 Dr. Batiquin with assistance of Dr. Sy, Nurse Arlene Diones and student nurses  simple caesarian section on Mrs. Villegas  After 45 minutes  Mrs. Villegas delivered Rachel Acogido at 11:45 AM  Mrs. Villegas remained confined until Sept 27, 1988  She was regularly visited by Dr. Batiquin

 Mrs. Villegas checked out of the hospital and paid P 1, as professional fee thru Dr. Batiquin’s secretary.  Soon after, Mrs. Villegas suffered abdominal pains and complained of being feverish. She gradually loss her appetite.  She consulted Dr. Batiquin, and was prescribed certain medicines which she took until December 1988.

 Dr. Batiquin gave Mrs. Villegas a medical certificate on her return to work on November 7,  Mrs. Villegas returned to work.

 Persistence of abdominal pains and fever despite medications prescribed by Dr. Batiquin  When the pains became unbearable, she rapidly lost weight and consulted Dr. Kho on January 20, 1989.

 Dr. Kho found Mrs. Villegas feverish, pale and breathing fast.  Upon examination, abdominal mass was felt one finger below the umbilicus which was suspected to be either a uterine tumor or ovarian cyst, either of which could be cancerous.  Chest, Abdomen and Kidney X-rays were taken  Blood count revealed infection inside her abdominal cavity  All of the results impelled Dr. Kho to suggest Mrs. Villegas to undergo another surgery

 During the surgery, a whitish yellow discharge was found inside the abdomen.  An ovarian cyst on each of the ovaries which gave out pus, dirt and pus behind the uterus and a piece of rubber material (2 x ¾ inches) on the right uterus embedded on the ovarian cyst.  Dr. Kho described the rubber material as a foreign body which looked like a “rubber glove”…. And which is also “rubber drain-like”…. It could have been a torn section of the gloves or from other sources.

 This foreign body is the cause of infection of the ovaries and consequently all the discomfort suffered by Mrs. Villegas after her delivery on September 21, 1988.

 Piece of rubber allegedly found was not presented in court.  Dr. Kho testified that she sent it to Cebu City to a pathologist for examination, it was not mentioned in the pathologist’ s Surgical Pathology Report.  Although a medical certificate, a progress record, an anesthesia record, a nurses’s record and a physician discharge summary were presented, the trial court regarded these as mere hearsay.

 The Trial Court refused to give weight to Dr. Kho’s testimony regarding the presence of piece of rubber since Dr. Kho “may not have first hand knowledge” thereof  I have heard somebody that says there is a foreign body that goes with the tissues but unluckily, I don’t know where the rubber was.

 When the Dr. Batiquin asked Dr. Kho regarding the piece of rubber “Dr. Kho answered that there is rubber indeed but she threw it away.”  This was not denied nor disputed by Dr. Kho leading the trial court to conclude that there are two versions on the whereabouts of the rubber: 1. That it was sent to a pathologist in Cebu City 2. That Dr. Kho threw it away

 Trial court held in favor of the petitioner, Dr. Batiquin.  The Court of Appeals deemed Dr. Kho’s positive testimony to definitely establish that a piece of rubber was found near Mrs. Villegas’ uterus.  Thus, the Court of Appeals reversed the decision of trial court.

 Preponderance of evidence  The appellate court then ruled  For the miseries endured for more than 3 months due to negligence of Dr. Batiquin, moral damages in the amount of P 100,000.00; exemplary damages in the amount of P 20,000.00; and attorney’s fees in the amount of P 25,  The fact that Mrs. Villegas that can no longer bear children was not taken into consideration  Removal of said organs was shown to be a direct result of the rubber left

 The appealed judgement, dismissing the complaint for damages is REVERSED and SET ASIDE.  Dr. Batiquin was ordered to pay Mrs. Villegas  P 17, for actual damages  P 100, for moral damages  P 20, for exemplary damages  P 25, for attorney’s fees plus cost of litigation

 Dr. Batiquin appealed, claiming that the appellate court  Abuse of discretion  Lack or excess of jurisdiction  There are exceptions to the rule that only questions of law may be raised in a petition for review on certiorari.  The focal point of the instant appeal is the appreciation of Dr. Kho’s testimony. The petitioner’s contend that the CA misappreciated a part of Dr. Kho’s testimony.

 It is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve his testimony with respect to other facts.

 Dr. Batiquin’s testimony  No rubber drain was used in the operation Was corroborated by Dr. Sy  No tear on Dr. Batiquin’s gloves after the operation  No blood smears on her hands upon removing her gloves  Denials or NEGATIVE TESTIMONIES

 Positive testimony is stronger than negative testimony.  Positive testimony should come from a credible source.

 The thing speaks for itself

 Caesarian section was done under the exclusive control of Dr. Batiquin.  Mrs. Villegas did not undergo any operation which could not have caused the offending piece of rubber to appear in her uterus.  Dr. Batiquin is therefore liable for negligently leaving behind a piece of rubber in Mrs. Villegas abdomen and for all the adverse effects thereof.  SC affirmed the challenged decision of the CA.

 A physician is bound to serve the interest of his patients with the greatest solicitude, giving them always his best talent and skill.