2011 Li - v. - Spouses - Soliman20170607 911 1vtb7vw PDF
2011 Li - v. - Spouses - Soliman20170607 911 1vtb7vw PDF
2011 Li - v. - Spouses - Soliman20170607 911 1vtb7vw PDF
DECISION
VILLARAMA , JR. , J : p
Challenged in this petition for review on certiorari is the Decision 1 dated June 15,
2004 as well as the Resolution 2 dated September 1, 2004 of the Court of Appeals (CA)
in CA-G.R. CV No. 58013 which modi ed the Decision 3 dated September 5, 1997 of the
Regional Trial Court of Legazpi City, Branch 8 in Civil Case No. 8904.
The factual antecedents:
On July 7, 1993, respondents' 11 year old daughter, Angelica Soliman, underwent
a biopsy of the mass located in her lower extremity at the St. Luke's Medical Center
(SLMC). Results showed that Angelica was suffering from osteosarcoma, osteoblastic
type, 4 a high-grade (highly malignant) cancer of the bone which usually a icts teenage
children. Following this diagnosis and as primary intervention, Angelica's right leg was
amputated by Dr. Jaime Tamayo in order to remove the tumor. As adjuvant treatment
to eliminate any remaining cancer cells, and hence minimize the chances of recurrence
and prevent the disease from spreading to other parts of the patient's body
(metastasis), chemotherapy was suggested by Dr. Tamayo. Dr. Tamayo referred
Angelica to another doctor at SLMC, herein petitioner Dr. Rubi Li, a medical oncologist.
On August 18, 1993, Angelica was admitted to SLMC. However, she died on
September 1, 1993, just eleven (11) days after the (intravenous) administration of the
rst cycle of the chemotherapy regimen. Because SLMC refused to release a death
certi cate without full payment of their hospital bill, respondents brought the cadaver
of Angelica to the Philippine National Police (PNP) Crime Laboratory at Camp Crame
for post-mortem examination. The Medico-Legal Report issued by said institution
indicated the cause of death as "Hypovolemic shock secondary to multiple organ
hemorrhages and Disseminated Intravascular Coagulation." 5
On the other hand, the Certi cate of Death 6 issued by SLMC stated the cause of
death as follows:
On February 21, 1994, respondents led a damage suit 7 against petitioner, Dr.
Leo Marbella, Mr. Jose Ledesma, a certain Dr. Arriete and SLMC. Respondents charged
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them with negligence and disregard of Angelica's safety, health and welfare by their
careless administration of the chemotherapy drugs, their failure to observe the
essential precautions in detecting early the symptoms of fatal blood platelet decrease
and stopping early on the chemotherapy, which bleeding led to hypovolemic shock that
caused Angelica's untimely demise. Further, it was speci cally averred that petitioner
assured the respondents that Angelica would recover in view of 95% chance of healing
with chemotherapy ("Magiging normal na ang anak nyo basta ma-chemo. 95% ang
healing")and when asked regarding the side effects, petitioner mentioned only slight
vomiting, hair loss and weakness ("Magsusuka ng kaunti. Malulugas ang buhok.
Manghihina"). Respondents thus claimed that they would not have given their consent
to chemotherapy had petitioner not falsely assured them of its side effects.
In her answer, 8 petitioner denied having been negligent in administering the chemotherapy
drugs to Angelica and asserted that she had fully explained to respondents how the
chemotherapy will affect not only the cancer cells but also the patient's normal body parts,
including the lowering of white and red blood cells and platelets. She claimed that what
happened to Angelica can be attributed to malignant tumor cells possibly left behind after
surgery. Few as they may be, these have the capacity to compete for nutrients such that
the body becomes so weak structurally (cachexia) and functionally in the form of lower
resistance of the body to combat infection. Such infection becomes uncontrollable and
triggers a chain of events (sepsis or septicemia) that may lead to bleeding in the form of
Disseminated Intravascular Coagulation (DIC), as what the autopsy report showed in the
case of Angelica.
Since the medical records of Angelica were not produced in court, the trial and appellate
courts had to rely on testimonial evidence, principally the declarations of petitioner and
respondents themselves. The following chronology of events was gathered:
On July 23, 1993, petitioner saw the respondents at the hospital after Angelica's surgery
and discussed with them Angelica's condition. Petitioner told respondents that Angelica
should be given two to three weeks to recover from the operation before starting
chemotherapy. Respondents were apprehensive due to nancial constraints as Reynaldo
earns only from P70,000.00 to P150,000.00 a year from his jewelry and watch repairing
business. 9 Petitioner, however, assured them not to worry about her professional fee and
told them to just save up for the medicines to be used.
Petitioner claimed that she explained to respondents that even when a tumor is removed,
there are still small lesions undetectable to the naked eye, and that adjuvant chemotherapy
is needed to clean out the small lesions in order to lessen the chance of the cancer to
recur. She did not give the respondents any assurance that chemotherapy will cure
Angelica's cancer. During these consultations with respondents, she explained the
following side effects of chemotherapy treatment to respondents: (1) falling hair; (2)
nausea and vomiting; (3) loss of appetite; (4) low count of white blood cells [WBC], red
blood cells [RBC] and platelets; (5) possible sterility due to the effects on Angelica's ovary;
(6) damage to the heart and kidneys; and (7) darkening of the skin especially when
exposed to sunlight. She actually talked with respondents four times, once at the hospital
after the surgery, twice at her clinic and the fourth time when Angelica's mother called her
through long distance. 1 0 This was disputed by respondents who countered that petitioner
gave them assurance that there is 95% chance of healing for Angelica if she undergoes
chemotherapy and that the only side effects were nausea, vomiting and hair loss. 1 1 Those
were the only side-effects of chemotherapy treatment mentioned by petitioner. 1 2
Petitioner filed a motion for partial reconsideration which the appellate court denied.
Hence, this petition.
Petitioner assails the CA in nding her guilty of negligence in not explaining to the
respondents all the possible side effects of the chemotherapy on their child, and in holding
her liable for actual, moral and exemplary damages and attorney's fees. Petitioner
emphasized that she was not negligent in the pre-chemotherapy procedures and in the
administration of chemotherapy treatment to Angelica.
On her supposed non-disclosure of all possible side effects of chemotherapy, including
death, petitioner argues that it was foolhardy to imagine her to be all-knowing/omnipotent.
While the theoretical side effects of chemotherapy were explained by her to the
respondents, as these should be known to a competent doctor, petitioner cannot possibly
predict how a particular patient's genetic make-up, state of mind, general health and body
constitution would respond to the treatment. These are obviously dependent on too many
known, unknown and immeasurable variables, thus requiring that Angelica be, as she was,
constantly and closely monitored during the treatment. Petitioner asserts that she did
everything within her professional competence to attend to the medical needs of Angelica.
Citing numerous trainings, distinctions and achievements in her eld and her current
position as co-director for clinical affairs of the Medical Oncology, Department of
Medicine of SLMC, petitioner contends that in the absence of any clear showing or proof,
she cannot be charged with negligence in not informing the respondents all the side
effects of chemotherapy or in the pre-treatment procedures done on Angelica.
As to the cause of death, petitioner insists that Angelica did not die of platelet depletion
but of sepsis which is a complication of the cancer itself. Sepsis itself leads to bleeding
and death. She explains that the response rate to chemotherapy of patients with
osteosarcoma is high, so much so that survival rate is favorable to the patient. Petitioner
then points to some probable consequences if Angelica had not undergone chemotherapy.
Thus, without chemotherapy, other medicines and supportive treatment, the patient might
have died the next day because of massive infection, or the cancer cells might have spread
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to the brain and brought the patient into a coma, or into the lungs that the patient could
have been hooked to a respirator, or into her kidneys that she would have to undergo
dialysis. Indeed, respondents could have spent as much because of these complications.
The patient would have been deprived of the chance to survive the ailment, of any hope for
life and her "quality of life" surely compromised. Since she had not been shown to be at
fault, petitioner maintains that the CA erred in holding her liable for the damages suffered
by the respondents. 5 0
The issue to be resolved is whether the petitioner can be held liable for failure to fully
disclose serious side effects to the parents of the child patient who died while undergoing
chemotherapy, despite the absence of nding that petitioner was negligent in
administering the said treatment.
The petition is meritorious.
The type of lawsuit which has been called 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. In
order to successfully pursue such a claim, a patient must prove that a health care provider,
in most cases a physician, either failed to do something which a reasonably prudent health
care provider would have done, or that he or she did something that a reasonably prudent
provider would not have done; and that that failure or action caused injury to the patient. 5 1
This Court has recognized that medical negligence cases are best proved by opinions of
expert witnesses belonging in the same general neighborhood and in the same general line
of practice as defendant physician or surgeon. The deference of courts to the expert
opinion of quali ed physicians stems from the former's realization that the latter possess
unusual technical skills which laymen in most instances are incapable of intelligently
evaluating, hence the indispensability of expert testimonies. 5 2
In this case, both the trial and appellate courts concurred in nding that the alleged
negligence of petitioner in the administration of chemotherapy drugs to respondents' child
was not proven considering that Drs. Vergara and Balmaceda, not being oncologists or
cancer specialists, were not quali ed to give expert opinion as to whether petitioner's lack
of skill, knowledge and professional competence in failing to observe the standard of care
in her line of practice was the proximate cause of the patient's death. Furthermore,
respondents' case was not at all helped by the non-production of medical records by the
hospital (only the biopsy result and medical bills were submitted to the court).
Nevertheless, the CA found petitioner liable for her failure to inform the respondents on all
possible side effects of chemotherapy before securing their consent to the said
treatment.
The doctrine of informed consent within the context of physician-patient relationships
goes far back into English common law. As early as 1767, doctors were charged with the
tort of "battery" (i.e., an unauthorized physical contact with a patient) if they had not gained
the consent of their patients prior to performing a surgery or procedure. In the United
States, the seminal case was Schoendorff v. Society of New York Hospital 5 3 which
involved unwanted treatment performed by a doctor. Justice Benjamin Cardozo's oft-
quoted opinion upheld the basic right of a patient to give consent to any medical
procedure or treatment: "Every human being of adult years and sound mind has a right to
determine what shall be done with his own body; and a surgeon who performs an
operation without his patient's consent, commits an assault, for which he is liable in
damages." 5 4 From a purely ethical norm, informed consent evolved into a general principle
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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. 5 5
Subsequently, in Canterbury v. Spence 5 6 the court observed that the duty to disclose
should not be limited to medical usage as to arrogate the decision on revelation to the
physician alone. Thus, respect for the patient's right of self-determination on particular
therapy demands a standard set by law for physicians rather than one which physicians
may or may not impose upon themselves. 5 7 The scope of disclosure is premised on the
fact that patients ordinarily are persons unlearned in the medical sciences. Pro ciency in
diagnosis and therapy is not the full measure of a physician's responsibility. It is also his
duty to warn of the dangers lurking in the proposed treatment and to impart information
which the patient has every right to expect. Indeed, the patient's reliance upon the
physician is a trust of the kind which traditionally has exacted obligations beyond those
associated with armslength transactions. 5 8 The physician is not expected to give the
patient a short medical education, the disclosure rule only requires of him a reasonable
explanation, which means generally informing the patient in nontechnical terms as to what
is at stake; the therapy alternatives open to him, the goals expectably to be achieved, and
the risks that may ensue from particular treatment or no treatment. 5 9 As to the issue of
demonstrating what risks are considered material necessitating disclosure, it was held
that experts are unnecessary to a showing of the materiality of a risk to a patient's
decision on treatment, or to the reasonably, expectable effect of risk disclosure on the
decision. Such unrevealed risk that should have been made known must further
materialize, for otherwise the omission, however unpardonable, is without legal
consequence. And, as in malpractice actions generally, there must be a causal relationship
between the physician's failure to divulge and damage to the patient. 6 0
Reiterating the foregoing considerations, Cobbs v. Grant 6 1 deemed it as integral part of
physician's overall obligation to patient, the duty of reasonable disclosure of available
choices with respect to proposed therapy and of dangers inherently and potentially
involved in each. However, the physician is not obliged to discuss relatively minor risks
inherent in common procedures when it is common knowledge that such risks inherent in
procedure of very low incidence. Cited as exceptions to the rule that the patient should not
be denied the opportunity to weigh the risks of surgery or treatment are emergency cases
where it is evident he cannot evaluate data, and where the patient is a child or incompetent.
6 2 The court thus concluded that the patient's right of self-decision can only be effectively
exercised if the patient possesses adequate information to enable him in making an
intelligent choice. The scope of the physician's communications to the patient, then must
be measured by the patient's need, and that need is whatever information is material to the
decision. The test therefore for determining whether a potential peril must be divulged is
its materiality to the patient's decision. 6 3
Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that for
liability of the physician for failure to inform patient, there must be causal relationship
between physician's failure to inform and the injury to patient and such connection arises
only if it is established that, had revelation been made, consent to treatment would not
have been given.
WHEREFORE , the petition for review on certiorari is GRANTED . The Decision dated June
15, 2004 and the Resolution dated September 1, 2004 of the Court of Appeals in CA-G.R.
CV No. 58013 are SET ASIDE .
The Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch
8, in Civil Case No. 8904 is REINSTATED and UPHELD .
No costs.
SO ORDERED .
Corona, C.J. and Perez, J., concur.
Carpio, J., see dissenting opinion.
Carpio Morales, Velasco, Jr. and Peralta, JJ., join the dissent of J. Carpio.
Nachura, Leonardo-de Castro and Mendoza, JJ., join the separate opinion of J. Brion.
Brion, J., in the result: see separate opinion.
Bersamin, J., concur in the result, and I join the separate opinion of J. Brion.
Del Castillo, J., took no part.
Abad, J., please see my concurring opinion.
Sereno, J., I dissent. Evidence was provided by the doctor-petitioner herself. I join J.
Antonio Carpio.
Separate Opinions
CARPIO , J., dissenting :
Shortly after the Schloendorff case, there began to appear on the judicial scene a
doctrine wherein courts with increasing frequency began to rule that a patient's
consent to a proposed course of treatment was valid only to the extent
he had been informed by the physician as to what was to be done, the
risk involved and the alternatives to the contemplated treatment. This
theory, which today is known as the doctrine of informed consent,
imposes a duty upon a doctor which is completely separate and distinct
from his responsibility to skillfully diagnose and treat the patient's ills .
(Emphasis supplied)
Four requisites must be proven in cases involving the doctrine of informed consent. The
plaintiff must show that (1) the doctor had a duty to disclose the associated risks and side
effects of a proposed treatment; (2) the doctor failed to disclose or inadequately
disclosed the associated risks and side effects of the proposed treatment; (3) the plaintiff
consented to the proposed treatment because of the doctor's failure to disclose or
because of the inadequate disclosure of the associated risks and side effects of the
proposed treatment; and (4) the plaintiff was injured as a result of the treatment. In Coryell
v. Smith, 2 the Court of Appeals of Illinois held that:
To succeed in a malpractice action based on the doctrine of informed consent the
plaintiff must plead and ultimately prove four essential elements: (1) the
physician had a duty to disclose material risks; (2) he failed to disclose or
inadequately disclosed those risks; (3) as 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 proposed treatment.
There are two standards by which courts determine what constitutes adequate disclosure
of associated risks and side effects of a proposed treatment: the physician standard, and
the patient standard of materiality. Under the physician standard, a doctor is obligated to
disclose that information which a reasonable doctor in the same eld of expertise would
have disclosed to his or her patient. In Shabinaw v. Brown, 3 the Supreme Court of Idaho
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held that:
A valid consent must be preceded by the physician disclosing those pertinent
facts to the patient so that he or she is su ciently aware of the need for, and the
signi cant risks ordinarily involved in the treatment to be provided in order that
the giving or withholding of consent be a reasonably informed decision. The
requisite pertinent facts to be disclosed to the patient are those which
would be given by a like physician of good standing in the same
community . (Emphasis supplied) TIDcEH
Under the patient standard of materiality, a doctor is obligated to disclose that information
which a reasonable patient would deem material in deciding whether to proceed with a
proposed treatment. In Johnson by Adler v. Kokemoor, 4 the Supreme Court of Wisconsin
held that:
. . . The concept of informed consent is based on the tenet that in order to make a
rational and informed decision about undertaking a particular treatment or
undergoing a particular surgical procedure, a patient has the right to know about
signi cant potential risks involved in the proposed treatment or surgery. In order
to insure that a patient can give an informed consent, a "physician or surgeon is
under the duty to provide the patient with such information as may be necessary
under the circumstances then existing' to assess the signi cant potential risks
which the patient confronts.
The information that must be disclosed is that information which would
be "material" to a patient's decision . (Emphasis supplied)
Historically, courts used the physician standard. However, the modern and prevailing trend
among courts is to use the patient standard of materiality. In Canterbury v. Spence, 5 the
Court of Appeals of District of Columbia held that:
. . . Some have measured the disclosure by "good medical practice,"
others by what a reasonable practitioner would have bared under the
circumstances, and still others by what medical custom in the
community would demand. We have explored this rather considerable
body of law but are unprepared to follow it . The duty to disclose, we have
reasoned, arises from phenomena apart from medical custom and practice. The
latter, we think, should no more establish the scope of the duty than its existence.
Any de nition of scope in terms purely of a professional standard is at odds with
the patient's prerogative to decide on projected therapy himself. That prerogative,
we have said, is at the very foundation of the duty to disclose, and both the
patient's right to know and the physician's correlative obligation to tell him are
diluted to the extent that its compass is dictated by the medical profession.STaCcA
In order to determine what the associated risks and side effects of a proposed treatment
are, testimony by an expert witness is necessary because these are beyond the common
knowledge of ordinary people. In Canterbury, the Court held that, "There are obviously
important roles for medical testimony in [nondisclosure] cases, and some roles which only
medical evidence can ll. Experts are ordinarily indispensable to identify and elucidate for
the fact- nder the risks of therapy." The Court also held that, "medical facts are for medical
experts." ECSaAc
On the other hand, in order to determine what risks and side effects of a proposed
treatment are material and, thus, should be disclosed to the patient, testimony by an expert
witness is unnecessary. In Canterbury, the Court held that:
. . . It is evident that many of the issues typically involved in nondisclosure cases
do not reside peculiarly within the medical domain. Lay witness testimony can
competently establish a physician's failure to disclose particular risk information,
the patient's lack of knowledge of the risk, and the adverse consequences
following the treatment. Experts are unnecessary to a showing of the
materiality of a risk to a patient's decision on treatment, or to the
reasonably, expectable effect of risk disclosure on the decision .
(Emphasis supplied)
Every year Dr. Li goes to conventions, usually in May, known as the American
Society of Clinical Oncologist Convention, wherein all the sub-specialties in
cancer treatment and management meet and the latest in cancer treatment and
management is [sic] presented. In December of each year the Philippine Society
of Medical Oncologists have their convention wherein the latest with regards [sic]
to what is going on in the Philippines is presented. They also have an upgrading
or what they call continuous medical education with [sic] cancer, which is usually
every now and then, especially when there are foreign guests from abroad.
Dr. Li has been dealing with bone cancer treatment for almost thirteen (13) years
now and has seen more than 5,000 patients.
As an expert, Dr. Li identi ed the associated risks and side effects of chemotherapy: (1)
falling hair; (2) nausea; (3) vomiting; (4) loss of appetite; (5) lowering of white blood cell
count; (6) lowering of red blood cell count; (7) lowering of platelet count; (8) sterility; (9)
damage to the kidneys; (10) damage to the heart; (11) skin darkening; (12) rashes; (13)
di culty in breathing; (14) fever; (15) excretion of blood in the mouth; (16) excretion of
blood in the anus; (17) development of ulcers in the mouth; (18) sloughing off of skin; (19)
systemic lupus erythematosus; (20) carpo-pedal spasm; (21) loose bowel movement; (22)
infection; (23) gum bleeding; (24) hypovolemic shock; (25) sepsis; and (26) death in 13
days.
Dr. Li admitted that she assured Reynaldo and Lina that there was an 80% chance that
Angelica's cancer would be controlled and that she disclosed to them only some of the
associated risks and side effects of chemotherapy. In its 5 September 1997 Decision, the
RTC stated that:
By way of a rmative and special defenses, Dr. Rubi Li alleged that she saw the
deceased patient, Angelica Soliman, and her parents on July 25, 1993, and
discussed the patient's condition and the possibility of adjuvant chemotherapy . .
. . The giving of chemotherapy is merely in aid, or an adjuvant, of surgery, hoping
to prevent or control the recurrence of the malignant disease (cancer). The
plaintiffs were likewise told that there is 80% chance that the cancer could be
controlled and that no assurance of cure was given, considering that the
deceased was suffering from cancer which up to this moment, cure is not yet
discovered and not even the exact cause of cancer is known up to the present. aCATSI
Thus, Dr. Li impliedly admits that she failed to disclose to Reynaldo and Lina
many of the other associated risks and side effects of chemotherapy, including
the most material — infection, sepsis and death . She impliedly admits that she failed
to disclose as risks and side effects (1) rashes; (2) di culty in breathing; (3) fever; (4)
excretion of blood in the mouth; (5) excretion of blood in the anus; (6) development of
ulcers in the mouth; (7) sloughing off of skin; (8) systemic lupus erythematosus; (9) carpo-
pedal spasm; (10) loose bowel movement; (11) infection; (12) gum bleeding; (13)
hypovolemic shock; (14) sepsis; and (15) death in 13 days.
Clearly, infection, sepsis and death are material risks and side effects of chemotherapy. To
any reasonable person, the risk of death is one of the most important, if not the most
important, consideration in deciding whether to undergo a proposed treatment. Thus, Dr. Li
should have disclosed to Reynaldo and Lina that there was a chance that their 11-year old
daughter could die as a result of chemotherapy as, in fact, she did after only 13 days of
treatment.
In Canterbury and in Wilkinson, the Court of Appeals of District of Columbia and Supreme
Court of Rhode Island, respectively, held that, "A very small chance of death . . . may well be
signi cant." In the present case, had Reynaldo and Lina fully known the severity of the risks
and side effects of chemotherapy, they may have opted not to go through with the
treatment of their daughter. In fact, after some of the side effects of chemotherapy
manifested, they asked Dr. Li to stop the treatment. SCIacA
The facts, as stated by the RTC and the Court of Appeals, clearly show that, because of the
chemotherapy, Angelica suffered lowering of white blood cell count, lowering of red blood
cell count, lowering of platelet count, skin darkening, rashes, di culty in breathing, fever,
excretion of blood in the mouth, excretion of blood in the anus, development of ulcers in
the mouth, sloughing off of skin, systemic lupus erythematosus, carpo-pedal spasm, loose
bowel movement, infection, gum bleeding, hypovolemic shock, sepsis, and death after 13
days.
After the administration of chemotherapy, Angelica suffered infection, which progressed
to sepsis. Thereafter, Angelica died. In its 5 September 1997 Decision, the RTC stated that:
Angelica Soliman was admitted at the St. Luke's Medical Center on August 18,
1993. Preparatory to the chemotherapy, she was hydrated to make sure that her
kidneys will function well and her output was monitored. Blood test, blood count,
kidney function test and complete liver function test were likewise done.
Chemotherapy started on August 19, 1993 with the administration of the three
drugs, namely, Cisplatine, Doxorubicin and Cosmegen. In the evening Angelica
started vomiting which, according to Dr. Rubi Li, was just an effect of the drugs
administered.
This convulsive attack mentioned by the plaintiffs was actually what is referred to
as "carpopedal spasm" in medical parlance, which Dr. Li described as "naninigas
ang kamay at paa." It is a twitching of a group of muscles of the hands and legs.
The patient's calcium was checked and it was noted to be low, so she was given
supplemental calcium which calmed her down. ECG was likewise conducted.
Angelica Soliman started to bleed through the mouth. This, according to Dr. Li,
was only a spitting of blood because at that time the patient had gum bleeding.
Dr. Li told plaintiffs the bleeding was due to platelet reduction. Angelica Soliman
was then transferred to a private room wherein the plaintiffs themselves were
required to wear a mask to avoid any infection as their daughter was already
sensitive and they might have colds or u and might contaminate the patient who
was noted to have low defense mechanism to infection. Plaintiffs were asked to
sign a consent form for blood transfusion. Patient was transfused with more than
three (3) bags of blood and platelets. The bleeding was lessened, but she became
weak.
The bleeding and blood transfusion continued until August 31, 1993. Angelica
Soliman became hysterical and uneasy with the oxygen and nasogastric tube
attached to her. Parts of her skin were shredding or peeling off, and according to
plaintiffs, she already passed black stool.
On September 1, 1993, at around 3:00 p.m., Angelica Soliman died, but prior to her
demise, she pulled out her endotracheal tube at 9:30 p.m. of August 31, 1993.
As admitted by Dr. Li, infection, sepsis and death are associated risks and side effects of
chemotherapy. These risks and side effects are material to Reynaldo and Lina, and to any
other reasonable person, in deciding whether to undergo chemotherapy. Had Dr. Li
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adequately disclosed to Reynaldo and Lina that there was a chance that their 11 year old
daughter could die of infection as a result of chemotherapy, they may have decided
against it and sought for an alternative treatment. SEDaAH
BRION , J.:
Of crucial signi cance in establishing the elements involved in medical negligence cases is
expert medical testimony since the facts and issues to be resolved by the Court in these
cases are matters peculiarly within the knowledge of experts in the medical field. 4 ETHSAI
I base my conclusion on the ground that the respondents failed to prove by competent
expert testimony the rst and fourth elements of a prima facie case for lack of informed
consent, specifically:
(1) the scope of the duty to disclose and the violation of this duty,
i.e., the failure to de ne what should be disclosed and to disclose
the required material risks or side effects of the chemotherapy
that allow the patient (and/or her parents) to properly decide
whether to undergo chemotherapy; and
(2) that the chemotherapy administered by the petitioner
proximately caused the death of Angelica Soliman.
II. Background
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On July 7, 1993, the respondents Spouses Reynaldo and Lina Soliman's (respondents) 11
year old daughter, Angelica Soliman (Angelica), was diagnosed with osteosarcoma,
osteoblastic type (cancer of the bone) after a biopsy of the mass in her lower extremity
showed a malignancy. Following this diagnosis, Dr. Jaime Tamayo (Dr. Tamayo) of the St.
Luke's Medical Center (SLMC) amputated Angelica's right leg to remove the tumor. Dr.
Tamayo also recommended adjuvant chemotherapy to eliminate any remaining cancer
cells and prevent its spread to the other parts of the body, and referred Angelica to the
petitioner Dr. Rubi Li (petitioner), an oncologist. 5
On July 23, 1993, the petitioner saw the respondents and discussed with them Angelica's
condition. 6 The petitioner claims that she did not then give the respondents any assurance
that chemotherapy would cure Angelica's cancer considering that "a cure for cancer has
not been discovered" and "its exact cause is not known up to the present"; she merely told
them that there is 80% chance that the cancer [of Angelica] could be controlled
[by chemotherapy] . 7 In her Answer, the petitioner alleges that she informed the
respondents that chemotherapy will be administered intravenously; the chemotherapy will
ow throughout Angelica's body and will affect not only the cancer cells but also the fast
growing "normal" parts of her body. She also then disclosed and explained to the
respondents the following side effects of chemotherapy:
(1) Falling hair;
(3) Loss of appetite considering that there will be changes in the taste buds
of the tongue and lead to body weakness and this defendant therefore, in
anticipation of the changes in the taste buds, instructed the plaintiffs to teach
and encourage the deceased patient to eat even though she has no normal taste;
(4) Low count of white blood cells (WBC count), red blood cells (RBC count),
and platelets as these would be lowered by the chemotherapy and therefore this
defendant had to check these counts before starting the chemotherapy (it is
important to note at this point that white blood cells [WBC] are the cells that
defend the body against infection);
(7) There will be darkening of the skin especially when the skin is exposed to
sunlight. 8
The respondents, however, disputed this claim and countered that the petitioner
gave them an assurance that there was a 95% chance of healing if Angelica
would undergo chemotherapy — "Magiging normal na ang anak nyo basta ma-
chemo. 95 % ang healing . — and that the side effects were only hair loss,
vomiting and weakness — "Magsusuka ng kaunti. Malulugas ang buhok.
Manghihina ." 9
On August 18, 1993, Angelica was readmitted to the SLMC for chemotherapy. Upon
admission, Angelica's mother, respondent Lina Soliman, signed the Consent for Hospital
Care, which pertinently stated: 1 0
Permission is hereby given to the medical, nursing and laboratory staff of St.
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Luke's Medical Center to perform such diagnostic procedures and administer
such medications and treatments as may be deemed necessary or advisable by
the Physicians of this hospital [for my daughter] during this con nement. It is
understood that such procedures may include blood transfusions, intravenous or
other injections and infusions[,] administrations of serums, antitoxins and toxoids
for treatment or prophylaxis, local of (sic) general anesthesia, spinal puncture,
bone marrow puncture, venessection, thoracentesis, paracenthesis, physiotherapy
and laboratory test.
The following day, the petitioner intravenously administered three chemotherapy drugs,
namely: Cisplatin, Doxorubicin and Cosmegen. On September 1, 1993, or thirteen days
after the induction of the rst cycle of chemotherapy, Angelica died. 1 1 The autopsy
conducted by the Philippine National Police (PNP) Crime Laboratory indicated the cause
of death as "Hypovolemic shock secondary to multiple organ hemorrhages and
Disseminated Intravascular Coagulation." 1 2
On February 21, 1994, the respondents led a case for damages against the petitioner, Dr.
Leo Marbella, a certain Dr. Arriete and SLMC. The respondents raised two causes of action;
the rst cause of action was based on the petitioner's negligence in the administration
of the chemotherapy, and the second cause of action was based on the petitioner's
negligence in failing to disclose the risks or side effects of chemotherapy so that they
could give a valid informed consent. 1 3 In her Answer, the petitioner countered that she
was not negligent and that the massive bleeding that caused Angelica's death was brought
about by her underlying condition and the sepsis that resulted from her weakened immune
system. 1 4
a. The RTC Ruling
The trial court dismissed the complaint and held that the petitioner was not negligent
since she observed the best known procedures and employed her highest skill and
knowledge in the administration of the chemotherapy to Angelica. It cited Dr. Tamayo's
testimony that he knew the petitioner as one of the most pro cient in the treatment of
cancer and that Angelica was a icted with a very aggressive type of cancer that
necessitated adjuvant chemotherapy. 1 5
b. The CA Ruling
On appeal, the Court of Appeals (CA) — while concurring with the trial court's nding that
the petitioner was not negligent in the administration of the chemotherapy to Angelica —
found the petitioner negligent in failing to explain fully to the respondents all the known
side effects of the chemotherapy. The CA gave credence to the respondents' testimony
that the petitioner merely told them of only three side effects of chemotherapy, which
prompted them to readily give their consent. The CA stressed that had the petitioner made
known to the respondents the other side effects (carpo-pedal spasm, sepsis, decrease in
platelet counts, bleeding, infection and death), which gravely affected Angelica, they could
have decided differently or took a different course of action, which could have delayed or
prevented the early death of their child. 1 6
c. The Respondents' Supporting Testimonies
Angelica's medical records were not submitted in evidence; instead, the Regional Trial
Court (RTC) and the CA solely relied on the testimonial evidence of the petitioner and the
respondents. aSEHDA
Dr. Vergara testi ed that she conducted the autopsy on Angelica's body on September 2,
1993. She explained that the extensive multiple organ hemorrhages and disseminated
intravascular coagulation that caused Angelica's demise can be attributed to the chemical
agents given to her; these agents caused platelet reduction resulting in massive bleeding
and, eventually, in her death. She further noted that Angelica would have also died of
osteosarcoma even with amputation and chemotherapy; in this case, her death was not
caused by osteosarcoma as it has a survival period of three years. 2 4 Dr. Vergara
admitted that she is not a pathologist; 2 5 also, her statements were based on
the opinion of an oncologist she had previously interviewed. 2 6
Dr. Balmaceda, for her part, declared that she is a Medical Specialist working at the DOH
Operations and Management Service; her work encompasses the administration and
management of medical hospitals; her o ce receives complaints against hospitals for
mismanagement of admissions and medical health. Dr. Balmaceda also stated that she
obtained a Masters of Hospital Administration from the Ateneo de Manila University, and
took special courses on medical and pediatric training at the Philippine General Hospital
and Children's Medical Center in 1979. 2 7
Dr. Balmaceda testi ed that it is a physician's duty to inform and explain to the patient or
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his family every known side effect of the therapeutic agents to be administered, before
securing their consent. She stressed that the patient or his family must be informed of all
known side effects based on studies and observations, even if this disclosure will have the
effect of aggravating the patient's condition. 2 8 On cross-examination, Dr. Balmaceda
admitted that she is not an oncologist. 2 9
Despite their counsel's representation during the trial, the respondents failed to
present expert testimony from an oncologist or a physician who specializes in
the diagnosis and treatment of cancers. 3 0
d. The Petitioner's Supporting Expert Testimonies
The petitioner testi ed that she is a licensed physician and a board certi ed medical
oncologist; she underwent sub-specialty training in medical oncology where she dealt with
different types of cancers, including bone cancers. She also declared that she is a member
of the Philippine Society of Medical Oncologists; has written and co-authored various
medical papers on cancer; and has attended yearly conventions of the American Society of
Clinical Oncology and the Philippine Society of Medical Oncologists where she was
updated with the latest advances in cancer treatment and management. The petitioner
also declared that she has been engaged in the treatment and management of bone
cancers for almost thirteen years, and has seen more than 5,000 patients. 3 1
On direct examination, the petitioner testi ed that she met and discussed the side effects
of chemotherapy with the respondents three times; she mentioned that the side
effects of chemotherapy may consist of hair loss, nausea, vomiting, sterility,
and low white and red blood cells and platelet count. She declared that the
respondents consented to the chemotherapy when they signed the hospital's consent
form. 3 2
The petitioner also declared that Angelica died not because of the chemotherapy but
because of sepsis — an overwhelming infection that caused her organs to fail. She
testi ed that the cancer brought on the sepsis because of her poor defense mechanism.
