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

Filing 264

MEMORANDUM AND ORDER re 162 Motion for Partial Summary Judgment; 185 Motion Requesting Order; and 198 Motion in Limine. Defendant Hospital Bella Vista's motion for partial summary judgment is DENIED. Hospital Bella Vista's motion requesting extension of partial judgment is also DENIED. Plaintiffs' motion in limine to preclude expert testimony is GRANTED. Signed by Judge Francisco A. Besosa on 04/28/2014. (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 are (1) defendant Hospital Bella Vista
(“HBV”)’s motion for partial summary judgment, (Docket No. 162);
(2) HBV’s motion requesting an extension of the partial judgment
entered on December 23, 2013, (Docket No. 185); and (3) plaintiffs’
motion in limine to preclude defendant Corporacion del Centro
Cardiovascular

de

Puerto

Rico

y

del

Caribe

introducing expert testimony, (Docket No. 198).

(“CCCPRC”)

from

For the reasons

discussed below, the Court DENIES HBV’s motions for partial summary
judgment and extension of partial judgment, and GRANTS plaintiffs’
motion in limine.
I.

Partial Summary Judgment
The crux of defendant HBV’s summary judgment argument rests

upon its interpretation of two paragraphs in the third amended

Civil No. 2024 (FAB)
complaint.

2

Paragraphs 31 and 32 fall under a section called

“General Allegations” of the complaint and state the following:
31.
the
the
Dr.
who

At Hospital Bella Vista, including the time spent at
emergency room of this entity, Mr. Ramirez was under
care of Co-Defendants Dr. Luis R. Vega Torres,
Karen Rodriguez, and Dr. Jorge Valero Torres-Olmeda
treated his cardiovascular condition medically.

32. Lytic therapy at protocol or immediate intervention
were not offered to Mr. Ramirez.
(Docket No. 85 at p. 7.)

HBV contends that Dr. Cecilia Arango, a

family medicine resident who was “moonlighting” HBV’s emergency
room on December 31, 2011, did offer Mr. Ramirez lytic therapy, and
consequently that the alleged negligent act or omission stated in
paragraph 32 “does not exist, as required by article 1802 of the
Puerto Rico Civil Code.”

(Docket No. 162 at p. 2.)

The hospital

thus requests that the Court grant partial summary judgment,
“dismissing with prejudice the allegations contained in paragraphs
31 and 32 of the third amended complaint with the imposition of
costs, expenses, and attorney’s fees.”
Plaintiffs

aver

that

they

have

(Docket No. 162 at p. 2.)
properly

pled

a

medical

malpractice claim under Puerto Rico law and disagree with defendant
HBV’s interpretation of paragraphs 31 and 32 of the third amended
complaint.

Finding that genuine issues of material fact remain as

Civil No. 12-2024 (FAB)

3

to plaintiffs’ negligence claims against HBV, the Court DENIES the
motion for partial summary judgment.1
Summary judgment serves to assess the evidence and determine
if there is a genuine need for trial.
895 F.2d 46, 50 (1st Cir. 1990).

Garside v. Osco Drug, Inc.,

The Court may grant a motion for

summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed.R.Civ.P. 56(a).

A fact is

“material” if it has the potential to “affect the outcome of the
suit under the governing law.”

Id.

A dispute is “genuine” when it

“could be resolved in favor of either party.”

Calero-Cerezo v.

U.S. Dep’t. of Justice, 355 F.3d 6, 19 (1st Cir. 2004).
moving

for

summary

judgment

has

the

initial

The party
burden

of

“demonstrat[ing] the absence of a genuine issue of material fact”

1

HBV also argues that because Dr. Arango is not a party to
the case, plaintiffs cannot receive “complete relief” as to their
allegations in paragraphs 31 and 32.
Quizzically, HBV cites a
recent Supreme Court of Puerto Rico case, Fraguada Bonilla v.
Hospital Auxilio Mutuo, 186 D.P.R. 365, 389 (2012), and claims that
“according to the ‘in solidum’ obligation doctrine[,] there is a
lack of indispensable parties” without Dr. Arango. (Docket No. 164
at p. 2.)
Courts have long held that joint tortfeasors are not
indispensable parties pursuant to Federal Rule of Civil Procedure
19(b), because “it is not necessary for all joint tortfeasors to be
named as defendants in a single lawsuit.” Temple v. Synthes Corp.,
498 U.S. 5, 7 (1990). Plaintiffs correctly classify Dr. Arango as
a potential joint tortfeasor and not as an indispensable party.
(Docket No. 191 at pp. 1–2.) Simply because plaintiffs did not sue
Dr. Arango, therefore, does not mean that HBV is entitled to
summary judgment and to the dismissal of paragraphs 31 and 32 of
the complaint.

Civil No. 12-2024 (FAB)

4

with definite and competent evidence.

Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986); Maldonado-Denis v. Castillo-Rodriguez, 23
F.3d 576, 581 (1st Cir. 1994).

It must identify “portions of ‘the

pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any’” which support its
motion.

Catrett, 477 U.S. at 323 (citing Fed.R.Civ.P. 56(c)).

Only when a properly supported motion has been presented does the
burden shift to the non-moving party “to demonstrate that a trier
of fact reasonably could find in [its] favor.”

Santiago-Ramos v.

Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000)
(internal citation omitted).
Defendant HBV has not met its summary judgment burden because
it fails to demonstrate that no material issue of fact exists
regarding whether Mr. Ramirez’s medical care at HBV was negligent.
It

merely

argues

that

because

lytic

therapy

was

actually

administered to Mr. Ramirez at HBV, plaintiffs’ allegation that
“lytic therapy at protocol or immediate intervention were not
offered” must fail.

As plaintiffs point out, HBV’s argument is

based on a blatant misinterpretation of paragraph 32 in the third
amended complaint.

Plaintiffs do not allege that there was an

absence altogether of lytic therapy; rather, they admit that lytic
therapy was dispensed, but allege that its administration was not
“at protocol” and thus fell short of the appropriate standard of
care.

They support that contention with the following evidence:

Civil No. 12-2024 (FAB)

5

A consultation report from HBV, which documents Mr. Ramirez’s
health

conditions

upon

admission

and

includes

HBV’s

“recommendations” for the patient, (Docket No. 192-1); deposition
testimony of Dr. Karen Rodriguez-Maldonado and a physician’s order,
which demonstrate that HBV transferred Mr. Ramirez to CCCPRC on
January 3, 2012, (Docket Nos. 192-4); and a report issued by
plaintiffs’ expert, Dr. Carl Adams, detailing why HBV’s lytic
therapy was not “at standard.”

2

(Docket No. 192-3.)2

Accordingly,

Dr. Adams’ written opinion is as follows:

Although lytic therapy was started on December 31, 2012,
it was not at standard[,] as lytic therapy is started
immediately with anticipation of an urgent diagnostic or
therapeutic cardiac catheterization with or without
intervention. The patient was treated “medically” and
therefore the myocardium was not “rescued”, this resulted
in loss of viable myocardial muscle mass in the presence
of ischemia, an ECHO documented right ventricular wall
hypokinesis prior to transfer.
(Docket No. 192-3 at p. 3.)
Despite HBV’s argument to the contrary, the Court finds no
basis for believing that Dr. Adams’ deposition testimony is
inconsistent with his written report.
HBV submits one page of
Dr. Adams’ deposition — with no additional context — which states
that the emergency room medical care given to Mr. Ramirez did not
violate the standard of care, “with the exception of the
cardiologist who gets involved treating the patient.”
(Docket
No. 237-2 at p. 1.)
With regard to the lytic therapy issue,
however, Dr. Adams’ position appears consistent: “And, as I said,
it was appropriate to initiate the lytic therapy, but it was not
carried in the standard of care because, you have to transfer that
patient to a facility in a reasonable amount of time for an
intervention.” (Docket No. 237-1 at p. 3.) The Court, therefore,
finds no basis for believing that “Dr. Carl Adams accepted that
there were no violation[s] of the standard of care” at HBV. (See
Docket No. 237 at p. 2.)

Civil No. 12-2024 (FAB)

6

issues of material fact remain regarding HBV’s negligence, and the
Court DENIES the hospital’s request for partial summary judgment
and to strike paragraphs 31 and 32 of the third amended complaint.
II.

Extension of Partial Judgment
On December 23, 2013, the Court granted plaintiffs’ motion for

voluntary

dismissal

with

prejudice

of

their

claims

against

Dr. Jorge V. Torres-Olmeda, Dr. Luis Vega-Torres, and SIMED 10 as
Dr. Torres-Olmeda’s insurer.

(Docket No. 174.)

Defendant HBV

argues that the dismissal must also include HBV “for the alleged
negligence

and/or

liability,

if

any,

of

those

defendants-

physicians,” and it therefore seeks to extend the Court’s December
23rd Order to it.

(Docket No. 185 at p. 3.)

Simply because some

of the doctors who treated Mr. Ramirez at HBV have been dismissed,
however, does not mean that the dismissal of claims against HBV
necessarily

follows.

Pursuant to

articles

1802

and

1803,

a

hospital may be liable for a physician’s malpractice as well as for
its own negligence.

Casillas-Sanchez v. Ryder Mem. Hosp., Inc.,

960 F. Supp. 2d 362, 366 n.1 (D.P.R. Aug. 15, 2013) (Besosa, J.).
The

Court

has

been

presented

with

no

authority

for

HBV’s

insinuation that when a hospital’s negligence liability lies at
least in part on a doctor’s malpractice, the doctor must also be
sustained as a defendant in order for the claims against the
hospital to persist.

Thus, the negligence claims against HBV

remain, and HBV’s motion to extend partial judgment is DENIED.

Civil No. 12-2024 (FAB)

7

III. Motion in Limine
On August 1, 2013, the Court ordered all defense expert
reports to be submitted by December 31, 2013.

(Docket No. 121.)

Although the Court extended that deadline for defendant Hospital de
la Concepcion (Docket No. 167) and defendant Dr. Gonzalez-Cancel,
(Docket No. 169), defendant CCCPRC did not request and did not
obtain

an

extension

to

the

December

31,

2013

deadline.

On

January 21, 2014, CCCPRC took the deposition of plaintiffs’ expert,
Dr. Adams.

(See Docket No. 204.)

The next day, plaintiffs filed

a motion in limine, seeking to preclude CCCPRC from offering any
expert testimony.

(Docket No. 198.)

Subsequently, on January 31,

2014, defendant CCCPRC requested authorization from the Court to
present expert

testimony

(Docket No. 204.)

through

Ms.

Milagros

Figueroa-Ramos.

The Court denied CCCPRC’s request, finding that

“CCCPRC had plenty of time to retain a nurse as an expert before
the discovery cut off date of December 31, 2013.”
at p. 1.)

(Docket No. 206

After two motions for reconsideration, the Court has

consistently and firmly ruled that CCCPRC is not at liberty to
present any expert witness due to its failure to meet the Court’s
scheduling order at Docket No. 121.
Civil

Procedure

26(a)(2)(D)

and

Pursuant to Federal Rules of
37(c)(1),

the

Court

grants

plaintiffs’ motion in limine precluding CCCPRC from offering expert
testimony.

Civil No. 12-2024 (FAB)
IV.

8

Conclusion
Defendant HBV’s motion for partial summary judgment, (Docket

No. 162), is DENIED.

HBV’s motion requesting extension of partial

judgment, (Docket No. 185), is also DENIED.

Plaintiffs’ motion in

limine to preclude expert testimony, (Docket No. 198), is GRANTED.
IT IS SO ORDERED.
San Juan, Puerto Rico, April 28, 2014.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE