Rosa-Rivera et al v. Dorado Health, Inc. et al

Filing 120

OPINION AND ORDER re #88 MOTION for Summary Judgment and Memorandum of Law in Support Thereof filed by Dorado Health, Inc. Signed by US Magistrate Judge Camille L. Velez-Rive on 6/29/12.(ljt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
LIZA D. ROSA-RIVERA, et al.,
Plaintiffs,
v.

CIVIL NO. 09-1318 (CVR)

DORADO HEALTH, INC., et al.,
Defendants.

OPINION AND ORDER
INTRODUCTION
Defendant Dorado Health, Inc., d/b/a Hospital Alejandro Otero López (hereafter
“Dorado Health”) filed a motion for summary judgment in regards to claims by plaintiffs
Liza D. Rosa Rivera and Edgar Franqui Ramos, on their own and as parents of their minor
child, for medical malpractice and damages upon a childbirth in the defendant hospital’s
facilities. (Docket No. 88). Defendant thereafter filed a supplemental motion with
clarification of omissions as to record reference. (Docket No. 90). Co-defendant Dr. Joseph
Capre-Febus (hereafter “Dr. Capre-Febus”) filed a Motion of Joinder as to above summary
judgment solely in regards to arguments that the Complaint is time-barred. (Docket No.
91).
The request for summary disposition submits plaintiffs’ claim is time-barred for the
injury sustained by the infant and the filing of the Complaint exceeded the one-year
limitation period for torts actions in this jurisdiction. Additionally, co-defendant Dorado
Health avers plaintiff Rosa-Rivera was under the care and treatment of Dr. Capre-Febus
and Dr. Carlos González Camacho (hereafter Dr. Camacho”) when she was admitted to

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Dorado Health where these physicians held privileges but were not employees. The conduct
attributed to Dorado Health as part of the medical malpractice alleged in the Complaint
solely refers to the omission of an attending nurse in the delivery room to make a record
notation that, during delivery of the infant, Dr. Capre-Febus used vacuum extraction. Since
there is no evidence of causation between the nurse’s omission and the injury that resulted
from the alleged malpractice, co-defendant Dorado Health seeks summary adjudication for
plaintiffs’ lack of a cause of action under the relevant case law.
Plaintiffs filed their opposition to defendants’ Motion for Summary Judgment with
their statement of material facts. (Docket No. 111). Dorado Health then filed a response.
(Docket No. 118).
LEGAL DISCUSSION
A. Time Barred.
Plaintiffs filed their claims against the hospital facilities of Dorado Health and the
attending private treating physicians at the time of birth of their child on August 14, 2000,
for medical malpractice and resulting damages. An initial complaint was filed in June 25,
2007 under Civil No. 07-1552 which was dismissed on March 31, 2009, without prejudice.
Thereafter, within the one-year period from said dismissal on April 1, 2009, plaintiffs filed
their claims under the instant case Civil No. 09-1318.
In this case, co-defendant Dorado Health submits plaintiffs’ claims should be time
barred because of the delay in filing their claim from the time the parents should have
known about the infant’s injury. Dr. Joseph Capre-Febus joined co-defendant Dorado

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Health’s motion insofar as plaintiffs’ claim being time-barred, but without submitting any
statement of uncontested facts or making any reference to plaintiffs’ statement in
opposition. (Docket No. 91).
1. Defendant’s Contested/Uncontested Issues of Fact.
Co-defendant Dorado Health submits as uncontested that plaintiff Rosa-Rivera
gave birth to her son at the Dorado Health facilities on August 14, 2000, which delivery was
attended by her physician Dr. Capre-Febus. The following day the infant was found with
the bone of the arm separated from the shoulder and remained at the hospital for
approximately seven days due to high bilirubin and to receive physical therapy to the right
arm damage. The infant was discharged and referred for outpatient physical therapy. On
August 2000, Rosa-Rivera visited Dr. Capre-Febus and Dr. González for post partum
treatment. The infant continued to receive physical therapy and on April 13, 2006, was
evaluated by a registered physical therapist. On June 22, 2006, the infant with his parents
visited a pediatric neurologist and was diagnosed with Erb’s Palsy, an injury on his right
arm. (Deft’s Uncontested ¶¶ 1-7).
2. Plaintiffs’ Uncontested Issues of Fact.
Plaintiffs considered as uncontested above defendant’s submission of events, with
the clarification that Dr. Capre-Febus prevaricated as to the infant’s condition informing
plaintiff Rosa-Rivera the arm condition was temporary and he was going to be in excellent
health. Dr. Capre-Febus also informed them the infant did not need additional treatment
or surgical intervention. (Plaintiffs’ Uncontested ¶6).

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Plaintiffs submit that it was not until April 13, 2006, upon physical therapy, and a
visit to a pediatric neurologist on June 26, 2006, their infant child was diagnosed with Erb’s
Palsy, an injury on the infant’s right arm nerve and neurological damage possibly suffered
upon vaginal delivery wherein vacuum extraction or forceps was used, which could have
resulted in the injury to the infant’s shoulder.
Where jurisdiction is based on diversity of citizenship, such as the present case, state
statute of limitations apply. See Lareau v . Page, 39 F.3d 384 (1st Cir. 1994); Fidler v.
Eastman Kodak Co., 714 F.3d 192, 196 91st Cir. 1983). As such, at first glance, defendants
are correct in their submission the Complaint herein exceeds the one-year limitation period
for tort actions, and thus malpractice, in Puerto Rico.1
However, Dr. Capre-Febus’s motion to join co-defendant Dorado Health as to the
statute of limitations is precluded by his alleged representations to the infant’s parents that
were dissuasive as the nature of the injury being possible result of medical malpractice.
(Docket No. 91). In fact, Dr. Capre-Febus has not denied plaintiffs’ uncontested facts as to
having received information even after post partum treatment the injury suffered by the
infant where his arm was separated from the shoulder was temporary and he was going to
be in excellent health, needing no additional treatment or surgical intervention.
1

The following prescribe in one (1) year:
(1) Actions to recover or retain possession.
(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, from the time the aggrieved person had knowledge
thereof.
P.R. Laws Ann. tit. 31, § 5298.

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Moreover, the doctrine of fraudulent concealment tolls a statute of limitation where
the defendant raising the limitation defense has engaged in fraud or deliberate concealment
of material facts related to the wrongdoing and plaintiffs failed to discover these facts
within the normal limitation period despite exercise of due diligence. Demars v. General
Dynamics Corp., 779 F.3d 95, 97 (1st Cir. 1985). Although the fraudulent concealment does
not modify the need to exercise due diligence, we are herein dealing with a doctor-patient
relationship, as well as omission on the nurse’s record, as to the proceeding held during the
vaginal delivery of the infant, upon which with the reassurance that the infant’s condition
was temporary and there was no need for treatment, placed plaintiffs in a position where
the necessary information as to injury suffered by the infant was not disclosed to plaintiffs,
but to the contrary, were misinformed by defendants who were in control of the information
necessary as to the correlation between the infant’s delivery and the injuries. See González
v. United States, 284 F.3d 281 (1st Cir. 2002).
The Puerto Rico Supreme Court in a similar situation stated that, when plaintiffs
who may have been victim of a tort are assuaged by assurances made by the person who
caused the injury, said plaintiffs are not held responsible from failing to pursue their claims
more aggressively. See Colón Prieto v. Geigel, 115 P.R. Decs. 232, 15 P.R. Offic. Trans. 313
(1984). More so, even knowledge that some injury may have occurred is not sufficient to
disregard tolling. See, e.g., Galarza v. Zagury, 739 F.2d 20, 24 (1st Cir. 1984) (stating that
“knowledge of the author of the harm means more than an awareness of some ill effects
resulting from an operation by a particular doctor”). If a plaintiff is not aware of some level

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of reasonable likelihood of legal liability on the part of the person or entity that caused the
injury, the statute of limitation will be tolled. In other words, a plaintiff must also have
“knowledge of the author of the injury,” a concept articulated at length in the Supreme
Court of Puerto Rico's decision in Colón Prieto. See Rodríguez-Suris v. Montesinos, 123
F.3d 10, 13-14 (1st Cir. 1997).
Since federal courts sitting in diversity apply the choice of law rules of the forum
state and when applying Puerto Rico law to substantive matters, Puerto Rico courts also
apply Puerto Rico's statute of limitations, as well as the concomitant tolling provisions of
those statutes, tolling of the one-year limitation is proper in this case. See Montalvo v.
González-Amparo, 587 F.3d 43, 46 (1st Cir. 2009) (citing to Valedón Martínez v. Hosp.
Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1133 (1st Cir.1986)).
There is a shibboleth about medical records and the law that: “If it's not written, it
didn't happen.”2 Henceforth, the information the nurse’s record omitted is one crucial for
plaintiffs’ initial determination that some injury may have resulted because of the
procedure used during delivery of the infant. This, together with their uncontested
statement as to the treating physician’s deception that the infant’s condition would
promptly be resolved with therapy, resulted in having no knowledge of the injury until the
parents received more adequate diagnosis of the infant’s condition. As such, the nurses’

2

Trisha A. Wills, M.D.Thomas N. Thomas, M.D., BCFE, Medical Records: What You See and Why,7 J. Forensic
Document Examination 1, Fall, 1994.

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record omission, that could be attributed to Dorado Health, together with Dr. Capre-Febus
uncontested misinformation and/or representation to plaintiffs, does not allow these
defendants to raise the time barred defense as discussed above.
Thus, both as to the hospital Dorado Health and Dr. Capre-Febus, their requests for
summary adjudication for plaintiffs’ cause of action being time barred rest on issues of
material fact in controversy as to whether plaintiffs were put on notice as to the injury
caused and/or the malpractice. Clearly, the state statute of limitation applicable to tort and
to medical malpractice actions provide that fraud, concealment or misrepresentation of
facts the discovery of the damages was prevented, may extend the prescription term. In this
case, defendants may not avail themselves of plaintiffs’ claims being time-barred and there
are also genuine issues of disputed fact in controversy that would preclude summary
adjudication on the issue.
B. Lack of Causation.
Even if not barred by timeliness, plaintiff Dorado Health seeks dismissal for lack of
a causal relationship between the hospital nurse’s failure to make a record notation that the
infant was delivered by vacuum extraction and the injury suffered as a result of Dr. CapreFebus’ medical intervention during delivery. Dorado Health argues plaintiffs’ claims
against said co-defendant should be summarily dismissed for there is no causal relationship
between the injury suffered by the infant during delivery by Dr. Capre-Febus. Dr. CapreFebus was not an employee of the hospital but a private practitioner with privilege at said
hospital facility and was selected by the infant’s mother for private obstetrical services.

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Dorado Health avers the alleged omission of a notation by the assisting nurse that vacuum
extraction was used during delivery fails to meet, at least to said co-defendant, the causation
as to the injury suffered.
1. Defendant’s Undisputed Issues of Fact as to Causation.
Defendant Dorado Health submits that, as members of the medical staff with
privileges at said institution, neither Dr. Capre-Febus nor Dr. González were employees of
the hospital nor received salaries. Plaintiff Rosa-Rivera did not enter the hospital at the
time of delivery through the emergency room but was rather admitted through the offices
of Dr. Capre-Febus. (Deft’s Undisputed ¶¶8-9).
Defendant Dorado Health argues lack of causation under the premise that aside from
the fact of the alleged nurse’s note omission, plaintiffs’ expert opinion, Dr. Carmen Ortíz
Roque, establishes lack of liability or involvement by said co-defendant Dorado Health as
to the infant’s injury. It is argued the expert indicated that, other than Dr. Capre-Febus, she
cannot identify any person or individual that did anything wrong in this case. (Deft’s
Undisputed ¶ 10).
2. Plaintiffs’ Uncontested Issue of Fact as to Causation.
Plaintiffs’ opposition admits defendants’ uncontested ¶¶ 8-9 insofar that Dr. CapreFebus and Dr. González were not employees of said institution Dorado Health. As to their
expert’s opinion, same is clarified in that Dr. Ortíz Roque also expressed in her deposition
that the baby’s trauma to the shoulder and the fracture of the humerus “happened in the
pelvis or it happened in the nursery.” The expert did not discard that some trauma “—

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maybe the baby was bumped against a nursery wall and no one wrote it down, no one
documented there was an incident.” (Plaintiffs’ Contested ¶ 10; Exhibit 3, Dr. Ortíz Roque’s
depo., pp. 101-102).
Insofar as lack of annotation on the medical record, plaintiffs also submit their
uncontested statements in that the nurse’s note also omitted the presence of a family
member in the delivery room, plaintiff Edgard Franqui, Rosa-Rivera’s husband and the
infant’s father. (Plaintiffs’ Uncontested ¶9; Ms. Sara Montalvo Díaz, Exhibit 1, pp. 78-79).
The nurse who attended upon the infant after he was handed over by Dr. Capre-Febus was
responsible to observe the baby’s reflexes, check his arms, that he raises them and move
them well. (Plaintiff’s Uncontested ¶12; Exhibit 1, p. 68). If the baby does not lower or
raise his arms, the nurse is supposed to write it down and the doctor is notified right away
for it has to be reported to the nursery promptly for follow-up by a pediatrician, which was
not done in the case. (Id., p. 69). The hospital nurse’s record failed to mention not only the
use of vacuum extraction during delivery but also the decreased arm movement on the
baby’s right arm.
Plaintiffs’ expert, Dr. Ortíz Roque, also testified that the lack of documentation in the
delivery of the infant does not comply with basic medical standards.

(Plaintiffs’

Uncontested ¶15; Exhibit 7, Medical expert’s report 8-31-2010).
The infant was evaluated on September of 2007 by Dr. Hess at the Shriners Hospital
for Children, Tampa Hospital, obtained an MRI and discussed with plaintiffs the infant
would benefit from surgery and then an anterior release right shoulder with latissimus dorsi

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and teres major transfers was performed on March 4, 2008. (Plaintiffs’ Uncontested ¶16;
Exhibit 8, Discharge Summary, Shiners Hospital).
3. Defendant’s Response.
Defendant Dorado Health, among others, filed a response objecting to above
plaintiffs’ statement, in particular Exhibit 7, for lack of authentication. It also argued the
sole portion of plaintiff’s expert that no one except for Dr. Capre-Febus would be liable for
the injury to the infant. Still, plaintiffs’ opposition presents their expert opinion was quoted
incomplete for it also submits another possible cause of the infant’s injury. As to the lack
of proper medical record, defendant objects to Exhibit 7 in that it was not authenticated and
if admitted should be considered applicable to another co-defendant and not to the hospital
Dorado Health.
Plaintiffs’ Exhibit 7 is an addendum by plaintiff’s expert witness, Dr. Ortíz Roque,
that defendants have also used to support their motion for summary judgment.
Authentication is a straightforward concept requiring a “reasonable probability” that the
item in dispute is what its proponent claims. United States v. Cruz, 352 F.3d 499, 506 (1st
Cir.2003). The proponent “need not rule out all possibilities inconsistent with authenticity”;
so long as the “evidence is sufficient to allow a reasonable person to believe the evidence is
what it purports to be,” it is left to the fact finder to determine what weight it deserves.
United States v. Alicea-Cardoza, 132 F.3d 1, 4 (1st Cir. 1997).
Thus, regardless of any credibility issue that would not be applicable at the summary
judgment stage, the addendum presents an expert witness’ theory of liability and an expert

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opinion in that lack of proper record keeping in the medical field is considered inconsistent
with compliance under the standard of care. At this stage it is proper to admit the
document as proposed by plaintiffs’ opposition, which weight is to be determined
thereafter.
Dorado Health first and foremost argues summary judgment on grounds the treating
physician plaintiffs retained for delivery of their infant was not an employee of said hospital
facilities but only retained privileges to practice therein. Under said premise, Dorado
Health’s arguments are supported by law and fact in that hospitals can not be held liable
for exclusive negligence of unsalaried physicians who are independent contractors as to
whom the hospital in no way advised patient to seek treatment from said physician, who
was on its private staff and the patient's admissions to hospital were at instruction of
physician. See Daniels-Recio v. Hospital Del Maestro, Inc., 109 F.3d 88 (1st Cir. 1997); see
also Márquez Vega v. Martínez Rosado, 16 P.R. Offic. Trans. 487 (P.R.,1985) (dealing with
liability when the physician is a hospital employee or considered the hospital selected their
attending physicians when a patient enters the institution).3
Insofar as liability for the hospital’s employees participation, Dorado Health argues
there is lack of causation as to the injury suffered and its claim the only omission of the
attending nurse was as to some notation on the record. To prevail on a medical malpractice

3

The modern North American trend is to hold said institutions liable not only for the negligent acts of their
medical staff and agents under the theory of respondeat superior, Comment, The Hospital-Physician Relationship:
Hospital Responsibility for Malpractice of Physicians, 50 Wash. L. Rev. 385 (1975); 1 D.W. Louisell and H.Williams,
Medical Malpractice, sec. 16.01, New York, Ed. Matthew Bender (1985).

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claim under Puerto Rico law, a party must establish (1) the duty owed; (2) an act or
omission transgressing that duty; and (3) a sufficient causal nexus between the breach and
the harm. Marcano Rivera v. Turabo Medical Center Partnership, 415 F.3d 162 (1st Cir.
2005).
Plaintiffs have the burden to furnish proof of causation in medical malpractice action
under Puerto Rico law. Martínez-Serrano v. Quality Health Services Of Puerto Rico, Inc.,
568 F.3d 278 (1st Cir. 2009). See Cortés-Irizarry v. Corporación Insular de Seguros, 111 F.3d
184, 190 (1st Cir. 1997) (“Notwithstanding proof of both duty and breach, a plaintiff also
must offer competent evidence of causation in a medical malpractice case.”). A hospital
facility is, however, liable for any malpractice due to negligence by the hospital’s employees,
as would be the attending nurse or practitioner in the delivery room, having the
corresponding duties to attend to the infant after delivery and keep the corresponding
hospital notes. Hospital's poor record keeping can give rise to inference of negligence in
medical malpractice action. Valedón Martínez v. Hospital Presbiteriano de la Comunidad,
Inc., 806 F.2d at 1128. Similarly, lack of reference in the medical record and/or proper
notation which tends to indicate slackness in the keeping of the medical record reduces its
usefulness in punctually informing about the execution of a physician's orders or as a source
of reference for the evaluation of the treatment and care administered to the patient.4 See

4

Rodríguez Crespo v. Hernández, 21 P.R. Offic. Trans. 637 (1988).

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Lama v. Borrás, 16 F.3d 473 (1st Cir. 1994) (sustaining jury malpractice verdict for plaintiffs
met their burden of proof as to the allegation that the Hospital's substandard recordkeeping procedures delayed the diagnosis and treatment). Liability was found to hospital
for neurological damage sustained by infant during childbirth, caused in part by hospital's
negligent monitoring for there was no way to know for certain what happened during the
time frame that fetal tracings were missing, and circumstantial evidence, together with
expert's testimony that child most probably suffered injuries during that time frame,
supported finding that hospital's negligent monitoring during that period deprived doctor
of the opportunity to intervene before the infant suffered permanent damage. Marcano
Rivera v. Turabo Medical Center Partnership, 415 F.3d at 171.
In the present case, plaintiffs have alleged medical malpractice as to defendant
Dorado Health. Plaintiffs’ medical expert has indicated the possibility the injury could have
taken place also at the nursery, as well as that failure to keep proper medical records by
hospital nursing personnel is inconsistent with proper medical practices. In medical
malpractice cases, plaintiffs can establish causation through expert testimony. A fact finder
in medical malpractice case is entitled to weight the credibility of an expert’s testimony. See
Lama v. Borrás, 16 F.3d at 478; see also Heddinger v. Ashford Memorial Community Hosp.,
734 F.2d 81 (1st Cir. 1984) stating that, although the delay in treatment was considered by
one expert as not contributing to the impairment suffered, the jury was entitled to make up
its own mind.

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As such, summary judgment in the present case is not appropriate.5
CONCLUSION
In view of the foregoing, defendant Dorado Health’s request for summary judgment
is DENIED. (Docket No. 88). Likewise, co-defendant Dr. Capre-Febus’ Motion of Joinder
as to the Complaint being time-barred is DENIED. (Docket No. 91).
IT IS SO ORDERED.
San Juan, Puerto Rico, this 29th of June of 2012.
S/ CAMILLE L. VELEZ-RIVE
CAMILLE L. VÉLEZ-RIVE
UNITED STATES MAGISTRATE JUDGE

5

See Cortés-Irizarry v. Corporación Insular De Seguros, 111 F.3d at 191. Plaintiffs in a medical malpractice suit
need not prove a causal connection with mathematical accuracy nor eliminate all other possible causes of damage (citing
Cruz Rodríguez v. Corporación de Servicios del Centro Médico, 113 P.R. Dec. 719, 744, translated in 13 P.R. Sup.Ct. Off'l
Trans. 931, 960–61 (1983)).