3 3 On cross-examination, the petitioner clari ed that the sepsis also triggered the platelet
reduction; the bleeding was, in fact, controlled by the blood transfusion but the infection
was so prevalent it was hard to control. The petitioner also added that the three drugs
administered to Angelica could theoretically cause platelet reduction, but a decrease in
platelets is usually seen only after three cycles of chemotherapy and not in the initial
administration. 3 4
Dr. Tamayo, the orthopedic surgeon who amputated Angelica's right leg, testi ed for the
petitioner. He explained that the modes of therapy for Angelica's cancer are the surgical
removal of the primary source of the cancerous growth and, subsequently, the treatment
of the residual cancer (metastatic) cells with chemotherapy. 3 5 He further explained that
patients with osteosarcoma have a poor defense mechanism due to the cancer cells in the
bloodstream. In Angelica's case, he explained to the parents that chemotherapy was
imperative to address metastasis of cancerous cells since osteosarcoma is a very
aggressive type of cancer requiring equally aggressive treatment. He declared that the
mortality rate for osteosarcoma remains at 80% to 90% despite the advent of modern
chemotherapy. Finally, Dr. Tamayo testi ed that he refers most of his cancer patients to
the petitioner since he personally knows her to be a very competent oncologist. 3 6 caADIC
The 1957 case of Salgo v. Leland Stanford, Jr. University of Board of Trustees 4 5 rst
"established the modern view of the doctrine of informed consent," declaring "that the
physician violates his duty to his patient if he fails to provide information necessary for the
patient to form intelligent consent to the proposed treatment." 4 6 Although Salgo held that
the physician was under a duty to disclose, this duty remained unclear; it did not answer
the critical question of "what constituted 'full disclosure' su cient for the patient to make
an informed consent." 4 7
In the 1960s, "[c]ourts and commentators began to understand [and realize] that actions
for battery — an intentional tort — made little sense when couched in negligence
terminology." 4 8 Thus, in 1960, the Kansas Supreme Court explicitly rejected the battery
approach in Natanson v. Kline 4 9 where it held that the "failure to disclose to the patient
su cient information to allow informed consent to the procedure was an action based in
negligence and not on an unconsented . . . touching [or] battery." 5 0 The courts in Natanson
v. Kline 5 1 and Mitchell v. Robinson 5 2 clari ed as well the scope of the physician's duty to
disclose and held that the "central information needed in making an informed consent was
a disclosure of the material risks involved in a medical procedure." 5 3 Natanson went on to
require the physician to provide "in addition to risk information, disclosure of the ailment,
the nature of the proposed treatment, the probability of success, and possible alternative
treatments." 5 4
Finally, in 1972, the California Supreme Court in Cobbs v. Grant 5 5 articulated "the rationale
behind abandoning the battery approach to informed consent in favor of [a] negligence
approach." It held that "it was inappropriate to use intentional tort of battery when the
actual wrong was an omission, and the physician acted without intent to injure the patient."
56
The ful llment of this requirement often precluded a nding of liability not only
because of the di culty in obtaining expert testimony, and breaking through the
medical community's so-called "conspiracy of silence," but also because there
was no real community standard of disclosure. Establishing community custom
through expert testimony is perfectly acceptable where such custom exists.
However, because a physician supposedly considers his patient's emotional,
mental, and physical condition in deciding whether to disclose, and because each
patient is mentally and emotionally unique, there can be no single established
custom concerning disclosure; if there is one, it is so general that it is of little
value. Requiring the plaintiff to present expert testimony that a standard does
exist and was breached may well impose an insuperable burden. 6 1
In the early 1970s, the courts and legislature in the United States realized that "the
professional community standard of disclosure was inconsistent with patients' rights to
make their own health care decisions." 6 2 In 1972, a new standard was established in the
landmark case of Canterbury v. Spence . 6 3 This standard later became known as the
"reasonable patient standard." It required the doctor "to disclose all material risks
incident to the proposed therapy in order to secure an informed consent," 6 4 and gave rise
to a new disclosure test : "the test for determining whether a particular peril must
be divulged is its materiality to the patient's decision: all risks potentially
affecting the decision must be unmasked." 6 5 Under this standard, adequate
disclosure "required the physician to discuss the nature of the proposed treatment,
whether it was necessary or merely elective, the risks, and the available alternatives and
their risks and benefits." 6 6
The Canterbury court, however, warned that the standard does not mean "full
disclosure" of all known risks . One commentator emphasized: 6 7
Thus, the reasonable patient standard included more information than a
professional community standard, but did not require the doctor to tell the
patient all information about risks, bene ts, alternatives, diagnosis,
and the nature of the treatment . To do so would require the patient rst to
undergo complete medical training himself. "The patient's interest in information
does not extend to a lengthy polysyllabic discourse on all possible complications.
A mini-course in medical science is not required. . . ." [emphasis supplied]
In Sard v. Hardy, 6 8 the Maryland Court of Appeals succinctly explained the rationale in
adopting the reasonable patient standard rst established in Cantebury v. Spence, 6 9 as
follows:
In recent years, however, an ever-expanding number of courts have declined to
apply a professional standard of care in informed consent cases, employing
instead a general or lay standard of reasonableness set by law and independent
of medical custom. These decisions recognize that protection of the patient's
fundamental right of physical self-determination the very cornerstone of the
informed consent doctrine mandates that the scope of a physician's duty to
disclose therapeutic risks and alternatives be governed by the patient's
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informational needs. Thus, the appropriate test is not what the physician in the
exercise of his medical judgment thinks a patient should know before
acquiescing in a proposed course of treatment; rather, the focus is on what data
the patient requires in order to make an intelligent decision. [Citations omitted]
Since then, this line of ruling has prevailed, as shown by the rulings discussed below on the
need for expert evidence in the application of the preferred reasonable patient standard.
c. Expert Testimony in Ordinary Medical Negligence Cases
Philippine jurisprudence tells us that expert testimony is crucial, if not determinative of a
physician's liability in a medical negligence case. 7 0 In litigations involving medical
negligence as in any civil action, we have consistently ruled that the burden to prove by
preponderance of evidence the essential elements — i.e., duty, breach, injury and proximate
causation — rests with the plaintiff. Expert testimony is, therefore, essential since the
factual issue of whether a physician or surgeon exercised the requisite degree of skill and
care in the treatment of his patient is generally a matter of expert opinion. 7 1
Cruz v. Court of Appeals, 7 2 a 1997 case, provided the rst instance for the Court to
elaborate on the crucial signi cance of expert testimony to show that a physician fell
below the requisite standard of care. In acquitting the petitioner of the crime of reckless
imprudence resulting in homicide because of a complete absence of any expert
testimony of the matter of the standard of care employed by other physicians of
good standing in the conduct of similar operations, the Court emphasized: DCaEAS
In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et al., this Court
stated that in accepting a case, a doctor in effect represents that, having the
needed training and skill possessed by physicians and surgeons practicing in the
same eld, he will employ such training, care and skill in the treatment of his
patients. He therefore has a duty to use at least the same level of care that any
other reasonably competent doctor would use to treat a condition under the same
circumstances. It is in this aspect of medical malpractice that expert
testimony is essential to establish not only the standard of care of the
profession but also that the physician's conduct in the treatment and
care falls below such standard. Further, inasmuch as the causes of the
injuries involved in malpractice actions are determinable only in the
light of scienti c knowledge, it has been recognized that expert
testimony is usually necessary to support the conclusion as to
causation.
. . . The deference of courts to the expert opinion of quali ed
physicians stems from its realization that the latter possess unusual
technical skills which laymen in most instances are incapable of
intelligently evaluating. Expert testimony should have been offered to
prove that the circumstances cited by the courts below are constitutive
of conduct falling below the standard of care employed by other
physicians in good standing when performing the same operation. It
must be remembered that when the quali cations of a physician are admitted, as
in the instant case, there is an inevitable presumption that in proper cases he
takes the necessary precaution and employs the best of his knowledge and skill
in attending to his clients, unless the contrary is su ciently established. This
presumption is rebuttable by expert opinion which is so sadly lacking in
the case at bench. [Emphasis supplied]
Ramos v. Court of Appeals 7 3 meanwhile illustrates that in cases where the doctrine of res
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ipsa loquitur 7 4 is applicable, the requirement for expert testimony may be dispensed with.
