Cases

SECOND DIVISION [G.R. No. 130547. October 3, 2000] LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, and minors LLOYD and KRISTINE, all surnamed REYES, represented by their mother, LEAH ALESNA REYES, petitioners , vs. SISTERS OF MERCY HOSPITAL, SISTER ROSE PALACIO, DR. MARVIE BLANES, and DR. MARLYN RICO, Respondents . DECISION MENDOZA, J.: This is a petition for review of the decision [1 of the Court of Appeals in CA-G.R. CV No. 36551 affirming the decision of the Regional Trial Court, Branch IX, Cebu City which dismissed a complaint for damages filed by petitioners against Respondents. The facts are as follows: Petitioner Leah Alesna Reyes is the wife of t he late Jorge Reyes. The other petitioners, namely, Rose Nahdja, Johnny, Lloyd, and Kristine, all surnamed Reyes, were their children. Five days before his death on January 8, 1987, Jorge had been suffering from a recurring fever with chills. After he fail ed to get relief from some home medication he was taking, which consisted of analgesic, antipyretic, and antibiotics, he decided to see the doctor. On January 8, 1987, he was taken to the Mercy Community Clinic by his wife. He was attended to by respondent Dr. Marlyn Rico, resident physician and admitting physician on duty, who gave Jorge a physical examination and took his medical history. She noted that at the time of his admission, Jorge was conscious, ambulatory, oriented, coherent, and with respiratory distress.[2 Typhoid fever was then prevalent in the locality, as the clinic had been getting from 15 to 20 cases of typhoid per month. [3 Suspecting that Jorge could be suffering from this disease, Dr. Rico ordered a Widal Test, a standard test for typhoid fever, to be performed on Jorge. Blood count, routine urinalysis, stool examination, and malarial smear were also made.[4After about an hour, the medical technician submitted the results of the test from which Dr. Rico concluded that Jorge was positive for typhoid fever. As her shift was only up to 5:00 p.m., Dr. Rico indorsed Jorge to respondent Dr. Marvie Blanes. Dr. Marvie Blanes attended to Jorge at around six in the evening. She also took Jorges history and gave him a physical examination. Like Dr. Rico, her impression was that Jorge had typhoid fever. Antibiotics being the accepted treatment for typhoid fever, she ordered that a compatibility test with the antibiotic chloromycetin be done on Jorge. Said test was administered by nurse Josephine Pagente who also gave the patient a dose of triglobe. As she did not observe any adverse reaction by the patient to chloromycetin, Dr. Blanes ordered the first five hundred milligrams of said ant ibiotic to be administered on Jorge at around 9:00 p.m. A second dose was administered on Jorge about three hours later just before midnight. At around 1:00 a.m. of January 9, 1987, Dr. Blanes was called as Jorges temperature rose to 41C. The patient also experienced chills and exhibited respiratory distress, nausea, vomiting, and convulsions. Dr. Blanes put him under oxygen, used a suction machine, and administered hydrocortisone, temporarily easing the patients convulsions. When he regained consciousness, the patient was asked by Dr. Blanes whether he had a previous heart ailment or had suffered from chest pains in the past. Jorge replied he did not. [5 After about 15 minutes, however, Jorge again started to vomit, showed restlessness, and his

convulsions returned. Dr. Blanes re -applied the emergency measures taken before and, in addition, valium was administered. Jorge, however, did not respond to the treatment and slipped into cyanosis, a bluish or purplish discoloration of the skin or mucous membrane due to deficient oxygenation of the blood. At around 2:00 a.m., Jorge died. He was forty years old. The cause of his death was Ventricular Arrythemia Se condary to Hyperpyrexia and typhoid fever. On June 3, 1987, petitioners filed before the Regional Trial Court of Cebu City a complaint[6for damages against respondents Sisters of Mercy, Sister Rose Palacio, Dr. Marvie Blanes, Dr. Marlyn Rico, and nurse Josephine Pagente. On September 24, 1987, petitioners amended their complaint to implead respondent Mercy Community Clinic as additional defendant and to drop the name of Josephine Pagente as defendant since she was no longer connected with respondent hospital. Their principal contention was that Jorge did not die of typhoid fever. [7 Instead, his death was due to the wrongful administration of chloromycetin. They contended that had respondent doctors exercised due care and diligence, they would not have recommended and rushed the performance of the Widal Test, hastily concluded that Jorge was suffering from typhoid fever, and administered chloromycetin without first conducting sufficient tests on the patients compatibility with said drug. They charged respondent clinic and its directress, Sister Rose Palacio, with negligence in failing to provide adequate facilities and in hiring negligent doctors and nurses. [8 Respondents denied the charges. Du ring the pre-trial conference, the parties agreed to limit the issues on the following: (1) whether the death of Jorge Reyes was due to or caused by the negligence, carelessness, imprudence, and lack of skill or foresight on the part of defendants; (2) whe ther respondent Mercy Community Clinic was negligent in the hiring of its employees; and (3) whether either party was entitled to damages. The case was then heard by the trial court during which, in addition to the testimonies of the parties, the testimonies of doctors as expert witnesses were presented. Petitioners offered the testimony of Dr. Apolinar Vacalares, Chief Pathologist at the Northern Mindanao Training Hospital, Cagayan de Oro City. On January 9, 1987, Dr. Vacalares performed an autopsy on Jorg e Reyes to determine the cause of his death. However, he did not open the skull to examine the brain. His findings [9 showed that the gastro -intestinal tract was normal and without any ulceration or enlargement of the nodules. Dr. Vacalares testified that Jorge did not die of typhoid fever. He also stated that he had not seen a patient die of typhoid fever within five days from the onset of the disease . For their part, respondents offered the testimonies of Dr. Peter Gotiong and Dr. Ibarra Panopio. Dr. Gotiong is a diplomate in internal medicine whose expertise is microbiology and infectious diseases. He is also a consultant at the Cebu City Medical Cen ter and an associate professor of medicine at the South Western University College of Medicine in Cebu City. He had treated over a thousand cases of typhoid patients. According to Dr. Gotiong, the patients history and positive Widal Test results ratio of 1 :320 would make him suspect that the patient had typhoid fever. As to Dr. Vacalares observation regarding the absence of ulceration in Jorges gastro -intestinal tract, Dr. Gotiong said that such hyperplasia in the intestines of a typhoid victim may be micro scopic. He noted that since the toxic effect of typhoid fever may lead to meningitis, Dr. Vacalares autopsy should have included an examination of the brain. [10 The other doctor presented was Dr. Ibarra Panopio , a member of the American Board of Pathology, examiner of the Philippine Board of Pathology from 1978 to 1991, fellow of the Philippine Society of Pathologist, associate professor of the Cebu Institute of Medicine, and chief pathologist of the Andres Sori ano Jr. Memorial Hospital in Toledo City. Dr. Panopio stated that although he was partial to the use of the culture test for its greater reliability in the

diagnosis of typhoid fever, the Widal Test may also be used. Like Dr. Gotiong, he agreed that the 1:320 ratio in Jorges case was already the maximum by which a conclusion of typhoid fever may be made. No additional information may be deduced from a higher dilution.[11 He said that Dr. Vacalares autopsy on Jorge was incomplete and thus inconclusive. On September 12, 1991, the trial court rendered its decision absolving respondents from the charges of negligence and dismissing petitioners action for damages. The trial court likewise dismissed respondents counterclaim, holding that, in seeking damages from respondents, petitioners were impelled by the honest belief that Jorges death was due to the latters negligence. Petitioners brought the matter to t he Court of Appeals. On July 31, 1997, the Court of Appeals affirmed the decision of the trial court. Hence this petition. Petitioners raise the following assignment of errors: I. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT THE DOCTRINE OF RES IPSA LOQUITUR IS NOT APPLICABLE IN THE INSTANT CASE. II. THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT MADE AN UNFOUNDED ASSUMPTION THAT THE LEVEL OF MEDICAL PRACTICE IS LOWER IN ILIGAN CITY. III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED FOR A LESSER STANDARD OF CARE AND DEGREE OF DILIGENCE FOR MEDICAL PRACTICE IN ILIGAN CITY WHEN IT APPRECIATE[D] NO DOCTORS NEGLIGENCE IN THE TREATMENT OF JORGE REYES. Petitioners action is for medical malpractice. This is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in l ike surrounding circumstances.[12 In order to successfully pursue such a claim, a patient must prove that the physician or surgeon either failed to do something which a reasonably prudent physician or surgeon would have done, or that he or she did something that a reasonably prudent physician or surgeon would not have done, and that the failure or action caused injury to the patient. [13 There are thus four elements involved in medical negligence cases, namely: duty, breach, injury, and proximate causation. In the present case, there is no doubt that a physician-patient relationship existed between respondent doctors and Jorge Reyes. Respondents were thus duty -bound to use at least the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstan ces. It is breach of this duty which constitutes actionable malpractice.[14 As to this aspect of medical malpractice, the determination of the reas onable level of care and the breach thereof, expert testimony is essential. Inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is u sually necessary to support the conclusion as to causation. [15
Res Ipsa Loquitur

