Prince et al v. Hospital HIMA San Pablo-Caguas, Inc. et al

Filing 29

For the reasons set forth herein, the Court DENIES Defendants' 7 Motion to Dismiss and 16 Motion for Joinder. Signed by Judge Juan M Perez-Gimenez on 4/30/2013. (VCC)

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

PRINCE, et al.,
Plaintiffs,
v.

Civil Case. NO. 12-1221 (PG)

HOSPITAL HIMA SAN PABLO-CAGUAS,
Defendants.

OPINION AND ORDER
Before the Court is defendants’ motion to dismiss (Docket No. 7)
filed by defendants Centro Medico del Turabo, Inc. d/b/a HIMA San Pablo
Caguas (hereinafter “HIMA”) and joined subsequently by defendants Jesús
Alvarez-Pérez and his Conjugal Partnership (Docket No. 16). Therein,
defendants request that this court enforce a Forum Selection Agreement
that plaintiff Kennisha Prince (“Ms. Prince”) signed while being admitted
to HIMA, whereby she acceded to submit any claims to the Puerto Rico
Court of First Instance. In their Opposition (Docket No. 13), plaintiffs
contend

that

the

Forum

Selection

Agreement

is

invalid

and

thus,

unenforceable.
After holding an evidentiary hearing and for the reasons set forth
below, the Court DENIES defendants’ request.
I.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs filed the original complaint (Docket No. 1) against HIMA
and Dr. Jesús Alvarez Pérez, (hereinafter collectively referred to as
“Defendants”), for the death of her prematurely born baby, K’Marr Prince
Mingo, at HIMA. The Complaint avers that on February 22, 2011 Ms. Prince,
then 22-years old, had a premature membrane rupture. See, Docket No. 1 at
¶10. Upon examining her at the Roy Lester Schneider Hospital (“Schneider

Civil No. 12-1221 (PG)

Page 2

Hospital”) in St. Thomas, US Virgin Islands, obstetrician gynecologist,
Dr. Ronald Nimmo (“Dr. Nimmo”) recommended a transfer to a hospital in
Puerto

Rico

because

Schneider

Hospital

did

not

have

the

necessary

neonatal intensive care unit equipment required for the care of Ms.
Prince’s baby once he was born. See, Docket No. 1 at ¶12.
Ms. Prince was airlifted from Schneider Hospital and arrived at
HIMA on February 23rd, 2011 with a diagnosis of “prolonged premature
rupture of membranes, pre-term labor and single intrauterine pregnancy at
28 3/7 weeks.” See, Docket No. 8 at pg. 3. The only person accompanying
her was her mother, Norma Prince. Ms. Prince testified at the Evidentiary
Hearing that she was not given a choice as to which hospital she would be
taken.
According to Ms. Prince, upon her arrival at the delivery room at
HIMA, she was met by an employee by the name of “Rafael” who was the only
person in the room who spoke English clearly. Ms. Prince does not speak
Spanish. At that point, she claims that “Rafael” gave her some admissions
documents

to

fill

out.

Ms.

Prince

testified

that

this

was

at

approximately 3 a.m. on February 23, 2011.
The documents that Ms. Prince received from HIMA as part of the
admissions packet included a Payment Agreement (Defendant’s Exhibit 2 of
the

Evidentiary

Hearing);

a

Forum

Selection

Agreement

(Defendant’s

Exhibit 3 of the Evidentiary Hearing) and a Patient’s Authorization for
Emergency Room (Docket No. 11-2), among others. See, Docket No. 28.
After her admission, Ms. Prince delivered a baby boy at 7:07 p.m.
on February 27th, 2011. See, Docket No. 8 at pg. 3. The baby was admitted
to HIMA’s Neonatal Intensive Care Unit (hereinafter, “NICU”) for further
care and ultimately passed away on March 29, 2011. See, Docket No. 8 at

Civil No. 12-1221 (PG)

Page 3

pg. 3.
On May 26, 2012 defendant HIMA moved to dismiss the action (Docket
No. 7). Defendants allege that prior to receiving services at HIMA, Ms.
Prince knowingly and voluntarily signed a Forum Selection Agreement as
part of the admissions documents “in which she specifically and expressly
agreed to submit any legal action resulting from any act or omission in
the treatment and/or services rendered at HIMA to the Puerto Rico Court
of First Instance, to the exclusion of any other forum.” See, Docket No.
7 at pg. 3. Accordingly, defendants posit that the claims are improperly
before this court.
Plaintiffs promptly opposed the motion to dismiss (Docket No. 8),
claiming that the inclusion of a Forum Selection Agreement as part of
HIMA admission documents without which Ms. Prince would not have received
medical

care

was

in

violation

of

Regulation

7617

of

the

Patient’s

Advocate Office,1 which prohibits a health care provider from including
as part of informed consent forms to be signed by a patient, legal
clauses not related to the patient’s condition or treatment.
Defendants filed a reply on June 27, 2012 (Docket No. 13). On
October 1, 2012 co-defendant Jesús Alvarez Pérez filed a Motion for
Joinder to Motion to Dismiss (Docket No. 16).
After
parties

a

status

argued

their

conference
positions

held

on

regarding

December
the

17,

validity

2012
of

where
the

the

Forum

Selection Agreement, the Court set an evidentiary hearing to assess the
factual controversy regarding Ms. Prince’s consent.
II. STANDARD OF REVIEW
1

Office of the Patient’s Advocate of P.R., Regulation 7617 of November 21, 2008.
Regulation No. 7617 is titled “Regulation for the Implementation of the
Provisions of Public Law Number 194 of August 25, 2000, as amended, ‘Patients’
Bill of Rights and Responsibilities of Puerto Rico.’”

Civil No. 12-1221 (PG)

Page 4

The First Circuit treats a motion to dismiss based on a forum
selection clause as one brought for failure to state a claim for which
relief

can

be

granted

under

FED.R.CIV.P.

12(b)(6).

See,

Silva

v.

Encyclopedia Britannica, Inc., 239 F.3d 385, 387 (1st Cir. 2001).
Firstly, when ruling on a motion to dismiss for failure to state a
claim, a district court “must accept as true the well-pleaded factual
allegations of the complaint, draw all reasonable inferences therefrom in
the plaintiff’s favor, and determine whether the complaint, so read,
limns facts sufficient to justify recovery on any cognizable theory.”
Rivera v. Centro Médico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir.2009)
(citing LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st
Cir.1998)). Additionally, courts “may augment the facts in the complaint
by

reference

to

(i)

documents

annexed

to

the

complaint

or

fairly

incorporated into it, and (ii) matters susceptible to judicial notice.”
Gagliardi

v.

Sullivan,

513

F.3d

301,

306

(1st

Cir.2008)(internal

citations and quotation marks omitted).
In

determining

whether

dismissal

of

a

complaint

is

appropriate

pursuant to Rule 12(b)(6), the court must keep in mind that “[t]he
general rules of pleading require a short and plain statement of the
claim showing that the pleader is entitled to relief… this short and
plain statement need only give the defendant fair notice of what the…
claim is and the grounds upon which it rests.” Gargano v. Liberty Intern.
Underwriters, Inc., 572 F.3d 45, 48 (1st Cir.2009) (internal citations
and

quotation

marks

omitted).

Nevertheless,

“even

under

the

liberal

pleading standard of Federal Rule of Civil Procedure 8, the Supreme Court
has … held that to survive a motion to dismiss, a complaint must allege
‘a plausible entitlement to relief.’” Rodríguez-Ortiz v. Margo Caribe,

Civil No. 12-1221 (PG)

Page 5

Inc., 490 F.3d 92, 95 (1st Cir.2007) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 559 (2007)). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009)
(citing Twombly, 550 U.S. at 556). That is, “[f]actual allegations must
be enough to raise a right to relief above the speculative level … on the
assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Twombly, 550 U.S. at 555 (internal citations and
quotation

marks

omitted).

plausible

claim

for

“Determining

relief

will

…

whether

be

a

a

complaint

context-specific

states
task

a

that

requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 129 S.Ct. at 1950.
III. DISCUSSION
There

is

no

dispute

that

Ms.

Prince

in

fact

signed

the

Forum

Selection Agreement as part of the admissions documents that she received
upon

arrival

at

HIMA.

See,

Docket

No.

11-1.

As

such,

the

factual

controversy between the parties centers on whether her consent was given
knowingly and voluntarily. Therein lays the key to determining whether
the Forum Selection Agreement is enforceable and ultimately, whether this
Court has jurisdiction to entertain the present action. In making its
determination on the matter, the Court relies on the record and on the
testimony given during the Evidentiary Hearing.
Defendants

claim

that

the

Forum

selection

Clause

was

“freely

negotiated by the parties.” See Docket No. 7 at page 8. Furthermore, they
assert,

Ms.

Prince

“signed

the

contents and consequences…” Id.

document

with

full

knowledge

of

its

Civil No. 12-1221 (PG)

Defendants’

Page 6

position

not

only

stands

inapposite

the

statutory

prohibition of forum selection clauses in medical admissions documents
under Puerto Rico law, but also contradicts the record as to Ms. Prince’s
mental state and circumstances when she signed them.
It

is

uncontested

that

on

February

22,

2011,

Ms.

Prince

was

diagnosed with a ruptured membrane on her 28th week of pregnancy. During
the evidentiary hearing it transpired that Ms. Prince had suffered three
previous miscarriages. According to the record, at least 15 hours elapsed
from the time that she was first examined at Schneider Hospital to the
time that she was finally admitted to HIMA. Thus, by the time that Ms.
Prince signed the admissions documents that included the Forum Selection
Agreement, she had spent a considerable amount of time under medical
examination without ingesting food and, as she herself testified, under
considerable emotional stress.
Ms. Prince emphasized during her testimony that she was tired,
hungry and concerned for the well-being of her baby. Her emotional stress
was

compounded

contractions

she

by

the

was

physical

feeling,

as

demands
she

of

told

labor,

the

including

personnel

who

the
were

assisting her on the air ambulance.
At the hearing, Defendants presented the testimony of Mario Garcia,
M.D.,

who

serves

as

liaison

between

HIMA

and

patients

from

another

jurisdiction. Mr. Garcia testified that at some time between 2:30-3:00
a.m. on February 23, he handed Ms. Prince the admissions package when she
was in the labor and delivery room and explained the documents to her.
For

her

part,

Ms.

Prince

alleges

that

she

did

not

read

the

documents but only signed them and it wasn’t until her attorney sent her
copies of the documents on July of 2012 that she actually learned their

Civil No. 12-1221 (PG)

Page 7

content. She claims she was “livid” when she read them because they were
“legal documents,” not mere “admission papers.”
It is precisely that distinction, enunciated in simple terms by Ms.
Prince, which highlights the rationale behind Puerto Rico’s statutory
prohibition of forum selection clauses presented to patients as part of
informed consent documents in obtaining medical treatment.
Regulation No. 7617 of November 21, 2008 prohibits a health care
provider to incorporate into their consent forms to be signed by a
patient, legal clauses that are not related to the patient’s condition or
treatment.

Pursuant

to

Regulation

No.

7617,

providers

are

strictly

prohibited from requesting the following from patients or making the
following part of the informed consent to be signed by patients: “Legal
clauses unrelated to the medical or health area or field pertaining to
the patients’ condition or the treatment to be provided to the patient,
such as, but not limited to forum selection clauses.”
In their Reply to Opposition to Motion to Dismiss, Defendants
posit that the applicability of a forum selection clause is a federal
procedural issue and thus Regulation No. 7616 is not determinative as a
matter of federal law.
This Court has grappled with that same question in previous cases.
As

recent

as

2011,

this

Court

held

that

a

forum

selection

clause

“presented to patients as part of the informed consent process” was
“illegal and unenforceable,” citing Regulation No. 7617. See, Vazquez v.
Hospital Episcopal Cristo, 2011 WL 6748951 at *1 (D.P.R. Dec. 22, 2011).
“The District of Puerto Rico has generally followed federal common
law and enforced forum selection clauses, because there is usually ‘no
conflict between federal common law and Puerto Rico law regarding the

Civil No. 12-1221 (PG)

Page 8

enforceability of forum-selection clauses.’” García-Mones v. Grupo HIMA
San Pablo, Inc., et al., 875 F.Supp.2d 98, 104 (2012) (citing Silva, 239
F.3d at 386 n.1.)
Federal common law dictates that a forum clause should control
absent a strong showing that it should be set aside. M/S Bremen v. Zapata
Off-Shore Co., 407 U.S. 1 (1972), 92 S.Ct. 1907. However, the Supreme
Court

has

stated

that

one

reason

for

declaring

a

forum

clause

unenforceable is if enforcement would contravene a strong public policy
of the forum in which suit is brought, whether declared by statute or by
judicial decision. Id. at 15.
Certainly, the enactment of Regulation No. 7617 is a testament to
the

public

clauses

policy

included

of
in

prohibiting
admissions

the

enforcement

documents

for

of

medical

forum

selection

treatment.

The

Puerto Rico Supreme Court recognized the validity of the provisions of
Regulation No. 7617 in Centro Medico del Turabo v. Depto. De Salud del
E.L.A., 181 P.R. Dec. 72, n.1 (2011). Moreover, the First Circuit in
Rivera v. Centro Medico del Turabo, 575 F.3d 10, 23 (1st Cir. 2009)2,
noted that Regulation No. 7617 is “pervasive evidence of Puerto Rico’s
public policy today.” Rivera, 575 F.3d at 23.
An evaluation of the clause under substantive law produces the same
results. In diversity cases, such as the one at hand, federal courts are
bound to apply the forum substantive’s law. As previously mentioned, the
Puerto Rico Supreme Court recognized that the practice of including forum
selection clauses as part of informed consent documents has been held
invalid in Puerto Rico. Centro Medico del Turabo, 181 P.R. Dec. at n.1.
As such, this Court is bound to follow the Commonwealth’s law and declare
2

The Rivera court held that Regulation No. 7504, which preceded Regulation No.
7617, was not relevant because it did not apply retroactively.

Civil No. 12-1221 (PG)

Page 9

the forum selection clause unenforceable because to hold otherwise would
contravene a strong public policy in Puerto Rico.
Accordingly, taking into consideration the statutory prohibition of
forum selection clauses in informed consent documents as well as the
facts of this case, the Court is convinced that HIMA’s imposition of the
Forum Selection Agreement in order to provide medical care to Ms. Prince
during

her

emergency

delivery

is

invalid.

Thus,

the

Court

DENIES

Defendants’ motion to dismiss.
IV. CONCLUSION
In

light

of

the

foregoing,

the

forum

selection

agreement

is

unenforceable and this Court has subject matter jurisdiction over the
present case. Defendants’ Motion to Dismiss pursuant to Rule 12(b)(6) is
thus DENIED.
IT SO ORDERED.
In San Juan, Puerto Rico, April 30, 2013.

S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PÉREZ-GIMÉNEZ
UNITED STATES DISTRICT JUDGE