G.R. No. 172200.July 6, 2010.* THE HEIRS OF REDENTOR COMPLETO and ELPIDIO ABIAD, petitioners, vs. SGT.

AMANDO C. ALBAYDA, JR., respondent. the injury suffered. Article 2176 of the Civil Code provides that 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 preexisting contractual relation between the parties, is called a quasi-delict. In this regard, the question of the motorists negligence is a question of fact.

Appeals; Conclusions and findings of fact of the trial court are entitled to great weight on appeal and should not be disturbed unless for strong and cogent reasons, because the trial court is in a better position to examine real evidence, as well as to observe the demeanor of the witnesses while testifying in the case.The issues raised by petitioners essentially delve into factual matters which were already passed upon by the Regional Trial Court (RTC) and the Court of Appeals (CA). Conclusions and findings of fact of the trial court are entitled to great weight on appeal and should not be disturbed unless for strong and cogent reasons, because the trial court is in a better position to examine real evidence, as well as to observe the demeanor of the witnesses while testifying in the case. The fact that the CA adopted the findings of fact of the trial court makes the same binding upon this Court. Well-settled is the rule that the Supreme Court is not a trier of facts. To be sure, findings of fact of lower courts are deemed conclusive and binding upon the Supreme Court, save only for clear and exceptional reasons, none of which is present in the case at bar.

Torts and Damages; Quasi-Delicts; Negligence; It is a rule in negligence suits that the plaintiff has the burden of proving by a preponderance of evidence the motorists breach in his duty of care owed to the plaintiff, that the motorist was negligent in failing to exercise the diligence required to avoid injury to the plaintiff, and that such negligence was the proximate cause of the injury suffered. The instant case involved a collision between a taxicab and a bicycle which resulted in serious physical injuries to the bicycle rider, Albayda. It is a rule in negligence suits that the plaintiff has the burden of proving by a preponderance of evidence the motorists breach in his duty of care owed to the plaintiff, that the motorist was negligent in failing to exercise the diligence required to avoid injury to the plaintiff, and that such negligence was the proximate cause of

Same; Same; Same; Bicycles; Right of Way; The bicycle occupies a legal position that is at least equal to that of other vehicles lawfully on the highway, and it is fortified by the fact that usually more will be required of a motorist than a bicyclist in discharging his duty of care to the other because of the physical advantages the automobile has over the bicycle; While the duty of using reasonable care falls alike on a motorist and a bicyclist, due to the inherent differences in the two vehicles, more care is required from the motorist to fully discharge the duty than from the bicyclist.The bicycle occupies a legal position that is at least equal to that of other vehicles lawfully on the highway, and it is fortified by the fact that usually more will be required of a motorist than a bicyclist in discharging his duty of care to the other because of the physical advantages the automobile has over the bicycle. At the slow speed of ten miles per hour, a bicyclist travels almost fifteen feet per second, while a car traveling at only twenty-five miles per hour covers almost thirty-seven feet per second, and split-second action may be insufficient to avoid an accident. It is obvious that a motor vehicle poses a greater danger of harm to a bicyclist than vice versa. Accordingly, while the duty of using reasonable care falls alike on a motorist and a bicyclist, due to the inherent differences in the two vehicles, more care is required from the motorist to fully discharge the duty than from the bicyclist. Simply stated, the physical advantages that the motor vehicle has over the bicycle make it more dangerous to the bicyclist than vice versa.

clear showing on the part of the employer that he exercised the diligence of a good father of a family in the selection and supervision of his employee.Under Article 2180 of the Civil Code, the obligation imposed by Article 2176 is demandable not only for ones own acts or omissions, but also for those persons for whom one is responsible. Employers shall be liable for the damages caused by their employees, but the employers responsibility shall cease upon proof that they observed all the diligence of a good father of the family in the selection and supervision of their employees. When an injury is caused by the negligence of an employee, a legal presumption instantly arises that the employer was negligent. This presumption may be rebutted only by a clear showing on the part of the employer that he exercised the diligence of a good father of a family in the selection and supervision of his employee. If the employer successfully overcomes the legal presumption of negligence, he is relieved of liability. In other words, the burden of proof is on the employer.

Same; Same; Same; Same; The civil liability of the employer for the negligent acts of his employee is also primary and direct, owing to his own negligence in selecting and supervising his employee.The trial courts finding that Completo failed to exercise reasonable care to avoid collision with Albayda at the intersection of 11th and 8th Streets of VAB gives rise to liability on the part of Completo, as driver, and his employer Abiad. The responsibility of two or more persons who are liable for quasi-delict is solidary. The civil liability of the employer for the negligent acts of his employee is also primary and direct, owing to his own negligence in selecting and supervising his employee. The civil liability of the employer attaches even if the employer is not inside the vehicle at the time of the collision.

Same; Same; Same; Vicarious Liability of Employers; When an injury is caused by the negligence of an employee, a legal presumption instantly arises that the employer was negligent, which presumption may be rebutted only by a

Same; Same; Same; Same; With respect to the supervision of employees, employers should formulate standard operating procedures, monitor their implementation, and impose disciplinary measures for breaches thereof.In the selection of prospective employees, employers are required to examine them as to their qualifications, experience, and service records. On the other hand, with

respect to the supervision of employees, employers should formulate standard operating procedures, monitor their implementation, and impose disciplinary measures for breaches thereof. To establish these factors in a trial involving the issue of vicarious liability, employers must submit concrete proof, including documentary evidence.

Damages; Temperate Damages; Temperate damages, more than nominal but less than compensatory damages, may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with certaintythe damages must be reasonable under the circumstances. While the amount of actual damages was not duly established with certainty, the Court recognizes the fact that, indeed, Albayda incurred a considerable amount for the necessary and reasonable medical expenses, loss of salary and wages, loss of capacity to earn increased wages, cost of occupational therapy, and harm from conditions caused by prolonged immobilization. Temperate damages, more than nominal but less than compensatory damages, may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with certainty. Temperate damages must be reasonable under the circumstances. Thus, the Court finds the award of One Hundred Thousand Pesos (P100,000.00) as temperate damages reasonable under the circumstances. [The Heirs of Redentor Completo vs. Albayda, Jr., 624 SCRA 97(2010)] Heirs of Completo v. Albayda, Jr. Tags: albayda, albayda jr, digest, heirs of completo, heirs of completo v. albayda jr, ncc 2176, ncc 2180, negligence, quasi-delict, torts Heirs of Redentor Completo, and Elpidio Abiad v. Sgt. Amando Albayda, Jr. 2010 / Nachura [Negilgence > Standard of conduct > Special circumstance] Facts Albayda is a Master Sergeant of the PH Air Force, and Completo was the taxi driver of a Toyota Corolla which was owned by Abiad. Albayda was riding a bike on his way to

the office, when Completo's taxi bumped and sideswept him, causing serious physical injuries. He [Albayda] was brought to the PH Air Force General Hospital, but he was transferred to the AFP Medical Center because he sustained a fracture and there was no orthopedic doctor available in the first hospital. He was confined from 27 Aug 1997 to 11 Feb 1998, and again in 23 Feb to 22 Mar 1998 [approx. 7 months]. Conciliation before the barangay failed, so Albayda filed a complaint for physical injuries through reckless imprudence against Completo before the Office of the City Prosecutor of Pasay. Completo filed a counter-charge of damage to property through reckless imprudence against Albayda. The Office of the City Prosecutor recommended the filing of an information for Albayda's complaint, and Completo's complaint [against Albayda] was dismissed. Albayda manifested his reservation to file a separate civil action for damages against Completo and Abiad. Albayda alleged that Completo's negligence is the proximate cause of the incident. He demanded the following damages and their respective amounts: Actual damages - 276,550; Moral damages - 600,000; Exemplary damages - 200,000; Attorney's fees - 25,000 + 1,000 per court appearance. On the other hand, Completo alleged that he was carefully driving the taxicab when he heard a strange sound from the taxicab's rear right side. He found Albayda lying on the road, holding his left leg, so he brought Albayda to PH Air Force General Hospital. Completo asserted that he was an experienced driver, and that he already reduced his speed to 20km even before reaching the intersection. In contrast, Albayda rode his bicycle at high speed, causing him to lose control of the bicycle. Completo said that Albayda had no cause of action. Several people testified for each side, but here are some notes on the testimony of the owner of the taxi driver, Abiad. Abiad said that aside from being a soldier, he also held franchises of taxicabs and passenger jeepneys, and being a taxicab operator, he would wake up early to personally check the taxicabs. When Completo applied as a taxicab driver, Abiad required him to show his bio-data, NBI clearance, and driver's license. Completo never figured in a vehicular accident since he was employed, and according to Abiad, he [Completo] was a good driver and good man. RTC rendered judgment in favor of Albayda, and the defendants are ordered to pay actual [46k] and moral [400k] damages, and attorney's fees [25k]. Upon appeal at the CA, the court affirmed RTC's decision with modifications [no more actual damages; awarded temperate damages [40k]; moral damages only 200k; Completo and Abiad are solidarily liable to pay Albayda; added legal interest]. Issues and Holding

1. 2. 3.

WON CA erred in finding that Completo was the one who caused the collision. NO WON Abiad failed to prove that he observed the diligence of a good father of the family. YES WON the award of moral and temperate damages and attorney's fees for Albayda had no basis. NO / NO / YES

Ratio On Negligence It is a rule in negligence suits that the plaintiff has the burden of proving by a preponderance of evidence the motorist's breach in his duty of care owed to the plaintiff , that the motorist was negligent in failing to exercise the diligence required to avoid injury to the plaintiff, and that such negligence was the proximate cause of the injury suffered. NCC 2176 quoted, and said that the question of the motorist's negligence is a question of fact. Usually, more will be required of a motorist [25mi/hr = 37ft/sec] than a bicyclist [10mi/hr = 15ft/sec] in discharging the duty of care because of the physical advantages the former has over the latter. It was proven by a preponderance of evidence that Completo failed to exercise reasonable diligence. He was overspeeding at the time he hit Albayda's bicycle; he did not slow down even when he approached the intersection Such negligence was the sole and proximate cause of the injuries sustained by Albayda

It was proven that Albayda had the right of way since he reached the intersection ahead of Completo

NCC 2180 cited - obligation imposed by NCC 2176 is demandable also for those persons for whom one is responsible. Employers are liable for damage caused by employees, but the responsibility ceases upon proof that employers observed the diligence of the good father of the family in the selection and supervision of employees. The burden of proof is on the employer. The responsibility of two or more persons who are liable for QD is solidary. The employer's civil liability for his employee's negligent acts is also primary and direct, owing to his own negligence in selecting and supervising them, and this liability attaches even if the employer is not in the vehicle at the time of collision. In the selection of employees, employers are required to examine them as to their qualifications, experience, and service records. With respect

to supervision, employers should formulate SOPs and monitor their implementation, and impose disciplinary measures for breaches. To establish these factors in a trial involving the issue of vicarious [secondary] liability, employers must submit concrete proof, including documentary evidence. ABIAD'S EVIDENCE CONSISTED ENTIRELY OF TESTIMONIAL EVIDENCE, AND THIS IS INSUFFICIENT TO OVERCOME THE LEGAL PRESUMPTION THAT HE WAS NEGLIGENT IN THE SELECTION AND SUPERVISION OF COMPLETO. On Damages CA rightfully deleted the award of actual damages because Albayda failed to present documentary evidence to establish the amount incurred. Temperate damages may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot be proved with certainty. Moral damages are awarded in QDs causing physical injuries, so the award is proper. The award of attorney's fees is deleted for failure to prove that petitioners acted in bad faith in refusing to satisfy respondent's just and valid claim.

Claparols, about 12 years of age, crossed the footbridge to the Isla del Provisor, for the purpose of visiting Murphy, an employee of the defendant, who and promised to make them a cylinder for a miniature engine After leaving the power house where they had asked for Mr. Murphy, they walked across the open space in the neighborhood of the place where the company dumped in the cinders and ashes from its furnaces

David held the cap while Manuel applied a lighted match to the contents

An explosion followed, causing more or less serious injuries to all three

they found some twenty or thirty brass fulminating caps scattered on the ground

These caps are approximately of the size and appearance of small pistol cartridges and each has attached to it 2 long thin wires by means of which it may be discharged by the use of electricity They are intended for use in the explosion of blasting charges of dynamite, and have in themselves a considerable explosive power

Jessie, who when the boys proposed putting a match to the contents of the cap, became frightened and started to run away, received a slight cut in the neck Manuel had his hand burned and wounded David was struck in the face by several particles of the metal capsule, one of which injured his right eye to such an extent as to the necessitate its removal by the surgeons

[No. 4977, March 22, 1910.] DAVID TAYLOR, plaintiff and appellee, vs. THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant and appellant.

the boys picked up all they could find, hung them on stick, of which each took end, and carried them home

LlABILITY FOR DAMAGES; CONTRIBUTORY NEGLIGENCE. When the immediate cause of an accident resulting in an injury is the plaintiff's own act, which contributed to the principal occurrence as one of its determining factors, he can not recover damages forthe injury. [Taylor vs. Manila Electric Railroad and Light Co., 16 Phil. 8(1910)] G.R. No. L-4977 March 22, 1910 Lessons Elements of quasi-delict (Torts and Good Father of a Family (Torts and Damages) FACTS:

After crossing the footbridge, they met Jessie Adrian, less than 9 years old, and they went to Manuel's home

The boys then made a series of experiments with the caps

o o o

trust the ends of the wires into an electric light socket - no result break the cap with a stone - failed opened one of the caps with a knife, and finding that it was filled with a yellowish substance they got matches

Applicable: Damages)

ISSUE:

Trial Court: held Manila Electric Railroad And Light Company liable

September 30, 1905 Sunday afternoon: David Taylor, 15 years of age, the son of a mechanical engineer, more mature than the average boy of his age, and having considerable aptitude and training in mechanics with a boy named Manuel

1. W/N the elemnents of quasi-delict to make Manila

Electric Railroad And Light Company liable - NO 2. W/N Manila Electric Railroad and Light Co. sufficiently proved that they employed all the diligence of a good father of a family to avoid the damage - NO

HELD: reversing the judgment of the court below ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit acts and omissions or by those in which any kind of fault or negligence occurs. ART. 1902 A person who by an act or omission causes damage to another when there is fault or negligence shall be obliged to repair the damage so done. ART. 1903 The obligation imposed by the preceding article is demandable, not only for personal acts and omissions, but also for those of the persons for whom they should be responsible. The father, and on his death or incapacity the mother, is liable for the damages caused by the minors who live with them. xxx xxx xxx Owners or directors of an establishment or enterprise are equally liable for damages caused by their employees in the service of the branches in which the latter may be employed or on account of their duties. xxx xxx xxx The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all the diligence of a good father of a family to avoid the damage. ART. 1908 The owners shall also be liable for the damage caused 1 By the explosion of machines which may not have been cared for with due diligence, and for kindling of explosive substances which may not have been placed in a safe and proper place.

while we hold that the entry upon the property without express invitation or permission would not have relieved Manila Electric from responsibility for injuries incurred, without other fault on his part, if such injury were attributable to his negligence, the negligence in leaving the caps exposed on its premises was not the proximate cause of the injury received

cutting open the detonating cap and putting match to its contents was the proximate cause of the explosion and of the resultant injuries inflicted

The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to understand and appreciate the nature and consequences of his own acts, so as to make it negligence on his part to fail to exercise due care and precaution in the commission of such acts; and indeed it would be impracticable and perhaps impossible so to do, for in the very nature of things the question of negligence necessarily depends on the ability of the minor to understand the character of his own acts and their consequences he was sui juris in the sense that his age and his experience qualified him to understand and appreciate the necessity for the exercise of that degree of caution which would have avoided the injury which resulted from his own deliberate act; and that the injury incurred by him must be held to have been the direct and immediate result of his own willful and reckless act, so that while it may be true that these injuries would not have been incurred but for the negligence act of the defendant in leaving the caps exposed on its premises, nevertheless plaintiff's own act was the proximate and principal cause of the accident which inflicted the injury rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur sentire

Manila Electric is not civilly responsible for the injuries thus incurred

2 years before the accident, David spent 4 months at sea, as a cabin boy on one of the interisland transports. Later he took up work in his father's office, learning mechanical drawing and mechanical engineering. About a month after his accident he obtained employment as a mechanical draftsman and continued in that employment for 6 months at a salary of P2.50 a day; and it appears that he was a boy of more than average intelligence, taller and more mature both mentally and physically than most boys of 15

The series of experiments made by him in his attempt to produce an explosion, as described by Jessie who even ran away

just thing is that a man should suffer the damage which comes to him through his own fault, and that he can not demand reparation therefor from another

1. 2.

in order to establish his right to a recovery, must establish by competent evidence: Damages to the plaintiff Negligence by act or omission of which defendant personally, or some person for whose acts it must respond, was guilty. The connection of cause and effect between the negligence and the damage.

3.

True, he may not have known and probably did not know the precise nature of the explosion which might be expected from the ignition of the contents of the cap, and of course he did not anticipate the resultant injuries which he incurred; but he well knew that a more or less dangerous explosion might be expected from his act, and yet he willfully, recklessly, and knowingly produced the explosion. It would be going far to say that "according to his maturity and capacity" he exercised such and "care and caution" as might reasonably be required of him, or that defendant or anyone else should be held civilly responsible for injuries incurred by him under such circumstances.

Negligence is not presumed, but must be proven by him who alleges it.

G.R. No. 169467.February 25, 2010.* ALFREDO P. PACIS and CLEOPATRA D. PACIS, petitioners, vs. JEROME JOVANNE MORALES, respondent.

Quasi-Delicts; Torts and Damages; Under Article 1161 of the Civil Code, an injured party may enforce his claim for damages based on the civil liability arising from the crime under Article 100 of the Revised Penal Code or he may opt to file an independent civil action for damages under the Civil Code; Unlike the subsidiary liability of the employer under Article 103 of the Revised Penal Code, the liability of the employer, or any person for that matter, under Article 2176 of the Civil Code is primary and direct, based on a persons own negligence.This case for damages arose out of the accidental shooting of petitioners son. Under Article 1161 of the Civil Code, petitioners may enforce their claim for damages based on the civil liability arising from the crime under Article 100 of the Revised Penal Code or they may opt to file an independent civil action for damages under the Civil Code. In this case, instead of enforcing their claim for damages in the homicide case filed against Matibag, petitioners opted to file an independent civil action for damages against respondent whom they alleged was Matibags employer. Petitioners based their claim for damages under Articles 2176 and 2180 of the Civil Code. Unlike the subsidiary liability of the employer under Article 103 of the Revised Penal Code, the liability of the employer, or any person for that matter, under Article 2176 of the Civil Code is primary and direct, based on a persons own negligence. Article 2176 states: 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 quasi-delict and is governed by the provisions of this Chapter.

little or no risk, a business dealing with dangerous weapons requires the exercise of a higher degree of care.

Petitioners are the parents of Alfred Pacis, a 17-year old student who died in a shooting incident inside the Top Gun Firearms and Ammunitions Store in Baguio City. Morales is the owner of the gun store. On the fateful day, Alfred was in the gun store, with Matibag and Herbolario as sales agents and caretakers of the store while owner Morales was in Manila. The gun which killed Alfred is a gun owned by a store customer which was left with Morales for repairs, which he placed inside a drawer. Since Morales would be going to Manila, he left the keys to the store with the caretakers. It appears that the caretakers took the gun from the drawer and placed it on top of a table. Attracted by the sight of the gun, the young Alfred got hold of the same. Matibag asked Alfred to return the gun. The latter followed and handed the gun to Matibag. It went off, the bullet hitting the young Alfred in the head. A criminal case for homicide was filed against Matibag. Matibag, however, was acquitted of the charge against him because of the exempting circumstance of accident under Art. 12, par. 4 of the RPC. By agreement of the parties, the evidence adduced in the criminal case for homicide against Matibag was reproduced and adopted by them as part of their evidence in the instant case. The trial court rendered its decision in favor of petitioners, ordering the defendant to pay plaintiffs indemnity for the death of Alfred, actual damages for the hospitalization and burial, expenses incurred by the plaintiffs, compensatory damages, MD and AF. Respondent appealed to the CA, which reversed the trial courts Decision and absolved respondent from civil liability under Article 2180 of the Civil Code. MR denied, hence this petition. ISSUE: Was Morales negligent? HELD: Petition granted. The CA decision is set aside and the trial courts Decision reinstated. YES This case for damages arose out of the accidental shooting of petitioners son. Under Article 1161 of the Civil Code, petitioners may enforce their claim for damages based on the civil liability arising from the crime under Article 100 of

Same; Same; A higher degree of care is required of someone who has in his possession or under his control an instrumentality extremely dangerous in character, such as dangerous weapons or substances.A higher degree of care is required of someone who has in his possession or under his control an instrumentality extremely dangerous in character, such as dangerous weapons or substances. Such person in possession or control of dangerous instrumentalities has the duty to take exceptional precautions to prevent any injury being done thereby. Unlike the ordinary affairs of life or business which involve

Same; Same; Gun Stores; A gun store owner is presumed to be knowledgeable about firearms safety and should have known never to keep a loaded weapon in his store to avoid unreasonable risk of harm or injury to others.As a gun store owner, respondent is presumed to be knowledgeable about firearms safety and should have known never to keep a loaded weapon in his store to avoid unreasonable risk of harm or injury to others. Respondent has the duty to ensure that all the guns in his store are not loaded. Firearms should be stored unloaded and separate from ammunition when the firearms are not needed for ready-access defensive use. With more reason, guns accepted by the store for repair should not be loaded precisely because they are defective and may cause an accidental discharge such as what happened in this case. Respondent was clearly negligent when he accepted the gun for repair and placed it inside the drawer without ensuring first that it was not loaded. In the first place, the defective gun should have been stored in a vault. Before accepting the defective gun for repair, respondent should have made sure that it was not loaded to prevent any untoward accident. Indeed, respondent should never accept a firearm from another person, until the cylinder or action is open and he has personally checked that the weapon is completely unloaded. For failing to insure that the gun was not loaded, respondent himself was negligent. Furthermore, it was not shown in this case whether respondent had a License to Repair which authorizes him to repair defective firearms to restore its original composition or enhance or upgrade firearms. [Pacis vs. Morales, 613 SCRA 507(2010)]\ PACIS VS. MORALES Leave a comment VS. MORALES 169467

SPOUSES PACIS G.R. No. February 25, 2010

FACTS: petitioners filed with the trial court a civil case for damages against respondent Morales.

the RPC or they may opt to file an independent civil action for damages under the Civil Code. In this case, instead of enforcing their claim for damages in the homicide case filed against Matibag, petitioners opted to file an independent civil action for damages against respondent whom they alleged was Matibags employer. Petitioners based their claim for damages under Articles 2176 and 2180 of the Civil Code. ** Unlike the subsidiary liability of the employer under Article 103 of the RPC, the liability of the employer, or any person for that matter, under Article 2176 of the Civil Code is primary and direct, based on a persons own negligence. Article 2176 states: 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 quasi-delict and is governed by the provisions of this Chapter. This case involves the accidental discharge of a firearm inside a gun store. Under PNP Circular No. 9, entitled the Policy on Firearms and Ammunition Dealership/Repair, a person who is in the business of purchasing and selling of firearms and ammunition must maintain basic security and safety requirements of a gun dealer, otherwise his License to Operate Dealership will be suspended or canceled. Indeed, a higher degree of care is required of someone who has in his possession or under his control an instrumentality extremely dangerous in character, such as dangerous weapons or substances. Such person in possession or control of dangerous instrumentalities has the duty to take exceptional precautions to prevent any injury being done thereby. Unlike the ordinary affairs of life or business which involve little or no risk, a business dealing with dangerous weapons requires the exercise of a higher degree of care. As a gun store owner, respondent is presumed to be knowledgeable about firearms safety and should have known never to keep a loaded weapon in his store to avoid unreasonable risk of harm or injury to others. Respondent has the duty to ensure that all the guns in his store are not loaded. Firearms should be stored unloaded and separate from ammunition when the firearms are not needed for ready-access defensive use. With more reason, guns accepted by the store for repair should not be loaded precisely because they are defective and may cause an

accidental discharge such as what happened in this case. Respondent was clearly negligent when he accepted the gun for repair and placed it inside the drawer without ensuring first that it was not loaded. In the first place, the defective gun should have been stored in a vault. Before accepting the defective gun for repair, respondent should have made sure that it was not loaded to prevent any untoward accident. Indeed, respondent should never accept a firearm from another person, until the cylinder or action is open and he has personally checked that the weapon is completely unloaded. For failing to insure that the gun was not loaded, respondent himself was negligent. Furthermore, it was not shown in this case whether respondent had a License to Repair which authorizes him to repair defective firearms to restore its original composition or enhance or upgrade firearms. Clearly, respondent did not exercise the degree of care and diligence required of a good father of a family, much less the degree of care required of someone dealing with dangerous weapons, as would exempt him from liability in this case.

[1952]). Same; Same; Same; Accident, Explained.An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant. It is a fortuitous circumstance, event or happening; an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual or unexpected by the person to whom it happens.

Same; Same; Same; Negligence, Explained.Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. Negligence is the failure to observe, for the protection of the interest of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury.

G.R. No. 129792. December 21, 1999.* JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA PANELO, petitioners, vs. HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and CRISELDA R. AGUILAR, respondents.

Same; Same; Same; Accident and negligence are intrinsically contradictoryone cannot exist with the other. Accident and negligence are intrinsically contradictory; one cannot exist with the other. Accident occurs when the person concerned is exercising ordinary care, which is not caused by fault of any person and which could not have been prevented by any means suggested by common prudence.

Torts; Quasi-Delicts; Words and Phrases; Doctrine of Attractive Nuisance, Explained.One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises. The principal reason for the doctrine is that the condition or appliance in question although its danger is apparent to those of age, is so enticing or alluring to children of tender years as to induce them to approach, get on or use it, and this attractiveness is an implied invitation to such children. (Hidalgo Enterprises, Inc. v. Balandan, et al., 91 Phil. 488, 490

Same; Same; Test in Determining Existence of Negligence. The test in determining the existence of negligence is enunciated in the landmark case of Picart v. Smith, thus: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. Same; Same; Evidence; Hearsay Rule; Res Gestae; Witnesses; It is axiomatic that matters relating to declarations of pain or suffering and statements made to a physician are generally considered declarations and admissions.It is axiomatic that matters relating to declarations of pain or suffering and statements made to a physician are generally considered declarations and admissions. All that is required for their admissibility

as part of the res gestae is that they be made or uttered under the influence of a startling event before the declarant had the time to think and concoct a falsehood as witnessed by the person who testified in court. Under the circumstances thus described, it is unthinkable for ZHIENETH, a child of such tender age and in extreme pain, to have lied to a doctor whom she trusted with her life. We therefore accord credence to Gonzales testimony on the matter, i.e., ZHIENETH performed no act that facilitated her tragic death. Sadly, petitioners did, through their negligence or omission to secure or make stable the counters base.

quasi-delict and required discernment as a condition of liability, either criminal or civil, a child under nine years of age is, by analogy, conclusively presumed to be incapable of negligence; and that the presumption of lack of discernment or incapacity for negligence in the case of a child over nine but under fifteen years of age is a rebuttable one, under our law. The rule, therefore, is that a child under nine years of age must be conclusively presumed incapable of contributory negligence as a matter of law. [Jarco Marketing Corporation vs. Court of Appeals, 321 SCRA 375(1999)] Jarco Marketing v. CA

they sought the dismissal of the complaint and an award of moral and exemplary damages, as well as attorney's fees. Criselda was negligent in exercising care and diligence over her daughter by allowing her to freely roam around in a store with glassware and appliances Zhieneth was guilty of contributory negligence for climbing the counter, thereby triggering its collapse

Counter was made of sturdy wood with strong support, and it has never fell nor collapsed for the past 15 years since its construction Jarco Marketing maintained that it observed due diligence of a good father of the family Other petitioners raised due care and diligence in the performance of its duties

Witnesses; It is settled that when the issue concerns the credibility of witnesses, the appellate courts will not as a general rule disturb the findings of the trial court, which is in a better position to determine the same.It is settled that when the issue concerns the credibility of witnesses, the appellate courts will not as a general rule disturb the findings of the trial court, which is in a better position to determine the same. The trial court has the distinct advantage of actually hearing the testimony of and observing the deportment of the witnesses. However, the rule admits of exceptions such as when its evaluation was reached arbitrarily or it overlooked or failed to appreciate some facts or circumstances of weight and substance which could affect the result of the case. In the instant case, petitioners failed to bring their claim within the exception.

Tags: ca, children, digest, jarco marketing, jarco marketing v. ca, negligence, parent, torts Jarco Marketing, Leonardo Kong, Jose Tiope, Elisa Panelo v. CA, Sps. Conrado and Criselda Aguilar 1999 / Davide, Jr. [Negligence > Standard of conduct > Children] Facts Jarco Marketing owns Syvel's Department Store; Kong, Tiope, and Panelo are store managers; Sps. Aguilar are the parents of daughter Zhieneth. Criselda and Zhieneth Aguilar (6 years old) were at the 2nd floor of Syvel's Department Store. Criselda was signing her credit card slip when she felt a sudden gust of wind and heard a loud thud. When she looked behind her, she saw her daughter pinned by the bulk of the store's gift wrapping counter. She asked the assistance of the people around her, and she was immediately rushed to Makati Medical Center where she was operated. The next day, she lost her speech. She died 14 days after the accident. The cause of her death was attributed to the injuries sustained. After her burial, Sps. Aguilar demanded the reimbursement of hospitalization, medical bills, and wake and funeral expenses from the petitioners, but they refused to pay. Sps. Aguilar filed a complaint for damages, seeking the payment of actual [157k~] and moral [300k] damages, attorney's fees [20k], and for loss of income and exemplary damages. The petitioners denied any liability for Zhieneth's injuries and death. They also said the complaint was malicious, so

RTC found that the preponderance of evidence favored the store, et al, saying that the proximate cause was Zhieneth's act of clinging to the counter, and that Criselda's negligence contributed to the accident. The RTC found that the counter was not an attractive nuisance [something that would attract children to approach, get on or use it], since the counter was situated at the end or corner of the 2nd floor. Here are the assertions of Sps. Aguilar: Zhieneth should be entitled to the conclusive presumption that a child below 9 is incapable of contributory negligence. Even if she is capable of contributory negligence, it was physically impossible for her to have propped herself on the counter considering her small frame, and height and weight of the counter.

Torts; Quasi-Delicts; Children; Presumptions; Children below nine (9) years old are conclusively presumed incapable of contributory negligence.Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption that favors children below nine (9) years old in that they are incapable of contributory negligence. In his book, former Judge Cezar S. Sangco stated: In our jurisdiction, a person under nine years of age is conclusively presumed to have acted without discernment, and is, on that account, exempt from criminal liability. The same presumption and a like exemption from criminal liability obtains in a case of a person over nine and under fifteen years of age, unless it is shown that he has acted with discernment. Since negligence may be a felony and a

The fact that a former employee of the store, Gonzales, accompanied Zhieneth to the hospital belied the theory that Zhieneth climbed the counter. This employee Gonzales said that when Zhieneth was asked by the doctor what she did, she said "Nothing, I did not come near the counter and the counter just fell on me." This should be accorded credit according to the spouses.

Negligence could not be imputed to Criselda since it was reasonable for her to let go of Zhieneth at that moment that she was signing the credit card slip. The proximate cause was petitioner's negligence in failing to institute measures to have the counter permanently nailed.

negligence was the proximate cause of the injury sustained. They also assailed the testimony of Gonzales who was already separated from the store (tarnished by illfeelings and all). Issues and Holding 1. WON Zhieneth's death was accidental or attributable to negligence. ATTRIBUTABLE TO NEGLIGENCE 2. WON negligence was attributable to petitioners [for maintaining a defective counter] or to Sps. Aguilar [for failing to exercise due and reasonable care while inside the store]. FAULT OF PETITIONERS Ratio Accident v. Negligence - they are intrinsically contradictory ACCIDENT pertains to an unforeseen event in which no fault or negligence attaches to defendant (or if it happens wholly or partly through human agency, it is an event which under the circumstances is unusual or unexpected by the person to whom it happens); there is exercise of ordinary care here NEGLIGENCE is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do

immediately subsequent to the startling occurrence. It is axiomatic that matters relating to declarations of pain or suffering and statements made to a physician are generally considered declarations and admissions. Also, the court considered the fact that Zhieneth was of a tender age (and in so much pain!), so it would be unthinkable that she would lie. Other findings: Petitioners were informed of the danger posed by the unstable counter, yet they did not act on the matter, so they failed to discharge the due diligence required of a good father of a family. They failed to establish that the testimonies of former employees were biased.

In response, here is what the petitioners have to say: Zhieneth's death was an ACCIDENT.

Nailing the counter to the ground was not necessary because it has been there for the longest time without any prior accident and it's just in a corner. The criminal case for homicide through simple negligence filed against them was dismissed, and they were acquitted.

Conclusive presumption that children below 9 are incapable of contributory negligence is applied.

o
Judge Sangco [book author] says that children below 9 is conclusively presumed to have acted without discernment, and are exempt from criminal liability. Since negligence may be a felony and a QD, it required discernment as a condition of liability, so therefore, said children are presumed to be incapable of negligence. Even if contributory negligence would be attributed to Zhieneth, no injury should have occurred if petitioners' theory that the counter is stable and sturdy is to be believed.

The CA reversed RTC, ruling in favor of Sps. Aguilar. Petitioners were negligent in maintaining a structurally dangerous counter [it's shaped like an inverted L; the top is wider than the base; weight of the upper portion not evenly distributed nor supported by the narrow base]. Two former employees brought this to the attention of the management but the latter ignored their concern. CA said the incident could have been avoided had petitioners repaired this defective counter. The contention that it has been there for a long time without a prior incident is immaterial. Zhieneth was incapable of negligence or other tort.

o
Alternatively, it is the failure to observe, for the protection of another person's interest, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury

Criselda was absolved of any negligence. Testimony of Gonzales (former employee) given credit Awarded actual damages, compensatory damages [denied award of funeral expenses for lack of proof to substantiate it]

Criselda is absolved from any contributory negligence, since it was reasonable for her to let go of her child to sign a slip. Zhieneth was just a foot away from her mother, and the counter was just four meters away from Criselda (contrary to statements that Zhieneth was loitering at that time).

Picart v. Smith lays down the test to determine WON negligence exists: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinary prudent person would have used in the same situation? If not, he is guilty of negligence. SC found that Zhieneth performed no act that facilitated her death. Basis is her statement to the doctor as related by former employee Gonzales. It was made part of the res gestae since she made the statement

CA denied petitioners' MfR, so they are now seeking the reversal of said decision, saying that since the action is based on tort, any finding of negligence on the part of Sps. Aguilar would negate their claim for damages, where said

No. L-33722. July 29,1988.*

FEDERICO YLARDE and ADELAIDA DORONIO, petitioners, vs. EDGARDO AQUINO, MAURO SORIANO and COURT OF APPEALS, respondents.

FACTS: Private respondent Mariano Soriano was the principal of the Gabaldon Primary School in Pangasinan. Defendant Edgardo Aquino was a teacher therein. During that time, the school had several concrete blocks which were remnants of the old school shop destroyed in World War II. Defendant decided to help clear the area so he gathered 18 of his male students and ordered them to dig beside a one ton concrete block in making a hole where the stone can be buried. It was left unfinished so the following day he called 4 of the 18 students including the Novelito Ylarde to complete the excavation. Defendant left the children to level the loose soil while he went to see Banez for the key to the school workroom where he can get some rope. It was alleged that before leaving, he told the children not to touch the stone. After he left, the children playfully jumped into the pit when suddenly the concrete block slide down. Unfortunately, Novelito Ylarde was pinned to the wall causing serious physical injuries which as a consequence led to his death, 3 days thereafter. The parents of the victim, herein petitioners, filed a suit for damages against both Aquino and Soriano. ISSUE: WON both Soriano and Aquino can be held liable for damages. HELD:

given is not sufficient to cast away all serious danger that the concrete block adjacent to the excavation would present to the children. He is therefore ordered to pay damages to the petitioners.

Torts and Damages; Schools and Colleges; Liability of teachers for torts committed by their students.It is only the teachers and not the principal or head of an academic school who should be answerable for torts committed by their students. In a school of arts and trades, it is only the head of the school who can be held liable. Under Section 2180 of the Civil Code, the teacher-in-charge of school children should be held liable for negligence in his supervision over them and his failure to take the necessary precautions to prevent any injury on their persons.

CULION ICE, FISH AND ELECTRIC CO V PHILIPPINE MOTORS CORPORATION [citation] STREET; November 3, 1930

NATURE Appeal from decision of the CFI

Same; Same; Teacher's responsibility.A teacher who stands in loco parentis to his pupils should make sure that the children are protected from all harm in his company.

FACTS - Cranston was the representative of the plaintiff in Manila and plaintiff was the registered owner of the motor schooner Gwendoline. - Cranston decided to have the engine on the Gwendoline changed from a gasoline consumer to a crude oil burner. He had a conference with Quest, Phil. Motors manager, who agreed to do the job, with the understanding that payment should be made upon completion of the work. - The work was begun and conducted under the supervision of Quest, chiefly by a mechanic whom Quest took with him to the boat. Quest had the assistance of the members of the crew of the Gwendoline, who had been directed by Cranston to place themselves under Quest's directions. - Upon preliminary inspection of the engine, Quest concluded that a new carburetor was needed and thus installed a Zenith carburetor. The engine was tried with gasoline and the result was satisfactory. The next problem was to introduce into the carburetor the baser fuel, consisting of a low grade of oil mixed with distillate. A temporary tank to contain the mixture was placed on deck above and at a short distance from the compartment covering the engine. This tank was connected with the

Same; Same; Same; Work Education.Excavation should not be placed in the category of school gardening, planting trees, and the like as these undertakings do not expose the children to any risk that can result in death or physical injuries.

Same; Same; Same; Existence of reckless imprudence, determination.In determining whether or not reckless imprudence exists, the degree of care required to be exercised must vary with the capacity of the person endangered to care for himself. A minor should not be held to the same degree of care as an adult, but his conduct should be judged according to the average conduct of persons of his age and experience. [Ylarde vs. Aquino, 163 SCRA 697(1988)] Ylarde vs Aquino Ylarde vs. Aquino GR No. L33722, July 29, 1988

As held in Amadora vs CA, it is only the teacher and not the head of an academic school who should be answerable for torts committed by their students. Where the school is academic rather than technical or vocational in nature, responsibility for the tort committed by the student will attach to the teacher in charge of such student, this is the general rule. However, in casea of establishments of arts and trades, it is the head thereof, and only he, who shall be held liable as an exception to the general rule. In other words, teachers in general shall be liable for the acts of their students except where the school is technical in nature, in which case it is the head thereof who shall be answerable. Hence, Soriano as principal cannot be held liable for the reason that the school he heads is an academic school and he did not give any instruction regarding the digging. A teacher who stands in loco parentis to his tudents should make sure that the children are protected from all harm. The excavation instructed clearly exposed the students to risk and should not be placed under the category of Work Education such as school gardening, planting trees etc. Aquino acted with fault and gross negligence where instead of availing himself of adult manual laborers he instead utilized his students. Furthermore, the warning

carburetor by a piece of tubing, which was apparently not well fitted at the point where it was connected with the tank. The fuel mixture leaked from the tank and dripped sown into the engine compartment. The new fuel line and that already in use between the gasoline tank and carburetor were so fixed that it was possible to change from the gasoline fuel to the mixed fuel. This arrangement enables the operator to start the engine on gasoline and then, after the engine had been operating for a few moments, to switch to the new fuel supply. - It was observed that the carburetor was flooding, and that the gasoline, or other fuel, was trickling freely from the lower part to the carburetor to the floor. This fact was called to Quest's attention, but he said that, when the engine had gotten to running well, the flooding would disappear. - The boat was taken out into the bay for a trial run. The engine stopped a few times during the first part of the course, owing to the use of an improper mixture of fuel. In the course of the trial, Quest remained outside of the engine compartment and occupied himself with making distillate, with a view to ascertaining what proportion of the two elements would give best results in the engine. - As the boat was coming in from this run, the engine stopped, and connection again had to be made with the gasoline line to get a new start. After this had been done the mechanic, or engineer, switched to the tube connecting with the new mixture. A moment later a back fire occurred in the cylinder chamber. This caused a flame to shoot back into the carburetor, and instantly the carburetor and adjacent parts were covered with a mass of flames, which the members of the crew were unable to subdue. The salvage from, the wreck, when sold, brought only the sum of P150. The value of the boat, before the accident occured, as the court found, was P10,000. - CFI gave judgment in favor of the plaintiff to recover of the defendant the sum of P9,850, with interest at 6 per centum per annum from the date of the filing of the complaint, until satisfaction of the judgment, with costs.

WON the loss of the boat is chargeable to the negligence and lack of skill of Quest

lack of skill. The test of liability is not whether the injury was accidental in a sense, but whether Quest was free from blame. - The trial judge seems to have proceeded on the idea that, inasmuch as Quest had control of the Gwendoline during the experimental run, the defendant corporation was in the position of a bailee and that, as a consequence, the burden of proof was on the defendant to exculpate itself from responsibility by proving that the accident was not due to the fault of Quest. As a rule workmen who make repairs on a ship in its owner's yard, or a mechanic who repairs a coach without taking it to his shop, are not bailees, and their rights and liabilities are determined by the general rules of law, under their contract. The true bailee acquires possession and what is usually spoken of as special property in the chattel bailed. As a consequence of such possession and special property, the bailee is given a lien for his compensation. These ideas seem to be incompatible with the situation now under consideration. - This action was instituted about two years after the accident had occured, and after Quest had ceased to be manager and had gone back to the US. Upon these facts, the defendant bases the contention that the action should be considered stale. It is sufficient reply to say that the action was brought within the period limited by the statute of limitations and the situation is not one where the defense of laches can be properly invoked. DISPOSITION Judgment appealed from affirmed.

HELD YES Ratio When a person holds himself out as being competent to do things requiring professional skill, he will be held liable for negligence if he fails to exhibit the care and skill of one ordinarily skilled in the particular work which he attempts to do. Reasoning - The temporary tank in which the mixture was prepared was apparently at too great an elevation from the carburetor, so that when the fuel line was opened, the hydrostatic pressure in the carburetor was greater than the delicate parts of the carburetor could sustain. This was the cause of the flooding of the carburetor; and the result was that; when the back fire occurred, the external parts of the carburetor, already saturated with gasoline, burst into flames, whence the fire was quickly communicated to the highly inflammable material near-by. The leak along the pipe line and the flooding of the carburetor had created a dangerous situation, which a prudent mechanic, versed in repairs of this nature, would have taken precautions to avoid. The back fire may have been due either to the fact that the spark was too advanced or the fuel improperly mixed. - Proof shows that Quest had had ample experience in fixing the engines of automobiles and tractors, but it does not appear that he was experienced in the doing of similar work on boats. Possibly the dripping of the mixture form the tank on deck and the flooding of the carburetor did not convey to his mind an adequate impression of the danger of fire. Quest did not use the skill that would have been exhibited by one ordinarily expert in repairing gasoline engines on boats. There was here, on the part of Quest, a blameworthy antecedent inadvertence to possible harm, and this constitutes negligence. The burning of the Gwendoline may be said to have resulted from accident, but this accident was in no sense an unavoidable accident. It would not have occured but for Quest's carelessness or

UNITED STATES V PINEDA 37 Phil 456 MALCOLM; January 22, 1918

NATURE Appeal requiring a construction and an application, for the first time, of the penal provisions of the Pharmacy Law.

ISSUE

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FACTS - Santiago Pineda is a registered pharmacist of long standing and the owner of a drug store located at Calle Santo Cristo, Manila. Feliciano Santos, having some sick horses, presented a copy of a prescription obtained from Dr. Richardson, and which on other occasions Santos had given to his horses with good results, at Pineda's drug store for filling. The prescription read: "clorato de potasa 120 gramos - en seis papelitos de 20 gramos, para caballo." Under the supervision of Pineda, the prescription was prepared and returned to Santos in the form of six papers marked, "Botica Pineda - Clorato potasa - 120.00 en seis papeles - Para caballo- Sto. Cristo , Binondo, Manila." Santos, under the belief that he had purchased the potassium chlorate which he had asked for, put two of the packages in water and gave the doses to two of his sick horses. Another package was mixed with water for another horse, but was not used. The two horses, to which had been given the preparation, died shortly afterwards. Santos, thereupon, took the three remaining packages to the Bureau of Science for examination. Drs. Pea and Darjuan, of the Bureau of Science, found that the packages contained not potassium chlorate but barium chlorate. At the instance of Santos, the two chemists also went to the drug store of the defendant and bought potassium chlorate, which when analyzed was found to be barium chlorate. (Barium chlorate, it should be noted, is a poison; potassium chlorate is not.) Dr. Buencamino, a veterinarian, performed an autopsy on the horses, and found that death was the result of poisoning.

HELD 1. NO Ratio On the trial of a criminal case where the question relates to the tendency of certain testimony to throw light upon a particular fact, or to explain the conduct of a particular person, there is a certain discretion on the part of the trial judge which a court of errors will not interfere with, unless it manifestly appear that the testimony has no legitimate bearing upon the question at issue, and is calculated to prejudice the accused. Reasoning - What appellant is relying on is the maxim res inter alios acta. As a general rule, the evidence of other offenses committed by a defendant is inadmissible. But appellant has confused this maxim and this rule with certain exceptions thereto. The effort is not to convict the accused of a second offense. Nor is there an attempt to draw the mind away from the point at issue and thus to prejudice defendant's case. The purpose is to ascertain defendant's knowledge and intent, and to fix his negligence. If the defendant has on more than one occasion performed similar acts, accident in good faith is possibly excluded, negligence is intensified and fraudulent intent may even be established. It has been said that there is no better evidence of negligence than the frequency of accidents. 2. NO Reasoning The proof demonstrates the contrary. 3. NO Ratio In view of the tremendous and imminent danger to the public from the careless sale of poisons and medicines, we do not deem it too rigid a rule to hold that the law penalizes any druggist who shall sell one drug for another whether it be through negligence or mistake. Reasoning - The care required must be commensurate with the danger involved, and the skill employed must correspond with the superior knowledge of the business which the law

demands. - Turning to the law, certain points therein as bearing on our present facts must be admitted. Thus, defendant is a pharmacist. As a pharmacist, he is made responsible for the quality of all drugs and poisons which he sells. And finally it is provided that it shall be unlawful for him to sell any drug or poison under any "fraudulent name." It is the word "fraudulent" which has given the court trouble. What did the Legislature intend to convey by this restrictive adjective? - Were we to adhere to the technical definition of fraud it would be difficult, if not impossible, to convict any druggist of a violation of the law. The prosecution would have to prove to a reasonable degree of certainty that the druggist made a material representation; that it was false; that when he made it he knew that it was false or made it recklessly without any knowledge of its truth and as a positive assertion; that he made it with the intention that it should be acted upon by the purchaser; that the purchaser acted in reliance upon it, and that the purchaser suffered injury. Such a construction with a literal following of wellknown principles on the subject of fraud would strip the law of at least much of its force. It would leave the innocent purchaser of drugs, who must blindly trust in the good faith and vigilance of the pharmacist, at the mercy of any unscrupulous vendor. We should not, therefore, without good reason so devitalize the law. - The rule of caveat emptor cannot apply to the purchase and sale of drugs. The vendor and the vendee do not stand at arms length as in ordinary transactions. An imperative duty is on the druggist to take precautions to prevent death or serious injury to anyone who relies on his absolute honesty and peculiar learning. The nature of drugs is such that examination would not avail the purchaser any thing. It would be idle mockery for the customer to make an examination of a compound of which he can know nothing. Consequently, it must be that the druggist warrants that he will deliver the drug called for. - Remembering particularly the care and skill which are expected of druggists, that in some jurisdictions they are liable even for their mistake and in others have the burden placed upon them to establish that they were not negligent, it cannot be that the Philippine Legislature intended to use the word "fraudulent" in all its strictness. A

ISSUES 1. WON the lower court erred in admitting the testimony of the chemist Pea and Darjuan as to their purchase of potassium chlorate at the drug store of the accused, which proved to be barium chlorate 2. WON the lower court erred in finding that the substance sold by the accused to Feliciano Santos was barium chlorate and not potassium chlorate 3. WON the lower court erred in finding that the accused has been proved guilty beyond a reasonable doubt of an infraction of the Pharmacy Law, Act No. 597, section 17, as amended

11

plea of accident and mistake cannot excuse for they cannot take place unless there be wanton and criminal carelessness and neglect. How the misfortune occurs is unimportant, if under all the circumstances the fact of occurrence is attributable to the druggist as a legal fault. Rather considering the responsibility for the quality of drugs which the law imposes on druggists and the position of the word "fraudulent" in juxtaposition to "name," what is made unlawful is the giving of a false name to the drug asked for. This view is borne out by the Spanish translation, which we are permitted to consult to explain the English text. In the Spanish "supuesto" is used, and this word is certainly not synonymous with "fraudulent." The usual badges of fraud, falsity, deception, and injury must be present - but not scienter. Dispositive Judgment of the lower court, sentencing the defendant to pay a fine of P100, with subsidiary imprisonment in case of insolvency, and to pay the costs, is affirmed with the costs of this instance against the appellant, without prejudice to any civil action which may be instituted.

Same; Same; This Court has held that the failure to properly cite reference to the original records is not a fatal procedural lapse.The absence of page reference to the record is a ground for dismissal. It is a requirement intended to ultimately aid the appellate court in arriving at a just and proper conclusion of the case. However, as earlier discussed, such dismissal is not mandatory, but discretionary on the part of the appellate court. This Court has held that the failure to properly cite reference to the original records is not a fatal procedural lapse. When citations found in the appellants brief enable the court to expeditiously locate the portions of the record referred to, there is substantial compliance with the requirements of Section 13(c), (d), and (f) of Rule 44. In De Leon v. CA, 376 SCRA 531 (2002), this Court ruled that the citations contained in the appellants brief sufficiently enabled the appellate court to expeditiously locate the portions of the record referred to. They were in substantial compliance with the rules.

exercise care of a specially high degree, the highest degree of care known to practical men. In other words, druggists must exercise the highest practicable degree of prudence and vigilance, and the most exact and reliable safeguards consistent with the reasonable conduct of the business, so that human life may not constantly be exposed to the danger flowing from the substitution of deadly poisons for harmless medicines. Same; One holding himself out as competent to handle drugs, having rightful access to them, and relied upon by those dealing with him to exercise that high degree of caution and care called for by the peculiarly dangerous nature of the business, cannot be heard to say that his mistake by which he furnishes a customer the most deadly of drugs for those comparatively harmless, is not in itself gross negligence.Smiths Admrx v. Middelton, 56 LRA 484 (1902), teaches Us that one holding himself out as competent to handle drugs, having rightful access to them, and relied upon by those dealing with him to exercise that high degree of caution and care called for by the peculiarly dangerous nature of the business, cannot be heard to say that his mistake by which he furnishes a customer the most deadly of drugs for those comparatively harmless, is not in itself gross negligence. In our own jurisdiction, United States v. Pineda, 37 Phil. 456 (1918), and Mercury Drug Corporation v. Baking, 523 SCRA 184 (2007) are illustrative. In Pineda, the potassium chlorate demanded by complainant had been intended for his race horses. When complainant mixed with water what he thought and believed was potassium chlorate, but which turned out to be the potently deadly barium chlorate, his race horses died of poisoning only a few hours after. The wisdom of such a decision is unquestionable. If the victims had been human beings instead of horses, the damage and loss would have been irreparable.

G.R. No. 165622.October 17, 2008.*

MERCURY DRUG CORPORATION and AURMELA GANZON, petitioners, vs. RAUL DE LEON, respondent.

Same; Rules of procedure are intended to promote, not to defeat, substantial justice.Rules of procedure are intended to promote, not to defeat, substantial justice. They should not be applied in a very rigid and technical sense. For reasons of justice and equity, this Court has allowed exceptions to the stringent rules governing appeals. It has, in the past, refused to sacrifice justice for technicality.

Procedural Rules and Technicalities; Appeals; This Court stressed that the grounds for dismissal of an appeal under Section 1 of Rule 50 are discretionary upon the appellate court.In several cases, this Court stressed that the grounds for dismissal of an appeal under Section 1 of Rule 50 are discretionary upon the appellate court. The very wording of the rule uses the word may instead of shall. This indicates that it is only directory and not mandatory. Sound discretion must be exercised in consonance with the tenets of justice and fair play, keeping in mind the circumstances obtaining in each case.

Pharmacists; Druggists must exercise the highest practicable degree of prudence and vigilance, and the most exact and reliable safeguards consistent with the reasonable conduct of the business, so that human life may not constantly be exposed to the danger flowing from the substitution of deadly poisons for harmless medicines. Mercury Drug and Ganzon can not exculpate themselves from any liability. As active players in the field of dispensing medicines to the public, the highest degree of care and diligence is expected of them. Likewise, numerous decisions, both here and abroad, have laid salutary rules for the protection of human life and human health. In the United States case of Tombari v. Conners, 85 Conn. 231 (1912), it was ruled that the profession of pharmacy demands care and skill, and druggists must

Same; This Court once more reiterated that the profession of pharmacy demands great care and skill.This Court once more reiterated that the profession of pharmacy demands great care and skill. It reminded 434 druggists to exercise the highest degree of care known to practical men. In cases where an injury is caused by the negligence of an employee, there instantly arises a presumption of law that there has been negligence on the part of the employer, either in the selection or supervision of ones

12

employees. This presumption may be rebutted by a clear showing that the employer has exercised the care and diligence of a good father of the family. Mercury Drug failed to overcome such presumption.

Same; This Court has ruled that in the purchase and sale of drugs, the buyer and seller do not stand at arms length. As a buyer, De Leon relied on the expertise and experience of Mercury Drug and its employees in dispensing to him the right medicine. This Court has ruled that in the purchase and sale of drugs, the buyer and seller do not stand at arms length. There exists an imperative duty on the seller or the druggist to take precaution to prevent death or injury to any person who relies on ones absolute honesty and peculiar learning. The Court emphasized: x x x The nature of drugs is such that examination would not avail the purchaser anything. It would be idle mockery for the customer to make an examination of a compound of which he can know nothing. Consequently, it must be that the druggist warrants that he will deliver the drug called for.

Damages; The award of damages must be commensurate to the loss or injury suffered.Moral damages are not intended to impose a penalty to the wrongdoer or to enrich the claimant at the expense of defendant. There is no hard and fast rule in determining what would be a fair and reasonable amount of moral damages since each case must be governed by its peculiar circumstances. However, the award of damages must be commensurate to the loss or injury suffered. [Mercury Drug Corporation vs. De Leon, 569 SCRA 432(2008)]

Respondent Raul T. De Leon, a judge, noticed that his left eye was reddish. He also had difficulty reading. On the same evening, he met a friend who happened to be a doctor, Dr. Charles Milla. The latter prescribed the drugs CortisporinOpthalmic and Ceftin to relieve his eye problems. Before heading to work the following morning, De Leon went to the Betterliving, Paraaque, branch of Mercury Drug Store Corporation to buy the prescribed medicines. He showed his prescription to petitioner AurmelaGanzon, a pharmacist assistant. At his chambers, De Leon requested his sheriff to assist him in using the eye drops. As instructed, the sheriff applied 2-3 drops on respondents left eye. Instead of relieving his irritation, respondent felt searing pain. He immediately rinsed the affected eye with water, but the pain did not subside. Only then did he discover that he was given the wrong medicine, CortisporinOtic Solution. De Leon returned to the same Mercury Drug branch, with his left eye still red and teary. When he confronted Ganzon why he was given ear drops, instead of the prescribed eye drops, she did not apologize and instead brazenly replied that she was unable to fully read the prescription and it was her supervisor who apologized and informed De Leon that they do not have stock of the needed CortisporinOpthalmic. De Leon wrote Mercury Drug, through its president, Ms. Vivian K. Askuna, about the days incident. Instead, two sales persons went to his office and informed him that their supervisor was busy with other matters. Having been denied his simple desire for a written apology and explanation, De Leon filed a complaint for damages against Mercury Drug. Issue: Whether or not the Mercury Drug and Ganzon are liable. Ruling: Yes. Mercury Drug and Ganzoncannot exculpate themselves from any liability. As active players in the field of dispensing medicines to the public, the highest degree of care and diligence is expected of them. Likewise, numerous decisions, both here and abroad, have laid salutary rules for the protection of human life and human health. In the United States case of Tombari v. Conners, it was ruled that the profession of pharmacy demands care and skill, and druggists must exercise care of a specially high degree, the highest degree of care known to practical men. In other words, druggists must exercise the highest practicable degree of prudence and vigilance, and the most exact and reliable safeguards consistent with the reasonable conduct of the business, so that human life

may not constantly be exposed to the danger flowing from the substitution of deadly poisons for harmless medicines. In cases where an injury is caused by the negligence of an employee, there instantly arises a presumption of law that there has been negligence on the part of the employer, either in the selection or supervision of ones employees. This presumption may be rebutted by a clear showing that the employer has exercised the care and diligence of a good father of the family. Mercury Drug failed to overcome such presumption. Petitioners Mercury Drug and Ganzon have similarly failed to live up to high standard of diligence expected of them as pharmacy professionals. They were grossly negligent in dispensing ear drops instead of the prescribed eye drops to De Leon. As a buyer, De Leon relied on the expertise and experience of Mercury Drug and its employees in dispensing to him the right medicine. This Court has ruled that in the purchase and sale of drugs, the buyer and seller do not stand at arms length. There exists an imperative duty on the seller or the druggist to take precaution to prevent death or injury to any person who relies on ones absolute honesty and peculiar learning.

G.R. No. 122445. November 18, 1997.* DR. NINEVETCH CRUZ, petitioner, vs. COURT OF APPEALS and LYDIA UMALI, respondents.

MERCURY DRUG GANZON vs. RAUL DE LEON G.R. No. 165622 Facts:

CORPORATION

and

AURMELA

[ October 17, 2008]

Physicians; Medical Malpractice; Criminal Law; Reckless Imprudence; Elements.This Court, however, holds differently and finds the foregoing circumstances insufficient to sustain a judgment of conviction against the petitioner for the crime of reckless imprudence resulting in homicide. The elements of reckless imprudence are: (1) that the offender does or fails to do an act; (2) that the doing or the failure to do that act is voluntary; (3) that it be without malice; (4) that material damage results from the reckless imprudence; and (5) that there is inexcusable lack of precaution on the part of the offender, taking into consideration his employment or occupation, degree of

13

intelligence, physical condition, and other circumstances regarding persons, time and place.

Same; Same; Same; Evidence; Witnesses; Expert Testimony; Whether or not a physician has committed an inexcusable lack of precaution in the treatment of his patient is to be determined according to the standard of care observed by other members of the profession in good standing under similar circumstances bearing in mind the advanced state of the profession at the time of treatment or the present state of medical science; Inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that exp ert testimony is usually necessary to support the conclusion as to causation. Whether or not a physician has committed an inexcusable lack of precaution in the treatment of his patient is to be determined according to the standard of care observed by other members of the profession in good standing under similar circumstances bearing in mind the advanced state of the profession at the time of treatment or the present state of medical science. In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pascasio, et al., this Court stated that in accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. It is in this aspect of medical malpractice that expert testimony is essential to establish not only the standard of care of the profession but also that the physicians conduct in the treatment and care falls below such standard. Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation.

still best arrived at not through the educated surmises nor conjectures of laymen, including judges, but by the unquestionable knowledge of expert witnesses. For whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is, in the generality of cases, a matter of expert opinion.All three courts below bewail the inadequacy of the facilities of the clinic and its untidiness; the lack of provisions such as blood, oxygen, and certain medicines; the failure to subject the patient to a cardio-pulmonary test prior to the operation; the omission of any form of blood typing before transfusion; and even the subsequent transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by the petitioner. But while it may be true that the circumstances pointed about by the courts below seemed beyond cavil to constitute reckless imprudence on the part of the surgeon, this conclusion is still best arrived at not through the educated surmises nor conjectures of laymen, including judges, but by the unquestionable knowledge of expert witnesses. For whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is, in the generality of cases, a matter of expert opinion. The deference of courts to the expert opinion of qualified physicians stems from its realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating. Expert testimony should have been offered to prove that the circumstances cited by the courts below are constitutive of conduct falling below the standard of care employed by other physicians in good standing when performing the same operation. It must be remembered that when the qualifications of a physician are admitted, as in the instant case, there is an inevitable presumption that in proper cases he takes the necessary precaution and employs the best of his knowledge and skill in attending to his clients, unless the contrary is sufficiently established. This presumption is rebuttable by expert opinion which is so sadly lacking in the case at bench.

of his patient.In litigations involving medical negligence, the plaintiff has the burden of establishing appellants negligence and for a reasonable conclusion of negligence, there must be proof of breach of duty on the part of the surgeon as well as a causal connection of such breach and the resulting death of his patient. In Chan Lugay v. St. Lukes Hospital, Inc., where the attending physician was absolved of liability for the death of the complainants wife and newborn baby, this Court held that: In order that there may be a recovery for an injury, however, it must be shown that the injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes. In other words, the negligence must be the proximate cause of the injury. For, negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of. And the proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. (Italics supplied.)

Same; Same; Same; Same; Same; Same; While it may be true that certain circumstances pointed out by the courts below seemed beyond cavil to constitute reckless imprudence on the part of the surgeon, such conclusion is

Same; Same; Same; Same; Burden of Proof; In litigations involving medical negligence, the plaintiff has the burden of establishing the defendants negligence and for a reasonable conclusion of negligence, there must be proof of breach of duty on the part of the surgeon as well as a causal connection of such breach and the resulting death

Same; Same; Same; Evidence; Damages; While a conviction of a crime requires proof beyond reasonable doubt, only a preponderance of evidence is required to establish civil liability, thus, even as the Court was not able to render a sentence of conviction for insufficiency of evidence, the Court is not blind to the reckless and imprudent manner in which the surgeon carried out her duties.Nevertheless, this Court finds the petitioner civilly liable for the death of Lydia Umali, for while a conviction of a crime requires proof beyond reasonable doubt, only a preponderance of evidence is required to establish civil liability. The petitioner is a doctor in whose hands a patient puts his life and limb. For insufficiency of evidence this Court was not able to render a sentence of conviction but it is not blind to the reckless and imprudent manner in which the petitioner carried out her duties. A precious life has been lost and the circumstances leading thereto exacerbated the grief of those left behind. The heirs of the deceased continue to feel the loss of their mother up to the present time and this Court is aware that no amount of compassion and commiseration nor words of bereavement

14

can suffice to assuage the sorrow felt for the loss of a loved one. Certainly, the award of moral and exemplary damages in favor of the heirs of Lydia Umali are proper in the instant case. CRUZ vs CA Case Digest

of confidence, Citytrust terminated Cruz from employment effective October 6, 1993. Aggrieved by this, Cruz filed before the Labor Arbiter an action for Illegal Dismissal and Damages claiming that Citytrust denied him due process and hastily dismissed him from service. Petitioner claims that while his name appears in the check vouchers issued by MECO the incontrovertible fact remains that his signature does not appear in any of said vouchers. Not being a signatory of any of the said check vouchers, petitioner contends that there can be no basis in concluding that he ever received any commission, special discount or rebate from MECO. Petitioner also asserts that he was denied due process because he was not given the opportunity to refute the charges imputed against him. While it is true that private respondent conducted an investigation, petitioner claims that the same was done without his participation. ISSUE Whether or not petitioner was illegally dismissed. HELD The SC held that petitioner was not illegally dismissed. Jurisprudence has distinguished the treatment of managerial employees or employees occupying positions of trust and confidence from that of rank-and-file personnel, insofar as the application of the doctrine of trust and confidence is concerned. There is no dispute that petitioner is a confidential employee. Hence, in the case of a managerial employee, the mere existence of a basis for believing that such employee has breached the trust of his employer would suffice for his dismissal. Proof beyond reasonable doubt is not required, it being sufficient that there is some basis for such loss of confidence, such as when the employer has reasonable ground to believe that the employee concerned is responsible for the purported misconduct, and the nature of his participation therein renders him unworthy of the trust and confidence demanded by his position. In addition, the language of Article 282(c) of the Labor Code states that the loss of trust and confidence must be based on willful breach of the trust reposed in the employee by his employer. Such breach is willful if it is done intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. Moreover, it must be based on substantial evidence and not on the employers whims or caprices or suspicions

[G.R. NO. 148544 July 12, 2006] FELIX M. CRUZ, JR., Petitioner, vs. APPEALS, NATIONAL LABOR COMMISSION AND CITYTRUST CORPORATION, Respondents. FACTS

COURT OF RELATIONS BANKING

otherwise, the employee would eternally remain at the mercy of the employer. Loss of confidence must not be indiscriminately used as a shield by the employer against a claim that the dismissal of an employee was arbitrary. And, in order to constitute a just cause for dismissal, the act complained of must be work-related and shows that the employee concerned is unfit to continue working for the employer. In addition, loss of confidence as a just cause for termination of employment is premised on the fact that the employee concerned holds a position of responsibility, trust and confidence or that the employee concerned is entrusted with confidence with respect to delicate matters, such as the handling or care and protection of the property and assets of the employer. The betrayal of this trust is the essence of the offense for which an employee is penalized. It is true that the check vouchers alone are not sufficient to prove his guilt owing to the fact that his signatures do not appear in any of these vouchers. However, aside from the abovementioned check vouchers, there are other pieces of evidence presented by Citytrust which petitioner failed to refute and which points to the fact that he received commissions or rebates from MECO. The evidence consists of the following: (1) admission made by petitioner in his letter, dated August 3, 1993, that he received material considerations from MECO since 1992; (2) certification issued by MECO categorically stating that he was paid commissions totaling P105,192.00; (3) testimonies of Leoncio Araullo, Vice President of Citytrust; and Ma. Lourdes Foronda, Assistant Vice President for Staff Services Division of the Human Resources Department of Citytrust, that petitioner admitted having received the amounts of P1,000.00 and P500.00 from Art Cordero, an officer of MECO, claiming that these amounts are for the boys; (4) statements in the affidavit of Florante del Mundo, auditor at the Internal Audit Department of Citytrust that two of the checks issued by MECO in favor of petitioner were either encashed by the latters common-law-wife or deposited in his account. In addition, the Court agrees with the CA that annotations appearing in the check vouchers issued by MECO such as Payment for the Rebate Given to Boy Cruz of Citytrust and Payment for the Sales Rebate Given to Boy Cruz of Citytrust are confirmations of the fact that the checks were issued and given specifically by MECO to petitioner in consideration of his office and services. These pieces of evidence, when taken together, would constitute substantial evidence to prove petitioners guilt; and his failure to satisfactorily explain or rebut them only strengthens Citytrusts case against him.

Petitioner Cruz was an employee of private respondent Citytrust from October 8, 1979. He held the confidential position of Micro Technical Support Officer, who is responsible for the (1) evaluation and recommendation from various departments/units request for Micro Computers received by the Bidding Committee; and (b) further evaluation and acceptance of the bids submitted including recommendation therof, which were done by the Technical Committee of the Bank. The good performance of Cruz did not remain unnoticed for on several occasions he was recognized with awards and citations, given salary increases and promoted to Authorized Signer on May 1, 1991. Later, there were feedbacks and information that certain irregularities were being committed in the bidding process and purchase of computers, an area within the powers and responsibilities of Cruz. To clarify matters, a special investigation was conducted by the Citytrust Internal Audit Group and it was found out that there were unauthorized and unreported commissions and rebates given out by one of its computer suppliers, MECO, for purchases made by Citytrust. This was corroborated by the letter dated August 5, 1992 of the President and Controller of MECO certifying that Cruz has received commissions and rebates amounting to P105,192.00 just for the period of September 1992 to March 1993. Citytrust, then sent a show-cause memorandum to Cruz on August 6, 1993 placing him under a 30-day preventive suspension and directing him to appear in an administrative hearing by the Ad Hoc Committee. Cruz submitted the said memorandum, the Ad Hoc Committee heard the matter, and found Cruz guilty of fraud, serious misconduct, gross dishonesty and serious violation of Bank policies, regulations and procedure. For the resultant loss

15

Thus, petitioners acceptance of commissions and rebates from MECO, without the knowledge and consent of Citytrust and without said rebates and commissions being reported and turned over to the latter, are acts which can clearly be considered as a willful breach of the trust and confidence reposed by Citytrust upon him. Settled is the rule that an employer cannot be compelled to retain an employee who is guilty of acts inimical to the interests of the employer. A company has the right to dismiss its employees if only as a measure of self-protection. This is all the more true in the case of supervisors or personnel occupying positions of responsibility. In the present case, the Court finds that the CA did not commit grave abuse of discretion when it ruled that Citytrust is justified in dismissing petitioner from his employment for loss of trust and confidence. Due process was not denied to the petitioner as evidence by the letter of Citytrust dated August 6, 1993, which petitioner answered; and the investigation conducted by the Ad Hoc Committee of Citytrust. Petitioners concept of the opportunity to be heard is the chance to ventilate ones side in a formal hearing where he can have a face-to-face confrontation with his accusers. It is well settled that the basic requirement of notice and hearing in termination cases is for the employer to inform the employee of the specific charges against him and to hear his side and defenses. This does not, however, mean a full adversarial proceeding. The parties may be heard through pleadings, written explanations, position papers, memorandum or oral argument. In all of these instances, the employer plays an active role by providing the employee with the opportunity to present his side and answer the charges in substantial compliance with due process. Further, Citytrust complied with the first requirement of notice when it informed petitioner through a letter, dated August 6, 1993, of the charges against him, directing him to explain in writing why his employment should not be terminated and, thereafter, to appear in a hearing to be conducted by the company to give him further opportunity to explain his side. Citytrust also complied with the second requirement of notice when it sent a memorandum dated September 28, 1993, to petitioner informing him of his dismissal from employment and the reasons therefor. Petition is dismissed.

ENRIQUE AGANA, JR., EMMA AGANA ANDAYA, JESUS AGANA, and RAYMUND AGANA) and ENRIQUE AGANA, petitioners, vs. JUAN FUENTES, respondent.

G.R. No. 127590. January 31, 2007.* MIGUEL AMPIL, petitioner, vs. NATIVIDAD AGANA and ENRIQUE AGANA, respondents.

Civil Law; Damages; Negligence; 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. 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. 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.

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. 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. 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.

Same; Same; Same; To the mind of the Court, what was initially an act of negligence by Dr. Ampil has ripened into a deliberate wrongful act of deceiving his patient.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.

Same; Same; Same; Same; 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.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. 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.

G.R. No. 126467. January 31, 2007.* NATIVIDAD and ENRIQUE AGANA, respondents. NATIVIDAD (Substituted by her children MARCELINO AGANA III,

Same; Same; Same; Doctrine of Res Ipsa Loquitur; Requisites for the Applicability of the Doctrine.Literally, res ipsa loquitur means the thing speaks for itself. It is the rule that the fact of the occurrence of an injury, taken

Same; Same; Same; 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.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

16

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.

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.

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. [Professional Services, Inc. vs. Agana, 513 SCRA 478(2007)] Professional Services Inc. (PSI) v. Natividad and Enrique Agana Natividad and Enrique Agana v. Juan Fuentes Miguel Ampil v. Natividad and Enrique Agana 2007 / Sandoval-Gutierrez / Petition for review on certiorari of CA decisions Standard of conduct > Experts > Medical professionals FACTS Natividad Agana was rushed to Medical City because of difficulty of bowel movement and bloody anal discharge. Dr. Ampil diagnosed her to be suffering from cancer of the sigmoid. Dr. Ampil performed an anterior resection surgery on her, and finding that the malignancy spread on her left ovary, he obtained the consent of her husband, Enrique, to permit Dr. Fuentes to perform hysterectomy on her. After the hysterectomy, Dr. Fuentes showed his work to Dr. Ampil, who examined it and found it in order, so he allowed Dr. Fuentes to leave the operating room. Dr. Ampil was about to complete the procedure when the attending nurses made some remarks on the Record of Operation: "sponge count lacking 2; announced to surgeon search done but to no avail continue for closure " (two pieces of gauze were missing). A "diligent search" was conducted but they could not be found. Dr. Ampil then directed that the incision be closed. A couple of days after, she complained of pain in her anal region, but the doctors told her that it was just a natural consequence of the surgery. Dr. Ampil recommended that she consult an oncologist to examine the cancerous nodes which were not removed during the operation. After months of consultations and examinations in the US, she was told that she was free of cancer. Weeks after coming back, her daughter found a piece of gauze (1.5 in) protruding from her vagina, so Dr. Ampil manually extracted this, assuring Natividad that the pains will go away. However, the pain worsened, so she sought treatment at a hospital, where another 1.5 in piece of gauze was found in her vagina. She underwent another surgery.

Same; Same; Same; In this jurisdiction, the nature of the relationship between the hospital and the physicians is rendered inconsequential in view of the pronouncement in Ramos vs. Court of Appeals, 321 SCRA 584 (1999), 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.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 Appeals, 321 SCRA 584 (1999), 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.

Same;Same; Same; PSIs liability is also anchored upon the agency principle of apparent authority or agency by estoppel and the doctrine of corporate negligence.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 out theory, or doctrine of ostensible agency or agency by estoppel, 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. The concept is essentially one of estoppel and has been explained in this

Same; Same; Same; 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.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., 415 So. 2d 55 (1982). 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.

Same; Same; Same; 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.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

17

Sps. Agana filed a complaint for damages against PSI (owner of Medical City), Dr. Ampil, and Dr. Fuentes, alleging that the latter are liable for negligence for leaving 2 pieces of gauze in Natividad's body, and malpractice for concealing their acts of negligence. Enrique Agana also filed an administrative complaint for gross negligence and malpractice against the two doctors with the PRC (although only the case against Dr. Fuentes was heard since Dr. Ampil was abroad). Pending the outcome of the cases, Natividad died (now substituted by her children). RTC found PSI and the two doctors liable for negligence and malpractice. PRC dismissed the case against Dr. Fuentes. CA dismissed only the case against Fuentes. ISSUE AND HOLDING 1. WON CA erred in holding Dr. Ampil liable for negligence and malpractice. NO; DR. AMPIL IS GUILTY 2. WON CA erred in absolving Dr. Fuentes of any liability. NO 3. WON PSI may be held solidarily liable for Dr. Ampil's negligence. YES

Duty - to remove all foreign objects from the body before closure of the incision; if he fails to do so, it was his duty to inform the patient about it Breach - failed to remove foreign objects; failed to inform patient Injury suffered pain that examination and another surgery necessitated

Proximate Causation - breach caused this injury; could be traced from his act of closing the incision despite information given by the attendant nurses that 2 pieces of gauze were still missing; what established causal link: gauze pieces later extracted from patient's vagina

HOSPITAL OWNER PSI SOLIDARILY LIABLE WITH DR. AMPIL [NCC 2180], AND DIRECTLY LIABLE TO SPS. AGANAS [NCC 2176] Previously, employers cannot be held liable for the fault or negligence of its professionals. However, this doctrine has weakened since courts came to realize that modern hospitals are taking a more active role in supplying and regulating medical care to its patients, by employing staff of physicians, among others. Hence, there is no reason to exempt hospitals from the universal rule of respondeat superior. Here are the Court's bases for sustaining PSI's liability: Ramos v. CA doctrine on E-E relationship

o
For purposes of apportioning responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. [LABOR LESSON: power to hire, fire, power of control]

DR. FUENTES NOT LIABLE The res ipsa loquitur [thing speaks for itself] argument of the Aganas' does not convince the court. Mere invocation and application of this doctrine does not dispense with the requirement of proof of negligence. Requisites for the applicability of res ipsa loquitur 1. Occurrence of injury 2. Thing which caused injury was under the control and management of the defendant [DR. FUENTES] -- LACKING SINCE CTRL+MGT WAS WITH DR. AMPIL 3. Occurrence was such that in the ordinary course of things, would not have happened if those who had control or management used proper care Absence of explanation by defendant

RATIO DR. AMPIL IS LIABLE FOR NEGLIGENCE AND MALPRACTICE His arguments are without basis [did not prove that the American doctors were the ones who put / left the gauzes; did not submit evidence to rebut the correctness of the operation record (re: number of gauzes used); re: Dr. Fuentes' alleged negligence, Dr. Ampil examined his work and found it in order]. Leaving foreign substances in the wound after incision has been closed is at least prima facie negligence by the operating surgeon. Even if it has been shown that a surgeon was required to leave a sponge in his patient's abdomen because of the dangers attendant upon delay, still, it is his legal duty to inform his patient within a reasonable time by advising her of what he had been compelled to do, so she can seek relief from the effects of the foreign object left in her body as her condition might permit. What's worse in this case is that he misled her by saying that the pain was an ordinary consequence of her operation. Medical negligence; standard of diligence To successfully pursue this case of medical negligence, a patient must only prove that a health care provider either failed to do something [or did something] which a reasonably prudent health care provider would have done [or wouldn't have done], and that the failure or action caused injury to the patient.

Agency principle of apparent authority / agency by estoppel

o
Imposes liability because of the actions of a principal or employer in somehow misleading the public into believing that the relationship or the authority exists [see NCC 1869] PSI publicly displays in the Medical City lobby the names and specializations of their physicians. Hence, PSI 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.

4.

o
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. That Dr. Ampil discharged such role is evident from the following: He called Dr. Fuentes to perform a hysterectomy

He examined Dr. Fuentes' work and found it in order He granted Dr. Fuentes permission to leave He ordered the closure of the incision

o
If doctors do well, hospital profits financially, so when negligence mars the quality of its services, the hospital should not be allowed to escape liability for its agents' acts.

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Doctrine of corporate responsibility

negligence

corporate

G.R. No. 159132.December 18, 2008.* Same; Statutory Construction; It is an elementary rule that when the law speaks in clear and categorical language, there is no need, in the absence of legislative intent to the contrary, for any interpretation.Such conclusion is bolstered by the fact that in 2006, the PRC issued Resolution No. 06-342(A),or the New Rules of Procedure in Administrative Investigations in the Professional Regulation Commission and the Professional Regulatory Boards, which provides for the method of appeal, to wit: Sec. 1. Appeal; Period Non-Extendible.The decision, order or resolution of the Board shall be final and executory after the lapse of fifteen (15) days from receipt of the decision, order or resolution without an appeal being perfected or taken by either the respondent or the complainant. A party aggrieved by the decision, order or resolution may file a notice of appeal from the decision, order or resolution of the Board to the Commission within fifteen (15) days from receipt thereof, and serving upon the adverse party a notice of appeal together with the appellants brief or memorandum on appeal, and paying the appeal and legal research fees. x x x The above-stated provision does not qualify whether only the complainant or respondent may file an appeal; rather, the new rules provide that a party aggrieved may file a notice of appeal. Thus, either the complainant or the respondent who has been aggrieved by the decision, order or resolution of the Board may appeal to the Commission. It is an elementary rule that when the law speaks in clear and categorical language, there is no need, in the absence of legislative intent to the contrary, for any interpretation. Words and phrases used in the statute should be given their plain, ordinary, and common usage or meaning.

o
This is the judicial answer to the problem of allocating hospital's liability for the negligent acts of health practitioners, absent facts to support the application of respondeat superior. This provides for the duties expected [from hospitals]. In this case, PSI failed to perform the duty of exercising reasonable care to protect from harm all patients admitted into its facility for medical treatment. PSI failed to conduct an investigation of the matter reported in the note of the count nurse, and this established PSI's part in the dark conspiracy of silence and concealment about the gauzes.

FE CAYAO-LASAM, petitioner, vs. SPOUSES CLARO and EDITHA RAMOLETE, respondents.**

o
PSI has actual / constructive knowledge of the matter, through the report of the attending nurses + the fact that the operation was carried on with the assistance of various hospital staff

Administrative Law; Double Jeopardy; Requisites; The principle of double jeopardy finds no application in administrative cases.The principle of double jeopardy finds no application in administrative cases. Double jeopardy attaches only: (1) upon a valid indictment; (2) before a competent court; (3) after arraignment; (4) when a valid plea has been entered; and (5) when the defendant was acquitted or convicted, or the case was dismissed or otherwise terminated without the express consent of the accused. These elements were not present in the proceedings before the Board of Medicine, as the proceedings involved in the instant case were administrative and not criminal in nature. The Court has already held that double jeopardy does not lie in administrative cases.

It also breached its duties to oversee or supervise all persons who practice medicine within its walls and take an active step in fixing the negligence committed

PSI also liable under NCC 2180

o
It failed to adduce evidence to show that it exercised the diligence of a good father of the family in the accreditation and supervision of Dr. Ampil

Same; Physicians; Board of Medicine; Appeals; The right to appeal from a decision of the Board of Medicine to the Professional Regulation Commission is available to both complainants and respondents.Section 35 of the Rules and Regulations Governing the Regulation and Practice of Professionals cited by petitioner was subsequently amended to read: Sec. 35. The complainant/respondent may appeal the order, the resolution or the decision of the Board within thirty (30) days from receipt thereof to the Commission whose decision shall be final and executory. Interlocutory order shall not be appealable to the Commission. (Amended by Res. 174, Series of 1990). Whatever doubt was created by the previous provision was settled with said amendment. It is axiomatic that the right to appeal is not a natural right or a part of due process, but a mere statutory privilege that may be exercised only in the manner prescribed by law. In this case, the clear intent of the amendment is to render the right to appeal from a decision of the Board available to both complainants and respondents.

Same; Same; Jurisdiction; Batas Pambansa (B.P.) Blg. 129 conferred upon the Court of Appeals (CA) exclusive appellate jurisdiction over appeals from decisions of the Professional Regulation Commission (PRC).The PRC is not expressly mentioned as one of the agencies which are expressly enumerated under Section 1, Rule 43 of the Rules of Court. However, its absence from the enumeration does not, by this fact alone, imply its exclusion from the coverage of said Rule. The Rule expressly provides that it should be applied to appeals from awards, judgments final orders or resolutions of any quasi-judicial agency in the

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exercise of its quasi-judicial functions. The phrase among these agencies confirms that the enumeration made in the Rule is not exclusive to the agencies therein listed. Specifically, the Court, in Yang v. Court of Appeals, 186 SCRA 287 (1990), ruled that Batas Pambansa (B.P.) Blg. 129 conferred upon the CA exclusive appellate jurisdiction over appeals from decisions of the PRC.

Physicians; Medical Malpractice; Words and Phrases; Medical malpractice is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances; There are four elements involved in medical negligence casesduty, breach, injury and proximate441 causation.Anent the substantive merits of the case, petitioner questions the PRC decision for being without an expert testimony to support its conclusion and to establish the cause of Edithas injury. Petitioner avers that in cases of medical malpractice, expert testimony is necessary to support the conclusion as to the cause of the injury. Medical malpractice is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances. In order to successfully pursue such a claim, a patient must prove that the physician or surgeon either failed to do something which a reasonably prudent physician or surgeon would not have done, and that the failure or action caused injury to the patient. There are four elements involved in medical negligence cases: duty, breach, injury and proximate causation.

was duty-bound to use at least the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances. The breach of these professional duties of skill and care, or their improper performance by a physician surgeon, whereby the patient is injured in body or in health, constitutes actionable malpractice. As to this aspect of medical malpractice, the determination of the reasonable level of care and the breach thereof, expert testimony is essential. Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation.

Same; Same; Same; Same; Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter about which he or she is to testify, either by the study of recognized authorities on the subject or by practical experience.In the present case, respondents did not present any expert testimony to support their claim that petitioner failed to do something which a reasonably prudent physician or surgeon would have done. Petitioner, on the other hand, presented the testimony of Dr. Augusto M. Manalo, who was clearly an expert on the subject. Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject442matter about which he or she is to testify, either by the study of recognized authorities on the subject or by practical experience. Dr. Manalo specializes in gynecology and obstetrics, authored and co-authored various publications on the subject, and is a professor at the University of the Philippines.

Code. The defenses in an action for damages, provided for under Article 2179 of the Civil Code are: Art. 2179. When the plaintiffs own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendants lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred. An injury or damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.

Same; Same; Witnesses; Expert Witnesses; The breach of professional duties of skill and care, or their improper performance by a physician surgeon, whereby the patient is injured in body or in health, constitutes actionable malpractice, and as to this aspect of medical malpractice, the determination of the reasonable level of care and the breach thereof, expert testimony is essential.A physicianpatient relationship was created when Editha employed the services of the petitioner. As Edithas physician, petitioner

Same; Same; Negligence; Proximate Cause; Words and Phrases; Medical malpractice, in our jurisdiction, is often brought as a civil action for damages under Article 2176 of the Civil Code, and the defenses in an action for damages are provided for under Article 2179; Proximate cause is that which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred. Medical malpractice, in our jurisdiction, is often brought as a civil action for damages under Article 2176 of the Civil

Same; Same; Same; Same; Same; Where the immediate cause of an accident resulting in an injury is the plaintiffs own act, which contributed to the principal occurrence as one of its determining factors, he cannot recover damages for the injury; Contributory negligence is the act or omission amounting to want of ordinary care on the part of the person injured, which, concurring with the defendants negligence, is the proximate cause of the injury. Contributory negligence is the act or omission amounting to want of ordinary care on the part of the person injured, which, concurring with the defendants negligence, is the proximate cause of the injury. Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident. Where the immediate cause of an accident resulting in an injury is the plaintiffs own act, which contributed to the principal occurrence as one of its determining factors, he cannot recover damages for the injury. Again, based on the evidence presented in the present443case under review, in which no negligence can be attributed to the petitioner, the immediate cause of the accident resulting in Edithas injury was her own omission when she did not return for a follow-up check up, in defiance of petitioners orders. The immediate cause of Edithas injury was her own act; thus, she cannot recover damages from the injury.

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Actions; Pleadings and Practice; Service of Notice; Burden of Proof; It is a well-settled rule that when service of notice is an issue, the rule is that the person alleging that the notice was served must prove the fact of servicethe burden of proving notice rests upon the party asserting its existence.It is a well-settled rule that when service of notice is an issue, the rule is that the person alleging that the notice was served must prove the fact of service. The burden of proving notice rests upon the party asserting its existence. In the present case, respondents did not present any proof that petitioner was served a copy of the Memorandum on Appeal. Thus, respondents were not able to satisfy the burden of proving that they had in fact informed the petitioner of the appeal proceedings before the PRC.

Same; Same; Same; Due Process; Failure of the appellant to furnish the appellee a copy of the Memorandum of Appeal submitted to the Professional Regulation Commission (PRC) constitutes a violation of due process. In EDI-Staffbuilders International, Inc. v. National Labor Relations Commission, 537 SCRA 409 (2007), in which the National Labor Relations Commission failed to order the private respondent to furnish the petitioner a copy of the Appeal Memorandum, the Court held that said failure deprived the petitioner of procedural due process guaranteed by the Constitution, which could have served as basis for the nullification of the proceedings in the appeal. The same holds true in the case at bar. The Court finds that the failure of the respondents to furnish the petitioner a copy of the Memorandum of Appeal submitted to the PRC constitutes a violation of due process. Thus, the proceedings before the PRC were null and void.

FACTS: On July 28, 1994, respondent, three monthspregnant Editha Ramolete (Editha) was brought to the LormaMedical Center (LMC) in San Fernando, La Union due tovaginal bleeding. Upon advice of petitioner relayed via telephone, Editha was admitted to the LMC on the same day.A pelvic sonogram 2 was then conducted on Editha revealingthe fetus weak cardiac pulsation. 3 The following day,Edithas repeat pelvic sonogram 4 showed that aside from thefetus weak cardiac pulsation, no fetal movement was alsoappreciated. Due to persistent and profuse vaginal bleeding,petitioner advised Editha to undergo a Dilatation andCurettage Procedure (D&C) or " raspa. " The procedure wasperformed by the petitioner and Editha was discharged thenext day.On September 16, 1994, Editha was once again brought atthe LMC, as she was suffering from vomiting and severeabdominal pains. She was found to have a massive intra-abdominal hemorrhage and a ruptured uterus. Thus, Edithahad to undergo a procedure for hysterectomy 6 and as aresult, she has no more chance to bear a child.Respondents: f irst , petitioners failure to check up, visit or administer medication on Editha during her first day of confinement at the LMC; 9 second , petitioner recommendedthat a D&C procedure be performed on Editha withoutconducting any internal examination prior to the procedure; 10 third , petitioner immediately suggested a D&C procedureinstead of closely monitoring the state of pregnancy of Editha.Petitioner: it was Edithas gross negligence and/or omissionin insisting to be discharged against doctors advice and her unjustified failure to return for check-up as directed bypetitioner that contributed to her life-threatening condition on;that Edithas hysterectomy was brought about by her veryabnormal pregnancy known as placenta increta, which wasan extremely rare and very unusual case of abdominalplacental implantation; that whether or not a D&C procedurewas done by her or any other doctor, there

Physicians; Doctors are protected by a special rule of law they are not guarantors of care and they are not insurers against mishaps or unusual consequences.Doctors are protected by a special rule of law. They are not guarantors of care. They are not insurers against mishaps or unusual consequences specially so if the patient herself did not exercise the proper diligence required to avoid the injury. [Cayao-Lasam vs. Ramolete, 574 SCRA 439(2008)] FeCayao-Salamv.Sps.Ramolete(GRNo.159132)

would be nodifference at all because at any stage of gestation beforeterm, the uterus would rupture just the same.RULING: Medical malpractice is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the professiongenerally, under similar conditions, and in like surroundingcircumstances.There are four elements involved in medical negligencecases: duty, breach, injury and proximate causation. 44 In the present case, respondents did not present any experttestimony to support their claim that petitioner failed to dosomething which a reasonably prudent physician or surgeonwould have done.Petitioner, on the other hand, presented the testimony of Dr.Augusto M. Manalo, who was clearly an expert on thesubject. He testified that the rupture occurred minutes prior to the hysterectomy or right upon admission on September 15, 1994 which is about 1 months after the patient wasdischarged, after the D&C was conducted. It is evident thatthe D&C procedure was not the proximate cause of therupture of Edithas uterus.The defenses in an action for damages, provided for under Article 2179 of the Civil Code are:Art. 2179. When the plaintiffs own negligencewas the immediate and proximate cause of hisi n u r h e c a n n o t r e c o v e r d a m a e s . But if hisnegligence was only contributory, the immediateand proximate cause of the injury being thedefendants lack of due care, the plaintiff mayrecover damages, but the courts shall mitigate thedamages to be awarded.Proximate cause has been defined as that which, in naturaland continuous sequence, unbroken by any efficientintervening cause, produces injury, and without which theresult would not have occurred. 55 An injury or damage isproximately caused by an act or a failure to act, whenever itappears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probableconsequence of the act or omission.The Court notes the findings of the Board of Medicine:When complainant was discharged on July 31,1994, herein respondent advised her to return onAugust 4, 1994 or four (4) days after the D&C.This advise was clear in complainantsDischarge Sheet. However, complainant failed todo so.

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This being the case, the chain of continuityas required in order that the doctrine of proximatecause can be validly invoked was interrupted. Hadshe returned, the respondent could haveexamined her thoroughly. Contributory negligence is the act or omission amounting towant of ordinary care on the part of the person injured,which, concurring with the defendants negligence, is theproximate cause of the injury. 59 Difficulty seems to beapprehended in deciding which acts of the injured party shallbe considered immediate causes of the accident. 60 Wherethe immediate cause of an accident resulting in an injury isthe plaintiffs own act, which contributed to the principaloccurrence as one of its determining factors, he cannotrecover damages for the injury.

G.R. No. 178763.April 21, 2009.* PETER PAUL PATRICK LUCAS, FATIMA GLADYS LUCAS, ABBEYGAIL LUCAS AND GILLIAN LUCAS, petitioners, vs. DR. PROSPERO MA. C. TUAO, respondent.

illustration of a medical negligence case against a physician based on the latters professional negligence, and in this type of suit, the patient or his heirs, in order to prevail, is required to prove by preponderance of evidence that the physician failed to exercise that degree of skill, care, and learning possessed by other persons in the same profession, and that as a proximate result of such failure, the patient or his heirs suffered damages.Petitioners position, in sum, is that Peters glaucoma is the direct result of Dr. Tuaos negligence in his improper administration of the drug Maxitrol; thus, [the latter] should be liable for all the damages suffered and to be suffered by [petitioners]. Clearly, the present controversy is a classic illustration of a medical negligence case against a physician based on the latters professional negligence. In this type of suit, the patient or his heirs, in order to prevail, is required to prove by preponderance of evidence that the physician failed to exercise that degree of skill, care, and learning possessed by other persons in the same profession; and that as a proximate result of such failure, the patient or his heirs suffered damages.

four (4) elements must co-exist in order to find the physician negligent and, thus, liable for damages.

Appeals; Elementary is the principle that the Supreme Court is not a trier of factsonly errors of law are generally reviewed in petitions for review on certiorari criticizing decisions of the Court of Appeals.Elementary is the principle that this Court is not a trier of facts; only errors of law are generally reviewed in petitions for review on certiorari criticizing decisions of the Court of Appeals. Questions of fact are not entertained. Nonetheless, the general rule that only questions of law may be raised on appeal in a petition for review under Rule 45 of the Rules of Court admits of certain exceptions, including the circumstance when the finding of fact of the Court of Appeals is premised on the supposed absence of evidence, but is contradicted by the evidence on record. Although petitioners may not explicitly invoke said exception, it may be gleaned from their allegations and arguments in the instant Petition

Physicians; Medical Malpractice; Negligence; Damages; Burden of Proof; The present controversy is a classic

Same; Same; Same; Elements; For lack of a specific law geared towards the type of negligence committed by members of the medical profession, such claim for damages is almost always anchored on the alleged violation of Article 2176 of the Civil Code; In medical negligence cases, also called medical malpractice suits, there exist a physician-patient relationship between the doctor and the victim.For lack of a specific law geared towards the type of negligence committed by members of the medical profession, such claim for damages is almost always anchored on the alleged violation of Article 2176 of the Civil Code, which states that: ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasidelict and is governed by the provisions of this Chapter. In medical negligence cases, also called medical malpractice suits, there exist a physician-patient relationship between the doctor and the victim. But just like any other proceeding for damages, four essential (4) elements i.e., (1) duty; (2) breach; (3) injury; and (4) proximate causation, must be established by the plaintiff/s. All the

Same; Same; Same; When a patient engages the services of a physician, a physician-patient relationship is generated; In treating his patient, a physician is under a duty to the former to exercise that degree of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases, which standard level of care, skill and diligence is a matter best addressed by expert medical testimony, because the standard of care in a medical malpractice case is a matter peculiarly within the knowledge of experts in the field. When a patient engages the services of a physician, a physician-patient relationship is generated. And in accepting a case, the physician, for all intents and purposes, represents that he has the needed training and skill possessed by physicians and surgeons practicing in the same field; and that he will employ such training, care, and skill in the treatment of the patient. Thus, in treating his patient, a physician is under a duty to [the former] to exercise that degree of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases. Stated otherwise, the physician has the duty to use at least the same level of care that any other reasonably competent physician would use to treat the condition under similar circumstances. This standard level of care, skill and diligence is a matter best addressed by expert medical testimony, because the standard of care in a medical malpractice case is a matter peculiarly within the knowledge of experts in the field.

Same; Same; Same; There is breach of duty of care, skill and diligence, or the improper performance of such duty, by the attending physician when the patient is injured in body or in health [and this] constitutes the actionable malpractice; In order that there may be a recovery for an injury, it must be shown that the injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causesthat is, the

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negligence must be the proximate cause of the injury. There is breach of duty of care, skill and diligence, or the improper performance of such duty, by the attending physician when the patient is injured in body or in health [and this] constitutes theactionable malpractice. Proof of such breach must likewise rest upon the testimony of an expert witness that the treatment accorded to the patient failed to meet the standard level of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases. Even so, proof of breach of duty on the part of the attending physician is insufficient, for there must be a causal connection between said breach and the resulting injury sustained by the patient. Put in another way, in order that there may be a recovery for an injury, it must be shown that the injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes; that is, the negligence must be the proximate cause of the injury. And the proximate cause of an injury is that cause, which, in the natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.

defendant physician or surgeon. The deference of courts to the expert opinion of qualified physicians [or surgeons] 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.177 Same; Same; Same; The mere fact that the patient does not get well or that a bad result occurs does not in itself indicate failure to exercise due care.We cannot but agree with Dr. Tuaos assertion that when a doctor sees a patient, he cannot determine immediately whether the latter would react adversely to the use of steroids; all the doctor can do is map out a course of treatment recognized as correct by the standards of the medical profession. It must be remembered that a physician is not an insurer of the good result of treatment. The mere fact that the patient does not get well or that a bad result occurs does not in itself indicate failure to exercise due care.The result is not determinative of the performance [of the physician] and he is not required to be infallible.

occur unless there has been a sudden increase in the intraocular vision.Dr. Tuao does not deny that the use of Maxitrol involves the risk of increasing a patients IOP. In fact, this was the reason why he made it a point to palpate Peters eyes every time the latter went to see himso he could monitor the tension of Peters eyes. But to say that said medication conclusively caused Peters glaucoma is purely speculative. Peter was diagnosed with open-angle glaucoma. This kind of glaucoma is characterized by an almost complete absence of symptoms and a chronic, insidious course. In open-angle glaucoma, halos around lights and blurring of vision do not occur unless there has been a sudden increase in the intraocular vision. Visual acuity remains good until late in the course of the disease. Hence, Dr. Tuao claims that Peters glaucoma can only be long standing x x x because of the large C:D ratio, and that [t]he steroids provoked the latest glaucoma to be revealed earlier was a blessing in disguise as [Peter] remained asymptomatic prior to steroid application.

Same; Same; Same; Evidence; Expert Witnesses; 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.Just as with the elements of duty and breach of the same, in order to establish the proximate cause [of the injury] by a preponderance of the evidence in a medical malpractice action, [the patient] must similarly use expert testimony, because the question of whether the alleged professional negligence caused [the patients] injury is generally one for specialized expert knowledge beyond the ken of the average layperson; using the specialized knowledge and training of his field, the experts role is to present to the [court] a realistic assessment of the likelihood that [the physicians] alleged negligence caused [the patients] injury. From the foregoing, it is apparent that medical negligence cases are best proved by opinions of expert witnesses belonging in the same general neighborhood and in the same general line of practice as

Same; Same; Same; The critical and clinching factor in a medical negligence case is proof of the causal connection between the negligence which the evidence established and the plaintiffs injuries.Even if we are to assume that Dr. Tuao committed negligent acts in his treatment of Peters condition, the causal connection between Dr. Tuaos supposed negligence and Peters injury still needed to be established. The critical and clinching factor in a medical negligence case is proof of the causal connection between the negligence which the evidence established and the plaintiffs injuries. The plaintiff must plead and prove not only that he has been injured and defendant has been at fault, but also that the defendants fault caused the injury. A verdict in a malpractice action cannot be based on speculation or conjecture. Causation must be proven within a reasonable medical probability based upon competent expert testimony.

Same; Same; Same; Presumptions; It must be remembered that when the qualifications of a physician are admitted, as in the instant case, there is an inevitable presumption that in proper cases, he takes the necessary precaution and employs the best of his knowledge and skill in attending to his clients, unless the contrary is sufficiently established. It must be remembered that when the qualifications of a physician are admitted, as in the instant case, there is an inevitable presumption that in proper cases, he takes the necessary precaution and employs the best of his knowledge and skill in attending to his clients, unless the contrary is sufficiently established. In making the judgment call of treating Peters EKC with Maxitrol, Dr. Tuao took the necessary precaution by palpating Peters eyes to monitor their IOP every time the latter went for a check-up, and he employed the best of his knowledge and skill earned from years of training and practice.

Same; Same; Same; Glaucoma; Words and Phrases; In Open-angle glaucoma, which is characterized by an almost complete absence of symptoms and a chronic, insidious course, halos around lights and blurring of vision do not

Same; Same; Same; Civil Law; Evidence; Quantum of Proof; Preponderance of Evidence; Words and Phrases; The concept of preponderance of evidence refers to evidence which is of greater weight or more convincing than that which is offered in opposition to itin the last analysis, it means probability of truth, it is evidence which is more

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convincing to the court as worthy of belief than that which is offered in opposition thereto.The plaintiff in a civil case has the burden of proof as he alleges the affirmative of the issue. However, in the course of trial in a civil case, once plaintiff makes out a prima facie case in his favor, the duty or the burden of evidence shifts to defendant to controvert plaintiffs prima facie case; otherwise, a verdict must be returned in favor of plaintiff. The party having the burden of proof must establish his case by a preponderance of evidence. The concept of preponderance of evidence refers to evidence which is of greater weight or more convincing than that which is offered in opposition to it; in the last analysis, it means probability of truth. It is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto. Rule 133, Section 1 of the Revised Rules of Court provides the guidelines for determining preponderance of evidence, thus: In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies the court may consider all the facts and circumstances of the case, the witnesses manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.

determine on its own what medical technique should have been utilized for a certain disease or injury. Absent expert medical opinion, the courts would be dangerously engaging in speculations. [Lucas vs. Tuao, 586 SCRA 173(2009)]

Same; Same; Same; Evidence; Expert Witnesses; It seems basic that what constitutes proper medical treatment is a medical question that should have been presented to expertsif no standard is established through expert medical witnesses, then courts have no standard by which to gauge the basic issue of breach thereof by the physician or surgeon.It seems basic that what constitutes proper medical treatment is a medical question that should have been presented to experts. If no standard is established through expert medical witnesses, then courts have no standard by which to gauge the basic issue of breach thereof by the physician or surgeon. The RTC and Court of Appeals, and even this Court, could not be expected to

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