PROFESSIONAL SERVICES, INC., PETITIONER, VS. THE COURT OF APPEALS AND NATIVIDAD AND ENRIQUE AGANA, RESPONDENTS G.R. No February 11, 2008

ISSUES FOR RESOLUTION

Core Issue  The respondents’ claim for damages is based on their allegation that the decision of Dr. Ampil & Dr. Fuentes to end the surgical operation despite the incomplete sponge count, amounted to negligence.

NEGLIGENCE  Conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm.  A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances

Elements of Negligence 1. a plaintiff must prove that the defendant had a duty to the plaintiff 2. the defendant breached that duty by failing to conform to the required standard of conduct 3. proximate cause: the defendant's negligent conduct was the cause of the harm to the plaintiff 4. the plaintiff was, in fact, harmed or damaged.

IS DR. AMPIL LIABLE FOR NEGLIGENCE AND MALPRACTICE?

all the major circumstances, taken together, as specified by the Court of Appeals, directly point to Dr. Ampil as the negligent party, thus: – First, it is not disputed that the surgeons used gauzes as sponges to control the bleeding of the patient during the surgical operation. – Second, immediately after the operation, the nurses who assisted in the surgery noted in their report that the ‘sponge count (was) lacking 2’; that such anomaly was ‘announced to surgeon’ and that a ‘search was done but to no avail’ prompting Dr. Ampil to ‘continue for closure’ x x x. – Third, after the operation, two (2) gauzes were extracted from the same spot of the body of Mrs. Agana where the surgery was performed.

 It is settled that the leaving of sponges or other foreign substances in the wound after the incision has been closed is at least prima facie negligence by the operating surgeon.

Even if it has been shown that a surgeon was required by the urgent necessities of the case to leave a sponge in his patient’s abdomen, because of the dangers attendant upon delay, still, it is his legal duty to so inform his patient within a reasonable time thereafter by advising her of what he had been compelled to do. – Here, Dr. Ampil did not inform Natividad about the missing two pieces of gauze. Worse, he even misled her that the pain she was experiencing was the ordinary consequence of her operation.

Elements of Negligence Duty:  Dr. Ampil, as the lead surgeon, had the duty to remove all foreign objects, such as gauzes, from Natividad’s body before closure of the incision.  To inform Natividad about the gauze left during surgery. Breach:  Dr. Ampil’s failure to remove the gauze; and failure to inform the patient,

Elements of Negligence Injury:  Breach of duty by Dr. Ampil led patient to seek further examination by American doctors and another surgery. Proximate Causation:  Could be traced from his act of closing the incision despite the information given by the attending nurses that two pieces of gauze were still missing.

IS DR. FUENTES LIABLE FOR NEGLIGENCE AND MALPRACTICE?

The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes on the ground that it is contrary to the doctrine of res ipsa loquitur. – Res ipsa loqui"the thing speaks for itself." Stated differently, where the thing which caused the injury, without the fault of the injured, is under the exclusive control of the defendant and the injury is such that it should not have occurred if he, having such control used proper care, it affords reasonable evidence, in the absence of explanation that the injury arose from the defendant’s want of care, and the burden of proof is shifted to him to establish that he has observed due care and diligence.

Requisites for the applicability of the doctrine of res ipsa loquitur are: – the occurrence of an injury; – the thing which caused the injury was under the control and management of the defendant; – the occurrence was such that in the ordinary course of things, would not have happened if those who had control or management used proper care; and – the absence of explanation by the defendant.

 element of "control and management of the thing which caused the injury" to be wanting. Hence, the doctrine of res ipsa loquitur will not lie.  duly established that Dr. Ampil was the lead surgeon during the operation of Natividad (“Captain of the Ship”).

In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence, does not per se create or constitute an independent or separate ground of liability, being a mere evidentiary rule. In other words, mere invocation and application of the doctrine does not dispense with the requirement of proof of negligence. Here, the negligence was proven to have been committed by Dr. Ampil and not by Dr. Fuentes.

LIABILITY OF PSI

On January 31, 2007, The Court rendered the decision holding that PSI is liable for the negligence of Dr. Ampil

ARTICLE 2176  Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

IS PSI LIABLE FOR THE NEGLIGENCE OF DR. AMPIL?

RESPONDEAT SUPERIOR  Latin: "let the master answer”  a legal doctrine which states that, in many circumstances, an employer is responsible for the actions of employees performed within the course of their employment

ARTICLE 2180  The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible.

Employer-Employee Relationship  The Court relied on Ramos v. Court of Appeals, holding that for the purpose of apportioning responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians

Employer-Employee Relationship  private hospitals, hire, fire and exercise real control over their attending and visiting ‘consultant’ staff.  While ‘consultants’ are not, technically employees, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages.

DOCTRINE OF OSTENSIBLE AGENCY OR AGENCY BY ESTOPPEL  PSI’s act of publicly displaying in the lobby of the Medical City the names and specializations of its accredited physicians, including Dr. Ampil, estopped it from denying the existence of an employer- employee relationship between them under the doctrine of ostensible agency or agency by estoppel

DOCTRINE OF CORPORATE NEGLIGENCE  PSI’s failure to supervise Dr. Ampil and Dr. Fuentes and its resident physicians and nurses who assisted Drs. Ampil and Fuentes; and failure to take an active step in order to remedy their negligence rendered it directly liable under the doctrine of corporate negligence.

DECISION

 WHEREFORE, judgment is hereby rendered for the plaintiffs ordering the defendants PROFESSIONAL SERVICES, INC., DR. MIGUEL AMPIL and DR. JUAN FUENTES to pay to the plaintiffs, jointly and severally, except in respect of the award for exemplary damages and the interest thereon which are the liabilities of defendants Dr. Ampil and Dr. Fuentes only, as follows:

 As actual damages, the following amounts: a. The equivalent in Philippine Currency of the total of US$19, at the rate of P21.60-US$1.00, as reimbursement of actual expenses incurred in the United States of America; b. The sum of P4, as travel taxes of plaintiffs and their physician daughter; c. The total sum of P45,802.50, representing the cost of hospitalization at Polymedic Hospital, medical fees, and cost of the saline solution;  As moral damages, the sum of P2,000,000.00;  As exemplary damages, the sum of P300,000.00;  As attorney’s fees, the sum of P250,000.00;  Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove, from date of filing of the complaint until full payment; and  Costs of suit.