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EN BANC
DR. RUBI LI,
Petitioner,
- versus -
G.R. No. 165279
Present:
CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.
SPOUSES REYNALDO and LINA SOLIMAN, as parents/heirs of deceased
Angelica Soliman,
Respondents.
Promulgated:
June 7, 2011
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DECISION
VILLARAMA, JR., J.:
Challenged in this petition for review on certiorari is the
Decision1[1] dated June 15, 2004 as well as the
Resolution2[2] dated September 1, 2004 of the Court of Appeals
(CA) in CA-G.R. CV No. 58013 which modified the
Decision3[3] dated September 5, 1997 of the Regional Trial Court
of Legazpi City, Branch 8 in Civil Case No. 8904.
The factual antecedents:
On July 7, 1993, respondents 11-year old daughter, Angelica
Soliman, underwent a biopsy of the mass located in
her lower extremity at the St. Lukes Medical Center (SLMC).
Results showed that Angelica was suffering from
osteosarcoma, osteoblastic type,4[4] a high-grade (highly
malignant) cancer of the bone which usually afflicts teenage
children. Following this diagnosis and as primary intervention,
Angelicas right leg was amputated by Dr. Jaime Tamayo in
order to remove the tumor. As adjuvant treatment to eliminate
any remaining cancer cells, and hence minimize the
chances of recurrence and prevent the disease from spreading to
other parts of the patients body (metastasis),
chemotherapy was suggested by Dr. Tamayo. Dr. Tamayo referred
Angelica to another doctor at SLMC, herein petitioner
Dr. Rubi Li, a medical oncologist.
On August 18, 1993, Angelica was admitted to SLMC. However, she
died on September 1, 1993, just eleven (11)
days after the (intravenous) administration of the first cycle
of the chemotherapy regimen. Because SLMC refused to
release a death certificate without full payment of their
hospital bill, respondents brought the cadaver of Angelica to
the
Philippine National Police (PNP) Crime Laboratory at Camp Crame
for post-mortem examination. The Medico-Legal
Report issued by said institution indicated the cause of death
as Hypovolemic shock secondary to multiple organ
hemorrhages and Disseminated Intravascular Coagulation.5[5]
On the other hand, the Certificate of Death6[6] issued by SLMC
stated the cause of death as follows:
Immediate cause : a. Osteosarcoma, Status Post AKA Antecedent
cause : b. (above knee amputation)
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Underlying cause : c. Status Post Chemotherapy
On February 21, 1994, respondents filed a damage suit7[7]
against petitioner, Dr. Leo Marbella, Mr. Jose
Ledesma, a certain Dr. Arriete and SLMC. Respondents charged
them with negligence and disregard of Angelicas safety,
health and welfare by their careless administration of the
chemotherapy drugs, their failure to observe the essential
precautions in detecting early the symptoms of fatal blood
platelet decrease and stopping early on the chemotherapy,
which bleeding led to hypovolemic shock that caused Angelicas
untimely demise. Further, it was specifically averred that
petitioner assured the respondents that Angelica would recover
in view of 95% chance of healing with chemotherapy
(Magiging normal na ang anak nyo basta ma-chemo. 95% ang
healing) and when asked regarding the side effects,
petitioner mentioned only slight vomiting, hair loss and
weakness (Magsusuka ng kaunti. Malulugas ang buhok.
Manghihina). Respondents thus claimed that they would not have
given their consent to chemotherapy had petitioner not
falsely assured them of its side effects.
In her answer,8[8] petitioner denied having been negligent in
administering the chemotherapy drugs to Angelica
and asserted that she had fully explained to respondents how the
chemotherapy will affect not only the cancer cells but
also the patients normal body parts, including the lowering of
white and red blood cells and platelets. She claimed that
what happened to Angelica can be attributed to malignant tumor
cells possibly left behind after surgery. Few as they may
be, these have the capacity to compete for nutrients such that
the body becomes so weak structurally (cachexia) and
functionally in the form of lower resistance of the body to
combat infection. Such infection becomes uncontrollable and
triggers a chain of events (sepsis or septicemia) that may lead
to bleeding in the form of Disseminated Intravascular
Coagulation (DIC), as what the autopsy report showed in the case
of Angelica.
Since the medical records of Angelica were not produced in
court, the trial and appellate courts had to rely on
testimonial evidence, principally the declarations of petitioner
and respondents themselves. The following chronology of
events was gathered:
On July 23, 1993, petitioner saw the respondents at the hospital
after Angelicas surgery and discussed with them
Angelicas condition. Petitioner told respondents that Angelica
should be given two to three weeks to recover from the
operation before starting chemotherapy. Respondents were
apprehensive due to financial constraints as Reynaldo earns
only from P70,000.00 to P150,000.00 a year from his jewelry and
watch repairing business.9[9] Petitioner, however,
assured them not to worry about her professional fee and told
them to just save up for the medicines to be used.
Petitioner claimed that she explained to respondents that even
when a tumor is removed, there are still small
lesions undetectable to the naked eye, and that adjuvant
chemotherapy is needed to clean out the small lesions in order
to
lessen the chance of the cancer to recur. She did not give the
respondents any assurance that chemotherapy will cure
Angelicas cancer. During these consultations with respondents,
she explained the following side effects of chemotherapy
treatment to respondents: (1) falling hair; (2) nausea and
vomiting; (3) loss of appetite; (4) low count of white blood
cells
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[WBC], red blood cells [RBC] and platelets; (5) possible
sterility due to the effects on Angelicas ovary; (6) damage to
the
heart and kidneys; and (7) darkening of the skin especially when
exposed to sunlight. She actually talked with respondents
four times, once at the hospital after the surgery, twice at her
clinic and the fourth time when Angelicas mother called her
through long distance.10[10] This was disputed by respondents
who countered that petitioner gave them assurance that
there is 95% chance of healing for Angelica if she undergoes
chemotherapy and that the only side effects were nausea,
vomiting and hair loss.11[11] Those were the only side-effects
of chemotherapy treatment mentioned by petitioner.12[12]
On July 27, 1993, SLMC discharged Angelica, with instruction
from petitioner that she be readmitted after two or
three weeks for the chemotherapy.
On August 18, 1993, respondents brought Angelica to SLMC for
chemotherapy, bringing with them the results of
the laboratory tests requested by petitioner: Angelicas chest
x-ray, ultrasound of the liver, creatinine and complete liver
function tests.13[13] Petitioner proceeded with the chemotherapy
by first administering hydration fluids to
Angelica.14[14]
The following day, August 19, petitioner began administering
three chemotherapy drugs Cisplatin,15[15]
Doxorubicin16[16] and Cosmegen17[17] intravenously. Petitioner
was supposedly assisted by her trainees Dr. Leo
Marbella18[18] and Dr. Grace Arriete.19[19] In his testimony,
Dr. Marbella denied having any participation in
administering the said chemotherapy drugs.20[20]
On the second day of chemotherapy, August 20, respondents
noticed reddish discoloration on Angelicas
face.21[21] They asked petitioner about it, but she merely
quipped, Wala yan. Epekto ng gamot.22[22] Petitioner
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recalled noticing the skin rashes on the nose and cheek area of
Angelica. At that moment, she entertained the possibility
that Angelica also had systemic lupus and consulted Dr. Victoria
Abesamis on the matter.23[23]
On the third day of chemotherapy, August 21, Angelica had
difficulty breathing and was thus provided with
oxygen inhalation apparatus. This time, the reddish
discoloration on Angelicas face had extended to her neck, but
petitioner dismissed it again as merely the effect of
medicines.24[24] Petitioner testified that she did not see any
discoloration on Angelicas face, nor did she notice any
difficulty in the childs breathing. She claimed that Angelica
merely
complained of nausea and was given ice chips.25[25]
On August 22, 1993, at around ten oclock in the morning, upon
seeing that their child could not anymore bear the
pain, respondents pleaded with petitioner to stop the
chemotherapy. Petitioner supposedly replied: Dapat 15 Cosmegen
pa iyan. Okay, lets observe. If pwede na, bigyan uli ng chemo.
At this point, respondents asked petitioners permission to
bring their child home. Later in the evening, Angelica passed
black stool and reddish urine.26[26] Petitioner countered
that there was no record of blackening of stools but only an
episode of loose bowel movement (LBM). Petitioner also
testified that what Angelica complained of was carpo-pedal
spasm, not convulsion or epileptic attack, as respondents call
it (petitioner described it in the vernacular as naninigas ang
kamay at paa). She then requested for a serum calcium
determination and stopped the chemotherapy. When Angelica was
given calcium gluconate, the spasm and numbness
subsided.27[27]
The following day, August 23, petitioner yielded to respondents
request to take Angelica home. But prior to
discharging Angelica, petitioner requested for a repeat serum
calcium determination and explained to respondents that
the chemotherapy will be temporarily stopped while she observes
Angelicas muscle twitching and serum calcium level.
Take-home medicines were also prescribed for Angelica, with
instructions to respondents that the serum calcium test will
have to be repeated after seven days. Petitioner told
respondents that she will see Angelica again after two weeks,
but
respondents can see her anytime if any immediate problem
arises.28[28]
However, Angelica remained in confinement because while still in
the premises of SLMC, her convulsions
returned and she also had LBM. Angelica was given oxygen and
administration of calcium continued.29[29]
The next day, August 24, respondents claimed that Angelica still
suffered from convulsions. They also noticed that
she had a fever and had difficulty breathing.30[30] Petitioner
insisted it was carpo-pedal spasm, not convulsions. She
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verified that at around 4:50 that afternoon, Angelica developed
difficulty in breathing and had fever. She then requested for
an electrocardiogram analysis, and infused calcium gluconate on
the patient at a stat dose. She further ordered that Angelica
be given Bactrim,31[31] a synthetic antibacterial combination
drug,32[32] to combat any infection on the childs
body.33[33]
By August 26, Angelica was bleeding through the mouth.
Respondents also saw blood on her anus and urine.
When Lina asked petitioner what was happening to her daughter,
petitioner replied, Bagsak ang platelets ng anak mo.
Four units of platelet concentrates were then transfused to
Angelica. Petitioner prescribed Solucortef. Considering that
Angelicas fever was high and her white blood cell count was low,
petitioner prescribed Leucomax. About four to eight bags
of blood, consisting of packed red blood cells, fresh whole
blood, or platelet concentrate, were transfused to Angelica.
For
two days (August 27 to 28), Angelica continued bleeding, but
petitioner claimed it was lesser in amount and in frequency.
Petitioner also denied that there were gadgets attached to
Angelica at that time.34[34]
On August 29, Angelica developed ulcers in her mouth, which
petitioner said were blood clots that should not be
removed. Respondents claimed that Angelica passed about half a
liter of blood through her anus at around seven oclock
that evening, which petitioner likewise denied.
On August 30, Angelica continued bleeding. She was restless as
endotracheal and nasogastric tubes were inserted
into her weakened body. An aspiration of the nasogastric tube
inserted to Angelica also revealed a bloody content.
Angelica was given more platelet concentrate and fresh whole
blood, which petitioner claimed improved her condition.
Petitioner told Angelica not to remove the endotracheal tube
because this may induce further bleeding.35[35] She was
also transferred to the intensive care unit to avoid
infection.
The next day, respondents claimed that Angelica became
hysterical, vomited blood and her body turned black.
Part of Angelicas skin was also noted to be shredding by just
rubbing cotton on it. Angelica was so restless she removed
those gadgets attached to her, saying Ayaw ko na; there were
tears in her eyes and she kept turning her head. Observing
her daughter to be at the point of death, Lina asked for a
doctor but the latter could not answer her anymore.36[36] At
this time, the attending physician was Dr. Marbella who was
shaking his head saying that Angelicas platelets were down
and respondents should pray for their daughter. Reynaldo claimed
that he was introduced to a pediatrician who took over
his daughters case, Dr. Abesamis who also told him to pray for
his daughter. Angelica continued to have difficulty in her
breathing and blood was being suctioned from her stomach. A
nurse was posted inside Angelicas room to assist her
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breathing and at one point they had to revive Angelica by
pumping her chest. Thereafter, Reynaldo claimed that Angelica
already experienced difficulty in urinating and her bowel
consisted of blood-like fluid. Angelica requested for an
electric
fan as she was in pain. Hospital staff attempted to take blood
samples from Angelica but were unsuccessful because they
could not even locate her vein. Angelica asked for a fruit but
when it was given to her, she only smelled it. At this time,
Reynaldo claimed he could not find either petitioner or Dr.
Marbella. That night, Angelica became hysterical and started
removing those gadgets attached to her. At three oclock in the
morning of September 1, a priest came and they prayed
before Angelica expired. Petitioner finally came back and
supposedly told respondents that there was malfunction or
bogged-down machine.37[37]
By petitioners own account, Angelica was merely irritable that
day (August 31). Petitioner noted though that
Angelicas skin was indeed sloughing off.38[38] She stressed that
at 9:30 in the evening, Angelica pulled out her
endotracheal tube.39[39] On September 1, exactly two weeks after
being admitted at SLMC for chemotherapy, Angelica
died.40[40] The cause of death, according to petitioner, was
septicemia, or overwhelming infection, which caused
Angelicas other organs to fail.41[41] Petitioner attributed this
to the patients poor defense mechanism brought about by
the cancer itself.42[42]
While he was seeking the release of Angelicas cadaver from SLMC,
Reynaldo claimed that petitioner acted
arrogantly and called him names. He was asked to sign a
promissory note as he did not have cash to pay the hospital
bill.43[43]
Respondents also presented as witnesses Dr. Jesusa
Nieves-Vergara, Medico-Legal Officer of the PNP-Crime
Laboratory who conducted the autopsy on Angelicas cadaver, and
Dr. Melinda Vergara Balmaceda who is a Medical
Specialist employed at the Department of Health (DOH) Operations
and Management Services.
Testifying on the findings stated in her medico-legal report,
Dr. Vergara noted the following: (1) there were fluids
recovered from the abdominal cavity, which is not normal, and
was due to hemorrhagic shock secondary to bleeding; (2)
there was hemorrhage at the left side of the heart; (3) bleeding
at the upper portion of and areas adjacent to, the
esophagus; (4) lungs were heavy with bleeding at the back and
lower portion, due to accumulation of fluids; (4) yellowish
discoloration of the liver; (5) kidneys showed appearance of
facial shock on account of hemorrhages; and (6) reddishness
on external surface of the spleen. All these were the end result
of hypovolemic shock secondary to multiple organ
hemorrhages and disseminated intravascular coagulation. Dr.
Vergara opined that this can be attributed to the chemical
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agents in the drugs given to the victim, which caused platelet
reduction resulting to bleeding sufficient to cause the victims
death. The time lapse for the production of DIC in the case of
Angelica (from the time of diagnosis of sarcoma) was too
short, considering the survival rate of about 3 years. The
witness conceded that the victim will also die of osteosarcoma
even with amputation or chemotherapy, but in this case Angelicas
death was not caused by osteosarcoma. Dr. Vergara
admitted that she is not a pathologist but her statements were
based on the opinion of an oncologist whom she had
interviewed. This oncologist supposedly said that if the victim
already had DIC prior to the chemotherapy, the hospital
staff could have detected it.44[44]
On her part, Dr. Balmaceda declared that it is the physicians
duty to inform and explain to the patient or his
relatives every known side effect of the procedure or
therapeutic agents to be administered, before securing the consent
of
the patient or his relatives to such procedure or therapy. The
physician thus bases his assurance to the patient on his
personal assessment of the patients condition and his knowledge
of the general effects of the agents or procedure that will
be allowed on the patient. Dr. Balmaceda stressed that the
patient or relatives must be informed of all known side effects
based on studies and observations, even if such will aggravate
the patients condition.45[45]
Dr. Jaime Tamayo, the orthopaedic surgeon who operated on
Angelicas lower extremity, testified for the
defendants. He explained that in case of malignant tumors, there
is no guarantee that the ablation or removal of the
amputated part will completely cure the cancer. Thus, surgery is
not enough. The mortality rate of osteosarcoma at the
time of modern chemotherapy and early diagnosis still remains at
80% to 90%. Usually, deaths occur from metastasis, or
spread of the cancer to other vital organs like the liver,
causing systemic complications. The modes of therapy available
are
the removal of the primary source of the cancerous growth and
then the residual cancer cells or metastasis should be
treated with chemotherapy. Dr. Tamayo further explained that
patients with osteosarcoma have poor defense mechanism
due to the cancer cells in the blood stream. In the case of
Angelica, he had previously explained to her parents that after
the surgical procedure, chemotherapy is imperative so that
metastasis of these cancer cells will hopefully be addressed.
He
referred the patient to petitioner because he felt that
petitioner is a competent oncologist. Considering that this type
of
cancer is very aggressive and will metastasize early, it will
cause the demise of the patient should there be no early
intervention (in this case, the patient developed sepsis which
caused her death). Cancer cells in the blood
cannot be seen by the naked eye nor detected through bone scan.
On cross-examination, Dr. Tamayo stated that of the
more than 50 child patients who had osteogenic sarcoma he had
handled, he thought that probably all of them died within
six months from amputation because he did not see them anymore
after follow-up; it is either they died or had seen
another doctor.46[46]
In dismissing the complaint, the trial court held that
petitioner was not liable for damages as she observed the
best known procedures and employed her highest skill and
knowledge in the administration of chemotherapy drugs on
Angelica but despite all efforts said patient died. It cited the
testimony of Dr. Tamayo who testified that he considered
petitioner one of the most proficient in the treatment of cancer
and that the patient in this case was afflicted with a very
aggressive type of cancer necessitating chemotherapy as adjuvant
treatment. Using the standard of negligence laid down
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in Picart v. Smith,47[47] the trial court declared that
petitioner has taken the necessary precaution against the
adverse
effect of chemotherapy on the patient, adding that a wrong
decision is not by itself negligence. Respondents were ordered
to pay their unpaid hospital bill in the amount of
P139,064.43.48[48]
Respondents appealed to the CA which, while concurring with the
trial courts finding that there was no negligence
committed by the petitioner in the administration of
chemotherapy treatment to Angelica, found that petitioner as
her
attending physician failed to fully explain to the respondents
all the known side effects of chemotherapy. The appellate
court stressed that since the respondents have been told of only
three side effects of chemotherapy, they readily consented
thereto. Had petitioner made known to respondents those other
side effects which gravely affected their child -- such as
carpo-pedal spasm, sepsis, decrease in the blood platelet count,
bleeding, infections and eventual death -- respondents
could have decided differently or adopted a different course of
action which could have delayed or prevented the early
death of their child.
The CA thus declared:
Plaintiffs-appellants child was suffering from a malignant
disease. The attending physician recommended that she undergo
chemotherapy treatment after surgery in order to increase her
chances of survival. Appellants consented to the chemotherapy
treatment because they believed in Dr. Rubi Lis representation that
the deceased would have a strong chance of survival after
chemotherapy and also because of the representation of appellee Dr.
Rubi Li that there were only three possible side-effects of the
treatment. However, all sorts of painful side-effects resulted from
the treatment including the premature death of Angelica. The
appellants were clearly and totally unaware of these other
side-effects which manifested only during the chemotherapy
treatment. This was shown by the fact that every time a problem
would take place regarding Angelicas condition (like an unexpected
side-effect manifesting itself), they would immediately seek
explanation from Dr. Rubi Li. Surely, those unexpected side-effects
culminating in the loss of a love[d] one caused the appellants so
much trouble, pain and suffering.
On this point therefore, [w]e find defendant-appellee Dr. Rubi
Li negligent which would entitle plaintiffs-appellants to their
claim for damages.
x x x x
WHEREFORE, the instant appeal is hereby GRANTED. Accordingly,
the assailed decision is hereby modified to the extent that
defendant-appellee Dr. Rubi Li is ordered to pay the
plaintiffs-appellants the following amounts:
1. Actual damages of P139,064.43, plus P9,828.00 for funeral
expenses;
2. Moral damages of P200,000.00;
3. Exemplary damages of P50,000.00;
4. Attorneys fee of P30,000.00.
SO ORDERED.49[49] (Emphasis supplied.)
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Petitioner filed a motion for partial reconsideration which the
appellate court denied.
Hence, this petition.
Petitioner assails the CA in finding her guilty of negligence in
not explaining to the respondents all the possible
side effects of the chemotherapy on their child, and in holding
her liable for actual, moral and exemplary damages and
attorneys fees. Petitioner emphasized that she was not negligent
in the pre-chemotherapy procedures and in the
administration of chemotherapy treatment to Angelica.
On her supposed non-disclosure of all possible side effects of
chemotherapy, including death, petitioner argues
that it was foolhardy to imagine her to be
all-knowing/omnipotent. While the theoretical side effects of
chemotherapy
were explained by her to the respondents, as these should be
known to a competent doctor, petitioner cannot possibly
predict how a particular patients genetic make-up, state of
mind, general health and body constitution would respond to
the treatment. These are obviously dependent on too many known,
unknown and immeasurable variables, thus requiring
that Angelica be, as she was, constantly and closely monitored
during the treatment. Petitioner asserts that she did
everything within her professional competence to attend to the
medical needs of Angelica.
Citing numerous trainings, distinctions and achievements in her
field and her current position as co-director for
clinical affairs of the Medical Oncology, Department of Medicine
of SLMC, petitioner contends that in the absence of any
clear showing or proof, she cannot be charged with negligence in
not informing the respondents all the side effects of
chemotherapy or in the pre-treatment procedures done on
Angelica.
As to the cause of death, petitioner insists that Angelica did
not die of platelet depletion but of sepsis which is a
complication of the cancer itself. Sepsis itself leads to
bleeding and death. She explains that the response rate to
chemotherapy of patients with osteosarcoma is high, so much so
that survival rate is favorable to the patient. Petitioner
then points to some probable consequences if Angelica had not
undergone chemotherapy. Thus, without chemotherapy,
other medicines and supportive treatment, the patient might have
died the next day because of massive infection, or the
cancer cells might have spread to the brain and brought the
patient into a coma, or into the lungs that the patient could
have been hooked to a respirator, or into her kidneys that she
would have to undergo dialysis. Indeed, respondents could
have spent as much because of these complications. The patient
would have been deprived of the chance to survive the
ailment, of any hope for life and her quality of life surely
compromised. Since she had not been shown to be at fault,
petitioner maintains that the CA erred in holding her liable for
the damages suffered by the respondents.50[50]
The issue to be resolved is whether the petitioner can be held
liable for failure to fully disclose serious side effects
to the parents of the child patient who died while undergoing
chemotherapy, despite the absence of finding that petitioner
was negligent in administering the said treatment.
The petition is meritorious.
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The type of lawsuit which has been called medical malpractice
or, more appropriately, medical negligence, is that
type of claim which a victim has available to him or her to
redress a wrong committed by a medical professional which has
caused bodily harm. In order to successfully pursue such a
claim, a patient must prove that a health care provider, in
most
cases a physician, either failed to do something which a
reasonably prudent health care provider would have done, or
that
he or she did something that a reasonably prudent provider would
not have done; and that that failure or action caused
injury to the patient.51[51]
This Court has recognized that medical negligence cases are best
proved by opinions of expert witnesses belonging
in the same general neighborhood and in the same general line of
practice as defendant physician or surgeon. The
deference of courts to the expert opinion of qualified
physicians stems from the formers realization that the latter
possess
unusual technical skills which laymen in most instances are
incapable of intelligently evaluating, hence the
indispensability of expert testimonies.52[52]
In this case, both the trial and appellate courts concurred in
finding that the alleged negligence of petitioner in the
administration of chemotherapy drugs to respondents child was
not proven considering that Drs. Vergara and Balmaceda,
not being oncologists or cancer specialists, were not qualified
to give expert opinion as to whether petitioners lack of skill,
knowledge and professional competence in failing to observe the
standard of care in her line of practice was the proximate
cause of the patients death. Furthermore, respondents case was
not at all helped by the non-production of medical records
by the hospital (only the biopsy result and medical bills were
submitted to the court). Nevertheless, the CA found
petitioner liable for her failure to inform the respondents on
all possible side effects of chemotherapy before securing their
consent to the said treatment.
The doctrine of informed consent within the context of
physician-patient relationships goes far back into English
common law. As early as 1767, doctors were charged with the tort
of battery (i.e., an unauthorized physical contact with a
patient) if they had not gained the consent of their patients
prior to performing a surgery or procedure. In the United
States, the seminal case was Schoendorff v. Society of New York
Hospital53[53] which involved unwanted treatment
performed by a doctor. Justice Benjamin Cardozos oft-quoted
opinion upheld the basic right of a patient to give consent to
any medical procedure or treatment: Every human being of adult
years and sound mind has a right to determine what
shall be done with his own body; and a surgeon who performs an
operation without his patients consent, commits an
assault, for which he is liable in damages.54[54] From a purely
ethical norm, informed consent evolved into a general
principle of law that a physician has a duty to disclose what a
reasonably prudent physician in the medical community in
the exercise of reasonable care would disclose to his patient as
to whatever grave risks of injury might be incurred from a
proposed course of treatment, so that a patient, exercising
ordinary care for his own welfare, and faced with a choice of
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undergoing the proposed treatment, or alternative treatment, or
none at all, may intelligently exercise his judgment by
reasonably balancing the probable risks against the probable
benefits.55[55]
Subsequently, in Canterbury v. Spence56[56] the court observed
that the duty to disclose should not be limited
to medical usage as to arrogate the decision on revelation to
the physician alone. Thus, respect for the patients right of
self-determination on particular therapy demands a standard set
by law for physicians rather than one which physicians
may or may not impose upon themselves.57[57] The scope of
disclosure is premised on the fact that patients ordinarily
are persons unlearned in the medical sciences. Proficiency in
diagnosis and therapy is not the full measure of a physicians
responsibility. It is also his duty to warn of the dangers
lurking in the proposed treatment and to impart information
which the patient has every right to expect. Indeed, the
patients reliance upon the physician is a trust of the kind
which
traditionally has exacted obligations beyond those associated
with armslength transactions.58[58] The physician is not
expected to give the patient a short medical education, the
disclosure rule only requires of him a reasonable explanation,
which means generally informing the patient in nontechnical
terms as to what is at stake; the therapy alternatives open to
him, the goals expectably to be achieved, and the risks that may
ensue from particular treatment or no treatment.59[59]
As to the issue of demonstrating what risks are considered
material necessitating disclosure, it was held that experts are
unnecessary to a showing of the materiality of a risk to a
patients decision on treatment, or to the reasonably,
expectable
effect of risk disclosure on the decision. Such unrevealed risk
that should have been made known must further materialize,
for otherwise the omission, however unpardonable, is without
legal consequence. And, as in malpractice actions generally,
there must be a causal relationship between the physicians
failure to divulge and damage to the patient.60[60]
Reiterating the foregoing considerations, Cobbs v. Grant61[61]
deemed it as integral part of physicians overall
obligation to patient, the duty of reasonable disclosure of
available choices with respect to proposed therapy and of
dangers inherently and potentially involved in each. However,
the physician is not obliged to discuss relatively minor risks
inherent in common procedures when it is common knowledge that
such risks inherent in procedure of very low
incidence. Cited as exceptions to the rule that the patient
should not be denied the opportunity to weigh the risks of
surgery or treatment are emergency cases where it is evident he
cannot evaluate data, and where the patient is a child or
incompetent.62[62] The court thus concluded that the patients
right of self-decision can only be effectively exercised if
the patient possesses adequate information to enable him in
making an intelligent choice. The scope of the physicians
communications to the patient, then must be measured by the
patients need, and that need is whatever information is
-
material to the decision. The test therefore for determining
whether a potential peril must be divulged is its materiality
to
the patients decision.63[63]
Cobbs v. Grant further reiterated the pronouncement in
Canterbury v. Spence that for liability of the physician
for failure to inform patient, there must be causal relationship
between physicians failure to inform and the injury to
patient and such connection arises only if it is established
that, had revelation been made, consent to treatment would not
have been given.
