Silva-Ramirez v. Hospital Auxilio Mutuo, Inc. et al

Filing 14

OPINION AND ORDER re 7 Motion to Remand to State Court, and re 11 Motion in Compliance. The Court GRANTS plaintiff's motion for remand. Plaintiff's complaint is REMANDED to the Puerto Rico's Court of First Instance, San Juan Superior Division. Judgment shall be entered accordingly. Defendant's request for sanctions and temporary restraining order is DENIED. Signed by Judge Francisco A. Besosa on 05/03/2011. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
DR. SAMUEL D. SILVA RAMIREZ,
Plaintiff,
v.

CIVIL NO. 11-1286 (FAB)

HOSPITAL ESPAÑOL AUXILIO MUTUO,
INC., et al.,
Defendants.

OPINION & ORDER1
BESOSA, District Judge
Plaintiff has filed a motion for remand.
Defendants have opposed the motion.
considered

the

arguments

contained

(Docket No. 7.)

(Docket No. 11.)
in

plaintiff’s

Having

motion

and

defendants’ opposition, the Court GRANTS plaintiff’s motion for
remand.
I.

(Docket No. 7.)

FACTUAL BACKGROUND
Dr. Samuel D. Silva-Ramirez (“Dr. Silva”) is a medical doctor

with a specialty in Gynecology and Obstetrics.

At times relevant

to this Complaint, he enjoyed medical privileges at the Hospital
Español Auxilio Mutuo (“Auxilio Mutuo”).

Auxilio Mutuo alleges

that it is a lay medical hospital institution, not affiliated to
1

Myrgia Palacios, a fourth-year student at Interamerican
University Law School, assisted in the preparation of this Opinion
and Order.

Civil No. 11-1286 (FAB)

2

the Roman Catholic Church.
that

it

has

any

Auxilio Mutuo’s Bylaws do not state

affiliation

with

the

Catholic

Church.

The

hospital’s Bylaws do not require that its medical faculty have
either the duty or the obligation to follow the teachings of the
Catholic

Church

while

they

practice

their

profession

at

the

hospital. Auxilio Mutuo has not adopted the “Ethical and Religious
Directives for Catholic Health Care Facilities” in its Bylaws.
Neither do

Auxilio

Mutuo’s

Bylaws

limit

the

carrying

out

of

sterilization procedures by its medical faculty.
Dr. Silva alleges, nevertheless, that Auxilio Mutuo does
follow the teachings of the Catholic Church when it comes to
sterilization procedures.

Dr. Silva further alleges that he did

not agree to follow those teachings to be able to practice his
profession at Auxilio Mutuo, and admits that the hospital did not
require that he commit to these teachings as a condition of
obtaining his medical privileges.

(Docket No. 12-1 ¶¶ 3, 6, 9-10,

12, 15.)
On October 14, 2009, Dr. Silva was in one of Auxilio Mutuo’s
Operating Rooms performing a Cesarean section2 on one of his

2

A Cesarean section is a surgical procedure in which one or more
incisions are made through a mother’s abdomen (laparotomy) and uterus
(hysterotomy) to deliver one or more babies, or, rarely, to remove a
dead fetus. See http://en.wikipedia.org/wiki/Caesarean_section

Civil No. 11-1286 (FAB)
patients.

3

Dr. Silva then performed a sterilization procedure on

the patient.

His patient was not Catholic and did not follow the

postulates of the Catholic Church on the issue of sterilization.
Dr. Silva alleges that the personnel assisting him during the
sterilization procedure reported to hospital authorities that after
the Cesarean section procedure was carried out he sterilized his
patient without her consent.

Id. ¶¶ 12, 14.

As a result of Dr. Silva’s performing a sterilization that was
allegedly done without obtaining the patient’s proper consent,
Auxilio Mutuo temporarily suspended Dr. Silva’s medical privileges.
Because of the temporary suspension, Dr. Silva was barred from
performing

any

kind

procedure,

whether

of

gynecological,

elective

or

obstetric

emergency,

at

or

the

surgical
hospital.

Dr. Silva’s temporary suspension also precluded him from assisting
his private patients in births that had already been scheduled to
be delivered at Auxilio Mutuo.

