Casillas-Sanchez et al v. Ryder Memorial Hospital, Inc. et al

Filing 148

MEMORANDUM AND ORDER re 147 Motion for Judgment as a Matter of Law. Defendants' second joint motion for judgment as a matter of law is DENIED. Signed by Judge Francisco A. Besosa on 04/23/2014. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
PAUL CASILLAS-SANCHEZ, et al.,
Plaintiffs,
Civil No. 11-2092 (FAB-BJM)

v.
RYDER MEMORIAL HOSPITAL, INC.,
et al.,
Defendants.

MEMORANDUM AND ORDER
BESOSA, District Judge.
At the close of plaintiffs’ evidence at trial, defendants
Dr. Edgar A. Cardona, his legal partnership, SIMED as his insurer,
and Hospital Ryder Memorial, Inc. (collectively, “defendants”)
argued a motion for judgment as a matter of law pursuant to Federal
Rule of Civil Procedure 50(a).
granted

the

motion

only

in

(Docket No. 107.)

part,

denying

the

The Court

motion

as

to

defendants’ medical malpractice argument. (Docket Nos. 107 & 110.)
Defendants renewed their motion before the case was submitted to
the jury.

(Docket No. 113.)

The Court denied the motion, id., and

the jury returned a verdict for plaintiffs on August 27, 2013.
(Docket No. 119.)

Finding that defendant Dr. Edgar Cardona-

Traverzo was negligent in the laceration of Mrs. Rosa Sanchez
(“Mrs. Sanchez”)’s right portal vein, the jury awarded plaintiffs
$79,000.00 in damages.

Id.

On September 26, 2013, defendants

Civil No. 11-2092 (FAB-BJM)

2

renewed their motion for judgment as a matter of law pursuant to
Rule 50(b), (Docket No. 129), but the Court denied the motion for
failure to spell out and support their arguments properly. (Docket
No. 138.)

The Court permitted defendants to re-file by April 14,

2014, however, (Docket No. 142), and defendants’ second joint
motion is now before the Court.

For the reasons discussed below,

the Court DENIES defendants’ second motion for judgment as a matter
of law.
I.

Legal Standards
Defendants base their Rule 50(b) motion on plaintiffs’ alleged

failure

to

prove

the

medical

malpractice

claim

pursuant

to

article 1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31,
§§ 5141–42.

To succeed on that claim, plaintiffs bear the burden

of establishing, by a preponderance of the evidence:

(1) the duty

owed by Dr. Cardona to Mrs. Sanchez, (i.e., the minimum standard of
professional

knowledge

and

skill

required

in

the

relevant

circumstances); (2) an act or omission transgressing that duty; and
(3) a sufficient causal nexus between Dr. Cardona’s breach and the
harm suffered by Mrs. Sanchez.

See Rivera v. Turabo Med. Ctr.

P’ship., 415 F.3d 162, 167 (1st Cir. 2005).
plaintiffs

failed

to

establish

the

Defendants aver that

first

element

of

the

article 1802 claim because their expert, Dr. Tomas Torres-Delgado,
did not testify as to the proper standard of care that applied to
Dr. Cardona’s treatment of Mrs. Sanchez.

(Docket No. 147.)

Civil No. 11-2092 (FAB-BJM)

3

Puerto Rico law holds physicians in malpractice cases to a
national standard of care.

Cortes-Irizarry v. Corporacion Insular

de Seguros, 111 F.3d 184 (1st Cir. 1997) (internal citations
omitted).

A physician’s duty is to provide patients with medical

care “that, in the light of the modern means of communication and
education, meets the requirements generally recognized by the
medical profession.” Santiago-Otero v. Mendez, 135 P. R. Dec. 540,
1994 P.R.-Eng. 909, 224 (1994); Rolon-Alvarado v. San Juan, 1 F.3d
74, 77-78 (1st Cir. 1993) (holding that a health care provider “has
a duty to use the same degree of expertise as could reasonably be
expected of a typically competent practitioner in the identical
specialty

under

the

same

or

similar

circumstances”)

(citing

Oliveros v. Abreu, 101 P.R. Dec. 209, 1 P.R. Offic. Trans. 293
(1973)).

A treating physician enjoys a presumption that he or she

possessed the reasonable knowledge and skills required by the
controlling

medical

standards,

and

that

reasonable and adequate care to the patient.

he

or

she

provided

Del Valle-Rivera v.

United States, 630 F. Supp. 750, 756 (D.P.R. 1986) (Fuste, J.).

In

order to overcome this presumption, a plaintiff ordinarily must
provide expert testimony to outline the minimum acceptable standard
of care and to conform the defendant doctor’s failure to meet it.
Pages-Ramirez v. Ramirez-Gonzalez, 605 F.3d 109, 113 (1st Cir.
2010).

Civil No. 11-2092 (FAB-BJM)

4

In establishing a physician’s failure to use the same degree
of

expertise

as

could

reasonably

be expected

of

a

typically

competent practitioner in the identical specialty under the same or
similar circumstances, an expert must show more than merely that
another

doctor

would

different manner.

have

chosen

to

treat

the

patient

in

a

“The mere fact that [an expert] might have

selected a particular approach or method of treatment does not,
without more, establish that a different approach or method, even
if unsuccessful, fell short of the duty owed.”
1

F.3d

at

78.

“Professional

standards

Rolon-Alvarado,

re[qu]ire

normative

judgments, not merely proof that a better way to treat a particular
patient could have been devised.”
II.

Id.

Sufficiency of Plaintiffs’ Evidence
Dr. Torres testified that Mrs. Sanchez’s admission to Ryder on

September 12, 2009 was due to “cholelithiasis, which means stones
in the gallbladder, and choledocholithiasis, which means stones in
the common bile duct.”

(Docket No. 147-1 at p. 38.)

He described

the general human anatomy of the liver, hepatic ducts, cystic duct,
gallbladder, common bile duct, hepatic artery, and portal vein, id.
at pp. 40–44, and then explained that Mrs. Sanchez had a “friable
liver,” id. at p. 60, that her common bile duct was wider than the
typical 0.8 centimeters, id. at p. 42, and that her gallbladder was
“shrunken,” “corrugated,” “contracted,” “fibrotic,” and “inflamed.”
Id. at pp. 46; (Docket No. 147-3 at p. 26).

Because Dr. Cardona

Civil No. 11-2092 (FAB-BJM)

5

did not describe the entrance or exit of Mrs. Sanchez’s cystic duct
in the operations report, Dr. Torres concluded that her cystic duct
could not be identified and was “obliterated.”
at pp. 47 & 49.)

(Docket No. 147-1

He also noted that Mrs. Sanchez’s gallbladder

“was extremely attached” to the common bile duct at the exit of the
cystic duct.

(Docket No. 147-1 at p. 67.)

Regarding
Mrs.

Sanchez’s

Dr.

Cardona’s

gallbladder

duty

and

when

common

removing
bile

duct,

stones
Dr.

from

Torres

testified that “the standard of care requires you [ — the physician
— ] to dissect that gallbladder, to open the cystic duct in which
you already did a cholangiogram[1] and you know how many stones are
there, remove the stone and remove the gallbladder.”
No.

147-1

at

p.

68.)2

Notably,

Dr.

Torres

(Docket

testified

that

1

According to Dr. Torres, an intraoperative cholangiogram is
a procedure in which a physician first injects dye into a patient’s
common bile duct before taking x-rays in order to obtain a
“complete view of all the biliary tract” and visibility of stones
inside the patient’s organs.
(Docket No. 147-1 at pp. 48–49.)
Dr. Torres explained that the cholangiogram allows the physician to
see the left valve of the common bile duct, which is “very
important because [then] you know that beyond that point is the
hepatic artery and beyond [that] is the portal vein. And although
the portal vein is not stained by the cholangiogram, it tells
you[,] ‘Don’t go beyond this line because you are going to get into
trouble.’” Id. at p. 50.
2

The Court rejects the contention that Dr. Torres’ repeated
allusion to primum non nocere, or “first, do no harm,” established
a sufficient standard of medical care. (Docket No. 134 at p. 4.)
That testimony relayed nothing more than every physician’s
Hypocratic Oath “which, as we all know, is the foundation of
medical ethics,” Ladner v. Higgins, Inc., 71 So. 2d 242, 244 (La.
Ct. App. 1954), but is not, standing alone, an established standard
of care for article 1802 purposes.

Civil No. 11-2092 (FAB-BJM)

6

Dr. Cardona did not perform an intraoperative cholangiogram for
Mrs. Sanchez’s operation.

Id. at p. 52.

Thus, Dr. Cardona did not

have the cholangiogram to serve as a “guide” for his dissection, or
to give him a picture of the common bile duct’s left valve, the
hepatic artery, or the portal vein’s proximity to the cautery. See
id. at p. 50.
Dr.
Dr.

Torres

Cardona

opined

performed

that
the

“for

one

reason

or

dissection

close

to

another,”
or

over

Mrs. Sanchez’s right portal vein, but that “there was no reason to
be dissecting there.”

(Docket No. 147-1 at p. 68.)

He confirmed

Dr. Cardona’s initial approach to the operation – to dissect3 the
gallbladder from the top — as a “good approach.”

Id. at p. 68.

If, in the dissection process, a physician enters into an area in
which

he

or

she

“doubt[s]

what’s

going

on

there,”

however,

Dr. Torres advised that the physician should “stay away from there.
Stop the dissection.

Go some other way.”

Id. at pp. 68–69.

Applied to a situation where a patient’s gallbladder’s extreme
attachment to the common bile duct obscured the cystic duct,
Dr. Torres implied that the correct course of action should have
been for the physician to stop the dissection and take a different
approach to removing the stones. He then offered four “other ways”
that a physician could have safely performed the removal of stones

3

Dr. Torres clarified that dissection involves “separating
the structure,” whereas laceration involves “cutting a structure.”
(Docket No. 147-1 at p. 51.)

Civil No. 11-2092 (FAB-BJM)

7

from the gallbladder and common bile duct where the cystic duct is
obscured.

Id. at pp. 67–72.

Ultimately, Dr. Torres’ opinion was

that Dr. Cardona “had at least four ways to do that operation
without doing any harm, and he decided to keep going.”

(Docket

No. 147-1 at p. 71.)
Viewing Dr. Torres’ testimony as a whole, the Court finds
sufficient

evidence

of

the

proper

Dr. Cardona’s treatment of Mrs. Sanchez.

standard

of

care

for

Dr. Torres took the jury

through a detailed explanation of the pertinent human anatomy and
stated the typical standard of care or technique for a doctor to
remove stones from the gallbladder and common bile duct “when there
is no loss of visual perception.”

(Docket No. 147-1 at p. 68.)

He

explained that Dr. Cardona appropriately began the technique by
dissecting the gallbladder.

By describing Mrs. Sanchez’s “friable

liver,” “dilated” common bile duct, and “contracted, fibrotic and
inflamed” gallbladder, however, Dr. Torres identified conditions
that should

have

alerted a

health

care provider

to

possible

complications in performing the stone removal operation.

Although

Dr. Torres’ testimony could have been clearer by explicitly stating
that the standards of care he set forth were generally recognized
by the medical profession in similar circumstances, the Court
rejects defendants’ argument that “plaintiffs failed to provide any
kind of objective medical evidence from which the jury could
conclude the standard of care to conduct this kind of surgery.”

Civil No. 11-2092 (FAB-BJM)
(Docket

No.

147

at

p.

8
4.)

The

“extreme”

attachment

of

Mrs. Sanchez’s gallbladder and common bile duct, and thus the
limited visibility of the cystic duct, should have alerted a
physician with similar expertise to Dr. Cardona’s to adjust his or
her technique in order to avoid precisely what occurred in this
case:

dissecting

unintentionally

into

an

lacerating

area

with

limited

other

body

parts.4

visibility
Dr.

and

Torres,

therefore, did more than merely claim that he would have chosen to
treat the patient in a different manner than Dr. Cardona.

He set

forth a standard of knowledge and skill required in the removal of
stones from a patient with Mrs. Sanchez’s conditions. Accordingly,
the Court finds that plaintiffs’ expert testimony sufficiently
outlines the minimum acceptable standard of care and conforms
Dr. Cardona’s failure to meet it.

See Pages-Ramirez v. Ramirez-

Gonzalez, 605 F.3d 109, 113 (1st Cir. 2010).5

4

Relying on the autopsy report, Dr. Torres testified that
there were at least four lacerations in Mrs. Sanchez’s liver: two
in the right side, right lobe, one in the vesicular bed, and either
one or two in the left lobe. (Docket No. 147-1 at pp. 63–64.)
5

Defendants’ further argument that Dr. Torres did not mention
or produce “any single piece of specific medical literature in
order to establish the alleged standard of care,” (Docket No. 147
at p. 4), is utterly insignificant. Federal Rules of Evidence 705
and 703 do not require an expert to do so. Instead, Rules 705 and
703 “place[] the burden of exploring the facts and assumptions
underlying the testimony of an expert witness on opposing counsel’s
cross-examination.” United States v. Perocier, 269 F.R.D. 103, 109
(D.P.R. 2009) (McGiverin, Magistrate J.) (citing 4-705 Weinstein’s
Federal Evidence § 705.05 and Toucet v. Maritime Overseas Corp.,
991 F.2d 5, 10 (1st Cir. 1993)).

Civil No. 11-2092 (FAB)

9

III. Conclusion
Defendants’ second joint motion for judgment as a matter of
law, (Docket No. 147), is DENIED.
IT IS SO ORDERED.
San Juan, Puerto Rico, April 23, 2014.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE