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

Filing 169

ORDER. DENIED 125 motion for summary judgment. Signed by Judge Salvador E Casellas on 9/16/2010. (PR)

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

Doc. 169

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I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO G L A D Y S RIVERA CARRION, et al. Plaintiffs C iv il No. 08-1498 (SEC)

U N IT E D STATES OF AMERICA, et al. D e f e n d a n ts .

OPINION AND ORDER P e n d in g before the Court is the United States of America's ("Co-defendant") Motion for S u m m a ry Judgment (Dockets ## 125-127), and Plaintiffs' opposition thereto (Dockets ## 130, 1 3 2 -3 3 ), together with supplemental motions each party filed at the Court's request. Dockets # # 139, 147-48, 149, 152-2. After reviewing the parties' filings and the applicable law, Cod e f e n d a n t's motion is hereby DENIED. P r o c e d u r a l and Factual Background: A s discussed in this Court's prior Opinions & Orders (Dockets ## 57, 107, 138), the p re s e n t tortsuit was brought by Plaintiffs, minor Betsy Roman-Rivera ("Roman") and her m o th e r , for medical malpractice against Dr. Maximino Miranda, Gurabo Community Health C e n te r ("GCHC"), and Co-defendant. Roman received medical treatment at GCHC between the ye a rs 2000 and 2005 for a growth on her leg. Id.1 On January 1, 2004, while Roman was a p a tie n t of GCHC, the GCHC gained malpractice coverage under the Federal Tort Claim Act

Co-Defendant moved to dismiss Plaintiffs' claim as time barred, but the Court denied the motion because the record at that juncture lacked the necessary evidence to accurately determine the date of accrual for Plaintiffs' claim. See Opinion and Order, Docket 57, p. 8, 10. Co-defendant's Motion for Summary Judgment makes no reference about this issue.

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Dockets.Justia.com

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CIVIL NO. 08-1498 (SEC) ("FTCA"), 25 U.S.C. §§ 2671-2680.2 The FTCA is therefore the statutory predicate for P la in tif f s ' claim against Co-defendant.

4 The pertinent uncontested facts and the parties' specific allegations are uncomplicated. 5 O n January 22, 2001, Roman underwent surgery at the GCHC to remove a tumor from her right 6 c a lf . See Opposition to Statement of Uncontested Facts ("OSUF"), Docket # 130, ¶ 1. On June 7 5 , 2002, Roman underwent a second surgery for the same purpose. Id., ¶ 4. This time, however, 8 th e tumor removed from her right calf was referred to pathology for an exam, which revealed 9 th e tumor to be a dermatofibroma extended to the margins. Id., ¶ 6. Roman visited the GCHC 10 a g a in on August 25, 2003. Id., Exhibit XIII. During that visit, a doctor assessed her right leg's 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 In pertinent part, the United States Department of Health & Human Services deeming letter stated: "The Bureau of Primary Health Care (BPHC), in accordance with Section 224(h) of the Public Health Service (PHS) Act, 42 U.S.C. 233(h)... deems the [GCHC] to be an employee of the Federal Government, effective January 1, 2004...." Docket # 26-2, p. 2.
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c o n d iti o n as a dermatofibroma with a second recurrence and concluded that a surgery c o n s u lta tio n as well as a follow up appointment were necessary. Id. The parties disagree, and the record is unclear, about the events that transpired thereafter. P la in tif f s allege that Roman never received a referral for a surgery consultation or a follow up a p p o in tm e n t during or after the August 25, 2003 visit. See OSUF, ¶¶ 8-11. They allege instead t h a t Roman went for walk-in consultations to the GCHC in at least six different occasions b e tw e e n August 25, 2003 and September 3, 2004, when, after a year of complete medical in a c tio n , she was finally referred for a surgery consultation. Plaintiffs also allege that the d o c to rs who examined Roman during August 25, 2003 and September 3, 2004 failed to inform th e m "about the risks of removing the tumor, its benefits, the available alternatives, []or the p ro b a b le risks related to no [sic] treating the condition...." OSUF, ¶ 17. To support this

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CIVIL NO. 08-1498 (SEC) allegation, Plaintiffs underscore the absence of entries detailing such disclosures on Roman's

3 G C H C medical records. Id. 4 Co-defendant sets forth a different account of events. It states that Plaintiffs were 5 in f o rm e d about "the risk associated with leaving [Roman's] condition untreated," (Statement 6 o f Uncontested Facts ("SUF"), Docket # 127, ¶ 17) and disavows Plaintiffs' alleged walk-in 7 8 th ird time, with part of her right calf having to be removed to treat a tumor. See Docket 147, 9 E x h ib it XIII. 10 D e s p ite the factual dispute described above, Co-defendant has moved for partial 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 At a pre-trial conference, the Court ordered the parties to file simultaneous motions clarifying and supplementing three aspects about the present motion for summary judgment: (i) Roman's visits to GCHC between August 2003 and September 2004 and what, if any, tests and examinations were performed; (ii) GCHC's records about Plaintiffs' visits to GCHC between January 1, 2004 and September 3, 2004; and (iii) the parties' legal theories about GCHC's post-September 2004 liability. See Pretrial Conference Minute, Docket # 139. The parties' supplemental filings, however, restated most of the information provided in previous pleadings and thus failed to further the Court's understanding about the aforementioned issues.
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v isits. Id., ¶¶ 13-14.3 In any event, on or about June 25, 2005, Roman underwent surgery for a

s u m m a ry judgment with a two-prong argument: (i) that the medical records, or lack thereof, a b o u t Roman's walk-in visits support its version of the facts; and (ii) that the medical treatment R o m a n received on the September 3, 2004 visit ­ a physical examination, palpation of the a f f e c te d area and referral to an specialist ­ comports with the applicable standard of care. See M o tio n for Summary Judgment, Docket # 126, p. 5-6. Because, as explained below, the first p ro n g of Co-defendant's argument is at odds with the exigencies of the summary judgment s ta n d a rd , the Court denies Co-defendant's motion without considering the second prong. Standard of Review T h e Court may grant a motion for summary judgment when "the pleadings, depositions, a n s w e rs to interrogatories, and admissions on file, together with the affidavits, if any, show that

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Civil No. 08-1498(SEC) th e re is no genuine issue as to any material fact and that the moving party is entitled to judgment a s a matter of law." FED.R.CIV.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 2 4 8 (1 9 8 6 ); Ramírez Rodríguez v. Boehringer Ingelheim, 425 F.3d 67, 77 (1st Cir. 2005). In r e a c h i n g such a determination, the Court may not weigh the evidence. See Casas Office M a c h s ., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668 (1st Cir. 1994). At this stage, the court e x a m in e s the record in the "light most favorable to the nonmovant," and indulges all " re a s o n a b le inferences in that party's favor." Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 5 7 6 , 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 least o n e fact in issue that is both genuine and material. See 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 choice b e tw e e n the parties' differing versions of the truth at trial.'" DePoutout v. Raffaelly, 424 F.3d 1 1 2 , 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. McDonough, 4 0 7 F.3d 11, 15 (1st Cir. 2005) (citing Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5 , 8 (1st Cir. 1990). Nor will "effusive rhetoric" and "optimistic surmise" suffice to establish a genuine issue of material fact. See Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir. 1997). Once the party moving for summary judgment has established an absence of material facts in d isp u te , and that he or she is entitled to judgment as a matter of law, the "party opposing s u m m a ry judgment must present definite, competent evidence to rebut the motion." MéndezL a b o y v. Abbot Lab., 424 F.3d 35, 37 (1st Cir. 2005) (quoting Maldonado-Denis v. Castillo R o d ríg u e z , 23 F.3d 576, 581 (1st Cir. 1994). "The non-movant must `produce specific facts,

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Civil No. 08-1498(SEC) in suitable evidentiary form' sufficient to limn a trial-worthy issue.... Failure to do so allows th e summary judgment engine to operate at full throttle." Id.; see also Kelly v. United States, 9 2 4 F.2d 355, 358 (1st Cir. 1991) (warning that "the decision to sit idly by and allow the s u m m a ry judgment proponent to configure the record is likely to prove fraught with c o n s e q u e n c e ." ); Medina-Muñoz, 896 F.2d at 8, quoting Mack v. Great Atl. & Pac. Tea Co., 871 F .2 d 179, 181 (1st Cir. 1989) (holding that "[t]he evidence illustrating the factual controversy c a n n o t be conjectural or problematic; it must have substance in the sense that it limns differing v e rs io n s of the truth which a factfinder must resolve."). Applicable Law and Analysis A s stated above, Plaintiffs' cause of action against Co-defendant is premised on the F T C A . In pertinent part, this statute provides U.S. District Courts with exclusive jurisdiction to hear civil actions on claims against the United States for personal injury caused by negligent a c ts or omissions of federal government employees while acting withing the scope of e m p lo ym e n t. See 28 U.S.C. § 1346(b)(1). To adjudicate a claim brought under the FTCA, courts m u s t apply the law of the place where the act or omission occurred. Id. There is no dispute that a ll the events surrounding the instant suit transpired in Puerto Rico; therefore, as noted by the p a rtie s , applicable Puerto Rico law governs Plaintiffs' claim. With Article 1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 5141, and the re le v a n t Puerto Rico Supreme Court jurisprudence underlying its analysis, the First Circuit C o u rt of Appeals has delineated the elements for a successful medical malpractice suit under P u e rto Rico law: "To prevail against a doctor, a party must establish (1) the duty owed; (2) an a c t or omission transgressing that duty; and (3) a sufficient causal nexus between the breach and th e harm." Rojas-Ithier v. Sociedad Española de Auxilio Mutuo y Beneficencia de Puerto Rico, 3 9 4 F.3d 40, 43 (1st Cir. 2005). Although expert testimony must be provided to aid the Court in determining the concurrence of these elements, see Marcano Rivera v. Turabo Med. Ctr.

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Civil No. 08-1498(SEC) P 's h ip ., 415 F.3d 161, 167 (1st Cir. 2005), the legal contours of each element have been clearly d e m a rc a te d . The "duty owed" by a doctor is that of using "the same degree of expertise as could re a s o n a b ly be expected of a typically competent practitioner in the identical specialty under the s a m e or similar circumstances, regardless of regional variations in professional acumen or level o f care." Rolon-Alvarado v. Municipality of San Juan, 1 F.3d 74, 77-78 (1st Cir. 1993). T ra n s g re s s io n s of this duty may include, among other things, failing to diagnose an otherwise d ia g n o s a b le medical condition or providing a patient with no reasonable disclosure of available c h o ic e s of diagnosis and treatment, and the risks inherent in each. See Oliveros v. Abreu, 101 D .P .R . 209 (1973); Montes v. Fondo del Seguro del Estado, 87 D.P.R. 199 (1963). As to the re q u is ite casual nexus, proof that a defendant's breach of duty increased a patient's risk of harm o r diminished a patient's chances of recovery will suffice. See Santiago v. Hosp. Cayetano C o lly Toste, 260 F.Supp.2d 373 , 380 (1st Cir. 2003); Rodriguez-Crespo v. Hernandez,121 D .P .R . 639 (1988). In the instant case, Plaintiffs have shown the existence of material issues of fact. S p e c if ic a lly, Plaintiffs' sworn deposition testimony about Roman's walk-in visits to the GCHC b e tw e e n August 25, 2003 and September 3, 2004 directly controverts Co-defendant's evidence ­ also sworn deposition testimony ­ that Roman first visited the GCHC on September 3, 2004. C o -d e f e n d a n t urges the Court to consider the lack of entries on Roman's GCHC medical records d o c u m e n tin g her walk-in visits as dispositive of this factual dispute. Co-defendant, however, has failed to direct the Court to evidence of record about the reliability or accuracy of GCHC's m e d ic a l recordkeeping practices. Therefore, at this stage of the proceedings, where all re a s o n a b le inferences must be drawn on Plaintiffs' favor, the Court must infer that Roman's G C H C medical records contain no entries about her alleged walk-in visits because GCHC's e m p lo ye e s failed to record them. If proven at trial, such recordkeeping deficiencies, on their

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Civil No. 08-1498(SEC) o w n , may provide Plaintiffs with a colarable claim under the FTCA, or, together with other e v id e n c e , allow Plaintiffs to establish the merits of their claims. Accordingly, at this juncture, th e Court is unable to adjudicate Plaintiffs' and Co-defendant's dispute as a matter of law. The Court's conclusion would be the same even if Co-defendant had proven that R o m a n ' s GCHC medical records accurately depicted all interactions with GCHC's staff. As s ta te d above, Plaintiffs allege that GCHC doctors failed to inform them about treatment a lte rn a tiv e s and risks associated with Roman's medical condition. Sworn deposition testimony b y Roman and her mother support this allegation, and Roman's GCHC medical records are d e v o id of entries reflecting that such disclosures were given. Co-defendant has provided no e v id e n c e about whether doctors at the GCHC were supposed to document on patients' medical re c o rd s the act of giving these disclosures. Common sense would suggest such entries necessary to protect against the exact type of claim Plaintiffs raise here. Therefore, had Co-defendant c a rrie d its burden of proof as to the reliability of GCHC's recordkeeping practices, the Court, a s it must at this procedural juncture, would have inferred that Roman's GCHC medical records la c k e d reference as to the necessary disclosures because GCHC's personnel failed to provide th e m . If proven at trial, this fact may strengthen Plaintiffs' claim against Co-defendants. Conclusion Because material controversies of facts abound in the record before the Court at this ju n c tu re , Co-defendant's Motion for Summary Judgment is DENIED. IT IS SO ORDER. In San Juan, Puerto Rico, this 16th day of September 2010. s/ Salvador E. Casellas S A L V A D O R E. CASELLAS U.S. Senior District Judge