Dissension in the Court: June 2011

The following relates to select decisions promulgated by the High Court in June 2011 where at least one Justice felt compelled to express his dissent from the decision penned by the ponente.

1.         Informed Consent (Villarama vs. Carpio)

In essential issue in the case of Dr. Rubi Li vs. the Spouses Reynaldo and Lina Soliman was whether or not Dr. Li, a medical oncologist, should be held liable for damages on account of medical malpractice.  According to the majority decision penned by Justice Martin S. Villarama, Jr., the answer is no.  According to the dissenter, Justice Antonio T. Carpio, the answer is yes.

Sometime in July 1993, Angelica Soliman, the 11-year old daughter of Reynaldo and Lina Soliman, was diagnosed with a highly malignant form of bone cancer that usually afflicts teenage children.  This condition required Angelica’s leg to be amputated.  To eliminate any remaining cancer cells, minimize the chances of recurrence and prevent the disease from spreading to other parts of Angelica’s body, chemotherapy was suggested and eventually, Angelica was referred Dr. Li.

In August of 1993, Angelica was administered the first cycle of the chemotherapy regimen.  However, 11 days later, Angelica passed away.

The Soliman spouses filed an action for damages against Dr. Li, claiming, among other things, that Dr. Li had assured them that Angelica would recover in view of 95% chance of healing with chemotherapy.  And that wwhen they had inquired about side effect, they claim that Dr. Li mentioned only slight vomiting, hair loss and weakness. Angelica had, however, suffered far greater side effects from the chemotherapy and accordingly, the Solimans claimed that they would not have given their consent to chemotherapy had petitioner not falsely assured them of its side effects.

Dr. Li, on the other hand, asserted that she did not give Angelica’s parents any assurance that chemotherapy will cure Angelica’s cancer. During their several consultation sessions, Dr. Li stated that she explained the following side effects of chemotherapy treatment to respondents: (1) falling hair; (2) nausea and vomiting; (3) loss of appetite; (4) low count of white blood cells [WBC], red blood cells [RBC] and platelets; (5) possible sterility due to the effects on Angelica’s ovary; (6) damage to the heart and kidneys; and (7) darkening of the skin especially when exposed to sunlight.

In his reasoning, Justice Villarama traced back the English common law origins of the doctrine of informed consent in medical malpractice or medical negligence cases and concluded that “[t]here are four essential elements a plaintiff must prove in a malpractice action based upon the doctrine of informed consent: ‘(1) the physician had a duty to disclose material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have consented to; and (4) plaintiff was injured by the proposed treatment.’

Based on the evidence on record, the ponente held that there was adequate disclosure of material risks inherent in the chemotherapy procedure performed with the consent of Angelica’s parents. Surely, Justice VIllarama wrote, the Soliman spouses could not have been unaware in the course of initial treatment and amputation of Angelica’s lower extremity, that her immune system was already weak on account of the malignant tumor in her knee.

He added, that “[w]hen petitioner informed the respondents beforehand of the side effects of chemotherapy which includes lowered counts of white and red blood cells, decrease in blood platelets, possible kidney or heart damage and skin darkening, there is reasonable expectation on the part of the doctor that the respondents understood very well that the severity of these side effects will not be the same for all patients undergoing the procedure. In other words, by the nature of the disease itself, each patient’s reaction to the chemical agents even with pre-treatment laboratory tests cannot be precisely determined by the physician. That death can possibly result from complications of the treatment or the underlying cancer itself, immediately or sometime after the administration of chemotherapy drugs, is a risk that cannot be ruled out, as with most other major medical procedures, but such conclusion can be reasonably drawn from the general side effects of chemotherapy already disclosed.”

On the other hand, form Justice Carpio’s dissenting point of view, analogous cases in the United States essentially reiterate the four requisites cited by Justice Villarama that must be proven in cases involving the doctrine of informed consent.

Moreover, the dissenter averred, that “under a patient standard of materiality, a doctor is obligated to disclose that information which a reasonable patient would deem material in deciding whether to proceed with a proposed treatment. Stated differently, what should be disclosed depends on what a reasonable person, in the same or similar situation as the patient, would deem material in deciding whether to proceed with the proposed treatment.”

Justice Carpio held significant the testimony of Dr. Li that while she disclosed some material risks, she has impliedly admitted that she failed to disclose many of the other associated risks and side effects of chemotherapy, including the most material — infection, sepsis and death.

Clearly, infection, sepsis and death are material risks and side effects of chemotherapy. To any reasonable person, the risk of death is one of the most important, if not the most important, consideration in deciding whether to undergo a proposed treatment. Thus, Dr. Li should have disclosed to Reynaldo and Lina that there was a chance that their 11-year old daughter could die as a result of chemotherapy as, in fact, she did after only 13 days of treatment.

Accordingly, Justice Carpio held the view that Dr. Li should be liable for medical negligence.

(Dr. Rubi Li vs. Spouses Reynaldo and Lina Soliman as parents/heirs of deceased Angelica Soliman, June 7, 2011, G.R. No. 165279.  See dissenting opinion here.)

(author’s note: While this author appreciates, as an academic matter, the historical developments of, and continued discussions on, the doctrine of informed consent in medical malpractice cases, he wonders whether all the nice theories actually do work in such a tragic moment as deciding whether or not to permit a specific form of treatment in the face of the malignantly deteriorating physical condition of a loved one?  Despite the legal niceties about what a physician should or need not disclose and explain, this author can foresee that his own mental state in such a situation would likely be in such a state of disquiet as to almost certainly taint any decision he may make, informed or not.)

2.         When Own Means Control (Carpio vs. Velasco)

In Wilson P. Gamboa v. Finance Secretary Margarito B. Teves et al, petitioners questioned the sale by the Republic of the Philippines to Metro Pacific Assets Holdings, Inc. of roughly forty-six percent (46%) of the shares of Philippine Telecommunication Investment Corporation (PTIC), on the ground that such sale caused the foreign ownership in Philippine Long Distance Telephone Co. Inc. (PLDT), engaged in the business of telecommunications as a public utility, to exceed the constitutionally-allowed limits for foreign ownership in a public utility, as set out in Section 11, Article XII of the Constitution:

SECTION 11.    No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens, nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines.

The petitioners posited that “capital” under the foregoing constitutional provision refers only to the public utility’s common shares “because such shares are entitled to vote and it is through voting that control over a corporation is exercised.” Petitioners pointed out that, considering that PLDT’s preferred shares have no voting rights, only the common shares “can vote and elect members of the board of directors.”

Citing the intent of the framers of the Constitution, as well as the Foreign Investments Act, the Supreme Court en banc, speaking through Justice Antonio T. Carpio, ruled that “[t]he term ‘capital’ in Section 11, Article XII of the Constitution refers only to shares of stock entitled to vote in the election of directors,” which, in PLDT’s case, is limited to common shares. The Court’s test does not lie in the classification of shares per se but the right to vote in the election of directors which should, therefore, include preferred shares if such shares are also entitled to vote in the election of directors.

With the concurrence of ten of the justices, the Court en banc partly granted the petition and in its dispositive portion, directed the Securities and Exchange Commission to apply their definition of the term “capital” in determining the extent of allowable foreign ownership in respondent PLDT, and if there is a violation of Section 11, Article XII of the Constitution, to impose the appropriate sanctions under the law.

In the dissent penned by Justice Presbitero J. Velasco, Jr., he countered by stating that the intent of the framers of the Constitution was not to limit the application of the word “capital” to voting or common shares alone. In support thereof, the dissenter noted that the Records of the Constitutional Commission reveal that even though the UP Law Center proposed the phrase “voting stock or controlling interest,” the framers of the Constitution did not adopt this but instead used the word “capital,”

To the eyes of Justice Velasco, the intent of the Constitution is very clear under the doctrine of Cassus Omissus Pro Omisso Habendus Est––a person, object or thing omitted must have been omitted intentionally.  Contrary to the majority, Justice Velasco maintained that the framers of the Constitution decided to use the word “capital” in all provisions that talk about foreign participation and intentionally left out the phrase “voting stocks” or “controlling interest”.

Moreover, Justice Velasco noted that stockholders, whether holding voting or non-voting stocks, have all the rights, powers and privileges of ownership over their stocks and that this necessarily includes the right to vote because such is inherent in and incidental to the ownership of corporate stocks, and as such is a property right.  In fact, the dissenting opinion pointed out that even non-voting stocks are entitled to be voted on for fundamental and major corporate changes as set out in Section 6 of the Corporation Code.  Thus, the fact that only holders of common shares can elect a corporation’s board of directors does not mean that only such holders exercise control over the corporation.

As far as Justice Velasco sees it, “applying the ponencia’s definition of the word “capital” will give rise to a greater anomaly because it will result in the foreigner’s obtaining beneficial ownership over the corporation, which is contrary to the provisions of the Constitution.”  On the other hand, “interpreting “capital” to include both voting and non-voting shares will result in giving both legal and beneficial ownership of the corporation to the Filipinos.”

(Wilson P. Gamboa vs. Finance Secretary Margarito B. Teves, et al.; Pablito V. Sanidad, et al., Petitioners-in-intervention, June 28, 2011, G.R. No. 176579.  See dissenting opinion here.)

(author’s note:  This author recalls that in his beginning years, when he was tasked to sift through the bound volumes of the records of the Constitutional Commission, he seemed to develop this curious ability to find support from the debates on either view to a given issue.  Thus, it may not necessarily be surprising to this author that both the main decision and the dissent are able to each find records of debates that support their respective, if contrasting, opinions.  What to do then?  There is always the very words used by the Constitution itself.  This author tends to think that there is a difference in the meaning of the words “own” and “control.”  Otherwise, the Constitution need not keep repeating the term “government owned OR controlled corporation”—it could just say, “government-owned corporation”.  Oh, by the way, the author wishes to disclose that (i) his law firm includes PLDT as a client, and (b) his phone and DSL line at home is from PLDT.)

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