ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and
asnatural guardians of the minors, ROMMEL RAMOS,
RORODERI!"RAMOSandRONRAMONDRAMOS, petitioners, vs.!O#R$O%
A&&EALS, DELOSSAN$OSMEDI!AL !EN$ER, DR.ORLINO 'OSA"A and
DRA. &ER%E!$A G#$IERRE(, respondents.D E ! I S I O N"ANAN,
J.)The Hippocratic Oath mandates physicians to give
primordialconsideration to the healthand welfare of their
patients.If a doctor fails to live up to this precept, he is made
accountablefor his acts.A mistake, through gross negligence or
incompetence or plain human error, mayspell the difference between
life and death.In this sense, the doctor plays God on his
patientsfate.!"#In the case at bar, the $ourt is called upon to
rule whether a surgeon, an anesthesiologist anda hospital should be
made liable for the unfortunate comatose condition of a patient
scheduledforcholecystectomy.!%#&etitioners seek the reversal of
the decision!'# of the $ourt of Appeals, dated %( )ay
"((*,whichoverturnedthedecision!+#of the,egional Trial $ourt,
dated'-.anuary"((%, findingprivaterespondents liablefor damages
arisingfromnegligenceintheperformanceof theirprofessional duties
towards petitioner /rlinda ,amos resulting in her comatose
condition.The antecedent facts as summari0ed by the trial court are
reproduced hereunder1&laintiff /rlinda ,amos was, until the
afternoon of .une "2, "(3*, a +24year old 5/6h. 7A89 robust woman
5T:;, October "(, "(3(, p. "-9./6cept for occasional complaints of
discomfort due to pains allegedly caused by the presence of a stone
in her gall bladder 5T:;, .anuary "', "(33, pp. +4*9, she was as
normal as any other woman.)arried to ,ogelio /. ,amos, an e6ecutive
of &hilippine 9.?ecause the discomforts somehow interfered with
her normal ways, she sought professional advice.:he was advised to
undergo an operation for the removal of a stone in her gall bladder
5T:;, .anuary "', "(33, p. *9.:he underwent a series of
e6aminations which included blood and urine tests 5/6hs. 7A8 and
7$89 which indicated she was fit for surgery.Through the
intercession of a mutual friend, =r. ?uenvia@e 5T:;, .anuary "',
"(33, p.29, she and her husband ,ogelio met for the first time =r.
Orlino Ho0aka 5should be HosakaA see T:;, Bebruary %-, "((-, p. '9,
one of the defendants in this case, on .une"-, "(3*.They agreed
that their date at the operating table at the =4%29./rlinda ,amos
stayed at the I$C for a month.About four months thereafter or on
;ovember "*, "(3*, the patient was released from the
hospital.=uring the whole period of her confinement, she incurred
hospital bills amounting to &(',*+%.%* which is the sub@ect of
a promissory note and affidavit of undertaking e6ecuted by ,ogelio
/. ,amos in favor of =, petitioners filed a civil case!># for
damages with the ,egional Trial$ourt of Due0on $ity against herein
private respondents alleging negligence in the managementand care
of /rlinda ,amos.=uringthetrial, bothparties presentedevidence as
tothepossiblecauseof /rlindasin@ury.&laintiff presented the
testimonies of =ean Herminda $ru0 and =r. )ariano Gavino toprove
that the damage sustained by /rlinda was due to lack of o6ygen in
her brain caused by thefaulty management of her airway by private
respondents during the anesthesia phase.On theother hand, private
respondents primarily relied on the e6pert testimony of =r. /duardo
.amora,a pulmonologist, to the effect that the cause of brain
damage was /rlindas allergic reaction tothe anesthetic agent,
Thiopental :odium 5&entothal9.After considering the evidence
from both sides, the ,egional Trial $ourt rendered @udgmentin favor
of petitioners, to wit1After evaluating the evidence as shown in
the finding of facts set forth earlier, and applying the aforecited
provisions of law and @urisprudence to the case at bar, this $ourt
finds and so holds that defendants are liable to plaintiffs for
damages.The defendants were guilty of, at the very least,
negligence in the performance of their duty to plaintiff4patient
/rlinda ,amos.On the part of =r. &erfecta Gutierre0, this $ourt
finds that she omitted to e6ercise reasonable care in not only
intubating the patient, but also in not repeating the
administration of atropine 5T:;, August %-, "((", pp. *4"-9,
without due regard to thefact that the patient was inside the
operating room for almost three 5'9 hours.Bor after she committed a
mistake in intubating !the# patient, the patientHs nailbed became
bluish and the patient, thereafter, was placed in trendelenburg
position, because of the decrease of blood supply to the patientHs
brain.The evidence further shows that the hapless patient suffered
brain damage because of the absence of o6ygen in her 5patientHs9
brain for appro6imately four to five minutes which, in turn, caused
