Response to Kat: Pointers for the Bar Exam

I noticed that my blog had been silent for more than 3 months now. I have been busy back to work since December 2017, and had been (re)answering the 2017 Bar Exam since then. Two months before the release of the bar exam results, I was “interviewed” by my law school classmate who is now a candidate for graduation this June 2018. Having passed by our chat, I decided to post our Q&A. May the reader find this post as source of useful pointers in taking the #Bar2018 [Note: The Q&A is edited/modified to fit this blog-type post.]

 

KAT: First of all, congrats in finishing the bar. That alone takes a huge amount of endurance, and for that, I congratulate you! :’)

ME: Thank you!

KAT: Second, habang fresh pa sayo ang mga bagay-bagay, nais kong humingi ng mga words of advice or tips like:

Ano ang mga bagay na na-realize mo na dapat mong ginawa pero hindi mo nagawa?

ME: Most of the things I planned were accomplished naman, except for that run on the syllabus. Original plan ko kasi ay gagawan ko ng reviewer each and every subject based on syllabus. But since August 2017 na ako nag-start ng review proper ko (take not I did not resign or totally left work), I realized na I will be losing material time just doing such reviewer than focusing on what statistically may come out. So I abandoned the plan, and instead read as many Arellano Bar Review Program (ABRP) materials I’ve collected since 2012 as a premium for being consistently and actively participating in the Bar Operations.

I realized na, if only I have completed that self-made reviewer, maybe I could have better answered some questions. But take note abandoning it is not a bad idea after all. I just feel I could have answered better.

KAT: Mistakes you did or ung mga pagkukulang, if any? Or
Yung mga tamang ginawa mo na tingin mo hindi nagawa ng iba, if any? Hehe

I am not sure if it’s a mistake when I slightly changed my answering style a few months before the bar exam. Napansin ko kasi, if I will maintain my style, parang pare-parehas na mababasa ng examiner na phrasing (like kung susundan mo yung answering style na 3-paragraph rule). I have to admit I am aiming for the top. Without any professional guidance, I tried to trim down my answer into 2-paragraph super direct to the point “answer-reason then basis” approach. Maybe some portions of the correct answer could have been lost somewhere. But nonetheless, I passed. So baka naman hindi mistake.   

I believe I did my best in answering all the questions. That should be every examinee’s objective. Never leave a question unanswered, and always have a spare time to review your work. In my case, I made sure that I am done answering before the 3^rd bell (i.e. 30 minutes before time’s up) so I still have at least 25 minutes (I submit my booklet after the 4^th bell, i.e. 5 minutes before time’s up with the exception of Legal Ethics where I submitted 45 minutes before time kasi I am excited to go out before the sun sets). That way, I can review my work for any spelling, grammar, or punctuation. To my surprise, I was able to discover (this was during the first Sunday) that I skipped answering some sub-questions. I was able naman to insert my answers because, fortunately, my answers were (extremely) short and I use 1 page in answering even sub-questions.

KAT: Third, sa dami ng binasa mo, ano sa tingin mo ung best material/s (pnka marami kang nahugot sa pagsagot sa bar) and worst (na dapat ndi na basahin ng isang barrista) for each bar subject?

ME: Honestly, I have not read any reference book in the entire review (I tried to borrow some books, but I never had the chance to read it). In our case (Bar 2017), there is no single best material that you can use to survive the exam.  You really have to rely on the years of preparation you have in law school. In my case, I relied mostly on ABRP materials including our very own Pre-Week materials. My observation is that all other review materials are practically the same. They just differ in the presentation and emphasis on certain topics. But they are just like any other review material.

Take note I did not enroll in any other Bar Review simultaneous with the ABRP. To me, simultaneous schooling is not good at all because you will hear different approaches and answers to the same question, which later on may affect you while answering the bar exam. Just choose one set of materials that you are comfortable with. Stick with it, and just be able to identify which part is “poisonous” LoL. 

KAT: Best material (to read) and worst material (to avoid)
Poli-
Labor-
Civil law-
Tax-
Com-
Crim-
Remedial law-
Ethics-

ME: Following my answer above, I do not recommend any best or worst material for any subject. Given enough value and appreciation, our very own ABRP materials are good enough. You will later discover that some of Arellano barristers are reading “Blue Notes”, “Red Notes”, UP Notes, etc. But you will also be amazed to see some Ateneo, San Beda, and UP barristers reading Arellano Last Minute Tips (LMTs) LoL. Just choose which materials are most comfortable for you to use.

Bar materials and LMTs by itself will not, by itself, save you. They are just intended as reminders to what you should have known already way back law school days.

However, there are some notable exceptions to this like in the case of Political Law and Civil Law. AUSL is known to have very good predictions on Political Law (average 50%) and it was maintained.

Labor Law is likewise fair enough. Using Atty. Chan’s pre-week notes is more than enough arsenal.

In the case of Civil Law, there are a lot of basic ObliCon questions and our very own Atty. Rabuya discussed many of the questions which were lifted from the J.Bersamin cases.

Taxation law is again a killer (to me). I cannot give advice on this. But if you have read enough recent tax cases, it will be less painful.

Commercial law is also a pain in the a**. A handful of questions were lifted from the Financial Rehabilitation and Insolvency Act (FRIA). But the questions were basic, so I suggest reading the law (note, it is lengthy) and at least understanding the terms, just in case a “boomerang” happens in your bar exam.

Criminal Law is also complained as a killer subject, but I disagree. The questions are basic. The problem is its presentation. You will get confused by the manner the questions are presented. But I believe the questions are phrased that way to see if the examinee can discern the issue and use only material facts to arrive at a conclusion applying the law. The exceptional term “doli incapax” can be answered if you are familiar with latin root words “dolus” (dolo).  But never mind.

Remedial law is just a walk in the park (Jurassic park LoL) if you have been under Atty. Brondial’s class. If you have not, I suggest you get a copy of Atty. Brondial’s latest syllabus and start reading the cases there. It will be a smooth ride after finishing it.

Legal Ethics questions were mostly recycled questions in the past bar exams. Be prepared on legal forms because it may drain your time in preparing one if you have not practiced doing it. 

 

KAT: Your response will be much appreciated hehe.. thank you!

P.S. sa free time mo po gawin. I am willing to wait.

ME: I don’t want you to wait. Start early and feel relieved early. I hope, though, that I have not increased your stress levels by promptly replying to your queries.

Good luck!

 

Dr. Solidum v. People, G.R. No. 192123, 10 March 2014.

[BERSAMIN, J.]

FACTS: Gerald Albert Gercayo (Gerald) was born with an imperforate anus. Two days after his birth, Gerald underwent colostomy, a surgical procedure to bring one end of the large intestine out through the abdominal wall, enabling him to excrete through a colostomy bag attached to the side of his body. When Gerald was three years old, he was admitted at the Ospital ng Maynila for a pull-through operation Dr. Leandro Resurreccion headed the surgical team, and was assisted by Dr. Joselito Luceño, Dr. Donatella Valeña and Dr. Joseph Tibio. The anesthesiologists included Dr. Marichu Abella, Dr. Arnel Razon and petitioner Dr. Fernando Solidum (Dr. Solidum). During the operation, Gerald experienced bradycardia, and went into a coma. His coma lasted for two weeks, but he regained consciousness only after a month. He could no longer see, hear or move.

A criminal complaint for Reckless Imprudence Resulting in Serious Physical Injuries was filed against Dr. Solidum. The RTC rendered a judgment of conviction against Dr. Solidum with Ospital ng Maynila jointly and severally liable. The CA affirmed the RTC judgment. The SC ruled that Dr. Solidum must be acquitted because the prosecution did not prove beyond reasonable doubt that Dr. Solidum had been recklessly imprudent in administering the anesthetic agent to Gerald.  Indeed, Dr. Vertido’s findings did not preclude the probability that other factors related to Gerald’s major operation, which could or could not necessarily be attributed to the administration of the anesthesia, had caused the hypoxia and had then led Gerald to experience bradycardia. Dr. Vertido revealingly concluded in his report, instead, that “although the anesthesiologist followed the normal routine and precautionary procedures, still hypoxia and its corresponding side effects did occur.

ISSUE#1: Will the acquittal of Dr. Solidum exempt him from civil liability arising from the crime?

HELD#2: NO, it does not follow.

We have to clarify that the acquittal of Dr. Solidum would not immediately exempt him from civil liability. But we cannot now find and declare him civilly liable because the circumstances that have been established here do not present the factual and legal bases for validly doing so. His acquittal did not derive only from reasonable doubt. There was really no firm and competent showing how the injury to Gerard had been caused. That meant that the manner of administration of the anesthesia by Dr. Solidum was not necessarily the cause of the hypoxia that caused the bradycardia experienced by Gerard. Consequently, to adjudge Dr. Solidum civilly liable would be to speculate on the cause of the hypoxia. We are not allowed to do so, for civil liability must not rest on speculation but on competent evidence.

ISSUE#2: Is the decree that Ospital ng Maynila is jointly and severally liable with Dr. Solidum correct?

HELD#2: NO, the decree is not correct.

For one, Ospital ng Maynila was not at all a party in the proceedings. Hence, its fundamental right to be heard was not respected from the outset. The R TC and the CA should have been alert to this fundamental defect. Verily, no person can be prejudiced by a ruling rendered in an action or proceeding in which he was not made a party. Such a rule would enforce the constitutional guarantee of due process of law.

Moreover, Ospital ng Maynila could be held civilly liable only when subsidiary liability would be properly enforceable pursuant to Article 103 of the Revised Penal Code. But the subsidiary liability seems far-fetched here. The conditions for subsidiary liability to attach to Ospital ng Maynila should first be complied with. Firstly, pursuant to Article 103 of the Revised Penal Code, Ospital ng Maynila must be shown to be a corporation “engaged in any kind of industry.” The term industry means any department or branch of art, occupation or business, especially one that employs labor and capital, and is engaged in industry.

However, Ospital ng Maynila, being a public hospital, was not engaged in industry conducted for profit but purely in charitable and humanitarian work. Secondly, assuming that Ospital ng Maynila was engaged in industry for profit, Dr. Solidum must be shown to be an employee of Ospital ng Maynila acting in the discharge of his duties during the operation on Gerald. Yet, he definitely was not such employee but a consultant of the hospital. And, thirdly, assuming that civil liability was adjudged against Dr. Solidum as an employee (which did not happen here), the execution against him was unsatisfied due to his being insolvent.

 

N.B.

In criminal prosecutions, the civil action for the recovery of civil liability that is deemed instituted with the criminal action refers only to that arising from the offense charged. It is puzzling, therefore, how the RTC and the CA could have adjudged Ospital ng Maynila jointly and severally liable with Dr. Solidum for the damages despite the obvious fact that Ospital ng Maynila, being an artificial entity, had not been charged along with Dr. Solidum. The lower courts thereby acted capriciously and whimsically, which rendered their judgment against Ospital ng Maynila void as the product of grave abuse of discretion amounting to lack of jurisdiction.

 

Continental Steel Manufacturing Corp. v. Montao, 182836, 13 October 2009.

[CHICO-NAZARIO, J.]

FACTS:

Hortillano, an employee of Continental Steel, filed a claim for Paternity Leave, Bereavement Leave and Death and Accident Insurance for dependent pursuant to the Collective Bargaining Agreement (CBA) concluded between Continental and the Union. The claim was based on the death of Hortillano’s unborn child. Hortillanos wife, had a premature delivery while she was in the 38^th week of pregnancy. According to the Certificate of Fetal Death, the female fetus died during labor due to fetal Anoxia secondary to uteroplacental insufficiency. Continental Steel immediately granted Hortillanos claim for paternity leave but denied his claims for bereavement leave and other death benefits, consisting of the death and accident insurance. Continental Steel posited that the express provision of the CBA did not contemplate the death of an unborn child, a fetus, without legal personality. Continental Steel, relying on Articles 40, 41 and 42 of the Civil Code, contended that only one with civil personality could die. Hence, the unborn child never died because it never acquired juridical personality. Proceeding from the same line of thought, Continental Steel reasoned that a fetus that was dead from the moment of delivery was not a person at all.

 

ISSUE: Whether death can only happen to one with civil/juridical personality.

 

HELD: NO.

The reliance of Continental Steel on Articles 40, 41 and 42 of the Civil Code for the legal definition of death is misplaced. Article 40 provides that a conceived child acquires personality only when it is born, and Article 41 defines when a child is considered born. Article 42 plainly states that civil personality is extinguished by death.

First, the issue of civil personality is not relevant herein. Articles 40, 41 and 42 of the Civil Code on natural persons, must be applied in relation to Article 37 of the same Code, the very first of the general provisions on civil personality.

We need not establish civil personality of the unborn child herein since his/her juridical capacity and capacity to act as a person are not in issue. It is not a question before us whether the unborn child acquired any rights or incurred any obligations prior to his/her death that were passed on to or assumed by the child’s parents. The rights to bereavement leave and other death benefits in the instant case pertain directly to the parents of the unborn child upon the latters death.

Second, Sections 40, 41 and 42 of the Civil Code do not provide at all a definition of death. Moreover, while the Civil Code expressly provides that civil personality may be extinguished by death, it does not explicitly state that only those who have acquired juridical personality could die.

And third, death has been defined as the cessation of life. Life is not synonymous with civil personality. One need not acquire civil personality first before he/she could die. Even a child inside the womb already has life. No less than the Constitution recognizes the life of the unborn from conception, that the State must protect equally with the life of the mother. If the unborn already has life, then the cessation thereof even prior to the child being delivered, qualifies as death.

 

Professional Services Inc. (PSI) v. Agana, G.R. No. 126297, 31 January 2007.

[SANDOVAL-GUTIERREZ, J.]

FACTS:

Natividad Agana was rushed to the Medical City General Hospital (Medical City Hospital) because of difficulty of bowel movement and bloody anal discharge. After a series of medical examinations, Dr. Miguel Ampil diagnosed her to be suffering from “cancer of the sigmoid.” Dr. Ampil, assisted by the medical staff of the Medical City Hospital, performed an anterior resection surgery on Natividad. He found that the malignancy in her sigmoid area had spread on her left ovary, necessitating the removal of certain portions of it. Thus, Dr. Ampil obtained the consent of Natividad’s husband, Enrique Agana, to permit Dr. Juan Fuentes, respondent in G.R. No. 126467, to perform hysterectomy on her. Thereafter, Dr. Ampil took over, completed the operation and closed the incision. However, based on the record of the hospital, the attending nurses indicated nota bene that 2 sponges were missing. The same was reported to Dr. Ampil but were not found after “diligent seach”.

After couple of days, Natividad complained of excruciating pain in her anal region. She consulted both Dr. Ampil and Dr. Fuentes about it. They told her that the pain was the natural consequence of the surgery. Dr. Ampil then recommended that she consult an oncologist to examine the cancerous nodes which were not removed during the operation. Natividad went to the United States for four months but she was only declared free of cancer. In Natividad’s return to the Philippines, her daughter found a piece of gauze protruding from her vagina. Upon being informed about it, Dr. Ampil proceeded to her house where he managed to extract by hand a piece of gauze measuring 1.5 inches in width. He then assured her that the pains would soon vanish. But instead the pains intensified, prompting Natividad to seek treatment at the Polymedic General Hospital. While confined there, Dr. Ramon Gutierrez detected the presence of another foreign object in her vagina — a foul-smelling gauze measuring 1.5 inches in width which badly infected her vaginal vault. A recto-vaginal fistula had formed in her reproductive organs which forced stool to excrete through the vagina. Natividad underwent another surgical operation to remedy the damage. Civil and administrative complaints, for damages and gross negligence respectively, were filed against Professional Services Inc., owner of Medical City Hospital, Dr. Ampil and Dr. Fuentes.

ISSUE(S):

Are the following liable?

(1) Professional Services Inc., based on

(a) “employer-employee relationship”;

(b) “doctrine of apparent authority”;

(c) “corporate negligence”;

(2) Dr. Ampil,

(a) for medical negligence;

(b) under the “captain of the ship doctrine”;

(3) Dr.Fuentes, under the doctrine of res ipsa loquitor;

HELD:

(1)

(a) YES.

[P]rivate hospitals, hire, fire and exercise real control over their attending and visiting ‘consultant’ staff. While ‘consultants’ are not, technically employees, x x x, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians.

(b) YES.

Apparent authority, or what is sometimes referred to as the “holding out” theory, or doctrine of ostensible agency or agency by estoppel, has its origin from the law of agency. It imposes liability, not as the result of the reality of a contractual relationship, but rather because of the actions of a principal or an employer in somehow misleading the public into believing that the relationship or the authority exists. xxx In this case, PSI publicly displays in the lobby of the Medical City Hospital the names and specializations of the physicians associated or accredited by it, including those of Dr. Ampil and Dr. Fuentes. We concur with the Court of Appeals’ conclusion that it “is now estopped from passing all the blame to the physicians whose names it proudly paraded in the public directory leading the public to believe that it vouched for their skill and competence.” Indeed, PSI’s act is tantamount to holding out to the public that Medical City Hospital, through its accredited physicians, offers quality health care services. By accrediting Dr. Ampil and Dr. Fuentes and publicly advertising their qualifications, the hospital created the impression that they were its agents, authorized to perform medical or surgical services for its patients. As expected, these patients, Natividad being one of them, accepted the services on the reasonable belief that such were being rendered by the hospital or its employees, agents, or servants.

(c) YES.

Hospital’s corporate negligence extends to permitting a physician known to be incompetent to practice at the hospital. xxx [A] patient who enters a hospital does so with the reasonable expectation that it will attempt to cure him. The hospital accordingly has the duty to make a reasonable effort to monitor and oversee the treatment prescribed and administered by the physicians practicing in its premises. In the present case, it was duly established that PSI operates the Medical City Hospital for the purpose and under the concept of providing comprehensive medical services to the public. Accordingly, it has the duty to exercise reasonable care to protect from harm all patients admitted into its facility for medical treatment. Unfortunately, PSI failed to perform such duty.

(2)

(a) YES.

This is a clear case of medical malpractice or more appropriately, medical negligence. To successfully pursue this kind of case, a patient must only prove that a health care provider either failed to do something which a reasonably prudent health care provider would have done, or that he did something that a reasonably prudent provider would not have done; and that failure or action caused injury to the patient. Simply put, the elements are duty, breach, injury and proximate causation. Dr, Ampil, as the lead surgeon, had the duty to remove all foreign objects, such as gauzes, from Natividad’s body before closure of the incision. When he failed to do so, it was his duty to inform Natividad about it. Dr. Ampil breached both duties. Such breach caused injury to Natividad, necessitating her further examination by American doctors and another surgery. That Dr. Ampil’s negligence is the proximate cause of Natividad’s injury could be traced from his act of closing the incision despite the information given by the attending nurses that two pieces of gauze were still missing. That they were later on extracted from Natividad’s vagina established the causal link between Dr. Ampil’s negligence and the injury. And what further aggravated such injury was his deliberate concealment of the missing gauzes from the knowledge of Natividad and her family.

(b) YES.

Under the “Captain of the Ship” rule, the operating surgeon is the person in complete charge of the surgery room and all personnel connected with the operation. Their duty is to obey his orders. As stated before, Dr. Ampil was the lead surgeon. In other words, he was the “Captain of the Ship.” That he discharged such role is evident from his following conduct: (1) calling Dr. Fuentes to perform a hysterectomy; (2) examining the work of Dr. Fuentes and finding it in order; (3) granting Dr. Fuentes’ permission to leave; and (4) ordering the closure of the incision. To our mind, it was this act of ordering the closure of the incision notwithstanding that two pieces of gauze remained unaccounted for, that caused injury to Natividad’s body. Clearly, the control and management of the thing which caused the injury was in the hands of Dr. Ampil, not Dr. Fuentes.

(3) NO.

The requisites for the applicability of the doctrine of res ipsa loquitur are: (1) the occurrence of an injury; (2) the thing which caused the injury was under the control and management of the defendant; (3) the occurrence was such that in the ordinary course of things, would not have happened if those who had control or management used proper care; and (4) the absence of explanation by the defendant. Of the foregoing requisites, the most instrumental is the “control and management of the thing which caused the injury.”

We find the element of “control and management of the thing which caused the injury” to be wanting. Hence, the doctrine of res ipsa loquitur will not lie.

It was duly established that Dr. Ampil was the lead surgeon during the operation of Natividad. He requested the assistance of Dr. Fuentes only to perform hysterectomy when he (Dr. Ampil) found that the malignancy in her sigmoid area had spread to her left ovary. Dr. Fuentes performed the surgery and thereafter reported and showed his work to Dr. Ampil. The latter examined it and finding everything to be in order, allowed Dr. Fuentes to leave the operating room. Dr. Ampil then resumed operating on Natividad. He was about to finish the procedure when the attending nurses informed him that two pieces of gauze were missing. A “diligent search” was conducted, but the misplaced gauzes were not found. Dr. Ampil then directed that the incision be closed. During this entire period, Dr. Fuentes was no longer in the operating room and had, in fact, left the hospital.

 

Enrile and Enrile v. Judge Manalastas, et al., G.R. No. 166414, 22 October 2014.

[BERSAMIN, J.]

FACTS:

The mauling incident involving neighbors end up with filing of criminal case in the MTC for frustrated homicide and less serious physical injuries. Petitioners moved for the reconsideration of the joint resolution, arguing that the complainants had not presented proof of their having been given medical attention lasting 10 days or longer, thereby rendering their charges of less serious physical injuries dismissible; and that the two cases for less serious physical injuries, being necessarily related to the case of frustrated homicide still pending in the Office of the Provincial Prosecutor, should not be governed by the Rules on Summary Procedure. The MTC denied the petitioners’ motion for reconsideration because the grounds of the motion had already been discussed and passed upon in the resolution sought to be reconsidered; and because the cases were governed by the Rules on Summary Procedure, which prohibited the motion for reconsideration. Thereafter, the petitioners presented a manifestation with motion to quash and a motion for the deferment of the arraignment. The MTC denied the motion to quash, and ruled that the cases for less serious physical injuries were covered by the rules on ordinary procedure; and reiterated the arraignment previously scheduled.

Unsatisfied, the petitioners commenced a special civil action for certiorari assailing the order of the MTC in the RTC. RTC Judge Manalastas dismissed the petition for certiorari. The petitioners moved for the reconsideration, but the RTC denied their motion.

The petitioners next went to the CA via a petition for certiorari and prohibition to nullify the orders issued by the RTC, averring grave abuse of discretion amounting to lack or excess of jurisdiction. They urged the dismissal of the criminal cases on the same grounds they advanced in the RTC. The CA dismissed the petition for certiorari and prohibition for being the wrong remedy.

ISSUE#1: Whether a petition for certiorari and prohibition is proper in assailing the decision of RTC dismissing an original action for certiorari.

HELD#1: NO.

The proper recourse for the petitioners should be an appeal by notice of appeal, taken within 15 days from notice of the denial of the motion for reconsideration. Yet, the petitioners chose to assail the dismissal by the RTC through petitions for certiorari and prohibition in the CA, instead of appealing by notice of appeal. Such choice was patently erroneous and impermissible, because certiorari and prohibition, being extra ordinary reliefs to address jurisdictional errors of a lower court, were not available to them. Worthy to stress is that the RTC dismissed the petition for certiorari upon its finding that the MTC did not gravely abuse its discretion in denying the petitioners’ motion to quash. In its view, the RTC considered the denial of the motion to quash correct, for it would be premature and unfounded for the MTC to dismiss the criminal cases against the petitioners upon the supposed failure by the complainants to prove the period of their incapacity or of the medical attendance for them. Indeed, the time and the occasion to establish the duration of the incapacity or medical attendance would only be at the trial on the merits.

ISSUE#2: Is it proper to invoke a motion to quash the information filed in the MTC in this case?

HELD#2: NO.

[T]he motion to quash is the mode by which an accused, before entering his plea, challenges the complaint or information for insufficiency on its face in point of law, or for defects apparent on its face. Section 3, Rule 117 of the Rules of Court enumerates the grounds for the quashal of the complaint or information, as follows: (a) the facts charged do not constitute an offense; (b) the court trying the case has no jurisdiction over the offense charged; (c) the court trying the case has no jurisdiction over the person of the accused; (d) the officer who filed the information had no authority to do so; (e) the complaint or information does not conform substantially to the prescribed form; (f) more than one offense is charged except when a single punishment for various offenses is prescribed by law; (g) the criminal action or liability has been extinguished; (h) the complaint or information contains averments which, if true, would constitute a legal excuse or justification; and (i) the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent.

In the context of Section 6, Rule 110 of the Rules of Court, the complaints sufficiently charged the petitioners with less serious physical injuries. Indeed, the complaints only needed to aver the ultimate facts constituting the offense, not the details of why and how the illegal acts allegedly amounted to undue injury or damage, for such matters, being evidentiary, were appropriate for the trial. Hence, the complaints were not quashable.

ISSUE#3: Is the presentation of medical certificates that will show the number of days rendered for medication essential during filing of complaint, considering the complaints were filed two (2) months after the alleged incident?

HELD#3: NO.

[T]he presentation of the medical certificates to prove the duration of the victims’ need for medical attendance or of their incapacity should take place only at the trial, not before or during the preliminary investigation. According to Cinco v. Sandiganbayan, the preliminary investigation, which is the occasion for the submission of the parties’ respective affidavits, counter-affidavits and evidence to buttress their separate allegations, is merely inquisitorial, and is often the only means of discovering whether a person may be reasonably charged with a crime, to enable the prosecutor to prepare the information. It is not yet a trial on the merits, for its only purpose is to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof. The scope of the investigation does not approximate that of a trial before the court; hence, what is required is only that the evidence be sufficient to establish probable cause that the accused committed the crime charged, not that all reasonable doubt of the guilt of the accused be removed.

 

People v. Adil and Fama Jr., G.R. No. L-41863, 22 April 1977.

[BARREDO, J.]

FACTS:

On April 12, 1975, Fama Jr., attacked Viajar by throwing a piece of stone upon his right cheek, inflicting physical injuries which would require medical attendance for a period from 5 to 9 days barring complication as per medical certificate of the physician. A criminal complaint for slight physical injuries was filed against Fama Jr. on April 15, 1975, docketed as Case No. 3335. Meanwhile, Viajar filed another complaint on July 28, 1975, docketed as Case No. 5241, for the same instance of throwing a stone but this time for serious physical injuries because it left permanent scar and deformation on his right face. The first case proceeded and Fama Jr. pleaded not guilty during arraignment. After several postponements by the prosecution, Fama Jr.successfully sought dismissal of the first criminal case invoking the constitutional right to speedy trial. Fama Jr. now moves for the dismissal of the second case on the ground of double jeopardy.

 

ISSUE: Whether or not the additional allegation of deformity in the information in Case No. 5241 constitutes a supervening element which should take this case out of the rule of identity resulting in double jeopardy.

HELD: YES.

This rule of identity does not apply… when the second offense was not in existence at the time of the first prosecution, for the simple reason that in such case there is no possibility for the accused during the first prosecution, to be convicted for an offense that was then inexistent Thus, where the accused was charged with physical injuries and after conviction the injured dies, the charge of homicide against the same accused does not put him twice in jeopardy.

[Here], when the complaint was filed on April 15, 1975, only three days had passed since the incident in which the injuries were sustained took place, and there were yet no indications of a graver injury or consequence to be suffered by said offended party. Evidently, it was only later, after Case No. 3335 had already been filed and the wound on the face of Viajar had already healed, that the alleged deformity became apparent. In other words, in the peculiar circumstances of this case, the plea of double jeopardy of private respondent Fama Jr., cannot hold.

 

Nogales v. Capitol Medical Center, et al., G.R. No. 142625, 19 December 2006.

[CARPIO, J.]

FACTS:

Pregnant with her fourth child, Corazon Nogales (“Corazon”), who was then 37 years old, was under the exclusive prenatal care of Dr. Oscar Estrada (“Dr. Estrada”) beginning on her fourth month of pregnancy or as early as December 1975. While Corazon was on her last trimester of pregnancy, Dr. Estrada noted an increase in her blood pressure and development of leg edema indicating preeclampsia, which is a dangerous complication of pregnancy. Around midnight of 25 May 1976, Corazon started to experience mild labor pains prompting Corazon and Rogelio Nogales (“Spouses Nogales”) to see Dr. Estrada at his home. After examining Corazon, Dr. Estrada advised her immediate admission to the Capitol Medical Center (“CMC”). The following day, Corazon was admitted at 2:30 a.m. at the CMC after the staff nurse noted the written admission request of Dr. Estrada. Upon Corazon’s admission at the CMC, Rogelio Nogales (“Rogelio”) executed and signed the “Consent on Admission and Agreement” and “Admission Agreement.” Corazon was then brought to the labor room of the CMC. Corazon died at 9:15 a.m. The cause of death was “hemorrhage, post partum.”

Petitioners filed a complaint for damages with the Regional Trial Court of Manila against CMC, Dr. Estrada, and the rest of CMC medical staff for the death of Corazon. In their defense, CMC pointed out that Dr. Estrada was a consultant to be considered as an independent-contractor, and that no employer-employee relationship existed between the former and the latter.

After more than 11 years of trial, the trial court rendered judgment on 22 November 1993 finding Dr. Estrada solely liable for damages. Petitioners appealed the trial court’s decision. Petitioners claimed that aside from Dr. Estrada, the remaining respondents should be held equally liable for negligence. Petitioners pointed out the extent of each respondent’s alleged liability.

On appeal, the Court of Appeals affirmed the trial court’s ruling and applied the “borrowed servant doctrine” to release the liability of other medical staff. This doctrine provides that once the surgeon enters the operating room and takes charge of the proceedings, the acts or omissions of operating room personnel, and any negligence associated with such acts or omissions, are imputable to the surgeon. While the assisting physicians and nurses may be employed by the hospital, or engaged by the patient, they normally become the temporary servants or agents of the surgeon in charge while the operation is in progress, and liability may be imposed upon the surgeon for their negligent acts under the doctrine of respondeat superior.

ISSUE: Whether CMC is vicariously liable for the negligence of Dr. Estrada as its attending independent-contractor physician considering that facts of the instant case.

 

HELD: YES.

In general, a hospital is not liable for the negligence of an independent contractor-physician. There is, however, an exception to this principle. The hospital may be liable if the physician is the “ostensible” agent of the hospital. This exception is also known as the “doctrine of apparent authority.”xxx The doctrine of apparent authority essentially involves two factors to determine the liability of an independent-contractor physician. The first factor focuses on the hospital’s manifestations and is sometimes described as an inquiry whether the hospital acted in a manner which would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital. In this regard, the hospital need not make express representations to the patient that the treating physician is an employee of the hospital; rather a representation may be general and implied. xxx The second factor focuses on the patient’s reliance. It is sometimes characterized as an inquiry on whether the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence.

xxx

In the instant case, CMC impliedly held out Dr. Estrada as a member of its medical staff. Through CMC’s acts, CMC clothed Dr. Estrada with apparent authority thereby leading the Spouses Nogales to believe that Dr. Estrada was an employee or agent of CMC. CMC cannot now repudiate such authority. The records show that the Spouses Nogales relied upon a perceived employment relationship with CMC in accepting Dr. Estrada’s services. Rogelio testified that he and his wife specifically chose Dr. Estrada to handle Corazon’s delivery not only because of their friend’s recommendation, but more importantly because of Dr. Estrada’s “connection with a reputable hospital, the [CMC].” In other words, Dr. Estrada’s relationship with CMC played a significant role in the Spouses Nogales’ decision in accepting Dr. Estrada’s services as the obstetrician-gynecologist for Corazon’s delivery. Moreover, as earlier stated, there is no showing that before and during Corazon’s confinement at CMC, the Spouses Nogales knew or should have known that Dr. Estrada was not an employee of CMC. xxx CMC’s defense that all it did was “to extend to [Corazon] its facilities” is untenable. The Court cannot close its eyes to the reality that hospitals, such as CMC, are in the business of treatment.

xxx

The Court finds respondent Capitol Medical Center vicariously liable for the negligence of Dr. Oscar Estrada. The amounts of P105,000 as actual damages and P700,000 as moral damages should each earn legal interest at the rate of six percent (6%) per annum computed from the date of the judgment of the trial court. The Court affirms the rest of the Decision dated 6 February 1998 and Resolution dated 21 March 2000 of the Court of Appeals in CA-G.R. CV No. 45641.

 

Bongalon v. People, G.R. No. 169533, 20 March 2013.

[BERSAMIN, J.]

FACTS:

Jayson Dela Cruz (Jayson) and Roldan, his older brother, both minors, joined the evening procession for the Santo Niño at Oro Site in Legazpi City; that when the procession passed in front of the petitioner’s house, the latter’s daughter Mary Ann Rose, also a minor, threw stones at Jayson and called him “sissy”; that the petitioner confronted Jayson and Roldan and called them names like “strangers” and “animals”; that the petitioner struck Jayson at the back with his hand, and slapped Jayson on the face; that the petitioner then went to the brothers’ house and challenged Rolando dela Cruz, their father, to a fight, but Rolando did not come out of the house to take on the petitioner; that Rolando later brought Jayson to the Legazpi City Police Station and reported the incident; that Jayson also underwent medical treatment at the Bicol Regional Training and Teaching Hospital; that the doctors who examined Jayson issued two medical certificates attesting that Jayson suffered the following contusions, to wit: (1) contusion .5 x 2.5 scapular area, left; and (2) +1×1 cm. contusion left zygomatic area and contusion .5 x 2.33 cm. scapular area, left. The petitioner denied having physically abused or maltreated Jayson. He explained that he only talked with Jayson and Roldan after Mary Ann Rose and Cherrylyn, his minor daughters, had told him about Jayson and Roldan’s throwing stones at them and about Jayson’s burning Cherrylyn’s hair. He denied shouting invectives at and challenging Rolando to a fight, insisting that he only told Rolando to restrain his sons from harming his daughters.

 

ISSUE:

Is the accused guilty of Child Abuse under R.A. No. 7610 or Physical Injuries under the Revised Penal Code?

