Munoz-Vargas et al v. Rodriguez-Laguer et al

Filing 110

OPINION AND ORDER 60 MOTION to dismiss as to All Plaintiffs filed by Normando Duran. Signed by US Magistrate Judge Camille L. Velez-Rive on 2/2/16.(ljt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JUAN MIGUEL MUNOZ-VARGAS, et al,
Plaintiffs,
CIVIL NO. 14- 1597 (CVR)

v.
DR. OLGA RODRIGUEZ LAGUER,
et. al.,
Defendants.

OPINION AND ORDER
INTRODUCTION
This case arises from an alleged medical malpractice stemming from treatment
given to minor Plaintiff J.M.F. Plaintiffs are Juan Miguel Muñoz-Vargas and Samara
Fernández-Menchaca, by themselves, and as members of their legal conjugal partnership,
and as parents of minor J.M.F. (hereinafter collectively “Plaintiffs”). Defendants are a
variety of doctors and medical institutions, none of which are relevant for purposes of the
present motion except for co-Defendant Dr. Norberto Durán (hereinafter “Dr. Durán”).
Plaintiffs claim that Co-Defendant Dr. Durán misdiagnosed J.M.F.’s condition
when the minor initially came to his office for an evaluation, and this alleged misdiagnosis
resulted in two meningitis attacks that jeopardized his life, which could have been
prevented with an early and proper diagnosis and the appropriate surgery, which was
performed later by another physician, Dr. Iván Sosa (hereinafter “Dr. Sosa”), not a party
to this case. The surgery Dr. Sosa had to ultimately perform was more difficult due to
the infections, adherences, and an intraspinal abscess due to the previous surgical

Juan Miguel Muñoz-Vargas, et al., v. Dr. Olga Rodríguez Laguer, et al.
Civil No. 14-1597 (CVR)
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interventions, including one performed by co-Defendant Dr. Durán.

This process,

Plaintiffs claim, caused them severe pain, suffering and mental anguish.
Before the Court now is Co-Defendant Dr. Durán’s Motion to Dismiss based on
immunity provided by the Puerto Rico Insurance Code. (Docket No. 60). Before the
Court also are Plaintiffs’ opposition thereto (Docket No. 85); Dr. Durán’s reply to
Plaintiff’s opposition (Docket No. 93); and Plaintiff’s sur-reply thereto (Docket No. 105).
Co-Defendant Dr. Durán urges the Court to dismiss all claims against him. As a
duly licensed surgeon who provided medical and surgical treatment to J.M.F. at Hospital
San Antonio in Mayaguez, he states that Article 41.050 of the Puerto Rico Insurance Code
holds that a surgeon providing services to patients at said hospital may not be included
as a defendant in a medical malpractice claim related to his services. Furthermore, Law
No. 150 of December 13, 2013, P.R. Laws Ann., tit. 26, § 4105, which established total
immunity for medical professionals provided by the aforementioned article, was
expressly made retroactive to all claims filed after June 27, 2011, and therefore applies to
this case.
Plaintiffs defer, and instead state that the malpractice occurred at the diagnosis
and treatment stage, which occurred in Co-Defendant Dr. Durán’s private office, and not
at the Hospital. They are not claiming malfeasance during the surgery, which did occur
at the Hospital. Thus, Plaintiffs posit the blanket immunity afforded by the Insurance
Code is inapplicable to Co-Defendant Dr. Durán.

Juan Miguel Muñoz-Vargas, et al., v. Dr. Olga Rodríguez Laguer, et al.
Civil No. 14-1597 (CVR)
Opinion and Order
Page 3
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LEGAL ANALYSIS
The Puerto Rico Insurance Code grants immunity from suit to any health care
professional, whether he/she be an employee or a contractor, acting within the scope of
his/her duties as an employee of the Commonwealth of Puerto Rico while performing
institutional duties. P.R. Laws Ann., tit. 26, § 4105. Article 4105 of the Insurance Code
of Puerto Rico provides in pertinent part, as follows:
No healthcare professional (employee or contractor), may be included as
defendants in a civil action of claim for damages for professional
malpractice guilt or negligence caused in the performance of their
profession, while said professional acts in the compliance of his duties and
functions, including teaching, as employee of the Commonwealth of Puerto
Rico, its dependencies, instrumentalities, the Comprehensive Cancer
Center of the University of Puerto Rico and the municipalities. No health
professional whatsoever, either employee or contractor, may be included for
the performance of his profession in the compliance of his duties and
functions, including teaching, in the neonatal and pediatric intensive care
units, operating rooms, emergency rooms and trauma wards of the San
Antonio Hospital of Mayaguez . . . .
It has been clearly established that in construing a statute, a reviewing court must
look first to the statutory language. “If the language is clear and unambiguous, judicial
inquiry is at an end in all but the most extraordinary circumstances, and the court must
give effect to the clear meaning of the statute as written.” Quiles Rodríguez v. Calderón,
172 F. Supp. 2d 334, 339 (D.P.R. 2001) citing Estate of Cowart v. Nicklos Drilling Co., 505
U.S. 469, 112 S.Ct. 2589 (1992); see also Ernst & Ernst v. Hochfelder, 425 U.S. 185, 201,
96 S.Ct. 1375, 1384-85 (1976) (the language of a statute controls when sufficiently clear in

Juan Miguel Muñoz-Vargas, et al., v. Dr. Olga Rodríguez Laguer, et al.
Civil No. 14-1597 (CVR)
Opinion and Order
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its context and further inquiry is unnecessary). Although the parties have not raised this
issue, the Court finds the statute’s wording in this case to be clear and unambiguous.
In addition, while previous versions of this law included a marked difference
between an employee and a contractor1, where contractors were not immune from suit,
no such difference exists in the current version of the law.

It clearly applies to all

employees and contractors of the Hospital.
While Plaintiffs aver that their cause of action actually arose in Dr. Durán’s private
office (because their cause of action stems from his misdiagnosis, not from the operation)
and that thus, immunity does not apply, it is undeniable that there must exist some
contractual relation between a doctor and a hospital if a doctor is to have privileges at a
hospital.
Moreover, a cursory glance at the Complaint shows that Plaintiffs have indeed
alleged negligence stemming from the surgery performed by Co-Defendant Dr. Durán at
the Hospital. To this effect, paragraph 42 of the Complaint states as follows:
On September 25th, 2012 Dr. Durán performed outpatient surgery at San
Antonio Hospital to remove the alleged pilonidal cyst. According to the
medical record, JMF was not treated with prophylactic antibiotics before
the surgery. Further, antibiotics were not prescribed during or after the
surgery. This was a negligent omission by Dr. Durán.” See Docket No. 1.
(Emphasis added).

1

See Flores-Román v. Ramos, 127 D.P.R. 601 (1990) (evaluating factors to consider in making a determination as to
whether a physician working for the Commonwealth or its instrumentalities is an independent contractor, and therefore
immune from suit) and Nieves v. Univ. of Puerto Rico, 7 F.3d 270 (1st Cir. 1993) (same).

Juan Miguel Muñoz-Vargas, et al., v. Dr. Olga Rodríguez Laguer, et al.
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Therefore, it is clear that, pursuant to the Puerto Rico Insurance Code, CoDefendant Dr. Durán is immune from suit and cannot be included as a defendant in any
claim for treatment rendered to minor J.M.F.
Furthermore, the instant case was filed on August 1, 2014 and Plaintiffs had
previously filed a case before the court of the Commonwealth of Puerto Rico on June 24,
2013. Since the law was made retroactive to any claims presented after June 27, 2011,
that had not been adjudicated or settled at the time the law was passed, the bar against
malpractice claims is applicable to Co-Defendant Dr. Durán’s treatment of minor Plaintiff
J.M.F.
In view of the foregoing, and in accordance with the above analysis, the Court
GRANTS Co-Defendant Dr. Durán’s Motion to Dismiss.
Finally, and perhaps foreseeing that the Court would hold Co-Defendant Dr. Durán
immune from suit, Plaintiffs in their opposition ask the Court to hold that Hospital San
Antonio and its insurance carrier must assume Dr. Durán’s liability should Plaintiffs
prevail in their allegations of Co-Defendant Dr. Durán’s negligence and that it contributed
to the damages claimed. This petition, however, was made without any argument in
support thereof. The Court cannot decide issues in a vacuum and which have not been
properly developed and brought before it. Consequently, the Court DENIES Plaintiffs’
request, without prejudice of being argued and briefed at the dispositive motion stage.

Juan Miguel Muñoz-Vargas, et al., v. Dr. Olga Rodríguez Laguer, et al.
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CONCLUSION
For the aforementioned reasons, Co-Defendant Dr. Normando Durán’s Motion to
Dismiss (Docket No. 60) is GRANTED. Partial Judgment dismissing all claims against
Dr. Normando Durán with prejudice shall be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, on this 2nd day of February, 2016.
S/CAMILLE L. VELEZ-RIVE
CAMILLE L. VELEZ RIVE
UNITED STATES MAGISTRATE JUDGE