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The Present Petition

The Present Petition. January 31, 2005. THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION FOR CERTIORARI. A. The Regional Trial Court acted with grave abuse of discretion in dismissing the appeal even before the lapse of the extended period

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The Present Petition

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  1. The Present Petition January 31, 2005

  2. THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION FOR CERTIORARI • A. The Regional Trial Court acted with grave abuse of discretion in dismissing the appeal even before the lapse of the extended period • B. There was no appeal nor any plain, speedy, and adequate remedy in the ordinary course of law.

  3. THE ADJUDICATION OF THE SAID APPEAL IS WARRANTED ON THE MERITS: • A. The Trial Court totally disregarded the testimonies of competent witnesses and medical experts including the voluminous documentary exhibits presented by the prosecution • B. Liposuction of the thighs is not a minor, trivial or simple procedure • Therefore, standards of care are more rigid. The evidence showed that Grageda did not observe or did not adhere to these standards.

  4. THE ADJUDICATION OF THE SAID APPEAL IS WARRANTED ON THE MERITS: • C. Dr. Grageda is not even a surgeon who is qualified to perform liposuction operation which is a form of plastic surgery. • D. When the victim Janet Ang went into seizures, Dr. Grageda did not observe the proper standards of care • His efforts were inadequate, manifesting the lack of foresight or due care expected of a surgeon.

  5. THE ADJUDICATION OF THE SAID APPEAL IS WARRANTED ON THE MERITS: • E. When the victim Janet Ang went into cardiac arrest, Dr. Grageda did not observe the proper standards of care • His clinic was ill-equipped both in terms of vital medical equipment needed and of competent personnel assistance • F. Dr. Grageda did not observe the appropriate standards for pre-operative care

  6. Issues raised by the parties in their pleadings • (1) whether the RTC erred in dismissing the appeal of petitioner • (2) whether the filing of a petition for certiorari under Rule 65 of the Rules of Court was the proper remedy of petitioner in the appellate court.

  7. Respondent’s Comment • RTC did not commit any error when it dismissed the petitioner’s appeal • the remedy of petitioner was to file a petition for review to the CA under Rule 42 of the Rules of Court, not a petition for certiorari under Rule 65. • By failing to do so, the petitioner lost her right to appeal • Petition for certiorari cannot be used as substitute for a lost appeal.

  8. Petitioner’s Reply • Certiorari may be entertained despite the existence of appeal • in accordance with the dictates of public welfare, the advancement of public policy, and the broader interest of justice, or where the orders complained of are found to be completely null and void. • Rules of Court should be interpreted so as to give litigants ample opportunity to prove their respective claim • Possible denial of substantial justice due to legal technicalities should be avoided.

  9. Court Ruling The petition is NOT meritorious

  10. Appellate Jurisdiction of RTC and December 2 2002 Order is FINAL

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