FORGIVE AND FORGET? (Marriage as means to erase a crime)

By Obiter07

Rape is one of the most reprehensible crimes, possibly just lesser in degree than murder.  However, a sometimes overlooked provision of the law does provide that marriage between the accused and his victim extinguishes the crime.  The Revised Penal Codes states thus:

“ARTICLE 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness. — The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse.

The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders.

The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above named persons, as the case may be.

In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provisions of this paragraph shall also be applicable to the co-principals, accomplices and accessories after the fact of the abovementioned crimes.” [Emphasis supplied]

It would appear to be an archaic provision of law, but this has been reiterated in Republic Act No. 8353 or the Anti-Rape Law of 1997 which states:

“Article 266-C. Effect of Pardon. - The subsequent valid marriage between the offended party shall extinguish the criminal action or the penalty imposed.

 
In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty: Provided, That the crime shall not be extinguished or the penalty shall not be abated if the marriage is void ab initio.”

Worthy of note is RA 8353’s definition of rape which indicates that it can also be committed by a husband against his wife.[1] 

One would think that this provision of law has rarely, or never, been invoked.   But in a decision just last March 3, 2010, the Supreme Court granted the motion of the accused for extinguishment of the criminal action based on his marriage to the private complainant subsequent to the rape [PEOPLE vs. DE GUZMAN, G.R. No. 185843, March 3, 2010] .   The accused had been convicted for two counts of rape and was already sentenced to reclusion perpetua for each count.  This conviction was even upheld by the Supreme Court in March 2008. 

However, the very same court absolved the accused on account of said after-the-rape marriage to the private complainant, a marriage which was celebrated at the Bureau of Corrections in 2009.  As held by the Court:

“On several occasions, we applied these provisions to marriages contracted between the offender and the offended party in the crime of rape, as well as in the crime of abuse of chastity, to totally extinguish the criminal liability of and the corresponding penalty that may have been imposed upon those found guilty of the felony.  Parenthetically, we would like to mention here that prior to the case at bar, the last case bearing similar circumstances was decided by this Court in 1974, or around 36 years ago.

Based on the documents, including copies of pictures taken after the ceremony and attached to the motion, we find the marriage between appellant and private complainant to have been contracted validly, legally, and in good faith, as an expression of their mutual love for each other and their desire to establish a family of their own.  Given public policy considerations of respect for the sanctity of marriage and the highest regard for the solidarity of the family, we must accord appellant the full benefits of Article 89, in relation to Article 344 and Article 266-C of the RPC.”

The benefit of such a marriage can even extend to co-principals, accomplices and accessories provided there is only one single crime of rape. It does not apply to two or more crimes of rape which are treated independently. [2]

It is difficult to see how a union can even be created from such an act of violence.  But the law provides for such a situation, possibly with a view that this can serve to restore the victim’s reputation or even from belief that love can indeed triumph over all.  When this happens, who serves the sentence, the man who uses marriage as a way out or the woman who must endure his presence? We can only hope that neither has to as only a marriage contracted in good faith qualifies to extinguish criminal liability.[3]

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^[1]Article 266-A. Rape: When And How Committed. - Rape is committed:  
      "1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of  age or is demented, even though none of the circumstances mentioned above be present.  xxx”

^[2] Reyes, The Revised Penal Codec, Book II (1981), p. 894.

^[3] Ibid citing People vs. Santiago, 51 Phil. 68.

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PIRACY OR SELF-DEFENSE? (Israel’s attacks on ships in international waters)

By Siesta- friendly

Israel once occupied Gaza (among other territories).  They have since left Gaza BUT they have continued to control its borders: land, sea and air. Israel’s oppression and domination of Gaza has left the Palestinians miserable, desperate and in dire need of even basic necessities such as food and medicine.   Even the International Red Cross has reported on the situation in “Gaza: 1.5 million people trapped in despair”.

While most world leaders have conveniently ignored the Palestinians’ plight, citizens all over the world have been quite active: from internet blogging to street demonstrations and to occasional attempts to break Israel’s blockade.  The latest was the Freedom flotilla which was hijacked by Israel commandos.  The hijacking caused the deaths of at least 10 activists of the 600 hundred on board the flotilla.  The passengers of the different ships included a former UN Assistant Secretary-General, 3 German Members of Parliament, an Irish Senator, professors, authors, filmmakers, journalists and other peace advocates.

Israel (of course) claims self-defense.  They claim military arms may come in the guise of humanitarian aid and so they have to block ingress and egress to Gaza and occasionally board ships bearing humanitarian aid.  (Of course, no one will have ill intentions toward any group of people if the latter were not land-grabbers.)

There is no contention about where the boarding and killings occurred.  The flotilla was still in international waters and miles away from Israel territory. 

Israel claims another act of self-defense in their shooting of peace activists.  But reports are slowly coming out (as witnesses have started to be released) and it seems it is the people on board the Mavi Marmara (the crime scene) who were trying to defend themselves from the Israeli commandos who forcibly boarded their ship. Videos (though edited) clearly show commando operations.

How can you block ingress and egress to and from an entire community (especially one beyond your jurisdiction) and claim self-defense if this community and its neighbors try to break through your barriers?

And how can you board a ship with military commandos and fully expect submission, then claim self-defense when you are attacked?  How different is it from a thief who is attacked by a property owner, kills the property owner and claims self-defense?  (The activists who have been released have said that Israel forcibly opened their personal belongings, took possession of their belongings and that they were sent them home only with their clothes on their backs.)

Here’s what international law says - 

Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (March 10, 1988)[1]

1.      Any person commits an offence if that person unlawfully and intentionally:

(a)    seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; or

(b)    performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship; or

(c)    destroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship; or

(d)   places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship; or

(e)    destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if any such act is likely to endanger the safe navigation of a ship; or

(f)     communicates information which he knows to be false, thereby endangering the safe navigation of a ship; or

(g)    injures or kills any person, in connection with the commission or the attempted commission of any of the offences set forth in subparagraphs (a) to (f).  (Article [emphasis supplied]

2.      Any person also commits an offence if that person:

(a)    attempts to commit any of the offences set forth in paragraph 1; or

(b)   abets the commission of any of the offences set forth in paragraph 1 perpetrated by any person or is otherwise an accomplice of a person who commits such an offence; or

(c)    threatens, with or without a condition, as is provided for under national law, aimed at compelling a physical or juridical person to do or refrain from doing any act, to commit any of the offences set forth in paragraph 1, subparagraphs (b), (c) and (e), if that threat is likely to endanger the safe navigation of the ship in question. (Article 3)

Israel is a signatory to this treaty.

The events on the Mavi Marmara are just the latest of Israel’s illegal acts.  In June 2009, Nobel Peace laureate Mairead Maguire and former US Congresswoman Cynthia McKinney together with 20 others were taken into custody while on board the Freegaza boat bearing humanitarian aid to Gaza.  The Israel navy hijacked the boat in international waters. The activists were imprisoned for a week before being deported.

No wonder Israel forces are being called Pirates of the Mediterranean (here's one and another article)

A news report just released states that the youngest victim on the Mavi Marmara was 19-year-old Turkish-American high school student Furkan Dogawho. He was shot 5 times - 4 times in the head and once in the chest. Is that self-defense? 

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[1]  Convention for the suppression of unlawful acts against the safety of maritime navigation. Concluded at 10 march 1988. (n.d.). Retrieved from http://treaties.un.org/doc/db/Terrorism/Conv8-english.pdf

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THE BUTT STOPS HERE (Why our President should not be smoking)

By Siesta-friendly

The incoming (unless he dies of lung cancer in a few weeks) president Benigno ”Noynoy” Aquino III dreams of cleaning his government (meaning the entire country) of corruption.  Yet he can’t even help in cleaning our lungs and the environment of his cigarette smoke.  This despite laws against smoking and pollution and despite his being a lawmaker.

There is no excuse.  There are enough enabling laws and implementing rules banning smoking in public places.

Philippine Clean Air Act Of 1999

Under Section 24 of Republic Act No. 8749 smoking is prohibited inside (a) a public building or (b) an enclosed public place including public vehicles and other means of transport or in (c) any enclosed area outside of one’s private residence, private place of work or any duly designated smoking area.  This provision is implemented by local government units.

Penalty

The Implementing Rules And Regulations of R.A. 8749 provide the punishment of 6 months and 1 day to 1 year imprisonment or a fine of P10,000.00 on any person who smokes inside a public building or an enclosed public place, including public utility vehicles or other means of public transport or in any enclosed area outside of his private residence, private place of work or any duly designated smoking area. (Rule LVI, Section 5)

Tobacco Regulation Act of 2003 (which we’ve discussed in a previous post)

Regardless of the lack of any sign, smoking is absolutely prohibited in the following public places:

1. Centers of youth activity such as playschools, preparatory schools, elementary schools, high schools, colleges and universities, youth hostels, and recreational facilities for persons under 18 years old;
2. Elevator and stairwells;
3. Location in which fire hazards are present, including gas stations and storage areas for flammable liquids, gas, explosives or combustible materials;
4. Within the buildings and premises of public and private hospitals. Medical, dental, and optical clinics, health centers, nursing homes, dispensaries and laboratories;
5. Public conveyance and public facilities including airport and ship terminals and train and bus stations, restaurant and conference halls, except for separate smoking areas; and
6. Food preparation areas.    Under the Implementing Rules of RA 9211, food preparation areas include areas where food or beverage is actually being manufactured or prepared.   (Section 5, Republic Act No. 9211)

In all enclosed places that are open to the general public, private workplaces, and other places not covered under Section 5, where smoking may expose a person other than the smoker to tobacco smoke, the owner, proprietor, possessor, manager or administrator of such places shall establish smoking areas. (Section 6)

All designated smoking areas shall at least have 1 legible and visible sign posted, namely "SMOKING AREA" for the information and guidance of all concerned.  In addition, the sign or not posted shall include a warning about the health effects of direct or secondhand exposure to tobacco smoke.  Non-smoking areas shall likewise have at least 1 legible and visible sign, namely: "NO SMOKING AREA" or "NO SMOKING". (Section 6)

Penalty

Under the Rules and Regulations Implementing Republic Act No. 9211, violations of Sections 5 and 6 are punished as follows:  

(a)    On the first offense, a fine of not less than P500.00 - P1,000.00 shall be imposed.

(b)   On the second offense, a fine of not less than P1,000.00 - P5,000.00 shall be imposed.

(c)    On the third offense, in addition to a fine of not less than P5,000.00 – P10,000.00, the business permits and licenses to operate shall be cancelled or revoked.  (Title VI, Rule I, Section 2.3)

A president’s work areas would likely be mostly public areas so there’s not much room to escape unless the president opts to flaunt the law. Anyone wanting to lead the country should begin by following its laws first. And when it comes to smoking, he should definitely show where the butt stops.

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WHAT IF THERE WAS A TIE? (Breaking ties in local and national elections)

By Siesta-friendly

Just to ventilate: we don’t understand why in the age of electronic transmission, election results transmission in the Philippines suddenly seem to be anachronistic.  Electronic mail can be received in a matter of seconds all around the world.  Yet, the remaining electronic data from ballot machines taken 8 days ago seem to be taking their sweet time or maybe being redirected around the universe to get where they should be.

Plus, continued reports of irregularities give more and more light to COMELEC’s incompetence:  from 60 PCOS (Precinct Count Optical Scan) machines being taken home by a PCOS technician to discrepancies between election data print-outs and the election data stored in the memory cards Not to mention the numerous PCOS machines breaking down since election day.

Time for a revamp of the entire COMELEC membership to have a more credible outcome next time.

So there.

The slow counting of votes for certain positions has also given us time to think about certain scenarios under the Omnibus Election Code like what happens when there is a tie for local and national posts (especially where the race seems close).

When the candidates for President or Vice President are tied

Upon the completion of the canvass of the votes by Congress, the candidates with the highest number of votes for President and for Vice-President shall be declared elected; but in case 2 or more shall have an equal and the highest number of votes, one of them shall be chosen President or Vice-President, as the case may be, by a majority vote of all the Members of Congress in session assembled. (Article II, Section 20, Omnibus Election Code)[1]

If the Certificates of Canvass are not complete

In case there are certificates of canvass which have not been submitted to the Speaker of the House of Representatives on account of missing election returns, a proclamation may be made if the missing certificates will not affect the results of the election.

But if the certificates of canvass which were not submitted on account of missing election returns will affect the results of the election, no proclamation shall be made. The Speaker shall immediately instruct the boards of canvassers concerned to obtain the missing election returns from the boards of election inspectors or, if the returns have been lost or destroyed upon prior authority from the COMELEC, to use any authentic copy of said election returns for the purpose of conducting the canvass, and thereafter issue the certificates of canvass.  The certificates of canvass shall be immediately transmitted to the House Speaker.

