Mendoza vs. Casumpang

Leaving a sponge or other foreign substance in a patient’s body after the incision has been closed is at least prima facie negligence by the operating surgeon and is considered negligence per se; the surgeon must personally ascertain that the counts of instruments and materials used before surgery and prior to sewing the patient up have been correctly done.

Josephine Casumpang was a patient of petitioner Dr. Mariter Mendoza. After Josephine’s death, her husband Adriano and their children Jennifer Adriane and John Andre were substituted as respondents in her action for damages. The dispute concerns a physician’s civil liability for medical negligence and the damages recoverable under the Civil Code, particularly exemplary damages, civil indemnity for death, and attorney’s fees.

Josephine Casumpang, a 40-year-old housewife, was a patient of petitioner Dr. Mariter Mendoza. On February 13, 1993, Dr. Mendoza performed hysterectomy and myomectomy on Josephine at the Iloilo Doctors’ Hospital. After the operation, Josephine experienced recurring fever, nausea, and vomiting.

Three months after the operation, while taking a bath, Josephine noticed something protruding from her genital. She tried calling Dr. Mendoza to report it, but the latter was unavailable. Josephine instead consulted Dr. Edna Jamandre-Gumban, who extracted a foul smelling, partially expelled rolled gauze from her cervix. Dr. Mendoza later maintained that no gauze or surgical material was left in Josephine’s body after her surgery, as evidenced by the surgical sponge count in the hospital record.

The discovery of the gauze and the illness Josephine went through prompted her to file a damage suit against Dr. Mendoza before the RTC of Iloilo City. Josephine died before trial could end, and her husband Adriano and their children Jennifer Adriane and John Andre were substituted in the case. She was 40 years old when she died.

In the proceedings below, the RTC found that Josephine did not undergo any other surgical operation and that it was unlikely for her or for any woman to inject a roll of gauze into her cervix. The CA found that a gauze remained in Josephine’s body after surgery and that Dr. Mendoza thereby breached her duty as a physician.

• Surgical Sponge Count: Petitioner claimed that no gauze or surgical material was left in Josephine’s body after her surgery, as evidenced by the surgical sponge count in the hospital record.

• Question of Fact / Factual Findings: Whether the Supreme Court may review the CA’s factual finding that a gauze was left in Josephine’s body after surgery, absent any recognized exception to the rule that CA factual findings are binding.
• Medical Negligence: Whether Dr. Mendoza is liable for medical negligence for leaving a surgical gauze inside Josephine’s body after the operation.
• Exemplary Damages: Whether exemplary damages may be awarded against Dr. Mendoza in addition to moral damages.
• Civil Indemnity: Whether civil indemnity for Josephine’s death may be awarded to respondents as heirs.
• Attorney’s Fees: Whether the award of attorney’s fees should be increased.

• Question of Fact / Factual Findings: No. The petition raises a question of fact, and the CA’s factual findings are generally binding absent exceptions, none of which applies.
• Medical Negligence: Yes. Leaving a sponge or foreign substance in the wound after the incision has been closed is at least prima facie negligence by the operating surgeon and is considered negligence per se.
• Exemplary Damages: Yes. Exemplary damages may be awarded in cases of gross negligence and by way of example or correction for the public good, in addition to moral damages.
• Civil Indemnity: Yes. Civil indemnity under Article 2206 of the Civil Code is proper for death resulting from petitioner’s negligence, fixed at ₱50,000.00 by prevailing jurisprudence.
• Attorney’s Fees: Yes. It is just and equitable under Article 2208 of the Civil Code to increase attorney’s fees from ₱20,000.00 to ₱50,000.00.

• Question of Fact / Factual Findings: Petitions for review on certiorari from the CA may raise only questions of law; the factual findings of the CA are generally binding on the Supreme Court, subject to few exceptions. Petitioner’s claim that no gauze was left challenged the CA’s factual finding. None of the exceptions applied, so the finding that a gauze remained in Josephine’s body after surgery stood.
• Medical Negligence: The RTC pointed out that Josephine did not undergo any other surgical operation and that it was unlikely for her or for any woman to inject a roll of gauze into her cervix. In Professional Services, Inc. vs. Agana, the Court ruled that an operation requiring the placing of sponges in the incision is not complete until the sponges are properly removed, and that leaving sponges or other foreign substances in the wound after the incision has been closed is at least prima facie negligence by the operating surgeon. Such an act is so inconsistent with due care as to raise an inference of negligence, and authorities treat it as negligence per se. A surgical operation is the responsibility of the surgeon, who must personally ascertain that the counts of instruments and materials used before surgery and prior to sewing the patient up have been correctly done. Thus, Dr. Mendoza was liable.
• Exemplary Damages: Neither the CA nor the RTC awarded exemplary damages. Under Article 2229 of the Civil Code, exemplary damages are imposed by way of example or correction for the public good, in addition to moral damages, and under Article 2231 they may be awarded in cases of gross negligence. To provide an example to the medical profession and to stress the need for constant vigilance in attending to a patient’s health, exemplary damages were in order.
• Civil Indemnity: Josephine’s death resulted from petitioner’s negligence. Under Article 2206 of the Civil Code, civil indemnity is recoverable for death caused by a crime or quasi-delict, and prevailing jurisprudence fixes the amount at ₱50,000.00. Respondents, as heirs, were entitled to this award.
• Attorney’s Fees: Under Article 2208 of the Civil Code, attorney’s fees may be awarded when just and equitable. The Court deemed it just and equitable to increase the award from ₱20,000.00 to ₱50,000.00.

• Prima facie negligence and negligence per se in leaving surgical sponges — Leaving sponges or other foreign substances in the wound after the incision has been closed is at least prima facie negligence by the operating surgeon; the act is so inconsistent with due care as to raise an inference of negligence, and authorities consider it negligence per se. The Court applied this doctrine because a gauze remained in Josephine’s body after surgery, making Dr. Mendoza liable.
• Surgeon’s personal responsibility for surgical counts — A surgical operation is the responsibility of the surgeon performing it; the surgeon must personally ascertain that the counts of instruments and materials used before surgery and prior to sewing the patient up have been correctly done. The Court applied this to hold Dr. Mendoza responsible for the gauze left inside Josephine.
• Exemplary damages for gross negligence — Under Articles 2229 and 2231 of the Civil Code, exemplary damages are imposed by way of example or correction for the public good, in addition to moral damages, and may be awarded in cases of gross negligence. The Court applied this to impose additional exemplary damages to provide an example to the medical profession and stress constant vigilance.
• Civil indemnity for death caused by negligence — Under Article 2206 of the Civil Code, damages for death caused by a crime or quasi-delict shall be at least ₱3,000.00, even though there may have been mitigating circumstances; prevailing jurisprudence fixes the amount at ₱50,000.00. The Court applied this because Josephine’s death resulted from petitioner’s negligence.
• Attorney’s fees when just and equitable — Under Article 2208 of the Civil Code, attorney’s fees may be recovered when just and equitable. The Court applied this to increase the award to ₱50,000.00.

• "An operation requiring the placing of sponges in the incision is not complete until the sponges are properly removed, and it is settled that the leaving of sponges or other foreign substances in the wound after the incision has been closed is at least prima facie negligence by the operating surgeon. To put it simply, such act is considered so inconsistent with due care as to raise an inference of negligence." — This is the ratio decidendi on medical negligence, establishing that leaving surgical materials inside a patient is prima facie negligence.
• "There are even legions of authorities to the effect that such act is negligence per se." — This reinforces that leaving surgical materials is not merely prima facie but negligence per se.
• "A surgical operation is the responsibility of the surgeon performing it. He must personally ascertain that the counts of instruments and materials used before the surgery and prior to sewing the patient up have been correctly done." — This defines the surgeon’s non-delegable duty to account for surgical materials.
• "To provide an example to the medical profession and to stress the need for constant vigilance in attending to a patient’s health, the award of exemplary damages in this case is in order." — This justifies the award of exemplary damages.

• Professional Services, Inc. vs. Agana, G.R. No. 126297, January 31, 2007, 513 SCRA 478, 490 — Cited as controlling precedent for the rule that leaving sponges or other foreign substances in the wound after incision is closed is at least prima facie negligence, and authorities consider it negligence per se.
• The Insular Life Assurance Company, Ltd. vs. Court of Appeals, G.R. No. 126850, April 28, 2004, 428 SCRA 79, 85-86 — Cited for the rule that factual findings of the CA are generally binding on the Supreme Court in petitions for review on certiorari, subject to few exceptions.
• Philippine Hawk Corporation vs. Lee, G.R. No. 166869, February 16, 2010, 612 SCRA 576, 594 — Cited for the fixed amount of civil indemnity for death at ₱50,000.00 under prevailing jurisprudence.

• Article 2229, Civil Code — Exemplary damages are imposed by way of example or correction for the public good, in addition to moral damages. Applied to justify exemplary damages.
• Article 2231, Civil Code — Exemplary damages may be awarded in cases of gross negligence. Applied because petitioner’s negligence was gross.
• Article 2206, Civil Code — The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos, even though there may have been mitigating circumstances. Applied to award civil indemnity for Josephine’s death, fixed at ₱50,000.00 by jurisprudence.
• Article 2208, Civil Code — Attorney’s fees may be recovered when just and equitable. Applied to increase attorney’s fees from ₱20,000.00 to ₱50,000.00.

Presbitero J. Velasco, Jr. (Chairperson), Diosdado M. Peralta, Jose Catral Mendoza, and Estela M. Perlas-Bernabe.