Santana-Concepcion, et al v. Centro Medico del Turabo, Inc., et al

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Juan R. Torruella, Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. [12-2013]

Case: 12-2013

Document: 00116742764

Page: 1

Date Filed: 09/23/2014

Entry ID: 5854808

United States Court of Appeals
For the First Circuit
No. 12-2013
MARIA SANTANA-CONCEPCIÓN, ET AL.,
Plaintiffs, Appellants,
CONJUGAL PARTNERSHIP CRUZ-SANTANA, ET AL.,
Plaintiffs,
v.
CENTRO MÉDICO DEL TURABO, INC., d/b/a Hospital HIMA
San Pablo Bayamón; DR. JULIO ROSADO-SÁNCHEZ, ET AL.,
Defendants, Appellees,
HIMA SAN PABLO PROPERTIES, INC.; GRUPO HIMA SAN PABLO, INC.,
Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]

Before
Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.

Glenn Carl James for appellants.
José Arturo González-Villamil, with whom Bufete GonzálezVillamil was on brief, for appellees Centro Médico del Turabo,
Inc., Hima San Pablo Bayamón and its insurer HIMA San Pablo Captive
Insurance Company Limited.
José A. Miranda-Daleccio, with whom Miranda Cárdenas & Córdova
was on brief, for appellees Dr. Julio Rosado-Sánchez and the
conjugal partnership Rosado-Philippi.

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LIPEZ, Circuit Judge.

Date Filed: 09/23/2014

Entry ID: 5854808

This is a medical malpractice and

informed consent case from Puerto Rico involving claims by the
patient and her children. The district court held that the statute
of limitations barred the claims brought by the patient and her
adult children, granting summary judgment to the defendants on that
basis.

Given that the statute of limitations does not apply to

minor children until they reach majority age, the district court
addressed the merits of their malpractice and informed consent
claims. Concluding that the "error of judgment" defense foreclosed
malpractice liability and that the failure of proof on causation
foreclosed liability for lack of informed consent, the court
granted summary judgment on those claims as well.

We affirm.

I.
We recount the facts in the light most favorable to the
appellants, who were the non-moving party at summary judgment.
O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993).
On

August

16,

2006,

plaintiff-appellant

Santana-Concepción, a registered nurse, after submitting to a CT
scan of her brain at Rochester General Hospital in Rochester, New
York, was diagnosed with a large arachnoid cyst.1

After further

medical testing, Santana-Concepción's doctors there advised her
that her arachnoid cyst did not require surgery.
1

An arachnoid cyst is a membrane-lined fluid sac, located
between the lower brain and spinal cord region of the cranium.
Stedman’s Medical Dictionary 353 (5th ed. 1982).
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While in Puerto Rico during the fall of that year,
Santana-Concepción

experienced

extreme

pain

and

went

to

emergency room at HIMA-San Pablo Hospital on November 15.

the
The

emergency room physician referred her to neurosurgeon Dr. Julio
Rosado-Sánchez

("Dr.

Rosado"),

who

diagnosed

her

with

a

"symptomatic arachnoid cyst" and recommended surgery and antiedema
medication to help release the increased intracranial pressure.
Dr. Rosado explained to Santana-Concepción that she needed an
operation as soon as possible and that it could be a life-or-death
situation.

Santana-Concepción replied, "Good, not a problem.

as you see fit, as far as you take away this pain.
this pain to go away."

Do

I just need

Dr. Rosado operated on Santana-Concepción

on November 17, 2006, performing exploratory brain surgery around
the cyst and placing a shunt to relieve pressure created by the
cyst.
Santana-Concepción returned to Rochester that winter and
visited her physician there on January 2, 2007.

Her physician

recorded the details of that visit as follows:
This is a 46-year-old female with
history of an arachnoid cyst, who comes in
today in follow-up. She actually apparently
had a VP shunt placed in Puerto Rico when she
was seen in the ER [and] the cyst was
evaluated there.
This was in mid-November.
She states that she has no further depressive
symptoms.
She has however, had symptoms of
decreased vision, difficulty with gait and
balance, and she has noticed that her voice
is much louder than previously and her sons

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need to have to point out to her that she is
talking loudly.
She has had no seizure activity. She
was started on Dilantin at that point. She
did not bring her records today for me to look
at.
. . .
We will look at her records and then
try to get her referred back to Dr. Maxwell
for neurosurgery to follow the shunt as well
as Dr. Honch. Will continue the Dilantin and
Depakote for now and check levels of those as
a CBC and complete metabolic panel and come up
with a treatment plan after we see her
records.
Her son, who spoke fluent English, accompanied her on that visit.
On February 20, 2007, Santana-Concepción was hospitalized
at Rochester General Hospital with symptoms of headache, dizziness,
and visual changes.
shunt

within

her

A CT scan and an MRI revealed that she had a
arachnoid

cyst.

Two

days

later,

Santana-Concepción again met with her treating physician.
physician recorded the details of that visit as follows:
This is a 46-year-old female with
history of arachnoid cyst, S/P VP shunt
placement in Puerto Rico who comes in today in
follow-up from a hospital stay. She had what
appears to be as a final diagnosis benign
positional vertigo.
However, she did see a
neurologist in consult who recommended that
she might consider getting the shunt taken out
as it is not decreasing the size of the cyst
and has seemed to result in some behavior
changes.
She also complains of intermittent pain
at the shunt site behind the left ear.

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Her

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On April 19, 2007, Santana-Concepción visited her doctor
in Rochester yet another time complaining of pain.

During this

visit her physician allegedly made the comment that whoever did
this to her (meaning the shunt surgery) was a "butcher."
Santana-Concepción, along with her husband and four
children,2 filed this suit against Dr. Rosado and HIMA-San Pablo
Hospital on March 3, 2008, a little more than a year after
Santana-Concepción's second hospitalization in New York.

They

claimed that Dr. Rosado failed to adequately inform SantanaConcepción of the risks associated with the shunt surgery before
obtaining
prevailing

her

consent,

medical

and

that

standards

he

failed

applicable

provided (i.e., engaged in malpractice).

to

to
the

abide

by

treatment

the
he

The alleged malpractice

concerned the treatment decision to operate on the cyst, rather
than the adequacy of Dr. Rosado's surgical technique in the
operating room.

The plaintiffs contended that the hospital was

vicariously liable for Dr. Rosado's conduct.
The

district

court

defendants on all claims.

granted

summary

judgment to the

The court held that the claims of

Santana-Concepción and her adult children were all time-barred. It
further held that the medical malpractice claim of her minor
children was foreclosed by the "error of judgment" defense and the

2

Santana-Concepción's husband has since passed away.
represents his heirs' interests in this litigation.
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She

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informed consent claim failed on the element of causation.3

This

appeal followed.
II.
We review the district court's summary judgment decisions
de novo.

Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 428

(1st Cir. 2000).

Summary judgment is properly granted when "the

movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a).

When considering the summary judgment

record, "[a]ll reasonable inferences are to be drawn in favor of
the party opposing summary judgment, in this case appellant[s],
just as all disputed facts are viewed in the light most favorable
to [them]."

O'Connor, 994 F.2d at 907.

In assessing claims that

genuine material issues exist, we must decide whether "the evidence
is

such

that

a

reasonable

jury

could

[Santana-Concepción or her children]."

return

a

verdict

for

Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986).
Federal jurisdiction in this case is based on diversity
of citizenship.

See 28 U.S.C. § 1332.4

We apply the law of Puerto

Rico to the medical malpractice and informed consent claims in this

3

infra.

The district court's reasoning is explained in more detail
We largely track the court's analysis.

4

Plaintiffs are residents of New York.
residents of Puerto Rico.
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Defendants are

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case because that is where the medical treatment at issue took
place.
A.

Santana-Concepción and Adult Childrens' Claims
1.

Statute of Limitations

The plaintiffs filed suit on March 8, 2008.

For the

claims to survive the statute of limitations on summary judgment,
there must be a genuine issue of material fact as to whether they
were filed within the limitations period.
a.
Application to Malpractice Claims
Santana-Concepción and Adult Children

of

Puerto Rico law affords one year to file suit for medical
malpractice after "the aggrieved person ha[s] knowledge thereof."
P.R. Laws Ann. tit. 31, § 5298 (2008); see also Ortiz v. Municipio
De Orocovis, 13 P.R. Offic. Trans. 619, 621 (1982).

Although the

running of the statute of limitations does not wait for the injury
to "reach its final degree of development," it does not begin to
run until there is "knowledge" of the malpractice.
Offic. Trans. at 621.

Ortiz, 13 P.R.

Such knowledge must include both the injury

and the causal link between the injury and the allegedly negligent
medical procedure. Guzman-Camacho v. State Ins. Fund Corp., 418 F.
Supp. 2d 3, 8 (D.P.R. 2006); Rivera-Encarnación v. Estado Libre
Asociado de P.R., 13 P.R. Offic. Trans. 498, 502 (1982).5
5

By statute Puerto Rico has established that the limitations
period for medical malpractice begins not when the injury occurs,
but when the patient first has knowledge of the injury. P.R. Laws
Ann. tit. 31, § 5298 ("The following prescribe in one (1) year:
-8-

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Under the law of torts in Puerto Rico, including medical
malpractice and lack of informed consent, relatives are entitled to
"compensation for the sufferings, emotional distress, or mental
anguish experienced as a consequence of the material or other
damages caused directly to their relatives."

Santini-Rivera v.

Serv Air, Inc., 137 P.R. Dec. 1, 10-12 (1994).

The period

available to exercise such an action is one year, and begins to run
when the plaintiffs learn about the damages suffered by the
relative-victim.

Id.

With regard to the medical malpractice claims of the
plaintiff and her adult children, the statutory clock began ticking
soon

after

the

onset

post-operation symptoms.

of

Santana-Concepción's

first

negative

Santana-Concepción sought treatment for

these symptoms in early 2007.

The symptoms were first documented

on January 2, 2007, and then on her subsequent visits to the
hospital

in

February

2007.

The

neurologist

who

examined

Santana-Concepción in February recommended "getting the shunt taken
out as it [was] not decreasing the size of the cyst and ha[d]
seemed to result in some behavior changes."
Santana-Concepción nonetheless contends that because she
did not understand English, and therefore could not read the notes

. . . (2) Actions to demand civil liability for grave insults or
calumny, and for obligations arising from the fault or negligence
mentioned in § 5141 of this title [which includes medical
malpractice], from the time the aggrieved person had knowledge
thereof.").
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from her hospital visits, she did not learn that her symptoms were
related to the shunt surgery until April 2007 when a doctor told
her about the problem.

This version of events ignores multiple

undisputed facts in the record.

First, Santana-Concepción was

accompanied by her English-speaking son when she visited Rochester
General Hospital on January 2, 2007.

Furthermore, the notes from

that visit include a remark from the doctor that "[s]he actually
apparently had a VP shunt placed in Puerto Rico when she was seen
in the ER [and] the cyst was evaluated there.

This was in mid-

November." Indeed, at that visit the doctor apparently recommended
that she consider having the shunt removed because it was not
decreasing the size of the cyst and may be causing some of the
behavioral issues. However, the notes also reveal that she did not
bring her medical records with her to the exam.

Thus, the doctor

could have known about the shunt procedure only if she informed him
of it during the visit.

No reasonable jury, confronted with this

undisputed evidence, could conclude that Santana-Concepción, or her
adult children, were not aware of any adverse consequences of her
surgery by January 2, 2007.

Accordingly, the district court

properly granted summary judgment on the medical malpractice claims
of Santana-Concepción and her adult children.
b. Application to the Informed Consent Claims of
Santana-Concepción and Adult Children
The statute of limitations for a physician's failure to
obtain the patient's informed consent for surgery, a cause of
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action separate from a medical malpractice claim, begins to run
when the aggrieved learns that she was subjected to an unauthorized
medical procedure.

Villarini-Garcia v. Hosp. Del Maestro, Inc., 8

F.3d 81, 84-85 (1st Cir. 1993) (citing P.R. Laws Ann. tit. 31,
§ 5298).

A claim, such as the one here, premised on the alleged

failure of the physician to adequately inform the patient of
potential negative consequences, is akin to a failure-to-warn claim
in the medical context.

We have said that the statute begins to

run for those claims at the point when "a reasonable person [would]
conclude that a warning of such possible consequences should have
been given before the operation."

Id. at 85.

With regard to the informed consent claims of SantanaConcepción and her adult children, the cause of action accrued when
they learned that she was experiencing negative side effects of the
shunt operation performed by Dr. Rosado.

The presence of a shunt

in Santana-Concepción's cyst was documented in the treatment notes
from her January 2, 2007 consultation with her doctor, the CT and
MRI records from her hospitalization on February 20, 2007, and the
treatment notes from her follow-up consultation on February 22,
2007. At those consultations, Santana-Concepción discussed various
symptoms that she had been experiencing since the shunt was put in
place,

including

"decreased

vision,

balance," and pain at the shunt site.

difficulty

with

gait

and

In addition, the notes from

Santana-Concepción's February 22 follow-up visit show that she

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discussed the potential removal of the shunt to alleviate her
symptoms with the neurologist who tended to her while she was
hospitalized.