 

HELD: 

NO. The accused is guilty of Physical Injuries under the Revised Penal Code.

Not every instance of the laying of hands on a child constitutes the crime of child abuse under Section 10 (a) of Republic Act No. 7610. Only when the laying of hands is shown beyond reasonable doubt to be intended by the accused to debase, degrade or demean the intrinsic worth and dignity of the child as a human being should it be punished as child abuse. Otherwise, it is punished under the Revised Penal Code.

Although we affirm the factual findings of fact by the RTC and the CA to the effect that the petitioner struck Jayson at the back with his hand and slapped Jayson on the face, we disagree with their holding that his acts constituted child abuse within the purview of the above-quoted provisions. The records did not establish beyond reasonable doubt that his laying of hands on Jayson had been intended to debase the “intrinsic worth and dignity” of Jayson as a human being, or that he had thereby intended to humiliate or embarrass Jayson. The records showed the laying of hands on Jayson to have been done at the spur of the moment and in anger, indicative of his being then overwhelmed by his fatherly concern for the personal safety of his own minor daughters who had just suffered harm at the hands of Jayson and Roldan. With the loss of his self-control, he lacked that specific intent to debase, degrade or demean the intrinsic worth and dignity of a child as a human being that was so essential in the crime of child abuse.

 

Dr. Encarnacion Lumantas v. Hanz Calapiz, G.R. No. 163753, 15 January 2014.

[BERSAMIN, J.]

FACTS:

In 1995, Spouses Hilario Calapiz, Jr. and Herlita Calapiz brought their 8-year-old son, Hanz Calapiz (Hanz), to the Misamis Occidental Provincial Hospital, Oroquieta City, for an emergency appendectomy. Hanz was attended to by the petitioner, who suggested to the parents that Hanz also undergo circumcision at no added cost to spare him the pain. With the parents’ consent, the petitioner performed the coronal type of circumcision on Hanz after his appendectomy. On the following day, Hanz complained of pain in his penis, which exhibited blisters. His testicles were swollen. The parents noticed that the child urinated abnormally after the petitioner forcibly removed the catheter, but the petitioner dismissed the abnormality as normal. Hanz was discharged from the hospital over his parents’ protestations, and was directed to continue taking antibiotics. After a few days,  Hanz was confined in a hospital because of the abscess formation between the base and the shaft of his penis. Presuming that the ulceration was brought about by Hanz’s appendicitis, the petitioner referred him to Dr. Henry Go, an urologist, who diagnosed the boy to have a damaged urethra. Thus, Hanz underwent cystostomy, and thereafter was operated on three times to repair his damaged urethra.

When his damaged urethra could not be fully repaired and reconstructed, Hanz’s parents brought a criminal charge against the petitioner for reckless imprudence resulting to serious physical injuries. In his defense, the petitioner denied the charge. He contended that at the time of his examination of Hanz, he had found an accumulation of pus at the vicinity of the appendix two to three inches from the penis that had required immediate surgical operation; that after performing the appendectomy, he had circumcised Hanz with his parents’ consent by using a congo instrument, thereby debunking the parents’ claim that their child had been cauterized; that he had then cleared Hanz once his fever had subsided; that he had found no complications when Hanz returned for his follow up check-up; and that the abscess formation between the base and the shaft of the penis had been brought about by Hanz’s burst appendicitis.

The RTC acquitted the petitioner of the crime charged for insufficiency of the evidence. It held that the Prosecution’s evidence did not show the required standard of care to be observed by other members of the medical profession under similar circumstances. Nonetheless, the RTC ruled that the petitioner was liable for moral damages because there was a preponderance of evidence showing that Hanz had received the injurious trauma from his circumcision by the petitioner. The Petitioner appealed his case to the CA contending that he could not be held civilly liable because there was no proof of his negligence. The CA affirmed the RTC, sustaining the award of moral damages.

ISSUE:

Whether the CA erred in affirming the petitioner’s civil liability despite his acquittal of the crime of reckless imprudence resulting in serious physical injuries.

HELD:

NO.

It is axiomatic that every person criminally liable for a felony is also civilly liable. xxx Our law recognizes two kinds of acquittal, with different effects on the civil liability of the accused. First is an acquittal on the ground that the accused is not the author of the act or omission complained of. This instance closes the door to civil liability, for a person who has been found to be not the perpetrator of any act or omission cannot and can never be held liable for such act or omission. There being no delict, civil liability ex delicto is out of the question, and the civil action, if any, which may be instituted must be based on grounds other than the delict complained of. This is the situation contemplated in Rule 111 of the Rules of Court. The second instance is an acquittal based on reasonable doubt on the guilt of the accused. In this case, even if the guilt of the accused has not been satisfactorily established, he is not exempt from civil liability which may be proved by preponderance of evidence only.

The petitioner’s contention that he could not be held civilly liable because there was no proof of his negligence deserves scant consideration. The failure of the Prosecution to prove his criminal negligence with moral certainty did not forbid a finding against him that there was preponderant evidence of his negligence to hold him civilly liable. With the RTC and the CA both finding that Hanz had sustained the injurious trauma from the hands of the petitioner on the occasion of or incidental to the circumcision, and that the trauma could have been avoided, the Court must concur with their uniform findings. In that regard, the Court need not analyze and weigh again the evidence considered in the proceedings a quo. The Court, by virtue of its not being a trier of facts, should now accord the highest respect to the factual findings of the trial court as affirmed by the CA in the absence of a clear showing by the petitioner that such findings were tainted with arbitrariness, capriciousness or palpable error.

Every person is entitled to the physical integrity of his body. Although we have long advocated the view that any physical injury, like the loss or diminution of the use of any part of one’s body, is not equatable to a pecuniary loss, and is not susceptible of exact monetary estimation, civil damages should be assessed once that integrity has been violated. The assessment is but an imperfect estimation of the true value of one’s body. The usual practice is to award moral damages for the physical injuries sustained. In Hanz’s case, the undesirable outcome of the circumcision performed by the petitioner forced the young child to endure several other procedures on his penis in order to repair his damaged urethra. Surely, his physical and moral sufferings properly warranted the amount of P50,000.00 awarded as moral damages.

