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

Filing 335

MEMORANDUM AND ORDER re 306 motion for summary judgment; and re 332 Motion in Limine. The Court GRANTS IN PART and DENIES IN PART Hospital Bella Vista's motion for summary judgment, joined by Dr. Rodriguez and SIMED 4. All claims for Hospi tal Bella Vista's liability based on the negligence of physicians other than Dr. Rodriguez are DISMISSED. Hospital Bella Vista's motion in limine at Docket No. 332 is GRANTED. Signed by Judge Francisco A. Besosa on 07/23/2014. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MIGUEL A. RAMIREZ-ORTIZ, et al.,
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 defendant Hospital Bella Vista (“HBV”)’s
amended motion for partial summary judgment, (Docket No. 306),
joined by Dr. Karen Rodriguez-Maldonado, (Docket No. 300), and the
Sindicato de Aseguradores para la Suscripción Conjunta de Seguro de
Responsabilidad Profesional Medico-Hospitalaria (“SIMED 4”), as
Dr. Rodriguez-Maldonado’s insurance carrier, (Docket No. 301). For
the reasons discussed below, the Court GRANTS IN PART and DENIES IN
PART defendants’ motion.
I.

Rule 56 Standard
Summary judgment serves to assess the evidence and determine

if there is a genuine need for trial.

Garside v. Osco Drug, Inc.,

895 F.2d 46, 50 (1st Cir. 1990); see Cortes-Irizarry v. Corporacion
Insular de Seguros, 111 F.3d 184, 187 (1st Cir. 1997) (“The
objective of summary judgment is to pierce the boilerplate of the

Civil No. 12-2024 (FAB)

2

pleadings and assay the parties’ proof in order to determine
whether trial is actually required.”) (citation omitted).

“To

defeat a motion for summary judgment, the nonmoving party must
demonstrate
material
omitted).

the

fact.”

existence

of

a

trialworthy

Cortes-Irizarry,

111

F.3d

issue
at

as

187

to

some

(citation

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 suit’s outcome.”
F.3d at 187.

Cortes-Irizarry, 111

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).

The party moving for summary

judgment has the initial burden of “demonstrat[ing] the absence of
a genuine issue of material fact” 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.
U.S. at 323 (citing Fed. R. Civ. P. 56(c)).

Catrett, 477

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.

Civil No. 12-2024 (FAB)

3

Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (internal citation
omitted).
II.

Discussion
This case arises from the death of 72-year-old Miguel Ramirez-

Torrez on January 23, 2012 after having received medical care in
Puerto Rico.

The motion for summary judgment currently before the

Court concerns the medical care Mr. Ramirez received at HBV during
a small window of time:

from December 30, 2011 until January 2,

2012, after which Mr. Ramirez was transferred to another hospital.
After arriving at HBV on December 30, 2011, Mr. Ramirez was treated
at HBV’s Emergency Room by Dr. Cecila Arango and, during his
subsequent

hospitalization,

he

was

seen

by

family

medicine

physician residents as well as by defendants Dr. Luis R. VegaTorres, Dr. Karen Rodriguez, and by Dr. Jorge Valero Torres-Olmeda.
(Docket No. 85 at p. 7; Docket No. 98 at pp. 5–6.)
Citing testimony from plaintiff’s expert, Dr. Carl W. Adams,
that “the emergency room care [at HBV] in my opinion, wasn’t the
best, but it is not a violation of the standard of care with the
exception of the cardiologist who gets involved treating the
patient,” (Docket No. 332-1 at p. 61), HBV alleges that plaintiffs
have not presented sufficient evidence to establish a prima facie
case against HBV for the negligence of any physician other than
Dr. Rodriguez.

(Docket No. 299 at p. 7.)

It thus seeks dismissal

of claims alleging liability by HBV “with the exception of the

Civil No. 12-2024 (FAB)

4

allegations of negligence against Dr. Karen Rodriguez.”

Id.

Because plaintiffs do not oppose, and the Court finds no evidence
in the record to otherwise support a basis of hospital liability on
the actions of Dr. Torres, Dr. Vega, or other HBV emergency room
personnel, the Court GRANTS HBV’s motion for summary judgment as to
those defendants.

At trial, HBV’s liability will hinge only upon

its own negligence or the alleged negligence of Dr. Rodriguez.
Separately arguing thereafter that no prima facie case can be
made against Dr. Rodriguez, HBV ultimately seeks dismissal of “all
claims” against it.

(Docket No. 299 at pp. 7–9.)

Plaintiffs

respond that, because Dr. Adams’ written report and deposition
declarations do establish the prima facie elements of medical
malpractice against Dr. Rodriguez, hospital liability consequently
attaches, and summary judgment is not warranted as to Dr. Rodriguez
or HBV.

(Docket No. 323.)

For the reasons discussed below, the

Court agrees with plaintiffs and DENIES HBV’s motion for summary
judgment as to liability for Dr. Rodriguez’s alleged negligence.
A.

Physician’s Liability
1.

Medical Malpractice Standard
Medical malpractice liability in Puerto Rico is

negligence- and fault-based.

Rodriguez-Diaz v. Seguros Triple-S,

636 F.3d 20, 23 (1st Cir. 2011) (internal citation omitted).
Puerto Rico’s general negligence statute, article 1802 of the Civil
Code, states that “a person who by an act or omission causes damage

Civil No. 12-2024 (FAB)

5

to another through fault or negligence shall be obliged to repair
the damage done.”

P.R. Laws Ann. tit. 31, § 5141.

“Within this

rubric, three elements coalesce to make up a prima facie case for
medical

malpractice

(a

species

of

professional

negligence).”

Martinez-Serrano v. Quality Health Servs. of P.R., Inc., 568 F.3d
278, 285 (1st Cir. 2009).

To prove medical malpractice in Puerto

Rico, a plaintiff must establish:

“‘(1) the duty owed (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 the breach and
the claimed harm.’” Torres-Lazarini v. United States, 523 F.3d 69,
72 (1st Cir. 2008) (citing Cortes-Irizarry, 111 F.3d at 189).
Puerto Rico law holds physicians in malpractice
cases to a national standard of care. Cortes-Irizarry, 111 F.3d at
190.

A physician’s duty, therefore, is to provide patients with

medical

care

communication

“that,
and

in

the

education,

light
meets

of
the

recognized by the medical profession.”

the

modern

requirements

means

of

generally

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

Civil No. 12-2024 (FAB)

6

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 he
or she provided reasonable and adequate care to the patient.

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).
2.

Which Evidence May the Court Consider?
As

a

preliminary

matter,

the

Court

addresses

concerns over which evidence may be considered at the summary
judgment stage.1

While “a court may take into account any material

that would be admissible or usable at trial[,] . . . inadmissible
evidence may not be considered.”

Horta v. Sullivan, 4 F.3d 2, 8

(1st Cir. 1993) (citation omitted).

Dr. Adams’ unsworn statement

under penalty of perjury, filed on July 8, 2014, purports to
correct statements made nearly six months earlier at his deposition
taken on January 20, 2014.

(Docket No. 324-2 at p. 1) (“I have

read the transcript of [my] deposition and, upon reviewing again

1

On July 17, 2014, defendant HBV filed a motion in limine to
exclude Dr. Adams’ unsworn statement under penalty of perjury.
(Docket No. 332.) The Court also notes plaintiffs’ reliance on
Dr. Adams’ unsworn expert report at Docket No. 324-6.

Civil No. 12-2024 (FAB)

7

the medical records pertaining to the emergency room stay of Miguel
Ramirez at [HBV] on December 30-31, 2011, I have realized that part
of the testimony given by me at the aforementioned deposition was
incorrect.”)

The Court finds Dr. Adams’ statement to be a “sham

affidavit,” filed only after HBV’s motion for summary judgment,
submitted merely to contradict his earlier statements without
offering any explanation, and offered only to create genuine
disputes of material facts regarding Mr. Ramirez’s medical care at
HBV.

As such, it is inadmissible for summary judgment purposes,

and HBV’s motion in limine at Docket No. 332 is GRANTED.

