Guerrios-Flores et al v. S.M. Medical Services, C.S.P. et al

2020 | Cited 0 times | D. Puerto Rico | April 7, 2020



CIVIL NO. 18-1594 (RAM)


Pending before the Court is codefendant Dr. Carlo Hernández-Román and Puerto Rico Medical Defense Insurance Company , (collectively, the Motion for Summary Judgment, accompanied by a Statement of Uncontested Facts and Memorandum of Law in Support of Summary Judgment. (Docket Nos. 55, 56 and 57). H in support and in opposition, the Court hereby GRANTS the Appearing Defendant Motion for Summary Judgment for the reasons discussed below. (Docket No. 55).

I. PROCEDURAL BACKGROUND On August 23, 2018, plaintiff Loraine Guerríos-Flores Guerríos filed this medical malpractice action against Dr. William Soto-Avilés ( Dr. Soto ), Dr. Carlo Hernández- Román ( Dr. Hernández )

and , Dr. . (Docket No. 1 ¶¶ 2-3 & 5-9). On April 24, 2019, Plaintiff filed an Amended Complaint containing the same factual allegations but specifying that PRMDIC was also Dr. ¶ 9).

Guerríos alleges that on June 27, 2014, she experienced intense abdominal pain and sought treatment at the Toa Alta acronym in Spanish) that was operated by SMMS. Id. ¶¶ 5, 15-17. At the Toa Alta CDT, Dr. Hernández examined Plaintiff and ordered IV fluids and various tests. Id. ¶¶ 26-34. Plaintiff was subsequently evaluated by Dr. Soto, who prescribed several medications and ultimately discharged her. Id. ¶¶ 39-48. Plaintiff posits that her condition worsened and on June 29, 2014, she Central Hospital in Manatí. Id. ¶ Center Hospital, Guerríos underwent an exploratory laparotomy, 1

which resulted in the appendix and performed a partial cecum removal and peritoneal lavage. 2

Id. ¶¶ 57-60. Plaintiff remained hospitalized until July 10, 2014. Id. ¶ 61.

1 An exploratory laparotomy is a surgery that opens the abdomen with the purpose of examining the organs and structures in the abdomen, including the appendix. See Abdominal exploration, Mount Sinai, library/surgery/abdominal-exploration. (last visited April 6, 2020). 2 ting John A. Weigelt, Diagnostic peritoneal lavage: a review of indications,

Although Guerríos filed a federal Complaint in August of 2018 containing received at the Toa Alta CDT on 6/27/14, Plaintiff argues that

her claims are not time barred for three reasons. Id. ¶ 76. First, Plaintiff indicates that she presented a timely lawsuit against SMMS and Dr. Soto in the Bayamón Superior Court on June 26, 2015 (Civil No. DDP2015-0483), effectively tolling the statute of limitations in the case at bar. Id. Second, Guerríos argues that she timely moved to substitute PRMDIC for an unknown insurer codefendant in said lawsuit. Id. ¶ 77. Third, Plaintiff alleges that she was not aware that Dr. Hernández was liable until June 6, 2018, when a second expert witness issued a report concluding that Dr. Hernández had also been negligent. Id. ¶¶ 107-109.

Co-defendants Dr. Hernández and PRMDIC filed separate responses to the Complaint. (Docket Nos. 18 and 46, respectively). On July 18, 2019, said Codefendants filed the present joint Motion for Summary Judgment. (Docket No. 55). In their accompanying Memorandum of Law in Support of Motion for Summary Judgment, the Appearing Defendants allege that: (1) the claims against Dr. Hernández are time-barred; (2) Dr. Hernández did not commit medical malpractice and there is no causal relation; and (3) if Dr.

technique and interpretation, 17:13 Scand. J. Trauma Resusc. Emerg. Med. (2009), available at

Hernández is not liable, PRMDIC cannot be liable as his insurer. (Docket No. 57).

II. LEGAL STANDARD A motion for summary judgment is governed by Fed. R. Civ. P. 56(a). Summary judgment is proper if the movant shows that (1) there is no genuine dispute as to any material fact and (2) they are entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). such that a reasonable jury could resolve the point in favor of

the non- Thompson v. Coca Cola Co., 522 F.3d 168, 175 (1st Cir. 2008). A fact is considered material if affect the outcome o

Albite v. Polytechnic Univ. of Puerto Rico, Inc., 5 F. Supp. 3d 191, 195 (D.P.R. 2014) (quoting Sands v. Ridefilm Corp., 212 F.3d 657, 660 661 (1st Cir. 2000)).

the absence of a genuine issue of material fact with definite and

Mercado-Reyes v. City of Angels, Inc., 320 F. Supp. 344, at 347 (D.P.R. 2018) (quotation omitted). The burden competent evidence to Bautista Cayman Asset Co. v. Terra II MC & P, Inc., 2020 WL 118592, at 6* (D.P.R. 2020) (quoting Méndez-Laboy v. Abbott Lab., 424 F.3d 35, 37 (1st Cir. 2005)). A nonmoving party

Paul v. Murphy, 2020 WL 401129, at *3 (1st Cir. 2020) (quotation omitted).

While a court will draw all reasonable inferences in favor of the non-movant, it will disregard conclusory allegations, unsupported speculation and improbable inferences. See Johnson v. Duxbury, Massachusetts, 931 F.3d 102, 105 (1st Cir. 2019). the parties will not affect an otherwise properly supported motion

Scott v. Harris, 550 U.S. 372, 379 (2007) (quotation omitted). Hence, a court should review the record in its entirety and refrain from making credibility determinations or weighing the evidence. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 135 (2000).

In this District, summary judgment is also governed by Local Rule 56. See L. CV. R. 56(c). Per this Rule, an opposing party admit, deny or qualify the facts supporting the motion for summary judgment by reference to each numbered paragraph of the moving part Id. Furthermore, unless the fact is admitted, the opposing party must support each denial or qualification with a record citation. Id.

oppose the truth of the statement offered and are either irrelevant to the matter at hand, provide additional evidence not related to the fact in question and/or are insufficient to properly controvert

a material fact. Marina de Ponce, Inc. v. Fed. Deposit Ins. Corp., 2018 WL 1061441, at *2 (D.P.R. 2018); see also, Aztar Corp. v. N.Y. Entertainment, LLC, 15 F.Supp.2d 252, 254 n. 1 (E.D.N.Y. 1998), aff'd. 210 F.3d 354 (2d Cir. 2000) (noting that responses

not create an issue of fact.)

Additionally, Local Rule 56(c) allows an opposing party to L. CV. R. 56(c). Given that the plain language of Local Rule 56(c) specifically requires that any additional facts be stated in a separate section, parties are prohibited from incorporating numerous additional facts within their opposition. See Natal Pérez v. Oriental Bank & Trust, 291 F. Supp. 3d 215, 218-219 (D.P.R. 2018) (quoting Carreras v. Sajo, Garcia & Partners, 596 F.3d 25, 32 (1st Cir. 2010); Malave Torres v. Cusido, 919 F.Supp. 2d 198, 207 (D.P.R. 2013)).

If a party opposing summary judgment fails to comply with

free, in the exercise of its sound discretion, to accept the moving Caban Hernandez v. Philip Morris USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007). Thus, litigants ignore this rule at their peril. See Natal Pérez, 291 F. Supp. 3d at 219 (citations omitted).

III. FINDINGS OF FACT To make findings of fact, the Court analyzed Defendants Statement of Uncontested Facts in Support of Motion for Summary

Judgment SUF (Docket No. 56), Statement of Facts in Response (Docket No. 65) and the pertinent exhibits in support of said statements of facts. 3

After only crediting material facts that are properly supported by a record citation and uncontroverted, the Court makes the following findings of fact:

1. At all relevant times Dr. Hernández was, and remains, an

individual duly licensed for the practice of medicine in the Commonwealth of Puerto Rico as an emergency room physician, with license number 12592. (Docket No. 56 ¶ 1). 2. On the date of the facts subject of this action, June 27,

2014, Dr. Hernández rendered services as emergency room physician at the Diagnostic and Treatment Center of the Municipality of Toa Alta (the ). Id. ¶¶ 2 and 4. 3. PRMDIC was Dr. Hernández ,

having issued to him policy number PP-51674 which provided coverage for medical incident claims with limits of $100,000 per incident and $300,000 in aggregate. Id. ¶ 2.

3 The Court did not take into consideration Dr. Pablo Rodrig Report (Docket No. 56-16). Said report is the subje pending Motion to Strike (Docket No. 47) and was irre On the other hand, the Court did consider the certified translations filed at Docket No. 73.

4. On June 27, 2014, Plaintiff received medical treatment at

the Toa Alta CDT. Id. ¶ 4. 5. On June 26, 2015, Plaintiff filed suit against defendants

S.M. Medical Services, C.S.P., Dr. William Soto Avilés and other unknown persons before the Court of First Instance of Puerto Rico, Bayamón Part, under Civil number DDP 2015- 04 Id. ¶ 5. 6. Dr. Hernández was not included as a named defendant in the

Complaint filed in the State Action. Id. ¶ 6. 7. Defendant PRMDIC was not included in the Complaint filed

in the State Action as insurer of Dr. Hernández. Id. ¶ 7. 8. In the State Action, plaintiff retained the services of

Dr. Julio A. Albino-Vázquez as a medical expert. (Docket No. 56 ¶ 14). 9. Plaintiff obtained a medical record consisting of one (1)

yellow page from the Toa Alta DTC and provided said page to her expert, Dr. Albino. (Docket No. 65 ¶ D-F). 10. On November 1, 2015, Dr. Albino rendered his expert report

wherein he found only two persons liable for damages: Dr. William Soto Avilés and SMMS. (Docket No. 56 ¶ 15). 11. On February 29, 2016, Dr. Soto submitted his Answer to

Interrogatory and Request for Production of Documents. In his sworn answers, he identifies Dr. Hernández as one of

the physicians that evaluated Guerríos, (Docket Nos. 56 ¶¶ 25-26; 73-5 ¶¶ 10-11, 15, 17). 12. On March 15, 2016, Plaintiff filed a otion Submitting

in the State Action requesting leave to file an amended Complaint in order to, among other things, include Dr. Hernández and PRMDIC as named party defendants. (Docket Nos. 56 ¶ 9; 73-1) 13. Motion Submitting Amended Complaint Guerríos

alleged that the basis for said amendment was ¶

10; 73-1 ¶ 1). 14. The Amended Complaint in the State Court action included

Dr. Carlo Hernández and his insurer PRMDIC as new party defendants. (Docket Nos. 56 ¶ 11; 73-2). 15. In the relevant portions of the Amended Complaint filed in

State Court, Plaintiff affirmatively alleged the following:

a) On or about June 27, 2014, approximately at 5:00

am plaintiff Loraine Guerríos Flores attended the Emergency Room of the Toa Alta Municipality CDT with a strong abdominal pain, vomits, fever and other clearly appendicitis symptoms. (Docket Nos. 56 ¶ 12; 73-2 ¶ 10).

b) Plaintiff was attended at 7:00 a.m. by defendants

Dr. William Soto Avilés and/or Dr. Carlo Hernández Román. (Docket Nos. 56 ¶ 12-13(a); 73-2 ¶ 12). c) The aforementioned doctors were negligent in not

conducting a differential diagnosis of appendicitis to the plaintiff notwithstanding that she showed clear indicative symptoms of such illness since 5:00 in the morning when she arrived at the CDT. (Docket Nos. 56 ¶ 12-13(b); 73-2 ¶ 13). d) That said defendants departed from the minimal

norms for knowledge and medical care in the diagnosis and treatment of appendicitis on the plaintiff, omitting conducting the necessary exams under the best practice of medicine standards (Docket Nos. 56 ¶ 12(c); 73-2 ¶ 14). e) exclusive

negligence of the defendants Dr. William Soto Avilés, Dr. Pedro Ramos Hiraldo and Dr. Carlo Hernández Román, as well as Dr. Pedro Badillo, all of whom acted for the economic benefit of their employer S.M. Medical Services, C.S.P. who is vicariously liable for said negligence (Docket Nos. 56 ¶ 13; 73-2 ¶ 23).

16. On February 27, 2018, before the dismissal of the State

Action and with the benefit of the complete medical record as well as the transcript of the medical notes from the answers to interrogatories and request for production by Dr. Soto, Plaintiff s first expert, Dr. Albino issued an Addendum to his initial report with exactly the same conclusions: that Dr. Soto and SMMS were the only responsible and liable parties for the damages alleged by Plaintiff. (Docket No. 56 ¶ 27). 17. Dr. Miranda-Aponte

expert hired by Plaintiff for her case, is a medical general practitioner, with a certificate of emergency medicine specialist not by training but by the (Docket Nos. 56 ¶ 17; 56-8 at 3-4). 18. Dr. Miranda stated that he reviewed the entire medical

record and identified that all the entries in the record made by Dr. Hernández are found at page 1. (Docket Nos. 56 ¶ 18; 56-8 at 7-8). 19. Dr. Miranda also explained that at page 3 of the medical

record, there is a nurse progress note in which Dr. No. 56 ¶ 19).

20. In his deposition, Dr. Miranda testified that the medical

records state: the patient arrived at the Toa Alta CDT at around 6:57 AM on June 27, 2014 and by 7:15 AM had already been triaged and was initially evaluated by Dr. Hernández, who conducted a physical examination, ordered laboratories and prescribed medication for her symptoms. Furthermore, the record shows that at 10:10 a.m., Plaintiff was being evaluated by Dr. Soto, who took over her treatment. Furthermore, the records state that when Plaintiff was discharged her symptoms had improved and that the discharge note states that Guerríos was oriented that if she continued with pain or if the pain increased, she should go to a hospital or institution with the capacity of doing a CT Scan or sonogram. Id. ¶ 20-22; 56-8 at 22-4; 28. 21. Dr. Miranda stated that by 10:10 a.m. on the 27 of June

2014 Dr. Soto Aviles took over full responsibility of the healthcare and treatment of the Plaintiff. (Docket No. 56 ¶ 23).

IV. APPLICABLE LAW The Puerto Rico Civil Code, which applies to this diversity case, establishes a one-year statute of limitations for tort

the injury. P.R. Laws Ann. tit. 31, § 5298. See also Ramos Baez v. Bossolo Lopez, 240 F.3d 92, 93 (1st Cir. 2001). The Puerto Rico

this statute of limitations. Marcano Delaney v. Puerto Rico Children's Hosp., 261 F. Supp. 3d 235, 238 39 (D.P.R. 2016) (citations omitted). The one year-period begins when a plaintiff actual knowledge of both the injury and of the identity or is deemed to be on notice of her cause of action if she is aware of certain facts that, with the exercise of due diligence, should lead her to acquire actual knowledge of her cause of action. Alejandro-Ortiz v. Puerto Rico Elec. Power Auth., 756 F.3d 23, 27 (1st Cir. 2014) (emphasis added) (citations omitted). when there exist some outward or physical signs through which the aggrieved party may become aware and realize that [they have] suffered an injurious aftereffect, which when known becomes a damage even if at the time its full scope and extent cannot be Torres v. E.I. Dupont de Nemours & Co., 219 F.3d 13, 18 19 (1st Cir. 2000) (quotations omitted). Succinctly stated he

knew or should have known of the injury and of the likely identity of the tortfeasor Lopez-Rivera v. Hosp. Auxilio Mutuo, Inc., 290 F. Supp. 3d 137,

143 (D.P.R. 2017) (emphasis added) (quoting Tokyo Marine & Fire Ins. Co. v. Perez & Cia., De Puerto Rico, Inc., 142 F.3d 1, 3 (1st Cir. 1998)). see also Corey-Lanuza v. Medic Emergency Specialties,

Inc. Subjective reasonable diligence will determine the accrual date [of the claim]

To determine when a plaintiff should have known of the injury and its author, the analysis focuses on whether plaintiff knew reasonable likelihood or liability, not legal certainty Estate of Alicano Ayala v.

Philip Morris, Inc., 263 F. Supp. 2d 311, 320 (D.P.R. 2003) (emphasis added). Hence, in ordinary circumstances, a plaintiff

deemed on notice. Kaiser v. Armstrong World Indus., Inc., 872 F.2d 512, 516 (1st Cir. 1989).

When a plaintiff is aware of sufficient facts to be put on

with reasonable diligence, or risk being held to have relinquished [their] right to pursue it later, after the limitation period has Rodriguez-Suris v. Montesinos, 123 F.3d 10, 16 (1st Cir. 1997) Similarly, once a plaintiff is put on notice that someone or some entity is the cause of the injury, the plaintiff may not succeed in a late-filed claim by asserting ignorance about the precise identity of the tortfeasor. Id.

When a plaintiff sues later than a year after the injury, that is beyond the statute of limitations, they bear the burden of proving that at the relevant despite exercising due diligence. Marcano Delaney, 261 F.

Supp. 3d at 238 39 (quoting Alejandro Ortiz, 756 F.3d at 27). However f a plaintiff's ignorance of an injury and its origin was due to the plaintiff's own negligence or lack of care, then the statute of limitation would not be tolled. Rodriguez-Suris, 123 F.3d at 15 (citing Colon Prieto v. Geigel, 115 P.R. Dec. 232, , 15 P.R. Offic. Trans. 313, 327-29 (1984)). See also Melendez Colon v. Rosado Sanchez, 2019 WL 3940919, at *5 (D.P.R. 2019) he Puerto Rico Supreme Court makes clear that a plaintiff may not delay once he has become aware of an injury, even if at the time its full scope and extent cannot be weighed. omitted).

has buried within it a normative question of how much diligence should be expected of a reasonable lay person. Estate of Alicano Ayala, 263 F. Supp. 2d at 317 (quoting Villarini-Garcia v. Hosp. Del Maestro, Inc., 8 F.3d 81, 84 (1st Cir. 1993)). See also Rodriguez-Suris, 123 F.3d at 14 [P]laintiff's subjective awareness is measured against the level of awareness that the plaintiff, having been put on notice as to certain facts and having exercised reasonable care regarding a potential claim, should have acquired. To exercise due diligence, a plaintiff must active efforts to seek answers and

clarify doubts ing or answers to fall basis for concern about negligence. Estate of Alicano Ayala, 263 F. Supp. at 317 (emphasis added).

Generally, knowledge are still ones for the jury so long as the outcome is

within the range where reasonable men and women can differ Villarini-Garcia, 8 F.3d at 87 (emphasis added). However, a court

may make this determination when -sided as to compel a finding. Rodriguez-Suris, 123 F.3d at 14 15. If a

cannot satisfy [their] burden of proving lack of true knowledge (that is, lack of full awareness of all that need be known to preclude tolling), final judgment for the defendant on the ground of late filing is appropriate. Id. at 14. Further, when the for the finder of fact, said issue does not preclude summary

judgment. Id. at 17. (citations omitted). See also J. Geils Band Employee Ben. Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, 1260 (1st Cir. 1996) (holding that although the issue of reasonable diligence is factually based, it may be determined as a matter of law on summary judgment when there is nothing on the record to support that a plaintiff was reasonably diligent).

V. ANALYSIS medical treatment she received at the Toa Alta CDT on June 27,

2014. (Fact ¶ Amended Complaint, her pain continued after being discharged and on June 29, 2014, she underwent surgery to treat her perforated appendix. (Docket No. 38 ¶ 55-60). Pursuant to this timeline and assuming arguendo that negligence occurred, Plaintiff should have known that there was a reasonable likelihood of injury by treating physicians of the Toa Alta CDT on the date of her surgery, i.e. June 29, 2014. See Estate of Alicano Ayala, 263 F. Supp. 2d at 317. Accordingly, Guerríos filed a timely Complaint in the Bayamón Superior Court against Dr. Soto and SMMS on June 26, 2015. (Fact ¶ 5).

However, Plaintiff did not sue Dr. Hernández until after the one-year period following knowledge of the injury had elapsed. Under Puerto Rico law, Rivera Carrasquillo v. Centro Ecuestre Madrigal, Inc., 812 F.3d 213, 217 (1st Cir. 2016) (citing Fraguada Bonilla v. Hospital Auxilio Mutuo, 186 P.R. Dec. 365 (2012)). Therefore, the question before the Court is whether a reasonable jury could conclude that Plaintiff, having exercised the required due diligence, did not acquire the requisite knowledge to identify Dr. Hernández within the statute of limitations. See Melendez Colon, 2019 WL 3940919, at *5.

In her Complaint before this Court, Plaintiff provides a detailed account of why she was unable to identify Dr. Hernández

as a tortfeasor until 2018. She alleges that despite requests, the Toa Alta CDT only provided a partial copy of her medical record at the time of her State Action. (Docket No. 1 ¶ 84). On December 17, 2015 she sent an interrogatory and request for production of documents to both Dr. Soto and SMMS asking them to identify all the doctors that had treated her on June 27, 2014 at the Toa Alta CDT. Id. ¶ 91. Plaintiff claims that SMMS provided their answers on January 19, 2017 and the complete medical record on February 7, 2017. Id. ¶ 98. Further, Plaintiff contends that she was not able to identify Dr. Hernández until her second expert witness issued a report on February 27, 2018 concluding that Dr. Hernández was liable.

medical records is a routine part of the due diligence required in any medical malpractice investigation. Morales-Melecio v. United States, 2016 WL 4146089, at *1 (D.P.R. 2016) arring exceptional circumstances such as extreme delay by medical facilities the limitations clock will not wait until a plaintiff gathers the relevant medical records. Id. (emphasis added). At

the medical records until 2017 would delay. But a careful analysis of the complete record shows that no such exceptional circumstance exists in the present case. Although Plaintiff claims that the Toa Alta CDT only provided one

page of her medical record, instead of the complete report despite her requests, she did not provide an account of the measures she took to procure the totality of response. (Fact ¶ 9). Therefore, no extreme circumstances have

been established with regards to the Toa Alta CDT. Likewise, regardless of delayed response allegations, she did not send SMMS an interrogatory and request for production of documents until December 17, 2015, well after the statute of limitations had already passed on June 29, 2015. As discussed above, the one-year period is not tolled until Plaintiff gathers the relevant information.

Furthermore, Guerríos contention that she could not identify Dr. Hernández as a liable party until 2018 is directly contradicted nt in State Court dated March 15, 2016, in which she included Dr. Hernández as a Codefendant. (Fact ¶ 12). That Amended Complaint was filed more than one year and eight months after her visit to the Toa Alta CDT and subsequent surgery, i.e. beyond the statute of limitations. Pursuant to Puerto Rico law, Guerríos needed to show she was unable to identify Dr. Hernández within the one-year period despite exercising due diligence. In her Motion submitting the Amended Complaint in State Court, she states that she was able to identify Dr. Hernández because of d in the discovery of evidence. (Fact ¶ 13). This cursory explanation does not describe

the diligent steps Plaintiff took to identify Dr. Hernández in a timely fashion. It also does not present extraordinary circumstances that could have prevented Plaintiff from making this identification for the one (1) year and eight (8) months that elapsed from the date she sought treatment at the Toa Alta CDT and the date she tendered the Amended Complaint to the State Court.

As in the case Corey Lanuza v. Medic Emergency Specialties, Inc., purportedly negligent care rendered at the ER [here the Toa Alta CDT] as well as the particular physician responsible for [her] premature discharge. Corey Lanuza, 229 F. Supp. 2d at 100. She was only lacking the name of one of the two treating physicians. In Corey Lanuza, this District found that there was nothing in the record for them to conclude that it was somehow difficult to ascertain the name of the physician on duty on the date of the alleged malpractice. Id. Likewise, in the case at bar, there is no

Hernández was procuring was otherwise unobtainable within

the one-year period. Kaiser, 872 F.2d at 518.

own contradictory explanations, it is [r]easonable men and women cannot differ on the statute of limitations inquiry here because Plaintiffs did not meet [her] burden to prove due diligence,

level. Melendez Colon, 2019 WL 3940919, at *5. Thus, judgment for codefendant Dr. Hernández on the grounds of being time-barred is appropriate. See Rodriguez-Suris, 123 F.3d at 14 15. The Court need not entertain Dr. Herná negligence.

VI. CONCLUSION For the foregoing reasons, the Court GRANTS the Appearing Defendant Motion for Summary Judgment at Docket No. 55. against co-defendant Dr. Hernández and PRMDIC, exclusively in its capacity as Dr. are DISMISSED WITH PREJUDICE. Judgment shall be entered accordingly.

IT IS SO ORDERED. In San Juan, Puerto Rico, this 7 th

day of April 2020. S/ RAÚL M. ARIAS-MARXUACH United States District Judge

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