The hospital notified Dr. Silva of

his temporary privilege suspension on November 18, 2009 through a
letter signed by Auxilio Mutuo’s Medical Director, Dr. Jose A.
Isado-Zardon

(“Dr.

Isado”).

At

the

time

of

his

temporary

suspension, Auxilio Mutuo was the only hospital where Dr. Silva
enjoyed active medical privileges.

Id. ¶ 15.

Civil No. 11-1286 (FAB)
Auxilio

Mutuo

suspension were:

stated

4
reasons

for

Dr.

Silva’s

temporary

(1) that the sterilization consent form was

incomplete; (2) that Dr. Silva did not follow the protocol for
sterilization; and (3) that Dr. Silva had violated Auxilio Mutuo’s
Bylaws.

Dr. Silva states, however, that his patient had consented

to the procedure, that it was done in accordance with his patient’s
request, that it was medically indicated and that the consent form
shows his patient gave her consent because it bears her signature
and initials on every page.
Auxilio Mutuo’s protocol for sterilization procedure is not
part of its Bylaws.

Id. ¶¶ 9-10, 14, 20, 25.

On November 19,

2009, Dr. Alvaro Aranda (“Dr. Aranda”), President of Auxilio
Mutuo’s Medical Faculty Executive Committee (“Committee”), informed
Dr. Silva of his rights to request an evidentiary hearing prior to
the determination of whether the temporary suspension would be
maintained pending a final adjudication of his case.

Id. ¶ 18.

On November 24, 2009, Dr. Silva requested a formal hearing as
well as the production of relevant documents in preparation for the
hearing.

Instead of scheduling a hearing, however, Auxilio Mutuo

scheduled a meeting for December 16, 2009.

Dr. Silva was notified

of this meeting through a letter signed by Dr. Aranda, dated
December 7, 2009.

Dr. Silva went to the meeting; the presence of

Civil No. 11-1286 (FAB)

5

attorneys or recording devices was not allowed at the meeting.
During the meeting, Dr. Silva denied Auxilio Mutuo’s allegations
against him and stated that he had performed the sterilization
procedure after obtaining his patient’s consent.

The Committee

granted Dr. Silva the opportunity to produce any evidence that
would serve to establish his patient’s alleged consent.

Dr. Silva

could not produce the evidence the Committee needed, however,
because doing so would have constituted a violation of the Health
Insurance

Portability

and

Accountability

Act

(“HIPPA”).

patient had not authorized the disclosure of her file.

His

Id. ¶¶ 4,

19, 20-21.
On January 26, 2010, the Committee informed Dr. Silva that it
had decided to maintain his temporary suspension until the hearing
process had been completed and a final adjudication of his case had
been made.

The hospital then proceeded to notify Dr. Silva’s

suspension to the National Practitioner Data Bank (“NPDB”).

The

NPDB notification indicates that Dr. Silva violated Auxilio Mutuo’s
Bylaws.
even

if

Dr. Silva contends that this information is false because
Auxilio

Mutuo

can

establish

that

he

performed

the

sterilization in violation of the established procedures, which
Dr. Silva denies, that procedure is not included in Auxilio Mutuo’s
Bylaws.

Dr. Silva further alleges that Auxilio Mutuo’s NPDB

Civil No. 11-1286 (FAB)

6

notification was ultra vires, because it was done without following
the established reporting procedures and because it was directed to
cause him intentional damage.
On

February

16,

evidentiary hearing.

2010,

Id. ¶¶ 24-26.
Dr.

Silva

formally

requested

an

He also again requested the production of

documents necessary for his defense at that hearing.

On March 19,

2010, however, Dr. Armando Nazario (“Dr. Nazario”), President of
the Committee, denied Dr. Silva’s request. The Committee based its
denial on Dr. Silva’s failure to establish his position regarding
the allegations against him in his request for a hearing.

The

Committee concluded that Dr. Silva’s omission was a waiver of his
right to a hearing.

The Committee also sustained its adverse

decision regarding the suspension of Dr. Silva’s privileges.

On

May 26, 2010, Dr. Silva then requested a hearing before the
hospital’s Board of Directors (“Board”), the entity which would
issue a final decision in his case.

On August 5, 2010, however,

Dr. Silva was informed that the Board had recommended that his
medical privileges be permanently revoked and that the Board’s
Appeal Review Committee had endorsed that recommendation.

Id. ¶¶

27-30.
Dr. Silva professes the “Mita” religion, of which Auxilio
Mutuo is aware.

The Mita religion doctrine differs from the

Civil No. 11-1286 (FAB)

7

doctrine of the Catholic Church on the issue of sterilization.
Dr. Silva claims that Auxilio Mutuo discriminated against him
because of his religious beliefs and that it was for this reason
that Auxilio Mutuo took the adverse decision of suspending his
medical privileges.

He claims disparate treatment because even

though other practitioners with medical privileges at the Auxilio
Mutuo carry out sterilization procedures there, they have not been
disciplined and no adverse decision has been taken against them.
He particularly alleges that Auxilio Mutuo has not taken any
adverse decision against Dr. Adrian Colon-Laracuente (“Dr. Colon”),
even though he has carried out sterilization procedures without
complying with the requirements that Auxilio Mutuo now demands from
Dr. Silva.
Mutuo

Moreover, Dr. Silva alleges that the reason Auxilio

permitted

Dr.

Colon’s

actions

without

imposing

adverse

consequences is that Dr. Colon kneeled before Dr. Isado and asked
for his forgiveness, in a manner similar to the Catholic Church’s
confession process.

Dr. Silva avers that he cannot do as Dr. Colon

did because his Mita religion prevents him from kneeling before
another man to ask for forgiveness, either in a personal confession
or to show remorse.

Id. ¶¶ 11, 13, 22-23.

Civil No. 11-1286 (FAB)
II.

8

PROCEDURAL BACKGROUND
On March 4, 2011, Dr. Silva filed suit against:

(1) Hospital

Español Auxilio Mutuo, Inc., the entity that operates the hospital;
(2) Dr. Isado; and (3) the conjugal partnership constituted by
Dr. Isado and his wife Mrs. Diana Vigil-Vigil (“Ms. Vigil”), in the
Puerto Rico Court of First Instance, San Juan Superior Division,
under case number KPE 2011-0846 (904).

(Docket No. 12-1.)

Dr.

Silva alleged that the suspension of his privileges was based on
illegal discrimination because of religious beliefs, contrary to
Article II of the Puerto Rico Constitution (“P.R. Constitution”),
id. ¶¶ 5, 44-47, and that Auxilio Mutuo’s Bylaws are unjust,
unreasonable, null, illegal, and contrary to the Health Care
Quality

Improvement

(“HCQIA”).

Act

of

1986,

Id. ¶¶ 5, 34, 40, 42.

following remedies:

42

U.S.C.

§§

11101-11152

Dr. Silva requested the

(1) a declaratory judgment, stating that his

rights had been violated due to discrimination because of his
religious beliefs, Id. ¶ 50; (2) a permanent injunction, requiring
Auxilio Mutuo to withdraw the adverse notification made to the
NPDB, id. ¶ 51; and (3) damages.

Id. ¶ 54.

On March 23, 2011, a day before a preliminary injunction
hearing was to be held at the Puerto Rico Court of First Instance,
defendants removed the case to this Court.

(Docket No. 1.)

The

Civil No. 11-1286 (FAB)

9

notice of removal stayed the injunction hearing.
¶ 10.)
the

(Docket No. 7

In support of the removal, defendants alleged:

Court

has

original

federal

question

(1) that

jurisdiction

under

28 U.S.C. § 1441(a) because Dr. Silva anchors his claims on alleged
actions and omissions that are contrary to the HCQIA, a federal
statute; and (2) that the Court has supplemental jurisdiction under
28 U.S.C. § 1367 over Dr. Silva’s claims that are based on Puerto
Rico law because they are intimately related to the HCQIA federal
claim and arise from a common nucleus of operative facts.

(Docket

No. 1 ¶¶ 7-8.)
On March 24, 2011, Dr. Silva filed a motion for remand.
(Docket No. 7.)

Dr. Silva’s motion for remand argues:

(1) that

the Court must remand the case back to the Puerto Rico Court of
First Instance because of lack of subject-matter jurisdiction;
(2) that sanctions must be imposed on all defendants because their
notice of removal stayed an injunction hearing that had been
scheduled

in

the

Puerto

Rico

Court

and

the

stay

has

caused

unnecessary delay of the case; and (3) that if the case is not
remanded, the Court should enter a temporary restraining order
against defendants, directed at preserving the status quo until
further action is taken.

(Docket No. 7 ¶¶ 3, 9, 12.)

Civil No. 11-1286 (FAB)

10

On March 25, 2011, the Court issued an order instructing
defendants to show cause as to why this case should not be remanded
to the Court of First Instance of Puerto Rico, San Juan Division,
in view of the Opinion and Order issued in Garib v. Hospital
Español Auxilio Mutuo, Civil No. 10-1290 (FAB) (D.P.R. March 25,
2011) (Docket No. 10.)

Defendants complied with this Order; on

April 4, 2011, they filed a motion in opposition to Dr. Silva’s
motion to remand.

(Docket No. 11.)

Defendants allege that the

Court has jurisdiction to entertain Dr. Silva’s claim because
interpretation of a federal statue is necessary to establish
various elements of Dr. Silva’s causes of action.

Id. at 3.

III. STANDARD OF REVIEW
Federal courts are courts of limited jurisdiction.

See,e.g.,

Bonas v. Town of N. Smithfield, 265 F.3d 69, 73 (1st Cir. 2001).
A cause of action may be maintained in federal court “only if it
involves a question of federal law, or if the controversy is
between citizens of different states and the amount in controversy
exceeds $75,000.”

28 U.S.C. §§ 1331, 1332; Hall v. Curran, 599

F.3d 70, 71 (1st Cir. 2010).

A case may only be removed from state

court if a federal court would have had subject-matter jurisdiction
over the case if brought in federal court initially.

See Danca v.

Private Health Care Sys. Inc., 185 F.3d 1, 4 (1st Cir. 1999).

Civil No. 11-1286 (FAB)
Courts

should

11

“strictly

construe[]”,

the

removal

statute;

consequently, uncertainties must be resolved in favor of remand.
See Rossello Gonzalez v. Calderon Serra, 398 F.3d 1, 11 (1st Cir.
2004) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,
108-109 (1941)).

The presumption is that a cause lies outside of

the court’s limited jurisdiction, and that “the party invoking the
jurisdiction of a federal court carries the burden of proving its
existence.”

Murphy v. United States, 45 F.3d 520, 522 (1st Cir.

1995).
IV.

DISCUSSION
Dr. Silva has moved to remand on the ground that there is no

subject-matter

jurisdiction,

while

defendants

question jurisdiction as the basis for removal.

claim

federal

Defendants must

therefore make “a ‘colorable’ showing that a basis for federal
jurisdiction exists.”

See Danca, 185 F.3d at 4 (citing BIW

Deceived v. Local S6, Indus. Union of Marine and Shipbuilding
Workers of Am., IAMAW Dist. Lodge 4, 132 F.3d 824, 832 (1st Cir.
(1997)).
Federal question jurisdiction exists if the action arises
“under the Constitution, laws, or treaties of the United States”.
28 U.S.C. § 1331.

To determine this jurisdictional pre-requisite,

the well-pleaded complaint rule must be followed.

Merrell Dow

Civil No. 11-1286 (FAB)

12

Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986).

The Court

examines “the ‘well pleaded’ allegations of the complaint and
ignore[s] potential defenses.” Beneficial Nat’l. Bank v. Anderson,
539 U.S. 1, 6 (2003).

A federally created right or immunity must

appear “on the face of the complaint”, see Brough v. United
Steelworkers of Am., AFL-CIO, 437 F.2d 748, 749 (1st Cir. 1971),
and the federally created right or immunity must be an essential
element of plaintiff’s cause of action.

Franchise Tax Bd. v.

Constr. Laborers Vacation Trust, 463 U.S. 1, 10-11 (1983).
A case may also arise under federal law when the determination
of a state-law claim is dependent upon an interpretation of a
federal law.

Merrell Dow, 478 U.S. at 808.

If this is the case,

however, an interpretation of a “substantial, disputed question of
federal

law”

is

necessary

for

the

determination

of

one

of

plaintiff’s well-pleaded state claims. Franchise Tax Bd., 463 U.S.
at 13.

The “substantial federal question” doctrine has three

components:

(1) the state-law claim must “necessarily raise a

stated federal issue”; (2) the federal issue must be “actually
disputed and substantial”; and (3) the exercise of jurisdiction
must not disturb the “congressionally approved balance of federal
and state judicial responsibilities.”

See Cambridge Literary

Props., Ltd. v. W. Goebel Porzellanfabrik G.m.b.H. & CO. KG, 510

Civil No. 11-1286 (FAB)

13

F.3d 77, 96 (1st Cir. 2007) (citing Grable & Sons Metal Prods.,
Inc. v. Darue Eng’g. & Mfg., 545 U.S. 308, 314 (2005)).
Defendants concede that Dr. Silva’s complaint does not arise
under federal law, because the HCQIA does not provide for a private
federal cause of action. (Docket No. 11 at 10.)

Defendants argue,

however, that the Court has subject-matter jurisdiction over this
case because Dr. Silva’s well-pleaded complaint raises a federal
question. They argue that Dr. Silva’s theory of liability rests on
the premise that the defendants violated the HCQIA and that such a
violation is the legal cause of his damages.
¶ 1.)

(Docket No. 11 at 12

Defendants also argue that the Court has subject-matter

jurisdiction under the “substantial federal question” doctrine,
because an interpretation of the HCQIA is needed to establish an
element

of

Dr.

Silva’s

causes

arguments are not convincing.

of

action.

Id.

Defendants’

Civil No. 11-1286 (FAB)

14

The HCQIA is a federal statute enacted in 1986 in response to
the crisis in the monitoring of health care professionals.3

The

HCQIA was passed by Congress to “provide incentive and protection
for physicians engaging in effective professional peer review.” 42
U.S.C. § 11101(5).

It was Congress’s intention that doctors

involved in the peer review process would comply with the reporting
requirements established in the HCQIA and thereby decrease the
number of occurrences of medical malpractice.

Addis v. Holy Cross

Health Sys. Corp., 88 F.3d 482, 485 (7th Cir. 1996).

Congress

understood that the HCQIA would “improve the quality of medical
care by encouraging physicians to identify and discipline other
physicians

who

behavior.”

Wayne v. Genesis Med. Ctr., 140 F.3d 1145, 1148 (8th

3

are

incompetent

or

engage

in

unprofessional

Although state licensing boards had long monitored the conduct and
competence of their own health care workers, Congress found that
“[t]he increasing occurrence of medical malpractice and the need to
improve the quality of medical care have become nationwide problems
that warrant greater efforts than those that can be undertaken by
any individual State.”
42 U.S.C. § 11101(1).
Finding that
incompetent “physicians find it all to[o] easy to move to different
hospitals or states and continue their practices in these new
locations,” Congress mandated the creation of a national database
that recorded incidents of malpractice and that was available for
all health care entities to review when screening potential
employees.” Singh v. Blue Cross/Blue Shield of Mass., Inc., 308
F.3d 25, 31 (1st Cir. 2002) (citing H.R.Rep. No. 99-903, at 2,
reprinted in 1986 U.S.C.C.A.N. 6384, 6385).

Civil No. 11-1286 (FAB)

15

Cir. 1998) (citing H.R.Rep. No. 99-903, at 2 (1986), as reprinted
in 1986 U.S.C.C.A.N. 6287, 6384.)
Because the HCQIA was enacted for the purpose of protecting
patients, not physicians, see,e.g., Hancock v. Blue Cross-Blue
Shield of Kan., Inc., 21 F.3d 373, 374-75 (10th Cir. 1994), it is
well-settled that the HCQIA does not create an explicit or implicit
private cause of action for physicians that are subject to a
professional peer review.

See,e.g., Singh v. Blue Cross/Blue

Shield of Mass., Inc., 308 F.3d 25, 45 (1st Cir. 2002).

What the

HCQIA does create, however, is a presumptive statutory immunity
from damages liability for those performing the professional peer
review.

42 U.S.C. §§ 11111-11112.

Thus, if those performing the

review fail to follow HCQIA standards, the entity and the persons
participating in the peer review will not be immune.4

See Singh

308 F.3d at 31, 44. In other words, if defendants followed the
standards established in the HCQIA when they decided to suspend Dr.

4

To benefit from this immunity, “a professional review action must
be taken: (1) in the reasonable belief that the action was in
furtherance of quality health care, (2) after a reasonable effort
to obtain the facts of the matter, (3) after adequate notice and
hearing procedures are afforded to the physician involved or after
such other procedures as are fair to the physician under the
circumstances, and (4) in the reasonable belief that the action was
warranted by the facts known after such reasonable effort to obtain
facts and after meeting the requirements of paragraph (3).” 42
U.S.C. § 11112(a); Tirado Menendez v. Hospital Interamericano de
Medicina Avanzada, 476 F.Supp.2d 79, 82 (D.P.R. 2007).

Civil No. 11-1286 (FAB)

16

Silva’s privileges, they will be immune from damages. On the
contrary, if they did not follow the standards established in the
HCQIA, they will not be immune. 42 U.S.C. §§ 11111-11112; See
Singh, 308 F.3d at 44.
Pursuant to article 1802 of the Civil Code, in order to
recover for damages a plaintiff has to establish:

(1) that a harm

was actually done; (2) that there is a causal nexus between the
harm and the act or omission of another person; and (3) that the
act or omission arises out of fault or negligence.

P.R. Laws Ann.

tit. 31, § 5141; See Arroyo Lopez v. E.L.A., ___ P.R. Offic. Trans.
___ (P.R. 1990) (1990 WL 658765). Furthermore, when a plaintiff is
claiming liability based on an omission, the determination must be
whether there exists a “legal duty to act on part of the tortfeasor
. . . the nonperformance of which constitutes the illegal nature .
. . and the fact that the injury could have been avoided if the
omitted act had been carried out.”.

Sociedad de Gananciales v.

Gonzalez Padin, 17 P.R. Offic. Trans. 111 (P.R. 1986).

The

negligent act then, will be defined as a “breach of the duty
imposed or recognized by law” to act.

Pacheco Pietri v. E.L.A.,

1993 P.R.-Eng. 839. 817 (P.R. 1993).
In his complaint, Dr. Silva requested the following remedies:
(1) a declaratory judgment, stating that Dr. Silva’s rights had

Civil No. 11-1286 (FAB)

17

been violated due to discrimination because of his religious
beliefs (Docket

No.

12-1

¶

50);

(2)

a

permanent

injunction,

requiring Auxilio Mutuo to withdraw the adverse notification made
to the NPDB, id. ¶ 51; and (3) damages.

Id. ¶ 54.

Defendants

argue that merely because Dr. Silva claims HCQIA violations, the
well-pleaded complaint automatically raises a federal question that
gives the Court subject-matter jurisdiction.

Their conclusion “is

plainly wrong”. Daigle v. Stulc, 694 F.Supp.2d 30, 35 (D.Me 2010).
Dr. Silva claims that Auxilio Mutuo failed to act in a certain
way, and that the omission caused him damages.

In order for

defendants’ argument to be valid, the HCQIA would have to provide
for a legal duty to act, or would have to provide for some element
of Dr. Silva’s causes of action.

It does not.

While the HCQIA

encourages health care facilities and providers to engage in
professional peer review, it does not require it.

Rather, the

statute simply grants immunity to those who choose to engage in
such procedures and does not “provide a clear mandate to act or not
to act in a particular way.”

See Ryskin v. Banner Health Inc.,

No. 09- 1864, 2010 WL 4818062, at *10 (D.Colo. November 9, 2010);
Boyer v. Lehigh Valley Hosp. Ctr., Inc., No. 89-7315, 1990 WL
94038,

at

*2

(E.D.Pa.

July

2,

1990)

(the

HCQIA

peer

review

protection provisions merely conditionally immunize peer review

Civil No. 11-1286 (FAB)

18

groups and do not impose mandatory regulations over the conduct of
private entities.) While Dr. Silva’s complaint mentions the HCQIA,
it does not purport to base his claims on the HCQIA.

Neither does

it appear that he would need to rely on the HCQIA to prove his
claims.

Because there is no duty in the HCQIA for Auxilio Mutuo to

breach, its alleged non-compliance with the statute cannot be the
legal cause of Dr. Silva’s damages.

The only thing that non-

compliance with the HCQIA could cause, if anything, would be the
loss of Auxilio Mutuo’s and the members of the different boards’
and committees’ immunity. Thus, whether Auxilio Mutuo breached the
procedures established in the HCQIA is not critical to Dr. Silva’s
causes of action.
Defendants’ next attempt to argue that the Court has subjectmatter

jurisdiction

doctrine.

under

the

“substantial

federal

question”

They claim that this case meets the three-prong test

established in Grable, 545 U.S. at 318.

The Court disagrees.

While Grable permits the exercise of federal jurisdiction even when
a case lacks a federal cause of action, it does so only when a
“state-law claim necessarily raise[s] a stated federal issue,
actually disputed and substantial, which a federal forum may
entertain without disturbing any congressionally approved balance
of federal and state judicial responsibilities”.

Id. at 314.

In

Civil No. 11-1286 (FAB)

19

this case, however, there exists no issue so substantial as to fit
within the narrow set of circumstances Grable recognized.

“There

is no federal agency involved; the federal question is raised
mainly as an anticipated defense, . . . and, the resolution of the
question is unlikely to serve as new and binding precedent.
Westmoreland v. Pleasant Valley Hosp., Inc., No. 08-1444, 2009 WL
1659835, at *4 (S.D.W.Va. June 12, 2009).
Defendants

also

argue

that

the

Court

has

subject-matter

jurisdiction because Dr. Silva has the burden to rebut the HCQIA
immunity presumption before he can establish the elements of his
claims, and that for this, HCQIA interpretation is needed to
establish his claim.

Defendants’ argument is flawed.

It has been

held that under HCQIA, the plaintiff does not need to allege in his
complaint the lack of immunity in order to state a claim upon which
relief can be granted.

Wahi v. Charleston Area Med. Ctr., No. 04-

0019, 2004 WL 2418316, * 6 (S.D.W.Va. October 27, 2004).

Because

the HCQIA confers immunity only from “liab[ility] in damages,” 42
U.S.C. § 11111(a)(1), it does not foreclose an award of equitable
relief, Ritten v. Lapeer Reg’l. Med. Ctr., No. 07-10265, 2010 WL
374163, at * 2 (E.D.Mich. January 25, 2010), and does not provide
a “right to avoid standing trial.”.

See Bryan v. James E. Holmes

Reg’l. Med. Ctr., 33 F.3d 1318, 1322 (11th Cir. 1994); Decker v.

Civil No. 11-1286 (FAB)

20

IHC Hosp., Inc., 982 F.2d 433, 434-35 (10th Cir. 1992); Singh, 308
F.3d at 44.

Furthermore, it has already been held that with the

HCQIA, “Congress simply created a new defense for peer review
bodies

who

followed

its

reporting

procedures.”

Schmidt

v.

Principal Health Care of Louisiana, Inc., No. 96-1260, 1996 WL
264990, *4 (E.D.La. May 16, 1996). The HCQIA, therefore, will only
play a role when determining whether or not Auxilio Mutuo is immune
from the damages Dr. Silva claims.

See, e.g., Parsons v. Sanchez,

46 F.3d 1143, 1995 WL 21695 (Table) (9th Cir. 1995); Knatt v. Hosp.
Serv. Dist. No. 1 of East Baton Rough Parish, 373 Fed.Appx. 438,
444 (5th Cir. 2010); Singh, 308 F.3d at 35.

The question posed by

the HCQIA will not be whether the Auxilio Mutuo is liable under the
HCQIA, but whether the HCQIA will or will not immunize it from
money damages, based upon other legal theories.

See MacArthur v.

San Juan County, 416 F.Supp.2d 1098, 1139 (D.Utah 2005).
V.

CONCLUSION
For the foregoing reasons, the Court GRANTS plaintiff’s motion

for remand.

(Docket No. 7.)

Plaintiff’s complaint is REMANDED to

the Puerto Rico’s Court of First Instance, San Juan Superior
Division, Case No. KPE 2011-0846 (904).
accordingly.

Judgment shall be entered

Civil No. 11-1286 (FAB)

21

Defendant’s request for sanctions and temporary restraining
order is DENIED.
IT IS SO ORDERED.
San Juan, Puerto Rico, May 3, 2011.

s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE