, Branch 96, Quezon City a complaint for damages against the 6. Costs of suit.

Professional Services, Inc. (PSI), owner of the Medical City Hospital, SO ORDERED.

Dr. Ampil, and Dr. Fuentes, docketed as Civil Case No. Q-43322. Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to
They alleged that the latter are liable for negligence for leaving two the Court of Appeals, docketed as CA-G.R. CV No. 42062.

pieces of gauze inside Natividad’s body and malpractice for Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion
concealing their acts of negligence.
for a partial execution of its Decision, which was granted in an Order
Meanwhile, Enrique Agana also filed with the Professional Regulation dated May 11, 1993. Thereafter, the sheriff levied upon certain
Commission (PRC) an administrative complaint for gross negligence properties of Dr. Ampil and sold them for P451,275.00 and delivered
and malpractice against Dr. Ampil and Dr. Fuentes, docketed as the amount to the Aganas.

Administrative Case No. 1690. The PRC Board of Medicine heard Following their receipt of the money, the Aganas entered into an
the case only with respect to Dr. Fuentes because it failed to acquire agreement with PSI and Dr. Fuentes to indefinitely suspend any
jurisdiction over Dr. Ampil who was then in the United States.
further execution of the RTC Decision. However, not long thereafter,
On February 16, 1986, pending the outcome of the above cases, the Aganas again filed a motion for an alias writ of execution against
Natividad died and was duly substituted by her above-named the properties of PSI and Dr. Fuentes. On September 21, 1993, the
children (the Aganas).
RTC granted the motion and issued the corresponding writ,
On March 17, 1993, the RTC rendered its Decision in favor of the prompting Dr. Fuentes to file with the Court of Appeals a petition for
Aganas, finding PSI, Dr. Ampil and Dr. Fuentes liable for negligence certiorari and prohibition, with prayer for preliminary injunction,
and malpractice, the decretal part of which reads:
docketed as CA-G.R. SP No. 32198. During its pendency, the Court
WHEREFORE, judgment is hereby rendered for the plaintiffs ordering of Appeals issued a Resolution5 dated October 29, 1993 granting Dr.
the defendants PROFESSIONAL SERVICES, INC., DR. MIGUEL Fuentes’ prayer for injunctive relief.

AMPIL and DR. JUAN FUENTES to pay to the plaintiffs, jointly and On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with
severally, except in respect of the award for exemplary damages and CA-G.R. CV No. 42062.

the interest thereon which are the liabilities of defendants Dr. Ampil Meanwhile, on January 23, 1995, the PRC Board of Medicine
and Dr. Fuentes only, as follows:
rendered its Decision6 in Administrative Case No. 1690 dismissing
1. As actual damages, the following amounts:
the case against Dr. Fuentes. The Board held that the prosecution
failed to show that Dr. Fuentes was the one who left the two pieces
of gauze inside Natividad’s body; and that he concealed such fact Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of
from Natividad.
Appeals erred in finding him liable for negligence and malpractice
On September 6, 1996, the Court of Appeals rendered its Decision sans evidence that he left the two pieces of gauze in Natividad’s
jointly disposing of CA-G.R. CV No. 42062 and CA-G.R. SP No. vagina. He pointed to other probable causes, such as: (1) it was Dr.
32198, thus:
Fuentes who used gauzes in performing the hysterectomy; (2) the
WHEREFORE, except for the modification that the case against attending nurses’ failure to properly count the gauzes used during
defendant-appellant Dr. Juan Fuentes is hereby DISMISSED, and surgery; and (3) the medical intervention of the American doctors
with the pronouncement that defendant-appellant Dr. Miguel Ampil is who examined Natividad in the United States of America.

liable to reimburse defendant-appellant Professional Services, Inc., For our resolution are these three vital issues: first, whether the
whatever amount the latter will pay or had paid to the plaintiffs- Court of Appeals erred in holding Dr. Ampil liable for negligence and
appellees, the decision appealed from is hereby AFFIRMED and the malpractice; second, whether the Court of Appeals erred in
instant appeal DISMISSED.
absolving Dr. Fuentes of any liability; and third, whether PSI may be
Concomitant with the above, the petition for certiorari and held solidarily liable for the negligence of Dr. Ampil.

prohibition filed by herein defendant-appellant Dr. Juan Fuentes in I - G.R. No. 127590

CA-G.R. SP No. 32198 is hereby GRANTED and the challenged Whether the Court of Appeals Erred in Holding Dr. Ampil

order of the respondent judge dated September 21, 1993, as well as Liable for Negligence and Malpractice.

the alias writ of execution issued pursuant thereto are hereby Dr. Ampil, in an attempt to absolve himself, gears the Court’s
NULLIFIED and SET ASIDE. The bond posted by the petitioner in attention to other possible causes of Natividad’s detriment. He
connection with the writ of preliminary injunction issued by this argues that the Court should not discount either of the following
Court on November 29, 1993 is hereby cancelled.
possibilities: first, Dr. Fuentes left the gauzes in Natividad’s body
Costs against defendants-appellants Dr. Miguel Ampil and after performing hysterectomy; second, the attending nurses erred in
Professional Services, Inc.
counting the gauzes; and third, the American doctors were the ones
SO ORDERED.
who placed the gauzes in Natividad’s body.

Only Dr. Ampil filed a motion for reconsideration, but it was denied in Dr. Ampil’s arguments are purely conjectural and without basis.
a Resolution7 dated December 19, 1996.
Records show that he did not present any evidence to prove that the
Hence, the instant consolidated petitions.
American doctors were the ones who put or left the gauzes in
In G.R. No. 126297, PSI alleged in its petition that the Court of Natividad’s body. Neither did he submit evidence to rebut the
Appeals erred in holding that: (1) it is estopped from raising the correctness of the record of operation, particularly the number of
defense that Dr. Ampil is not its employee; (2) it is solidarily liable gauzes used. As to the alleged negligence of Dr. Fuentes, we are
with Dr. Ampil; and (3) it is not entitled to its counterclaim against the mindful that Dr. Ampil examined his (Dr. Fuentes’) work and found it
Aganas. PSI contends that Dr. Ampil is not its employee, but a mere in order.

consultant or independent contractor. As such, he alone should The glaring truth is that all the major circumstances, taken together,
answer for his negligence.
as specified by the Court of Appeals, directly point to Dr. Ampil as
In G.R. No. 126467, the Aganas maintain that the Court of Appeals the negligent party, thus:

erred in finding that Dr. Fuentes is not guilty of negligence or medical First, it is not disputed that the surgeons used gauzes as sponges to
malpractice, invoking the doctrine of res ipsa loquitur. They contend control the bleeding of the patient during the surgical operation.

that the pieces of gauze are prima facie proofs that the operating Second, immediately after the operation, the nurses who assisted in
surgeons have been negligent.
the surgery noted in their report that the ‘sponge count (was) lacking
2’; that such anomaly was ‘announced to surgeon’ and that a
‘search was done but to no avail’ prompting Dr. Ampil to ‘continue our mind, what was initially an act of negligence by Dr. Ampil has
for closure’ x x x.
ripened into a deliberate wrongful act of deceiving his patient.

Third, after the operation, two (2) gauzes were extracted from the This is a clear case of medical malpractice or more appropriately,
same spot of the body of Mrs. Agana where the surgery was medical negligence. To successfully pursue this kind of case, a
performed.
patient must only prove that a health care provider either failed to do
An operation requiring the placing of sponges in the incision is not something which a reasonably prudent health care provider would
complete until the sponges are properly removed, and it is settled have done, or that he did something that a reasonably prudent
that the leaving of sponges or other foreign substances in the wound provider would not have done; and that failure or action caused
after the incision has been closed is at least prima facie negligence injury to the patient.11 Simply put, the elements are duty, breach,
by the operating surgeon.8 To put it simply, such act is considered so injury and proximate causation. Dr, Ampil, as the lead surgeon, had
inconsistent with due care as to raise an inference of negligence. the duty to remove all foreign objects, such as gauzes, from
There are even legions of authorities to the effect that such act is Natividad’s body before closure of the incision. When he failed to do
negligence per se.9
so, it was his duty to inform Natividad about it. Dr. Ampil breached
Of course, the Court is not blind to the reality that there are times both duties. Such breach caused injury to Natividad, necessitating
when danger to a patient’s life precludes a surgeon from further her further examination by American doctors and another surgery.
searching missing sponges or foreign objects left in the body. But That Dr. Ampil’s negligence is the proximate cause12 of Natividad’s
this does not leave him free from any obligation. Even if it has been injury could be traced from his act of closing the incision despite the
shown that a surgeon was required by the urgent necessities of the information given by the attending nurses that two pieces of gauze
case to leave a sponge in his patient’s abdomen, because of the were still missing. That they were later on extracted from Natividad’s
dangers attendant upon delay, still, it is his legal duty to so inform vagina established the causal link between Dr. Ampil’s negligence
his patient within a reasonable time thereafter by advising her of and the injury. And what further aggravated such injury was his
what he had been compelled to do. This is in order that she might deliberate concealment of the missing gauzes from the knowledge of
seek relief from the effects of the foreign object left in her body as Natividad and her family.

her condition might permit. The ruling in Smith v. Zeagler10 is explicit, II - G.R. No. 126467

thus:
Whether the Court of Appeals Erred in Absolving

The removal of all sponges used is part of a surgical operation, and Dr. Fuentes of any Liability

when a physician or surgeon fails to remove a sponge he has placed The Aganas assailed the dismissal by the trial court of the case
in his patient’s body that should be removed as part of the against Dr. Fuentes on the ground that it is contrary to the doctrine
operation, he thereby leaves his operation uncompleted and creates of res ipsa loquitur. According to them, the fact that the two pieces
a new condition which imposes upon him the legal duty of calling of gauze were left inside Natividad’s body is a prima facie evidence
the new condition to his patient’s attention, and endeavoring with of Dr. Fuentes’ negligence.

the means he has at hand to minimize and avoid untoward results We are not convinced.

likely to ensue therefrom.

Literally, res ipsa loquitur means "the thing speaks for itself." It is the
Here, Dr. Ampil did not inform Natividad about the missing two rule that the fact of the occurrence of an injury, taken with the
pieces of gauze. Worse, he even misled her that the pain she was surrounding circumstances, may permit an inference or raise a
experiencing was the ordinary consequence of her operation. Had presumption of negligence, or make out a plaintiff’s prima facie case,
he been more candid, Natividad could have taken the immediate and and present a question of fact for defendant to meet with an
appropriate medical remedy to remove the gauzes from her body. To explanation.13 Stated differently, where the thing which caused the
injury, without the fault of the injured, is under the exclusive control
of the defendant and the injury is such that it should not have ordering the closure of the incision. To our mind, it was this act of
occurred if he, having such control used proper care, it affords ordering the closure of the incision notwithstanding that two pieces
reasonable evidence, in the absence of explanation that the injury of gauze remained unaccounted for, that caused injury to Natividad’s
arose from the defendant’s want of care, and the burden of proof is body. Clearly, the control and management of the thing which
shifted to him to establish that he has observed due care and caused the injury was in the hands of Dr. Ampil, not Dr. Fuentes.

diligence.14
In this jurisdiction, res ipsa loquitur is not a rule of substantive law,
From the foregoing statements of the rule, the requisites for the hence, does not per se create or constitute an independent or
applicability of the doctrine of res ipsa loquitur are: (1) the separate ground of liability, being a mere evidentiary rule.17 In other
occurrence of an injury; (2) the thing which caused the injury was words, mere invocation and application of the doctrine does not
under the control and management of the defendant; (3) the dispense with the requirement of proof of negligence. Here, the
occurrence was such that in the ordinary course of things, would not negligence was proven to have been committed by Dr. Ampil and
have happened if those who had control or management used not by Dr. Fuentes.

proper care; and (4) the absence of explanation by the defendant. Of III - G.R. No. 126297

the foregoing requisites, the most instrumental is the "control and Whether PSI Is Liable for the Negligence of Dr. Ampil

management of the thing which caused the injury."15

The third issue necessitates a glimpse at the historical development
We find the element of "control and management of the thing which of hospitals and the resulting theories concerning their liability for the
caused the injury" to be wanting. Hence, the doctrine of res ipsa negligence of physicians.

loquitur will not lie.

Until the mid-nineteenth century, hospitals were generally charitable
It was duly established that Dr. Ampil was the lead surgeon during institutions, providing medical services to the lowest classes of
the operation of Natividad. He requested the assistance of Dr. society, without regard for a patient’s ability to pay.18 Those who
Fuentes only to perform hysterectomy when he (Dr. Ampil) found that could afford medical treatment were usually treated at home by their
the malignancy in her sigmoid area had spread to her left ovary. Dr. doctors.19 However, the days of house calls and philanthropic health
Fuentes performed the surgery and thereafter reported and showed care are over. The modern health care industry continues to distance
his work to Dr. Ampil. The latter examined it and finding everything to itself from its charitable past and has experienced a significant
be in order, allowed Dr. Fuentes to leave the operating room. Dr. conversion from a not-for-profit health care to for-profit hospital
Ampil then resumed operating on Natividad. He was about to finish businesses. Consequently, significant changes in health law have
the procedure when the attending nurses informed him that two accompanied the business-related changes in the hospital industry.
pieces of gauze were missing. A "diligent search" was conducted, One important legal change is an increase in hospital liability for
but the misplaced gauzes were not found. Dr. Ampil then directed medical malpractice. Many courts now allow claims for hospital
that the incision be closed. During this entire period, Dr. Fuentes was vicarious liability under the theories of respondeat superior, apparent
no longer in the operating room and had, in fact, left the hospital.
authority, ostensible authority, or agency by estoppel. 20

Under the "Captain of the Ship" rule, the operating surgeon is the In this jurisdiction, the statute governing liability for negligent acts is
person in complete charge of the surgery room and all personnel Article 2176 of the Civil Code, which reads:

connected with the operation. Their duty is to obey his orders.16 As Art. 2176. Whoever by act or omission causes damage to another,
stated before, Dr. Ampil was the lead surgeon. In other words, he there being fault or negligence, is obliged to pay for the damage
was the "Captain of the Ship." That he discharged such role is done. Such fault or negligence, if there is no pre-existing contractual
evident from his following conduct: (1) calling Dr. Fuentes to perform relation between the parties, is called a quasi-delict and is governed
a hysterectomy; (2) examining the work of Dr. Fuentes and finding it by the provisions of this Chapter.

in order; (3) granting Dr. Fuentes’ permission to leave; and (4)

A derivative of this provision is Article 2180, the rule governing The case of Schloendorff v. Society of New York Hospital26 was then
vicarious liability under the doctrine of respondeat superior, thus:
considered an authority for this view. The "Schloendorff doctrine"
ART. 2180. The obligation imposed by Article 2176 is demandable regards a physician, even if employed by a hospital, as an
not only for one’s own acts or omissions, but also for those of independent contractor because of the skill he exercises and the
persons for whom one is responsible.
lack of control exerted over his work. Under this doctrine, hospitals
x x x x x x
are exempt from the application of the respondeat superior principle
The owners and managers of an establishment or enterprise are for fault or negligence committed by physicians in the discharge of
likewise responsible for damages caused by their employees in the their profession.

service of the branches in which the latter are employed or on the However, the efficacy of the foregoing doctrine has weakened with
occasion of their functions.
the significant developments in medical care. Courts came to realize
Employers shall be liable for the damages caused by their that modern hospitals are increasingly taking active role in supplying
employees and household helpers acting within the scope of their and regulating medical care to patients. No longer were a hospital’s
assigned tasks even though the former are not engaged in any functions limited to furnishing room, food, facilities for treatment and
business or industry.
operation, and attendants for its patients. Thus, in Bing v. Thunig,27
x x x x x x
the New York Court of Appeals deviated from the Schloendorff
The responsibility treated of in this article shall cease when the doctrine, noting that modern hospitals actually do far more than
persons herein mentioned prove that they observed all the diligence provide facilities for treatment. Rather, they regularly employ, on a
of a good father of a family to prevent damage.
salaried basis, a large staff of physicians, interns, nurses,
A prominent civilist commented that professionals engaged by an administrative and manual workers. They charge patients for medical
employer, such as physicians, dentists, and pharmacists, are not care and treatment, even collecting for such services through legal
"employees" under this article because the manner in which they action, if necessary. The court then concluded that there is no
perform their work is not within the control of the latter (employer). In reason to exempt hospitals from the universal rule of respondeat
other words, professionals are considered personally liable for the superior.

fault or negligence they commit in the discharge of their duties, and In our shores, the nature of the relationship between the hospital and
their employer cannot be held liable for such fault or negligence. In the physicians is rendered inconsequential in view of our categorical
the context of the present case, "a hospital cannot be held liable for pronouncement in Ramos v. Court of Appeals28 that for purposes of
the fault or negligence of a physician or surgeon in the treatment or apportioning responsibility in medical negligence cases, an
operation of patients."21
employer-employee relationship in effect exists between hospitals
The foregoing view is grounded on the traditional notion that the and their attending and visiting physicians. This Court held:

professional status and the very nature of the physician’s calling "We now discuss the responsibility of the hospital in this particular
preclude him from being classed as an agent or employee of a incident. The unique practice (among private hospitals) of filling up
hospital, whenever he acts in a professional capacity.22 It has been specialist staff with attending and visiting "consultants," who are
said that medical practice strictly involves highly developed and allegedly not hospital employees, presents problems in apportioning
specialized knowledge,23 such that physicians are generally free to responsibility for negligence in medical malpractice cases. However,
exercise their own skill and judgment in rendering medical services the difficulty is more apparent than real.

sans interference.24 Hence, when a doctor practices medicine in a In the first place, hospitals exercise significant control in the hiring
hospital setting, the hospital and its employees are deemed to and firing of consultants and in the conduct of their work within the
subserve him in his ministrations to the patient and his actions are of hospital premises. Doctors who apply for ‘consultant’ slots, visiting
his own responsibility.25
or attending, are required to submit proof of completion of residency,
their educational qualifications, generally, evidence of accreditation out" theory, or doctrine of ostensible agency or agency by estoppel,
by the appropriate board (diplomate), evidence of fellowship in most 29 has its origin from the law of agency. It imposes liability, not as the

cases, and references. These requirements are carefully scrutinized result of the reality of a contractual relationship, but rather because
by members of the hospital administration or by a review committee of the actions of a principal or an employer in somehow misleading
set up by the hospital who either accept or reject the application. x x the public into believing that the relationship or the authority exists.30
x.
The concept is essentially one of estoppel and has been explained in
After a physician is accepted, either as a visiting or attending this manner:

consultant, he is normally required to attend clinico-pathological "The principal is bound by the acts of his agent with the apparent
conferences, conduct bedside rounds for clerks, interns and authority which he knowingly permits the agent to assume, or which
residents, moderate grand rounds and patient audits and perform he holds the agent out to the public as possessing. The question in
other tasks and responsibilities, for the privilege of being able to every case is whether the principal has by his voluntary act placed
maintain a clinic in the hospital, and/or for the privilege of admitting the agent in such a situation that a person of ordinary prudence,
patients into the hospital. In addition to these, the physician’s conversant with business usages and the nature of the particular
performance as a specialist is generally evaluated by a peer review business, is justified in presuming that such agent has authority to
committee on the basis of mortality and morbidity statistics, and perform the particular act in question.31

feedback from patients, nurses, interns and residents. A consultant The applicability of apparent authority in the field of hospital liability
remiss in his duties, or a consultant who regularly falls short of the was upheld long time ago in Irving v. Doctor Hospital of Lake Worth,
minimum standards acceptable to the hospital or its peer review Inc.32 There, it was explicitly stated that "there does not appear to be
committee, is normally politely terminated.
any rational basis for excluding the concept of apparent authority
In other words, private hospitals, hire, fire and exercise real control from the field of hospital liability." Thus, in cases where it can be
over their attending and visiting ‘consultant’ staff. While ‘consultants’ shown that a hospital, by its actions, has held out a particular
are not, technically employees, x x x, the control exercised, the physician as its agent and/or employee and that a patient has
hiring, and the right to terminate consultants all fulfill the important accepted treatment from that physician in the reasonable belief that
hallmarks of an employer-employee relationship, with the exception it is being rendered in behalf of the hospital, then the hospital will be
of the payment of wages. In assessing whether such a relationship in liable for the physician’s negligence.

fact exists, the control test is determining. Accordingly, on the basis Our jurisdiction recognizes the concept of an agency by implication
of the foregoing, we rule that for the purpose of allocating or estoppel. Article 1869 of the Civil Code reads:

responsibility in medical negligence cases, an employer-employee ART. 1869. Agency may be express, or implied from the acts of the
relationship in effect exists between hospitals and their attending principal, from his silence or lack of action, or his failure to repudiate
and visiting physicians. "
the agency, knowing that another person is acting on his behalf
But the Ramos pronouncement is not our only basis in sustaining without authority.

PSI’s liability. Its liability is also anchored upon the agency principle In this case, PSI publicly displays in the lobby of the Medical City
of apparent authority or agency by estoppel and the doctrine of Hospital the names and specializations of the physicians associated
corporate negligence which have gained acceptance in the or accredited by it, including those of Dr. Ampil and Dr. Fuentes. We
determination of a hospital’s liability for negligent acts of health concur with the Court of Appeals’ conclusion that it "is now
professionals. The present case serves as a perfect platform to test estopped from passing all the blame to the physicians whose names
the applicability of these doctrines, thus, enriching our it proudly paraded in the public directory leading the public to
jurisprudence.
believe that it vouched for their skill and competence." Indeed, PSI’s
Apparent authority, or what is sometimes referred to as the "holding
act is tantamount to holding out to the public that Medical City
Hospital, through its accredited physicians, offers quality health care negligent acts of health practitioners, absent facts to support the
services. By accrediting Dr. Ampil and Dr. Fuentes and publicly application of respondeat superior or apparent authority. Its
advertising their qualifications, the hospital created the impression formulation proceeds from the judiciary’s acknowledgment that in
that they were its agents, authorized to perform medical or surgical these modern times, the duty of providing quality medical service is
services for its patients. As expected, these patients, Natividad no longer the sole prerogative and responsibility of the physician.
being one of them, accepted the services on the reasonable belief The modern hospitals have changed structure. Hospitals now tend
that such were being rendered by the hospital or its employees, to organize a highly professional medical staff whose competence
agents, or servants. The trial court correctly pointed out:
and performance need to be monitored by the hospitals
x x x regardless of the education and status in life of the patient, he commensurate with their inherent responsibility to provide quality
ought not be burdened with the defense of absence of employer- medical care.35

employee relationship between the hospital and the independent The doctrine has its genesis in Darling v. Charleston Community
physician whose name and competence are certainly certified to the Hospital.36 There, the Supreme Court of Illinois held that "the jury
general public by the hospital’s act of listing him and his specialty in could have found a hospital negligent, inter alia, in failing to have a
its lobby directory, as in the case herein. The high costs of today’s sufficient number of trained nurses attending the patient; failing to
medical and health care should at least exact on the hospital greater, require a consultation with or examination by members of the
if not broader, legal responsibility for the conduct of treatment and hospital staff; and failing to review the treatment rendered to the
surgery within its facility by its accredited physician or surgeon, patient." On the basis of Darling, other jurisdictions held that a
regardless of whether he is independent or employed."33
hospital’s corporate negligence extends to permitting a physician
The wisdom of the foregoing ratiocination is easy to discern. known to be incompetent to practice at the hospital.37 With the
Corporate entities, like PSI, are capable of acting only through other passage of time, more duties were expected from hospitals, among
individuals, such as physicians. If these accredited physicians do them: (1) the use of reasonable care in the maintenance of safe and
their job well, the hospital succeeds in its mission of offering quality adequate facilities and equipment; (2) the selection and retention of
medical services and thus profits financially. Logically, where competent physicians; (3) the overseeing or supervision of all
negligence mars the quality of its services, the hospital should not persons who practice medicine within its walls; and (4) the
be allowed to escape liability for the acts of its ostensible agents.
formulation, adoption and enforcement of adequate rules and
We now proceed to the doctrine of corporate negligence or policies that ensure quality care for its patients.38 Thus, in Tucson
corporate responsibility.
Medical Center, Inc. v. Misevich,39 it was held that a hospital,
One allegation in the complaint in Civil Case No. Q-43332 for following the doctrine of corporate responsibility, has the duty to see
negligence and malpractice is that PSI as owner, operator and that it meets the standards of responsibilities for the care of patients.
manager of Medical City Hospital, "did not perform the necessary Such duty includes the proper supervision of the members of its
supervision nor exercise diligent efforts in the supervision of Drs. medical staff. And in Bost v. Riley,40 the court concluded that a
Ampil and Fuentes and its nursing staff, resident doctors, and patient who enters a hospital does so with the reasonable
medical interns who assisted Drs. Ampil and Fuentes in the expectation that it will attempt to cure him. The hospital accordingly
performance of their duties as surgeons."34 Premised on the doctrine has the duty to make a reasonable effort to monitor and oversee the
of corporate negligence, the trial court held that PSI is directly liable treatment prescribed and administered by the physicians practicing
for such breach of duty.
in its premises.

We agree with the trial court.

In the present case, it was duly established that PSI operates the
Recent years have seen the doctrine of corporate negligence as the Medical City Hospital for the purpose and under the concept of
judicial answer to the problem of allocating hospital’s liability for the providing comprehensive medical services to the public.
Accordingly, it has the duty to exercise reasonable care to protect hospital responsible where the hospital has failed to monitor and
from harm all patients admitted into its facility for medical treatment. review medical services being provided within its walls. See Kahn
Unfortunately, PSI failed to perform such duty. The findings of the Hospital Malpractice Prevention, 27 De Paul . Rev. 23 (1977).

trial court are convincing, thus:

Among the cases indicative of the ‘emerging trend’ is Purcell v.
x x x PSI’s liability is traceable to its failure to conduct an Zimbelman, 18 Ariz. App. 75,500 P. 2d 335 (1972). In Purcell, the
investigation of the matter reported in the nota bene of the count hospital argued that it could not be held liable for the malpractice of
nurse. Such failure established PSI’s part in the dark conspiracy of a medical practitioner because he was an independent contractor
silence and concealment about the gauzes. Ethical considerations, if within the hospital. The Court of Appeals pointed out that the
not also legal, dictated the holding of an immediate inquiry into the hospital had created a professional staff whose competence and
events, if not for the benefit of the patient to whom the duty is performance was to be monitored and reviewed by the governing
primarily owed, then in the interest of arriving at the truth. The Court body of the hospital, and the court held that a hospital would be
cannot accept that the medical and the healing professions, through negligent where it had knowledge or reason to believe that a doctor
their members like defendant surgeons, and their institutions like using the facilities was employing a method of treatment or care
PSI’s hospital facility, can callously turn their backs on and disregard which fell below the recognized standard of care.

even a mere probability of mistake or negligence by refusing or Subsequent to the Purcell decision, the Arizona Court of Appeals
failing to investigate a report of such seriousness as the one in held that a hospital has certain inherent responsibilities regarding the
Natividad’s case.
quality of medical care furnished to patients within its walls and it
It is worthy to note that Dr. Ampil and Dr. Fuentes operated on must meet the standards of responsibility commensurate with this
Natividad with the assistance of the Medical City Hospital’s staff, undertaking. Beeck v. Tucson General Hospital, 18 Ariz. App. 165,
composed of resident doctors, nurses, and interns. As such, it is 500 P. 2d 1153 (1972). This court has confirmed the rulings of the
reasonable to conclude that PSI, as the operator of the hospital, has Court of Appeals that a hospital has the duty of supervising the
actual or constructive knowledge of the procedures carried out, competence of the doctors on its staff. x x x.

particularly the report of the attending nurses that the two pieces of x x x x x x

gauze were missing. In Fridena v. Evans,41 it was held that a In the amended complaint, the plaintiffs did plead that the operation
corporation is bound by the knowledge acquired by or notice given was performed at the hospital with its knowledge, aid, and
to its agents or officers within the scope of their authority and in assistance, and that the negligence of the defendants was the
reference to a matter to which their authority extends. This means proximate cause of the patient’s injuries. We find that such general
that the knowledge of any of the staff of Medical City Hospital allegations of negligence, along with the evidence produced at the
constitutes knowledge of PSI. Now, the failure of PSI, despite the trial of this case, are sufficient to support the hospital’s liability based
attending nurses’ report, to investigate and inform Natividad on the theory of negligent supervision."

regarding the missing gauzes amounts to callous negligence. Not Anent the corollary issue of whether PSI is solidarily liable with Dr.
only did PSI breach its duties to oversee or supervise all persons Ampil for damages, let it be emphasized that PSI, apart from a
who practice medicine within its walls, it also failed to take an active general denial of its responsibility, failed to adduce evidence
step in fixing the negligence committed. This renders PSI, not only showing that it exercised the diligence of a good father of a family in
vicariously liable for the negligence of Dr. Ampil under Article 2180 of the accreditation and supervision of the latter. In neglecting to offer
the Civil Code, but also directly liable for its own negligence under such proof, PSI failed to discharge its burden under the last
Article 2176. In Fridena, the Supreme Court of Arizona held:
paragraph of Article 2180 cited earlier, and, therefore, must be
x x x In recent years, however, the duty of care owed to the patient adjudged solidarily liable with Dr. Ampil. Moreover, as we have
by the hospital has expanded. The emerging trend is to hold the discussed, PSI is also directly liable to the Aganas.

One final word. Once a physician undertakes the treatment and care without full payment of their hospital bill, respondents brought the
of a patient, the law imposes on him certain obligations. In order to cadaver of Angelica to the Philippine National Police (PNP) Crime
escape liability, he must possess that reasonable degree of learning, Laboratory at Camp Crame for post-mortem examination. The
skill and experience required by his profession. At the same time, he Medico-Legal Report issued by said institution indicated the cause
must apply reasonable care and diligence in the exercise of his skill of death as "Hypovolemic shock secondary to multiple organ
and the application of his knowledge, and exert his best judgment.
hemorrhages and Disseminated Intravascular Coagulation."5

WHEREFORE, we DENY all the petitions and AFFIRM the challenged On the other hand, the Certificate of Death6 issued by SLMC stated
Decision of the Court of Appeals in CA-G.R. CV No. 42062 and CA- the cause of death as follows:

G.R. SP No. 32198.

Immediate cause : a. Osteosarcoma, Status Post AKA

Costs against petitioners PSI and Dr. Miguel Ampil.

