Republic of the Philippines
SUPREME COURT
Baguio City
THIRD DIVISION
G.R. No. 175540 April 7, 2014
DR. FILOTEO A. ALANO, Petitioner,
vs.
ZENAIDA MAGUD-LOGMAO, Respondent.
CONCURRING OPINION
"What you leave behind is not
what is engraved in stone monuments,
but what is woven in the lives of others. "
Pericles
LEONEN, J.:
On February 28, 2014, the Philippines broke the Guinness World Record for the most number of people signing up to be organ donors within an hour on a single site. A total of 3,548 people trooped to the Polytechnic University of the Philippines to pledge their organs as part of the "I'm a Lifeline" campaign of the Philippine Network for Organ Sharing under the Department of Health.1
This. court is now faced with the opportunity to confront the issues concerning organ donation and transplantation for the first time since the procedure was introduced in this country in 1983.
Before us is a petition for review under Rule 45 of the Rules of Court, assailing the decision2 of the Court of Appeals dated March 31, 2006 and its resolution dated November 22, 2006 in CA-G.R. CV No. 67399 entitled Zenaida Magud-Logmao v. Dr. Emmanuel Lenon, et al. The appellate court affirmed the decision3 dated January 17, 2000 of the Regional Trial Court of Quezon City, Branch 100, which found Dr. Filoteo A. Alano, then the Executive Director of the National Kidney Institute,4 liable for damages to Zenaida Logmao.
The facts, as found by the lower courts, are as follows:
On March 1, 1988, at 9:50 p.m., Arnelito Logmao, 18 years old, was brought to the East Avenue Medical Center in Quezon City by two sidewalk vendors who allegedly saw him fall from the overpass near Farmer’s Market, Cubao.5 The security guards of the hospital noted in their blotter that when he was admitted to the hospital, he was drunk.6 He gave his name as Arnelito Logmao and his address as Boni Avenue, Mandaluyong.7
In the emergency room, Arnelito Logmao was conscious and was interviewed by Dr. Paterno Cabrera, the duty resident physician.8 The patient’s data sheet, prepared by Dr. Cabrera, identified the patient as Angelito Lugmoso (and not Arnelito Logmao) of Boni Avenue, Mandaluyong.9 He was subjected to an x-ray examination, but the examination did not show him suffering from any skull fractures or head injuries.10
At around 4:00 a.m. on March 2, 1988, the patient developed generalized seizures, and his condition progressively deteriorated.11 Admission to the Intensive Care Unit (ICU) and mechanical ventilatory support became necessary, but there was no vacancy at the East Avenue Medical Center ICU.12 A resident physician at National Kidney Institute, Dr. Emmanuel Lenon, who was then conducting rounds at East Avenue Medical Center, suggested that the patient be transferred to the National Kidney Institute.13 After arrangements were made, the patient was transferred to the National Kidney Institute at 10:10 a.m. on the same day.14
When the patient arrived at the National Kidney Institute, his name was recorded as Angelito Lugmoso.15 As the patient was admitted without any relatives by his side, Jennifer B. Misa, Transplant Coordinator, was asked to locate the patient’s family by enlisting police and media assistance.16 Dr. Enrique T. Ona, Chairman of the Department of Surgery, observed that the patient’s brain injury was so severe that it manifested symptoms of brain death.17 Upon his request, the Laboratory Section conducted a tissue typing and tissue cross-matching examination on the patient.18 The request was done on the basis that if the deceased patient is found to be a suitable organ donor and has his family’s consent, the organs could be harvested and transplanted promptly to any of the compatible beneficiaries.19
Jennifer Misa verified the identity of the patient with the East Avenue Medical Center on the same day or March 2, 1988.20 Upon her request, the hospital furnished her a copy of the patient’s data sheet which bore the name Angelito Lugmoso with Boni Avenue, Mandaluyong, as his address.21 She then contacted several radio and television stations and requested for airtime in her search for the family of Angelito Lugmoso.22 Her request was granted by Channel 4, ABS-CBN, and GMA.23 Police Station No. 5, Eastern Police District, Mandaluyong, issued a certification attesting that on March 2, 1988, at about 6:00 p.m., Jennifer Misa requested for assistance to immediately locate the family and relatives of Angelito Lugmoso and that she followed up her request until March 9, 1988.24
On March 3, 1988 at about 7:00 a.m., Dr. Ona was informed that the patient was pronounced brain dead by Dr. Abdias V. Aquino, a neurologist, and Dr. Antonio Rafael, the attending physician of the patient, and that another electroencephalogram (EEG) was in progress to confirm the diagnosis.25 At about 9:00 a.m., Dr. Ona was informed that the EEG recording showed a flat tracing, confirming that the patient was brain dead.26
Upon learning that the patient was a suitable organ donor and that there were some National Kidney Institute patients who were compatible donees, Dr. Ona inquired from Jennifer Misa whether the patient’s relatives have been located so that the necessary consent for organ donation could be obtained.27
Since no relatives of Angelito Lugmoso could be found despite the ongoing search, Dr. Ona requested Dr. Filoteo A. Alano, Executive Director of the National Kidney Institute, to authorize the removal of specific organs from the body for transplantation purposes.28 Dr. Ona likewise requested Dr. Rose Marie Rosete-Liquete to secure permission from the National Bureau of Investigation’s Medico-Legal Office for organ retrieval and transplantation, on the assumption that the incident which led to the death of the patient was a medico-legal case.29
On March 3, 1988, Dr. Alano issued to Dr. Ona a memorandum which states:
This is in connection with the use of the human organs or any portion or portions of the human body of the deceased patient, identified as a certain Mr. Angelito Lugmoso who was brought to the National Kidney Institute on March 2, 1988 from the East Avenue Medical Center.
