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

Filing 352

MEMORANDUM AND ORDER re 273 Motion for Partial Summary Judgment; and re 309 Motion for Summary Judgment. Both plaintiffs' and defendant CCCPRC's motions for summary judgment (Docket Nos. 273 and 309), are DENIED. Signed by Judge Francisco A. Besosa on 08/13/2014. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MIGUEL A. RAMIREZ-ORTIZ,
JOSE IRIZARRY,
JAVIER IRIZARRY-ORTIZ and
ELIEZER IRIZARRY-ORTIZ,
Plaintiffs,
CIVIL NO. 12-2024 (FAB)

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

MEMORANDUM AND ORDER1
BESOSA, District Judge.
Pending before the Court are: (1) the motion for partial
summary judgment filed by plaintiffs2 (Docket No. 273) against
defendant Corporacion del Centro Cardiovascular de Puerto Rico y
del Caribe (“CCCPRC”), CCCPRC’s opposition (Docket No. 278), and
plaintiffs’ reply (Docket No. 320), as well as (2) the motion for

1

Matthew D’Auria, a second-year student at the University of
Virginia School of Law, assisted in the preparation of this memorandum
and order.
2

Miguel A. Ramirez-Ortiz (“Miguel A. Ramirez”) is the biological
son of Miguel Ramirez-Torres (“Mr. Ramirez”) and Ramonita Ortiz-Sanabria
(“Ramonita Ortiz”).
Jose Irizarry-Ortiz (“Jose Irizarry”), Javier
Irizarry-Ortiz (“Javier Irizarry”), and Eliezer Irizarry-Ortiz (“Eliezer
Irizarry” and, together with Miguel A. Ramirez, Jose Irizarry, and Javier
Irizarry, “plaintiffs”), are sons of Ramonita Ortiz who were each raised
by Mr. Ramirez from an early age. Plaintiffs brought suit for alleged
acts and/or omissions in the medical treatment provided to Mr. Ramirez,
which they claim resulted in his premature death. Thus, they assert a
cause of action for negligence pursuant to articles 1802 and 1803 of the
Puerto Rico Civil Code.

Civil No. 12-2024 (FAB)
summary

judgment

2

filed

by

CCCPRC

(Docket

No.

309)

against

plaintiffs, plaintiffs’ opposition (Docket No. 326), and CCCPRC’s
reply (Docket No. 349).

Because there exists a genuine dispute

between the parties over the exact nature of the relationship
between

Mr.

Ramirez,

CCCPRC,

and

doctors

Edwin

Perez-Marrero

(“Dr. Perez-Marrero”) and Damian Grovas-Abad (“Dr. Grovas-Abad”) at
the time of Mr. Ramirez’s treatment at CCCPRC, the plaintiffs’
motion for summary judgment is DENIED. CCCPRC’s motion for summary
judgment is also DENIED because it (a) emphasizes the same factual
dispute outlined by plaintiffs’ motion, and also (b) demonstrates
the existence of another genuine dispute of material fact regarding
whether the conduct of certain CCCPRC nurses who participated in
the medical treatment of Mr. Ramirez satisfied the applicable
standard of care.
I.

Rule 56 Standard of Review
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 enter 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.”

Cortes-Irizarry

v. Corporacion Insular de Seguros, 111 F.3d 184, 187 (1st Cir.
1997).

A dispute is “genuine” when it “could be resolved in favor

Civil No. 12-2024 (FAB)
of either party.”

3

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

affidavits, if any’” which support its motion.
at 323 (citing Fed. R. Civ. P. 56(c)).

with

the

Celotex, 477 U.S.

Once a properly supported

motion has been presented, the burden shifts 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).

In

making this assessment, the Court must take the entire record in
the light most favorable to the non-moving party and draw all
reasonable inferences in its favor.

Farmers Ins. Exch. v. RNK,

Inc., 632 F.3d 777, 779-80 (1st Cir. 2011).
II.

A Hospital’s Liability for Alleged
Employee, Privileged Physicians

Malpractice

of

Non-

In their complaint, plaintiffs claim that defendant CCCPRC is
liable

for

the

negligent

conduct

of

Dr.

Perez-Marrero

and

Dr. Grovas-Abad, both of whom “failed to provide appropriate
treatment for Mr. Ramirez’ cardiovascular condition,” causing his
untimely death.

(Docket No. 85 at p. 14.)

Dr. Perez-Marrero and

Civil No. 12-2024 (FAB)

4

Dr. Grovas-Abad are not employees of CCCPRC, but rather are private
practice interventional cardiologists with certain hospitalization
privileges at CCCPRC. (Docket No. 310 at p. 2.)

Plaintiffs assert

that CCCPRC is nonetheless liable for the supposed negligence of
each physician because Mr. Ramirez entrusted his health “first and
foremost” to the hospital, and not to the individual doctors. (Id.
at pp. 9 & 32; Docket No. 327 at pp. 3 & 25.)

It is on this

particular issue of CCCPRC’s vicarious liability — and not on the
underlying issue of the physicians’ individual negligence — that
plaintiffs currently move for summary judgment.

Defendant CCCPRC

argues that plaintiffs’ motion for summary judgment must be denied
because “the facts set forth in [plaintiffs’] [s]tatement of
[u]ncontested [m]aterial [f]acts as being uncontested are anything
but . . . .”

(Docket No. 278 at p. 2.)

Both in its opposition and

its own motion for summary judgment, CCCPRC denies liability,
arguing that Mr. Ramirez was, at all times during his medical
treatment at the hospital, a “private patient” of Dr. PerezMarrero.
A.

(Docket No. 278 at p. 12; Docket No. 309 at p. 20.)
Legal Standard
Pursuant to Puerto Rico law, “whether a hospital may be

held

liable

for

the

malpractice

committed

exclusively

by

a

physician who is not an employee [but is granted the privilege of
using the hospital’s facilities for his or her private patients]
depends on the patient-hospital relationship” and “whether the

Civil No. 12-2024 (FAB)

5

patient entrusted his or her health to the hospital or to the
physician.”

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

Supp. 2d 362, 365-66 (D.P.R. 2013) (Besosa, J.) (citing MarquezVega v. Martinez-Rosado, 16 P.R. Offic. Trans. 487 (1985)3). Thus,
“when a person goes directly to a hospital for medical treatment
and the hospital ‘provides’ the physician who treats him [or her],”
the hospital is vicariously liable for the physician’s negligence
because the individual seeking medical aid has entrusted his or her
health to the hospital as an institution.
Offic. Trans. 487.

Marquez-Vega, 16 P.R.

Under that framework, “it makes no difference

whether the attending physician is a hospital employee or not, or
a physician granted a ‘franchise’ to offer his [or her] specialized
medical services to the hospital patients, or a physician belonging
to the hospital staff and called in for consultation to treat the
patient, etc.”

Id.

On the other hand, when a patient “goes

directly to a physician’s private office, agrees with him [or her]
as to the treatment he or she is going to receive, and goes to a
given hospital on the physician’s recommendation merely because
said institution is one of several which the physician has the
privilege of using,” the hospital is not liable for the negligent
conduct of the physician because the patient “first and foremost

3

“The official translations of many Puerto Rico Supreme Court cases
. . . do not contain internal page numbers.
Accordingly, we cannot
include pin-point citation references for those cases.” Citibank Global
Markets, Inc. v. Rodriguez-Santana, 573 F.3d 17 (1st Cir. 2009).

Civil No. 12-2024 (FAB)

6

entrust[s] [his or her] health” to the physician.

Id.

There, “the

main relationship established is between the patient and the
physician, while the relationship established between the patient
and the hospital is of a supplementary and incidental nature.” Id.
B.

Application
Upon review of the parties’ submissions, the Court finds

that genuine issues of material fact exist regarding the nature of
Mr. Ramirez’s relationship with CCCPRC and doctors Perez-Marrero
and Grovas-Abad at the time Mr. Ramirez received medical treatment
at CCCPRC.

The facts available in the record, for example, do not

clearly demonstrate the exact manner in which Mr. Ramirez’s case
came to the attention of either Dr. Perez-Marrero or CCCPRC as an
institution.

CCCPRC argues that Mr. Ramirez was admitted to the

hospital

a

as

“private

patient”

of

Dr.

Perez-Marrero

after

Dr. Karen Rodriguez (“Dr. Rodriguez”), a physician at Hospital
Bella Vista, “consulted” with him directly about Mr. Ramirez’s
condition.

(Docket No. 278 at p. 3; Docket No. 279 at pp. 4-5.)

It is unclear, however, whether a line of communication was made
directly and initially with Dr. Perez-Marrero, or whether it came
about only after Dr. Rodriguez called CCCPRC’s general number, due
to

the

PCI4

facility’s

known

services,

and

looking

for

available interventional cardiologist with whom to confer.

any

In her

deposition, Dr. Rodriguez implies the occurrence of the latter

4

Percutaneous coronary intervention.

Civil No. 12-2024 (FAB)
scenario,

stating

7

that

Dr.

Perez-Marrero

“was

the

only

[interventional cardiologist] [she] found out was available from
the Hospital Cardiovascular.”

(Docket No. 274-1 at p. 2.)

An

excerpt of Dr. Rodriguez’s deposition also reveals: “I then called
Dr. Edwin Perez in order to, as established by the guidelines,
evaluate the catheterization for possible angioplasty.”

(Docket

No. 310-5 at p. 4.)
The degree of relationship between Mr. Ramirez and both
Dr. Perez-Marrero and CCCPRC is important to determine whether the
patient went “directly to a hospital for medical treatment and the
hospital ‘provide[d]’ the physicians who treat[ed] him.”
Vega, 16 P.R. Offic. Trans. 487.

Marquez-

Extrapolating from the relevant

case law, the Court finds that an avenue of vicarious liability may
exist against a hospital when a patient is transferred from another
hospital to the care of a privileged, non-employee physician at the
hospital, and the transfer is effectuated through a call to the
hospital itself in search of specialized PCI-services that the
hospital is certified to provide.

When a patient under those

circumstances receives treatment from a specific doctor solely by
virtue of a hospital’s referral, and he or she does not demonstrate
any meaningful

level

of

participation

in the

selection

of a

particular physician, the patient may be seen to have entrusted his
or

her

health

first

and

foremost

to

the

hospital

as

an

Civil No. 12-2024 (FAB)
institution.5
manner

in

8

Resolution of the disputes over (1) the precise

which

Dr.

Rodriguez

began

her

correspondence

with

Dr. Perez-Marrero, and (2) the degree of importance of CCCPRC’s
services as a PCI facility to Mr. Ramirez’s treatment, are vital to
establish to whom Mr. Ramirez truly entrusted his health, and,
consequently, to determine whether CCCPRC is vicariously liable for
the alleged acts of malpractice.
issues

of

material

fact

that

are

Because the matter involves
not

readily

reconciled

by

information available in the record, the question is to be resolved
at trial.

The plaintiffs’ motion for summary judgment, therefore,

is appropriately DENIED.

5
In extending the rule of hospital liability to a patient whose
current physician contacts the hospital in search of a hospital’s
specialist, the Court reiterates the importance of the nature of the
relationship existing between the patient and the physician prior to the
negligent conduct.
Determinations of vicarious liability in the
applicable precedent have relied heavily on the amount of personal
interaction between doctor and patient prior to an instance of
malpractice, with less significant levels of interaction supporting the
imposition of liability against the hospital. See Mercado-Velilla v.
Asociacion Hosp. del Maestro, 902 F. Supp. 2d 217, 237 (D.P.R. 2012)
(Garcia-Gregory, J.) (finding hospital vicariously liable for negligence
of non-employee physician in part because there was “no indication that
plaintiff had ever seen either of the doctors prior to [her] visits” to
the hospital); Recio v. Hosp. del Maestro, 882 F. Supp. 220, 225 (D.P.R.
1995) (Acosta, J.) (dismissing claims of vicarious liability against
hospital for negligent acts of non-employee physician where plaintiff —
who had previously received medical treatment from the physician at a
private, unaffiliated clinic — went to hospital’s emergency room pursuant
to physician’s instructions.)
Where, as alleged here, a patient is
transferred to a hospital in the wake of a phone call to the hospital’s
general number and in search of the hospital’s PCI facilities, personal
interaction between the patient and the individual physician prior to the
patient’s arrival may not be significant.
For a hospital to avoid
liability in that scenario, evidence must be presented to determine
whether the patient has entrusted his or her well-being to the physician
specifically, rather than to the hospital generally.

Civil No. 12-2024 (FAB)
To

the

9

extent

that

it

advances

similar

arguments,

CCCPRC’s motion for summary judgment is also DENIED.

CCCPRC

additionally asserts that, as private practice physicians with
privileges at CCCPRC, Dr. Perez-Marrero, Dr. Grovas-Abad, and
Dr. Ivan Gonzalez-Cancel each “can evaluate and accept individuals
for medical care as [their] private patients and thereafter make
arrangements

for

[their]

private

patients

treatment at the CCCPRC facilities.”

to

receive

medical

(Docket No. 309 at p. 21.)

Simply by virtue of the doctors’ independence and Mr. Ramirez’s
admittance as Dr. Perez-Marrero’s private patient at “all times
when he was receiving medical services at CCCPRC,” CCCPRC claims
that the

hospital

for

the

malpractice acts or omissions of the physicians in question.

Id.

at pp. 21-22.

cannot

be

held vicariously

liable

It offers the following as primary evidence of the

“private patient” relationship:

(1) an unsworn statement under

penalty of perjury by Dr. Jose Novoa Loyola, CCCPRC’s medical
director (Docket No. 310-4); (2) the deposition testimony of
Dr. Novoa (Docket No. 310-17); (3) the deposition testimony of
Dr. Perez-Marrero (Docket No. 310-3); and (4) a physician’s order
from Hospital Bella Vista (HBV) stating that the patient was to be
transferred to CCCPRC “under care of Dr. Edwin Perez for LHC [left
heart catheterization],
intervention].”

+

possible

(Docket No. 310-6).

PCI

[percutaneous

coronary

That evidence, however, does

not conclusively establish that Mr. Ramirez was Dr. Perez-Marrero’s

Civil No. 12-2024 (FAB)

10

private patient such that he entrusted his health specifically to
the physician.
Defendant CCCPRC’s interpretation that when a patient is
a private patient of the non-employee physician, categorically no
hospital liability may attach, (Docket No. 310 at p. 20) is simply

Civil No. 12-2024 (FAB)
too narrow a reading of the applicable precedent.6

11
The Supreme

Court of Puerto Rico in Marquez-Vega was specifically faced with

6

CCCPRC relies heavily on the Supreme Court of Puerto Rico’s
decision in Fonseca v. Hosp. HIMA, 184 D.P.R. 281 (2012) to argue that
a hospital “has no liability at all” for malpractice acts or omissions
of non-employee physicians “if the patient is a private patient.”
(Docket No. 309 at p. 20.) CCCPRC argues that Mr. Ramirez was Dr. PerezMarrero’s private patient at all times during his treatment, and offers
several pieces of information to support that claim, including that:
(a) Mr. Ramirez was not a patient “addressed” to Dr. Perez-Marrero,
(b) Dr. Perez-Marrero had the ability to evaluate and accept or reject
Mr. Ramirez for treatment independently, and (c) Dr. Perez-Marrero needed
to fill out and present the necessary paperwork and “orders” to the
CCCPRC staff before the transfer of Mr. Ramirez could proceed. Id.
From a purely technical standpoint, these facts could support
defendant’s claim that Mr. Ramirez was Dr. Perez-Marrero’s “private
patient” at the time of his treatment.
The standard of vicarious
liability promulgated by the Supreme Court of Puerto in Marquez-Vega —
that of patient entrustment — however, makes clear that the true point
of consideration should be the patient-hospital versus the patientphysician relationship. See 16 P.R. Offic. Trans. 487 (“[T]he correct
solution to this problem lies in pinpointing who did the patient — first
and foremost — entrust with his health: the hospital or the physician.”)
Here, while Mr. Ramirez may have been labeled a private patient of
Dr. Perez-Marrero pursuant to the hospital’s internal procedural
regulations, the alleged lack of personal interaction between doctor and
patient prior to treatment at CCCPRC does not foreclose the possibility
that Mr. Ramirez entrusted his healthcare to the hospital generally,
rather than to Dr. Perez-Marrero specifically. Thus, the issue at trial
will be whether Mr. Ramirez entrusted his care to the hospital or to the
physician, taking into account how Mr. Ramirez came to be treated at
CCCPRC and whether the hospital “provided” the physicians who treated
him. See id.
The Supreme Court of Puerto Rico has acknowledged “the complexity
of the new internal relationships between hospitals and physicians” and
how such intricacy has “brought about in the United States a deep change
in the doctrine dealing with the hospital’s liability towards patients
and the acts of professional malpractice occurring in its facilities.”
Marquez-Vega, 16 P.R. Offic. Trans. 487. This increased complexity has
seemingly produced an inherent difficulty in discerning a legal
definition for the term “private patient.” Because the Supreme Court of
Puerto Rico’s rule of non-liability for “private patients” does not
square completely with its principle of entrustment, courts are left to
reconcile both positions when engaging in vicarious liability
determinations.

Civil No. 12-2024 (FAB)

12

the question of whether “the hospital may be held liable for the
malpractice committed exclusively by a physician not employed by
the hospital, which physician was granted the privilege of using
the hospital facilities for his private patients.”
Trans. 487 (emphasis added).

16 P.R. Offic.

Rather than issuing a categorical

rule that a private patient-doctor relationship precludes hospital
liability — as CCCPRC reads the opinion to do — the Supreme Court
of Puerto Rico indicated that the better point of focus is, in
essence, to compare the patient-physician and patient-hospital
relationships.

Id. (“[T]he correct solution to this problem lies

in pinpointing who did the patient — first and foremost — entrust
with his health:

the hospital or the physician.”).

“[W]hen a

person goes directly to a hospital for medical treatment and the
hospital ‘provides’ the physicians who treat him,” joint liability
for a hospital and private physician attaches because of the level
of patient-hospital relationship.

Id.

Four reasons underlie the

imposition of hospital liability in that situation.

First, “the

hospital is the one that ‘provides’ the service of the physician,
and the patient usually has no option or participation in said
choice.” Id.

Second, “from the patient’s point of view[,] what he

has in ‘front’ of him [or her] is the institution as such, not
physicians independent and distinct from each other and from the
hospital.”
between

the

Id.

Third, “the main relationship established is

patient

and

the

hospital

administration.”

Id.

Civil No. 12-2024 (FAB)

13

Finally, “the hospital is the main beneficiary of the work done by
the physician.”
As

Id.

the

Court

has

noted

above,

the

circumstances

surrounding Mr. Ramirez’s transfer to CCCPRC present genuine issues
of material fact that are heavily disputed by the parties.
summary

judgment

record

does

not

Mr. Ramirez entrusted his health.

clearly

establish

to

The
whom

It is disputed whether this was

a type of situation where CCCPRC “provided” the service of the
physicians and whether Mr. Ramirez had “no option or participation
in

said

choice.”

Marquez-Vega,

16

P.R.

Offic.

Trans.

487.

Although Dr. Perez-Marrero affirms that he “accepted the case and
transferred the patient” after his consultation with Dr. Rodriguez,
that

transfer

was

accomplished

within

24

hours

of

their

conversation without any contact occurring between Dr. PerezMarrero and Mr. Ramirez prior to the treatment.
at p. 22.)

(Docket No. 310-3

As previously discussed, an absence of personal

interaction between doctor and patient suggests that a patient has
entrusted his health to the hospital generally, and not to the
individual physician to whom the hospital has referred him or her.
Evidence is thus needed regarding whether Mr. Ramirez, through
Dr. Rodriguez, can be said to have gone “directly to the hospital,
[and] the main relationship established [was] between the patient
and the hospital administration.”

Marquez-Vega, 16 P.R. Offic.

Trans. 487. Furthermore, one of HBV’s physician’s orders indicates

Civil No. 12-2024 (FAB)

14

that Mr. Ramirez was to be transferred to CCCPRC “under care of
Dr. Edwin Perez for LHC [left heart catheterization], + possible
PCI [percutaneous coronary intervention],” (Docket No. 310-6);
plaintiffs’ expert witness, Dr. Carl Warren Adams (“Dr. Adams”),
testified that Mr. Ramirez’s transfer occurred because he was in
need of a PCI facility, (Docket No. 321-1 at pp. 58, 61, 75, 83);
and CCCPRC’s clinical director stated that “[t]he hospital, the
rule[] is we cannot accept any patient if there is no physician to
receive them.

That’s the rule,” (Docket No. 310-17 at p. 4).

Based on that evidence, it is conceivable that the hospital and
Dr. Perez-Marrero came as a package deal to Mr. Ramirez: the
physician to perform a specialized treatment and the hospital as a
“total health care institution and not a building where health-care
professionals go privately about their business with no further
contact with each other.” Marquez-Vega, 16 P.R. Offic. Trans. 487.
Because genuine issues of material fact exist regarding whether
Mr. Ramirez “[went] directly to a hospital for medical treatment
and the hospital ‘provide[d]’ the physicians who treat[ed] him,”
id., summary judgment is not warranted.
III. The Hospital’s Liability for Acts or Omissions of Employee
Nurses
Plaintiffs’ expert, Dr. Adams, opines that CCCPRC is liable
for its failure to enact a protocol directing nurses to notify a
surgeon when his or her surgical orders are subsequently modified
by another physician.

(Docket No. 310-20 at p. 3.)

Defendant

Civil No. 12-2024 (FAB)

15

argues that it cannot be liable for the omissions in question
because

the

challenged

protocol

is

neither

“an

established

practice” at CCCPRC nor a required procedure under Puerto Rico law.
(Docket No. 309 at pp. 24-25.)7

Plaintiffs respond that defendant

incorrectly identifies the proper standard of care to be applied to
the conduct of the CCCPRC nurses involved in this case.

(Docket

No. 326 at pp. 14-16.)
A.

Standard of Care Applicable to Nursing Staff
Puerto Rico courts have articulated the duty owed to a

hospital patient as that “level of care which, recognizing the
modern means of communication and education, meets the professional
requirements generally acknowledged by the medical profession.”
Otero v. United States, 428 F. Supp. 2d 34, 46 (D.P.R. 2006)
(Dominguez, J.) (analyzing a nurse’s breach of duty of care to a
patient).

“The

standard

is

considered

national

generally be proven through expert testimony.”

Id.

and

should

With respect

to the standard of care owed specifically by nurses, the Supreme
Court of Puerto Rico has further indicated that “[a] nurse should

7

CCCPRC also attacks the credibility of Dr. Adams, asserting that
he “has never been qualified as an expert . . . on the governing
commonwealth-wide standard of care governing nurses within Puerto Rico.”
(Docket No. 309 at pp. 23-24.) Having reviewed Dr. Adams’ curriculum
vitae and deposition testimony regarding his qualifications, however, the
Court finds Dr. Adams to be qualified as an expert for summary judgment
purposes. See Poulis-Minott v. Smith, 388 F.3d 354, 359 (1st Cir. 2004)
(“[A]n expert must be qualified to testify based on the expert’s
knowledge, skill, experience, training or education.
It is the
responsibility of the trial judge to act as gatekeeper and ensure that
the expert is qualified before admitting expert testimony.”) (internal
citations omitted).

Civil No. 12-2024 (FAB)

16

exercise a certain standard of reasonable care to see that no
unnecessary harm comes to the patient, and said standard of care
must be the same as the standard of care exercised by other nurses
in the locality or similar localities.” Morales v. Monagas, 723 F.
Supp. 2d 416, 422 (D.P.R. 2010) (Gelpi, J.) (citing Blas Toledo v.
Hospital Nuestra Señora de la Guadalupe, 146 D.P.R. 267, 307, slip
op. at 21 (1998)); Pages-Ramirez v. Hospital Español Auxilo Mutuo
de P.R., Inc., 547 F. Supp. 2d 141, 149 (D.P.R. 2008) (Pieras, J.).
“Nurses . . . have the unavoidable duty to fulfill medical orders
with the required urgency and in accordance with each patient’s
particular circumstances.” Morales, 723 F. Supp. 2d at 422 (citing
Ponce v. Ashford Presbyterian Comm. Hosp., 189 F.R.D. 31, 33
(D.P.R. 1999)).
B.

Application
The parties disagree about whether the failure of certain

CCCPRC nurses to inform Dr. Gonzalez-Cancel of material changes to
his pre-operative orders constituted a departure from the governing
standard

of

care.

Resolution

of

this

issue

requires

a

determination as to whether the conduct of the CCCPRC nurses
adhered to

a

“certain

standard

of

reasonable care”

aimed at

ensuring that “no unnecessary harm comes to the patient.”

In his

deposition, Dr. Adams suggests that it was not, stating that CCCPRC
“should have the proper guidelines and supervision in place” to
ensure that a “surgeon gets notified if someone is changing his

Civil No. 12-2024 (FAB)

17

orders on his patient and has surgery.”
p. 3.)

(Docket No. 310-20 at

The Court agrees with plaintiffs that compliance with this

standard of care “would require a nurse, in the preoperative
context, to refuse to change an order by the surgeon without
his/her knowledge.”

(Docket No. 326 at p. 17.)

Channeling

Dr. Adams’ statements in his deposition, the promulgation of such
a simple protocol would seem to be a dictate of “common sense” in
all localities.

(Docket No. 310-20 at p. 4.)

The Court finds that

Dr. Adams’ testimony, therefore, sufficiently advances the standard
of care applying to nurses in Puerto Rico.

Because “[i]n a medical

malpractice case, issues of deviation from the medical standard of
care are questions of fact that must be decided by the jury,”
Morales, 723 F. Supp. 2d at 423 (citing Cortes–Irizarry, 111 F.3d
at 189), defendant’s motion for summary judgment is DENIED.
IV.

Conclusion
There exists a genuine dispute between the parties over

whether Mr. Ramirez entrusted his health first and foremost to
CCCPRC at the institutional level, or to Dr. Perez-Marrero as a
private patient.

Whether CCCPRC nurses involved in the care of

Mr. Ramirez violated the standard of care also remains a subject of
legitimate

controversy.

Accordingly,

both

plaintiffs’

and

defendant CCCPRC’s motions for summary judgment, (Docket Nos. 273
and 309), are DENIED.

Civil No. 12-2024 (FAB)

18

IT IS SO ORDERED.
San Juan, Puerto Rico, August 13, 2014.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE