EN BANC
Agenda of
Item No. 3
G.R. No. 165279
DR. RUBI LI, petitioner versus SPOUSES
REYNALDO and LINA SOLIMAN as parents/heirs of deceased ANGELICA SOLIMAN, respondents.
Promulgated:
June
7, 2011
x-----------------------------------------------------------------------------------------x
SEPARATE
OPINION
BRION,
J.:
I. The Concurrence and Supporting Reasons
I concur in
the result with the ponencia
and its conclusion that the respondents failed to prove by preponderance of
evidence the essential elements of a cause of action based on the doctrine of
informed consent. This case presents to
us for the first time the application of the common-law doctrine of informed
consent in a medical negligence case, based on Article 2176 of the Civil
Code. I do not question the
applicability of this novel doctrine in this jurisdiction.
However, I do not agree
with the ponencias conclusion that
there was adequate disclosure of material risks of the [chemotherapy administered]
with the consent of Angelicas parents[1]
in view of a complete absence of competent expert testimony establishing a
medical disclosure standard in the present case. As I shall discuss below, the respondents
failed to sufficiently establish the information that should have been
disclosed to enable them to arrive at a decision on how proceed with the
treatment.
As in any ordinary
medical negligence action based on Article 2176 of the Civil Code, the burden
to prove the necessary elements i.e.,
duty, breach, injury and proximate causation rests with the plaintiff.[2] In a lack of informed consent litigation,
the plaintiff must prove by preponderance of evidence the following requisites:[3]
(1) the physician had a duty to disclose
material risks;
(2) he failed to disclose or inadequately disclosed those risks;
(3) as a direct and proximate result of the failure to disclose, the
patient consented to treatment she otherwise would not have consented to; and
(4) plaintiff was injured by the proposed treatment.
Of crucial significance
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]
I base my conclusion on
the ground that the respondents failed
to prove by competent expert testimony the first 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
define 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
On July 7, 1993, the respondents Spouses Reynaldo and Lina Solimans (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. Lukes Medical Center (SLMC)
amputated Angelicas 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
(1)
Falling
hair;
(2)
Nausea and vomiting;
(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);
(5)
The deceased patients ovaries may be affected resulting to sterility;
(6) The kidneys
and the heart might be affected so that this defendant had to check the status
of these organs before starting chemotherapy;
(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
Permission is hereby given to the medical, nursing
and laboratory staff of St. Lukes 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 confinement. 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 first cycle of chemotherapy, Angelica died.[11] 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.[12]
On
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. Tamayos testimony that he knew the petitioner as one of
the most proficient in the treatment of cancer and that Angelica was afflicted
with a very aggressive type of cancer that necessitated adjuvant chemotherapy.[15]
b.
The CA Ruling
On appeal, the Court of Appeals (CA)
while concurring with the trial courts finding 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.[16]
c.
The Respondents Supporting Testimonies
Angelicas
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.
In support of her Complaint, the
respondent Lina Soliman testified on direct examination that on
The respondent Reynaldo Soliman was
also presented to corroborate the testimony of his wife Lina Soliman. He declared that he asked the petitioner
about the side effects of chemotherapy and that the petitioner mentioned of
only falling hair, weakness and vomiting
to him.[21]
During the trial, the respondents also presented two expert witnesses:
Dr. Jesusa Vergara, a Medico-Legal Officer of the PNP Crime Laboratory, and Dr.
Melinda Balmaceda, a Medical Specialist employed at the Department of Health (DOH).[22]
Dr. Vergara declared that she has
been a physician since 1989; she did not undergo medical resident physician
training and only practiced as a general practitioner at
Dr. Vergara testified that she conducted the autopsy on Angelicas body
on
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 office 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 Childrens
Dr. Balmaceda testified that it is a physicians duty to inform and
explain to the patient or 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 patients condition.[28] On
cross-examination, Dr. Balmaceda admitted that she is not an oncologist.[29]
Despite their counsels
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.[30]
d.
