Legal Medicine – Atty.

Luansing

THE MEDICAL ACT OF 1959 "Sec. 5. Functions. The functions of the Board of Medical Education shall
be:
(AS AMENDED BY RA 4224 and 5946)
(a) To determine and prescribe requirements for admission into a recognized
ARTICLE I college of medicine;
Objectives and Implementation
(b) To determine and prescribe requirements for minimum physical facilities
Section 1. Objectives. This Act provides for and shall govern (a) the of colleges of medicine, to wit: buildings, including hospitals, equipment and
standardization and regulation of medical education; (b) the examination for supplies, apparatus, instruments, appliances, laboratories, bed capacity for
registration of physicians; and (c) the supervision, control and regulation of instruction purposes, operating and delivery rooms, facilities for outpatient
the practice of medicine in the Philippines. services, and others, used for didactic and practical instruction in
accordance with modern trends;
Section 2. Enforcement. For the purpose of implementing the provisions of
this Act, there are created the following agencies: the Board of Medical (c) To determine and prescribe the minimum number and minimum
Education under the Department of Education, and the Board of Medical qualifications of teaching personnel, including student-teachers ratio;
Examiners under the Commissioner of Civil Service.
(d) To determine and prescribe the minimum required curriculum leading to
ARTICLE II the degree of Doctor of Medicine;
The Board of Medical Education Its Functions
(e) To authorize the implementation of experimental medical curriculum in a
"Sec. 3. Composition of the Board of Medical Education. The Board of medical school that has exceptional faculty and instrumental facilities. Such
Medical Education shall be composed of the Secretary of Education or his an experimental curriculum may prescribe admission and graduation
duly authorized representative, as chairman; the Secretary of Health or his requirements other than those prescribed in this Act; Provided, That only
duly authorized representative; the Director of the Bureau of Private Schools exceptional students shall be enrolled in the experimental curriculum.
or his duly authorized representative; the chairman of the Board of Medical
Examiners or his duly authorized representatives a representative of the (f) To accept applications for certification for admission to a medical school
Philippine Medical Association; the Dean of the College of Medicine, and keep a register of those issued said certificate; and to collect from said
University of the Philippines; a representative of the Council of Deans of applicants the amount of twenty-five pesos each which shall accrue to the
Philippine Medical Schools; and a Representative of the Association of operating fund of the Board of Medical Education;
Philippine Medical Colleges, as members.
(g) To select, determine and approve hospitals or some departments of the
The officials acting as chairman and members of the Board of Medical hospitals for training which comply with the minimum specific physical
Education shall hold office during their incumbency in their respective facilities as provided in subparagraph (b) hereof; and
positions.”
(h) To promulgate and prescribe and enforce the necessary rules and
"Sec. 4. Compensation and traveling expenses. The Chairman, members regulations for the proper implementation of the foregoing functions.”
and Secretary of the Board of Medical Association shall be entitled to twenty-
five pesos per diem for every meeting provided the number of meetings "Sec. 6. Minimum required course. Students seeking admission to medical
authorized with per diem shall not exceed four times a month and traveling course must have a bachelor's degree in science or arts.
expenses in connection with their official duties as herein provided.
The medical course leading to the degree of doctor of medicine shall be at
For administrative purposes, the Board shall hold office in the office of its least four years and shall consist of the following subjects:
chairman, who may designate a ranking official in the Department of
Anatomy
Education to serve as secretary of the Board.
Physiology
Legal Medicine – Atty. Luansing

Biochemistry and Nutrition Every college of medicine must keep a complete records of enrollment,
grades, graduates, and must publish each year a catalogue giving the
Pharmacology following information:
Microbiology 1. Date of publication
Parasitology 2. Calendar of academic year
Medicine and Therapeutics 3. Faculty roll indicating whether on full time or part time basis
Pathology 4. Requirements for admission
Gynecology 5. Grading system
Ophthalmology, Otology, Rhinology and Laryngology 6. Requirements for promotion
Pediatrics 7. Requirements for graduation
Obstetrics 8. Curriculum and description of course by department
Surgery 9. Number of students enrolled in each class in the preceding year.”
Preventive Medicine and Public Health ARTICLE III
THE BOARD OF MEDICAL EXAMINERS; REGISTRATION OF
Legal Medicine, including Jurisprudence, Medical economics and Ethics
PHYSICIANS
Provided, That the Board is hereby authorized to modify or add to the
"Sec. 9. Candidates for board examinations. Candidates for Board
subjects listed above as the needs and demands of progress in the medical
examinations shall have the following qualifications:
profession may require.
(1) He shall be a citizen of the Philippines or a citizen of any foreign country
"Sec. 7. Admission requirements. The medical college may admit any
who has submitted competent and conclusive documentary evidence,
student who has not been convicted by any court of competent jurisdiction of
confirmed by the Department of Foreign Affairs, showing that his country's
any offense involving moral turpitude and who presents (a) a record showing
existing laws permit citizens of the Philippines to practice medicine under the
completion of a bachelor's degree in science or arts; (b) a certificate of
same rules and regulations governing citizens thereof;
eligibility for entrance to a medical school from the Board of Medical
Education; (c) a certificate of good moral character issued by two former (2) He shall be of good moral character;
professors in the college of liberal arts; and (d) birth certificate. Nothing in this
Act shall be construed to inhibit any college of medicine from establishing, in (3) He shall be of sound mind;
addition to the preceding, other entrance requirements that may be deemed
admissible. (4) He shall not have been convicted by a court of competent jurisdiction of
any offense involving moral turpitude;
For the purpose of this Act, the term "College of Medicine" shall mean to
include faculty of medicine, institute of medicine, school of medicine or other (5) He shall be a holder of the degree of Doctor of Medicine or its equivalent
similar institution, offering a complete medical course leading to the degree of conferred by a college of medicine duly recognized by the Government; and
Doctor of Medicine or its equivalent.
(6) He must have completed a calendar year of technical training known as
internship the nature of which shall be prescribed by the Board of Medical
Legal Medicine – Atty. Luansing

Education undertaken in hospitals and health centers approved by the "Sec. 11. Exemptions. The preceding section shall not be construed to affect
board."
(a) any medical student duly enrolled in an approved medical college or
Section 9. Candidates for board examination. Candidates for Board school, or graduate under training, serving without any professional
examinations shall have the following qualifications: fee in any government or private hospital, provided that he render
such service under the direct supervision and control of a registered
(1) He shall be a citizen of the Philippines or a citizen of any foreign country physician;
who has submitted competent and conclusive documentary evidence, (b) any legally registered dentist engaged exclusively in the practice of
confirmed by the Department of Foreign Affairs, showing that his country's dentistry;
existing laws permit citizens of the Philippines to practice medicine under the (c) any duly registered masseur or physiotherapist, provided that he
same rules and regulations governing citizens thereof; applies massage or other physical means upon written order or
prescription of a duly registered physician, or provided that such
(2) He shall be of good moral character, showing for this purpose certificate of
application of massage or physical means shall be limited to
civil status;
physical or muscular development;
(3) He shall be of sound mind; (d) any duly registered optometrist who mechanically fits or sells
lenses, artificial eyes, limbs or other similar appliances or who is
(4) He shall not have been convicted by a court of competent jurisdiction of engaged in the mechanical examination of eyes for the purpose of
any offense involving moral turpitude; and constructing or adjusting eyeglasses, spectacles and lenses;
(e) any person who renders any service gratuitously in cases of
(5) He shall be a holder of the degree of Doctor of Medicine or its equivalent,
emergency, or in places where the services of a duly registered
conferred by a college of medicine duly recognized by the Department of
physician, nurse or midwife are not available;
Education.
(f) any person who administers or recommends any household
"Sec. 10. Acts constituting practice of medicine. A person shall be remedy as per classification of existing Pharmacy Laws;
considered as engaged in the practice of medicine (g) any clinical psychologist, or mental hygienist, in the performance of
his duties in regard to patients with psychiatric problems, provided
(a) who shall, for compensation, fee, salary or reward in any form paid such performance is done with the prescription and direct
to him directly or through another, or even without the same, supervision of a duly registered physician, and
physically examine any person, and diagnose, treat, operate or (h) prosthetists who fit artificial limbs under the supervision of a
prescribe any remedy for human disease, injury, deformity, registered physician.”
physical, mental, psychical condition or any ailment, real or
imaginary, regardless of the nature of the remedy or treatment "Sec. 12. Limited practice without any certificate of registration. Certificates
administered, prescribed or recommended; or of registration shall not be required of the following persons:
(b) who shall by means of signs, cards, advertisements, written or
(a) Physicians and surgeons from other countries called in consultation
printed matter, or through the radio, television or any other means
only and exclusively in specific and definite case, or those attached
of communication, either offer or undertake by any means or
to international bodies or organizations assigned to perform certain
method to diagnose, treat, operate or prescribe any remedy for any
definite work in the Philippines, provided they shall limit their
human disease, injury, deformity, physical, mental or psychical
practice to the specific work assigned to them and provided further
condition; or
they shall secure a previous authorization from the Board of
(c) who shall falsely use the title of M.D. after his name.
Medical Examiners.

(b) Commissioned medical officers of the United States Armed Forces

stationed in the Philippines while rendering service as such only for
Legal Medicine – Atty. Luansing

the members of the said armed forces and within the limit of their shall insert the names and cause the publication of the names of successful
own respective territorial jurisdiction. candidates in alphabetical order without the ratings obtained by each, and at
the same time transmit a copy thereof to the Office of the President.”
(c) Foreign physicians employed as exchange professors in special
branches of medicine or surgery whose service may, upon previous "Sec. 14. Qualifications of examiner. No person shall be appointed a
authorization of the Board of Medical Examiners, be necessary. member of the Board of Medical Examiners unless he or she (1) is a natural-
born citizen of the Philippines, (2) is a duly registered physician in the
(d) Medical students who have completed the first four years of medical Philippines, (3) has been in the practice of medicine for at least ten years, (4)
course, graduates of medicine and registered nurses who may be is of good moral character and of recognized standing in the medical
given limited and special authorization by the Secretary of Health to profession as certified by the Philippine Medical Association, (5) is not a
render services during epidemics or national emergencies whenever member of the faculty of any medical school and has no pecuniary interest,
the services of duly registered physicians are not available. Such directly or indirectly, in any college of medicine or any institution where any
authorization shall automatically cease when the epidemic or branch of medicine is taught, at the time of his appointment.”
national emergency is declared terminated by the Secretary of
"Sec. 15. Tenure of office and compensation of members. The members of
Health.”
the Board of Medical Examiners shall hold office for a term of three years
"Sec. 13. The Board of Medical Examiners, its composition and duties. The without immediate reappointment and until their successors shall have been
Board of Medical Examiners shall be composed of six members to be duly appointed and duly qualified. During the first year of the
appointed by the President of the Philippines from a list of not more than implementation of this amendment, the members of the Board of Medical
twelve names approved and submitted by the Executive Council of the Examiners shall hold office as follows:
Philippine Medical Association, after due consultation with other medical
"Two members of a term of one year;
association during the month of September each year. The chairman of the
Board shall be elected from among themselves by the members at a meeting "Two members of a term of two years;
called for the purpose. The President of the Philippines shall fill any vacancy
that may occur during any examination from the list of names submitted by "Two members of a term of three years:
the Philippine Medical Association in accordance with the provisions of this
Provided, That yearly appointments of two new members will be made to
Act.
replace those whose terms will expire: Provided, further, That appointments
"No examiner shall handle examinations in more than four subjects or to fill up vacancies created by causes other than through expiration of
groups of subjects as hereinafter provided. The distribution of subjects to regular terms will be for the unexpired period only. Each member shall
each member shall be agreed upon at a meeting called by the chairman for receive as compensation ten pesos for each candidate examined for
the purpose. The examination papers shall be under the custody of the registration as physician, and five pesos for each candidate examined in the
Commissioner of Civil Service or his duly authorized representative, and preliminary or final physical examination, provided the sum of said
shall be distributed to each member of the Board who shall correct, grade, compensation does not exceed eighteen thousand pesos annually.
and sign, and submit them to the said Commissioner within one hundred
"The President of the Philippines, upon the recommendation of the
twenty days from the date of the termination of the examinations.
Commissioner of Civil Service, after due investigation, may remove any
"A final meeting of the Board for the deliberation and approval of the grades member of the Board of Medical Examiners for neglect of duty,
shall be called by the Commissioner of Civil Service immediately after the incompetency, or unprofessional of dishonorable conduct.”
receipt of the records from the members of the Board of Medical Examiners.
"Sec. 16. Executive officer and Secretary of the Board. The Secretary of the
The Secretary of the Board shall submit to the President of the Philippines for
Boards of Examiners appointed in accordance with Section ten of Act
approval the tabulation of results, without names and immediately upon
Numbered Four thousand seven, as amended, shall also be the secretary of
receipt of the approved tabulation from the Office of the President, the Board
Legal Medicine – Atty. Luansing

the Board of Medical Examiners, who shall keep all the records, including "Sec. 19. Fees. The Secretary of the Board, under the supervision of the
examination papers and the minutes of the deliberations of the Board. He Commissioner of Civil Service, shall collect from each candidate the following
shall also keep a register of all persons to whom certificates of registration fees:
has been granted; set forth the name, sex, age, and place of birth of each,
place of business, post office address, the name of the medical college or "For complete physician
75.00
university from which he graduated or in which he had studied, together examination
with the time spent in the study of the profession elsewhere, the name of the
country where the institution is located which had granted to him the degree "For preliminary or final
or certificate of attendance on clinics and all lectures in medicine and 40.00
examination
surgery, and all other degrees granted to him from institutions of learning.
He shall keep an up-to-date registration book of all duly registered physicians "For registration as physician 20.00
in the Philippines. He shall furnish copies of all examination questions and
ratings in each subject of the respective candidates in the physicians "All fees paid as provided herein shall accrue to the funds of the Board of
examination, one month after the release of the list of successful examinees, Medical Examiners and be expended for the payment of the compensation of
to the deans of the different colleges of medicine exclusively for the the members thereof. No fees other than those provided herein shall be paid
information and guidance of the faculties thereof. This report shall be to the Board.”
considered as restricted information. Any school which violates this rule shall
be deprived of such privilege. The Secretary shall keep all the records and "Sec. 20. Issuance of Certificates of Registration, grounds for refusal of
proceedings, and issue and receive all papers in connection with any and all same. The Commissioner of Civil Service, the chairman, the members and
complaints presented to the Board.” the Secretary of the Board of Medical Examiners shall sign and issue
certificates of registration to those who have satisfactorily complied with the
Section 17. Rules and regulations. The Board of Medical Examiners, with requirements of the Board. They shall not issue a certificate of registration to
the approval of the Commissioner of Civil Service, shall promulgate such any candidate who has been convicted by a court of competent jurisdiction of
rules and regulations as may be necessary for the proper conduct of the any criminal offense involving moral turpitude, or has been found guilty of
examinations, correction of examination papers, and registration of immoral or dishonorable conduct after the investigation by the Board of
physicians. The Commissioner shall supervise each Board examination and Medical Examiners, or has been declared to be of unsound mind.
enforce the said rules and regulations. These rules and regulations shall take
effect fifteen days after the date of their publication in the Official Gazette and "Sec. 21. Scope of examination. The following subjects shall be given in the
shall not be changed within sixty days immediately before any examination. examinations:
Such rules and regulations shall be printed and distributed for the
"(a) Preliminary Examination
information and guidance of all concerned.
"1) Anatomy and Histology
"Sec. 18. Dates of the examinations. The Board of Medical Examiners shall
give examinations for the registration of physicians, twice a year, on dates to "2) Physiology
be determined by it provided that the interval between the first and the
second examinations in a year shall be six months, in the City of Manila or "3) Biochemistry
any of its suburbs after giving not less than ten days' notice to each
candidate who had filed his name and address with the Secretary of the "4) Microbiology and Parasitology
Board.”
"(b) Final Examination

"1) Pharmacology and Therapeutics

"2) Pathology
Legal Medicine – Atty. Luansing

"3) Medicine Examiners of at least one (1) year in a recognized medical school or college
before he could be allowed to take subsequent examinations.
"4) Obstetrics and Gynecology
"If the applicant is found to be proficient in the subjects in the preliminary
"5) Pediatrics and Nutrition examinations, he or she shall be exempt in these subjects at the time of the
final examination. In case of failure in any subject at any preliminary
"6) Surgery and Ophthalmology, Otolaryngology and Rhinology
examination given in accordance with this section, the candidate shall not
"7) Preventive Medicine and Public Health, and then be reexamined in such subject in which he may have failed until he
shall have finished the prescribed course of medical study and internship.
"8) Legal Medicine, Ethics and Medical Jurisprudence
"Sec. 22. Administrative investigations. In addition to the functions provided
"(c) Complete Examination for in the preceding sections, the Board of Medical Examiners shall perform
the following duties: (1) to administer oath to physicians who qualified in the
"1) Anatomy and Histology
examinations; (2) to study the conditions affecting the practice of medicine in
"2) Physiology all parts of the Philippines; (3) to exercise the powers conferred upon it by
this article with the view of maintaining the ethical and professional
"3) Biochemistry standards of the medical profession, (4) to subpoena or subpoena duces
tecum witnesses for all purposes required in the discharge of its duties; and
"4) Microbiology and Parasitology (5) to promulgate, with the approval of the Commissioner of Civil Service,
"5) Pharmacology and Therapeutics such rules and regulations as it may deem necessary for the performance of
its duties in harmony with the provisions of this Act and necessary for the
"6) Pathology proper practice of medicine in the Philippines.

"7) Medicine "Administrative investigations shall be conducted by at least two members of

the Board of Medical Examiners with one legal officer sitting during the
"8) Obstetrics and Gynecology investigation, otherwise the proceedings shall be considered void. The
existing rules of evidence shall be observed during all administrative
"9) Pediatrics and Nutrition
investigations. The Board may disapprove applications for examination or
"10) Surgery and Ophthalmology, Otolaryngology and Rhinology registration, reprimand erring physicians, or suspend or revoke registration
certificates, if the respondents are found guilty after due investigation.”
"11) Preventive medicine and Public Health, and
Section 23. Procedure and rules. Within five days after the filling of written
"12) Legal Medicine, Ethics and Medical Jurisprudence charges under oath, the respondent physician shall be furnished a copy
thereof, without requiring him or her to answer the same, and the Board
"The questions shall be the same for all applicants. All answers must be
shall conduct the investigation within five days after the receipt of such copy
written in English. No name of the examinee shall appear in the examination
by the respondent. The investigation shall be completed as soon as
paper but the examiners shall devise a system whereby each applicant can
practicable.
be identified by number only.”
Section 24. Grounds for reprimand, suspension or revocation of registration
"In order that a candidate may be deemed to have passed his examination
certificate. Any of the following shall be sufficient ground for reprimanding a
successfully he must have obtained a general average of seventy-five per cent
physician, or for suspending or revoking a certificate of registration as
without a grade lower than fifty per cent in any subject: Provided, That a
physician:
candidate who fails for the third time in the complete or final examinations
will be required to take a refresher course prescribed by the Board of Medical
Legal Medicine – Atty. Luansing

(1) Conviction by a court of competent jurisdiction of any criminal offense promulgation unless the respondent, during the same period, has appealed
involving moral turpitude; to the Commissioner of Civil Service and later to the Office of the President of
the Philippines. If the final decision is not satisfactory, the respondent may
(2) Immoral or dishonorable conduct; ask for a review of the case, or may file in court a petition for certiorari.
(3) Insanity; Section 27. Reinstatement. After two years, the Board may order the
reinstatement of any physicians whose certificate of registration has been
(4) Fraud in the acquisition of the certificate of registration;
revoked, if the respondent has acted in an exemplary manner in the
(5) Gross negligence, ignorance or incompetence in the practice of his or her community wherein he resides and has not committed any illegal, immoral
profession resulting in an injury to or death of the patient; or dishonorable act.

(6) Addiction to alcoholic beverages or to any habit forming drug rendering ARTICLE IV
him or her incompetent to practice his or her profession, or to any form of PENAL AND OTHER PROVISIONS
gambling;
Section 28. Penalties. Any person found guilty of "illegal practice of
(7) False or extravagant or unethical advertisements wherein other things medicine" shall be punished by a fine of not less than one thousand pesos
than his name, profession, limitation of practice, clinic hours, office and nor more than ten thousand pesos with subsidiary imprisonment in case of
home address, are mentioned. insolvency, or by imprisonment of not less than one year nor more than five
years, or by both such fine and imprisonment, in the discretion of the court.
(8) Performance of or aiding in any criminal abortion;
Section 29. Injunctions. The Board of Medical Examiners may file an action
(9) Knowingly issuing any false medical certificate; to enjoin any person illegally practicing medicine from the performance of
any act constituting practice of medicine if the case so warrants until the
(10) Issuing any statement or spreading any news or rumor which is
necessary certificate therefore is secured. Any such person who, after having
derogatory to the character and reputation of another physician without
been so enjoined, continues in the illegal practice of medicine shall be
justifiable motive;
punished for contempt of court. The said injunction shall not relieve the
(11) Aiding or acting as a dummy of an unqualified or unregistered person to person practicing medicine without certificate of registration from criminal
practice medicine; prosecution and punishment as provided in the preceding section.

(12) Violation of any provision of the Code of Ethics as approved by the Section 30. Appropriation. To carry out the provisions of this Act, there is
Philippine Medical Association. hereby appropriated, out of any funds in the National Treasury not otherwise
appropriated, the sum of twenty thousand pesos.
Refusal of a physician to attend a patient in danger of death is not a sufficient
ground for revocation or suspension of his registration certificate if there is a Section 31. Repealing clause. All Acts, executive orders, administrative
risk to the physician's life. orders, rules and regulations, or parts thereof inconsistent with the
provisions of this Act are repealed or modified accordingly.
"Section 25. Rights of respondents. The respondent physician shall be
entitled to be represented by counsel or be heard in person, to have a speedy
and public hearing, to confront and to cross-examine witnesses against him
or her, and to all other rights guaranteed by the Constitution and provided
for in the Rules of Court."

Section 26. Appeal from judgment. The decision of the Board of Medical

Examiners shall automatically become final thirty days after the date of its
Legal Medicine – Atty. Luansing

G.R. No. L-25135             September 21, 1968 physicians in that locality." Said officer restored the authority on December
19, 1960, to be revoked again, on January 22, 1963. It was renewed once
PHILIPPINE MEDICAL ASSOCIATION, petitioner,  more, on September 1, 1963, and, once again, it was revoked on February
vs. 10, 1964, upon the recommendation of the Board of Medical Examiners —
BOARD OF MEDICAL EXAMINERS and JOSE MA. hereinafter referred to as the Board. On motion for reconsideration filed by
TORRES, respondents. respondent, the Board issued, on April 6, 1965, its Resolution No. 25, series
of 1965, which was approved by the President, granting respondent a
Seva-Albert-Vergara and Julio V. Presbitero for petitioner.
certificate to practice medicine in the Philippines without the examination
Regino Hermosisima, Jr., for respondent Jose Ma. Torres.
required in Republic Act No. 2882, otherwise known as the Medical Act of
Solicitor General for respondent Board of Medical Examiners.
1959. The resolution relied therefor upon The Treaty on the Validity of
Academic Degrees and The Exercise of the Professions between the Republic
of the Philippines and the Spanish State, signed at Manila on March 4, 1949,
CONCEPCION, C.J.: and ratified on May 19, 1949. 1
Original action for certiorari and mandamus, against the Board of Medical Petitioner herein, Philippine Medical Association, is a domestic corporation.
Examiners and Jose Ma. Torres, to annul a resolution of the former and a On June 14, 1965, it addressed the Chairman of the Board a
certificate issued by the same authorizing the latter to practice medicine in communication requesting reconsideration of said resolution No. 25, upon
the Philippines without examination. the ground that, pursuant to said Medical Act of 1959, respondent has to
take and pass the examination therein prescribed, before he can be allowed
The facts are not disputed. Jose Ma. Torres — hereinafter referred to as
to practice medicine in the Philippines. This letter was followed by another,
respondent — is a Spanish subject and a member of the Missionary Sons of
dated October 6, 1965, to which said Chairman replied on October 8, 1965,
the Immaculate Heart of Mary, otherwise known as the Claretian
stating "that the final decision on the matter will have to come from the
Missionaries. Having graduated from the University of Barcelona, Spain, with
President of the Philippines upon whose authority said resolution has been
the degree of Licentiate in Medicine and Surgery, he is entitled, under the
finally approved and implemented."
laws of Spain, to practice medicine and surgery throughout the territory
thereof. Thereupon, or, on October 18, 1965, petitioner commenced the present
action, for the purpose stated at the beginning of this decision, upon the
On January 21, 1955, respondent was granted special authority to practice
theory that the Board had violated Republic Act No. 2882 in granting
medicine in Lamitan, Basilan City, where he resides, pursuant to Section
respondent's certificate for the general practice of medicine in the Philippines
771(e) of the Revised Administrative Code reading:
without the examination prescribed in said Act; that the Board had exceeded
SEC. 771. Persons exempt from registration. — Registration shall not be its authority in passing said Resolution, because of which the same is null
required of the following classes of persons: . . . and void; that the Board should, therefore, be ordered to cancel the certificate
issued in pursuance of said resolution; and that petitioner has no other
(e) In cases of epidemic or in municipalities where there is no legally qualified plain, adequate and speedy remedy in the ordinary course of law.
practicing physician, or when the circumstances require it, in the interest of
the public health, the Director of Health may issue special authorizations, to In their respective answers, respondents admit the basic facts, but not the
all medical students who have completed the first three years of their studies, conclusions drawn therefrom by the petitioner and allege that the resolution
or to persons who have qualified in medicine, and to graduate or registered in question is sanctioned by the provisions of the Treaty above referred to;
nurses, who may request it. that petitioner has no cause of action; and that the petition should be
dismissed for failure of the petitioner to exhaust the available administrative
This authority was revoked, on November 8, 1960, by the then Secretary of remedies.
Health, upon the ground that "the conditions under which it was granted no
longer obtained in Lamitan Basilan City, there being enough practising
Legal Medicine – Atty. Luansing

Respondents cite the cases of Costas vs. Aldanese2 and Almario vs. City As regards their objection based upon petitioner's failure to appeal to the
Mayor 3 in support of the theory that petitioner herein has no sufficient President, suffice it to say that the rule requiring exhaustion of administrative
interest or "personality" to maintain the present case. In the first case, it was remedies is concededly subject to exceptions, among which are cases
held that the President of the Association of Philippine (Marine) involving only questions of law or when jurisdiction is in issue7or the action
Engineers4 had no particular "individual" interest, and, hence,no cause of complained of bears the approval of a department secretary, as the disputed
action for mandamus to compel the Collector of Customs to implement resolution, which was approved by the Executive Secretary "by authority of
section 1203(j) of the Administrative Code, providing that steamers making the President," or as an alter ego of the Executive. 8 The case at bar falls
round trips of more than 48 hours or travelling at night shall carry the under these exceptions to said rule.1awphîl.nèt
complement of marine engineers therein specified. In the second case, a
citizen of the Philippines, as such, who is not an Applicant for any stall or The main issue herein hinges on the interpretation of Article I of the Treaty
booth, or the representative of any such applicant, stallholder or any aforementioned, reading as follows:
association of persons who are deprived of the right to occupy stalls in said
The nationals of both countries who shall have obtained degrees or diplomas
market, "is not the real party in interest who has the capacity, right or
to practice the liberal professions in either of the Contracting States, issued
personality" to bring an action for mandamus, to compel the office of Pasay
by competent national authorities, shall be deemed competent to exercise
City to comply with the provisions of Republic Act No. 37, by ejecting, from
said professions in the territory of the Other, subject to the laws and
the public market of said City, stallholders who are not nationals of the
regulations of the latter. When the degree or diploma of Bachelor, issued by
Philippines.
competent national authorities allows its holder without requiring further
Said cases are not in point. To begin with, both are actions for mandamus, evidence of proficiency to pursue normally higher courses of study, he shall
whereas the case at bar is mainly one for certiorari. Although, petitioner also be deemed qualified to continue his studies in the territory of either
herein, likewise, seeks a writ of mandamus, directing the Board to cancel the Party in conformity with the applicable laws and regulations of the State
certificate of registration issued to the respondent, this would be a necessary which recognizes the validity of the title or diploma in question, and with the
consequence of the writ of certiorariannulling the disputed resolution. rules and regulations of the particular educational institution in which he
Moreover, said two (2) cases were commenced by individuals, who, as such, intends to pursue his studies.
had no special interest in the relief therein prayed for. Indeed, in
This Treaty provision was the subject matter of our resolution of August 15,
the Almario case it was intimated that the result might have been otherwise
1961, in connection with the petition of Arturo Efren Garcia for admission to
had it been brought by an "association" whose members have an interest in
the Philippine Bar without taking the Bar Examinations. After completing, in
the subject matter of the action.
Spain, the course prescribed therefor, Garcia had been graduated from the
This was confirmed by PHILCONSA vs. Gimenez,5 in which we sustained the College of Law of the Universidad Central de Madrid with the degree of
right of the Philippine Constitution Association to assail the constitutionality "Licenciado en Derecho", which entitled him to practice law in Spain. Having
of Republic Act No. 3836, insofar as it allowed retirement gratuity and invoked the provisions of said treaty in support of his claim of exemption
commutation of vacation and sick leave to members of Congress and to from the requisite bar examinations, this Court denied his petition upon the
elective officials thereof. Further authority in favor of petitioner herein is ground, among others ". . . that the privileges provided in the Treaty invoked
supplied by Nacionalista Party vs. F. Bautista Angelo 6 in which the by the applicant are made expressly subject to the laws and regulations of
Nacionalista Party successfully impugned the validity of the designation of the contracting State in whose territory it is desired to exercise the legal
the then Solicitor General as Acting Member of the Commission on Elections. profession; and Section 1 of Rule 127, in connection with Sections 2, 9, and
16 thereof, which have the force of law, require that before anyone can
It is our considered opinion that the view adopted in the last three (3) cases practice the legal profession in the Philippines he must first successfully pass
should be maintained and that, in line therewith, petitioner herein has the required bar examinations; . . ."
sufficient interest to prosecute the case at bar and a cause of action against
respondents herein. We find no plausible reason to depart from this view. On the contrary, we
reiterate the same, inasmuch as the theory of respondent herein cannot be
Legal Medicine – Atty. Luansing

accepted without placing graduates from our own educational institutions at

a disadvantage vis-a-vis Spanish graduates from Spanish schools, colleges
or universities. Indeed, the latter could — under respondent's pretense —
engage in the practice of medicine in the Philippines without taking the
examination prescribed in Republic Act No. 2882, whereas the former would
have to take and pass said examination. Worse still, since — as we ruled in
the Garcia case — the benefits of the aforementioned Treaty cannot be
availed of in the Philippines except by Spanish subjects, the result would be
— should respondent's contention be sustained — that graduates from
Spanish schools of medicine would be entitled to practice medicine in the
Philippines without examination, if they were Spanish subjects, but not if
they are Filipinos.

Surely said treaty was not made to discriminate against Philippine schools,
colleges or universities, much less against nationals of the Philippines.

WHEREFORE, we hold that said Treaty merely extended to diplomas issued

or degrees conferred by educational institutions of Spain the same
recognition and treatment that we accord to similar diplomas or degrees from
local institutions of learning; that holders of said Spanish diplomas or
degrees must take the examination prescribed by our laws for holders of
similar diplomas or degrees from educational institutions in the Philippines;
that resolution No. 25, series of 1965, of respondent Board is violative of
Republic Act No. 2882 and hence, null and void; and that, respondent Board
of Medical Examiners should be, as it is hereby ordered to cancel the
certificate of registration, for the practice of medicine in the Philippines,
issued in favor of respondent Jose Ma. Torres, without special
pronouncement as to costs. It is so ordered.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and

Fernando, JJ., concur.
Legal Medicine – Atty. Luansing

REPUBLIC ACT NO. 8981 management experience: Provided, That, one (1) of the Commissioners must
be a past Chairperson/member of a Professional Regulatory Board.
AN ACT MODERNIZING THE PROFESSIONAL REGULATION
COMMISSION, REPEALING FOR THE PURPOSE PRESIDENTIAL Section 5. Exercise of Powers and Functions of the Commission – The
DECREE NUMBERED TWO HUNDRED AND TWENTY-THREE, Chairperson of the Commission, and the Commissioners as members
ENTITLED "CREATING THE PROFESSIONAL REGULATION thereof shall sit and act as a body to exercise general administrative,
COMMISSION AND PRESCRIBING ITS POWERS AND FUNCTIONS," AND executive and policy-making functions of the Commission. The Commission
FOR OTHER PURPOSES shall establish and maintain a high standard of admission to the practice of
all professions and at all times ensure and safeguard the integrity of all
Be it enacted by the Senate and House of Representatives of the Philippines licensure examinations.
Congress assembled:
The Chairperson shall act as the presiding and chief executive officer of the
Section 1. Title – This Act shall be called the "PRC Modernization Act of Commission. As presiding officer, he/she shall preside over the meetings of
2000." the Commission sitting as a collegial body. As chief executive officer of the
Commission, he/she shall be responsible for the implementation of the
Section 2. Statement of Policy – The State recognizes the important role of
policies and the programs adopted by the Commission for the general
professionals in nation-building and, towards this end, promotes the
administration of the Commission. He/she shall perform such other
sustained development of a reservoir of professionals whose competence has
activities which are necessary for the effective exercise of the powers,
been determined by honest and credible licensure examinations and whose
functions and responsibilities of the Commission.
standards of professional service and practice are internationally recognized
and considered world-class brought about the regulatory measures, Section 6. Compensation and Other Benefits – The Chairperson shall receive
programs and activities that foster professional growth and advancement. compensation and allowances equivalent to that of a Department Secretary
while the Commissioners shall receive compensation and allowances
Section 3. Professional Regulation Commission – There is hereby created a
equivalent to that of an Undersecretary. The Chairperson and the members
three-man commission to be known as the Professional Regulation
of the Commission shall be entitled to retirement benefits provided under
Commission, hereinafter referred to as the Commission, which shall be
Republic Act Numbered Fifteen Hundred and Sixty Eight, as amended by
attached to the office of the President for general direction and coordination.
Republic Act Numbered Three Thousand Five Hundred and Ninety Five.
Section 4. Composition – The Commission shall be headed by one (1) full-
Section 7. Powers, Functions and Responsibilities of the Commission – The
time Chairperson and two (2) full-time Commissioners, all to be appointed by
powers, functions, and responsibilities of the Commission are as follows:
the President for a term of seven (7) years without reappointment to start
from the time they assume office. Appointments to a vacancy that occurs (a) To administer, implement and enforce the regulatory policies of the
before the expiration of the term of a Commissioner shall cover only the national government with respect to the regulation and licensing of the
unexpired term of the immediate predecessor. At the expiration of the various professions and occupations under its jurisdiction including the
Chairperson, the most senior of the Commissioners shall temporarily enhancement and maintenance of professional and occupational standards
assume and perform the duties and functions of the Chairperson until a and ethics and the enforcement of the rules and regulations relative thereto:
permanent Chairperson is appointed by the President.
(b) To perform any and all acts, enter into contracts, make such rules and
The Chairperson or Commissioner shall be at least forty (40) years of age, regulations and issue such orders and other administrative issuance as may
holding a valid certificate of registration/professional license and a valid be necessary in the execution and implementation of its functions and the
professional identification card or a valid certificate of competency issued by improvement of its services;
the Commission or a valid professional license issued by any government
agency, familiar with the principles and methods of professional regulation (c) To review, revise, and approve resolutions, embodying policies
and/or licensing and has had at least five (5) years of executive or promulgated by the Professional Regulatory Boards in the exercise of their
Legal Medicine – Atty. Luansing

powers and functions or in implementing the laws regulating their respective keeping (STCW) Convention, to the exclusion of any other government
professions and other official actions on non-ministerial matters within their agency, Section 1(2) of Executive Order No. 149, Series of 1999 and
respective jurisdictions; provisions of other existing laws, executive orders, administrative
issuance/regulations to the contrary notwithstanding: Provided, further,
(d) To administer and conduct the licensure examinations of the various That, once a certificate of registration/professional license, or certificate of
regulatory boards in accordance with the rules and regulations promulgated competency, in the case of marine deck and engine officers are issued, this
by the Commission; determine and fix the places and dates of examinations; cannot be withdrawn, cancelled, revoked, or suspended except for just cause
use publicly or privately owned buildings and facilities for examination as may be provided by law after due notice and hearing;
purposes; conduct more than one (1) licensure examination: Provided, That,
when there are two (2) or more examinations given in a year, at least one (1) (f) To have custody of all the records of the various Boards, including
examinations shall be held on weekdays (Monday to Friday): Provided, examination papers, minutes of deliberation, records of administrative cases
further, That, if only one (1) examination is given in a year, this shall be held and investigations and examination results for control and disposition;
only on weekdays: Provided, finally, That, the Commission is also authorized
to require the completion of a refresher course where the examinee has failed (g) To determine and fix the amount of fees to be charged and collected for
to pass three (3) times, except as otherwise provided by law; approve the examination, registration, registration without examination, professional
results of examinations and the release of the same; adopt measures to identification card, certification, docket, appeal, replacement, accreditation,
preserve the integrity and inviolability of licensure examinations; appoint including surcharges and other fees not specified under the provisions of
supervisors and room watchers from among the employees of the Republic Act Numbered Four Hundred Sixty Five as amended by Republic
government and/or private individuals with baccalaureate degrees, who have Act Numbered Sixty Five Hundred and Eleven or to charge and collect
been trained by the Commission for the purpose and who shall be entitled to reasonable fees at the rates higher than the rates provided thereunder
a reasonable daily allowance for every examination day actually attended, to subject to the approval by the Office of the President.
be determined and fixed by the Commission; publish the list of successful
(h) To appoint subject to the Civil Service laws, rules, and regulations,
examinees; provide schools, colleges and universities, public and private,
officials and employees of the Commission necessary for the effective
offering courses for licensure examinations, with copies of sample test
performance of its functions and responsibilities; prescribe their duties and
questions on examinations recently conducted by the Commission and
fix their compensation subject to the provisions of Republic Act Numbered
copies of the syllabi or terms of specifications of subjects for licensure
Six Thousand Seven Hundred and Fifty Eight and allowances including
examinations; and impose the penalty of suspension or prohibition from
other fringe benefits; and to assign and/or reassign personnel as the
taking licensure examinations to any examinee charged and found guilty of
exigency of the service requires subject to the Civil Service laws, rules and
violating the rules and regulations governing the conduct of licensure
regulations; and to organize or reorganize the structure of the Commission;
examinations promulgated by the Commission;
and create or abolish positions or change the designation of existing positions
(e) To admit the successful examinees to the practice of the profession or in accordance with a staffing pattern prepared by it and approved by the
occupation; cause the entry of their names on its registry book and Office of the President upon the recommendation of the Department of
computerized database; issue certificates of registration/professional license, Budget and Management (DBM) to meet the changing conditions or as the
bearing the registrant’s name, picture, and registration number, signed by all need arises: Provided, That, such changes shall not affect the employment
the members of the Board concerned and the Chairperson, with the official status of the incumbents, reduce their ranks and/or salaries nor shall result
seal of the Board and the Commission affixed thereto which certificate shall in their separation from the service;
be the authority to practice; and at the option of the professional concerned,
(i) To submit and recommend to the President of the Philippines the names
ministerially issue the professional identification card, to be used solely for
of licensed/registered professionals for appointment as members of the
the purpose of identification, upon payment of the appropriate
various Professional Regulatory Boards from among those nominated to fill
amount: Provided, That, marine deck and marine engineer officers shall also
up vacancies pursuant to the provisions of Executive Order No. 496, Series
be issued endorsement certificates exclusively by the Commission pursuant
of 1991;
to the 1978 and 1995 Standards of Training, Certification and Watch-
Legal Medicine – Atty. Luansing

(j) Upon recommendation of the Professional Regulatory Board concerned, to certificate of registration and a professional identification card prior to their
approve the registration of and authorize the issuance of a certificate of naturalization as foreign citizens, who may, while in the country on a visit,
registration/license and professional identification card with or without sojourn or permanent residence, practice their profession: Provided, That,
examination to a foreigner who is registered under the laws of his state or prior to the practice of their profession they shall have first been issued a
country and whose certificate of registration issued therein has not been special permit and updated professional identification card by the Board
suspended or revoked: Provided, That, the requirements for the registration concerned subject to approval by the Commission and upon payment of the
or licensing in said foreign state or country are substantially the same as permit and annual registration fees;
those required and contemplated by the laws of the Philippines and that the
laws of such foreign state or country allow the citizens of the Philippines to (m) To monitor the performance of schools in licensure examinations and
practice the profession on the same basis and grant the same privileges as publish the results thereof in a newspaper of national circulation;
those enjoyed by the subjects or citizens of such foreign state or
(n) To adopt and institute a comprehensive rating system for universities,
country: Provided, further, That, the Commission may, upon
colleges, and training institutes based on the passing ratio and overall
recommendation of the Board concerned, authorize the issuance of a
performance of students in board examinations;
certificate of registration/license or a special temporary permit to foreign
professionals who desire to practice their professions in the country under (o) To exercise administrative supervision over the various professional
reciprocity and other international agreements; consultants in foreign- regulatory boards and its members;
funded, joint venture or foreign-assisted projects of the government,
employees of Philippine or foreign private firms or institutions pursuant to (p) To adopt and promulgate such rules and regulations as may be
law, or health professionals engaged in humanitarian mission for a limited necessary to effectively implement policies with respect to the regulation and
period of time: Provided, finally, That agencies, organizations or individuals practice of the professions;
whether public or private, who secure he services of a foreign professional
(q) To implement the program for the full computerization of all licensure
authorized by law to practice in the Philippines for reasons aforementioned,
examinations given by the various professional regulatory boards including
shall be responsible for securing a special permit from the Professional
the registration of professionals not later than the year 2003 and other
Regulation Commission (PRC) and the Department of Labor and
operations of the Commission;
Employment (DOLE), pursuant to PRC and DOLE rules:
(r) To investigate and decide administrative matters involving officers and
(k) To authorize any officer of the Commission to administer oaths:
employees under the jurisdiction of the Commission;
(l) To supervise foreign nations who are authorized by existing laws to
(s) To investigate motu proprio or upon the filing of a verified complaint, any
practice their professions either as holders of a certificate of registration and a
member of the Professional Regulatory Boards for neglect of duty,
professional identification card or a temporary special permit in the
incompetence, unprofessional, unethical, immoral or dishonorable conduct,
Philippines; to ensue that the terms and conditions for their practice or of
commission of irregularities in the licensure examinations which taint or
their employment are strictly complied with; to require the hiring or
impugn the integrity and authenticity of the results of the said examinations
employing government agency or private entity/institution to secure a
and, if found guilty, to revoke or suspend their certificates of registration and
temporary special permit from the concerned Board subject to approval by
professional licenses/identification cards and to recommend to the President
the Commission and to file a criminal complaint against the head of the
of the Philippines their suspension or removal from office as the case may be;
government agency or officers of the said private entity/institution, who shall
be liable under the penalty provided for in the concerned professional (t) To issue summons, subpoena and subpoena duces tecum in connection
regulatory law or the penalty imposed pursuant to this Act, when the with the investigation of cases against officials and employees of the
professional was hired and allowed to practice his/her profession without Commission and the members of the Professional Regulatory Boards;
permit; to file upon due process request for deportation with the Bureau of
Immigration and Deportation (BID); and to supervise professionals who were (u) To hold in contempt in erring party or person only upon application with
former citizens of the Philippines and who had been registered and issued a a court of competent jurisdiction;
Legal Medicine – Atty. Luansing

(v) To call upon or request any department, instrumentality, office, bureau, adopt such measures as may be deemed proper for the enhancement of the
institution or agency of the government including local government units to profession or occupation and/or the maintenance of high professional,
render such assistance as it may require, or to coordinate or cooperate in ethical and technical standards, and for this purpose the members of the
order to carry out, enforce or implement the professional regulatory policies Board duly authorized by the Commission with deputized employees of the
of the government or any program or activity it may undertake pursuant to Commission, may conduct ocular inspection in industrial, mechanical,
the provisions of this Act; electrical or chemical plants or establishments, hospitals, clinics,
laboratories, testing facilities, mines and quarries, other engineering facilities
(w) To initiate an investigation, upon complaint under oath by an aggrieved and in the case of schools, in coordination with the Commission on Higher
party, of any person, whether a private individual or professional, local or Education (CHED);
foreign, who practices the regulated profession or occupation without being
authorized by law, or without being registered with and licensed by the (c) To hear and investigate cases arising from violations of their respective
concerned regulatory board and issued the corresponding laws, the rules and regulations promulgated thereunder and their Codes of
license/professional identification card or temporary or special permit, or Ethics and, for this purpose, may issue summons, subpoena and subpoena
who commits any of the prohibited acts provided in the regulatory laws of the duces tecum to alleged violators and/or witnesses to compel their attendance
various professions, which acts are criminal in nature, and if the evidence so in such investigations or hearings: Provided, That, the decision of the
warrants, to forward the records of the case to the office of the city or Professional Regulatory Board shall, unless appealed to the Commission,
provincial prosecutor for the filing of the corresponding information in court become final and executory after fifteen (15) days from receipt of notice of
by the lawyers of the legal services of the Commission who may prosecute judgment or decision;
said case/s upon being deputized by the Secretary of Justice;
(d) To delegate the hearing or investigation of administrative cases filed before
(x) To prepare an annual report of accomplishments on the programs, them except in cases where the issue or question involved strictly concerns
projects and activities of the Commission during the year for submission to the practice of the profession or occupation, in which case, the hearing shall
Congress after the close of its calendar year and make appropriate be presided over by at least one (1) member of the Board concerned assisted
recommendations on issues and/or problems affecting the Commission, the by a Legal or Hearing Officer of the Commission;
Professional Regulatory Board, and the various professions under its
jurisdiction; and (e) To conduct, through the Legal Officers of the Commission, summary
proceedings on minor violations of their respective regulatory laws, violations
(y) To perform such other functions and duties as may be necessary to carry of the rules and regulations issued by the boards to implement their
out the provisions of this Act, the various professional regulatory laws, respective laws, including violations of the general instructions to examinees
decrees, executive orders and other administrative issuance. committed by examinees, and render summary judgment thereon which
shall, unless appealed to the Commission, become final and executory after
Section 8. Regional Offices – The Commission is hereby authorized to create fifteen (15) days from receipt of notice of judgment or decision;
regional offices as may be necessary to carry out their functions mandated
under this Act. (f) Subject to final approval by the Commission, to recommend registration
without examination and the issuance of corresponding certificate of
Section 9. Powers, Functions and Responsibilities of the Various Professional registration and professional identification card;
Regulatory Boards – The various, professional regulatory boards shall retain
the following powers, functions and responsibilities: (g) After due process, to suspend, revoke or reissue, reinstate certificate of
registration or licenses for causes provided by law;
(a) To regulate the practice of the professions in accordance with the
provisions of their respective professional regulatory laws; (h) To prepare, adopt and issue the syllabi or tables of specifications of the
subjects for examinations in consultation with the academe; determine and
(b) To monitor the conditions affecting the practice of the profession or prepare the questions for the licensure examinations which shall strictly be
occupation under their respective jurisdictions and whenever necessary, within the scope of the syllabus or table of specifications of the subject for
Legal Medicine – Atty. Luansing

examination; score and rate the examination papers with the name and not exceeding the amount of Forty-five million pesos (P45,000,000.00) a year
signature of the Board member concerned appearing thereon and submit the for a period of five (5) years after the effectivity of this Act to implement the
results in all subjects duly signed by the members of the Board to the program for full computerization of the operations of the Commission,
Commission within ten (10) days from the last day of examination unless subject to the usual accounting and auditing requirements.
extended by the Commission for justifiable cause/s; and subject to the
approval by the Commission, determine the appropriate passing general Section 15. Penalties for Manipulation and Other Corrupt Practices in the
average rating in an examination if not provided for in the law regulating the Conduct of Professional Examinations –
profession; and
(a) Any person who manipulates or rigs licensure examination results,
(i) To prepare an annual report of accomplishments on programs, projects secretly informs or makes known licensure examination questions prior to
and activities of the Board during the year for submission to the Commission the conduct of the examination or tampers with the grades in professional
after the close of each calendar year and make appropriate recommendations licensure examinations shall, upon conviction, be punished by
on issues or problems affecting the profession to the Commission. imprisonment of not less than six (6) years and one (1) day to not more than
twelve (12) years or a fine of not less than Fifty thousand pesos (P50,000.00)
Section 10. Compensation of the Members of the Professional Regulatory to not more than One hundred thousand pesos (P100,000.00) or both such
Boards – The members of the Professional Regulatory Boards shall receive imprisonment and fine at the discretion of the court.
compensation equivalent to, at least, two salary grades lower than the salary
grade of the Commissioners: Provided, That the Chairperson of the (b) In case the offender is an officer or employee of the Commission or a
Regulatory Board shall receive a monthly compensation of two steps higher member of the regulatory board, he/she shall be removed from office and
than the members of the Board, and: Provided, further, That they shall be shall suffer the penalty of perpetual absolute disqualification from public
entitled to other allowances and benefits provided under existing laws. office to addition to the penalties prescribed in the preceding section of this
Act;
Section 11. Person to Teach Subjects for Licensure Examination on all
Professions – All subjects for licensure examinations shall be taught by (c) The penalty of imprisonment ranging from four (4) years and one (1) day
persons who are holders of valid certificates of registration and valid to six (6) years or a fine ranging from Twenty thousand pesos (P20,000.00) to
professional licenses of the profession and who comply with the other not more than Forty-nine thousand pesos (P49,000.00), or both
requirements of the CHED. imprisonment and fine at the discretion of the court, shall be imposed upon
the accomplices. The penalty of imprisonment ranging from two (2) years and
Section 12. Assistance of Law Enforcement Agency – Any law enforcement one (1) day to four (4) years or a fine ranging from Five thousand pesos
agency shall, upon call or request of the Commission or of any Professional (P5,000.00) to not more than Nineteen thousand pesos (P19,000.00), or both
Regulatory Board, render assistance in enforcing the regulatory law of the imprisonment and fine at the discretion of the court, shall be imposed upon
profession including the rules and regulations promulgated thereunder by the accessories.
prosecuting the violators thereof in accordance with law and the rules of
court. Section 16. Penalties for Violation of Section 7 – Subparagraph (1) by Heads
of Government Agencies or Officers of Private Entities/Institutions – Any head
Section 13. Appropriations – The amount necessary to carry out the initial of a government agency or officer(s) of a private firm/institution who violates
implementation of this Act shall be charged against the current year’s Section 7 – subpar. (1) of this Act shall be punished by imprisonment of not
appropriations of the Professional Regulation Commission. Thereafter, such less than six (6) months and one (1) day to not more than six (6) years, or a
sums as may be necessary for the continued implementation of this Act shall fine of not less than Fifty thousand pesos (P50,000.00) to not more than Five
be included in the succeeding General Appropriations Act. hundred thousand pesos (P500,000.00) or both at the discretion of the court.

Section 14. Authority to Use Income – In addition to the annual Section 17. Implementing Rules and Regulations – Within ninety (90) days
appropriations of the Commission provided under the Annual General after the approval of this Act, the Professional Regulation Commission,
Appropriations Act, the Commission is hereby authorized to use its income together with representatives of the various Professional Regulatory Boards
Legal Medicine – Atty. Luansing

and accredited professional organizations, the DBM, and the CHED shall
prepare and promulgate the necessary rules and regulations needed to
implement the provisions of this Act.

Section 18. Transitory Provisions – The incumbent Commissioner and two

(2) incumbent Associate Commissioners shall serve as Chairperson and
Commissioners respectively under the terms for which they have been
appointed without need of new appointments. The incumbent Executive
Director shall likewise serve as Assistant Commissioner without need of new
appointment.

Section 19. Separability Clause – If any provision of this Act or the

application of such provision to any person or circumstances is declared
invalid or unconstitutional, the remainder of this Act or application of such
provisions to other persons or circumstance shall not be affected by such
declaration.

Section 20. Repealing Clause – Republic Act. No. 546, Presidential Decree

No. 223, as amended by Presidential Decree No. 657, Republic Act No. 5181,
and Executive Order No. 266, Series of 1995 are hereby repealed. Section 23
(h) of Republic Act No. 7836, Section 4 (m & s). Section 23 of Republic Act
No. 7920, and Section 29 of Republic Act No. 8050, insofar as it requires
completion of the requirements of the Continuing Professional Education
(CPE) as a condition for the renewal of the license are hereby repealed. All
other laws, orders, rules and regulations or resolutions and all part/s thereof
inconsistent with the provisions of this Act are hereby repealed or amended
accordingly.

Section 21. Effectivity – This Act shall take effect after fifteen (15) days
following its publication in the Official Gazette or in two (2) newspapers of
general circulation, whichever is earlier.
Legal Medicine – Atty. Luansing

G.R. No. 166097               July 14, 2008 Respondent then filed a Petition for Certiorari and Mandamus against the
Board before the RTC of Manila on June 24, 1993, which petition was
BOARD OF MEDICINE, DR. RAUL FLORES (now DR. JOSE S. amended on February 14, 1994 to implead the PRC through its Chairman.10
RAMIREZ), in his capacity as Chairman of the Board, PROFESSIONAL
REGULATION COMMISSION, through its Chairman, HERMOGENES In his petition before the RTC, respondent alleged that the Board and the
POBRE (now DR. ALCESTIS M. GUIANG), Petitioners,  PRC, in refusing to issue in his favor a Certificate of Registration and/or
vs. license to practice medicine, had acted arbitrarily, in clear contravention of
YASUYUKI OTA, Respondent. the provision of Section 20 of Republic Act (R.A.) No. 2382 (The Medical Act of
1959), depriving him of his legitimate right to practice his profession in the
DECISION Philippines to his great damage and prejudice.11
AUSTRIA-MARTINEZ, J.: On October 19, 2003, the RTC rendered its Decision finding that respondent
had adequately proved that the medical laws of Japan allow foreigners like
Before the Court is a Petition for Review on Certiorari assailing the
Filipinos to be granted license and be admitted into the practice of medicine
Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 84945 2 dated
under the principle of reciprocity; and that the Board had a ministerial duty
November 16, 2004 which affirmed the Decision3 of the Regional Trial Court
of issuing the Certificate of Registration and license to respondent, as it was
(RTC), Branch 22, Manila, dated October 19, 2003.4
shown that he had substantially complied with the requirements under the
The facts are as follows: law.12 The RTC then ordered the Board to issue in favor of respondent the
corresponding Certificate of Registration and/or license to practice medicine
Yasuyuki Ota (respondent) is a Japanese national, married to a Filipina, who in the Philippines.13
has continuously resided in the Philippines for more than 10 years. He
graduated from Bicol Christian College of Medicine on April 21, 1991 with a The Board and the PRC (petitioners) appealed the case to the CA, stating that
degree of Doctor of Medicine.5 After successfully completing a one-year post while respondent submitted documents showing that foreigners are allowed
graduate internship training at the Jose Reyes Memorial Medical Center, he to practice medicine in Japan, it was not shown that the conditions for the
filed an application to take the medical board examinations in order to obtain practice of medicine there are practical and attainable by a foreign applicant,
a medical license. He was required by the Professional Regulation hence, reciprocity was not established; also, the power of the PRC and the
Commission (PRC) to submit an affidavit of undertaking, stating among Board to regulate and control the practice of medicine is discretionary and
others that should he successfully pass the same, he would not practice not ministerial, hence, not compellable by a writ of mandamus.14
medicine until he submits proof that reciprocity exists between Japan and
The CA denied the appeal and affirmed the ruling of the RTC.15
the Philippines in admitting foreigners into the practice of medicine.6
Hence, herein petition raising the following issue:
Respondent submitted a duly notarized English translation of the Medical
Practitioners Law of Japan duly authenticated by the Consul General of the WHETHER THE COURT OF APPEALS COMMITTED A REVERSIBLE
Philippine Embassy to Japan, Jesus I. Yabes;7 thus, he was allowed to take ERROR IN FINDING THAT RESPONDENT HAD ESTABLISHED THE
the Medical Board Examinations in August 1992, which he subsequently EXISTENCE OF RECIPROCITY IN THE PRACTICE OF MEDICINE
passed.8 BETWEEN THE PHILIPPINES AND JAPAN.16
In spite of all these, the Board of Medicine (Board) of the PRC, in a letter Petitioners claim that: respondent has not established by competent and
dated March 8, 1993, denied respondent's request for a license to conclusive evidence that reciprocity in the practice of medicine exists
between the Philippines and Japan. While documents state that foreigners
practice medicine in the Philippines on the ground that the Board "believes
are allowed to practice medicine in Japan, they do not similarly show that
that no genuine reciprocity can be found in the law of Japan as there is no
the conditions for the practice of medicine in said country are practical and
Filipino or foreigner who can possibly practice there."9
attainable by a foreign applicant. There is no reciprocity in this case, as the
Legal Medicine – Atty. Luansing

requirements to practice medicine in Japan are practically impossible for a Medical Act of 195922 indicates the mandatory character of the statute and
Filipino to comply with. There are also ambiguities in the Medical an imperative obligation on the part of the Board inconsistent with the idea of
Practitioners Law of Japan, which were not clarified by respondent, i.e., what discretion. Thus, a foreigner, just like a Filipino citizen, who successfully
are the provisions of the School Educations Laws, what are the criteria of the passes the examination and has all the qualifications and none of the
Minister of Health and Welfare of Japan in determining whether the disqualifications, is entitled as a matter of right to the issuance of a certificate
academic and technical capability of foreign medical graduates are the same of registration or a physician’s license, which right is enforceable
or better than graduates of medical schools in Japan, and who can actually by mandamus.23
qualify to take the preparatory test for the National Medical Examination.
Consul General Yabes also stated that there had not been a single Filipino Petitioners filed a Reply24 and both parties filed their respective
who was issued a license to practice medicine by the Japanese Government. memoranda25 reiterating their arguments.1avvphi1
The publication showing that there were foreigners practicing medicine in
The Court denies the petition for lack of merit.
Japan, which respondent presented before the Court, also did not specifically
show that Filipinos were among those listed as practicing said There is no question that a license to practice medicine is a privilege or
profession.17 Furthermore, under Professional Regulation Commission v. De franchise granted by the government.26 It is a right that is earned through
Guzman,18the power of the PRC and the Board to regulate and control the years of education and training, and which requires that one must first
practice of medicine includes the power to regulate admission to the ranks of secure a license from the state through professional board examinations.27
those authorized to practice medicine, which power is discretionary and not
ministerial, hence, not compellable by a writ of mandamus.19 Indeed,

Petitioners pray that the CA Decision dated November 16, 2004 be reversed [T]he regulation of the practice of medicine in all its branches has long been
and set aside, that a new one be rendered reinstating the Board Order dated recognized as a reasonable method of protecting the health and safety of the
March 8, 1993 which disallows respondent to practice medicine in the public. That the power to regulate and control the practice of medicine
Philippines, and that respondent's petition before the trial court be dismissed includes the power to regulate admission to the ranks of those authorized to
for lack of merit.20 practice medicine, is also well recognized. Thus, legislation and
administrative regulations requiring those who wish to practice medicine first
In his Comment, respondent argues that: Articles 2 and 11 of the Medical to take and pass medical board examinations have long ago been recognized
Practitioners Law of Japan and Section 9 of the Philippine Medical Act of as valid exercises of governmental power. Similarly, the establishment of
1959 show that reciprocity exists between the Philippines and Japan minimum medical educational requirements – i.e., the completion of
concerning the practice of medicine. Said laws clearly state that both prescribed courses in a recognized medical school – for admission to the
countries allow foreigners to practice medicine in their respective medical profession, has also been sustained as a legitimate exercise of the
jurisdictions as long as the applicant meets the educational requirements, regulatory authority of the state."28
training or residency in hospitals and pass the licensure examination given
by either country. Consul General Yabes in his letter dated January 28, It must be stressed however that the power to regulate the exercise of a
1992 stated that "the Japanese Government allows a foreigner to practice profession or pursuit of an occupation cannot be exercised by the State or its
medicine in Japan after complying with the local requirements." The fact that agents in an arbitrary, despotic, or oppressive manner. A political body which
there is no reported Filipino who has successfully penetrated the medical regulates the exercise of a particular privilege has the authority to both forbid
practice in Japan does not mean that there is no reciprocity between the two and grant such privilege in accordance with certain conditions. As the
countries, since it does not follow that no Filipino will ever be granted a legislature cannot validly bestow an arbitrary power to grant or refuse a
medical license by the Japanese Government. It is not the essence of license on a public agency or officer, courts will generally strike down license
reciprocity that before a citizen of one of the contracting countries can legislation that vests in public officials discretion to grant or refuse a license
demand its application, it is necessary that the interested citizen’s country to carry on some ordinarily lawful business, profession, or activity without
has previously granted the same privilege to the citizens of the other prescribing definite rules and conditions for the guidance of said officials in
contracting country.21 Respondent further argues that Section 20 of the the exercise of their power.29
Legal Medicine – Atty. Luansing

R.A. No. 2382 otherwise known as the Medical Act of 1959 states in Section Article 2. Anyone who wants to be medical practitioner must pass the
9 thereof that: national examination for medical practitioner and get license from the
Minister of Health and Welfare.
Section 9. Candidates for Board Examinations.- Candidates for Board
examinations shall have the following qualifications: xxxx

1. He shall be a citizen of the Philippines or a citizen of any foreign country Article 11. No one can take the National Medical Examination except persons
who has submitted competent and conclusive documentary evidence, who conform to one of the following items:
confirmed by the Department of Foreign Affairs, showing that his country’s
existing laws permit citizens of the Philippines to practice medicine under the 1. Persons who finished regular medical courses at a university based on the
same rules and regulations governing citizens thereof; School Education Laws (December 26, 1947) and graduated from said
university.
xxxx
2. Persons who passed the preparatory test for the National Medical
Presidential Decree (P.D.) No. 22330 also provides in Section (j) thereof that: Examination and practiced clinics and public sanitation more than one year
after passing the said test.
j) The [Professional Regulation] Commission may, upon the recommendation
of the Board concerned, approve the registration of and authorize the 3. Persons who graduated from a foreign medical school or acquired medical
issuance of a certificate of registration with or without examination to a practitioner license in a foreign country, and also are recognized to have the
foreigner who is registered under the laws of his country: Provided, That the same or more academic ability and techniques as persons stated in item 1
requirement for the registration or licensing in said foreign state or country and item 2 of this article.31
are substantially the same as those required and contemplated by the laws
of the Philippines and that the laws of such foreign state or country allow the Petitioners argue that while the Medical Practitioners Law of Japan allows
citizens of the Philippines to practice the profession on the same basis and foreigners to practice medicine therein, said document does not show that
grant the same privileges as the subject or citizens of such foreign state or conditions for the practice of medicine in said country are practical and
country: Provided, finally, That the applicant shall submit competent and attainable by a foreign applicant; and since the requirements are practically
conclusive documentary evidence, confirmed by the Department of Foreign impossible for a Filipino to comply with, there is no reciprocity between the
Affairs, showing that his country's existing laws permit citizens of the two countries, hence, respondent may not be granted license to practice
Philippines to practice the profession under the rules and regulations medicine in the Philippines.
governing citizens thereof. The Commission is also hereby authorized to
The Court does not agree.
prescribe additional requirements or grant certain privileges to foreigners
seeking registration in the Philippines if the same privileges are granted to or R.A. No. 2382, which provides who may be candidates for the medical board
some additional requirements are required of citizens of the Philippines in examinations, merely requires a foreign citizen to submit competent and
acquiring the same certificates in his country; conclusive documentary evidence, confirmed by the Department of Foreign
Affairs (DFA), showing that his country’s existing laws permit citizens of the
xxxx
Philippines to practice medicine under the same rules and regulations
As required by the said laws, respondent submitted a copy of the Medical governing citizens thereof.
Practitioners Law of Japan, duly authenticated by the Consul General of the
Section (j) of P.D. No. 223 also defines the extent of PRC's power to grant
Embassy of the Philippines in Japan, which provides in Articles 2 and 11,
licenses, i.e., it may, upon recommendation of the board, approve the
thus:
registration and authorize the issuance of a certificate of registration with or
without examination to a foreigner who is registered under the laws of his
country, provided the following conditions are met: (1) that the requirement
for the registration or licensing in said foreign state or country are
Legal Medicine – Atty. Luansing

substantially the same as those required and contemplated by the laws of however, presented proof that foreigners are actually practicing in Japan and
the Philippines; (2) that the laws of such foreign state or country allow the that Filipinos are not precluded from getting a license to practice there.
citizens of the Philippines to practice the profession on the same basis and
grant the same privileges as the subject or citizens of such foreign state or Respondent presented before the trial court a Japanese Government
country; and (3) that the applicant shall submit competent and conclusive publication, Physician-Dentist-Pharmaceutist Survey, showing that there are
documentary evidence, confirmed by the DFA, showing that his country's a number of foreign physicians practicing medicine in Japan.32 He also
existing laws permit citizens of the Philippines to practice the profession presented a letter dated January 28, 1992 from Consul General
under the rules and regulations governing citizens thereof. Yabes,33 which states:

The said provision further states that the PRC is authorized to prescribe Sir:
additional requirements or grant certain privileges to foreigners seeking
With reference to your letter dated 12 January 1993, concerning your
registration in the Philippines if the same privileges are granted to or some
request for a Certificate of Confirmation for the purpose of establishing a
additional requirements are required of citizens of the Philippines in
reciprocity with Japan in the practice of medical profession relative to the
acquiring the same certificates in his country.
case of Mr. Yasuyuki Ota, a Japanese national, the Embassy wishes to
Nowhere in said statutes is it stated that the foreign applicant must show inform you that inquiries from the Japanese Ministry of Foreign Affairs,
that the conditions for the practice of medicine in said country are practical Ministry of Health and Welfare as well as Bureau of Immigration yielded the
and attainable by Filipinos. Neither is it stated that it must first be proven following information:
that a Filipino has been granted license and allowed to practice his
1. They are not aware of a Filipino physician who was granted a license by
profession in said country before a foreign applicant may be given license to
the Japanese Government to practice medicine in Japan;
practice in the Philippines. Indeed, the phrase used in both R.A. No. 2382
and P.D. No. 223 is that: 2. However, the Japanese Government allows a foreigner to practice
medicine in Japan after complying with the local requirements such as
[T]he applicant shall submit] competent and conclusive documentary
holding a valid visa for the purpose of taking the medical board exam,
evidence, confirmed by the Department of Foreign Affairs, showing that his
checking the applicant's qualifications to take the examination, taking the
country's existing laws permit citizens of the Philippines to practice the
national board examination in Japanese and filing an application for the
profession [of medicine] under the [same] rules and regulations governing
issuance of the medical license.
citizens thereof. x x x (Emphasis supplied)
Accordingly, the Embassy is not aware of a single Filipino physician who was
It is enough that the laws in the foreign country permit a Filipino to get
issued by the Japanese Government a license to practice medicine, because
license and practice therein. Requiring respondent to prove first that a
it is extremely difficult to pass the medical board examination in the
Filipino has already been granted license and is actually practicing therein
Japanese language. Filipino doctors here are only allowed to work in
unduly expands the requirements provided for under R.A. No. 2382 and P.D.
Japanese hospitals as trainees under the supervision of a Japanese doctor.
No. 223.
On certain occasions, they are allowed to show their medical skills during
While it is true that respondent failed to give details as to the conditions seminars for demonstration purposes only. (Emphasis supplied)
stated in the Medical Practitioners Law of Japan -- i.e., the provisions of the
Very truly yours,
School Educations Laws, the criteria of the Minister of Health and Welfare of
Japan in determining whether the academic and technical capability of Jesus I. Yabes
foreign medical graduates are the same as or better than that of graduates of Minister Counsellor &
medical schools in Japan, and who can actually qualify to take the Consul General
preparatory test for the National Medical Examination – respondent,
From said letter, one can see that the Japanese Government allows
foreigners to practice medicine therein provided that the local requirements
Legal Medicine – Atty. Luansing

are complied with, and that it is not the impossibility or the prohibition the Medical Board Examinations which was given on August 8, 1992 with a
against Filipinos that would account for the absence of Filipino physicians general average of 81.83, with scores higher than 80 in 9 of the 12 subjects.
holding licenses and practicing medicine in Japan, but the difficulty of
passing the board examination in the Japanese language. Granting that In fine, the only matter being questioned by petitioners is the alleged failure
there is still no Filipino who has been given license to practice medicine in of respondent to prove that there is reciprocity between the laws of Japan
Japan, it does not mean that no Filipino will ever be able to be given one. and the Philippines in admitting foreigners into the practice of medicine.
Respondent has satisfactorily complied with the said requirement and the
Petitioners next argue that as held in De Guzman, its power to issue licenses CA has not committed any reversible error in rendering its Decision dated
is discretionary, hence, not compellable by mandamus. November 16, 2004 and Resolution dated October 19, 2003.

The Court finds that the factual circumstances of De Guzman are different WHEREFORE, the petition is hereby DENIED for lack of merit.
from those of the case at bar; hence, the principle applied therein should be
viewed differently in this case. In De Guzman, there were doubts about the
integrity and validity of the test results of the examinees from a particular
school which garnered unusually high scores in the two most difficult
subjects. Said doubts called for serious inquiry concerning the applicants’
satisfactory compliance with the Board requirements.34 And as there was no
definite showing that the requirements and conditions to be granted license
to practice medicine had been satisfactorily met, the Court held that the writ
of mandamus may not be granted to secure said privilege without thwarting
the legislative will.35

Indeed, to be granted the privilege to practice medicine, the applicant must

show that he possesses all the qualifications and none of the
disqualifications. It must also appear that he has fully complied with all the
conditions and requirements imposed by the law and the licensing
authority.36

In De Guzman itself, the Court explained that:

A careful reading of Section 2037 of the Medical Act of 1959 discloses that the
law uses the word "shall" with respect to the issuance of certificates of
registration. Thus, the petitioners [PRC] "shall sign and issue certificates of
registration to those who have satisfactorily complied with the requirements
of the Board." In statutory construction the term "shall" is a word of
command. It is given imperative meaning. Thus, when an examinee satisfies
the requirements for the grant of his physician's license, the Board is obliged
to administer to him his oath and register him as a physician, pursuant to
Section 20 and par. (1) of Section 22 of the Medical Act of 1959.38

In this case, there is no doubt as to the competence and qualifications of

respondent. He finished his medical degree from Bicol Christian College of
Medicine. He completed a one-year post graduate internship training at the
Jose Reyes Memorial Medical Center, a government hospital. Then he passed
Legal Medicine – Atty. Luansing

State sanitation and heliotherapy * * *." Although naturopathy is sometimes said to

be a drugless system of healing, the South Carolina Naturopathic Physicians
v. Association alleged, in an action for a declaratory judgment, "that it is
essential in the practice of their profession * * * to administer and prescribe
Scopel
such drugs" as opium and its derivatives, aminopyrine, barbiturates and
penicillin [Dantzler v. Callison, 1955, 227 S.C. 317, 88 S.E.2d 64, 66], and
licensed naturopaths in Florida stubbornly and successfully sought the right
BARRETT, Commissioner. to prescribe narcotic drugs. State Dept. of Public Welfare v. Melser, Fla., 69
So.2d 347, 353; In re Complaint of Melser, 160 Fla. 333, 32 So.2d 742. See
This is a civil action in equity instituted on behalf of the State by the
also Perry v. Larson, 5 Cir., 104 F.2d 728.
Prosecuting Attorney of Jackson County, acting in his official capacity
[Section 56.060], to enjoin the unlicensed practice of medicine by defendant, Defendant in the case at bar operates at 1410 Central in Kansas City,
William Scopel, on the ground that such practice is "a continuing public Missouri, "a school of naturopathic medicine" which he calls the American
nuisance detrimental to the public welfare and dangerous to the public College of Naturopathic Medicine and Laboratory Technic. At the same
health, contrary to and against the public policy of the State." Upon this address, defendant has "my clinic" which, as he says, "I must have" in
appeal by the State from the decree of the trial court dissolving the temporary connection with the "school." According to defendant, his "institution is
restraining order theretofore issued and dismissing plaintiff's petition, the under the supervision of a medical director" and "we have five doctors there
fact that the State is a party to the action [State ex rel. Thrash v. Lamb, 237 all the time." Neither the "medical director" nor any of the "five doctors"
Mo. 437, 141 S.W. 665] invokes our appellate jurisdiction under Article 5, testified, but defendant identified the medical director as M. A. Elstein, M.D.,
Section 3, Mo.Const. of 1945, 2 V.A.M.S. "an old gentleman" who "spends most of the time there." Defendant is "part of
the clinic" and maintains a large office there, with his name inscribed on the
Unless otherwise specifically stated, all statutory references are to RSMo
door as "Dr. William Scopel, N.D., Dean Diagnosis."His office furnishings
1949, V.A.M.S.
include "a standard examination table * * * used by all physicians" and a
Defendant admittedly has neither sought nor obtained a license to practice number of glass cases containing surgical instruments and what appear to
medicine in this State [see Sections 334.010, 334.030 and 334.040, as be "pills and other medicine." One witness, a practical nurse, recognized in
amended Laws of 1951, p. 727], but his contention is "that he is a defendant's office specula for vaginal examinations and instruments for
naturopath and as such does not practice medicine and that his business is swabbing wounds and pulling sterile gauze from containers, and defendant
not subject to the licensing or control of any board or agency under the laws readily admitted his use of a stethoscope and "a cardiograph machine" — "I
of Missouri." Defendant's loose definition of naturopathy is "a system of had the first one ever made."
medicine that utilizes properties required by the body to bring about a
The insistence of defendant, whose practice obviously was not drugless, that
natural reaction — that is as near as possible that we define ourselves." (All
"everything that was prescribed from that clinic that required the prescription
emphasis herein is ours.) Illustrative of the statutory definitions of
by a physician, it was so done by said physician" finds no independent
naturopathy, in those states in which that system of medicine has been
support in the record. On the contrary, the evidence persuasively indicates
recognized by legislative enactment, is the Florida definition in Section
that defendant, in fact, prescribed although he sometimes did so over the
462.01, F.S.A.: "* * * (T)he use and practice of psychological, mechanical and
signature of his "medical director." After one female patient (gathering
material health sciences to aid in purifying, cleansing and normalizing
evidence for prosecution of this suit) had been examined by defendant, he
human tissues for the preservation or restoration of health, according to the
gave her a prescription for phenobarbital bearing Elstein's signature. When
fundamental principles of anatomy, physiology and applied psychology, as
cross-examined concerning this prescription ( before the patient had testified
may be required. Naturopathic practice employs, among other agencies,
or had been identified), defendant first said that "I handed it to him (the
phytotherapy, dietetics, psychotherapy, suggesto-therapy, hydrotherapy,
patient), but it was written by the medical director; he was right there when I
zone therapy, bio-chemistry, external applications, electrotherapy,
gave it," then surmised "I suppose he was," and finally conceded "I don't
mechanotherapy, mechanical and electrical appliances, hygiene, first aid,
recollect." When recalled to the stand after the patient had testified,
Legal Medicine – Atty. Luansing

defendant remembered that Elstein "was in the next room and, at the time I prescribe treatment for any condition found. Then, in response to an inquiry
could not take him before a patient, because he was unable to come * * * his whether "you know of your own knowledge, by reason of your office
urine and his odor was unpresentable," so "I took the finding of the diagnosis association with him * * *, he (defendant) did do those things," Holt
to Dr. Elstein, and he wrote this prescription which I handed to this woman, answered, "I have reason to think so."
according to the diagnosis that I gave to him."
Among the exhibits, we find (1) defendant's "main book," a paper-bound
When this same patient returned to defendant's office about ten days later, pamphlet of fifty-four pages titled "Scopel's Natural Antibody Theory," written
"he asked me (the patient) some questions and took my blood pressure and by defendant, "Degrre N.D., M.D. — Dean of the American College of Natural
listened to my heart and told me I was in perfect condition"; but, Medicine and Laboratory Technic, Kansas City, Missouri," and copyrighted,
notwithstanding the patient's "perfect condition," defendant gave her a small revised and reprinted in 1952, (2) an eight-page pamphlet bearing the same
box labeled "Caroid and Bile Salts with Phenolphthalein" — "Physician's title, with an author's foreword by "William Scopel, M.D." and (3) a ten-page
Sample," which contained three brown tablets — "a laxative to take in the pamphlet of invective captioned "It Happened To Me" which identifies the
evening," and a dark bottle filled with a liquid and bearing a label with the author as "Dr. Wm. Scopel * * * Discoverer of Natural Immunization, Degree
handwritten direction, "(1) teaspofull after meal." Defendant said that the N.D., M.D., Registered to practice medicine in the State of Oklahoma," and
brown tablets actually were "Feenamint, sent out by the  company, and "Dean of the American College, etc." Defendant caused the first two
everyone that comes into my clinic I give them one"; and, in response to the pamphlets to be distributed "to the people engaged in the field of healing" and
incredulous query, "whether they need it or not," defendant blandly assured the last one "to the public."
his cross-examiner, "yes, a good physic doesn't hurt anyone." According to
defendant, the bottle of liquid was "merely a tonic made up of licorice and It is clear that, for protection of the public health and welfare, the legislature
iron and stuff like that * * * more or less of a fruit substance," which is empowered to regulate the practice of medicine in such manner as it
"anybody can take * * * anytime" and which is beneficial "in general for reasonably may believe to be proper and wise. State v. Smith, 233 Mo. 242,
everything." The patient paid defendant $5 on each visit. 265-268, 135 S.W. 465, 471-472, 33 L.R.A., N.S., 179; State v. Davis, 194
Mo. 485, 499-501, 92 S.W. 484, 488-489, 4 L.R.A., N.S., 1023; Dent v. State
Defendant recognized, as having "been in my office," a small bottle bearing of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623. In the valid
the typewritten label "Acetanalid — 3 Grain" which, however, contained (so exercise of such authority, our general assembly has seen fit to require that
he said) "pure aspirin." He thought that he had given the bottle and its "(a)ll persons desiring to practice medicine or surgery in this state, or to treat
contents to a female patient from Independence, who "come in with migraine the sick or afflicted," shall furnish satisfactory evidence of certain educational
headaches, and the way she acted and the line that she told me (defendant), qualifications and shall attain a specified average grade upon medical
I realized she was someone who a thousand times a year were sent to examination conducted by the State Board of Medical Examiners [Section
me, and I took the aspirin out of that bottle." Defendant also identified on 334.040, as amended Laws of 1951, p. 727], and has made it unlawful for
cross-examination an unsigned prescription blank on which he had written any person, other than a registered physician (and those exempted by
"Permajute of Potassian Cristal." Insisting that "it is properly spelled," he Section 334.150), "to practice medicine or  surgery in any of its departments,
conceded that permanganate of potash crystals were intended, agreed that or to profess to cure and attempt to treat the sick and others afflicted with
"evidently I have given it to someone (unidentified in the record) a long time bodily or mental infirmities." Sections 334.010 and 334.030. The general
ago," but could not say for what purpose he might have recommended the assembly has recognized and made appropriate provision for the licensing of
use of such crystals — "permanganate is used for a million and one things." chiropodists in Chapter 330, chiropractors in Chapter 331, dentists in
Chapter 332, nurses in Chapter 335, optometrists in Chapter 336,
Clarence E. Holt, a naturopath called as a witness for defendant, had osteopaths in Chapter 337, and pharmacists in Chapter 338. None of the
occupied an office adjoining that of defendant. Holt bluntly stated that "all rights or privileges of naturopaths have been infringed or denied by reason of
naturopath doctors are specialists in the laws of nature to take care of any the fact that they have not been accorded similar legislative recognition by
disease in the human body," definitely asserted that naturopaths "diagnose name, for the general assembly is under no duty or compulsion to recognize
conditions of the human body and disease" — "that is part of naturopathy," and deal with every school of medicine and to provide for the licensing of the
and readily agreed that it likewise is "part of naturopathy, certainly," to followers of each such school by requiring of them only such education or
Legal Medicine – Atty. Luansing

knowledge as that particular school may demand. Hahn v. State, Wyo., 322 v.  Smith, supra, 233 Mo. loc. cit. 258-260, 263, 135 S.W. loc. cit. 468-470;
P.2d 896, 901; Schlichting v. Texas State Board of Medical Examiners, State v. Smith, supra, 245 N.W. loc. cit. 874; State ex rel. Shenk v. State
Tex., 310 S.W.2d 557, 563-564; Hitchcock v. Collenberg, D.C.Md., 140 Board of Examiners in Basic Sciences, 189 Minn. 1, 250 N.W. 353, 354.
F.Supp. 894, 899, affirmed 353 U.S. 919, 77 S.Ct. 679, 1 L.Ed.2d 718. Our Defendant's practice encompassing, as it does, diagnosis and treatment of
statutes do not prohibit the practice of naturopathy, but the general the sick, we have no doubt but that it constitutes the practice of medicine
assembly has, in Chapter 334, established certain requirements which must within the contemplation and meaning of Chapter 334. State v. Smith,
be met and satisfied by any person (not exempted by Section 334.150) who supra; State v. Young, supra; State v. Fenter, Mo.App., 204 S.W. 733; State
undertakes the practice of medicine. One so licensed to practice may, if he v. Evertz, Mo.App., 202 S.W. 614, 616; Davidson v. Bohlman, supra.
desires, apply the tenets and principles of naturopathy in his practice. Consult also O'Bannon v. Widick, 281 Mo. 478, 220 S.W. 853, affirming
Dantzler v. Callison, 230 S.C. 75, 94 S.E.2d 177, 187 (16), appeal dismissed Mo.App., 198 S.W. 432. This conclusion as to naturopathic practice is in
352 U.S. 939, 77 S.Ct. 263, 1 L.Ed.2d 235; Davis v. Beeler, 185 Tenn. accord with the overwhelming weight of authority in other jurisdictions. See
638, 207 S.W.2d 343, 347, appeal dismissed 333 U.S. 859, 68 S.Ct. 745, 92 Hahn v. State, supra, 322 P.2d loc. cit. 900-901, and cases there collected.
L.Ed. 1138; Louisiana State Board of Medical Examiners v. Fife, 162 La.
681, 111 So. 58, 54 A.L.R. 594, affirmed 274 U.S. 720, 47 S.Ct. 590, 71 However, defendant argues that, regardless of whether he is practicing
L.Ed. 1324. medicine, injunctive relief should be denied because (so he says) the State
failed to prove that he is, in fact, a public nuisance. Unlicensed medical or
In determining the initial question as to whether defendant is engaged in the dental practitioners have been enjoined in many jurisdictions, usually
practice of medicine within the contemplation and meaning of Chapter 334, pursuant to statutory authorization [Schlichting v. Texas State Board of
we are interested in what he does, not what he calls himself or his system of Medical Examiners, supra; State ex rel. Board of Medical Registration
practice [State v. Smith, supra, 233 Mo. loc. cit. 260, 135 S.W. loc. cit. 469; Examination v. Hayes, 228 Ind. 286, 91 N.E.2d 913; Dean v. State, 233
State v. Blumenthal, 141 Mo. App. 502, 505, 125 S.W. 1188, 1189; Smith v. Ind. 25, 116 N.E.2d 503; Nighohossian v. State, 75 Ariz. 162, 253 P.2d 344,
State Board of Medicine of Idaho, 74 Idaho 191, 259 P.2d 1033, 1034- 346; State v. Fray, 214 Iowa 53, 241 N.W. 663, 81 A.L.R. 286; State v.
1035(2)]; and if, in fact, defendant is practicing medicine, he cannot escape Howard, 214 Iowa 60, 241 N.W. 682; State ex rel. Corley v. Leopold, 170
the consequences by cloaking his activities under the pseudonym of Kan. 613, 228 P.2d 538; State ex rel. Beck v. Cooper, 147 Kan. 710, 78 P.2d
naturopathy. For, since naturopathy has not been recognized by our general 884, 888; Louisiana State Board of Medical Examiners v. Lensgraf,
assembly, it cannot be recognized by our courts. State v. Howard, 216 Iowa La.App., 101 So.2d 734, 736; Board of Medical Examiners of Utah v. Blair,
545, 245 N.W. 871, 873-874(2); 92 A.L.R. 174. Contrast Williams v. Capital 57 Utah 516, 196 P. 221; State Board of Dental Examiners v. Rymer,
Life Health Ins. Co., 209 S.C. 512, 41 S.E.2d 208, 210. And, it may be Tenn., 303 S.W.2d 959; State v. Boren, 42 Wash.2d 155, 253 P.2d 939,
added that defendant's legal position is not altered or improved by the fact (if 944] but sometimes as a public nuisance per se without specific statutory
so) that there was a medical doctor in his clinic and that he (defendant) declaration or authorization. Kentucky State Board of Dental Examiners v.
issued prescriptions signed by such doctor. State v. Young, Mo.App., 215 Payne, 213 Ky. 382, 281 S.W. 188; Commonwealth ex rel. Attorney General
S.W. 499, 501(7). v. Pollitt, 258 Ky. 489, 80 S.W.2d 543; Curtis v. Registered Dentists of
Oklahoma, 193 Okl. 233, 143 P.2d 427. See also Taylor v. State, Okl., 291
Without undertaking judicial definition of what constitutes the practice of P.2d 1033, 1041, appeal dismissed 352 U.S. 805, 77 S.Ct. 33, 1 L.Ed.2d 38;
medicine in Missouri, it may be said that the obvious intention of Chapter Board of Examiners in Veterinary Medicine of State v. Tubbs, Okl., 307 P.2d
334 is to embrace "`any person who habitually holds himself out as a 830, 832; Weber v. Florida State Board of Optometry, Fla., 73 So.2d 408.
professor of the art of healing'" [State v. Smith, 233 Mo. loc. cit. 263, 135 Other cases support the contention of instant defendant that, since at
S.W. loc. cit. 470; Davidson v. Bohlman, 37 Mo.App. 576, 579]; that the common law the practice of medicine was open to any who desired to follow
prescription of drugs is not essential to the practice of medicine [Stribling v. it, subject only to liability for damages resulting from lack of skill and to the
Jolley, 241 Mo.App. 1123, 1136, 253 S.W.2d 519, 524; State v. Evertz, right of the government by quo warranto to prevent incompetents from
Mo.App., 202 S.W. 614; Davidson v. Bohlman, supra]; and, that diagnosis following the profession [Aitchison v. State, 204 Md. 538, 105 A.2d 495,
(in which defendant purports to be especially qualified and particularly 497-498 (2), certiorari denied 348 U.S. 880, 75 S.Ct. 116, 99 L.Ed. 692;
proficient) is an important and integral part of the practice of medicine. State
Legal Medicine – Atty. Luansing

Redmond v. State, 152 Miss. 54, 118 So. 360, 367; State v. Borah, 51 Ariz. natural substances * * * barring metallic substances" — the Dearborn
318, 76 P.2d 757, 758(1), 115 A.L.R. 254], unlicensed medical practice does College of Physicians and Surgeons in Chicago issued a diploma to
not now constitute a nuisance per se, may not be restrained on a mere defendant in 1941 purporting to confer on him the degree of Doctor of
showing that the practitioner has no license, but should be enjoined only Medicine. Having volunteered on direct examination that "Dearborn College
upon the further showing that such unlicensed practice, in fact, constitutes is one of the oldest medical schools, perhaps, in the United States,"
a public nuisance. People ex rel. Bennett v. Laman, 277 N.Y. 368, 14 N.E.2d defendant conceded on cross-examination that "it closed in 1947." There is
439; State ex rel. La Prade v. Smith, 43 Ariz. 131, 29 P.2d 718, 92 A.L.R. no suggestion that defendant was licensed to practice any system or branch
168, modified on rehearing 43 Ariz. 343, 31 P.2d 102, 92 A.L.R. 173; State of medicine in Illinois.
ex rel. Marron v. Compere, 44 N.M. 414, 103 P.2d 273, 275.
Defendant said that, in 1941, he "spent nine months at the Gradwal School
Defendant's theory that his practice is not a public nuisance because he is of Medical Technology in St. Louis" but no diploma or certificate from that
(as his counsel phrases it) "educated beyond the bare minimum prescribed institution was presented. At the conclusion of a one-year "rotating
by the statute he is accused of violating [Section 334.040(2)], and internship," defendant obtained in 1943 a Certificate of Internship from
unchallenged and unimpeached in his competence in the limited system (of Corning Research Hospital in Corning, Arkansas, an institution which also
naturopathy) which he admittedly practices" prompts a brief review of the had closed prior to the time of trial. During this period of "internship,"
evidence concerning his education and qualifications to treat the sick. Before defendant lived in Kansas City, Missouri, going to Corning "sometimes three
coming to this country in 1915, defendant went through the fifth or sixth and sometimes four days a week" and at the same time caring for "my
grade in school in his native land of Italy — "that is as far as we could go business here (in Kansas City), making a living." He described his "business"
there" — and in a private school conducted by his brother took what his as "taking care of displaced Japanese sent here from the West Coast to be
counsel liberally construes to have been "a course of study * * equal to high placed in industry" and as "general director * * * of the United Shoe Workers."
school." After "a very short course" at the Palmer-Gregory Chiropractic In August, 1948, the Missouri Naturopathic Association was incorporated;
College in Oklahoma City, he received a diploma from that institution in and, during the same month, the Board of Naturopathic Examiners of that
1922; and, on a date not fixed in the record, he became "the president of the Association issued to defendant a certificate bearing, among others, the
school," a position still  held by him at the time of trial. Although defendant signature of defendant, president of the Association, identified as "N.D., D.C.,
thought that he had been "licensed under the old Indian Territory Laws" in M.D." Compare Aitchison v. State, supra, 105 A.2d loc. cit. 496-497, 500.
1925 "to administer remedies under the Indian Laws," and that he was "a Under date of January 15, 1952, the Booker T. Washington Chiropractic
herb doctor in Oklahoma" — "under the Territory Law, yes," and although he College in Kansas City, an institute "for the G. I. colored boys," issued a
said that he had "my certificate of registration," he did not produce it, and we diploma to defendant certifying his completion of "4,320 class hours."
are mindful that the Indian Territory had become the State of Oklahoma in According to defendant, he attended this institute "for four years in night
1907, long before defendant landed in this country. But, if defendant's status school" — "they had such wonderful instructors there, and I wanted to get all
as "a herb doctor in Oklahoma" remains cloudy and obscure, he established that I could out of it." In March, 1955 (after institution of this suit), defendant
that he was "`a corn doctor'" [State ex rel. Flickinger v. Fisher, 119 Mo. 344, procured from the Georgia Board of Naturopathic Examiners a license
353, 24 S.W. 167, 169, 22 L.R.A. 799] in that state by offering in evidence an authorizing him to practice naturopathy in that State. But, diligent as
Oklahoma license to practice chiropody, which had been issued to him in defendant obviously has been in the collection of certificates and diplomas,
1935. certainly those produced by him neither demonstrate his education "beyond
the bare minimum" prescribed by Section 334.040, subd. 2 nor indicate his
In 1930, defendant obtained from The National College of Massage and competence to practice medicine.
Physio-Therapy in Chicago a certificate that he had "completed a prescribed
course in Health Culture and (had) passed a creditable examination in the It is well-established that equity may enjoin acts or conduct constituting a
art of Scientific Swedish Massage, Medical Gymnastics, Electro-Therapy, public nuisance [State ex rel. Crow v.  Canty, 207 Mo. 439, 454-459, 105
Hydro-Therapy, Swedish Face and Scalp Treatment, Hygiene and the S.W. 1078, 1082-1084, 15 L.R.A., N.S. 747; State ex rel. Thrash v. Lamb,
underlying principles of Anatomy and Physiology." And, after a one-year supra, 141 S.W. loc. cit. 668(3), 670-671(7); State ex rel. Allai v. Thatch, 361
"night course" in "electric medica" — "a system of medicine utilizing all of the Mo. 190, 234 S.W.2d 1], defined as "an offense against the public order and
Legal Medicine – Atty. Luansing

economy of the state by unlawfully doing any act or by omitting to perform The decree of the trial court is set aside and the cause is remanded with
any duty which the common good, public decency, or morals, or the public directions to enter a decree finding the issues for plaintiff and permanently
right to life, health, and the use of property requires, and which at the same enjoining defendant in accordance with the prayer of plaintiff's petition.
time annoys, injures, endangers, renders insecure, interferes with, or
obstructs the rights or property of the whole community, or neighborhood, or BOHLING and STOCKARD, CC., concur.
of any considerable number of persons, even though the extent of the
annoyance, injury, or damage may be unequal or may vary in its effect upon
individuals." State ex rel. Crow v. Canty, supra, 105 S.W. loc. cit. 1080; State [20] PER CURIAM.
by Major ex rel. Hopkins v. Excelsior Powder Mfg. Co., 259 Mo. 254, 278,
169 S.W. 267, 273, L.R.A. 1915A 615; Joyce on Nuisances, § 5, p. 10. See The foregoing opinion by BARRETT, C., is adopted as the opinion of the
also State ex rel. Igoe v. Joynt, 341 Mo. 788, 795, 110 S.W.2d 737, 740(12); Court.
State ex rel. Jackson v. Lindsay, 85 Kan. 79, 116 P. 207, 208-209, 35 L.R.A.,
N.S., 810; Pomeroy's Equity Jurisprudence (2nd Ed.), Vol. 5, § 1893, p. All concur.
4296.

Defendant has arrogated to himself the right to diagnose and treat human
ailments and has undertaken the task of examining and caring for that most
delicate, intricate and mysterious of all mechanisms — the human body. The
live and continuing interest of the State in guarding and protecting the sick
and credulous from ignorant and incompetent practitioners is evidenced by
the legislative enactments in Chapter 334. Consult State v. Smith, supra,
233 Mo. loc. cit. 268, 135 S.W. loc. cit. 472; State v. Davis, supra, 194 Mo.
loc. cit. 499, 92 S.W. loc. cit. 488; State v. Fenter, supra, 204 S.W. loc. cit.
734-735. Without holding that unlicensed medical practice constitutes a
public nuisance per se, we are satisfied that the record before us, taken in its
totality, conclusively demonstrates defendant's utter inadequacy and
incompetence for the role he has assumed and satisfactorily establishes that
his extensive and unlicensed practice is, in fact, a public nuisance within the
above-quoted definition of that term. So finding, we should not stay the
strong arm of equity because there is no specific statutory authorization for
injunctive relief against unlicensed medical practice [Burden v. Hoover, 9
Ill.2d 114, 137 N.E.2d 59, 62; State ex rel. Marron v. Compere, supra, 103
P.2d loc. cit. 278(8)] or because defendant might be prosecuted criminally
[State ex rel. Crow v. Canty, supra, 207 Mo. loc. cit. 454-459, 105 S.W. loc.
cit. 1082-1084; People ex rel. Bennett v. Laman, supra; Boggs v.
Werner, 372 Pa. 312, 94 A.2d 50; Heilman, Legal Control of Medical
Charlatanism, 22 N.C.L.Rev. 23, 35-36], particularly where, as here,
defendant has violated the applicable statutes openly, arrogantly and
persistently and also has manifested contempt for the process of the court by
examination and treatment of patients while the temporary restraining order
was in effect.
Legal Medicine – Atty. Luansing

State "Defendant admits that he pretends to and does diagnose for the people of
Kansas City, Missouri the sickness, diseases and infirmities of the human
v. body and pretends to and does prescribe a treatment, cure for and relief of
the same but denies that he diagnoses, treats, or prescribes for such persons
Errington
by the use of drugs or other means or methods used by medical doctors,
physicians and surgeons. Defendant alleges that he diagnoses, treats and
prescribes for his patients as a Naturopathic Doctor and uses only the
BOHLING, Commissioner. methods used by Naturopathic Doctors, such as foods, diets, air, light and
other of nature's remedies.
The State, at the relation of the prosecuting attorney of Jackson County (see
§ 56.060), instituted this suit to enjoin the unlicensed practice of medicine by "Defendant admits that he is not now and has never been a registered
Robert G. Errington, defendant, on the ground that such practice "has physician in Missouri and admits he does not now and never has possessed
become a continuing public nuisance detrimental to the public welfare and a license from the State Board of Medical Examiners of Missouri to practice
dangerous to the public health, contrary to and against the public policy of medicine.
the State." The decree dismissed plaintiff's petition, and the State appealed.
The State is a party and we have appellate jurisdiction. Mo.Const. Art. 5, § 3, "Defendant admits that he has never submitted himself to the State Board of
V.A.M.S.; State ex rel. Collet v. Scopel, Mo., 316 S.W.2d 515. Medical Examiners of Missouri to demonstrate to said Board his moral,
educational and professional fitness and ability to practice medicine, or to
Defendant's attorney filed an answer on behalf of defendant on December 10, submit himself to the tests of an examination for such purposes and admits
1953, but withdrew from the case on April 20, 1954. Thereafter defendant that he is unskilled and uninformed in the practice of medicine and does not
appeared prose. possess the qualifications required by law so to do; and denies that he is and
has become a continuing, or any, public nuisance, and denies that plaintiff
The State read in evidence the following portions of defendant's answer of
has no adequate remedy at law and denies that the practice in which he is
December 10, 1953, to the charges in plaintiff's petition as admissions
engaged as a naturopathic doctor will result in irreparable or other injury to
against interest.
the health of the public or will be destructive of the general welfare and
"Defendant admits that he advertised in the December, 1952, issue of the public policy of the State."
Greater Kansas City telephone directory that he is a Doctor, by inserting his
Defendant stated at the trial that he did not claim the above quoted
name therein preceded by the letters `Dr.," and therein advertises that he
admissions were not true.
operates and conducts an establishment for the treatment of the sickness,
diseases and infirmities of the human body, but defendant alleges that he is William B. Horowitz was suffering from psoriasis, a chronic skin disease, and
a Naturopathic Doctor and holds a degree as such and said advertisement consulted defendant May 29, 1953. He displayed the condition on his leg to
contains the further designation of `N. D.' meaning `Naturopathic Doctor' defendant. Defendant stated he knew what witness' trouble was and
and that said advertisement contains nothing to indicate or from which it diagnosed it as liver trouble. He outlined a course of treatment consisting of
can be inferred that he claims to be a medical doctor; and shots, pills and treatments. Some treatments were to be administered at
defendant's place of business, followed by treatment at night by defendant's
"Defendant admits that he advertises by way of professional cards
nurse at witness' home. Defendant wrote down his charges for treating
distributed to the public showing his name preceded by the letters `Dr.' and
witness: "Gall bladder drainage, $50.00; 18 treatments at $65.00; Change in
followed by the words `Fellow, National Medical Society' and defendant
intestinal flora, $234.00." Defendant informed witness he had treated a Mr.
alleges that he is a member of the National Medical Society and has a
Hite, of Harrisonville, Missouri, for a similar condition for about a year, and
certificate from said Society showing him to be a `Fellow' in said Society, but
that Mr. Hite had paid him approximately $3,000.00 therefor.
defendant denies that said cards contain any data or statements that
defendant is authorized to and does practice medicine; and
Legal Medicine – Atty. Luansing

John E. Shanahan suffered from histamine headaches. He consulted Defendant's position, as we read this record, is that he is a naturopathic
defendant on May 25, 1953. Defendant examined him and stated the physician or doctor; that the practice of naturopathy was lawful at common
headaches were caused by a nervous condition and spoke of flushing law and is lawful under Chapter 334, our Medical Practice Act; that
witness' liver. On witness' second visit they discussed the flushing of the liver regulating the practice of naturopathy contravenes the 14th Amendment to
and the charges. Defendant told witness relief would not be permanent the Constitution of the United States by depriving defendant of the
without the flushing; that the treatments would shock one's system and inalienable right to follow a common occupation, and that plaintiff is not
leave one in a weakened condition; that defendant's wife would stay at entitled to injunctive relief against defendant.
witness' home on the night of a treatment to administer shots or whatever
was necessary, and mentioned something about giving oxygen and shots to The title of our Medical Practice Act reads: "An Act to regulate the practice of
build one back up. Defendant listed his charges at $50 for flushing the liver; medicine, surgery and midwifery, and to prohibit treating the sick and
$80 for the oxygen, and $87.20 for the shots. Defendant gave witness some afflicted without a license, and to provide penalties for the violation thereof."
capsules to relieve the tension and permit witness to rest and sleep. Witness Laws 1901, p. 207.
made four visits to defendant's office; was given capsules and pills, steam
It is unlawful under said Act for any person not "a registered physician
baths, treatments on mechanical devices, and, on one occasion, oxygen.
within the meaning of the law to practice medicine or surgery in any of its
Witness paid defendant $5 each on three of his visits.
departments, or to profess to cure and attempt to treat the sick and others
Ann Brim called at defendant's office in the Summer of 1953, her complaint afflicted with bodily or mental infirmities, * * * in the state of Missouri, except
being that she was nervous, tired and run-down. Defendant made an as herein provided." Section 334.010. Naturopathy or its practice is not made
examination and diagnosed her complaints as "a hyperthyroid condition." He an exception to the provisions of said Act. See State ex rel. Collet v.
recommended as a treatment some medication and steam baths. They Scopel, Mo., 316 S.W.2d 515; section 334.150; Chapters 330, 331, 332,
discussed the treatment and the charges. Defendant asked witness $65 for 335, 336, 337, 338.
18 treatments, and for vitamins and calcium and treatments for three
Said Act further provides: "Any person practicing medicine or surgery in
months $82.50. She had two treatments, given by defendant's wife, paying
this state, and any person attempting to treat the sick or others afflicted with
$5 for each.
bodily or mental infirmities, and any person representing or advertising
Defendant, called to the stand by plaintiff, refused to answer many of the himself by any means or through any medium whatsoever, or in any
questions propounded, claiming his privilege against incrimination. However, manner whatsoever, so as to indicate that he is authorized to or does
he testified he was and had been living at 1316 East 63rd Street, Kansas practice medicine or surgery in this state, or that he is authorized to or does
City, Missouri, for approximately eight years prior to September 15, 1955, treat the sick or others afflicted with bodily or mental infirmities, without a
the date of trial. license from the state board of medical examiners shall, upon conviction, be
adjudged guilty of a misdemeanor." Section 334.030.
Defendant's professional card read: "Phone JA 9201. Conservatory of Health,
1316-18 East 63rd Street, Kansas City 10, Mo. Your perpetual business "All persons desiring to practice medicine or surgery in this state, or to treat
asset is * * Your Health. Your most envious social asset is * * * Your Health. the sick or afflicted, as provided in section 334.010" are required to meet
Prime essential for an active life is * * * Your Health. Guard It. Dr. Robert G. certain standards and procure from the State Board of Medical Examiners a
Errington, Fellow, Nat. Medical Society." license to practice medicine and surgery in this State (section 334.040, as
amended Laws 1951, p. 727), and to secure registration certificates, and
Defendant's advertisement in the classified section of the Greater Kansas their periodic renewal, from the State Board of Medical Examiners (sections
City telephone directory under "naturopaths" read: "Conservatory of Health. 334.070, 334.080).
Dr. Robert G. Errington, Naturopathic Physician. 1316 E. 63 JAckson 9201."
It is stated in State v. Smith, 233 Mo. 242, 135 S.W. 465, 468(4), 470, 33
This was the extent of the material evidence. L.R.A., N.S., 179: "In the main, the cases regard diagnosis as the test to
determine whether a practice or treatment is included in the terms `medicine'
Legal Medicine – Atty. Luansing

and `surgery.' This is a practical test. * * * When the practitioner makes such the State of Missouri; that defendant is unskilled and uninformed in the
examination of the patient as he regards as sufficient to indicate to him the practice of medicine and does not possess the qualifications required by law
cause of the trouble, and to indicate its proper treatment, he has diagnosed to practice medicine in Missouri; and that he had engaged in business as a
the case." And, after reviewing the development of the law, the court held naturopathic physician or doctor and professed to treat the sick and afflicted
(135 S.W. loc. cit. 468(3)) that the words "or to treat the sick or afflicted," and practiced medicine within the provisions of our Medical Practice Act from
made obvious the legislative intent "to include those who practice neither day to day in Kansas City, Missouri, in 1953 and the last of 1952, if not prior
medicine nor surgery in any of its departments, but who profess to cure, and thereto. The facts bring the instant case within State ex rel. Collet v.
who treat or attempt to treat, the sick by means other than medicine or Scopel, Mo., 316 S.W.2d 515, wherein the judgment of the trial court was
surgery." See State ex rel. Collet v. Scopel, Mo., 316 S.W.2d 515. It has been reversed and the cause remanded with directions to enjoin defendant from
stated that "naturopathy is simply one of the methods of practicing practicing naturopathy on the ground such practice by said defendant
medicine." Hahn v. State, Wyo., 322 P.2d 896, 900 [7]. constituted a public nuisance. "`A public or common nuisance is an offense
against the public order and economy of the state by unlawfully doing any
The case of State v. Davis, 194 Mo. 485, 92 S.W. 484, 489, 4 L.R.A., N.S., act or by omitting to perform any duty which the common good, public
1023, was a prosecution under Laws 1901, p. 207. The court overruled decency, or morals, or the public right to life, health, and the use of property
defendant's contention that the Act was unconstitutional and void in that it requires, and which at the same time annoys, injures, endangers, renders
deprived him of a vested right to practice medicine in this State. Defendant insecure, interferes with, or obstructs the rights or property of the whole
had moved to Illinois after practicing medicine in Missourifor a number of community, or neighborhood, or of any considerable number of persons,
years and would return to Missouri periodically and meet, prescribe for, and even though the extent of the annoyance, injury, or damage may be unequal
treat patients consulting him. The court said: "This law does not undertake or may vary in its effect upon individuals.'" State ex rel. Crow v. Canty,
to deprive any person of a vested right, for there can be no such thing as a 207 Mo. 439, 449, 105 S.W. 1078, 1080, 15 L.R.A., N.S., 747, quoted in the
vested right in the practice of medicine. It does not undertake to suppress or Scopel case, supra. The case presents an issue involving the public health
prohibit the practice of medicine or surgery, nor to prohibit any particular and safety. State v. Smith, 233 Mo. 242, 268, 135 S.W. 465, 472, 33 L.R.A.,
person from practicing as a physician or surgeon, but it simply undertakes N.S., 179, approving Ex parte Lucas, 160 Mo. 218, 232, 61 S.W. 218, 222,
to require the necessary and essential qualifications for that purpose." See considered that our Medical Practice Act was enacted not alone to punish
also State v. Smith, supra, 135 S.W. loc. cit. those violating its provisions but also for the protection of the public and
470(6); State v. Evertz, Mo., 190 S.W. 287; State ex rel. Collet v. credulous sick persons from those not qualifying under the law to practice
Scopel, Mo., 316 S.W.2d 515; Hitchcock v. Collenberg, D.C. Md., 140 medicine or treat the sick and afflicted. The instant record establishes a
F.Supp. 894, affirmed 353 U.S. 919, 77 S.Ct. 679, 1 L.Ed.2d 718; Dantzler v. continuous and habitual violation of our Medical Practice Act and the
Callison, 230 S.C. 75, 94 S.E.2d 177, appeal dismissed 352 U.S. 939, 77 declared public policy of the State by one not qualified to practice medicine
S.Ct. 263, 1 L.Ed.2d 235. Medical practice acts are upheld as valid exercises in Missouri; and we conclude that defendant's acts constitute a public
of the police power for the protection of the public health and safety. nuisance. See the ruling in the Scopel case on this issue.
The evidence in the instant case established that defendant advertised that The decree of the trial court is reversed and the cause is remanded with
he was a doctor and physician; that defendant maintained a place of directions to find the issues for the plaintiff and permanently enjoin
business in Missouri where, for a consideration, he consulted with patients, defendant in accordance with the prayer of plaintiff's petition.
made examinations, diagnosed their condition, prescribed and treated them
for the sicknesses, diseases, and infirmities of their bodies. Clearly, what BARRETT and STOCKARD, CC., concur.
defendant was doing was within the prohibitions of our Medical Practice Act.
[28] PER CURIAM.
Is the State entitled to injunctive relief? The evidence in the instant case
established, in addition to what is stated in the preceding paragraph, that The foregoing opinion by BOHLING, C., is adopted as the opinion of the
defendant never possessed a license from the State Board of Medical court.
Examiners to practice medicine and never had been a registered physician in
Legal Medicine – Atty. Luansing

Hitchcock Anyone practicing medicine or surgery in Maryland without having obtained

a license from one of these boards is guilty of a misdemeanor; so is a person
v. who practices medicine or surgery without being registered. Secs. 126, 127,
128, 131, 136.
Collenberg,
Sec. 138 defines "practicing medicine" as follows:
140 F. Supp. 894 (D. Md. 1956)
 

"Any person shall be regarded as practicing medicine within the meaning of

THOMSEN, District Judge.
this sub-title who shall append to his or her name the words or letters `Dr.,'
The Court of Appeals of Maryland has held that naturopathic practitioners `Doctor,' `M.D.,' or any other title in connection with his name, with the
are "practicing medicine", as that term is defined in the State Medical intent thereby to imply that he or she is engaged in the art or science of
Practice Act, Annotated Code of Maryland, 1951 ed., Art. 43, Secs. 117-147, healing, or in the practice of medicine in any of its branches, or who shall
and that a person desiring to engage in the healing art by the practice of operate on, profess to heal, prescribe for, or otherwise treat any physical or
naturopathy may not do so without a license from one of the two State mental ailment or supposed mental ailment of another, or who shall for hire
Boards of Medical Examiners. Aitchison v. State, 204 Md. 538, 105 A.2d or for any gratuity or compensation, either directly or indirectly to him or her
495, certiorari denied 348 U.S. 880, 75 S. Ct. 116, 99 L. Ed. 692. paid, undertake by any appliance, operation or treatment of whatever nature,
to cure, heal or treat any bodily or mental ailment or supposed ailment of
The complaint in the instant case is filed by Dr. Kenneth C. Hitchcock, a another; or who for any hire, gratuity or compensation, either directly or
naturopathic practitioner; the Maryland Naturopathic Association; and two indirectly to him or her paid, by or for any patient, shall undertake to treat,
Maryland residents, one Pennsylvania resident and one Ohio resident, who heal, cure, drive away or remove any physical or mental ailment, or
regularly engage, and intend to continue to engage, naturopathic supposed ailment of another, by mental or other process, exercised or
practitioners of Maryland to assist them in diagnosing and treating their invoked on the part of either the healer or the patient or both; * * *."
physical ills and ailments. They seek a ruling that the Act was improperly
construed by the Maryland court, or that, as so construed, it violates A proviso makes the following exceptions to the foregoing definition: (1)
plaintiffs' rights under Articles 4 and 6 of the Constitution of the United gratuitous services; (2) resident and assistant resident physicians and
States, the 14th Amendment thereto, the anti-trust laws, the Maryland students at hospitals in the discharge of their hospital or dispensary duties
Declaration of Rights and the State Constitution. and in the offices of physicians; (3) physicians and surgeons from another
State when in actual consultation with a practitioner of this State; (4)
The defendants are the members of the two Maryland Boards of Medical commissioned surgeons of the United States Army, Navy or insane hospital
Examiners, the Attorney General of the *896State, the State's Attorney for service; (5) opticians; (6) chiropodists; (7) midwives; (8) masseurs or other
Baltimore City and the Police Commissioner of that City. They have moved to manual manipulators who use no other means; (9) physicians and surgeons
dismiss the complaint. residing on the border of a neighboring State and authorized to practice
medicine and surgery therein, whose practice extends into this State; (10)
Art. 43 of the Maryland Code is entitled "Health". The State Medical Practice
dentists; and (11) the sale by druggists of proprietary or patent medicines or
Act, sec. 117 et seq., was originally adopted in 1888 and has been amended
any official or standard drug or medicine.
a number of times.[1] It provides for two Boards of Medical Examiners
authorized to issue licenses for the practice of medicine and surgery. The Before the passage of the Medical Practice Act, the Legislature had adopted
members of one board are appointed by the Medical and Chirurgical Faculty in 1884 special regulations for the practice of dentistry, Code Art. 32; it has
of Maryland, the members of the other by the Maryland State Homeopathic since prescribed special regulations for the practice of optometry (1914),
Medical Society. Sec. 118. A person receiving a license from either board is osteopathy (1914), chiropody (1916), chiropractic (1920), and physical
directed to file it with the Clerk of the Circuit Court, who registers the name therapy (1947). An optometrist obtains his license from the Board of
of the licensee and the name of the president of the board signing the license.
Legal Medicine – Atty. Luansing

Examiners of Optometry, Art. 43, secs. 346-364; an osteopath from the Dr. Hitchcock holds a Bachelor of Arts degree from the University of Florida
Board of Osteopathic *897 Examiners, secs. 428-441; a chiropodist from (1918) and a Doctor of Naturopathy degree from the Blumer College of
the Board of Chiropody Examiners, secs. 442-455; a chiropractor from the Naturopathy, of Hartford, Connecticut (1921). He was granted a license to
State Board of Chiropractic Examiners, secs. 460-475; and a physical practice naturopathy by the Connecticut State Board of Naturopathic
therapist from the State Board of Physical Therapy Examiners, secs. 565- Examiners in 1923 and similar licenses by the Florida State Board of
575. Art. 43 also contains provisions regulating funeral directors and Naturopathic Examiners in 1939 and the South Carolina Board of
embalmers, pharmacists, barbers, registered nurses, plumbers, practical Naturopathic Examiners in 1932.[2] He has practiced naturopathy openly in
nurses, midwives, hairdressers and beauty culturists, including the practice Maryland since 1939. He is president of the Maryland Naturopathic
of trichology. Association, which, in 1948, filed a bill in equity against the Board of Medical
Examiners in the Circuit Court No. 2 of Baltimore City for an injunction and
No special provisions have been made for the licensing of naturopaths, a decree declaring that the system of healing known as naturopathy is not
naturopathic physicians or practitioners of naturopathy, although numerous included in the practice of medicine as regulated by the State Medical
bills have been introduced in the Legislature since 1939. After the decision of Practice Act. A decree dismissing the bill was affirmed by the Court of
the Court of Appeals in the Aitchison case in 1954, a bill was introduced in Appeals of Maryland on the ground that the association had no property
the Maryland Legislature in 1955, known as House Bill 129, which, if it had interests which might have been affected by any of the alleged acts of the
been enacted, would have added twelve new sections to Art. 43, creating a defendants. Maryland Naturopathic *898 Association v. Kloman, 191 Md.
Board of Naturopathic Examiners, providing for the licensing of naturopathic 626, 628, 62 A.2d 538.
physicians, and relating generally to the practice of naturopathy. That bill
contained the following definition of naturopathy: Thereupon Dr. Hitchcock himself filed a bill in equity against the Board of
Medical Examiners, the Police Commissioner and the State's Attorney for a
  declaratory decree and injunction. The decree dismissing that bill was
affirmed by the Court of Appeals because "`the general rule is that equity will
"For the purposes of this sub-title naturopathy is hereby defined to be one of
not interfere to prevent the enforcement of a criminal statute even though
the healing arts whose scope, purposes and methods of practice are as
unconstitutional. * * * The mere existence of a criminal statute is not such a
follows: Naturopathy is a system of healing for the prevention, diagnosis, care
threat as to present a justiciable controversy.'" Hitchcock v. Kloman, 196 Md.
and treatment of injuries, deformities, ailments, diseases and abnormalities
351, 356, 76 A.2d 582, 584.
of the human mind and body by means of such arts, sciences, methods and
agencies of healing as make use of the healing properties and principles Dr. Hitchcock then applied in writing to the State Board of Medical
inherent in air, sunshine, light, electricity, heat, cold, climate, water, earths, Examiners for a license to practice naturopathy. The Secretary of the Board
exercise, work, rest, recreation, sweats, baths, packs, irrigations, inhalations, in a letter dated July 1, 1954, replied, in part, as follows:
manipulations, corrective gymnastics, psychology, physics, mechanics, bio-
chemistry, dietetics, enzymes, vitamins, minerals, tissue salts and  
substances naturally found in or required by the body, oxygen, ozone, herbs,
external applications, apparatus, appliances, mental hygiene, physical "* * * We are informed by the office of the Attorney General that the Court of
culture, first aid, hygiene and sanitation; provided, however, that except as Appeals did not mean to imply that the State Board of Medical Examiners is
hereinbefore specified, the practice of naturopathy shall not include the use authorized to license Naturopaths as such without regard to the
of drugs, surgery, destructively radioactive substances, or x-rays, except for requirements of the Medical Practice Act. In order to be licensed by this
diagnostic purposes." Board it is necessary that you meet the requirements for the licensing of
those who desire to practice medicine."
It is apparent from this definition that the practice of naturopathy comes
within the definition of "practicing medicine" in sec. 138, quoted above. An amendment to the complaint in the instant case alleges that since the
filing of the original complaint Dr. Hitchcock has been arrested by officers of
the Police Department of Baltimore City on the charge of practicing medicine
Legal Medicine – Atty. Luansing

without a license. After waiving a preliminary hearing, he was released on preventing them from selecting the system of the healing art which they
bail and held for the action of the grand jury. The grand jury has returned a desire, and from deriving "the benefits accruing from the non-medical and
presentment, but the State's Attorney has delayed preparing an indictment non-surgical system known as naturopathy". But the Maryland statute does
because of the pendency of this case, and Dr. Hitchcock is now on bail. An not prevent plaintiffs from applying the tenets of naturopathy in their
additional prayer has been added seeking an injunction against the State's treatment of themselves and their families, nor from receiving any
Attorney from proceeding with the prosecution on that charge. naturopathic treatment which is gratuitously rendered, nor from receiving
naturopathic treatment for a fee provided the naturopath or naturopathic
The complaint in this case contains forty-four numbered paragraphs, with practitioner meets the qualifications established by the State of Maryland as
many sub-paragraphs, and twenty-five, now twenty-six, separate prayers for necessary for anyone who undertakes to heal the public for a fee. The
relief. Aside from the matters set out above, it contains an elaborate Maryland law does not prohibit the practice of naturopathy. Any person who
statement of the history and principles of naturopathy, which amplifies the has met the qualifications necessary to secure a license to practice medicine,
statement in House Bill No. 129, quoted above, and makes it even more clear i. e. to engage in the art or science of healing, may apply the principles of
that the practice of naturopathy comes within the definition of "practicing naturopathy in his practice. Maryland has simply established certain
medicine" in Art. 43, Sec. 138 of the Maryland Code. requirements which must be met by any person who undertakes to practice
medicine, as that term is defined in Art. 43, sec. 138, which includes "not
The salvos fired by the plaintiffs against the Maryland Act raise a great
only the application of medicine to patients, but any practice of the art of
variety of points. Many of them deal with the proper construction of the Act
healing disease and preserving the health other than those special branches
and with the contention that it violates the Maryland Declaration of Rights
of the art that were expressly excepted." Aitchison v. State, supra, 204 Md. at
and the State Constitution. Those questions cannot be considered in this
page 538, 105 A.2d at page 499. The Maryland Court cited in support of this
case. They do not involve rights claimed under the Constitution and laws of
decision Commonwealth v. Zimmerman, 221 Mass. 184, 108 N.E. 893, and
the United States; there is no requisite of diversity of citizenship to give this
Collins v. Texas, 223 U.S. 288, 32 S. Ct. 286, 56 L. Ed. 439, and might have
court jurisdiction of non-Federal questions; and if there were, we would be
cited others, e. g. State v. Henning, 83 Ohio App. 445, 78 N.E.2d 588, appeal
bound by the decision of the Court of Appeals of Maryland, which has
dismissed 150 Ohio St. 48, 80 N.E.2d 164; Louisiana State Bd. of Medical
passed on all of them. Aitchison v. State, 204 Md. 538, 105 A.2d 495,
Examiners v. Fife, 162 La. 681, 111 So. 58, 54 A.L.R. 594, affirmed sub nom
certiorari denied 348 U.S. 880, 75 S. Ct. 116, 99 L. Ed. 692; Watson v. State
Fife v. State of Louisiana, 274 U.S. 720, 47 S. Ct. 590, 71 L. Ed. 1324.
of Maryland, 218 U.S. 173, 175, 177, 30 S. Ct. 644, 54 L. Ed. 987.
Decisions to the contrary in other states, cited by plaintiffs herein, cannot
We have jurisdiction, however, to consider plaintiffs' contentions that affect our decision, since we are bound by the contruction of the statute
fundamental rights guaranteed by the Federal Constitution are violated. given by the Maryland court.
Watson v. State of Maryland, 218 U.S. 173, 175, 177, 30 S. Ct. 644, 54 L.
Requirements similar to the Maryland requirements have been repeatedly
Ed. 987; Truax v. Raich, 239 U.S. 33, 36 S. Ct. 7, 60 L. Ed. 131; Crane v.
approved, for the reasons stated in the leading case of Dent v. State of West
Johnson, 242 U.S. 339, 37 S. Ct. 176, 61 L. Ed. 348; McNaughton v.
Virginia, 129 U.S. 114, at page 122, 9 S. Ct. 231, at page 233, 32 L.Ed. 623:
Johnson, 242 U.S. 344, 37 S. Ct. 178, 61 L. Ed. 352. Cf. Watson v.
Buck, 313 U.S. 387, 61 S. Ct. 962, 85 L. Ed. 1416. The disagreement  
between the parties is no longer nebulous or contingent.
"Few professions require more careful preparation by one who seeks to enter
The individual plaintiffs, other than Dr. Hitchcock, contend that the it than that of medicine. It has to deal with all those subtle and mysterious
enforcement of the Maryland law is tantamount to a prohibition of the influences upon which health and life depend, and requires not only a
practice *899 of naturopathy in Maryland by the only practitioners properly knowledge of the properties of vegetable and mineral substances, but of the
trained to administer "this form of health services", deprives them of the human body in all its complicated parts, and their relation to each other, as
benefits of naturopathy in Maryland which are enjoyed by the residents of well as their influence upon the mind. The physician must be able to detect
other States, threatens their health and happiness, causes them irreparable readily the presence of disease, and prescribe appropriate remedies for its
harm, injury and damage, and violates their personal and civil rights by removal. Every one may have occasion to consult him, but comparatively few
Legal Medicine – Atty. Luansing

can judge of the qualifications of learning and skill which he possesses. the public or inherently harmful, and (3) unfairly discriminates against
Reliance must be placed upon the assurance given by his license, issued by naturopaths by conferring exclusive jurisdiction over them on their medical
an authority competent to judge in that respect, that he possesses the competitors.
requisite qualifications. Due consideration, therefore, for the protection of
society may well induce the state to exclude from practice those who have They also claim that the Maryland law discriminates against naturopaths in
not such a license, or who are found upon examination not to be fully that it contains special provisions for the licensing of osteopaths, physical
qualified." therapists, chiropractors, optometrists and chiropodists, and does not
contain similar provisions for naturopaths.
That some other states permit the licensing of naturopaths as such, without
requiring them to meet the qualifications which Maryland requires, does not These and similar contentions have been before the courts on many
mean that the Maryland act abridges the rights of anyone, whether a occasions. In Watson v. State of Maryland, 218 U.S. 173, at page 176, 30 S.
Maryland *900resident or not, who would like to be treated in Maryland by a Ct. 644, at page 646, 54 L. Ed. 987, involving the very statute at issue here,
naturopath who has not met the Maryland requirements. The fact that one the Supreme Court said:
or more states may have lowered the bars which protect the public from ill-
 
trained practitioners of the healing art does not render other states impotent
to protect their own residents. Regulations of a particular trade or business "It is too well settled to require discussion at this day that the police power of
essential to the public health and safety are within the legislative capacity of the states extends to the regulation of certain trades and callings, particularly
the state in the exercise of its police power, and unless such regulations are those which closely concern the public health. There is perhaps no
so unreasonable and extravagant as to interfere with property and personal profession more properly open to such regulation than that which embraces
rights of citizens unnecessarily and arbitrarily, they are within the power of the practitioners of medicine. Dealing, as its followers do, with the lives and
the state. Williams v. State of Arkansas, 217 U.S. 79, 30 S. Ct. 493, 54 L. health of the people, and requiring for its successful practice general
Ed. 673. This principle was applied to the practice of medicine in a case education and technical skill, as well as good character, it is obviously one of
involving the Maryland Medical Practice Act. Watson v. State of those vocations where the power of the state may be exerted to see that only
Maryland, 218 U.S. 173, 178, 30 S. Ct. 644, 54 L. Ed. 987. See also: Dent v. properly qualified persons shall undertake its responsible and difficult
State of West Virginia, 129 U.S. 114, 9 S. Ct. 231, 32 L. Ed. 623; Hawker v. duties."
People of State of New York, 170 U.S. 189, 18 S. Ct. 573, 42 L. Ed. 1002;
Graves v. State of Minnesota, 272 U.S. 425, 47 S. Ct. 122, 71 L. Ed. 331; The plaintiff in that case argued that the Maryland statute denied him the
Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 55 S. Ct. equal protection of the laws, in making unreasonable and arbitrary
570, 79 L. Ed. 1086; Garner v. Board of Public Works of City of Los distinctions in the classification of physicians, and in making unreasonable
Angeles, 341 U.S. 716, 71 S. Ct. 909, 95 L. Ed. 1317. omissions of certain classes from the requirements of the act. The Supreme
Court rejected this contention, applying the rule that *901"the classification
Plaintiffs claim that the Maryland Medical Practice Act, as interpreted and of the subjects of such legislation, so long as such classification has a
enforced by the Maryland courts and by the defendants herein, abridges reasonable basis, and is not merely arbitrary selection without real difference
their privileges and immunities, deprives them of property without due between the subjects included and those omitted from the law, does not deny
process of law, and denies them the equal protection of the laws, in violation to the citizen the equal protection of the laws." 218 U.S. at page 178, 30 S.Ct.
of Art. 4, Sec. 2, and Art. 6 of the Constitution of the United States, and Sec. at page 646.
1 of the 14th Amendment. They seek a declaratory decree and an injunction
under Title 28 U.S.C.A. §§ 1331, 1332, 1337, 1343, 2201 and 2202, and Discussing the exceptions in what is now Art. 43, Sec. 138 of the Maryland
under the civil rights acts, Title 42 U.S.C.A. §§ 1983-1985. They contend that Code, the Supreme Court said:
the act is an invalid exercise of the police power, and is arbitrary,
 
unreasonable and discriminatory in that (1) it arbitrarily requires
naturopaths to pass examinations in non-naturopathic subjects, (2)
prohibits the practice of naturopathy without showing it to be detrimental to
Legal Medicine – Atty. Luansing

"* * * We shall not take occasion to consider each of these exceptions. A the operation of the general law and were not required to take a full course in
reading of them makes it manifest that they are not without reason. Before a materia medica, surgery, etc., the general law was unconstitutional because
law of this kind can be declared violative of the 14th Amendment as an it discriminated against chiropractors by not granting them similar privileges.
unreasonable classification of the subjects of such legislation because of the The Louisiana court held, however, that since the legislature is not called
omission of certain classes, the court must be able to say that there is `no upon to recognize every school of medicine and to deal with it as such,
fair reason for the law that would not require with equal force its extension to defendants could not complain, on the ground of being unjustly
others whom it leaves untouched.' Such was the expression of this court in discriminated against, that the legislature had not deemed it proper to
Missouri, Kansas & Texas R. Co. [of Texas] v. May, 194 U.S. [267] 269, 24 S. recognize their school of medicine and make special provision for those
Ct. 638, 48 L.Ed. [971] 972, quoted with approval in Williams v. [State of] desiring to practice that system by prescribing a *902 course of study in
Arkansas, supra." 218 U.S. at page 179, 30 S.Ct. at page 647. accord with the theories which it holds for restoring health. The court cited,
inter alia, Johnson v. State, Tex.Civ.App., 267 S.W. 1057, and State v.
Other cases have applied the same principles to complaints by chiropractors Morrison, 98 W.Va. 289, 127 S.E. 75.
and naturopaths, who complained because special provisions were not made
for them. Aitchison v. State, 204 Md. 538, 105 A.2d 495, certiorari denied In Aitchison v. State, supra, the Maryland court said:
348 U.S. 880, 75 S. Ct. 116, 99 L. Ed. 692; Louisiana State Bd. of Medical
Examiners v. Fife, 162 La. 681, 111 So. 58, 54 A.L.R. 594, affirmed sub nom  
Fife v. State of Louisiana, 274 U.S. 720, 47 S. Ct. 590, 71 L. Ed. 1324, and
"It is beyond question that the State has the power to regulate any of the
cases cited therein.
special systems or branches of the medical art independent of the general
In Louisiana State Board v. Fife, supra, defendant chiropractors contended practice of medicine. The regulations adopted by the State, in the exercise of
that they were deprived of liberty and property without due process of law the power to regulate the treatment of disease, need not be uniform with
because they were required to stand an examination in surgery and materia respect to all methods and systems of practice, but distinctions may be made
medica. They complained that those who practice chiropractic have no need and schools or methods of practice may be exempted from the regulations or
for those subjects, which bear no relation to that system. The Louisiana subjected to peculiar regulations as long as the discrimination is not
court observed that no person has a natural or absolute right to practice arbitrary or unreasonable." 204 Md. at page 549, 105 A.2d at page 500,
medicine or surgery, but that it is a right granted upon conditions and that a citing Crane v. Johnson, 242 U.S. 339, 37 S. Ct. 176, 61 L. Ed. 348, and a
state, under its police power, may regulate within reasonable bounds, for the number of State court cases.
protection of the public health, the practice of either, by defining the
The special provisions of Art. 43 of the Maryland Code for the practice of
qualifications which one must possess before being admitted to practice. The
optometry, osteopathy, chiropody, chiropractic and physical therapy limit in
court recognized that the legislature, in defining the qualifications required,
every case the type of treatment which the practitioner is authorized to
cannot prescribe, as a condition of the right to practice, knowledge of a
administer; with respect to optometry and chiropody, the ills and diseased
subject which bears no relation to the practice of medicine; but the court
conditions which may be treated are strictly limited; and physical therapists
held that this does not mean that the legislature must make requirements
may treat under their license only patients diagnosed and referred by
such as to provide for every school of medicine that may exist, by requiring of
licensed medical doctors. The Maryland legislature had the right to provide
those belonging to each particular school a knowledge only of those subjects
special regulations for these groups and to refuse to provide similar special
which the theory of healing advocated and put in operation by each school
regulations for naturopaths, who undertake to treat any and all diseases in a
requires. Were it otherwise, the legislature would be greatly hampered in the
wide variety of fashions.
exercise of its power to protect the general health and the public from
imposition and fraud. This is good law and good sense in Maryland as well as Plaintiffs contend that the Act is void because of vagueness in that it does not
Louisiana. stipulate which of the two State Boards of Medical Examiners "shall have
jurisdiction over this system of healing". The Act provides for two boards, one
Another contention of defendants in the Louisiana case was that since
appointed by the Medical and Chirurgical Faculty and the other appointed
osteopaths, dentists, chiropodists and trained nurses were exempted from
Legal Medicine – Atty. Luansing

by the Homeopathic Society. Sec. 118. A person who wishes to obtain a

license to practice medicine in Maryland may apply to either board. The fact
that naturopaths, such as the plaintiff Hitchcock, along with all others who
desire to practice medicine in Maryland, are given the choice of applying to
either one of two boards does not deprive them of any rights and privileges
they would have if the statute designated the particular board to which they
must apply, or if the statute provided for a single board.

Plaintiffs contend that the Maryland act, as interpreted by the Maryland

court, violates the anti-trust laws, Title 15 U.S.C.A. §§ 1-27, 44, in that it
grants the exclusive privilege of practicing medicine and surgery to persons
licensed by the State Board of Medical Examiners, and thus establishes
medicine as the preferred State system of healing, and curbs the progress of
the art of maintaining health in the fields not specially regulated by the
statute. The complete answer to this contention is that the anti-trust laws
deal with individual activity and not with State activity, Parker v. Brown, 317
U.S. 341, 350, 63 S. Ct. 307, 87 L. Ed. 315; whereas all of the matters
charged in the complaint as violative of the anti-trust laws are regulations
prescribed by the Maryland legislature.

The amended complaint alleges no facts entitling the plaintiffs to any relief in
this case, and must be dismissed, with costs.
Legal Medicine – Atty. Luansing

DR. M.S. DANTZLER, Individually and as President of the South "Section 1. Sections 56-901 through 56-919, Code of Laws of South
Carolina Naturopathic Physicians Association, et al., Plaintiffs, Carolina, 1952, are hereby repealed.
v.
T.C. CALLISON, Attorney General at South Carolina, Defendant. "Section 2. It shall be unlawful for any person whether heretofore licensed or
not under the laws of this or any other state to practice naturopathy in this
State; Provided, however, that any person now authorized to practice
naturopathy in South Carolina who is a graduate of an accredited college for
COMPLAINT pre-medical training and who has, in addition thereto, graduated from a
medical college recognized at the time of his graduation by the state in which
Plaintiffs complaining of the defendant allege:
it was located, and who has heretofore for a period in excess of five years
1. Plaintiffs are citizens of the United States of America and the State of engaged in the practice of medicine in the State of South Carolina under the
South Carolina and are officers and members of the South Carolian supervision of a licensed medical doctor by special request or by special
Naturopathic Association, Inc., a Corporation created under the laws of the permission of the State Board of Medical Examiners, or agents thereof, shall
State of South Carolina. This action is brought by plaintiffs in their official be examined by the State Board of Medical Examiners on the same basis as
capacity, and also individually for the benefit of themselves and all members other applicants to the Board are examined, and upon the making of a
of the Association and all duly licensees who are practicing in the State passing grade on this examination, shall be licensed to practice medicine in
under a duly issued and lawful license. Membership in the Association is this State.
confined solely and exclusively to regularly licensed Naturopathic
"Section 3. Any person violating the provisions of Section 2 of this act shall,
Practitioners in South Carolina. Doctors M.S. Dantzler and J.B. Branyon and
upon conviction, be guilty of a misdemeanor and be fined not exceeding five
W.T. Bidwell are the Board of Examiners. All of the plaintiffs as individuals
hundred dollars *82 or be imprisoned for a period of not exceeding one year
have been naturopathic physicians under the law of South Carolina since
or both in the discretion of the court.
1937. All of the licensed Naturopathic Physicians in south Carolina, except
the last ten licensees, were admitted to practice in compliance with the law "Section 4. All acts or parts of acts inconsistent herewith are hereby repealed.
prior to June, 1946. The last ten practitioners were admitted under the
amended Naturopathy Act of 1949, which greatly increased the education "Section 5. This act shall take effect upon its approval by the Governor. [In
and professional qualification of applicants. the Senate House the 23rd day of February In the Year of Our Lord One
Thousand Nine Hundred and Fifty-six.]
2. The defendant, Honorable T.C. Callison, is Attorney General of South
Carolina, and is made a party defendant in *81 pursuance of Section 10- 3. Plaintiffs allege that the act in question is in violation of their rights as
2008 of the South Carolina Code of 1952, as this is an action seeking a citizens of the United States of America and of South Carolina as provided in
declaratory judgment as to the rights of the plaintiffs and to declare the Fifth and Fourteenth Amendments of the United States Constitution in
unconstitutional the Act of the General Assembly of South Carolina as that it deprives the plaintiffs of their property and property rights without due
follows: process of law, and denies them of the equal protection of the laws and is
arbitrary and discriminatory in that it singles out naturopathy, one of a
"An Act To Repeal Sections 56-901 Through 56-919, Code Of Laws Of South number of special practitioners in the art of healing and abolishes their
Carolina, 1952, Relating To The Practice of Naturopathy; To Make It profession only.
Unlawful For Certain Persons To Practice Naturopathy In This State; And To
Provide Penalties For Violating The Provisions Of This Act." 4. Plaintiffs further allege that the Act in question violiates the following
provisions of the Constitution of the State of South Carolina: Article 1,
The body of the Act reads as follows: Section 5; Article 1, Section 17, and Section 17, Article 3 in that said Act
deprives plaintiffs of their property and property rights without due process
"Be it enacted by the General Assembly of the State of South Carolina:
of law and denies them of the equal protection of the laws and is arbitrary
and discriminatory in that it singles out naturopathy, one of a number of
Legal Medicine – Atty. Luansing

special practitioners in the art of healing and abolishes their profession only. declare the same null and *84 void because of its violation of plaintiffs'
With reference to Section 17, Article 3 of the Constitution of South Carolina constitutional rights.
of 1895 plaintiffs allege that the Act violates this Section in that it relates to
more than one subject which is not expressed in the title. The proviso in the Wherefore, plaintiffs pray for relief as follows:
Act deals with a specific provision for the licensing of medical doctors, which
(1) A judgment of this Court declaring the aforesaid Act to be
in no way has any connection with the title of the Act and such proviso
unconstitutional and therefore null and void;
discriminates within the Naturopathic Practitioners.
(2) For a judgment by the Court declaring the rights of the plaintiffs and to
5. Plaintiffs further allege that all of the Naturopathic Physicians in South
order and command the Attorney General and all law enforcement officers in
Caarolina entered the practice as a *83 means of livelihood for themselves
the State of South Carolina not to in any manner interfere with the plaintiffs
and to support their families. They have invested much time and great sums
in the practice of their lawful profession;
of money, more or less, in perfecting themselves for the practice of their
profession. Section 56-901 of the South Carolina Code of 1952 defines (3) For such other and further relief as the plaintiffs may be entitled to under
Naturopathy as follows: the circumstances of this case.

"`Naturopathy' is hereby defined to mean the use and practice of ANSWER

phychological, mechanical and material health sciences to aid in purifying,
cleaning and normalizing human tissues for preservation or restoration of The Defendant, T.C. Callison, Attorney General of the State of South
health according to the fundamental principles of anatomy, physiology and Carolina, answering the Complaint herein, respectfully shows to the Court:
applied psychology, as may be required. Naturopathic practice employs,
1. That he denies all allegations of the Complaint not hereinafter admitted,
among other agencies, heat, light, water, electricity, psychology, diet,
qualified or explained.
massage and other manipulative methods."
2. That, upon information and belief, he admits the allegations of Paragraph
Naturopathy has been recognized by the Legislative Law of South Carolina
1 of the Complaint.
since the Medical Practice Act of March 10, 1920, and to do the things
permitted under the Act of necessity requires the use of equipment for the 3. That he admits the allegations of Paragraph 2 of the Complaint.
employment of such agencies as heat, light, water, electricity, psychology,
diet, massage and other manipulative methods and all of the plaintiffs and 4. That he denies the allegations of Paragraphs 3 and 4 of the Complaint.
those whom they represent have spent large amounts of money, more or
less, in the purchase of necessary equipment, which they use in the practice 5. Answering Paragraph 5 of the Complaint upon information and belief, this
of their profession. [BAD TEXT] admits that the plaintiffs are claiming to be [BAD TEXT]
physicians practicing in South Carolina as a means of [BAD TEXT] and as a
6. Plaintiffs recognize the right of the Legislature to regulate their profession means of support to their families. The defendant admits that Sec. 56-901 of
by the passage of any regulatory methods within the constitutional limits. the 1952 Code of the State as amended, reads as set out and that
Plaintiffs allege, however, that the above entitled Act destroys their profession Naturopathy has been recognized in various forms in the State since 1920;
and means of livelihood and would make acts which are perfectly lawful to further, upon information and belief, this defendant admits the use of such
become criminal acts subject to punishment by the court upon conviction. equipment, as is referred to in Paragraph 5 of the Complaint, is employed by
The Act in question is prohibitory and not regulatory in a field of Medical Naturopaths but has no knowledge of the sums invested therein.
practice and/or art of healing that could be and can be properly regulated.
*85 6. This defendant admits so much of Paragraph 6 of the Complaint as
7. That plaintiffs are entitled to have the Supreme Court declare their rights alleges that the Act in question destroys the practice of Naturopathy as a
and to pass upon the constitutionality of the above statute and to further separate cult, branch or profession of the healing art, and admits that it
makes unlawful certain acts by plaintiffs, otherwise lawful, but lawful only to
those qualified as general medical prectitioners, or those qualified in
Legal Medicine – Atty. Luansing

specialized branches of the healing arts under the requirements of our laws, 11. That the Act in question does not prevent plaintiffs from practicing any
but the defendant alleges that the provisions of the said Act, the purpose of lawful branch or type of healing formerly open to them as Naturopaths, as
which is to protect the public's health and welfare, are within the police they may still, upon qualifying as medical doctors under the laws of this
power of the State, are a valid exercise of said police power, and are neither State, practice all lawful forms of healing and treatment, the Act making
arbitrary nor discriminatory. special provisions for those who have had proper medical training to take the
examinations provided for medical doctors, with other laws leaving open the
7. Further answering the Complaint, this defendant alleges that the State taking of these examinations by those who qualify themselves therefor
has a vital concern in the health of everyone within its borders, the practice hereafter.
of medicine and healing being one of the fields peculiarly subject to control
and regulation under the police powers of this and every other government. 12. That the Act attacked by the plaintiffs applies equally to all persons now
That the practice of medicine and of the healing arts can be lawfully practicing Naturopathy and that said classification is reasonable, operating
prohibited by the State except upon the conditions imposed by it, which said alike on all within its provisions. That the Act is not discriminatory and does
conditions are subject to change from time to time to keep pace with the not deny the equal protection of the law to those within the class upon which
advance of educational and scientific progress, the plaintiffs and no other it operates, there being no duty upon the State to recognize all peculiar
persons having any fundamental or property rights to engage in any form of schools and groups of those seeking to practice healing arts.
the healing arts free from regulation, such as is true of those employments
and trades not peculiarly within the concern of the police power. 13. That the practice of medicine is not a Federal privilege or immunity
within the purview of the Fourteenth Amendment to the Constitution of the
8. That the plaintiffs have no contractual or property right granted to them United States, and is peculiarly within the control of the State and not of the
by any pre-existing laws of this State allowing the practice of Naturopathy or United States.
granting licenses to them which are not subject to modification or denial in
the proper exercise of the police power of the State in its promotion of the 14. That the title of the Act clearly shows its purpose and discloses to anyone
public health, plaintiffs' licenses creating in them no permanent or vested interested that it is prohibiting the practice *87 of Naturopathy in this State,
interest, such licenses not being within the inhibition against impairment of relating to that one subject or matters fully germane thereto, in accordance
contract, and being revocable under the police power at the discretion of the with the provisions of Article III, Section 17 of the Constitution of this State.
sovereignty.
Wherefore, this defendant prays that the Honorable Court do adjudge and
9. That the mere fact that the plaintiffs may suffer pecuniary injury because decree that the Act in question is constitutional and valid in all respects and
of the proper exercise of the police *86 power of the State in forbidding the binding upon the plaintiffs and all others seeking to practice any form of the
practice of Naturopathy in South Carolina, does not render the Act so-called Naturopathic Profession.
unconstitutional, because all private property is held and all callings are
August 20, 1956.
exercised in this State subject to the proper exercise of the police power of the
State. T.B. GRENEKER, Acting Associate Justice.

10. That the prohibition of the practice of Naturopathy as a separate branch This action was brought in the original jurisdiction of this Court, and as the
of the healing art is a proper application of the police power of the State to a pleadings will be printed, we only state very briefly the allegations thereof.
particular class practicing arts peculiar to themselves, there being no means
of any practical regulation due to the close and confidential nature of the The plaintiffs allege that the individual plaintiffs are all licensed naturopathic
relationship between the Naturopath and patient with the consequent physicians and were admitted to practice in compliance with the law prior to
impossibility of supervising and confining such practice within lawful June, 1946, and that the last ten practitioners admitted in the State were
bounds. admitted under the amended act of 1949. During the 1956 Session of the
General Assembly of South Carolina, the following act was adopted:
Legal Medicine – Atty. Luansing

"Section 1. Sections 56-901 through 56-919, Code of Laws of South the plaintiffs, otherwise lawful, but lawful only to those coming under the
Carolina, 1952, are hereby repealed. provisions of the law. Defendant *89 contends that the purpose of the Act is
to protect the public health and welfare and is a valid exercise of the police
"Section 2. It shall be unlawful for any person whether heretofore licensed or power of the State, and denies that it is either arbitrary or discriminatory.
not under the laws of this or any other state to practice naturopathy in this
State; Provided, however, that any person now authorized to practice We think it may be fairly stated that the questions involved are:
naturopathy in South Carolina who is a graduate of an accredited college for
pre-medical training and who has, in addition thereto, graduated from a (A) Is the title of the act defective so as to render it unconstitutional in view of
medical college recognized at the time of his graduation by the state in which Section 17 of Article 3 of the South Carolina Constitution?
it was located, and who has heretofore for a period in excess of five years
(B) Is the Act violative of either the Federal or State Constitutions?
engaged in the practice of medicine in the State of South Carolina under the
supervision of a licensed medical doctor by special request or by special (C) May the State, under the police power, so regulate?
permission of the State Board of Medical Examiners, or agents thereof, shall
be examined by the *88 State Board of Medical Examiners on the same The title of the Act in question is as follows:
basis as other applicants to the Board are examined, and upon the making
"An Act To Repeal Sections 56-901 Through 56-919, Code Of Laws Of South
of a passing grade on this examination, shall be licensed to practice medicine
Carolina, 1952, Relating To The Practice Of Naturopathy; To Make It
in this State." 49 St. at Large, p. 1624.
Unlawful For Certain Persons To Practice Naturopathy In This State; And To
Section 3 provides for the punishment of the violation of the Act. Section 4 Provide Penalties For Violating The Provisions Of This Act."
provides that all Act or parts of Acts inconsistent therewith were repealed.
Section 17, Article 3 of the South Carolina Constitution reads as follows:
The plaintiffs seek a declaratory judgment as to their rights and contend that
"Every Act or Resolution having the force of law shall relate to but one
the Act is unconstitutional in that it violates the Fifth and Fourteenth
subject, and that shall be expressed in the title."
Amendments of the Constitution of the United States by depriving them of
their property and property rights without due process of law and denies The purpose of this section is to prevent deception of the public and to
them the equal protection of the law; is arbitrary and discriminatory in that it prevent insertion of matters not germane to the general subject. Furman v.
singles out naturopathy, one of the arts of healing, and abolishes its practice. Willimon, 106 S.C. 159, 90 S.E. 700; Miles Laboratories v. Seignious,
They further allege that the Act is in violation of Article 1, § 5; Article 1, § 17; D.C., 30 F. Supp. 549.
and Article 3, § 17, of the Constitution of South Carolina in that it deprives
them of their property and property rights without due process of law; denies This section is to be construed with great liberality. Gasque v. Nates, 191
them equal protection; is arbitrary and discriminatory; and that the Act S.C. 271, 2 S.E. (2d) 36.
relates to more than one subject which is not expressed in the title. It is
further contended that the plaintiffs entered the practice of naturopathy as a This requirement should not be enforced in any narrow or technical spirit. It
means of a livelihood; they have invested much time and great sums of was adopted to prevent certain abuses and it should be reasonably and
money; and that naturopathy has been recognized by the General Assembly liberally construed on the one hand so as to guard against these abuses, and
of South Carolina since 1920; and it is finally contended that the Act is on the other hand so as not to embarrass or obstruct *90 needed
prohibitory and asks that it be declared null and void. legislation. Alley v. Daniel, 153 S.C. 217, 150 S.E. 691.

The answer admits that the individual plaintiffs have been practicing There is no doubt in the mind of this Court as to the validity of the title of the
naturopathy since their admission and admits the passage of the Act, Act, but even if there were some doubt, a statute should be upheld if
however, it denies that the Act is in violation of either the State or Federal possible, doubtful cases being resolved in its favor. Alley v. Daniel, supra.
Constitutions. It is also admitted that by the Act the practice of naturopathy, The plaintiffs certainly knew the purpose of the Act, for when the bill was
as a separate cult, is prohibited; and that it makes unlawful certain acts by before the General Assembly, according to their brief, they say: "We appeared
Legal Medicine – Atty. Luansing

before the House Judiciary Committee and the Senate Medical Committee those who profess to practice. Indeed, it is rather difficult for the ordinary
and filed a printed brief along the lines followed herein." layman to understand how one may be permitted to practice "the use and
practice of physotherapy, minor surgery, obstetrics, gynecology, autotherapy
Plaintiffs rely upon Ex parte Wachovia Bank & Trust Co. (Nettles v. People's and biologicals," or to "purifying, cleansing and normalizing human tissues
Bank of Darlington), 160 S.C. 104, 158 S.E. 214, however, we think this for preservation or restoration of health, according to the fundamental
authority affords the plaintiffs no comfort as a study of that decision will principles of anatomy and physiology," without first satisfactorily giving
reveal the difference between that and the instant case. evidence of his unquestioned training and qualifications. Who is to set the
standard for such persons? Shall it be the afflicted in mind and body, who
The purpose of this provision is to prevent "log-rolling legislation"; to prevent
plead day and night for relief, or shall it be those who are suddenly stricken
surprise or fraud upon the legislature by means of provisions in bills of which
in and about their hearts, lungs, stomachs or blood stream, when even the
the title gave no indication, and which may be, therefore, overlooked and
most perfect training, experience and care may not be enough? or should it
unintentionally adopted; and to apprise the people of the subject of the
be the State? The State may not say to its citizens what they must do or to
legislation in order that they may have opportunity of being heard, if they so
whom they must go in time of mental and physical distress, but we think the
desire. McCollum v. Snipes, 213 S.C. 254, 49 S.E. (2d) 12, and many other
State has the *92 right to say and direct what the qualifications shall be of
authorities therein cited.
those persons to whom its citizens turn in their hour of need.
What subject, if we may ask, is embraced in the Act which is not referred to
Regardless of anything which may appear to a layman's mind as to what
in the title or not germane to the purposes of the Act? The plaintiffs direct our
should be the requirements of one who is to diagnose and find out what is
attention to none, and none does an examination thereof reveal. It is indeed
the cause and treatment of his illness, it is not a judicial question. It is one of
the duty of this Court to sustain the constitutionality of a sacred act of the
legislative authority. From the record, we find that before the Bill became an
legislature unless the contrary most clearly appears from the language of the
Act, the General Assembly provided for hearings before two of its standing
statute. This Court still adheres to the doctrine that it was not established by
committees, and we must assume that the Act is based upon bona fide,
the people to assume the duties of legislation, and neither will it declare an
scientific grounds. State v. Barnes, 119 S.C. 213, 112 S.E. 62.
act of the legislature unconstitutional *91 unless the language of the Act
itself plainly and unmistakably reveals its conflict with the Constitution. There is no reasonable doubt that the rights of those who have been duly
licensed to practice medicine or other professions are property rights of value
The authorities seem to abundantly differ with plaintiffs' contention, and we
which are entitled to protection. Ezell v. Ritholz, 188 S.C. 39, 198 S.E. 419;
so hold.
and that the right of a person to practice his profession for which he has
The plaintiffs contend that the main question for consideration is: "Does the prepared himself is property of the very highest quality. Cavassa v. Off, 206
Act deprive the plaintiffs of their property rights without due process of law, Cal. 307, 274 P. 523. However, it may be observed that no person has a
and does the Act deny to them equal protection of the law?" natural or absolute right to practice medicine, surgery, naturopathy or any of
the various healing arts. It is a right granted upon condition. Allopathic State
"Naturopathy is one of a number of fields in the art of healing" * * * and has Board of Medical Examiners v. Fowler, 50 La. Ann. 1358, 24 So.
been recognized "as accepted processes of preventive and curative medicine," 809; Louisiana State Board of Medical Examiners v. Fife, 162 La. 681, 111
and every person so practicing, after being duly licensed, "stands for all So. 58, 54 A.L.R. 594, affirmed 274 U.S. 720, 47 S. Ct. 590, 71 L. Ed. 1324.
purposes in the position of a physician in the orthodox fields of medicine * *
*." Williams v. Capital Life & Health Insurance Co., 209 S.C. 512, 41 S.E. (2d) A state may not prohibit the practice of medicine or surgery, yet it is very
208, 210. generally held that a state, under its police power, may regulate, within
reasonable bounds, for the protection of the public health the practice of
From the record, as well as from an independent examination, we conclude either by defining the qualifications which one must possess before being
that Naturopathy is of comparatively recent recognition, so far as South permitted to practice the same. Hawker v. People of State of New York, 170
Carolina is concerned. The area of its field of practice seems to have U.S. 189, 18 S. Ct. 573, 42 L. Ed. 1002; Dent v. State of West Virginia, 129
increased much more rapidly than the required educational qualifications of U.S. 114, 9 S. Ct. 231, 32 L. Ed. 623; and of course, it naturally follows that
Legal Medicine – Atty. Luansing

a legislature in defining the required qualifications *93 cannot prescribe, as a exceedingly broad and it was not for the courts but for the legislature to
condition to the right to practice, knowledge which bears no relation to the determine the need for such regulation as a protection of the public.
profession in question. However, this in no way means that the legislature, in
enforcing its required qualifications which one, in its judgment, should We do not know what was the legislative mind. For good and sufficient
possess to practice medicine, must make requirements for every school of reasons, it may have concluded that "a little learning is a dangerous thing"
medicine or of the healing arts which may exist, by requiring of those and that those who would undertake to treat or manipulate the human body
belonging to each particular school a knowledge only of those subjects which must "drink deep or touch not." We of course must assume that it knew of
the theory of healing, advocated by each school, requires, as was said by the the decisions of this Court involving Naturopathy in Dantzler v. Callison, 227
Supreme Court of Louisiana in Medical Examiners v. Fowler, S.C. 317, 88 S.E. (2d) 64; Jacoby v. South Carolina State Board, 219 S.C. 66,
supra. In Allopathic State Board of Louisiana v. Fowler, supra, the court said, 64, S.E. (2d) 138; and Williams v. Capital Life, supra, However, the right to
"We know of no constitutional right given to particular persons, who, practice medicine is a qualified one and is held in subordination to the duty
entertaining peculiar theories of medicine, group themselves together, and of the State under the police power to protect the public health. Lawrence v.
call themselves a special school of medicine under a selected name, to be Board of Registration, 239 Mass. 424, 132 N.E. 174. The police power can
recognized as and delt with as such." 50 La. Ann. 1374, 24 So. 816. not be stipulated or bartered away. Gray v. State of Connecticut, 159 U.S.
74, 15 S. Ct. 985, 40 L. Ed. 80.
Section 56-901, now repealed, sets forth the field of practice for Naturopaths.
Section 56-1354 defines the Practice of Medicine. There is nothing in the No person can acquire a vested right to continue, when once licensed, in a
existing statutes which will prevent the practice of any subject covered in business, trade or profession which is subject to legislative control and
Section 56-901, now repealed, by any person who has been or may be regulation under the police power, as regulations prescribed for such may be
admitted to practice in conformity with existing legal provisions. By the changed or modified by the legislature, in the public interest, without
adoption of the Act complained of, the legislature in no way cut down the subjecting the action to the charge of interfering *95 with contract or vested
field of practice but it did raise the standards of those who would operate in rights. State v. Hovorka, 100 Minn. 249, 110 N.W. 870, 871, 8 L.R.A., N.S.,
such fields. It was not the profession but it was those who practice the 1272, 1273.
profession that the General Assembly was dealing with. This Act should be
The granting of a license to practice certain professions is the method taken
treated and construed as imposing additional qualifications upon persons
by the State, in the exercise of its police power, to regulate and restrict the
already in the profession. It is an effort on the part of the legislature to
activity of the licensee. He takes the same, subject to the right of the State, at
regulate one phase of the healing arts and should be construed in pari
any time, for the public good to make further restrictions and regulations. It
materia with other statutes relating to the subject. It is not for us to reason
is a matter of common knowledge that derivatives of opium or similar drugs
why or what prompted the legislature to adopt the statute. It was not without
could be purchased in former years at even a country store. The State has
the benefit of the actions of its committees which initially considered the
now prohibited this and a druggist may not sell morphine or drugs of that
matter. As was said in Barsky v. Board of Regents of University *94 of State
nature without a prescription from a duly licensed authority. If the
of New York, 347 U.S. 442, 74 S. Ct. 650, 655, 98 L. Ed. 829, "It is equally
restrictions are reasonable, they would be upheld even though they actually
clear that a state's legitimate concern for maintaining high standards of
prohibit some people from further engaging in such occupations or
professional conduct extends beyond initial licensing. Without continuing
professions under a license previously granted. See note 8 L.R.A., N.S., 1273.
supervision, initial examinations afford little protection."
It is universally held that it is competent for the legislature to prescribe
In Williamson v. Lee Optical of Okl., 348 U.S. 483, 75 S. Ct. 461, 99 L. Ed.
qualifications for those who are to practice medicine and thus to assure that
563, there was an attempt to strike down a statute which prohibited
they shall possess the requisite character and learning, Dent v. State of West
opticians from fitting or duplicating eye glasses without a prescription. The
Virginia, 129 U.S. 114, 9 S. Ct. 231, 32 L. Ed. 623, and the State may
contention was made that the Act violated the due process clause of the
change the qualifications from time to time, making them more rigid. Dent v.
Constitution. The Supreme Court of the nation denied this contention,
State of West Virginia, supra. It lies within the police power to require
holding that in matters of public health, the power of the legislature is
educational qualification of those already engaged in the practice of any
Legal Medicine – Atty. Luansing

profession. Hawker v. People of State of New York, 170 U.S. 189, 18 S. Ct. science but in the practicing of it, to the definite injury of credulous
573, 42 L. Ed. 1002. sufferers."

In Commonwealth v. Zimmerman, 221 Mass. 184, 108 N.E. 893, 895, and Where the primary duty and responsibility for determining a question rests
in State v. Smith, 233 Mo. 242, 135 S.W. 465, 33 L.R.A., N.S., 179, we find with the Legislature, this Court will not substitute its judgment for that of the
that statutes somewhat similar to the instant statute were under attack legislative authority.
along the same lines which the plaintiffs herein argue. It was there held: "The
protection of the public from those who undertake to treat or manipulate the It is our opinion that the enactment in question is a valid exercise of the
human body without that degree of education, training and skill which police power of the State and that no unwarranted discrimination appears in
the *96Legislature has prescribed as necessary to the general safety of the the Act, and
people is within the police power of the state. * * * The protection of the public
It is so ordered.
health is an object of such vital importance to the welfare of the state that
any rational means to that end must be upheld." Let the complaint and answer be published herewith.

Indeed we may assume that the Legislature, in its wisdom, may have STUKES, C.J., and OXNER, LEGGE and MOSS, JJ., concur.
concluded that "the limited practitioner is likely to do a great deal of harm,
not only because he is not thoroughly educated as a physician, but as he is
only licensed to use a certain system of treatment, he is apt to use it in cases
to which it is not adapted."

In Williams v. Capital Life & Health Ins. Co., supra, Mr. Chief Justice Baker,
now retired, speaking for this Court, said: "While this is not in any sense
controlling, we may advert to the fact that it is a matter of common
knowledge that the people who purchase sick benefit policies of the
industrial type constitute a large proportion of the patrons of practitioners of
such branches of healing or medicine as naturopathy, and that it is generally
believed by such people that they are dealing with licensed practitioners of
medicine." May we ask, after all, why should not persons who hold
themselves out to be doctors, regardless of what they may otherwise profess,
be required to have the training of a medical doctor?

In Davis v. Beeler, Tenn., 207 S.W. (2d) 343, 347, in which an appeal was
dismissed by the U.S. Supreme Court, 333 U.S. 859, 68 S. Ct. 745, 92 L.
Ed. 1138, a statute strikingly similar to that here was contested on
practically the same grounds as in the instant action. There the General
Assembly adopted a statute which first repealed the act authorizing the
licensing of naturopaths, and second, prohibited the practice of naturopathy.
It appears that there were some two hundred licensed naturopaths in
Tennessee at the time. Practically every question raised in the action before
us was presented to the Tennessee Court which held adversely to the
contentions of the plaintiffs there and here, the Court saying: "Evidently, the
Legislature thought there *97 was too much border-lining in the practice of
naturopathy and determined to stamp out the evil that was not in the
Legal Medicine – Atty. Luansing

G.R. No. 163879               July 30, 2014 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,
DR. ANTONIO P. CABUGAO, Petitioner,  JR. and other consequential damages relative thereto.
vs.
PEOPLE OF THE PHILIPPINES and SPOUSES RODOLFO M. PALMA and CONTRARY to Article 365, 1st par. of the Revised Penal Code.
ROSARIO F. PALMA, Respondents.
Dagupan City, Philippines, January 29, 2001.
x-----------------------x
Arising from the same events, the Court resolved to consolidate these
G.R. No. 165805 cases.4 The facts, as culled from the records, are as follows:

DR. CLENIO YNZON, Petitioner,  On June 14, 2000, at around 4 o'clock in the afternoon, ten (10)-year old
vs. Rodolfo F. Palma, Jr. (JR) complained of abdominal pain to his mother,
PEOPLE OF THE PHILIPPINES and SPOUSES RODOLFO M. PALMA Rosario Palma. At 5 o’clock that sameafternoon, Palma's mother and father,
AND ROSARIO F. PALMA, Respondents. Atty. Rodolfo Palma Sr., brought JR to the clinic of accused Dr. Cabugao. Dr.
Cabugao, a general practitioner, specializing in familymedicine gave
DECISION 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
PERALTA, J.:
morning of June 15, 2000, they returnedto Dr. Cabugao, who advised them
Before this Court are appeals via Rule 45 from the Decision 1 dated June 4, to bring JR to the Nazareth General Hospital in Dagupan City, for
2004 of the Court of Appeals in CA-G.R. CR No. 27293, affirming the confinement. JR was admitted at the said hospital at 5:30 in the morning.5
Decision2 dated February 28,2003 of the Regional Trial Court (RTC),
Blood samples were taken from JR for laboratory testing. The complete blood
convicting appellant Dr. Antonio P. Cabugao (Dr. Cabugao) and Dr. Clenio
count conveyed the following result: wbc – 27.80 x 10 9/L; lymphocytes –
Ynzon (Dr. Ynzon) of the crime of Reckless Imprudence Resulting to
0.10 and neutrophils – 0.90. Diagnostic ultrasound was likewise conducted
Homicide.
on the patient's lower abdomen by radiologist, Dr. Ricky V. Querubin, with
The Information3 alleged – the following findings:

That on or about June 17, 2000in the City of Dagupan, Philippines, and Normal liver, bile ducts, gallbladder, pancreas, spleen, kidneys and urinary
within the jurisdiction of this Honorable Court, the abovenamed accused, bladder.
DR. ANTONIO P.CABUGAO and DR. CLENIO YNZON, being then the
There is no free peritoneal fluid.
attending physicians of one RODOLFO PALMA, JR., a minor 10 years old,
confederating and acting jointly with one another, did, then and there, There is localized tenderness in the paraumbilical region, more so in the
willfully, unlawfully and feloniously fail through negligence, carelessness and supra and right paraumbilical areas.
imprudence to perform immediate operation upon their patient, RODOLFO
PALMA, JR. of acute appendicitis, when they, the said physicians, should There is a vague elongated hypoechoic focus in the right periumbilical region
have been done so considering that examinations conducted upon their roughly about 47 x 18 mm surrounded by undistended gas-filled bowels.
patient Rodolfo Palma, Jr. seriously manifest todo so, causing by such This is suggestive of an inflammatory process wherein appendiceal or
negligence, carelessness, and imprudence the victim, RODOLFO PALMA JR., periappendiceal pathology cannot be excluded. Clinical correlation is
to die due to: essential."6

"CARDIORESPIRATORY ARREST, METABOLIC ENCEPHALOPATHY, Dr. Cabugao did a rectal examination noting the following: "rectal: good
SEPTICEMIA (ACUTE APPENDICITIS), CEREBRAL ANEURYSM RUPTURED sphincter, negative tenderness, negative mass." The initial impression was
(?)" Acute Appendicitis,7 and hence, he referred the case to his co-accused, Dr.
Legal Medicine – Atty. Luansing

Ynzon, a surgeon.8 In the later part of the morning of June 15, 2000, Dr. and a diagnostic ultrasound on JR. The findings of the CBC and ultrasound
Ynzon went to the hospital and readthe CBC and ultrasound results. The showed that an inflammatory process or infection was going on inside the
administration of massive antibiotics and pain reliever to JRwere ordered. body of JR. Said inflammatory process was happening in the periumbilical
Thereafter, JR was placed on observation for twenty-four (24) hours. region where the appendix could be located. The initial diagnosis of acute
appendicitis appears to be a distinct possibility. x x x.
In the morning of June 16, 2000, JR complained again of abdominal pain
and his parents noticeda swelling in his scrotum. In the afternoon of the Dr. Ynzon ordered medications to treat the symptoms being manifested by
same day, JR vomitted out greenish stuff three (3) times and had watery JR. Thereafter, he ordered that JR be observed for 24 hours. However, the
bowels also three (3) times. The nurses on-duty relayed JR's condition to Dr. accused, as the attending physicians, did not personally monitor JR in order
Ynzon who merely gaveorders via telephone.9Accused continued medications to check on subtle changes that may occur. Rather, they left the monitoring
to alleviate JR's abdominal spasms and diarrhea. By midnight, JR again and actual observation to resident physicians who are just on residency
vomitted twice, had loose bowel movements and was unable to sleep. The training and in doing so, they substituted their own expertise, skill and
following morning, June 17,2000, JR's condition worsened, he had a competence with those of physicians who are merely new doctors still on
running fever of 38°C. JR's fever remained uncontrolled and he became training. Not having personally observed JR during this 24-hour critical
unconscious, he was given Aeknil (1 ampule) and Valium (1 ampule). JR's period of observation, the accused relinquished their duty and thereby were
condition continued to deteriorate that by 2 o'clock in the afternoon, JR's unable to give the proper and correct evaluation as to the real condition of
temperature soared to 42°C, had convulsions and finally died. JR. In situations where massive infection is going on as shown by the
aggressive medication of antibiotics, the condition of the patient is serious
The Death Certificate10 dated June 19, 2000 prepared by Dr. Cabugao which necessitated personal, not delegated, attention of attending
indicated the following causes of death: physicians, namely JR and the accused in this case.
Immediate cause: CARDIORESPIRATORY ARREST xxxx
Antecedent cause: METABOLIC ENCEPHALOPATHY Throughout the course of the hospitalization and treatment of JR, the
accused failed to address the acute appendicitis which was the initial
Underlying cause: SEPTICEMIA (ACUTE APPENDICITIS)
diagnosis. They did not take steps to find out if indeed acute appendicitis was
Other significant conditionscontributing to death: what was causing the massive infection that was ongoing inside the body of
JR even when the inflammatory process was located at the paraumbilical
CEREBRAL ANEURYSM RUPTURED (?) region where the appendix can be located. x x x
No post-mortem examination was conducted on JR. On February 1, 2001, There may have been other diseases but the records do not show that the
an Information was filed against accused for reckless imprudence resulting accused took steps to find outwhat disease exactly was plaguing JR. It was
to homicide. At their arraignment, both accused, duly assisted by counsel, their duty to find out the disease causing the health problem of JR, but they
pleaded not guilty to the charge. did not perform any process of elimination. Appendicitis, according to expert
testimonies, could be eliminated only by surgery but no surgery was done by
On February 28, 2003, in convicting both the accused, the trial court found
the accused. But the accused could not have found out the real disease of JR
the following circumstances as sufficient basis to conclude that accused were
because they were treating merely and exclusively the symptoms by means
indeed negligent in the performance of their duties:
of the different medications to arrest the manifested symptoms. In fact, by
It is unquestionable that JR was under the medical care of the accused from treating the symptoms alone, the accused were recklessly and wantonly
the time of his admission for confinement at the Nazareth General Hospital ignoring the same as signs of the graver health problem of JR. This gross
until his death. Upon his admission, the initial working diagnosis was to negligence on the part of the accused allowed the infection to spread inside
consider acute appendicitis. To assist the accused in the consideration of the body of JR unabated. The infection obviously spread so fastand was so
acute appendicitis, Dr. Cabugao requested for a complete blood count (CBC) massive that within a period of only two and a half (2 ½) days from the day of
Legal Medicine – Atty. Luansing

admission to the hospital on June 15, 2000, JR who was otherwise healthy days’ stay inthe hospital. Authorities state that if the clinical picture is
died [of] Septicemia (Acute Appendicitis) on June 17, 2000.11 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
On June 4, 2004, in affirming the accused' conviction, the Court of Appeals that JR's case had an atypical presentation in view of the location of his
gave similar observations, to wit: appendix, laboratory tests could have helped to confirm diagnosis, as Dr.
Mateo opined thatthe possibility of JR having a retrocecal appendicitis
The foregoing expert testimony clearly revealed such want of reasonable skill
should have been a strong consideration. Lamentably, however, as found by
and care on the part of JR's attending physicians, appellants Dr. Cabugao
the trial court, appellants had not taken steps towards correct diagnosis and
and Dr. Ynzon in neglecting to monitor effectively and sufficiently the
demonstrated laxity even when JR was already running a high fever in the
developments/changes during the observation period and act upon the
morning of June 17, 2000 and continued vomiting with diarrhea, his
situation after said 24-hour period when his abdominal pain subsisted, his
abdominal pain becoming more intense. This is the reason why private
condition even worsened with the appearance of more serious symptoms of
complainants were not even apprised of the progress of appellants' diagnosis
nausea, vomiting and diarrhea. Considering the brief visit only made on
– appellants have nothing to report because they did nothing towards the
regular rounds, the records clearly show such gross negligence in failing to
end and merely gave medications to address the symptoms.12
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 Thus, these appeals brought beforethis Court raising the following
ruled out precisely because of the inexcusable neglect to undertake arguments:
suchefficient diagnosis by process of elimination, as correctly pointed out by
the trial court. As has been succinctly emphasized by Dr. Mateo, acute I
appendicitis was the working diagnosis, and with the emergence of
symptoms after the 24-hour observation (high fever, vomiting, diarrhea) still, WHETHER THE CAUSE OF ACCUSATION AS CONTAINED IN THE
appellants ruled out surgery, not even considering exploratory laparoscopy. INFORMATION IS "FAILURE TO PERFORM IMMEDIATE OPERATION
Dr. Mateo also expressed the opinion that the decision to operate could have UPON THE PATIENT ROFOLFO PALMA JR. OF ACUTE APPENDICITIS;
been made after the result of the ultrasound test, considering that acute
II
appendicitis was the initial diagnosis by Dr. Cabugao after he had conducted
a rectal examination. WHETHER THE SUBJECT INFORMATION APPEARS TO HAVE ACCUSED
BOTH ACCUSED DOCTORS OF CONSPIRACY AND THE APPEALED
Medical records buttress the trial court's finding that in treating JR,
DECISION SEEMS TO HAVE TREATED BOTH ACCUSED DOCTORS TO
appellants have demonstrated indifference and neglect of the patient's
BE IN CONSPIRACY;
condition as a serious case. Indeed, appendicitis remains a clinical
emergencyand a surgical disease, as correctly underscored by Dr. Mateo, a III
practicing surgeon who has already performed over a thousand
appendectomy. In fact, appendectomy is the only rational therapy for acute WHETHER PETITIONER DR. CABUGAO IS A GENERAL PRACTITIONER
appendicitis; it avoids clinical deterioration and may avoid chronic or (NOT A SURGEON) AND HAVE EXCLUDED SURGERY FROM THE LIMITS
recurrent appendicitis. Although difficult, prompt recognition and immediate OFHIS PRACTICE, AND IT WAS NOT AND NEVER HIS DUTY TO OPERATE
treatment of the disease prevent complications. Under the factual THE PATIENT RODOLFO PALMA JR., THAT WAS WHY HE REFERRED
circumstances, the inaction, neglect and indifference of appellants who, after SUBJECT PATIENT TO A SURGEON, DR. CLENIO YNZON;
the day of admission and after being apprised of the ongoing infection from
IV
the CBC and initial diagnosis as acute appendicitis from rectal examination
and ultrasound testand only briefly visited JR once during regular rounds WHETHER THE DEFENSE NEVER STATED THAT THERE IS GUARANTEE
and gave medication orders by telephone – constitutes gross THAT DOING SURGERY WOULD HAVE SAVED THE PATIENT;
negligenceleading to the continued deterioration of the patient, his infection
having spread in sofast a pace that he died within just two and a half (2 ½)
Legal Medicine – Atty. Luansing

V such factual findings unless the findings of the court are palpably
unsupported by the evidence on record or unless the judgment itself is based
WHETHER THE WITNESSES FOR THE PROSECUTION INCLUDING on misapprehension of facts. Inthe instant case, we find the need to make
PROSECUTION'S EXPERT WITNESSES EVER DECLARED/TESTIFIED certain exception.
THAT PETITIONER DR. CABUGAO HAD THE DUTY TO PERFORM
IMMEDIATE OPERATION ON RODOLFO PALMA, JR., AND THEY FAILED AS TO DR. YNZON'S LIABILITY:
TO STATE/SHOW THAT THE PROXIMATE CAUSE OF DEATH OF JR WAS
ACUTE APPENDICITIS; Reckless imprudence consists of voluntarily doing or failing to do, without
malice, an act from which material damage results by reason of an
VI inexcusable lack of precautionon the part of the person performing or failing
to perform such act.13 The elements of reckless imprudence are: (1) that the
WHETHER THE EXPERT WITNESSES PRESENTED BY THE offender does or fails to do an act; (2) that the doing or the failure to do that
PROSECUTION EVER QUESTIONED THE MANAGEMENT AND CARE act is voluntary; (3) that it bewithout malice; (4) that material damage results
APPLIED BY PETITIONER DR. CABUGAO; from the reckless imprudence; and (5) that there is inexcusable lack of
precaution on the part of the offender, taking into consideration his
VII
employment or occupation, degree of intelligence, physical condition, and
WHETHER THE EXPERT WITNESSES PRESENTED BY THE DEFENSE other circumstances regarding persons, time and place.14
ARE UNANIMOUS IN APPROVING THE METHOD OF TREATMENT
With respect to Dr. Ynzon, all the requisites of the offense have been clearly
APPLIED BY BOTH ACCUSED DOCTORS ON SUBJECT PATIENT, AND
established by the evidence on record. The court a quoand the appellate
THEY DECLARED/AFFIRMED THAT THEY WOULD FIRST PLACE
court were one in concluding that Dr. Ynzon failed to observe the required
SUBJECT THE PATIENT UNDER OBSERVATION, AND WOULD NOT
standard of care expected from doctors.
PERFORM IMMEDIATE OPERATION;
In the instant case, it was sufficiently established that to prevent certain
VIII
death, it was necessary to perform surgery on JR immediately. Even the
WHETHER THE CONVICTION OF PETITIONER DR. YNZON WAS prosecution’s own expert witness, Dr. Antonio Mateo,15 testified during
ESTABLISHED WITH THE REQUIRED QUANTUM OF PROOF BEYOND cross-examination that he would perform surgery on JR:
REASONABLE DOUBT THAT THE PATIENT WAS SPECIFICALLY
ATTY. CASTRO:
SUFFERING FROM AND DIED OF ACUTE APPENDICITIS; and
Q. Given these data soft non-tender abdomen, ambulatory, watery diarrhea,
IX
Exhibit C which is the ultrasound result, with that laboratory would you
WHETHER THE FAILURE TO CONDUCT THE SPECIFIC SURGICAL operate the patient?
OPERATION KNOWN AS APPENDECTOMY CONSTITUTED CRIMINAL
A Yes, I would do surgery.
NEGLIGENCE.
Q And you should have done surgery with this particular case?"
In a nutshell, the petition brought before this Court raises the issue of
whether or not petitioners' conviction of the crime of reckless imprudence A Yes, sir.16
resulting in homicide, arising from analleged medical malpractice, is
supported by the evidence on record. xxxx

Worth noting is that the assigned errors are actually factual in nature, which
as a general rule, findings of factof the trial court and the Court of Appeals
are binding and conclusiveupon this Court, and we will not normally disturb
Legal Medicine – Atty. Luansing

COURT: 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
Q You stated a while ago doctor thatyou are going to [do] surgery to the period of 24 hours?
patient, why doctor, if you are notgoing to do surgery, what will happen?
A. It depends on the emergent development, sir.
A If this would be appendicitis, the usual progress would be that it would be
ruptured and generalized peritonitis and eventually septicemia, 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?
Q What do you mean by that doctor?
A. In 24 hours you have to decide, sir.
A That means that infection would spread throughout the body, sir.
xxxx
Q If unchecked doctor, what will happen?
Q. And that is based on the assessment of the attending physician?
A It will result to death.17
A. Yes, sir.18
xxxx
Dr. Mateo further testified on cross-examination:
Q And what would have you doneif you entertain other considerations from
the time the patient was admitted? ATTY. CASTRO:

A From the time the patient was admitted until the report of the sonologist, I Q: So you will know yourself, as far as the record is concerned, because if
would have made a decision by then. you will agree with me, you did not even touch the patient?

Q And when to decide the surgery would it be a particular exact time, would A. Yes, I based my opinion on what is put on record, sir. The records show
it be the same for all surgeons? 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.
A If you are asking acute appendicitis, it would be about 24 hours because
acute appendicitis is a 24-hour disease, sir. Q. But insofar as you yourself not having touched the abdomen of the
patient, would you give a comment on that?
Q. And would it be correct to say that it depends on the changes on the
condition of the patient? 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
A. Yes, sir. diarrhea. In my personal opinion, I think the condition of the patient was
deteriorating.
Q. So, are you saying more than 24 hours when there are changes?
Q. Even though you have not touched the patient?
A. If there are changes in the patient pointing towards appendicitis then you
have to decide right there and then, sir. A. I based on what was on the record, sir.19
Q. So if there are changes in the patient pointing to appendicitis? 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
A. It depends now on what you are trying to wait for in the observation
present case. Another expert witness for the defense, Dr. Vivencio Villaflor,
period, sir.
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:
Legal Medicine – Atty. Luansing

ATTY. CASTRO: Q. So, you are saying then that in order to rule out acute appendicitis there
must be an operation, that is right Doctor?
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, A. No, sir. If your diagnosis is toreally determine if it is an acute appendicitis,
physical examination of a positive psoas sign, observation of the sonologist of you have to operate.21
abdominal tenderness and the ultrasound findings of the probability of
appendiceal (sic) pathology, what will you do if you have faced these xxxx
problems, Doctor?
Q. Now Doctor, considering the infection, considering that there was a
A. I will examine the patient thoroughly and it will depend on my physical [symptom] that causes pain, considering that JR likewise was feverish and
examination and that isprobably every 4 to 6 hours, sir.20 that he was vomiting, does that not show a disease of acute appendicitis
Doctor?
On cross-examination, Dr. Villaflor affirmed:
A. Its possible.
Cross Exam. By Atty. Marteja:
Q. So that if that is possible, are we getting the impression then Doctor what
Q. x x x However, there are corrections and admissions made at that time, you have earlier mentioned that the only way to rule out the suspect which is
your Honor, do I understand thatT/C does not mean ruled out but rather to acute appendicitis is by surgery, you have said that earlier Doctor, I just
consider the matter? want any confirmation of it?

A. Yes, now that I have seen the records of the patient, it says here, A. Yes, sir.22
impression and T/C means to consider the appendicitis.
Verily, whether a physician or surgeon has exercised the requisite degree of
Q. Isn't it that it is worth then to say that the initial working diagnosis on skill and care in the treatment of his patient is, in the generality of cases, a
Rodolfo Palma, Jr., otherwise known as JR, to whom I shall now refer to as matter of expert opinion. The deference of courts to the expert opinions of
JR, the primary consideration then is acute appendicitis, is that correct to qualified physicians stems from its realization that the latter possess
say Doctor? unusual technical skills which laymen in most instances are incapable of
intelligently evaluating.23 From the testimonies of the expert witnesses
A. I think so, that is the impression. presented, it was irrefutably proven that Dr. Ynzon failed to practice that
degree of skill and care required in the treatment of his patient.
Q. x x x Now if it is to be considered as the primary consideration in the
initial working diagnosis, isn't it a fact that it has tobe ruled out in order to As correctly observed by the appellate court, Dr. Ynzon revealed want of
consider it as not the disease of JR? reasonable skill and care in attending to the needs of JR by neglecting to
monitor effectively the developmentsand changes on JR's condition during
A. Yes. Sir.
the observation period, and to act upon the situation after the 24-hour period
Q. Isn't it a fact thatto rule out acute appendicitis as not the disease of JR, when his abdominal pain persisted and his condition worsened. Lamentable,
surgery or operation must be done, isn't it Doctor? Dr. Ynzon appeared to have visited JRbriefly only during regular rounds in
the mornings. He was not there during the crucial times on June 16, 2000
A. You have to correlate all the findings. 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
Q. Is it yes or no, Doctor?
JR, as he is in the best position considering his skills and experience to know
A. Yes. if the patient's condition had deteriorated. While the resident-doctors-onduty
could likewise monitor the patient’scondition, he is the one directly
responsible for the patient as the attending surgeon. Indeed, it is reckless
Legal Medicine – Atty. Luansing

and gross negligence of duty to relegate his personal responsibility to observe perpetrator of the crime. Based on the above disquisitions, however, the
the condition of the patient. Again, acute appendicitis was the working prosecution failed to prove these two things. The Court is not convinced with
diagnosis, and with the emergence of graver symptoms after the 24-hour moral certainty that Dr. Cabugao isguilty of reckless imprudence as the
observation, Dr. Ynzon ruled out surgery for no apparent reason. We, elements thereof were not proven by the prosecution beyond a reasonable
likewise, note that the records are devoid of showing of any reasonable cause doubt.
which would lead Dr. Ynzon tooverrule appendectomy despite the initial
diagnosis of appendicitis. Neitherwas there any showing that he was Both the trial court and the appellate court bewail the failure to perform
entertaining another diagnosis nor he took appropriate steps towards appendectomy on JR, or the failure to determine the source of infection
another diagnosis. 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
Among the elements constitutive of reckless imprudence, what perhaps is required appendectomy.
most central to a finding of guilt is the conclusive determination that the
accused has exhibited, by his voluntary act without malice, an inexcusable Immediately apparent from a review of the records of this case is the fact that
lack of precaution. It is that which supplies the criminal intent so Dr. Cabugao is not a surgeon,but a general practitioner specializing in family
indispensable as tobring an act of mere negligence and imprudence under medicine;27 thus, even if he wanted to, he cannot do an operation, much less
the operation of the penal law. This is because a conscious indifference to the an appendectomy on JR. It is precisely for this reason why he referred JR to
consequences of the conduct is all that is required from the standpoint of the Dr. Ynzon after he suspected appendicitis. Dr. Mateo, the prosecution’s
frame of mind of the accused.24 Quasioffenses penalize the mental attitudeor expert witness, emphasized the role of the surgeon during direct
condition behind the act, the dangerous recklessness, the lack of care or examination, to wit:
foresight, the "imprudencia punible," unlike willful offenses which punish the
ATTY. MARTEJA:
intentional criminal act.25 This is precisely where this Court found Dr. Ynzon
to be guilty of - his seemingly indifference to the deteriorating condition of JR Q. You had mentioned that under this circumstances and condition, you
that he as a consequence, failed to exercise lack of precaution which have mentioned that surgery is the solution, would you have allowed then a
eventually led to JR's death. 24 hour observation?

To be sure, whether or not a physician has committed an "inexcusable lack A. If there is a lingering doubt, inshort period of observation of 18-24 hours
of precaution" in the treatment of his patient is to be determined according to can be allowed provided that there would be close monitoring of the patient,
the standard of care observed by other members of the profession in good sir.
standing under similar circumstances bearing in mind the advanced state of
the profession at the time of treatment or the present state of medical Q. Would you please tell us who would be doing the monitoring doctor?
science. In accepting a case, a doctor in effect represents that, having the
A. The best person should be the first examiner, the best surgeon, sir.
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 Q. So that would you say that it is incumbent on the surgeon attending to
his patients. He, therefore, has a duty to use at least the same level of care the case to have been the one to observe within the period of observation?
that any other reasonably competent doctor would use to treat a condition
under the same circumstances.26 Sadly, Dr. Ynzon did not display that A. Yes, because he will be in the best position to observe the sudden changes
degree of care and precaution demanded by the circumstances. in the condition of the patient, sir.

AS TO DR. CABUGAO'S LIABILITY: 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
Every criminal conviction requires of the prosecution to prove two things — observation?
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
Legal Medicine – Atty. Luansing

A. Most foreign authors would recommend every four (4) hours, some centers 24-hour monitoring on JR, it was Dr. Cabugao who frequently made orders
will recommend hourly or every two hours but here in the Philippines, would on the administration of antibiotics and pain relievers. There was also
recommend for 4 to 6 hours, sir.28 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,
Dr. Cabugao’s supervision does not cease upon his endorsement of his a surgeon, is actually an exercise of precaution as he knew that appendicitis
patient to the surgeon. Here, Dr. Cabugao has shown to have exerted all is not within his scope of expertise. This clearly showed that he employed the
efforts to monitor his patient and under these circumstances he did not have best of his knowledge and skill in attending to JR's condition, even after the
any cause to doubt Dr. Ynzon’s competence and diligence. Expert referral of JR to Dr. Ynzon. To be sure, the calculated assessment of Dr.
testimonies have been offered to prove the circumstances surrounding the Cabugao to refer JRto a surgeon who has sufficient training and experience
case of JR and the need to perform an operation. Defense witness, Dr. to handle JR’s case belies the finding that he displayed inexcusable lack of
Villaflor, on cross examination testified, to wit: precaution in handling his patient.31
Q. Isn't it a fact that torule out acute appendicitis as notthe disease of JR, We likewise note that Dr. Cabugao was out of town when JR's condition
surgery or operation mustbe done, isn't it Doctor? 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.
A. You have to [correlate] all the findings.
Moreover, while both appeared to be the attending physicians of JR during
Q. Is it yes or no, Doctor?
his hospital confinement, it cannot be said that the finding of guilt on Dr.
A. Yes. Ynzon necessitates the same finding on the co-accused Dr. Cabugao.
Conspiracy is inconsistent with the idea of a felony committed by means of
Q. So, you are saying then that in order to rule out acute appendicitis there culpa.32 Thus, the accused-doctors to be found guilty of reckless imprudence
must be an operation, that is right Doctor? resulting in homicide, it must be shown that both accused-doctors
demonstratedan act executed without malice or criminal intent – but with
A. No, sir. If your diagnosis is to really determine if it is an acute appendicitis,
lack of foresight, carelessness, or negligence. Noteworthy, the evidence on
you have to operate.29
record clearly points to the reckless imprudence of Dr. Ynzon; however, the
xxxx same cannot be said in Dr. Cabugao's case.

Q. Now Doctor, considering the infection, considering that there was a AS TO CIVIL LIABILITY
[symptom] that causes pain, considering that JR likewise was feverish and
While this case is pending appeal, counsel for petitioner Dr. Ynzon informed
that he was vomitting, does that not show a disease of acute appendicitis
the Court that the latter died on December 23, 2011 due to "multiorgan
Doctor?
failure" as evidenced by a copy of death certificate.33 Thus, the effect of death,
A. It’s possible. pending appeal of his conviction of petitioner Dr. Ynzon with regard to his
criminal and pecuniary liabilities should be in accordance to People v.
Q. So that if that is possible, are we getting the impression then Doctor what Bayotas,34 wherein the Court laid down the rules in case the accused dies
you have earlier mentioned that the only way to rule out the suspect which is prior to final judgment:
acute appendicitis is by surgery, you have said that earlier Doctor, I just
want any confirmation of it? 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
A. Yes, sir.30 Justice Regalado, in this regard, "the death of the accused prior to final
judgment terminates his criminal liability and only the civil liability directly
Neither do we find evidence that Dr. Cabugao has been negligent or lacked arising from and based solely on the offense committed, i.e.,civil liability ex
the necessary precaution in his performance of his duty as a family doctor. delictoin senso strictiore."
On the contrary, a perusal ofthe medical records would show that during the
Legal Medicine – Atty. Luansing

2. Corollarily, the claim for civil liability survives notwithstanding the death of the civil liability arising from the delict. However, the independent civil action
accused, if the same may also be predicated on a source of obligation other instituted under section 3 of this Rule or which thereafter is instituted to
than delict. Article 1157 of the Civil Code enumerates these other sources of enforce liability arising from other sources of obligation may be continued
obligation fromwhich the civil liability may arise as a result of the same act or against the estate or legal representative of the accused after proper
omission: substitution or against said estate, as the case may be. The heirs of the
accused may besubstituted for the deceased without requiring the
a) Law appointment of an executor or administrator and the court may appoint a
guardian ad litem for the minor heirs.
b) Contracts
The court shall forthwith order said legal representative or representatives to
c) Quasi-contracts
appear and be substituted within a period of thirty (30) days from notice.
d) x x x x x x x x x
A final judgment entered in favor of the offended party shall be enforced in
e) Quasi-delicts the manner especially provided in these rules for prosecuting claims against
the estate of the deceased.
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 If the accused dies before arraignment, the case shall be dismissed without
separate civil action and subject to Section 1, Rule 111 of the 1985 Rules on prejudice to any civil action the offended party may file against the estate of
Criminal Procedure as amended. This separate civil action may be enforced the deceased. (Emphases ours)
either againstthe executor/administrator or the estate of the accused,
In sum, upon the extinction of the criminal liability and the offended party
depending on the source of obligation upon which the same is based as
desires to recover damages from the same act or omission complained of, the
explained above.
party may file a separate civil action based on the other sources of obligation
4. Finally, the private offended party need not fear a forfeiture of his right to in accordance with Section 4, Rule 111.37 If the same act or omission
file this separate civil action by prescription, in cases where during the complained of arises from quasi-delict,as in this case, a separate civil action
prosecution of the criminal action and prior to its extinction, the private- must be filed against the executor or administrator of the estate of the
offended party instituted together therewith the civil action. In such case, the accused, pursuant to Section 1, Rule 87 of the Rules of Court:38
statute of limitationson the civil liability is deemed interrupted during the
Section 1. Actions which may and which may not be brought against
pendency of the criminal case, conformably with provisions of Article 1155 of
executor or administrator. — No action upon a claim for the recovery of
the Civil Code, that should thereby avoid any apprehension on a possible
money or debtor interest thereon shall be commenced against the executor
privation of right by prescription.35
or administrator; but to recover real or personal property, or an interest
In view of the foregoing, it is clear that the death of the accused Dr. Ynzon therein, from the estate, or to enforce a lien thereon, and actions to recover
pending appeal of his conviction extinguishes his criminal liability. However, damages for an injury to person or property, real or personal, may be
the recovery of civil liability subsists as the same is not based on delictbut by commenced against him. (Emphases ours)
contract and the reckless imprudence he was guilty of under Article 365 of
Conversely, if the offended party desires to recover damages from the same
the Revised Penal Code.1âwphi1For this reason, a separate civil action may
act or omission complained of arising from contract, the filing of a separate
be enforced either against the executor/administrator or the estate of the
civil action must be filed against the estate, pursuant to Section 5, Rule 86 of
accused, depending on the source of obligation upon which the same is
the Rules of Court, to wit:
based,36 and in accordance with Section 4, Rule 111 of the Rules on
Criminal Procedure, we quote: 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,
Sec. 4. Effect of death on civil actions. – The death of the accused after
express or implied, whether the same be due, not due, or contingent, all
arraignment and during the pendency of the criminal action shall extinguish
Legal Medicine – Atty. Luansing

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 counterclaims in any action that the executor or administrator
may bring against the claimants. Where an executor or administrator
commencesan 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 beforethe
court in the administration proceedings. Claims not yet due, or contingent,
may be approved at their present value.

As a final note, we reiterate thatthe 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 ACQUITTEDof 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 estateof Dr. Ynzon, depending on the source of obligation upon which
the same are based.

SO ORDERED.
Legal Medicine – Atty. Luansing

G.R. No. 192123               March 10, 2014 old baby boy GERALD ALBERT GERCAYO, represented by his mother, MA.
LUZ GERCAYO, the former having been born with an imperforate anus [no
DR. FERNANDO P. SOLIDUM, Petitioner,  anal opening] and was to undergo an operation for anal opening [pull
vs. through operation], did then and there willfully, unlawfully and feloniously
PEOPLE OF THE PHILIPPINES, Respondent. fail and neglect to use the care and diligence as the best of his judgment
would dictate under said circumstance, by failing to monitor and regulate
DECISION
properly the levels of anesthesia administered to said GERALD ALBERT
BERSAMIN, J.: GERCAYO and using 100% halothane and other anesthetic medications,
causing as a consequence of his said carelessness and negligence, said
This appeal is taken by a physician-anesthesiologist who has been GERALD ALBERT GERCAYO suffered a cardiac arrest and consequently a
pronounced guilty of reckless imprudence resulting in serious physical defect called hypoxic encephalopathy meaning insufficient oxygen supply in
injuries by the Regional Trial Court (RTC) and the Court of Appeals (CA). He the brain, thereby rendering said GERALD ALBERT GERCAYO incapable of
had been part of the team of anesthesiologists during the surgical pull- moving his body, seeing, speaking or hearing, to his damage and prejudice.
through operation conducted on a three-year old patient born with an
imperforate anus.1 Contrary to law.14

The antecedents are as follows: The case was initially filed in the Metropolitan Trial Court of Manila, but was
transferred to the RTC pursuant to Section 5 of Republic Act No. 8369 (The
Gerald Albert Gercayo (Gerald) was born on June 2, 1992 2 with an Family Courts Act of 1997),15 where it was docketed as Criminal Case No.
imperforate anus. Two days after his birth, Gerald underwent colostomy, a 01-190889.
surgical procedure to bring one end of the large intestine out through the
abdominal wall,3 enabling him to excrete through a colostomy bag attached Judgment of the RTC
to the side of his body.4
On July 19, 2004, the RTC rendered its judgment finding Dr. Solidum guilty
On May 17, 1995, Gerald, then three years old, was admitted at the Ospital beyond reasonable doubt of reckless imprudence resulting to serious
ng Maynila for a pull-through operation. 5Dr. Leandro Resurreccion headed physical injuries,16 decreeing:
the surgical team, and was assisted by Dr. Joselito Luceño, Dr. Donatella
WHEREFORE, premises considered, the Court finds accused DR.
Valeña and Dr. Joseph Tibio. The anesthesiologists included Dr. Marichu
FERNANDO P. SOLIDUM GUILTY beyond reasonable doubt as principal of
Abella, Dr. Arnel Razon and petitioner Dr. Fernando Solidum (Dr.
the crime charged and is hereby sentenced to suffer the indeterminate
Solidum).6 During the operation, Gerald experienced bradycardia,7 and went
penalty of TWO (2) MONTHS and ONE (1) DAY of arresto mayor as minimum
into a coma.8His coma lasted for two weeks,9 but he regained consciousness
to ONE (1) YEAR, ONE (1) MONTH and TEN (10) DAYS of prision
only after a month.10 He could no longer see, hear or move.11
correccional as maximum and to indemnify, jointly and severally with the
Agitated by her son’s helpless and unexpected condition, Ma. Luz Gercayo Ospital ng Maynila, Dr. Anita So and Dr. Marichu Abella, private
(Luz) lodged a complaint for reckless imprudence resulting in serious complainant Luz Gercayo, the amount of ₱500,000.00 as moral damages
physical injuries with the City Prosecutor’s Office of Manila against the and ₱100,000.00 as exemplary damages and to pay the costs.
attending physicians.12
Accordingly, the bond posted by the accused for his provisional liberty is
Upon a finding of probable cause, the City Prosecutor’s Office filed an hereby CANCELLED.
information solely against Dr. Solidum,13alleging: –
SO ORDERED.17
That on or about May 17, 1995, in the City of Manila, Philippines, the said
accused, being then an anesthesiologist at the Ospital ng Maynila, Malate,
this City, and as such was tasked to administer the anesthesia on three-year
Legal Medicine – Atty. Luansing

Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider their Where common knowledge and experience teach that a resulting injury
solidary liability,18 the RTC excluded them from solidary liability as to the would not have occurred to the patient if due care had been exercised, an
damages, modifying its decision as follows: inference of negligence may be drawn giving rise to an application of the
doctrine of res ipsa loquitur without medical evidence, which is ordinarily
WHEREFORE, premises considered, the Court finds accused Dr. Fernando required to show not only what occurred but how and why it occurred. When
Solidum, guilty beyond reasonable doubt as principal of the crime charged the doctrine is appropriate, all that the patient must do is prove a nexus
and is hereby sentenced to suffer the indeterminate penalty of two (2) between the particular act or omission complained of and the injury
months and one (1) day of arresto mayor as minimum to one (1) year, one (1) sustained while under the custody and management of the defendant
month and ten (10) days of prision correccional as maximum and to without need to produce expert medical testimony to establish the standard
indemnify jointly and severally with Ospital ng Maynila, private complainant of care. Resort to res ipsa loquitur is allowed because there is no other way,
Luz Gercayo the amount of ₱500,000.00 as moral damages and ₱100,000 under usual and ordinary conditions, by which the patient can obtain
as exemplary damages and to pay the costs. redress for injury suffered by him.
Accordingly, the bond posted by the accused for his provisional liberty is The lower court has found that such a nexus exists between the act
hereby cancelled.19 complained of and the injury sustained, and in line with the hornbook rules
on evidence, we will afford the factual findings of a trial court the respect they
Decision of the CA
deserve in the absence of a showing of arbitrariness or disregard of material
On January 20, 2010, the CA affirmed the conviction of Dr. facts that might affect the disposition of the case. People v. Paraiso 349 SCRA
Solidum,20 pertinently stating and ruling: 335.

The case appears to be a textbook example of res ipsa loquitur. The res ipsa loquitur test has been known to be applied in criminal cases.
Although it creates a presumption of negligence, it need not offend due
xxxx process, as long as the accused is afforded the opportunity to go forward with
his own evidence and prove that he has no criminal intent. It is in this light
x x x [P]rior to the operation, the child was evaluated and found fit to undergo
not inconsistent with the constitutional presumption of innocence of an
a major operation. As noted by the OSG, the accused himself testified that
accused.
pre-operation tests were conducted to ensure that the child could withstand
the surgery. Except for his imperforate anus, the child was healthy. The tests IN VIEW OF THE FOREGOING, the modified decision of the lower court is
and other procedures failed to reveal that he was suffering from any known affirmed.
ailment or disability that could turn into a significant risk. There was not a
hint that the nature of the operation itself was a causative factor in the SO ORDERED.21
events that finally led to hypoxia.
Dr. Solidum filed a motion for reconsideration, but the CA denied his motion
In short, the lower court has been left with no reasonable hypothesis except on May 7, 2010.22
to attribute the accident to a failure in the proper administration of
Hence, this appeal.
anesthesia, the gravamen of the charge in this case. The High Court
elucidates in Ramos vs. Court of Appeals 321 SCRA 584 – Issues
In cases where the res ipsa loquitur is applicable, the court is permitted to Dr. Solidum avers that:
find a physician negligent upon proper proof of injury to the patient, without
the aid of expert testimony, where the court from its fund of common I.
knowledge can determine the proper standard of care.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
DECISION OF THE LOWER COURT IN UPHOLDING THE PETITIONER’S
Legal Medicine – Atty. Luansing

CONVICTION FOR THE CRIME CHARGED BASED ON THE TRIAL Res ipsa loquitur is literally translated as "the thing or the transaction speaks
COURT’S OPINION, AND NOT ON THE BASIS OF THE FACTS for itself." The doctrine res ipsa loquitur means that "where the thing which
ESTABLISHED DURING THE TRIAL. ALSO, THERE IS A CLEAR causes injury is shown to be under the management of the defendant, and
MISAPPREHENSION OF FACTS WHICH IF CORRECTED, WILL RESULT the accident is such as in the ordinary course of things does not happen if
TO THE ACQUITTAL OF THE PETITIONER. FURTHER, THE HONORABLE those who have the management use proper care, it affords reasonable
COURT ERRED IN AFFIRMING THE SAID DECISION OF THE LOWER evidence, in the absence of an explanation by the defendant, that the
COURT, AS THIS BREACHES THE CRIMINAL LAW PRINCIPLE THAT THE accident arose from want of care."24 It is simply "a recognition of the
PROSECUTION MUST PROVE THE ALLEGATIONS OF THE INFORMATION postulate that, as a matter of common knowledge and experience, the very
BEYOND REASONABLE DOUBT, AND NOT ON THE BASIS OF ITS nature of certain types of occurrences may justify an inference of negligence
PRESUMPTIVE CONCLUSION. on the part of the person who controls the instrumentality causing the injury
in the absence of some explanation by the defendant who is charged with
II. negligence. It is grounded in the superior logic of ordinary human experience
and on the basis of such experience or common knowledge, negligence may
THE HONORABLE COURT OF APPEALS ERRED IN APPLYING THE
be deduced from the mere occurrence of the accident itself.
PRINCIPLE OF RES IPSA LOQUITOR (sic) WHEN THE DEFENSE WAS
ABLE TO PROVE THAT THERE IS NO NEGLIGENCE ON THE PART OF Hence, res ipsa loquitur is applied in conjunction with the doctrine of
THE PETITIONER, AND NO OVERDOSING IN THE APPLICATION OF THE common knowledge."25
ANESTHETIC AGENT BECAUSE THERE WAS NO 100% HALOTHANE
ADMINISTERED TO THE CHILD, BUT ONLY ONE (1%) PERCENT AND THE Jarcia, Jr. v. People26 has underscored that the doctrine is not a rule of
APPLICATION THEREOF, WAS REGULATED BY AN ANESTHESIA substantive law, but merely a mode of proof or a mere procedural
MACHINE. THUS, THE APPLICATION OF THE PRINCIPLE OF RES IPSA convenience. The doctrine, when applicable to the facts and circumstances of
LOQUITOR (sic) CONTRADICTED THE ESTABLISHED FACTS AND THE a given case, is not meant to and does not dispense with the requirement of
LAW APPLICABLE IN THE CASE. proof of culpable negligence against the party charged. It merely determines
and regulates what shall be prima facie evidence thereof, and helps the
III. plaintiff in proving a breach of the duty. The doctrine can be invoked when
and only when, under the circumstances involved, direct evidence is absent
THE AWARD OF MORAL DAMAGES AND EXEMPLARY DAMAGES IS NOT
and not readily available.27
JUSTIFIED THERE BEING NO NEGLIGENCE ON THE PART OF THE
PETITIONER. ASSUMING THAT THE CHILD IS ENTITLED TO FINANCIAL The applicability of the doctrine of res ipsa loquitur in medical negligence
CONSIDERATION, IT SHOULD BE ONLY AS A FINANCIAL ASSISTANCE, cases was significantly and exhaustively explained in Ramos v. Court of
BECAUSE THERE WAS NO NEGLIGENCE, AND NO OVERDOSING OF Appeals,28 where the Court said –
ANESTHETIC AGENT AND AS SUCH, THE AWARD IS SO EXCESSIVE,
AND NO FACTUAL AND LEGAL BASIS.23 Medical malpractice cases do not escape the application of this doctrine.
Thus, res ipsa loquitur has been applied when the circumstances attendant
To simplify, the following are the issues for resolution, namely: (a) whether or upon the harm are themselves of such a character as to justify an inference
not the doctrine of res ipsa loquitur was applicable herein; and (b) whether or of negligence as the cause of that harm. The application of res ipsa loquitur
not Dr. Solidum was liable for criminal negligence. in medical negligence cases presents a question of law since it is a judicial
function to determine whether a certain set of circumstances does, as a
Ruling
matter of law, permit a given inference.
The appeal is meritorious.
Although generally, expert medical testimony is relied upon in malpractice
Applicability of the Doctrine of Res Ipsa Loquitur suits to prove that a physician has done a negligent act or that he has
deviated from the standard medical procedure, when the doctrine of res ipsa
Legal Medicine – Atty. Luansing

loquitur is availed by the plaintiff, the need for expert medical testimony is to say, as a matter of common knowledge and observation, that the
dispensed with because the injury itself provides the proof of negligence. The consequences of professional care were not as such as would ordinarily have
reason is that the general rule on the necessity of expert testimony applies followed if due care had been exercised. A distinction must be made between
only to such matters clearly within the domain of medical science, and not to the failure to secure results, and the occurrence of something more unusual
matters that are within the common knowledge of mankind which may be and not ordinarily found if the service or treatment rendered followed the
testified to by anyone familiar with the facts. Ordinarily, only physicians and usual procedure of those skilled in that particular practice. It must be
surgeons of skill and experience are competent to testify as to whether a conceded that the doctrine of res ipsa loquitur can have no application in a
patient has been treated or operated upon with a reasonable degree of skill suit against a physician or surgeon which involves the merits of a diagnosis
and care. However, testimony as to the statements and acts of physicians or of a scientific treatment. The physician or surgeon is not required at his
and surgeons, external appearances, and manifest conditions which are peril to explain why any particular diagnosis was not correct, or why any
observable by any one may be given by non-expert witnesses. Hence, in particular scientific treatment did not produce the desired result. Thus, res
cases where the res ipsa loquitur is applicable, the court is permitted to find ipsa loquitur is not available in a malpractice suit if the only showing is that
a physician negligent upon proper proof of injury to the patient, without the the desired result of an operation or treatment was not accomplished. The
aid of expert testimony, where the court from its fund of common knowledge real question, therefore, is whether or not in the process of the operation any
can determine the proper standard of care. Where common knowledge and extraordinary incident or unusual event outside of the routine performance
experience teach that a resulting injury would not have occurred to the occurred which is beyond the regular scope of customary professional
patient if due care had been exercised, an inference of negligence may be activity in such operations, which, if unexplained would themselves
drawn giving rise to an application of the doctrine of res ipsa loquitur without reasonably speak to the average man as the negligent cause or causes of the
medical evidence, which is ordinarily required to show not only what untoward consequence. If there was such extraneous intervention, the
occurred but how and why it occurred. When the doctrine is appropriate, all doctrine of res ipsa loquitur may be utilized and the defendant is called upon
that the patient must do is prove a nexus between the particular act or to explain the matter, by evidence of exculpation, if he could.
omission complained of and the injury sustained while under the custody
and management of the defendant without need to produce expert medical In order to allow resort to the doctrine, therefore, the following essential
testimony to establish the standard of care. Resort to res ipsa loquitur is requisites must first be satisfied, to wit: (1) the accident was of a kind that
allowed because there is no other way, under usual and ordinary conditions, does not ordinarily occur unless someone is negligent; (2) the instrumentality
by which the patient can obtain redress for injury suffered by him. or agency that caused the injury was under the exclusive control of the
person charged; and (3) the injury suffered must not have been due to any
Thus, courts of other jurisdictions have applied the doctrine in the following voluntary action or contribution of the person injured.29
situations: leaving of a foreign object in the body of the patient after an
operation, injuries sustained on a healthy part of the body which was not The Court considers the application here of the doctrine of res ipsa loquitur
under, or in the area, of treatment, removal of the wrong part of the body inappropriate. Although it should be conceded without difficulty that the
when another part was intended, knocking out a tooth while a patient’s jaw second and third elements were present, considering that the anesthetic
was under anesthetic for the removal of his tonsils, and loss of an eye while agent and the instruments were exclusively within the control of Dr.
the patient plaintiff was under the influence of anesthetic, during or following Solidum, and that the patient, being then unconscious during the operation,
an operation for appendicitis, among others. could not have been guilty of contributory negligence, the first element was
undeniably wanting. Luz delivered Gerald to the care, custody and control of
Nevertheless, despite the fact that the scope of res ipsa loquitur has been his physicians for a pull-through operation. Except for the imperforate anus,
measurably enlarged, it does not automatically apply to all cases of medical Gerald was then of sound body and mind at the time of his submission to
negligence as to mechanically shift the burden of proof to the defendant to the physicians. Yet, he experienced bradycardia during the operation,
show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not causing loss of his senses and rendering him immobile. Hypoxia, or the
a rigid or ordinary doctrine to be perfunctorily used but a rule to be insufficiency of oxygen supply to the brain that caused the slowing of the
cautiously applied, depending upon the circumstances of each case. It is heart rate, scientifically termed as bradycardia, would not ordinarily occur in
generally restricted to situations in malpractice cases where a layman is able the process of a pull-through operation, or during the administration of
Legal Medicine – Atty. Luansing

anesthesia to the patient, but such fact alone did not prove that the resultant asphyxiation took place over a very short period of time. Under
negligence of any of his attending physicians, including the anesthesiologists, these circumstances it would not be reasonable to infer that the physician
had caused the injury. In fact, the anesthesiologists attending to him had was negligent. There was no palpably negligent act. The common experience
sensed in the course of the operation that the lack of oxygen could have been of mankind does not suggest that death would not be expected without
triggered by the vago-vagal reflex, prompting them to administer atropine to negligence. And there is no expert medical testimony to create an inference
the patient.30 that negligence caused the injury.

This conclusion is not unprecedented. It was similarly reached in Swanson v. Negligence of Dr. Solidum
Brigham,31 relevant portions of the decision therein being as follows:
In view of the inapplicability of the doctrine of res ipsa loquitur, the Court
On January 7, 1973, Dr. Brigham admitted 15-year-old Randall Swanson to next determines whether the CA correctly affirmed the conviction of Dr.
a hospital for the treatment of infectious mononucleosis. The patient's Solidum for criminal negligence.
symptoms had included a swollen throat and some breathing difficulty. Early
in the morning of January 9 the patient was restless, and at 1:30 a.m. Dr. Negligence is defined as the failure to observe for the protection of the
Brigham examined the patient. His inspection of the patient's air passage interests of another person that degree of care, precaution, and vigilance that
revealed that it was in satisfactory condition. At 4:15 a.m. Dr. Brigham the circumstances justly demand, whereby such other person suffers
received a telephone call from the hospital, advising him that the patient was injury.32Reckless imprudence, on the other hand, consists of voluntarily
having respiratory difficulty. The doctor ordered that oxygen be administered doing or failing to do, without malice, an act from which material damage
and he prepared to leave for the hospital. Ten minutes later, 4:25 a.m., the results by reason of an inexcusable lack of precaution on the part of the
hospital called a second time to advise the doctor that the patient was not person performing or failing to perform such act.33
responding. The doctor ordered that a medicine be administered, and he
Dr. Solidum’s conviction by the RTC was primarily based on his failure to
departed for the hospital. When he arrived, the physician who had been on
monitor and properly regulate the level of anesthetic agent administered on
call at the hospital had begun attempts to revive the patient. Dr. Brigham
Gerald by overdosing at 100% halothane. In affirming the conviction, the CA
joined him in the effort, but the patient died.
observed:
The doctor who performed the autopsy concluded that the patient died
On the witness stand, Dr. Vertido made a significant turnaround. He
between 4:25 a.m. and 4:30 a.m. of asphyxia, as a result of a sudden, acute
affirmed the findings and conclusions in his report except for an observation
closing of the air passage. He also found that the air passage had been
which, to all intents and purposes, has become the storm center of this
adequate to maintain life up to 2 or 3 minutes prior to death. He did not
dispute. He wanted to correct one piece of information regarding the dosage
know what caused the air passage to suddenly close.
of the anesthetic agent administered to the child. He declared that he made a
xxxx mistake in reporting a 100% halothane and said that based on the records it
should have been 100% oxygen.
It is a rare occurrence when someone admitted to a hospital for the
treatment of infectious mononucleosis dies of asphyxiation. But that is not The records he was relying on, as he explains, are the following:
sufficient to invoke res ipsa loquitur. The fact that the injury rarely occurs
(a) the anesthesia record – A portion of the chart in the record was marked as
does not in itself prove that the injury was probably caused by someone's
Exhibit 1-A and 1-B to indicate the administration at intervals of the
negligence. Mason v. Ellsworth, 3 Wn. App. 298, 474 P.2d 909 (1970). Nor is
anesthetic agent.
a bad result by itself enough to warrant the application of the doctrine.
Nelson v. Murphy, 42 Wn.2d 737, 258 P.2d 472 (1953). See 2 S. Speiser, The (b) the clinical abstract – A portion of this record that reads as follows was
Negligence Case – Res Ipsa Loquitur § 24:10 (1972). The evidence presented marked Exhibit 3A. 3B – Approximately 1 hour and 45 minutes through the
is insufficient to establish the first element necessary for application of res operation, patient was noted to have bradycardia (CR = 70) and ATSO4 0.2
ipsa loquitur doctrine. The acute closing of the patient’s air passage and his mg was immediately administered. However, the bradycardia persisted, the
Legal Medicine – Atty. Luansing

inhalational agent was shut off, and the patient was ventilated with 100% machine that closely monitored the concentration of the agent during the
oxygen and another dose of ATSO4 0.2 mg was given. However, the patient operation.
did not respond until no cardiac rate can be auscultated and the surgeons
were immediately told to stop the operation. The patient was put on a supine But most compelling is Dr. Solidum’s interpretation of the anesthesia record
position and CPR was initiated. Patient was given 1 amp of epinephrine itself, as he takes the bull by the horns, so to speak. In his affidavit, he says,
initially while continuously doing cardiac massage – still with no cardiac rate reading from the record, that the quantity of halothane used in the operation
appreciated; another ampule of epinephrine was given and after 45 secs, is one percent (1%) delivered at time intervals of 15 minutes. He studiedly
patient’s vital signs returned to normal. The entire resuscitation lasted mentions – the concentration of halothane as reflected in the anesthesia
approximately 3-5 mins. The surgeons were then told to proceed to the record (Annex D of the complaint-affidavit) is only one percent (1%) – The
closure and the child’s vital signs throughout and until the end of surgery numbers indicated in 15 minute increments for halothane is an indication
were: BP = 110/70; CR = 116/min and RR = 20-22 cycles/min (on assisted that only 1% halothane is being delivered to the patient Gerard Gercayo for
ventilation). his entire operation; The amount of halothane delivered in this case which is
only one percent cannot be summated because halothane is constantly
Dr. Vertido points to the crucial passage in the clinical abstract that the being rapidly eliminated by the body during the entire operation.
patient was ventilated with 100% oxygen and another dose of ATSO4 when
the bradycardia persisted, but for one reason or another, he read it as 100% xxxx
halothane. He was asked to read the anesthesia record on the percentage of
In finding the accused guilty, despite these explanations, the RTC argued
the dosage indicated, but he could only sheepishly note I can’t understand
that the volte-face of Dr. Vertido on the question of the dosage of the
the number. There are no clues in the clinical abstract on the quantity of the
anesthetic used on the child would not really validate the non-guilt of the
anesthetic agent used. It only contains the information that the anesthetic
anesthesiologist. Led to agree that the halothane used was not 100% as
plan was to put the patient under general anesthesia using a nonrebreathing
initially believed, he was nonetheless unaware of the implications of the
system with halothane as the sole anesthetic agent and that 1 hour and 45
change in his testimony. The court observed that Dr. Vertido had described
minutes after the operation began, bradycardia occurred after which the
the condition of the child as hypoxia which is deprivation of oxygen, a
inhalational agent was shut off and the patient administered with 100%
diagnosis supported by the results of the CT Scan. All the symptoms
oxygen. It would be apparent that the 100% oxygen that Dr. Vertido said
attributed to a failing central nervous system such as stupor, loss of
should be read in lieu of 100% halothane was the pure oxygen introduced
consciousness, decrease in heart rate, loss of usual acuity and abnormal
after something went amiss in the operation and the halothane itself was
motor function, are manifestations of this condition or syndrome. But why
reduced or shut off.
would there be deprivation of oxygen if 100% oxygen to 1% halothane was
The key question remains – what was the quantity of halothane used before used? Ultimately, to the court, whether oxygen or halothane was the object of
bradycardia set in? mistake, the detrimental effects of the operation are incontestable, and they
can only be led to one conclusion – if the application of anesthesia was really
The implication of Dr. Vertido’s admission is that there was no overdose of closely monitored, the event could not have happened.34
the anesthetic agent, and the accused Dr. Solidum stakes his liberty and
reputation on this conclusion. He made the assurance that he gave his The Prosecution did not prove the elements of reckless imprudence beyond
patient the utmost medical care, never leaving the operating room except for reasonable doubt because the circumstances cited by the CA were
a few minutes to answer the call of nature but leaving behind the other insufficient to establish that Dr. Solidum had been guilty of inexcusable lack
members of his team Drs. Abella and Razon to monitor the operation. He of precaution in monitoring the administration of the anesthetic agent to
insisted that he administered only a point 1% not 100% halothane, receiving Gerald. The Court aptly explained in Cruz v. Court of Appeals35 that:
corroboration from Dr. Abella whose initial MA in the record should be
Whether or not a physician has committed an "inexcusable lack of
enough to show that she assisted in the operation and was therefore
precaution" in the treatment of his patient is to be determined according to
conversant of the things that happened. She revealed that they were using a
the standard of care observed by other members of the profession in good
Legal Medicine – Atty. Luansing

standing under similar circumstances bearing in mind the advanced state of the duty by the physician’s failing to act in accordance with the applicable
the profession at the time of treatment or the present state of medical standard of care; (3) the causation, i.e., there must be a reasonably close and
science. In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. causal connection between the negligent act or omission and the resulting
al., this Court stated that in accepting a case, a doctor in effect represents injury; and (4) the damages suffered by the patient.36
that, having the needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ such training, care and In the medical profession, specific norms or standards to protect the patient
skill in the treatment of his patients. He therefore has a duty to use at least against unreasonable risk, commonly referred to as standards of care, set the
the same level of care that any other reasonably competent doctor would use duty of the physician to act in respect of the patient. Unfortunately, no clear
to treat a condition under the same circumstances. It is in this aspect of definition of the duty of a particular physician in a particular case exists.
medical malpractice that expert testimony is essential to establish not only Because most medical malpractice cases are highly technical, witnesses with
the standard of care of the profession but also that the physician's conduct in special medical qualifications must provide guidance by giving the knowledge
the treatment and care falls below such standard. Further, inasmuch as the necessary to render a fair and just verdict. As a result, the standard of
causes of the injuries involved in malpractice actions are determinable only medical care of a prudent physician must be determined from expert
in the light of scientific knowledge, it has been recognized that expert testimony in most cases; and in the case of a specialist (like an
testimony is usually necessary to support the conclusion as to causation. anesthesiologist), the standard of care by which the specialist is judged is the
care and skill commonly possessed and exercised by similar specialists
xxxx under similar circumstances. The specialty standard of care may be higher
than that required of the general practitioner.37
In litigations involving medical negligence, the plaintiff has the burden of
establishing appellant's negligence and for a reasonable conclusion of The standard of care is an objective standard by which the conduct of a
negligence, there must be proof of breach of duty on the part of the surgeon physician sued for negligence or malpractice may be measured, and it does
as well as a causal connection of such breach and the resulting death of his not depend, therefore, on any individual physician’s own knowledge either. In
patient. In Chan Lugay v. St Luke's Hospital, Inc., where the attending attempting to fix a standard by which a court may determine whether the
physician was absolved of liability for the death of the complainant’s wife and physician has properly performed the requisite duty toward the patient,
newborn baby, this Court held that: expert medical testimony from both plaintiff and defense experts is required.
The judge, as the trier of fact, ultimately determines the standard of care,
"In order that there may be a recovery for an injury, however, it must be after listening to the testimony of all medical experts.38
shown that the ‘injury for which recovery is sought must be the legitimate
consequence of the wrong done; the connection between the negligence and Here, the Prosecution presented no witnesses with special medical
the injury must be a direct and natural sequence of events, unbroken by qualifications in anesthesia to provide guidance to the trial court on what
intervening efficient causes.’ In other words, the negligence must be the standard of care was applicable. It would consequently be truly difficult, if
proximate cause of the injury. For, ‘negligence, no matter in what it consists, not impossible, to determine whether the first three elements of a negligence
cannot create a right of action unless it is the proximate cause of the injury and malpractice action were attendant.
complained of.’ And ‘the proximate cause of an injury is that cause, which, in
natural and continuous sequence, unbroken by any efficient intervening Although the Prosecution presented Dr. Benigno Sulit, Jr., an
cause, produces the injury, and without which the result would not have anesthesiologist himself who served as the Chairman of the Committee on
occurred.’" Ethics and Malpractice of the Philippine Society of Anesthesiologists that
investigated the complaint against Dr. Solidum, his testimony mainly
An action upon medical negligence – whether criminal, civil or administrative focused on how his Committee had conducted the investigation. 39 Even
– calls for the plaintiff to prove by competent evidence each of the following then, the report of his Committee was favorable to Dr. Solidum,40 to wit:
four elements, namely: (a) the duty owed by the physician to the patient, as
created by the physician-patient relationship, to act in accordance with the Presented for review by this committee is the case of a 3 year old male who
specific norms or standards established by his profession; (b) the breach of underwent a pull-thru operation and was administered general anesthesia
Legal Medicine – Atty. Luansing

by a team of anesthesia residents. The patient, at the time when the A Well, because it was an operation, anything can happen within that
surgeons was manipulating the recto-sigmoid and pulling it down in situation.
preparation for the anastomosis, had bradycardia. The anesthesiologists,
sensing that the cause thereof was the triggering of the vago-vagal reflex, FISCAL CABARON Now, this representation would like to ask you about the
administered atropine to block it but despite the administration of the drug slowing of heart rate, now what is the immediate cause of the slowing of the
in two doses, cardiac arrest ensued. As the records show, prompt heart rate of a person?
resuscitative measures were administered and spontaneous cardiac function
WITNESS Well, one of the more practical reason why there is slowing of the
re-established in less than five (5) minutes and that oxygen was continuously
heart rate is when you do a vagal reflex in the neck wherein the vagal
being administered throughout, unfortunately, as later become manifest,
receptors are located at the lateral part of the neck, when you press that, you
patient suffered permanent irreversible brain damage.
produce the slowing of the heart rate that produce bradycardia.
In view of the actuations of the anaesthesiologists and the administration of
Q I am pro[p]ounding to you another question doctor, what about the
anaesthesia, the committee find that the same were all in accordance with
deficiency in the supply of oxygen by the patient, would that also cause the
the universally accepted standards of medical care and there is no evidence
slowing of the heart rate?
of any fault or negligence on the part of the anaesthesiologists.
A Well that is a possibility sir, I mean not as slowing of the heart rate, if there
Dr. Antonio Vertido, a Senior Medico-Legal Officer of the National Bureau of
is a hypoxia or there is a low oxygen level in the blood, the normal thing for
Investigation, was also presented as a Prosecution witness, but his testimony
the heart is to pump or to do not a bradycardia but a … to counter act the
concentrated on the results of the physical examination he had conducted
Hypoxia that is being experienced by the patient
on Gerald, as borne out by the following portions of his direct examination, to
wit: (sic).

FISCAL CABARON Doctor, what do you mean by General Anesthetic Agent? xxxx

WITNESS General Anesthetic Agent is a substance used in the conduction of Q Now, you made mention also doctor that the use of general anesthesia
Anesthesia and in this case, halothane was used as a sole anesthetic agent. using 100% halothane and other anesthetic medications probably were
contributory to the production of hypoxia.
xxxx
A Yes, sir in general sir.41
Q Now under paragraph two of page 1 of your report you mentioned that
after one hour and 45 minutes after the operation, the patient experienced a On cross-examination, Dr. Vertido expounded more specifically on his
bradycardia or slowing of heart rate, now as a doctor, would you be able to interpretation of the anesthesia record and the factors that could have
tell this Honorable Court as to what cause of the slowing of heart rate as to caused Gerald to experience bradycardia, viz:
Gerald Gercayo?
ATTY. COMIA I noticed in, may I see your report Doctor, page 3, will you
WITNESS Well honestly sir, I cannot give you the reason why there was a kindly read to this Honorable court your last paragraph and if you will affirm
bradycardia of time because is some reason one way or another that might that as if it is correct?
caused bradycardia.
A "The use of General Anesthesia, that is using 100% Halothane probably
FISCAL CABARON What could be the possible reason? will be contributory to the production of Hypoxia and - - - -"

A Well bradycardia can be caused by anesthetic agent itself and that is a ATTY COMIA And do you affirm the figure you mentioned in this Court
possibility, we’re talking about possibility here. Doctor?

Q What other possibility do you have in mind, doctor? WITNESS Based on the records, I know the - - -
Legal Medicine – Atty. Luansing

Q 100%? Q And according to you, it might also be the result of such other, some or it
might be due to operations being conducted by the doctor at the time when
A 100% based on the records. the operation is being done might also contribute to that hypoxia is that
correct?
Q I will show you doctor a clinical record. I am a lawyer I am not a doctor but
will you kindly look at this and tell me where is 100%, the word "one A That is a possibility also.
hundred" or 1-0-0, will you kindly look at this Doctor, this Xerox copy if you
can show to this Honorable Court and even to this representation the word xxxx
"one hundred" or 1-0-0 and then call me.
ATTY. COMIA How will you classify now the operation conducted to this
xxxx Gerald, Doctor?

ATTY. COMIA Doctor tell this Honorable Court where is that 100, 1-0-0 and WITNESS Well, that is a major operation sir.
if there is, you just call me and even the attention of the Presiding Judge of
this Court. Okay, you read one by one. Q In other words, when you say major operation conducted to this Gerald,
there is a possibility that this Gerald might [be] exposed to some risk is that
WITNESS Well, are you only asking 100%, sir? correct?

ATTY. COMIA I’m asking you, just answer my question, did you see there A That is a possibility sir.
100% and 100 figures, tell me, yes or no?
Q And which according to you that Gerald suffered hypoxia is that correct?
WITNESS I’m trying to look at the 100%, there is no 100% there sir.
A Yes, sir.
ATTY. COMIA Okay, that was good, so you Honor please, may we request
also temporarily, because this is just a xerox copy presented by the fiscal, Q And that is one of the risk of that major operation is that correct?
that the percentage here that the Halothane administered by Dr. Solidum to
A That is the risk sir.42
the patient is 1% only so may we request that this portion, temporarily your
Honor, we are marking this anesthesia record as our Exhibit 1 and then this At the continuation of his cross-examination, Dr. Vertido maintained that
1% Halothane also be bracketed and the same be marked as our Exhibit "1- Gerald’s operation for his imperforate anus, considered a major operation,
A". had exposed him to the risk of suffering the same condition. 43 He then
corrected his earlier finding that 100% halothane had been administered on
xxxx
Gerald by saying that it should be 100% oxygen.44
ATTY. COMIA Doctor, my attention was called also when you said that there
Dr. Solidum was criminally charged for "failing to monitor and regulate
are so many factors that contributed to Hypoxia is that correct?
properly the levels of anesthesia administered to said Gerald Albert Gercayo
WITNESS Yes, sir. and using 100% halothane and other anesthetic medications."45However, the
foregoing circumstances, taken together, did not prove beyond reasonable
Q I remember doctor, according to you there are so many factors that doubt that Dr. Solidum had been recklessly imprudent in administering the
contributed to what you call hypoxia and according to you, when this Gerald anesthetic agent to Gerald. Indeed, Dr. Vertido’s findings did not preclude the
suffered hypoxia, there are other factors that might lead to this Hypoxia at probability that other factors related to Gerald’s major operation, which could
the time of this operation is that correct? or could not necessarily be attributed to the administration of the anesthesia,
had caused the hypoxia and had then led Gerald to experience bradycardia.
WITNESS The possibility is there, sir. Dr. Vertido revealingly concluded in his report, instead, that "although the
anesthesiologist followed the normal routine and precautionary procedures,
still hypoxia and its corresponding side effects did occur."46
Legal Medicine – Atty. Luansing

The existence of the probability about other factors causing the hypoxia has their judgment against Ospital ng Maynila void as the product of grave abuse
engendered in the mind of the Court a reasonable doubt as to Dr. Solidum’s of discretion amounting to lack of jurisdiction.
guilt, and moves us to acquit him of the crime of reckless imprudence
resulting to serious physical injuries. "A reasonable doubt of guilt," according Not surprisingly, the flawed decree raises other material concerns that the
to United States v. Youthsey:47 RTC and the CA overlooked. We deem it important, then, to express the
following observations for the instruction of the Bench and Bar.
x x x is a doubt growing reasonably out of evidence or the lack of it. It is not a
captious doubt; not a doubt engendered merely by sympathy for the For one, Ospital ng Maynila was not at all a party in the proceedings. Hence,
unfortunate position of the defendant, or a dislike to accept the responsibility its fundamental right to be heard was not respected from the outset. The R
of convicting a fellow man. If, having weighed the evidence on both sides, you TC and the CA should have been alert to this fundamental defect. Verily, no
reach the conclusion that the defendant is guilty, to that degree of certainty person can be prejudiced by a ruling rendered in an action or proceeding in
as would lead you to act on the faith of it in the most important and crucial which he was not made a party. Such a rule would enforce the constitutional
affairs of your life, you may properly convict him. Proof beyond reasonable guarantee of due process of law.
doubt is not proof to a mathematical demonstration. It is not proof beyond
Moreover, Ospital ng Maynila could be held civilly liable only when
the possibility of mistake.
subsidiary liability would be properly enforceable pursuant to Article 103 of
We have to clarify that the acquittal of Dr. Solidum would not immediately the Revised Penal Code. But the subsidiary liability seems far-fetched here.
exempt him from civil liability.1âwphi1 But we cannot now find and declare The conditions for subsidiary liability to attach to Ospital ng Maynila should
him civilly liable because the circumstances that have been established here first be complied with. Firstly, pursuant to Article 103 of the Revised Penal
do not present the factual and legal bases for validly doing so. His acquittal Code, Ospital ng Maynila must be shown to be a corporation "engaged in any
did not derive only from reasonable doubt. There was really no firm and kind of industry." The term industry means any department or branch of art,
competent showing how the injury to Gerard had been caused. That meant occupation or business, especially one that employs labor and capital, and is
that the manner of administration of the anesthesia by Dr. Solidum was not engaged in industry.49 However, Ospital ng Maynila, being a public hospital,
necessarily the cause of the hypoxia that caused the bradycardia was not engaged in industry conducted for profit but purely in charitable and
experienced by Gerard. Consequently, to adjudge Dr. Solidum civilly liable humanitarian work.50 Secondly, assuming that Ospital ng Maynila was
would be to speculate on the cause of the hypoxia. We are not allowed to do engaged in industry for profit, Dr. Solidum must be shown to be an employee
so, for civil liability must not rest on speculation but on competent evidence. of Ospital ng Maynila acting in the discharge of his duties during the
operation on Gerald. Yet, he definitely was not such employee but a
Liability of Ospital ng Maynila consultant of the hospital. And, thirdly, assuming that civil liability was
adjudged against Dr. Solidum as an employee (which did not happen here),
Although the result now reached has resolved the issue of civil liability, we the execution against him was unsatisfied due to his being insolvent.
have to address the unusual decree of the RTC, as affirmed by the CA, of
expressly holding Ospital ng Maynila civilly liable jointly and severally with WHEREFORE, the Court GRANTS the petition for review on certiorari;
Dr. Solidum. The decree was flawed in logic and in law. REVERSES AND SETS ASIDE the decision promulgated on January 20,
2010; ACQUITS Dr. Fernando P. Solidum of the crime of reckless
In criminal prosecutions, the civil action for the recovery of civil liability that imprudence resulting to serious physical injuries; and MAKES no
is deemed instituted with the criminal action refers only to that arising from pronouncement on costs of suit.
the offense charged.48 It is puzzling, therefore, how the RTC and the CA could
have adjudged Ospital ng Maynila jointly and severally liable with Dr. SO ORDERED.
Solidum for the damages despite the obvious fact that Ospital ng Maynila,
being an artificial entity, had not been charged along with Dr. Solidum. The
lower courts thereby acted capriciously and whimsically, which rendered
Legal Medicine – Atty. Luansing

G.R. No. 158996             November 14, 2008 While this case essentially involves questions of facts, we opted for the
requested review in light of questions we have on the findings of negligence
SPOUSES FREDELICTO FLORES (deceased) and FELICISIMA below, on the awarded damages and costs, and on the importance of this
FLORES, petitioners,  type of ruling on medical practice.3
vs.
SPOUSES DOMINADOR PINEDA and VIRGINIA SACLOLO, and BACKGROUND FACTS
FLORENCIO, CANDIDA, MARTA, GODOFREDO, BALTAZAR and
LUCENA, all surnamed PINEDA, as heirs of the deceased TERESITA S. Teresita Pineda (Teresita) was a 51-year old unmarried woman living in Sto.
PINEDA, and UNITED DOCTORS MEDICAL CENTER, INC., respondents. Domingo, Nueva Ecija. She consulted on April 17, 1987 her townmate, Dr.
Fredelicto Flores, regarding her medical condition. She complained of general
DECISION body weakness, loss of appetite, frequent urination and thirst, and on-and-
off vaginal bleeding. Dr. Fredelicto initially interviewed the patient and asked
BRION, J.: for the history of her monthly period to analyze the probable cause of the
vaginal bleeding. He advised her to return the following week or to go to the
This petition involves a medical negligence case that was elevated to this
United Doctors Medical Center (UDMC) in Quezon City for a general check-
Court through an appeal by certiorari  under Rule 45 of the Rules of Court.
up. As for her other symptoms, he suspected that Teresita might be suffering
The petition assails the Decision1 of the Court of Appeals (CA) in CA G.R. CV
from diabetes and told her to continue her medications.4
No. 63234, which affirmed with modification the Decision 2 of the Regional
Trial Court (RTC) of Nueva Ecija, Branch 37 in Civil Case No. SD-1233. The Teresita did not return the next week as advised. However, when her
dispositive portion of the assailed CA decision states: condition persisted, she went to further consult Dr. Flores at his UDMC
clinic on April 28, 1987, travelling for at least two hours from Nueva Ecija to
WHEREFORE, premises considered, the assailed Decision of the Regional
Quezon City with her sister, Lucena Pineda. They arrived at UDMC at
Trial Court of Baloc, Sto. Domingo, Nueva Ecija, Branch 37 is hereby
around 11:15 a.m.. Lucena later testified that her sister was then so weak
AFFIRMED but with modifications as follows:
that she had to lie down on the couch of the clinic while they waited for the
1) Ordering defendant-appellants Dr. and Dra. Fredelicto A. Flores and the doctor. When Dr. Fredelicto arrived, he did a routine check-up and ordered
United Doctors Medical Center, Inc. to jointly and severally pay the plaintiff- Teresita's admission to the hospital. In the admission slip, he directed the
appellees - heirs of Teresita Pineda, namely, Spouses Dominador Pineda and hospital staff to prepare the patient for an "on call" D&C5 operation to be
Virginia Saclolo and Florencio, Candida, Marta, Godofredo, Baltazar and performed by his wife, Dr. Felicisima Flores (Dr. Felicisima). Teresita was
Lucena, all surnamed Pineda, the sum of P400,000.00 by way of moral brought to her hospital room at around 12 noon; the hospital staff forthwith
damages; took her blood and urine samples for the laboratory tests 6 which Dr.
Fredelicto ordered.
2) Ordering the above-named defendant-appellants to jointly and severally
pay the above-named plaintiff-appellees the sum of P100,000.00 by way of At 2:40 p.m. of that same day, Teresita was taken to the operating room. It
exemplary damages; was only then that she met Dr. Felicisima, an obstetrician and gynecologist.
The two doctors - Dr. Felicisima and Dr. Fredelicto, conferred on the patient's
3) Ordering the above-named defendant-appellants to jointly and severally medical condition, while the resident physician and the medical intern gave
pay the above-named plaintiff-appellees the sum of P36,000.00 by way of Dr. Felicisima their own briefings. She also interviewed and conducted an
actual and compensatory damages; and internal vaginal examination of the patient which lasted for about 15
minutes. Dr. Felicisima thereafter called up the laboratory for the results of
4) Deleting the award of attorney's fees and costs of suit.
the tests. At that time, only the results for the blood sugar (BS), uric acid
SO ORDERED. determination, cholesterol determination, and complete blood count (CBC)
were available. Teresita's BS count was 10.67mmol/l7 and her CBC was
109g/l.8
Legal Medicine – Atty. Luansing

Based on these preparations, Dr. Felicisima proceeded with the D&C addition, they claim that nothing on record shows that the death of Teresita
operation with Dr. Fredelicto administering the general anesthesia. The D&C could have been averted had they employed means other than what they
operation lasted for about 10 to 15 minutes. By 3:40 p.m., Teresita was had adopted in the ministration of the patient.
wheeled back to her room.
THE COURT'S RULING
A day after the operation (or on April 29, 1987), Teresita was subjected to an
ultrasound examination as a confirmatory procedure. The results showed We do not find the petition meritorious.
that she had an enlarged uterus and myoma uteri.9 Dr. Felicisima, however,
The respondents' claim for damages is predicated on their allegation that the
advised Teresita that she could spend her recovery period at home. Still
decision of the petitioner spouses to proceed with the D&C operation,
feeling weak, Teresita opted for hospital confinement.
notwithstanding Teresita's condition and the laboratory test results,
Teresita's complete laboratory examination results came only on that day amounted to negligence. On the other hand, the petitioner spouses contend
(April 29, 1987). Teresita's urinalysis showed a three plus sign (+++) that a D&C operation is the proper and accepted procedure to address
indicating that the sugar in her urine was very high. She was then placed vaginal bleeding - the medical problem presented to them. Given that the
under the care of Dr. Amado Jorge, an internist. patient died after the D&C, the core issue is whether the decision to proceed
with the D&C operation was an honest mistake of judgment or one
By April 30, 1987, Teresita's condition had worsened. She experienced amounting to negligence.
difficulty in breathing and was rushed to the intensive care unit. Further
tests confirmed that she was suffering from Diabetes Mellitus Type Elements of a Medical Negligence Case
II.10 Insulin was administered on the patient, but the medication might have
A medical negligence case is a type of claim to redress a wrong committed
arrived too late. Due to complications induced by diabetes, Teresita died in
by a medical professional, that has caused bodily harm to or the death of a
the morning of May 6, 1987.11
patient. There are four elements involved in a medical negligence case,
Believing that Teresita's death resulted from the negligent handling of her namely: duty, breach, injury, and proximate causation.14
medical needs, her family (respondents) instituted an action for damages
Duty refers to the standard of behavior which imposes restrictions on one's
against Dr. Fredelicto Flores and Dr. Felicisima Flores (collectively referred to
conduct.15 The standard in turn refers to the amount of competence
as the petitioner spouses) before the RTC of Nueva Ecija.
associated with the proper discharge of the profession. A physician is
The RTC ruled in favor of Teresita's family and awarded actual, moral, and expected to use at least the same level of care that any other reasonably
exemplary damages, plus attorney's fees and costs. 12 The CA affirmed the competent doctor would use under the same circumstances. Breach of duty
judgment, but modified the amount of damages awarded and deleted the occurs when the physician fails to comply with these professional standards.
award for attorney's fees and costs of suit.13 If injury results to the patient as a result of this breach, the physician is
answerable for negligence.16
Through this petition for review on certiorari, the petitioner spouses -Dr.
Fredelicto (now deceased) and Dr. Felicisima Flores - allege that the RTC and As in any civil action, the burden to prove the existence of the necessary
CA committed a reversible error in finding them liable through negligence for elements rests with the plaintiff.17 To successfully pursue a claim, the
the death of Teresita Pineda. plaintiff must prove by preponderance of evidence that, one, the physician
either failed to do something which a reasonably prudent health care provider
ASSIGNMENT OF ERRORS would have done, or that he did something that a reasonably prudent provider
would not have done; and two, the failure or action caused injury to the
The petitioner spouses contend that they exercised due care and prudence in patient.18 Expert testimony is therefore essential since the factual issue of
the performance of their duties as medical professionals. They had attended whether a physician or surgeon has exercised the requisite degree of skill
to the patient to the best of their abilities and undertook the management of and care in the treatment of his patient is generally a matter of expert
her case based on her complaint of an on-and-off vaginal bleeding. In opinion.19
Legal Medicine – Atty. Luansing

Standard of Care and Breach of Duty level of 10.67mmol/l did not necessarily mean that she was a diabetic
considering that this was random blood sugar;23 there were other factors
D&C is the classic gynecologic procedure for the evaluation and possible that might have caused Teresita's blood sugar to rise such as the taking of
therapeutic treatment for abnormal vaginal bleeding.20 That this is the blood samples during lunchtime and while patient was being given intra-
recognized procedure is confirmed by Drs. Salvador Nieto (Dr. Nieto) and venous dextrose.24 Furthermore, they claim that their principal concern was
Joselito Mercado (Dr. Mercado), the expert witnesses presented by the to determine the cause of and to stop the vaginal bleeding.
respondents:
The petitioner spouses' contentions, in our view, miss several
DR. NIETO: [W]hat I know among obstetricians, if there is bleeding, they points. First, as early as April 17, 1987, Teresita was already suspected to be
perform what we call D&C for diagnostic purposes. suffering from diabetes.25 This suspicion again arose right before the D&C
operation on April 28, 1987 when the laboratory result revealed Teresita's
xxx xxx xxx
increased blood sugar level.26 Unfortunately, the petitioner spouses did not
Q: So are you trying to tell the Court that D&C can be a diagnostic wait for the full medical laboratory results before proceeding with the D&C, a
treatment? fact that was never considered in the courts below. Second, the petitioner
spouses were duly advised that the patient was experiencing general body
A: Yes, sir. Any doctor knows this.21 weakness, loss of appetite, frequent urination, and thirst - all of which are
classic symptoms of diabetes.27 When a patient exhibits symptoms typical of
Dr. Mercado, however, objected with respect to the time the D&C operation
a particular disease, these symptoms should, at the very least, alert the
should have been conducted in Teresita's case. He opined that given the
physician of the possibility that the patient may be afflicted with the
blood sugar level of Teresita, her diabetic condition should have been
suspected disease:
addressed first:
Expert testimony for the plaintiff showed that] tests should have been ordered immediately on admission to the hospital in view of the symptoms
Q: Why do you consider the time of performance of the D&C not presented, and that failure to recognize the existence of diabetes constitutes negligence.28
appropriate?
Third, the petitioner spouses cannot claim that their principal concern was
A: Because I have read the record and I have seen the urinalysis, [there is]
the vaginal bleeding and should not therefore be held accountable for
spillage in the urine, and blood sugar was 10.67
complications coming from other sources. This is a very narrow and self-
Q: What is the significance of the spillage in the urine? serving view that even reflects on their competence.

A: It is a sign that the blood sugar is very high. Taken together, we find that reasonable prudence would have shown that
diabetes and its complications were foreseeable harm that should have been
Q: Does it indicate sickness? taken into consideration by the petitioner spouses. If a patient suffers from
some disability that increases the magnitude of risk to him, that
A: 80 to 95% it means diabetes mellitus. The blood sugar was 10.67. disability must be taken into account so long as it is or should have
xxx xxx xxx been known to the physician.29 And when the patient is exposed to an
increased risk, it is incumbent upon the physician to take commensurate
COURT: In other words, the operation conducted on the patient, your and adequate precautions.
opinion, that it is inappropriate?
Taking into account Teresita's high blood sugar,30 Dr. Mendoza opined that
A: The timing of [when] the D&C [was] done, based on the record, in my the attending physician should have postponed the D&C operation in order
personal opinion, that D&C should be postponed a day or two.22 to conduct a confirmatory test to make a conclusive diagnosis of diabetes
and to refer the case to an internist or diabetologist. This was corroborated by
The petitioner spouses countered that, at the time of the operation, there was Dr. Delfin Tan (Dr. Tan), an obstetrician and gynecologist, who stated that
nothing to indicate that Teresita was afflicted with diabetes: a blood sugar
Legal Medicine – Atty. Luansing

the patient's diabetes should have been managed by an internist prior to, to uncover problem areas that may require further investigation or be
during, and after the operation.31 amenable to preoperative optimization.

Apart from bleeding as a complication of pregnancy, vaginal bleeding is only If the preoperative evaluation uncovers significant comorbidity or evidence of
rarely so heavy and life-threatening that urgent first-aid measures are poor control of an underlying disease process, consultation with an internist
required.32 Indeed, the expert witnesses declared that a D&C operation on a or medical specialist may be required to facilitate the work-up and direct
hyperglycemic patient may be justified only when it is an emergency case - management. In this process, communication between the surgeons and the
when there is profuse vaginal bleeding. In this case, we choose not to rely on consultants is essential to define realistic goals for this optimization process
the assertions of the petitioner spouses that there was profuse bleeding, not and to expedite surgical management.39 [Emphasis supplied.]
only because the statements were self-serving, but also because the
petitioner spouses were inconsistent in their testimonies. Dr. Fredelicto Significantly, the evidence strongly suggests that the pre-operative evaluation
testified earlier that on April 28, he personally saw the bleeding,33 but later was less than complete as the laboratory results were fully reported only on
on said that he did not see it and relied only on Teresita's statement that she the day following the D&C operation. Dr. Felicisima only secured a telephone
was bleeding.34 He went on to state that he scheduled the D&C operation report of the preliminary laboratory result prior to the D&C. This preliminary
without conducting any physical examination on the patient. report did not include the 3+ status of sugar in the patient's urine40 - a result
highly confirmatory of diabetes.
The likely story is that although Teresita experienced vaginal bleeding on
April 28, it was not sufficiently profuse to necessitate an immediate Because the D&C was merely an elective procedure, the patient's
emergency D&C operation. Dr. Tan35 and Dr. Mendoza36 both testified that uncontrolled hyperglycemia presented a far greater risk than her on-and-off
the medical records of Teresita failed to indicate that there was profuse vaginal bleeding. The presence of hyperglycemia in a surgical patient is
vaginal bleeding. The claim that there was profuse vaginal bleeding although associated with poor clinical outcomes, and aggressive glycemic control
this was not reflected in the medical records strikes us as odd since the main positively impacts on morbidity and mortality.41 Elective surgery in people
complaint is vaginal bleeding. A medical record is the only document that with uncontrolled diabetes should preferably be scheduled after acceptable
maintains a long-term transcription of patient care and as such, its glycemic control has been achieved.42 According to Dr. Mercado, this is done
maintenance is considered a priority in hospital practice. Optimal record- by administering insulin on the patient.43
keeping includes all patient inter-actions. The records should always be
The management approach in this kind of patients always includes insulin
clear, objective, and up-to-date.37 Thus, a medical record that does not
therapy in combination with dextrose and potassium infusion. Insulin xxx
indicate profuse medical bleeding speaks loudly and clearly of what it does
promotes glucose uptake by the muscle and fat cells while decreasing
not contain.
glucose production by the liver xxx. The net effect is to lower blood glucose
That the D&C operation was conducted principally to diagnose the cause of levels.44
the vaginal bleeding further leads us to conclude that it was merely an
The prudent move is to address the patient's hyperglycemic state
elective procedure, not an emergency case. In an elective procedure, the
immediately and promptly before any other procedure is undertaken. In this
physician must conduct a thorough pre-operative evaluation of the patient in
case, there was no evidence that insulin was administered on Teresita prior
order to adequately prepare her for the operation and minimize possible risks
to or during the D&C operation. Insulin was only administered two days after
and complications. The internist is responsible for generating a
the operation.
comprehensive evaluation of all medical problems during the pre-operative
evaluation.38 As Dr. Tan testified, the patient's hyperglycemic condition should have been
managed not only before and during the operation, but also immediately
The aim of pre-operative evaluation is not to screen broadly for undiagnosed
after. Despite the possibility that Teresita was afflicted with diabetes, the
disease, but rather to identify and quantify comorbidity that may impact on
possibility was casually ignored even in the post-operative evaluation of the
the operative outcome. This evaluation is driven by findings on history and
patient; the concern, as the petitioner spouses expressly admitted, was
physical examination suggestive of organ system dysfunction…The goal is
limited to the complaint of vaginal bleeding. Interestingly, while the
Legal Medicine – Atty. Luansing

ultrasound test confirmed that Teresita had a myoma in her uterus, she was surgical stress can aggravate the patient's hyperglycemia: when stress
advised that she could be discharged a day after the operation and that her occurs, the diabetic's body, especially the autonomic system, reacts by
recovery could take place at home. This advice implied that a day after the secreting hormones which are counter-regulatory; she can have prolonged
operation and even after the complete laboratory results were submitted, the hyperglycemia which, if unchecked, could lead to death.48 Medical literature
petitioner spouses still did not recognize any post-operative concern that further explains that if the blood sugar has become very high, the patient
would require the monitoring of Teresita's condition in the hospital. becomes comatose (diabetic coma). When this happens over several days, the
body uses its own fat to produce energy, and the result is high levels of waste
The above facts, point only to one conclusion - that the petitioner spouses products (called ketones) in the blood and urine (called diabetic
failed, as medical professionals, to comply with their duty to observe the ketoacidiosis, a medical emergency with a significant mortality).49 This was
standard of care to be given to hyperglycemic/diabetic patients undergoing apparently what happened in Teresita's case; in fact, after she had been
surgery. Whether this breach of duty was the proximate cause of Teresita's referred to the internist Dr. Jorge, laboratory test showed that her blood
death is a matter we shall next determine. sugar level shot up to 14.0mmol/l, way above the normal blood sugar range.
Thus, between the D&C and death was the diabetic complication that could
Injury and Causation
have been prevented with the observance of standard medical precautions.
As previously mentioned, the critical and clinching factor in a medical The D&C operation and Teresita's death due to aggravated diabetic condition
negligence case is proof of the causal connection between the negligence is therefore sufficiently established.
which the evidence established and the plaintiff's injuries;45 the plaintiff must
The trial court and the appellate court pinned the liability for Teresita's death
plead and prove not only that he had been injured and defendant has been
on both the petitioner spouses and this Court finds no reason to rule
at fault, but also that the defendant's fault caused the injury. A verdict in a
otherwise. However, we clarify that Dr. Fredelicto's negligence is not solely the
malpractice action cannot be based on speculation or conjecture. Causation
act of ordering an "on call" D&C operation when he was mainly
must be proven within a reasonable medical probability based upon
an anaesthesiologist who had made a very cursory examination of the
competent expert testimony.46
patient's vaginal bleeding complaint. Rather, it was his failure from the very
The respondents contend that unnecessarily subjecting Teresita to a D&C start to identify and confirm, despite the patient's complaints and his own
operation without adequately preparing her, aggravated her hyperglycemic suspicions, that diabetes was a risk factor that should be guarded against,
state and caused her untimely demise. The death certificate of Teresita lists and his participation in the imprudent decision to proceed with the D&C
down the following causes of death: operation despite his early suspicion and the confirmatory early laboratory
results. The latter point comes out clearly from the following exchange during
Immediate cause: Cardiorespiratory arrest the trial:

Q: On what aspect did you and your wife consult [with] each other?
Antecedent cause: Septicemic
shock, ketoacidocis A: We discussed on the finding of the laboratory [results] because the
hemoglobin was below normal, the blood sugar was elevated, so that we have
to evaluate these laboratory results - what it means.
Underlying cause: Diabetes Mellitus II
Q: So it was you and your wife who made the evaluation when it was phoned
Other significant conditions in?

A: Yes, sir.
contributing to death: Renal Failure - Acute47
Q: Did your wife, before performing D&C ask your opinion whether or not
Stress, whether physical or emotional, is a factor that can aggravate diabetes; she can proceed?
a D&C operation is a form of physical stress. Dr. Mendoza explained how
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A: Yes, anyway, she asked me whether we can do D&C based on my 2206 of the Civil Code, which states that "the amount of damages for death
experience. caused by a xxx quasi-delict shall be at least three thousand pesos,53 even
though there may have been mitigating circumstances xxx." This is a
Q: And your answer was in the positive notwithstanding the elevation question of law that the CA missed in its decision and which we now decide in
of blood sugar? the respondents' favor.
A: Yes, sir, it was both our disposition to do the D&C. [Emphasis The same article allows the recovery of moral damages in case of death
supplied.]50 caused by a quasi-delict and enumerates the spouse, legitimate or
illegitimate ascendants or descendants as the persons entitled thereto. Moral
If Dr. Fredelicto believed himself to be incompetent to treat the diabetes, not
damages are designed to compensate the claimant for the injury suffered,
being an internist or a diabetologist (for which reason he referred Teresita to
that is, for the mental anguish, serious anxiety, wounded feelings which the
Dr. Jorge),51 he should have likewise refrained from making a decision to
respondents herein must have surely felt with the unexpected loss of their
proceed with the D&C operation since he was niether an obstetrician nor a
daughter. We affirm the appellate court's award of P400,000.00 by way
gynecologist.
of moral damages to the respondents.
These findings lead us to the conclusion that the decision to proceed with the
We similarly affirm the grant of exemplary damages. Exemplary damages are
D&C operation, notwithstanding Teresita's hyperglycemia and without
imposed by way of example or correction for the public good. 54 Because of
adequately preparing her for the procedure, was contrary to the standards
the petitioner spouses' negligence in subjecting Teresita to an operation
observed by the medical profession. Deviation from this standard amounted
without first recognizing and addressing her diabetic condition, the appellate
to a breach of duty which resulted in the patient's death. Due to this
court awarded exemplary damages to the respondents in the amount
negligent conduct, liability must attach to the petitioner spouses.
of P100,000.00. Public policy requires such imposition to suppress the
Liability of the Hospital wanton acts of an offender.55 We therefore affirm the CA's award as an
example to the medical profession and to stress that the public good requires
In the proceedings below, UDMC was the spouses Flores' co-defendant. The stricter measures to avoid the repetition of the type of medical malpractice
RTC found the hospital jointly and severally liable with the petitioner that happened in this case.
spouses, which decision the CA affirmed. In a Resolution dated August 28,
2006, this Court however denied UDMC's petition for review on certiorari. With the award of exemplary damages, the grant of attorney's fees is legally
Since UDMC's appeal has been denied and they are not parties to this case, in order.56 We therefore reverse the CA decision deleting these awards, and
we find it unnecessary to delve on the matter. Consequently, the RTC's grant the respondents the amount of P100,000.00 as attorney's fees taking
decision, as affirmed by the CA, stands. into consideration the legal route this case has taken.

Award of Damages WHEREFORE, we AFFIRM the Decision of the CA dated June 20, 2003 in
CA G.R. CV No. 63234 finding petitioner spouses liable for negligent medical
Both the trial and the appellate court awarded actual damages as practice. We likewise AFFIRM the awards of actual and compensatory
compensation for the pecuniary loss the respondents suffered. The loss was damages of P36,000.00; moral damages of P400,000.00; and exemplary
presented in terms of the hospital bills and expenses the respondents damages of P100,000.00.
incurred on account of Teresita's confinement and death. The settled rule is
that a plaintiff is entitled to be compensated for proven pecuniary loss. 52This We MODIFY the CA Decision by additionally granting an award
proof the respondents successfully presented. Thus, we affirm the award of P50,000.00 as death indemnity and by reversing the deletion of the award
of actual damages of P36,000.00 representing the hospital expenses the of attorney's fees and costs and restoring the award of P100,000.00 as
patient incurred. attorney's fees. Costs of litigation are adjudged against petitioner spouses.

In addition to the award for actual damages, the respondent heirs of Teresita To summarize, the following awards shall be paid to the family of the late
are likewise entitled to P50,000.00 as death indemnity pursuant to Article Teresita Pineda:
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1. The sum of P36,000.00 by way of actual and compensatory damages;

2. The sum of P50,000.00 by way of death indemnity;

3. The sum of P400,000.00 by way of moral damages;

4. The sum of P100,000.00 by way of exemplary damages;

5. The sum of P100,000.00 by way of attorney's fees; and

6. Costs.

SO ORDERED.