Many years have gone by since Hanz suffered the injury. Interest of 6% per annum should then be imposed on the award as a sincere means of adjusting the value of the award to a level that is not only reasonable but just and commensurate. Unless we make the adjustment in the permissible manner by prescribing legal interest on the award, his sufferings would be unduly compounded. For that purpose, the reckoning of interest should be from the filing of the criminal information on April 17, 1997, the making of the judicial demand for the liability of the petitioner.

 

 

CALTEX (Philippines) Inc. v. Enrico Palomar as The Postmaster General, G.R. No. L-19650, 29 September 1966

[CASTRO, J.]

FACTS

Caltex launched its promo “Caltex Hooded Pump Contest”.

“No puzzles, no rhymes? You don’t need wrappers, labels or boxtops? You don’t have to buy anything? Simply estimate the actual number of liter the Caltex gas pump with the hood at your favorite Caltex dealer will dispense from — to —, and win valuable prizes . . . .”

In order to secure advance clearance for anticipated extensive use of mails, Caltex provided the Postmaster General a copy of the contest rules and endeavored to justify its position that the contest does not violate the anti-lottery provisions of the Postal Law.

SECTION 1954. Absolutely non-mailable matter. — x x x.

Written or printed matter x x x concerning any lottery, gift enterprise, or similar scheme depending in whole or in part upon lot or chance, or any scheme, device, or enterprise for obtaining any money or property of any kind by means of false or fraudulent pretenses, representations, or promises.

“SECTION 1982. Fraud orders.—Upon satisfactory evidence that any person or company is engaged in conducting any lottery, gift enterprise, or scheme for the distribution of money, x x x the Director of Posts may x x x return to the person, depositing the same in the mails, with the word “fraudulent” plainly written or stamped upon the outside cover thereof, x x x.

SECTION 1983. Deprivation of use of money order system and telegraphic transfer service.—The Director of Posts may, upon evidence satisfactory to him that any person or company is engaged in conducting any lottery, gift enterprise or scheme for the distribution of money, x x x forbid the issue or payment by any postmaster of any postal money order or telegraphic transfer xxx.

The Postmaster General declined to grant the requested clearance, relying on Opinion 217 issued by the Secretary of Justice. Caltex thereupon invoked judicial intervention by filing the present petition for declaratory relief against Postmaster General Enrico Palomar, praying “that judgment be rendered declaring its ‘Caltex Hooded Pump Contest’ not to be violative of the Postal Law, and ordering respondent to allow petitioner the use of the mails to bring the contest to the attention of the public”. The Postmaster General argued that there is no question of construction because he “simply applied the clear provisions of the law to a given set of facts as embodied in the rules of the contest”, hence, there is no room for declaratory relief.

 

ISSUES

(1) Do we need to apply rules of construction to determine if “Caltex Hooded Pump Contest” promo violates the Postal Law?

(2) What is the correct construction of the terms “lottery” and “gift enterprise” in relation to the Postal Law?

(3) Whether “consideration” as an element of “lottery” also applies to “gift enterprise”.

 

HELD

(1) YES.

Construction, verily, is the art or process of discovering and expounding the meaning and intention of the authors of the law with respect to its application to a given case, where that intention is rendered doubtful, amongst others, by reason of the fact that the given case is not explicitly provided for in the law . This is precisely the case here. Whether or not the scheme proposed by the appellee is within the coverage of the prohibitive provisions of the Postal Law inescapably requires an inquiry into the intended meaning of the words used therein. To our mind, this is as much a question of construction or interpretation as any other.

(2) The term “lottery” extends to all schemes for the distribution of prizes by chance, such as policy playing, gift exhibitions, prize concerts, raffles at fairs, etc., and various forms of gambling. The three essential elements of a lottery are: First, consideration; second, prize; and third, chance.Nowhere in the said rules is any requirement that any fee be paid, any merchandise be bought, any service be rendered, or any value whatsoever be given for the privilege to participate. A prospective contestant has but to go to a Caltex station, request for the entry form which is available on demand, and accomplish and submit the same for the drawing of the winner. Viewed from all angles or turned inside out, the contest fails to exhibit any discernible consideration which would brand it as a lottery. Indeed, even as we head the stern injunction, “look beyond the fair exterior, to the substance, in order to unmask the real element and pernicious tendencies which the law is seeking to prevent”, we find none. In our appraisal, the scheme does not only appear to be, but actually is, a gratuitous distribution of property by chance.

While an all-embracing concept of the term “gift enterprise” is yet to be spelled out in explicit words, there appears to be a consensus among lexicographers and standard authorities that the term is commonly applied to a sporting artifice of under which goods are sold for their market value but by way of inducement each purchaser is given a chance to win a prize. As thus conceived, the term clearly cannot embrace the scheme at bar. As already noted, there is no sale of anything to which the chance offered is attached as an inducement to the purchaser. The contest is open to all qualified contestants irrespective of whether or not they buy the appellee’s (Caltex) products.

(3) YES.

[I]n the Postal Law, the term in question is used in association with the word “lottery”. With the meaning of lottery settled, and consonant to the well-known principle of legal hermeneutics noscitur a sociis — which Opinion 217 aforesaid also relied upon although only insofar as the element of chance is concerned — it is only logical that the term under a construction should be accorded no other meaning than that which is consistent with the nature of the word associated therewith. Hence, if lottery is prohibited only if it involves a consideration, so also must the term “gift enterprise” be so construed. Significantly, there is not in the law the slightest indicium of any intent to eliminate that element of consideration from the “gift enterprise” therein included.