Professional Services, Inc. vs.

Agana
G.R. No.126297, G.R. No. 126467, G.R. No. 127590   
January 31, 2007

Facts:

Natividad Agana was admitted at the Medical City General Hospital because of difficulty of
bowel movement and bloody anal discharge. Dr. Ampil diagnosed her to be suffering from
"cancer of the sigmoid." Thus, Dr. Ampil, assisted by the medical staff, performed surgery on
her. During the surgery, he found that the malignancy had spread to her left ovary,
necessitating the removal of certain portions of it. Thus, Dr. Ampil obtained the consent of
Natividad’s husband to permit Dr. Juan Fuentes to perform hysterectomy. Dr. Fuentes
performed and completed the hysterectomy. Afterwards, Dr. Ampil took over, completed the
operation and closed the incision. However, in the Record of Operation, the attending nurses
entered these remarks: “sponge count lacking 2; announced to surgeon searched done but to
no avail continue for closure.” Natividad complained of 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 surgical operation. Natividad went to the United States to seek further
treatment. After four months of consultations and laboratory examinations, Natividad was told
that she was free of cancer. Hence, she was advised to return to the Philippines. Natividad
flew back to the Philippines, still suffering from pains. Two weeks after, her daughter found a
piece of gauze protruding from her vagina. Dr. Ampil was informed. He proceeded to
Natividad’s house where he extracted a piece of gauze. Dr. Ampil then assured Natividad that
the pains would soon vanish. Despite Dr. Ampil’s assurance, the pains intensified, prompting
Natividad to seek treatment. Dr. Ramon Gutierrez detected the presence of a foreign object in
her vagina -- a foul-smelling gauze. The gauze had badly infected her vaginal vault. A recto-
vaginal fistula had formed which forced stool to excrete through the vagina. Another surgical
operation was needed. Natividad and her husband filed with the Regional Trial Court a
complaint for damages against PSI (owner of Medical City), Dr. Ampil and Dr. Fuentes.
Pending the outcome of the above case, Natividad died. She was substituted by her children
(the Aganas). The trial court rendered judgment in favor of spouses Agana finding PSI, Dr.
Ampil and Dr. Fuentes jointly and severally liable. On appeal, the Court of Appeals affirmed
the assailed judgment with modification that the complaint against Dr. Fuentes was
dismissed.

PSI alleged that Dr. Ampil is not its employee but a mere consultant or independent
contractor. As such, he alone should answer for his negligence and PSI should not be held
solidarily liable with Dr. Ampil.

The Aganas alleged that Dr. Fuentes is guilty of negligence or medical malpractice, invoking
the doctrine of res ipsa loquitur. They contend that the pieces of gauze are prima facie proofs
that the operating surgeons have been negligent.

Dr. Ampil asserts that he is not liable for negligence and malpractice sans evidence that he
left the two pieces of gauze in Natividad’s vagina. He pointed to other probable causes, such
as: (1) it was Dr. Fuentes who used gauzes in performing the hysterectomy; (2) the attending
nurses’ failure to properly count the gauzes used during surgery; and (3) the medical
intervention of the American doctors who examined Natividad in the United States of America.

Issues:
1. Whether or not Dr. Ampil is liable for negligence and malpractice.
2. Whether or not Dr. Fuentes is liable for negligence and malpractice.
3. Whether or not PSI may be held solidarily liable for the negligence of Dr. Ampil.

Ruling:

1. Yes. He is liable.

He did not present any evidence to prove that the American doctors were the ones who put or
left the gauzes in Natividad’s body. Neither did he submit evidence to rebut the correctness of
the record of operation, particularly the number of gauzes used. As to the alleged negligence
of Dr. Fuentes, we are mindful that Dr. Ampil examined Dr. Fuentes’ work and found it in
order. All the major circumstances taken together directly point to Dr. Ampil as the negligent
party. Immediately after the operation, the nurses who assisted in the surgery noted in their
report that the ‘sponge count was lacking 2’; that such anomaly was ‘announced to surgeon’
and that a ‘search was done but to no avail’ prompting Dr. Ampil to ‘continue for closure’.
After the operation, two gauzes were extracted from the same spot of the body of Mrs. Agana
where the surgery was performed.