Antecedent cause : b. (above knee amputation)

Underlying cause : c. Status Post Chemotherapy

DR. RUBI LI, Petitioner,

On February 21, 1994, respondents filed a damage suit7 against
vs.
petitioner, Dr. Leo Marbella, Mr. Jose Ledesma, a certain Dr. Arriete
SPOUSES REYNALDO and LINA SOLIMAN, as parents/heirs of and SLMC. Respondents charged them with negligence and
deceased Angelica Soliman, Respondents.
disregard of Angelica’s safety, health and welfare by their careless
administration of the chemotherapy drugs, their failure to observe
Challenged in this petition for review on certiorari is the Decision1 the essential precautions in detecting early the symptoms of fatal
dated June 15, 2004 as well as the Resolution2 dated September 1, blood platelet decrease and stopping early on the chemotherapy,
2004 of the Court of Appeals (CA) in CA-G.R. CV No. 58013 which which bleeding led to hypovolemic shock that caused Angelica’s
modified the Decision3 dated September 5, 1997 of the Regional untimely demise. Further, it was specifically averred that petitioner
Trial Court of Legazpi City, Branch 8 in Civil Case No. 8904.
assured the respondents that Angelica would recover in view of 95%
The factual antecedents:
chance of healing with chemotherapy ("Magiging normal na ang
On July 7, 1993, respondents’ 11-year old daughter, Angelica anak nyo basta ma-chemo. 95% ang healing") and when asked
Soliman, underwent a biopsy of the mass located in her lower regarding the side effects, petitioner mentioned only slight vomiting,
extremity at the St. Luke’s Medical Center (SLMC). Results showed hair loss and weakness ("Magsusuka ng kaunti. Malulugas ang
that Angelica was suffering from osteosarcoma, osteoblastic type,4 a buhok. Manghihina"). Respondents thus claimed that they would not
high-grade (highly malignant) cancer of the bone which usually have given their consent to chemotherapy had petitioner not falsely
afflicts teenage children. Following this diagnosis and as primary assured them of its side effects.

intervention, Angelica’s right leg was amputated by Dr. Jaime In her answer,8 petitioner denied having been negligent in
Tamayo in order to remove the tumor. As adjuvant treatment to administering the chemotherapy drugs to Angelica and asserted that
eliminate any remaining cancer cells, and hence minimize the she had fully explained to respondents how the chemotherapy will
chances of recurrence and prevent the disease from spreading to affect not only the cancer cells but also the patient’s normal body
other parts of the patient’s body (metastasis), chemotherapy was parts, including the lowering of white and red blood cells and
suggested by Dr. Tamayo. Dr. Tamayo referred Angelica to another platelets. She claimed that what happened to Angelica can be
doctor at SLMC, herein petitioner Dr. Rubi Li, a medical oncologist.
attributed to malignant tumor cells possibly left behind after surgery.
On August 18, 1993, Angelica was admitted to SLMC. However, she Few as they may be, these have the capacity to compete for
died on September 1, 1993, just eleven (11) days after the nutrients such that the body becomes so weak structurally
(intravenous) administration of the first cycle of the chemotherapy (cachexia) and functionally in the form of lower resistance of the
regimen. Because SLMC refused to release a death certificate body to combat infection. Such infection becomes uncontrollable
and triggers a chain of events (sepsis or septicemia) that may lead to On August 18, 1993, respondents brought Angelica to SLMC for
bleeding in the form of Disseminated Intravascular Coagulation chemotherapy, bringing with them the results of the laboratory tests
(DIC), as what the autopsy report showed in the case of Angelica.
requested by petitioner: Angelica’s chest x-ray, ultrasound of the
Since the medical records of Angelica were not produced in court, liver, creatinine and complete liver function tests.13 Petitioner
the trial and appellate courts had to rely on testimonial evidence, proceeded with the chemotherapy by first administering hydration
principally the declarations of petitioner and respondents fluids to Angelica.14

themselves. The following chronology of events was gathered:

The following day, August 19, petitioner began administering three
On July 23, 1993, petitioner saw the respondents at the hospital chemotherapy drugs – Cisplatin,15 Doxorubicin16 and Cosmegen17 –
after Angelica’s surgery and discussed with them Angelica’s intravenously. Petitioner was supposedly assisted by her trainees Dr.
condition. Petitioner told respondents that Angelica should be given Leo Marbella18 and Dr. Grace Arriete.19 In his testimony, Dr. Marbella
two to three weeks to recover from the operation before starting denied having any participation in administering the said
chemotherapy. Respondents were apprehensive due to financial chemotherapy drugs.20

constraints as Reynaldo earns only from ₱70,000.00 to ₱150,000.00 On the second day of chemotherapy, August 20, respondents
a year from his jewelry and watch repairing business.9 Petitioner, noticed reddish discoloration on Angelica’s face.21 They asked
however, assured them not to worry about her professional fee and petitioner about it, but she merely quipped, "Wala yan. Epekto ng
told them to just save up for the medicines to be used.
gamot."22 Petitioner recalled noticing the skin rashes on the nose
Petitioner claimed that she explained to respondents that even when and cheek area of Angelica. At that moment, she entertained the
a tumor is removed, there are still small lesions undetectable to the possibility that Angelica also had systemic lupus and consulted Dr.
naked eye, and that adjuvant chemotherapy is needed to clean out Victoria Abesamis on the matter.23

the small lesions in order to lessen the chance of the cancer to recur. On the third day of chemotherapy, August 21, Angelica had difficulty
She did not give the respondents any assurance that chemotherapy breathing and was thus provided with oxygen inhalation apparatus.
will cure Angelica’s cancer. During these consultations with This time, the reddish discoloration on Angelica’s face had extended
respondents, she explained the following side effects of to her neck, but petitioner dismissed it again as merely the effect of
chemotherapy treatment to respondents: (1) falling hair; (2) nausea medicines. 24 Petitioner testified that she did not see any
and vomiting; (3) loss of appetite; (4) low count of white blood cells discoloration on Angelica’s face, nor did she notice any difficulty in
[WBC], red blood cells [RBC] and platelets; (5) possible sterility due the child’s breathing. She claimed that Angelica merely complained
to the effects on Angelica’s ovary; (6) damage to the heart and of nausea and was given ice chips.251avvphi1

kidneys; and (7) darkening of the skin especially when exposed to On August 22, 1993, at around ten o’clock in the morning, upon
sunlight. She actually talked with respondents four times, once at seeing that their child could not anymore bear the pain, respondents
the hospital after the surgery, twice at her clinic and the fourth time pleaded with petitioner to stop the chemotherapy. Petitioner
when Angelica’s mother called her through long distance.10 This was supposedly replied: "Dapat 15 Cosmegen pa iyan. Okay, let’s
disputed by respondents who countered that petitioner gave them observe. If pwede na, bigyan uli ng chemo." At this point,
assurance that there is 95% chance of healing for Angelica if she respondents asked petitioner’s permission to bring their child home.
undergoes chemotherapy and that the only side effects were Later in the evening, Angelica passed black stool and reddish urine.
nausea, vomiting and hair loss.11 Those were the only side-effects of 26 Petitioner countered that there was no record of blackening of

chemotherapy treatment mentioned by petitioner.12

stools but only an episode of loose bowel movement (LBM).
On July 27, 1993, SLMC discharged Angelica, with instruction from Petitioner also testified that what Angelica complained of was carpo-
petitioner that she be readmitted after two or three weeks for the pedal spasm, not convulsion or epileptic attack, as respondents call
chemotherapy.
it (petitioner described it in the vernacular as "naninigas ang kamay
at paa"). She then requested for a serum calcium determination and On August 29, Angelica developed ulcers in her mouth, which
stopped the chemotherapy. When Angelica was given calcium petitioner said were blood clots that should not be removed.
gluconate, the spasm and numbness subsided.27
Respondents claimed that Angelica passed about half a liter of
The following day, August 23, petitioner yielded to respondents’ blood through her anus at around seven o’clock that evening, which
request to take Angelica home. But prior to discharging Angelica, petitioner likewise denied.

petitioner requested for a repeat serum calcium determination and On August 30, Angelica continued bleeding. She was restless as
explained to respondents that the chemotherapy will be temporarily endotracheal and nasogastric tubes were inserted into her
stopped while she observes Angelica’s muscle twitching and serum weakened body. An aspiration of the nasogastric tube inserted to
calcium level. Take-home medicines were also prescribed for Angelica also revealed a bloody content. Angelica was given more
Angelica, with instructions to respondents that the serum calcium platelet concentrate and fresh whole blood, which petitioner claimed
test will have to be repeated after seven days. Petitioner told improved her condition. Petitioner told Angelica not to remove the
respondents that she will see Angelica again after two weeks, but endotracheal tube because this may induce further bleeding.35 She
respondents can see her anytime if any immediate problem arises.28
was also transferred to the intensive care unit to avoid infection.

However, Angelica remained in confinement because while still in the The next day, respondents claimed that Angelica became hysterical,
premises of SLMC, her "convulsions" returned and she also had vomited blood and her body turned black. Part of Angelica’s skin
LBM. Angelica was given oxygen and administration of calcium was also noted to be shredding by just rubbing cotton on it. Angelica
continued.29
was so restless she removed those gadgets attached to her, saying
The next day, August 24, respondents claimed that Angelica still "Ayaw ko na"; there were tears in her eyes and she kept turning her
suffered from convulsions. They also noticed that she had a fever head. Observing her daughter to be at the point of death, Lina asked
and had difficulty breathing.30 Petitioner insisted it was carpo-pedal for a doctor but the latter could not answer her anymore.36 At this
spasm, not convulsions. She verified that at around 4:50 that time, the attending physician was Dr. Marbella who was shaking his
afternoon, Angelica developed difficulty in breathing and had fever. head saying that Angelica’s platelets were down and respondents
She then requested for an electrocardiogram analysis, and infused should pray for their daughter. Reynaldo claimed that he was
calcium gluconate on the patient at a "stat dose." She further introduced to a pediatrician who took over his daughter’s case, Dr.
ordered that Angelica be given Bactrim,31 a synthetic antibacterial Abesamis who also told him to pray for his daughter. Angelica
combination drug,32 to combat any infection on the child’s body.33
continued to have difficulty in her breathing and blood was being
By August 26, Angelica was bleeding through the mouth. suctioned from her stomach. A nurse was posted inside Angelica’s
Respondents also saw blood on her anus and urine. When Lina room to assist her breathing and at one point they had to revive
asked petitioner what was happening to her daughter, petitioner Angelica by pumping her chest. Thereafter, Reynaldo claimed that
replied, "Bagsak ang platelets ng anak mo." Four units of platelet Angelica already experienced difficulty in urinating and her bowel
concentrates were then transfused to Angelica. Petitioner prescribed consisted of blood-like fluid. Angelica requested for an electric fan
Solucortef. Considering that Angelica’s fever was high and her white as she was in pain. Hospital staff attempted to take blood samples
blood cell count was low, petitioner prescribed Leucomax. About from Angelica but were unsuccessful because they could not even
four to eight bags of blood, consisting of packed red blood cells, locate her vein. Angelica asked for a fruit but when it was given to
fresh whole blood, or platelet concentrate, were transfused to her, she only smelled it. At this time, Reynaldo claimed he could not
Angelica. For two days (August 27 to 28), Angelica continued find either petitioner or Dr. Marbella. That night, Angelica became
bleeding, but petitioner claimed it was lesser in amount and in hysterical and started removing those gadgets attached to her. At
frequency. Petitioner also denied that there were gadgets attached three o’clock in the morning of September 1, a priest came and they
to Angelica at that time.34
prayed before Angelica expired. Petitioner finally came back and
supposedly told respondents that there was "malfunction" or case Angelica’s death was not caused by osteosarcoma. Dr. Vergara
bogged-down machine.37
admitted that she is not a pathologist but her statements were
By petitioner’s own account, Angelica was merely irritable that day based on the opinion of an oncologist whom she had interviewed.
(August 31). Petitioner noted though that Angelica’s skin was indeed This oncologist supposedly said that if the victim already had DIC
sloughing off.38 She stressed that at 9:30 in the evening, Angelica prior to the chemotherapy, the hospital staff could have detected it.44

pulled out her endotracheal tube.39 On September 1, exactly two On her part, Dr. Balmaceda declared that it is the physician’s duty to
weeks after being admitted at SLMC for chemotherapy, Angelica inform and explain to the patient or his relatives every known side
died.40 The cause of death, according to petitioner, was septicemia, effect of the procedure or therapeutic agents to be administered,
or overwhelming infection, which caused Angelica’s other organs to before securing the consent of the patient or his relatives to such
fail.41 Petitioner attributed this to the patient’s poor defense procedure or therapy. The physician thus bases his assurance to the
mechanism brought about by the cancer itself.42
patient on his personal assessment of the patient’s condition and his
While he was seeking the release of Angelica’s cadaver from SLMC, knowledge of the general effects of the agents or procedure that will
Reynaldo claimed that petitioner acted arrogantly and called him be allowed on the patient. Dr. Balmaceda stressed that the patient or
names. He was asked to sign a promissory note as he did not have relatives must be informed of all known side effects based on
cash to pay the hospital bill.43
studies and observations, even if such will aggravate the patient’s
Respondents also presented as witnesses Dr. Jesusa Nieves- condition.45

Vergara, Medico-Legal Officer of the PNP-Crime Laboratory who Dr. Jaime Tamayo, the orthopaedic surgeon who operated on
conducted the autopsy on Angelica’s cadaver, and Dr. Melinda Angelica’s lower extremity, testified for the defendants. He explained
Vergara Balmaceda who is a Medical Specialist employed at the that in case of malignant tumors, there is no guarantee that the
Department of Health (DOH) Operations and Management Services.
ablation or removal of the amputated part will completely cure the
Testifying on the findings stated in her medico-legal report, Dr. cancer. Thus, surgery is not enough. The mortality rate of
Vergara noted the following: (1) there were fluids recovered from the osteosarcoma at the time of modern chemotherapy and early
abdominal cavity, which is not normal, and was due to hemorrhagic diagnosis still remains at 80% to 90%. Usually, deaths occur from
shock secondary to bleeding; (2) there was hemorrhage at the left metastasis, or spread of the cancer to other vital organs like the liver,
side of the heart; (3) bleeding at the upper portion of and areas causing systemic complications. The modes of therapy available are
adjacent to, the esophagus; (4) lungs were heavy with bleeding at the removal of the primary source of the cancerous growth and then
the back and lower portion, due to accumulation of fluids; (4) the residual cancer cells or metastasis should be treated with
yellowish discoloration of the liver; (5) kidneys showed appearance chemotherapy. Dr. Tamayo further explained that patients with
of facial shock on account of hemorrhages; and (6) reddishness on osteosarcoma have poor defense mechanism due to the cancer
external surface of the spleen. All these were the end result of cells in the blood stream. In the case of Angelica, he had previously
"hypovolemic shock secondary to multiple organ hemorrhages and explained to her parents that after the surgical procedure,
disseminated intravascular coagulation." Dr. Vergara opined that this chemotherapy is imperative so that metastasis of these cancer cells
can be attributed to the chemical agents in the drugs given to the will hopefully be addressed. He referred the patient to petitioner
victim, which caused platelet reduction resulting to bleeding because he felt that petitioner is a competent oncologist.
sufficient to cause the victim’s death. The time lapse for the Considering that this type of cancer is very aggressive and will
production of DIC in the case of Angelica (from the time of diagnosis metastasize early, it will cause the demise of the patient should there
of sarcoma) was too short, considering the survival rate of about 3 be no early intervention (in this case, the patient developed sepsis
years. The witness conceded that the victim will also die of which caused her death). Cancer cells in the blood cannot be seen
osteosarcoma even with amputation or chemotherapy, but in this by the naked eye nor detected through bone scan. On cross-
examination, Dr. Tamayo stated that of the more than 50 child the deceased would have a strong chance of survival after
patients who had osteogenic sarcoma he had handled, he thought chemotherapy and also because of the representation of appellee
that probably all of them died within six months from amputation Dr. Rubi Li that there were only three possible side-effects of the
because he did not see them anymore after follow-up; it is either treatment. However, all sorts of painful side-effects resulted from the
they died or had seen another doctor.46
treatment including the premature death of Angelica. The appellants
In dismissing the complaint, the trial court held that petitioner was were clearly and totally unaware of these other side-effects which
not liable for damages as she observed the best known procedures manifested only during the chemotherapy treatment. This was
and employed her highest skill and knowledge in the administration shown by the fact that every time a problem would take place
of chemotherapy drugs on Angelica but despite all efforts said regarding Angelica’s condition (like an unexpected side-effect
patient died. It cited the testimony of Dr. Tamayo who testified that manifesting itself), they would immediately seek explanation from Dr.
he considered petitioner one of the most proficient in the treatment Rubi Li. Surely, those unexpected side-effects culminating in the loss
of cancer and that the patient in this case was afflicted with a very of a love[d] one caused the appellants so much trouble, pain and
aggressive type of cancer necessitating chemotherapy as adjuvant suffering.

treatment. Using the standard of negligence laid down in Picart v. On this point therefore, [w]e find defendant-appellee Dr. Rubi Li
Smith,47 the trial court declared that petitioner has taken the negligent which would entitle plaintiffs-appellants to their claim for
necessary precaution against the adverse effect of chemotherapy on damages.

the patient, adding that a wrong decision is not by itself negligence. x x x x

Respondents were ordered to pay their unpaid hospital bill in the WHEREFORE, the instant appeal is hereby GRANTED. Accordingly,
amount of ₱139,064.43.48
the assailed decision is hereby modified to the extent that
Respondents appealed to the CA which, while concurring with the defendant-appellee Dr. Rubi Li is ordered to pay the plaintiffs-
trial court’s finding that there was no negligence committed by the appellants the following amounts:

petitioner in the administration of chemotherapy treatment to 1. Actual damages of P139,064.43, plus P9,828.00 for funeral
Angelica, found that petitioner as her attending physician failed to expenses;

fully explain to the respondents all the known side effects of 2. Moral damages of P200,000.00;

chemotherapy. The appellate court stressed that since the 3. Exemplary damages of P50,000.00;

respondents have been told of only three side effects of 4. Attorney’s fee of P30,000.00.

chemotherapy, they readily consented thereto. Had petitioner made SO ORDERED.49 (Emphasis supplied.)

known to respondents those other side effects which gravely Petitioner filed a motion for partial reconsideration which the
affected their child -- such as carpo-pedal spasm, sepsis, decrease appellate court denied.

in the blood platelet count, bleeding, infections and eventual death Hence, this petition.

-- respondents could have decided differently or adopted a different Petitioner assails the CA in finding her guilty of negligence in not
course of action which could have delayed or prevented the early explaining to the respondents all the possible side effects of the
death of their child.
chemotherapy on their child, and in holding her liable for actual,
The CA thus declared:
moral and exemplary damages and attorney’s fees. Petitioner
Plaintiffs-appellants’ child was suffering from a malignant disease. emphasized that she was not negligent in the pre-chemotherapy
The attending physician recommended that she undergo procedures and in the administration of chemotherapy treatment to
chemotherapy treatment after surgery in order to increase her Angelica.

chances of survival. Appellants consented to the chemotherapy On her supposed non-disclosure of all possible side effects of
treatment because they believed in Dr. Rubi Li’s representation that chemotherapy, including death, petitioner argues that it was
foolhardy to imagine her to be all-knowing/omnipotent. While the absence of finding that petitioner was negligent in administering the
theoretical side effects of chemotherapy were explained by her to said treatment.

the respondents, as these should be known to a competent doctor, The petition is meritorious.

petitioner cannot possibly predict how a particular patient’s genetic The type of lawsuit which has been called medical malpractice or,
make-up, state of mind, general health and body constitution would more appropriately, medical negligence, is that type of claim which a
respond to the treatment. These are obviously dependent on too victim has available to him or her to redress a wrong committed by a
many known, unknown and immeasurable variables, thus requiring medical professional which has caused bodily harm. In order to
that Angelica be, as she was, constantly and closely monitored successfully pursue such a claim, a patient must prove that a health
during the treatment. Petitioner asserts that she did everything within care provider, in most cases a physician, either failed to do
her professional competence to attend to the medical needs of something which a reasonably prudent health care provider would
Angelica.
have done, or that he or she did something that a reasonably
Citing numerous trainings, distinctions and achievements in her field prudent provider would not have done; and that that failure or action
and her current position as co-director for clinical affairs of the caused injury to the patient.51

Medical Oncology, Department of Medicine of SLMC, petitioner This Court has recognized that medical negligence cases are best
contends that in the absence of any clear showing or proof, she proved by opinions of expert witnesses belonging in the same
cannot be charged with negligence in not informing the respondents general neighborhood and in the same general line of practice as
all the side effects of chemotherapy or in the pre-treatment defendant physician or surgeon. The deference of courts to the
procedures done on Angelica.
expert opinion of qualified physicians stems from the former’s
As to the cause of death, petitioner insists that Angelica did not die realization that the latter possess unusual technical skills which
of platelet depletion but of sepsis which is a complication of the laymen in most instances are incapable of intelligently evaluating,
cancer itself. Sepsis itself leads to bleeding and death. She explains hence the indispensability of expert testimonies.52

that the response rate to chemotherapy of patients with In this case, both the trial and appellate courts concurred in finding
osteosarcoma is high, so much so that survival rate is favorable to that the alleged negligence of petitioner in the administration of
the patient. Petitioner then points to some probable consequences if chemotherapy drugs to respondents’ child was not proven
Angelica had not undergone chemotherapy. Thus, without considering that Drs. Vergara and Balmaceda, not being oncologists
chemotherapy, other medicines and supportive treatment, the or cancer specialists, were not qualified to give expert opinion as to
patient might have died the next day because of massive infection, whether petitioner’s lack of skill, knowledge and professional
or the cancer cells might have spread to the brain and brought the competence in failing to observe the standard of care in her line of
patient into a coma, or into the lungs that the patient could have practice was the proximate cause of the patient’s death.
been hooked to a respirator, or into her kidneys that she would have Furthermore, respondents’ case was not at all helped by the non-
to undergo dialysis. Indeed, respondents could have spent as much production of medical records by the hospital (only the biopsy result
because of these complications. The patient would have been and medical bills were submitted to the court). Nevertheless, the CA
deprived of the chance to survive the ailment, of any hope for life found petitioner liable for her failure to inform the respondents on all
and her "quality of life" surely compromised. Since she had not been possible side effects of chemotherapy before securing their consent
shown to be at fault, petitioner maintains that the CA erred in holding to the said treatment.

her liable for the damages suffered by the respondents.50

The doctrine of informed consent within the context of physician-
The issue to be resolved is whether the petitioner can be held liable patient relationships goes far back into English common law. As
for failure to fully disclose serious side effects to the parents of the early as 1767, doctors were charged with the tort of "battery" (i.e.,
child patient who died while undergoing chemotherapy, despite the an unauthorized physical contact with a patient) if they had not
gained the consent of their patients prior to performing a surgery or issue of demonstrating what risks are considered material
procedure. In the United States, the seminal case was Schoendorff necessitating disclosure, it was held that experts are unnecessary to
v. Society of New York Hospital53 which involved unwanted a showing of the materiality of a risk to a patient’s decision on
treatment performed by a doctor. Justice Benjamin Cardozo’s oft- treatment, or to the reasonably, expectable effect of risk disclosure
quoted opinion upheld the basic right of a patient to give consent to on the decision. Such unrevealed risk that should have been made
any medical procedure or treatment: "Every human being of adult known must further materialize, for otherwise the omission, however
years and sound mind has a right to determine what shall be done unpardonable, is without legal consequence. And, as in malpractice
with his own body; and a surgeon who performs an operation actions generally, there must be a causal relationship between the
without his patient’s consent, commits an assault, for which he is physician’s failure to divulge and damage to the patient.60

liable in damages."54 From a purely ethical norm, informed consent Reiterating the foregoing considerations, Cobbs v. Grant61 deemed it
evolved into a general principle of law that a physician has a duty to as integral part of physician’s overall obligation to patient, the duty of
disclose what a reasonably prudent physician in the medical reasonable disclosure of available choices with respect to proposed
community in the exercise of reasonable care would disclose to his therapy and of dangers inherently and potentially involved in each.
patient as to whatever grave risks of injury might be incurred from a However, the physician is not obliged to discuss relatively minor
proposed course of treatment, so that a patient, exercising ordinary risks inherent in common procedures when it is common knowledge
care for his own welfare, and faced with a choice of undergoing the that such risks inherent in procedure of very low incidence. Cited as
proposed treatment, or alternative treatment, or none at all, may exceptions to the rule that the patient should not be denied the
intelligently exercise his judgment by reasonably balancing the opportunity to weigh the risks of surgery or treatment are emergency
probable risks against the probable benefits.55
cases where it is evident he cannot evaluate data, and where the
Subsequently, in Canterbury v. Spence56 the court observed that the patient is a child or incompetent.62 The court thus concluded that
duty to disclose should not be limited to medical usage as to the patient’s right of self-decision can only be effectively exercised if
arrogate the decision on revelation to the physician alone. Thus, the patient possesses adequate information to enable him in making
respect for the patient’s right of self-determination on particular an intelligent choice. The scope of the physician’s communications
therapy demands a standard set by law for physicians rather than to the patient, then must be measured by the patient’s need, and
one which physicians may or may not impose upon themselves.57 that need is whatever information is material to the decision. The test
The scope of disclosure is premised on the fact that patients therefore for determining whether a potential peril must be divulged
ordinarily are persons unlearned in the medical sciences. Proficiency is its materiality to the patient’s decision.63

in diagnosis and therapy is not the full measure of a physician’s Cobbs v. Grant further reiterated the pronouncement in Canterbury
responsibility. It is also his duty to warn of the dangers lurking in the v. Spence that for liability of the physician for failure to inform
proposed treatment and to impart information which the patient has patient, there must be causal relationship between physician’s failure
every right to expect. Indeed, the patient’s reliance upon the to inform and the injury to patient and such connection arises only if
physician is a trust of the kind which traditionally has exacted it is established that, had revelation been made, consent to
obligations beyond those associated with armslength transactions.58 treatment would not have been given.

The physician is not expected to give the patient a short medical There are four essential elements a plaintiff must prove in a
education, the disclosure rule only requires of him a reasonable malpractice action based upon the doctrine of informed consent: "(1)
explanation, which means generally informing the patient in the physician had a duty to disclose material risks; (2) he failed to
nontechnical terms as to what is at stake; the therapy alternatives disclose or inadequately disclosed those risks; (3) as a direct and
open to him, the goals expectably to be achieved, and the risks that proximate result of the failure to disclose, the patient consented to
may ensue from particular treatment or no treatment.59 As to the treatment she otherwise would not have consented to; and (4)
plaintiff was injured by the proposed treatment." The gravamen in an based on lack of informed consent, "the plaintiff must prove both the
informed consent case requires the plaintiff to "point to significant duty and the breach of that duty through expert testimony.66 Such
undisclosed information relating to the treatment which would have expert testimony must show the customary standard of care of
altered her decision to undergo it.64
physicians in the same practice as that of the defendant doctor.67

Examining the evidence on record, we hold that there was adequate In this case, the testimony of Dr. Balmaceda who is not an
disclosure of material risks inherent in the chemotherapy procedure oncologist but a Medical Specialist of the DOH’s Operational and
performed with the consent of Angelica’s parents. Respondents Management Services charged with receiving complaints against
could not have been unaware in the course of initial treatment and hospitals, does not qualify as expert testimony to establish the
amputation of Angelica’s lower extremity, that her immune system standard of care in obtaining consent for chemotherapy treatment. In
was already weak on account of the malignant tumor in her knee. the absence of expert testimony in this regard, the Court feels
When petitioner informed the respondents beforehand of the side hesitant in defining the scope of mandatory disclosure in cases of
effects of chemotherapy which includes lowered counts of white and malpractice based on lack of informed consent, much less set a
red blood cells, decrease in blood platelets, possible kidney or heart standard of disclosure that, even in foreign jurisdictions, has been
damage and skin darkening, there is reasonable expectation on the noted to be an evolving one.

part of the doctor that the respondents understood very well that the As society has grappled with the juxtaposition between personal
severity of these side effects will not be the same for all patients autonomy and the medical profession's intrinsic impetus to cure, the
undergoing the procedure. In other words, by the nature of the law defining "adequate" disclosure has undergone a dynamic
disease itself, each patient’s reaction to the chemical agents even evolution. A standard once guided solely by the ruminations of
with pre-treatment laboratory tests cannot be precisely determined physicians is now dependent on what a reasonable person in the
by the physician. That death can possibly result from complications patient’s position regards as significant. This change in perspective
of the treatment or the underlying cancer itself, immediately or is especially important as medical breakthroughs move practitioners
sometime after the administration of chemotherapy drugs, is a risk to the cutting edge of technology, ever encountering new and
that cannot be ruled out, as with most other major medical heretofore unimagined treatments for currently incurable diseases or
procedures, but such conclusion can be reasonably drawn from the ailments. An adaptable standard is needed to account for this
general side effects of chemotherapy already disclosed.
constant progression. Reasonableness analyses permeate our legal
As a physician, petitioner can reasonably expect the respondents to system for the very reason that they are determined by social norms,
have considered the variables in the recommended treatment for expanding and contracting with the ebb and flow of societal
their daughter afflicted with a life-threatening illness. On the other evolution.

hand, it is difficult to give credence to respondents’ claim that As we progress toward the twenty-first century, we now realize that
petitioner told them of 95% chance of recovery for their daughter, as the legal standard of disclosure is not subject to construction as a
it was unlikely for doctors like petitioner who were dealing with grave categorical imperative. Whatever formulae or processes we adopt
conditions such as cancer to have falsely assured patients of are only useful as a foundational starting point; the particular quality
chemotherapy’s success rate. Besides, informed consent laws in or quantity of disclosure will remain inextricably bound by the facts
other countries generally require only a reasonable explanation of of each case. Nevertheless, juries that ultimately determine whether
potential harms, so specific disclosures such as statistical data, may a physician properly informed a patient are inevitably guided by what
not be legally necessary.65
they perceive as the common expectation of the medical consumer
The element of ethical duty to disclose material risks in the proposed —"a reasonable person in the patient’s position when deciding to
medical treatment cannot thus be reduced to one simplistic formula accept or reject a recommended medical procedure."68 (Emphasis
applicable in all instances. Further, in a medical malpractice action supplied.)

WHEREFORE, the petition for review on certiorari is GRANTED. The

Decision dated June 15, 2004 and the Resolution dated September
1, 2004 of the Court of Appeals in CA-G.R. CV No. 58013 are SET
ASIDE.

The Decision dated September 5, 1997 of the Regional Trial Court of

Legazpi City, Branch 8, in Civil Case No. 8904 is REINSTATED and
UPHELD.