G.R. No.

L-11037 December 29, 1960

EDGARDO CARIAGA, ET AL., plaintiffs-appellants,

vs.
LAGUNA TAYABAS BUS COMPANY, defendant-appellant.
MANILA RAILROAD COMPANY, defendant-appellee.

Ozaeta, Lichauco and Picazo for defendant and appellant.

E.A. Fernandez and L.H. Fernandez for plaintiffs and appellants.
Gov't. Corp. Counsel A. Padilla and Atty. F.A. Umali for appellee.

DIZON, J.:

At about 1:00 p.m. on June 18, 1952, Bus No. 133 of the Laguna Tayabas Bus
Co. — hereinafter referred to as the LTB — driven by Alfredo Moncada, left its station at Azcarraga St., Manila,
for Lilio, Laguna, with Edgardo Cariaga, a fourth-year medical student of the University of Santo Tomas, as one of
its passengers. At about 3:00 p.m., as the bus reached that part of the poblacion of Bay, Laguna, where the national
highway crossed a railroad track, it bumped against the engine of a train then passing by with such terrific force
that the first six wheels of the latter were derailed, the engine and the front part of the body of the bus was wrecked,
the driver of the bus died instantly, while many of its passengers, Edgardo among them, were severely injured.
Edgardo was first confined at the San Pablo City Hospital from 5:00 p.m., June 18, 1952, to 8:25 a.m., June 20 of
the same year when he was taken to the De los Santos Clinic, Quezon City. He left that clinic on October 14 to be
transferred to the University of Santo Tomas Hospital where he stayed up to November 15. On this last date he
was taken back to the De los Santos Clinic where he stayed until January 15, 1953. He was unconscious during the
first 35 days after the accident; at the De los Santos Clinic Dr. Gustilo removed the fractured bones which
lacerated the right frontal lobe of his brain and at the University of Santo Tomas Hospital Dr. Gustilo performed
another operation to cover a big hole on the right frontal part of the head with a tantalum plate.

The LTB paid the sum of P16,964.45 for all the hospital, medical and miscellaneous expenses incurred from June
18, 1952 to April, 1953. From January 15, 1953 up to April of the same year Edgardo stayed in a private house in
Quezon, City, the LTB having agreed to give him a subsistence allowance of P10.00 daily during his
convalescence, having spent in this connection the total sum of P775.30 in addition to the amount already referred
to.

On April 24, 1953 the present action was filed to recover for Edgardo Cariaga, from the LTB and the MRR Co.,
and total sum of P312,000.00 as actual, compensatory, moral and exemplary damages, and for his parents, the sum
of P18,00.00 in the same concepts. The LTB disclaimed liability claiming that the accident was due to the
negligence of its co-defendant, the Manila Railroad Company, for not providing a crossing bar at the point where
the national highway crossed the railway track, and for this reason filed the corresponding cross-claim against the
latter company to recover the total sum of P18,194.75 representing the expenses paid to Edgardo Cariaga. The
Manila Railroad Company, in turn, denied liability upon the complaint and cross-claim alleging that it was the
reckless negligence of the bus driver that caused the accident.

The lower court held that it was the negligence of the bus driver that caused the accident and, as a result, rendered
judgment sentencing the LTB to pay Edgardo Cariaga the sum of P10,490.00 as compensatory damages, with
interest at the legal rate from the filing of the complaint, and dismissing the cross-claim against the Manila
Railroad Company. From this decision the Cariagas and the LTB appealed.

The Cariagas claim that the trial court erred: in awarding only P10,490.00 as compensatory damages to Edgardo;
in not awarding them actual and moral damages, and in not sentencing appellant LTB to pay attorney's fees.

On the other hand, the LTB's principal contention in this appeal is that the trial court should have held that the
collision was due to the fault of both the locomotive driver and the bus driver and erred, as a consequence, in not
holding the Manila Railroad Company liable upon the cross-claim filed against it.

We shall first dispose of the appeal of the bus company. Its first contention is that the driver of the train
locomotive, like the bus driver, violated the law, first, in sounding the whistle only when the collision was about to
take place instead of at a distance at least 300 meters from the crossing, and second, in not ringing the locomotive
bell at all. Both contentions are without merits.

After considering the evidence presented by both parties the lower court expressly found:

. . . While the train was approximately 300 meters from the crossing, the engineer sounded two long and two short
whistles and upon reaching a point about 100 meters from the highway, he sounded a long whistle which lasted up
to the time the train was about to cross it. The bus proceeded on its way without slackening its speed and it
bumped against the train engine, causing the first six wheels of the latter to be derailed.

xxx xxx xxx

. . . that the train whistle had been sounded several times before it reached the crossing. All witnesses for the
plaintiffs and the defendants are uniform in stating that they heard the train whistle sometime before the impact
and considering that some of them were in the bus at the time, the driver thereof must have heard it because he was
seated on the left front part of the bus and it was his duty and concern to observe such fact in connection with the
safe operation of the vehicle. The other L.T.B. bus which arrived ahead at the crossing, heeded the warning by
stopping and allowing the train to pass and so nothing happened to said vehicle. On the other hand, the driver of
the bus No. 133 totally ignored the whistle and noise produced by the approaching train and instead he tried to
make the bus pass the crossing before the train by not stopping a few meters from the railway track and in
proceeding ahead.

The above findings of the lower court are predicated mainly upon the testimony of Gregorio Ilusondo, a witness
for the Manila Railroad Company. Notwithstanding the efforts exerted by the LTB to assail his credibility, we do
not find in the record any fact or circumstance sufficient to discredit his testimony. We have, therefore, no other
alternative but to accept the findings of the trial court to the effect, firstly, that the whistle of locomotive was
sounded four times — two long and two short — "as the train was approximately 300 meters from the crossing";
secondly, that another LTB bus which arrived at the crossing ahead of the one where Edgardo Cariaga was a
passenger, paid heed to the warning and stopped before the "crossing", while — as the LTB itself now admits
(Brief p. 5) — the driver of the bus in question totally disregarded the warning.

But to charge the MRR Co. with contributory negligence, the LTB claims that the engineer of the locomotive
failed to ring the bell altogether, in violation of the section 91 of Article 1459, incorporated in the charter of the
said MRR Co. This contention — as is obvious — is the very foundation of the cross-claim interposed by the LTB
against its
co-defendant. The former, therefore, had the burden of proving it affirmatively because a violation of law is never
presumed. The record discloses that this burden has not been satisfactorily discharged.

The Cariagas, as appellants, claim that the award of P10,000.00 compensatory damages to Eduardo is inadequate
considering the nature and the after effects of the physical injuries suffered by him. After a careful consideration of
the evidence on this point we find their contentions to be well-founded.

From the deposition of Dr. Romeo Gustilo, a neurosurgeon, it appears that, as a result of the injuries suffered by
Edgardo, his right forehead was fractured necessitating the removal of practically all of the right frontal lobe of his
brain. From the testimony of Dr. Jose A. Fernandez, a psychiatrist, it may be gathered that, because of the physical
injuries suffered by Edgardo, his mentality has been so reduced that he can no longer finish his studies as a
medical student; that he has become completely misfit for any kind of work; that he can hardly walk around
without someone helping him, and has to use a brace on his left leg and feet.

Upon the whole evidence on the matter, the lower court found that the removal of the right frontal lobe of the brain
of Edgardo reduced his intelligence by about 50%; that due to the replacement of the right frontal bone of his head
with a tantalum plate Edgardo has to lead a quite and retired life because "if the tantalum plate is pressed in or
dented it would cause his death."

The impression one gathers from this evidence is that, as a result of the physical injuries suffered by Edgardo
Cariaga, he is now in a helpless condition, virtually an invalid, both physically and mentally.

Appellant LTB admits that under Art. 2201 of the Civil Code the damages for which the obligor, guilty of a breach
of contract but who acted in good faith, is liable shall be those that are the natural and probable consequences of
the breach and which the parties had forseen or could have reasonably forseen at the time the obligation was
constituted, provided such damages, according to Art. 2199 of the same Code, have been duly proved. Upon this
premise it claims that only the actual damages suffered by Edgardo Cariaga consisting of medical, hospital and
other expenses in the total sum of P17,719.75 are within this category. We are of the opinion, however, that the
income which Edgardo Cariaga could earn if he should finish the medical course and pass the corresponding board
examinations must be deemed to be within the same category because they could have reasonably been foreseen
by the parties at the time he boarded the bus No. 133 owned and operated by the LTB. At that time he was already
a fourth-year student in medicine in a reputable university. While his scholastic may not be first rate (Exhibits 4,
4-A to 4-C), it is, nevertheless, sufficient to justify the assumption that he could have passed the board test in due
time. As regards the income that he could possibly earn as a medical practitioner, it appears that, according to Dr.
Amado Doria, a witness for the LTB, the amount of P300.00 could easily be expected as the minimum monthly
income of Edgardo had he finished his studies.

Upon consideration of all the facts mentioned heretofore this Court is of the opinion, and so holds, that the
compensatory damages awarded to Edgardo Cariaga should be increased to P25,000.00.

Edgardo Cariaga's claim for moral damages and attorney's fees was denied by the trial court, the pertinent portion
of its decision reading as follows:

Plaintiffs' claim for moral damages cannot also be granted. Article 2219 of the Civil Code enumerates the
instances when moral damages may be covered and the case under consideration does not fall under any one of
them. The present action cannot come under paragraph 2 of said article because it is not one of the quasi-delict and
cannot be considered as such because of the pre-existing contractual relation between the Laguna Tayabas Bus
Company and Edgardo Cariaga. Neither could defendant Laguna Tayabas Bus Company be held liable to pay
moral damages to Edgardo Cariaga under Article 2220 of the Civil Code on account of breach of its contract of
carriage because said defendant did not act fraudulently or in bad faith in connection therewith. Defendant Laguna
Tayabas Bus Company had exercised due diligence in the selection and supervision of its employees like the
drivers of its buses in connection with the discharge of their duties and so it must be considered an obligor in good
faith.

The plaintiff Edgardo Cariaga is also not entitled to recover for attorney's fees, because this case does not fall
under any of the instances enumerated in Article 2208 of the Civil Code.

We agree with the trial court and, to the reason given above, we add those given by this Court in Cachero vs.
Manila Yellow Taxicab Co., Inc.(101 Phil., 523, 530, 533):

A mere perusal of plaintiff's complaint will show that this action against the defendant is predicated on an alleged
breach of contract of carriage, i.e., the failure of the defendants to bring him "safely and without mishaps" to his
destination, and it is to be noted that the chauffeur of defendant's taxicab that plaintiff used when he received the
injuries involved herein, Gregorio Mira, has not even made a party defendant to this case.

