Rivera-Carrion v. United States of America, et al

Filing 138

OPINION AND ORDER denying 95 MOTION for Summary Judgment filed by Max Miranda; granting 124 MOTION for Leave to File Sur-Reply. Signed by Judge Salvador E Casellas on 11/16/2009.(THD)

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO G L A D Y S RIVERA CARRION, et al. * * P la in tif f * v. * * U N IT E D STATES OF AMERICA, * e t al. * * D efendant * **********************************

Civil No. 08-1498(SEC)

O P I N I O N AND ORDER P e n d in g before the Court is Co-defendant Dr. Maximino Miranda ("Miranda"), Jane D o e , and the Miranda-Doe's (hereinafter jointly "Co-defendant") Motion for Summary J u d g m e n t (Dockets ## 95-97), and Plaintiffs' opposition thereto (Dockets # # 115-188), as w e ll as a Reply to said opposition (Docket # 122), and a subsequent Sur-Reply (Docket # 1 2 4 ). After reviewing the parties' filings and the applicable law, Co-defendant's motion for p a rtia l summary judgment is hereby DENIED. F a c tu a l Background: B ecau se the instant motions are for summary judgment, both parties must comply with th e requirements of Local Rule 56, and file a statement of facts, set forth in numbered p a ra g ra p h s , and supported by record citations. See Local Rule 56(b). Additionally, the party o p p o sin g the motion, must: s u b m it with its opposition a separate, short, and concise statement of material f a c ts . The opposition shall admit, deny or qualify the facts by reference to e a c h numbered paragraph of the moving party's statement of material facts a n d unless a fact is admitted shall support each denial or qualification by a re c o rd citation as required by this rule. a record citation as required by s u b s e c tio n (e) of this rule." Local Rule 56(c)(emphasis added). If the opposing party wants to put forth additional facts, it may do so "in a separate section [with] separate numbered paragraphs supported by a re c o rd citation as required by subsection (e) of [the] rule...." Id. Co-defendant complied with this rule and submitted a Statement of Uncontested facts (D o c k e t # 96)(hereinafter "SUF"), numbered, and supported by record citations. Plaintiffs

2 o p p o se d in accordance with the Local Rules, and also provided their own Opposing S ta te m e n t of Uncontested Facts ("OSUF"), which Co-defendant did not oppose. See Docket # 115 at 7-14. Because Co-defendant failed to deny, affirm, or qualify Plaintiffs' OSUF, the f a c ts contained therein shall be deemed admitted by virtue of Local Rule 56(c). See CabánH e rn á n d e z v. Philip Morris USA, Inc., 486 F.3d 1, 7(1st Cir. 2007). As discussed in this Court's prior Opinion & Order (Docket # 107), the present la w s u it was brought by Co-plaintiff Betsy Roman-Rivera ("Roman"), a minor represented b y her mother Gladys Rivera-Carrion (hereinafter "Rivera"), for medical malpractice against M ira n d a , Gurabo Community Health Center (hereinafter "GCHC"), and the United States o f America ("United States"). R o m a n received medical treatment at GCHC between the years 2000 and 2005 for a g ro w th on her leg. Id. Plaintiffs allege that this treatment was negligent, and that it led to R o m a n having a large portion of her calf removed. Plaintiffs also allege that they were only a le rte d to the fact that Roman had been subject to negligent medical treatment on May 24, 2 0 0 5 , after a consultation with a doctor not associated with GCHC. See Docket # 1 at 5. Plaintiffs allege that Miranda treated Roman on multiple occasions between 2000-2002, and th a t he failed to provide medically adequate treatment, and diagnosis of her condition. Co-defendant bases his motion for summary judgment on the argument that he is not p e rs o n a lly liable in this case due to the fact that, at all relevant times, he was acting as an e m p lo ye e of the University of Puerto Rico, and that 26 L.P.R.A. § 4105 and the Eleventh A m e n d m e n t provides him immunity as an employee of the University of Puerto Rico. However, Plaintiffs contest that Miranda also treated her in his position as a salaried p h ys ic ia n at the GCHC. Having described the general context of this suit, the uncontested facts are as follows: B e tw e e n 2000 and 2002 Miranda acted as an attending physician and as Clinical

3 M e d ic a l Director at GCHC.1 OSUF # 1, Docket # 115. During the period relevant to the p r e s e n t suit, Miranda sometimes operated at GCHC in a supervisory capacity of U.P.R. m e d ic a l students due to an ad honorem Assistant Professor appointment at the U.P.R. M e d ic a l Sciences Campus. SUF # 1, Docket # 96. Plaintiffs allege that Miranda saw Roman as a patient beginning in November, 2000, a n d that on various occasions both leading up to her 2001 surgery, and subsequently to the s a m e , he was the only doctor who treated her. OSUF # 3. Beginning in 2000, Miranda tre a te d Roman at medical offices inside GCHC, not exclusively at its Minor Surgery Clinic. O S U F ## 7 & 14. Besides various the various other visits alleged by Plaintiffs, Miranda p e rf o rm e d two minor surgical interventions on Roman at the Minor Surgery Clinic, first on J a n u a ry 22, 2001, and then on June 5, 2002. The U.P.R. certifies that on May 6, 2002, M ira n d a was assisted by Family Medicine Resident Dr. Nilsa Sanchez, but that for the s e c o n d intervention it is unable to certify if a resident or medical student was present. Docket # 96-2. Miranda asserts that, according to GCHC's certified medical records, Miranda's n a m e only appears in Roman's record in relation to these two interventions. SUF # 4. Finally, this Court accepts Co-defendant's statement that the University of Puerto Rico is a public instrumentality. SUF # 5. S ta n d a r d of Review T h e Court may grant a motion for summary judgment when "the pleadings, d e p o s itio n s , answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c); See also Anderson v. Liberty L o b b y, Inc., 477 U.S. 242, 248(1986); Ramírez Rodríguez v. Boehringer Ingelheim, 425 F.3d 6 7 , 77 (1st Cir. 2005). In reaching such a determination, the Court may not weigh the

B e g in n in g in 2000, Miranda had a forty-hour a week Physician's Contract with GCHC, and received a m o n th ly salary of $6,258. Docket # 75-2.

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e v id e n c e . Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668 (1 Cir. 1994). A t this stage, the court examines the record in the "light most favorable to the nonmovant," a n d indulges all "reasonable inferences in that party's favor." Maldonado-Denis v. CastilloR o d ríg u e z , 23 F.3d 576, 581 (1st Cir. 1994). O n c e the movant has averred that there is an absence of evidence to support the n o n m o v in g party's case, the burden shifts to the nonmovant to establish the existence of at le a s t one fact in issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 4 6 , 48 (1st Cir. 1990) (citations omitted). "A factual issue is `genuine' if `it may reasonably b e resolved in favor of either party and, therefore, requires the finder of fact to make `a c h o ic e between the parties' differing versions of the truth at trial.'" DePoutout v. Raffaelly, 4 2 4 F.3d 112, 116 (1st Cir. 2005)(quoting Garside, 895 F.2d at 48 (1st Cir. 1990)). In order to defeat summary judgment, the opposing party may not rest on conclusory a lle g a tio n s , improbable inferences, and unsupported speculation. See Hadfield v. M c D o n o u g h , 407 F.3d 11, 15 (1st Cir. 2005) (citing Medina-Muñoz v. R.J. Reynolds T o b a c c o Co., 896 F.2d 5, 8 (1st Cir. 1990). Nor will "effusive rhetoric" and "optimistic s u rm ise " suffice to establish a genuine issue of material fact. Cadle Co. v. Hayes, 116 F.3d 9 5 7 , 960 (1st Cir. 1997). Once the party moving for summary judgment has established an a b s e n c e of material facts in dispute, and that he or she is entitled to judgment as a matter of la w , the `party opposing summary judgment must present definite, competent evidence to re b u t the motion.' Méndez-Laboy v. Abbot Lab., 424 F.3d 35, 37 (1st Cir. 2005) (quoting M a ld o n a d o -D e n is v. Castillo Rodríguez, 23 F.3d 576, 581 (1st Cir. 1994). "The non-movant m u s t `produce specific facts, in suitable evidentiary form' sufficient to limn a trial-worthy is su e . . . . Failure to do so allows the summary judgment engine to operate at full throttle." Id .; see also Kelly v. United States, 924 F.2d 355, 358 (1st Cir. 1991) (warning that "the d e c is io n to sit idly by and allow the summary judgment proponent to configure the record is lik e ly to prove fraught with consequence."); Medina-Muñoz, 896 F.2d at 8, quoting Mack v . Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989) (holding that "[t]he evidence

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i l l u stra tin g the factual controversy cannot be conjectural or problematic; it must have s u b s ta n c e in the sense that it limns differing versions of the truth which a factfinder must r e s o lv e ." ) . Moreover, FED. R. CIV. P. 56 allows an entry of partial summary judgment. Section 6 thereof provides that "[a] summary judgment, interlocutory in character, may be rendered o n the issue of liability alone although there is a genuine issue as to the amount of damages." Applicable Law and Analysis P u e rto Rico law provides immunity for those doctors, and other health care providers, w h o provide services at state run facilities, or as part of their duties as employees of the C o m m o n w e a lth of Puerto Rico. Colon v. Ramirez, 913 F. Supp. 112, 119 (D.P.R. 1996). The la w clearly states as follows: N o health services professional may be included as a defendant in a civil a c tio n for damages involving medical malpractice fault or negligence caused in the performance of his/her profession while said health services professional a c ts in compliance with his/her duties and functions as an employee of the C o m m o n w e a lth of Puerto Rico, its dependencies, instrumentalities, the C o m p r e h e n s iv e Cancer Center of the University of Puerto Rico and m u n ic ip a litie s or as personnel under contract thereto, while acting in c o m p lia n c e with his/her duties and functions in the fields of obstetrics, o rth o p e d ic s , general surgery and trauma in a medical-hospital facility property o f the Commonwealth of Puerto Rico, its dependencies, instrumentalities a n d /o r municipalities, regardless of whether said facility is being administered o r operated by a private entity. P.R. Laws Ann. 26 § 4105 . . . T h e case law cited by Co-defendant states that part time Assistant Professors with the UPR a re entitled to immunity from suit when they are providing services for said university, not in their private practice. Rivera v. Hospital Universitario, 762 F.Supp. 15, 19 (D.P.R. 1991). A c c o rd in g ly, arguendo that ad honorem Assistant Professors enjoy immunity under certain lim ite d circumstances, the question at bar is not whether Miranda's appointment could have p ro v id e d immunity, rather if he acted as an employee of the UPR at all relevant time he o f f e re d treatment to Plaintiff. For the reasons set forth below, this Court believes that there is evidence on the record

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to support a claim that he in fact treated Roman in his capacity as an employee of GCHC. P la in tif f s have proffered evidence controverting Miranda's allegations that he was acting w ith in the scope of his duties as an ad honorem Assistant Professor. See OSUF # 2,3, 7 & 1 4 . In fact, it appears that Miranda may well have received Roman in various non-surgery re la te d visits, which included the initial diagnosis of her condition and subsequent follow-up. O S U F ## 13-16.This makes sense given that Miranda received a full-time salary from GCHC a n d no remuneration from the U.P.R., so a reasonable inference can be made that his duties f o r the latter were of a limited nature. Furthermore, Co-defendant has failed to properly define the scope of Miranda's ad h o n o re m appointment, and failed to provide this Court with a way of analyzing when M ira n d a worked for GCHC and when he functioned as an employee of the U.P.R. Cod e f e n d a n t's assertion that Miranda's name only appears twice in Roman's medical records, c o rre sp o n d in g to the January 22, 2001 and June 5, 2002, interventions is also ambagious. See D o c k e t # 96-3 at 2. The U.P.R. certifies that at the 2002 minor surgery no U.P.R. medical s tu d e n t or resident was present. It is not clear if this statement is limited to Miranda's actions a t the Minor Surgery Clinic, and artfully avoids mentioning Roman's other visits to GCHC. F u rth e rm o re , even if these were the only dates Miranda treated Roman, which appears im p ro b a b le , there is no record of a student being present on June 5, 2002, which makes M ira n d a 's claim of immunity appear even more dubious. As such, giving Plaintiffs the benefit of the inferences the motion for summary ju d g m e n t stage affords the non-movant, this Court must conclude that at best there is a m a t e r i a l controversy of fact as to whether Miranda is entitled to immunity in the present a c tio n . Therefore, his Motion for Summary Judgment is DENIED. C o n c lu s io n F o r the reasons set forth above, Defendant's Motion for Summary Judgment is hereby D E N IE D .

C iv il No. 08-1498 SO ORDERED. In San Juan, Puerto Rico, this 16th day of November, 2009. S / Salvador E. Casellas S A L V A D O R E. CASELLAS U .S . Senior District Judge

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