SC: Expert witnesses not always needed to prove medical malpractice

An expert witness is not always required to prove there is medical malpractice, the Supreme Court said as it affirmed the decision of a Davao court on the damage suit against the doctor whose patient could not properly open and close his mouth and was in pain after an operation.

The Supreme Court, in a decision made public Friday, said a testimony from an expert witness is required “to define the standard of behavior by which the court may determine whether the physician has properly performed the requisite duty toward the patient.”

However, that is not always the case, the Supreme Court said as it explained that expert witness is not needed when the principle of “res ipsa loquitur” (the thing speaks for itself) is applicable.

The high court said some of the instances when expert witness is not needed are when leaving of a foreign object in the body of the patient, removal of the wrong part of the body, knocking out a tooth while the patient’s jaw was under anesthetic for the removal of tonsils, among others.

The high court said the requisite when an expert testimony is not needed are the following: 1. the accident was of a kind that does not ordinarily occur unless someone is negligent; 2. the instrumentality 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 voluntary action or contribution of the person injured.

In this case, Dr. Rolando G. Gestuvo performed a surgery on Nilo Rosit who had a motorcycle accident in Jan. 15, 1999 and suffered a fractured jaw.

During the operation, the doctor used a metal plate fastened to the jaw with metal screws to immobilize the mandible.

Based on the Supreme Court’s narration of facts, since the surgery required the smallest screw available, the doctor cut the screws on hand to make them smaller despite knowing that there are available smaller titanium screws in Manila.

After the procedure, Rosit could not properly open and close his mouth and was in pain. X-ray result showed that the screws used touched his molar. Then, Dr. Gestuvo referred him to a dentist who performed the operation in Cebu.

Dr. Gestuvo gave him P4,500 to defray the cost of his dental treatment.

In Cebu, the dentist removed the plate and screws installed by Dr. Gestuvo and replaced them with smaller titanium plate and screws. The molar hit by with the screw and some bone fragments were removed.

When he returned to Davao, Rosit demanded reimbursement from Dr. Gestuvo but the latter refused thus he filed a civil suit against the doctor.

The Davao court ordered Dr. Gestuvo to reimburse the actual expenses incurred by Rosit amounting to P140,199.13, reimbursement of filing fees, attorney’s fees, moral and exemplary damages.

Dr. Gestuvo took the case to the Court of Appeals who ruled in his favor.

The appeals court said, post operative pain is not unusual and there is no proof that the molar removed is the same molar hit by the screw.

The high court disagree as it pointed out that the dentist, in  his affidavit specifically said that the molar was removed because it was hit by the wrong screw.

“The three requisites are met. Dr. Gestuvo’s actions are clearly negligent. Likewise, Dr. Gestuvo acted in bad faith or in a wanton, fraudulent, reckless, oppressive manner when he was in breach of the doctrine of informed consent,” the high court said in the decision penned by Associate Justice Presbitero J. Velasco Jr.

“Dr. Gestuvo had the duty to fully explain to Rosit the risks of using large screws for the operation. More importantly, he concealed the correct medical procedure of using smaller titanium screws mainly because of his erroneous belief that Rosit cannot afford to buy the expensive titanium screws,” the high court said. IDL