Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 160889

April 27, 2007

DR. MILAGROS L. CANTRE, Petitioner,

vs.
SPS. JOHN DAVID Z. GO and NORA S. GO, Respondents.
DECISION
QUISUMBING, J.:
For review on certiorari are the Decision1 dated October 3, 2002 and Resolution2 dated November
19, 2003 of the Court of Appeals in CA-G.R. CV No. 58184, which affirmed with modification the
Decision3 dated March 3, 1997 of the Regional Trial Court of Quezon City, Branch 98, in Civil Case
No. Q-93-16562.
The facts, culled from the records, are as follows:
Petitioner Dr. Milagros L. Cantre is a specialist in Obstetrics and Gynecology at the Dr. Jesus
Delgado Memorial Hospital. She was the attending physician of respondent Nora S. Go, who was
admitted at the said hospital on April 19, 1992.
At 1:30 a.m. of April 20, 1992, Nora gave birth to her fourth child, a baby boy. However, at around
3:30 a.m., Nora suffered profuse bleeding inside her womb due to some parts of the placenta which
were not completely expelled from her womb after delivery. Consequently, Nora suffered
hypovolemic shock, resulting in a drop in her blood pressure to "40" over "0." Petitioner and the
assisting resident physician performed various medical procedures to stop the bleeding and to
restore Noras blood pressure. Her blood pressure was frequently monitored with the use of a
sphygmomanometer. While petitioner was massaging Noras uterus for it to contract and stop
bleeding, she ordered a droplight to warm Nora and her baby.4 Nora remained unconscious until she
recovered.
While in the recovery room, her husband, respondent John David Z. Go noticed a fresh gaping
wound two and a half (2 ) by three and a half (3 ) inches in the inner portion of her left arm, close
to the armpit.5 He asked the nurses what caused the injury. He was informed it was a burn.
Forthwith, on April 22, 1992, John David filed a request for investigation.6 In response, Dr. Rainerio
S. Abad, the medical director of the hospital, called petitioner and the assisting resident physician to
explain what happened. Petitioner said the blood pressure cuff caused the injury.
On May 7, 1992, John David brought Nora to the National Bureau of Investigation for a physical
examination, which was conducted by medico-legal officer Dr. Floresto Arizala, Jr.7 The medico-legal
officer later testified that Noras injury appeared to be a burn and that a droplight when placed near
the skin for about 10 minutes could cause such burn.8 He dismissed the likelihood that the wound
was caused by a blood pressure cuff as the scar was not around the arm, but just on one side of the
arm.9

On May 22, 1992, Noras injury was referred to a plastic surgeon at the Dr. Jesus Delgado Memorial
Hospital for skin grafting.10 Her wound was covered with skin sourced from her abdomen, which
consequently bore a scar as well. About a year after, on April 30, 1993, scar revision had to be
performed at the same hospital.11 The surgical operation left a healed linear scar in Noras left arm
about three inches in length, the thickest portion rising about one-fourth (1/4) of an inch from the
surface of the skin. The costs of the skin grafting and the scar revision were shouldered by the
hospital.12
Unfortunately, Noras arm would never be the same. Aside from the unsightly mark, the pain in her
left arm remains. When sleeping, she has to cradle her wounded arm. Her movements now are also
restricted. Her children cannot play with the left side of her body as they might accidentally bump the
injured arm, which aches at the slightest touch.
1a\^/phi 1.net

Thus, on June 21, 1993, respondent spouses filed a complaint13 for damages against petitioner, Dr.
Abad, and the hospital. Finding in favor of respondent spouses, the trial court decreed:
In view of the foregoing consideration, judgment is hereby rendered in favor of the plaintiffs and
against the defendants, directing the latters, (sic) jointly and severally
(a) to pay the sum of Five Hundred Thousand Pesos (P500,000.00) in moral damages;
(b) to pay the sum of One Hundred Fifty Thousand Pesos (P150,000.00) exemplary
damages;
(c) to pay the sum of Eighty Thousand Pesos (P80,000.00) nominal damages;
(d) to pay Fifty Thousand Pesos (P50,000.00) for and as attorneys fees; and
(e) to pay Six Thousand Pesos (P6,000.00) litigation expenses.
SO ORDERED.14
Petitioner, Dr. Abad, and the hospital all appealed to the Court of Appeals, which affirmed with
modification the trial court decision, thus:
WHEREFORE, in view of all the foregoing, and finding no reversible error in the appealed Decision
dated March 3, 1997 of Branch 98 of the Regional Trial Court of Quezon City in Civil Case No. Q-9316562, the same is hereby AFFIRMED, with the following MODIFICATIONS:
1. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay plaintiffs-appellees
John David Go and Nora S. Go the sum of P200,000.00 as moral damages;
2. Deleting the award [of] exemplary damages, attorneys fees and expenses of litigation;

1aw phi 1.nt

3. Dismissing the complaint with respect to defendants-appellants Dr. Rainerio S. Abad and
Delgado Clinic, Inc.;
4. Dismissing the counterclaims of defendants-appellants for lack of merit; and
5. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay the costs.

SO ORDERED.15
Petitioners motion for reconsideration was denied by the Court of Appeals. Hence, the instant
petition assigning the following as errors and issues:
I.
WHETHER OR NOT, THE LOWER COURT, AND THE COURT OF APPEALS COMMITTED
GRAVE ABUSE OF THEIR DISCRETION WHEN, NOTWITHSTANDING THAT BOTH PARTIES
HAVE RESTED THEIR RESPECTIVE CASES, THE LOWER COURT ADMITTED THE
ADDITIONAL EXHIBITS FURTHER OFFERED BY RESPONDENTS NOT TESTIFIED TO BY ANY
WITNESS AND THIS DECISION OF THE LOWER COURT WAS UPHELD BY THE COURT OF
APPEALS LIKEWISE COMMITTING GRAVE ABUSE OF DISCRETION;
II.
WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF ITS DISCRETION
WHEN, CONTRARY TO PREPONDERANCE OF EVIDENCE PRESENTED BY THE PETITIONER,
IT RULED THAT THE PETITIONER HAS NOT AMPLY SHOWED THAT THE DROPLIGHT DID
NOT TOUCH THE BODY OF MRS. NORA GO, AND THIS DECISION OF THE LOWER COURT
WAS UPHELD BY THE COURT OF APPEALS LIKEWISE COMMITTING GRAVE ABUSE OF
DISCRETION;
III.
WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF ITS DISCRETION
WHEN, CONTRARY TO PREPONDERANCE OF EVIDENCE PRESENTED BY THE PETITIONER,
IT RULED THAT PETITIONER DRA. CANTRE WAS NOT ABLE TO AMPLY EXPLAIN HOW THE
INJURY (BLISTERS) IN THE LEFT INNER ARM OF RESPONDENT MRS. GO CAME ABOUT;
IV.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF ITS
DISCRETION WHEN IT MADE A RULING ON THE RESPONDENTS INJURY QUOTING THE
TESTIMONY OF SOMEONE WHO WAS NOT PRESENT AND HAS NOT SEEN THE ORIGINAL,
FRESH INJURY OF RESPONDENT MRS. NORA GO;
V.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ABUSING ITS DISCRETION RULED
THAT PETITIONER DRA. CANTRE SHOULD HAVE INTENDED TO INFLICT THE INJURY TO
SAVE THE LIFE OF RESPONDENT MRS. GO;
VI.
WHETHER OR NOT THE LOWER COURT AND THE COURT [OF] APPEALS COMMITTED
GRAVE ABUSE OF DISCRETION WHEN, CONTRARY TO THE DETAILED PROCEDURES DONE
BY PETITIONER, BOTH RULED THAT THE RESPONDENT WAS LEFT TO THE CARE OF THE
NURSING STAFF;
VII.

WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF DISCRETION

WHEN, CONTRARY TO THE MEDICAL PURPOSES OF COSMETIC SURGERY, IT RULED THAT
THE COSMETIC SURGERY MADE THE SCARS EVEN MORE UGLY AND DECLARED THE
COSMETIC SURGERY A FAILURE;
VIII.
WHETHER OR NOT THE LOWER COURT GRAVELY ABUSE OF (SIC) DISCRETION WHEN,
CONTRARY TO RESPONDENTS CONTRARY TESTIMONIES AND THE ABSENCE OF ANY
TESTIMONY, IT RULED THAT THEY ARE ENTITLED TO DAMAGES AND WHICH WAS UPHELD,
ALTHOUGH MODIFIED, BY THE COURT OF APPEALS LIKEWISE ABUSING ITS DISCRETION.16
Petitioner contends that additional documentary exhibits not testified to by any witness are
inadmissible in evidence because they deprived her of her constitutional right to confront the
witnesses against her. Petitioner insists the droplight could not have touched Noras body. She
maintains the injury was due to the constant taking of Noras blood pressure. Petitioner also
insinuates the Court of Appeals was misled by the testimony of the medico-legal officer who never
saw the original injury before plastic surgery was performed. Finally, petitioner stresses that plastic
surgery was not intended to restore respondents injury to its original state but rather to prevent
further complication.
Respondents, however, counter that the genuineness and due execution of the additional
documentary exhibits were duly admitted by petitioners counsel. Respondents point out that
petitioners blood pressure cuff theory is highly improbable, being unprecedented in medical history
and that the injury was definitely caused by the droplight. At any rate, they argue, even if the injury
was brought about by the blood pressure cuff, petitioner was still negligent in her duties as Noras
attending physician.
Simply put, the threshold issues for resolution are: (1) Are the questioned additional exhibits
admissible in evidence? (2) Is petitioner liable for the injury suffered by respondent Nora Go?
Thereafter, the inquiry is whether the appellate court committed grave abuse of discretion in its
assailed issuances.
As to the first issue, we agree with the Court of Appeals that said exhibits are admissible in
evidence. We note that the questioned exhibits consist mostly of Noras medical records, which were
produced by the hospital during trial pursuant to a subpoena duces tecum. Petitioners counsel
admitted the existence of the same when they were formally offered for admission by the trial court.
In any case, given the particular circumstances of this case, a ruling on the negligence of petitioner
may be made based on the res ipsa loquitur doctrine even in the absence of such additional exhibits.
Petitioners contention that the medico-legal officer who conducted Noras physical examination
never saw her original injury before plastic surgery was performed is without basis and contradicted
by the records. Records show that the medico-legal officer conducted the physical examination on
May 7, 1992, while the skin grafting and the scar revision were performed on Nora on May 22, 1992
and April 30, 1993, respectively.
Coming now to the substantive matter, is petitioner liable for the injury suffered by respondent Nora
Go?
The Hippocratic Oath mandates physicians to give primordial consideration to the well-being of their
patients. If a doctor fails to live up to this precept, he is accountable for his acts. This
notwithstanding, courts face a unique restraint in adjudicating medical negligence cases because

physicians are not guarantors of care and, they never set out to intentionally cause injury to their
patients. However, intent is immaterial in negligence cases because where negligence exists and is
proven, it automatically gives the injured a right to reparation for the damage caused.17
In cases involving medical negligence, the doctrine of res ipsa loquitur allows the mere existence of
an injury to justify a presumption of negligence on the part of the person who controls the instrument
causing the injury, provided that the following requisites concur:
1. The accident is of a kind which ordinarily does not occur in the absence of someones
negligence;
2. It is caused by an instrumentality within the exclusive control of the defendant or
defendants; and
3. The possibility of contributing conduct which would make the plaintiff responsible is
eliminated.18
As to the first requirement, the gaping wound on Noras arm is certainly not an ordinary occurrence
in the act of delivering a baby, far removed as the arm is from the organs involved in the process of
giving birth. Such injury could not have happened unless negligence had set in somewhere.
Second, whether the injury was caused by the droplight or by the blood pressure cuff is of no
moment. Both instruments are deemed within the exclusive control of the physician in charge under
the "captain of the ship" doctrine. This doctrine holds the surgeon in charge of an operation liable for
the negligence of his assistants during the time when those assistants are under the surgeons
control.19 In this particular case, it can be logically inferred that petitioner, the senior consultant in
charge during the delivery of Noras baby, exercised control over the assistants assigned to both the
use of the droplight and the taking of Noras blood pressure. Hence, the use of the droplight and the
blood pressure cuff is also within petitioners exclusive control.
Third, the gaping wound on Noras left arm, by its very nature and considering her condition, could
only be caused by something external to her and outside her control as she was unconscious while
in hypovolemic shock. Hence, Nora could not, by any stretch of the imagination, have contributed to
her own injury.
Petitioners defense that Noras wound was caused not by the droplight but by the constant taking of
her blood pressure, even if the latter was necessary given her condition, does not absolve her from
liability. As testified to by the medico-legal officer, Dr. Arizala, Jr., the medical practice is to deflate
the blood pressure cuff immediately after each use. Otherwise, the inflated band can cause injury to
the patient similar to what could have happened in this case. Thus, if Noras wound was caused by
the blood pressure cuff, then the taking of Noras blood pressure must have been done so
negligently as to have inflicted a gaping wound on her arm,20 for which petitioner cannot escape
liability under the "captain of the ship" doctrine.
Further, petitioners argument that the failed plastic surgery was not intended as a cosmetic
procedure, but rather as a measure to prevent complication does not help her case. It does not
negate negligence on her part.
Based on the foregoing, the presumption that petitioner was negligent in the exercise of her
profession stands unrebutted. In this connection, the Civil Code provides:

ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence,
is obliged to pay for the damage done.
ART. 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though
incapable of pecuniary computation, moral damages may be recovered if they are the proximate
result of the defendants wrongful act or omission.
Clearly, under the law, petitioner is obliged to pay Nora for moral damages suffered by the latter as a
proximate result of petitioners negligence.
We note, however, that petitioner has served well as Noras obstetrician for her past three
successful deliveries. This is the first time petitioner is being held liable for damages due to
negligence in the practice of her profession. The fact that petitioner promptly took care of Noras
wound before infection and other complications set in is also indicative of petitioners good
intentions. We also take note of the fact that Nora was suffering from a critical condition when the
injury happened, such that saving her life became petitioners elemental concern. Nonetheless, it
should be stressed that all these could not justify negligence on the part of petitioner.
Hence, considering the specific circumstances in the instant case, we find no grave abuse of
discretion in the assailed decision and resolution of the Court of Appeals. Further, we rule that the
Court of Appeals award of Two Hundred Thousand Pesos (P200,000) as moral damages in favor of
respondents and against petitioner is just and equitable.21
WHEREFORE, the petition is DENIED. The Decision dated October 3, 2002 and Resolution dated
November 19, 2003 of the Court of Appeals in CA-G.R. CV No. 58184 are AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
LEONARDO A. QUISUMBING
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
CONCHITA CARPIO MORALES
Associate Justice

DANTE O. TINGA
Asscociate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice

Footnotes
1

Rollo, pp. 43-68.

Id. at 40-41.

Records, pp. 218-227.

TSN, December 5, 1995, pp. 54-55.

TSN, June 25, 1996, p. 9.

Exhibit "A," folder of exhibits, p. 1.

TSN, September 16, 1994, p. 6; Exhibit "D," folder of exhibits, p. 7.

TSN, September 12, 1995, pp. 13-16.

Id. at 23.

10

Exhibit "L," folder of exhibits, p. 42.

11

TSN, January 31, 1994, pp. 35-36.

12

TSN, April 29, 1994, p. 16; TSN, June 25, 1996, p. 23.

13

Records, pp. 1-6.

14

Id. at 227.

15

Rollo, p. 67.

16

Id. at 169-171.

17

Ramos v. Court of Appeals, G.R. No. 124354, December 29, 1999, 321 SCRA 584, 628.

18

Id. at 600.

19

Blacks Law Dictionary 192, (5th ed., 1979).

20

TSN, September 16, 1994, pp. 27-28.

21

See Child Learning Center, Inc. v. Tagorio, G.R. No. 150920, November 25, 2005, 476
SCRA 236, 240.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

Supreme Court
Manila
THIRD DIVISION

PHILIPPINE HAWK
CORPORATION,
Petitioner,

-versus-

G.R. No. 166869

Present:
CORONA, J., Chairperson,
VELASCO, JR.,
NACHURA,
PERALTA, and
MENDOZA, JJ.
Promulgated:
February 16, 2010

VIVIAN TAN LEE,

Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION
PERALTA, J.:

This is a Petition for Review on Certiorari[1] of the Decision of the Court of

Appeals in CA-G.R. CV No. 70860, promulgated on August 17, 2004, affirming
with modification the Decision of the Regional Trial Court (RTC) of Quezon City,
Branch 102, dated March 16, 2001, in Civil Case No. Q-91-9191, ordering
petitioner Philippine Hawk Corporation and Margarito Avila to jointly and
severally pay respondent Vivian Tan Lee damages as a result of a vehicular
accident.
The facts are as follows:

On March 15, 2005, respondent Vivian Tan Lee filed before the RTC of
Quezon City a Complaint[2] against petitioner Philippine Hawk Corporation and
defendant Margarito Avila for damages based on quasi-delict, arising from a
vehicular accident that occurred on March 17, 1991 in Barangay Buensoceso,
Gumaca, Quezon. The accident resulted in the death of respondents husband,
Silvino Tan, and caused respondent physical injuries.
On June 18, 1992, respondent filed an Amended Complaint,[3] in her own
behalf and in behalf of her children, in the civil case for damages against
petitioner. Respondent sought the payment of indemnity for the death of Silvino
Tan, moral and exemplary damages, funeral and interment expenses, medical and
hospitalization expenses, the cost of the motorcycles repair, attorneys fees, and
other just and equitable reliefs.
The accident involved a motorcycle, a passenger jeep, and a bus with Body
No. 119. The bus was owned by petitioner Philippine Hawk Corporation, and was
then being driven by Margarito Avila.
In its Answer,[4] petitioner denied liability for the vehicular accident,
alleging that the immediate and proximate cause of the accident was the
recklessness or lack of caution of Silvino Tan. Petitioner asserted that it exercised
the diligence of a good father of the family in the selection and supervision of its
employees, including Margarito Avila.
On March 25, 1993, the trial court issued a Pre-trial Order[5] stating that the
parties manifested that there was no possibility of amicable settlement between
them.However, they agreed to stipulate on the following facts:
1. On March 17, 1991, in Bgy. Buensoceso, Gumaca, Quezon, plaintiff Vivian
Lee Tan and her husband Silvino Tan, while on board a motorcycle with
[P]late No. DA-5480 driven by the latter, and a Metro Bus with [P]late No.
NXR-262 driven by Margarito Avila, were involved in an accident;
2. As a result of the accident, Silvino Tan died on the spot while plaintiff Vivian
Lee Tan suffered physical injuries which necessitated medical attention and
hospitalization;
3. The deceased Silvino Tan is survived by his wife, plaintiff Vivian Lee Tan
and four children, three of whom are now residents of the United States; and
4. Defendant Margarito Avila is an employee of defendant Philippine Hawk.[6]

The parties also agreed on the following issues:

1. Whether or not the proximate cause of the accident causing physical injuries
upon the plaintiff Vivian Lee Tan and resulting in the death of the latters
husband was the recklessness and negligence of Margarito Avila or the
deceased Silvino Tan; and
2. Whether or not defendant Philippine Hawk Transport Corporation exercised
the diligence of a good father of the family in the selection and supervision of
[7]
its driver Margarito Avila.

Respondent testified that on March 17, 1991, she was riding on

their motorcycle in tandem with her husband, who was on the wheel, at a place
after a Caltex gasoline station in Barangay Buensoceso, Gumaca, Quezon on the
way to Lopez, Quezon. They came from the Pasumbal Machine Shop, where they
inquired about the repair of their tanker. They were on a stop position at the side of
the highway; and when they were about to make a turn, she saw a bus running at
fast speed coming toward them, and then the bus hit a jeep parked on the roadside,
and their motorcycle as well. She lost consciousness and was brought to the
hospital in Gumaca, Quezon, where she was confined for a week. She was later
transferred to St. Lukes Hospital in Quezon City, Manila. She suffered a fracture
on her left chest, her left arm became swollen, she felt pain in her bones, and had
high blood pressure.[8]
Respondents husband died due to the vehicular accident. The immediate
cause of his death was massive cerebral hemorrhage.[9]
Respondent further testified that her husband was leasing[10] and operating a
Caltex gasoline station in Gumaca, Quezon that yielded one million pesos a year in
revenue. They also had a copra business, which gave them an income of P3,000.00
a month or P36,000.00 a year.[11]
Ernest Ovial, the driver of the passenger jeep involved in the accident,
testified that in the afternoon of March 17, 1991, his jeep was parked on the left
side of the highway near the Pasumbal Machine Shop. He did not notice the
motorcycle before the accident. But he saw the bus dragging the motorcycle along
the highway, and then the bus bumped his jeep and sped away.[12]

For the defense, Margarito Avila, the driver of petitioners bus, testified that
on March 17, 1999, at about 4:30 p.m., he was driving his bus at 60 kilometers per
hour on theMaharlika Highway. When they were at Barangay Buensoceso,
Gumaca, Quezon, a motorcycle ran from his left side of the highway, and as the
bus came near, the motorcycle crossed the path of the bus, and so he turned the bus
to the right. He heard a loud banging sound. From his side mirror, he saw that the
motorcycle turned turtle (bumaliktad). He did not stop to help out of fear for his
life, but drove on and surrendered to the police. He denied that he bumped the
motorcycle.[13]
Avila further testified that he had previously been involved in sideswiping
incidents, but he forgot how many times.[14]
Rodolfo Ilagan, the bus conductor, testified that the motorcycle bumped the
left side of the bus that was running at 40 kilometers per hour.[15]
Domingo S. Sisperes, operations officer of petitioner, testified that, like their
other drivers, Avila was subjected to and passed the following requirements:
(1) Submission of NBI clearance;
(2) Certification from his previous employer that he had no bad record;
(3) Physical examination to determine his fitness to drive;
(4) Test of his driving ability, particularly his defensive skill; and
(5) Review of his driving skill every six months.[16]

Efren Delantar, a Barangay Kagawad in Buensoceso, Gumaca, Quezon,

testified that the bus was running on the highway on a straight path when a
motorcycle, with a woman behind its driver, suddenly emerged from the left side
of the road from a machine shop. The motorcycle crossed the highway in a zigzag
manner and bumped the side of the bus.[17]
In its Decision dated March 16, 2001, the trial court rendered judgment
against petitioner and defendant Margarito Avila, the dispositive portion of which
reads:

ACCORDINGLY, MARGARITO AVILA is adjudged guilty of simple

negligence, and judgment is hereby rendered in favor of the plaintiff Vivian Lee
Tan and h[er] husbands heirsordering the defendants Philippine Hawk
Corporation and Margarito Avila to pay them jointly and solidarily the sum
of P745,575.00 representing loss of earnings and actual damages plus P50,000.00
[18]
as moral damages.

The trial court found that before the collision, the motorcycle was on the left
side of the road, just as the passenger jeep was. Prior to the accident, the
motorcycle was in a running position moving toward the right side of the highway.
The trial court agreed with the bus driver that the motorcycle was moving ahead of
the bus from the left side of the road toward the right side of the road, but
disagreed that the motorcycle crossed the path of the bus while the bus was
running on the right side of the road.[19]
The trial court held that if the bus were on the right side of the highway, and
Margarito Avila turned his bus to the right in an attempt to avoid hitting the
motorcyle, then the bus would not have hit the passenger jeep, which was then
parked on the left side of the road. The fact that the bus also hit the passenger jeep
showed that the bus must have been running from the right lane to the left lane of
the highway, which caused the collision with the motorcycle and the passenger
jeep parked on the left side of the road. The trial court stated that since Avila saw
the motorcycle before the collision, he should have stepped on the brakes and
slowed down, but he just maintained his speed and veered to the left. [20] The trial
court found Margarito Avila guilty of simple negligence.
The trial court held petitioner bus company liable for failing to exercise the
diligence of a good father of the family in the selection and supervision of Avila,
having failed to sufficiently inculcate in him discipline and correct behavior on the
road.[21]
On appeal, the Court of Appeals affirmed the decision of the trial court with
modification in the award of damages. The dispositive portion of the decision
reads:

WHEREFORE, foregoing premises considered, the appeal is

DENIED. The assailed decision dated March 16, 2001 is hereby AFFIRMED
with MODIFICATION. Appellants Philippine Hawk and Avila are hereby
ordered to pay jointly and severally appellee the following
amount: (a) P168,019.55 as actual damages; (b) P10,000.00 as temperate
damages; (c) P100,000.00 as moral damages; (d) P590,000.00 as unearned
[22]
income; and (e) P50,000.00 as civil indemnity.

Petitioner filed this petition, raising the following issues:

1) The Court of Appeals committed grave abuse of discretion amounting to
lack of jurisdiction in passing upon an issue, which had not been raised
on appeal, and which had, therefore, attained finality, in total disregard of
the doctrine laid down by this Court in Abubakar v. Abubakar, G.R. No.
134622, October 22, 1999.
2) The Court of Appeals committed reversible error in its finding that the
petitioners bus driver saw the motorcycle of private respondent executing
a U-turn on the highway about fifteen (15) meters away and thereafter
held that the Doctrine of Last Clear was applicable to the instant
case. This was a palpable error for the simple reason that the aforesaid
distance was the distance of the witness to the bus and not the distance of
the bus to the respondents motorcycle, as clearly borne out by the
records.
3) The Court of Appeals committed reversible error in awarding damages in
total disregard of the established doctrine laid down in Danao v. Court of
Appeals, 154 SCRA 447 and Viron Transportation Co., Inc. v. Delos
Santos, G.R. No. 138296, November 22, 2000.[23]

In short, the issues raised by petitioner are: (1) whether or not negligence
may be attributed to petitioners driver, and whether negligence on his part was the
proximate cause of the accident, resulting in the death of Silvino Tan and causing
physical injuries to respondent; (2) whether or not petitioner is liable to
respondent for damages; and (3) whether or not the damages awarded by
respondent Court of Appeals are proper.

Petitioner seeks a review of the factual findings of the trial court, which
were sustained by the Court of Appeals, that petitioners driver was negligent in
driving the bus, which caused physical injuries to respondent and the death of
respondents husband.
The rule is settled that the findings of the trial court, especially when
affirmed by the Court of Appeals, are conclusive on this Court when supported by
the evidence on record.[24] The Court has carefully reviewed the records of this
case, and found no cogent reason to disturb the findings of the trial court, thus:
The Court agree[s] with the bus driver Margarito that the motorcycle was
moving ahead of the bus towards the right side from the left side of the road, but
disagrees with him that itcrossed the path of the bus while the bus was running on
the right side of the highway.
If the bus were on the right side of the highway and Margarito turned his
bus to the right in an attempt to avoid hitting it, then the bus would not have hit
the passenger jeep vehicle which was then parked on the left side of the road. The
fact that the bus hit the jeep too, shows that the bus must have been running to the
left lane of the highway from right to the left, that the collision between it and the
parked jeep and the moving rightways cycle became inevitable. Besides,
Margarito said he saw the motorcycle before the collision ahead of the bus; that
being so, an extra-cautious public utility driver should have stepped on his brakes
and slowed down. Here, the bus never slowed down, it simply maintained its
highway speed and veered to the left. This is negligence indeed.[25]

Petitioner contends that the Court of Appeals was mistaken in stating that
the bus driver saw respondents motorcycle about 15 meters away before the
collision, because the said distance, as testified to by its witness Efren Delantar
Ong, was Ongs distance from the bus, and not the distance of the bus from the
motorcycle. Petitioner asserts that this mistaken assumption of the Court of
Appeals made it conclude that the bus driver, Margarito Avila, had the last clear
chance to avoid the accident, which was the basis for the conclusion that Avila was
guilty of simple negligence.
A review of the records showed that it was petitioners witness, Efren
Delantar Ong, who was about 15 meters away from the bus when he saw the
vehicular accident.[26]Nevertheless, this fact does not affect the finding of the trial
court that petitioners bus driver, Margarito Avila, was guilty of simple negligence
as affirmed by the appellate court. Foreseeability is the fundamental test of

negligence.[27] To be negligent, a defendant must have acted or failed to act in such

a way that an ordinary reasonable man would have realized that certain interests of
certain persons were unreasonably subjected to a general but definite class of
risks.[28]
In this case, the bus driver, who was driving on the right side of the road,
already saw the motorcycle on the left side of the road before the
collision. However, he did not take the necessary precaution to slow down, but
drove on and bumped the motorcycle, and also the passenger jeep parked on the
left side of the road, showing that the bus was negligent in veering to the left lane,
causing it to hit the motorcycle and the passenger jeep.
Whenever an employees negligence causes damage or injury to another,
there instantly arises a presumption that the employer failed to exercise the due
diligence of a good father of the family in the selection or supervision of its
employees.[29] To avoid liability for a quasi-delict committed by his employee, an
employer must overcome the presumption by presenting convincing proof that he
exercised the care and diligence of a good father of a family in the selection and
supervision of his employee.[30]
The Court upholds the finding of the trial court and the Court of
Appeals that petitioner is liable to respondent, since it failed to exercise the
diligence of a good father of the family in the selection and supervision of its bus
driver, Margarito Avila, for having failed to sufficiently inculcate in him discipline
and correct behavior on the road. Indeed, petitioners tests were concentrated on the
ability to drive and physical fitness to do so. It also did not know that Avila had
been previously involved in sideswiping incidents.
As regards the issue on the damages awarded, petitioner contends that it was
the only one that appealed the decision of the trial court with respect to the award
of actual and moral damages; hence, the Court of Appeals erred in awarding other
kinds of damages in favor of respondent, who did not appeal from the trial courts
decision.
Petitioners contention is unmeritorious.
Section 8, Rule 51 of the 1997 Rules of Civil Procedure provides:

SEC. 8. Questions that may be decided. -- No error which does not affect
the jurisdiction over the subject matter or the validity of the judgment appealed
from or the proceedings therein will be considered unless stated in the assignment
of errors, or closely related to or dependent on an assigned error and properly
argued in the brief, save as the court pass upon plain errors and clerical errors.

Philippine National Bank v. Rabat[31] cited the book[32] of Justice Florenz D.

Regalado to explain the section above, thus:
In his book, Mr. Justice Florenz D. Regalado commented on this section,
thus:
1. Sec. 8, which is an amendment of the former Sec. 7 of this Rule, now
includes some substantial changes in the rules on assignment of errors. The basic
procedural rule is that only errors claimed and assigned by a party will be
considered by the court, except errors affecting its jurisdiction over the subject
matter. To this exception has now been added errors affecting the validity of the
judgment appealed from or the proceedings therein.
Also, even if the error complained of by a party is not expressly stated in
his assignment of errors but the same is closely related to or dependent on an
assigned error and properly argued in his brief, such error may now be considered
by the court. These changes are of jurisprudential origin.
2. The procedure in the Supreme Court being generally the same as
that in the Court of Appeals, unless otherwise indicated (see Secs. 2 and 4,
Rule 56), it has been held that the latter is clothed with ample authority to
review matters, even if they are not assigned as errors on appeal, if it finds
that their consideration is necessary in arriving at a just decision of the
case. Also, an unassigned error closely related to an error properly assigned
(PCIB vs. CA, et al., L-34931, Mar. 18, 1988), or upon which the determination of
the question raised by error properly assigned is dependent, will be considered by
the appellate court notwithstanding the failure to assign it as error (Ortigas, Jr. vs.
Lufthansa German Airlines, L-28773, June 30, 1975; Soco vs. Militante, et
al., G.R. No. 58961, June 28, 1983).
It may also be observed that under Sec. 8 of this Rule, the appellate court
is authorized to consider a plain error, although it was not specifically assigned by
the appellant (Dilag vs. Heirs of Resurreccion, 76 Phil. 649), otherwise it would
be sacrificing substance for technicalities.[33]

In this case for damages based on quasi-delict, the trial court awarded
respondent the sum of P745,575.00, representing loss of earning capacity

(P590,000.00) and actual damages (P155,575.00 for funeral expenses),

plus P50,000.00 as moral damages. On appeal to the Court of Appeals, petitioner
assigned as error the award of damages by the trial court on the ground that it was
based merely on suppositions and surmises, not the admissions made by
respondent during the trial.
In its Decision, the Court of Appeals sustained the award by the trial court
for loss of earning capacity of the deceased Silvino Tan, moral damages for his
death, and actual damages, although the amount of the latter award was modified.
The indemnity for loss of earning capacity of the deceased is provided for by
Article 2206 of the Civil Code.[34] Compensation of this nature is awarded not for
loss of earnings, but for loss of capacity to earn money.[35]
As a rule, documentary evidence should be presented to substantiate the
claim for damages for loss of earning capacity.[36] By way of exception, damages
for loss of earning capacity may be awarded despite the absence of documentary
evidence when: (1) the deceased is self-employed and earning less than the
minimum wage under current labor laws, in which case, judicial notice may be
taken of the fact that in the deceased's line of work no documentary evidence is
available; or (2) the deceased is employed as a daily wage worker earning less than
the minimum wage under current labor laws.[37]
In this case, the records show that respondents husband was leasing and
operating a Caltex gasoline station in Gumaca, Quezon. Respondent testified that
her husband earned an annual income of one million pesos. Respondent presented
in evidence a Certificate of Creditable Income Tax Withheld at Source for the Year
1990,[38] which showed that respondents husband earned a gross income of
P950,988.43 in 1990. It is reasonable to use the Certificate and respondents
testimony as bases for fixing the gross annual income of the deceased at one
million pesos before respondents husband died on March 17, 1999. However, no
documentary evidence was presented regarding the income derived from their
copra business; hence, the testimony of respondent as regards such income cannot
be considered.

In the computation of loss of earning capacity, only net earnings, not gross
earnings, are to be considered; that is, the total of the earnings less expenses
necessary for the creation of such earnings or income, less living and other
incidental expenses.[39] In the absence of documentary evidence, it is reasonable to
peg necessary expenses for the lease and operation of the gasoline station at 80
percent of the gross income, and peg living expenses at 50 percent of the net
income (gross income less necessary expenses).
In this case, the computation for loss of earning capacity is as follows:
Net Earning = Life Expectancy x Gross Annual Income Reasonable and
Capacity [2/3 (80-age at the (GAI) Necessary
time of death)] Expenses
(80% of GAI)
X = [2/3 (80-65)] x P1,000,000.00 - P800,000.00
X = 2/3 (15) x P200,000.00 - P100,000.00
(Living Expenses)
X = 30/3 x P100,000.00
X = 10 x P100,000.00
X = P1,000,000.00

The Court of Appeals also awarded actual damages for the expenses
incurred in connection with the death, wake, and interment of respondents husband
in the amount of P154,575.30, and the medical expenses of respondent in the
amount of P168,019.55.
Actual damages must be substantiated by documentary evidence, such as
receipts, in order to prove expenses incurred as a result of the death of the
victim[40] or the physical injuries sustained by the victim. A review of the valid
receipts submitted in evidence showed that the funeral and related expenses
amounted
only
to P114,948.60, while
the
medical
expenses
of
respondent amounted only to P12,244.25, yielding a total of P127,192.85 in actual
damages.
Moreover, the Court of Appeals correctly sustained the award of moral
damages in the amount of P50,000.00 for the death of respondents husband. Moral
damages are not intended to enrich a plaintiff at the expense of the
defendant.[41] They are awarded to allow the plaintiff to obtain means, diversions or

amusements that will serve to alleviate the moral suffering he/she has undergone
due to the defendants culpable action and must, perforce, be proportional to the
suffering inflicted.[42]
In addition, the Court of Appeals correctly awarded temperate damages in
the amount of P10,000.00 for the damage caused on respondents motorcycle.
Under Art. 2224 of the Civil Code, temperate 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. The cost of the repair of the
motorcycle was prayed for by respondent in her Complaint. However, the evidence
presented was merely a job estimate[43] of the cost of the motorcycles repair
amounting to P17, 829.00. The Court of Appeals aptly held that there was no doubt
that the damage caused on the motorcycle was due to the negligence of petitioners
driver. In the absence of competent proof of the actual damage caused on the
motorcycle or the actual cost of its repair, the award of temperate damages by the
appellate court in the amount of P10,000.00 was reasonable under the
circumstances.[44]
The Court of Appeals also correctly awarded respondent moral damages for
the physical injuries she sustained due to the vehicular accident. Under Art. 2219
of the Civil Code,[45] moral damages may be recovered in quasi-delicts causing
physical injuries. However, the award of P50,000.00 should be reduced
to P30,000.00 in accordance with prevailing jurisprudence.[46]
Further, the Court of Appeals correctly awarded respondent civil indemnity
for the death of her husband, which has been fixed by current jurisprudence
at P50,000.00.[47]The award is proper under Art. 2206 of the Civil Code.[48]
In fine, the Court of Appeals correctly awarded civil indemnity for the death
of respondents husband, temperate damages, and moral damages for the physical
injuries sustained by respondent in addition to the damages granted by the trial
court to respondent. The trial court overlooked awarding the additional damages,
which were prayed for by respondent in her Amended Complaint. The appellate
court is clothed with ample authority to review matters, even if they are not
assigned as errors in the appeal, if it finds that their consideration is necessary in
arriving at a just decision of the case.[49]

WHEREFORE, the petition is DENIED. The Decision of the Court of

Appeals dated August 17, 2004 in CA-G.R. CV No. 70860 is
hereby AFFIRMED with MODIFICATION. Petitioner
Philippine
Hawk
Corporation and Margarito Avila are hereby ordered to pay jointly and severally
respondent Vivian Lee Tan: (a) civil indemnity in the amount of Fifty Thousand
Pesos (P50,000.00); (b) actual damages in the amount of One Hundred TwentySeven Thousand One Hundred Ninety-Two Pesos and Eighty-Five Centavos
( P127,192.85); (c) moral damages in the amount of Eighty Thousand Pesos
(P80,000.00); (d) indemnity for loss of earning capacity in the amount of
One Million Pesos (P1,000,000.00); and (e) temperate damages in the amount of
Ten Thousand Pesos (P10,000.00).
Costs against petitioner.
SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

RENATO C. CORONA
Associate Justice
Chairperson

PRESBITERO J. VELASCO, JR.

Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONA
Associate Justice
Third Division, Chairperson

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified
that the conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

[1]

Under Rule 45 of the Rules of Court.

Records, p. 1.
[3]
Id. at 38.
[4]
Id. at 54.
[5]
Id. at 80.
[6]
Supra note 2, at 80.
[7]
Id.
[8]
TSN, April 26, 1994, pp. 6-7, 14 and 22; May 11, 1994, pp. 14-15.
[9]
Death Certificate, Exhibit B, folder of exhibits, p. 3.
[10]
Annex C, folder of exhibits, p.11.
[11]
TSN, April 26, 1994, pp. 12-13.
[12]
TSN, March 16, 1995, pp. 4-6.
[13]
TSN, February 13, 1996, pp. 5-11, 18-19 and 23; September 10, 1996, pp. 7, 10, 12 and 14.
[14]
TSN, September 10, 1996, pp. 3-4.
[15]
TSN, October 22, 1996, p. 5.
[16]
TSN, January 14, 1997, pp. 5-18.
[17]
TSN, July 8, 1997, p. 5.
[18]
Record, p. 209.
[19]
Supra note 18, at 208.
[20]
Id.
[21]
Id.
[22]
Rollo p. 32.
[23]
Id. at 8-9.
[24]
Viron Transportation Co., Inc. v. Delos Santos, G.R. No. 138296, November 22, 2000, 345 SCRA 509.
[25]
Supra note 18, at 208.
[26]
TSN, July 8, 1997, p. 27.
[27]
Achevara v. Ramos, G.R. No. 175172, September 29, 2009.
[28]
Id.
[29]
Macalinao v. Ong, G.R. No. 146635, December 14, 2005, 477 SCRA 740.
[30]
Id.
[31]
G.R. No. 134406, November 15, 2000, 344 SCRA 706.
[32]
Remedial Law Compendium, Vol. I, 582-583 (Sixth Revised Edition, 1997).
[33]
Supra note 31, at 715.
[34]
Civil Code, Art. 2206. xxxx
(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity
shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court,
unless the deceased on account of permanent physical disability not caused by the defendant, had no earning
capacity at the time of his death;
xxxx
[2]

[35]

Heirs of George Y. Poe v. Malayan Insurance Co., Inc., G.R. No. 156302, April 7, 2009, 584 SCRA 178.
People v. Garchitorena, G.R. No. 175605, August 28, 2009.
[37]
Supra note 36.
[38]
Exhibit J, folder of exhibits, p. 20.
[39]
Smith Bell Dodwell Shipping Agency Corporation v. Borja, G.R. No. 143008, June 10, 2002, 383 SCRA 341,
351.
[36]

[40]

People v. Ibaez, G.R. Nos. 133923-24, July 30, 2003, 407 SCRA 406.
Hernandez v. Dolor, G.R. No. 160286, July 30, 2004, 435 SCRA 668.
[42]
Id.
[43]
Exhibit M, folder of exhibits, p. 47.
[44]
See Viron Transportation Co., Inc. v. Delos Santos, supra note 24.
[45]
Art. 2219. Moral damages may be recovered in the following and analogous cases:
xxxx
(2) Quasi-delicts causing physical injuries;
xxxx
[46]
Guillang v. Bedania, G.R. No. 162987, May 21, 2009, 588 SCRA 73.
[47]
Id.; Philtranco Service Enterprises v. Court of Appeals, G.R. No. 120553, June 17, 1997, 273 SCRA 562.
[48]
Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand
pesos, even though there may have been mitigating circumstances. xxxx
[49]
Korean Airlines Co., Ltd. v. Court of Appeals, G.R. No. 114061, August 3, 1994, 234 SCRA 717.
[41]

EN BANC
DR. RUBI LI,
Petitioner,

G.R. No. 165279

Present:

- versus -

CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.

SPOUSES REYNALDO and LINA Promulgated:

SOLIMAN, as parents/heirs of
June 7, 2011
deceased Angelica Soliman,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
VILLARAMA, JR., J.:
Challenged in this petition for review on certiorari is the Decision [1] dated June 15,
2004 as well as the Resolution[2] dated September 1, 2004 of the Court of Appeals
(CA) in CA-G.R. CV No. 58013 which modified the Decision[3] dated September
5, 1997 of the Regional Trial Court of Legazpi City, Branch 8 in Civil Case No.
8904.
The factual antecedents:

On July 7, 1993, respondents 11-year old daughter, Angelica Soliman, underwent a

biopsy of the mass located in her lower extremity at the St. Lukes Medical Center
(SLMC).Results
showed
that
Angelica
was
suffering
[4]
from osteosarcoma, osteoblastic type, a high-grade (highly malignant) cancer of
the bone which usually afflicts teenage children.Following this diagnosis and as
primary intervention, Angelicas right leg was amputated by Dr. Jaime Tamayo in
order to remove the tumor. As adjuvant treatment to eliminate any remaining
cancer cells, and hence minimize the chances of recurrence and prevent the disease
from spreading to other parts of the patients body (metastasis), chemotherapy was
suggested by Dr. Tamayo. Dr. Tamayo referred Angelica to another doctor at
SLMC, herein petitioner Dr. Rubi Li, a medical oncologist.
On August 18, 1993, Angelica was admitted to SLMC. However, she died
on September 1, 1993, just eleven (11) days after the (intravenous) administration
of the first cycle of the chemotherapy regimen. Because SLMC refused to release a
death certificate without full payment of their hospital bill, respondents brought the
cadaver of Angelica to the Philippine National Police (PNP) Crime Laboratory
at Camp Crame for post-mortem examination. The Medico-Legal Report issued by
said institution indicated the cause of death as Hypovolemic shock secondary to
multiple organ hemorrhages and Disseminated Intravascular Coagulation. [5]
On the other hand, the Certificate of Death[6] issued by SLMC stated the cause of
death as follows:
Immediate cause : a. Osteosarcoma, Status Post AKA
Antecedent cause : b. (above knee amputation)
Underlying cause : c. Status Post Chemotherapy

On February 21, 1994, respondents filed a damage suit [7] against petitioner, Dr.
Leo Marbella, Mr. Jose Ledesma, a certain Dr. Arriete and SLMC. Respondents
charged them with negligence and disregard of Angelicas safety, health and
welfare by their careless administration of the chemotherapy drugs, their failure to
observe the essential precautions in detecting early the symptoms of fatal blood
platelet decrease and stopping early on the chemotherapy, which bleeding led to
hypovolemic shock that caused Angelicas untimely demise. Further, it was
specifically averred that petitioner assured the respondents that Angelica would
recover in view of 95% chance of healing with chemotherapy (Magiging normal
na ang anak nyo basta ma-chemo. 95% ang healing) and when asked regarding the
side effects, petitioner mentioned only slight vomiting, hair loss and weakness

(Magsusuka ng kaunti. Malulugas ang buhok. Manghihina). Respondents thus

claimed that they would not have given their consent to chemotherapy had
petitioner not falsely assured them of its side effects.
In her answer,[8] petitioner denied having been negligent in administering the
chemotherapy drugs to Angelica and asserted that she had fully explained to
respondents how the chemotherapy will affect not only the cancer cells but also the
patients normal body parts, including the lowering of white and red blood cells and
platelets. She claimed that what happened to Angelica can be attributed to
malignant tumor cells possibly left behind after surgery. Few as they may be, these
have the capacity to compete for nutrients such that the body becomes so weak
structurally (cachexia) and functionally in the form of lower resistance of the body
to combat infection. Such infection becomes uncontrollable and triggers a chain of
events (sepsis or septicemia) that may lead to bleeding in the form of Disseminated
Intravascular Coagulation (DIC), as what the autopsy report showed in the case of
Angelica.
Since the medical records of Angelica were not produced in court, the trial and
appellate courts had to rely on testimonial evidence, principally the declarations of
petitioner and respondents themselves. The following chronology of events was
gathered:
On July 23, 1993, petitioner saw the respondents at the hospital after Angelicas
surgery and discussed with them Angelicas condition. Petitioner told respondents
that Angelica should be given two to three weeks to recover from the operation
before starting chemotherapy. Respondents were apprehensive due to financial
constraints as Reynaldo earns only from P70,000.00 to P150,000.00 a year from
his jewelry and watch repairing business.[9] Petitioner, however, assured them not
to worry about her professional fee and told them to just save up for the medicines
to be used.
Petitioner claimed that she explained to respondents that even when a tumor
is removed, there are still small lesions undetectable to the naked eye, and that
adjuvant chemotherapy is needed to clean out the small lesions in order to lessen
the chance of the cancer to recur. She did not give the respondents any assurance
that chemotherapy will cure Angelicas cancer. During these consultations with
respondents, she explained the following side effects of chemotherapy treatment to
respondents: (1) falling hair; (2) nausea and vomiting; (3) loss of appetite; (4) low

count of white blood cells [WBC], red blood cells [RBC] and platelets; (5) possible
sterility due to the effects on Angelicas ovary; (6) damage to the heart and kidneys;
and (7) darkening of the skin especially when exposed to sunlight. She actually
talked with respondents four times, once at the hospital after the surgery, twice at
her clinic and the fourth time when Angelicas mother called her through long
distance.[10] This was disputed by respondents who countered that petitioner gave
them assurance that there is 95% chance of healing for Angelica if she undergoes
chemotherapy and that the only side effects were nausea, vomiting and hair
loss.[11] Those were the only side-effects of chemotherapy treatment mentioned by
petitioner.[12]
On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner that
she be readmitted after two or three weeks for the chemotherapy.
On August 18, 1993, respondents brought Angelica to SLMC for
chemotherapy, bringing with them the results of the laboratory tests requested by
petitioner: Angelicas chest x-ray, ultrasound of the liver, creatinine and complete
liver function tests.[13] Petitioner proceeded with the chemotherapy by first
administering hydration fluids to Angelica.[14]
The following day, August 19, petitioner began administering three
chemotherapy
drugs
Cisplatin,[15] Doxorubicin[16] and
Cosmegen[17] intravenously. Petitioner was supposedly assisted by her trainees Dr.
Leo Marbella[18] and Dr. Grace Arriete.[19] In his testimony, Dr. Marbella denied
having any participation in administering the said chemotherapy drugs.[20]
On the second day of chemotherapy, August 20, respondents noticed reddish
discoloration on Angelicas face.[21] They asked petitioner about it, but she merely
quipped, Wala yan. Epekto ng gamot.[22] Petitioner recalled noticing the skin rashes
on the nose and cheek area of Angelica. At that moment, she entertained the
possibility that Angelica also had systemic lupus and consulted Dr. Victoria
Abesamis on the matter.[23]
On the third day of chemotherapy, August 21, Angelica had difficulty
breathing and was thus provided with oxygen inhalation apparatus. This time, the
reddish discoloration on Angelicas face had extended to her neck, but petitioner
dismissed it again as merely the effect of medicines.[24] Petitioner testified that she
did not see any discoloration on Angelicas face, nor did she notice any difficulty in

the childs breathing. She claimed that Angelica merely complained of nausea and
was given ice chips.[25]
On August 22, 1993, at around ten oclock in the morning, upon seeing that
their child could not anymore bear the pain, respondents pleaded with petitioner to
stop the chemotherapy. Petitioner supposedly replied: Dapat 15 Cosmegen pa iyan.
Okay, lets observe. If pwede na, bigyan uli ng chemo. At this point, respondents
asked petitioners permission to bring their child home. Later in the evening,
Angelica passed black stool and reddish urine.[26] Petitioner countered that there
was no record of blackening of stools but only an episode of loose bowel
movement (LBM). Petitioner also testified that what Angelica complained of was
carpo-pedal spasm, not convulsion or epileptic attack, as respondents call it
(petitioner described it in the vernacular as naninigas ang kamay at paa). She then
requested for a serum calcium determination and stopped the chemotherapy. When
Angelica was given calcium gluconate, the spasm and numbness subsided.[27]
The following day, August 23, petitioner yielded to respondents request to
take Angelica home. But prior to discharging Angelica, petitioner requested for a
repeat serum calcium determination and explained to respondents that the
chemotherapy will be temporarily stopped while she observes Angelicas muscle
twitching and serum calcium level.Take-home medicines were also prescribed for
Angelica, with instructions to respondents that the serum calcium test will have to
be repeated after seven days. Petitioner told respondents that she will see Angelica
again after two weeks, but respondents can see her anytime if any immediate
problem arises.[28]
However, Angelica remained in confinement because while still in the
premises of SLMC, her convulsions returned and she also had LBM. Angelica was
given oxygen and administration of calcium continued.[29]
The next day, August 24, respondents claimed that Angelica still suffered
from convulsions. They also noticed that she had a fever and had difficulty
breathing.[30]Petitioner insisted it was carpo-pedal spasm, not convulsions. She
verified that at around 4:50 that afternoon, Angelica developed difficulty in
breathing and had fever. She then requested for an electrocardiogram analysis, and
infused calcium gluconate on the patient at a stat dose. She further ordered that
Angelica be given Bactrim,[31] a synthetic antibacterial combination drug,[32] to
combat any infection on the childs body.[33]

By August 26, Angelica was bleeding through the mouth. Respondents also
saw blood on her anus and urine. When Lina asked petitioner what was happening
to her daughter, petitioner replied, Bagsak ang platelets ng anak mo. Four units of
platelet concentrates were then transfused to Angelica. Petitioner prescribed
Solucortef. Considering that Angelicas fever was high and her white blood cell
count was low, petitioner prescribed Leucomax. About four to eight bags of blood,
consisting of packed red blood cells, fresh whole blood, or platelet concentrate,
were transfused to Angelica. For two days (August 27 to 28), Angelica continued
bleeding, but petitioner claimed it was lesser in amount and in
frequency. Petitioner also denied that there were gadgets attached to Angelica at
that time.[34]
On August 29, Angelica developed ulcers in her mouth, which petitioner
said were blood clots that should not be removed. Respondents claimed that
Angelica passed about half a liter of blood through her anus at around seven
oclock that evening, which petitioner likewise denied.
On August 30, Angelica continued bleeding. She was restless as
endotracheal and nasogastric tubes were inserted into her weakened body. An
aspiration of the nasogastric tube inserted to Angelica also revealed a bloody
content. Angelica was given more platelet concentrate and fresh whole blood,
which petitioner claimed improved her condition.Petitioner told Angelica not to
remove the endotracheal tube because this may induce further bleeding.[35] She was
also transferred to the intensive care unit to avoid infection.
The next day, respondents claimed that Angelica became hysterical, vomited
blood and her body turned black. Part of Angelicas skin was also noted to be
shredding by just rubbing cotton on it. Angelica was so restless she removed those
gadgets attached to her, saying Ayaw ko na; there were tears in her eyes and she
kept turning her head. Observing her daughter to be at the point of death, Lina
asked for a doctor but the latter could not answer her anymore.[36] At this time, the
attending physician was Dr. Marbella who was shaking his head saying that
Angelicas platelets were down and respondents should pray for their
daughter. Reynaldo claimed that he was introduced to a pediatrician who took over
his daughters case, Dr. Abesamis who also told him to pray for his daughter.
Angelica continued to have difficulty in her breathing and blood was being
suctioned from her stomach. A nurse was posted inside Angelicas room to assist
her breathing and at one point they had to revive Angelica by pumping her chest.
Thereafter, Reynaldo claimed that Angelica already experienced difficulty in

urinating and her bowel consisted of blood-like fluid. Angelica requested for an
electric fan as she was in pain. Hospital staff attempted to take blood samples from
Angelica but were unsuccessful because they could not even locate her
vein. Angelica asked for a fruit but when it was given to her, she only smelled
it. At this time, Reynaldo claimed he could not find either petitioner or Dr.
Marbella. That night, Angelica became hysterical and started removing those
gadgets attached to her. At three oclock in the morning of September 1, a priest
came and they prayed before Angelica expired. Petitioner finally came back and
supposedly told respondents that there was malfunction or bogged-down
machine.[37]
By petitioners own account, Angelica was merely irritable that day (August
31). Petitioner noted though that Angelicas skin was indeed sloughing off. [38] She
stressed that at 9:30 in the evening, Angelica pulled out her endotracheal
tube.[39] On September 1, exactly two weeks after being admitted at SLMC for
chemotherapy, Angelica died.[40]The cause of death, according to petitioner, was
septicemia, or overwhelming infection, which caused Angelicas other organs to
fail.[41] Petitioner attributed this to the patients poor defense mechanism brought
about by the cancer itself.[42]
While he was seeking the release of Angelicas cadaver from SLMC,
Reynaldo claimed that petitioner acted arrogantly and called him names. He was
asked to sign a promissory note as he did not have cash to pay the hospital bill.[43]
Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara,
Medico-Legal Officer of the PNP-Crime Laboratory who conducted the autopsy on
Angelicas cadaver, and Dr. Melinda Vergara Balmaceda who is a Medical
Specialist employed at the Department of Health (DOH) Operations and
Management Services.
Testifying on the findings stated in her medico-legal report, Dr. Vergara
noted the following: (1) there were fluids recovered from the abdominal cavity,
which is not normal, and was due to hemorrhagic shock secondary to bleeding; (2)
there was hemorrhage at the left side of the heart; (3) bleeding at the upper portion
of and areas adjacent to, the esophagus; (4) lungs were heavy with bleeding at the
back and lower portion, due to accumulation of fluids; (4) yellowish discoloration
of the liver; (5) kidneys showed appearance of facial shock on account of
hemorrhages; and (6) reddishness on external surface of the spleen. All these were
the end result of hypovolemic shock secondary to multiple organ hemorrhages and

disseminated intravascular coagulation. Dr. Vergara opined that this can be

attributed to the chemical agents in the drugs given to the victim, which caused
platelet reduction resulting to bleeding sufficient to cause the victims death. The
time lapse for the production of DIC in the case of Angelica (from the time of
diagnosis of sarcoma) was too short, considering the survival rate of about 3
years. The witness conceded that the victim will also die of osteosarcoma even
with amputation or chemotherapy, but in this case Angelicas death was not caused
by osteosarcoma. Dr. Vergara admitted that she is not a pathologist but her
statements were based on the opinion of an oncologist whom she had
interviewed. This oncologist supposedly said that if the victim already had DIC
prior to the chemotherapy, the hospital staff could have detected it.[44]
On her part, Dr. Balmaceda declared that it is the physicians duty to inform
and explain to the patient or his relatives every known side effect of the procedure
or therapeutic agents to be administered, before securing the consent of the patient
or his relatives to such procedure or therapy. The physician thus bases his
assurance to the patient on his personal assessment of the patients condition and his
knowledge of the general effects of the agents or procedure that will be allowed on
the patient. Dr. Balmaceda stressed that the patient or relatives must be informed of
all known side effects based on studies and observations, even if such will
aggravate the patients condition.[45]
Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelicas
lower extremity, testified for the defendants. He explained that in case of
malignant tumors, there is no guarantee that the ablation or removal of the
amputated part will completely cure the cancer. Thus, surgery is not enough. The
mortality rate of osteosarcoma at the time of modern chemotherapy and early
diagnosis still remains at 80% to 90%. Usually, deaths occur from metastasis, or
spread of the cancer to other vital organs like the liver, causing systemic
complications. The modes of therapy available are the removal of the primary
source of the cancerous growth and then the residual cancer cells or metastasis
should be treated with chemotherapy. Dr. Tamayo further explained that patients
with osteosarcoma have poor defense mechanism due to the cancer cells in the
blood stream. In the case of Angelica, he had previously explained to her parents
that after the surgical procedure, chemotherapy is imperative so that metastasis of
these cancer cells will hopefully be addressed. He referred the patient to petitioner
because he felt that petitioner is a competent oncologist. Considering that this type
of cancer is very aggressive and will metastasize early, it will cause the demise of
the patient should there be no early intervention (in this case, the patient

developed sepsis which caused her death). Cancer cells in the blood cannot be
seen by the naked eye nor detected through bone scan. On cross-examination, Dr.
Tamayo stated that of the more than 50 child patients who had osteogenic sarcoma
he had handled, he thought that probably all of them died within six months from
amputation because he did not see them anymore after follow-up; it is either they
died or had seen another doctor.[46]
In dismissing the complaint, the trial court held that petitioner was not liable for
damages as she observed the best known procedures and employed her highest
skill and knowledge in the administration of chemotherapy drugs on Angelica but
despite all efforts said patient died. It cited the testimony of Dr. Tamayo who
testified that he considered petitioner one of the most proficient in the treatment of
cancer and that the patient in this case was afflicted with a very aggressive type of
cancer necessitating chemotherapy as adjuvant treatment. Using the standard of
negligence laid down in Picart v. Smith,[47] the trial court declared that petitioner
has taken the necessary precaution against the adverse effect of chemotherapy on
the patient, adding that a wrong decision is not by itself negligence. Respondents
were ordered to pay their unpaid hospital bill in the amount of P139,064.43.[48]
Respondents appealed to the CA which, while concurring with the trial courts
finding that there was no negligence committed by the petitioner in the
administration of chemotherapy treatment to Angelica, found that petitioner as her
attending physician failed to fully explain to the respondents all the known side
effects of chemotherapy. The appellate court stressed that since the respondents
have been told of only three side effects of chemotherapy, they readily consented
thereto. Had petitioner made known to respondents those other side effects which
gravely affected their child -- such as carpo-pedal spasm, sepsis, decrease in the
blood platelet count, bleeding, infections and eventual death -- respondents could
have decided differently or adopted a different course of action which could have
delayed or prevented the early death of their child.
The CA thus declared:
Plaintiffs-appellants child was suffering from a malignant disease. The
attending physician recommended that she undergo chemotherapy treatment after
surgery in order to increase her chances of survival. Appellants consented to the
chemotherapy treatment because they believed in Dr. Rubi Lis representation that
the deceased would have a strong chance of survival after chemotherapy and also
because of the representation of appellee Dr. Rubi Li that there were only three
possible side-effects of the treatment. However, all sorts of painful side-effects
resulted from the treatment including the premature death of Angelica. The

appellants were clearly and totally unaware of these other side-effects which
manifested only during the chemotherapy treatment. This was shown by the
fact that every time a problem would take place regarding Angelicas
condition (like an unexpected side-effect manifesting itself), they would
immediately seek explanation from Dr. Rubi Li. Surely, those unexpected sideeffects culminating in the loss of a love[d] one caused the appellants so much
trouble, pain and suffering.
On this point therefore, [w]e find defendant-appellee Dr. Rubi Li negligent
which would entitle plaintiffs-appellants to their claim for damages.
xxxx
WHEREFORE, the instant appeal is hereby GRANTED. Accordingly, the
assailed decision is hereby modified to the extent that defendant-appellee Dr.
Rubi Li is ordered to pay the plaintiffs-appellants the following amounts:
1. Actual damages of P139,064.43, plus P9,828.00 for funeral expenses;
2. Moral damages of P200,000.00;
3. Exemplary damages of P50,000.00;
4. Attorneys fee of P30,000.00.
SO ORDERED.

[49]

(Emphasis supplied.)

Petitioner filed a motion for partial reconsideration which the appellate court
denied.
Hence, this petition.
Petitioner assails the CA in finding her guilty of negligence in not explaining
to the respondents all the possible side effects of the chemotherapy on their child,
and in holding her liable for actual, moral and exemplary damages and attorneys
fees. Petitioner emphasized that she was not negligent in the pre-chemotherapy
procedures and in the administration of chemotherapy treatment to Angelica.
On her supposed non-disclosure of all possible side effects of chemotherapy,
including death, petitioner argues that it was foolhardy to imagine her to be allknowing/omnipotent.While the theoretical side effects of chemotherapy were
explained by her to the respondents, as these should be known to a competent
doctor, petitioner cannot possibly predict how a particular patients genetic make-

up, state of mind, general health and body constitution would respond to the
treatment. These are obviously dependent on too many known, unknown and
immeasurable variables, thus requiring that Angelica be, as she was, constantly and
closely monitored during the treatment. Petitioner asserts that she did everything
within her professional competence to attend to the medical needs of Angelica.
Citing numerous trainings, distinctions and achievements in her field and her
current position as co-director for clinical affairs of the Medical Oncology,
Department of Medicine of SLMC, petitioner contends that in the absence of any
clear showing or proof, she cannot be charged with negligence in not informing the
respondents all the side effects of chemotherapy or in the pre-treatment procedures
done on Angelica.
As to the cause of death, petitioner insists that Angelica did not die of platelet
depletion but of sepsis which is a complication of the cancer itself. Sepsis itself
leads to bleeding and death. She explains that the response rate to chemotherapy of
patients with osteosarcoma is high, so much so that survival rate is favorable to the
patient. Petitioner then points to some probable consequences if Angelica had not
undergone chemotherapy. Thus, without chemotherapy, other medicines and
supportive treatment, the patient might have died the next day because of massive
infection, or the cancer cells might have spread to the brain and brought the patient
into a coma, or into the lungs that the patient could have been hooked to a
respirator, or into her kidneys that she would have to undergo dialysis. Indeed,
respondents could have spent as much because of these complications. The patient
would have been deprived of the chance to survive the ailment, of any hope for life
and her quality of life surely compromised. Since she had not been shown to be at
fault, petitioner maintains that the CA erred in holding her liable for the damages
suffered by the respondents.[50]
The issue to be resolved is whether the petitioner can be held liable for failure to
fully disclose serious side effects to the parents of the child patient who died while
undergoing chemotherapy, despite the absence of finding that petitioner was
negligent in administering the said treatment.
The petition is meritorious.
The type of lawsuit which has been called medical malpractice or, more
appropriately, medical negligence, is that type of claim which a victim has

available to him or her to redress a wrong committed by a medical professional

which has caused bodily harm. In order to successfully pursue such a claim, a
patient must prove that a health care provider, in most cases a physician, either
failed to do something which a reasonably prudent health care provider would have
done, or that he or she did something that a reasonably prudent provider would not
have done; and that that failure or action caused injury to the patient.[51]
This Court has recognized that medical negligence cases are best proved by
opinions of expert witnesses belonging in the same general neighborhood and in
the same general line of practice as defendant physician or surgeon. The deference
of courts to the expert opinion of qualified physicians stems from the formers
realization that the latter possess unusual technical skills which laymen in most
instances are incapable of intelligently evaluating, hence the indispensability of
expert testimonies.[52]
In this case, both the trial and appellate courts concurred in finding that the alleged
negligence of petitioner in the administration of chemotherapy drugs to
respondents child was not proven considering that Drs. Vergara and Balmaceda,
not being oncologists or cancer specialists, were not qualified to give expert
opinion as to whether petitioners lack of skill, knowledge and professional
competence in failing to observe the standard of care in her line of practice was the
proximate cause of the patients death. Furthermore, respondents case was not at all
helped by the non-production of medical records by the hospital (only the biopsy
result and medical bills were submitted to the court). Nevertheless, the CA found
petitioner liable for her failure to inform the respondents on all possible side effects
of chemotherapy before securing their consent to the said treatment.
The doctrine of informed consent within the context of physician-patient
relationships goes far back into English common law. As early as 1767, doctors
were charged with the tort of battery (i.e., an unauthorized physical contact with a
patient) if they had not gained the consent of their patients prior to performing a
surgery or procedure. In the United States, the seminal case was Schoendorff v.
Society of New York Hospital[53] which involved unwanted treatment performed by
a doctor. Justice Benjamin Cardozos oft-quoted opinion upheld the basic right of a
patient to give consent to any medical procedure or treatment: Every human
being of adult years and sound mind has a right to determine what shall be done
with his own body; and a surgeon who performs an operation without his patients
consent, commits an assault, for which he is liable in damages. [54] From a purely
ethical norm, informed consent evolved into a general principle of law that a

physician has a duty to disclose what a reasonably prudent physician in the medical
community in the exercise of reasonable care would disclose to his patient as to
whatever grave risks of injury might be incurred from a proposed course of
treatment, so that a patient, exercising ordinary care for his own welfare, and faced
with a choice of undergoing the proposed treatment, or alternative treatment, or
none at all, may intelligently exercise his judgment by reasonably balancing the
probable risks against the probable benefits.[55]
Subsequently, in Canterbury v. Spence[56] the court observed that the duty to
disclose should not be limited to medical usage as to arrogate the decision on
revelation to the physician alone. Thus, respect for the patients right of selfdetermination on particular therapy demands a standard set by law for physicians
rather than one which physicians may or may not impose upon themselves.[57] The
scope of disclosure is premised on the fact that patients ordinarily are persons
unlearned in the medical sciences. Proficiency in diagnosis and therapy is not the
full measure of a physicians responsibility. It is also his duty to warn of the
dangers lurking in the proposed treatment and to impart information which the
patient has every right to expect. Indeed, the patients reliance upon the physician is
a trust of the kind which traditionally has exacted obligations beyond those
associated with armslength transactions.[58] The physician is not expected to give
the patient a short medical education, the disclosure rule only requires of him a
reasonable explanation, which means generally informing the patient in
nontechnical terms as to what is at stake; the therapy alternatives open to him, the
goals expectably to be achieved, and the risks that may ensue from particular
treatment or no treatment.[59] As to the issue of demonstrating what risks are
considered material necessitating disclosure, it was held that experts are
unnecessary to a showing of the materiality of a risk to a patients decision on
treatment, or to the reasonably, expectable effect of risk disclosure on the
decision. Such unrevealed risk that should have been made known must further
materialize, for otherwise the omission, however unpardonable, is without legal
consequence.And, as in malpractice actions generally, there must be a causal
relationship between the physicians failure to divulge and damage to the patient. [60]
Reiterating the foregoing considerations, Cobbs v. Grant[61] deemed it as integral
part of physicians overall obligation to patient, the duty of reasonable disclosure of
available choices with respect to proposed therapy and of dangers inherently and
potentially involved in each. However, the physician is not obliged to discuss
relatively minor risks inherent in common procedures when it is common
knowledge that such risks inherent in procedure of very low incidence. Cited as

exceptions to the rule that the patient should not be denied the opportunity to
weigh the risks of surgery or treatment are emergency cases where it is evident he
cannot evaluate data, and where the patient is a child or incompetent. [62] The court
thus concluded that the patients right of self-decision can only be effectively
exercised if the patient possesses adequate information to enable him in making an
intelligent choice. The scope of the physicians communications to the patient, then
must be measured by the patients need, and that need is whatever information is
material to the decision. The test therefore for determining whether a potential peril
must be divulged is its materiality to the patients decision.[63]
Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that
for liability of the physician for failure to inform patient, there must be causal
relationship between physicians failure to inform and the injury to patient and such
connection arises only if it is established that, had revelation been made, consent to
treatment would not have been given.
There are four essential elements a plaintiff must prove in a malpractice action
based upon the doctrine of informed consent: (1) the physician had a duty to
disclose material risks; (2) he failed to disclose or inadequately disclosed those
risks; (3) as a direct and proximate result of the failure to disclose, the patient
consented to treatment she otherwise would not have consented to; and (4) plaintiff
was injured by the proposed treatment. The gravamen in an informed consent case
requires the plaintiff to point to significant undisclosed information relating to the
treatment which would have altered her decision to undergo it.[64]
Examining the evidence on record, we hold that there was adequate
disclosure of material risks inherent in the chemotherapy procedure performed
with the consent of Angelicas parents. Respondents could not have been unaware
in the course of initial treatment and amputation of Angelicas lower extremity, that
her immune system was already weak on account of the malignant tumor in her
knee. When petitioner informed the respondents beforehand of the side effects of
chemotherapy which includes lowered counts of white and red blood cells,
decrease in blood platelets, possible kidney or heart damage and skin darkening,
there is reasonable expectation on the part of the doctor that the respondents
understood very well that the severity of these side effects will not be the same for
all patients undergoing the procedure. In other words, by the nature of the disease
itself, each patients reaction to the chemical agents even with pre-treatment
laboratory tests cannot be precisely determined by the physician. That
death can possibly result from complications of the treatment or the underlying

cancer itself, immediately or sometime after the administration of chemotherapy

drugs, is a risk that cannot be ruled out, as with most other major medical
procedures, but such conclusion can be reasonably drawn from the general side
effects of chemotherapy already disclosed.
As a physician, petitioner can reasonably expect the respondents to have
considered the variables in the recommended treatment for their daughter afflicted
with a life-threatening illness. On the other hand, it is difficult to give credence to
respondents claim that petitioner told them of 95% chance of recovery for their
daughter, as it was unlikely for doctors like petitioner who were dealing with grave
conditions such as cancer to have falsely assured patients of chemotherapys
success rate. Besides, informed consent laws in other countries generally require
only a reasonable explanation of potential harms, so specific disclosures such as
statistical data, may not be legally necessary.[65]
The element of ethical duty to disclose material risks in the proposed medical
treatment cannot thus be reduced to one simplistic formula applicable in all
instances. Further, in a medical malpractice action based on lack of informed
consent, the plaintiff must prove both the duty and the breach of that duty through
expert testimony.[66] Such expert testimony must show the customary standard of
care of physicians in the same practice as that of the defendant doctor. [67]
In this case, the testimony of Dr. Balmaceda who is not an oncologist but a
Medical Specialist of the DOHs Operational and Management Services charged
with receiving complaints against hospitals, does not qualify as expert testimony to
establish the standard of care in obtaining consent for chemotherapy treatment. In
the absence of expert testimony in this regard, the Court feels hesitant in defining
the scope of mandatory disclosure in cases of malpractice based on lack of
informed consent, much less set a standard of disclosure that, even in foreign
jurisdictions, has been noted to be an evolving one.
As society has grappled with the juxtaposition between personal autonomy
and the medical profession's intrinsic impetus to cure, the law defining adequate
disclosure has undergone a dynamic evolution. A standard once guided solely by
the ruminations of physicians is now dependent on what a reasonable person in
the patients position regards as significant. This change in perspective is
especially important as medical breakthroughs move practitioners to the cutting
edge of technology, ever encountering new and heretofore unimagined treatments
for currently incurable diseases or ailments. An adaptable standard is needed to
account for this constant progression. Reasonableness analyses permeate our legal

system for the very reason that they are determined by social norms, expanding
and contracting with the ebb and flow of societal evolution.
As we progress toward the twenty-first century, we now realize that the
legal standard of disclosure is not subject to construction as a categorical
imperative. Whatever formulae or processes we adopt are only useful as a
foundational starting point; the particular quality or quantity of disclosure will
remain inextricably bound by the facts of each case. Nevertheless, juries that
ultimately determine whether a physician properly informed a patient are
inevitably guided by what they perceive as the common expectation of the
medical consumera reasonable person in the patients position when deciding to
[68]
accept or reject a recommended medical procedure.
(Emphasis supplied.)

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

dated June 15, 2004 and the Resolution dated September 1, 2004 of the Court of
Appeals in CA-G.R. CV No. 58013 are SET ASIDE.
The
Decision
dated September
5,
1997 of
the Regional Trial Court of Legazpi City, Branch 8, in Civil Case No. 8904
is REINSTATED and UPHELD.
No costs.
SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice
WE CONCUR:

RENATO C. CORONA
Chief Justice

See Dissenting Opinion

ANTONIO T. CARPIO
Associate Justice

I join the dissent of J. Carpio

CONCHITA CARPIO MORALES
Associate Justice

I join dissent of J. Carpio

I join J. Brions Separate Opinion
PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA
Associate Justice
Associate Justice

I join the separate opinion of Justice Brion

TERESITA J. LEONARDO-DE CASTRO
Associate Justice

In the result: See Separate

Opinion
ARTURO D. BRION
Associate Justice

I join the dissent opinion of Jus. Carpio

DIOSDADO M. PERALTA
Associate Justice

Concur in the result, and I join

the Separate Opinion of J. Brion
LUCAS P. BERSAMIN
Associate Justice

(No Part)
MARIANO C. DEL CASTILLO
Associate Justice

Please see my concurring opinion

ROBERTO A. ABAD
Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

I join J. Brion in his concurrence

JOSE CATRAL MENDOZA
Associate Justice

I dissent. Evidence was provided by the doctor-petitioner herself.

I join J. Antonio Carpio
MARIA LOURDES P. A. SERENO
Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the 1987 Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice

No part.
Rollo, pp. 33-63. Penned by Associate Justice Mariano C. Del Castillo (now a Member of this Court) and
concurred in by Associate Justices Roberto A. Barrios and Magdangal M. De Leon.
[2]
Id. at 65.
[3]
Id. at 119-162. Penned by Judge Salvador D. Silerio.
[4]
Records, p. 174.
[5]
Id. at 175.
[1]

[6]

Id. at 254.
Rollo, pp. 80-89.
[8]
Id. at 95-108.
[9]
TSN, January 26, 1995, p. 3.
[10]
TSN, October 6, 1995, pp. 18-26, 60; TSN, January 27, 1997, pp. 4-5.
[11]
Rollo, p. 35.
[12]
Id. at 35 and 81.
[13]
TSN, October 6, 1995, pp. 39-40; rollo, p. 123.
[14]
Id. at 40.
[15]
Cisplatin is in a class of drugs known as platinum-containing compounds. It slows or stops the growth of cancer cells
inside the body. Source: http://www.nlm.nih.gov/medlineplus/druginfo/meds/a684036.html. (Site visited on August
21, 2010.)
[16]
Doxorubicin is an anti-cancer (antineoplastic or cytotoxic) chemotherapy drug. It is classified as an anthracycline
antibiotic. Source: http://www.chemocare.com/bio/doxorubicin.asp (Site visited on August 21, 2010.)
[17]
Cosmegen is the trade name for Dactinomycin, an anti-cancer (antineoplastic or cytotoxic) chemotherapy drug
classified as an alkylating agent. Source: http://www.chemocare.com/bio/cosmegen.asp (Site visited on August 21,
2010.)
[18]
TSN, January 27, 1997, p. 9.
[19]
Rollo, p. 124.
[20]
TSN, April 22, 1996, pp. 11-12.
[21]
Rollo, p. 35.
[22]
Id. at 120.
[23]
TSN, October 6, 1995, pp. 27-28.
[24]
TSN, September 19, 1994, p. 18.
[25]
Par. 11 of Answer, rollo, p. 100.
[26]
TSN, September 19, 1994, p. 19; paragraph 16 of Complaint, rollo, p. 82.
[27]
TSN, October 6, 1995, pp. 28-30; paragraphs 12, 13 & 14 of Answer, rollo, pp. 100-101.
[28]
Rollo, p. 101.
[29]
TSN, September 19, 1994, p. 22.
[30]
Rollo, p. 36.
[31]
Id. at 125-126.
[32]
http://www.rxlist.com/bactrim-drug.htm (Site visited September 2, 2010.)
[33]
Paragraph 14 of Answer, rollo, pp. 101-102.
[34]
Paragraphs 19-20 of Complaint, rollo, pp. 83; paragraphs 15-17 of Answer, pp. 102-103.
[35]
Paragraph 17 of Answer, rollo, p. 103.
[36]
Paragraph 23 of Complaint, rollo, p. 83; TSN, September 19, 1994, pp. 24-25.
[37]
TSN, December 15, 1994, pp. 13-21.
[38]
Paragraph 17 of Answer, rollo, p. 103.
[39]
Id.
[40]
Rollo, p. 37.
[41]
TSN, October 6, 1995, p. 33.
[42]
Id.
[43]
TSN, December 15, 1994, p. 22.
[44]
TSN, December 14, 1994, pp. 15-38.
[45]
TSN, April 28, 1995, pp. 23-25.
[46]
TSN, May 26, 1996, pp. 5, 8-13, 23.
[47]
37 Phil. 809 (1918).
[48]
Rollo, pp. 160-162.
[49]
Id. at 58-59, 62-63.
[50]
Id. at 18-23.
[51]
Garcia-Rueda v. Pascasio, G.R. No. 118141, September 5, 1997, 278 SCRA 769, 778.
[52]
Lucas v. Tuao, G.R. No. 178763, April 21, 2009, 586 SCRA 173, 201-202, citing Dr. Cruz v. Court of
Appeals, 346 Phil. 872, 884-885 (1997).
[53]
105 N.E. 92, 93 (N.Y. 1914).
[54]
Id.
[7]

[55]

Blacks Law Dictionary, Fifth Edition, p. 701, citing Ze Barth v. Swedish Hospital Medical Center, 81 Wash.2d
12, 499 P.2d 1, 8.
[56]
464 F.2d 772 C.A.D.C., 1972.
[57]
Id. at 784.
[58]
Id. at 780-782.
[59]
Id. at 782.
[60]
Id. at 790, 791-792.
[61]
8 Cal.3d 229, 502 P.2d 1 Cal. 1972.
[62]
Id.
[63]
Id.
[64]
Davis v. Kraff, N.E.2d 2010 WL 4026765 Ill.App. 1 Dist., 2010, citing Coryell v. Smith, 274 Ill.App.3d 543, 210
Ill.Dec. 855, 653 N.E.2d 1317 (1995).
[65]
Arato v. Avedon, 858 P.2d 598 (Cal. 1993).
[66]
Mason v. Walsh, 26 Conn.App. 225, 229-30, 00 A.2d 326 (1991).
[67]
Id., 230, citing Shenefield v. Greenwich Hospital Assn., 10 Conn.App. 239, 248-49, 522 A.2d 829 (1987).
[68]
Informed Consent: From the Ambivalence of Arato to the Thunder of Thor Issues in Law & Medicine, Winter,
1994
by
Armand
Arabian. Sourced
at
Internet
http://findarticles.com/p/articles/mi_m6875/is_n3_10/ai_n25022732/pg_37/?tag=content;col1

SECOND DIVISION
DR. PEDRO DENNIS CERENO, and DR. SANTOS ZAFE, Petitioners, -versusCOURT OF APPEALS, SPOUSES
DIOGENES S. OLA VERE and FE R. SERRANO, Respondents. G.R. No. 167366 Present: CARPIO,
Chairperson, LEONARDO-DE CASTRO,* BRION, PEREZ, and ::~~~:~::~NABE, JJ. /;02~ /:/ , . #Ftt 'vSEP 2 6
2012 \~ ___ \.,))//// X-------------------------------------------------- -X DECISION PEREZ, J.: Before the Court is a
Petition for Review on Certiorari 1 under Rule 45 of the Rules of Court seeking the annulment and
setting aside of the 21 February 2005 decision2 of the Court of Appeals (CA) in CA-G.R. CV No. 65800. In
the assailed decision, the CA affirmed in toto the decision of the Regional Trial Court (R TC), Branch 22,
Nag a City finding herein petitioners * Per Special Order No. 1308 dated 21 Septembe:- 2012. Rullo, pp.
9-25. Penned by Associate Justice Arcangelita M. Romilla-Lontok with Associate Justices Rodrigo V.
Cosico and Danilo B. Pine concurriug. ld. at 26-36. Decision 2 G.R. No. 167366 Dr. Pedro Dennis Cereno
(Dr. Cereno) and Dr. Santos Zafe (Dr. Zafe) liable for damages. Culled from the records are the following
antecedent facts: At about 9:15 in the evening of 16 September 1995, Raymond S. Olavere (Raymond), a
victim of a stabbing incident, was rushed to the emergency room of the Bicol Regional Medical Center
(BRMC). There, Raymond was attended to by Nurse Arlene Balares (Nurse Balares) and Dr. Ruel Levy
Realuyo (Dr. Realuyo)the emergency room resident physician. Subsequently, the parents of
Raymondthe spouses Deogenes Olavere (Deogenes) and Fe R. Serranoarrived at the BRMC. They
were accompanied by one Andrew Olavere, the uncle of Raymond. After extending initial medical
treatment to Raymond, Dr. Realuyo recommended that the patient undergo emergency exploratory
laparotomy. Dr. Realuyo then requested the parents of Raymond to procure 500 cc of type O blood
needed for the operation. Complying with the request, Deogenes and Andrew Olavere went to the
Philippine National Red Cross to secure the required blood. At 10:30 P.M., Raymond was wheeled inside
the operating room. During that time, the hospital surgeons, Drs. Zafe and Cereno, were busy operating
on gunshot victim Charles Maluluy-on. Assisting them in the said operation was Dr. Rosalina Tatad (Dr.
Tatad), who was the only senior anesthesiologist on duty at BRMC that night. Dr. Tatad also happened
to be the head of Anesthesiology Department of the BRMC. Decision 3 G.R. No. 167366 Just before the
operation on Maluluy-on was finished, another emergency case involving Lilia Aguila, a woman who was
giving birth to triplets, was brought to the operating room. At 10:59 P.M., the operation on Charles
Maluluy-on was finished. By that time, however, Dr. Tatad was already working with the obstetricians
who will perform surgery on Lilia Aguila. There being no other available anesthesiologist to assist them,
Drs. Zafe and Cereno decided to defer the operation on Raymond. Drs. Zafe and Cereno, in the
meantime, proceeded to examine Raymond and they found that the latters blood pressure was normal
and nothing in him was significant.3 Dr. Cereno reported that based on the xray result he interpreted,
the fluid inside the thoracic cavity of Raymond was minimal at around 200-300 cc. At 11:15 P.M.,
Deogenes and Andrew Olavere returned to the BRMC with a bag containing the requested 500 cc type
O blood. They handed over the bag of blood to Dr. Realuyo. After Dr. Tatad finished her work with the
Lilia Aguila operation, petitioners immediately started their operation on Raymond at around 12:15 A.M.
of 17 September 1995. Upon opening of Raymonds thoracic cavity, they found that 3,200 cc of blood
was stocked therein. The blood was evacuated and petitioners found a puncture at the inferior pole of
the left lung. 3 Cerenos affidavit, Exhibit 4. Records, p. 118. Decision 4 G.R. No. 167366 In his
testimony, Dr. Cereno stated that considering the loss of blood suffered by Raymond, he did not

immediately transfuse blood because he had to control the bleeders first.4 Blood was finally transfused
on Raymond at 1:40 A.M. At 1:45 A.M., while the operation was on-going, Raymond suffered a cardiac
arrest. The operation ended at 1:50 A.M. and Raymond was pronounced dead at 2:30 A.M. Raymonds
death certificate5 indicated that the immediate cause of death was hypovolemic shock or the
cessation of the functions of the organs of the body due to loss of blood.6 Claiming that there was
negligence on the part of those who attended to their son, the parents of Raymond, on 25 October
1995, filed before the RTC, Branch 22, Naga City a complaint for damages7 against Nurse Balares, Dr.
Realuyo and attending surgeons Dr. Cereno and Dr. Zafe. During trial, the parents of Raymond testified
on their own behalf. They also presented the testimonies of Andrew Olavere and one Loira Oira, the
aunt of Raymond. On the other hand, Dr. Cereno, Dr. Realuyo, Nurse Balares and Security Guard Diego
Reposo testified for the defense. On rebuttal, the parents of Raymond presented Dr. Tatad, among
others. On 15 October 1999, the trial court rendered a decision8 the dispositive portion of which reads:
4 TSN, 19 May 1997, p. 31. 5 Exhibit B. Records, p. 59. 6 Cerenos testimony. TSN, 19 May 1997, pp.
32-33. 7 Records, pp. 1-6. 8 Id. at 271-285. Decision 5 G.R. No. 167366 WHEREFORE, premises
considered, this Court hereby renders judgment: 1. Dismissing the case against Dr. Ruel Levy Realuyo
and Arlene Balares for lack of merit; 2. Ordering defendants Dr. Santos Zafe and Dr. Dennis Cereno to
pay the heirs of Raymond Olavere, jointly and severally the following amounts: 1. P50,000.00 for the
death of the victim; 2. P150,000.00 as moral damages; 3. P100,000.00 as exemplary damages; 4.
P30,000.00 for attorneys fees; and 5. Cost of suit.9 x x x x. The trial court found petitioners negligent in
not immediately conducting surgery on Raymond. It noted that petitioners have already finished
operating on Charles Maluluy-on as early as 10:30 in the evening, and yet they only started the
operation on Raymond at around 12:15 early morning of the following day. The trial court held that had
the surgery been performed promptly, Raymond would not have lost so much blood and, therefore,
could have been saved.10 The trial court also held that the non-availability of Dr. Tatad after the
operation on Maluluy-on was not a sufficient excuse for the petitioners to not immediately operate on
Raymond. It called attention to the testimony of Dr. Tatad herself, which disclosed the possibility of
calling a standby anesthesiologist in that situation. The trial court opined that the petitioners could have
just requested for the standby anesthesiologist from Dr. Tatad, but they did not. Lastly, the trial court
faulted petitioners for the delay in the transfusion of blood on Raymond. 9 Id. at 285. 10 RTC Decision.
Id. at 279. Decision 6 G.R. No. 167366 On appeal, the CA in a decision dated 21 February 2005 affirmed
in toto the judgment rendered by the RTC finding herein petitioners guilty of gross negligence in the
performance of their duties and awarding damages to private respondents. Hence, this petition for
review on certiorari under Rule 45 of the Rules of Court assailing the CA decision on the following
grounds: 1. THAT THE CA ERRED IN RULING THAT PETITIONERS WERE GROSSLY NEGLIGENT IN THE
PERFORMANCE OF THEIR DUTIES; 2. THAT THE CA ERRED IN NOT CONSIDERING THE BICOL REGIONAL
MEDICAL CENTER AS AN INDISPENSABLE PARTY AND SUBSIDIARILY LIABLE SHOULD PETITIONERS BE
FOUND LIABLE FOR DAMAGES; and 3. THAT THE CA ERRED IN NOT FINDING THE AWARD OF MORAL
AND EXEMPLARY DAMAGES AS WELL AS ATTORNEYS FEES EXORBITANT OR EXCESSIVE. We grant the
petition. It is well-settled that under Rule 45 of the Rules of Court, only questions of law may be raised.
The reason behind this is that this Court is not a trier of facts and will not re-examine and re-evaluate
the evidence on record.11 Factual findings of the CA, affirming that of the trial court, are therefore
generally final and conclusive on this Court. This rule is subject to the following exceptions: (1) the

conclusion is grounded on speculations, 11 Manila Electric Company v. Benamira, 501 Phil. 621, 636
(2005). Decision 7 G.R. No. 167366 surmises or conjectures; (2) the inference is manifestly mistaken,
absurd or impossible; (3) there is grave abuse of discretion; (4) the judgment is based on a
misapprehension of facts; (5) the findings of fact are conflicting; (6) there is no citation of specific
evidence on which the factual findings are based; (7) the findings of absence of fact are contradicted by
the presence of evidence on record; (8) the findings of the CA are contrary to those of the trial court; (9)
the CA manifestly overlooked certain relevant and undisputed facts that, if properly considered, would
justify a different conclusion; (10) the findings of the CA are beyond the issues of the case; and (11) such
findings are contrary to the admissions of both parties.12 In this case, We find exceptions (1) and (4) to
be applicable. The type of lawsuit which has been called medical malpractice or, more appropriately,
medical negligence, is that type of claim which a victim has available to him or her to redress a wrong
committed by a medical professional which has caused bodily harm. In order to successfully pursue such
a claim, a patient must prove that a health care provider, in most cases a physician, either failed to do
something which a reasonably prudent health care provider would have done, or that he or she did
something that a reasonably prudent provider would not have done; and that the failure or action
caused injury to the patient. 13 Stated otherwise, the complainant must prove: (1) that the health care
provider, either by his act or omission, had been negligent, and (2) that such act or omission proximately
caused the injury complained of. The best way to prove these is through the opinions of expert
witnesses belonging in the same neighborhood and in the same general line of practice as defendant
physician or surgeon. The deference of courts to the 12 International Container Terminal Services, Inc. v.
FGU Insurance Corporation, G.R. No. 161539, 28 June 2008, 556 SCRA 194, 199. 13 Garcia-Rueda v.
Pascasio, 344 Phil. 323, 331 (1997). (Emphasis supplied) Decision 8 G.R. No. 167366 expert opinion of
qualified physicians stems from the formers realization that the latter possess unusual technical skills
which laymen in most instances are incapable of intelligently evaluating, hence, the indispensability of
expert testimonies.14 Guided by the foregoing standards, We dissect the issues at hand. Petitioners Not
Negligent The trial court first imputed negligence on the part of the petitioners by their failure to
perform the operation on Raymond immediately after finishing the Maluluy-on operation. It rejected as
an excuse the nonavailability of Dr. Tatad. The trial court relied on the testimony of Dr. Tatad about a
BRMC protocol that introduces the possibility that a standby anesthesiologist could have been called
upon. The pertinent portions of the testimony of Dr. Tatad provides: Q: Aside from you and Dr.
Rebancos, who was the standby anesthesiologist? A: We have a protocol at the Bicol Medical Center to
have a consultant who is on call. Q: How many of them? A: One. Q: Who is she? A: Dra. Flores. Q: What
is the first name? A: Rosalina Flores. Q: Is she residing in Naga City? A: In Camaligan. Q: She is on call
anytime when there is an emergency case to be attended to in the Bicol Medical Center? A: Yes sir.15
Dr. Tatad further testified: 14 Id. at 332. 15 TSN, 31 October 1997, pp. 15-16. Decision 9 G.R. No. 167366
Q: Alright (sic), considering that you said you could not attend to Raymond Olavere because another
patient was coming in the person of Lilia Aguila, did you not suggest to Dr. Cereno to call the standby
anesthesiologist? A: They are not ones to do that. They have no right to call for the standby
anesthesiologist. Q: Then, who should call for the standby anesthesiologist? A: It is me if the surgeon
requested. Q: But in this case, the surgeon did not request you? A: No. It is their prerogative. Q: I just
want to know that in this case the surgeon did not request you to call for the standby anesthesiologist?
A: No sir.16 From there, the trial court concluded that it was the duty of the petitioners to request Dr.

Tatad to call on Dr. Rosalina Flores, the standby anesthesiologist. Since petitioners failed to do so, their
inability to promptly perform the operation on Raymond becomes negligence on their part. This Court
does not agree with the aforesaid conclusion. First. There is nothing in the testimony of Dr. Tatad, or in
any evidence on the record for that matter, which shows that the petitioners were aware of the BRMC
protocol that the hospital keeps a standby anesthesiologist available on call. Indeed, other than the
testimony of Dr. Tatad, there is no evidence that proves that any such BRMC protocol is being
practiced by the hospitals surgeons at all. Evidence to the effect that petitioners knew of the BRMC
protocol is essential, especially in view of the contrary assertion of the petitioners that the matter of
assigning anesthesiologists rests within the full discretion of the BRMC Anesthesiology Department.
Without any prior knowledge of the BRMC protocol, We find that it is quite reasonable for the
petitioners to assume that matters regarding the administration of anesthesia and the 16 Id at 21.
Decision 10 G.R. No. 167366 assignment of anesthesiologists are concerns of the Anesthesiology
Department, while matters pertaining to the surgery itself fall under the concern of the surgeons.
Certainly, We cannot hold petitioners accountable for not complying with something that they, in the
first place, do not know. Second. Even assuming ex gratia argumenti that there is such BRMC protocol
and that petitioners knew about it, We find that their failure to request for the assistance of the standby
anesthesiologist to be reasonable when taken in the proper context. There is simply no competent
evidence to the contrary. From the testimony of Dr. Tatad herself, it is clear that the matter of
requesting for a standby anaesthesiologist is not within the full discretion of petitioners. The BRMC
protocol described in the testimony requires the petitioners to course such request to Dr. Tatad who,
as head of the Department of Anesthesiology, has the final say of calling the standby anesthesiologist.
As revealed by the facts, however, after the Maluluy-on operation, Dr. Tatad was already assisting in the
Lilia Aguila operation. Drs. Zafe and Cereno then proceeded to examine Raymond and they found that
the latters blood pressure was normal and nothing in him was significant.17 Dr. Cereno even
concluded that based on the x-ray result he interpreted, the fluid inside the thoracic cavity of Raymond
was minimal at around 200-300 cc. Such findings of Drs. Cereno and Zafe were never challenged and
were unrebutted. Given that Dr. Tatad was already engaged in another urgent operation and that
Raymond was not showing any symptom of suffering from major 17 Cerenos affidavit, Exhibit 4.
Records, p. 118. Decision 11 G.R. No. 167366 blood loss requiring an immediate operation, We find it
reasonable that petitioners decided to wait for Dr. Tatad to finish her surgery and not to call the standby
anesthesiologist anymore. There is, after all, no evidence that shows that a prudent surgeon faced with
similar circumstances would decide otherwise. Here, there were no expert witnesses presented to
testify that the course of action taken by petitioners were not in accord with those adopted by other
reasonable surgeons in similar situations. Neither was there any testimony given, except that of Dr.
Tatads, on which it may be inferred that petitioners failed to exercise the standard of care, diligence,
learning and skill expected from practitioners of their profession. Dr. Tatad, however, is an expert
neither in the field of surgery nor of surgical practices and diagnoses. Her expertise is in the
administration of anesthesia and not in the determination of whether surgery ought or not ought to be
performed. Another ground relied upon by the trial court in holding petitioners negligent was their
failure to immediately transfuse blood on Raymond. Such failure allegedly led to the eventual death of
Raymond through hypovolemic shock. The trial court relied on the following testimony of Dr. Tatad: Q:
In this case of Raymond Olavere was blood transfused to him while he was inside the operating room?

A: The blood arrived at 1:40 a.m. and that was the time when this blood was hooked to the patient. x x x
x Q: Prior to the arrival of the blood, you did not request for blood? A: I requested for blood. Q: From
whom? A: From the attending physician, Dr. Realuyo. Q: What time was that? Decision 12 G.R. No.
167366 x x x x A: 9:30. x x x x Q: Had this blood been given to you before the operation you could have
transfused the blood to the patient? A: Of course, yes. Q: And the blood was transfused only after the
operation? A: Because that was the time when the blood was given to us. x x x x Q: Have you monitored
the condition of Raymond Olavere? A: I monitored the condition during the time when I would
administer anesthesia. Q: What time was that? A: 11:45 already. Q: What was the condition of the blood
pressure at that time? A: 60/40 initial. Q: With that kind of blood pressure the patient must have been in
critical condition? A: At the time when the blood pressure was 60/40 I again told Dr. Cereno that blood
was already needed. Q: With that condition, Doctor, that the patient had 60/40 blood pressure you did
not decide on transfusing blood to him? A: I was asking for blood but there was no blood available. Q:
From whom did you ask? A: From the surgeon. According to Dr. Zafe there was only 500 cc but still for
cross-matching.18 From the aforesaid testimony, the trial court ruled that there was negligence on the
part of petitioners for their failure to have the blood ready for transfusion. It was alleged that at 11:15
P.M., the 500 cc of blood was given to Dr. Realuyo by Raymonds parents. At 11:45 P.M., when Dr. Tatad
was asking for the blood, 30 minutes had passed. Yet, the blood was not ready for transfusion as it was
still being cross-matched.19 It took another two hours before blood was finally transfused to Raymond
at 1:40 A.M. of 17 September 1995. Again, such is a mistaken conclusion. 18 TSN, 31 October 1997, pp.
16-20. 19 RTC Decision. Records, p. 282. Decision 13 G.R. No. 167366 First, the alleged delay in the
cross-matching of the blood, if there was any, cannot be attributed as the fault of the petitioners. The
petitioners were never shown to be responsible for such delay. It is highly unreasonable and the height
of injustice if petitioners were to be sanctioned for lapses in procedure that does not fall within their
duties and beyond their control. Second, Dr. Cereno, in his unchallenged testimony, aptly explained the
apparent delay in the transfusion of blood on Raymond before and during the operation. Before the
operation, Dr. Cereno explained that the reason why no blood transfusion was made on Raymond was
because they did not then see the need to administer such transfusion, viz: Q: Now, you stated in your
affidavit that prior to the operation you were informed that there was 500 cc of blood available and was
still to be cross-matched. What time was that when you were informed that 500 cc of blood was due for
crossmatching? A: I am not sure of the time. Q: But certainly, you learned of that fact that there was 500
cc of blood, which was due for crossmatching immediately prior to the operation? A: Yes, sir. Q: And the
operation was done at 12:15 of September 17? A: Yes, sir. Q: And that was the reason why you could
not use the blood because it was being crossmatched? A: No, sir. That was done only for a few minutes.
We did not transfuse at that time because there was no need. There is a necessity to transfuse blood
when we saw there is gross bleeding inside the body. 20 (Emphasis supplied) During the operation, on
the other hand, Dr. Cereno was already able to discover that 3,200 cc of blood was stocked in the
thoracic cavity of 20 TSN, 19 May 1997, p. 32. Decision 14 G.R. No. 167366 Raymond due to the
puncture in the latters left lung. Even then, however, immediate blood transfusion was not feasible
because: Q: Now considering the loss of blood suffered by Raymund Olavere, why did you not
immediately transfuse blood to the patient and you waited for 45 minutes to elapse before transfusing
the blood? A: I did not transfuse blood because I had to control the bleeders. If you will transfuse blood
just the same the blood that you transfuse will be lost. After evacuation of blood and there is no more

bleeding Q: It took you 45 minutes to evacuate the blood? A: The evacuation did not take 45 minutes.
Q: So what was the cause of the delay why you only transfuse blood after 45 minutes? A: We have to
look for some other lesions. It does not mean that when you slice the chest you will see the lesions
already. 21 (Emphasis supplied) Again, the foregoing testimonies of Dr. Cereno went unchallenged or
unrebutted. The parents of Raymond were not able to present any expert witness to dispute the course
of action taken by the petitioners. Causation Not Proven In medical negligence cases, it is settled that
the complainant has the burden of establishing breach of duty on the part of the doctors or surgeons. It
must be proven that such breach of duty has a causal connection to the resulting death of the patient.22
A verdict in malpractice action cannot be based on speculation or conjecture. Causation must be proven
within a reasonable medical probability based upon competent expert testimony. The parents of
Raymond failed in this respect. Aside from their failure to prove negligence on the part of the
petitioners, they also failed to prove 21 Id. at 31-32. 22 Dr. Cruz v. Court of Appeals, 346 Phil. 827, 885886 (1997), citing Abaya v. Favis, 3 CA Reports 450, 454455 (1963). Decision 15 G.R. No. 167366 that it
was petitioners fault that caused the injury. Their cause stands on the mere assumption that Raymonds
life would have been saved had petitioner surgeons immediately operated on him; had the blood been
cross-matched immediately and had the blood been transfused immediately. There was, however, no
proof presented that Raymonds life would have been saved had those things been done. Those are
mere assumptions and cannot guarantee their desired result. Such cannot be made basis of a decision in
this case, especially considering that the name, reputation and career of petitioners are at stake. The
Court understands the parents grief over their sons death. That notwithstanding, it cannot hold
petitioners liable. It was noted that Raymond, who was a victim of a stabbing incident, had multiple
wounds when brought to the hospital. Upon opening of his thoracic cavity, it was discovered that there
was gross bleeding inside the body. Thus, the need for petitioners to control first what was causing the
bleeding. Despite the situation that evening i.e. numerous patients being brought to the hospital for
emergency treatment considering that it was the height of the Peafrancia Fiesta, it was evident that
petitioners exerted earnest efforts to save the life of Raymond. It was just unfortunate that the loss of
his life was not prevented. In the case of Dr. Cruz v. CA, it was held that [d]octors are protected by a
special law. They are not guarantors of care. They do not even warrant a good result. They are not
insurers against mishaps or unusual consequences. Furthermore, they are not liable for honest mistake
of judgment23 23 Id. at 875-879 citing THE PHYSICIANS LIABILITY AND THE LAW OF NEGLIGENCE by
Constantino Nuez, p. 1, citing Louis Nizer, My Life in Court, New York: Double Day &n Co., 1961 in
Tolentino, Jr., MEDICINE and LAW, Proceedings of the Symposium on Current Issues Common to
Medicine and Law, U.P. Law Center, 1980. Decision 16 G.R. No. 167366 This CoU11 affirms the ruling of
the CA that the BRMC is not an indispensible party. The core issue as agreed upon by the parties and
stated in the pre-trial order is whether petitioners were negligent in the performance of their duties. It
pertains to acts/omissions of petitioners for which they could be held liable. The cause of action against
petitioners may be prosecuted fully and the determination of their liability may be arrived at without
impleading the hospital where they are employed. As such, the BRMC cannot be considered an
indispensible party without whom no final determination can be had of an action?4 IN THE LIGHT OF
THE FOREGOING, the instant Petition for Review on Certiorari is hereby GRANTED. The Court of Appeals
decision dated 21 February 2005 in CA-G.R. CV No. 65800 is hereby REVERSED and SET ASIDE. No costs.
SO ORDERED. \VE CONCUR: r , \ ;' .f ~f!J. " /' ;,-. ' ' .JO~E~~~\~REZ \ ssociate Justice ~ ANTONIO ~:Y T.

CARPIO Associate Justice Chairperson Section 7, Rule Ill, Rules of Court. Decision 17 G.R. No. 167366 f (.t.t l .. l-.~ Jcv t,,O./t#o ~, {-fl, lft_, TERES IT A .J. LEONARDO-DE CASTRO ()~ ARTURO D. BRION Associate
Justice Associate Justice ' .tvJ I /(J.;{\}./ ESTELA lVI~ P,}ERLAS-BERNABE Associate Justice ATTESTATION I
attest that the conclusions in the above Decision had been reached in consultati1Xl before the case was
assigned to the writer of the opinion of the Court's Division. ......,. r~\ ~~ )T_---r~) ANTONIO T. CAl~ IO
Associate Justice Chairperson CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and
the Division Chairperson's Attestation, it is hereby certified that the conclusions in the above Decision
\Ven .. ' reached in consultation before the case was assigned to the writer of' the opinion ()flhc Court's
Division. MARlA l.OUI

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-30056 August 30, 1988
MARCELO AGCAOILI, plaintiff-appellee
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, defendant-appellant.
Artemio L. Agcaoili for plaintiff-appellee.
Office of the Government Corporate Counsel for defendant-appellant.

NARVASA, J.:
The appellant Government Service Insurance System, (GSIS, for short) having approved the
application of the appellee Agcaoili for the purchase of a house and lot in the GSIS Housing Project
at Nangka Marikina, Rizal, subject to the condition that the latter should forthwith occupy the house,
a condition that Agacoili tried to fulfill but could not for the reason that the house was absolutely
uninhabitable; Agcaoili, after paying the first installment and other fees, having thereafter refused to
make further payment of other stipulated installments until GSIS had made the house habitable; and
appellant having refused to do so, opting instead to cancel the award and demand the vacation by
Agcaoili of the premises; and Agcaoili having sued the GSIS in the Court of First Instance of Manila
for specific performance with damages and having obtained a favorable judgment, the case was
appealled to this Court by the GSIS. Its appeal must fail.
The essential facts are not in dispute. Approval of Agcaoili's aforementioned application for
purchase 1 was contained in a letter 2 addressed to Agcaoili and signed by GSIS Manager Archimedes
Villanueva in behalf of the Chairman-General Manager, reading as follows:

Please be informed that your application to purchase a house and lot in our GSIS
Housing Project at Nangka, Marikina, Rizal, has been approved by this Office. Lot
No. 26, Block No. (48) 2, together with the housing unit constructed thereon, has
been allocated to you.
You are, therefore, advised to occupy the said house immediately.
If you fail to occupy the same within three (3) days from receipt of this notice, your
application shall be considered automatically disapproved and the said house and lot
will be awarded to another applicant.
Agcaoili lost no time in occupying the house. He could not stay in it, however, and had to leave the
very next day, because the house was nothing more than a shell, in such a state of incompleteness
that civilized occupation was not possible: ceiling, stairs, double walling, lighting facilities, water
connection, bathroom, toilet kitchen, drainage, were inexistent. Agcaoili did however ask a homeless

friend, a certain Villanueva, to stay in the premises as some sort of watchman, pending completion
of the construction of the house. Agcaoili thereafter complained to the GSIS, to no avail.
The GSIS asked Agcaoili to pay the monthly amortizations and other fees. Agcaoili paid the first
monthly installment and the incidental fees, 3 but refused to make further payments until and unless the
GSIS completed the housing unit. What the GSIS did was to cancel the award and require Agcaoili to
vacate the premises. 4 Agcaoili reacted by instituting suit in the Court of First Instance of Manila for
specific performance and damages. 5 Pending the action, a written protest was lodged by other awardees
of housing units in the same subdivision, regarding the failure of the System to complete construction of
their own houses. 6 Judgment was in due course rendered , 7 on the basis of the evidence adduced by
Agcaoili only, the GSIS having opted to dispense with presentation of its own proofs. The judgment was
in Agcaoili's favor and contained the following dispositions, 8 to wit:

1) Declaring the cancellation of the award (of a house and lot) in favor of plaintiff
(Mariano Agcaoili) illegal and void;
2) Ordering the defendant (GSIS) to respect and enforce the aforesaid award to the
plaintiff relative to Lot No. 26, Block No. (48) 2 of the Government Service Insurance
System (GSIS) low cost housing project at Nangka Marikina, Rizal;
3) Ordering the defendant to complete the house in question so as to make the same
habitable and authorizing it (defendant) to collect the monthly amortization thereon
only after said house shall have been completed under the terms and conditions
mentioned in Exhibit A ;and
4) Ordering the defendant to pay P100.00 as damages and P300.00 as and for
attorney's fees, and costs.
Appellant GSIS would have this Court reverse this judgment on the argument that
1) Agcaoili had no right to suspend payment of amortizations on account of the incompleteness of
his housing unit, since said unit had been sold "in the condition and state of completion then existing
... (and) he is deemed to have accepted the same in the condition he found it when he accepted the
award;" and assuming indefiniteness of the contract in this regard, such circumstance precludes a
judgment for specific performance. 9
2) Perfection of the contract of sale between it and Agcaoili being conditioned upon the latter's
immediate occupancy of the house subject thereof, and the latter having failed to comply with the
condition, no contract ever came into existence between them ; 10
3) Agcaoili's act of placing his homeless friend, Villanueva, in possession, "without the prior or
subsequent knowledge or consent of the defendant (GSIS)" operated as a repudiation by Agcaoili of
the award and a deprivation of the GSIS at the same time of the reasonable rental value of the
property. 11
Agcaoili's offer to buy from GSIS was contained in a printed form drawn up by the latter, entitled
"Application to Purchase a House and/or Lot." Agcaoili filled up the form, signed it, and submitted
it. 12 The acceptance of the application was also set out in a form (mimeographed) also prepared by the
GSIS. As already mentioned, this form sent to Agcaoili, duly filled up, advised him of the approval of his
"application to purchase a house and lot in our GSIS Housing Project at NANGKA, MARIKINA, RIZAL,"
and that "Lot No. 26, Block No. (48) 2, together with the housing unit constructed thereon, has been
allocated to you." Neither the application form nor the acceptance or approval form of the GSIS nor the

notice to commence payment of a monthly amortizations, which again refers to "the house and lot
awarded" contained any hint that the house was incomplete, and was being sold "as is," i.e., in
whatever state of completion it might be at the time. On the other hand, the condition explicitly imposed
on Agcaoili "to occupy the said house immediately," or in any case within three (3) days from notice,
otherwise his "application shall be considered automatically disapproved and the said house and lot will
be awarded to another applicant" would imply that construction of the house was more or less
complete, and it was by reasonable standards, habitable, and that indeed, the awardee should stay and
live in it; it could not be interpreted as meaning that the awardee would occupy it in the sense of a pioneer
or settler in a rude wilderness, making do with whatever he found available in the envirornment.

There was then a perfected contract of sale between the parties; there had been a meeting of the
minds upon the purchase by Agcaoili of a determinate house and lot in the GSIS Housing Project at
Nangka Marikina, Rizal at a definite price payable in amortizations at P31.56 per month, and from
that moment the parties acquired the right to reciprocally demand performance. 13 It was, to be sure,
the duty of the GSIS, as seller, to deliver the thing sold in a condition suitable for its enjoyment by the
buyer for the purpose contemplated , 14 in other words, to deliver the house subject of the contract in a
reasonably livable state. This it failed to do.

It sold a house to Agcaoili, and required him to immediately occupy it under pain of cancellation of
the sale. Under the circumstances there can hardly be any doubt that the house contemplated was
one that could be occupied for purposes of residence in reasonable comfort and convenience. There
would be no sense to require the awardee to immediately occupy and live in a shell of a house, a
structure consisting only of four walls with openings, and a roof, and to theorize, as the GSIS does,
that this was what was intended by the parties, since the contract did not clearly impose upon it the
obligation to deliver a habitable house, is to advocate an absurdity, the creation of an unfair
situation. By any objective interpretation of its terms, the contract can only be understood as
imposing on the GSIS an obligation to deliver to Agcaoili a reasonably habitable dwelling in return for
his undertaking to pay the stipulated price. Since GSIS did not fulfill that obligation, and was not
willing to put the house in habitable state, it cannot invoke Agcaoili's suspension of payment of
amortizations as cause to cancel the contract between them. It is axiomatic that "(i)n reciprocal
obligations, neither party incurs in delay if the other does not comply or is not ready to comply in a
proper manner with what is incumbent upon him." 15
Nor may the GSIS succeed in justifying its cancellation of the award to Agcaoili by the claim that the
latter had not complied with the condition of occupying the house within three (3) days. The record
shows that Agcaoili did try to fulfill the condition; he did try to occupy the house but found it to be so
uninhabitable that he had to leave it the following day. He did however leave a friend in the structure,
who being homeless and hence willing to accept shelter even of the most rudimentary sort, agreed
to stay therein and look after it. Thus the argument that Agcaoili breached the agreement by failing
to occupy the house, and by allowing another person to stay in it without the consent of the GSIS,
must be rejected as devoid of merit.
Finally, the GSIS should not be heard to say that the agreement between it and Agcaoili is silent, or
imprecise as to its exact prestation Blame for the imprecision cannot be imputed to Agcaoili; it was
after all the GSIS which caused the contract to come into being by its written acceptance of
Agcaoili's offer to purchase, that offer being contained in a printed form supplied by the GSIS. Said
appellant having caused the ambiguity of which it would now make capital, the question of
interpretation arising therefrom, should be resolved against it.
It will not do, however, to dispose of the controversy by simply declaring that the contract between
the parties had not been validly cancelled and was therefore still in force, and that Agcaoili could not
be compelled by the GSIS to pay the stipulated price of the house and lot subject of the contract until
and unless it had first completed construction of the house. This would leave the contract hanging or

in suspended animation, as it were, Agcaoili unwilling to pay unless the house were first completed,
and the GSIS averse to completing construction, which is precisely what has been the state of affairs
between the parties for more than twenty (20) years now. On the other hand, assuming it to be
feasible to still finish the construction of the house at this time, to compel the GSIS to do so so that
Agcaoili's prestation to pay the price might in turn be demanded, without modifying the price therefor,
would not be quite fair. The cost to the GSIS of completion of construction at present prices would
make the stipulated price disproportionate, unrealistic.
The situation calls for the exercise by this Court of its equity jurisdiction, to the end that it may
render complete justice to both parties.
As we . . reaffirmed in Air Manila, Inc. vs. Court of Industrial Relations (83 SCRA
579, 589 [1978]). "(E)quity as the complement of legal jurisdiction seeks to reach and
do complete justice where courts of law, through the inflexibility of their rules and
want of power to adapt their judgments to the special circumstances of cases, are
incompetent so to do. Equity regards the spirit of and not the letter, the intent and not
the form, the substance rather than the circumstance, as it is variously expressed by
different courts... " 16
In this case, the Court can not require specific performance of the contract in question according to
its literal terms, as this would result in inequity. The prevailing rule is that in decreeing specific
performance equity requires 17
... not only that the contract be just and equitable in its provisions, but that the
consequences of specific performance likewise be equitable and just. The general
rule is that this equitable relief will not be granted if, under the circumstances of the
case, the result of the specific enforcement of the contract would be harsh,
inequitable, oppressive, or result in an unconscionable advantage to the plaintiff . .
In the exercise of its equity jurisdiction, the Court may adjust the rights of parties in accordance with
the circumstances obtaining at the time of rendition of judgment, when these are significantly
different from those existing at the time of generation of those rights.
The Court is not restricted to an adjustment of the rights of the parties as they existed
when suit was brought, but will give relief appropriate to events occuring ending the
suit. 18
While equitable jurisdiction is generally to be determined with reference to the situation
existing at the time the suit is filed, the relief to be accorded by the decree is governed by
the conditions which are shown to exist at the time of making thereof, and not by the
circumstances attending the inception of the litigation. In making up the final decree in an
equity suit the judge may rightly consider matters arising after suit was brought.
Therefore, as a general rule, equity will administer such relief as the nature, rights, facts
and exigencies of the case demand at the close of the trial or at the time of the making of
the decree. 19

That adjustment is entirely consistent with the Civil Law principle that in the exercise of rights a
person must act with justice, give everyone his due, and observe honesty and good
faith. 20 Adjustment of rights has been held to be particularly applicable when there has been a
depreciation of currency.

Depreciation of the currency or other medium of payment contracted for has

frequently been held to justify the court in withholding specific performance or at least
conditioning it upon payment of the actual value of the property contracted for. Thus,
in an action for the specific performance of a real estate contract, it has been held
that where the currency in which the plaintiff had contracted to pay had greatly
depreciated before enforcement was sought, the relief would be denied unless the
complaint would undertake to pay the equitable value of the land. (Willard & Tayloe
[U.S.] 8 Wall 557,19 L. Ed 501; Doughdrill v. Edwards, 59 Ala 424) 21
In determining the precise relief to give, the Court will "balance the equities" or the respective
interests of the parties, and take account of the relative hardship that one relief or another may
occasion to them .22
The completion of the unfinished house so that it may be put into habitable condition, as one form of
relief to the plaintiff Agcaoili, no longer appears to be a feasible option in view of the not
inconsiderable time that has already elapsed. That would require an adjustment of the price of the
subject of the sale to conform to present prices of construction materials and labor. It is more in
keeping with the realities of the situation, and with equitable norms, to simply require payment for the
land on which the house stands, and for the house itself, in its unfinished state, as of the time of the
contract. In fact, this is an alternative relief proposed by Agcaoili himself, i.e., "that judgment issue . .
(o)rdering the defendant (GSIS) to execute a deed of sale that would embody and provide for a
reasonable amortization of payment on the basis of the present actual unfinished and uncompleted
condition, worth and value of the said house. 23
WHEREFORE, the judgment of the Court a quo insofar as it invalidates and sets aside the
cancellation by respondent GSIS of the award in favor of petitioner Agcaoili of Lot No. 26, Block No.
(48) 2 of the GSIS low cost housing project at Nangka, Marikina, Rizal, and orders the former to
respect the aforesaid award and to pay damages in the amounts specified, is AFFIRMED as being in
accord with the facts and the law. Said judgments is however modified by deleting the requirement
for respondent GSIS "to complete the house in question so as to make the same habitable," and
instead it is hereby ORDERED that the contract between the parties relative to the property above
described be modified by adding to the cost of the land, as of the time of perfection of the contract,
the cost of the house in its unfinished state also as of the time of perfection of the contract, and
correspondingly adjusting the amortizations to be paid by petitioner Agcaoili, the modification to be
effected after determination by the Court a quo of the value of said house on the basis of the
agreement of the parties, or if this is not possible by such commissioner or commissioners as the
Court may appoint. No pronouncement as to costs.
SO ORDERED.
Cruz, Gancayco, Aquino and Medialdea, JJ., concur.

Footnotes
1 Dated June 24, 1964.
2 Dated October 5, 1965 (Exh. A ); Folder of Exhibits,p.1.
3 O.R. No. 186558, Oct. 10, 1966.

4 Exh. D, Folder of Exhibits, p. 4.

5 Docketed as Civil Case No. 69417.
6 The letter was sent thru the awardees' "Samahang Lakas ng Mahihirap," copy
having been marked at the trial as Exh. F; to the letter was attached a resolution of
said Samahan adopted at its meeting of July 23, 1967 and to which, in turn, was
appended a 3 page list of uncompleted houses with a specification of items not
completed.
7 By Hon. Manuel P. Barcelona, presiding over Br. VIII of the CFI of Manila; Record
on Appeal, pp. 22-25, Rollo, p. 13.
8 Parenthetical insertions Identifying the parties, supplied.
9 Appellant's brief, pp. 11-14.
10 Id., pp. 7-8.
11 Appellant's brief, pp. 8-10.
12 Exh. E.
I3 Art. 1475, Civil Code; Pacific Oxygen & Acetylene Co. v. Central Bank, 37 SCRA
685.
14 Lim v. de los Santos, 8 SCRA 798.
I5 Art. 1169, last paragraph, Civil Code.
16 Cristobal vs. Melchor, 101 SCRA 857, 865.
17 771 Am. Jur. 2d, 101.
18 30C.J.S. 929.
19 27 Am Jur. 2d. 818.
20 Art. 19, Civil Code: "Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due, and observe and
good faith."
21 71 Am. Jur. 2d, 120.
22 Am. Jur. 2nd 628-629: "Their is a general principle that a court of equity will
balance the equities' between the parties in determining what, if any, relief to give. . .
Thus, for example, wherein the effect of the only relief which can be granted to
protect the plaintiff will be destructive of the defendants' business, which would be
lawful but for the harm it does to the plaintiff, relief may be refused if, on a balancing

of the respective interests, that of the defendant is found to be relatively important,

and that of the plaintiff relatively insignificant. . ."
23 Record on Appeal, p. 5; Rollo, p. 13.
The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 73345. April 7, 1993.

SOCIAL SECURITY SYSTEM, petitioner,
vs.
MOONWALK DEVELOPMENT & HOUSING CORPORATION, ROSITA U. ALBERTO, ROSITA U.
ALBERTO, JMA HOUSE, INC., MILAGROS SANCHEZ SANTIAGO, in her capacity as Register of
Deeds for the Province of Cavite, ARTURO SOLITO, in his capacity as Register of Deeds for Metro
Manila District IV, Makati, Metro Manila and the INTERMEDIATE APPELLATE COURT,
respondents.
The Solicitor General for petitioner.
K.V. Faylona & Associates for private respondents.
DECISION
CAMPOS, JR., J p:
Before Us is a petition for review on certiorari of decision 1 of the then Intermediate Appellate Court
affirming in toto the decision of the former Court of First Instance of Rizal, Seventh Judicial District,
Branch XXIX, Pasay City.
The facts as found by the Appellate Court are as follows:
"On February 20, 1980, the Social Security System, SSS for brevity, filed a complaint in the Court of
First Instance of Rizal against Moonwalk Development & Housing Corporation, Moonwalk for short,
alleging that the former had committed an error in failing to compute the 12% interest due on
delayed payments on the loan of Moonwalk resulting in a chain of errors in the application of
payments made by Moonwalk and, in an unpaid balance on the principal loan agreement in the
amount of P7,053.77 and, also in not reflecting in its statement or account an unpaid balance on the
said penalties for delayed payments in the amount of P7,517,178.21 as of October 10, 1979.
Moonwalk answered denying SSS' claims and asserting that SSS had the opportunity to ascertain
the truth but failed to do so.
The trial court set the case for pre-trial at which pre-trial conference, the court issued an order giving
both parties thirty (30) days within which to submit a stipulation of facts.
The Order of October 6, 1980 dismissing the complaint followed the submission by the parties on
September 19, 1980 of the following stipulation of Facts:

"1. On October 6, 1971, plaintiff approved the application of defendant Moonwalk for an interim loan
in the amount of THIRTY MILLION PESOS (P30,000,000.00) for the purpose of developing and
constructing a housing project in the provinces of Rizal and Cavite;
"2. Out of the approved loan of THIRTY MILLION PESOS (P30,000,000.00), the sum of
P9,595,000.00 was released to defendant Moonwalk as of November 28, 1973;
"3. A third Amended Deed of First Mortgage was executed on December 18, 1973 Annex `D'
providing for restructuring of the payment of the released amount of P9,595,000.00.
"4. Defendants Rosita U. Alberto and Rosita U. Alberto, mother and daughter respectively, under
paragraph 5 of the aforesaid Third Amended Deed of First Mortgage substituted Associated
Construction and Surveys Corporation, Philippine Model Homes Development Corporation, Mariano
Z. Velarde and Eusebio T. Ramos, as solidary obligors;
"5. On July 23, 1974, after considering additional releases in the amount of P2,659,700.00, made to
defendant Moonwalk, defendant Moonwalk delivered to the plaintiff a promissory note for TWELVE
MILLION TWO HUNDRED FIFTY FOUR THOUSAND SEVEN HUNDRED PESOS
(P12,254,700.00) Annex `E', signed by Eusebio T. Ramos, and the said Rosita U. Alberto and Rosita
U. Alberto;
"6. Moonwalk made a total payment of P23,657,901.84 to SSS for the loan principal of
P12,254,700.00 released to it. The last payment made by Moonwalk in the amount of
P15,004,905.74 were based on the Statement of Account, Annex "F" prepared by plaintiff SSS for
defendant;
"7. After settlement of the account stated in Annex 'F' plaintiff issued to defendant Moonwalk the
Release of Mortgage for Moonwalk's mortgaged properties in Cavite and Rizal, Annexes 'G' and 'H'
on October 9, 1979 and October 11, 1979 respectively.
"8. In letters to defendant Moonwalk, dated November 28, 1979 and followed up by another letter
dated December 17, 1979, plaintiff alleged that it committed an honest mistake in releasing
defendant.
"9. In a letter dated December 21, 1979, defendant's counsel told plaintiff that it had completely paid
its obligations to SSS;
"10. The genuineness and due execution of the documents marked as Annex (sic) 'A' to 'O'
inclusive, of the Complaint and the letter dated December 21, 1979 of the defendant's counsel to the
plaintiff are admitted.
"Manila for Pasay City, September 2, 1980." 2
On October 6, 1990, the trial court issued an order dismissing the complaint on the ground that the
obligation was already extinguished by the payment by Moonwalk of its indebtedness to SSS and by
the latter's act of cancelling the real estate mortgages executed in its favor by defendant Moonwalk.
The Motion for Reconsideration filed by SSS with the trial court was likewise dismissed by the latter.
These orders were appealed to the Intermediate Appellate Court. Respondent Court reduced the
errors assigned by the SSS into this issue: ". . . are defendants-appellees, namely, Moonwalk
Development and Housing Corporation, Rosita U. Alberto, Rosita U. Alberto, JMA House, Inc. still

liable for the unpaid penalties as claimed by plaintiff-appellant or is their obligation extinguished?" 3
As We have stated earlier, the respondent Court held that Moonwalk's obligation was extinguished
and affirmed the trial court.
Hence, this Petition wherein SSS raises the following grounds for review:
"First, in concluding that the penalties due from Moonwalk are "deemed waived and/or barred," the
appellate court disregarded the basic tenet that waiver of a right must be express, made in a clear
and unequivocal manner. There is no evidence in the case at bar to show that SSS made a clear,
positive waiver of the penalties, made with full knowledge of the circumstances.
Second, it misconstrued the ruling that SSS funds are trust funds, and SSS, being a mere trustee,
cannot perform acts affecting the same, including condonation of penalties, that would diminish
property rights of the owners and beneficiaries thereof. (United Christian Missionary Society v.
Social Security Commission, 30 SCRA 982, 988 [1969]).
Third, it ignored the fact that penalty at the rate of 12% p.a. is not inequitable.
Fourth, it ignored the principle that equity will cancel a release on the ground of mistake of fact." 4
The same problem which confronted the respondent court is presented before Us: Is the penalty
demandable even after the extinguishment of the principal obligation?
The former Intermediate Appellate Court, through Justice Eduard P. Caguioa, held in the negative. It
reasoned, thus:
"2. As we have explained under No. 1, contrary to what the plaintiff-appellant states in its Brief, what
is sought to be recovered in this case is not the 12% interest on the loan but the 12% penalty for
failure to pay on time the amortization. What is sought to be enforced therefore is the penal clause of
the contract entered into between the parties.
Now, what is a penal clause. A penal clause has been defined as
"an accessory obligation which the parties attach to a principal obligation for the purpose of insuring
the performance thereof by imposing on the debtor a special presentation (generally consisting in
the payment of a sum of money) in case the obligation is not fulfilled or is irregularly or inadequately
fulfilled" (3 Castan 8th Ed. p. 118).
Now an accessory obligation has been defined as that attached to a principal obligation in order to
complete the same or take its place in the case of breach (4 Puig Pea Part 1 p. 76). Note therefore
that an accessory obligation is dependent for its existence on the existence of a principal obligation.
A principal obligation may exist without an accessory obligation but an accessory obligation cannot
exist without a principal obligation. For example, the contract of mortgage is an accessory obligation
to enforce the performance of the main obligation of indebtedness. An indebtedness can exist
without the mortgage but a mortgage cannot exist without the indebtedness, which is the principal
obligation. In the present case, the principal obligation is the loan between the parties. The
accessory obligation of a penal clause is to enforce the main obligation of payment of the loan. If
therefore the principal obligation does not exist the penalty being accessory cannot exist.
Now then when is the penalty demandable? A penalty is demandable in case of non performance or
late performance of the main obligation. In other words in order that the penalty may arise there

must be a breach of the obligation either by total or partial non fulfillment or there is non fulfillment in
point of time which is called mora or delay. The debtor therefore violates the obligation in point of
time if there is mora or delay. Now, there is no mora or delay unless there is a demand. It is
noteworthy that in the present case during all the period when the principal obligation was still
subsisting, although there were late amortizations there was no demand made by the creditor,
plaintiff-appellant for the payment of the penalty. Therefore up to the time of the letter of plaintiffappellant there was no demand for the payment of the penalty, hence the debtor was no in mora in
the payment of the penalty.
However, on October 1, 1979, plaintiff-appellant issued its statement of account (Exhibit F) showing
the total obligation of Moonwalk as P15,004,905.74, and forthwith demanded payment from
defendant-appellee. Because of the demand for payment, Moonwalk made several payments on
September 29, October 9 and 19, 1979 respectively, all in all totalling P15,004,905.74 which was a
complete payment of its obligation as stated in Exhibit F. Because of this payment the obligation of
Moonwalk was considered extinguished, and pursuant to said extinguishment, the real estate
mortgages given by Moonwalk were released on October 9, 1979 and October 10, 1979 (Exhibits G
and H). For all purposes therefore the principal obligation of defendant-appellee was deemed
extinguished as well as the accessory obligation of real estate mortgage; and that is the reason for
the release of all the Real Estate Mortgages on October 9 and 10, 1979 respectively.
Now, besides the Real Estate Mortgages, the penal clause which is also an accessory obligation
must also be deemed extinguished considering that the principal obligation was considered
extinguished, and the penal clause being an accessory obligation. That being the case, the demand
for payment of the penal clause made by plaintiff-appellant in its demand letter dated November 28,
1979 and its follow up letter dated December 17, 1979 (which parenthetically are the only demands
for payment of the penalties) are therefore ineffective as there was nothing to demand. It would be
otherwise, if the demand for the payment of the penalty was made prior to the extinguishment of the
obligation because then the obligation of Moonwalk would consist of: 1) the principal obligation 2)
the interest of 12% on the principal obligation and 3) the penalty of 12% for late payment for after
demand, Moonwalk would be in mora and therefore liable for the penalty.
Let it be emphasized that at the time of the demand made in the letters of November 28, 1979 and
December 17, 1979 as far as the penalty is concerned, the defendant-appellee was not in default
since there was no mora prior to the demand. That being the case, therefore, the demand made
after the extinguishment of the principal obligation which carried with it the extinguishment of the
penal clause being merely an accessory obligation, was an exercise in futility.
3. At the time of the payment made of the full obligation on October 10, 1979 together with the 12%
interest by defendant-appellee Moonwalk, its obligation was extinguished. It being extinguished,
there was no more need for the penal clause. Now, it is to be noted that penalty at anytime can be
modified by the Court. Even substantial performance under Art. 1234 authorizes the Court to
consider it as complete performance minus damages. Now, Art, 1229 Civil Code of the Philippines
provides:
"ART. 1229. The judge shall equitably reduce the penalty when the principal obligation has been
partly or irregularly complied with by the debtor. Even if there has been no performance, the penalty
may also be reduced by the courts if it is iniquitous or unconscionable."
If the penalty can be reduced after the principal obligation has been partly or irregularly complied
with by the debtor, which is nonetheless a breach of the obligation, with more reason the penal
clause is not demandable when full obligation has been complied with since in that case there is no
breach of the obligation. In the present case, there has been as yet no demand for payment of the

penalty at the time of the extinguishment of the obligation, hence there was likewise an
extinguishment of the penalty.
Let Us emphasize that the obligation of defendant-appellee was fully complied with by the debtor,
that is, the amount loaned together with the 12% interest has been fully paid by the appellee. That
being so, there is no basis for demanding the penal clause since the obligation has been
extinguished. Here there has been a waiver of the penal clause as it was not demanded before the
full obligation was fully paid and extinguished. Again, emphasis must be made on the fact that
plaintiff-appellant has not lost anything under the contract since in got back in full the amount loan
(sic) as well as the interest thereof. The same thing would have happened if the obligation was paid
on time, for then the penal clause, under the terms of the contract would not apply. Payment of the
penalty does not mean gain or loss of plaintiff-appellant since it is merely for the purpose of
enforcing the performance of the main obligation has been fully complied with and extinguished, the
penal clause has lost its raison d' entre." 5
We find no reason to depart from the appellate court's decision. We, however, advance the following
reasons for the denial of this petition.
Article 1226 of the Civil Code provides:
"Art. 1226. In obligations with a penal clause, he penalty shall substitute the indemnity for damages
and the payment of interests in case of noncompliance, if there is no stipulation to the contrary.
Nevertheless, damages shall be paid if the obligor refuses to pay the penalty or is guilty of fraud in
the fulfillment of the obligation.
The penalty may be enforced only when it is demandable in accordance with the provisions of this
Code." (Emphasis Ours.)
A penal clause is an accessory undertaking to assume greater liability in case of breach. 6 It has a
double function: (1) to provide for liquidated damages, and (2) to strengthen the coercive force of the
obligation by the threat of greater responsibility in the event of breach. 7 From the foregoing, it is
clear that a penal clause is intended to prevent the obligor from defaulting in the performance of his
obligation. Thus, if there should be default, the penalty may be enforced. One commentator of the
Civil Code wrote:
"Now when is the penalty deemed demandable in accordance with the provisions of the Civil Code?
We must make a distinction between a positive and a negative obligation. With regard to obligations
which are positive (to give and to do), the penalty is demandable when the debtor is in mora; hence,
the necessity of demand by the debtor unless the same is excused . . ." 8
When does delay arise? Under the Civil Code, delay begins from the time the obligee judicially or
extrajudicially demands from the obligor the performance of the obligation.
"Art. 1169. Those obliged to deliver or to do something incur in delay from the time the obligee
judicially or extrajudicially demands from them the fulfillment of their obligation."
There are only three instances when demand is not necessary to render the obligor in default. These
are the following:
"(1) When the obligation or the law expressly so declares;

(2) When from the nature and the circumstances of the obligation it appears that the designation of
the time when the thing is to be delivered or the service is to be rendered was a controlling motive
for the establishment of the contract; or
(3) When the demand would be useless, as when the obligor has rendered it beyond his power to
perform." 9
This case does not fall within any of the established exceptions. Hence, despite the provision in the
promissory note that "(a)ll amortization payments shall be made every first five (5) days of the
calendar month until the principal and interest on the loan or any portion thereof actually released
has been fully paid," 10 petitioner is not excused from making a demand. It has been established
that at the time of payment of the full obligation, private respondent Moonwalk has long been
delinquent in meeting its monthly arrears and in paying the full amount of the loan itself as the
obligation matured sometime in January, 1977. But mere delinquency in payment does not
necessarily mean delay in the legal concept. To be in default ". . . is different from mere delay in the
grammatical sense, because it involves the beginning of a special condition or status which has its
own peculiar effects or results." 11 In order that the debtor may be in default it is necessary that the
following requisites be present: (1) that the obligation be demandable and already liquidated; (2) that
the debtor delays performance; and (3) that the creditor requires the performance judicially and
extrajudicially. 12 Default generally begins from the moment the creditor demands the performance
of the obligation. 13
Nowhere in this case did it appear that SSS demanded from Moonwalk the payment of its monthly
amortizations. Neither did it show that petitioner demanded the payment of the stipulated penalty
upon the failure of Moonwalk to meet its monthly amortization. What the complaint itself showed was
that SSS tried to enforce the obligation sometime in September, 1977 by foreclosing the real estate
mortgages executed by Moonwalk in favor of SSS. But this foreclosure did not push through upon
Moonwalk's requests and promises to pay in full. The next demand for payment happened on
October 1, 1979 when SSS issued a Statement of Account to Moonwalk. And in accordance with
said statement, Moonwalk paid its loan in full. What is clear, therefore, is that Moonwalk was never
in default because SSS never compelled performance. Though it tried to foreclose the mortgages,
SSS itself desisted from doing so upon the entreaties of Moonwalk. If the Statement of Account
could properly be considered as demand for payment, the demand was complied with on time.
Hence, no delay occurred and there was, therefore, no occasion when the penalty became
demandable and enforceable. Since there was no default in the performance of the main obligation
payment of the loan SSS was never entitled to recover any penalty, not at the time it made the
Statement of Account and certainly, not after the extinguishment of the principal obligation because
then, all the more that SSS had no reason to ask for the penalties. Thus, there could never be any
occasion for waiver or even mistake in the application for payment because there was nothing for
SSS to waive as its right to enforce the penalty did not arise.
SSS, however, in buttressing its claim that it never waived the penalties, argued that the funds it held
were trust funds and as trustee, the petitioner could not perform acts affecting the funds that would
diminish property rights of the owners and beneficiaries thereof. To support its claim, SSS cited the
case of United Christian Missionary Society v. Social Security Commission. 14
We looked into the case and found out that it is not applicable to the present case as it dealt not with
the right of the SSS to collect penalties which were provided for in contracts which it entered into but
with its right to collect premiums and its duty to collect the penalty for delayed payment or nonpayment of premiums. The Supreme Court, in that case, stated:

"No discretion or alternative is granted respondent Commission in the enforcement of the law's
mandate that the employer who fails to comply with his legal obligation to remit the premiums to the
System within the prescribed period shall pay a penalty of three (3%) per month. The prescribed
penalty is evidently of a punitive character, provided by the legislature to assure that employers do
not take lightly the State's exercise of the police power in the implementation of the Republic's
declared policy "to develop, establish gradually and perfect a social security system which shall be
suitable to the needs of the people throughout the Philippines and (to) provide protection to
employers against the hazards of disability, sickness, old age and death . . ."
Thus, We agree with the decision of the respondent court on the matter which We quote, to wit:
"Note that the above case refers to the condonation of the penalty for the non remittance of the
premium which is provided for by Section 22(a) of the Social Security Act . . . In other words, what
was sought to be condoned was the penalty provided for by law for non remittance of premium for
coverage under the Social Security Act.
The case at bar does not refer to any penalty provided for by law nor does it refer to the non
remittance of premium. The case at bar refers to a contract of loan entered into between plaintiff and
defendant Moonwalk Development and Housing Corporation. Note, therefore, that no provision of
law is involved in this case, nor is there any penalty imposed by law nor a case about non-remittance
of premium required by law. The present case refers to a contract of loan payable in installments not
provided for by law but by agreement of the parties. Therefore, the ratio decidendi of the case of
United Christian Missionary Society vs. Social Security Commission which plaintiff-appellant relies is
not applicable in this case; clearly, the Social Security Commission, which is a creature of the Social
Security Act cannot condone a mandatory provision of law providing for the payment of premiums
and for penalties for non remittance. The life of the Social Security Act is in the premiums because
these are the funds from which the Social Security Act gets the money for its purposes and the nonremittance of the premiums is penalized not by the Social Security Commission but by law.
xxx xxx xxx
It is admitted that when a government created corporation enters into a contract with private party
concerning a loan, it descends to the level of a private person. Hence, the rules on contract
applicable to private parties are applicable to it. The argument therefore that the Social Security
Commission cannot waive or condone the penalties which was applied in the United Christian
Missionary Society cannot apply in this case. First, because what was not paid were installments on
a loan but premiums required by law to be paid by the parties covered by the Social Security Act.
Secondly, what is sought to be condoned or waived are penalties not imposed by law for failure to
remit premiums required by law, but a penalty for non payment provided for by the agreement of the
parties in the contract between them . . ." 15
WHEREFORE, in view of the foregoing, the petition is DISMISSED and the decision of the
respondent court is AFFIRMED. LLpr
SO ORDERED.
Narvasa, C .J ., Padilla, Regalado and Nocon, JJ ., concur.
Footnotes
1. AC-G.R. CV No. 68692, "Social Security System vs. Moonwalk Development & Housing
Corporation, et al.", penned by Associate Justice Eduardo P. Caguioa, Associate Justices

Abdulwahid A. Bidin and Floreliana C. Bartolome, concurring with dissenting opinion of Presiding
Justice Ramon G. Gaviola, Jr., and Associate Justice Ma. Rosario Quetulio-Losa, concurring.
2. Annex "A" of Petition, pp. 1-3; Rollo, pp. 44-46.
3. Decision, p. 13; Rollo, p. 56.
4. Petition, p. 12; Rollo, p. 27.
5. Rollo, pp. 62-66.
6. 4 TOLENTINO, CIVIL CODE OF THE PHILIPPINES 259 (1991 ed.).
7. Ibid.
8. 4 E.P. CAGUIOA, COMMENTS AND CASES ON CIVIL LAW 280 (1983 ed.).
9. CIVIL CODE, Art. 1169.
10. Annex "C" of the Petition, Record on Appeal, p. 10.
11. Supra, note 6.
12. Ibid.
13. Ibid.
14. 30 SCRA 982, 987 (1969).
15. Supra, note 3, pp. 17-18.

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