NILO B. ROSIT vs DAVAO DOCTORS HOSPITAL GR No. 210445, December 7, 2015

Facts:

On January 15, 1999, Rosit figured in a motorcycle accident. The X-ray soon taken the next day at the Davao Doctors Hospital (DDH) showed that he fractured his jaw. Rosit was then referred to Dr.Gestuvo, a specialist in mandibular injuries. During the operation, Dr.Gestuvo used a metal plate fastened to the jaw with metal screws to immobilize the mandible. As the operation required the smallest screws available, Dr.Gestuvo cut the screws on hand to make them smaller. Dr.Gestuvo knew that there were smaller titanium screws available in Manila, but did not so inform Rosit supposing that the latter would not be able to afford the same. Following the procedure, Rosit could not properly open and close his mouth and was in pain. X-rays done on Rosit two (2) days after the operation showed that the fracture in his jaw was aligned but the screws used on him touched his molar. Given the X-ray results, Dr.Gestuvoreferred Rosit to a dentist. The dentist who checked Rosit, Dr.Pangan, opined that another operation is necessary and that it is to be performed in Cebu. In Cebu, Dr.Pangan removed the plate and screws thus installed by Dr.Gestuvo and replaced them with smaller titanium plate and screws. Dr.Pangan also extracted Rosit’s molar that was hit with a screw and some bone fragments. Three days (3) after the operation, Rosit was able to eat and speak well and could open and close his mouth normally. On his return to Davao, Rosit demanded that Dr.Gestuvo reimburse him for the cost of the operation and the expenses he incurred in Cebu amounting to P140,000, as well as for the P50,000 that Rosit would have to spend for the removal of the plate and screws that Dr.Panganinstalled. Dr.Gestuvo refused to pay. Thus, Rosit filed a civil case for damages and attorney’s fees with the RTC against Dr.Gestuvo and DDH. The RTC freed DDH from liability on the ground that it exercised the proper diligence in the selection and supervision of Dr.Gestuvo, but adjudged Dr.Gestuvo negligent. Dr.Gestuvo was order to pay Rosit the following:
• P140,199.13 representing reimbursement of actual expenses incurred by plaintiff in the operation and re-operation of his mandible;
• P29,068.00 representing reimbursement of the filing fees and appearance fees;
• P150,000.00 as and for attorney’s fees;
• P50,000.00 as moral damages;
• P10,000.00 as exemplary damages; and
• the costs of the suit.
Unlike the RTC, the CA ruled that the res ipsa loquitur principle is not applicable and that the testimony of an expert witness is necessary for a finding of negligence. The appellate court also gave credence to Dr.Pangan’s letter stating the opinion that Dr.Gestuvo did not commit gross negligence in his emergency management of Rosit’s fractured mandible.

Issue:

Whether the appellate court correctly absolved Dr.Gestuvo from liability.

Held:

No.
The petition is impressed with merit.
The Court have further held that resort to the doctrine of res ipsa loquitur as an exception to the requirement of an expert testimony in medical negligence cases may be availed of if the following essential requisites are satisfied: (1) the accident was of a kind that does not… ordinarily occur unless someone is negligent; (2) the instrumentality or agency that caused the injury was under the exclusive control of the person charged; and (3) the injury suffered must not have been due to any voluntary action or contribution of the person injured.
In its assailed Decision, the CA refused to acknowledge the application of the res ipsa loquitur doctrine on the ground that the foregoing elements are absent. In particular, the appellate court is of the position that post-operative pain is not unusual after surgery and that there is no proof that the molar,Dr.Pangan removed, is the same molar that was hit by the screw installed by Dr.Gestuvo in Rosit’s mandible. Further, a second operation was conducted within the 5-week usual healing period of the mandibular fracture so that the second element cannot be considered present. Lastly, the CA pointed out that the X-ray examination conducted on Rosit prior to his first surgery suggests that he had “chronic inflammatory lung disease compatible,” implying that the injury may have been due to Rosit’s peculiar condition, thus effectively negating the presence of the third element.
After careful consideration, this Court cannot accede to the CA’s findings as it is at once apparent from the records that the essential requisites for the application of the doctrine of res ipsa loquitur are present.
The first element was sufficiently established when Rosit proved that one of the screws installed by Dr.Gestuvo struck his molar. It was for this issue that Dr.Gestuvo himself referred Rosit to Dr.Pangan. In fact, the affidavit of Dr.Pangan presented by Dr.Gestuvo himself before the trial court narrated that the same molar struck with the screw installed by Dr.Gestuvo was examined and eventually operated on by Dr.Pangan. Dr.Gestuvo cannot now go back and say that Dr.Pangan treated a molar different from that which was affected by the first operation.
Clearly, had Dr.Gestuvo used the proper size and length of screws and placed the same in the proper locations, these would not have struck Rosit’s teeth causing him pain and requiring him to undergo a corrective surgery.
Dr.Gestuvo knew that the screws he used on Rosit were too large as, in fact, he cut the same with a saw. He also stated during trial that common sense dictated that the smallest screws available should be used. More importantly, he also knew that these screws were available locally at the time of the operation. Yet, he did not avail of such items and went ahead with the larger screws and merely sawed them off. Even assuming that the screws were already at the proper length after Dr.Gestuvo cut the same, it is apparent that he negligently placed one of the screws in the wrong area thereby striking one of Rosit’s teeth.
In any event, whether the screw hit Rosit’s molar because it was too long or improperly placed, both facts are the product of Dr.Gestuvo’s negligence. An average man of common intelligence would know that striking a tooth with any foreign object much less a screw would cause severe pain. Thus, the first essential requisite is present in this case.
Anent the second element for the res ipsa loquitur doctrine application, it is sufficient that the operation which resulted in the screw hitting Rosit’s molar was, indeed, performed by Dr.Gestuvo. No other doctor caused such fact.
Lastly, the third element that the injury suffered must not have been due to any voluntary action or contribution of the person injured was satisfied in this case. It was not shown that Rosit’s lung disease could have contributed to the pain. What is clear is that he suffered because one of the screws that Dr.Gestuvo installed hit Rosit’s molar.
Clearly then, the res ipsa loquitur doctrine finds application in the instant case and no expert testimony is required to establish the negligence of defendant Dr.Gestuvo.
Petitioner was deprived of the opportunity to make an “informed consent”
There are four essential elements a plaintiff must prove in a malpractice action based upon the doctrine of informed consent: “(1) the physician had a duty to disclose material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have consented to; and (4) plaintiff was injured by the proposed treatment.” The gravamen in an informed consent case requires the plaintiff to “point to significant undisclosed information relating to the treatment which would have altered her decision to undergo it.”
The four adverted essential elements above are present here.
First, Dr.Gestuvo clearly had the duty of disclosing to Rosit the risks of using the larger screws for the operation. This was his obligation as the physician undertaking the operation.

Second, Dr.Gestuvo failed to disclose these risks to Rosit, deciding by himself that Rosit could not afford to get the more expensive titanium screws.
Third, had Rosit been informed that there was a risk that the larger screws are not appropriate for the operation and that an additional operation replacing the screws might be required to replace the same, as what happened in this case, Rositwould not have agreed to the operation. It bears pointing out that Rosit was, in fact, able to afford the use of the smaller titanium screws that were later used by Dr.Pangan to replace the screws that were used by Dr.Gestuvo.
Fourth, as a result of using the larger screws, Rosit experienced pain and could not heal properly because one of the screws hit his molar. This was evident from the fact that just three (3) days after Dr.Pangan repeated the operation conducted by Dr.Gestuvo, Rosit was pain-free and could already speak. This is compared to the one (1) month that Rosit suffered pain and could not use his mouth after the operation conducted by Dr.Gestuvo until the operation of Dr.Pangan.
Without a doubt, Dr.Gestuvo is guilty of withholding material information which would have been vital in the decision of Rosit in going through with the operation with the materials at hand. Thus, Dr.Gestuvo is also guilty of negligence on this ground.
Dr.Pangan’s Affidavit is not admissible. The belief of Dr.Pangan whether Dr.Gestuvo is guilty of negligence or not will not bind the Court. The Court must weigh and examine such testimony and decide for itself the merits thereof.
WHEREFORE, the instant petition is GRANTED. The CA Decision dated January 22, 2013 and Resolution dated November 7, 2013 in CA-G.R. CV No. 00911-MIN are hereby REVERSED and SET ASIDE. Further, the Decision dated September 14, 2004 of the Regional Trial Court, Branch 33 in Davao City in Civil Case No. 27,345-99 is hereby REINSTATED and AFFIRMED.

Credit:

Johaimen Bato