As shown by the medical records, the said patient died on March 3, 1988 at 9:10 in the morning due to craniocerebral injury. Please make certain that your Department has exerted all reasonable efforts to locate the relatives or next of kin of the said deceased patient such as appeal through the radios and television as well as through police and other government agencies and that the NBI Medicolegal Section has been notified and is aware of the case.
If all the above has been complied with, in accordance with the provisions of Republic Act No. 349 as amended and P.D. 856, permission and/or authority is hereby given to the Department of Surgery to retrieve and remove the kidneys, pancreas, liver and heart of the said deceased patient and to transplant the said organs to any compatible patient who maybe in need of said organs to live and survive.30 (Emphasis supplied)
Dr. Maximo Reyes, Medico-Legal Officer of the National Bureau of Investigation, issued a certification dated March 10, 1988, stating that he received a telephone call from Dr. Liquete on March 3, 1988 at 9:15 a.m. regarding the case.31 He certified that despite efforts to locate Angelito Lugmoso’s relatives, no one responded. Dr. Liquete also sought from Dr. Reyes a second opinion on organ donation even in the absence of consent from the family of the deceased patient, and Dr. Reyes verbally agreed to the organ retrieval.32
On March 3, 1988 at 3:45 p.m., a medical team led by Dr. Ona removed the heart, kidneys, pancreas, liver, and spleen of the deceased patient.33 The medical team then transplanted a kidney and the pancreas to Lee Tan Koc and the other kidney to Alexis Ambustan.34 The transplant operation was completed around 11:00 p.m. on the same day.35
On March 4, 1988, Dr. Antonio R. Paraiso, Head of the Cadaver Organ Retrieval Effort (CORE) program of the National Kidney Institute, made arrangements with La Funeraria Oro for the embalming of the cadaver for up to 15 days to give the National Kidney Institute more time to continue searching for the relatives of the deceased patient.36
On March 11, 1988, the National Kidney Institute issued a press release announcing its first successful double organ transplantation.37 Aida Doromal, a relative of Arnelito’s mother, Zenaida Logmao, saw the news on television that the donor was an 18-year-old boy whose remains were laid at La Funeraria Oro in Quezon City.38 Since the name of the donor sounded like Arnelito Logmao, Aida informed Zenaida.39 Upon receiving the news from Aida, Zenaida and her other children went to La Funeraria Oro where they were able to retrieve Arnelito’s body.40
On April 29, 1988, Zenaida filed with the Regional Trial Court a complaint for damages against Dr. Lenon, Taurean Protectors Agency, National Kidney Institute, Jennifer Misa, Dr. Alano, Dr. Reyes, Dr. Ona, Dr. Liquete, the entire medical team that conducted the transplant, Lee Tan Koc, Alexis Ambustan, Dr. Paraiso, La Funeraria Oro, Dr. Mariano B. Cueva, Jr., John Doe, Peter Doe, and Alex Doe in connection with the death of her son, Arnelito.41 She alleged that all of them conspired to remove the organs of Arnelito when he was still alive and that they concealed his true identity.42
On January 17, 2000, the Regional Trial Court rendered judgment43 dismissing the complaint against all defendants but finding Dr. Alano liable for damages. The trial court found Dr. Alano negligent under Article 2176 of the Civil Code for authorizing the retrieval of the deceased patient’s organs without first exerting reasonable efforts to locate his relatives, in direct violation of the law. According to the trial court:
x x x. In the natural course of things, a search or inquiry of anything requires at least two days of probing and seeking to be actually considered as having made said earnest efforts. But a one-day campaign, especially with regard to a subject matter as important as a person’s disposal into the afterlife certainly warrants a longer time for investigation. Indeed, what is "reasonable" is a relative term, dependent on the attendant circumstances of the case (Philippine Law Dictionary, citing Katague vs. Lagana, CV 70164, March 7, 1986). Here, what was involved was the detachment of the vital organs of plaintiff’s 18-year[-]old son from his body without her knowledge and consent, and which act was upon the authority issued by defendant Dr. Alano as head of the hospital. The matter at hand was of a very sensitive nature that an inquiry of less than one day cannot be deemed as sufficient and reasonable to exculpate him from liability. x x x.44 (Emphasis supplied)
Dr. Alano appealed45 the ruling with the Court of Appeals.
On March 31, 2006, the Court of Appeals rendered its decision46 affirming the ruling of the Regional Trial Court with modifications.
The appellate court deleted the award for actual damages representing the expenses for autopsy fees, and wake and funeral services, since Arnelito’s family would have still incurred those expenses even if no organ retrieval was done on the body.47 It also deleted the award of compensatory damages of ₱50,000.00 per organ retrieved since it was not shown that Dr. Alano was the recipient of the organ transplants or that he received any consideration from the transplant patients.48 Finally, it affirmed the award of damages but reduced moral damages from ₱500,000.00 to ₱250,000.00, exemplary damages from ₱500,000.00 to ₱200,000.00, and attorney’s fees from ₱300,000.00 to ₱100,000.00.49
Dr. Alano now comes before this court via a petition for review on certiorari. He argues50 that there was no legal basis for the Court of Appeals to hold him liable for damages since there was no finding that he was the proximate cause of the injury or damage sustained by Zenaida. He also argues that he acted in good faith and pursuant to law when he issued the authorization for the organ retrieval.
Thus, the issue before this court is whether Dr. Alano should be held liable for his alleged negligence in authorizing the removal and retrieval of Arnelito’s internal organs without Zenaida’s consent.
I agree with the ponencia that Dr. Alano should not be found liable, but I take this opportunity to further expound on the issues presented to this court.
As a general rule, only questions of law are to be considered in a petition for review under Rule 45. There are, however, recognized exceptions to the rule, one of which is when "the Court of Appeals fails to notice certain relevant facts which, if properly considered, will justify a different conclusion x x x."51
Dr. Alano’s acts were not reckless, negligent or unreasonable. It was not his acts that caused the alleged injury to the deceased patient’s relatives. Considering the circumstances that he had to face, the search he ordered for the deceased patient’s relatives were all that ordinary prudence required. His retrieval of the deceased patient’s organs was done legally and after allowing a reasonable time to lapse. The conclusions of the trial court and the appellate court were, therefore, correctly reversed and set aside.
The elements of a quasi-delict
In cases involving quasi-delict and torts, the plaintiff complains that the acts of a defendant caused him or her injury. In order to be actionable, the act should have been committed with the intention of injuring the plaintiff or was committed recklessly or negligently or one which, even when done with the proper care, held such high risk for injury to others that it will be presumed by law to be actionable.
The lower courts are all in agreement that Dr. Alano’s participation in the organ retrieval constituted a quasi-delict under Article 2176 of the Civil Code for which he should be liable for damages.
This conclusion is erroneous.
Article 2176 may not be the proper legal basis for the cause of action. This article defines a quasi-delict as:
Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.
The elements of a quasi-delict are: (1) an act or omission; (2) the presence of fault or negligence in the performance or non-performance of the act; (3) injury; (4) a causal connection between the negligent act and the injury; and (5) no pre-existing contractual relation. Jurisprudence, however, specifies four (4) essential elements: "(1) duty; (2) breach; (3) injury; and (4) proximate causation."52
As a general rule, any act or omission coming under the purview of Article 2176 gives rise to a cause of action under quasi-delict. This, in turn, gives the basis for a claim of damages. Verily, Article 1157 of the Civil Code provides as follows:
Article 1157. Obligations arise from:
(1) Law;
(2) Contracts;
(3) Quasi-contracts;
(4) Acts or omissions punished by law; and
(5) Quasi-delicts. (Emphasis supplied)
Article 2176 is not an all-encompassing enumeration of all actionable wrongs which can give rise to the liability for damages. Under the Civil Code, acts done in violation of Articles 19, 20, and 21 will also give rise to damages. The provisions state as follows:
Article 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.
Article 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same.
Article 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs, or public policy shall compensate the latter for the damage.
Baksh v. Court of Appeals53 elaborates on the distinctions:
x x x. Quasi-delict, known in Spanish legal treatises as culpa aquiliana, is a civil law concept while torts is an Anglo-American or common law concept. Torts is much broader than culpa aquiliana because it includes not only negligence, but international criminal acts as well such as assault and battery, false imprisonment and deceit. In the general scheme of the Philippine legal system envisioned by the Commission responsible for drafting the New Civil Code, intentional and malicious acts, with certain exceptions, are to be governed by the Revised Penal Code while negligent acts or omissions are to be covered by Article 2176 of the Civil Code. In between these opposite spectrums are injurious acts which, in the absence of Article 21, would have been beyond redress. Thus, Article 21 fills that vacuum. It is even postulated that together with Articles 19 and 20 of the Civil Code, Article 21 has greatly broadened the scope of the law on civil wrongs; it has become much more supple and adaptable than the Anglo-American law on torts.54 (Emphasis supplied)
Yuchengco v. Manila Chronicle Publishing Corporation55 further elaborates on tort based on the concept of abuse of right:
The principle of abuse of rights as enshrined in Article 19 of the Civil Code provides:
Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.
This provision of law sets standards which must be observed in the exercise of one’s rights as well as in the performance of its duties, to wit: to act with justice; give everyone his due; and observe honesty and good faith.
In Globe Mackay Cable and Radio Corporation v. Court of Appeals, it was elucidated that while Article 19 "lays down a rule of conduct for the government of human relations and for the maintenance of social order, it does not provide a remedy for its violation. Generally, an action for damages under either Article 20 or Article 21 would be proper." The Court said:
One of the more notable innovations of the New Civil Code is the codification of "some basic principles that are to be observed for the rightful relationship between human beings and for the stability of the social order." [REPORT ON THE CODE COMMISSION ON THE PROPOSED CIVIL CODE OF THE PHILIPPINES, p. 39]. The framers of the Code, seeking to remedy the defect of the old Code which merely stated the effects of the law, but failed to draw out its spirit, incorporated certain fundamental precepts which were "designed to indicate certain norms that spring from the fountain of good conscience" and which were also meant to serve as "guides for human conduct [that] should run as golden threads through society, to the end that law may approach its supreme ideal, which is the sway and dominance of justice." (Id.) Foremost among these principles is that pronounced in Article 19 which provides:
Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.
This article, known to contain what is commonly referred to as the principle of abuse of rights, sets certain standards which must be observed not only in the exercise of one's rights, but also in the performance of one's duties. These standards are the following: to act with justice; to give everyone his due; and to observe honesty and good faith. The law, therefore, recognizes a primordial limitation on all rights; that in their exercise, the norms of human conduct set forth in Article 19 must be observed. A right, though by itself legal because recognized or granted by law as such, may nevertheless become the source of some illegality. When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. But while Article 19 lays down a rule of conduct for the government of human relations and for the maintenance of social order, it does not provide a remedy for its violation. Generally, an action for damages under either Article 20 or Article 21 would be proper.
Corollarily, Article 20 provides that "every person who, contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same." It speaks of the general sanctions of all other provisions of law which do not especially provide for its own sanction. When a right is exercised in a manner which does not conform to the standards set forth in the said provision and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be responsible. Thus, if the provision does not provide a remedy for its violation, an action for damages under either Article 20 or Article 21 of the Civil Code would be proper.56 (Emphasis supplied)
Article 19 is the general rule which governs the conduct of human relations. By itself, it is not the basis of an actionable tort. Article 19 describes the degree of care required so that an actionable tort may arise when it is alleged together with Article 20 or Article 21.
Article 20 concerns violations of existing law as basis for an injury. It allows recovery should the act have been willful or negligent. Willful may refer to the intention to do the act and the desire to achieve the outcome which is considered by the plaintiff in tort action as injurious. Negligence may refer to a situation where the act was consciously done but without intending the result which the plaintiff considers as injurious.
Article 21, on the other hand, concerns injuries that may be caused by acts which are not necessarily proscribed by law. This article requires that the act be willful, that is, that there was an intention to do the act and a desire to achieve the outcome. In cases under Article 21, the legal issues revolve around whether such outcome should be considered a legal injury on the part of the plaintiff or whether the commission of the act was done in violation of the standards of care required in Article 19.
Article 2176 covers situations where an injury happens through an act or omission of the defendant. When it involves a positive act, the intention to commit the outcome is irrelevant. The act itself must not be a breach of an existing law or a pre-existing contractual obligation. What will be considered is whether there is "fault or negligence" attending the commission of the act which necessarily leads to the outcome considered as injurious by the plaintiff. The required degree of diligence will then be assessed in relation to the circumstances of each and every case.
Article 2176 should not have been the basis for the cause of action in this case. Rather, it should have been Article 20, which is applicable when there is a violation of law.
The law that is applicable is the third paragraph of Section 2 of Republic Act No. 349,57 as amended by Republic Act No. 1056,58 which provides for a way to determine substituted informed consent for deceased patients for purposes of organ donation.
The doctrine of informed consent
The doctrine of informed consent was introduced in this jurisdiction only very recently in Dr. Li v. Spouses Soliman.59 This court ruled that liability may arise in cases where the physician fails to obtain the consent of the patient before performing any medical procedure, thus:
The doctrine of informed consent within the context of physician-patient relationships goes far back into English common law. As early as 1767, doctors were charged with the tort of "battery" (i.e., an unauthorized physical contact with a patient) if they had not gained the consent of their patients prior to performing a surgery or procedure. In the United States, the seminal case was Schoendorff v. Society of New York Hospital which involved unwanted treatment performed by a doctor. Justice Benjamin Cardozo's oft-quoted opinion upheld the basic right of a patient to give consent to any medical procedure or treatment: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damages." From a purely ethical norm, informed consent evolved into a general principle of law that a physician has a duty to disclose what a reasonably prudent physician in the medical community in the exercise of reasonable care would disclose to his patient as to whatever grave risks of injury might be incurred from a proposed course of treatment, so that a patient, exercising ordinary care for his own welfare, and faced with a choice of undergoing the proposed treatment, or alternative treatment, or none at all, may intelligently exercise his judgment by reasonably balancing the probable risks against the probable benefits.
Subsequently, in Canterbury v. Spence[,] the court observed that the duty to disclose should not be limited to medical usage as to arrogate the decision on revelation to the physician alone. Thus, respect for the patient's right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves. x x x.60
Those who consent to using their organs upon their death for the benefit of another can make their consent known prior to their death by following the requirements of the law. Should a patient die prior to making his or her informed consent known, the law provides a list of persons who may consent on his or her behalf, that is, "substituted" informed consent.
Since the incident in this case occurred in 1988, Republic Act No. 349, as amended by Republic Act No. 1056, is the law that applies. Section 2 of the law states that:
SEC. 2. The authorization referred to in section one of this Act must: be in writing; specify the person or institution granted the authorization; the organ, part or parts to be detached, the specific use or uses to which the organ, part or parts are to be employed; and, signed by the grantor and two disinterested witnesses.
If the grantor is a minor or an incompetent person, the authorization may be executed by his guardian with the approval of the court; in default thereof, by the legitimate father or mother, in the order, named. Married women may grant the authority referred to in section one of this Act, without the consent of the husband.
After the death of the person, authority to use human organs or any portion or portions of the human body for medical, surgical or scientific purposes may also be granted by his nearest relative or guardian at the time of his death or in the absence thereof, by the person or head of the hospital, or institution having custody of the body of the deceased: Provided, however, That the said person or head of the hospital or institution has exerted reasonable efforts to locate the aforesaid guardian or relative.
A copy of every such authorization must be furnished the Secretary of Health. (Emphasis supplied)
Under this law, consent to organ retrieval after the patient’s death may be given first and foremost by the patient’s nearest relative or guardian at the time of death. It is only in the event that these relatives cannot be contacted despite reasonable efforts that the head of the hospital or institution having custody of the body may give consent for organ retrieval on behalf of the patient. Failing this, liability for damages arises.
Considering that Republic Act No. 349, as amended, does not provide a remedy in case of violation, an application of the doctrine of informed consent vis-à-vis Article 20 of the Civil Code may give rise to an action for damages. In this case, Dr. Alano must first be shown to have acted willfully and negligently to the damage and prejudice of Zenaida.
Petitioner did not willfully or
negligently, in a manner
contrary to law, authorize the
retrieval of the organs
Dr. Alano did not violate the provisions of the law willfully or negligently. In accordance with the requirements of the third paragraph of Section 2 of Republic Act No. 349, as amended, he caused the discharge of "reasonable efforts" to locate the relatives, allowed for a reasonable time to pass, and harvested the organs with care and prudence.
Negligence has been defined by law as "[t]he failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury."61
In Picart v. Smith,62 the test for negligence is as follows:
The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a given situation must of course be always determined in the light of human experience and in view of the facts involved in the particular case. Abstract speculation cannot here be of much value but this much can be profitably said: Reasonable men govern their conduct by the circumstances which are before them or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they can be expected to take care only when there is something before them to suggest or warn of danger. Could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to take precautions to guard against that harm. Reasonable foresight of harm, followed by the ignoring of the suggestion born of this prevision, is always necessary before negligence can be held to exist. Stated in these terms, the proper criterion for determining the existence of negligence in a given case is this: Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing the conduct or guarding against its consequences.63 (Emphasis supplied)
As correctly found by the majority, Zenaida failed to prove that Dr. Alano did not exercise the reasonable care and caution of an ordinarily prudent person.
In compliance with the duty reposed on him by the law, Dr. Alano, as the Executive Director of the National Kidney Institute, directed Jennifer B. Misa, Transplant Coordinator, to locate Arnelito’s relatives. Radio announcements over Radyo ng Bayan and DZMM Radio, televised notices on Channels 2, 7, 9, and 13, and a police blotter in the Eastern Police District No. 5, Mandaluyong, were done on March 2, 1988, with a published advertisement also appearing on the People’s Journal on March 20, 1988.64 Assistance was also sought from the National Bureau of Investigation. These findings were, in fact, adopted by the trial court. Dr. Enrique T. Ona also testified that the search for the deceased patient’s relatives continued even after the organ retrieval, thus:
Q: After the retrieval of the organs from the patient and the transplantation of the organs to Mr. Ambustan and Tan [K]oc Lee, did the hospital stop in its effort to locate the family of the patient,
Mr. Witness?
A: Since this patient is a John Doe and even after we had retrieved the organs and transplanted it to the 2 recipients, I was also made aware that no relatives could still be located. Specific instruction were [sic] given to the transplant coordinator to continue looking for the relatives.65 (Emphasis supplied)
The trial court and the appellate court, however, took exception to the period of time taken by Dr. Alano in conducting the search for the deceased patient’s relatives before he authorized the organ retrieval.
What the lower courts failed to consider was that this was an unusual situation wherein time was of the essence. Organ retrieval must always take into account the viability of the organs.
As explained by Dr. Ona in his testimony before the trial court:
Q: Does the time have any factor also with respect to the viability of these organs, Mr. Witness[?]
A: Yes, sir.
Q: Will you please explain this, Mr. Witness?
A When we remove the organs say, the kidney from the cadaver we put that into [a] special solution for preservation and ideally we would like to transplant that kidney within 24 hours although oftentimes we extend it to 48 hours and even stretching it to 72 hours, sir.
Court: I just want to clarify this issue.
Q: Is there any particular reason why the retrieval of the organs have to be done even when the patient is not yet dead, as what we know heart beating [sic] stops but even at that stage when classified as brain dead, why the rush to open it up, is there any particular reason or could it refer perhaps to the successful operation maybe for the organs to fit well to the rec[i]pient?
A: Yes, Your Honor. The viability of the organ as I mentioned earlier the kidney is viable for several hours, as I mentioned 24 hours, 48 hours up to 72 hours but for the liver, Your [Honor], during that time in 1988 the liver can be preserved only for about 6 to 8 hours and for the heart it should be connected for 4 hours, Your Honor.
Q: So, in this particular case, the kidney, how many hours more or less?
A: At that time it was stretched into 24 hours, Your Honor and the pa[n]creas maybe 4 hours so that it is the leng[th] of time when the organs most likely to be viable after that most likely did not function anymore [sic].
Q: But you do retrieval also to those dead on arrival, is that not?
A: In this particular case, Your Honor, it is possible for example the dead on arrival is brought to the emergency room, the preparation of the operating room and the getting of [sic] the consent it will take time, Your Honor, so in this particular case, Your Honor there is no more heart beat that cannot be viable anymore[.]66 (Emphasis supplied)
This testimony is supported by several studies, which tend to show that the viability of organs in an organ donation may depend on the length of time between the declaration of brain death and organ retrieval.
One study shows that widespread physiological changes occur during brain death. "In addition to acute changes, which if untreated lead to rapid deterioration and cardiac arrest (even if ventilation is continued), there are ongoing generalized inflammatory and hormonal changes associated with brain death which adversely affect donor organ function and propensity to rejection."67 Another study68 shows that the time period between declaration of brain death and organ retrieval was a "significant predictive factor"69 in recipient mortality for cardiac transplants. There is also a study70 that shows that "[t]here are clear data that both [brain death] and prolonged [brain death duration] result in [kidney] graft damage, and successful organ retrieval after [brain death] definitely relies on intensive donor management."71
Upon a showing by the Transplant Coordinator that the deceased patient’s relatives could not be found despite all her efforts in locating them, Dr. Alano exercised his professional judgment and ordered the retrieval bearing in mind the short length of time the organs could be viable after the declaration of brain death. He exercised all the reasonable care and caution that an ordinarily prudent man would have exercised in the same situation.
Dr. Alano, therefore, should not have been found to be negligent. He did not violate Article 20 of the Civil Code because he complied with all his duties in Republic Act No. 349, as amended.
There is no causal connection
between the alleged negligent
act and the damage suffered by
respondent
The trial court, by using the codal definition of a quasi-delict, identified the act or omission as that of authorizing the retrieval of the deceased patient’s organs without seeking permission from his relatives; the presence of negligence as the failure to exert reasonable efforts in searching for the deceased patient’s relatives; and the damage pertaining to Zenaida’s discovery of her son’s lifeless body "mangled, robbed of its vital organs and x x x sewn up like x x x a rag doll."72 The court also found no pre-existing contractual relation.
The trial court is mistaken. Clearly, there is no causal connection between the alleged negligent act of Dr. Alano and the damage suffered by Zenaida.
First, Zenaida alleged before the trial court that the damage she suffered was the loss of her son’s life. The trial court, however, conceded that "the extent of Logmao’s injuries were such that the possibility of survival would have been highly improbable, if not impossible x x x."73 It then concluded that there was still damage suffered by Zenaida, in that her son’s lifeless body was "mangled, robbed of its vital organs and x x x sewn up like some rag doll, without her knowledge, much more her consent."74 The Court of Appeals agreed, stating that "the pain and anguish of a mother in seeing the lifeless body of her son like a slaughtered pig in the funeral parlor x x x is more than one can take."75
The "pain and anguish"76 of Zenaida indeed may have resulted from the loss of her son. However, Dr. Alano or any of his subordinates did not cause the loss of her son’s life. Even if Dr. Alano did not order the organ retrieval, Zenaida would still find the body of her son lifeless.
It was, therefore, erroneous to impute the emotional suffering of Zenaida as being caused by Dr. Alano’s failure to exert reasonable efforts to locate her before ordering the organ retrieval.
Second, the failure to locate Zenaida to secure her permission for the organ retrieval was not caused by Dr. Alano.
The records show that the difficulty in locating Zenaida stemmed from the erroneous information found on the deceased’s patient data sheet, which indicated his name as Angelito Lugmoso, not Arnelito Logmao. It was the staff of East Avenue Medical Center, not Dr. Alano and the staff of the National Kidney Institute, which provided the erroneous information on the patient data sheet.
It can be conceded that there was a duty on the part of the National Kidney Institute to verify the information on the patient data sheet with the patient himself. However, when Arnelito was transferred from East Avenue Medical Center to the National Kidney Institute, he was already "intubated and ambu-bagging support was provided x x x."77 This means that he would not have been coherent enough or even conscious enough to be able to answer any query by the medical staff. The staff of the National Kidney Institute would have had no choice but to rely on the information provided to them by East Avenue Medical Center considering the urgency of Arnelito’s situation.
The erroneous information on the patient data sheet was eventually the cause of the failure of the Transplant Coordinator to locate Zenaida. The radio and television announcements, together with the newspaper advertisements, were rendered futile by the fact that they were simply looking for the wrong person. Even if the Transplant Coordinator spent more than 24 hours looking for the deceased patient’s relatives, it was doubtful whether they could have been found, considering that they were looking for the relatives of Angelito Lugmoso, not Arnelito Logmao.
Respondent should not
be awarded damages
Moral damages were awarded by the lower courts on the basis that it was Dr. Alano’s alleged negligence which caused the emotional suffering of Zenaida. This is erroneous.
The pertinent provisions of the Civil Code on moral damages are:
Article 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury.
Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act or omission.
Article 2219. Moral damages may be recovered in the following and analogous cases:
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in Article 309;
(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35.
The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also recover moral damages.
The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9 of this article, in the order named.
It has already been established that Zenaida's emotional suffering was not caused by the acts of Dr. Alano. He also did not commit any act in violation of Articles 19, 20 or 21 of the Civil Code. This is also not a case wherein the alleged quasi-delict resulted in physical injuries. The lower courts are also in agreement that Dr. Alano did not cause the death of Zenaida's son. Neither is this case analogous to any of the situations mentioned in the provision. Contrary to the ruling of the trial court, this situation is also not covered by Article 309 of the Civil Code, which states:
Article 309. Any person who shows disrespect to the dead, or wrongfully interferes with a funeral shall be liable to the family of the deceased for damages, material and moral.1âwphi1
The organ retrieval performed by the National Kidney Institute cannot be termed as "disrespect to the dead." Organ donation is allowed by law. A sterile medical operation surely is not tantamount to grave robbery or mutilation.
Since Zenaida has not proven her claim to moral damages, she is also not entitled to exemplary damages.
Article 2234 of the Civil Code provides:
Article 2234. While the amount of the exemplary damages need not be proved, the plaintiff must show that he is entitled to moral, temperate or compensatory damages before the court may consider the question of whether or not exemplary damages should be awarded. x x x.
Since the award of exemplary damages is not justified, there is no reason to award attorney's fees, in accordance with Article 2208 of the Civil Code, which allows the award of attorney's fees only "when exemplary damages are awarded."
ACCORDINGLY, I CONCUR and vote to GRANT the petition.
MARVIC MARIO VICTOR F. LEONEN
Associate Justice
Certified True Copy
WILFREDO V. LAPITAN
Deputy Division Clerk of Court
Third Division
April 23, 2014
Footnotes
1 PH beat world record for most number of organ donors in one hour, February 28, 2014, Philippine Daily Inquirer, <http://globalnation.inquirer.net/99654/ph-beat-world-record-for-most-number-of-organ-donors-in-one-hour> (visited April 3, 2014).
2 Rollo, pp. 71-96, penned by Justice Marina L. Buzon and concurred in by Justice Aurora Santiago-Lagman and Justice Arcangelita Romilla-Lontok.
3 Id. at 103-111, penned by Hon. Justice Mariano C. Del Castillo, then the Presiding Judge of the Branch 100 of the Regional Trial Court of Quezon City.
4 This hospital is now known as the National Kidney and Transplant Institute or NKTI.
5 Rollo, p. 73; CA decision, p. 3.
6 Id. at 103; RTC decision, p. 1.
7 Id.
8 Id.
9 Id. at 73; CA decision, p.3.
10 Id.
11 Id.
12 Id.
13 Id.
14 Id.
15 Id. at 74.
16 Id.
17 Id.
18 Id.
19 Id.
20 Id.
21 Id.
22 Id.
23 Id.
24 Id. at 75; CA decision, p. 5.
25 Id.
26 Id.
27 Id.
28 Id.
29 Id.
30 Id. at 76; CA decision, p. 6.
31 Id. at 76-77; CA decision, pp. 6-7.
32 Id. at 77; CA decision, p. 7.
33 Id.
34 Id.
35 Id.
36 Id.
37 Id. at 78; CA decision, p. 8.
38 Id.
39 Id.
40 Id.
41 Id. at 78-79.
42 Id. at 79; CA decision, p. 9.
43 Id. at 103-111.
44 Id. at 106; RTC decision, p. 4.
45 Id. at 112-144.
46 Id. at 71-96.
47 Id. at 92; CA decision, p. 22.
48 Id.
49 Id. at 93-95; CA decision, pp. 23-25.
50 Id. at 401-459, memorandum for the petitioner.
51 Spouses Alcazar v. Evelyn Arante, G.R. No. 177042, December 10, 2012, 687 SCRA 507, 516 [Per J. Peralta, Third Division], citing Vallacar Transit, Inc. v. Catubig, G.R. No. 175512, May 30, 2011, 649 SCRA 281, 294 [Per J. Leonardo-De Castro, First Division].
52 Garcia, Jr. v. Salvador, 547 Phil. 463, 470 (2007) [Per J. Ynares-Santiago, Third Division]; Lucas v. Tuaño, 604 Phil. 98, 121 (2009) [Per J. Chico-Nazario, Third Division].
53 G.R. No. 97336, February 19, 1993, 219 SCRA 115 [Per J. Davide, Third Division].
54 Id. at p. 127-128, citing Report of the Code Commission, 161-162, and A. M. TOLENTINO, COMMENTARIES AND JURISPRUDENCE ON THE CIVIL CODE OF THE PHILIPPINES 72 (vol. 1, 1985).
55 G.R. No. 184315, November 28, 2011, 661 SCRA 392 [Per J. Peralta, Special Third Division].
56 Id. at 402-403, citing GF Equity, Inc. v. Valenzona, 501 Phil. 153, 164 (2005) [Per J. Carpio Morales, Third Division]; Globe Mackay Cable and Radio Corporation v. Court of Appeals, 257 Phil. 783 (1989) [Per J. Cortes, Third Division]; Manuel v. People, 512 Phil. 818, 847 (2005) [Per J. Callejo, Sr., Second Division].
57 Entitled "AN ACT TO LEGALIZE PERMISSIONS TO USE HUMAN ORGANS OR ANY PORTION OR PORTIONS OF THE HUMAN BODY FOR MEDICAL, SURGICAL, OR SCIENTIFIC PURPOSES, UNDER CERTAIN CONDITIONS," approved on May 17, 1949. This law has since been superseded by Republic Act No. 7170 or "The Organ Donation Act of 1991," approved on January 7, 1992. Section 9 of Republic Act No. 7170 now specifically provides that the search for the donor’s relatives must be done within 48 hours.
58 Entitled "AN ACT TO AMEND REPUBLIC ACT NUMBERED THREE HUNDRED AND FORTY-NINE, ENTITLED "AN ACT TO LEGALIZE PERMISSIONS TO USE HUMAN ORGANS OR ANY PORTION OR PORTIONS OF THE HUMAN BODY FOR MEDICAL, SURGICAL, OR SCIENTIFIC PURPOSES, UNDER CERTAIN CONDITIONS,"" approved on June 12, 1954.
59 G.R. No. 165279, June 7, 2011, 651 SCRA 32 [Per J. Villarama, En Banc, CJ Corona, JJ. Perez and Abad, concurring; JJ. Brion, Nachura, Leonardo-De Castro, Bersamin, and Mendoza, concurring in the result; JJ. Carpio, Carpio Morales, Velasco, Peralta, and Sereno, dissenting].
60 Id. at 56-57, citing Schoendorff v. Society of New York Hospital, 105 N.E. 92, 93 (N.Y. 1914); Black’s Law Dictionary, Fifth Edition, p. 701, citing Ze Barth v. Swedish Hospital Medical Center, 81 Wash.2d 12, 499 P.2d 1, 8; Canterbury v. Spence, 464 F.2d 772 C.A.D.C., 1972.
61 United States v. Barias, 23 Phil. 434, 437 (1912) [Per J. Carson, En Banc], citing Judge Cooley in his work on Torts, 3rd ed., 1324.
62 37 Phil. 809 (1918) [Per J. Street, En Banc].
63 Id. at 813.
64 Rollo, p. 106; RTC decision, p. 4.
65 Id. at 323-324; TSN, October 2, 1995, pp. 35-36.
66 Id. at 375-379; TSN, October 2, 1995, pp. 87-91.
67 D. W. McKeown, R. S. Bonser, and J. A. Kellum, Management of the heartbeating brain-dead organ donor, British Journal of Anaesthesia 108 (S1): i96-i107 (2012).
68 S. Ramjug, N. Hussain, and N. Yonan, Prolonged time between donor brain death and organ retrieval results in an increased risk of mortality in cardiac transplant recipients, Interactive CardioVascular and Thoracic Surgery 12, 938-942 (2011).
69 Id. at 939.
70 K. Kunert, S. Weiß, K. Kotsch, and J. Pratschke, Prolonged brain death duration – does it improve graft quality?, Transplant International 2010 European Society for Organ Transplantation 24, 12-13 (2011).
71 Id. at 13.
72 Rollo, p. 107; RTC decision, p. 5.
73 Id.
74 Id.
75 Id. at 93-94.
76 Id. at 93.
77 Id. at 73.
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