G.R. No. 210445. December 7, 2015.

*
 
NILO B. ROSIT, petitioner, vs. DAVAO DOCTORS
HOSPITAL and DR. ROLANDO G. GESTUVO,
respondents.

Civil Law; Torts and Damages; Medical Negligence; In Flores

v. Pineda, 571 SCRA 83 (2008), the Supreme Court (SC) explained
the concept of a medical negligence case and the elements required
for its prosecution, viz.: A medical negligence case is a type of
claim to redress a wrong committed by a medical professional, that
has caused bodily harm to or the death of a patient.—In Flores v.
Pineda, 571 SCRA 83 (2008), the Court explained the concept of a
medical negligence case and the elements required for its
prosecution, viz.: A medical negligence case is a type of claim to
redress a wrong committed by a medical professional, that has
caused bodily harm to or the death of a patient. There are four
elements involved in a medical negligence case, namely:
duty, breach, injury, and proximate causation. Duty refers
to the standard of behavior which imposes restrictions on one’s
conduct. The standard in turn refers to the amount of competence
associated with the proper discharge of

_______________

*  THIRD DIVISION.

 
 
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304 SUPREME COURT REPORTS ANNOTATED

Rosit vs. Davao Doctors Hospital

the profession. A physician is expected to use at least the

same level of care that any other reasonably competent doctor
would use under the same circumstances. Breach of duty occurs
when the physician fails to comply with these professional
standards. If injury results to the patient as a result of this
breach, the physician is answerable for negligence.
Same; Same; Same; To establish medical negligence, the
Supreme Court (SC) has held that an expert testimony is generally
required to define the standard of behavior by which the court may
determine whether the physician has properly performed the
requisite duty toward the patient.—To establish medical
negligence, this Court has held that an expert testimony is
generally required to define the standard of behavior by which the
court may determine whether the physician has properly
performed the requisite duty toward the patient. This is so
considering that the requisite degree of skill and care in the
treatment of a patient is usually a matter of expert opinion.
Same; Same; Same; Expert Witnesses; Res Ipsa Loquitur;
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.—We 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.
Same; Same; Same; 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.—Clearly, had Dr.
Gestuvo used the proper size and length of screws and placed the
same in the

 
 
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Rosit vs. Davao Doctors Hospital
 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.
Same; Same; Same; Doctrine of Informed Consent; A
physician has a duty to disclose what a reasonably prudent
physician in the medical community in the exercise of reasonable
care would disclose to his patient as to whatever grave risks of
injury might be incurred from a proposed course of treatment, so
that a patient, exercising ordinary care for his own welfare, and
faced with a choice of undergoing the proposed treatment, or
alternative treatment, or none at all, may intelligently exercise his
judgment by reasonably balancing the probable risks against the
probable benefits.—Li v. Soliman, 651 SCRA 32 (2011), made the
following disquisition on the relevant Doctrine of Informed
Consent in relation to medical negligence cases, to wit: The
doctrine of informed consent within the context of physician-
patient relationships goes far back into English common law.
x  x  x From a purely ethical norm, informed consent
evolved into a general principle of law that a physician
has a duty to disclose what a reasonably prudent
physician in the medical community in the exercise of
reasonable care would disclose to his patient as to
whatever grave risks of injury might be incurred from a
proposed course of treatment, so that a patient, exercising
ordinary care for his own welfare, and faced with a choice
of undergoing the proposed treatment, or alternative
treatment, or none at all, may intelligently exercise his
judgment by reasonably balancing the

 
 

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306 SUPREME COURT REPORTS ANNOTATED
Rosit vs. Davao Doctors Hospital

probable risks against the probable benefits. x  x  x  x

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.”
Remedial Law; Evidence; Affidavits; Hearsay Evidence; In
Dantis v. Maghinang, Jr., 695 SCRA 599 (2013), the Supreme
Court (SC) reiterated the oft-repeated rule that “an affidavit is
merely hearsay evidence where its affiant/maker did not take the
witness stand.”—In Dantis v. Maghinang, Jr., 695 SCRA 599
(2013), the Court reiterated the oft-repeated rule that “an
affidavit is merely hearsay evidence where its affiant/maker did
not take the witness stand.” Here, Dr. Pangan never took the
witness stand to affirm the contents of his affidavit. Thus, the
affidavit is inadmissible and cannot be given any weight. The CA,
therefore, erred when it considered the affidavit of Dr. Pangan,
more so for considering the same as expert testimony.
Same; Same; Same; Expert Witnesses; Even if such affidavit is
considered as admissible and the testimony of an expert witness,
the Court is not bound by such testimony.—Moreover, even if such
affidavit is considered as admissible and the testimony of an
expert witness, the Court is not bound by such testimony. As
ruled in Ilao-Quianay v. Mapile, 474 SCRA 246 (2005): Indeed,
courts are not bound by expert testimonies. They may place
whatever weight they choose upon such testimonies in accordance
with the facts of the case. The relative weight and sufficiency of
expert testimony is peculiarly within the province of the trial
court to decide, considering the ability and character of the
witness, his actions upon the witness stand, the weight and
process of the reasoning by which he has supported his opinion,
his possible bias in favor of the side for whom he testifies, and any
other matters which serve to illuminate his statements. The
opinion of an expert should be considered by the court in view of
all the facts and circumstances of the case. The problem of the
evaluation of expert testimony is left to the discretion

 
  

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of the trial court whose ruling thereupon is not reviewable in

the absence of an abuse of that discretion. Thus, 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.
Civil Law; Torts and Damages; Medical Negligence; Actual
Damages; In Mendoza v. Spouses Gomez, 726 SCRA 505 (2014),
the Supreme Court (SC) explained that a claimant is entitled to
actual damages when the damage he sustained is the natural and
probable consequences of the negligent act and he adequately
proved the amount of such damage.—The trial court properly
awarded Rosit actual damages after he was able to prove the
actual expenses that he incurred due to the negligence of Dr.
Gestuvo. In Mendoza v. Spouses Gomez, 726 SCRA 505 (2014), the
Court explained that a claimant is entitled to actual damages
when the damage he sustained is the natural and probable
consequences of the negligent act and he adequately proved the
amount of such damage.

PETITION for review on certiorari of the decision and

resolution of the Court of Appeals, Cagayan de Oro City.
The facts are stated in the opinion of the Court.
  Alabastro, Olaguer & Alabastro Law Office for
petitioner.
  Nitorreda Law Office for respondents.

VELASCO, JR., J.:

 
The Case
 
This is a petition filed under Rule 45 of the Rules of
Court assailing the Decision and Resolution dated January
22, 20131 and November 7, 2013,2 respectively, of the Court
of

_______________

1   Rollo, pp. 56-67. Penned by Associate Justice Henri Jean Paul B.

Inting and concurred in by Associate Justices Edgardo T. Lloren and
Jhosep Y. Lopez.
 2  Id., at pp. 82-85.

 
 

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Rosit vs. Davao Doctors Hospital

Appeals, Cagayan de Oro City (CA), in C.A.-G.R. CV No.

00911-MIN. The CA Decision reversed the Decision dated
September 14, 20043 of the Regional Trial Court, Branch 33
in Davao City (RTC) in Civil Case No. 27,354-99, a suit for
damages thereat which Nilo B. Rosit (Rosit) commenced
against Dr. Rolando Gestuvo (Dr. Gestuvo).
 
Factual Antecedents
 
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,4 who, on January 19, 1999, operated
on Rosit.
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.5
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. Gestuvo referred 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.6
Alleging that the dentist told him that the operation
conducted on his mandible was improperly done, Rosit
went back

_______________

3  Id., at pp. 40-54.

 4  Id., at pp. 40-41.
5  Id., at pp. 41-42.
6  Id., at pp. 42-43.

 
 
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to Dr. Gestuvo to demand a loan to defray the cost of the

additional operation as well as the expenses of the trip to
Cebu. Dr. Gestuvo gave Rosit P4,500.
Rosit went to Cebu on February 19, 1999, still suffering
from pain and could hardly open his mouth.
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 after the operation, Rosit was able
to eat and speak well and could open and close his mouth
normally.7
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. Pangan
installed. Dr. Gestuvo refused to pay.8
Thus, Rosit filed a civil case for damages and attorney’s
fees with the RTC against Dr. Gestuvo and DDH, the suit
docketed as Civil Case No. 27,354-99.
 
The Ruling of the Regional Trial Court
 
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 and ruled, thus:
 
FOR ALL THE FOREGOING, finding the plaintiff
Nilo B. Rosit to have preponderantly established his
cause of action in the complaint against defendant Dr.
Rolando G. Gestuvo only, judgment is hereby
rendered for the plaintiff and against said defendant,
ordering the
_______________

7  Id., at pp. 43-44.

8  Id., at p. 44.

 
 
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310 SUPREME COURT REPORTS ANNOTATED

Rosit vs. Davao Doctors Hospital

defendant DR. ROLANDO G. GESTUVO to pay

unto plaintiff NILO B. ROSIT the following:
a) the sum of ONE HUNDRED FORTY
THOUSAND ONE HUNDRED NINETY-NINE
PESOS and 13/100 (P140,199.13) representing
reimbursement of actual expenses incurred by
plaintiff in the operation and reoperation of his
mandible;
b) the sum of TWENTY-NINE THOUSAND AND
SIXTY-EIGHT PESOS (P29,068.00) representing
reimbursement of the filing fees and appearance fees;
c) the sum of ONE HUNDRED FIFTY
THOUSAND PESOS (P150,000.00) as and for
attorney’s fees;
d) the amount of FIFTY THOUSAND PESOS
(P50,000.00) as moral damages;
e) the amount of TEN THOUSAND PESOS
(P10,000.00) as exemplary damages; and
f) the costs of the suit.
For lack of merit, the complaint against defendant
DAVAO DOCTORS HOSPITAL and the defendants’
counterclaims are hereby ordered DISMISSED.
Cost against Dr. Rolando G. Gestuvo.
SO ORDERED.
 
In so ruling, the trial court applied the res ipsa loquitur
principle holding that “the need for expert medical
testimony may be dispensed with because the injury itself
provides the proof of negligence.”
Therefrom, both parties appealed to the CA.
 
The Ruling of the Court of Appeals
 
In its January 22, 2013 Decision, the CA modified the
appealed judgment by deleting the awards made by the
trial court, disposing as follows:
 
 
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Rosit vs. Davao Doctors Hospital

WHEREFORE, the appeal filed by Gestuvo is

GRANTED. The Decision dated September 14, 2004
of the Regional Trial Court, Branch 33, Davao City,
rendered in Civil Case No. 27,354-99 is hereby
MODIFIED. The monetary awards adjudged in favor
of Nilo B. Rosit are hereby DELETED for lack of
basis.
SO ORDERED.
 
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.
Rosit’s motion for reconsideration was denied in the
CA’s November 7, 2013 Resolution.
Hence, the instant appeal.
 
The Issue
 
The ultimate issue for our resolution is whether the
appellate court correctly absolved Dr. Gestuvo from
liability.
 
The Court’s Ruling
 
The petition is impressed with merit.  
In Flores v. Pineda,9 the Court explained the concept of
a medical negligence case and the elements required for its
prosecution, viz.:
 
A medical negligence case is a type of claim to
redress a wrong committed by a medical professional,
that has caused bodily harm to or the death of a
patient. There are four elements involved in a
medical neg-
_______________

9  G.R. No. 158996, November 14, 2008, 571 SCRA 83, 91-92.

 
 
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312 SUPREME COURT REPORTS ANNOTATED

Rosit vs. Davao Doctors Hospital

ligence case, namely: duty, breach, injury,

and proximate causation.
Duty refers to the standard of behavior which
imposes restrictions on one’s conduct. The standard in
turn refers to the amount of competence associated
with the proper discharge of the profession. A
physician is expected to use at least the same level of
care that any other reasonably competent doctor
would use under the same circumstances. Breach of
duty occurs when the physician fails to comply with
these professional standards. If injury results to the
patient as a result of this breach, the physician is
answerable for negligence. (emphasis supplied)

An expert witness is not nec-

essary as the res ipsa loqui-
tur doctrine is applicable
 
To establish medical negligence, this Court has held that
an expert testimony is generally required to define the
standard of behavior by which the court may determine
whether the physician has properly performed the requisite
duty toward the patient. This is so considering that the
requisite degree of skill and care in the treatment of a
patient is usually a matter of expert opinion.10
Solidum v. People of the Philippines11 provides an
exception. There, the Court explained that where the
application of the principle of res ipsa loquitur is
warranted, an expert testimony may be dispensed with in
medical negligence cases:

Although generally, expert medical testimony

is relied upon 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
loquitur is availed by

_______________

10  Id.
11  G.R. No. 192123, March 10, 2014, 718 SCRA 263.

 
 
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Rosit vs. Davao Doctors Hospital

the plaintiff, the need for expert medical

testimony is dispensed with 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. x x x
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 patient’s jaw was under anesthetic for the
removal of his tonsils, and loss of an eye while the
patient plaintiff was under the influence of
anesthetic, during or following an operation for
appendicitis, among others.
 
We 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.12
 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. Fur-

_______________

12  Id.

 
 

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Rosit vs. Davao Doctors Hospital

ther, 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.13
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.14 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.15 Yet, he did not avail
of such items and

_______________

13  Rollo, p. 64.
14  Id., at p. 42.
15  Id.

 
 

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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.
The CA finds that Rosit is guilty of contributory
negligence in having Dr. Pangan operate on him during the
healing period of his fractured mandible. What the CA
overlooked is that it was Dr. Gestuvo himself who referred
Rosit to Dr. Pangan. Nevertheless, Dr. Pangan’s
participation could not have contributed to the reality that
the screw that Dr. Gestuvo installed hit Rosit’s molar.  
 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.
 
 
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316 SUPREME COURT REPORTS ANNOTATED

Rosit vs. Davao Doctors Hospital

Petitioner was deprived of the opportunity to make

an “informed consent”
What is more damning for Dr. Gestuvo is his failure to
inform Rosit that such smaller screws were available in
Manila, albeit at a higher price.16 As testified to by Dr.
Gestuvo himself:
Court
Alright. This titanium materials according to you were already available in
the Philippines since the time of Rosit’s accident?
Witness
Yes, your Honor.
x x x x
Court
Did you inform Rosit about the existence of titanium screws and plates
which according to you is the screws and plates of choice?
Witness
No, your Honor.
x x x x
Witness
The reason I did not inform him anymore Judge because what I thought he
was already hard up with the down payment. And if I will further
introduce him this screws, the more he will not be able to af-ford the
operation.
x x x x
Court
This titanium screws and plates were available then it is up to Rosit to
decide whether to use it or not because after all the material you are
using is paid by the patient himself, is it not?
_______________

16  TSN, July 4, 2002, pp. 40-42.

 
 
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Rosit vs. Davao Doctors Hospital

Witness
Yes, that is true.

 
Li v. Soliman17 made the following disquisition on the
relevant Doctrine of Informed Consent in relation to
medical negligence cases, to wit:
 
The doctrine of informed consent within the
context of physician-patient relationships goes far
back into English common law. x x x From a purely
ethical norm, informed consent evolved into a
general principle of law that a physician has a
duty to disclose what a reasonably prudent
physician in the medical community in the
exercise of reasonable care would disclose to
his patient as to whatever grave risks of injury
might be incurred from a proposed course of
treatment, so that a patient, exercising ordinary
care for his own welfare, and faced with a
choice of undergoing the proposed treatment,
or alternative treatment, or none at all, may
intelligently exercise his judgment by
reasonably balancing the probable risks against
the probable benefits.
x x x x
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.” (emphasis
supplied)

_______________

17  G.R. No. 165279, June 7, 2011, 651 SCRA 32, 56-59.

 
 
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318 SUPREME COURT REPORTS ANNOTATED

Rosit vs. Davao Doctors Hospital

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, Rosit would 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 appellate court’s Decision absolving Dr. Gestuvo of
negligence was also anchored on a letter signed by Dr.
Pangan
 
 

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who stated the opinion that Dr. Gestuvo did not commit
gross negligence in his emergency management of Mr.
Rosit’s fractured mandible.18 Clearly, the appellate court
overlooked the elementary principle against hearsay
evidence.  
In Dantis v. Maghinang, Jr.,19 the Court reiterated the
oft-repeated rule that “an affidavit is merely hearsay
evidence where its affiant/maker did not take the witness
stand.” Here, Dr. Pangan never took the witness stand to
affirm the contents of his affidavit. Thus, the affidavit is
inadmissible and cannot be given any weight. The CA,
therefore, erred when it considered the affidavit of Dr.
Pangan, more so for considering the same as expert
testimony.
Moreover, even if such affidavit is considered as
admissible and the testimony of an expert witness, the
Court is not bound by such testimony. As ruled in Ilao-
Quianay v. Mapile:20
 
Indeed, courts are not bound by expert testimonies.
They may place whatever weight they choose upon
such testimonies in accordance with the facts of the
case. The relative weight and sufficiency of expert
testimony is peculiarly within the province of the trial
court to decide, considering the ability and character
of the witness, his actions upon the witness stand, the
weight and process of the reasoning by which he has
supported his opinion, his possible bias in favor of the
side for whom he testifies, and any other matters
which serve to illuminate his statements. The opinion
of an expert should be considered by the court in view
 of all the facts and circumstances of the case. The
problem of the evaluation of expert testimony is left to
the discretion of the trial court

_______________

18  Id., at p. 63.
19   G.R. No. 191696, April 10, 2013, 695 SCRA 599, 610; see also
Unchuan v. Lozada, G.R. No. 172671, April 16, 2009, 585 SCRA 421, 435;
People v. Quidato, Jr., G.R. No. 117401, October 1, 1998, 297 SCRA 1, 8.
See also People v. Manhuyod, G.R. No. 124676, May 20, 1998, 290 SCRA
257, 270-271.  
20  G.R. No. 154087, October 25, 2005, 474 SCRA 246, 255.

 
 
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320 SUPREME COURT REPORTS ANNOTATED

Rosit vs. Davao Doctors Hospital

whose ruling thereupon is not reviewable in the

absence of an abuse of that discretion.
 
Thus, 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.
As discussed above, Dr. Gestuvo’s negligence is clearly
demonstrable by the doctrines of res ipsa loquitur and
informed consent.

Damages
 
For the foregoing, the trial court properly awarded Rosit
actual damages after he was able to prove the actual
expenses that he incurred due to the negligence of Dr.
Gestuvo. In Mendoza v. Spouses Gomez,21 the Court
explained that a claimant is entitled to actual damages
when the damage he sustained is the natural and probable
consequences of the negligent act and he adequately proved
the amount of such damage.  
Rosit is also entitled to moral damages as provided
under Article 2217 of the Civil Code,22 given the
unnecessary physical suffering he endured as a
consequence of defendant’s negligence. 
 To recall, from the time he was negligently operated
upon by Dr. Gestuvo until three (3) days from the
corrective surgery performed by Dr. Pangan, or for a period
of one (1)

_______________

21  G.R. No. 160110, June 18, 2014, 726 SCRA 505, 521-522.
22  Article 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 defendant’s wrongful act for omission.
(emphasis supplied)

 
 

321

VOL. 776, DECEMBER 7, 2015 321

Rosit vs. Davao Doctors Hospital

month, Rosit suffered pain and could not properly use

his jaw to speak or eat.
The trial court also properly awarded attorney’s fees and
costs of suit under Article 2208 of the Civil Code,23 since
Rosit was compelled to litigate due to Dr. Gestuvo’s refusal
to pay for Rosit’s damages.
As to the award of exemplary damages, the same too has
to be affirmed. In Mendoza,24 the Court enumerated the
requisites for the award of exemplary damages:
 
Our jurisprudence sets certain conditions when
exemplary damages may be awarded: First, they may
be imposed by way of example or correction only in
addition, among others, to compensatory damages,
and cannot be recovered as a matter of right, their
determination depending upon the amount of
compensatory damages that may be awarded to the
claimant. Second, the claimant must first establish
his right to moral, temperate, liquidated or
compensatory damages. Third, the wrongful act must
be accompanied by bad faith, and the award would be
allowed only if the guilty party acted in a wanton,
fraudulent, reckless, oppressive or malevolent
manner.
 
 The three (3) requisites are met. Dr. Gestuvo’s actions
are clearly negligent. Likewise, Dr. Gestuvo acted in bad
faith or in a wanton, fraudulent, reckless, oppressive
manner when he was in breach of the doctrine of informed
consent. Dr. Gestuvo had the duty to fully explain to Rosit
the risks of using large screws for the operation. More
importantly, he concealed the correct medical procedure of
using the smaller titanium

_______________

23   Art. 2208. In the absence of stipulation, attorney’s fees and

expenses of litigation, other than judicial costs, cannot be recovered,
except: x x x x
(2) When the defendant’s act or omission has compelled the plaintiff
to litigate with third persons or to incur expenses to protect his interest.
24  Mendoza v. Gomez, supra note 21 at p. 525.

 
 
322

322 SUPREME COURT REPORTS ANNOTATED

Rosit vs. Davao Doctors Hospital

screws mainly because of his erroneous belief that Rosit

cannot afford to buy the expensive titanium screws. Such
concealment is clearly a valid basis for an award of
exemplary damages.
WHEREFORE, the instant petition is GRANTED. The
CA Decision dated January 22, 2013 and Resolution dated
November 7, 2013 in C.A.-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.
SO ORDERED.

Peralta, Villarama, Jr., Reyes and Jardeleza, JJ.,

concur.

Petition granted, judgment and resolution reversed and

set aside.

Notes.—Medical malpractice or, more appropriately,

medical negligence, is that type of claim which a victim has
available to him or her to redress a wrong committed by a
 medical professional which has caused bodily harm. (Dela
Torre vs. Imbuido, 736 SCRA 655 [2014])
It is settled that a physician’s duty to his patient relates
to his exercise of the degree of care, skill and diligence
which physicians in the same general neighborhood, and in
the same general line of practice, ordinarily possess and
exercise in like cases. (Id.)
 
 
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