A reasonable jury, confronted with this undisputed

evidence, would be compelled to find that, at least by February 22,
2007, a reasonable person would have concluded that she should have
been

warned

of

the

previously

consequences of shunt surgery.

undisclosed

potential

negative

Accordingly, the district court

properly granted summary judgment on Santana-Concepción's informed
consent claim.
At

least

one

of

the

other

adult

plaintiffs,

Santana-Concepción's sons Herminino and Carlos Manuel, was present
at each of her consultations with doctors in January and February
2007 in New York to translate their mother's interactions with her
doctors.

Hence, the brothers received contemporaneous indications

that Santana-Concepción's shunt surgery had negative consequences,
the risks of which should have previously been disclosed to her.6
Accordingly, the district court properly dismissed the informed
consent claims of the adult children.

6

This is not a case where the informed consent claims of a
patient's relatives potentially accrue later than the patient's own
claims because the relatives did not contemporaneously learn the
details of a particular medical procedure and its effects.
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Minor Plaintiffs' Claims7
"In Puerto Rico, statutes of limitations do not run

against minors until they reach the legal age of 21."

Ocasio-

Berios v. Bristol Myers Squibb, 73 F. Supp. 2d 171, 174 (D.P.R.
1999); P.R. Laws Ann. tit. 32, § 254(1) ("If a person entitled to
bring an action, other than the recovery of real property, be at
the time the cause of action accrued . . . [w]ithin the age of
majority . . . the time of such disability is not a part of the
time limited for the commencement of the action.").

Hence, the

minor plaintiffs' claims cannot be defeated by the statute of
limitations

at

summary

judgment.

Recognizing

this

legal

proposition, the district court addressed the claims of the minor
children on the merits.
1.

Medical Malpractice

In Puerto Rico a medical malpractice plaintiff must
establish three elements:

"(1) the basic norms ('normas minimas')

of knowledge and medical care applicable to general practitioners

7

Puerto Rico courts have "recognized the right of a person to
receive compensation when his or her spouse or other relative
suffers harm in the most diverse situations [including] in cases of
. . . medical malpractice." Santini-Rivera, 137 P.R. Dec. at 8;
see P.R. Laws Ann. tit. 31, § 5141 (providing a cause of action
against a tortfeasor who "causes damage to another through fault or
negligence" (emphasis added)). Acknowledging that "the Puerto Rico
Supreme Court consistently has referred to relatives' causes of
action as 'separate' or 'independent' from the principal
plaintiff's claim," we have analyzed the application of the statute
of limitations to them as standalone claims. González Figueroa v.
J.C. Penney P.R., Inc., 568 F.3d 313, 321 (1st Cir. 2009).
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or specialists; (2) proof that the medical personnel failed to
follow these basic norms in the treatment of a patient; and (3) a
causal relation between the act or the omission of the physician
and the injury by the patient."

Santiago v. Hosp. Cayetano Coll y

Toste, 260 F. Supp. 2d 373, 381 (D.P.R. 2003) (collecting cases).
Puerto Rico courts have long recognized a defense of
"error of judgment," which defeats the second element of the tort.
Under that doctrine, when the evidence shows that different courses
of

treatment

existed

for

the

injured

party's

condition,

and

legitimate debate existed between medical experts as to which
treatment would be appropriate, a physician's judgment call cannot
be the basis for a medical malpractice claim.

Lozada v. Estado

Libre Asociado de P.R., 16 P.R. Offic. Trans. 250, 267 (1985);
Oliveros v. Abréu, 1 P.R. Offic. Trans. 293, 315 (1973) ("[A
physician] is not liable of malpractice when he is faced with a
situation where educated and reasonable doubt about what should be
the

course

to

follow

is

present.").

"It

is,

therefore,

insufficient for a plaintiff in a malpractice case merely to show
that another doctor would have chosen to treat the patient in a
manner different from the manner in which the attending physicians
treated him."

Rolon-Alvarado v. Municipality of San Juan, 1 F.3d

74, 78 (1st Cir. 1993).

The district court found that defense

applicable here.

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The medical malpractice alleged here is the decision of
Dr. Rosado to perform the shunt placement operation on SantanaConcepción.

Specifically at issue was whether her cyst warranted

surgical or pharmacological treatment.8

Santana-Concepción argued

that because her cyst did not cause hydrocephalus,9 a fact that is
undisputed, it was not "symptomatic" and surgery would never be
indicated.
The summary judgment record includes the deposition
testimony of plaintiffs' expert, Dr. Ravi Tikoo.

When asked about

the shunt procedure performed on Santana-Concepción, Dr. Tikoo
testified as follows:
Q [defense counsel]. Doctor, would you agree
with this statement: Treatment for arachnoid
cysts is symptomatic?
A.
Depending on
symptomatic; yes.
Q.

how

you're

defining

How are you defining it.

A. When someone has significant hydrocephalus
or severe symptoms and exam findings from the
cyst.
Q. But it doesn't have to be hydrocephalus
only; is that correct?

8

There is no evidence in the record that a surgical treatment
option, other than placing a shunt, existed.
9

Hydrocephalus is "a condition in which the primary
characteristic is excessive accumulation of fluid in the brain."
National Institute of Neurological Disorders and Stroke,
"Hydrocephalus
Fact
Sheet,"
available
at
http://www.ninds.nih.gov/disorders/hydrocephalus/detail_hydroceph
alus.htm (last visited August 22, 2014).
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A.

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Correct.

Q. Would you agree with this: When symptoms
warrant, the surgical placement of a shunt
may be required to decompress the cyst?
A.

Can you repeat that?

[question repeated]
A.

Yes.

Q. Doctor, would you agree that the decision
of when it is that the symptoms warrant
shunting is a clinical judgment call?
A.

To a certain extent, yes.

Q. And that call, you have never taken it in
your life?
A.

Correct.

Q.
Doctor, would you agree with the
following:
Untreated arachnoid cysts may
cause permanent severe neurological damage due
to the progressive expansion of the cyst or
hemorrhage?
A.

In the appropriate circumstance, yes.

Q. Would you agree with the following
statement: With treatment, most individuals
with symptomatic arachnoid cysts do well?
A.

Many, yes.

Q. Doctor, would you agree with the following:
Controversy
surrounds
the
treatment
of
arachnoid cysts?
A.

Yes.

Q.
Some clinicians advocate treating only
patients with symptomatic cysts whereas others
believe that even [a]symptomatic cyst[s]
should be decompressed to avoid future
complications?
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A. I would - my opinion is that doctors that
recommend
asymptomatic
treatment
of
asymptomatic cysts are not in the majority,
they are probably in the minority.
Q. But there are some authorities that state
that also?
A. In my opinion, those authorities are not
reasonable or credible.
Q. But those authorities or school of thought
exist?
A.

Yes.

Q. And you don't agree with that, but others
don't agree with you; is that correct?
A.

I guess so; yes.

Q. Would you agree with the following: The
most effective surgical treatment appears to
be excision of the outer cyst membrane and
cystoperitoneal [sic] shunting?
A.

In the appropriate circumstance; yes.

In addition, Santana-Concepción's responses to interrogatories
indicated that she "felt [her] eyes were going to fall [sic] of
their socket" when she saw Dr. Rosado for the first time.

It was

at the conclusion of that examination that Dr. Rosado recommended
surgery to place a shunt and relieve intracranial pressure.
On this record, a reasonable jury would be compelled to
conclude that legitimate debate existed among medical experts as to
which treatment would be appropriate for Santana-Concepción's
arachnoid cyst, which, though not causing hydrocephalus, did cause
significant pain. Lozada, 16 P.R. Offic. Trans. at 267. Given the

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testimony of the plaintiffs' own expert, they were unable to
generate a genuine issue of material fact as to the application of
the "error of judgment" defense.

Hence, the district court was

correct to grant summary judgment to the minor plaintiffs on their
medical malpractice claims.
2.

Informed Consent

The remaining claim of the minor plaintiffs is based on
the doctrine of informed consent, which "imposes on physicians the
duty to inform their patients about the nature and risks of the
proposed medical treatment in order to place the patients in a
position to reach an intelligent and informed decision."
Tirado v. Tirado-Flecha, 177 P.R. Dec. 893 (2010).

Lozada-

The minor

plaintiffs claim that Dr. Rosado performed the shunt placement
surgery on Santana-Concepción without obtaining her fully informed
consent.
The scope of the duty to inform does not reach every
remote, hypothetical risk posed by a medical procedure.

Indeed,

the scope of the duty varies with the nature of the proposed
treatment.

Sepúlveda de Arrieta v. Barreto, No. RE-90-41, 1994 WL

908876 (P.R. Dec. 23, 1994). "'If [the medical intervention] is to
save a life, the surgeon should, above all, create a favorable
atmosphere.

If the intervention is simply useful, he must then be

more precise in his disclosure.'"

Id. (emphasis omitted) (quoting

J. Ataz López, Los médicos y la responsabilidad civil 74 (1985)).
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In order to prevail on a claim for lack of informed
consent, a plaintiff must prove that the complained-of injury
resulted from the failure of the physician to fully inform the
patient (i.e., causation).

Sepulveda de Arrieta, No. RE-90-41,

1994 WL 908876. One might expect that such causation can be proved
by showing that the plaintiff would not have consented to the
medical treatment at issue if fully informed of the risks.

The

debate in most U.S. jurisdictions is generally over whether that
fact must be shown subjectively (i.e., from the perspective of the
specific patient) or objectively (i.e., from the perspective of the
reasonable patient). Id.
"Contrary to the United States model -- that focuses on
the decision-making process of the injured party, whether objective
or subjective -- civil law tradition focuses on the alleged
aggravating circumstance."

Id.

Hence, in Puerto Rico, the

question of proximate causation is viewed from the perspective of
the physician.

In other words, the analysis does not turn on

whether the patient would have declined to consent if provided with
the allegedly absent information.

See id. ("[I]t is not necessary

to determine if she, as a patient -- subjectively or objectively -would

or

would

treatment.").

have

not

consented

to

the

proposed

medical

Instead, the pertinent question is "whether in the

normal course of events [the physician] had to foresee that the
lack of pertinent information would lead [the] patient . . . to

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Entry ID: 5854808

take a different decision than the one she would have taken if she
had been suitably informed."

Id.

The district court held that it

would not have been foreseeable that any further disclosure would
have changed Santana-Concepción's decision to undergo surgery. The
court granted summary judgment on that basis.
Here, the minor plaintiffs claim that Santana-Concepción
was never fully informed of the risks of surgery and was never told
that foregoing surgery was a viable option. The record includes an
informed

consent

form

signed

by

Santana-Concepción,

authenticity of which is not dispute.

the

The minor plaintiffs

nonetheless argue that Santana-Concepción was not fully informed
because

four

terms

on

the

form

(arachnoid

cyst,

drainage,

fenestration, and shunt) were in English rather than Spanish (which
was the language of the rest of the document).

They also argue

that Dr. Rosado did not tell Santana-Concepción that her condition
was manageable without surgery, instead implying that the shunt
surgery was a life-saving necessity.
Both of these arguments focus on the wrong perspective,
however.

As explained above, we must examine the question of

foreseeability
Concepción's.
"to

create

from

Dr.

Rosado's

perspective,

not

Santana-

The district court was correct in explaining that
a

genuine

issue

of

fact

under

the

applicable

foreseeability standard, plaintiffs needed to direct the Court to
facts

Dr.

Rosado

could

have

relied

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upon

to

foresee

that

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Document: 00116742764

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Date Filed: 09/23/2014

Entry ID: 5854808

Santana–Concepción was likely to behave different than most people
under the circumstances.

[However,] [p]laintiffs have provided no

evidence whatsoever in this regard."

Dr. Rosado was confronted

with a patient who had a cyst on her brain that was causing her
debilitating pain. He understood it to be a possible life-or-death
situation

and

communicated

that

to

her.

Santana-Concepción

indicated a willingness to entertain any treatment option that
would take away her pain.

Doing nothing was simply not an

acceptable option, even if Dr. Rosado had suggested it. Dr. Rosado
ultimately suggested a surgical procedure to relieve some of the
pressure.

However, before performing the surgery, Dr. Rosado

informed Santana-Concepción and her family of the major risks of
surgery and obtained written consent.
As the district court put it, "[t]he conclusion that Dr.
Rosado could have foreseen a decision to forego surgery by SantanaConcepción is inconceivable under these circumstances."

In other

words, the minor plaintiffs failed to generate a genuine issue of
material fact on the proposition that Dr. Rosado could have
foreseen that providing Spanish translations for the four English
terms, or further discussing some of the possible side effects of
surgery as reasons for not undergoing it, would have changed
Sanatana-Concepción's decision to consent to surgery. Accordingly,

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the district court was correct to grant summary judgment to the
defendants on the informed consent claims of the minor plaintiffs.10

Affirmed.

10

Because, as explained supra, the hospital and related
entities were sued on the basis of vicarious liability for Dr.
Rosado's actions, all claims against those corporate defendants
fail with the claims against him.
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