EN BANC
G.R. No.
165279 --- DR. RUBI LI, Petitioner, versus SPOUSES REYNALDO AND LINA SOLIMAN, Respondent.
Promulgated:
June 7, 2011
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CONCURRING
OPINION
ABAD, J.:
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 sufficiently
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.
The Plaintiffs
evidence
Lina Soliman (Lina) testified that in
the summer of 1993 she noticed her daughter Angelica walking with some
difficulty. She brought her to a
hospital in Bicol where she was diagnosed with a malignant tumor in her right
knee. They then went to the National
Childrens
On July 7, 1993 Lina brought Angelica to
St. Lukes
Before starting the chemotherapy, Dr. Li
told Lina when they met its three possible side-effects: vomiting, hair loss,
and weakening. When Lina asked Dr. Li if
the chemotherapy had any other possible effects, she replied in the negative. The chemotherapy was originally set for August
12, 1993 but had to be reset because the Solimans returned to Bicol for a rest. Lina called up Dr. Li about the deferment and
during that call she asked the doctor anew about the effects of the drugs that she
would use on Angelica. Dr. Li repeated the
three side effects she earlier mentioned.
When Angelica checked in at St. Lukes on
August 18, Dr. Li came to administer dextrose to her. On this occasion, Dr. Li told the Solimans that
Angela had a 95% chance of becoming normal again after the chemotherapy. Lina asked the doctor anew about the
side-effects and the latter said the same thing: falling hair, vomiting, and
weakness.
Dr. Li first administered the drugs for
chemotherapy to Angela on August 19.
That night, Angelica started vomiting.
Lina asked the attending nurse about it but the latter said that it was just
an effect of the drugs. The treatment continued
on the second day and so did the vomiting.
On the third day of chemotherapy, Lina observed redness all over
Angelicas face. She asked Dr. Li about this
but the doctor told her that it was only a reaction to the drugs.
On the fourth day, the discoloration on
Angelas 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 difficulty 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 confined because of convulsion, which Dr. Li treated by giving her calcium.
Afterwards, when Angelicas nose and
mouth secreted blood, Dr. Li attributed this to the lowering of her platelet
count. They decided to move her to the
hospitals intensive care unit for closer monitoring. After getting blood transfusion, Angelicas 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), Angelicas
father, testified that they consulted with a number of doctors from the Ago
Medical and
Angelica showed no reaction to the chemotherapy
on its first 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 fit. 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.
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 Angelicas 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
certificate, 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.
For her part, Dr. Li testified 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 first 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 daughters survival
would increase and the chances of the cancer returning would lower.
Dr. Li met the Solimans following Angelicas
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 Angelicas 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.
Dr. Li met the Solimans again sometime
in the first 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. Lukes hospital readmitted
Angelica for the chemotherapy. On the
first day, they gave her fluids to make sure that her kidney functioned well
and that she was hydrated. Seeing no
problem, Dr. Li started Angelicas chemotherapy on August 19.
Regarding the redness on Angelicas
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 Angelicas 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 Angelicas 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 testified for Dr. Li. He recalled treating the cancerous growth in
Angelicas lower left leg. The doctor
amputated the leg to remove the source of the tumor. 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
Solimans consultation with other doctors, including the doctor who performed
the biopsy and confirmed the diagnosis for osteosarcoma, made them aware of
that possibility.
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 daughters
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 five 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, testified 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. Lis part. Quite importantly, the trial court which had
the benefit of perceiving not only the witnesses utterances but what the
movements of their eyes and mouths said, gave credence to Dr. Lis 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
Angelicas 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?
Besides, the fact that the Solimans,
especially Lina, still sought explanations from Dr. Li for her daughters 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 first 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 doctors 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 daughters deteriorating condition, to want to know
the doctors explanation for it. The
previous explanations did not have the benefit 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
first anticipated side effect, the Solimans still anxiously 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 Childrens Hospital
in Quezon City, and finally the St. Lukes hospital, all of whom gave the same dire
opinion, it would be quite unlikely for the Solimans to accept Dr. Lis
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. Lis 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.
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 daughters 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 Angelicas suffering and death brought about by a decease 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
latters 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.
ROBERTO A. ABAD
Associate Justice