Considering, therefore, the nature of plaintiff's action in this case, is he entitled to compensation for moral
damages? Article 2219 of the Civil Code says the following:

Art. 2219. Moral damages may be recovered in the following and analogous cases:

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;

(3) Seduction, abduction, rape, or other lascivious acts;

(4) Adultery or concubinage;

(5) Illegal or arbitrary detention or arrest;

(6) Illegal search;

(7) Libel, slander or any other form of defamation;

(8) Malicious prosecution;

(9) Acts mentioned in Article 309;

(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35.

xxx xxx xxx

Of course enumerated in the just quoted Article 2219 only the first two may have any bearing on the case at bar.
We find, however, with regard to the first that the defendant herein has not committed in connection with this case
any "criminal offense resulting in physical injuries". The one that committed the offense against the plaintiff is
Gregorio Mira, and that is why he has been already prosecuted and punished therefor. Altho (a) owners and
managers of an establishment and enterprise are responsible for damages caused by their employees in the service
of the branches in which the latter are employed or on the occasion of their functions; (b) employers are likewise
liable for damages caused by their employees and household helpers acting within the scope of their assigned task
(Article 218 of the Civil Code); and (c) employers and corporations engaged in any kind of industry are subsidiary
civilly liable for felonies committed by their employees in the discharge of their duties (Art. 103, Revised Penal
Code), plaintiff herein does not maintain this action under the provisions of any of the articles of the codes just
mentioned and against all the persons who might be liable for the damages caused, but as a result of an admitted
breach of contract of carriage and against the defendant employer alone. We, therefore, hold that the case at bar
does not come within the exception of paragraph 1, Article 2219 of the Civil Code.

The present complaint is not based either on a "quasi-delict causing physical injuries" (Art. 2219, par. 2 of the
Civil Code). From the report of the Code Commission on the new Civil Code. We copy the following:

A question of nomenclature confronted the Commission. After a careful deliberation, it was agreed to use the term
"quasi-delict" for those obligations which do not arise from law, contracts, quasi-contracts, or criminal offenses.
They are known in Spanish legal treaties as "culpa aquiliana", "culpa-extra-contractual" or "cuasi-delitos". The
phrase "culpa-extra-contractual" or its translation "extra-contractual-fault" was eliminated because it did not
exclude quasi-contractual or penal obligations. "Aquilian fault" might have been selected, but it was thought
inadvisable to refer to so ancient a law as the "Lex Aquilia". So "quasi-delict" was chosen, which more nearly
corresponds to the Roman Law classification of the obligations and is in harmony with the nature of this kind of
liability.

The Commission also thought of the possibility of adopting the word "tort" from Anglo-American law. But "tort"
under that system is much broader than the Spanish-Philippine concept of obligations arising from non-contractual
negligence. "Tort" in Anglo-American jurisprudence includes not only negligence, but also intentional criminal act,
such as assault and battery, false imprisonment and deceit. In the general plan of the Philippine legal system,
intentional and malicious acts are governed by the Penal Code, although certain exceptions are made in the Project.
(Report of the Code Commission, pp. 161-162).

In the case of Cangco, vs. Manila Railroad, 38 Phil. 768, We established the distinction between obligation derived
from negligence and obligation as a result of a breach of contract. Thus, we said:

It is important to note that the foundation of the legal liability of the defendant is the contract of carriage, and that
the obligation to respond for the damage which plaintiff has suffered arises, if at all, from the breach of that
contract by reason of the failure of defendant to exercise due care in its performance. That is to say, its liability is
direct and immediate, differing essentially in the legal viewpoint from the presumptive responsibility for the
negligence of its servants, imposed by Article 1903 of the Civil Code (Art. 2180 of the new), which can be rebutted
by proof of the exercise of due care in their selection of supervision. Article 1903 is not applicable to obligations
arising EX CONTRACTU, but only to extra-contractual obligations — or to use the technical form of expression,
that article relates only to CULPA AQUILIANA' and not to CULPA CONTRACTUAL.lawphil.net

The decisions in the cases of Castro vs. Acro Taxicab Co., (82 Phil., 359; 46 Off. Gaz., No. 5, p. 2023); Lilius, et al.
vs. Manila Railroad, 59 Phil., 758) and others, wherein moral damages were awarded to the plaintiffs, are not
applicable to the case at bar because said decision were rendered before the effectivity of the new Civil Code
(August 30, 1950) and for the further reason that the complaints filed therein were based on different causes of
action.

In view of the foregoing the sum of P2,000 was awarded as moral damages by the trial court has to be eliminated,
for under the law it is not a compensation awardable in a case like the one at bar.

What has been said heretofore relative to the moral damages claimed by Edgardo Cariaga obviously applies with
greater force to a similar claim (4th assignment of error) made by his parents.

The claim made by said spouses for actual and compensatory damages is likewise without merits. As held by the
trial court, in so far as the LTB is concerned, the present action is based upon a breach of contract of carriage to
which said spouses were not a party, and neither can they premise their claim upon the negligence or quasi-delict
of the LTB for the simple reason that they were not themselves injured as a result of the collision between the LTB
bus and train owned by the Manila Railroad Company.

Wherefore, modified as above indicated, the appealed judgement is hereby affirmed in all other respects, with
costs against appellant LTB.

Paras, C.J., Bengzon, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Gutierrez David, and Paredes, JJ.,
concur.

[G.R. No. 130547. October 3, 2000]

LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, and minors LLOYD and KRISTINE, all surnamed
REYES, represented by their mother, LEAH ALESNA REYES, petitioners, vs. SISTERS OF MERCY
HOSPITAL, SISTER ROSE PALACIO, DR. MARVIE BLANES, and DR. MARLYN RICO, respondents.

DECISION

MENDOZA, J.:

This is a petition for review of the decision[1] of the Court of Appeals in CA-G.R. CV No. 36551 affirming the
decision of the Regional Trial Court, Branch IX, Cebu City which dismissed a complaint for damages filed by
petitioners against respondents.

The facts are as follows:

Petitioner Leah Alesna Reyes is the wife of the late Jorge Reyes. The other petitioners, namely, Rose Nahdja,
Johnny, Lloyd, and Kristine, all surnamed Reyes, were their children. Five days before his death on January 8,
1987, Jorge had been suffering from a recurring fever with chills. After he failed to get relief from some home
medication he was taking, which consisted of analgesic, antipyretic, and antibiotics, he decided to see the doctor.

On January 8, 1987, he was taken to the Mercy Community Clinic by his wife. He was attended to by respondent
Dr. Marlyn Rico, resident physician and admitting physician on duty, who gave Jorge a physical examination and
took his medical history. She noted that at the time of his admission, Jorge was conscious, ambulatory, oriented,
coherent, and with respiratory distress.[2] Typhoid fever was then prevalent in the locality, as the clinic had been
getting from 15 to 20 cases of typhoid per month.[3] Suspecting that Jorge could be suffering from this disease, Dr.
Rico ordered a Widal Test, a standard test for typhoid fever, to be performed on Jorge. Blood count, routine
urinalysis, stool examination, and malarial smear were also made.[4] After about an hour, the medical technician
submitted the results of the test from which Dr. Rico concluded that Jorge was positive for typhoid fever. As her
shift was only up to 5:00 p.m., Dr. Rico indorsed Jorge to respondent Dr. Marvie Blanes.
Dr. Marvie Blanes attended to Jorge at around six in the evening. She also took Jorges history and gave him a
physical examination. Like Dr. Rico, her impression was that Jorge had typhoid fever. Antibiotics being the
accepted treatment for typhoid fever, she ordered that a compatibility test with the antibiotic chloromycetin be
done on Jorge. Said test was administered by nurse Josephine Pagente who also gave the patient a dose of triglobe.
As she did not observe any adverse reaction by the patient to chloromycetin, Dr. Blanes ordered the first five
hundred milligrams of said antibiotic to be administered on Jorge at around 9:00 p.m. A second dose was
administered on Jorge about three hours later just before midnight.

At around 1:00 a.m. of January 9, 1987, Dr. Blanes was called as Jorges temperature rose to 41C. The patient also
experienced chills and exhibited respiratory distress, nausea, vomiting, and convulsions. Dr. Blanes put him under
oxygen, used a suction machine, and administered hydrocortisone, temporarily easing the patients convulsions.
When he regained consciousness, the patient was asked by Dr. Blanes whether he had a previous heart ailment or
had suffered from chest pains in the past. Jorge replied he did not.[5] After about 15 minutes, however, Jorge again
started to vomit, showed restlessness, and his convulsions returned. Dr. Blanes re-applied the emergency measures
taken before and, in addition, valium was administered. Jorge, however, did not respond to the treatment and
slipped into cyanosis, a bluish or purplish discoloration of the skin or mucous membrane due to deficient
oxygenation of the blood. At around 2:00 a.m., Jorge died. He was forty years old. The cause of his death was
Ventricular Arrythemia Secondary to Hyperpyrexia and typhoid fever.

On June 3, 1987, petitioners filed before the Regional Trial Court of Cebu City a complaint[6]for damages against
respondents Sisters of Mercy, Sister Rose Palacio, Dr. Marvie Blanes, Dr. Marlyn Rico, and nurse Josephine
Pagente. On September 24, 1987, petitioners amended their complaint to implead respondent Mercy Community
Clinic as additional defendant and to drop the name of Josephine Pagente as defendant since she was no longer
connected with respondent hospital. Their principal contention was that Jorge did not die of typhoid fever.[7]
Instead, his death was due to the wrongful administration of chloromycetin. They contended that had respondent
doctors exercised due care and diligence, they would not have recommended and rushed the performance of the
Widal Test, hastily concluded that Jorge was suffering from typhoid fever, and administered chloromycetin
without first conducting sufficient tests on the patients compatibility with said drug. They charged respondent
clinic and its directress, Sister Rose Palacio, with negligence in failing to provide adequate facilities and in hiring
negligent doctors and nurses.[8]

Respondents denied the charges. During the pre-trial conference, the parties agreed to limit the issues on the
following: (1) whether the death of Jorge Reyes was due to or caused by the negligence, carelessness, imprudence,
and lack of skill or foresight on the part of defendants; (2) whether respondent Mercy Community Clinic was
negligent in the hiring of its employees; and (3) whether either party was entitled to damages. The case was then
heard by the trial court during which, in addition to the testimonies of the parties, the testimonies of doctors as
expert witnesses were presented.

Petitioners offered the testimony of Dr. Apolinar Vacalares, Chief Pathologist at the Northern Mindanao Training
Hospital, Cagayan de Oro City. On January 9, 1987, Dr. Vacalares performed an autopsy on Jorge Reyes to
determine the cause of his death. However, he did not open the skull to examine the brain. His findings[9] showed
that the gastro-intestinal tract was normal and without any ulceration or enlargement of the nodules. Dr. Vacalares
testified that Jorge did not die of typhoid fever. He also stated that he had not seen a patient die of typhoid fever
within five days from the onset of the disease.

