11. Atienza v. Board (CASE REGARDING KIDNEY)NOTES: Admissibility of evidence refers to the question of whether or not the circumstance (or evidence) is to be considered at all.

Probative value of evidence refers to the question of whether or not it proves an issue.

The rules of evidence are merely the means for ascertaining the truth respecting a matter of fact. Thus, they likewise provide for some facts which are established and need not be proved, such as those covered by judicial notice, both mandatory and discretionary.

Facts of the case: Due to her lumbar pains, private respondent Editha Sioson went to Rizal Medical Center (RMC) for checkup, was referred to Dr. Pedro Lantin III of RMC who, accordingly, ordered several diagnostic laboratory tests wherein it was noticed that right kidney was normal but her left kidney is nonfunctioning and nonvisualizing. Thus, she underwent kidney operation in September, 1999.

Private respondents husband, Romeo Sioson (as complainant), filed a complaint for gross negligence and/or incompetence before the [BOM] against the doctors who allegedly participated in the fateful kidney operation, namely: Dr. Judd dela Vega, Dr. Pedro Lantin, III, Dr. Gerardo Antonio Florendo and petitioner Rico Rommel Atienza. It was alleged in the complaint that the gross negligence and/or incompetence committed by the said doctors, including petitioner, consists ofthe removal of private respondents fully functional right kidney, instead of the left nonfunctioning and nonvisualizing kidney.

Submitted evidence by the complainant were certified photocopy of the x-ray requests. Petitioner filed his comments/objections to private respondents [Editha Siosons] formal offer of exhibits. He alleged that said exhibits are inadmissible because the same are mere photocopies, not properly identified and authenticated, and intended to establish matters which are hearsay. He added that the exhibits are incompetent to prove the purpose for which they are offered.

Disposition of the BOM: The formal offer of documentary exhibits of private respondent [Editha Sioson] was admitted. The petitioners moved for motion for reconsideration, but was denied. It concluded that it should first admit the evidence being offered so that it can determine its probative value when it decides the case. According to the Board, it can determine whether the evidence is relevant or not if it will take a look at it through the process of admission. Thus, a petition for certiorari was filed with the CA which the court dismissed due to lack of merit. Hence, this petition.

ISSUES:1. Whether the petitioner availed proper remedy when he filed a petition for certiorari with the CA under RULE 65

SC: Petitioner is correct when he asserts that a petition for certiorari is the proper remedy to assail the Orders of the BOM, admitting in evidence the exhibits of Editha. As the assailed Orders were interlocutory, these cannot be the subject of an appeal separate fromthe judgment that completely or finally disposes of the case. At that stage, where there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, the only and remaining remedy left to petitioner is a petition for certiorari under Rule 65 ofthe Rules of Court on the ground of grave abuse of discretion amounting to lack or excess of jurisdiction. However, the writ of certiorari will not issue absent a showing that the BOM has acted without or in excess of jurisdiction or with grave abuse of discretion. Embedded in the CAs finding that the BOM did not exceed its jurisdiction or act in grave abuse of discretion is the issue of whether the exhibits of Editha contained inher Formal Offer of Documentary Evidence are inadmissible.

2. Whether CA committed grave reversible error and decided a question of substance in a way not in accordance with law and the applicable decisions when it upheld the admission of incompetent and inadmissible evidence by the respondent board, which can result to deprivation of Professional License.

SC: No. It is well-settled that the rules of evidence are not strictly applied in proceedings before administrative bodies such as the BOM. [I]t is the safest policy to be liberal, not rejecting them on doubtful or technical grounds, but admitting them unless plainly irrelevant, immaterial or incompetent, for the reason that their rejection places them beyond the consideration of the court, if they are thereafter found relevant or competent on the other hand, their admission, if they turn out later to be irrelevant or incompetent, can easily be remedied by completely discarding them or ignoring them.

Petitioners insistence that the admission of Edithas exhibits violated his substantive rights leading to the loss of his medical license is misplaced.Best evidence rule is inapplicable.Sec. 3. Original document must be produced exceptions.When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the followingcases:(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror(b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice(c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole and(d) When the original is a public record in the custody of a public officer or is recorded in a public office.

The introduction of secondary evidence, such as copies of the exhibits, is allowed. Witness Dr. Nancy Aquino testified that the Records Office of RMC no longer had the originals of the exhibits because [it] transferred from the previous building, x x x to the new building. Ultimately, since the originals cannot be produced, the BOM properly admitted Edithas formal offer of evidence and, thereafter, the BOM shall determine the probative value thereof when it decides the case.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CAG. R. SP No. 87755 is AFFIRMED.

12. G.R. No. 192973 (CASE REGARDING SPECIALIZATION OF THE EXPERT)PEDRITO DELA TORRE,Petitioner,DR. ARTURO IMBUIDO, DRA. NORMA IMBUIDO in their capacity as owners and operators of DIVINE SPIRIT GENERAL HOSPITAL and/or DR. NESTOR PASAMBA,Respondents.Facts of the case: The case stemmed from a complaint4for damages filed by Pedrito against herein respondents Dr. Arturo Imbuido and Dr. Norma Imbuido (Dr. Norma), in their capacity as the owners and operators of the Divine Spirit General Hospital in Olongapo City, and Dr. Nestor Pasamba (Dr. Nestor) (respondents). Pedrito alleged in his complaint that he was married to one Carmen Castillo Dela Torre(Carmen), who died while admitted at the Divine Spirit General Hospital on February 13, 1992. Carmen was due to give birth on February 2,1992 and was brought at around 11:30 p.m. on that day by Pedrito to the Divine Spirit General Hospital. When Carmen still had not delivered her baby at the expected time, Dr. Norma discussed with Pedrito the possibility of a caesarean section operation.5At around 3:00 p.m. on February 3, 1992, Carmen was brought to the hospitals operating room for her caesarian section operation, which was to be performed by Dr. Nestor. By 5:30 p.m. of the same day, Pedrito was informed of his wifes delivery of a baby boy. In the early morning of February 4, 1992, Carmen experienced abdominal pain and difficulty in urinating. She was diagnosed to be suffering from urinary tract infection (UTI), and was prescribed medications by Dr. Norma. On February 10, 1992, Pedrito noticed that Carmens stomach was getting bigger, but Dr. Norma dismissed the patients condition as mere flatulence (kabag).6When Carmens stomach still grew bigger despite medications, Dr. Norma advised Pedrito of the possibility of a second operation on Carmen. Dr. Norma, however, provided no details on its purpose and the doctor who would perform it. At around 3:00 p.m. on February 12, 1992, Carmen had her second operation. Later in the evening, Dr. Norma informed Pedrito that "everything was going on fine with [his] wife."7The condition of Carmen, however, did not improve. It instead worsened that on February 13, 1992, she vomited dark red blood. At 9:30 p.m. on the same day, Carmen died.8Per her certificate of death upon information provided by the hospital,the immediate cause of Carmens death was "cardio-respiratory arrest secondary to cerebro vascular accident, hypertension and chronic nephritis induced by pregnancy."9An autopsy Report10prepared by Dr. Richard Patilano(Dr. Patilano), Medico-Legal Officer-Designate of Olongapo City, however, provided that the cause of Carmens death was "shock due to peritonitis, severe, with multiple intestinal adhesions; Status post C[a]esarian Section and Exploratory Laparotomy."Pedrito claimed in his complaint that the respondents "failed to exercise the degree of diligence required of them" as members of the medical profession, and were "negligent for practicing surgery on [Carmen] in the most unskilled, ignorant and cruel manner, x x x[.]"11In their answer12to the complaint, the respondents argued that they "observed the required standard of medical care in attending to the needs of Carmen."13The respondents explained that Carmen was admitted in Divine Spirit General Hospital for "pregnancy in labor and pre-eclampsia." Her condition was closely monitored during her confinement. A caesarian section operation became necessary, as she manifested no significant progress for the spontaneous delivery of her baby.14No unusual events were observed during the course of Carmens caesarian section operation. The second surgery, however, became necessary due to suspected intestinal obstruction and adhesions. This procedure was fully explained to Carmen and Pedrito prior to its conduct. During the second operation, the diagnosis of intestinal obstruction and adhesion was confirmed but resolved by her doctors. Despite the observance of due care by the doctors, however, Carmen died on February 13, 1992.15After the pre-trial conference, trial proper ensued. To support his claim, Pedrito presented the testimony of Dr. Patilano, the medicolegal officer who conducted an autopsy on the body of Carmen upon a telephone request made by the City Health Officer of Olongapo City, Dr. Generoso Espinosa. Among Dr. Patilanos observations, as narrated in the lower courts decision, were as follows:In the intestines, [Dr. Patilano] found out that it was more reddish than the normal condition which is supposed to be pinkish. There was presence of adhesions, meaning, it sticks to each other and these areas were dilated. There were constricted areas. He concluded that there might have been foreign organic matters in the intestines. He did not see any swelling but assuming that there was, it would be concomitant to the enlargement. x x x He came to the conclusion that the cause of death was peritonitis, with the multiple adhesions status in the post caesarian section. In connection with peritonitis, this is the inflammation of the abdomen. This peritonitis in the abdominal cavity may be caused by several conditions which are supposed to be infections, entrance of foreign bodies in the intestines in connection with ruptured peptic ulcer or [may be] somewhere in the spleen. The entrance of foreign object in the abdominal cavities may cause severe infections of the intra-abdominal cavities resulting [in] multiple adhesions of the intestines. In cases of surgical operation, it [may be] due to the conditions of the instruments used, the materials used in the operating room being not aseptic and the ladies assisting the operation were not in uniform. x x x.17Dr. Patilano claimed that peritonitis could have been prevented through proper medical procedures and medicines. He also stated that if the cause of Carmens death was actually cerebro-vascular accident, there would have been ruptured blood vessels and blood clot in her head; but there were none in Carmens case.18Among those who testified to refutePedritos claim was Dr. Nestor. He claimed that when Carmen was referred to him on February 3, 1992, she was in full term uterine pregnancy, with pre-eclampsia, fetal distress and active labor pains. A caesarian section operation became necessary to terminate the pregnancy for her safety. Carmen was ready to go home four days after giving birth, but was advised by the doctors to stay more because of her persistent hypertension.19The second surgery performed on Carmen was necessary after she showed symptoms of intestinal obstruction, which happens as the intestines get twisted due to adhesions and the normal flow of intestinal contents are obstructed. For Dr. Nestor, this occurrence was not preventable since any interference of the abdominal cavity would irritate the serosa of the intestines, inviting adhesions that could cause obstruction. Surgery could remedy the adhesions and obstruction.20Both Carmen and Pedrito gave their written consent to this second procedure.21RTC: RTC rendered its Decision24in favor of Pedrito. The trial court gave greater weight to the testimony of Dr. Patilano Dissatisfied with the RTC ruling, the respondents appealed to the CA.CA: The CA rendered its Decision reversing and setting aside the decision of the RTC. For the appellate court, it was not established that the respondents failed to exercise the degree of diligence required of them by their profession as doctors. Hence, this petition for review on certiorariin which Pedrito insists that the respondents should be held liable for the death of Carmen.SC: The petition is denied."[M]edical 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 professionalwhich has caused bodily harm." In order to successfully pursue such a claim, a patient, or his or her family as in this case, "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 failure or action caused injury to the patient."27The Court emphasized in Lucas, et al. v. Tuao28that in medical negligence cases, there is a physician-patient relationship between the doctor and the victim, but just like in any other proceeding for damages, four essential elements must be established by the plaintiff, namely: (1) duty; (2) breach; (3) injury; and (4) proximate causation. All four elements must be present in order to find the physician negligent and, thus, liable for damages.29It is settled that a physicians duty to his patient relates to his exercise of the degree of care, skill and diligence which physicians in the same general neighborhood, and in the same general line of practice, ordinarily possess and exercise in like cases. There is breach of this duty when the patient is injured in body or in health. Proof of this breach rests upon the testimony of an expert witness that the treatment accorded to the patient failed to meet the standard level of care, skill and diligence. To justify an award of damages, the negligence of the doctor must be established to be the proximate cause of the injury.30Through the instant petition, Pedritoseeks the reinstatement of the decision of the RTC whose finding of the respondents medical negligence depended mainly on the testimony of Dr. Patilano. Upon review, however, the Court agrees with the CA that the report and testimony of Dr. Patilano failed to justify Pedritos entitlement to the damages awarded by the RTC.For the trial court to give weightto Dr. Patilanos report, it was necessary to show first Dr. Patilanos specialization and competence to testify on the degree of care, skill and diligence needed for the treatment of Carmens case. Considering that it was not duly established that Dr. Patilano practiced and was an expert inthe fields that involved Carmens condition, he could not have accurately identified the said degree of care, skill, diligence and the medical procedures that should have been applied by her attending physicians.Similarly, such duty, degree of care, skill and diligence were not sufficiently established in this case because the testimony of Dr. Patilano was based solely on the results of his autopsy on the cadaver of Carmen. His study and assessment were restrictedby limitations that denied his full evaluation of Carmens case. He could have only deduced from the injuries apparent in Carmens body, and in the condition when the body was examined. Judging from his testimony, Dr. Patilano did not even take full consideration of the medical history of Carmen, her actual health condition at the time of hospital admission, and her condition as it progressed while she was being monitored and treated by the respondents. There was also no reference to the respondents defense that the emergency caesarian section operation had to be performed in order to protect the lives and safety of Carmen and her then unborn child. For lack of sufficient information on Carmens health condition while still alive, Dr. Patilano could not have fully evaluated the suitability of the respondents decisions in handling Carmens medical condition as it turned critical.On the other hand, the CA pointed out that Dr. Nestor, a surgeon, possessed the reasonable degree of learning, skill and experience required by his profession for the treatment ofCarmen. The respondents also emphasized in their pleadings beforethe RTC that Dr. Nestor had his training and experience in surgery and obstetrics since 1970. Without sufficient proof from the claimant on a different degree of care, skill and diligence that should be expected from the respondents, it could not be said with certainty that a breachwas actually committed.Moreover, while Dr. Patilano opined that Carmen died of peritonitis which could be due to the poor state of the hospital equipment and medical supplies used during her operation, there was no sufficient proof that any such fault actually attended the surgery of Carmen, caused her illness and resulted in her death. It is also significant that the Chief of the Medico-Legal Division of the PNP Crime Laboratory Service, Dr. Torres, testified before the trial court that based on the autopsy report issued by Dr. Patilano, the latter did not comply with the basic autopsy procedure when he examined the cadaver of Carmen. Dr. Patilano did not appear to have thoroughly examined Carmens vital organs such as her heart, lungs, uterus and brain during the autopsy. His findings were then inconclusive on the issue of the actual cause of Carmen's death, and the claim of negligence allegedly committed by the respondents.As the Court held in Spouses Flores v. Spouses Pineda, et al.,31the critical and clinching factor in a medical negligence case is proof of the causal connection between the negligence and the injuries. The claimant must prove not only the injury but also the defendant's fault, and that such fault caused the injury. A verdict in a malpractice action cannot be based on speculation or conjecture. Causation must be proven within a reasonable medical probability based upon competent expert testimony,32which the Court finds absent in the case at bar. WHEREFORE, the petition is DENIED. The Decision dated December 15, 2009 and Resolution dated July 27, 2010 of the Court of Appeals in CA-G.R. CV No. 78534 are AFFIRMED.

13. G.R. No. 175540 (Case regarding lack of consent for transplant) DR. FILOTEO A. ALANO,Petitioner,ZENAIDA MAGUD-LOGMAO,Respondent.FACTS OF THE CASE:Plaintiff-appellee Zenaida Magud-Logmao is the mother of deceased Arnelito Logmao. Defendant-appellant Dr. Filoteo Alano is the Executive Director of the National Kidney Institute (NKI).At around 9:50 in the evening of March 1, 1988, Arnelito Logmao, then eighteen (18) years old, was brought to the East Avenue Medical Center (EAMC) in Quezon City by two sidewalk vendors, who allegedly saw the former fall from the overpass near the Farmers Market in Cubao, Quezon City. The patients data sheet identified the patient as Angelito Lugmoso of Boni Avenue, Mandaluyong. However, the clinical abstract prepared by Dr. Paterno F. Cabrera, the surgical resident on-duty at the Emergency Room of EAMC, stated that the patient is Angelito [Logmao].Dr. Cabrera reported that [Logmao] was drowsy with alcoholic breath, was conscious and coherent; that the skull x-ray showed no fracture; that at around 4:00 oclock in the morning of March 2, 1988, [Logmao] developed generalized seizures and was managed by the neuro-surgery resident on-duty; that the condition of [Logmao] progressively deteriorated and he was intubated and ambu-bagging support was provided; that admission to the Intensive Care Unit (ICU) and mechanical ventilator support became necessary, but there was no vacancy at the ICU and all the ventilator units were being used by other patients; that a resident physician of NKI, who was rotating at EAMC, suggested that [Logmao] be transferred to NKI; and that after arrangements were made, [Logmao] was transferred to NKI at 10:10 in the morning.At the NKI, the name Angelito [Logmao] was recorded as Angelito Lugmoso. Lugmoso was immediately attended to and given the necessary medical treatment. As Lugmoso had no relatives around, Jennifer B. Misa, Transplant Coordinator, was asked to locate his family by enlisting police and media assistance. Dr. Enrique T. Ona, Chairman of the Department of Surgery, observed that the severity of the brain injury of Lugmoso manifested symptoms of brain death. He requested the Laboratory Section to conduct a tissue typing and tissue cross-matching examination, so that should Lugmoso expire despite the necessary medical care and management and he would be found to be a suitable organ donor and his family would consent to organ donation, the organs thus donated could be detached and transplanted promptly to any compatible beneficiary.Jennifer Misa verified on the same day, March 2, 1988, from EAMC the identity of Lugmoso and, upon her request, she was furnished by EAMC a copy of the patients date sheet which bears the name Angelito Lugmoso, with address at Boni Avenue, Mandaluyong. She then contacted several radio and television stations to request for air time for the purpose of locating the family of Angelito Lugmoso of Boni Avenue, Mandaluyong, who was confined at NKI for severe head injury after allegedly falling from the Cubao overpass, as well as Police Station No. 5, Eastern Police District, whose area of jurisdiction includes Boni Avenue, Mandaluyong, for assistance in locating the relatives of Angelito Lugmoso. Certifications were issued by Channel 4, ABS-CBN and GMA attesting that the request made by the NKI on March 2, 1988 to air its appeal to locate the family and relatives of Angelito Lugmoso of Boni Avenue, Mandaluyong was accommodated. A Certification was likewise issued by Police Station No. 5, Eastern Police District, Mandaluyong attesting to the fact that on March 2, 1988, at about 6:00 p.m., Jennifer Misa requested for assistance to immediately locate the family and relatives of Angelito Lugmoso and that she followed up her request until March 9, 1988.On March 3, 1988, at about 7:00 oclock in the morning, Dr. Ona was informed that Lugmoso had been pronounced brain dead by Dr. Abdias V. Aquino, a neurologist, and by Dr. Antonio Rafael, a neurosurgeon and attending physician of Lugmoso, and that a repeat electroencephalogram (EEG) was in progress to confirm the diagnosis of brain death. Two hours later, Dr. Ona was informed that the EEG recording exhibited a flat tracing, thereby confirming that Lugmoso was brain dead. Upon learning that Lugmoso was a suitable organ donor and that some NKI patients awaiting organ donation had blood and tissue types compatible with Lugmoso, Dr. Ona inquired from Jennifer Misa whether the relatives of Lugmoso had been located so that the necessary consent for organ donation could be obtained. As the extensive search for the relatives of Lugmoso yielded no positive result and time being of the essence in the success of organ transplantation, Dr. Ona requested Dr. Filoteo A. Alano, Executive Director of NKI, to authorize the removal of specific organs from the body of Lugmoso for transplantation purposes. Dr. Ona likewise instructed Dr. Rose Marie Rosete-Liquete to secure permission for the planned organ retrieval and transplantation from the Medico-Legal Office of the National Bureau of Investigation (NBI), on the assumption that the incident which lead to the brain injury and death of Lugmoso was a medico legal case.On March 3, 1988, Dr. Alano issued to Dr. Ona a Memorandum, in connection with the use of the human organs or any portion or portions of the human body of the deceased patient, identified as a certain Mr. Angelito Lugmoso who was brought to the National Kidney Institute on March 2, 1988 from the East Avenue Medical Center.As shown by the medical records, the said patient died on March 3, 1988 at 9:10 in the morning due to craniocerebral injury. The memo requires to make certain that the Department has exerted all reasonable efforts to locate the relatives or next of kin of the said deceased patient such as appeal through the radios and television as well as through police and other government agencies and that the NBI [Medico-Legal] Section has been notified and is aware of the case.In accordance with the provisions of Republic Act No. 349 as amended and P.D. 856, the department was given permission and/or authority to retrieve and remove the kidneys, pancreas, liver and heart of the said deceased patient and to transplant the said organs to any compatible patient who maybe in need of said organs to live and survive.A Certification dated March 10, 1988 was issued by Dr. Maximo Reyes, Medico-Legal Officer of the NBI, stating that he received a telephone call from Dr. Liquete on March 3, 1988 at 9:15 a.m. regarding the case of Lugmoso, who was declared brain dead; that despite efforts to locate the latters relatives, no one responded; that Dr. Liquete sought from him a second opinion for organ retrieval for donation purposes even in the absence of consent from the family of the deceased; and that he verbally agreed to organ retrieval.At 3:45 in the afternoon of March 3, 1988, a medical team, composed of Dr. Enrique Ona, as principal surgeon, Drs. Manuel Chua-Chiaco, Jr., Rose Marie Rosete-Liquete, Aurea Ambrosio, Ludivino de Guzman, Mary Litonjua, Jaime Velasquez, Ricardo Fernando, and Myrna Mendoza, removed the heart, kidneys, pancreas, liver and spleen of Lugmoso. The medical team then transplanted a kidney and the pancreas of Lugmoso to Lee Tan Hoc and the other kidney of Lugmoso to Alexis Ambustan. The transplant operation was completed at around 11:00 oclock in the evening of March 3, 1988.On March 4, 1988, Dr. Antonio R. Paraiso, Head of the Cadaver Organ Retrieval Effort (CORE) program of NKI, made arrangements with La Funeraria Oro for the embalmment of the cadaver of Lugmoso good for a period of fifteen (15) days to afford NKI more time to continue searching for the relatives of the latter. On the same day, Roberto Ortega, Funeral Consultant of La Funeraria Oro, sent a request for autopsy to the NBI. The Autopsy Report and Certification of Post-Mortem Examination issued by the NBI stated that the cause of death of Lugmoso was intracranial hemorrhage secondary to skull fracture.On March 11, 1988, the NKI issued a press release announcing its successful double organ transplantation. Aida Doromal, a cousin of plaintiff, heard the news aired on television that the donor was an eighteen (18) year old boy whose remains were at La Funeraria Oro in Quezon City. As the name of the donor sounded like Arnelito Logmao, Aida informed plaintiff of the news report.It appears that on March 3, 1988, Arlen Logmao, a brother of Arnelito, who was then a resident of 17-C San Pedro Street, Mandaluyong, reported to Police Station No. 5, Eastern Police District, Mandaluyong that the latter did not return home after seeing a movie in Cubao, Quezon City, as evidenced by a Certification issued by said Station; and that the relatives of Arnelito were likewise informed that the latter was missing. Upon receiving the news from Aida, plaintiff and her other children went to La Funeraria Oro, where they saw Arnelito inside a cheap casket.On April 29, 1988, plaintiff filed with the court a quo a complaint for damages. Plaintiff alleged that defendants conspired to remove the organs of Arnelito while the latter was still alive and that they concealed his true identity.RTC: On January 17, 2000, the court a quo rendered judgment finding only Dr. Filoteo Alano liable for damages to plaintiff and dismissing the complaint against the other defendants for lack of legal basis.3Petitioner appealed to the CA.CA: Affirmed the decision with modification on the reward for damages. Petitioner then elevated the matter to this Court via a petition for review on certiorari, where the following issues are presented for resolution:ISSUES: WHETHER THE COURT OF APPEALS DISREGARDED EXISTING JURISPRUDENCE PRONOUNCED BY THIS HONORABLE SUPREME COURT IN HOLDING PETITIONER DR. FILOTEO ALANO LIABLE FOR MORAL AND EXEMPLARY DAMAGES AND ATTORNEY'S FEES DESPITE THE FACT THAT THE ACT OF THE PETITIONER IS NOT THE PROXIMATE CAUSE NOR IS THERE ANY FINDING THAT THE ACT OF THE PETITIONER WAS THE PROXIMATE CAUSE OF THE INJURY OR DAMAGE ALLEGEDLY SUSTAINED BY RESPONDENT ZENAIDA MAGUD-LOGMAO.B. WHETHER THE COURT OF APPEALS GRAVELY ERRED IN REFUSING AND/OR FAILING TO DECLARE THAT PETITIONER DR. ALANO ACTED IN GOOD FAITH AND PURSUANT TO LAW WHEN HE ISSUED THE AUTHORIZATION TO REMOVE AND RETRIEVE THE ORGANS OF ANGELITO LUGMOSO (LATER IDENTIFIED TO BE IN FACT ARNELITO LOGMAO) CONSIDERING THAT NO NEGLIGENCE CAN BE ATTRIBUTED OR IMPUTED ON HIM IN HIS PERFORMANCE OF AN ACT MANDATED BY LAW.C. WHETHER THE COURT OF APPEALS GRAVELY ERRED IN AWARDING RESPONDENT ZENAIDA MAGUD-LOGMAO MORAL AND EXEMPLARY DAMAGES AND ATTORNEY'S FEES THAT ARE NOT IN ACCORDANCE WITH AND ARE CONTRARY TO ESTABLISHED JURISPRUDENCE.5The first two issues boil down to the question of whether respondent's sufferings were brought about by petitioner's alleged negligence in granting authorization for the removal or retrieval of the internal organs of respondent's son who had been declared brain dead.Petitioner maintains that when he gave authorization for the removal of some of the internal organs to be transplanted to other patients, he did so in accordance with the letter of the law, Republic Act (R.A.) No. 349, as amended by Presidential Decree (P.D.) 856, i.e., giving his subordinates instructions to exert all reasonable efforts to locate the relatives or next of kin of respondent's son. In fact, announcements were made through radio and television, the assistance of police authorities was sought, and the NBI Medico-Legal Section was notified. Thus, petitioner insists that he should not be held responsible for any damage allegedly suffered by respondent due to the death of her son and the removal of her sons internal organs for transplant purposes.The appellate court affirmed the trial court's finding that there was negligence on petitioner's part when he failed to ensure that reasonable time had elapsed to locate the relatives of the deceased before giving the authorization to remove said deceased's internal organs for transplant purposes. However, a close examination of the records of this case would reveal that this case falls under one of the exceptions to the general rule that factual findings of the trial court, when affirmed by the appellate court, are binding on this Court. There are some important circumstances that the lower courts failed to consider in ascertaining whether it was the actions of petitioner that brought about the sufferings of respondent.6A careful reading shows that petitioner instructed his subordinates to "make certain" that "all reasonable efforts" are exerted to locate the patient's next of kin, even enumerating ways in which to ensure that notices of the death of the patient would reach said relatives. It also clearly stated that permission or authorization to retrieve and remove the internal organs of the deceased was being given ONLY IF the provisions of the applicable law had been complied with. Such instructions reveal that petitioner acted prudently by directing his subordinates to exhaust all reasonable means of locating the relatives of the deceased. He could not have made his directives any clearer. He even specifically mentioned that permission is only being granted IF the Department of Surgery has complied with all the requirements of the law. Verily, petitioner could not have been faulted for having full confidence in the ability of the doctors in the Department of Surgery to comprehend the instructions, obeying all his directives, and acting only in accordance with the requirements of the law.Furthermore, as found by the lower courts from the records of the case, the doctors and personnel of NKI disseminated notices of the death of respondent's son to the media and sought the assistance of the appropriate police authorities as early as March 2, 1988, even before petitioner issued the Memorandum. Prior to performing the procedure for retrieval of the deceased's internal organs, the doctors concerned also the sought the opinion and approval of the Medico-Legal Officer of the NBI.Thus, there can be no cavil that petitioner employed reasonable means to disseminate notifications intended to reach the relatives of the deceased. The only question that remains pertains to the sufficiency of time allowed for notices to reach the relatives of the deceased.If respondent failed to immediately receive notice of her son's death because the notices did not properly state the name or identity of the deceased, fault cannot be laid at petitioner's door. The trial and appellate courts found that it was the EAMC, who had the opportunity to ascertain the name of the deceased, who recorded the wrong information regarding the deceased's identity to NKI. The NKI could not have obtained the information about his name from the patient, because as found by the lower courts, the deceased was already unconscious by the time he was brought to the NKI.Ultimately, it is respondent's failure to adduce adequate evidence that doomed this case. As stated in Otero v. Tan,8"[i]n civil cases, it is a basic rule that the party making allegations has the burden of proving them by a preponderance of evidence. The parties must rely on the strength of their own evidence and not upon the weakness of the defense offered by their opponent."9Here, there is to proof that, indeed, the period of around 24 hours from the time notices were disseminated, cannot be considered as reasonable under the circumstances. They failed to present any expert witness to prove that given the medical technology and knowledge at that time in the 1980's, the doctors could or should have waited longer before harvesting the internal organs for transplantation.Verily, the Court cannot, in conscience, agree with the lower court. Finding petitioner liable for damages is improper. It should be emphasized that the internal organs of the deceased were removed only after he had been declared brain dead; thus, the emotional pain suffered by respondent due to the death of her son cannot in any way be attributed to petitioner. Neither can the Court find evidence on record to show that respondent's emotional suffering at the sight of the pitiful state in which she found her son's lifeless body be categorically attributed to petitioner's conduct.WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals, dated March 31, 2006, is REVERSED and SET ASIDE. The complaint against petitioner is hereby DISMISSED.

14. G.R. No. 203080DR. IDOL L. BONDOC,Petitioner,v.MARILOU R. MANTALA,Respondent.Facts of the case:On November 6, 2009, Marilou R. Mantala (respondent) filed a complaint for grave misconduct against Dr. Idol L. Bondoc (petitioner), Medical Officer III at the Oriental Mindoro Provincial Hospital (OMPH).

Respondent was admitted at the OMPH on April 3, 2009, at around 11:00 in the morning, with referral5from the Bansud Municipal Health Office (BMHO). She was due to deliver her fifth child and was advised by the BMHO for a cesarean section because her baby was big and there was excessive amniotic fluid in her womb. She started to labor at 7:00 in the morning and was initially brought to the Bongabon Health Center. However, said health center also told her to proceed directly to the hospital.

In her complaint-affidavit,6respondent alleged that inside the delivery room of OMPH, she was attended to by petitioner who instructed the midwife and two younger assistants to press down on respondent's abdomen and even demonstrated to them how to insert their fingers into her vagina. Thereafter, petitioner went out of the delivery room and later, his assistants also left. As she labored in pain, she felt the movement of her baby inside her womb and the intermittent stiffening of her abdomen.

At about 4:00 in the afternoon, petitioner returned to the delivery room and asked her, "Hindi ka pa nanganganak?" Since she could no longer bear the pain, she requested petitioner to perform a cesarean section but this was not done. The midwife arrived and berated her for not yet sleeping and holding on to the steel bar. The midwife and the younger assistants again pressed down on her abdomen causing excruciating pain on her ribs and made her very weak. They repeatedly did this pressing until the baby and placenta came out. When she regained consciousness, she was already at the recovery room. She learned that an operation was performed on her by petitioner to remove her ruptured uterus but what depressed her most was her stillborn baby and the loss of her reproductive capacity. The next day, she was transferred to a ward. She noticed her very swollen vulva and her surgical wound open with liquid squirting from it. Her wound was regularly cleaned by a nurse. On April 9, 2009, she was discharged notwithstanding that the suture on her wound needs to be fixed and she still has a cough. At home, she took the antibiotics, cough medicine and multivitamins prescribed by petitioner.

After two days, the opening in her wound widened. Her husband brought her to the Bongabon Community Hospital but they were advised to have her wound re-stitched by the same surgeon (petitioner) who operated on her. Thus, on April 14, 2009, they went back to OMPH. She was attended to by a certain Dr. Gonzales who cleaned her wound which now has a lot of pus, and the said doctor commented that"problema ito ni Bondoc."On April 18, 2009, after she was given blood transfusion, petitioner re-stitched her wound. Thereafter, it was Dr. Gonzales who regularly checked on her condition.

On April 27, 2009, petitioner removed the sutures but still left open three of them. She wondered then why petitioner suddenly showed kindness towards her. In the evening of April 28, 2009, petitioner talked to her and said in a threatening tone "Ikaw ang sadyang ayaw magpa-cs" and also told her that he just came from Pinamalayan and Bansud and already talked to Dr. Atienza and Dr. Sales. Petitioner then told the nurse on duty,"Papirmahin mo si Mantala, pauuwiin ko na 'yan bukas. Tanggalin mo na rin ang tahi."He further said,"huwag sana akong idemanda ni Mantala kasi kaya ko siyang baligtarin"The following day, she was discharged after the nurse had removed the remaining sutures. At home, it was her sister who cleaned the still open wound.

Joel F. Mantala, respondent's husband, and her sisters Mylen R. Amistad and Lucia Rala, executed their respective affidavits7to corroborate her story. In addition, respondent submitted the affidavit of Dr. Rosinico F. Fabon, the anesthesiologist on duty during the operation performed by petitioner on April 3, 2009.

Joel Mantala claimed that at the OMPH at around 2:30 in the afternoon when her wife was still laboring, petitioner talked to him and told her that the baby is too big and if it comes out alive it will probably be abnormal so that it would be better if the baby is stillborn. He further averred that despite the pleas of her wife for a cesarean operation, petitioner insisted on a normal delivery during which she almost died.8

On the other hand, Dr. Fabon narrated that in the afternoon of April 3, 2009, he was attending to a patient being operated on by petitioner when he heard the latter saying that"meron pa nga kami sa DR macrosomia, polyhydramnios pa, pero paanakin na lang 'yon, abnormal din naman ang bata kahit mabuhay, kawawa lang siya" After the operation, petitioner went out of the Operating Room (OR) and proceeded towards the direction of the OB ward. At 5:35 in the afternoon, a Request for Surgery[9was forwarded to the OR for Emergency Pelvic Laparotomy of respondent with a diagnosis of T/C Ruptured Uterus.

When respondent was brought to the OR at 8:15 p.m., Dr. Fabon found her conscious but very weak and pale, with abdominal pain and tenderness on very slight palpation. He then heard from petitioner himself that it was the same patient he was referring to earlier with a diagnosis of macrosomia, polyhydramnios. Petitioner volunteered that respondent had just delivered her baby but that her uterus probably ruptured in the process of childbirth."Pinilit no 'ng tatlong ungas, ayon lumusot pero patay ang bata, tapos Ho, mukhang pumutok" petitioner said.

Dr. Fabon immediately prepared respondent for General Anesthesia; respondent was inducted at 8:35 p.m. while surgery began at 8:45 p.m. He continued to narrate what transpired next and his observations, as That right after induction - when patient was asleep already and don't feel any pain at all - her blood pressure suddenly dropped to 70/40

That after opening the abdomen, I saw massive hemoperitonium and the ruptured uterus with bleeding from various directions. I immediately requested for additional blood to be used intra-operatively while at the same time I established another intravenous line so as to cope with on-going surgical blood loss. I had now three big-bore fast-dripping IV lines.

That in spite of this measure, blood pressure dropped to 50/30 mmHg. There was an instance wherein I cannot even appreciate the blood pressure of the patient, her pulse hardly noticeable on palpation and she was very pale that necessitates turning the anesthetic gas off so as to keep her alive. She was given a dose of Atropine after patient did not respond to two l0mg doses of Ephedrine. I prescribed Dobutamine and Dopamine drips to help improve her blood pressure and maintain adequate urine output. Unfortunately, only Dopamine was available. I had to use 100% Oxygen at 3L/minute without mixture of volatile gas for several minutes. She was maintained using muscle relaxants alone on controlled ventilation.

That Dr. Bondoc operated on the patient all by himself without the help of a consultant or an assistant surgeon. Nowhere in the patient chart will show that he referred this case to his consultant; one thing that I was wondering why he was doing the surgery alone. He utilized the scrub nurse to assist him making a delicate and bloody surgery more bloody and difficult.

That after Dr. Bondoc had removed the ruptured uterus and the bleeding was controlled, he made intra-operative referral to Dr. Ariel Tria, a resident surgeon, to check on the urinary bladder and the ureters.

That the operation performed was Subtotal Hysterectomy with Unilateral Salpingooophorectomy. I noticed that the operation technique was different from that which Dr. Bondoc had written in the Surgical Memo and that the patient did not tolerate the procedure well.

That the patient was very pale after the procedure with low blood pressure due to massive blood loss. That her blood pressure started to improve at the Recovery Room but the pulse rate remained considerably high for several hours. Her urine output was inadequate and that it had to be maintained using Dopamine.

That when Leo Reyes, the Recovery Room nurse, referred the patient to me and I checked the urinary catheter, I noticed her vagina to be massively swollen with hematomas all over.

That the patient had to be referred to Internal Medicine for co-management[.]

That Marilou Mantala stayed in the Recovery Room for almost eleven (11) hours. She was transferred to Gyne Ward at 9:20 AM the following day.10

In his counter-affidavit,11petitioner averred that when respondent was brought to OMPH with referral form from BMHO, she had been in labor for more than twelve (12) hours at home. He submitted his admitting diagnosis of the patient, "Gravida 5 Parity 4 (4004) Pregnancy Uterine 38 to 39 Weeks Age of Gestation by Last Menstrual Period Cephalic in Labor; Macrosomia; Fetal Death in Utero."

Petitioner alleged that during his interview with respondent, the latter admitted to him that she doesn't want to be confined at any hospital because she was afraid to be handled by medical doctors. Instead, she went to a traditional birth attendant (TBA) or "hilotwhich she voluntarily named as Apolonia Salcedo, residing at Dalapian, Labasan, Bongabon, Oriental Mindoro. Respondent clearly defied the advice of Drs. Theresa Atienza and Mario Sales not to give birth at home. As to her swollen vulvar hematoma which was noticed by Dr. Fabon, it was the result of prolonged labor.

As to the charge that he abandoned the respondent to his assistants, petitioner claimed that between 12 noon and 2:00 o'clock in the afternoon, he was busy checking on pregnant patients at the out-patient department (OPD) of OMPH until he was called for his first cesarean section (CS). Later at 4:00 o'clock, without resting and having lunch, he visited respondent and other admitted patients at the delivery room. Together with the nurse on duty, Mrs. Evelyn D. Morales, petitioner said he explained to respondent her and her baby's condition based on the referral from BMHO (polyhydramnios) and initial findings that her abdomen and baby were big and the baby's heartbeat is not appreciated. He presented the respondent with two options: have a normal delivery or undergo cesarean section, and the consequences of each choice. Respondent chose the former believing that she can handle this childbirth at home, and petitioner respected her decision.

After seeing other patients at the delivery room, petitioner was called for his second CS that day. Thus, he was obliged to proceed to the OR and left the respondent under the care of three assistants, one of whom is an experienced midwife. That he was not the one who attended to the, respondent during her delivery is confirmed by the statements of respondent herself, Dr. Fabon and Mrs. Morales. Further, petitioner claimed it has been a long-time practice at OMPH that whenever the doctor is at the OR, the experienced midwives will take over the delivery of laboring patients.

Petitioner blamed respondent for risking her own life in not seeking immediately a higher level of medical care and instead preferring a TBA who is prohibited under a 2006 provincial circular to handle deliveries at home. He emphasized that upon admission the fetal heart tone is no longer appreciated and maintained that diligent care was extended to respondent during her stay at OMPH. As to the complications like cough and wound dehiscence, he explained that these were the effects of anesthesia and surgery (loss of blood, massive blood transfusion and intravenous fluid infusion), and also poor compliance with prescribed medication. He further asserted that he had referred the patient to other co-doctors on duty like Dr. Romy Lomio (Internal Medicine) for co-management.

On April 23, 2010, petitioner submitted a manifestation that he had resigned as Medical Officer of OMPH effective March 5, 2010. He thus posited that the administrative case is now rendered moot and academic.

On August 12, 2010, the Office of the Deputy Ombudsman for Luzon rendered a Decision finding the petitioner administratively liable. It held that by fully entrusting to his subordinates the task of handling respondent's complicated delivery, petitioner exhibited an improper or wrongful conduct and dereliction of duty as medical practitioner. Being the most competent person who should have rendered the appropriate medical service to respondent, petitioner should have personally attended to the latter. Such action or inaction of his part amounts to intentional or willful neglect in discharging his sworn duty as a government physician which is also equivalent to misconduct in office. The administrative case filed against the respondent is also not rendered moot by his subsequent resignation in office.

The Decision of the OMB: Medical Officer Idol L. Bondoc of Oriental Mindoro Provincial Hospital (OMPH) - guilty of Grave Misconduct with penalty ofDISMISSALin the Government Service pursuant to Section 10, Rule III, Administrative Order No. 07, as amended by Administrative Order No. 17, in relation to Section 25 of Republic Act No. 6770. The penalty of dismissal shall carry with it that of cancellation of eligibility, forfeiture of the retirement benefits, and the perpetual disqualification for reemployment in the government service pursuant to Section 58, Rule IV of the Uniform Rules on Administrative Cases in the Civil Service.

The foregoing ruling was affirmed by the CA and petitioner's motion for reconsideration was denied.

The CA concurred that petitioner should have chosen to stay in the delivery room and personally attend to the patient as he is the most competent person to render medical service in view of respondent's critical condition. It likewise faulted the petitioner for deliberately leaving the laboring and unstable respondent to the care of his inexperienced subordinates at the time she was about to give birth. As to petitioner's excuse that he had to attend to an equally important cesarean operation, the CA said there was no sufficient showing of the latter's urgency and assuming it to be true, still, petitioner should have exerted efforts to refer respondent's case to another competent doctor or one of his consultants.

Petitioner is now before this Court arguing that the CA erred in affirming the Ombudsman's ruling that he is guilty of grave misconduct and imposing on him the penalty of dismissal from the service.

SC: The petition has no merit.

Misconduct is defined as a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by a public officer,13a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment.14It generally means wrongful, improper or unlawful conduct motivated by a premeditated, obstinate or intentional purpose. The term, however, does not necessarily imply corruption or criminal intent. To constitute an administrative offense, misconduct should relate to or be connected with the performance of the official functions and duties of a public officer. On the other hand, when the elements of corruption, clear intent to violate the law or flagrant disregard of established rule are manifest, the public officer shall be liable for grave misconduct.15

In this case, both the Ombudsman and CA found the petitioner guilty of grave misconduct in failing to attend to respondent when she was having prolonged difficult labor and vaginal delivery after being diagnosed withmacrosamia and polyhydramnios.Polyhydramniosis an abnormal condition occurring in pregnancy, characterized by excessive amniotic fluid (the fluid surrounding the baby in the uterus). Apart from protecting the baby from any external impact by providing a cushioning effect, the clear or slightly yellowish fluid plays a vital role in proper fetal development as well. However, increased levels of the fluid can cause various complications during different stages of pregnancy and childbirth.16Intra-amniotic pressure is markedly elevated in most patients with severe hydramnios. The incidence of cesarean section is also increased as a result of unstable lie and placental abruption, which may occur with the rapid decrease in intrauterine pressure that accompanies membrane rupture.17

One of the known causes and risk factors ofpolyhydramniosis fetalmacrosomia(having a baby too large for the gestational age).18

According to medical authorities, a macrosomic infant poses a different set of complications. The incidences of shoulder dystocia,19birth injuries, perinatal death, and low Apgar scores are increased in macrosomic infants.20In these cases, careful attention to the patient, potential risk factors, clinical progress, and fetal size should allow obstetricians to reduce the occurrence of maternal and neonatal morbidity.21Vaginal delivery of the macrosomic infant is associated with an increased incidence of birth trauma. The question whether to perform cesarean section thus arises.22If the estimated fetal weight is 4000 to 4500 g by ultrasonography and the patient has a clinically adequate pelvis, labor may be allowed. If labor is protracted or the second stage is prolonged, a cesarean section would avoid the possible trauma of a difficult vaginal delivery. Because of the greater morbidity associated with infants who weigh more than 4500 g, elective cesarean section is warranted. On the other hand, prolonged labor may culminate in obstructed labor, and is associated with maternal infection, uterine rupture and postpartum hemorrhage.24

As per the admitting diagnosis[25submitted by petitioner, the latter was aware ofmacrosomiaand the fetal heartbeat not appreciated. He also maintains that respondent's baby was already dead due to prolonged labor but she had insisted on having a normal delivery. However, this claim is belied by the sworn statements of respondent, her husband and her sisters, all of whom averred that they requested for a cesarean section as per the advice given by Dr. Atienza who examined her in March 2009, and as confirmed at the Bansud Health Center where she was told that it would be risky for her to have a normal delivery. Moreover, Joel Mantala asserted that what petitioner said to him was that the baby was too big and if born alive it would probably have abnormalities so it would be better that the baby is stillborn.The Court is more inclined to believe respondent's version which was duly corroborated by Dr. Fabon who heard petitioner saying that:"Meron pa nga kami sa DR macrosomnia, polyhydramnios pa, pero paanakin na long 'yon. Abnormal din naman ang bata kahit mabuhay." This puts into doubt petitioner's supposed finding that the baby was already dead upon respondent's admission at OMPH and that it was respondent who insisted on a normal delivery. Even assuming that petitioner had actually confirmed intrauterine fetal death, this only aggravates the patient's condition and it was incumbent upon petitioner as the obstetrician on duty to personally attend to her and render appropriate management or treatment.

In deliberately leaving the respondent to a midwife and two inexperienced assistants despite knowing that she was under prolonged painful labor and about to give birth to a macrosomic baby by vaginal delivery, petitioner clearly committed a dereliction of duty and a breach of his professional obligations. The gravity of respondent's condition is highlighted by the expected complications she suffered - her stillborn baby, a ruptured uterus that necessitated immediate surgery and blood transfusion, and vulvar hematomas.

Article II, Section 1 of theCode of Medical Ethics of the Medical Profession in the Philippinesstates: A physician should attend to his patients faithfully and conscientiously. He should secure for them all possible benefits that may depend upon his professional skill and care. As the sole tribunal to adjudge the physician's failure to fulfill his obligation to his patients is, in most cases, his own conscience, violation of this rule on his part is discreditable and inexcusable.26

A doctor's duty to his patient is not required to be extraordinary. The standard contemplated for doctors is simply the reasonable average merit among ordinarily good physicians,i.e. reasonable skill and competence.27Even by this standard, petitioner fell short when he routinely delegated an important task that requires his professional skill and competence to his subordinates who have no requisite training and capability to make crucial decisions in difficult childbirths.

Petitioner's proffered excuse that it was the practice in OMPH to allow midwives to administer to patients during deliveries, is unacceptable. No proof of such alleged hospital practice such as an official written directive was presented. Besides, it is doubtful whether hospital administrators would remedy personnel shortage by permitting inexperienced staff, by themselves, to handle laboring patients with high-risk pregnancies and maternal/fetal complications.

As to the two other scheduled CS performed by petitioner on the same day, this will not exculpate him from administrative liability. As correctly pointed out by the CA, there was no showing of similar urgency in the said operations, and petitioner could have referred respondent to another competent physician. He could have likewise arranged for adjustment in the operation schedules considering that his personal attention and management is urgently needed in respondent's difficult and complicated delivery. But there is no indication in the records that petitioner duly informed or referred the matter to the other doctors or the administrators of OMPH.

We therefore hold that the CA correctly affirmed the Ombudsman in finding the petitioner guilty of grave misconduct. His violation of the sworn duty to attend to his patients faithfully and conscientiously is inexcusable. Such flagrant disregard of established rule and improper conduct were proven by substantial evidence.Not only did petitioner routinely delegate his responsibility to his subordinates, he casually instructed them to press down repeatedly on respondent's abdomen, unmindful of her critical condition as borne out by his very own findings. Worse, petitioner haughtily and callously spoke of respondent's case to the other doctors and medical staff while performing a CS after he had briefly attended to her at the delivery room "...paanakin na long 'yon, abnormal din naman ang bata kahit mabuhay, kawawa lang siya." Such insensitive and derisive language was again heard from the petitioner when he referred for the second time to respondent's traumatic delivery, saying that: "Pinilit no 'ng tatlong ungas, ayon lumusot pero patay ang bata, tapos ito, mukhang pumutok"As a government physician, petitioner's demeanor is unbecoming and bespeaks of his indifference to the well-being of his patients.

Petitioner thus not only committed a dereliction of duty, but also transgressed the ethical norms of his profession when he failed to render competent medical care with compassion and respect for his patient's dignity.A physician should be dedicated to provide competent medical care with full professional skill in accordance with the current standards of care, compassion, independence and respect for human dignity.28(Italics supplied.)

Finally, we find no merit in petitioner's argument that the CA should have at least considered as mitigating circumstances his being a first offender,29his 16 years in government service, and that he had not acted in bad faith and with clear intent to violate the law and established rules.

Jurisprudence is replete with cases declaring that a grave offense cannot be mitigated by the fact that the accused is a first time offender or by the length of service of the accused.30While in most cases, length of service is considered in favor of the respondent, it is not considered where the offense committed is found to be serious or grave.31InMedina v. Commission on Audit,32the Court stressed that dishonesty and grave misconduct have always been and should remain anathema in the civil service. They inevitably reflect on the fitness of a civil servant to continue in office. When an officer or employee is disciplined, the object sought is not the punishment of such officer or employee but the improvement of the public service and the preservation of the public's faith and confidence in the government.WHEREFORE, the petition isDENIEDfor lack of merit. The Decision dated May 24, 2012 and Resolution dated August 14, 2012 of the Court of Appeals in CA-G.R. SP No. 120563 areAFFIRMED and UPHELD.15. SPS. ALFREDO BONTILAO AND SHERLINA BONTILAO, petitioners, vs. DR. CARLOS GERONA, respondent.

Notes: It is a rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened, provided that the character of the accident and circumstances attending it lead reasonably to the belief that in the absence of negligence it would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrongdoer.

Res ipsa loquitur is a rebuttable presumption or inference that the defendant was negligent. Thepresumption only arises upon proof that the instrumentality causing injury was in the defendants exclusive control, and that the accident was one (1) which ordinarily does not happen in the absence of negligence.

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. In malpractice cases, the doctrine is generally restricted to situations 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.

Facts of the case:

Allen Key, 8-year old son of Alfredo and Sherlina, was treated by Dr. Carlos for a fractured right wrist. He administered a U-splint on Allen Key then sent him home. On June 4, 1992, Allen refracted the same wrist, where x-ray examination showed a complete fracture and displacement of the bone. Dr. Carlos then performed a closed reduction procedure with Dr. Vicente as anaesthesiologist. After the post-reduction x-ray showed that the bones were properly aligned, Allen was sent home with instruction to bring him for re-tightening not later than June 15, 1992. It was later that Allen was brought to the hospital. Because no retightening happened, a rotational deformity had developed in Allens arm, caused by a re-displacement of the bone fragments, necessitating an open reduction surgery which was set on June 24, 1992 by Dr. Carlos as surgeon and again Dr. Vicente as anaesthesiologist. Sherlina was allowed to observe the procedure. After five attempts, Dr. Vicente failed to intubate Allen Key, so anaesthesia was administered through a gas mask. When Dr. Carlos asked if the operation should continue with the failure to intubate, Dr. Vicente gave the go-ahead. Dr. Carlos checked if Allen Key was breathing properly before proceeding with the surgery. Sherlina went out temporarily to make a telephone call when she saw Dr. Carlos about to finish the suturing, but was informed that her son died at the operating table due to asphyxia due to congestion and edema of the epiglottis.

Allen Keys parents then filed criminal and administrative charges against Dr. Carlos and Dr. Vicente, as well as instituted a civil case for damages against both doctors, alleging incompetence and negligence in the performance of their duty.

RTC: Applying the doctrine of res ipsa loquitor, found Dr. Carlos and Dr. Vicente solidarily liable and ordered them to pay damages.

Out of this decision, only Dr. Carlos appealed to the Court of Appeals, as Dr. Vicente opted not to file his appeal.

CA: Reversed the RTC ruling, holding that Dr. Carlos is not liable under the doctrine of res ipsa loquitor, and in applying the captain of the ship doctrine in the case. Here, the anaesthesiologist was chosen by the spouses, and no negligence was attributable to Dr. Carlos.

The spouses then elevated their case against Dr. Carlos to the Supreme Court:

SC: The trial court erred in applying the doctrine of res ipsa loquitur to pin liability on respondent for Allens death. Res ipsa loquitur is a rebuttable presumption or inference that the defendant was negligent. The presumption only arises upon proof that the instrumentality causing injury was in the defendants exclusive control, and that the accident was one (1) which ordinarily does not happen in the absence of negligence. It is a rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened, provided that the character of the accident and circumstances attending it lead reasonably to the belief that in the absence of negligence it would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrongdoer.

Under this doctrine, the happening of an injury permits an inference of negligence where the plaintiff produces substantial evidence that the injury was caused by an agency or instrumentality under the exclusive control and management of the defendant, and that the injury was such that in the ordinary course of things would not happen if reasonable care had been used.

However, 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. In malpractice cases, the doctrine is generally restricted to situations 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. In other words, as held in Ramos v. Court of Appeals,[14] the real question is whether or not in the process of the operation, any extraordinary incident or unusual event outside of the routine performance occurred which is beyond the regular scope of professional activity in such operations, and which, if unexplained, would themselves reasonably speak to the average man as the negligent cause or causes of the untoward consequence.

Here, we find that the CA correctly found that petitioners failed to present substantial evidence of any specific act of negligence on respondents part or of the surrounding facts and circumstances which would lead to the reasonable inference that the untoward consequence was caused by respondents negligence. In fact, under the established facts, respondent appears to have observed the proper amount of care required under the circumstances. Having seen that Dr. Jabagat failed in the intubation, respondent inquired from the latter, who was the expert on the matter of administering anesthesia, whether the surgery should be postponed considering the failure to intubate. X X X

x x x

Respondent further verified that Allen was still breathing by looking at his chest to check that there was excursion before proceeding with the surgery. That respondent decided to continue with the surgery even though there was a failure to intubate also does not tend to establish liability, contrary to the trial courts ruling. Petitioners failed to present substantial proof that intubation was an indispensable prerequisite for the operation and that it would be grave error for any surgeon to continue with the operation under such circumstances. In fact, the testimony of the expert witness presented by the prosecution in the criminal proceedings and admitted into evidence at the RTC, was even to the effect that the anesthesia could be administered by alternative means such as a mask and that the operation could proceed even without intubation.

There was also no indication in the records that respondent saw or should have seen that something was wrong as to prompt him to act differently than he did in this case. The anesthesia used in the operation was the same anesthesia used in the previous closed reduction procedure, and Allen did not register any adverse reaction to it. In fact, respondent knows the anesthesia Ketalar to be safe for children. Dr. Jabagat was also a specialist and more competent than respondent to determine whether the patient has been properly anesthetized for the operation, all things considered. Lastly, it appears that Allen started experiencing difficulty in breathing only after the operation, when respondent was already about to jot down his post-operation notes in the adjacent room. Respondent was called back to the operating room after Dr. Jabagat failed to appreciate a heartbeat on the patient. He acted promptly and called for other doctors to assist and revive Allen, but to no avail.

Moreover, we note that in the instant case, the instrument which caused the damage or injury was not even within respondents exclusive management and control as Dr. Jabagat was exclusively in control and management of the anesthesia and the endotracheal tube. 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.

Here, the respondent could only supervise Dr. Jabagat to make sure that he was performing his duties. But respondent could not dictate upon Dr. Jabagat the particular anesthesia to administer, the dosage thereof, or that it be administered in any particular way not deemed appropriate by Dr. Jabagat. Respondents specialization not being in the field of anesthesiology, it would be dangerous for him to substitute his judgment for Dr. Jabagats decisions in matters that fall appropriately within the scope of Dr. Jabagats expertise.

Under the above circumstances, although the Court commiserates with the petitioners on their infinitely sorrowful loss, the Court cannot properly declare that respondent failed to exercise the required standard of care as lead surgeon as to hold him liable for damages for Allens death.

In civil cases, the burden of proof to be established by preponderance of evidence is on the plaintiff who is asserting the affirmative of an issue. Unless the party asserting the affirmative of an issue sustains the burden of proof, his or her cause will not succeed.