There are four essential elements a plaintiff must prove in a
malpractice action based upon the doctrine of
informed consent: (1) the physician had a duty to disclose
material risks; (2) he failed to disclose or inadequately
disclosed
those risks; (3) as a direct and proximate result of the failure
to disclose, the patient consented to treatment she otherwise
would not have consented to; and (4) plaintiff was injured by
the proposed treatment. The gravamen in an informed
consent case requires the plaintiff to point to significant
undisclosed information relating to the treatment which would
have altered her decision to undergo it.64[64]
Examining the evidence on record, we hold that there was
adequate disclosure of material risks inherent in the
chemotherapy procedure performed with the consent of Angelicas
parents. Respondents could not have been unaware in
the course of initial treatment and amputation of Angelicas
lower extremity, that her immune system was already weak on
account of the malignant tumor in her knee. When petitioner
informed the respondents beforehand of the side effects of
chemotherapy which includes lowered counts of white and red
blood cells, decrease in blood platelets, possible kidney or
heart damage and skin darkening, there is reasonable expectation
on the part of the doctor that the respondents
understood very well that the severity of these side effects
will not be the same for all patients undergoing the procedure.
In other words, by the nature of the disease itself, each
patients reaction to the chemical agents even with
pre-treatment
laboratory tests cannot be precisely determined by the
physician. That death can possibly result from complications of
the
treatment or the underlying cancer itself, immediately or
sometime after the administration of chemotherapy drugs, is a
risk that cannot be ruled out, as with most other major medical
procedures, but such conclusion can be reasonably drawn
from the general side effects of chemotherapy already
disclosed.
As a physician, petitioner can reasonably expect the respondents
to have considered the variables in the
recommended treatment for their daughter afflicted with a
life-threatening illness. On the other hand, it is difficult to
give
credence to respondents claim that petitioner told them of 95%
chance of recovery for their daughter, as it was unlikely for
doctors like petitioner who were dealing with grave conditions
such as cancer to have falsely assured patients of
chemotherapys success rate. Besides, informed consent laws in
other countries generally require only a reasonable
explanation of potential harms, so specific disclosures such as
statistical data, may not be legally necessary.65[65]
The element of ethical duty to disclose material risks in the
proposed medical treatment cannot thus be reduced to
one simplistic formula applicable in all instances. Further, in
a medical malpractice action based on lack of informed
-
consent, the plaintiff must prove both the duty and the breach
of that duty through expert testimony.66[66] Such expert
testimony must show the customary standard of care of physicians
in the same practice as that of the defendant
doctor.67[67]
In this case, the testimony of Dr. Balmaceda who is not an
oncologist but a Medical Specialist of the DOHs
Operational and Management Services charged with receiving
complaints against hospitals, does not qualify as expert
testimony to establish the standard of care in obtaining consent
for chemotherapy treatment. In the absence of expert
testimony in this regard, the Court feels hesitant in defining
the scope of mandatory disclosure in cases of malpractice
based on lack of informed consent, much less set a standard of
disclosure that, even in foreign jurisdictions, has been
noted to be an evolving one.
As society has grappled with the juxtaposition between personal
autonomy and the medical profession's intrinsic impetus to cure,
the law defining adequate disclosure has undergone a dynamic
evolution. A standard once guided solely by the ruminations of
physicians is now dependent on what a reasonable person in the
patients position regards as significant. This change in
perspective is especially important as medical breakthroughs move
practitioners to the cutting edge of technology, ever encountering
new and heretofore unimagined treatments for currently incurable
diseases or ailments. An adaptable standard is needed to account
for this constant progression. Reasonableness analyses permeate our
legal system for the very reason that they are determined by social
norms, expanding and contracting with the ebb and flow of societal
evolution.
As we progress toward the twenty-first century, we now realize
that the legal standard of
disclosure is not subject to construction as a categorical
imperative. Whatever formulae or processes we adopt are only useful
as a foundational starting point; the particular quality or
quantity of disclosure will remain inextricably bound by the facts
of each case. Nevertheless, juries that ultimately determine
whether a physician properly informed a patient are inevitably
guided by what they perceive as the common expectation of the
medical consumera reasonable person in the patients position when
deciding to accept or reject a recommended medical procedure.68[68]
(Emphasis 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.
No costs.
SO ORDERED.
-
MARTIN S. VILLARAMA, JR.
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
See Dissenting Opinion ANTONIO T. CARPIO
Associate Justice
I join the dissent of J. Carpio CONCHITA CARPIO MORALES
Associate Justice
I join dissent of J. Carpio PRESBITERO J. VELASCO, JR.
Associate Justice
I join J. Brions Separate Opinion ANTONIO EDUARDO B. NACHURA
Associate Justice
I join the separate opinion of Justice Brion TERESITA J.
LEONARDO-DE CASTRO
Associate Justice
In the result: See Separate Opinion ARTURO D. BRION
Associate Justice
I join the dissent opinion of Jus. Carpio DIOSDADO M.
PERALTA
Associate Justice
Concur in the result, and I join the Separate Opinion of J.
Brion
LUCAS P. BERSAMIN
-
Associate Justice
(No Part)
MARIANO C. DEL CASTILLO
Associate Justice
Please see my concurring opinion ROBERTO A. ABAD
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice
I join J. Brion in his concurrence JOSE CATRAL MENDOZA
Associate Justice
I dissent. Evidence was provided by the doctor-petitioner
herself. I join J. Antonio Carpio
MARIA LOURDES P. A. SERENO
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the 1987 Constitution, I
certify that the conclusions in the above Decision had been reached
in consultation before the case was assigned to the writer of the
opinion of the Court.
RENATO C. CORONA
Chief Justice
Republic of the Philippines SUPREME COURT
Manila
-
FIRST DIVISION
G.R. No. 126297 January 31, 2007
PROFESSIONAL SERVICES, INC., Petitioner, vs. NATIVIDAD and
ENRIQUE AGANA, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 126467 January 31, 2007
NATIVIDAD (Substituted by her children MARCELINO AGANA III,
ENRIQUE AGANA, JR., EMMA AGANA ANDAYA, JESUS AGANA, and RAYMUND
AGANA) and ENRIQUE AGANA, Petitioners, vs. JUAN FUENTES,
Respondent.
x- - - - - - - - - - - - - - - - - - - -- - - - x
G.R. No. 127590 January 31, 2007
MIGUEL AMPIL, Petitioner, vs. NATIVIDAD AGANA and ENRIQUE AGANA,
Respondents.
D E C I S I O N
SANDOVAL-GUTIERREZ, J.:
Hospitals, having undertaken one of mankinds most important and
delicate endeavors, must assume the grave responsibility of
pursuing it with appropriate care. The care and service dispensed
through this high trust, however technical, complex and esoteric
its character may be, must meet standards of responsibility
commensurate with the undertaking to preserve and protect the
health, and indeed, the very lives of those placed in the hospitals
keeping.1
Assailed in these three consolidated petitions for review on
certiorari is the Court of Appeals Decision2 dated September 6,
1996 in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198 affirming
with modification the Decision3 dated March 17, 1993 of the
Regional Trial Court (RTC), Branch 96, Quezon City in Civil Case
No. Q-43322 and nullifying its Order dated September 21, 1993.
The facts, as culled from the records, are:
On April 4, 1984, Natividad Agana was rushed to the Medical City
General Hospital (Medical City Hospital) because of difficulty of
bowel movement and bloody anal discharge. After a series of medical
examinations, Dr. Miguel Ampil, petitioner in G.R. No. 127590,
diagnosed her to be suffering from "cancer of the sigmoid."
