The Supreme Court has upheld a decision of a lower court denying the heirs of a deceased complainant the right to pursue a suit against an ophthalmologist for lack of merit.

The Supreme Court dismissed the petition for review on certiorari filed by the heirs of Romulo Sombito against Dr. Miguel Sarabia for failure to show that reversable error had been committed by the Bacolod Regional Trial Court.

The case was filed in 2002 by Sombito of Victorias City, who died on Aug. 5, 2004, against Sarabia.

After the death of Sombito, his children filed a motion to substitute movants-heirs for him, and this was denied by the Regional Trial Court in Bacolod City.

The SC denied on Aug. 31, 2005 the petition for review on certiorari of the resolution dated Mar. 15, 2005 of the RTC Branch 41 of Bacolod City, Sarabia, who recently received a copy of its resolution, said yesterday.

In his resolution ordering the dismissal of the motion to substitute dated Mar. 15, 2005, RTC Judge Ray Alan Drilon said "the motion to drop or expunge deceased plaintiff's testimony, on the ground that defendant was not able to confront said witness on cross-examination, is deemed moot and academic, with the dismissal of the action."

In his complaint Sombito alleged that Sarabia was negligent in the follow-up of the post operation management and care of his left eye which led to its removal, leaving him permanently disfigured and blind.

Sarabia said Sombito left his care against his order, and that he was not the doctor who removed Sombito's eye. He said the complainant referred his eye to another doctor without his endorsement. The other doctor administered medical care to Sombito's eye for more than seven days before removing it, without his knowledge or consent, he said.

The Hispathologic report confirmed by both Drs. "Eusebio Eusebio" and Angel Araneta, concerning the bacteria that infected Sombito's eye showed that the organism was "enterococcus fecalis," an organism usually not found in the eye but in fecal material and is usually transmitted by hand contact with a person's feces.

In the three years the case was under trial, Sombito refused examination by his counsel, was not able to provide any expert witness to support his accusations, and was also unable to produce any material evidences, Sarabia said.

Sombito, who was found fit for cataract removal after obtaining clearances from Drs. Araneta and Lucienne Villacin, was operated on by Sarabia on Oct. 11, 2001 at Tiong Bi Hospital. The surgery was successful and upon removal of the eye dressing of Sombito, the next day after the operation, he told Sarabia he could see very well. Further tests made by Sarabia to Sombito on ensure that the healing of the operated eye had no complication, which indicated that the operation was a complete success.

Sombito did not communicate with Sarabia since he was discharged from the hospital until he came to the latter's clinic on Oct. 15, 2001.

A day before that, Sombito's attendant, Lorena Cadunga, said the former complained of blurred vision and that she thought she saw something white in his operated eye, but without any pain or discharge. So Sarabia instructed her to inform Sombito to come to his clinic as soon as possible, but the plaintiff only visited his clinic on Oct. 15, 2001, alone and unaided. Sarabia said he instructed Sombito that he be admitted to St. Luke's Hospital, or at Tiong Bi, for intensive management, after the latter was diagnosed as having the beginning of infection of the eye and corneal decompensation.

Sarabia said that Sombito strongly refused to be admitted and demanded that he be given eye drops. When Sarabia continued to tell him he had to be admitted, Sombito stood up and went out of his clinic.

Without being formally released by Sarabia, Sombito left his care in his own volition and transferred to another doctor. The enucleation of Sombito's eye did not occur until the lapse of seven days from the time his new doctor took over, who did not succeed in saving his eye.

Sarabia was represented by his legal counsel, Nicanor Villarosa.*CGS

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