Proclamation shall be made only upon submission of all certificates of canvass or when the missing certificates of canvass will not affect the results of the election. (Article II, Section 20)

When other candidates are tied

In other instances where there are 2 or more candidates receiving an equal and highest number of votes, or in cases where 2 or more candidates are to be elected for the same position and two or more candidates received the same number of votes for the last place in the number to be elected, the board of canvassers, after recording this fact in its minutes, shall by resolution, upon 5 days notice to all the tied candidates, hold a special public meeting at which the board of canvassers shall proceed to the drawing of lots of the candidates who have tied and shall proclaim as elected the candidates who may be favored by luck, and the candidates so proclaimed shall have the right to assume office in the same manner as if he had been elected by plurality of vote.  (Article XIX, Section 240)

If there are pre-proclamation controversies

It must first be noted that as to the elections, returns, and qualifications of all members of Congress, elective regional, provincial and city officials, the COMELEC is the sole judge. (Article XXI, Section 249)

As regards pre-proclamation controversies, the COMELEC has exclusive jurisdiction. It may motu proprio (or on its own) or upon written petition, and after due notice and hearing, order the partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if one has been made, as the evidence shall warrant. (Article XX, Section 242)

We won’t go into the details of election protests. They can be messy and very political.

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[1]  Batas Pambansa Blg. 881, December 3, 1985.  http://www.comelec.gov.ph/laws/omnibus_election_code/oec_art2.html

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SLICING THE RESPONSIBILITY (When the hospital and surgeon share the blame for negligence)

By Siesta-friendly

In the consolidated cases Professional Services, Inc., v. the Court Of Appeals and Natividad and Enrique Agana, Natividad and Enrique Agana v. the Court Of Appeals and Juan Fuentes, and Miguel Ampil v. Natividad and Enrique Agana, the Supreme Court en banc held that Medical City General Hospital – owned and operated by Professional Services, Inc. – is liable to the heirs of the deceased patient, Natividad Agana, on the basis of an ostensible agency existing between the hospital and the negligent surgeon who operated on Mrs. Agana and on the basis of the hospital’s own corporate negligence during and after the surgery.[1]

The 3 cases arose from the following facts established at trial:

On April 4, 1984, Natividad Agana was rushed to the Medical City General Hospital (Medical City Hospital) because of difficulty of bowel movement and bloody anal discharge. After a series of medical examinations, Dr. Miguel Ampil ... diagnosed her to be suffering from "cancer of the sigmoid."

On April 11, 1984, Dr. Ampil, assisted by the medical staff of the Medical City Hospital, performed an anterior resection surgery on Natividad. He found that the malignancy in her sigmoid area had spread on her left ovary, necessitating the removal of certain portions of it.  Thus, Dr. Ampil obtained the consent of Natividad’s husband, Enrique Agana, to permit Dr. Juan Fuentes ... to perform hysterectomy on her.

After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over, completed the operation and closed the incision.

However, the operation appeared to be flawed. In the corresponding Record of Operation dated April 11, 1984, the attending nurses entered these remarks:

"sponge count lacking 2”

“announced to surgeon searched (sic) done but to no avail continue for closure."

Dr. Ampil was the lead surgeon during the operation of Natividad.  He requested the assistance of Dr. Fuentes only to perform hysterectomy when he (Dr. Ampil) found that the malignancy in her sigmoid area had spread to her left ovary. Dr. Fuentes performed the surgery and thereafter reported and showed his work to Dr. Ampil. The latter examined it and finding everything to be in order, allowed Dr. Fuentes to leave the operating room.  Dr. Ampil then resumed operating on Natividad.  He was about to finish the procedure when the attending nurses informed him that two pieces of gauze were missing.  A "diligent search" was conducted, but the misplaced gauzes were not found.  Dr. Ampil then directed that the incision be closed.  During this entire period, Dr. Fuentes was no longer in the operating room and had, in fact, left the hospital.

On April 24, 1984, Natividad was released from the hospital ...

After a couple of days, Natividad complained of excruciating pain in her anal region. She consulted both Dr. Ampil and Dr. Fuentes about it. They told her that the pain was the natural consequence of the surgery. Dr. Ampil then recommended that she consult an oncologist to examine the cancerous nodes which were not removed during the operation.

On May 9, 1984, Natividad, accompanied by her husband, went to the United States to seek further treatment. After four months of consultations and laboratory examinations, Natividad was told she was free of cancer. Hence, she was advised to return to the Philippines.

On August 31, 1984, Natividad flew back to the Philippines, still suffering from pains. Two weeks thereafter, her daughter found a piece of gauze protruding from her vagina. Upon being informed about it, Dr. Ampil proceeded to her house where he managed to extract by hand a piece of gauze measuring 1.5 inches in width. He then assured her that the pains would soon vanish.

Dr. Ampil’s assurance did not come true. Instead, the pains intensified, prompting Natividad to seek treatment at the Polymedic General Hospital. While confined there, Dr. Ramon Gutierrez detected the presence of another foreign object in her vagina -- a foul-smelling gauze measuring 1.5 inches in width which badly infected her vaginal vault. A recto-vaginal fistula had formed in her reproductive organs which forced stool to excrete through the vagina. Another surgical operation was needed to remedy the damage. Thus, in October 1984, Natividad underwent another surgery. (G.R. No. 126297/G.R. No. 126467/G.R. No. 127590, January 31, 2007)

The Aganas’ ordeal prompted them to file a court case.  From the trial court to the Court of Appeals to the Supreme Court, the hospital and the lead surgeon, Dr. Ampil was held liable while Dr. Fuentes - who performed the hysterectomy - was absolved.

Ostensible Agency

In finding the hospital liable for its surgeon’s negligence, the Supreme Court found –

“ample evidence that the hospital … held out to the patient … that the doctor … was its agent.  Present are the two factors that determine apparent authority: first, the hospital's implied manifestation to the patient which led the latter to conclude that the doctor was the hospital's agent; and second, the patient’s reliance upon the conduct of the hospital and the doctor, consistent with ordinary care and prudence … the decision made by Enrique for [his wife] Natividad to consult Dr. Ampil was significantly influenced by the impression that Dr. Ampil was a staff member of Medical City General Hospital, and that said hospital was well known and prominent.  Enrique looked upon Dr. Ampil not as independent of but as integrally related to Medical City.”

The Supreme Court also held that the hospital’s “consent for hospital care” - required to be signed prior to the surgery - affirmed that the surgeon was of the hospital.  The form reads:

“Permission is hereby given to the medical, nursing and laboratory staff of the Medical City General Hospital to perform such diagnostic procedures and to administer such medications and treatments as may be deemed necessary or advisable by the physicians of this hospital for and during the confinement of xxx. (emphasis supplied)”

Corporate Negligence

In deciding that the hospital is liable for its own corporate negligence, the Supreme Court noted that the hospital admitted the following in its Motion for Reconsideration:

”… In addition to noting the missing gauzes, regular check-ups were made and no signs of complications were exhibited during her stay at the hospital, which could have alerted [the] hospital to render and provide post-operation services to and tread on Dr. Ampil's role as the doctor of Mrs. Agana.  The absence of negligence of [the hospital] from the patient's admission up to her discharge is borne by the finding of facts in this case.  Likewise evident therefrom is the absence of any complaint from Mrs. Agana after her discharge from the hospital which had she brought to the hospital's attention, could have alerted [the hospital] to act accordingly and bring the matter to Dr. Ampil's attention. But this was not the case.  Ms. Agana complained ONLY to Drs. Ampil and Fuentes, not the hospital.  How then could [the hospital] possibly do something to fix the negligence committed by Dr. Ampil when it was not informed about it at all. (emphasis supplied)”           

“… had Natividad Agana “informed the hospital of her discomfort and pain, the hospital would have been obliged to act on it.”

Thus, the Court found that “while [the hospital] had no power to control the means or method by which Dr. Ampil conducted the surgery on Natividad Agana, it had the power to review or cause the review of what may have irregularly transpired within its walls strictly for the purpose of determining whether some form of negligence may have attended any procedure done inside its premises, with the ultimate end of protecting its patients.”

And that the hospital admitted it “assumed a duty to “tread on” the role of any doctor rendering services within its premises for the purpose of ensuring the safety of the patients availing themselves of its services and facilities.”

The Court also noted the hospital admitted “the standards of its corporate conduct under the circumstances of this case, specifically: (a) that it had a corporate duty to Natividad even after her operation to ensure her safety as a patient; (b) that its corporate duty was not limited to having its nursing staff note or record the two missing gauzes and (c) that its corporate duty extended to determining Dr. Ampil's role in it, bringing the matter to his attention, and correcting his negligence.”

The Aganas must be grateful to whomever drafted the admission-filled Motion for Reconsideration.

Unacceptable excuse

Undeterred, the hospital argued that it was excused “from fulfilling its corporate duty on the ground that Dr. Ampil assumed the personal responsibility of informing Natividad about the two missing gauzes.  Dr. Ricardo Jocson, who was part of the group of doctors that attended to Natividad, testified that toward the end of the surgery, their group talked about the missing gauzes but Dr. Ampil assured them that he would personally notify the patient about it.  Furthermore, [the hospital] claimed that there was no reason for it to act on the report on the two missing gauzes because Natividad Agana showed no signs of complications. She did not even inform the hospital about her discomfort.”

The Supreme Court was not persuaded holding that the hospital should not have delegated its duty to review what happened during surgery to the surgeon nor the patient –

“[The hospital] could not simply wave off the problem and nonchalantly delegate to Dr. Ampil the duty to review what transpired during the operation. … [The hospital] could not have expected that purpose to be achieved by merely hoping that the person likely to have mislaid the gauzes might be able to retrace his own steps.  By its own standard of corporate conduct, [the hospital]'s duty to initiate the review was non-delegable.

While Dr. Ampil may have had the primary responsibility of notifying Natividad about the missing gauzes, [the hospital] imposed upon itself the separate and independent responsibility of initiating the inquiry into the missing gauzes. The purpose of the first would have been to apprise Natividad of what transpired during her surgery, while the purpose of the second would have been to pinpoint any lapse in procedure that led to the gauze count discrepancy, so as to prevent a recurrence thereof and to determine corrective measures that would ensure the safety of Natividad.  That Dr. Ampil negligently failed to notify Natividad did not release [the hospital] from its self-imposed separate responsibility.

Corollary to its non-delegable undertaking to review potential incidents of negligence committed within its premises, [the hospital] had the duty to take notice of medical records prepared by its own staff and submitted to its custody, especially when these bear earmarks of a surgery gone awry.  Thus, the record taken during the operation of Natividad which reported a gauze count discrepancy should have given [the hospital] sufficient reason to initiate a review.  It should not have waited for Natividad to complain.” [emphasis supplied]

In short, all the hospital had to do was to review the records which clearly noted the loss of 2 gauzes, review what happened and take steps to ensure the patient’s safety. It did none of these and merely blamed everything on the lead surgeon and the patient.

Not a precedent

Due to the circumstances unique in this case including the hospital’s judicial admissions in its Motion for Reconsideration, the Court held that the case is “not intended to set a precedent and should not serve as a basis to hold hospitals liable for every form of negligence of their doctors-consultants under any and all circumstances.“  But it does affirm that doctors and hospitals have a duty to their patients and they can be held liable when they have been remiss in their duties.

Doctors still have to be true to the oath they have taken:.  

 

“I swear to fulfill, to the best of my ability and judgment, this covenant:

I will respect the hard-won scientific gains of those physicians in whose steps I walk, and gladly share such knowledge as is mine with those who are to follow.

I will apply, for the benefit of the sick, all measures [that] are required, avoiding those twin traps of overtreatment and therapeutic nihilism.

I will remember that there is art to medicine as well as science, and that warmth, sympathy, and understanding may outweigh the surgeon's knife or the chemist's drug.

I will not be ashamed to say "I know not," nor will I fail to call in my colleagues when the skills of another are needed for a patient's recovery.

I will respect the privacy of my patients, for their problems are not disclosed to me that the world may know. Most especially must I tread with care in matters of life and death. If it is given me to save a life, all thanks. But it may also be within my power to take a life; this awesome responsibility must be faced with great humbleness and awareness of my own frailty. Above all, I must not play at God.

I will remember that I do not treat a fever chart, a cancerous growth, but a sick human being, whose illness may affect the person's family and economic stability. My responsibility includes these related problems, if I am to care adequately for the sick.

I will prevent disease whenever I can, for prevention is preferable to cure.

I will remember that I remain a member of society, with special obligations to all my fellow human beings, those sound of mind and body as well as the infirm.

If I do not violate this oath, may I enjoy life and art, respected while I live and remembered with affection thereafter. May I always act so as to preserve the finest traditions of my calling and may I long experience the joy of healing those who seek my help.”[2]

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[1]  G.R. No. 126297/G.R. No. 126467/G.R. No. 127590, February 2, 2010

[2]  The Hippocratic oath: modern version. (n.d.). Retrieved from  http://www.pbs.org/wgbh/nova/doctors/oath_modern.html

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