On April 11, 1984, Dr. Ampil, assisted by the medical staff4 of
the Medical City Hospital, performed an anterior resection surgery
on Natividad. He found that the malignancy in her sigmoid area had
spread on her left ovary, necessitating the removal of certain
portions of it. Thus, Dr. Ampil obtained the consent of Natividads
husband, Enrique Agana, to permit Dr. Juan Fuentes, respondent in
G.R. No. 126467, to perform hysterectomy on her.
After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took
over, completed the operation and closed the incision.
However, the operation appeared to be flawed. In the
corresponding Record of Operation dated April 11, 1984, the
attending nurses entered these remarks:
"sponge count lacking 2
"announced to surgeon searched (sic) done but to no avail
continue for closure."
-
On April 24, 1984, Natividad was released from the hospital. Her
hospital and medical bills, including the doctors fees, amounted to
P60,000.00.
After a couple of days, Natividad complained of excruciating
pain in her anal region. She consulted both Dr. Ampil and Dr.
Fuentes about it. They told her that the pain was the natural
consequence of the surgery. Dr. Ampil then recommended that she
consult an oncologist to examine the cancerous nodes which were not
removed during the operation.
On May 9, 1984, Natividad, accompanied by her husband, went to
the United States to seek further treatment. After four months of
consultations and laboratory examinations, Natividad was told she
was free of cancer. Hence, she was advised to return to the
Philippines.
On August 31, 1984, Natividad flew back to the Philippines,
still suffering from pains. Two weeks thereafter, her daughter
found a piece of gauze protruding from her vagina. Upon being
informed about it, Dr. Ampil proceeded to her house where he
managed to extract by hand a piece of gauze measuring 1.5 inches in
width. He then assured her that the pains would soon vanish.
Dr. Ampils assurance did not come true. Instead, the pains
intensified, prompting Natividad to seek treatment at the Polymedic
General Hospital. While confined there, Dr. Ramon Gutierrez
detected the presence of another foreign object in her vagina -- a
foul-smelling gauze measuring 1.5 inches in width which badly
infected her vaginal vault. A recto-vaginal fistula had formed in
her reproductive organs which forced stool to excrete through the
vagina. Another surgical operation was needed to remedy the damage.
Thus, in October 1984, Natividad underwent another surgery.
On November 12, 1984, Natividad and her husband filed with the
RTC, Branch 96, Quezon City a complaint for damages against the
Professional Services, Inc. (PSI), owner of the Medical City
Hospital, Dr. Ampil, and Dr. Fuentes, docketed as Civil Case No.
Q-43322. They alleged that the latter are liable for negligence for
leaving two pieces of gauze inside Natividads body and malpractice
for concealing their acts of negligence.
Meanwhile, Enrique Agana also filed with the Professional
Regulation Commission (PRC) an administrative complaint for gross
negligence and malpractice against Dr. Ampil and Dr. Fuentes,
docketed as Administrative Case No. 1690. The PRC Board of Medicine
heard the case only with respect to Dr. Fuentes because it failed
to acquire jurisdiction over Dr. Ampil who was then in the United
States.
On February 16, 1986, pending the outcome of the above cases,
Natividad died and was duly substituted by her above-named children
(the Aganas).
On March 17, 1993, the RTC rendered its Decision in favor of the
Aganas, finding PSI, Dr. Ampil and Dr. Fuentes liable for
negligence and malpractice, the decretal part of which reads:
WHEREFORE, judgment is hereby rendered for the plaintiffs
ordering the defendants PROFESSIONAL SERVICES, INC., DR. MIGUEL
AMPIL and DR. JUAN FUENTES to pay to the plaintiffs, jointly and
severally, except in respect of the award for exemplary damages and
the interest thereon which are the liabilities of defendants Dr.
Ampil and Dr. Fuentes only, as follows:
1. As actual damages, the following amounts:
a. The equivalent in Philippine Currency of the total of
US$19,900.00 at the rate of P21.60-US$1.00, as reimbursement of
actual expenses incurred in the United States of America;
b. The sum of P4,800.00 as travel taxes of plaintiffs and their
physician daughter;
c. The total sum of P45,802.50, representing the cost of
hospitalization at Polymedic Hospital, medical fees, and cost of
the saline solution;
2. As moral damages, the sum of P2,000,000.00;
3. As exemplary damages, the sum of P300,000.00;
4. As attorneys fees, the sum of P250,000.00;
-
5. Legal interest on items 1 (a), (b), and (c); 2; and 3
hereinabove, from date of filing of the complaint until full
payment; and
6. Costs of suit.
SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal
to the Court of Appeals, docketed as CA-G.R. CV No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with the RTC a
motion for a partial execution of its Decision, which was granted
in an Order dated May 11, 1993. Thereafter, the sheriff levied upon
certain properties of Dr. Ampil and sold them for P451,275.00 and
delivered the amount to the Aganas.
Following their receipt of the money, the Aganas entered into an
agreement with PSI and Dr. Fuentes to indefinitely suspend any
further execution of the RTC Decision. However, not long
thereafter, the Aganas again filed a motion for an alias writ of
execution against the properties of PSI and Dr. Fuentes. On
September 21, 1993, the RTC granted the motion and issued the
corresponding writ, prompting Dr. Fuentes to file with the Court of
Appeals a petition for certiorari and prohibition, with prayer for
preliminary injunction, docketed as CA-G.R. SP No. 32198. During
its pendency, the Court of Appeals issued a Resolution5 dated
October 29, 1993 granting Dr. Fuentes prayer for injunctive
relief.
On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with
CA-G.R. CV No. 42062.
Meanwhile, on January 23, 1995, the PRC Board of Medicine
rendered its Decision6 in Administrative Case No. 1690 dismissing
the case against Dr. Fuentes. The Board held that the prosecution
failed to show that Dr. Fuentes was the one who left the two pieces
of gauze inside Natividads body; and that he concealed such fact
from Natividad.
On September 6, 1996, the Court of Appeals rendered its Decision
jointly disposing of CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198,
thus:
WHEREFORE, except for the modification that the case against
defendant-appellant Dr. Juan Fuentes is hereby DISMISSED, and with
the pronouncement that defendant-appellant Dr. Miguel Ampil is
liable to reimburse defendant-appellant Professional Services,
Inc., whatever amount the latter will pay or had paid to the
plaintiffs-appellees, the decision appealed from is hereby AFFIRMED
and the instant appeal DISMISSED.
Concomitant with the above, the petition for certiorari and
prohibition filed by herein defendant-appellant Dr. Juan Fuentes in
CA-G.R. SP No. 32198 is hereby GRANTED and the challenged order of
the respondent judge dated September 21, 1993, as well as the alias
writ of execution issued pursuant thereto are hereby NULLIFIED and
SET ASIDE. The bond posted by the petitioner in connection with the
writ of preliminary injunction issued by this Court on November 29,
1993 is hereby cancelled.
Costs against defendants-appellants Dr. Miguel Ampil and
Professional Services, Inc.
SO ORDERED.
Only Dr. Ampil filed a motion for reconsideration, but it was
denied in a Resolution7 dated December 19, 1996.
Hence, the instant consolidated petitions.
In G.R. No. 126297, PSI alleged in its petition that the Court
of Appeals erred in holding that: (1) it is estopped from raising
the defense that Dr. Ampil is not its employee; (2) it is
solidarily liable with Dr. Ampil; and (3) it is not entitled to its
counterclaim against the Aganas. PSI contends that Dr. Ampil is not
its employee, but a mere consultant or independent contractor. As
such, he alone should answer for his negligence.
In G.R. No. 126467, the Aganas maintain that the Court of
Appeals erred in finding that Dr. Fuentes is not guilty of
negligence or medical malpractice, invoking the doctrine of res
ipsa loquitur. They contend that the pieces of gauze are prima
facie proofs that the operating surgeons have been negligent.
-
Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of
Appeals erred in finding him liable for negligence and malpractice
sans evidence that he left the two pieces of gauze in Natividads
vagina. He pointed to other probable causes, such as: (1) it was
Dr. Fuentes who used gauzes in performing the hysterectomy; (2) the
attending nurses failure to properly count the gauzes used during
surgery; and (3) the medical intervention of the American doctors
who examined Natividad in the United States of America.
For our resolution are these three vital issues: first, whether
the Court of Appeals erred in holding Dr. Ampil liable for
negligence and malpractice; second, whether the Court of Appeals
erred in absolving Dr. Fuentes of any liability; and third, whether
PSI may be held solidarily liable for the negligence of Dr.
Ampil.
I - G.R. No. 127590
Whether the Court of Appeals Erred in Holding Dr. Ampil
Liable for Negligence and Malpractice.
Dr. Ampil, in an attempt to absolve himself, gears the Courts
attention to other possible causes of Natividads detriment. He
argues that the Court should not discount either of the following
possibilities: first, Dr. Fuentes left the gauzes in Natividads
body after performing hysterectomy; second, the attending nurses
erred in counting the gauzes; and third, the American doctors were
the ones who placed the gauzes in Natividads body.
