CASE DIGEST: Spouses Bontilao vs. Dr. Gerona

G.R. No. 176675: September 15, 2010




Respondent Dr. Carlos Gerona, an orthopedic surgeon at the Vicente Gullas Memorial Hospital, treated petitioners' son, 8-year-old Allen Key Bontilao (Allen), for a fractured right wrist. Respondent administered a "U-splint" and immobilized Allen's wrist with a cast, then sent Allen home.

Allen re-fractured the same wrist and was brought back to the hospital. The x-ray examination showed a complete fracture and displacement of the bone, with the fragments overlapping each other. Respondent performed a closed reduction procedure, with Dr. Vicente Jabagat (Dr. Jabagat) as the anesthesiologist. Then he placed Allen's arm in a plaster cast to immobilize it. He allowed Allen to go home after the post reduction x-ray showed that the bones were properly aligned, but advised Allen's mother, petitioner Sherlina Bontilao (Sherlina), to bring Allen back for re-tightening of the cast not later than June 15, 1992.

Allen, however, was brought back to the hospital late. By then, because the cast had not been re-tightened, a rotational deformity had developed in Allen's arm. The x-ray examination showed that the deformity was caused by a re-displacement of the bone fragments, so it was agreed that an open reduction surgery will be conducted by respondent, again with Dr. Jabagat as the anesthesiologist.

On the said date, Sherlina was allowed to observe the operation behind a glass panel. Dr. Jabagat failed to intubate the patient after five (5) attempts, so anesthesia was administered through a gas mask. Respondent asked Dr. Jabagat if the operation should be postponed given the failure to intubate, but Dr. Jabagat said that it was alright to proceed. Respondent verified that Allen was breathing properly before proceeding with the surgery. As respondent was about to finish the suturing, Sherlina decided to go out of the operating room to make a telephone call and wait for her son. Later, she was informed that her son had died on the operating table. The cause of death was "asphyxia due to congestion and edema of the epiglottis."

Aside from criminal and administrative cases, petitioners filed a complaint for damages against both respondent and Dr. Jabagat in the RTC of Cebu City alleging negligence and incompetence on the part of the doctors. The documentary evidence and testimonies of several witnesses presented in the criminal proceedings were offered and admitted in evidence at the RTC.

The RTC decided in favor of the petitioners. It held that the doctrine of res ipsa loquitur was applicable in establishing respondent's liability. According to the RTC, asphyxia or cardiac arrest does not normally occur in an operation on a fractured bone in the absence of negligence in the administration of anesthesia and the use of an endotracheal tube. Also, the instruments used in the administration of anesthesia were all under the exclusive control of respondent and Dr. Jabagat, and neither Allen nor his mother could be said to be guilty of contributory negligence. Thus, the trial court held that respondent and Dr. Jabagat were solidarity liable for they failed to prove that they were not negligent.

CA reversed the RTC's ruling. It held that the doctrine of res ipsa loquitur does not apply for it must be satisfactorily shown that (1) the accident is of a kind which ordinarily does not occur in the absence of someone's negligence; (2) the plaintiff was not guilty of contributory conduct; and (3) the instrumentality which caused the accident was within the control of the defendant.

The CA held that while it may be true that an Open Reduction and Internal Fixation or ORIF could not possibly lead to a patient's death unless somebody was negligent, still what was involved in this case was a surgical procedure with all risks attendant, including death. As explained by the expert testimony, unexplained death and mal-occurrence is a possibility in surgical procedures especially those involving the administration of general anesthesia. It had also been established in both the criminal and administrative cases against respondent that Allen's death was the result of the anesthesiologist's negligence and not his.

ISSUE: Whether or not respondent is liable for damages for Allen’s death

CIVIL LAW: 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 defendant's exclusive control, and that the accident was one (1) which ordinarily does not happen in the absence of negligence


Petitioners argued that the doctrine of res ipsa loquitur applies to the present case because Allen was healthy, fully conscious, coherent, and ambulant when he went to the hospital to correct a deformed arm. Yet, he did not survive the operation, which was not even an emergency surgery but a corrective one. They contend that respondent, being the lead surgeon, should be held liable for the negligence of the physicians and nurses working with him during the operation.

On the other hand, respondent posited that he should not be held solidarity liable with Dr. Jabagat as they were employed independently from each other and their services were divided as their best judgment dictated. He insisted that the captain-of-the-ship doctrine had long been abandoned especially in this age of specialization. An anesthesiologist and a surgeon are specialists in their own field and neither one (1) could dictate upon the other.

The trial court erred in applying the doctrine of res ipsa loquitur to pin liability on respondent for Allen's 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 defendant's exclusive control, and that the accident was one (1) which ordinarily does not happen in the absence of negligence.

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.

Here, we find that the CA correctly found that petitioners failed to present substantial evidence of any specific act of negligence on respondent's part or of the surrounding facts and circumstances which would lead to the reasonable inference that the untoward consequence was caused by respondent's negligence. In fact, 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.

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 court's 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.

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. Respondent's specialization not being in the field of anesthesiology, it would be dangerous for him to substitute his judgment for Dr. Jabagat's decisions in matters that fall appropriately within the scope of Dr. Jabagat's expertise.

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