There is a case when expert testimony may be dispensed with, and that is under the doctrine of res ipsa loquitur . As held in Ramos v. Court of Appeals :[16 Although generally, expert medical testimony is relied upo n in malpractice suits to prove that a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitor is availed by the plaintiff, the need for expert medical testimony is dispensed wi th because the injury itself provides the proof of negligence.The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non -expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort tores ipsa loquitor is allowed because there is no other way, under usual and ordinary conditions, by which the pat ient can obtain redress for injury suffered by him. Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth while a patients jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient was under the influence of anesthetic, during or following an operation for appendicitis, among others. [17 Petitioners asserted in the Cour t of Appeals that the doctrine of res ipsa loquitur applies to the present case because Jorge Reyes was merely experiencing fever and chills for five days and was fully conscious, coherent, and ambulant when he went to the hospital. Yet, he died after only ten hours from the time of his admission. This contention was rejected by the appellate court. Petitioners now contend that all requisites for the application of res ipsa loquitur were present, namely: (1) the accident was of a kind which does not ordinar ily occur unless someone is negligent; (2) the instrumentality or agency which caused the injury was under the exclusive control of the person in charge; and (3) the injury suffered must not have been due to any voluntary action or contribution of the pers on injured.[18 The contention is without merit. We agree with the ruling of the Court of Appeals. In the Ramos case, the question was whether a sur geon, an anesthesiologist, and a hospital should be made liable for the comatose condition of a patient scheduled for cholecystectomy.[19 In that case, the patient was given anesthesia prior to her operation. Noting that the patient was neurologically sound at the time of her operation, the Court

applied the doctrine of res ipsa loquitur as mental brain damage does not normally occur in a gallblader operation in the absence of negligence of the anesthesiologist. Taking judicial notice that anesthesia procedures had become so common that even an ordinary person could tell if it was administered properly, we allowed the testimony of a witness who was no t an expert. In this case, while it is true that the patient died just a few hours after professional medical assistance was rendered, there is really nothing unusual or extraordinary about his death. Prior to his admission, the patient already had recurri ng fevers and chills for five days unrelieved by the analgesic, antipyretic, and antibiotics given him by his wife. This shows that he had been suffering from a serious illness and professional medical help came too late for him. Respondents alleged failur e to observe due care was not immediately apparent to a layman so as to justify application of res ipsa loquitur . The question required expert opinion on the alleged breach by respondents of the standard of care required by the circumstances. Furthermore, on the issue of the correctness of her diagnosis, no presumption of negligence can be applied to Dr. Marlyn Rico. As held in Ramos: . . . . Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised . A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or a surgeon which involves the merits of a diagnosis or of a scientific treatment. The phys ician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result .[20
Specific Acts of Negligence

We turn to the question whether petitioners have established specific acts of negligence allegedly committed by res pondent doctors. Petitioners contend that: (1) Dr. Marlyn Rico hastily and erroneously relied upon the Widal test, diagnosed Jorges illness as typhoid fever, and immediately prescribed the administration of the antibiotic chloromycetin; [21 and (2) Dr. Marvie Blanes erred in ordering the administration of the second dose of 500 milligrams of chloromycetin barely three hours after the first was given. [22 Petitioners presented the testimony of Dr. Apolinar Vacalares, Chief Pathologist of the Northern Mindanao Training Hospital, Cagayan de Oro City , who performed an autopsy on the body of Jorge Reyes. Dr. Vacalares testified that, based on his findings during the autopsy, Jorge Reyes did not die of typhoid fever but of shock undetermined, which could be due to allergic reaction or chloromycetin over dose. We are not persuaded. First. While petitioners presented Dr. Apolinar Vacalares as an expert witness, we do not find him to be so as he is not a specialist on infectious diseases like typhoid fever. Furthermore, although he may have had extensive exp erience in performing autopsies, he admitted that he had yet to do one on the body of a typhoid victim at the time he conducted the postmortem on Jorge Reyes. It is also plain from his testimony that he has treated only about three cases of typhoid fever. Thus, he testified that: [23 ATTY. PASCUAL:

Q Why? Have you not testified earlier that you have never seen a patient who died of typhoid fever? A In autopsy. But, that was when I was a resident physician yet. Q But you have not performed an autopsy of a patient who died of typhoid fever ? A I have not seen one . Q And you testified that you have never seen a patient who died of typhoid fever within five days? A I have not seen one. Q How many typhoid fever cases had you seen while you were in the general practice of medicine? A In our case we had no widal test that time so we cannot consider that the typhoid fever is like this and like that. And the wida l test does not specify the time of the typhoid fever. Q The question is: how many typhoid fever cases had you seen in your general practice regardless of the cases now you practice ? A I had only seen three cases . Q And that was way back in 1964 ? A Way back after my training in UP . Q Clinically? A Way back before my training . He is thus not qualified to prove that Dr. Marlyn Rico erred in her diagnosis. Both lower courts were therefore correct in discarding his testimony, which is really inadmissible. In Ramos, the defendants presented the testimony of a pulmonologist to prove that brain injury was due to oxygen deprivation after the patient had bronchospasms [24 triggered by her allergic response to a drug, [25 and not due to faulty intubation by the anesthesiologist. As the issue was whethe r the intubation was properly performed by an anesthesiologist, we rejected the opinion of the pulmonologist on the ground that he was not: (1) an anesthesiologist who could enlighten the court about anesthesia practice, procedure, and their complications; nor (2) an allergologist who could properly advance expert opinion on allergic mediated processes; nor (3) a pharmacologist who could explain the pharmacologic and toxic effects of the drug allegedly responsible for the bronchospasms. Second. On the other hand, the two doctors presented by respondents clearly were experts on the subject. They vouched for the correctness of Dr. Marlyn Ricos diagnosis. Dr. Peter Gotiong, a diplomate whose specialization is infectious diseases and microbiology and an associate professor at the Southwestern University College of Medicine and the Gullas College of Medicine, testified that he has already treated over a thousand cases of typhoid fever.[26 According to him, when a case of typhoid fever is suspected, the Widal test is normally used,[27 and if the 1:320 results of the Widal test on Jorge Reyes had been

presented to him along with the patients history, his impression would also be that the patient was suffering from typhoid fever. [28 As to the treatment of the disease, he stated that chloromycetin was the drug of choice. [29 He also explained t hat despite the measures taken by respondent doctors and the intravenous administration of two doses of chloromycetin, complications of the disease could not be discounted. His testimony is as follows: [30 ATTY. PASCUAL: Q If with that count with the test of positive for 1 is to 320, what treatment if any would be given? A If those are the findings that would be presented to me, the first thing I woul d consider would be typhoid fever . Q And presently what are the treatments commonly used? A Drug of choice of chloramphenical. Q Doctor, if given the same patient and after you have administered chloramphenical about 3 1/2 hours later, the patient associat ed with chills, temperature - 41oC, what could possibly come to your mind? A Well, when it is change in the clinical finding, you have to think of complication . Q And what will you consider on the complication of typhoid? A One must first understand that typhoid fever is toximia. The problem is complications are caused by toxins produced by the bacteria . . . whether you have suffered complications to think of -- heart toxic myocardities; then you can consider a toxic menin gitis and other complications and perforations and bleeding in the ilium. Q Even that 40-year old married patient who received medication of chloromycetin of 500 milligrams intravenous, after the skin test, and received a second dose of chloromycetin of 500 miligrams, 3 hours later, the patient developed chills . . . rise in temperature to 41 oC, and then about 40 minutes later the temperature rose to 100 oF, cardiac rate of 150 per minute who appeared to be coherent, restless, nauseating, with seizures: what significance could you attach to these clinical changes? A I would then think of toxemia, which was toxic meningitis and probably a toxic meningitis because of the high cardiac rate. Q Even if the same patient who, after having given intramuscular valium, became conscious and coherent about 20 minutes later, have seizure and cyanosis and rolling of eyeballs and vomitting . . . and death: what significance would you attach to this development? A We are probably dealing with typhoid to meningitis. Q In such case, Doctor, what finding if any could you expect on the post -mortem examination? A No, the finding would be more on the meninges or covering of the brain. Q And in order to see those changes would it require opening the skull?

A Yes. As regards Dr. Vacalares finding during the autopsy that the deceaseds gastro -intestinal tract was normal, Dr. Rico explained that, while hyperplasia [31 in the payers patches or layers of the small intestines is present in typhoid fever, the same may not always be grossly visible and a microscope was needed to see the texture of the cells. [32 Respondents also presented the testimony of Dr. Ibarra T. Panopio who is a member of the Philippine and American Board of Pathology, an examiner of the Philippine Board of Pathology, and chief pathologist at the MetroCebu Com munity Hospital, Perpetual Succor Hospital, and the Andres Soriano Jr. Memorial Medical Center. He stated that, as a clinical pathologist, he recognized that the Widal test is used for typhoid patients, although he did not encourage its use because a singl e test would only give a presumption necessitating that the test be repeated, becoming more conclusive at the second and third weeks of the disease.[33 He corroborated Dr. Gotiongs testimony that the danger with typhoid fever is really the possible complications which could develop like perforation, hemorrhage, as well as liver and cerebral complications. [34 As regards the 1:320 results of the Widal test on Jorge Reyes, Dr. Panopio stated that no additional information could be obtained from a higher ratio. [35He also agreed with Dr. Gotiong that hyperplasia in the payers patches may be microscopic.[36 Indeed, the standard contemplated is not what is actually the average merit among all known practitioners from the best to the worst and from the most to the least experienced, but the reasonable average merit among the ordinarily good physicians.[37 Here, Dr. Marlyn Rico did not depart from the reasonable standard recommended by the experts as she in fact observed the due care required under the circumstances. Though the Widal test is not conclusive, it remains a standard diagnostic test for typhoid fever and, in the present case, greater accuracy through repeated testing was rendered unobtainable by the early death of the patient. The results of the Widal test and the patients history of fever with chills for five days, taken with the fact that typhoid fever was then prevalent as indicated by the fact that the clinic had been getting about 15 to 20 typhoid cases a month, were suf ficient to give upon any doctor of reasonable skill the impression that Jorge Reyes had typhoid fever. Dr. Rico was also justified in recommending the administration of the drug chloromycetin, the drug of choice for typhoid fever. The burden of proving tha t Jorge Reyes was suffering from any other illness rested with the petitioners. As they failed to present expert opinion on this, preponderant evidence to support their contention is clearly absent. Third. Petitioners contend that respondent Dr. Marvie Bla nes, who took over from Dr. Rico, was negligent in ordering the intravenous administration of two doses of 500 milligrams of chloromycetin at an interval of less than three hours. Petitioners claim that Jorge Reyes died of anaphylactic shock[38 or possibly from overdose as the second dose should have been administered five to six hours after the first, per instruction of Dr. Marlyn Rico. As held by t he Court of Appeals, however: That chloromycetin was likewise a proper prescription is best established by medical authority. Wilson, et. al., in Harrisons Principle of Internal Medicine , 12th ed. write that chlorampenicol (which is the generic of chloromycetin) is the drug of choice for typhoid fever and that no drug has yet proven better in promoting a favorable clinical response. Chlorampenicol (Chloromycetin) is specifically indicated for bacterial meningitis, typhoid fever, rickettsial infectio ns, bacteriodes infections, etc. (PIMS Annual, 1994, p. 211) The dosage likewise including the first administration of five hundred milligrams (500 mg.) at around nine oclock in the evening and the second dose at around 11:30 the same night was still within medically acceptable limits, sincethe recommended dose of chloromycetin is one

(1) gram every six (6) hours . (cf. Pediatric Drug Handbook, 1st Ed., Philippine Pediatric Society, Committee on Therapeutics and Toxicology, 1996). The intravenous route is likewise correct. (Mansser, ONick, Pharmacology and Therapeutics ) Even if the test was not administered by the physician -on-duty, the evidence introduced that it was Dra. Blane s who interpreted the results remain uncontroverted. ( Decision, pp. 16-17) Once more, this Court rejects any claim of professional negligence in this regard.
.... As regards anaphylactic shock, the usual way of guarding against it prior to the administration of a drug, is the skin test of which, however, it has been observed: Skin testing with haptenic drugs is generally not reliable. Certain drugs cause nonspecific histamine release, producing a weal -and-flare reaction in normal individuals. Immunologic activation of mast cells requires a polyvalent allergen, so a negative skin test to a univalent haptenic drug does not rule out anaphylactic sensitivity to that drug. (Terr, Anaphylaxis and Urticaria in Basic and Clinical Immunology, p. 349) What all this means legally is that even if the deceased suffered from an anaphylactic shock, this, of itself, would not yet establish the negligence of the appellee -physicians for all that the law requires of them is that they perform the standard tests and perform st andard procedures. The law cannot require them to predict every possible reaction to all drugs administered. The onus probandi was on the appellants to establish, before the trial court, that the appellee -physicians ignored standard medical procedure, pres cribed and administered medication with recklessness and exhibited an absence of the competence and skills expected of general practitioners similarly situated.[39 Fourth. Petitioners correctly observe that the medical profession is one which, like the business of a common carrier, is affected with public interest. Moreover, they assert that since the law imposes upon common carriers the duty of obse rving extraordinary diligence in the vigilance over the goods and for the safety of the passengers, [40 physicians and surgeons should have the same duty toward their patients. [41 They also contend that the Court of Appeals erred when it allegedly assumed that the level of medical practice is l ower in Iligan City, thereby reducing the standard of care and degree of diligence required from physicians and surgeons in Iligan City. The standard of extraordinary diligence is peculiar to common carriers. The Civil Code provides:

Art. 1733 . Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to the circumstances of each case. . . .
The practice of medicine is a profession engaged in only by qualified individuals. It is a right earned through years of education, training, and by first obtaining a license from the state through professional board examinations. Such license may, at any time and for cause, be revoked by the government. In addition to state regulation, the conduct of doctors is also strictly governed by the Hippocratic Oath, an ancient code of discipline and ethical rules which doctors have imposed upon themselves in r ecognition and acceptance of their great responsibility to society. Given these safeguards, there is no need to expressly require of doctors the observance of extraordinary diligence. As it is now, the practice of medicine is already conditioned upon the h ighest degree of diligence. And, as we have already noted, the standard contemplated for doctors is simply the reasonable average merit among ordinarily good physicians. That is reasonable diligence for doctors or, as the Court of

Appeals called it, the re asonable skill and competence . . . that a physician in the same or similar locality . . . should apply. WHEREFORE, the instant petition is DENIED and the decision of the Court of Appeals is AFFIRMED. SO ORDERED.

Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

Endnotes:
[1 Per Associate Justice Hilarion L. Aquino, with concurrence of Associate Justice (now Supreme Court Justice) Minerva P. Gonzaga -Reyes and Associate Justice Eubulo G. Verzola. [2 TSN, p. 18, Aug. 14, 1990. [3 TSN, p. 18, Oct. 19, 1990. [4 TSN, p. 19, Aug. 14, 1990. [5 TSN, pp. 42-43, Oct. 19, 1990. [6 Records, p. 1. [7 Amended complaint, p. 6; Records, p. 61. [8 Id. at 7. [9 Exh. A. [10 TSN, pp. 4-14, Dec. 17, 1990. [11 TSN, p. 18, March 8, 1991. [12 61 Am. Jur. 2d 337, 205 on Physicians, Surgeons, etc. [13 Garcia-Rueda v. Pascasio, 278 SCRA 769, 778 (1997). [14 Id. at 778-779. [15 Id. at 200, citing 61 Am. Jur. 2d, 510. [16 G.R. No. 124354, Dec. 29, 1999. [17 Id. (Citations omitted; emphasis added) [18 Petition, p. 9; Rollo , p. 12.

[19 The surgical excision of the gallbladder. [20 Ramos v. Court of Appeals, supra. [21 Petition, p. 10; Rollo , p. 13. [22 Id. at p. 17. [23 TSN, pp. 33-35, Sept. 20, 1989. [24 The constriction of air passages in the lungs by spasmodic contraction of the bronchial muscles. [25 Thiopental Sodium. [26 TSN, p.6, Dec. 17, 1990. [27 Id. [28 Id. at 9. [29 Id. [30 Id. at 9-12. [31 An abnormal or unusual increase in the component cells. [32 TSN, p. 12, Dec. 17, 1990. [33 TSN, p 37-40, March 8, 1991. [34 Id. at 27-30. [35 Id. at 18. [36 Id. at 30. [37 61 Am. Jur. 2d 338. [38 A state of shock resulting from injection or more rarel y ingestion of sensitizing antigen or hapten and due mainly to contraction of smooth muscle and increased capillary permeability caused by release in the tissues and circulation of histamine, heparin, and perhaps acetylcholin and serotonin. [39 CA Decision, pp. 5-7; Rollo , pp. 31-33. (Italics supplied) [40 THE CIVIL CODE, ART. 1733. [41 Petition, pp. 19 - 20; Rollo, pp. 22-23.

EN BANC G.R. No. 180046 : April 2, 2009 REVIEW CENTER ASSOCIATION OF THE PHILIPPINES, Petitioner , vs. EXECUTIVE SECRETARY EDUARDO ERMITA and COMMISSION ON HIGHER EDUCATION represented by its Chairman ROMULO L. NERI, Respondents. CPA REVIEW SCHOOL OF THE PHILIPPINES, INC. (CPAR), PROFESSIONAL REVIEW AND TRAINING CENTER, INC. (PRTC), ReSA REVIEW SCHOOL, INC. (ReSA), CRC -ACE REVIEW SCHOOL, INC. (CRC-ACE) Petitioners-Intervenors. PIMSAT COLLEGES, Respondent-Intervenor. DECISION CARPIO, J.: SEPARATE CONCURRING OPINION : BRION, J.:

The Case Before the Court is a petition for prohibition and mandamus assailing Executive Order No. 566 (EO 566) 1 and Commission on Higher Education (CHED) Memorandum Order No . 30, series of 2007 (RIRR). 2 The Antecedent Facts On 11 and 12 June 2006, the Professional Regulation Commission (PRC) conducted the Nursing Board Examinations nationwide. In June 2006, licensure applicants wrote the PRC to report that handwritten copies of two sets of examinations were circulated during the examination period among the examinees reviewing at the R.A. Gapuz Review Center and Inress Review Center. George Cordero, Inress Review Center's President, was then the incumbent President of the Philippine Nurses Association. The examinees were provided with a list of 500 questions and answers in two of the examinations' five subjects, particularly Tests III (Psychiatric Nursing) and V (Medical -Surgical Nursing). The PRC later admitted the leakage and traced it to two Board of Nursing members. 3 On 19 June 2006, the PRC released the results of the Nursing Board Examinations. On 18 August 2006, the Court of Appeals restrained the PRC from proceeding with the oath -taking of the successful examinees set on 22 August 2006. Consequently, President Gloria Ma capagal-Arroyo (President Arroyo) replaced all the members of the PRC's Board of Nursing. President Arroyo also ordered the examinees to re-take the Nursing Board Examinations. On 8 September 2006, President Arroyo issued EO 566 which authorized the CHED t o supervise the establishment and operation of all review centers and similar entities in the Philippines. On 3 November 2006, the CHED, through its then Chairman Carlito S. Puno (Chairman Puno), approved CHED Memorandum Order No. 49, series of 2006 (IRR). 4

In a letter dated 24 November 2006, 5 the Review Center Association of the Philippines (petitioner), an organization of independent review centers, asked the CHED to "amend, if not withdraw" the IRR arguing, among other things, that giving permits to operate a review center to Higher Education Institutio ns (HEIs) or consortia of HEIs and professional organizations will effectively abolish independent review centers. In a letter dated 3 January 2007, 6 Chairman Puno wrote petitioner, through its President Jose Antonio Fudolig (Fudolig), that to suspend the implementation of the IRR would be inconsistent with the mandate of EO 566. Chairman Puno wrote that the IRR was presented to the stakeholders during a c onsultation process prior to its finalization and publication on 13 November 2006. Chairman Puno also wrote that petitioner's comments and suggestions would be considered in the event of revisions to the IRR. In view of petitioner's continuing request to s uspend and re-evaluate the IRR, Chairman Puno, in a letter dated 9 February 2007, 7 invited petitioner's representatives to a dialogue on 14 March 2007. In accordance with what was agreed upon during the dialogue, petitioner submitted to the CHED its position paper on the IRR. Petitioner also requested the CHED to confirm in writing Chairman Puno's statements during the dialogue, particularly on lowering of the registration fee from P400,000 toP20,000 and the requirement for reviewers to have five years' teaching experience instead of five years' administrative experience. Petitioner likewise requested for a categorical answer to their request for the suspen sion of the IRR. The CHED did not reply to the letter. On 7 May 2007, the CHED approved the RIRR. On 22 August 2007, petitioner filed before the CHED a Petition to Clarify/Amend Revised Implementing Rules and Regulations 8 praying for a ruling: 1. Amending the RIRR by excluding independent review centers from the coverage of the CHED; 2. Clarifying the meaning of the requirement for existing review centers to tie-up or be integrated with HEIs, consortium or HEIs and PRC -recognized professional associations with recognized programs, or in the alternative, to convert into schools; and 3. Revising the rules to make it conform with Republic Act No. 7722 (RA 7722)9 limiting the CHED's coverage to public and private institutions of higher education as well as degree -granting programs in post -secondary educational institutions. On 8 October 2007, the CHED issued Resolution No. 718 -200710 referring petitioner's request to exclude independent review centers from CH ED's supervision and regulation to the Office of the President as the matter requires the amendment of EO 566. In a letter dated 17 October 2007, 11 then CHED Chairman Romulo L. Neri (Chairman Neri) wrote petitioner regarding its petition to be excluded from the coverage of the CHED in the RIRR. Chairman Neri stated: While it may be true that regulation of review centers is not one of the mandates of CHED under Republic Act 7722, however, on September 8, 2006, Her Excellency, President Gloria Macapagal-Arroyo, issued Executive Order No. 566 directing the Commission on Higher Education to regulate the establishment and operation of review centers and similar entities in the entire country.

With the issuance of the aforesaid Executive Order, the CHED now is the agency that is mandated to regulate the establishment and operation of all review centers as provided for under Section 4 of the Executive Order which provides that "No review center or similar entities shall be established and/or operate review classes without the favorable expressed indorsement of the CHED and without the issuance of the necessary permits or authorizations to conduct review classes. x x x" To exclude the operation of independent review centers from the coverage of CHED would clearly contradict the intention of the said Executive Order No. 566. Considering that the requests requires the amendment of Executive Order No. 566, the Commission, during its 305th Commission Meeting, resolved that the said request be directly referred to the Office of the President for appropriate action. As to the request to clarify what is meant by tie-up/be integrated with an HEI, as required under the Revised Implementing Rules and Regulations, tie -up/be integrated simply means, to be in partner with an HEI. 12(Boldfacing and underscoring in the original) On 26 October 2007, petitioner filed a petition for Prohibition and Mandamus before this Court praying for the annulment of the RIRR, the declaration of EO 566 as invalid and unconstitutional, and the prohibition against CHED from implementing the RIRR. Dr. Freddie T. Bernal, Director III, Officer -In-Charge, Office of the Director IV of CHED, sent a letter 13 to the President of Northcap Review Center, Inc., a member of petitioner, that it had until 27 November 2007 to comply with the RIRR. On 15 February 2008, 14 PIMSAT Colleges (respondent -intervenor) filed a Motion For Leave to Intervene and To Admit Comment -in-Intervention and a Comment -in-Intervention praying for the dismissal of the petition. Respondent -intervenor alleges that the Office of the President and the CHED did not commit any act of grave abuse of discretion in issuing EO 566 and the RIRR. Respondent -intervenor alleges that the requirements of the RIRR are reasonable, doable, and are not designed to deprive existing review centers of their review business. The Court granted the Motion for Leave to Intervene and to Admit Comment -inIntervention in its 11 March 2008 Resolution. 15 On 23 April 2008, a Motion for Leave of Court for Intervention In S upport of the Petition and a Petition In Intervention were filed by CPA Review School of the Philippines, Inc. (CPAR), Professional Review and Training Center, Inc. (PRTC), ReSA Review School, Inc. (ReSA), CRC-ACE Review School, Inc. (CRC-ACE), all indepen dent CPA review centers operating in Manila (collectively, petitioners -intervenors). Petitioners -intervenors pray for the declaration of EO 566 and the RIRR as invalid on the ground that both constitute an unconstitutional exercise of legislative power. Th e Court granted the intervention in its 29 April 2008 Resolution. 16 On 21 May 2008, the CHED issued CHED Memorandum Order No. 21, Series of 2008 (CMO 21, s. 2008) 17 extending the deadline for six months from 27 May 2008 for all existing independent review centers to tie -up or be integrated with HEIs in accordance with the RIRR. In its 25 November 2008 Resolution, this Court resolved to require the parties to observe the status quo prevailing before the issuance of EO 566, the RIRR, and CMO 21, s. 2008. The Assailed Executive Order and the RIRR

Executive Order No. 566 states in full: EXECUTIVE ORDER NO. 566 DIRECTING THE COMMISSION ON HIGHER EDUCATION TO REGULATE THE ESTABLISHMENT AND OPERATION OF REVIEW CENTERS AND SIMILAR ENTITIES WHEREAS, the State is mandated to protect the right of all citizens to qua lity education at all levels and shall take appropriate steps to make education accessible to all, pursuant to Section 1, Article XIV of the 1987 Constitution; WHEREAS, the State has the obligation to ensure and promote quality education through the proper supervision and regulation of the licensure examinations given through the various Boards of Examiners under the Professional Regulation Commission; WHEREAS, the lack of regulatory framework for the establishment and operation of review centers and similar entities, as shown in recent events, have adverse consequences and affect public interest and welfare; WHEREAS, the overriding necessity to protect the public against substandard review centers and unethical practices committed by some review centers dem and that a regulatory framework for the establishment and operation of review centers and similar entities be immediately instituted; WHEREAS, Republic Act No. 7722, otherwise known as the Higher Education Act of 1994, created the Commission on Higher Education, which is best equipped to carry out the provisions pertaining to the regulation of the establishment and operation of review ce nters and similar entities. NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, the President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby order: SECTION 1. Establishment of a System of Regulation for Review Centers and Similar Entities. The Commission on Higher Education (CHED), in consultation with other concerned government agencies, is hereby directed to formulate a framework for the regulation of review centers and similar entities, including but not limited to the development and institutionalization of policies, standards, guidelines for the establishment, operation and accreditation of review centers and similar entities; maintenance of a mechanism to monitor the adequacy, transparency and propriety of their oper ations; and reporting mechanisms to review performance and ethical practice. SEC. 2. Coordination and Support. The Professional Regulation Commission (PRC), Technical Skills Development Authority (TESDA), Securities and Exchange Commission (SEC), the various Boards of Examiners under the PRC, as well as other concerned non -government organizations life professional societies, and various government agencies, such as the Department of Justice (DOJ), National Bureau of Investigation (NBI), Office of the Solicitor General (OSG), and others that may be tapped later, shall provide the necessary assistance and technical support to the CHED in the successful operationalization of the System of Regulation envisioned by this Executive Order.

SEC. 3. Permanent Office and Staff. To ensure the effective implementation of the System of Regulation, the CHED shall organize a permanent office under its supervision to be headed by an official with the rank of Director and to be composed of highly competent individuals with ex pertise in educational assessment, evaluation and testing; policies and standards development, monitoring, legal and enforcement; and statistics as well as curriculum and instructional materials development. The CHED shall submit the staffing pattern and budgetary requirements to the Department of Budget and Management (DBM) for approval. SEC. 4. Indorsement Requirement. No review center or similar entities shall be established and/or operate review classes without the favorable expressed indorsement of the CHED and without the issuance of the necessary permits or authorizations to conduct review classes. After due consultation with the stakeholders, the concerned review centers and similar entities shall be given a reasonable period, at the discretion of th e CHED, to comply with the policies and standards, within a period not exceeding three (3) years, after due publication of this Executive Order. The CHED shall see to it that the System of Regulation including the implementing mechanisms, policies, guideli nes and other necessary procedures and documentation for the effective implementation of the System, are completed within sixty days (60) upon effectivity of this Executive Order. SEC. 5. Funding. The initial amount necessary for the development and implementation of the System of Regulation shall be sourced from the CHED Higher Education Development Fund (HEDF), subject to the usual government accounting and auditing practices, or from any applicable funding source identified by the DBM. For the succeeding fiscal year, such amounts as may be necessary for the budgetary requirement of implementing the System of Regulation and the provisions of this Executive Order shall be provided for in the annual General Appropriations Act in the budget of the CHED. Whenever necessary, the CHED may tap its Development Funds as supplemental source of funding for the effective implementation of the regulatory system. In this connection, the CHED is hereby authorized to create special accounts in the HEDF exclusively for the purpose of implementing the provisions of this Executive Order. SEC. 6. Review and Reporting. The CHED shall provide for the periodic review performance of review centers and similar entities and shall make a report to the Office of the President of the re sults of such review, evaluation and monitoring. SEC. 7. Separability. Any portion or provision of this Executive Order that may be declared unconstitutional shall not have the effect of nullifying other provisions hereof, as long as such remaining provisi ons can still subsist and be given effect in their entirely. SEC. 8. Repeal. All rules and regulations, other issuances or parts thereof, which are inconsistent with this Executive Order, are hereby repealed or modified accordingly. SEC. 9. Effectivity. This Executive Order shall take effect immediately upon its publication in a national newspaper of general circulation.

DONE in the City of Manila, this 8th day of September, in the year of Our Lord, Two Thousand and Six. (Sgd.) Gloria Macapagal -Arroyo By the President: (Sgd.) Executive Secretary Eduardo R. Ermita

The pertinent provisions of the RIRR affecting independent review centers are as follows: Rule VII IMPLEMENTING GUIDELINES AND PROCEDURES Section 1. Authority to Establish and Operate - Only CHED recognized, accredited and reputable HEIs may be authorized to establish and operate review center/course by the CHED upon full compliance with the conditions and requirements provided herein and in other pertinent laws, rules and regulations. In addition, a consortium or consortia of qualified schools and/or entities may establish and operate review centers or conduct review classes upon compliance with the provisions of these Rules. Rule TRANSITORY PROVISIONS XIV

Section 1. Review centers that are existing upon the approval of Executive Order No. 566 shall be given a grace period of up to one (1) year, to tie -up/be integrated with existing HEIs[,] consortium of HEIs and PRC recognized Professional Associations with recognized programs under the conditions se t forth in this Order and upon mutually acceptable covenants by the contracting parties. In the alternative, they may convert as a school and apply for the course covered by the review subject to rules and regulations of the CHED and the SEC with respect t o the establishment of schools. In the meantime, no permit shall be issued if there is non -compliance with these conditions or non-compliance with the requirements set forth in these rules. Section 2. Only after full compliance with the requirements shall a Permit be given by the CHED to review centers contemplated under this Rule. Section 3. Failure of existing review centers to fully comply with the above shall bar them from existing as review centers and they shall be deemed as operating illegally as suc h. In addition, appropriate administrative and legal proceedings shall be commence[d] against the erring entities that continue to operate and appropriate sanctions shall be imposed after due process. The Issues The issues raised in this case are the following: 1. Whether EO 566 is an unconstitutional exercise by the Executive of legislative power as it expands the CHED's jurisdiction; and

2. Whether the RIRR is an invalid exercise of the Executive's rule -making power. The Ruling of this Court The petition has merit.

Violation of Judicial Hierarchy
The Office of the Solicitor General (OSG) prays for the dismissal of the petition. Among other grounds, the OSG alleges that petitioner violated the rule on judicial hierarchy in filing the petition directly with this Court. This Court's original jurisdiction to issue a writ of certiorari , prohibition, mandamus, quo warranto, habeas corpus, and injunction is not exclusive but is concurrent with the Regional Trial Courts and the Court of Appeals in certain cases.18 The Court has explained: This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an abso lute, unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and also serves as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard of that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial C ourt, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is [an] established policy. It is a policy necessary to prevent inordinate demands upon the Court's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over -crowding of the Court's docket. 19 The Court has further explained: The propensity of litigants and lawyers to disregard the hierarchy of courts in our judicia l system by seeking relief directly from this Court must be put to a halt for two reasons: (1) it would be an imposition upon the precious time of this Court; and (2) it would cause an inevitable and resultant delay, intended or otherwise, in the adjudicat ion of cases, which in some instances had to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues because this Court is not a trier of facts. 20 The rule, however, is not absolute, as when exceptional and compelling circumstances justify the exercise of this Court of its primary jurisdiction. In this case, petitioner allege s that EO 566 expands the coverage of RA 7722 and in doing so, the Executive Department usurps the legislative powers of Congress. The issue in this case is not only the validity of the RIRR. Otherwise, the proper remedy of petitioner and petitioners -intervenors would have been an ordinary action for the nullification of the RIRR before the Regional Trial Court. 21 The alleged violation of the Constitution by the Executive Department when it issued EO 566 justifies the exercise by the Court of its primary jurisdiction over the case. The Court is not precluded from brushing aside technicalities and taking cognizance of an action due to its importance to the public and in keeping with its duty to determine whether the other branches of the Government have kept themselves within the limits of the Constitution. 22

OSG's Technical Objections

The OSG alleges that the petition should be dismissed because the verification and certification of non -forum shopping were signed only by Fudolig without the express authority of any board resolution or power of attorney. Ho wever, the records show that Fudolig was authorized under Board Resolution No. 3, series of 2007 23 to file a petition before this Court on behalf of pet itioner and to execute any and all documents necessary to implement the resolution. The OSG also alleges that the petition should be dismissed for violation of the 2004 Rules on Notarial Practice because Fudolig only presented his community tax certificate as competent proof of identity before the notary public. The Court would have required Fudolig to comply with the 2004 Rules on Notarial Practice except that Fudolig already presented his Philippine passport before the notary public when petitioner submit ted its reply to the OSG's comment.

EO 566 Expands the Coverage of RA 7722
The OSG alleges that Section 3 of RA 7722 should be read in conjunction with Section 8, enumerating the CHED's powers and functions. In particular, the OSG alleges that the CHED has the power under paragraphs (e) and (n) of Section 8 to: (e) monitor and evaluate the performance of programs and institutions of higher learning for appropriate incentives as well as the imposition of sanctions such as, but not limited to, diminution or withdrawal of subsidy, recommendation on the downgrading or withdrawal of accreditation, program termination or school closure; (n) promulgate such rules and regulations and exercise such other powers and functions as may be necessary to carry out effective ly the purpose and objectives of this Act[.] The OSG justifies its stand by claiming that the term "programs x x x of higher learning" is broad enough to include programs offered by review centers. We do not agree. Section 3 of RA 7722 provides: Sec. 3. Creation of Commission on Higher Education. - In pursuance of the abovementioned policies, the Commission on Higher Education is hereby created, hereinafter referred to as the Commission. The Commission shall be independent and separate from the Department of Education, Culture and Sports (DECS), and attached to the Office of the President for administrative purposes only. Its coverage shall be both public and private institutions of higher education as well as degree-granting programs in all post -secondary educational institutions, public and private. (Emphasis supplied ) Neither RA 7722 nor CHED Order No. 3, series of 1994 (Implementing Rules of RA 7722) 24 defines an institution of higher learning or a program of higher learning. "Higher education," however, is defined as "education beyond the secondary level" 25 or "education provided by a college or university." 26 Under the "plain meaning" or verba legis rule in statutory construction, if the statute i s clear, plain, and free from ambiguity, it must be given its literal meaning and applied without interpretation. 27 The legislature is presumed to know the meaning of the words, to have used words advisedly, and to have

expressed its intent by use of such words as are found in the statute. 28 Hence, the term "higher education" should be taken in its ordinary sense and should be read and interpreted together with the phrase "degree -granting programs in all post -secondary educational institutions, public and private." Higher education should be taken to mea n tertiary education or that which grants a degree after its completion. Further, Articles 6 and 7 of the Implementing Rules provide: Article 6. Scope of Application. - The coverage of the Commission shall be both public and private institutions of higher education as well as degree granting programs in all postsecondary educational institutions, public and private. These Rules shall apply to all public and private educational institutions offering tertiary degree programs . The establishment, conversion, o r elevation of degree-granting institutions shall be within the responsibility of the Commission. Article 7. Jurisdiction. - Jurisdiction over institutions of higher learning primarily offering tertiary degree programs shall belong to the Commission. ( Emphasis supplied ) Clearly, HEIs refer to degree -granting institutions, or those offering tertiary degree or post secondary programs. In fact, Republic Act No. 8292 or the Higher Education Modernization Act of 1997 covers chartered state universities and colleg es. State universities and colleges primarily offer degree courses and programs. Sections 1 and 8, Rule IV of the RIRR define a review center and similar entities as follows: Section 1. REVIEW CENTER. - refers to a center operated and owned by a duly autho rized entity pursuant to these Rules intending to offer to the public and/or to specialized groups whether for a fee or for free a program or course of study that is intended to refresh and enhance the knowledge and competencies and skills of reviewees obt ained in the formal school setting in preparation for the licensure examinations given by the Professional Regulations Commission (PRC). The term review center as understood in these rules shall also embrace the operation or conduct of review classes or co urses provided by individuals whether for a fee or not in preparation for the licensure examinations given by the Professional Regulations Commission. xxx Section 8. SIMILAR ENTITIES - the term refer to other review centers providing review or tutorial services in areas not covered by licensure examinations given by the Professional Regulations Commission including but not limited to college entrance examinations, Civil Service examinations, tutorial services in specific fields like English, Mathematics a nd the like. The same Rule defines a review course as follows: Section 3. REVIEW COURSE - refers to the set of non -degree instructional program of study and/or instructional materials/module, offered by a school with a recognized course/program requiring licensure examination, that are intended merely to refresh and enhance the knowledge or competencies and skills of reviewees.

The scopes of EO 566 and the RIRR clearly expand the CHED's coverage under RA 7722. The CHED's coverage under RA 7722 is limited to public and private institutions of higher education and degree -granting programs in all public and private post -secondary educational institutions . EO 566 directed the CHED to formulate a framework for the regulation of review centers and similar entities. The definition of a review center under EO 566 shows that it refers to one which offers "a program or course of study that is intended to refresh and enhance the knowledge or competencies and skills of reviewees obtained in the formal school setting in preparation for the licensure examinations " given by the PRC. It also covers the operation or conduct of review classes or courses provided by individuals whether for a fee or not in preparation for the licensure examinations given by the PRC. A review center is not an institution of higher learning as contemplated by RA 7722. I t does not offer a degree -granting program that would put it under the jurisdiction of the CHED. A review course is only intended to "refresh and enhance the knowledge or competencies and skills of reviewees." A reviewee is not even required to enroll in a review center or to take a review course prior to taking an examination given by the PRC. Even if a reviewee enrolls in a review center, attendance in a review course is not mandatory. The reviewee is not required to attend each review class. He is not re quired to take or pass an examination, and neither is he given a grade. He is also not required to submit any thesis or dissertation. Thus, programs given by review centers could not be considered "programs x x x of higher learning" that would put them und er the jurisdiction of the CHED. Further, the "similar entities" in EO 566 cover centers providing "review or tutorial services" in areas not covered by licensure examinations given by the PRC, which include, although not limited to, college entrance exami nations, Civil Services examinations, and tutorial services. These review and tutorial services hardly qualify as programs of higher learning.

Usurpation of Legislative Power
The OSG argues that President Arroyo was merely exercising her executive power to ensure that the laws are faithfully executed. The OSG further argues that President Arroyo was exercising her residual powers under Executive Order No. 292 (EO 292), 29 particularly Section 20, Title I of Book III, thus: Section 20. Residual Powers. - Unless Congress provides otherwise, the President shall exercise such other powers and functions vested in the President which are provided for under the la ws and which are not specifically enumerated above, or which are not delegated by the President in accordance with law. ( Emphasis supplied ) Section 20, Title I of Book III of EO 292 speaks of other powers vested in the President under the law. 30 The exercise of the President's residual powers under this provision requires legislation, 31 as the provision clearly states that the exercise of the President's other powers and functions has to be " provided for under the law ." There is no law granting the President the power to amend the functions of the CHED. The President may not amend RA 7722 through an Executive Order without a prior legislation granting her such power. The President has no inherent or delegated legislative power to amend the functions of the CHED under RA 7722. Legislative power is the auth ority to make laws and to alter or repeal them, 32 and this power is vested with the Congress under Section 1, Article VI of the 1987 Constitution which states:

Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. In Ople v. Torres,33 the Court declared void, as a usurpation of legislative power, Administrative Order No. 308 (AO 308) issued by the President to create a n ational identification system. AO 308 mandates the adoption of a national identification system even in the absence of an enabling legislation. The Court distinguished between Legislative and Executive powers, as follows: The line that delineates Legislati ve and Executive power is not indistinct. Legislative power is "the authority, under the Constitution, to make laws, and to alter and repeal them." The Constitution, as the will of the people in their original, sovereign and unlimited capacity, has vested this power in the Congress of the Philippines. The grant of legislative power to Congress is broad, general and comprehensive. The legislative body possesses plenary power for all purposes of civil government. Any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it elsewhere. In fine, except as limited by the Constitution, either expressly or impliedly, legislative power embraces all subjects and extends to matters of general co ncern or common interest. While Congress is vested with the power to enact laws, the President executes the law s. The executive power is vested in the President. It is generally defined as the power to enforce and administer laws. It is the power of carryi ng the laws into practical operation and enforcing their due observance. As head of the Executive Department, the President is the Chief Executive. He represents the government as a whole and sees to it that all laws are enforced by the officials and employees of his department. He has control over the executive department, bureaus and offices. This means that he has the authority to assume directly the functions of the executive department, bureau and office, or interfere with the discretion of its officia ls. Corollary to the power of control, the President also has the duty of supervising the enforcement of laws for the maintenance of general peace and public order. Thus, he is granted administrative power over bureaus and offices under his control to enab le him to discharge his duties effectively.

Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. It enables the President to fix a uniform standard of administrative efficien cy and check the official conduct of his agents. To this end, he can issue administrative orders, rules and regulations.
x x x. An administrative order is: "Sec. 3. Administrative Orders. - Acts of the President which relate to particular aspects of governmental operation in pursuance of his duties as administrative head shall be promulgated in administrative orders." An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of governme nt. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. x x x.34 Just like AO 308 in Ople v. Torres , EO 566 in this case is not supported by any enabling law. The Court further stated in Ople:

x x x. As well stated by Fisher: " x x x Many regulations however, bear directly on the public. It is here that administrative legisl ation must be restricted in its scope and application. Regulations are not supposed to be a substitute for the general policy -making that Congress enacts in the form of a public law. Although administrative regulations are entitled to respect, the authority to prescribe rules and regulations is not an independent source of power to make laws. "35 Since EO 566 is an invalid exercise of legislative power, th e RIRR is also an invalid exercise of the CHED's quasi -legislative power. Administrative agencies exercise their quasi -legislative or rule-making power through the promulgation of rules and regulations. 36 The CHED may only exercise its rule -making power within the confines of its jurisdiction under RA 7722. The RIRR covers review centers and similar entities which are neither institutions of higher educat ion nor institutions offering degree-granting programs.

Exercise of Police Power
Police power to prescribe regulations to promote the health, morals, education, good order or safety, and the general welfare of the people flows from the recognition that salus populi est suprema lex - the welfare of the people is the supreme law. 37Police power primarily rests with the legislature although it may be exerc ised by the President and administrative boards by virtue of a valid delegation. 38 Here, no delegation of police power exists under RA 7722 authorizing the President to regulate the operations of non -degree granting review centers.

Republic Act No. 8981 is Not the Appropriate Law
It is argued that the President of the Philippines has adequate powers under the law to regulate review centers and this could have been done under an existing validly delegated authority, and that the appropriate law is Republic Act No. 8981 39(RA 8981). Under Section 5 of RA 8981, the PRC is mandated to "establish and maintain a high standard of admission to the practice of all professions and at all times ensure and safeguard the integrity of all licensure examinations." Section 7 of RA 8981 further states that the PRC shall ad opt "measures to preserve the integrity and inviolability of licensure examinations." There is no doubt that a principal mandate of the PRC is to preserve the integrity of licensure examinations. The PRC has the power to adopt measures to preserve the inte grity and inviolability of licensure examinations. However, this power should properly be interpreted to refer to the conduct of the examinations. The enumeration of PRC's powers under Section 7(e) includes among others, the fixing of dates and places of t he examinations and the appointment of supervisors and watchers. The power to preserve the integrity and inviolability of licensure examinations should be read together with these functions. These powers of the PRC have nothing to do at all with the regulat ion of review centers . The PRC has the power to investigate any of the members of the Professional Regulatory Boards (PRB) for "commission of any irregularities in the licensure examinations which taint or impugn the integrity and authenticity of the resul ts of the said examinations." 40 This is an administrative power which the PRC exercises over members of the PRB. However, this power has nothing to do w ith the regulation of review centers. The PRC has the power to bar PRB members from conducting review classes in review centers. However, to interpret this power to extend to the power to regulate review centers is clearly an unwarranted interpretation of RA 8981. The PRC may prohibit the members of the PRB from conducting review classes at review centers because the PRC has administrative supervision over the

members of the PRB. However, such power does not extend to the regulation of review centers. Section 7(y) of RA 8981 giving the PRC the power to perform "such other functions and duties as may be necessary to carry out the provisions" of RA 8981 does not extend to the regulation of review centers. There is absolutely nothing in RA 8981 that mentions re gulation by the PRC of review centers . The Court cannot likewise interpret the fact that RA 8981 penalizes "any person who manipulates or rigs licensure examination results, secretly informs or makes known licensure examination questions prior to the condu ct of the examination or tampers with the grades in the professional licensure examinations" 41 as a grant of power to regulate review centers. The provision simply provides for the penalties for manipulation and other corrupt practices in the conduct of the professional examinations. The assailed EO 566 seeks to regulate not only review centers but also "similar entities." The questioned CHED RIRR defines "similar entities" as referring to "other review centers providing review or tutorial services in areas not covered by licensure examinations given by the PRC including but not limited to college entrance examinations, Civil Service examinations, tutorial services in specific fields like English, Mathematics and the like." 42 The PRC has no mandate to supervise review centers that give courses or lectures intended to prepare examinees for licensure examinations given by the PRC. It is like the Court regulating bar review centers just because the Court conducts the bar examinations. Similarly, the PRC has no mandate to regulate similar entities whose reviewees will not even take any licensure examination given by the PRC . WHEREFORE, we GRANT the petition and the petition -in-intervention. We DECLARE Executive Order No. 566 and Commission on Higher Education Memorandum Order No. 30, series of 2007 VOID for being unconstitutional. SO ORDERED. ANTONIO Associate Justice WE CONCUR: REYNATO Chief Justice LEONARDO A. Associate Justice QUISUMBING S. PUNO T. CARPIO

CONSUELO YNARES-SANTIAGO Associate Justice RENATO C. Associate Justice DANTE O. Associate Justice PRESBITERO J. Associate Justice CORONA

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice CONCHITA CARPIO Associate Justice MINITA V. Associate Justice MORALES

TINGA

CHICO-NAZARIO

VELASCO,

JR.

ANTONIO EDUARDO B. NACHURA Associate Justice TERESITA J. CASTRO Associate Justice CERTIFICATION LEONARDO-DE

ARTURO Associate Justice

D.

BRION

DIOSDADO M. Associate Justice

PERALTA

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. REYNATO Chief Justice S. PUNO

cralaw Endnotes:

Rollo, pp. 35-37. Directing the Commission on Higher Education to Regulate the Establishment and Operation of Review Centers and Similar Entities. Signed on 8 September 2006.
Id. at 38-55. Revised Implementing Rules and Regulations Governing The Establishment and Operation of Review Centers And Similar Entities In The Philippines Pursuant To Executive Order No. 566. Approved on 7 May 2007. Virginia Madeja and Anesia Dionisio were eventually charged with violation of Republic Act No. 8981 (An Act Modernizing the Professional Regulation Commission) and Republic Act No. 3019 (The Anti -Graft and Corrupt Practices Act).
3 2

1

Rollo, pp. 105-121. CMO 49, s. 2006 is otherwise known as the Implementing Rules and Regulations Governing the Establishment and Operation of Review Centers and Similar Entities in the Philippines.
5

4

Id. at 75-77. Id. at 79. Id. at 80. Id. at 58-69.

6

7

8

An Act Creating the Commission on Higher Education, Appropriating Funds Therefor and For Other Purposes.
10

9

Rollo, p. 180.

11

Id. at 181-182. Id. at 181-182. Id. at 92. Not 14 February 2008 as stated in the 11 March 2008 Resolution.

12

13

14

15

Rollo, p. 184.
Id. at 230. Id. at 257.

16

17

18

LPBS Commercial, Inc. v. Amila , G.R. No. 147443, 11 February 2008, 544 SCRA 199.
19

Liga ng mga Barangay National v. City Mayor of Manila, 465 Phil. 529, 542 -543 (2004), citing People v. Cuaresma , G.R. No. 67787, 18 April 1989, 172 SCRA 415.

LPBS Commercial, Inc. v. Amila , supra note 18 at 205, citing Santiago v. Vasquez, G.R. Nos. 99289-90, 27 January 1993, 217 SCRA 633. Holy Spirit Homeowners Association, Inc. v. Defensor , G.R. No. 163980, 3 August 2006, 497 SCRA 581. Executive Secretary v. Southwing Heavy Industries, Inc., G.R. No. 164171, 20 February 2006, 482 SCRA 673.
23 22 21

20

Rollo, p. 104.
Rules and Regulations Implementing RA 7722, as amended. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, 1986 ed., p. 1068. Id.

24

25

26

27

Republic v. Lacap , G.R. No. 158253, 2 March 2007, 517 SCRA 255.
Id. The Administrative Code of 1987. See Larin v. Executive Secretary, 345 Phil. 962 ( 1997).

28

29

30

31

See Kilusang Mayo Uno v. Director -General, National Economic Development Authority , G.R. No. 167798, 19 April 2006, 487 SCRA 623.
32

Id. 354 Phil. 948 (1998).

33

34

Id. at 966-968. Id. at 970.

35

Metropolitan Bank and Trust Company, Inc. v. National Wages and Productivity Commission, G.R. No. 144322, 6 February 2007, 514 SCRA 346. Metropolitan Manila Development Authority v. Viron Transportation Co., Inc. , G.R. No. 170656, 15 August 2007, 530 SCRA 341.
38 37

36

Id.

Otherwise known as the Philippine Regulation Commission Modernization Act o f 2000.
40

39

Section 7(s). Section 15. Section 8, RIRR.

41

42

SECOND DIVISION DR. MILAGROS L. CANTRE, Petitioner, cralawG.R. No. 160889 cralawPresent: cralawQUISUMBING, J., Chairperson, cralawCARPIO, cralawCARPIO MORALES, cralawTINGA, and cralawVELASCO, JR., JJ. cralawPromulgated:

- versus -

SPS. JOHN DAVID Z. GO and NORAS. GO, Respondents.

cralawApril 27, 2007 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x DECISION QUISUMBING, J.: For review on certiorari are the Decision [1] dated October 3, 2002 and Resolution[2] dated November 19, 2003 of the Court of Appeals in CA -G.R. CV No. 58184, which affirmed with modification the Decision [3] dated March 3, 1997 of the Regional Trial Court of Quezon City, Branch 98, in Civil Case No. Q -93-16562. The facts, culled from the records, are as follows: Petitioner Dr. Milagros L. Cantre is a specialist in Obstetrics and Gynecology at the Dr. Jesus Delgado Memorial Hospital. She was the attending physician of respondent Nora S. Go, who was admitted at the said hospital on April 19, 1992. At 1:30 a.m. of April 20, 1992, Nora gave birth to her fourth child, a baby boy. However, at around 3:30 a.m., Nora suffered profuse bleeding inside her womb due to some parts of the placenta which were not completely expelled from her womb after delivery. Conseq uently, Nora suffered hypovolemic shock, resulting in a drop in her blood pressure to 40 over 0.Petitioner and the assisting resident physician performed various medical procedures to stop the bleeding and to restore Noras blood pressure.Her blood pressure was frequently monitored with the use of a sphygmomanometer. While petitioner was massaging Noras uterus for it to contract and stop bleeding, she ordered a droplight to warm Nora and her baby.[4] Nora remained unconscious until she recovered. While in the recovery room, her husband, respondent John David Z. Go noticed a fresh gaping wound two and a half (2 ) by three and a half (3 ) inches in th e inner portion of her left arm, close to the armpit. [5] He asked the nurses what caused the injury. He was informed it was a burn.Forthwith, on April 22, 1992, John David filed a request for investigation. [6] In response, Dr.Rainerio S. Abad, the medical director of the hospital, called pet itioner and the

assisting resident physician to explain what happened. Petitioner said the blood pressure cuff caused the injury. On May 7, 1992, John David brought Nora to the National Bureau of Investigation for a physical examination, which was conduc ted by medico-legal officer Dr. Floresto Arizala, Jr.[7] The medico-legal officer later testified that Noras injury appeared to be a burn and that a droplight when placed near the skin for about 10 minutes could cause such burn. [8] He dismissed the likelihood that the wound was caused by a b lood pressure cuff as the scar was not around the arm, but just on one side of the arm. [9]chanroblesvirtuallawlibrary On May 22, 1992, Noras injury was referred to a plastic surgeon at the Dr. Jesus Delgado Memorial Hospital for skin grafting. [10] Her wound was covered with skin sourc ed from her abdomen, which consequently bore a scar as well. About a year after, on April 30, 1993, scar revision had to be performed at the same hospital. [11] The surgical operation left a healed linear scar in Noras left arm about three inches in length, the thickest portion rising about one-fourth (1/4) of an inch from the surface of the skin. The costs of the skin grafting and the scar revision were shouldered by the hospital. [12]chanroblesvirtuallawlibrary Unfortunately, Noras arm would never be the same. Aside from the unsightly mark, the pain in her left arm remains. When sleeping, she has to cradle her wounded arm. Her movements now are also restricted. Her children cannot play with the left side of her body as they might accidentally bump the injured arm, which aches at the slightest touch. Thus, on June 21, 1993, respondent spouses filed a complaint [13] for damages against petitioner, Dr. Abad, and the hospital. Finding in favor of respondent spouses, the trial court decreed: In view of the foregoing consideration, judgment is hereby rendered in favor of the plaintiffs and against the defendants, directing the latters, (sic) jointly and severally (a) (b) (c) (d) (e) to pay the sum of Five Hundred Thousand Pesos (P500,000.00) in moral damages; to pay the sum of One Hundred Fifty Thousand Pesos (P150,000.00) exemplary damages; to pay the sum of Ei ghty Thousand Pesos (P80,000.00) nominal damages; to pay Fifty Thousand Pesos (P50,000.00) for and as attorneys fees; and to pay Six Thousand Pesos (P6,000.00) litigation expenses.

SO ORDERED.[14]

Petitioner, Dr. Abad, and the hospital all appealed to the Court of Appeals, which affirmed with modification the trial court decision, thus :

WHEREFORE, in view of all the foregoing, and finding no reversible error in the appealed Decision dated March 3, 1997 of Branch 98 of the Regional Trial Court of Quezon City in Civil Case No. Q -93-16562, the same is hereby AFFIRMED, with the following MODIFICATIONS: 1. Ordering defendant -appellant Dra. Milagros [L.] Cantre only to pay plaintiffs-appellees John David Go and Nora S. Go the sum of P200,000.00 as moral damages; Deleting the award [of] exemplary damages, attorneys fe es and expenses of litigation; Dismissing the complaint with respect to defendants appellants Dr.Rainerio S. Abad and Delgado Clinic, Inc.; Dismissing the counterclaims of defendants -appellants for lack of merit; and Ordering defendant -appellant Dra. Milagros [L.] Cantre only to pay the costs.

2. 3. 4. 5.

SO ORDERED.[15] Petitioners motion for reconsideration was denied by the Court of Appeals. Hence, the instant petition assigning the following as errors and issues: I. WHETHER OR NOT, THE LOWER COURT, AND THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF THEIR DISCRETION WHEN, NOTWITHSTANDING THAT BOTH PARTIES HAVE RESTED THEIR RESPECTIVE CASES, THE LOWER COURT ADMITTED THE ADDITIONAL EXHIBITS FURTHER OFFERED BY RESPONDENTS NOT TESTIFIED TO BY ANY WITNESS AND THIS DECISION OF THE LOWER COURT WAS UPHELD BY THE COURT OF APPEALS LIKEWISE CO MMITTING GRAVE ABUSE OF DISCRETION; II. WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF ITS DISCRETION WHEN, CONTRARY TO PREPONDERANCE OF EVIDENCE PRESENTED BY THE PETITIONER, IT RULED THAT THE PETITIONER HAS NOT AMPLY SHOWED THAT THE DROPLIGHT DID NOT TOUCH THE BODY OF MRS. NORA GO, AND THIS DECISION OF THE LOWER COURT WAS UPHELD BY THE COURT OF APPEALS LIKEWISE COMMITTING GRAVE ABUSE OF DISCRETION; III. WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF ITS DISCRETION WHEN, CONTRARY TO PREPON DERANCE OF EVIDENCE PRESENTED BY THE PETITIONER, IT RULED THAT PETITIONER DRA. CANTRE WAS NOT ABLE TO AMPLY EXPLAIN HOW

THE INJURY (BLISTERS) IN THE LEFT INNER ARM OF RESPONDENT MRS. GO CAME ABOUT; IV. WHETHER OR NOT THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF ITS DISCRETION WHEN IT MADE A RULING ON THE RESPONDENTS INJURY QUOTING THE TESTIMONY OF SOMEONE WHO WAS NOT PRESENT AND HAS NOT SEEN THE ORIGINAL, FRESH INJURY OF RESPONDENT MRS. NORA GO; V. WHETHER OR NOT THE COURT OF APPEALS GRAVELY ABUSING ITS DISCRETION RULED THAT PETITIONER DRA. CANTRE SHOULD HAVE INTENDED TO INFLICT THE INJURY TO SAVE THE LIFE OF RESPONDENT MRS. GO; VI. WHETHER OR NOT THE LOWER COURT AND THE COURT [OF] APPEALS COMMITTED GRAVE ABUSE OF DISCRETION WHEN, CONTRARY TO THE DETAILED PROCEDURES DONE BY PETITIONER, BOTH RULED THAT THE RESPONDENT WAS LEFT TO THE CARE OF THE NURSING STAFF; VII. WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF DISCRETION WHEN, CONTRARY TO THE MEDICAL PURPOSES OF COSMETIC SURGERY, IT RULED THAT THE COSMETIC SURGERY MADE THE SCARS EVEN MORE UGLY AND DECLARED THE COSMETIC SURGERY A FAILURE; VIII. WHETHER OR NOT THE LOWER COURT GRAVELY ABUSE OF (SIC) DISCRETION WHEN, CONTRARY TO RESPONDENTS CONTRARY TESTIMONIES AND THE ABSENCE OF ANY TESTIMONY, IT RULED THAT THEY ARE ENTITLED TO DAMAGES AND WHICH WAS UPHELD, ALTHOUGH MODIFIED, BY THE COURT OF APPEALS LIKEWISE ABUSING ITS DISCRETION.[16] Petitioner contends that additional documentary exhibits not testified to by any witness are inadmissible in evidence because they deprived her of her constitutional right to confront the witnesses against her. Petitioner insists the droplight could not have tou ched Noras body. She maintains the injury was due to the constant taking of Noras blood pressure. Petitioner also insinuates the Court of Appeals was misled by the testimony of the medico -legal officer who never saw the original injury before plastic surge ry was performed. Finally, petitioner stresses that plastic surgery was not intended to restore respondents injury to its original state but rather to prevent further complication.

Respondents, however, counter that the genuineness and due execution of t he additional documentary exhibits were duly admitted by petitioners counsel. Respondents point out that petitioners blood pressure cuff theory is highly improbable, being unprecedented in medical history and that the injury was definitely caused by the dr oplight. At any rate, they argue, even if the injury was brought about by the blood pressure cuff, petitioner was still negligent in her duties as Noras attending physician. Simply put, the threshold issues for resolution are: (1) Are the questioned addi tional exhibits admissible in evidence? (2) Is petitioner liable for the injury suffered by respondent Nora Go?Thereafter, the inquiry is whether the appellate court committed grave abuse of discretion in its assailed issuances. As to the first issue, we agree with the Court of Appeals that said exhibits are admissible in evidence. We note that the questioned exhibits consist mostly of Noras medical records, which were produced by the hospital during trial pursuant to a subpoena duces tecum. Petitioners counsel admitted the existence of the same when they were formally offered for admission by the trial court. In any case, given the particular circumstances of this case, a ruling on the negligence of petitioner may be made based on the res ipsa loquitur doctrine even in the absence of such additional exhibits. Petitioners contention that the medico -legal officer who conducted Noras physical examination never saw her original injury before plastic surgery was performed is without basis and contradicted by the records. Records show that the medico -legal officer conducted the physical examination on May 7, 1992, while the skin grafting and the scar revision were performed on Nora on May 22, 1992 and April 30, 1993, respectively. Coming now to the substantiv e matter, is petitioner liable for the injury suffered by respondent Nora Go? The Hippocratic Oath mandates physicians to give primordial consideration to the well being of their patients.If a doctor fails to live up to this precept, he is accountable fo r his acts. This notwithstanding, courts face a unique restraint in adjudicating medical negligence cases because physicians are not guarantors of care and, they never set out to intentionally cause injury to their patients.However, intent is immaterial in negligence cases because where negligence exists and is proven, it automatically gives the injured a right to reparation for the damage caused.[17]chanroblesvirtuallawlibrary In cases involving medical negligence, 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. [18]chanroblesvirtuallawlibrary As to the first requirement, the gaping wound on Noras arm is certainly not an ordinary occurrence in the act of delivering a baby, far removed as the arm is from the organs involved in the process of giving birth. Such injury could not have happened unless negligence had set in somewhere. Second, whether the injury was caused by the droplight or by the blood pressure cuff is of no moment. Both instruments are deemed within the exclusive control of the physician in charge under the captain of the ship doctrine. This doctrine holds the surgeon in charge of an operation liable for the negligence of his assistants during the time when those assistants are under the surgeons control. [19] In this particular case, it can be logically inferred that petitioner, the senior consultant in charge during the delivery of Noras baby, exercised control over the assistants assigned to both the use of the droplight and the taking of Noras blood pressure. Hence, the use of the droplight and the blood pressure cuff is also within petitioners exclusive control. Third, the gaping wound on Noras left arm, by its very nature and considering her condition, could only be caused by something external to her and outside her control as she was unconscious while in hypovolemic shock. Hence, Nora could not, by any stretch of the imagination, have contributed to her own injury. Petitioners defense that Noras wound was caused not by the droplight but by the constant taking of her blood pressure, even if the latter was necessary given her condition, does not absolve her from liability. As testified to by the medico -legal officer, Dr. Arizala, Jr., the medical practice is to deflate the bl ood pressure cuff immediately after each use. Otherwise, the inflated band can cause injury to the patient similar to what could have happened in this case. Thus, if Noras wound was caused by the blood pressure cuff, then the taking of Noras blood pressure must have been done so negligently as to have inflicted a gaping wound on her arm,[20] for which petitioner cannot escape liability under the ca ptain of the ship doctrine. Further, petitioners argument that the failed plastic surgery was not intended as a cosmetic procedure, but rather as a measure to prevent complication does not help her case. It does not negate negligence on her part. Based on the foregoing, the presumption that petitioner was negligent in the exercise of her profession stands unrebutted. In this connection, the Civil Code provides:

ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. ART. 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendants wrongful act or omission. Clearly, under the law, petitioner is obliged to pay Nora for moral damages suffered by the latter as a proximate result of petitioners negligence. We note, however, that petitioner has served well as Noras obstetrician for her past three successful deliveries. This is the first time petitioner is being held liable for damages due to negligence in the practice of her prof ession. The fact that petitioner promptly took care of Noras wound before infection and other complications set in is also indicative of petitioners good intentions.We also take note of the fact that Nora was suffering from a critical condition when the injury happened, such that saving her life became petitioners elemental concern. Nonetheless, it should be stressed that all these could not justify negligence on the part of petitioner. Hence, considering the specific circumstances in the instant case, we f ind no grave abuse of discretion in the assailed decision and resolution of the Court of Appeals.Further, we rule that the Court of Appeals award of Two Hundred Thousand Pesos ( P200,000) as moral damages in favor of respondents and against petitioner is ju st and equitable.[21]chanroblesvirtuallawlibrary WHEREFORE, the petition is DENIED. The Decision dated October 3, 2002 and Resolution datedNovember 19, 2003 of the Court of Appeals in CA -G.R. CV No. 58184 are AFFIRMED. No pronouncement as to costs. SO ORDERED.

LEONARDO A. QUISUMBING Associate Justice WE CONCUR:

ANTONIO T. CARPIO Associate Justice

CONCHITA CARPIO MORALES Associate Justice

DANTE O. TINGA Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ATTESTATION cralawI attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING Associate Justice cralawChairperson

CERTIFICATION cralawPursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

cralawREYNATO S. PUNO cralawChief Justice

Endnotes: [1] cralawRollo, pp. 43-68. [2] cralawId. at 40-41. [3] cralawRecords, pp. 218 -227. [4] cralawTSN, December 5, 1995, pp. 54 -55. [5] cralawTSN, June 25, 1996, p. 9. [6] cralawExhibit A, folder of exhibits, p. 1. [7] cralawTSN, September 16, 1994, p. 6; Exhibit D, folder of exhibits, p. 7. [8] cralawTSN, September 12, 1995, pp. 13 -16. [9] cralawId. at 23. [10] cralawExhibit L, folder of exhibits, p. 42. [11] cralawTSN, January 31, 1994, pp. 35 -36. [12] cralawTSN, April 29, 1994, p. 16; TSN, June 25, 1996, p. 23. [13] cralawRecords, pp. 1-6. [14] cralawId. at 227. [15] cralawRollo , p. 67. [16] cralawId. at 169-171. [17] cralawRamos v. Court of Appeals , G.R. No. 124354, December 29, 1999, 321 SCRA 584, 628. [18] cralawId. at 600. [19]BLACKS LAW DICTIONARY 192, (5th ed., 1979). [20] cralawTSN, September 16, 1994, pp. 27 -28. [21] cralawSee Child Learning Center, Inc. v. Tagorio, G.R. No. 150920, November 25, 2005, 476 SCRA 236, 240.