Dr. Ampils arguments are purely conjectural and without basis.
Records show that he did not present any evidence to prove that the
American doctors were the ones who put or left the gauzes in
Natividads body. Neither did he submit evidence to rebut the
correctness of the record of operation, particularly the number of
gauzes used. As to the alleged negligence of Dr. Fuentes, we are
mindful that Dr. Ampil examined his (Dr. Fuentes) work and found it
in order.
The glaring truth is that all the major circumstances, taken
together, as specified by the Court of Appeals, directly point to
Dr. Ampil as the negligent party, thus:
First, it is not disputed that the surgeons used gauzes as
sponges to control the bleeding of the patient during the surgical
operation.
Second, immediately after the operation, the nurses who assisted
in the surgery noted in their report that the sponge count (was)
lacking 2; that such anomaly was announced to surgeon and that a
search was done but to no avail prompting Dr. Ampil to continue for
closure x x x.
Third, after the operation, two (2) gauzes were extracted from
the same spot of the body of Mrs. Agana where the surgery was
performed.
An operation requiring the placing of sponges in the incision is
not complete until the sponges are properly removed, and it is
settled that the leaving of sponges or other foreign substances in
the wound after the incision has been closed is at least prima
facie negligence by the operating surgeon.8 To put it simply, such
act is considered so inconsistent with due care as to raise an
inference of negligence. There are even legions of authorities to
the effect that such act is negligence per se.9
Of course, the Court is not blind to the reality that there are
times when danger to a patients life precludes a surgeon from
further searching missing sponges or foreign objects left in the
body. But this does not leave him free from any obligation. Even if
it has been shown that a surgeon was required by the urgent
necessities of the case to leave a sponge in his patients abdomen,
because of the dangers attendant upon delay, still, it is his legal
duty to so inform his patient within a reasonable time thereafter
by advising her of what he had been compelled to do. This is in
order that she might seek relief from the effects of the foreign
object left in her body as her condition might permit. The ruling
in Smith v. Zeagler10 is explicit, thus:
The removal of all sponges used is part of a surgical operation,
and when a physician or surgeon fails to remove a sponge he has
placed in his patients body that should be removed as part of the
operation, he thereby leaves his operation uncompleted and creates
a new condition which imposes upon him the legal duty of calling
the new condition to his patients attention, and endeavoring with
the means he has at hand to minimize and avoid untoward results
likely to ensue therefrom.
-
Here, Dr. Ampil did not inform Natividad about the missing two
pieces of gauze. Worse, he even misled her that the pain she was
experiencing was the ordinary consequence of her operation. Had he
been more candid, Natividad could have taken the immediate and
appropriate medical remedy to remove the gauzes from her body. To
our mind, what was initially an act of negligence by Dr. Ampil has
ripened into a deliberate wrongful act of deceiving his
patient.
This is a clear case of medical malpractice or more
appropriately, medical negligence. To successfully pursue this kind
of case, a patient must only prove that a health care provider
either failed to do something which a reasonably prudent health
care provider would have done, or that he did something that a
reasonably prudent provider would not have done; and that failure
or action caused injury to the patient.11 Simply put, the elements
are duty, breach, injury and proximate causation. Dr, Ampil, as the
lead surgeon, had the duty to remove all foreign objects, such as
gauzes, from Natividads body before closure of the incision. When
he failed to do so, it was his duty to inform Natividad about it.
Dr. Ampil breached both duties. Such breach caused injury to
Natividad, necessitating her further examination by American
doctors and another surgery. That Dr. Ampils negligence is the
proximate cause12 of Natividads injury could be traced from his act
of closing the incision despite the information given by the
attending nurses that two pieces of gauze were still missing. That
they were later on extracted from Natividads vagina established the
causal link between Dr. Ampils negligence and the injury. And what
further aggravated such injury was his deliberate concealment of
the missing gauzes from the knowledge of Natividad and her
family.
II - G.R. No. 126467
Whether the Court of Appeals Erred in Absolving
Dr. Fuentes of any Liability
The Aganas assailed the dismissal by the trial court of the case
against Dr. Fuentes on the ground that it is contrary to the
doctrine of res ipsa loquitur. According to them, the fact that the
two pieces of gauze were left inside Natividads body is a prima
facie evidence of Dr. Fuentes negligence.
We are not convinced.
Literally, res ipsa loquitur means "the thing speaks for
itself." It is the rule that the fact of the occurrence of an
injury, taken with the surrounding circumstances, may permit an
inference or raise a presumption of negligence, or make out a
plaintiffs prima facie case, and present a question of fact for
defendant to meet with an explanation.13 Stated differently, where
the thing which caused the injury, without the fault of the
injured, is under the exclusive control of the defendant and the
injury is such that it should not have occurred if he, having such
control used proper care, it affords reasonable evidence, in the
absence of explanation that the injury arose from the defendants
want of care, and the burden of proof is shifted to him to
establish that he has observed due care and diligence.14
From the foregoing statements of the rule, the requisites for
the applicability of the doctrine of res ipsa loquitur are: (1) the
occurrence of an injury; (2) the thing which caused the injury was
under the control and management of the defendant; (3) the
occurrence was such that in the ordinary course of things, would
not have happened if those who had control or management used
proper care; and (4) the absence of explanation by the defendant.
Of the foregoing requisites, the most instrumental is the "control
and management of the thing which caused the injury."15
We find the element of "control and management of the thing
which caused the injury" to be wanting. Hence, the doctrine of res
ipsa loquitur will not lie.
It was duly established that Dr. Ampil was the lead surgeon
during the operation of Natividad. He requested the assistance of
Dr. Fuentes only to perform hysterectomy when he (Dr. Ampil) found
that the malignancy in her sigmoid area had spread to her left
ovary. Dr. Fuentes performed the surgery and thereafter reported
and showed his work to Dr. Ampil. The latter examined it and
finding everything to be in order, allowed Dr. Fuentes to leave the
operating room. Dr. Ampil then resumed operating on Natividad. He
was about to finish the procedure when the attending nurses
informed him that two pieces of gauze were missing. A "diligent
search" was conducted, but the misplaced gauzes were not found. Dr.
Ampil then directed that the incision be closed. During this entire
period, Dr. Fuentes was no longer in the operating room and had, in
fact, left the hospital.
Under the "Captain of the Ship" rule, the operating surgeon is
the person in complete charge of the surgery room and all personnel
connected with the operation. Their duty is to obey his orders.16
As stated before, Dr. Ampil was the lead surgeon. In other words,
he was the "Captain of the Ship." That he discharged such role is
evident from his following conduct: (1) calling Dr. Fuentes to
perform a hysterectomy; (2) examining the work of Dr. Fuentes and
finding it in order;
-
(3) granting Dr. Fuentes permission to leave; and (4) ordering
the closure of the incision. To our mind, it was this act of
ordering the closure of the incision notwithstanding that two
pieces of gauze remained unaccounted for, that caused injury to
Natividads body. Clearly, the control and management of the thing
which caused the injury was in the hands of Dr. Ampil, not Dr.
Fuentes.
In this jurisdiction, res ipsa loquitur is not a rule of
substantive law, hence, does not per se create or constitute an
independent or separate ground of liability, being a mere
evidentiary rule.17 In other words, mere invocation and application
of the doctrine does not dispense with the requirement of proof of
negligence. Here, the negligence was proven to have been committed
by Dr. Ampil and not by Dr. Fuentes.
III - G.R. No. 126297
Whether PSI Is Liable for the Negligence of Dr. Ampil
The third issue necessitates a glimpse at the historical
development of hospitals and the resulting theories concerning
their liability for the negligence of physicians.
Until the mid-nineteenth century, hospitals were generally
charitable institutions, providing medical services to the lowest
classes of society, without regard for a patients ability to pay.18
Those who could afford medical treatment were usually treated at
home by their doctors.19 However, the days of house calls and
philanthropic health care are over. The modern health care industry
continues to distance itself from its charitable past and has
experienced a significant conversion from a not-for-profit health
care to for-profit hospital businesses. Consequently, significant
changes in health law have accompanied the business-related changes
in the hospital industry. One important legal change is an increase
in hospital liability for medical malpractice. Many courts now
allow claims for hospital vicarious liability under the theories of
respondeat superior, apparent authority, ostensible authority, or
agency by estoppel. 20
In this jurisdiction, the statute governing liability for
negligent acts is Article 2176 of the Civil Code, which reads:
Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict
and is governed by the provisions of this Chapter.
A derivative of this provision is Article 2180, the rule
governing vicarious liability under the doctrine of respondeat
superior, thus:
ART. 2180. The obligation imposed by Article 2176 is demandable
not only for ones own acts or omissions, but also for those of
persons for whom one is responsible.
x x x x x x
The owners and managers of an establishment or enterprise are
likewise responsible for damages caused by their employees in the
service of the branches in which the latter are employed or on the
occasion of their functions.
Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of their
assigned tasks even though the former are not engaged in any
business or industry.
x x x x x x
The responsibility treated of in this article shall cease when
the persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.
A prominent civilist commented that professionals engaged by an
employer, such as physicians, dentists, and pharmacists, are not
"employees" under this article because the manner in which they
perform their work is not within the control of the latter
(employer). In other words, professionals are considered personally
liable for the fault or negligence they commit in the discharge of
their duties, and their employer cannot be held liable for such
fault or negligence. In the context of the present case, "a
hospital cannot be held liable for the fault or negligence of a
physician or surgeon in the treatment or operation of
patients."21
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The foregoing view is grounded on the traditional notion that
the professional status and the very nature of the physicians
calling preclude him from being classed as an agent or employee of
a hospital, whenever he acts in a professional capacity.22 It has
been said that medical practice strictly involves highly developed
and specialized knowledge,23 such that physicians are generally
free to exercise their own skill and judgment in rendering medical
services sans interference.24 Hence, when a doctor practices
medicine in a hospital setting, the hospital and its employees are
deemed to subserve him in his ministrations to the patient and his
actions are of his own responsibility.25
The case of Schloendorff v. Society of New York Hospital26 was
then considered an authority for this view. The "Schloendorff
doctrine" regards a physician, even if employed by a hospital, as
an independent contractor because of the skill he exercises and the
lack of control exerted over his work. Under this doctrine,
hospitals are exempt from the application of the respondeat
superior principle for fault or negligence committed by physicians
in the discharge of their profession.
However, the efficacy of the foregoing doctrine has weakened
with the significant developments in medical care. Courts came to
realize that modern hospitals are increasingly taking active role
in supplying and regulating medical care to patients. No longer
were a hospitals functions limited to furnishing room, food,
facilities for treatment and operation, and attendants for its
patients. Thus, in Bing v. Thunig,27 the New York Court of Appeals
deviated from the Schloendorff doctrine, noting that modern
hospitals actually do far more than provide facilities for
treatment. Rather, they regularly employ, on a salaried basis, a
large staff of physicians, interns, nurses, administrative and
manual workers. They charge patients for medical care and
treatment, even collecting for such services through legal action,
if necessary. The court then concluded that there is no reason to
exempt hospitals from the universal rule of respondeat
superior.
In our shores, the nature of the relationship between the
hospital and the physicians is rendered inconsequential in view of
our categorical pronouncement in Ramos v. Court of Appeals28 that
for purposes of apportioning responsibility in medical negligence
cases, an employer-employee relationship in effect exists between
hospitals and their attending and visiting physicians. This Court
held:
"We now discuss the responsibility of the hospital in this
particular incident. The unique practice (among private hospitals)
of filling up specialist staff with attending and visiting
"consultants," who are allegedly not hospital employees, presents
problems in apportioning responsibility for negligence in medical
malpractice cases. However, the difficulty is more apparent than
real.
In the first place, hospitals exercise significant control in
the hiring and firing of consultants and in the conduct of their
work within the hospital premises. Doctors who apply for consultant
slots, visiting or attending, are required to submit proof of
completion of residency, their educational qualifications,
generally, evidence of accreditation by the appropriate board
(diplomate), evidence of fellowship in most cases, and references.
These requirements are carefully scrutinized by members of the
hospital administration or by a review committee set up by the
hospital who either accept or reject the application. x x x.
After a physician is accepted, either as a visiting or attending
consultant, he is normally required to attend clinico-pathological
conferences, conduct bedside rounds for clerks, interns and
residents, moderate grand rounds and patient audits and perform
other tasks and responsibilities, for the privilege of being able
to maintain a clinic in the hospital, and/or for the privilege of
admitting patients into the hospital. In addition to these, the
physicians performance as a specialist is generally evaluated by a
peer review committee on the basis of mortality and morbidity
statistics, and feedback from patients, nurses, interns and
residents. A consultant remiss in his duties, or a consultant who
regularly falls short of the minimum standards acceptable to the
hospital or its peer review committee, is normally politely
terminated.
In other words, private hospitals, hire, fire and exercise real
control over their attending and visiting consultant staff. While
consultants are not, technically employees, x x x, the control
exercised, the hiring, and the right to terminate consultants all
fulfill the important hallmarks of an employer-employee
relationship, with the exception of the payment of wages. In
assessing whether such a relationship in fact exists, the control
test is determining. Accordingly, on the basis of the foregoing, we
rule that for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect
exists between hospitals and their attending and visiting
physicians. "
But the Ramos pronouncement is not our only basis in sustaining
PSIs liability. Its liability is also anchored upon the agency
principle of apparent authority or agency by estoppel and the
doctrine of corporate negligence which have gained acceptance in
the determination of a hospitals liability for negligent acts of
health professionals. The present case serves as a perfect platform
to test the applicability of these doctrines, thus, enriching our
jurisprudence.
Apparent authority, or what is sometimes referred to as the
"holding
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out" theory, or doctrine of ostensible agency or agency by
estoppel,29 has its origin from the law of agency. It imposes
liability, not as the result of the reality of a contractual
relationship, but rather because of the actions of a principal or
an employer in somehow misleading the public into believing that
the relationship or the authority exists.30 The concept is
essentially one of estoppel and has been explained in this
manner:
"The principal is bound by the acts of his agent with the
apparent authority which he knowingly permits the agent to assume,
or which he holds the agent out to the public as possessing. The
question in every case is whether the principal has by his
voluntary act placed the agent in such a situation that a person of
ordinary prudence, conversant with business usages and the nature
of the particular business, is justified in presuming that such
agent has authority to perform the particular act in
question.31
The applicability of apparent authority in the field of hospital
liability was upheld long time ago in Irving v. Doctor Hospital of
Lake Worth, Inc.32 There, it was explicitly stated that "there does
not appear to be any rational basis for excluding the concept of
apparent authority from the field of hospital liability." Thus, in
cases where it can be shown that a hospital, by its actions, has
held out a particular physician as its agent and/or employee and
that a patient has accepted treatment from that physician in the
reasonable belief that it is being rendered in behalf of the
hospital, then the hospital will be liable for the physicians
negligence.
Our jurisdiction recognizes the concept of an agency by
implication or estoppel. Article 1869 of the Civil Code reads:
ART. 1869. Agency may be express, or implied from the acts of
the principal, from his silence or lack of action, or his failure
to repudiate the agency, knowing that another person is acting on
his behalf without authority.
In this case, PSI publicly displays in the lobby of the Medical
City Hospital the names and specializations of the physicians
associated or accredited by it, including those of Dr. Ampil and
Dr. Fuentes. We concur with the Court of Appeals conclusion that it
"is now estopped from passing all the blame to the physicians whose
names it proudly paraded in the public directory leading the public
to believe that it vouched for their skill and competence." Indeed,
PSIs act is tantamount to holding out to the public that Medical
City Hospital, through its accredited physicians, offers quality
health care services. By accrediting Dr. Ampil and Dr. Fuentes and
publicly advertising their qualifications, the hospital created the
impression that they were its agents, authorized to perform medical
or surgical services for its patients. As expected, these patients,
Natividad being one of them, accepted the services on the
reasonable belief that such were being rendered by the hospital or
its employees, agents, or servants. The trial court correctly
pointed out:
x x x regardless of the education and status in life of the
patient, he ought not be burdened with the defense of absence of
employer-employee relationship between the hospital and the
independent physician whose name and competence are certainly
certified to the general public by the hospitals act of listing him
and his specialty in its lobby directory, as in the case herein.
The high costs of todays medical and health care should at least
exact on the hospital greater, if not broader, legal responsibility
for the conduct of treatment and surgery within its facility by its
accredited physician or surgeon, regardless of whether he is
independent or employed."33
The wisdom of the foregoing ratiocination is easy to discern.
Corporate entities, like PSI, are capable of acting only through
other individuals, such as physicians. If these accredited
physicians do their job well, the hospital succeeds in its mission
of offering quality medical services and thus profits financially.
Logically, where negligence mars the quality of its services, the
hospital should not be allowed to escape liability for the acts of
its ostensible agents.
We now proceed to the doctrine of corporate negligence or
corporate responsibility.
One allegation in the complaint in Civil Case No. Q-43332 for
negligence and malpractice is that PSI as owner, operator and
manager of Medical City Hospital, "did not perform the necessary
supervision nor exercise diligent efforts in the supervision of
Drs. Ampil and Fuentes and its nursing staff, resident doctors, and
medical interns who assisted Drs. Ampil and Fuentes in the
performance of their duties as surgeons."34 Premised on the
doctrine of corporate negligence, the trial court held that PSI is
directly liable for such breach of duty.
We agree with the trial court.
Recent years have seen the doctrine of corporate negligence as
the judicial answer to the problem of allocating hospitals
liability for the negligent acts of health practitioners, absent
facts to support the application of respondeat superior or apparent
authority. Its formulation proceeds from the judiciarys
acknowledgment that in these modern times, the duty of providing
quality medical service is no longer the sole prerogative and
responsibility of the physician. The modern hospitals have changed
structure. Hospitals now tend to organize a highly professional
medical staff whose competence
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and performance need to be monitored by the hospitals
commensurate with their inherent responsibility to provide quality
medical care.35
The doctrine has its genesis in Darling v. Charleston Community
Hospital.36 There, the Supreme Court of Illinois held that "the
jury could have found a hospital negligent, inter alia, in failing
to have a sufficient number of trained nurses attending the
patient; failing to require a consultation with or examination by
members of the hospital staff; and failing to review the treatment
rendered to the patient." On the basis of Darling, other
jurisdictions held that a hospitals corporate negligence extends to
permitting a physician known to be incompetent to practice at the
hospital.37 With the passage of time, more duties were expected
from hospitals, among them: (1) the use of reasonable care in the
maintenance of safe and adequate facilities and equipment; (2) the
selection and retention of competent physicians; (3) the overseeing
or supervision of all persons who practice medicine within its
walls; and (4) the formulation, adoption and enforcement of
adequate rules and policies that ensure quality care for its
patients.38 Thus, in Tucson Medical Center, Inc. v. Misevich,39 it
was held that a hospital, following the doctrine of corporate
responsibility, has the duty to see that it meets the standards of
responsibilities for the care of patients. Such duty includes the
proper supervision of the members of its medical staff. And in Bost
v. Riley,40 the court concluded that a patient who enters a
hospital does so with the reasonable expectation that it will
attempt to cure him. The hospital accordingly has the duty to make
a reasonable effort to monitor and oversee the treatment prescribed
and administered by the physicians practicing in its premises.
In the present case, it was duly established that PSI operates
the Medical City Hospital for the purpose and under the concept of
providing comprehensive medical services to the public.
Accordingly, it has the duty to exercise reasonable care to protect
from harm all patients admitted into its facility for medical
treatment. Unfortunately, PSI failed to perform such duty. The
findings of the trial court are convincing, thus:
x x x PSIs liability is traceable to its failure to conduct an
investigation of the matter reported in the nota bene of the count
nurse. Such failure established PSIs part in the dark conspiracy of
silence and concealment about the gauzes. Ethical considerations,
if not also legal, dictated the holding of an immediate inquiry
into the events, if not for the benefit of the patient to whom the
duty is primarily owed, then in the interest of arriving at the
truth. The Court cannot accept that the medical and the healing
professions, through their members like defendant surgeons, and
their institutions like PSIs hospital facility, can callously turn
their backs on and disregard even a mere probability of mistake or
negligence by refusing or failing to investigate a report of such
seriousness as the one in Natividads case.
It is worthy to note that Dr. Ampil and Dr. Fuentes operated on
Natividad with the assistance of the Medical City Hospitals staff,
composed of resident doctors, nurses, and interns. As such, it is
reasonable to conclude that PSI, as the operator of the hospital,
has actual or constructive knowledge of the procedures carried out,
particularly the report of the attending nurses that the two pieces
of gauze were missing. In Fridena v. Evans,41 it was held that a
corporation is bound by the knowledge acquired by or notice given
to its agents or officers within the scope of their authority and
in reference to a matter to which their authority extends. This
means that the knowledge of any of the staff of Medical City
Hospital constitutes knowledge of PSI. Now, the failure of PSI,
despite the attending nurses report, to investigate and inform
Natividad regarding the missing gauzes amounts to callous
negligence. Not only did PSI breach its duties to oversee or
supervise all persons who practice medicine within its walls, it
also failed to take an active step in fixing the negligence
committed. This renders PSI, not only vicariously liable for the
negligence of Dr. Ampil under Article 2180 of the Civil Code, but
also directly liable for its own negligence under Article 2176. In
Fridena, the Supreme Court of Arizona held:
x x x In recent years, however, the duty of care owed to the
patient by the hospital has expanded. The emerging trend is to hold
the hospital responsible where the hospital has failed to monitor
and review medical services being provided within its walls. See
Kahn Hospital Malpractice Prevention, 27 De Paul . Rev. 23
(1977).
Among the cases indicative of the emerging trend is Purcell v.
Zimbelman, 18 Ariz. App. 75,500 P. 2d 335 (1972). In Purcell, the
hospital argued that it could not be held liable for the
malpractice of a medical practitioner because he was an independent
contractor within the hospital. The Court of Appeals pointed out
that the hospital had created a professional staff whose competence
and performance was to be monitored and reviewed by the governing
body of the hospital, and the court held that a hospital would be
negligent where it had knowledge or reason to believe that a doctor
using the facilities was employing a method of treatment or care
which fell below the recognized standard of care.
Subsequent to the Purcell decision, the Arizona Court of Appeals
held that a hospital has certain inherent responsibilities
regarding the quality of medical care furnished to patients within
its walls and it must meet the standards of responsibility
commensurate with this undertaking. Beeck v. Tucson General
Hospital, 18 Ariz. App. 165, 500 P. 2d 1153 (1972). This court has
confirmed the rulings of the Court of Appeals that a hospital has
the duty of supervising the competence of the doctors on its staff.
x x x.
x x x x x x
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In the amended complaint, the plaintiffs did plead that the
operation was performed at the hospital with its knowledge, aid,
and assistance, and that the negligence of the defendants was the
proximate cause of the patients injuries. We find that such general
allegations of negligence, along with the evidence produced at the
trial of this case, are sufficient to support the hospitals
liability based on the theory of negligent supervision."
Anent the corollary issue of whether PSI is solidarily liable
with Dr. Ampil for damages, let it be emphasized that PSI, apart
from a general denial of its responsibility, failed to adduce
evidence showing that it exercised the diligence of a good father
of a family in the accreditation and supervision of the latter. In
neglecting to offer such proof, PSI failed to discharge its burden
under the last paragraph of Article 2180 cited earlier, and,
therefore, must be adjudged solidarily liable with Dr. Ampil.
Moreover, as we have discussed, PSI is also directly liable to the
Aganas.
One final word. Once a physician undertakes the treatment and
care of a patient, the law imposes on him certain obligations. In
order to escape liability, he must possess that reasonable degree
of learning, skill and experience required by his profession. At
the same time, he must apply reasonable care and diligence in the
exercise of his skill and the application of his knowledge, and
exert his best judgment.
WHEREFORE, we DENY all the petitions and AFFIRM the challenged
Decision of the Court of Appeals in CA-G.R. CV No. 42062 and
CA-G.R. SP No. 32198.
Costs against petitioners PSI and Dr. Miguel Ampil.
SO ORDERED.
ANGELINA SANDOVAL-GUTIERREZ Associate Justice
WE CONCUR:
REYNATO S. PUNO Chief Justice Chairperson
RENATO C. CORONA Associate Justice
ADOLFO S. AZCUNA Asscociate Justice
(No Part) CANCIO C. GARCIA
Associate Justice
C E R T I F I C A T I O N
Pursuant to Article VIII, Section 13 of the Constitution, it is
hereby certified that the conclusions in the above Decision were
reached in consultation before the case was assigned to the writer
of the opinion of the Courts Division.
REYNATO S. PUNO Chief Justice
Republic of the Philippines SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 122445 November 18, 1997
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DR. NINEVETCH CRUZ, petitioner, vs. COURT OF APPEALS and LYDIA
UMALI, respondents.
FRANCISCO, J.:
Doctors are protected by a special rule of law. They are not
guarantors of care. They do not even warrant a good result. They
are not insurers against mishaps or unusual consequences.
Furthermore they are not liable for honest mistakes of judgment . .
. 1
The present case against petitioner is in the nature of a
medical malpractice suit, which in simplest terms is the type of
claim which a victim has available to him or her to redress a wrong
committed by a medical professional which has caused bodily harm. 2
In this jurisdiction, however, such claims are most often brought
as a civil action for damages under Article 2176 of the Civil Code,
3 and in some instances, as a criminal case under Article 365 of
the Revised Penal Code 4 with which the civil action for damages is
impliedly instituted. It is via the latter type of action that the
heirs of the deceased sought redress for the petitioner's alleged
imprudence and negligence in treating the deceased thereby causing
her death. The petitioner and one Dr. Lina Ercillo who was the
attending anaesthesiologist during the operation of the deceased
were charged with "reckless imprudence and negligence resulting to
(sic) homicide" in an information which reads:
That on or about March 23, 1991, in the City of San Pablo,
Republic of the Philippines and within the jurisdiction of this
Honorable Court, the accused above named, being then the attending
anaesthesiologist and surgeon, respectively, did then and there, in
a negligence (sic), careless, imprudent, and incompetent manner,
and failing to supply or store sufficient provisions and facilities
necessary to meet any and all exigencies apt to arise before,
during and/or after a surgical operation causing by such
negligence, carelessness, imprudence, and incompetence, and causing
by such failure, including the lack of preparation and foresight
needed to avert a tragedy, the untimely death of said Lydia Umali
on the day fol