Medical negligence case vs. doctors goes to trial

·6 min read

TWO doctors who provided medical care to the late Barili mayor Marlon Garcia have been indicted for reckless imprudence resulting in homicide.

The charges, however, do not extend to Chong Hua Hospital (CHH) and the latter is not liable for damages, the Office of the Cebu City Prosecutor ruled in a resolution dated March 1, 2021.

In a text message to SunStar Cebu, a representative of CHH said the hospital was preparing a statement. He did not say when it will be issued.

In a 34-page resolution, the prosecution recommended the filing of criminal charges in court against Dr. Elfleda A. Hernandez, an infectious disease specialist, and Dr. Yvonne Bettina E. Montejo, a pulmonologist.

Lawyer Ed Antonio Suson, who represents Montejo, told SunStar Cebu that they will leave it to CHH to issue a statement.

Assistant City Prosecutor Verna Merelos, who penned the resolution, noted that both doctors have denied any negligence and maintained that standard healthcare protocols were observed.

But she said “it has been held that denial is the weakest form of defense.”

She said the doctors’ defenses of denial, adherence to the best standard of care of the patient and the limitations set by the family on the treatment of the late mayor “are all evidentiary in nature and should be ventilated in a full-blown trial.”

Merelos also said the opinion of Dr. Ravi Venkata Durvasula on the existence of questionable standards of care is “sufficient to establish the element of breach of duty.”

“Because of that breach of duty, it resulted in the death of Mr. Garcia. Hence, there is probable cause to engender a well-founded belief that respondents are probably guilty and should be held for trial,” the resolution stated.

“Verily, the causation of death as having been admitted as hospital-acquired bacterial infection lends credence to the complainant’s allegation that there was lack of the standard of care expected of the attending physicians,” it added.

The resolution was approved by Cebu City Prosecutor Liceria Lofranco-Rabillas upon the recommendation of Deputy City Prosecutor Maria Luisa Ratilla.


The case stemmed from the complaint of Jima Tiano-Garcia, widow of the late Barili mayor, who accused the two doctors of medical negligence under Title XIV of the Revised Penal Code and Other Related Penal Legislations.

The late mayor, a brother of Cebu Gov. Gwendolyn Garcia, was brought to Chong Hua Hospital on Aug. 5, 2020 after he complained of shortness of breath. He was found positive for coronavirus disease 2019 (Covid-19).

The governor said her brother recovered from Covid-19 on Aug. 24, but was kept in the intensive care unit (ICU) until he died less than two weeks later on Sept. 6.

Based on his death certificate, the mayor’s immediate cause of death was septic shock secondary to catheter-related bloodstream infection, ventilator-associated pneumonia and an underlying cause of Covid-confirmed pneumonia (recovered).

The resolution noted that Jima has asserted that the refusal of the two doctors to discharge her husband after his recovery from Covid-19 “ultimately led to his deterioration and his demise.”

The prosecution said the succeeding affidavits of Jima “evidently show the intent of the complainant and her family in the filing of criminal complaint for medical negligence.”

This is contrary to the contention of the respondents that Jima’s affidavit does not expressly charge the respondent, Dr. Montejo, of medical negligence, but was a mere request for investigation to establish the cause of Marlon’s death.


The prosecution also said the affidavit of Governor Garcia and Atty. Winston Garcia may not be regarded as hearsay in the context of the investigation.

“It is worthy to note that during the entire time of the confinement of Mr. Garcia, witness Governor Garcia was never at the hospital. In fact, her affidavit states that she closely monitored and was regularly updated of the status of her two brothers who were both admitted at the same hospital at about the same time. But the fact that she was merely informed of the status of her brothers does not, ipso facto, render allegations in her affidavit, hearsay,” reads a portion of the prosecutor’s findings.

The prosecutor said conspiracy can be inferred from the facts as alleged by the Garcias.

In the case of Garcia, the prosecutor said both Hernandez and Montejo were the attending physicians of Marlon and they both treated the patient “in conjunction with each other.”

“Hence, their decisions not to discharge Mr. Garcia was arrived at in consultation with each other. And their decision not to discharge Mr. Garcia has been challenged as one of the causes of the death of Mr. Garcia,” the findings read.

Doctors’ side

Dr. Montejo, on Jan. 27, 2021, filed a motion to dismiss the complaint.

Among her arguments was that the affidavit-complaint of Jima contains allegations that are “speculative” and “bereft” of any concrete statement of fact of medical negligence.

She also said the affidavits of Governor Garcia and Atty. Garcia, Farah Garcia and Mayor Christina Frasco contain allegations “which are not of their own personal knowledge and are therefore hearsay.”

She also argued that Dr. Durvasula, a licensed physician and a professor of medicine and infectious disease in Chicago, United States, is not authorized to practice medicine in the Philippines and is, thus, not allowed to render a medical opinion.

The Garcias had asked Durvasula to evaluate the quality of care given to Marlon.

Dr. Hernandez, in her affidavit, said Marlon’s weakened immune system and various comorbidities played a crucial role in his death. These comorbidities are diabetes, obesity, hypertension and obstructive sleep apnea, among others.


Jima, in her affidavit, said her husband was transferred to the Covid ICU at around 3 a.m. of Aug. 6, 2020.

On Aug. 22, 2020, she said she saw her husband being moved to the Neuro ICU and she observed that he was better. The late mayor was still on a ventilator while at the Neuro ICU.

On Aug. 24, Jima said she brought some documents to her husband for his signature and she observed that he was okay although he was still attached to a ventilator.

Governor Garcia, in her affidavit, said she was relieved to know on Aug. 24 that her brother was recovering and was declared free from Covid-19.

She said her brother expressed his desire to be discharged from the hospital. He was willing to sign a waiver to be discharged from confinement, based on a text message sent to the governor’s daughter, Liloan Mayor Christina Frasco.

The governor said she arranged for a meeting with the two doctors that afternoon inside the office of Atty. Garcia at the CFI Building.

She was joined by Atty. Garcia and Jima, while Dr. Hernandez joined the meeting via speaker phone. Hernandez confirmed that Marlon had indeed recovered from Covid-19, the governor said.

She said she reiterated her brother’s willingness to sign a waiver to be discharged, but Hernandez allegedly insisted on keeping him confined.

On Aug. 31, Jima said she was informed by a doctor that her husband had to undergo dialysis. She said she got confused since her husband could already urinate on his own when the catheter was removed on Aug. 24 or 25.

On Sept. 6, at about 1 a.m., she said a resident doctor told her that the mayor’s heartbeat had slowed down and that he could die at any time. Marlon died on the same day. (WBS with JOB)