the patient to become comatose.On the part of =r. Orlino Hosaka,
this $ourt finds that he is liable for the acts of =r. &erfecta
Gutierre0 whom he had chosen to administer anesthesia on the
patient as part of his obligation to provide the patient a Igood
anesthesiologistH, and for arriving for the scheduled operation
almost three 5'9 hours late.On the part of =, wellwithin the
e6tended period given by the $ourt.&etitioners assail the
decision of the $ourt of Appeals on the following grounds1II;
&CTTI;G )C$H ,/+# An in@ury or damage is pro6imately caused by
an act or a failure to act,whenever it appears from the evidence in
the case, that the act or omission played a substantialpart in
bringing about or actually causing the in@ury or damageA and that
the in@ury or damagewas either a direct result or a reasonably
probable conseEuence of the act or omission.!>*# It is
thedominant, moving or producing
cause.Applyingtheabovedefinitioninrelationtotheevidenceat hand,
faultyintubationisundeniably the pro6imate cause which triggered
the chain of events leading to /rlindas braindamage and,
ultimately, her comatosed condition.&rivate respondents
themselves admitted in their testimony that the first intubation
was afailure.This fact was likewiseobservedbywitness
$ru0whensheheardrespondent =ra.Gutierre0 remarked, 7Ang hirap
ma4intubate nito, mali yata ang pagkakapasok.O lumalaki angtiyan.8
Thereafter, witness $ru0noticedabdominal distentiononthebodyof
/rlinda.Thedevelopment of abdominal distention, together with
respiratory embarrassment indicates that theendotracheal tube
entered the esophagus instead of the respiratory tree.In other
words, insteadof the intended endotracheal intubation what actually
took place was an esophagealintubation.=uring intubation, such
distention indicates that air has entered the gastrointestinaltract
through the esophagus instead of the lungs through the
trachea./ntry into the esophaguswould certainly cause some delay in
o6ygen delivery into the lungs as the tube which
carrieso6ygenisinthewrongplace.That abdominal
distentionhadbeenobservedduringthefirstintubation suggests that the
length of time utili0ed in inserting the endotracheal tube 5up to
thetime the tube was withdrawn for the second attempt9 was fairly
significant.=ue to the delay inthe deliveryof o6ygeninher lungs
/rlinda showedsigns of cyanosis.!>># As
statedinthetestimonyof=r.Hosaka, thelackofo6ygenbecameapparent
onlyafterhenoticedthat
thenailbedsof/rlindawerealreadyblue.!>2#However,
privaterespondentscontendthat asecondintubation was e6ecuted on
/rlinda and this one was successfully done.Ge do not think
so.;oevidence e6ists on record, beyond private respondentsH bare
claims, which supports thecontentionthat thesecondintubationwas
successful.Assumingthat the endotracheal tubefinally found its way
into the proper orifice of the trachea, the same gave no guarantee
of o6ygendelivery, the hallmark of a successful intubation.In fact,
cyanosis was again observedimmediately after the second
intubation.&roceeding from this event 5cyanosis9, it could not
beclaimed, as private respondents insist, that the secondintubation
was accomplished./vengranting that the tube was successfully
inserted during the second attempt, it was obviously toolate.As
aptly e6plained by the trial court, /rlinda already suffered brain
damage as a result ofthe inadeEuate o6ygenation of her brain for
about four to five minutes.!>3#The aboveconclusionis not without
basis.:cientific studies point out that intubationproblems
areresponsiblefor one4third5"K'9 of deaths andserious in@uries
associatedwithanesthesia.!>(#;evertheless, ninety4eight percent
5(3O9 or the vast ma@ority of difficult
intubationsmaybeanticipatedbyperformingathoroughevaluationofthepatientsairwaypriortotheoperation.!2-#
As stated beforehand, respondent =ra. Gutierre0 failed to observe
the proper pre4operative protocol which could have prevented this
unfortunate incident.Had appropriatediligence and reasonable care
been used in the pre4operative evaluation, respondent
physiciancould have been much more prepared to meet the contingency
brought about by the perceivedanatomic variations in the patients
neck and oral area, defects which would have been easilyovercomeby
a priorknowledgeof those variationstogetherwith a change in
techniEue.!2"# Inotherwords, ane6periencedanesthesiologist,
adeEuatelyalertedbyathoroughpre4operativeevaluation,would have had
little difficulty going around the short neck and protruding
teeth.!2%# Having failed to observe common medical standards in
pre4operative management andintubation, respondent =ra. Gutierre0
negligence resulted in cerebral ano6ia and eventual comaof
/rlinda.Ge now determine the responsibility of respondent =r.
Orlino Hosaka as the head of thesurgical team.As the so4called
7captain of the ship,8!2'# it is the surgeons responsibility to see
toit that thoseunder himperformtheir taskintheproper
manner.,espondent =r. Hosakasnegligence can be found in his failure
to e6ercise the proper authority 5as the 7captain8 of theoperative
team9 in not determining if his anesthesiologist observed proper
anesthesiaprotocols.In fact, no evidence on record e6ists to show
that respondent =r. Hosaka verified ifrespondent =ra. Gutierre0
properly intubated the patient. Burthermore, it does not escape us
thatrespondent =r. Hosaka had scheduled another procedure in a
different hospital at the same timeas /rlindas cholecystectomy, and
was in fact over three hours late for the lattersoperation.?ecause
of this, he had little or no time to confer with his
anesthesiologist regardingthe anesthesia delivery.This indicates
that he was remiss in his professional duties towards
hispatient.Thus, he shares eEual responsibility for the events
which resulted in /rlindas
condition.Genowdiscusstheresponsibilityofthehospital
inthisparticularincident.TheuniEuepractice 5among private
hospitals9 of filling upspecialist staff withattending
andvisiting7consultants,8!2+# whoareallegedlynot hospital
employees, presentsproblemsinapportioningresponsibility for
negligence in medical malpractice cases.However, the difficulty is
only moreapparent than real.In the first place, hospitals e6ercise
significant control in the hiring and firing of consultantsand in
the conduct of their work within the hospital premises.=octors who
apply for7consultant8 slots, visiting or attending, are reEuired to
submit proof of completion of residency,theireducational
EualificationsA generally,
evidenceofaccreditationbytheappropriateboard5diplomate9, evidence
of fellowshipinmost cases, andreferences.These reEuirements
arecarefully scrutini0ed by members of the hospital administration
or by a review committee set upbythehospital whoeither accept or
re@ect the application.!2*# This is particularlytruewithrespondent
hospital.Afteraphysicianisaccepted,either as avisitingorattending
consultant,he is normallyreEuired to attend clinico4pathological
conferences,conduct bedside rounds for clerks, internsand
residents, moderate grand rounds and patient audits and
performother tasks andresponsibilities, for the privilege of being
able to maintain a clinic in the hospital, andKor for theprivilege
of admitting patients into the hospital.In addition to these, the
physicians performanceas a specialist is generally evaluated by a
peer review committee on the basis of mortality
andmorbiditystatistics, andfeedbackfrompatients, nurses, interns
andresidents.Aconsultantremiss inhis duties, or a consultant
whoregularlyfalls short of the minimumstandardsacceptable to the
hospital or its peer review committee, is normally politely
terminated.In other words, private hospitals, hire, fire and
e6ercise real control over their attending
andvisiting7consultant8staff.Ghile 7consultants8 are
not,technicallyemployees,a point whichrespondent hospital asserts
in denying all responsibility for the patients condition, the
controle6ercised, the hiring, and the right to terminate
consultants all fulfill the important hallmarks ofan
employer4employee relationship, with the e6ception of the payment
of wages.In assessingwhether such a relationship in fact e6ists,
the control test is determining.Accordingly, on thebasis of
theforegoing, werulethat for thepurposeof
allocatingresponsibilityinmedicalnegligence cases, an
employer4employee relationship in effect e6ists between hospitals
and theirattending and visiting physicians.This being the case, the
Euestion now arises as to whether ornot respondent hospital is
solidarily liable with respondent doctors for petitioners
condition.!2>#The basis for holding an employer solidarily
responsible for the negligence of its employeeis found in Article
%"3- of the $ivil $ode which considers a person accountable not
only for hisown acts but also for those of others based on the
formers responsibility under a relationshipof patria potestas.!22#
:uch responsibility ceases when the persons or entity concerned
prove thatthey have observed the diligence of a good father of the
family to prevent damage.!23# In otherwords, while the burden of
proving negligence rests on the plaintiffs, once negligence is
shown,the burden shifts to the respondents 5parent, guardian,
teacher or employer9 who should provethat they observed the
diligence of a good father of a family to prevent damage.In the
instant case, respondent hospital, apart from a general denial of
its responsibility overrespondentphysicians,failed
toadduceevidenceshowingthat ite6ercised thediligence of agood
father of a family in the hiring and supervision of the latter.It
failed to adduce evidencewith regard to the degree of supervision
which it e6ercised over its physicians.In neglecting tooffer such
proof, or proof of a similar nature, respondent hospital thereby
failed to discharge itsburden under the last paragraph of Article
%"3-.Having failed to do this, respondent hospital isconseEuently
solidarily responsible with its physicians for /rlindas
condition.?ased on the foregoing, we hold that the $ourt of Appeals
erred in accepting and relying
onthetestimoniesofthewitnessesfortheprivaterespondents.Indeed,
asshownbytheabovediscussions, private respondents were unable to
rebut the presumption of negligence.Cpon
thesedisEuisitionsweholdthat
privaterespondentsaresolidarilyliablefordamagesunder
Article%"2>!2(# of the $ivil $ode.Ge now come to the amount of
damages due petitioners.The trial court awarded a totalof
&>'%,---.-- pesos 5should be &>">,---.--9 in
compensatory damages to the plaintiff,7sub@ect to its being
updated8 covering the period from "* ;ovember "(3* up to "* April
"((%,based on monthly e6penses for the care of the patient
estimated at &3,---.--.At current levels, the &3---Kmonthly
amount established by the trial court at the time of
itsdecisionwouldbe grosslyinadeEuate tocover the actual costs of
home4basedcare for acomatose individual. The calculated amount was
not even arrived at by looking at the actual costof proper hospice
care for the patient.Ghat it reflected were the actual e6penses
incurred andproved by the petitioners after they were forced to
bring home the patient to avoid mountinghospital bills.And yet
ideally, a comatose patient should remain in a hospital or be
transferred to a hospicespeciali0inginthecareof thechronicallyill
for thepurposeof providingaproper milieuadeEuate to meet minimum
standards of care.In the instant case for instance, /rlinda has to
beconstantly turned from side to side to prevent bedsores and
hypostatic pneumonia.Beeding isdone by nasogastric tube.Bood
preparation should be normally made by a dietitian to provideher
with the correct daily caloric reEuirements and vitamin
supplements.Burthermore, she has tobe seen on a regular basis by a
physical therapist to avoid muscle atrophy, and by a
pulmonarytherapist to prevent the accumulation of secretions which
can lead to respiratory complications.Given these considerations,
the amount of actual damages recoverable in suits arising
fromnegligence should at least reflect the correct minimum cost of
proper care, not the cost of thecare the family is usually
compelled to undertake at home to avoid bankruptcy.However,
theprovisions of the $ivil $ode on actual or compensatory damages
present us with somedifficulties.Gell4settled is the rule that
actual damages which may be claimed by the plaintiff are
thosesuffered by him as he has duly proved.The $ivil $ode
provides1Art. 21. 4 /6cept as provided by law or by stipulation,
one is entitled to an adeEuate compensation only for such pecuniary
loss suffered by him as he has duly proved.:uch compensation is
referred to as actual or compensatory damages.Our rules on actual
or compensatory damages generally assume that at the time of
litigation,the in@ury suffered as a conseEuence of an act of
negligence has been completed and that the costcan be
liEuidated.However, these provisions neglect to take into account
those situations, as inthis case, wheretheresultingin@urymight
becontinuingandpossiblefuturecomplicationsdirectly arising from the
in@ury, while certain to occur, are difficult to predict.In these
cases, the amount of damages which should be awarded, if they are
to adeEuatelyand correctly respond to the in@ury caused, should be
one which compensates for pecuniary lossincurred and proved, up to
the time of trialA and one which would meet pecuniary loss certain
tobe suffered but which could not, from the nature of the case, be
made with certainty.!3-# In otherwords, temperate damages can and
should be awarded on top of actual or compensatory damagesin
instances where the in@ury is chronic and continuing.And because of
the uniEue nature ofsuchcases,
noincompatibilityariseswhenbothactual
andtemperatedamagesareprovidedfor.The reason is that these damages
cover two distinct phases.As it would not be eEuitable 4 and
certainly not in the best interests of the administration of@ustice
4 for the victim in such cases to constantly come before the courts
and invoke their aid inseeking ad@ustments to the compensatory
damages previously awarded 4 temperate damages areappropriate.The
amountgivenastemperatedamages,thoughto a
certaine6tentspeculative,should take into account the cost of
proper care.Intheinstant case,
petitionerswereabletoprovideonlyhome4basednursingcareforacomatose
patient who has remained in that condition for over a decade.Having
premised ouraward for compensatory damages on the amount provided
by petitioners at the onset of litigation,it
wouldbenowmuchmoreinstepwiththeinterests of @usticeif
thevalueawardedfortemperatedamageswouldallowpetitionerstoprovideoptimal
carefortheir lovedoneinafacility which generally speciali0es in
such care.They should not be compelled by direcircumstances to
provide substandard care at home without the aid of professionals,
for anythingless wouldbe grosslyinadeEuate.Cnder the circumstances,
anawardof &",*--,---.--intemperate damages would therefore be
reasonable.!3"#In Valen!uela vs. "ourt of Appeals,!3%# this $ourt
was confronted with a situation where
thein@urysufferedbytheplaintiffwouldhaveledtoe6penseswhichweredifficult
toestimatebecause while they would have been a direct result of the
in@ury 5amputation9, and were certainto be incurred by the
plaintiff, they were likely to arise only in the future.Geawarded
&",---,---.-- in moral damages in that case.=escribing the
nature of the in@ury, the $ourt therein stated1As a result of the
accident, )a.