The Petitioners Supporting Expert Testimonies
The petitioner
testified that she is a licensed physician and a board certified 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.[31]
On direct examination,
the petitioner testified 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 hospitals consent form.[32]
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 testified that the cancer brought on the
sepsis because of her poor defense mechanism.[33] On
cross-examination, the petitioner clarified 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.[34]
Dr. Tamayo, the orthopedic
surgeon who amputated Angelicas right leg, testified for the petitioner. He explained that the modes of therapy for
Angelicas 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.[35] He
further explained that patients with osteosarcoma
have a poor defense mechanism due to the cancer cells in the
bloodstream. In Angelicas 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 testified that he refers
most of his cancer patients to the petitioner since he personally knows her to
be a very competent oncologist.[36]
III.
The Ponencia
The ponencia cites two grounds for granting the petition. First,
there was adequate disclosure of the side effects of chemotherapy on the part
of the petitioner. Second, the respondents failed to present expert testimony to
establish the standard of care in obtaining consent prior to chemotherapy.
a.
Adequate Disclosure of Material Risks
The ponencia finds that there
was adequate disclosure of material risks inherent in the chemotherapy
[administered] with the consent of Angelicas parents. The ponencia
emphasizes that when the petitioner informed the respondents of the side
effects of chemotherapy (i.e. low
white and red blood cell and platelet count, kidney or heart damage and skin
darkening), it was reasonable for the former to expect that the latter
understood very well the side effects are not be the same for all patients
undergoing the procedure. Given this
scenario, the ponencia notes that the
respondents could not have been unaware in the course of initial treatment
that [Angelicas] immune system was already weak on account of the malignant
tumor in her knee. The ponencia also implies that death as a
result of complications of the chemotherapy or the underlying cancer is a risk
that can be reasonably inferred by the respondents from the general side
effects disclosed by the petitioner.
Finally, the ponencia disregarded
the respondents claim that the petitioner assured them of 95% chance of
recovery for Angelica as it is unlikely for doctors (like the petitioner) who
are dealing with grave illnesses to falsely assure patients of the
chemotherapys success rate; at any rate, specific disclosures such as
statistical data are not legally necessary.[37]
b.
Failure to Present Expert Testimony
The ponencia holds that in a medical malpractice action based on lack
of informed consent, the plaintiff must prove both the duty to disclose
material risks and the breach of that duty through expert testimony. The expert testimony must show the customary
standard of care of physicians in the same practice as that of the defendant
doctor. In the present case, the ponencia notes that Dr. Balmacedas expert
testimony is not competent to establish the standard of care in obtaining
consent for chemotherapy treatment.[38]
IV.
The Doctrine of Informed Consent
The present case is one
of first impression in this jurisdiction in the application of the doctrine
of informed consent in a medical negligence case. For a deeper appreciation of the application
of this novel doctrine, a brief look at the historical context, the different
approaches underlying informed consent, and the standards of disclosure would
be very helpful.
a.
The doctrine of
informed consent first appeared in American jurisprudence in cases involving
unconsented surgeries which fit the analytical framework of traditional
battery.[39]
Most commentators begin their discussions of the legal doctrine of informed
consent with the famous 1914 opinion of Associate Justice Benjamin Cardozo in Schloendorff v. Society of New York
Hospitals[40] where
he wrote:
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 the
patient's consent commits an assault, for which he is liable in damages. This
is true, except in cases of medical emergency, where the patient is unconscious,
and where it is necessary to operate before consent can be obtained.[41]
Scholendorff is
significant because it characterized the wrong [committed by the physician] as
a trespass, and not [as] a negligent act.
It illustrated the concept of medical battery [where] a patient is
subjected to an examination or treatment without express or implied
consent. Thus, [this] battery approach
to informed consent seeks to protect the patients physical integrity and
personal dignity from harmful and unwanted contact.[42]
[A]s
the century progressed and the practice of medicine became more sophisticated,
courts began to consider whether the patient had been given sufficient
information to give true consent.[43] One commentator notes that in the mid-1950s,
the courts had shifted their focus from
the issue of whether the patient gave consent, to whether adequate information
was given for the patient to have made an informed consent. Thus, the
quantity of information provided to the patient in making decisions regarding
medical treatment was given greater scrutiny and the physicians duty to
disclose assumed a primary role.[44]
The
1957 case of Salgo v. Leland Stanford Jr.
University of Board of Trustees[45]first
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.[46] 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 sufficient for the patient to make an informed consent.[47]
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.[48]
Thus, in 1960, the Kansas Supreme Court explicitly rejected the battery
approach in Natanson v. Kline[49]
where it held that the failure to disclose to the patient sufficient
information to allow informed consent to the procedure was an action based in
negligence and not on an unconsented
x x x
touching [or] battery.[50] The courts in Natanson v. Kline[51]
and Mitchell v. Robinson[52]
clarified as well the scope of the physicians 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.[53] 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.[54]
Finally,
in 1972, the California Supreme Court in Cobbs
v. Grant[55] 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]
b. Standards of Disclosure: Professional
Disclosure
Standard
v. Reasonable Patient Standard
A
significant development in the evolution of the doctrine of informed consent in
the
The
fulfillment of this requirement often precluded a finding of liability not only
because of the difficulty 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.[61]
In
the early 1970s, the courts and legislature in the
The
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, benefits, alternatives, diagnosis, and the
nature of the treatment. To do so would require the patient first 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,[68]
the Maryland Court of Appeals succinctly explained the rationale in adopting
the reasonable patient standard first established in Cantebury v. Spence,[69] 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 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 physicians liability in
a medical negligence case.[70] 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.[71]
Cruz
v. Court of Appeals,[72]
a 1997 case, provided the first instance for the Court to elaborate on the
crucial significance 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:
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 field, 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
scientific knowledge, it has been recognized that expert testimony is usually
necessary to support the conclusion as to causation.
x
x x The deference of courts to
the expert opinion of qualified 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 qualifications 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 sufficiently 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[73]
meanwhile illustrates that in cases where the doctrine of res ipsa loquitur[74]
is applicable, the requirement for expert testimony may be dispensed with. Thus, in finding 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 difficult to tell if the tube was properly
inserted. This kind of observation, we believe, does not require a medical
degree to be acceptable.[75]
d. The Limited
but Critical Role of Expert
Testimony in Informed Consent Litigation
One of the major
and fiercely contested issues in the growing number of informed consent cases
in the
In informed consent
cases (unlike in ordinary medical negligence cases), however, many issues do
not necessarily involve medical science.
In the landmark case of Canterbury
v. Spence,[78]
the United States Court of Appeals for the District Columbia Circuit defined
the limited role of expert testimony in informed consent cases and provided
examples of situations appropriate for non-expert testimony:
There are obviously important roles for medical testimony in such
cases, and some roles which only medical evidence can fill. Experts are
ordinarily indispensible to identify and elucidate for the fact finder the risks of therapy and the consequences of leaving existing maladies
untreated. They are normally needed on issues as to the cause of any injury or disability suffered
by the patient and, where privileges are asserted, as to the existence of any emergency claimed and
the nature and seriousness of any impact
upon the patient from risk-disclosure.
Save for relative infrequent instances where questions of this type are
resolvable wholly within the realm of ordinary human knowledge and experience,
the need for the expert is clear.
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
sufficient 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, 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 refinements in subsequent applications. The
1983 case of Smith v. Shannon,[79] - 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 scientific 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 first step almost as
clearly does. Only a physician (or other qualified 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]
In
Jambazian v. Borden,[80] a 1994 case, the
California Court of Appeals held that in proving his informed consent claim,
the plaintiff was required to present properly qualified 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, scientific
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,[81] 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[82] and held that the effect
of Bettertons aspirin use on the risk of surgical complications is subject to
proof only by expert witnesses, viz:
Whether to disclose a significant
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
significant risks in surgery. [Citations omitted, emphasis supplied]
In Morhaim
v. Scripps Clinic Medical Group, Inc.[83] that followed, the Court
dismissed Morhaims 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 first 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[84]
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.[85]
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[86] 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 find 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.
a. First
Element: Duty to Disclose Material Risks
As
discussed, two competing standards are available to determine the scope and
adequacy of a physicians disclosure the professional
disclosure standard or the reasonable
patient standard.
While
I concur with the results of the ponencia,
I find its approach and reasoning in its use of the standards to be confused.
The ponencia claims that expert
testimony must show the customary standard of care of physicians in the same
practice as that of the defendant doctor,[87]
thereby indicating its partiality to the use
of the professional disclosure standard.
At the same time, the ponencia
felt hesitant in defining the scope of mandatory disclosure in cases based on
lack of informed consent, much less set a standard of disclosure,[88]
citing lack of expert testimony in this regard.
In plainer terms, it effectively said that the respondents failed to
prove what must be disclosed. Yet, it
also concluded that there was adequate disclosure of material risks inherent
in the chemotherapy procedure performed with the consent of Angelicas parents.[89]
After considering the American experience in
informed consent cases, I opt to use the
reasonable patient standard which focuses on the informational needs of an
average reasonable patient, rather than on professionally-established norms.[90] In the doctor-patient relationship, it is the
patient who is subjected to medical intervention and who gets well or suffers
as a result of this intervention. It is
thus for the patient to decide what type of medical intervention he would
accept or reject; it is his or her health and life that are on the line. To arrive at a reasonable decision, the
patient must have sufficient advice and information; this is the reason he or
she consults a doctor, while the role of the doctor is to provide the medical
advice and services the patient asks for or chooses after informed
consideration.[91]
In this kind of relationship, the doctor carries the
obligation to determine and disclose all the risks and probabilities that will
assist the patient in arriving at a decision on whether to accept the doctors
advice or recommended intervention.[92] While the disclosure need
not be an encyclopedic statement bearing on the patients illness or condition,
the doctor must disclose enough information to reasonably allow the patient to
decide.
In an informed consent litigation, American
experiences documented through the decided cases, as well as our own common
empirical knowledge and limited line of cases on medical negligence, tell us
that at least the testimony on the determination of the attendant risks and the probabilities of the proposed treatment or
procedure is a matter for a medical expert, not for a layperson, to
provide. This is generally the first of
the two-step process that Smith v.
Shannon, cited above, speaks of[93] in describing the
reasonable patient standard and its application.
The second step
relates to testimony on the determination of the adequacy of the disclosure
based on the materiality of the disclosed information to the patients decision-making.
In this regard, Canterbury v. Spence[94] again offers some help
when it states:
Once the circumstances give rise to a duty
on the physician's part to inform his patient, the next inquiry is
the scope of the
disclosure the physician is legally obliged to
make. The courts have frequently confronted this problem but no uniform
standard
defining the adequacy of the divulgence emerges
from the decisions. Some have
said full disclosure, a norm we are unwilling to adopt
literally. It seems obviously
prohibitive and unrealistic to expect physicians to discuss with their
patients every risk of proposed treatment - no matter how small or remote - and
generally unnecessary from the patient's viewpoint as
well. Indeed, the cases speaking
in terms
of full disclosure appear to envision something less than total
disclosure,
leaving unanswered the question of just how much.[95]
To
my mind, the scope that this ruling describes, while not given with
mathematical precision, is still a good rule to keep in mind in balancing the
interests of the physician and the patient; the disclosure is not total by
reason of practicality, but must be adequate to be a reasonable basis for an
informed decision. For this aspect of
the process, non-expert testimony may be used on non-technical detail so that
the testimony may dwell on a physicians failure to disclose risk information,
the patients lack of knowledge of the risk, and adverse consequences following
the treatment.[96]
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.[97]
As
expert witness, the respondents presented Dr. Balmaceda who testified on the
physicians general duty to explain to the patient or to his relatives all the
known side effects of the medical procedure or treatment. Specifically, Dr. Balmaceda gave the
following expert opinion:
ATTY. NEPOMUCENO
Q: Madam Witness, what is the standard operating
procedure before a patient can be subjected to procedures like surgery or
administration of chemotheraphic (sic)
drugs?
A: Generally, every physician base (sic) her or his assurance on the
patient, on the mode of recovery by her or his personal assessment of the
patients condition and his knowledge of the general effects of the agent or
procedure that will be allowed to the patient.
Q: What is the duty of the physician in
explaining the side effects of medicines to the patient?
A: Every known side effects of the procedure or
the therapeutic agents should really be explained to the relatives of the
patient if not the patient.
Q: Right, what could be the extent of the side
effect to the patient?
A: I said, all known side effects based on
studies and observations.
Q: Should be?
A: Made known to the relatives of the patient or
the patient.
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.
ATTY. NEPOMUCENO
Q: Now, should
the physician ask the patients relatives whether they under[stood] the
explanation?
A: Yes, generally, they (sic) should.[98]
On cross-examination, Dr. Balmaceda
only clarified that all known side-effects of the treatment, including those
that may aggravate the patients 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?
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 patients 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.[99]
Unfortunately for the respondents, Dr.
Balmacedas 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 testified as an expert on these points for the
simple reason that she is not an oncologist nor a qualified expert on the
diagnosis and treatment of cancers.[100] 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[101] 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 field 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 explaining to the court the pharmacologic
and toxic effects of the supposed culprit, Thiopental Sodium (Pentothal).
x
x x x
An anesthetic accident caused by a rare drug-induced
bronchospasm properly falls within the fields of anesthesia, internal
medicine-allergy, and clinical pharmacology. The resulting anoxic
encephalopathy belongs to the field of neurology. While admittedly, many
bronchospastic-mediated pulmonary diseases are within the expertise of
pulmonary medicine, Dr. Jamora's field, the anesthetic drug-induced, allergic
mediated bronchospasm alleged in this case is within the disciplines of
anesthesiology, allergology and pharmacology. On the basis of the foregoing
transcript, in which the pulmonologist himself admitted that he could not
testify about the drug with medical authority, it is clear that the appellate
court erred in giving weight to Dr. Jamoras testimony as an expert in the
administration of Thiopental Sodium.
x
x x x
Generally, to qualify as an expert witness, one must have
acquired special knowledge of the subject matter about which he or she is to
testify, either by the study of recognized authorities on the subject or by
practical experience. Clearly, Dr. Jamora does not qualify as an expert
witness based on the above standard since he lacks the necessary knowledge,
skill, and training in the field of anesthesiology. Oddly, apart from
submitting testimony from a specialist in the wrong field, private respondents
intentionally avoided providing testimony by competent and independent experts
in the proper areas.[102]
At best, Dr. Balmacedas testimony only established generally the petitioners duty to
disclose all the known risks of the proposed treatment and nothing more. Even if this
testimony is deemed competent, its probative value on the risks attendant to
chemotherapy and the probabilities that the attending chemotherapy specialist
should have considered and disclosed to the patient and her parents cannot
but be negligible for lack of the required capability to speak on the subject
of the testimony.
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.[103] To support his conclusion, Justice Carpio
cites jurisprudence which allowed the use of the defendant-physicians expert
testimony to prove the medical disclosure standard in the community.[104] I cannot subscribe to this point of view.
Arguably, the medical
disclosure standard can be established through the petitioners own expert
testimony, as has been done in some courts in the
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
Sufficiency 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 communitys 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 petitioners
testimony, on its own, did not establish the medical standard in obtaining
consent for chemotherapy treatment.
Stated differently, the petitioners testimony did not specifically
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 Angelicas 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.
I cannot agree with this conclusion because it was made without the
requisite premises. As heretofore
discussed, sufficiency 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 sufficient disclosure
followed. In other words, the disclosure
cannot be said to be sufficient in the absence of evidence of what, in the
first 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 respondents 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.[109]
Lastly, the respondent
Lina Solimans testimony on this point bears close examination in light of the
totality of the evidence adduced. A first 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
Angelicas right leg was not sufficient, chemotherapy must follow; despite
modern chemotherapy, the mortality rate of osteosarcoma
is 80 to 90%.[110]
In light of this expert testimony, the respondent Lina Solimans 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 given any credence considering the respondent Lina Solimans inconsistent
testimony on this point. In fact, the
record bears out that the respondent Lina Soliman testified 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 specific disclosures such as life
expectancy probabilities[111]
are not legally necessary or required to be disclosed in informed consent
situations,[112]
thus the respondent Lina Solimans testimony on this point cannot be given any probative
value. Thus, in the landmark case of Arato v. Avedon[113]
- 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[114]
- the Supreme Court of California rejected the mandatory disclosure of life
expectancy probabilities[115]
on account of the variations among doctor-patient interactions and the
intimacy of the relationship itself.[116]
Likewise, the statement
that the side effects were confined to hair loss, vomiting and weakness can
hardly be given full credit, given the petitioners own testimony of what she
actually disclosed. Respondent Lina
Solimans testimony, tailor-fitted 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 reflect 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 first 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 testified 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 first 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, and 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.[117]
In the recent case of Gorney v. Meaney,[118] 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 first 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 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 x
x x. Thus, Gorney's expert
opinion affidavit 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
Solimans lay testimony at best only satisfied the first 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 Angelicas 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 laymans
term, what is the meaning of that?
WITNESS
A: The victim died of hemorrhages in different
organs and disseminated intravascular coagulation is just a complication.
ATTY. NEPOMUCENO
Q: Madam Witness, what could have caused this
organ hemorrhages and disseminated intravascular coagulation?
A: The only thing I could think of, sir, was the
drugs given to the victim, the chemical agents or this anti-plastic drugs can
cause x
x x the reduction in the platelet counts and this
could be the only cause of the bleeding.
Q: And that bleeding could have been sufficient
to cause the death of Angelica Soliman?
A: Yes, Sir.[119]
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.
Q: That is, are you referring to malignant
osteosarcoma?
A: Yes, sir.[120]
x x x x
ATTY.
AYSON
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?
A: Only for the disease osteosarcoma.
x x x x
COURT
Q: So then, the opinion you gave us that the
patient afflicted 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
five (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, five 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?
A: Sir, considering my findings at the body or
the different organs, of the victim, I have said I found hemorrhages, so I
think that is enough to have caused the death of the victim.[121]
Under these terms, Dr. Vergaras expert
testimony was clearly incompetent to prove that the chemotherapy proximately
caused Angelicas demise for two reasons.
First, Dr. Vergara, who is an autopsy expert,
is not qualified to be an expert witness in an osteosarcoma case
involving chemotherapy. Her admission
that she consulted an oncologist prior to her testimony in court confirms
this. Dr. Vergara is also not a
pharmacologist who can competently give expert opinion on the factual issue of
whether the toxic nature of the chemotherapy proximately caused Angelicas
death. As previously stated, the
respondents failed to present competent experts in the field of oncology
despite their representation to do so during trial.
Second, Dr. Vergaras 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 testified
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 significantly lessened the
probative value of Dr. Vergaras testimony regarding the causation of
Angelicas death.
Thus, in the absence of competent
evidence that the chemotherapy proximately caused Angelicas death, what stands in the record in this case is
the petitioners 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 certified medical oncologist with thirteen (13) years of experience
in the treatment of osteosarcoma testified that Angelica died of
sepsis, viz:
Q: Now, despite all these medications, the
patient has been deceased on
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. [122]
On
cross-examination, the petitioner rebutted the respondents theory that the
chemotherapy caused platelet reduction and the massive bleeding that ultimately
caused Angelicas death, viz:
Q: Would you agree with me if I say that the
platelet reduction triggered a chain of physiological pathological mechanism in
the body of Angelica Soliman which eventually triggered her death?
A: No, sir.
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 reduction?
A: The infection, sir.
Q: And you said overwhelming?
A: Because we were talking about the death.
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.
x x x x
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.
x x x x
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.[123]
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.
Q: It was the fifth day already?
A:
Yes, sir.
Q: And you changed [the] antibiotic?
A: [I] changed it into something stronger, sir.
Q: What transpired?
A: She was given Fortum intravenously.
x x x x
Q: By sepsis, meaning that the germs, the
bacteria were already in the blood system, is that correct?
A: Yes, beginning.
x x x x
Q:
What about Fortum did it take effect?
A: No, sir.
Q: Why not?
A: The patient has been going down ever since
and the white cells were down for it was not enough to control the infection
because there was nothing in her body to fight and help Fortum fight the
infection, that is why, we also add (sic)
another medicine that would increase her white cell count called Leucomax.
Q: And did Leucomax help?
A: No, sir. [124]
Q: Of the 500 patients, you said you treated
before, how may developed sepsis?
A: I will say 1/5 developed sepsis.
Q: And of the 1/5 that developed
sepsis before Angelica Soliman, how many died?
A:
Seventy percent (70%).
Q:
Died?
A:
Yes, sir.[125]
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 Angelicas death.[126]
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 Angelicas
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]
In sum, the respondents failed to prove by
appropriate evidence i.e., by
expert testimony that Angelicas 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 respondents claim of medical
negligence due to lack of informed consent.
On the basis of the foregoing, I vote to grant the
petition.
ARTURO D. BRION
Associate Justice
[1] Decision, p. 18.
[2]
[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,
[7] Petitioners Answer dated
[8]
[9]
Respondents Complaint dated
[10]
[11]
[12]
[13] Supra note 8 at 81-82.
[14] Supra note 6 at 95-108.
[15]
[16]
[17] TSN,
[18]
[19]
TSN,
[20]
[21] TSN,
[22] rollo, p. 52.
[23] TSN,
[24]
[25]
[26]
[27]
TSN,
[28]
[29]
[30]
[31] TSN,
[32]
[33]
[34]
[35] TSN,
[36]
[37]Decision, pp. 18-19.
[38]
[39] Bryan J. Warren,
[40] 105 N.E. 92, 93 (N.Y. 1914).
[41] Supra note 39.
[42]
[43]
[44] Richard E. Shugrue & Kathryn
Linstromberg, The Practitioners Guide To
Informed Consent, 24 Creighton L. Rev. 881, 893 (1991).
[45] 154
[46] Supra note 39, at 930.
[47] Supra note 44, at 893.
[48]
[49] 186
[50] Supra note 39, at 930.
[51] Supra note 49.
[52] 334 S.W.2d 11 (
[53] Supra note 44, at 894.
[54] Ibid.
[55] 8 Cal.3d 229, 502 P.2d 1, 104
[56] Supra note 39, at 931.
[57]
[58] Supra note 49.
[59]
Supra note 44,
at 899.
[60]
[61]
[62]
[63] 464 F.2d 772, 150
[64] Supra note 62.
[65]
Supra note 44, at
903.
[66] Ibid.
[67]
[68] 281
[69] Supra note 63.
[70] See Cruz v. Court of Appeals, G.R. No. 122445, November 18, 1997, 282
SCRA 188; Flores v. Pineda, supra note 2; Cayao-Lasam v. Ramolete, G.R. No. 159132, December 18, 2008, 574 SCRA
439.
[71]
[72] Supra note 70, at 189-190.
[73] G.R. No. 124354,
[74] Res ipsa loquitur is a Latin phrase which literally means the
thing or the transaction speaks for itself. The phrase res ipsa loquitur
is a maxim for the rule that the fact of the occurrence of an injury, taken with
the surrounding circumstances, may permit an inference or raise a presumption
of negligence, or make out a plaintiffs prima facie case, and present a
question of fact for defendant to meet with an explanation.
[75]
[76] 52 ALR 3d 1084.
[77] Ibid.
[78]
Supra note 63.
[79] 100 Wash.2d 26, 666 P.2d 351.
[80] 25
[81] 101
[82] Infra note 83.
[83] 2005 WL 237772 (Cal.App.4
Dist.).
[84] Supra note 63.
[85] Ibid.
[86] Supra note 63.
[87] Decision, p. 20.
[88]
[89] Supra note 1.
[90] Supra note 44, at 902.
[91] See Miller v. Kennedy, 11Wash.App. 272, 522 P.2d 852 (1974) where the
Washington Court of Appeals emphasized that it is for the patient to evaluate
the risks of treatment and that the only role to be played by the physician is
to provide the patient with information as to what those risks are. Supra
note 72.
[92] See Cobbs v. Grant , supra
note 53 where the Supreme Court of California held: [T]he patient, being
unlearned in medical sciences, has an abject independence upon and trust in his
physician for the information upon which he relies during the decisional
process, thus raising an obligation in the physician that transcends
arms-length transactions.
[93] Supra note 79.
[94] Supra note 63.
[95]
[96] Supra note 63.
[97] Turner v. The Cleveland Clinic Foundation, 2002
WL 31043137 (Ohio App. 8 Dist.), citing Harris v. Ali (May
27,1999), Cuyahoga App. No. 73432, citing Ratcliffe v. University Hospitals
of Cleveland (March 11, 1993), Cuyahoga App. No. 61791, citing Ware v.
Richey, 14 Ohio App.3d 3, 7, 469 N.E.2d 899.FN1.
[98] TSN,
[99]
[100] Supra note 30.
[101] Supra note 72.
[102]
[103] Justice Carpio asserts that the
petitioner testified and admitted that the following are the 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
kidneys; (9) Damage to the heart; (11) Skin darkening; (12) Rashes; (13)
Difficulty 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; (26) Death after 13 days. Dissenting Opinion,
pp. 6-7.
A close scrutiny of the evidence on record reveals
otherwise. In her Answer, the petitioner
only mentioned the following side-effects of chemotherapy: (1) falling hair;
(2) nausea and vomiting; (3) Loss of appetite; (4) low count of white blood
cells, red blood cells and platelets, (5) possible sterility, (6) damage to the
heart and kidneys, and (7) darkening of skin. Supra note 7. During trial,
the petitioner testified that she mentioned only the following side effects of
chemotherapy to the respondents: hair loss, nausea, vomiting, sterility, and
low and white blood cells and platelet count. Supra note 31.
[104] Dissenting Opinion, p. 5.
[105] 88 A.L.R.3d 1008 citing Hood v Phillips (1977,
[106] Nishi
v. Hartwell, 52 Haw. 188,
473 P.2d 116 (1970) citing Vigil v.
Herman, 102 Ariz. 31, 424, P.2d 159 (1967);
Sheffield v. Runner, 163
Cal.App.2d 48, 328 P.2d 828 (1958); McPhee v. Bay City Samaritan Hospital,10
Mich.App. 567, 159 N.W.2d 880 (1968);
[107] Supra note 63.
[108] 260 NJ Super 322, 616 A2d 933
(1992).
[109] Supra note 76 citing Giles v. Brookwood Health Services, Inc.,
5 So. 3d 533 (
[110] Supra note 36.
[111] Arato v. Avedon, 5 Cal.4th
1172, 858 P.2d 598, 23 Cal.Rptr.2d 131.
[112]
[113]
[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]
[116] Denise Ann Dickerson, A Doctors Duty To Disclose Life
Expectancy Information To Terminally Ill Patients, 43 Clev. St. L. Rev.
319, 343 (1995).
[117]
Gorney v. Meaney, 214
[118] Ibid.
[119] TSN,
[120]
[121]
[122]
TSN,
[123]
[124]
[125]
[126] Dissenting Opinion, pp. 10-11.
[127] Supra note 70.