See 11-56

Moore’s Federal Practice § 56.94[5] (“A party may not create a
genuine dispute as to a material fact by submitting an affidavit or
declaration that merely contradicts the party’s earlier statements,
with no explanation of the conflict.”); Colantuoni v. Alfred
Calcagni & Sons, 44 F.3d 1, 5 (1st Cir. 1994) (“[W]e think it
significant that the affidavit was offered only after defendants
had filed motions for summary judgment. In these circumstances, we
are persuaded that plaintiff’s affidavit should be disregarded in
considering the propriety of summary judgment.”); Law Co. v. Mohawk
Constr. & Supply Co., 577 F.3d 1164, 1169 (10th Cir. 2009) (“[A]n
affidavit may not be disregarded [solely] because it conflicts with
the affiant’s prior sworn statements . . . . We explicitly require
that a district court first determine whether the conflicting
affidavit is simply an attempt to create a sham fact issue before

Civil No. 12-2024 (FAB)

8

excluding it from summary judgment consideration.”) (citations and
internal quotation marks omitted).
Plaintiffs also seek to rely on Dr. Adams’ expert
report in opposing HBV’s motion for summary judgment.
No. 324-6.)

(Docket

Because Dr. Adams’ expert report is unsworn, it is an

inadmissible hearsay document that cannot be considered as part of
the summary judgment record.

See Pack v. Damon Corp., 434 F.3d

810, 815 (6th Cir. 2006) (expert report was “unsworn and thus is
hearsay, which may not be considered on a motion for summary
judgment”); Capobianco v. City of N.Y., 422 F.3d 47, 55 (2d Cir.
2005) (stating that unsworn physician’s letters “generally are
inadmissible hearsay that are an insufficient basis for opposing a
motion for summary judgment”); Garside v. Osco Drug, Inc., 895 F.2d
46, 50 (1st Cir. 1990) (“Hearsay evidence, inadmissible at trial,
cannot be considered on a motion for summary judgment.”).

To be

considered at the summary judgment stage, therefore, Dr. Adams’
expert opinion must be elicited through the testimony of the expert
witness himself, not through his report.
Even without the expert report and sham affidavit,
evidence of Dr. Adams’ opinions are before the Court, as HBV itself
attached the transcript of Dr. Adams’ entire deposition to its
motion in limine at Docket No. 332.

When ruling on a motion for

summary judgment, a court “need consider only the cited materials,
but it may consider other materials in the record.”

Fed. R. Civ.

Civil No. 12-2024 (FAB)
P. 56(c)(3).

9

Although under no duty to ferret through the record,

see Loc. R. 56(e), the Court will consult Dr. Adams’ deposition to
entertain whether plaintiffs establish a prima facie case of
medical malpractice.
3.

Analysis
The Court finds sufficient evidence in the record to

sustain a prima facie case of liability for medical malpractice
against Dr. Rodriguez.

In his deposition, Dr. Adams first sets

forth the minimum standard of professional knowledge and skill
required by medical practitioners in the relevant circumstances:
The standard of care requires that if a physician is
going to start lytic therapy, that the lytic therapy be
started in anticipation of immediate[] intervention. The
reason is, lytic therapy begins the thrombolytic process
of dissolving the clot. It does nothing to relieve the
obstruction. So, it is appropriate for any physician to
start lytic therapy only if there’s going to be a
reasonable expectation that patient is going to get an
intervention.
(Docket No. 332-1 at p. 46.)

Further, he explained that “lytic

therapy is given in anticipation of an intervention . . . [a]nd,
that given alone, is not the standard of care.”

Id. at p. 57.

He

opined that once lytic therapy is administered, the the patient
should be transferred for further treatment. “[I]t was appropriate
to initiate 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.”

Id. at p. 58.

The appropriate time to transfer was “within 90 minutes, because

Civil No. 12-2024 (FAB)

10

you have lytic therapy started, you have the ability to transfer
this patient to a higher level of care, the guidelines say 90
minutes is ideal, but immediately transfer is recommended.” Id. at
p. 61.
Dr. Adams next testified as to the acts or omissions
attributable to both defendants (HBV and Dr. Rodriguez) which
transgressed their duty:
Mr.

Ramirez

within

an

Dr. Rodriguez’s failure to transfer
appropriate

amount

of

time.

“[T]he

guidelines say within 90 minutes [from the time lytic therapy
started,] that patient should be transferred for a PCI.”
No. 332-1 at p. 63.)
HBV],

you

must

then

(Docket

“The key is, if it’s non PCI facility [like
arrange

for

transfer

of

that

immediately to a higher level care for intervention.

patient,
You just

can’t leave someone on lytic therapy for three days, because they
get reperfusion injury.”
that

Dr.

Rodriguez

did

(Docket No. 332-1 at p. 59.)
not

send

Mr.

Ramirez

He opined

for

cardiac

catheterization and surgical treatment in a timely fashion, and
that was a breach of the standard of care.

Id. at p. 91.

Thus,

plaintiffs put forth sufficient evidence to establish the second
element of a prima facie medical malpractice claim.
Finally, when probed about the causal nexus between
the patient’s death and treatment received at HBV, Dr. Adams
testified that:
the treatment of the myocardium with a thrombolytic agent
requires that intervention be performed timely. And time

Civil No. 12-2024 (FAB)

11

lost, whether it’s a day, two days, loses the recruitment
ability of myocardial cell mass. So, the hospital has a
relationship to the amount of muscle Mr. Ramirez had left
before his first cardiac catheterization and the amount
of muscle that was left after his failed stent
placements.
(Docket No. 332-1 at pp. 90–91.)

He further stated, “My opinion

is, if this patient would have been treated in a timely fashion by
Dr. Rodriguez and your hospital [HBV], this patient would be alive
today.”

Id. at p. 91.

Dr. Adams explicitly determined that

Mr. Ramirez lost between 20 and 25% of myocardium mass as a result
of Dr. Rodriguez’s alleged negligence.

Id. at p. 101.

He thus

alleged a sufficient causal nexus between the breach and the
claimed harm, meeting the third element of a prima facie case.
In light of Dr. Adams’ deposition testimony, the
Court finds sufficient evidence to support a prima facie case of
medical malpractice against Dr. Rodriguez pursuant to Puerto Rico
law. Moreover, because “[i]n a medical malpractice case, issues of
deviation from the medical care are questions of fact that must be
decided by the jury,” Morales v. Monagas, 723 F. Supp. 2d 416, 423
(D.P.R.

2010)

(Gelpi,

J.)

(citing

Cortes-Irizarry,

111

F.3d

at 189), the question of whether Dr. Rodriguez provided negligent
medical care to Mr. Ramirez is not to be resolved on summary
judgment.

Morrissey v. Procter & Gamble Co., 379 F.2d 675, 677 n.2

(1st Cir. 1967) (“[I]ssues of fact are not to be resolved on
summary judgment.”).

Civil No. 12-2024 (FAB)
B.

12

The Hospital’s Liability
It has long been held under Puerto Rico law that a

hospital may be held vicariously liable for the actions of employee
physicians. Marquez-Vega v. Martinez Rosado, 16 P.R. Offic. Trans.
487, 116 D.P.R. 397, 404–406 (1985). Given the evolutionary nature
of hospitals, courts in Puerto Rico also extend vicarious liability
“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.”

Casillas-Sanchez v. Ryder Mem. Hosp., Inc., 960 F.

Supp. 2d 362, 366 (D.P.R. 2013) (Besosa, J.).

Because a hospital

also owes an independent duty of care to patients, it may face
liability

for

its

own

negligence

as

well.

Marquez-Vega

v.

Martinez-Rosado, 16 P.R. Offic. Trans. 487; Casillas-Sanchez, 960
F. Supp. 2d at 366.

As discussed above, plaintiffs seek to prove

that Dr.

breached

Rodriguez

her

standard

of

medical

care

by

administering lytic therapy but failing to transfer Mr. Ramirez to
a PCI facility timely for further treatment. Because Dr. Rodriguez
had privileges as a consulting physician in cardiology at HBV
during the time she treated Mr. Ramirez, (Docket No. 298-2 at
p. 13), and because Mr. Ramirez sought medical aid directly from
HBV, the hospital faces liability for Dr. Rodriguez’s alleged
negligence.

Accordingly the Court DENIES HBV’s request that

summary judgment be granted as to all claims against it.

Civil No. 12-2024 (FAB)

13

III. Conclusion
The Court GRANTS IN PART and DENIES IN PART HBV’s motion for
summary judgment, joined by Dr. Rodriguez and SIMED 4.
No. 306.)

(Docket

All claims for HBV’s liability based on the negligence

of physicians other than Dr. Rodriguez are DISMISSED.

Plaintiffs

may pursue liability against HBV, however, based on Dr. Rodriguez’s
medical care to Mr. Ramirez.

HBV’s motion in limine at Docket

No. 332 is GRANTED; plaintiffs are precluded from using Dr. Adams’
unsworn statement, included as Exhibit B to Docket No. 324, to
support their motion for summary judgment and at trial.
IT IS SO ORDERED.
San Juan, Puerto Rico, July 23, 2014.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE