THIRD DIVISION

[G.R. No. 163879. July 30, 2014.]

DR. ANTONIO P. CABUGAO , petitioner, vs. PEOPLE OF THE

PHILIPPINES and SPOUSES RODOLFO M. PALMA and
ROSARIO F. PALMA, respondents.

[G.R. No. 165805. July 30, 2014.]

DR. CLENIO YNZON, petitioner, vs. PEOPLE OF THE

PHILIPPINES and SPOUSES RODOLFO M. PALMA AND
ROSARIO F. PALMA, respondents.

DECISION

PERALTA, J : p

Before this Court are appeals via Rule 45 from the Decision 1 dated
June 4, 2004 of the Court of Appeals in CA-G.R. CR No. 27293, affirming the
Decision 2 dated February 28, 2003 of the Regional Trial Court (RTC),
convicting petitioners Dr. Antonio P. Cabugao (Dr. Cabugao) and Dr. Clenio
Y n z o n (Dr. Ynzon) of the crime of Reckless Imprudence Resulting to
Homicide.
The Information 3 alleged —
That on or about June 17, 2000 in the City of Dagupan,
Philippines, and within the jurisdiction of this Honorable Court, the
abovenamed accused, DR. ANTONIO P. CABUGAO and DR. CLENIO
YNZON, being then the attending physicians of one RODOLFO PALMA,
JR., a minor 10 years old, confederating and acting jointly with one
another, did, then and there, willfully, unlawfully and feloniously fail
through negligence, carelessness and imprudence to perform
immediate operation upon their patient, RODOLFO PALMA, JR. of acute
appendicitis, when they, the said physicians, should have been done so
considering that examinations conducted upon their patient Rodolfo
Palma, Jr. seriously manifest to do so, causing by such negligence,
carelessness, and imprudence the victim, RODOLFO PALMA JR., to die
due to:
"CARDIORESPIRATORY ARREST, METABOLIC ENCEPHALOPATHY,
SEPTICEMIA (ACUTE APPENDICITIS), CEREBRAL ANEURYSM RUPTURED
(?)"
As per Certificate of Death issued by accused Dr. Antonio P.
Cabugao, to the damage and prejudice of the legal heirs of said
deceased RODOLFO PALMA, JR. and other consequential damages
relative thereto.
CONTRARY to Article 365, 1st par. of the Revised Penal Code.
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Dagupan City, Philippines, January 29, 2001. HEacDA

Arising from the same events, the Court resolved to consolidate these
cases. 4 The facts, as culled from the records, are as follows:
On June 14, 2000, at around 4 o'clock in the afternoon, ten (10)-year
old Rodolfo F. Palma, Jr. (JR) complained of abdominal pain to his mother,
Rosario Palma. At 5 o'clock that same afternoon, Palma's mother and father,
Atty. Rodolfo Palma Sr., brought JR to the clinic of accused Dr. Cabugao. Dr.
Cabugao, a general practitioner, specializing in family medicine gave
medicines for the pain and told Palma's parents to call him up if his stomach
pains continue. Due to persistent abdominal pains, at 4:30 in the early
morning of June 15, 2000, they returned to Dr. Cabugao, who advised them
to bring JR to the Nazareth General Hospital in Dagupan City, for
confinement. JR was admitted at the said hospital at 5:30 in the morning. 5
Blood samples were taken from JR for laboratory testing. The complete
blood count conveyed the following result: wbc — 27.80 x 10 9/L;
lymphocytes — 0.10 and neutrophils — 0.90. Diagnostic ultrasound was
likewise conducted on the patient's lower abdomen by radiologist, Dr. Ricky
V. Querubin, with the following findings:
Normal liver, bile ducts, gallbladder, pancreas, spleen, kidneys and
urinary bladder.

There is no free peritoneal fluid.

There is localized tenderness in the paraumbilical region, more so in

the supra and right paraumbilical areas.

There is a vague elongated hypoechoic focus in the right

periumbilical region roughly about 47 x 18 mm surrounded by
undistended gas-filled bowels. This is suggestive of an
inflammatory process wherein appendiceal or periappendiceal
pathology cannot be excluded. Clinical correlation is
essential." 6
Dr. Cabugao did a rectal examination noting the following: "rectal:
good sphincter, negative tenderness, negative mass." The initial impression
was Acute Appendicitis, 7 and hence, he referred the case to his co-accused,
Dr. Ynzon, a surgeon. 8 In the later part of the morning of June 15, 2000, Dr.
Ynzon went to the hospital and read the CBC and ultrasound results. The
administration of massive antibiotics and pain reliever to JR were ordered.
Thereafter, JR was placed on observation for twenty-four (24) hours.
In the morning of June 16, 2000, JR complained again of abdominal pain
and his parents noticed a swelling in his scrotum. In the afternoon of the
same day, JR vomitted out greenish stuff three (3) times and had watery
bowels also three (3) times. The nurses on-duty relayed JR's condition to Dr.
Ynzon who merely gave orders via telephone. 9 Accused continued
medications to alleviate JR's abdominal spasms and diarrhea. By midnight, JR
again vomitted twice, had loose bowel movements and was unable to sleep.
The following morning, June 17, 2000, JR's condition worsened, he had a
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running fever of 38ºC. JR's fever remained uncontrolled and he became
unconscious, he was given Aeknil (1 ampule) and Valium (1 ampule). JR's
condition continued to deteriorate that by 2 o'clock in the afternoon, JR's
temperature soared to 42ºC, had convulsions and finally died.
The Death Certificate 10 dated June 19, 2000 prepared by Dr. Cabugao
indicated the following causes of death:
Immediate cause: CARDIORESPIRATORY ARREST

Antecedent cause: METABOLIC ENCEPHALOPATHY

Underlying cause: SEPTICEMIA (ACUTE APPENDICITIS)

Other significant conditions contributing to death: CEREBRAL

ANEURYSM RUPTURED (?).

No post-mortem examination was conducted on JR. On February 1,

2001, an Information was filed against accused for reckless imprudence
resulting to homicide. At their arraignment, both accused, duly assisted by
counsel, pleaded not guilty to the charge. AcSIDE

On February 28, 2003, in convicting both the accused, the trial court
found the following circumstances as sufficient basis to conclude that
accused were indeed negligent in the performance of their duties:
It is unquestionable that JR was under the medical care of the
accused from the time of his admission for confinement at the
Nazareth General Hospital until his death. Upon his admission, the
initial working diagnosis was to consider acute appendicitis. To assist
the accused in the consideration of acute appendicitis, Dr. Cabugao
requested for a complete blood count (CBC) and a diagnostic
ultrasound on JR. The findings of the CBC and ultrasound showed that
an inflammatory process or infection was going on inside the body of
JR. Said inflammatory process was happening in the periumbilical
region where the appendix could be located. The initial diagnosis of
acute appendicitis appears to be a distinct possibility. . . . .
Dr. Ynzon ordered medications to treat the symptoms being
manifested by JR. Thereafter, he ordered that JR be observed for 24
hours. However, the accused, as the attending physicians, did not
personally monitor JR in order to check on subtle changes that may
occur. Rather, they left the monitoring and actual observation to
resident physicians who are just on residency training and in doing so,
they substituted their own expertise, skill and competence with those
of physicians who are merely new doctors still on training. Not having
personally observed JR during this 24-hour critical period of
observation, the accused relinquished their duty and thereby were
unable to give the proper and correct evaluation as to the real
condition of JR. In situations where massive infection is going on as
shown by the aggressive medication of antibiotics, the condition of the
patient is serious which necessitated personal, not delegated, attention
of attending physicians, namely JR and the accused in this case.
xxx xxx xxx
Throughout the course of the hospitalization and treatment of JR,
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the accused failed to address the acute appendicitis which was the
initial diagnosis. They did not take steps to find out if indeed acute
appendicitis was what was causing the massive infection that was
ongoing inside the body of JR even when the inflammatory process was
located at the paraumbilical region where the appendix can be located.
...
There may have been other diseases but the records do not show
that the accused took steps to find out what disease exactly was
plaguing JR. It was their duty to find out the disease causing the health
problem of JR, but they did not perform any process of elimination.
Appendicitis, according to expert testimonies, could be eliminated only
by surgery but no surgery was done by the accused. But the accused
could not have found out the real disease of JR because they were
treating merely and exclusively the symptoms by means of the
different medications to arrest the manifested symptoms. In fact, by
treating the symptoms alone, the accused were recklessly and
wantonly ignoring the same as signs of the graver health problem of JR.
This gross negligence on the part of the accused allowed the infection
to spread inside the body of JR unabated. The infection obviously
spread so fast and was so massive that within a period of only two and
a half (2 1/2) days from the day of admission to the hospital on June
15, 2000, JR who was otherwise healthy died [of] Septicemia (Acute
Appendicitis) on June 17, 2000. 11
On June 4, 2004, in affirming the accused's conviction, the Court of
Appeals gave similar observations, to wit:
The foregoing expert testimony clearly revealed such want of
reasonable skill and care on the part of JR's attending physicians,
appellants Dr. Cabugao and Dr. Ynzon in neglecting to monitor
effectively and sufficiently the developments/changes during the
observation period and act upon the situation after said 24-hour period
when his abdominal pain subsisted, his condition even worsened with
the appearance of more serious symptoms of nausea, vomiting and
diarrhea. Considering the brief visit only made on regular rounds, the
records clearly show such gross negligence in failing to take
appropriate steps to determine the real cause of JR's abdominal pain so
that the crucial decision to perform surgery (appendectomy) had even
been ruled out precisely because of the inexcusable neglect to
undertake such efficient diagnosis by process of elimination, as
correctly pointed out by the trial court. As has been succinctly
emphasized by Dr. Mateo, acute appendicitis was the working
diagnosis, and with the emergence of symptoms after the 24-hour
observation (high fever, vomiting, diarrhea) still, appellants ruled out
surgery, not even considering exploratory laparoscopy. Dr. Mateo also
expressed the opinion that the decision to operate could have been
made after the result of the ultrasound test, considering that acute
appendicitis was the initial diagnosis by Dr. Cabugao after he had
conducted a rectal examination. ESIcaC

Medical records buttress the trial court's finding that in treating

JR, appellants have demonstrated indifference and neglect of the
patient's condition as a serious case. Indeed, appendicitis remains a
clinical emergency and a surgical disease , as correctly underscored by
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Dr. Mateo, a practicing surgeon who has already performed over a
thousand appendectomy. In fact, appendectomy is the only rational
therapy for acute appendicitis; it avoids clinical deterioration and may
avoid chronic or recurrent appendicitis. Although difficult, prompt
recognition and immediate treatment of the disease prevent
complications. Under the factual circumstances, the inaction, neglect
and indifference of appellants who, after the day of admission and after
being apprised of the ongoing infection from the CBC and initial
diagnosis as acute appendicitis from rectal examination and ultrasound
test and only briefly visited JR once during regular rounds and gave
medication orders by telephone — constitutes gross negligence leading
to the continued deterioration of the patient, his infection having
spread in so fast a pace that he died within just two and a half (2 1/2)
days' stay in the hospital. Authorities state that if the clinical picture is
unclear a short period of 4 to 6 hours of watchful waiting and a CT scan
may improve diagnostic accuracy and help to hasten diagnosis. Even
assuming that JR's case had an atypical presentation in view of the
location of his appendix, laboratory tests could have helped to confirm
diagnosis, as Dr. Mateo opined that the possibility of JR having a
retrocecal appendicitis should have been a strong consideration.
Lamentably, however, as found by the trial court, appellants had not
taken steps towards correct diagnosis and demonstrated laxity even
when JR was already running a high fever in the morning of June 17,
2000 and continued vomiting with diarrhea, his abdominal pain
becoming more intense. This is the reason why private complainants
were not even apprised of the progress of appellants' diagnosis —
appellants have nothing to report because they did nothing towards
the end and merely gave medications to address the symptoms. 12
Thus, these appeals brought before this Court raising the following
arguments:
I

WHETHER THE CAUSE OF ACCUSATION AS CONTAINED IN THE

INFORMATION IS "FAILURE TO PERFORM IMMEDIATE OPERATION
UPON THE PATIENT RODOLFO PALMA JR. OF ACUTE APPENDICITIS;
II

WHETHER THE SUBJECT INFORMATION APPEARS TO HAVE ACCUSED

BOTH ACCUSED DOCTORS OF CONSPIRACY AND THE APPEALED
DECISION SEEMS TO HAVE TREATED BOTH ACCUSED DOCTORS TO BE
IN CONSPIRACY;
III

WHETHER PETITIONER DR. CABUGAO IS A GENERAL PRACTITIONER

(NOT A SURGEON) AND HAVE EXCLUDED SURGERY FROM THE LIMITS
OF HIS PRACTICE, AND IT WAS NOT AND NEVER HIS DUTY TO
OPERATE THE PATIENT RODOLFO PALMA JR., THAT WAS WHY HE
REFERRED SUBJECT PATIENT TO A SURGEON, DR. CLENIO YNZON;

IV
WHETHER THE DEFENSE NEVER STATED THAT THERE IS GUARANTEE
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THAT DOING SURGERY WOULD HAVE SAVED THE PATIENT; DACTSH

V
WHETHER THE WITNESSES FOR THE PROSECUTION INCLUDING
PROSECUTION'S EXPERT WITNESSES EVER DECLARED/TESTIFIED
THAT PETITIONER DR. CABUGAO HAD THE DUTY TO PERFORM
IMMEDIATE OPERATION ON RODOLFO PALMA, JR., AND THEY FAILED
TO STATE/SHOW THAT THE PROXIMATE CAUSE OF DEATH OF JR WAS
ACUTE APPENDICITIS;

VI
WHETHER THE EXPERT WITNESSES PRESENTED BY THE
PROSECUTION EVER QUESTIONED THE MANAGEMENT AND CARE
APPLIED BY PETITIONER DR. CABUGAO;

VII
WHETHER THE EXPERT WITNESSES PRESENTED BY THE DEFENSE ARE
UNANIMOUS IN APPROVING THE METHOD OF TREATMENT APPLIED BY
BOTH ACCUSED DOCTORS ON SUBJECT PATIENT, AND THEY
DECLARED/AFFIRMED THAT THEY WOULD FIRST PLACE SUBJECT THE
PATIENT UNDER OBSERVATION, AND WOULD NOT PERFORM
IMMEDIATE OPERATION;
VIII
WHETHER THE CONVICTION OF PETITIONER DR. YNZON WAS
ESTABLISHED WITH THE REQUIRED QUANTUM OF PROOF BEYOND
REASONABLE DOUBT THAT THE PATIENT WAS SPECIFICALLY
SUFFERING FROM AND DIED OF ACUTE APPENDICITIS; and
IX

WHETHER THE FAILURE TO CONDUCT THE SPECIFIC SURGICAL

OPERATION KNOWN AS APPENDECTOMY CONSTITUTED CRIMINAL
NEGLIGENCE.

In a nutshell, the petitions brought before this Court raise the issue of
whether or not petitioners' conviction of the crime of reckless imprudence
resulting in homicide, arising from an alleged medical malpractice, is
supported by the evidence on record.
Worth noting is that the assigned errors are actually factual in nature,
which as a general rule, findings of fact of the trial court and the Court of
Appeals are binding and conclusive upon this Court, and we will not normally
disturb such factual findings unless the findings of the court are palpably
unsupported by the evidence on record or unless the judgment itself is
based on misapprehension of facts. In the instant case, we find the need to
make certain exception.
AS TO DR. YNZON'S LIABILITY:
Reckless imprudence consists of voluntarily doing or failing to do,
without malice, an act from which material damage results by reason of an
inexcusable lack of precaution on the part of the person performing or failing
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to perform such act. 13 The elements of reckless imprudence are: (1) that
the offender does or fails to do an act; (2) that the doing or the failure to do
that act is voluntary; (3) that it be without malice; (4) that material damage
results from the reckless imprudence; and (5) that there is inexcusable lack
of precaution on the part of the offender, taking into consideration his
employment or occupation, degree of intelligence, physical condition, and
other circumstances regarding persons, time and place. 14
With respect to Dr. Ynzon, all the requisites of the offense have been
clearly established by the evidence on record. The court a quo and the
appellate court were one in concluding that Dr. Ynzon failed to observe the
required standard of care expected from doctors. IcaHCS

In the instant case, it was sufficiently established that to prevent

certain death, it was necessary to perform surgery on JR immediately. Even
the prosecution's own expert witness, Dr. Antonio Mateo, 15 testified during
cross-examination that he would perform surgery on JR:
ATTY. CASTRO:

Q. Given these data soft non-tender abdomen, ambulatory,

watery diarrhea, Exhibit C which is the ultrasound result,
with that laboratory would you operate the patient?
A. Yes, I would do surgery.

Q. And you should have done surgery with this particular

case?"
A. Yes, sir. 16

xxx xxx xxx

COURT:
Q. You stated a while ago doctor that you are going to [do] surgery to
the patient, why doctor, if you are not going to do surgery, what
will happen?
A. If this would be appendicitis, the usual progress would be that it
would be ruptured and generalized peritonitis and eventually
septicemia, sir.
Q. What do you mean by that doctor?

A. That means that infection would spread throughout the body, sir.
Q. If unchecked doctor, what will happen?
A. It will result to death. 17

xxx xxx xxx

Q. And what would have you done if you entertain other considerations
from the time the patient was admitted?
A. From the time the patient was admitted until the report of the
sonologist, I would have made a decision by then.
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Q. And when to decide the surgery would it be a particular exact time,
would it be the same for all surgeons?
A. If you are asking acute appendicitis, it would be about 24
hours because acute appendicitis is a 24-hour disease,
sir.
Q. And would it be correct to say that it depends on the changes on the
condition of the patient?

A. Yes, sir.
Q. So, are you saying more than 24 hours when there are changes?
A. If there are changes in the patient pointing towards appendicitis
then you have to decide right there and then, sir.
Q. So if there are changes in the patient pointing to appendicitis?
A. It depends now on what you are trying to wait for in the observation
period, sir.
Q. So precisely if the change is a condition which bring you in doubt
that there is something else other than appendicitis, would you
extend over a period of 24 hours?
A. It depends on the emergent development, sir.
Q. That is the point, if you are the attending physician and
there is a change not pointing to appendicitis, would you
extend over a period of 24 hours?
A. In 24 hours you have to decide, sir.
xxx xxx xxx
Q. And that is based on the assessment of the attending
physician?
A. Yes, sir. 18 TAHIED

Dr. Mateo further testified on cross-examination:

ATTY. CASTRO:
Q: So you will know yourself, as far as the record is concerned, because
if you will agree with me, you did not even touch the patient?
A. Yes, I based my opinion on what is put on record, sir. The
records show that after the observation period, the
abdominal pain is still there plus there are already other
signs and symptoms which are not seen or noted.
Q. But insofar as you yourself not having touched the abdomen of the
patient, would you give a comment on that?
A. Yes, based on the record, after 24 hours of observation, the
pain apparently was still there and there was more
vomiting and there was diarrhea. In my personal opinion,
I think the condition of the patient was deteriorating.
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Q. Even though you have not touched the patient?
A. I based on what was on the record, sir. 19

From the foregoing, it is clear that if JR's condition remained

unchecked it would ultimately result in his death, as what actually happened
in the present case. Another expert witness for the defense, Dr. Vivencio
Villaflor, Jr. testified on direct examination that he would perform a
personal and thorough physical examination of the patient as
frequent as every 4 to 6 hours, to wit:
ATTY. CASTRO:
Q. As an expert doctor, if you were faced with a history of abdominal
pain with nausea, vomiting, fever, anurecia (sic), elevated white
blood cell count, physical examination of a positive psoas sign,
observation of the sonologist of abdominal tenderness and the
ultrasound findings of the probability of appendiceal (sic)
pathology, what will you do if you have faced these problems,
Doctor?
A. I will examine the patient thoroughly and it will depend on
my physical examination and that is probably every 4 to 6
hours, sir. 20
On cross-examination, Dr. Villaflor affirmed:
Cross Exam. By Atty. Marteja:

Q. . . . However, there are corrections and admissions made at that

time, your Honor, do I understand that T/C does not mean ruled
out but rather to consider the matter?
A. Yes, now that I have seen the records of the patient, it says here,
impression and T/C means to consider the appendicitis.
Q. Isn't it that it is worth then to say that the initial working diagnosis
on Rodolfo Palma, Jr., otherwise known as JR, to whom I shall now
refer to as JR, the primary consideration then is acute
appendicitis, is that correct to say Doctor?

A. I think so, that is the impression.

Q. . . . Now if it is to be considered as the primary consideration in the
initial working diagnosis, isn't it a fact that it has to be ruled out
in order to consider it as not the disease of JR?
A. Yes. Sir.

Q. Isn't it a fact that to rule out acute appendicitis as not the

disease of JR, surgery or operation must be done, isn't it
Doctor?
A. You have to correlate all the findings.
Q. Is it yes or no, Doctor?
A. Yes. aCHcIE

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Q. So, you are saying then that in order to rule out acute
appendicitis there must be an operation, that is right
Doctor?
A. No, sir. If your diagnosis is to really determine if it is an
acute appendicitis, you have to operate. 21
xxx xxx xxx

Q. Now Doctor, considering the infection, considering that there was a

[symptom] that causes pain, considering that JR likewise was
feverish and that he was vomiting, does that not show a disease
of acute appendicitis Doctor?
A. Its possible.
Q. So that if that is possible, are we getting the impression
then Doctor what you have earlier mentioned that the
only way to rule out the suspect which is acute
appendicitis is by surgery, you have said that earlier
Doctor, I just want any confirmation of it?
A. Yes, sir. 22

Verily, 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. The deference of courts to the expert
opinions of qualified physicians stems from its realization that the latter
possess unusual technical skills which laymen in most instances are
incapable of intelligently evaluating. 23 From the testimonies of the expert
witnesses presented, it was irrefutably proven that Dr. Ynzon failed to
practice that degree of skill and care required in the treatment of his patient.
As correctly observed by the appellate court, Dr. Ynzon revealed want
of reasonable skill and care in attending to the needs of JR by neglecting to
monitor effectively the developments and changes on JR's condition during
the observation period, and to act upon the situation after the 24-hour
period when his abdominal pain persisted and his condition worsened.
Lamentable, Dr. Ynzon appeared to have visited JR briefly only during regular
rounds in the mornings. He was not there during the crucial times on June
16, 2000 when JR's condition started to deteriorate until JR's death. As the
attending surgeon, he should be primarily responsible in monitoring the
condition of JR, as he is in the best position considering his skills and
experience to know if the patient's condition had deteriorated. While the
resident-doctors-on-duty could likewise monitor the patient's condition, he is
the one directly responsible for the patient as the attending surgeon. Indeed,
it is reckless and gross negligence of duty to relegate his personal
responsibility to observe the condition of the patient. Again, acute
appendicitis was the working diagnosis, and with the emergence of graver
symptoms after the 24-hour observation, Dr. Ynzon ruled out surgery for no
apparent reason. We, likewise, note that the records are devoid of showing
of any reasonable cause which would lead Dr. Ynzon to overrule
appendectomy despite the initial diagnosis of appendicitis. Neither was there
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any showing that he was entertaining another diagnosis nor he took
appropriate steps towards another diagnosis.
Among the elements constitutive of reckless imprudence, what perhaps
is most central to a finding of guilt is the conclusive determination that the
accused has exhibited, by his voluntary act without malice, an inexcusable
lack of precaution. It is that which supplies the criminal intent so
indispensable as to bring an act of mere negligence and imprudence under
the operation of the penal law. This is because a conscious indifference to
the consequences of the conduct is all that is required from the standpoint of
the frame of mind of the accused. 24 Quasi-offenses penalize the mental
attitude or condition behind the act, the dangerous recklessness, the lack of
care or foresight, the "imprudencia punible," unlike willful offenses which
punish the intentional criminal act. 25 This is precisely where this Court found
Dr. Ynzon to be guilty of — his seeming indifference to the deteriorating
condition of JR that he as a consequence, failed to exercise precaution which
eventually led to JR's death. HCATEa

To be sure, whether or not a physician has committed an "inexcusable

lack of precaution" in the treatment of his patient is to be determined
according to the standard of care observed by other members of the
profession in good standing under similar circumstances bearing in mind the
advanced state of the profession at the time of treatment or the present
state of medical science. 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. 26 Sadly, Dr. Ynzon
did not display that degree of care and precaution demanded by the
circumstances.
AS TO DR. CABUGAO'S LIABILITY:
Every criminal conviction requires of the prosecution to prove two
things — the fact of the crime, i.e., the presence of all the elements of the
crime for which the accused stands charged, and the fact that the accused is
the perpetrator of the crime. Based on the above disquisitions, however, the
prosecution failed to prove these two things. The Court is not convinced with
moral certainty that Dr. Cabugao is guilty of reckless imprudence as the
elements thereof were not proven by the prosecution beyond a reasonable
doubt.
Both the trial court and the appellate court bewail the failure to
perform appendectomy on JR, or the failure to determine the source of
infection which caused the deterioration of JR's condition. However, a review
of the records fail to show that Dr. Cabugao is in any position to perform the
required appendectomy.
Immediately apparent from a review of the records of this case is the
fact that Dr. Cabugao is not a surgeon, but a general practitioner
specializing in family medicine; 27 thus, even if he wanted to, he cannot do
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an operation, much less an appendectomy on JR. It is precisely for this
reason why he referred JR to Dr. Ynzon after he suspected appendicitis. Dr.
Mateo, the prosecution's expert witness, emphasized the role of the surgeon
during direct examination, to wit:
ATTY. MARTEJA:
Q. You had mentioned that under this circumstances and condition,
you have mentioned that surgery is the solution, would you have
allowed then a 24 hour observation?
A. If there is a lingering doubt, in short period of observation of 18-24
hours can be allowed provided that there would be close
monitoring of the patient, sir.

Q. Would you please tell us who would be doing the monitoring

doctor?
A. The best person should be the first examiner, the best
surgeon, sir.
Q. So that would you say that it is incumbent on the surgeon
attending to the case to have been the one to observe
within the period of observation?
A. Yes, because he will be in the best position to observe the
sudden changes in the condition of the patient, sir.
Q. And how often would in your experience doctor, how often
would the surgeon re-assist (sic) the condition of the
patient during the period of observation?
A. Most foreign authors would recommend every four (4)
hours, some centers will recommend hourly or every two
hours but here in the Philippines, would recommend for 4
to 6 hours, sir. 28 AacSTE

Dr. Cabugao's supervision does not cease upon his endorsement of his
patient to the surgeon. Here, Dr. Cabugao has shown to have exerted all
efforts to monitor his patient and under these circumstances he did not have
any cause to doubt Dr. Ynzon's competence and diligence. Expert
testimonies have been offered to prove the circumstances surrounding the
case of JR and the need to perform an operation. Defense witness, Dr.
Villaflor, on cross examination testified, to wit:
Q. Isn't it a fact that to rule out acute appendicitis as not the disease of
JR, surgery or operation must be done, isn't it Doctor?

A. You have to [correlate] all the findings.

Q. Is it yes or no, Doctor?

A. Yes.
Q. So, you are saying then that in order to rule out acute appendicitis
there must be an operation, that is right Doctor?

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A. No, sir. If your diagnosis is to really determine if it is an acute
appendicitis, you have to operate. 29

xxx xxx xxx

Q. Now Doctor, considering the infection, considering that there was a

[symptom] that causes pain, considering that JR likewise was
feverish and that he was vomitting, does that not show a disease
of acute appendicitis Doctor?

A. It's possible.
Q. So that if that is possible, are we getting the impression then Doctor
what you have earlier mentioned that the only way to rule out
the suspect which is acute appendicitis is by surgery, you have
said that earlier Doctor, just want any confirmation of it?

A. Yes, sir. 30

Neither do we find evidence that Dr. Cabugao has been negligent or

lacked the necessary precaution in his performance of his duty as a family
doctor. On the contrary, a perusal of the medical records would show that
during the 24-hour monitoring on JR, it was Dr. Cabugao who frequently
made orders on the administration of antibiotics and pain relievers. There
was also repetitive instructions from Dr. Cabugao to refer JR to Dr. Ynzon as
it appeared that he is suspecting appendicitis. The referral of JR to Dr. Ynzon,
a surgeon, is actually an exercise of precaution as he knew that appendicitis
is not within his scope of expertise. This clearly showed that he employed
the best of his knowledge and skill in attending to JR's condition, even after
the referral of JR to Dr. Ynzon. To be sure, the calculated assessment of Dr.
Cabugao to refer JR to a surgeon who has sufficient training and experience
to handle JR's case belies the finding that he displayed inexcusable lack of
precaution in handling his patient. 31
We likewise note that Dr. Cabugao was out of town when JR's condition
began to deteriorate. Even so, before he left, he made endorsement and
notified the resident-doctor and nurses-on-duty that he will be on leave.
Moreover, while both appeared to be the attending physicians of JR
during his hospital confinement, it cannot be said that the finding of guilt on
Dr. Ynzon necessitates the same finding on the co-accused Dr. Cabugao.
Conspiracy is inconsistent with the idea of a felony committed by means of
culpa. 32 Thus, the accused-doctors to be found guilty of reckless
imprudence resulting in homicide, it must be shown that both accused-
doctors demonstrated an act executed without malice or criminal intent —
but with lack of foresight, carelessness, or negligence. Noteworthy, the
evidence on record clearly points to the reckless imprudence of Dr. Ynzon;
however, the same cannot be said in Dr. Cabugao's case. IASEca

AS TO CIVIL LIABILITY
While this case is pending appeal, counsel for petitioner Dr. Ynzon
informed the Court that the latter died on December 23, 2011 due to "multi-
organ failure" as evidenced by a copy of death certificate. 33 Thus, the effect
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of death, pending appeal of his conviction of petitioner Dr. Ynzon with regard
to his criminal and pecuniary liabilities should be in accordance to People v.
Bayotas, 34 wherein the Court laid down the rules in case the accused dies
prior to final judgment:
1. Death of the accused pending appeal of his conviction extinguishes
his criminal liability as well as the civil liability based solely thereon.
As opined by Justice Regalado, in this regard, "the death of the
accused prior to final judgment terminates his criminal liability and
only the civil liability directly arising from and based solely on the
offense committed, i.e., civil liability ex delicto in senso strictiore."
2. Corollarily, the claim for civil liability survives
notwithstanding the death of accused, if the same may also
be predicated on a source of obligation other than delict.
Article 1157 of the Civil Code enumerates these other sources
of obligation from which the civil liability may arise as a result
of the same act or omission:
a) Law
b) Contracts
c) Quasi-contracts
d) . . .
e) Quasi-delicts
3. Where the civil liability survives, as explained in Number 2
above, an action for recovery therefor may be pursued but
only by way of filing a separate civil action and subject to
Section 1, Rule 111 of the 1985 Rules on Criminal Pro cedure
as amended. This separate civil action may be enforced either
against the executor/administrator or the estate of the
accused, depending on the source of obligation upon which
the same is based as explained above.
4. Finally, the private offended party need not fear a forfeiture of his
right to file this separate civil action by prescription, in cases where
during the prosecution of the criminal action and prior to its
extinction, the private-offended party instituted together therewith
the civil action. In such case, the statute of limitations on the civil
liability is deemed interrupted during the pendency of the criminal
case, conformably with provisions of Article 1155 of the Civil Code,
that should thereby avoid any apprehension on a possible privation of
right by prescription. 35

In view of the foregoing, it is clear that the death of the accused Dr.
Ynzon pending appeal of his conviction extinguishes his criminal liability.
However, the recovery of civil liability subsists as the same is not based on
delict but by contract and the reckless imprudence he was guilty of under
Article 365 of the Revised Penal Code. For this reason, a separate civil action
may be enforced either against the executor/administrator or the estate of
the accused, depending on the source of obligation upon which the same is
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based, 36 and in accordance with Section 4, Rule 111 of the Rules on
Criminal Procedure, we quote:
Sec. 4. Effect of death on civil actions. — The death of the
accused after arraignment and during the pendency of the criminal
action shall extinguish the civil liability arising from the delict.
However, the independent civil action instituted under section
3 of this Rule or which thereafter is instituted to enforce
liability arising from other sources of obligation may be
continued against the estate or legal representative of the
accused after proper substitution or against said estate, as the
case may be. The heirs of the accused may be substituted for
the deceased without requiring the appointment of an
executor or administrator and the court may appoint a
guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period of thirty
(30) days from notice.CDHacE

A final judgment entered in favor of the offended party shall be

enforced in the manner especially provided in these rules for
prosecuting claims against the estate of the deceased.
If the accused dies before arraignment, the case shall be
dismissed without prejudice to any civil action the offended party may
file against the estate of the deceased. (Emphases ours)
In sum, upon the extinction of the criminal liability and the offended
party desires to recover damages from the same act or omission complained
of, the party may file a separate civil action based on the other sources of
obligation in accordance with Section 4, Rule 111. 37 If the same act or
omission complained of arises from quasi-delict, as in this case, a separate
civil action must be filed against the executor or administrator of the estate
of the accused, pursuant to Section 1, Rule 87 of the Rules of Court: 38
Section 1. Actions which may and which may not be brought
against executor or administrator. — No action upon a claim for the
recovery of money or debt or interest thereon shall be commenced
against the executor or administrator; but to recover real or personal
property, or an interest therein, from the estate, or to enforce a lien
thereon, and actions to recover damages for an injury to person
or property, real or personal, may be commenced against him.
(Emphases ours)
Conversely, if the offended party desires to recover damages from the
same act or omission complained of arising from contract, the filing of a
separate civil action must be filed against the estate, pursuant to Section 5,
Rule 86 of the Rules of Court, to wit:
Section 5. Claims which must be filed under the notice. If not
filed, barred; exceptions. — All claims for money against the decent,
arising from contract, express or implied, whether the same be due,
not due, or contingent, all claims for funeral expenses and expense for
the last sickness of the decedent, and judgment for money against the
decent, must be filed within the time limited in the notice; otherwise
they are barred forever, except that they may be set forth as
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counterclaims in any action that the executor or administrator may
bring against the claimants. Where an executor or administrator
commences an action, or prosecutes an action already commenced by
the deceased in his lifetime, the debtor may set forth by answer the
claims he has against the decedent, instead of presenting them
independently to the court as herein provided, and mutual claims may
be set off against each other in such action; and if final judgment is
rendered in favor of the defendant, the amount so determined shall be
considered the true balance against the estate, as though the claim
had been presented directly before the court in the administration
proceedings. Claims not yet due, or contingent, may be approved at
their present value.
As a final note, we reiterate that the policy against double recovery
requires that only one action be maintained for the same act or omission
whether the action is brought against the executor or administrator, or the
estate. 39 The heirs of JR must choose which of the available causes of action
for damages they will bring.
WHEREFORE, premises considered, petitioner DR. ANTONIO P.
CABUGAO is hereby ACQUITTED of the crime of reckless imprudence
resulting to homicide.
Due to the death of accused Dr. Clenio Ynzon prior to the disposition of
this case, his criminal liability is extinguished; however, his civil liability
subsists. A separate civil action may be filed either against the
executor/administrator, or the estate of Dr. Ynzon, depending on the source
of obligation upon which the same is based. EAcIST

SO ORDERED.
Velasco, Jr., Bersamin, * Mendoza and Leonen, JJ., concur.

Footnotes

* Designated Acting Member, per Special Order No. 1691-L dated May 22, 2014, in
view of the vacancy in the Third Division.
1. Penned by Associate Justice Martin S. Villarama, Jr. (now a member of the
Supreme Court), with Associate Justices Regalado E. Maambong and Lucenito
N. Tagle, concurring; rollo, (G.R. No. 163879), pp. 25-46.

2. Rollo , (G.R. No. 165805), pp. 106-112.

3. Id. at 103-104.

4. Resolution dated August 2, 2006; id. at 611.

5. Rollo (G.R. No. 163879), p. 26.

6. Exhibit "C," records, p. 23. (Emphasis ours)

7. Exhibit "D-2," Id. at 331.

8. Rollo , p. 27.

9. Pre-trial Order; records, p. 181.

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10. Exhibit "E," id. at 6.

11. Rollo (G.R. No. 165805), pp. 110-111.

12. Rollo (G.R. No. 163879), pp. 44-45. (Citations omitted; italics in the original)

13. Gaid v. People , G.R. No. 171636, April 7, 2009, 584 SCRA 489, 495.

14. Dr. Cruz v. Court of Appeals, 346 Phil. 872, 883 (1993).
15. The prosecution has presented Dr. Antonio Mateo as an expert witness having
performed more than a thousand appendectomy in his seventeen (17) years
as a practicing surgeon and holds the position of Chief of the Department of
Surgery of the Rizal Provincial Hospital and a Regular Fellow of the Philippine
College of Surgeons.
16. TSN, June 29, 2001, p. 68. (Emphases ours)

17. Id. at 69. (Emphases ours)

18. Id. at 73-74. (Emphasis ours)

19. TSN, July 18, 2001, p. 11. (Emphases ours)

20. TSN (Dr. Vivencio Villaflor, Jr.), September 7, 2001, p. 17. (Emphasis ours)
21. TSN (Dr. V. Villaflor, Jr.), March 20, 2002, pp. 4-5. (Emphases ours)

22. Id. at 17. (Emphases ours)

23. Dr. Cruz v. Court of Appeals, supra note 14, at 885.

24. Caminos, Jr. v. People, 605 Phil. 402, 435 (2009).

25. Ivler v. Modesto-San Pedro, G.R. No. 172716, November 17, 2010, 635 SCRA
191, 223.
26. Garcia-Rueda v. Pascasio , 344 Phil. 323, 332 (1997).

27. Annex "D-13," records, p. 39.

28. TSN, June 29, 2001, pp. 35-36. (Emphasis ours)

29. TSN, (Dr. Vivencio Villaflor, Jr.), March 20, 2002, p. 5.

30. Id. at 17.

31. See Jarcia, Jr. v. People, G.R. No. 187926, February 15, 2012, 666 SCRA 336,
358.

32. Villareal v. People , G.R. No. 151258, G.R. No. 154984, G.R. No. 155101, G.R.
Nos. 178057 and 178080, February 1, 2012, 664 SCRA 519, 559.
33. Rollo (G.R. No. 163879), pp. 303-307.

34. G.R. No. 102007, September 2, 1994, 236 SCRA 239.

35. People v. Bayotas, supra, at 255-256. (Citations omitted; emphases ours.)

36. See People v. Abungan, 395 Phil. 456, 461 (2000).

37. 2000 Rules on Criminal Procedure, as amended.

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38. People v. Bayotas; supra note 30, at 254.
39. See Maniego v. Court of Appeals, 324 Phil. 34, 39 (1996).

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