Ramirez-Ortiz et al v. Corporacion del Centro Cardiovascular de Puerto Rico y del Caribe et al

Filing 209

MEMORANDUM AND ORDER re 116 Motion to Dismiss. Defendant Hospital de La Concepcion's motion to dismiss is DENIED. Signed by Judge Francisco A. Besosa on 02/12/2014. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MIGUEL A. RAMIREZ-ORTIZ,
JOSE IRIZARRY-ORTIZ,
JAVIER IRIZARRY-ORTIZ, and
ELIEZER IRIZARRY-ORTIZ,
Plaintiffs,
v.

CIVIL NO. 12-2024 (FAB)

CORPORACION DEL CENTRO
CARDIOVASCULAR DE PUERTO RICO
Y DEL CARIBE, et al.,
Defendants.

MEMORANDUM AND ORDER
BESOSA, District Judge.
Before the Court is the motion to dismiss filed by defendant
Hospital de La Concepcion (“HDLC”), (Docket No. 116).

Having

considered the defendant’s motion, plaintiff’s response, (Docket
No. 127), and defendant’s reply, (Docket No. 137), the Court DENIES
HDLC’s motion to dismiss.
I.

Background
For the purposes of defendant’s motion to dismiss, the Court

takes the following facts as true:

Plaintiffs are the children of

Mr. Miguel Ramirez-Torres, who died on January 23, 2012 after
receiving

medical

(Docket No. 85.)

treatment

for

a

cardiovascular

condition.

HDLC is a non-profit Puerto Rico corporation

which owns, operates, and/or manages a health care facility.
at p. 5.

Id.

Defendant Dr. Anibal Lugo-Rosas practices medicine at

Civil No. 12-2024 (FAB)

2

HDLC and provided Mr. Ramirez with medical care on or about
December 30, 20111 and January 23, 2012.
Upon

experiencing

chest

pains

Id. at p. 4.
on

December

31,

2011,

Mr. Ramirez, age 72, was taken to Hospital Bella Vista (“HBV”) in
Mayagüez, Puerto Rico.

(Docket No. 85 at p. 7.)

He arrived at

that hospital with signs and symptoms of acute coronary artery
syndrome (“ACS”) and was treated by three doctors:

Dr. Luis R.

Vega-Torres, Dr. Karen Rodriguez, and Dr. Jorge Valero TorresOlmeda.

Id.

Because Mr. Ramirez demonstrated ACS symptoms,

ongoing

chest

pain,

a

positive

EKG,

and

cardiac

enzymes

on

January 3, 2012, an ambulance transported him from HBV to the
Corporacion del Centro Cardiovascular de Puerto Rico y del Caribe
(“CCCPRC”)’s emergency department.
defendant

Dr.

catheterization
angiography.

Perez-Marrero
on

Mr.

Id. at pp. 7–8.

performed

Ramirez

as

well

an
as

At CCCPRC,

urgent

cardiac

right

coronary

a

Id. at p. 8. Dr. Perez-Marrero also placed two drug-

eluting stents

in

Mr.

Ramirez’s

right

coronary

artery.

Id.

Mr. Ramirez was discharged from CCCPRC on January 4, 2012 with the
understanding that he should “follow up” for a staged late anterior
descending artery stent.

Id.

On January 9, 2012, Mr. Ramirez again felt severe pain in his
chest and was taken to HDLC in San German, Puerto Rico.

1

Id. at

The Court finds no factual support for the allegation that
Dr. Lugo-Rosas treated Mr. Ramirez on December 30, 2011.

Civil No. 12-2024 (FAB)
p. 8.

3

The attending physician at HDLC was Dr. Lugo-Rosas.

Id.

Mr. Ramirez remained hospitalized at HDLC until January 11, 2012,
when he was transferred to Dorado Health Inc., d/b/a Mayagüez
Medical Center - Dr. Ramon Emeterio Betances (“MMC”) and again
treated by Dr. Lugo-Rosas.

Id. at p. 9.

At MMC, Dr. Lugo-Rosas

took Mr. Ramirez to the cardiac catheterization laboratory, but did
not consult a cardiovascular surgeon, and did not elect to perform
coronary bypass surgery.

Id.

He did perform a catheterization,

however, and found acute thrombosis of the two stents Dr. PerezMarrero had placed in the right coronary artery and progressive
left anterior descending artery obstructions.

Id.

