Quinones-Torres et al v. Radiation Oncology Group, PSC et al
Filing
86
ORDER denying 70 Motion for Summary Judgment. The parties are strongly advised to settle the case. Signed by US Magistrate Judge Bruce J. McGiverin on 5/1/2015. (jm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
SONYA QUIÑONES-TORRES, et al.,
Plaintiffs,
v.
Civil No. 13-1673 (BJM)
RADIATION ONCOLOGY GROUP, PSC,
et al.,
Defendants.
OPINION AND ORDER
Plaintiffs Sonya Quiñones-Torres (“Quiñones”), and her minor son L.L.G.Q.
(collectively, “plaintiffs”) filed an amended complaint for medical malpractice against
Radiation Oncology Group, PSC, Dr. José N. Correa (“Dr. Correa”) and his conjugal
partnership, Caribbean Imaging and Radiation Treatment Center, Inc. (“CIRT”), Admiral
Insurance Company (“Admiral”, CIRT’s insurance carrier), and other co-defendants.
(Docket No. 43). Plaintiffs’ claims arise under Articles 1802 and 1803 of the Puerto Rico
Civil Code, P.R. Laws Ann. Tit. 31 §§ 5141-5142. They seek monetary damages for
defendants’ alleged negligence in providing medical care to Quiñones. Id. Following
discovery, including desposition of Quiñones, CIRT and Admiral moved for summary
judgment as to all claims, claiming that the causes of action raised against them were
time-barred. (Docket No. 70). Plaintiffs opposed the motion. (Docket No. 73-74).
CIRT and Admiral filed a reply to the opposition, and the plaintiffs filed a surreply.
(Docket No. 80-81). For the reasons that follow, the motion for summary judgment is
denied.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “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 only if it “might affect the outcome of
Quiñones-Torres, et al. v. Radiation Oncology Group, PSC, et al.
Civil No. 13-1673 (BJM)
2
the suit under the governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986), and “[a] ‘genuine’ issue is one that 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 court does not
weigh facts, but instead ascertains whether the “evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Leary v. Dalton, 58 F.3d 748, 751 (1st
Cir. 1995).
The movant must first “inform[] the district court of the basis for its motion,” and
identify the record materials “which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); R. 56(c)(1).
If this threshold is met, the opponent “must do more than simply show that there is some
metaphysical doubt as to the material facts” to avoid summary judgment. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party
may not prevail with mere “conclusory allegations, improbable inferences, and
unsupported speculation” for any element of the claim. Medina-Muñoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). Still, the court draws inferences and evaluates
facts “in the light most favorable to the nonmoving party,” Leary, 58 F.3d at 751, and the
court must not “superimpose [its] own ideas of probability and likelihood (no matter how
reasonable those ideas may be) upon the facts of the record.” Greenburg v. P.R. Maritime
Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987).
BACKGROUND
The factual record is summarized here under Local Rule 56.1 CIRT and Admiral
filed a statement of uncontested facts. (Docket No. 70-10, “Def. St.”). Plaintiffs opposed
1
Local Rule 56 requires parties at summary judgment to supply and rebut brief numbered statements of fact,
pinpoint-citing admissible record evidence. It “relieve[s] the district court of any responsibility to ferret through the
record” in search of genuine factual disputes, CMI Capital Market Inv. v. González-Toro, 520 F.3d 58, 62 (1st Cir.
2008), and prevents parties from making the court do their homework for them. Mariani-Colón v. Dep’t of Homeland
Sec., 511 F.3d 216, 219 (1st Cir. 2007). Failing to properly oppose a statement of fact allows the court to deem it
uncontested. Id.
Quiñones-Torres, et al. v. Radiation Oncology Group, PSC, et al.
Civil No. 13-1673 (BJM)
3
and offered additional facts. (Docket No. 73-1, “Pl. St.” and “Pl. Add. St.”). CIRT and
Admiral opposed the additional facts. (Docket No. 80, “Def. Opp.”). Plaintiffs filed a
surreply. (Docket No. 81). Both sides offered as evidence excerpts of Quiñones’s
deposition testimony (“Deposition”). (Docket Nos. 70-2, 73-2).
For purposes of this motion for summary judgment, the court takes the following
facts as true.
From January 27 to April 5, 2011, Quiñones received thirty-five
radiotherapy sessions at CIRT with Dr. Correa, contemporaneous with chemotherapy
with Dr. Jiménez. (Def. St., ¶ 6, 12; Exhibit 2 - CIRT’s “Patient Data Sheet” at Docket
No. 70-3). During the course of the radiotherapy, she felt that the radiation was burning
her. She experienced vaginal and anal swelling and discharge, experienced bleeding
through her urine, her urine passageway was sometimes clogged with a pus-like
substance that burned her urine-hole area, and vaginally discharged “bits and pieces” of
her bladder. Her buttocks were burned. She was also diagnosed with and treated for
herpes zoster. (Def. St., ¶ 7-9; Pl. St. ¶8-9; Pl. Add. St., ¶ 5-8). She stopped having
sexual relations with her consensual partner in February. (Def. St., ¶ 7; Pl. St., ¶ 7).
To Quiñones’s best recollection, the swelling and bleeding began approximately
by her fifth radiotherapy session in February 2011. (Def. St., ¶ 11; Pl. Add. St., ¶ 1;
Exhibit 2 at Docket No. 70-3, p.2). Her urinary bleeding would sometimes stop. (Pl.
Add. St., ¶ 2; Deposition p. 106-107). At around her fifth radiotherapy session, she told
Dr. Correa that she bled when urinating. Dr. Correa recommended that she sit on cold ice
water baths, and continue treatment. (Pl. Add. St., ¶ 2, 4; Deposition, p. 105-106; Exhibit
IV - CIRT “Progress Notes” dated February 17, 2011 at Docket No. 73-5, p. 3).
Quiñones also complained to Dr. Correa’s nurse, who reassured her that the bleeding
would pass. (Pl. Add. St., ¶ 3). “She was the one that told me, ‘Girlfriend, calm down,
this is going to pass.’”
(Deposition p. 108 line 4-6).
recommendation, Quiñones continued with the radiotherapy.
As per Dr. Correa’s
Quiñones-Torres, et al. v. Radiation Oncology Group, PSC, et al.
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4
Around halfway through her treatment (February or March 2011), Quiñones told
Dr. Jiménez’s nurse that she had blood in her urine, and the nurse told her to speak with
Dr. Correa because the symptoms were related to the radiotherapy and not with the
chemotherapy. (Def. St., ¶ 12; Pl. St., ¶ 12). Quiñones then spoke with Dr. Correa about
her symptoms and what Dr. Jiménez’s nurse had told her. “I said to him, ‘Correa, she
says that they have nothing to do with the bleeding. …. that you have to do with the
bleeding. That you are the ones who are burning me up.’ … He continued to fill out the
papers and he gave me more Percocet for the pain.” (Def. St., ¶ 13; Deposition, p. 111112).
On or about March, 2011, Quiñones told Dr. Correa that she wanted to stop the
radiotherapy because of all the symptoms she was suffering (including blood in her urine,
swollen and burnt vaginal and anal area with a pus-like substance that burned when she
urinated, and discharge of bladder pieces) and he told her “[t]o not stop the radio. To
continue until the 362 were completed. And I said I couldn’t do it.” (Def. St., ¶ 14;
Deposition, p. 118-119, 135, 138). It is not clear from the record when Dr. Correa
examined her vagina and buttocks, but Quiñones recalled seeing blood in his gloves. (Pl.
Add. St., ¶ 6; Deposition p. 135). Quiñones would also discuss with other cancer patients
in Dr. Correa’s office, and separately with a family member who underwent radiotherapy
and survived cancer, about their common symptoms. (Pl. Add. St., ¶ 9; Deposition p.
139-141). She continued with the radiotherapy treatment. Her last session was April 5,
2011, for a total of 35 radiotherapy sessions. (Exhibit 2 at Docket No. 70-3, p. 2).
During her last visit with Dr. Jiménez, he told her that she was cancer-free. (Pl. Add. St.,
¶ 10).
2
The record reflects that she completed 35 radiotherapy sessions. (Exhibit at Docket No. 70-3, p. 2). In her
deposition, Quiñones stated that Dr. Correa told her to complete 36 radiotherapy sessions. (Deposition, p. 118).
Quiñones-Torres, et al. v. Radiation Oncology Group, PSC, et al.
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By June, 2011, she knew that her symptoms and suffering were caused by the
radiotherapy treatment. (Def. St., ¶ 15; Pl. St., ¶ 21). She did not consult with another
doctor in Puerto Rico, and stated in deposition that she knew by herself that the
radiotherapy provoked her ailments “[b]ecause it burned me. Every time they put me in
the machine it burned me. I would tell them, that is [sic] burning me. [‘]Please don’t give
me that.’” (Deposition, p. 141).
She did not receive treatment during May, June, and July, and moved to mainland
United States on July 28, 2011 to seek medical assistance because it was her
understanding that she had not received adequate treatment in Puerto Rico, that she
needed treatment for the conditions she now had, or she would die from the bleeding.
(Def. St., ¶ 16-17; Pl. St., ¶ 16; Pl. Add. St., ¶ 11). On August 10, 2011, Quiñones visited
the Holyoke Health Center (“Holyoke”) in Massachusetts, and was seen by Dr. Barry
Feingold (“Dr. Feingold”) on a new-patient basis. She reported feeling pain in both her
hips and upper legs. She did not have bowel or bladder incontinence, nor vaginal or anal
discharge, and the record does not reflect that she still suffered from anal bleeding or
swelling. She was alert and sat comfortably during examination. Dr. Feingold told her
that they needed to follow-up for cervical cancer. (Pl. Add. St., ¶ 11). Dr. Feingold
examined her again on August 24, 2011, and she notified him that she noticed fresh blood
in post-diarrheal stool two days prior, and was instructed to notify Holyoke or go to the
emergency room if her bleeding worsened, or if she experienced pain, weakness
dizziness, or other problems. (Pl. Add. St., ¶ 13).
On September 13, 2011, Quiñones returned to Holyoke, and Dr. Jennifer Jurcsak
(“Dr. Jurcsak”) became her primary care physician. (Pl. St., ¶ 19-20; Pl. Add. St., ¶ 14).
She told Dr. Jurcsak that she was burned in Puerto Rico, and was bleeding vaginally and
anally. (Def. St., ¶ 18; Pl. St., ¶ 18). Dr. Jurcsak noted that she appeared well, in mild
discomfort secondary to chronic hip pain, and planned for further evaluation concerning
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her bleeding and bowel movements, and schedule a colonoscopy.
likelihood of radiation proctitis.
She assessed a
On September 20, 2011, Dr. Jurcsak scheduled a
gyneco-oncology evaluation for the next day. (Pl. Add. St., ¶ 14). A CT Abdomen and
Pelvis with contrast examination was perfomed on October 1, which revealed a small
bowel wall thickening in her pelvis, with mesenteric edema and surrounding interloop
fluid. The test indicated that those findings likely represented radiation enteritis. (Pl.
Add. St., ¶ 16). On October 25, 2011, she returned to Dr. Jurcsak for further evaluation.
The record reflects that she had a colonoscopy performed but no biopsy, and that she had
an appointment scheduled for December with a liver specialist. She was also to followup with a gyneco-oncologyst and a Dr. Martinez for her cervical cancer and bleeding.
(Pl. Add. St., ¶ 15). Dr. Jurcsak reviewed the CT results on October 27, and referred her
to a urologist. (Pl. Add. St., ¶ 16). On November 17, Dr. Starkman ordered a cystoscopy
with bladder biopsy, which was performed on November 30, and the results identified a
radiation induced cystitis. Quiñones was informed of the results on December 12, 2011.
(Pl. Add. St., ¶ 17).
On September 27, 2012, Quiñones’s attorney sent a notification of claim letter to
CIRT. (Def. St., ¶ 22). More than one year had expired from the time Quiñones
requested that Dr. Correa stop treatment because she felt that it was “burning her up” on
or around March 2011, but less than one year had expired from when Quiñones was
informed that she had radiation induced cystitis on December 12, 2011.
Quiñones-Torres, et al. v. Radiation Oncology Group, PSC, et al.
Civil No. 13-1673 (BJM)
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DISCUSSION
Medical malpractice claims in Puerto Rico are governed by Articles 18023 and
1803 4 of the Puerto Rico Civil Code.
Articles 1802 and 1803 carry a statute of
limitations of one year5 that begins to run once the aggrieved party has knowledge both
that she has suffered a harm and who is responsible for it. Ramirez-Ortiz v. Corporacion
del Centro Cardiovascular de P.R. y del Caribe, 994 F. Supp. 2d 218, 221 (D.P.R. 2014)
(citing P.R. Laws Ann. Tit. 31 § 5298, quoting Rodriguez v. Suzuki Motor Corp., 570 F.3d
402, 406 (1st Cir. 2009)). That is, the statute begins to run from the time the aggrieved
party has actual knowledge of the injury and its origin or with due diligence would have
sufficient information to permit suit. Villarini-Garcia v. Hosp. del Maestro, Inc., 8 F.3d
81, 84 (1st Cir. 1993). “‘Notice of the injury occurs when there exist some outward or
physical signs through which the aggrieved party may become aware and realize that
[she] has suffered an injurious aftereffect, which when known becomes a damage even if
at the time its full scope and extent cannot be weighed.’” Torres v. E.I. Dupont de
Nemours & Co., 219 F.3d 13, 18-19 (1st Cir. 2000) (quoting Kaiser v. Armstrong World
Indus, Inc., 872 F.2d 512, 516 (1st Cir. 1989) (internal quotations omitted). “Once a
plaintiff is on ‘notice of the injury,’ the plaintiff may ‘not wait for his [or her] injury to
reach its final degree of development and postpone the running of the period of limitation
according to his [or her] subjective appraisal and judgment.’”
3
Rodriguez-Suris v.
“A person who by an act or omission causes damage to another through fault or negligence shall be obliged
to repair the damage so done.” P.R. Laws Ann. Tit. 31§ 5141.
4
“The obligation imposed by § 5141 of this title is demandable, not only for personal acts and omissions, but
also for those of the persons for whom they should be responsible.” P.R. Laws Ann. Tit. 31§ 5142.
5
“In Puerto Rico, the statute of limitations is a substantive and not a procedural matter.” Alejandro-Ortiz v.
P.R. Elec. Power Auth., 756 F.3d 23, 27 (1st Cir. 2014) (citing Olmo v. Young & Rubicam of P.R. Inc., 100 P.R. Dec.
740, 742 (1981), 10 P.R. Offic. Trans. 965, 969 (1981)).
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Montesinos, 123 F.3d 10, 13 (1st Cir. 1997) (quoting Ortiz v. Municipality of Orocovis,
113 P.R. Dec. 484, 487, 13 P.R. Offic. Trans. 619, 622 (1982)). That is, “[o]nce a plaintiff
is made aware of facts sufficient to put her on notice that she has a potential tort claim
she must pursue that claim with reasonable diligence, or risk being held to have
relinquished her right to pursue it later, after the limitation period has run. Montesinos,
123 F.3d at 16.
Once the statute is tolled, the limitations period runs anew for another full year.
Rodriguez Narvaez v. Nazario, 895 F.2d 38, 45 (1st Cir. 1990). An aggrieved party may
toll the statute by making an extrajudicial claim. P.R. Laws Ann. Tit. 31 § 5303.
An
extrajudicial claim tolls the statute if (1) the claim was made by the holder of the
substantive right or her attorney, (2) it was addressed to the debtor, and (3) it demands the
relief ultimately sought in the subsequent suit. Moran-Vega v. Cruz-Burgos, 537 F.3d 14,
21 (1st Cir. 2008).
Here, CIRT and Admiral argue that plaintiffs’ cause of action under Articles 1802
and 1803 is time-barred by the applicable one-year statute of limitations because
Quiñones exerted an extrajudicial claim more than one year after she knew or should
have known with due diligence of the damages caused by the defendants. The parties
present different dates of when the knowledge of the injury occurred. The court must
decide when the one-year statute began to run, and whether it was timely tolled.
Co-defendants CIRT and Admiral argue that Quiñones became aware of her cause
of action at around her fourth radiotherapy session, on or before the end of March 2011,
and that it is this date, and not December 2011, when she should have had knowledge of
the medical malpractice. They cite Quiñones’s deposition testimony that she told Dr.
Correa that treatment was “burning her up.” They also argue that she allowed her
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Civil No. 13-1673 (BJM)
9
condition to worsen by not seeking treatment after her radiation therapies ended in April
2011.
Plaintiffs responded that Quiñones found out that the post-radiatherapy symptoms
she was experiencing were a whole other condition, radiation-induced cystitis, when she
was informed of her cystoscopy with bladder biopsy test results on December 12, 2011.
Taking her version as true, Quiñones, as holder of the substantive right, made an
extrajudicial claim on September 17, 2012 through her attorney within the year allotted
by the applicable statute, and it was addressed to CIRT and Dr. Correa, among others. It
stated the damages she claims were caused to her by them, and informing of her intention
to toll the statute and sue for damages for medical malpractice. (Docket No. 70-4).
Having satisfied the requirements for an extrajudicial claim, the statute of limitations
would be considered tolled for another full year effective September 17, 2012, and the
complaint in the instant case would be considered timely filed on September 3, 2013.
For purposes of this motion for summary judgment, inferences must be drawn in
Quiñones’s favor. The injury here occurred somewhere between January and April, 2011.
It is clear that Quiñones knew that the ailments she was suffering from were directly
caused by the radiotherapy treatment, and that Dr. Correa was responsible for the
treatment given.
When the statute is tolled more than one year after the actual injury
occurred, plaintiffs then bear the burden of proving that Quiñones did not have actual
knowledge or imputed knowledge (knowledge acquired by due diligence) within the
statutory period. Santos-Espada v. Cancel-Lugo, 312 F.3d 1, 4 (1st Cir. 2002). “If
plaintiff fails to meet this burden, the statute of limitations will start to run from the day
of the injury regardless of whether plaintiff has actual knowledge.” Vazquez-Morales v.
Estado Libre Asociado de P.R., 967 F. Supp. 42, 47 (D.P.R. 1997) (citing Fragoso de
Conway v. Lopez, 794 F. Supp. 49, 50 (D.P.R. 1992), aff’d, 991 F.2d 878 (1st Cir. 1993)).
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10
When Quiñones met with Dr. Correa in February and told him she was bleeding,
he instructed her to sit on ice, and continue with treatments. On another occasion, Dr.
Correa’s nurse told her that the bleeding would pass. During that time period, Quiñones
told Dr. Jiménez’s nurse about the burning sensation she was feeling, and the nurse told
her that she should talk to Dr. Correa because those symptoms pertained to the
radiotherapy treatment he was administering. In March, she asked Dr. Correa to stop the
radiotherapy treatment because it burned her, and he told her to finish the treatment. She
apparently followed his advice and finished the treatment in April.
Additionally,
Quiñones shared experiences with other similarly-situated patients, who also experienced
symptoms during the radiotherapy.
Because her ailments persisted after treatment ended, she chose to leave Puerto
Rico and seek treatment in Massachusetts at Holyoke. Her first visit there was August
2011. At first, the symptoms she had complained about during radiotherapy were not
present, only pain in her hips and upper legs, but two weeks later, she began bleeding
anally again. In September, Dr. Jurcsak assessed a likelihood of radiation proctitis, and
ordered further tests. Quiñones received actual knowledge that her condition was in fact
induced by the radiation treatment, radiation induced cystitis, on December 12, 2011,
thus providing a causal nexus between her condition and Dr. Correa’s conduct.
“Under federal case law, ‘the question whether a plaintiff has exercised
reasonable diligence is usually a jury question.’” Villarini-Garcia, 8 F.3d at 86 (quoting
Bohus v. Beloff, 950 F.2d 919, 925 (3rd Cir. 1991). “[T]he question whether the plaintiff
has exercised reasonable diligence is typically given to the jury, ‘even where no raw facts
are in dispute,’ because ‘the issue of due diligence and adequate knowledge are still ones
for the jury so long as the outcome is within the range where reasonable men and women
can differ.’” Santos-Espada, 312 F.3d at 4 (quoting Villarini-Garcia, 8 F.3d at 87). That
is, “where a reasonable jury could find that the plaintiff lacked knowledge despite due
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Civil No. 13-1673 (BJM)
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diligence, the statute of limitations issue in a discovery-rule jurisdiction should not be
withdrawn from the jury by summary judgment.” Villarini-Garcia, 8 F.3d at 87. A jury
could reasonably find that Quiñones was diligent in further investigating her symptoms
by meeting with other doctors, and hence her date of acquired knowledge was not earlier
than the one she claims.
The statute of limitations can also be tolled “‘if a plaintiff’s suspicions that she
may have been the victim of a tort are assuaged by the person who caused the injury.’”
Espada-Lugo, 312 F.3d at 4 (quoting Rodriguez-Suris, 123 F.3d at 16). Here, Dr. Correa
and his staff promptly assured her that the side-effects would pass, and Dr. Correa urged
her to continue treatment while taking care of the burning side-effects. “As a matter of
common sense, and Puerto Rico precedent, see Geigel, 315 P.R. Dec. at 245, 15 Off.
Trans. at 329, she was entitled initially to rely on this prognosis from her doctor.”
Villarini-Garcia, 8 F.3d at 87. A jury could also reasonably conclude that Quiñones was
aware of the side effects, and questioning her side effects would not necessarily have
triggered further inquiry as to whether she was overexposed to radiation.
“Finally, such tolling may be halted by further information that renders plaintiff’s
reliance on those assurances no longer reasonable, so that plaintiff then has an obligation
of diligent investigation.” Espada-Lugo, 312 F.3d at 4 (citing Rodriguez-Suris, 123 F.3d
at 17). Quiñones knew more than one year before she filed this complaint that she was
suffering from a serious condition that started during her radiotherapy treatment, and
continued upon its conclusion, and that Dr. Correa was responsible for it because he
ordered and supervised her treatment. From the facts in this case, a jury could conclude
that Quiñones had reason to know or suspect that her symptoms appeared because she
was administered a dosage higher than the recommended standard practice that would
trigger an obligation to diligently investigate. In the end, this is an issue that could be
reasonably resolved by the jury in favor of either party.
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CONCLUSION
For the foregoing reasons, the motion for summary judgment on plaintiffs’ Article
1802 and 1803 claim as being time-barred is DENIED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 1st day of May, 2015.
S/Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge
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