Santana-Concepcion et al v. Centro Medico del Turabo, Inc. d/b/a HIMA San Pablo Bayamon et al
Filing
153
OPINION AND ORDER granting 141 MOTION for Summary Judgment and denying 138 MOTION to Alter Judgment. Signed by Judge Salvador E. Casellas on 8/1/12. (Attachments: # 1 Appendix)(PR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MARIA SANTANA-CONCEPCION, et
al.
Plaintiffs,
Civil No. 08-1262 (SEC)
v.
CENTRO MEDICO DEL TURABO, et
al.
Defendants.
OPINION AND ORDER
Before the Court are defendants’ motion for summary judgment (Docket # 141) and
plaintiffs’ opposition thereto (Docket # 150). After reviewing the filings and the applicable
law, defendants’ motion is GRANTED.
Factual and Procedural Background 1
This is a medical malpractice diversity suit that arises out of a brain surgery performed
on co-plaintiff Maria Santana-Concepcion. Her four offsprings (only two of legal age when
the suit commenced) joined as co-plaintiffs. Defendants are the surgeon who performed the
surgery, Dr. Julio Rosado, and the hospital where it was performed, Centro Medico del
Turabo, Inc. (the “Hospital” and together with Dr. Rosado, “Defendants”).
Previously, the Hospital moved for summary judgment on all claims, “except the ones
for lack of informed consent of the [underage plaintiffs].” Docket # 121, ¶ 3.2 Plaintiffs
1
A more detailed factual background for the present suit can be found at SantanaConcepcion v. Centro Medico Del Turabo, No. 08-1262, 2012 WL 1107663 (D.P.R. Mar. 30
2012), an unpublished opinion issued earlier in this case. Here, the Court assumes familiarity
with the same.
2
Plaintiffs claims, all actionable under P.R. Laws Ann. tit 31, § 5141, were predicated
on two theories: (1) that Dr. Rosado had failed to obtain Santana-Concepcion’s informed consent
for the surgery; and (2) that Dr. Rosado had failed to abide by the prevailing medical standard
applicable for the treatment provided. Docket # 71. Dr. Rosado neither joined the Hospital’s
2
opposed. Docket # 128. The Court then took the submissions under advisement, ultimately
concluding that Santana-Conception’s claims and those of the other legal age plaintiffs were
time barred. Santana-Concpcion, 2012 WL 1107663.3 The Court also dismissed the underage
plaintiffs’ general malpractice claims, finding them unsupported by the undisputed record.
Id.4
At the time, however, the Court remained uncertain about whether a trial was needed
to adjudge the underage plaintiffs’ lack of informed consent claims. Id., p. 15. Specifically,
the Court fell that the apparent emergency circumstances under which Dr. Rosado performed
the surgery could support application of the “emergency” exception to the informed consent
doctrine. Id. The Court therefore ordered the parties to brief the issue and to include any
“undisputed evidence of record—for example, medical records stating whether the cyst was
symptomatic or asymptomatic, CT scans or MRIs performed before the surgery evincing the
condition of Santana-Concepcion’s brain—as well as to the medical and legal authorities
supporting their respective positions.” Id.
Unsurprisingly, the parties took opposite stands in their submissions in compliance.5
On the one hand, Defendants argue that the emergency exception applies because SantanaConcepcion risked death or permanent brain damage without Dr. Rosado’s surgical
motion nor filed a motion of his own.
3
Because “[i]n Puerto Rico, statutes of limitations do not run against minors until they
reach the legal age of 21,” Ocasio-Berios v. Bristol Myers Squibb Caribbean Corp., 73
F.Supp.2d 171, 174 (D.P.R. 1999), the underage plaintiffs’ claims were immune to a statute of
limitations challenge.
4
Plaintiffs timely moved for reconsideration. Docket # 138. But because their motion
merely restates arguments previously rejected, it is hereby DENIED. See National Metal
Finishing Co., Inc., v. Barclays American/Commercial, Inc., 899 F.2d 119, 123 (1st Cir. 1990)
(stating that reconsideration “is not intended to allow parties to rehash old arguments already
considered and rejected by the trial court . . . .”).
5
This time around Dr. Rosado and the Hospital filed a joint submission. Docket # 150.
3
intervention. Docket # 141-17, pgs. 8-10. In support, they point the Court to pre-surgery
neuroimaging documentation showing that Santana-Concepcion had a large arachnoid cyst
in her brain. Id.6 They also underscore pre-surgery symptoms, treatments, and treatment
results compatible with a prognosis of elevated intracraneal hypertension, as well as
deposition testimony from plaintiffs’ expert stating that intracraneal hypertension can result
in death or in permanent brain damage if untreated. Id. (citing docket # 141-1:21-3:24).
Emergency exception aside, Defendants alternatively argue that no liability should be
imposed because Dr. Rosado “obtained a written informed consent from [SantanaConcepcion] prior to the surgery.” Id., p. 10.7
Plaintiffs, on the other hand, argue that the fact that Dr. Rosado performed the surgery
two days after telling Santana-Concepcion that it was needed debunks the allegation that an
emergency existed. Docket # 150, ¶ 4. They also contend that Santana-Concepcion “was alert
and conscious [during those two days, so] defendants could [have] obtain[ed] inform[ed]
consent from her during that period of time.” Id. To support this contention, plaintiffs proffer
excerpts from the following testimony Santana-Concepcion provided during her deposition:
A.
When I went there I went there because I had this horrible
headache, with my eyes wanting to pop out. So, walk in my shoes
for a little while, you know, if he comes over and he says, “This
is a life or death situation, if you do not get this operation you’re
dying,” and he says this in front of all my family, because that is
what he said. You know, are you going to say yes? Well, yes, of
course I’m going to say yes, cause one hour of life is life, it’s
something.
So, he said, “Doña Maria, do not worry, when you wake up the
headache is going to be gone.” And I grabbed his hand and I held
his hand and I kissed it and I told him, “May God bless you,” and
then I was knocked out again.
6
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).
7
An official English translation of the informed consent form is included as an appendix
to this opinion.
4
Q.
What was your understanding of what was the operation for?
A.
When he came he said, “Doña Maria” because he woke me up,
because I was sleeping as I said before. He woke me up and he
said, “I am doctor Rosado, I am the one [who is] going to operate
on you, because this is a life or death situation.” Those were the
words he used.
He had already told my sister and everybody else, except me,
because I was sleeping. So, he woke me up and he told me that.
And I said, “Just take this away, this is what’s bothering me, I’m
going to die, this is going to kill me,” and he said, “Ok, sign here
and I see you in the operating room.” And I fell asleep again. I
signed and I fell asleep again.
Q.
What was he going to operate?
A.
He said he was going to operate on the tumor. That if it wasn’t
extracted, I was going to die. That it was a life or death situation.
Q.
What tumor?
A.
The tumor on the head. He said, “That’s what you are like that,
that’s why you fell like your eyes want to pop out” . . . And he
said, “That’s going to make you a lot better.” And I said, “Thank
you, yes, yes, please, then operate.”
Docket # 150-1, ¶ 20 (citing docket # 128-12, 18:10-19:19).8 Finally, regarding Defendants’
contentions in connection with the informed consent form, plaintiffs state that SantanaConcepcion speaks no English and argue that she did not understand what she signed,
because “the fourth line of the inform[ed] consent document [was] written in English; it
state[ed] arachnoid cyst, drainage, fenestration, and shunt.” Docket # 128, ¶ 27.9
Standard of Review
Because the Court expounded the standard for summary judgment in its previous
Opinion, brief remarks about it suffice here. It is well settled that “the function of a motion
8
The Court already concluded that Santana-Concepcion’s surgery was undertaken for
valid reasons and performed properly (Docket # 136); therefore, the Court need not consider the
arguments plaintiffs present now on these points.
9
Although plaintiffs’ submissions this time around are silent about the informed consent
form, the foregoing quote comes from previous entries of record.
5
for summary judgment is to smoke out if there is any case . . . and, if there is no case, to
conserve judicial time and energy by avoiding an unnecessary trial and by providing a speedy
and efficient summary disposition.” Bland v. Norfolk & S.R. Co., 406 F.2d 863, 866 (4th Cir.
1969). Accordingly, the summary judgment motion seeks to “isolate and dispose of factually
unsupported claims or defenses [before trial].” Celotex Corp. v. Catrett, 477 U.S. 317, 32324 (1986). The dispositive question for this inquiry is whether the nonmovant, who will bear
the burden of proof at trial, has pointed to the existence of evidence that could support the
necessary elements of her claim. Id. at 322-23. If she has not, “there can be ‘no genuine issue
as to any material fact,’ since a complete failure of proof concerning an essential element of
the nonmoving party’s case necessarily renders all other facts immaterial,” id., which, in turn,
“allows the summary judgment engine to operate at full throttle.” Maldonado-Denis v.
Castillo Rodríguez, 23 F.3d 576, 581 (1st Cir. 1994).
Applicable Law And Analysis
The informed consent claim of the underage plaintiffs is premised on two well-settled
principles of Puerto Rican tort law: (1) that “a person is 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,” Santino-Rivera v. Serv Air, Inc., 1994
P.R.- Eng. 909, 527, 137 P.R. Dec. 1, 10-12 (1994); and (2) that “a physician’s failure to
obtain the patient’s informed consent for surgery gives rise to a cause of action . . . . separate
and distinct from a cause of action for medical malpractice attributable to a diagnosis or
treatment,” Santiago-Otero v. Mendez, 1994 P.R. - Eng. 909, 224, 135 P.R. Dec. 540, 557
(1994).10 Stated differently, the underage plaintiffs’ claim to be entitled to relief because (1)
Dr. Rosario failed to provide their mother with the information required under the informed
consent doctrine; (2) their mother suffered damages due to Dr. Rosado’s omission; and (3)
10
The substantive law of Puerto Rico governs the outcome in this case. See Erie R.R. Co.
v. Tompkins, 304 U.S. 64, 78 (1938).
6
they experienced emotional distress and anguish due to the damages their mother suffered.
Docket # 71. Plaintiffs’ contentions, however, are against the undisputed evidence of record
and the applicable law.
The informed consent doctrine imposes upon medical practitioners the duty to inform
“patients of the nature and risks of the proposed treatment so as to place the patient in a
position to reach an intelligent and informed decision.” Rodriguez-Crespo v. Hernandez, 21
P.R. Offic. Trans. 637, 121 P.R. Dec. 639, 664 (1988). Underlying this doctrine is the tenet
that every person has the right “to self-determination, that is, to freely decide what can be
done with his or her body . . . .” Sepulveda de Arrieta v. Barreto, 1994 P.R. -Eng. 908, 876,
137 P.R. Dec. 735, 742 (1994); accord Santiago-Otero, 1994 P.R. - Eng. 909, 224 n. 24
(“The informed consent doctrine is based on the fundamental right that consecrates the
inviolability of the human body as an unalienable right of the human person.”). Accordingly,
a medical practitioner is duty-bound to “disclose the reasonably foreseeable risks involved,
as well as the benefits of the treatment and invasive procedures to be performed on the
human body, and the options available. He must also inform the patient of the probable risks
involved if the condition goes untreated.” Rodriguez-Crespo, 21 P.R. Offic. Trans. 637.
The informed consent doctrine is not of absolute application, however. Exceptions to
the doctrine are allowed, for example, in emergency situations, “where obtaining the patient’s
consent results impractical because the patient’s life or health is under a great threat that
requires immediate medical attention.” Montes v. State Insurance Fund, 87 P.R. Dec. 199,
204 (1963) (translation provided); see also Rodriguez-Crespo, 21 P.R. Offic. Trans. 637. The
Puerto Rico Supreme Court has defined the term “emergency” in the context of the informed
consent doctrine as “an unforeseen combination of circumstances which calls for immediate
action,” and thus, has rationalized the exception by noting that when such “emergency occurs
there is an immediate necessity to cope with it.” Torres-Perez v. Hospital Dr. Susoni, Inc.,
95 P.R. Dec. 867, 473 (1968) (quoting Wheeler v. Barker, 208 P.2d 68, 73-74 (Cal. 1949).
7
In this case, the record remains inconclusive about whether Santana-Concepcion’s
surgery was “an immediate necessity.” To be sure, the record does show, and the Court
already determined, that Santana-Concepcion’s condition was serious and that both Dr.
Rosado’s decision to operate on her as well as his performance at the operating table were
proper. Santana-Concepcion, 2012 WL 1107663. Notwithstanding, these facts alone are
insufficient in light of the two-day delay between Dr. Rosado’s decision to operate and the
performance of the operation. Defendants’ submission to the Court is silent in this regard.
Accordingly, with no evidence of record to explain away the two-day delay, a genuine,
material dispute precludes the summary application of the emergency exception to the
informed consent doctrine.
Still, the underage plaintiffs’ claim fails for another reason. To succeed under the
informed consent doctrine, a plaintiff must prove that the damages underlying her complaint
resulted from the practitioner’s failure to provide requisite information. Sepulveda de Arrieta,
1994 P.R. -Eng. 908, 876.11 This burden is satisfied with evidence showing that “in the
normal course of events [the medical practitioner sued] had to foresee that the lack of
pertinent information would lead [the] patient . . . to take a different decision than the one she
would have taken if she had been suitably informed.” Id., see also Soc. De Gananciales v.
Geigel, 145 P.R. Dec. 663, 671 (1998). In other words, the dispositive inquiry is not whether
the “patient—subjectively or objectively—would or would have not consented to the
proposed medical treatment” had she been provided with the omitted information. Sepulveda
11
A prerequisite to this casual connection requirement is a showing that the practitioner
did in fact fail to provide pertinent information to the patient. Santiago-Otero, 1994 P.R. - Eng.
909, 224 n. 25. Here, other than stating that Santana-Concepcion signed an informed consent
form, Defendants have proffered no evidence showing the extent of the parties’ pre-surgery
interactions. Without more, the Court is in no position to determine whether Dr. Rosado
provided all requisite information to Santana-Concepcion. See Anaya-Burgos v. Lasalvia-Prisco,
607 F.3d 269, 272 (1st Cir. 2010) (vacating and remanding judgment for defendants even though
an informed consent form had been signed). The Court therefore assumes without deciding that
Dr. Rosado failed to do so.
8
de Arrieta, 1994 P.R. -Eng. 908, 876 (emphasis added). Rather, the Court must determine
whether the practitioner had to “foresee that the lack of information would lead the patient
to expose herself to the nondisclosed risks.” Id. This determination is of course a factuallydependent, case-by-case one. Id.
In this case, the analysis begins with the undisputed fact that both Dr. Rosado and
Santana-Concepcion believed the surgery to be a life-saving necessity. See SantanaConcepcion’s deposition at Docket # 128-12, 18:12-15. Most people when presented with
such a scenario would likely opt for surgery without much hesitation, especially if given a
positive post-operating prognosis. In fact, the Court believes that the following remarks
Santana-Concepcion made during her deposition accurately describe the reaction most people
would have when deciding whether to accept a life-saving surgery: “Well, yes, of course I’m
going to say yes, cause one hour of life is life, it’s something.” Docket # 128-12, 18:16-17.
Therefore, to create a genuine issue of fact under the applicable foreseeability standard,
plaintiffs needed to direct the Court to facts Dr. Rosado could have relied upon to foresee
that Santana-Concepcion was likely to behave different than most people under the
circumstances. Plaintiffs have provided no evidence whatsoever in this regard. To the
contrary, the record shows that Santana-Concepcion unobjectionably, unequivocally, and
repeatedly told Dr. Rosado to go ahead with the surgery. Docket # 150-1, ¶ 20 (citing Docket
# 128-12, 18:10-19:19).
On top of this, the record also shows that Dr. Rosado informed Santana-Concepcion
about her condition as well as about the surgery. Id. He explained the same to members of
Santana-Conception’s family present at the hospital before the surgery. Id. Further, SantanaConcepcion was alert and calm, and she appeared to understand her predicament as explained
to her. The following excerpt from plaintiffs’ opposition memorandum confirms this point:
“When doctor Rosado discussed with her the need of a surgery, Ms. Santana stated ‘Good,
not a problem. Do as fit . . . .’ Ms. Santana did not act alarm[ed], apprehensive, did not refuse
9
and did not evidence a psychological reaction.” Docket # 150-1, p. 9. Also telling in this
regard is the fact that when informed about the surgery, Santana-Concepcion blessed and
thanked Dr. Rosado; and immediately thereafter fell asleep soundly. Docket # 128-12,
18:10-19:19. And while controversy exists concerning the extent of the pre-surgery
interactions between the parties, the record shows that Santana-Concepcion was provided
with (and she signed) an informed consent form disclosing many of the risks and benefits of
the surgery. In sum, the record shows that Dr. Rosado faced the following pre-surgery
scenario: (1) he had a patient in need of a life-saving surgery; (2) he had verbally informed
the patient and her family about the surgery and they had reacted calmly and approvingly to
the news; and (3) the patient had consented verbally and in writing to the surgery. The
conclusion that Dr. Rosado could have foreseen a decision to forego surgery by SantanaConcepcion is inconceivable under these circumstances; therefore, summary judgment is
appropriate. See Staelens v. Dobert, 318 F.3d 77, 79 (1st Cir. 2003) (“Although the question
of proximate cause—i.e., whether a risk of harm was reasonable foreseeable—is ordinarily
for the jury, summary judgment may be appropriate when the evidence and the reasonable
inferences drawn therefrom lead to but one conclusion.”).
As stated above, plaintiffs argue that Santana-Concepcion consented to the surgery
and signed the informed consent form without understanding the English terms “arachnoid
cyst, drainage, fenestration, and shunt.” Docket # 128, ¶ 27.12 Even if this were the case, the
focus here is not Sananta-Concepcion but Dr. Rosado. See Sepulveda de Arrieta, 1994 P.R.
-Eng. 908, 876. From his point of view, the informed consent form, which was written in
Spanish (but for the four terms Plaintiffs cling upon) and provided information about risks
and benefits of the surgery, together with the other undisputed facts of record, provided
12
The Court notes, without weighing, that Santana-Concepcion was a registered nurse by
trade and that she received treatment in the United States for her arachnoid cyst before the
surgery. In a trial, both of these facts would undoubtedly have to be reconciled with the
proposition that Santana-Concepcion did not understand what the four terms just quoted meant.
10
________________________________________________________________________
ample grounds to plunge ahead with the surgery without more. At any rate, considering the
undisputed evidence of record, the contention that it was foreseeable to Dr. Rosado that
Santana-Concepcion would reject a life-saving surgery if provided with Spanish translations
of the terms “arachnoid cyst, drainage, fenestration, and shunt” is, to say the least,
nonsensical.
Conclusion
For the foregoing reasons, Defendants’ summary judgment motion is GRANTED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 1st day of August, 2012.
s/Salvador E. Casellas
SALVADOR E. CASELLAS
U.S. Senior District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?