An operation requiring the placing of sponges in the incision is not complete until the sponges
are properly removed, and it is settled that the leaving of sponges or other foreign substances
in the wound after the incision has been closed is at least prima facie negligence by the
operating surgeon. Of course, there are times when danger to a patient’s life precludes a
surgeon from further searching missing sponges or foreign objects left in the body. But this
does not leave him free from any obligation. Even if it has been shown that a surgeon was
required by the urgent necessities of the case to leave a sponge in his patient’s abdomen,
because of the dangers attendant upon delay, still, it is his legal duty to so inform his patient
within a reasonable time thereafter by advising her of what he had been compelled to do.
Here, Dr. Ampil did not inform Natividad about the missing two pieces of gauze. Worse, he
even misled her that the pain she was experiencing was the ordinary consequence of her
operation. Had he been more candid, Natividad could have taken the immediate and
appropriate medical remedy to remove the gauzes from her body. To our mind, what was
initially an act of negligence by Dr. Ampil has ripened into a deliberate wrongful act of
deceiving his patient. This is a clear case of medical malpractice or more appropriately,
medical negligence.

2. No. He is not liable.

Res ipsa loquitur is the rule that the fact of the occurrence of an injury, taken with the
surrounding circumstances, may permit an inference or raise a presumption of negligence, or
make out a plaintiff’s prima facie case, and present a question of fact for defendant to meet
with an explanation. 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. 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. 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 or the "Captain of the Ship." 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.

Res ipsa loquitur is not a rule of substantive law. The mere invocation and application of the
doctrine does not dispense with the requirement of proof of negligence. Here, the negligence
was proven to have been committed by Dr. Ampil and not by Dr. Fuentes.
3. Yes. PSI may be held solidarily liable for the negligence of Dr. Ampil.

Hospitals exercise significant control in the hiring and firing of consultants and in the conduct
of their work within the hospital premises. For purposes of apportioning responsibility in
medical negligence cases, an employer-employee relationship in effect exists between
hospitals and their attending and visiting physicians.

PSI’s liability is also anchored upon the agency principle of apparent authority or agency by
estoppel. 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 on the actions of a principal or an employer in somehow misleading the
public into believing that the relationship or the authority exists. The concept is essentially one
of estoppel. PSI publicly displays in the Medical City lobby the names and specializations of
their physicians. Hence, PSI 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.

Further, PSI as owner, operator and manager of Medical City Hospital did not perform the
necessary supervision nor exercise diligent efforts in the supervision of Drs. Ampil and
Fuentes and its nursing staff, resident doctors, and medical interns who assisted Drs. Ampil
and Fuentes in the performance of their duties as surgeons. Premised on the doctrine of
corporate negligence and responsibility, PSI is directly liable for such breach of duty. PSI 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.

PSI’s liability is traceable to its failure to conduct an investigation of the matter reported. Such
failure established PSI’s part in the dark conspiracy of silence and concealment about the
gauzes. Ethical considerations, if not also legal, dictated the holding of an immediate inquiry
into the events.  A corporation is bound by the knowledge acquired by or notice given to its
agents or officers within the scope of their authority and in reference to a matter to which their
authority extends. This means that the knowledge of any of the staff of Medical City Hospital
constitutes knowledge of PSI. Now, the failure of PSI, despite the attending nurses’ report, to
investigate and inform Natividad regarding the missing gauzes amounts to callous
negligence. Not only did PSI breach its duties to oversee or supervise all persons who
practice medicine within its walls, it also failed to take an active step in fixing the negligence
committed. This renders PSI, not only vicariously liable for the negligence of Dr. Ampil under
Article 2180 of the Civil Code, but also directly liable for its own negligence under Article
2176. PSI, apart from a general denial of its responsibility, failed to adduce evidence showing
that it exercised the diligence of a good father of a family in the accreditation and supervision
of the latter. In neglecting to offer such proof, PSI failed to discharge its burden under the last
paragraph of Article 2180, and, therefore, must be adjudged solidarily liable with Dr. Ampil.
Moreover, PSI is also directly liable to the Aganas.