For their part, respondents offered the testimonies of Dr. Peter Gotiong and Dr. Ibarra Panopio. Dr. Gotiong is a
diplomate in internal medicine whose expertise is microbiology and infectious diseases. He is also a consultant at
the Cebu City Medical Center and an associate professor of medicine at the South Western University College of
Medicine in Cebu City. He had treated over a thousand cases of typhoid patients. According to Dr. Gotiong, the
patients history and positive Widal Test results ratio of 1:320 would make him suspect that the patient had typhoid
fever. As to Dr. Vacalares observation regarding the absence of ulceration in Jorges gastro-intestinal tract, Dr.
Gotiong said that such hyperplasia in the intestines of a typhoid victim may be microscopic. He noted that since
the toxic effect of typhoid fever may lead to meningitis, Dr. Vacalares autopsy should have included an
examination of the brain.[10]

The other doctor presented was Dr. Ibarra Panopio, a member of the American Board of Pathology, examiner of
the Philippine Board of Pathology from 1978 to 1991, fellow of the Philippine Society of Pathologist, associate
professor of the Cebu Institute of Medicine, and chief pathologist of the Andres Soriano Jr. Memorial Hospital in
Toledo City. Dr. Panopio stated that although he was partial to the use of the culture test for its greater reliability in
the diagnosis of typhoid fever, the Widal Test may also be used. Like Dr. Gotiong, he agreed that the 1:320 ratio in
Jorges case was already the maximum by which a conclusion of typhoid fever may be made. No additional
information may be deduced from a higher dilution.[11] He said that Dr. Vacalares autopsy on Jorge was
incomplete and thus inconclusive.

On September 12, 1991, the trial court rendered its decision absolving respondents from the charges of negligence
and dismissing petitioners action for damages. The trial court likewise dismissed respondents counterclaim,
holding that, in seeking damages from respondents, petitioners were impelled by the honest belief that Jorges death
was due to the latters negligence.

Petitioners brought the matter to the Court of Appeals. On July 31, 1997, the Court of Appeals affirmed the
decision of the trial court.

Hence this petition.

Petitioners raise the following assignment of errors:

I. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN IT RULED

THAT THE DOCTRINE OF RES IPSA LOQUITUR IS NOT APPLICABLE IN THE INSTANT CASE.

II. THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT MADE AN
UNFOUNDED ASSUMPTION THAT THE LEVEL OF MEDICAL PRACTICE IS LOWER IN ILIGAN CITY.

III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED FOR A LESSER
STANDARD OF CARE AND DEGREE OF DILIGENCE FOR MEDICAL PRACTICE IN ILIGAN CITY
WHEN IT APPRECIATE[D] NO DOCTORS NEGLIGENCE IN THE TREATMENT OF JORGE REYES.

Petitioners action is for medical malpractice. This is a particular form of negligence which consists in the failure of
a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily
employed by the profession generally, under similar conditions, and in like surrounding circumstances.[12] In
order to successfully pursue such a claim, a patient must prove that the physician or surgeon either failed to do
something which a reasonably prudent physician or surgeon would have done, or that he or she did something that
a reasonably prudent physician or surgeon would not have done, and that the failure or action caused injury to the
patient.[13] There are thus four elements involved in medical negligence cases, namely: duty, breach, injury, and
proximate causation.

In the present case, there is no doubt that a physician-patient relationship existed between respondent doctors and
Jorge Reyes. Respondents were thus duty-bound to use at least the same level of care that any reasonably
competent doctor would use to treat a condition under the same circumstances. It is breach of this duty which
constitutes actionable malpractice.[14] As to this aspect of medical malpractice, the determination of the
reasonable level of care and the breach thereof, expert testimony is essential. Inasmuch as the causes of the injuries
involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized
that expert testimony is usually necessary to support the conclusion as to causation.[15]

Res Ipsa Loquitur

There is a case when expert testimony may be dispensed with, and that is under the doctrine of res ipsa loquitur.
As held in Ramos v. Court of Appeals:[16]

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done
a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitor
is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself
provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony applies
only to such matters clearly within the domain of medical science, and not to matters that are within the common
knowledge of mankind which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and
surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon
with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and
surgeons, external appearances, and manifest conditions which are observable by any one may be given by
non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court
from its fund of common knowledge can determine the proper standard of care. Where common knowledge and
experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an
inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without
medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When
the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission
complained of and the injury sustained while under the custody and management of the defendant without need to
produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitor is allowed because
there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury
suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object
in the body of the patient after an operation, injuries sustained on a healthy part of the body which was not under,
or in the area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a
tooth while a patients jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient
was under the influence of anesthetic, during or following an operation for appendicitis, among others.[17]

Petitioners asserted in the Court of Appeals that the doctrine of res ipsa loquitur applies to the present case because
Jorge Reyes was merely experiencing fever and chills for five days and was fully conscious, coherent, and
ambulant when he went to the hospital. Yet, he died after only ten hours from the time of his admission.

This contention was rejected by the appellate court.

Petitioners now contend that all requisites for the application of res ipsa loquitur were present, namely: (1) the
accident was of a kind which does not ordinarily occur unless someone is negligent; (2) the instrumentality or
agency which caused the injury was under the exclusive control of the person in charge; and (3) the injury suffered
must not have been due to any voluntary action or contribution of the person injured.[18]

The contention is without merit. We agree with the ruling of the Court of Appeals. In the Ramos case, the question
was whether a surgeon, an anesthesiologist, and a hospital should be made liable for the comatose condition of a
patient scheduled for cholecystectomy.[19] In that case, the patient was given anesthesia prior to her operation.
Noting that the patient was neurologically sound at the time of her operation, the Court applied the doctrine of res
ipsa loquitur as mental brain damage does not normally occur in a gallblader operation in the absence of
negligence of the anesthesiologist. Taking judicial notice that anesthesia procedures had become so common that
even an ordinary person could tell if it was administered properly, we allowed the testimony of a witness who was
not an expert. In this case, while it is true that the patient died just a few hours after professional medical assistance
was rendered, there is really nothing unusual or extraordinary about his death. Prior to his admission, the patient
already had recurring fevers and chills for five days unrelieved by the analgesic, antipyretic, and antibiotics given
him by his wife. This shows that he had been suffering from a serious illness and professional medical help came
too late for him.

Respondents alleged failure to observe due care was not immediately apparent to a layman so as to justify
application of res ipsa loquitur. The question required expert opinion on the alleged breach by respondents of the
standard of care required by the circumstances. Furthermore, on the issue of the correctness of her diagnosis, no
presumption of negligence can be applied to Dr. Marlyn Rico. As held in Ramos:

. . . . Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied,
depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a
layman is able to say, as a matter of common knowledge and observation, that the consequences of professional
care were not as such as would ordinarily have followed if due care had been exercised. A distinction must be
made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found
if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must
be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or a surgeon
which involves the merits of a diagnosis or of a scientific treatment. The physician or surgeon is not required at his
peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not
produce the desired result.[20]

Specific Acts of Negligence

We turn to the question whether petitioners have established specific acts of negligence allegedly committed by
respondent doctors.

Petitioners contend that: (1) Dr. Marlyn Rico hastily and erroneously relied upon the Widal test, diagnosed Jorges
illness as typhoid fever, and immediately prescribed the administration of the antibiotic chloromycetin;[21] and (2)
Dr. Marvie Blanes erred in ordering the administration of the second dose of 500 milligrams of chloromycetin
barely three hours after the first was given.[22] Petitioners presented the testimony of Dr. Apolinar Vacalares,
Chief Pathologist of the Northern Mindanao Training Hospital, Cagayan de Oro City, who performed an autopsy
on the body of Jorge Reyes. Dr. Vacalares testified that, based on his findings during the autopsy, Jorge Reyes did
not die of typhoid fever but of shock undetermined, which could be due to allergic reaction or chloromycetin
overdose. We are not persuaded.

First. While petitioners presented Dr. Apolinar Vacalares as an expert witness, we do not find him to be so as he is
not a specialist on infectious diseases like typhoid fever. Furthermore, although he may have had extensive
experience in performing autopsies, he admitted that he had yet to do one on the body of a typhoid victim at the
time he conducted the postmortem on Jorge Reyes. It is also plain from his testimony that he has treated only about
three cases of typhoid fever. Thus, he testified that:[23]

ATTY. PASCUAL:

Q Why? Have you not testified earlier that you have never seen a patient who died of typhoid fever?

A In autopsy. But, that was when I was a resident physician yet.

Q But you have not performed an autopsy of a patient who died of typhoid fever?

A I have not seen one.

Q And you testified that you have never seen a patient who died of typhoid fever within five days?

A I have not seen one.

Q How many typhoid fever cases had you seen while you were in the general practice of medicine?

A In our case we had no widal test that time so we cannot consider that the typhoid fever is like this and like that.
And the widal test does not specify the time of the typhoid fever.

Q The question is: how many typhoid fever cases had you seen in your general practice regardless of the cases
now you practice?

A I had only seen three cases.

Q And that was way back in 1964?

A Way back after my training in UP.

Q Clinically?

A Way back before my training.

He is thus not qualified to prove that Dr. Marlyn Rico erred in her diagnosis. Both lower courts were therefore
correct in discarding his testimony, which is really inadmissible.

In Ramos, the defendants presented the testimony of a pulmonologist to prove that brain injury was due to oxygen
deprivation after the patient had bronchospasms[24] triggered by her allergic response to a drug,[25] and not due
to faulty intubation by the anesthesiologist. As the issue was whether the intubation was properly performed by an
anesthesiologist, we rejected the opinion of the pulmonologist on the ground that he was not: (1) an
anesthesiologist who could enlighten the court about anesthesia practice, procedure, and their complications; nor
(2) an allergologist who could properly advance expert opinion on allergic mediated processes; nor (3) a
pharmacologist who could explain the pharmacologic and toxic effects of the drug allegedly responsible for the
bronchospasms.

Second. On the other hand, the two doctors presented by respondents clearly were experts on the subject. They
vouched for the correctness of Dr. Marlyn Ricos diagnosis. Dr. Peter Gotiong, a diplomate whose specialization is
infectious diseases and microbiology and an associate professor at the Southwestern University College of
Medicine and the Gullas College of Medicine, testified that he has already treated over a thousand cases of typhoid
fever.[26] According to him, when a case of typhoid fever is suspected, the Widal test is normally used,[27] and if
the 1:320 results of the Widal test on Jorge Reyes had been presented to him along with the patients history, his
impression would also be that the patient was suffering from typhoid fever.[28] As to the treatment of the disease,
he stated that chloromycetin was the drug of choice.[29] He also explained that despite the measures taken by
respondent doctors and the intravenous administration of two doses of chloromycetin, complications of the disease
could not be discounted. His testimony is as follows:[30]

ATTY. PASCUAL:

Q If with that count with the test of positive for 1 is to 320, what treatment if any would be given?

A If those are the findings that would be presented to me, the first thing I would consider would be typhoid fever.

Q And presently what are the treatments commonly used?

A Drug of choice of chloramphenical.

Q Doctor, if given the same patient and after you have administered chloramphenical about 3 1/2 hours later, the
patient associated with chills, temperature - 41oC, what could possibly come to your mind?

A Well, when it is change in the clinical finding, you have to think of complication.

Q And what will you consider on the complication of typhoid?

A One must first understand that typhoid fever is toximia. The problem is complications are caused by toxins
produced by the bacteria . . . whether you have suffered complications to think of -- heart toxic myocardities; then
you can consider a toxic meningitis and other complications and perforations and bleeding in the ilium.

Q Even that 40-year old married patient who received medication of chloromycetin of 500 milligrams intravenous,
after the skin test, and received a second dose of chloromycetin of 500 miligrams, 3 hours later, the patient
developed chills . . . rise in temperature to 41oC, and then about 40 minutes later the temperature rose to 100oF,
cardiac rate of 150 per minute who appeared to be coherent, restless, nauseating, with seizures: what significance
could you attach to these clinical changes?

A I would then think of toxemia, which was toxic meningitis and probably a toxic meningitis because of the high
cardiac rate.

Q Even if the same patient who, after having given intramuscular valium, became conscious and coherent about 20
minutes later, have seizure and cyanosis and rolling of eyeballs and vomitting . . . and death: what significance
would you attach to this development?
A We are probably dealing with typhoid to meningitis.

Q In such case, Doctor, what finding if any could you expect on the post-mortem examination?

A No, the finding would be more on the meninges or covering of the brain.

Q And in order to see those changes would it require opening the skull?

A Yes.

As regards Dr. Vacalares finding during the autopsy that the deceaseds gastro-intestinal tract was normal, Dr. Rico
explained that, while hyperplasia[31] in the payers patches or layers of the small intestines is present in typhoid
fever, the same may not always be grossly visible and a microscope was needed to see the texture of the cells.[32]

Respondents also presented the testimony of Dr. Ibarra T. Panopio who is a member of the Philippine and
American Board of Pathology, an examiner of the Philippine Board of Pathology, and chief pathologist at the
MetroCebu Community Hospital, Perpetual Succor Hospital, and the Andres Soriano Jr. Memorial Medical Center.
He stated that, as a clinical pathologist, he recognized that the Widal test is used for typhoid patients, although he
did not encourage its use because a single test would only give a presumption necessitating that the test be repeated,
becoming more conclusive at the second and third weeks of the disease.[33] He corroborated Dr. Gotiongs
testimony that the danger with typhoid fever is really the possible complications which could develop like
perforation, hemorrhage, as well as liver and cerebral complications.[34] As regards the 1:320 results of the Widal
test on Jorge Reyes, Dr. Panopio stated that no additional information could be obtained from a higher ratio.[35]
He also agreed with Dr. Gotiong that hyperplasia in the payers patches may be microscopic.[36]

Indeed, the standard contemplated is not what is actually the average merit among all known practitioners from the
best to the worst and from the most to the least experienced, but the reasonable average merit among the ordinarily
good physicians.[37] Here, Dr. Marlyn Rico did not depart from the reasonable standard recommended by the
experts as she in fact observed the due care required under the circumstances. Though the Widal test is not
conclusive, it remains a standard diagnostic test for typhoid fever and, in the present case, greater accuracy through
repeated testing was rendered unobtainable by the early death of the patient. The results of the Widal test and the
patients history of fever with chills for five days, taken with the fact that typhoid fever was then prevalent as
indicated by the fact that the clinic had been getting about 15 to 20 typhoid cases a month, were sufficient to give
upon any doctor of reasonable skill the impression that Jorge Reyes had typhoid fever.

Dr. Rico was also justified in recommending the administration of the drug chloromycetin, the drug of choice for
typhoid fever. The burden of proving that Jorge Reyes was suffering from any other illness rested with the
petitioners. As they failed to present expert opinion on this, preponderant evidence to support their contention is
clearly absent.

Third. Petitioners contend that respondent Dr. Marvie Blanes, who took over from Dr. Rico, was negligent in
ordering the intravenous administration of two doses of 500 milligrams of chloromycetin at an interval of less than
three hours. Petitioners claim that Jorge Reyes died of anaphylactic shock[38] or possibly from overdose as the
second dose should have been administered five to six hours after the first, per instruction of Dr. Marlyn Rico. As
held by the Court of Appeals, however:

That chloromycetin was likewise a proper prescription is best established by medical authority. Wilson, et. al., in
Harrisons Principle of Internal Medicine, 12th ed. write that chlorampenicol (which is the generic of
chloromycetin) is the drug of choice for typhoid fever and that no drug has yet proven better in promoting a
favorable clinical response. Chlorampenicol (Chloromycetin) is specifically indicated for bacterial meningitis,
typhoid fever, rickettsial infections, bacteriodes infections, etc. (PIMS Annual, 1994, p. 211) The dosage likewise
including the first administration of five hundred milligrams (500 mg.) at around nine oclock in the evening and
the second dose at around 11:30 the same night was still within medically acceptable limits, since the
recommended dose of chloromycetin is one (1) gram every six (6) hours. (cf. Pediatric Drug Handbook, 1st Ed.,
Philippine Pediatric Society, Committee on Therapeutics and Toxicology, 1996). The intravenous route is likewise
correct. (Mansser, ONick, Pharmacology and Therapeutics) Even if the test was not administered by the
physician-on-duty, the evidence introduced that it was Dra. Blanes who interpreted the results remain
uncontroverted. (Decision, pp. 16-17) Once more, this Court rejects any claim of professional negligence in this
regard.

....

As regards anaphylactic shock, the usual way of guarding against it prior to the administration of a drug, is the skin
test of which, however, it has been observed: Skin testing with haptenic drugs is generally not reliable. Certain
drugs cause nonspecific histamine release, producing a weal-and-flare reaction in normal individuals.
Immunologic activation of mast cells requires a polyvalent allergen, so a negative skin test to a univalent haptenic
drug does not rule out anaphylactic sensitivity to that drug. (Terr, Anaphylaxis and Urticaria in Basic and Clinical
Immunology, p. 349) What all this means legally is that even if the deceased suffered from an anaphylactic shock,
this, of itself, would not yet establish the negligence of the appellee-physicians for all that the law requires of them
is that they perform the standard tests and perform standard procedures. The law cannot require them to predict
every possible reaction to all drugs administered. The onus probandi was on the appellants to establish, before the
trial court, that the appellee-physicians ignored standard medical procedure, prescribed and administered
medication with recklessness and exhibited an absence of the competence and skills expected of general
practitioners similarly situated.[39]

Fourth. Petitioners correctly observe that the medical profession is one which, like the business of a common
carrier, is affected with public interest. Moreover, they assert that since the law imposes upon common carriers the
duty of observing extraordinary diligence in the vigilance over the goods and for the safety of the passengers,[40]
physicians and surgeons should have the same duty toward their patients.[41] They also contend that the Court of
Appeals erred when it allegedly assumed that the level of medical practice is lower in Iligan City, thereby reducing
the standard of care and degree of diligence required from physicians and surgeons in Iligan City.

The standard of extraordinary diligence is peculiar to common carriers. The Civil Code provides:

Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to
observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by
them, according to the circumstances of each case. . . .

The practice of medicine is a profession engaged in only by qualified individuals. It is a right earned through years
of education, training, and by first obtaining a license from the state through professional board examinations.
Such license may, at any time and for cause, be revoked by the government. In addition to state regulation, the
conduct of doctors is also strictly governed by the Hippocratic Oath, an ancient code of discipline and ethical rules
which doctors have imposed upon themselves in recognition and acceptance of their great responsibility to society.
Given these safeguards, there is no need to expressly require of doctors the observance of extraordinary diligence.
As it is now, the practice of medicine is already conditioned upon the highest degree of diligence. And, as we have
already noted, the standard contemplated for doctors is simply the reasonable average merit among ordinarily good
physicians. That is reasonable diligence for doctors or, as the Court of Appeals called it, the reasonable skill and
competence . . . that a physician in the same or similar locality . . . should apply.

WHEREFORE, the instant petition is DENIED and the decision of the Court of Appeals is AFFIRMED.
SO ORDERED.

Res ipsa loquitur

In the common law of torts, res ipsa loquitur (Latin for "the thing speaks for itself") is a doctrine that infers
negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant
behaved. Although modern formulations differ by jurisdiction, common law originally stated that the accident
must satisfy the necessary elements of negligence: duty, breach of duty, causation, and injury. In res ipsa loquitur,
the elements of duty of care, breach and causation are inferred from an injury that does not ordinarily occur
without negligence.

History

The term comes from Latin and is literally translated "the thing itself speaks", but the sense is well conveyed in the
more common translation, "the thing speaks for itself."[1] The earliest known use of the phrase was by Cicero in
his defence speech Pro Milone.[2][3] The circumstances of the genesis of the phrase and application by Cicero in
Roman legal trials has led to questions whether it reflects on the quality of res ipsa loquitur as a legal doctrine
subsequent to 52 BC, some 1915 years before the English case Byrne v Boadle and the question whether Charles
Edward Pollock might have taken direct inspiration from Cicero's application of the maxim in writing his
judgment in that case.[4]

Elements

The injury is of the kind that does not ordinarily occur without negligence or is uncommon in the course and
nature of said act.

The injury is caused by an agency or instrumentality within the exclusive control of the defendant.

The injury-causing accident is not by any voluntary action or contribution on the part of the plaintiff.

The defendant's non-negligent explanation does not completely explain plaintiff’s injury.

The first element may be satisfied in one of three ways:

(a) The injury itself is sufficient to prove blatant or palpable negligence as a matter of law, such as amputation of
the wrong limb or leaving instruments inside body after surgery.

(b) The general experience and observation of mankind is sufficient to support the conclusion that the injury would
not have resulted without negligence, such as a hysterectomy (removal of the uterus) performed when the patient
consented only to a tubal ligation (clipping of the fallopian tubes for purposes of sterilization).

(c) Expert testimony creates an inference that negligence caused the injury, such as an expert general surgeon
testifying that he has performed over 1000 appendectomies (removal of the appendix) and has never caused injury
to a patient's liver. He also does not know of any of his surgeon colleagues having inflicted injury to a patient's
liver during an appendectomy. The testimony would create an inference that injuring the liver in the course of an
appendectomy is negligence.

The second element is discussed further in the section below. The third element requires the absence of
contributory negligence from the plaintiff. The fourth element emphasizes that defendant may defeat a res ipsa
loquitur claim by producing evidence of a non-negligent scenario that would completely explain plaintiff's injury
and negate all possible inferences that negligence could have occurred.

Contrast to prima facie

Res ipsa loquitur is often confused with prima facie ("at first sight"), the common law doctrine that a party must
show some minimum amount of evidence before a trial is worthwhile.
The difference between the two is that prima facie is a term meaning there is enough evidence for there to be a
case to answer. Res ipsa loquitur means that because the facts are so obvious, a party need not explain any more.