Thus, in nding that the respondent was negligent in the administration of anesthesia on
the basis of the testimony of a dean of a nursing school and not of an anesthesiologist, the
Court held:
We do not agree with the above reasoning of the appellate court. Although
witness Cruz is not an anesthesiologist, she can very well testify upon matters on
which she is capable of observing such as, the statements and acts of the
physician and surgeon, external appearances, and manifest conditions which are
observable by any one. This is precisely allowed under the doctrine of res ipsa
loquitur where the testimony of expert witnesses is not required. It is the accepted
rule that expert testimony is not necessary for the proof of negligence in non-
technical matters or those of which an ordinary person may be expected to have
knowledge, or where the lack of skill or want of care is so obvious as to render
expert testimony unnecessary. We take judicial notice of the fact that anesthesia
procedures have become so common, that even an ordinary person can tell if it
was administered properly. As such, it would not be too di cult to tell if the tube
was properly inserted. This kind of observation, we believe, does not require a
medical degree to be acceptable. 7 5
The guiding consideration our decisions distill, however, is that medical facts
are for medical experts and other facts are for any witnesses-expert or
not-having su cient knowledge and capacity to testify to them . It is
evident that many of the issues typically involved in nondisclosure cases do not
reside peculiarly within the medical domain. Lay witness testimony can
competently establish a physician's failure to disclose particular risk information,
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the patient's lack of knowledge of the risk, and the adverse consequences
following the treatment. Experts are unnecessary to a showing of the materiality
of a risk to a patient's decision on treatment, or to the reasonably, expectable
effect of risk disclosure on the decision. These conspicuous examples of
permissible uses of nonexpert testimony illustrate the relative freedom of broad
areas of the legal problem of risk nondisclosure from the demands for expert
testimony that shackle plaintiffs' other types of medical malpractice litigation.
[Citations omitted; emphasis supplied]
This ruling underwent re nements in subsequent applications. The 1983 case of Smith v.
Shannon, 7 9 — where the Supreme Court of Washington held that an expert testimony is
required to establish initially the existence of the risk of the proposed treatment — is
particularly instructive in its two-step discussion in the use of expert testimony in the
application of the reasonable patient test. To quote from this case:
The determination of materiality is a 2-step process. Initially, the scienti c
nature of the risk must be ascertained, i.e., the nature of the harm
which may result and the probability of its occurrence. The trier of fact
must then decide whether that probability of that type of harm is a risk which a
reasonable patient would consider in deciding on treatment.
While the second step of this determination of materiality clearly does
not require expert testimony, the rst step almost as clearly does. Only
a physician (or other quali ed expert) is capable of judging what risks
exist and their likelihood of occurrence . The central reason for requiring
physicians to disclose risks to their patients is that patients are unable to
recognize the risks by themselves. Just as patients require disclosure of risks by
their physicians to give an informed consent, a trier of fact requires
description of risks by an expert to make an informed decision.
Some expert testimony is thus necessary to prove materiality. Specifically,
expert testimony is necessary to prove the existence of a risk, its
likelihood of occurrence, and the type of harm in question . Once those
facts are shown, expert testimony is unnecessary. [Citations omitted, emphasis
supplied] STIcEA
In Jambazian v. Borden, 8 0 a 1994 case, the California Court of Appeals held that in proving
his informed consent claim, the plaintiff was required "to present properly quali ed
medical opinion evidence that his alleged diabetic condition created surgical risks other
than those related by defendant prior to the procedure." The Court held further:
In every case the court must be guided by the general rules governing the use of
expert testimony. If the fact sought to be proved is one within the general
knowledge of laymen, expert testimony is not required; otherwise the fact can be
proved only by the opinions of experts." The diagnosis of diabetes, its magnitude,
scienti c characteristics, and the inherent risks associated with the condition are
not matters of such common knowledge that opinion testimony is unnecessary in
informed consent litigation to establish defendant should have disclosed the risks
of surgery on a diabetic to plaintiff when there is no medical evidence that the
illness exists.[Citations omitted.]
Betterton v. Leichtling, 8 1 another California Court of Appeals ruling, distinguished
"between the use of expert testimony to prove the duty to disclose a known risk and the
use of expert testimony to prove the existence of the risk itself" 8 2 and held that the effect
of Betterton's aspirin use on the risk of surgical complications is subject to proof only by
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expert witnesses, viz.:
Whether to disclose a signi cant risk is not a matter reserved for expert opinion.
Whether a particular risk exists, however, may be a matter beyond the
knowledge of lay witnesses, and therefore appropriate for
determination based on the testimony of experts. Here, the effect of
Betterton's aspirin use on the risk of surgical complications was a subject beyond
the general knowledge of lay people. Therefore, the jury should have relied only on
expert testimony when it determined whether the use of aspirin causes signi cant
risks in surgery. [Citations omitted, emphasis supplied]
In Morhaim v. Scripps Clinic Medical Group, Inc. 8 3 that followed, the Court dismissed
Morhaim's informed consent claim based on his failure to present expert testimony that
diabetes is a risk of the Kenalog injections. The California Court of Appeals held:
Betterton and Jambazian make clear that while no expert testimony is required to
establish a doctor's duty to disclose a " known risk of death or serious bodily
harm," expert testimony is required to establish whether a risk exists in the rst
instance where the matter is beyond the knowledge of a lay person.
In this case, whether diabetes is a risk of the Kenalog injections Morhaim received
is clearly a matter beyond the knowledge of a layperson. Therefore, Morhaim
would have to present expert testimony regarding the existence of that risk in
order to prevail on his informed consent claim. Once Morhaim's counsel
conceded in his opening statement that Morhaim could not present such
testimony, the trial court properly granted Scripps's motion for nonsuit.
All these, Canterbury v. Spence 8 4 best summed up when it observed that "medical facts
are for medical experts and other facts are for any witness — expert or not — having
sufficient knowledge and capacity to testify to them." 8 5
V. Application to the Present Case
The issue in the present case is: Did the respondents prove by preponderance of
evidence all the elements of a cause of action for medical negligence under the
doctrine of informed consent?
As stated above, the plaintiff — as in any ordinary medical negligence action — bears the
burden of proving the necessary elements of his or her cause of action. Canterbury v.
Spence 8 6 tells us that informed consent plaintiffs also share this burden, viz.:
In the context of trial of a suit claiming inadequate disclosure of risk information
by a physician, the patient has the burden of going forward with evidence tending
to establish prima facie the essential elements of the cause of action, and
ultimately the burden of proof — the risk of nonpersuasion — on those elements.
These are normal impositions upon moving litigants, and no reason why they
should not attach in nondisclosure cases is apparent. [Citations omitted.]
In the present case, I nd that the plaintiffs (the present respondents) utterly failed to
establish their cause of action. They failed to establish their claim of lack of
informed consent, particularly on the first and fourth elements. aESTAI
In the present case, expert testimony is required in determining the risks and or side
effects of chemotherapy that the attending physician should have considered and
disclosed as these are clearly beyond the knowledge of a layperson to testify on. In other
words, to prevail in their claim of lack of informed consent, the respondents must present
expert supporting testimony to establish the scope of what should be disclosed and the
significant risks attendant to chemotherapy that the petitioner should have considered and
disclosed; the determination of the scope of disclosure, and the risks and their probability
are matters a medical expert must determine and testify on since these are beyond the
knowledge of laypersons. 9 7
As expert witness, the respondents presented Dr. Balmaceda who testi ed on the
physician's general duty to explain to the patient or to his relatives all the known side
effects of the medical procedure or treatment. Speci cally, Dr. Balmaceda gave the
following expert opinion:
ATTY. NEPOMUCENO
Q: Then, after informing the relatives of the patient about [all the] side
effects, what should be the next procedure?
WITNESS
A: The physician should secure consent from the relatives or the patient
himself for the procedure for the administration of the procedure, the
therapeutic agents.
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ATTY. NEPOMUCENO
Q: Now, should the physician ask the patient's relatives whether they
under[stood] the explanation?
On cross-examination, Dr. Balmaceda only clari ed that all known side-effects of the
treatment, including those that may aggravate the patient's condition, should be disclosed,
viz.:
ATTY. CASTRO
Q: And you mentioned a while ago, Madam Witness that all known side
effects of drugs should be made known to the patient to the extent that
even he dies because of making known the side effect, you will tell him?
acHCSD
A: I said, all known side effect[s] should be made known to the relatives
or to the patient so that consent and the responsibility there lies on the
patient and the patient's relatives.
Q: So, even that information will aggravate his present condition?
A: Making known the side effect?
A: Yes.
A: In my practice, I did not encounter any case that will aggravate it. I
make him know of the side effect[s] and if indeed there is, I think the
person that should approve on this matter should be the relatives and not
the patient. It is always the patient that become (sic) aggravated of the
side effects of the procedure in my experience. 9 9
Unfortunately for the respondents, Dr. Balmaceda's testimony failed to establish the
existence of the risks or side-effects the petitioner should have disclosed to
them in the use of chemotherapy in the treatment of osteosarcoma ; the witness,
although a medical doctor, could not have testi ed as an expert on these points for the
simple reason that she is not an oncologist nor a quali ed expert on the diagnosis and
treatment of cancers. 1 0 0 Neither is she a pharmacologist who can properly advance an
opinion on the toxic side effects of chemotherapy, particularly the effects of Cisplatin,
Doxorubicin and Cosmegen — the drugs administered to Angelica. As a doctor whose
specialty encompasses hospital management and administration, she is no different from
a layperson for purposes of testifying on the risks and probabilities that arise from
chemotherapy.
In the analogous case of Ramos v. Court of Appeals 1 0 1 that dwelt on the medical
expertise of a witness, we held that a pulmonologist cannot be considered an expert in the
field of anesthesiology simply because he is not an anesthesiologist:
First of all, Dr. Jamora cannot be considered an authority in the eld of
anesthesiology simply because he is not an anesthesiologist. Since Dr. Jamora is
a pulmonologist, he could not have been capable of properly enlightening the
court about anesthesia practice and procedure and their complications. Dr.
Jamora is likewise not an allergologist and could not therefore properly advance
expert opinion on allergic-mediated processes. Moreover, he is not a
pharmacologist and, as such, could not have been capable, as an expert would, of
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explaining to the court the pharmacologic and toxic effects of the supposed
culprit, Thiopental Sodium (Pentothal).
In this regard, Justice Carpio proffers the view that the petitioner "as an expert in oncology
identified [in the present case] the material risks and side effects of chemotherapy." 1 0 3 To
support his conclusion, Justice Carpio cites jurisprudence which allowed the use of the
defendant-physician's expert testimony to prove the medical disclosure standard in the
community. 1 0 4 I cannot subscribe to this point of view.
Arguably, the medical disclosure standard can be established through the petitioner's own
expert testimony, as has been done in some courts in the United States in cases where the
defendant physician testi ed that he did disclose the risks, but the plaintiff denied it. 1 0 5 In
these cases, the defendant physicians are quali ed as expert witnesses and their
testimonies are considered expert medical testimony insofar as they disclose the practice
of competent and responsible medical practitioners in a particular medical situation. 1 0 6
Reliance on this line of cases for purposes of the present case is however, inapt.
First, these cases are appropriate only if we are to adopt the professional disclosure or the
"physician standard" — a standard that Justice Carpio himself admits "is not the modern
and prevailing standard among United States courts." Citing Cantebury v. Spence, 1 0 7
Justice Carpio declares that the "prevailing trend among courts is to use the patient
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standard of materiality." As held in Febud v. Barot: 1 0 8
Su ciency of disclosure under the prudent patient standard requires that
disclosure be viewed through the mind of [the] patient, not [the] physician. Implicit
in this shift of emphasis is recognition that expert testimony is no longer required
in order to establish the medical community's standard for disclosure and
whether the physician failed to meet that standard.
Second, this line of cases also cannot apply to the present case since the petitioner's
testimony, on its own, did not establish the medical standard in obtaining consent for
chemotherapy treatment. Stated differently, the petitioner's testimony did not speci cally
refer to the prevailing medical practice insofar as what risks or side-effects of
chemotherapy should be disclosed to the respondents. In fact, during the trial, the
respondents failed to elicit any expert testimony from the petitioner regarding the
recognized standard of care in the medical community about what risks of chemotherapy
should have been disclosed to them.
b. Second Element: Adequacy of Disclosure of Risks
The ponencia concludes that "there was adequate disclosure of material risks of the
[chemotherapy administered] with the consent of Angelica's parents" in view of the fact
that the petitioner informed the respondents of the side effects of chemotherapy, such as
low white and red blood cell and platelet count, kidney or heart damage and skin
darkening. cAEDTa
I cannot agree with this conclusion because it was made without the requisite premises.
As heretofore discussed, su ciency of disclosure can be made only after a determination
and assessment of risks have been made. As discussed above, no evidence exists
showing that these premises have been properly laid and proven. Hence, for lack of basis,
no conclusion can be made on whether su cient disclosure followed. In other words, the
disclosure cannot be said to be su cient in the absence of evidence of what, in the rst
place, should be disclosed.
Even assuming that the ponencia used the professional disclosure standard in considering
the material risks to be disclosed, the existing evidence still does not support the
conclusion arrived at. The reason again is the respondent's failure to establish a baseline
to determine adequacy of disclosure; in the case of the professional disclosure standard,
determination of adequacy requires expert medical testimony on the standard medical
practice that prevails in the community. Thus, it has been held that "[e]xpert testimony is
required in an informed consent case to establish what the practice is in the general
community with respect to disclosure of risks that the defendant physician allegedly failed
to disclose." 1 0 9
Lastly, the respondent Lina Soliman's testimony on this point bears close examination in
light of the totality of the evidence adduced. A rst consideration is the nature of the
illness of the deceased — osteosarcoma — that according to the undisputed expert
testimony of Dr. Tamayo is a "very aggressive type of cancer that requires adjuvant
chemotherapy." In plainer terms, the amputation of Angelica's right leg was not su cient,
chemotherapy must follow; despite modern chemotherapy, the mortality rate of
osteosarcoma is 80 to 90%. 1 1 0 In light of this expert testimony, the respondent Lina
Soliman's testimony that she was assured of a 95% chance of healing (should Angelica
undergo chemotherapy) by the petitioner cannot be accepted at face value.
A second consideration is that the claim of a 95% chance of healing cannot also be
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given any credence considering the respondent Lina Soliman's inconsistent testimony on
this point. In fact, the record bears out that the respondent Lina Soliman testi ed on direct
examination that the petitioner assured her of a 95% chance of healing. However, she
contradicted her earlier testimony, when on rebuttal, she declared that the petitioner gave
her a 90% guarantee of full recovery should Angelica undergo chemotherapy.
A third consideration is that speci c disclosures such as life expectancy probabilities"
1 1 1 are not legally necessary or "required to be disclosed in informed consent situations,"
1 1 2 thus the respondent Lina Soliman's testimony on this point cannot be given any
probative value. Thus, in the landmark case of Arato v. Avedon 1 1 3 — where family
members of a patient who died of pancreatic cancer brought an informed consent action
against defendant physicians who failed to provide the patient material information
(statistical life expectancy) necessary for his informed consent to undergo chemotherapy
and radiation treatment 1 1 4 — the Supreme Court of California "rejected the mandatory
disclosure of life expectancy probabilities" 1 1 5 on account "of the variations among doctor-
patient interactions and the intimacy of the relationship itself." 1 1 6
Likewise, the statement that the side effects were con ned to hair loss, vomiting and
weakness can hardly be given full credit, given the petitioner's own testimony of what she
actually disclosed. Respondent Lina Soliman's testimony, tailor- tted as it is to an
informed consent issue, should alert the Court to its unreliability. Even if given in good
faith, it should, at best re ect what the respondents heard (or chose to hear) , not
what the petitioner disclosed to them — a common enough phenomenon in high-stress
situations where denial of an unacceptable consequence is a rst natural response. That
death may occur is a given in an osteosarcoma case where the most drastic intervention —
amputation — has been made. That death was not proximately caused by the
chemotherapy (as testi ed to by experts and as discussed below) demonstrates its
particular relevance as a consequence that the doctor administering the chemotherapy
must disclose.
c. Fourth Element: Causation
In addition to the failure to prove the rst element, I also submit that the respondents
failed to prove that the chemotherapy administered by the petitioner proximately caused
the death of Angelica Soliman.
Traditionally, plaintiffs alleging lack of informed consent must show two types of
causation: 1) adequate disclosure would have caused the plaintiff to decline the treatment,
a n d 2) the treatment proximately caused injury to the plaintiff. The second
causation requirement is critical since a medical procedure performed without informed
consent does not, in itself, proximately cause an actionable injury to a plaintiff; a plaintiff
must show that he or she has suffered some injury as a result of the undisclosed risk to
present a complete cause of action. 1 1 7 DCHIAS
In the recent case of Gorney v. Meaney, 1 1 8 the Arizona Court of Appeals held that expert
testimony is essential to demonstrate that the treatment proximately caused the injury to
the plaintiff, viz.:
Expert testimony is not required for the rst type of causation because it is plainly
a matter to which plaintiffs themselves could testify and is within the knowledge
of the average layperson.
Expert testimony is required, however, to demonstrate that the
treatment proximately caused injury to the plaintiff. Such testimony
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helps to ensure that the plaintiff's alleged injury was not caused by the
progression of a pre-existing condition or was the result of some other
cause, such as natural aging or a subsequent injury . . . . Thus, Gorney's
expert opinion a davit should have stated that the surgery proximately caused
an injury to Gorney, e.g., the "worsen[ed]" condition in Gorney's knee. [Citations
omitted, emphasis supplied]
In the present case, respondent Lina Soliman's lay testimony at best only satis ed the rst
type of causation — that adequate disclosure by the petitioner of all the side effects of
chemotherapy would have caused them to decline treatment. The respondents in this case
must still show by competent expert testimony that the chemotherapy administered by
the petitioner proximately caused Angelica's death.
In this regard, the respondents presented Dr. Vergara as an expert witness, who gave the
following opinion:
ATTY. NEPOMUCENO
Q: Under the word conclusions are contained the following words:
"Cause of death is hypovolemic shock secondary to multiple organ
hemorrhages and disseminated Intravascular Coagulation," in layman's
term, what is the meaning of that?
WITNESS
Q: And that bleeding could have been su cient to cause the death of
Angelica Soliman?
A: Yes, Sir. 1 1 9
On cross-examination, Dr. Vergara admitted that the opinions she advanced to the court
were not based on her opinion as an expert witness but on the interview she had previously
conducted with an oncologist, viz.:
ATTY. CASTRO
Q: Now, you mentioned chemotherapy, Madam Witness, that it is not a
treatment really, are you initiating that?
A: Sir, I asked for an opinion from an Oncologist, and she said that only
one person really survived the 5-year survival rate. Only one person. ICaDHT
Q: Madam Witness, you said a while ago that you are not a pathologist?
A: Yes, sir.
Q: And during the cross-examination and the re-direct, you admitted that
you have had to refer or interview an oncologist?
A: Yes, sir.
Q: What is an oncologist Madam?
A: She is a doctor in cancers.
Q: So, whatever opinion you have stated before this Honorable Court [is]
based on the statement made by the oncologist you have interviewed?
Q: So then, the opinion you gave us that the patient a icted with cancer
of the bone, osteosarcoma that she will live for 5 years is not of your own
opinion but that of the oncologist?
A: Yes, your Honor, but that 5 years survival is only for patients
undergoing chemotherapy but actually it is less than 5 years.
Q: You mean to tell the Court Mrs. Witness that the patient has been
diagnosed [with] cancer, may still have a life span of ve (5) years after
examination having been found to have cancer?
A: No, sir. Less than five (5) years.
Q: In this particular case, what was the information given you by the
Oncologist you consulted?
A: Only one person lived after she was given chemotherapy, ve years
sir.
Q: In this particular case, the Oncologist you consulted also told you that
the patient Soliman did not die of cancer but died of complication, is that
correct?
A: Yes, sir.
Q: So, it was not actually your own observation?
Under these terms, Dr. Vergara's expert testimony was clearly incompetent to prove that
the chemotherapy proximately caused Angelica's demise for two reasons.
Second, Dr. Vergara's testimony is doubly incompetent as it is hearsay; her opinions were
not based on her own knowledge but based on the opinion of another oncologist she
previously interviewed.
Additionally , I cannot help but note that Dr. Vergara could not have adequately testi ed
regarding the medical condition and the cause of death of Angelica without referring to her
medical records. As the records of the case show, these medical records were never
introduced into evidence by either party to the case. The absence of these medical records
signi cantly lessened the probative value of Dr. Vergara's testimony regarding the
causation of Angelica's death.
Thus, in the absence of competent evidence that the chemotherapy proximately caused
Angelica's death, what stands in the record in this case is the petitioner's
uncontroverted and competent expert testimony that Angelica died of sepsis
brought about by the progression of her osteosarcoma — an aggressive and
deadly type of bone cancer. That the petitioner is a competent expert witness cannot
be questioned since she was properly qualified to be an expert in medical oncology.
In this respect, the petitioner — who is a board certi ed medical oncologist with thirteen
(13) years of experience in the treatment of osteosarcoma — testi ed that Angelica died
of sepsis, viz.: STECAc
Q: Now, despite all these medications, the patient has been deceased on
September 1, 1993, what do you think can be the cause of . . . death of the
patient?
A: This is probably the cause of death[-]overwhelming infection that has
gone through her body that has also caused her other organs or systems to
fail and this is also because of poor defense mechanism brought about
from the cancer per se. 1 2 2
Q: Why not?
A: Because the platelet decrease was not the main cause of death of
Angelica Soliman, it was an overwhelming infection which also triggered
the reduction of platelets.
Q: So, which came ahead, the overwhelming infection or the platelet
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reduction?
Q: No, no, no. You said that the infection that attacked Angelica Soliman
was overwhelming, will you define what you mean by overwhelming?
A: Overwhelming is a condition wherein the infection has already gone to
other parts of the body and caused the decrease in the function of the
organs and systems.
xxx xxx xxx
Q: And you are saying that the platelet reduction eventually led to
the bleeding and the bleeding led to the death?
A: No, sir.
Q: Why not?
A: Because we were able to control the bleeding of Angelica
Soliman because of the transfusion that we were giving her with
platelets. We were able to stall the bleeding but the infection was
there and it was the infection that was hard to control.
xxx xxx xxx
Q: Now, would I be correct if I say that any or all of these three drugs could
cause the platelet reduction in the body of Angelica Soliman?
A: Theoretically, yes, sir.
Q: Practically, what do you mean?
A: Practically, we see usually a decrease in platelets, usually after three cycles
of chemotherapy but not on the initial chemotherapy. In the initial
chemotherapy the usual blood elements which is decreased is in the white
cells of the body. 1 2 3
Q: Alright, at what point and time did it ever occur to your mind that said
infection would develop into sepsis?
A: I think it changed the following day. TDCcAE
A: No, sir. 1 2 4
Q: Of the 500 patients, you said you treated before, how may developed
sepsis?
A: I will say 1/5 developed sepsis.
Justice Carpio is of the view that the facts as stated by the RTC and the Court of Appeals
clearly show that the chemotherapy caused Angelica's death. 1 2 6
I disagree. As heretofore discussed, in the absence of competent expert testimony, the
Court has no factual basis to declare that the chemotherapy administered by the petitioner
proximately caused Angelica's death. Our ruling in Cruz v. Court of Appeals is instructive:
127
But while it may be true that the circumstances pointed out by the
courts below seemed beyond cavil to constitute reckless imprudence on
the part of the surgeon, this conclusion is still best arrived at not
through the educated surmises nor conjectures of laymen, including
judges, but by the unquestionable knowledge of expert witnesses . For
whether a physician or surgeon has exercised the requisite degree of skill and
care in the treatment of his patient is, in the generality of cases, a matter of expert
opinion. [Emphasis supplied] EHSCcT
In sum, the respondents failed to prove by appropriate evidence — i.e., by expert testimony
— that Angelica's death was caused by the chemotherapy the petitioner administered. This
failure in establishing the fourth requisite of the respondents' cause of action fatally seals
the fate of the respondent's claim of medical negligence due to lack of informed consent.
I join the opinion of the majority of my colleagues as well as that of Justice Arturo D. Brion.
I write this concurring opinion out of the belief that, ultimately, the issue in this case rests
on a question of fact.
Plaintiffs Reynaldo and Lina Soliman claim damages against defendant Dr. Rubi Li for her
failure to su ciently inform them before hand of the risks of complications, pains, and
quick death that their sick daughter, Angelica, faced when placed under chemotherapy.
As the majority points out, the Solimans had the burden of proving the following to be
entitled to damages: 1) that Dr. Li had a duty to disclose the material risks of placing
Angela under chemotherapy; 2) that the doctor failed to disclose or inadequately
disclosed those risks; 3) that as a direct and proximate result of the failure to disclose, the
Solimans consented to have Angela undergo such therapy that they otherwise would not
have consented to; and 4) that Angela suffered injury on account of the chemotherapy.
The Key Issue of Fact
The key issue in this controversy, to my mind, is whether or not Dr. Li failed to disclose or
inadequately disclosed to the Solimans the risks of chemotherapy for their daughter since
Dr. Li and the Solimans gave opposing versions of what were disclosed. THIcCA
On the fourth day, the discoloration on Angela's face grew darker and spread to the neck
and chest. Dr. Li assured Lina that this was an effect of the drugs. During the following
days, Angelica complained of chest pains and di culty in breathing, prompting Dr. Li to
administer oxygen to her. As Lina saw that her daughter could not bear it anymore, she
asked Dr. Li to stop the chemotherapy. Angelica passed black stool and had reddish urine.
Dr. Li explained that this, too, was a reaction to the drugs. Lina wanted Angelica discharged
but she had to be con ned because of convulsion, which Dr. Li treated by giving her
calcium.
Afterwards, when Angelica's nose and mouth secreted blood, Dr. Li attributed this to the
lowering of her platelet count. They decided to move her to the hospital's intensive care
unit for closer monitoring. After getting blood transfusion, Angelica's vomiting lessened
but the color of her skin darkened. Later, her skin "shredded by just rubbing cotton on it."
She vomited blood and her convulsions resumed to the point that she became hysterical
and said "ayaw ko na." She passed away soon after.
Reynaldo Soliman (Reynaldo), Angelica's father, testi ed that they consulted with a number
of doctors from the Ago Medical and Educational Center, the UERM Medical Center, and
the National Children's Hospital regarding Angelica's case. After her amputation at St.
Luke's hospital, they returned to Bicol but, on Dr. Tamayo's advice, Reynaldo decided to
have Angelica undergo chemotherapy. She was readmitted at St. Luke on August 18, 1993.
When Reynaldo met Dr. Li on August 19, he asked her about the effects of chemotherapy
on his daughter. She replied that Angelica would manifest falling hair, vomiting, and
weakness.
Angelica showed no reaction to the chemotherapy on its rst day. On the next day,
however, redness appeared on her face and she started vomiting. Upon inquiry from Dr. Li,
she told them that this was normal. On August 23 Angelica appeared very weak. When
asked about this, Dr. Li said that it was a normal reaction. Seeing the effects of
chemotherapy, Reynaldo advised the doctor to stop the treatment. As they were settling
the bills the next day, Angelica had an epileptic t. It took a while for a doctor to come and
give her calcium injection to calm her down. Angelica had another convulsion the next day.
They again gave her calcium. CETDHA
Dr. Li moved Angelica to another room to ward off infection. But she bled through her
mouth. As Dr. Li could not be located, a certain Dr. Marbella came and told him that
Angelica's blood platelets had gone down. They gave her continuous blood transfusions
but the bleeding did not stop. Dr. Li called Dr. Abesamis, an oncologist-pediatrician, to
assist in the case. When Angelica had another attack, Dr. Abesamis pumped her chest to
revive her. They strapped her hands to the bed and attached instruments to her to provide
her oxygen and suction blood from her stomach. She later became hysterical and tried to
remove the instruments attached to her. Angelica died at 3:00 a.m. When Dr. Li came by,
she said that a malfunction occurred.
When Reynaldo asked Dr. Li for a death certi cate, she became arrogant, calling him
names. Dr. Li even asked him to sign a promissory note as he did not have enough cash on
him to settle the hospital bill.
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For her part, Dr. Li testi ed that Dr. Tamayo referred Angelica to her after he operated on
the patient. Angelica suffered from a highly malignant, highly aggressive type of cancer
known as osteosarcoma. Less than 20% of patients who were operated on for this type of
cancer survived the rst year. It usually came back within six months. There has been no
known cure for cancer as even its causes have not been ascertained.
Dr. Tamayo referred the case to Dr. Li because he found during the surgery that the cancer
could have already spread from the bone to the soft tissue and the surrounding area. Dr.
Tamayo asked Dr. Li if she could give Angelica adjuvant chemotherapy. When she met the
Solimans, Dr. Li told them what adjuvant chemotherapy was about, why it would be given,
how it would be given, and how chemotherapy works. Surgery, she told them, was not
enough for, while the tumor had been removed, it left small lesions that could not be seen
by the eyes. Chemotherapy would clean out the small lesions to lower the chances of the
cancer recurring. Dr. Li gave no guarantee of a cure. She merely told the Solimans that, if
adjuvant chemotherapy was to be given, the chances of their daughter's survival would
increase and the chances of the cancer returning would lower.
Dr. Li met the Solimans following Angelica's amputation and they discussed the side-
effects of chemotherapy. Dr. Li told the Solimans that, since it could not be helped that the
drugs would get into the other parts of Angelica's body, those parts could also be
affected. Angelica might lose hair and experience nausea and vomiting (which may be
controlled by medicines). She could become infertile or sterile. Blood elements, such as
the red and white blood cells, might also be affected and so had to be monitored. She also
explained to the Solimans other side-effects, including loss of appetite and darkening of
skin when exposed to sunlight. The kidneys and heart could also be affected which was
the reason for monitoring these organs as well. TAIcaD
Dr. Li met the Solimans again sometime in the rst week of August at which meeting they
again discussed the chemotherapy procedure and its side-effects. When Dr. Li met Lina
about a week later to once more discuss the treatment, the latter wanted to be told again
about the side-effects of chemotherapy. Before Angelica was admitted to the hospital,
Lina called up Dr. Li at her house and they discussed the same things.
On August 18 St. Luke's hospital readmitted Angelica for the chemotherapy. On the rst
day, they gave her uids to make sure that her kidney functioned well and that she was
hydrated. Seeing no problem, Dr. Li started Angelica's chemotherapy on August 19.
Regarding the redness on Angelica's face, Dr. Li explained that these were rashes. To make
sure, Dr. Li consulted Dr. Abesamis because the rashes could also possibly mean that the
patient had systemic lupus. Regarding Angelica's convulsions or epileptic attacks, these
were actually carpo-petal spasms, a twitching of a group of muscles of the hands and
legs. Dr. Li checked Angelica's calcium levels, which turned out low, so she gave her
supplemental calcium. Regarding the vomiting of blood, Dr. Li explained that she did not
actually vomit blood but that her gums began bleeding. She just had to spit it out.
According to Dr. Li, Angelica died due to overwhelming infection which had spread
throughout her body, causing multiple organ failures and platelet reduction. Dr. Li insisted
that the reduction in platelet count was due to infection although she conceded on cross-
examination that, theoretically, the chemotherapy could have reduced the platelets as well.
Dr. Li also alleged that Angelica had a poor defense mechanism because of her cancer.
Dr. Jaime Tamayo testi ed for Dr. Li. He recalled treating the cancerous growth in
Angelica's lower left leg. The doctor amputated the leg to remove the source of the tumor.
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Residual tumor cells had to be treated, however, by chemotherapy. Even before the
amputation, the Solimans knew of the possibility that Angelica would have to undergo
chemotherapy after surgery. The Soliman's consultation with other doctors, including the
doctor who performed the biopsy and con rmed the diagnosis for osteosarcoma, made
them aware of that possibility. EcHTCD
After the surgery, Dr. Tamayo explained to the Solimans that the amputation was not
enough and that chemotherapy was needed to go after the malignant cells that might have
metastasized. He told the Solimans that their daughter's condition was grave and that her
chances would improve with chemotherapy. Dr. Tamayo knew that even with surgery and
chemotherapy, very few patients lived beyond ve years, as the mortality rate was between
80 to 90%. He did not, however, consider it necessary to tell the Solimans this.
In sum, the Solimans claim that Dr. Li informed them of only three possible side-effects of
chemotherapy: falling hair, vomiting, and weakness. Dr. Li, on the other hand, testi ed that
she was more thorough than this, apprising the Solimans of the following side-effects of
chemotherapy: hair loss, nausea, vomiting, possible infertility or sterility, lowering of red
and white blood cells, adverse effects on platelets, loss of appetite, darkening of the skin,
and possible adverse effects on the heart and kidneys.
The question now is who to believe.
First . The burden is of course on the Solimans to prove their allegations of wrong-doing
on Dr. Li's part. Quite importantly, the trial court which had the bene t of perceiving not
only the witnesses' utterances but what the movements of their eyes and mouths said,
gave credence to Dr. Li's testimony over that of the Solimans. The trial court held that Dr. Li
in fact explained the effects of the chemotherapy to them prior to the procedure.
Second . The Court of Appeals (CA) of course found otherwise. It believed the Solimans'
version that Dr. Li warned them only of the three side effects, given that every time
Angelica's condition appeared to worsen, they would seek an explanation from Dr. Li. This,
said the CA, tended to show that they were unaware of the other side-effects of the
treatment.
But if it were true that Dr. Li assured Lina no less than three times that her daughter would
suffer only three bearable side effects, why did Lina not confront the doctor when other
side effects, which caused Angelica greater pains, began to surface? DCSETa
Besides, the fact that the Solimans, especially Lina, still sought explanations from Dr. Li for
her daughter's new pains and distress is understandable. Lina had a clear tendency to
repeatedly inquire about matters of which she had been previously informed. By her own
admission, she asked Dr. Li to tell her of the side effects of chemotherapy no less than
three times: a) when they rst met after the amputation; b) on the phone while she
discussed the rescheduling of the chemotherapy with Dr. Li; and c) when the latter came to
administer dextrose to Angelica before the chemotherapy. It should not, therefore, be
surprising for Lina to want to hear the doctor's explanation about those side effects even
when the latter had previously done so.
What is more, it would be quite natural for parents, watching their daughter's deteriorating
condition, to want to know the doctor's explanation for it. The previous explanations did
not have the bene t of the real thing occurring in their sight. The Solimans needed
assurances that these manifestations, now come to pass, were to be expected. In fact,
when Angelica began vomiting, the rst anticipated side effect, the Solimans still anxiously
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queried the attending medical staff the reason for it. 1
Third . The claim that Dr. Li gave assurance that Angelica had a 95% chance of recovery
after chemotherapy cannot be believed. The Solimans knew that their daughter had bone
cancer. Having consulted with other doctors from four medical institutions, the Ago
Medical and Educational Center in Bicol, the UERM Medical Center in Manila, the National
Children's Hospital in Quezon City, and nally the St. Luke's hospital, all of whom gave the
same dire opinion, it would be quite unlikely for the Solimans to accept Dr. Li's supposed
assurance that their daughter had 95% chance of returning to normal health after
chemotherapy. In fact, it would be most unlikely for someone of Dr. Li's expertise to make
such a grossly reckless claim to a patient who actually had only a 20% chance of surviving
the first year. She would literary be inviting a malpractice suit.
Fourth . At the heart of the Solimans' claim for damages is the proposition that they would
not have agreed to submit their daughter to chemotherapy had they known that the side
effects she faced were more than just hair loss, vomiting, and weakness. They would not
have agreed if they had known that she would suffer greater distress and soon die. IaSAHC
But the Solimans are arguing from hindsight. The fact is that they were willing to assume
huge risks on the chance that their daughter could cheat death. They did not mind that
their young daughter's left leg would be amputated from above the knee for a 50% chance
of preventing the spread of the cancer. There is probably no person on this planet whose
family members, relatives, or close friends have not been touched by cancer. Every one
knows of the travails and agonies of chemotherapy, yet it is rare indeed for a cancer
patient or his relatives not to take a chance with this treatment, which had proved
successful in extending the lives of some. Unfortunately for the Solimans, their daughter
did not number among the successful cases.
Fifth . The Solimans accepted the risks that chemotherapy offered with full knowledge of
its effects on their daughter. It is not fair that they should blame Dr. Li for Angelica's
suffering and death brought about by a decease n that she did not wish upon her. Indeed, it
was not Dr. Li, according to Reynaldo, who convinced him to agree to submit his daughter
to chemotherapy but Dr. Tamayo. The latter explained to him the need for her daughter to
undergo chemotherapy to increase the chance of containing her cancer. This consultation
took place even before the Solimans met Dr. Li.
It is a mark of their insensitivity that the Solimans included as proof of the damages they
suffered, the expenses they incurred for the surgical procedure performed by Dr. Tamayo,
including the latter's professional fees. The amputation that Dr. Tamayo performed took
place before the chemotherapy and before the Solimans met Dr. Li. The Solimans cannot
be trusted to make an appropriate claim.
Footnotes
1.Rollo, pp. 33-63. Penned by Associate Justice Mariano C. Del Castillo (now a Member of this
Court) and concurred in by Associate Justices Roberto A. Barrios and Magdangal M. De
Leon.
2.Id. at 65.
3.Id. at 119-162. Penned by Judge Salvador D. Silerio.
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4.Records, p. 174.
5.Id. at 175.
6.Id. at 254.
7.Rollo, pp. 80-89.
8.Id. at 95-108.
9.TSN, January 26, 1995, p. 3.
10.TSN, October 6, 1995, pp. 18-26, 60; TSN, January 27, 1997, pp. 4-5.
11.Rollo, p. 35.
12.Id. at 35 and 81.
13.TSN, October 6, 1995, pp. 39-40; rollo, p. 123.
14.Id. at 40.
39.Id.
40.Rollo, p. 37.
41.TSN, October 6, 1995, p. 33.
42.Id.
43.TSN, December 15, 1994, p. 22.
44.TSN, December 14, 1994, pp. 15-38.
52.Lucas v. Tuaño, G.R. No. 178763, April 21, 2009, 586 SCRA 173, 201-202, citing Dr. Cruz v.
Court of Appeals, 346 Phil. 872, 884-885 (1997).
53.105 N.E. 92, 93 (N.Y. 1914).
54.Id.
55.Black's Law Dictionary , Fifth Edition, p. 701, citing Ze Barth v. Swedish Hospital Medical
Center, 81 Wash.2d 12, 499 P.2d 1, 8.
56.464 F.2d 772 C.A.D.C., 1972.
57.Id. at 784.
58.Id. at 780-782.
59.Id. at 782.
60.Id. at 790, 791-792.
61.8 Cal.3d 229, 502 P.2d 1 Cal. 1972.
62.Id.
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63.Id.
64.Davis v. Kraff, N.E.2d 2010 WL 4026765 Ill.App. 1 Dist., 2010, citing Coryell v. Smith, 274
Ill.App.3d 543, 210 Ill.Dec. 855, 653 N.E.2d 1317 (1995).
65.Arato v. Avedon, 858 P.2d 598 (Cal. 1993).
66.Mason v. Walsh, 26 Conn.App. 225, 229-30, 00 A.2d 326 (1991).
67.Id., 230, citing Shenefield v. Greenwich Hospital Assn., 10 Conn.App. 239, 248-49, 522 A.2d
829 (1987).
68."Informed Consent: From the Ambivalence of Arato to the Thunder of Thor" Issues in Law &
Medicine, Winter, 1994 by Armand Arabian. Sourced at Internet —
http://findarticles.com/p/articles/mi_m6875/is_n3_10/ai_n25022732/pg_37/?
tag=content;coll
CARPIO, J., dissenting:
1.Decision, p. 18.
2.Flores v. Pineda, G.R. No. 158996, November 14, 2008, 571 SCRA 83, 91.
3.Davis v. Kraff, N.E.2d 2010 WL 4026765 Ill. App. 1 Dist. 2010, citing Coryell v. Smith, 274 Ill.
App. 3d 543, 210 Ill. Dec. 855, 653 N.E.2d 1317 (1995).
4.Supra note 2.
5.Rollo, p. 34.
6.TSN, January 26, 1995, p. 3.
7.Petitioner's Answer dated March 28, 1994; rollo, p. 96.
8.Id. at 97.
9.Respondents' Complaint dated February 21, 1994, Id. at 81.
10.Id. at 174.
11.Id. at 35.
12.Id. at 89.
13.Supra note 8 at 81-82.
14.Supra note 6 at 95-108.
34.Id. at 39.
35.TSN, May 20, 1996, pp. 8-9.
36.Id. at 12.
37.Decision, pp. 18-19.
38.Id. at 19-20.
39.Bryan J. Warren, Pennsylvania Medical Informed Consent Law: A Call to Protect Patient
Autonomy Rights by Abandoning the Battery Approach, 38 Duq. L. Rev. 917, 927 (2000).
In American perspective, battery is "[a] harmful or offensive contact with a person,
resulting from an act intended to cause the plaintiff or a third person to suffer such a
contact." Infra note 35, at 890, citing W. Keeton, D. Dobbs R. Keeton, R. Keeton & D.
Owen, Prosser & Keeton on The Law of Torts, § 9, at 39 (5th ed. 1984).
40.105 N.E. 92, 93 (N.Y. 1914).
41.Supra note 39.
42.Id. at 928.
43.Id. at 929.
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44.Richard E. Shugrue & Kathryn Linstromberg, The Practitioner's Guide to Informed Consent,
24 Creighton L. Rev. 881, 893 (1991).
45.154 Cal. App. 2d 560, 317 P.2d 170.
46.Supra note 39, at 930.
47.Supra note 44, at 893.
48.Id. at 883.
62.Id. at 902.
63.464 F.2d 772, 150 U.S. App. D.C. 263 (1972).
64.Supra note 62.
65.Supra note 44, at 903.
66.Ibid.
67.Id. at 903-904.
68.281 Md. 432, 379 A.2d 1014 Md. 1977.
113.Id.
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114.William J. McNichols, Informed Consent Liability in a "Material Information Jurisdiction:
What Does the Future Portend?, 48 Okla. L. Rev. 711, 742 (1996).
115.Id. at 743.
116.Denise Ann Dickerson, A Doctor's Duty to Disclose Life Expectancy Information to
Terminally Ill Patients, 43 Clev. St. L. Rev. 319, 343 (1995).
117.Gorney v. Meaney, 214 Ariz. 226, 150 P.3d 799, citing Shetter v. Rochelle, 2 Ariz.App. 358,
367, 409 P.2d 74, 83 (1965); William L. Prosser and W. Page Keeton, The Law of Torts
§ 32, at 191 5th ed. (1984); see also Hales, 118 Ariz. at 311, 576 P.2d at 499; McGrady
v. Wright, 151 Ariz. 534, 537, 729 P.2d 338, 341 (App.1986); Gurr v. Willcutt, 146 Ariz.
575, 581, 707 P.2d 979, 985 (App.1985).
118.Ibid.
119.TSN, December 14, 1994, pp. 24-25.
120.Id. at 36.
121.Id. at 39-40.
122.TSN, October 6, 1995, p. 33.
123.Id. at 37-39.
124.Id. at 53-55.
125.Id. at 61-62.
126.Dissenting Opinion, pp. 10-11.
127.Supra note 70.
ABAD, J., concurring:
1.TSN, September 19, 1994, p. 14; TSN, December 15, 1994, pp. 6-7.
nNote from the Publisher: Copied verbatim from the official copy. The term "decease" should
read as "disease".