165 F. Supp.2d 76 (2001) | Cited 0 times | D. Puerto Rico | July 17, 2001


Plaintiff Carmen Gloria Santos Espada filed the Complaint inthe instant case on May 30, 2000, alleging a cause of action formedical malpractice under Article 1802 of the Puerto Rico CivilCode. In the Complaint, Plaintiff contends that Defendant Dr.Jaime Cancel Lugo acted negligently in performing a modifiedradical mastectomy which included the excision of the axillarycontents of 14 lymph nodes. As a result of this operation,Plaintiff alleges that she developed lymphedema. The jury trialof this case commenced on July 16, 2001. On July 16, 2001, thetestimony of Plaintiff was presented and, on July 17, 2001, theCourt heard the testimony of Plaintiffs expert witness, Dr.Robert De ager. After Plaintiff rested its case, Defendant movedfor dismissal of the action under Rule 50 on the grounds thatthe cause of action is time-barred and, alternatively, thatPlaintiff failed to satisfy its evidentiary burden in itscase-in-chief.

The Court only addresses Defendant's argument with relation tothe statute of limitations, as it finds this issue dispositive.The statute of limitations governing this action is one year, asprovided by Article 1868(2) of the Puerto Rico Civil Code,P.R.Laws Ann. tit. 31, § 5298(2). See Lafont-Rivera v.Soler-Zapata, 984 F.2d 1, 2 (1st Cir. 1993); Rivera-Murientev. Agosto-Alicea, 959 F.2d 349, 353 (1st Cir. 1992). A cause ofaction under article 1802 accrues, and the prescriptive periodset by article 1868(2) therefore begins to run, "when theinjured party knew or should have known of the injury and of thelikely identity of the tortfeasor." Tokyo Marine & Fire Ins.Co., Ltd. v. Perez & Cia., De Puerto Rico, Inc., 142 F.3d 1, 3(1st Cir. 1998) (citing Colon Prieto v. Geigel, 115 P.R. Dec.232 243, 1984 WL 270950 (1984)). Notice of the injury occurswhen there "`exist some outward or physical signs through whichthe aggrieved party may become aware and realize that he hassuffered an injurious aftereffect, which when known becomes adamage even if at the time its full scope and extent cannot beweighed.'" Kaiser v. Armstrong World Indus., Inc.,872 F.2d 512, 516 (1st Cir. 1989) (quoting Delgado Rodriguez v. Nazariode Ferrer, 21 P.R.Offic.Trans. 342, 356, 121 P.R. Dec. 347, 360(Puerto Rico 1988)); see also Torres v. E.I. Dupont De Nemours& Co., 219 F.3d 13, 18-19 (1st Cir. 2000); Arnold v.Montilla, 13 F. Supp.2d 229, 232 (Puerto Rico 1998). Once aplaintiff is on notice of the injury, she may not "wait for[her] injury to reach its final degree of development andpostpone the running of the period oflimitation according to [her] subjective appraisal andjudgment." Torres, 219 F.3d at 19 (quoting Ortiz v. Municipiode Orocovis, 113 P.R. Dec. 484, 487 (Puerto Rico 1982)). If aplaintiff brings an action more than one year after the injurytook place, "she bears the burden of proving that she lacked therequisite `knowledge' at the relevant times." Hodge v. ParkeDavis & Co., 833 F.2d 6, 7 (1st Cir. 1987) (citing IluminadaRivera Encarnacion v. Estado Libre Asociado de P.R., 13Offic.Trans. 498, 501, 113 P.R. Dec. 383, 385, 1982 WL 210553(Puerto Rico 1982)).

Here, it is uncontested that the surgery alleged to havecaused Plaintiffs lymphedema took place on May 27, 1997, and wasperformed by Defendant. Plaintiff admitted in her testimony thatthe swelling in her arm began in July 1997. She further admittedthat by November 1997, a physician in the United States, Dr.Cheslock, had told her that she had swelling in her arm and thatit looked like lymphedema. Plaintiff testified that in December1997, she began treatment for lymphedema, including the use ofan arm compression band, and that in April or May 1998 she beganusing bandages and a special compression sleeve with a pump,used to treat lymphedema. She also began performing otherlymphedema treatments on a daily basis, including massage andspecial exercises. In her testimony Plaintiff also admitted thatin 1997 she contacted the National Lymphedema Network, and wascounseled on precautions she should take for her condition. Itis well known that the removal of the axillary lymph nodes inmany cases causes lymphedema, a problem whose cause was thesubject of all the treatment Plaintiff underwent throughout 1997and 1998. Thus, as of 1997, or at the latest in 1998, Plaintiffeither knew or certainly should have known that she sufferedfrom lymphedema caused by the extraction of the axillarycontents of the lymph nodes. In fact, the evidence admits of noother possibility, and the Court does not understand Plaintiffto argue to the contrary.

Plaintiffs expert witness testified that the excision of thelymph nodes in the May 27, 1997 surgery caused Plaintiffslymphedema, but that in Plaintiffs case the removal of the lymphnodes was not necessary. When asked about the possible othercauses of Plaintiffs lymphedema on cross-examination, Plaintiffsexpert emphasized that it was ridiculous to consider thatanything else caused the lymphedema. The facts are clear thatPlaintiff knew or should have known of the injury and its causeas early as 1997 or 1998, in view of her continuing treatmentsfor lymphedema, and the understanding that it was caused by theremoval of the axillary lymph nodes. See Arnold, 13 F. Supp.2dat 235. Thus, Plaintiff should have known during the course ofher treatment for lymphedema that the excision of the axillarycontents of 14 lymph nodes may not have been necessary given thenature of Plaintiffs breast cancer.

Accordingly, the Court finds that the instant cause of actionis barred by the statute of limitations, because Plaintiff knewor should have known of the injury and the identity of thepotential tortfeasor in 1997 or 1998, yet the Complaint was notfiled until May 30, 2000, well over one year later. TheComplaint is hereby DISMISSED WITH PREJUDICE, and without theimposition of costs or attorneys' fees.


Back to top