Dr. Lugo-Rosas

placed three “in tandem” stents into Mr. Ramirez’s left anterior
descending artery, but was not successful in restoring flow through
the distal right coronary artery system. Id. After Dr. Lugo-Rosas
completed the procedure on January 11, 2012, Mr. Ramirez returned
to HDLC at night.
The next day, an order was written at HDLC to transfer
Mr. Ramirez to CCCPRC in San Juan, and on January 13, 2013
Mr. Ramirez arrived at CCCPRC with acute thrombosis “in stent,” or
rethrombosis,
infarction.
put

on

and

an

of

his

previous

myocardial

Id. He was stabilized at CCCPRC’s “CCU,” where he was

medication

performed

extension

an

urgent

called

Integrilin,

recardiac

and

Dr.

catheterization

Perez-Marrero
to

clear

the

occlusions in the previously-placed left anterior descending and

Civil No. 12-2024 (FAB)

4

right coronary artery stents.

Id. at pp. 9–10.

On January 18,

2012, Dr. Perez-Marrero again performed a cardiac catheterization
because

Mr.

Ramirez

continued

progression of his infarction.

to

experience

chest

pains

and

Id. at p. 10.

Defendant cardiovascular surgeon Dr. Ivan Gonzalez-Cancel
evaluated Mr. Ramirez on January 19, 2012 and recommended surgery.
Id.

On

January

22,

the

day

before

the

scheduled

surgery,

Dr. Gonzalez-Cancel entered an order that Mr. Ramirez’s Integrilin
medication be discontinued at 11:00 p.m.

Id.

At approximately

9:00 p.m. that evening, Mr. Ramirez suffered acute occlusion of his
right coronary artery stent and extended his previous myocardial
infarction.

Id.

at

p.

11.

He

was

taken

to

the

cardiac

catheterization laboratory on an emergency basis, where he was
found to have complete occlusion of his right coronary artery and
occluded prior left anterior descending coronary artery stents.
Id.

At

11:32

p.m.,

co-defendant

Dr.

Grovas-Abad

performed

a

procedure on Mr. Ramirez in which he placed an intra-aortic balloon
pump into the patient.

Id.

The procedure concluded at 12:23 a.m.

on January 23, 2012, and at 12:41 a.m. Mr. Ramirez was reported as
being in cardiogenic shock.

Id.

He was transferred to the CCU on

or about 1:15 a.m., arriving in a comatose state.

Id.

Upon being

connected to a monitor at the CCU, Mr. Ramirez registered no vital
signs, and although resuscitation was attempted, Mr. Ramirez died
at approximately 1:35 a.m. on January 23, 2012.

Id. at pp. 11–12.

Civil No. 12-2024 (FAB)

5

Plaintiffs originally filed their complaint on December 18,
2012, alleging negligence pursuant to articles 1802 and 1803 of the
Puerto Rico Civil Code for the medical care provided to Mr. Ramirez
between

December

physicians

and

31,

2011

and

hospitals,

but

January
not

23,

HDLC.

2012

by

(Docket

several
No.

1.)

Plaintiffs subsequently filed an amended complaint on December 28,
2012 and a second amended complaint on January 29, 2013, (Docket
Nos. 8 & 34), neither of which named HDLC as a defendant.

It was

not until June 4, 2013, when plaintiffs filed a third amended
complaint, that plaintiffs named HDLC as a defendant.

(Docket

No. 85.)
II.

Statute of Limitations Discussion
Medical malpractice claims pursuant to articles 1802 and 1803

of the Civil Code carry a statute of limitations of one year.
Laws Ann. tit. 31, § 5298.

P.R.

The prescription period begins to run

“from the time the aggrieved person has knowledge thereof.”

Id.;

Rodriguez v. Suzuki Motor Corp., 570 F.3d 402, 406 (1st Cir. 2009)
(citing Supreme Court of Puerto Rico case law to show that “the
statute of limitations starts to run once the injured party knows
both that he has suffered a harm and who is responsible for it.”).
HDLC claims that plaintiffs had knowledge of, or reasonably
should have known about, Mr. Ramirez’s alleged injury and HDLC’s
possible

involvement

as

of

January

23,

2012

—

the

date

of

Mr. Ramirez’s death. It thus avers that the statute of limitations

Civil No. 12-2024 (FAB)

6

began to run on January 23, 2012.

Citing Fraguada Bonilla v.

Hospital Auxilio Mutuo, 2012 TSPR 126, 186 D.P.R. 365 (2012),
Attachment 1, HDLC also argues that plaintiffs had to toll the oneyear statute of limitations for each joint tortfeasor, and that
plaintiff’s

addition

of

HDLC

as

a

defendant 16

January 23, 2012 occurred four months too late.
pp. 3–12.)

months

after

(Docket No. 116 at

Consequently, it maintains that plaintiffs’ articles

1802 and 1803 claims against it are time-barred.

In response,

plaintiffs claim (1) that they had no reason to know of HDLC’s
relationship to the events alleged in the complaint until the
discovery process began,2 and (2) that the statute of limitations
was indeed tolled against HDLC once plaintiffs named Dr. Lugo-Rosas
in their original complaint.

(Docket No. 127.)

They argue that

their article 1802 and 1803 claims must be treated differently
under Fraguada, especially in light of article 1803’s provision
that a hospital is vicariously liable for the negligent acts or
omissions of its physicians.

Accordingly, plaintiffs contend that

their timely claim against Dr. Lugo-Rosas interrupted the statute

2

The Puerto Rico Court of Appeals recently found it
reasonable to conclude that the prescriptive term for the claim
against HDLC began to run when plaintiffs found out who was
responsible for Mr. Ramirez’s harm during discovery.
(Docket
No. 207-1 at p. 18.) The Court agrees with the Court of Appeals’
conclusion and will not address the defendants’ first argument
regarding plaintiffs’ knowledge and the statute of limitations.
Instead, the Court confines its analysis to defendants’ second
argument, that the statute of limitations was not tolled by
plaintiffs’ original complaint.

Civil No. 12-2024 (FAB)

7

of limitations against HDLC.

(Docket No. 127 at p. 16) (citing

P.R. Laws Ann. tit. 31, § 5304).

In reply, HDLC denies that the

Fraguada holding applies differently to article 1802 and 1803
claims and disputes that plaintiffs are allowed to have waited more
than one year to name it as a defendant.

(Docket No. 137.)

Because the parties do not agree on whether Fraguada is applicable,
a review of the Fraguada decision and the legal concepts underlying
the holding is warranted.
A.

Evolution of “Solidarity” in Puerto Rico
In

Puerto

Rico,

the

concept

of

joint

and

several

liability is called “solidarity[,] [and] exists when several people
take part or cooperate in causing a wrong.”

Arroyo v. Hospital de

La Concepcion, 130 D.P.R. 596, 605, 1992 Juris P.R. 66 (1992),
Attachment 2 at p. 6.

Various interpretations of solidarity exist

in foreign civil codes, and in 1992, the Supreme Court of Puerto
Rico was presented with thee occasion of surveying the concept’s
history

and

jurisdiction.

selecting
See id.

which

interpretation

to

adopt

in

this

It ultimately adopted the Spanish doctrine

in effect at that time, which upheld the “homogeneous nature of
solidarity,” id. at p. 8, over the French doctrine, which breaks
down the concept between “perfect and imperfect” solidarity, id.,
and held that “there is but one type of solidarity in our body of
laws.”

Id. at p. 9.

In light of the single type of solidarity,

the Supreme Court of Puerto Rico held that by filing a complaint

Civil No. 12-2024 (FAB)
against

a

joint

and

8
several

co-tortfeasor,

a

plaintiff

automatically tolls the statute of limitations as to all other cotortfeasors.

Resting its decision “on the basic principles of

justice and fairness . . . and procedural[] expedien[cy],” and
claiming that the rule “conforms to the provisions of our Civil
Code . . . and strikes the best balance between all the interests
involved,” id. at p. 10, the Supreme Court of Puerto Rico held that
the unitary solidarity doctrine “allows for timely inclusion of a
solidary tortfeasor not originally included in the action.” Id. at
p. 9.

In order to toll the statute of limitations as to any one

potential defendant, therefore, a plaintiff need only have alleged
in an amended complaint that the new defendant was “solidarily
liable for the damages claimed against the original defendant in
the complaint [that was] filed within the period of limitations
prescribed by law.”

Id. at p. 10.

In 2008, the Supreme Court of

Puerto Rico expanded the Arroyo holding to permit a plaintiff to
add a joint and severally liable defendant who would otherwise be
barred by the statute of limitations even though the “plaintiff
knew beforehand the identity and elements necessary to exercise his
cause of action against [that defendant].” Commonwealth of P.R. v.
Shell Oil Co. (In re Methyl Tertiary Butyl Ether “MTBE” Prods.
Liab. Litig.), 2013 U.S. Dist. LEXIS 99288, 33 (S.D.N.Y. July 16,
2013) (citing Garcia Perez v. Corp. Serv. Mujer, 2008 TSPR 114, 174
D.P.R. 138, 155, 2008 Juris P.R. 134 (2008)).

Civil No. 12-2024 (FAB)

9

Four years later, however, the Supreme Court of Puerto
Rico issued the Fraguada decision, which abrogated Arroyo and its
progeny.

Commenting that “[t]ime has passed and the changes that

have occurred since [the Arroyo decision] have not been few,” the
Supreme Court of Puerto Rico abandoned the Spanish homogeneous
solidarity concept in favor of the bifurcated French doctrine.3
Fraguada, Attachment 1 at p. 11 (“The interpretation admitted in
[Arroyo] was abandoned in Spain for several years now, and in its
stead there was adopted the French doctrine that distinguishes
between two types of several liability:

perfect and imperfect.”).

“Perfect” solidarity occurs “between several persons joined by a
common interest, which have frequent relations among themselves or
know each other.”

Id. at p. 15.

“Imperfect” solidarity, by

contrast, exists “when it is established by law between persons who
do not know each other, who are merely accidental co-debtors or
when their relations are sporadic.”

Id.

The nature of imperfect

3

Commenting about the “multiple effects of the rule applied
in practice,” the Supreme Court of Puerto Rico noted that:
the cumulus of experience forces us to conclude that the
standard therein established did not achieve the
equilibrium that we sought. In effect, after Arroyo, we
recognized that this rule in effect provides greater
protection to the plaintiff.
Fraguada, Attachment 1 at p. 21. “[F]ar from achieving a balance
between the opposing interests, this standard tips the balance of
the situation in favor of the claimant.”
Id. at p. 22.
“Its
outcome has been an institution of undermining prescription, since
one party has the eternal right to claim damages from another.”
Id. at p. 23.

Civil No. 12-2024 (FAB)

10

solidarity, the Supreme Court of Puerto Rico explained, imputes to
each of the co-causers the responsibility of paying the whole, but
each co-causer’s liability “is autonomous from that of the others.”
Id.

Given each “co-causer’s” independent foundation for the joint

obligation, the Supreme Court of Puerto Rico reasoned that “the
secondary effects of the traditional solidarity — among them, the
interruption of the prescriptive term — do not govern.”

Id.

It

thus held that “in actions for extracontractual damages [involving
imperfect

solidarity],

the

injured

party

must

individually

interrupt the prescriptive term with regard to each joint and
several co-causer,” id., and “timely filing of a complaint against
a supposed co-tortfeasor does not toll the statute of limitations
against the rest of the alleged co-tortfeasors.”

Id. at p. 11

(emphasis added).
B.

Analysis
The Court finds that plaintiffs’ negligence claim against

defendant HDLC falls outside of Fraguada’s express ruling because
it involves a perfect — not an imperfect — solidarity obligation.
As explained by the Supreme Court of Puerto Rico, interruption of
the statute

of

limitations

solidarity,”

Fraguada,

“applies

Attachment

1

only
at

p.

to

cases

19,

and

of

proper

“improper

solidarity is an exception to the standard of interruption of the
prescription.”

Id. at p. 18.

This is because “the exclusion of

the secondary effects of the solidarity of several causers of an

Civil No. 12-2024 (FAB)

11

extracontractual damage [in imperfect solidarity obligation cases]
is justified by the absence of a community of interests among those
co-obligated.”

Id.

at

p.

16

(citing

J.

Lopez

Richart,

Responsabilidad Personal e Individualizada, Madrid, Ed. Dikinson,
2003, page 40).

In other words, “[t]here does not exist a common

interest

mutual

or

a

representation

[between

the

imperfect

solidarity co-causers, and thus each co-causer must be named within
the

statute

of

limitations

period,]

because

the

in

solidum

obligation does not arise from a prior agreement or pact, but from
an unconventional event.”
To

the

Fraguada, Attachment 1 at p. 16.

contrary,

the

reason

for

not

extending

interruption of prescription to imperfect solidarity simply does
not pertain to cases of perfect solidarity, where the nature of the
obligation “is derived from a legal standard or from a conventional
pact.” Fraguada, Attachment 1 at p. 19. Precisely because perfect
solidarity arises from a pre-existing bond, interruptive acts do
not operate individually and prescription with regard to one of the
defendants does indeed reach the other in such cases.

Cf. id.

(explaining that imperfect solidarity “does not arise from a preexisting bond, but from the illegal act that produced the damages,
which obtains its recognition through the judgment that declares it
to be so.

Therefore, interruptive acts operate individually.”);

see also id. (“If the solidarity does not arise except for a
judgment,

which

is

the

so-called

improper

solidarity,

the

Civil No. 12-2024 (FAB)

12

interruption of the prescription with regard to one of the debtors
does not reach the other, since he was not a joint and several
debtor and was only so as of the judgment that declared this, not
before.”) (citation omitted).
today,

therefore,

hold

that

The Spanish and French doctrines
“the

interruptive

effect

of

the

prescription . . . applies only to cases of proper solidarity.”
Id. (emphasis added).
The Court finds that a perfect solidarity obligation
arises in medical malpractice cases where a hospital and physician
are jointly liable for a physician’s negligent care pursuant to
article 1803’s vicarious liability doctrine. Article 1803 provides
an exhaustive list of circumstances in which a party may be
vicariously liable for another party’s tort, one of which is an
employer/employee relationship. P.R. Laws Ann. tit. 31 § 5142. As
the Court has noted before:
A leading commentator on the Spanish civil code confirms
that the liability imposed by article 1803 on those who
must answer for the negligent act or omissions of another
is not subsidiary [“subsidiaria”], but rather, direct.
Manresa, Comentarios al Codigo Civil Español, 5th ed.,
1951, T.12, p. 665.
(Court’s translation.)
The law
imposes such direct liability when a special relationship
of authority or superiority exists, and harm is caused by
the superior’s dependents in the effectuation of services
with which the superior has been entrusted.
Id. at
p. 672.
Casillas-Sanchez v. Ryder Mem. Hosp., Inc., 2013 U.S. Dist. LEXIS
116654, *10–11 (Aug. 15, 2013) (Besosa, J.).

Article 1803 is a

legal

and

standard

giving

rise

to

a

hospital

its

employee

Civil No. 12-2024 (FAB)

13

physicians’ obligations, and the “special relationship” between the
hospital and the physician both demonstrates frequent relations
among the parties and creates a common interest and pre-existing
bond between them.

Perfect solidarity exists, therefore, and each

“co-causer” need not be named within the statute of limitations
period in order for a plaintiff’s claim to survive.

See Fraguada,

Attachment 1 at p. 19.
Taking the complaint as true, which the Court must do at
the motion to dismiss stage, the Court finds sufficient facts to
infer

that

a

perfect

solidarity

defendants HDLC and Dr. Lugo-Rosas.

obligation

exists

between

Given that when Mr. Ramirez

was admitted to HDLC directly on January 9, 2012, and the physician
who

attended

article 1803

him

was

would

Dr.

hold

Lugo-Rosas,

HDLC

and

Dr.

it

is

plausible

Lugo-Rosas

jointly

that
and

severally liable because Mr. Ramirez entrusted his health to the
hospital and HDLC provided Dr. Lugo-Rosas as a treating physician.
See id. at *8–9.

As the Court has previously held:

the Supreme Court of Puerto Rico has made clear that the
[vicarious liability] doctrine has expanded to situations
where a patient seeks medical aid directly from a
hospital and the hospital provides the treating physician
— regardless of the physician’s employment relationship
with the hospital.
Id. at *10.

Because article 1803 dictates a joint and several

liability relationship between a hospital and a negligent doctor,
when the physician is an employee of the hospital or when a patient
seeks treatment directly from a hospital and the hospital provides

Civil No. 12-2024 (FAB)

14

the physician who provides the treatment, even though the doctor is
not the hospital’s employee, perfect solidarity exists between HDLC
and Dr. Lugo-Rosas.

It follows, therefore, that the interruptive

effect of prescription applies to plaintiffs’ negligence claims
against HDLC and Dr. Lugo-Rosas, and that the original complaint’s
inclusion of Dr. Lugo-Rosas tolled the statute of limitations as to
HDLC.
III. Conclusion
For the reasons discussed above, defendant HDLC’s motion to
dismiss is DENIED.
IT IS SO ORDERED.
San Juan, Puerto Rico, February 12, 2014.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE