Maldonado-Pagan v. Correctional Health Services Corp. et al
Filing
102
ORDER granting 69 Motion to Dismiss for Failure to State a Claim; granting 86 Motion to Dismiss. See attached Opinion and Order for further details. Signed by Judge Daniel R. Dominguez on 1/31/2018. (MES)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MARIANO MALDONADO PAGAN,
Plaintiff
v.
Civil No. 16-1173 (DRD)
CORRECTIONAL HEALTH SERVICES
CORP., ET. AL.;
Defendants
OPINION AND ORDER
On August 5, 2016 Mariano Maldonado Pagan (“Plaintiff”), an inmate at the
Guayama Correctional Complex, filed an Amended Complaint and Request for Summary
Judgment. See Dkt. No. 28. Plaintiff alleges that he was subjected to cruel and unusual
punishment and that he was the victim of malpractice at the hands of several treating
physicians. See Dkt. No. 28; see also Dkt. No. 46. Subsequently, on November 9, 2016,
Plaintiff filed Petition for Preliminary Injunction and Motion in Opposition to the Statement
Under Penalty of Perjury. See Dkt. No. 46. Plaintiff asserted that the treating physicians
coordinated to defraud the Correctional Health Service Crop (“CHSC”) and that he has
suffered and continues to be affected as a result. Plaintiff outlines that his treating
physician purposefully failed to order him to suspend the consumption of Plavix prior to
the performance of a colonoscopy. Consequentially, Plaintiff’s polyps were unable to be
removed and a second colonoscopy was required for the removal at a later date.
On May 12, 2017, this Court denied Plaintiff’s Motion for Preliminary Injunction as
he failed to demonstrate a likelihood of success in relation to his claim of conspiracy to
commit fraud, cruel and unusual punishment, and medical malpractice. See Dkt. No. 66.
Furthermore, this Court found there was no showing of irreparable harm that the Plaintiff
will suffer. Id. This Court, however, stressed that the Plaintiff’s situation may worsen if the
colonoscopy subject of this action was not performed, and for this reason, the Court
ordered Defendants to show cause in ten (10) days regarding when and where Plaintiff
will receive the necessary treatment for his polyps and when the scheduled colonoscopy
will be performed. Id. On May 30, 2017, CHSC complied with the Court’s order and
informed that a colonoscopy was scheduled for June 29, 2017 at the Instituto de
Gastroenterologia de Puerto Rico S.R.L. (“Instituto”) in Clinica las Americas. See Dkt. 74,
at ¶6. This, despite de fact that the Plaintiff had previously refused three different times
to submit himself to scheduled colonoscopies. See Dkt. 87, Exhibit 1.
Subsequently, on May 18, 2017, Defendant Dr. Fernando Ramos-Mercado (“Dr.
Ramos-Mercado”) filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. See Dkt. 69. Dr. Ramos-Mercado argues that the Plaintiff
requests CHSC to assign him a gastroenterologist at a different hospital in order to
perform the colonoscopy, but that he has no authority in law to assign another
gastroenterologist to the Plaintiff. Id. For this reason, Dr. Ramos-Mercado argues the
Complaint fails to allege sufficient facts to support a claim capable to be entitled to relief.
Id. Likewise, on June 12, 2017, Defendants CHSC and Dr. Edwin Negrón Vera filed a
Motion to Dismiss. Dkt. 86. The Defendants argue that the Plaintiff has failed to establish
a medical malpractice case, as well as a claim of conspiracy to commit fraud and cruel
and unusual punishment. See Dkt. 95. For the reasons set forth below, the Court
GRANTS booth pending Motions to Dismiss at Dkts. Nos. 69 and 86.
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I. FACTUAL AND PROCEDURAL HISTORY
The Court already stated the factual and procedural history for this case in its
previous Opinion and Order relating to Plaintiff’s Motion for Preliminary Injunction. See
Dkt. No. 66. Nonetheless, for the sake of adjudicating the pending motions to dismiss, the
Court will once again outline and update the factual history of this case.
In early 2014, Plaintiff began experiencing abdominal pain. Dr. Robert Muns (“Dr.
Muns”) ordered a colonoscopy be performed. On March 25, 2014, via Dr. Muns’ referral,
Plaintiff attended an appointment with gastroenterologist Dr. Ramos-Mercado from the
Instituto. During the appointment, Dr. Ramos-Mercado questioned Plaintiff about any
medications he was taking. See Dkt. No. 28 pg. 1-2. Plaintiff informed Dr. RamosMercado that he was prescribed Plavix. 1 Dr. Ramos-Mercado ordered a colonoscopy be
performed on May 7, 2014, and that Plaintiff consume a liquid diet, and laxatives the day
prior. Plaintiff alleges that Dr. Ramos-Mercado made no comment regarding his use of
Plavix and did not inform Plaintiff to suspend his use of Plavix; suspension of Plavix is
recommended approximately ten days prior to the procedure. See Dkt. No. 28 pg. 2. Prior
to the procedure taking place, Plaintiff allegedly informed Dr. Ramos-Mercado a second
time of his use of Plavix. Dr. Ramos-Mercado purposefully performed the colonoscopy
without addressing the Plavix issue. Plaintiff asserts that Dr. Muns stated that all was well
with the colonoscopy. Plaintiff, upon request, was provided a copy of the colonoscopy
report. See Dkt. No. 28 pg. 3. The report stated that Dr. Ramos-Mercado had discovered
Plavix, generic name clopidogrel bisulfate, is a prescription medication used for the treatment of poor circulation, treatment of
chest pain due to heart problems, or for individuals who has suffered from a heart attack and/or a stroke. Plavix is a blood thinner
which reduces the chance of blood clots forming. Plavix increases the risk of bleeding and makes it longer for bleeding to stop.
See Bristol-Myers Squibb & Sanofi Pharmaceuticals Partnership, Medication Guide Plavix (PLAV-iks)(Clopidogrel Bisulfate)
tablets,
U.S.
Food
and
Drug
Administration
Approved
Medication
Guide
(September
2016),
https://www.fda.gov/downloads/drugs/drugsafety/ucm243349.pdf.
1
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sessile polyps, which had not been removed due to Plaintiff’s use of Plavix. See Dkt. No.
3 Exhibit-6a. Within the report, Dr. Ramos- Mercado recommended that the colonoscopy
be repeated “with better PREP (using a Peds colonoscope).” See Dkt. No 3 Exhibit-6a.
On March 5, 2015, Plaintiff filed a grievance (GMA.1000-351-15) protesting the
fact he had not yet received a second colonoscopy. See Dkt. No. 28 pg. 4; see also Dkt.
No. 3. Plaintiff’s grievance was dismissed. See Dkt. No. 28 pg. 4. On April 27, 2015,
Plaintiff filed a second grievance (GMA 1000-458-15) in which he expressed his
opposition to being treated by Dr. Ramos-Mercado. See Dkt. No. 28 pg. 4; see also Dkt.
No. 3 (Exhibit 3). Within the grievance, Plaintiff objected to the treatment he received at
the hands of Dr. Ramos-Mercado and his staff, which Plaintiff contends constituted cruel
and unusual punishment. See Dkt. No. 28 pg. 7. Plaintiff received a response to the
second grievance that simply stated that the CHSC had a contract with the Instituto to
provide gastroenterology services.
On July 22, 2015, Plaintiff was again scheduled for an appointment with Dr.
Ramos-Mercado. Plaintiff refused to attend. See Dkt. No. 28 pg. 7. On September 27,
2016, Plaintiff was scheduled for a colonoscopy to be performed by Dr. Rodriguez, a
physician outside the CHSC system. See Dkt. No. 46 pg. 4. Plaintiff was to stop the
consumption of Plavix on September 20, 2015, seven days prior to the colonoscopy.
Plaintiff contends that he was not informed of neither the colonoscopy date nor the date
upon which he was to stop taking Plavix. Dr. Negron-Vera, the director of clinical services
at the Guyama Correctional Complex for CHSC (Dkt. No. 1), rebuts this fact and states
that CHSC personnel had informed Plaintiff as to the date of the colonoscopy on
September 15, 2016. Dr. Negron-Vera also asserts that Plaintiff was informed that he
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would have to stay in the emergency ward the night prior to the procedure for preparation.
See Dkt. No. 1. Plaintiff refused to submit himself to the second colonoscopy. Plaintiff
states that as he was unaware of the colonoscopy date and the date in which he was to
stop taking Plavix, he was unable to submit to the procedure as he had ingested Plavix
within the seven days prior to the scheduled colonoscopy. Furthermore, Plaintiff alleges
that the conditions to which he would have to submit himself to, an overnight stay in the
emergency room, would constitute cruel and unusual punishment. See Dkt. No. 46 pg. 8.
Plaintiff alleges that he is still in pain and that this was a foreseeable result of Dr.
Ramos-Mercado’s omission to inform Plaintiff to suspend Plavix prior to the colonoscopy.
See Dkt. No. 28 pg. 10. Plaintiff maintains that Dr. Ramos-Mercado intentionally omitted
to inform him to suspend Plavix ten days prior to the colonoscopy as a means to defraud
the CHSC into paying for the procedure twice. See Dkt. No. 28 pg. 3-4. Plaintiff further
states that Dr. Muns and CHSC declined to repeat the colonoscopy to save the CHSC
money and to shield Dr. Ramos-Mercado from a potential legal suit. See Dkt. No. 28 pg.
5. Plaintiff seeks that the court orders the extraction of the polyps with a different
gastroenterologist and that the overnight preparation be within his own cell. See Dkt. No.
46 pg. 13.
On May 12, 2017, this Court denied Plaintiff’s Motion for Preliminary Injunction as
he failed to demonstrate a likelihood of success in relation to his claim of conspiracy to
commit fraud, cruel and unusual punishment, and medical malpractice. See Dkt. No. 66.
Furthermore, this Court found there was no showing of irreparable harm that the Plaintiff
will suffer. Id. This Court, however, stressed that the Plaintiff’s situation may worsen if the
colonoscopy subject of this action is not performed, and for this reason, the Court ordered
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Defendants to show cause in ten (10) days regarding when and where Plaintiff will receive
the necessary treatment for his polyps and when the scheduled colonoscopy will be
performed. Id. On May 30, 2017, CHSC complied with the Court’s order and informed
that a colonoscopy was scheduled for June 29, 2017. See Dkt. 74, at ¶6. This, despite de
fact that the Plaintiff had previously refused three different times to submit himself to a
colonoscopy as the Plaintiff had assumed the position that until the Federal Court
resolved his request for injunctive relief, he did not want the colonoscopy to take place.
See Dkt. 87, Exhibit 1.
Subsequently, on August 30, 2017, the Defendant filed a Motion in Compliance
with Court Order informing the Court that the Plaintiff failed to submit himself to the
scheduled colonoscopy set for June 29, 2017 based on the following:
“Last night went to the emergency ward, I lost a Ducohax and when I was
leaving, I slipped with a puddle of water and hurt my knee and elbow. Then
I had a nightmare regarding the colonoscopy, the liquid diet was not
available at the breakfast, which was a subliminal message and therefore I
did not submit myself to the procedure.”
See Dkt. 97 and Exhibit 1.
Pending now before the Court are two Motions to Dismiss filed by Dr. RamosMercado and CHSC. See Dkt. 69 and 86. Both Defendants request a dismissal based on
the fact that the Plaintiff has failed to state a claim upon which relief can be granted. Id.
II. 12(B)(6) STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a) requires plaintiffs to provide “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Under Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff must
6
“provide the grounds of his entitlement [with] more than labels and conclusions.” See
Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (“in order to ‘show’
an entitlement to relief a complaint must contain enough factual material ‘to raise a right
to relief above the speculative level on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).’)(quoting Twombly, 550 U.S. at 555) (citation
omitted). Thus, a plaintiff must, and is now required to, present allegations that “nudge
[his] claims across the line from conceivable to plausible” in order to comply with the
requirements of Rule 8(a). Id. at 570; see e.g. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
When considering a motion to dismiss, the Court’s inquiry occurs in a two-step
process under the current context-based “plausibility” standard established by Twombly,
550 U.S. 544, and Iqbal, 556 U.S. 662. “Context based” means that a Plaintiff must allege
sufficient facts that comply with the basic elements of the cause of action. See Iqbal, 556
U.S. at 677-679 (concluding that plaintiff’s complaint was factually insufficient to
substantiate the required elements of a Bivens claim, leaving the complaint with only
conclusory statements). First, the Court must “accept as true all of the allegations
contained in a complaint[,]” discarding legal conclusions, conclusory statements and
factually threadbare recitals of the elements of a cause of action. Iqbal, 556 U.S. at 678.
“Yet we need not accept as true legal conclusions from the complaint or ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Maldonado v. Fontanes, 568 F.3d
263, 268 (1st Cir. 2009) (quoting Iqbal, 556 U.S. 678) (quoting Twombly, 550 U.S. at 557).
Under the second step of the inquiry, the Court must determine whether, based
upon all assertions that were not discarded under the first step of the inquiry, the
complaint “states a plausible claim for relief.” Iqbal, 556 U.S. 679. This second step is
7
“context-specific” and requires that the Court draw from its own “judicial experience and
common sense” to decide whether a plaintiff has stated a claim upon which relief may be
granted, or, conversely, whether dismissal under Rule 12(b)(6) is appropriate. Id.
Thus, “[i]n order to survive a motion to dismiss, [a] plaintiff must allege sufficient
facts to show that he has a plausible entitlement to relief.” Sanchez v. Pereira-Castillo,
590 F.3d 31, 41 (1st Cir. 2009). “[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the complaint has alleged - but it
has not ‘show[n]’ ‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting
Fed. R. Civ. P. 8(a)(2)). Furthermore, such inferences must be at least as plausible as
any “obvious alternative explanation.” Id. at 679-80 (citing Twombly, 550 U.S. at 567).
“A plaintiff is not entitled to ‘proceed perforce’ by virtue of allegations that merely parrot
the elements of the cause of action.” Ocasio-Hernandez, 640 F.3d at 12, (citing Iqbal,
556 U.S. 679); Sanchez v. Pereira-Castillo, 590 F.3d 31, 45 (1st Cir. 2009).
The First Circuit has cautioned against equating plausibility with an analysis of the
likely success on the merits, affirming that the plausibility standard assumes “pleaded
facts to be true and read in a plaintiff’s favor” even if seemingly incredible. SepúlvedaVillarini v. Dep’t of Educ. of P.R., 628 F.3d 25, 30 (1st Cir. 2010) (citing Twombly, 550
U.S. at 556); Ocasio-Hernandez, 640 F.3d at 12 (citing Iqbal, 556 U.S. 679); see
Twombly, 550 U.S. at 556 (“[A] well-pleaded complaint may proceed even if it appears
that a recovery is very remote and unlikely.”)(internal quotation marks omitted); see
Ocasio-Hernandez, 640 F.3d at 12 (citing Twombly, 550 U.S. at 556)(“[T]he court may
not disregard properly pled factual allegations, ‘even if it strikes a savvy judge that actual
proof of those facts is improbable.’”). Instead, the First Circuit has emphasized that “[t]he
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make-or-break standard . . . is that the combined allegations, taken as true, must state a
plausible, [but] not a merely conceivable, case for relief.” Sepúlveda-Villarini, 628 F.3d
at 29. Additionally, a district court may not weigh evidence in deciding a motion to dismiss
under Fed. R. Civ. P. 12(b)(6). See Massachusetts Delivery Ass’n v. Coakley, 671 F.3d
33, 39 n. 6 (2012)(emphasizing that a primary difference between a motion to dismiss
under Rule 12(b)(1) and Rule 12(b)(6) is that, under Rule 12(b)(1), a court may weigh the
evidence and make factual determinations).
However, a complaint that rests on “bald assertions, unsupportable conclusions,
periphrastic circumlocutions, and the like” will likely not survive a motion to dismiss.
Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). Similarly, unadorned factual assertions
as to the elements of the cause of action are inadequate as well. Penalbert-Rosa v.
Fortuno-Burset, 631 F.3d 592 (1st Cir. 2011). “Specific information, even if not in the
form of admissible evidence, would likely be enough at [the motion to dismiss] stage; pure
speculation is not.” Id. at 596; see Iqbal, 556 U.S. at 681(“To be clear, we do not reject
[] bald allegations on the ground that they are unrealistic or nonsensical. . . . It is the
conclusory nature of [the] allegations, rather than their extravagantly fanciful nature, that
disentitles them to the presumption of truth.”); see Mendez Internet Mgmt. Servs. v. Banco
Santander de P.R., 621 F.3d 10, 14 (1st Cir. 2010) (The Twombly and Iqbal standards
require District Courts to “screen[] out rhetoric masquerading as litigation.”). The First
Circuit recently outlined two considerations for district courts to note when analyzing a
motion to dismiss. García-Catalán v. United States, 734 F.3d 100, 104 (1st Cir. 2013).
First, a complaint modeled on Form 11 of the Appendix of the Federal Rules of Civil
Procedure which contains sufficient facts to make the claim plausible is ordinarily enough
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to surpass the standard prescribed under Twombly-Iqbal. Id. at 104. Second, district
courts should accord “some latitude” in cases where “[a] material part of the information
needed is likely to be within the defendant’s control.” Id. (more latitude is appropriate in
cases where “it cannot reasonably be expected that the [plaintiff], without the benefit of
discovery, would have any information about” the event that gave rise to the alleged
injury.)(internal citations and quotations omitted).
III. ANALYSIS
Prior to conducting the analysis it is important to note that Plaintiff is representing
himself pro se. Handwritten pro se documents are held to “less stringent standards than
formal pleadings drafted by lawyers.” See Estelle v. Gamble, 429 U.S. 97 (1976); see
also Haines v. Kerner, 404 U.S. 519 (1972).
A. Conspiracy to Defraud
As this Court established in its previous Opinion and Order (Dkt. 66), CHSC is an
agency of the United States; as such the applicable standard for a conspiracy to defraud
would require that three elements be present: (1) that an agreement is present, (2) the
objective of said agreement is unlawful, and (3) an overt act is committed in furtherance
of the agreement. See United States v. Mubayyid, 658 F.3d 35, 52 (1st Cir. 2011). In his
Complaint, the Plaintiff argues that the agreement was for Dr. Ramos-Mercado to
intentionally omit the potential consequences of taking Plavix prior to the colonoscopy.
The motivation being that if he was to discover polyps he would be unable to remove
them (due to a risk of bleeding that can occur during such a procedure when taking
Plavix). Dr. Ramos-Mercado would then have to repeat the procedure in order to safely
10
remove the polyps. Dr. Ramos-Mercado would then receive two payments for two
separate procedures. Plaintiff appears to allege that the removal of his polyps could have
occurred at the first colonoscopy. Plaintiff then alleges that the delay of the second
colonoscopy was a direct result of Dr. Muns, Dr. Ramos-Mercado, and CHCS attempt to
shield Dr. Ramos-Mercado from a legal suit and to spare CHCS from the cost of the
second colonoscopy.
This Court already concluded that such facts are contradictory as Plaintiff is
alleging that Dr. Ramos-Mercado both conspired against and with CHSC. Specifically,
Plaintiff alleges that Dr. Ramos-Mercado intentionally failed to inform him to suspend his
Plavix use as a means to defraud CHSC and charge twice for the procedure. Conversely,
the Plaintiff states that Dr. Muns and CHSC declined to repeat the colonoscopy to save
the CHSC money and to shield Dr. Ramos-Mercado from a potential legal suit as part of
said conspiracy. See Dkt. No. 28 pg. 5. Thus, in adjudicating the Plaintiff’s request for
preliminary injunction, the Court found that in the Plaintiff’s fact pattern appears that
CHSC was both the victim and participant in a conspiracy to defraud.
Further, in applying the standard of conspiracy to commit fraud to the facts alleged
in the Complaint, the Court cannot conclude that the Plaintiff adequately pleaded a claim
for conspiracy to defraud. Plaintiff does not support the alleged facts relating to an
agreement with any specific information or evidence. See Dkt. 28. Instead, the Plaintiff
merely speculates that there was an unspoken agreement between the three parties. Id.
Without offering any evidence or more substantial information, the Plaintiff’s speculations
are insufficient. See Wayne Invest., Inc. v. Gulf Oil Corp., 739 F.2d 11, 13 (1st Cir. 1984)
(“Allegations based on ‘information and belief’ do not satisfy the particularity requirement
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unless the complaint sets forth the facts on which the belief is founded.”). Therefore, the
Plaintiff failed to set forth a claim of conspiracy to defraud against Dr. Ramos-Mercado,
Dr. Muns, and CHSC.
B. Cruel and Unusual Punishment
Plaintiff contends in the Complaint that the treatment received at the hands of
CHSC and the treating physicians constitutes cruel and unusual punishment under the
Eighth Amendment of the United States Constitution. In order for the Plaintiff to succeed
under an Eighth Amendment claim, he must demonstrate that the conditions under which
he was placed were under created (1) a substantial risk of serious harm, and (2) the
unnecessary and wanton infliction of pain. Farmer v. Brennan 511 U.S. 825 (1994). The
standard requires that a prison official have a ‘sufficiently culpable state of mind;’ or
deliberate indifference to an inmate’s health. Id at 834.
In interpreting the Eighth Amendment to the case at hand, there are two potential
standards to be applied to CHSC and Plaintiff’s treating officials. One can raise a claim
alleging a violation occurred due to the prison official’s intentional conduct or as a result
of their deliberate indifference. See Calderon-Ortiz v. Laboy-Alvarado, 300 F.3d 60, 63
(2002). Nonetheless, from a simple reading of the Complaint, it is unclear which standard
the Plaintiff is pleading under. For this reason, the Court already determined in its previous
Opinion and Order that the Plaintiff had not sufficiently pled a cruel and unusual
punishment claim considering the risk of receiving a colonoscopy with a CHSC physician
and the emergency room preparation did not appear sufficiently dangerous and did not
constitute an unnecessary and wanton infliction of pain. See Dkt. 66 at 7.
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Further, the Plaintiff’s unsupportable conclusion that the “[d]eliberate indifference to
the serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction
of pain’ proscribed by the Eighth Amendment” is insufficient to survive a motion to dismiss.
See Dkt. 28 at 9. Accordingly, the Court reiterates that the Plaintiff failed to sufficiently
allege a claim of cruel and unusual punishment.
The Court also must consider that the undersigned ordered CHSC to schedule a
colonoscopy within ten (10) days after entering its previous Opinion and Order, and CHSC
effectively scheduled a colonoscopy for June 29, 2017. See Dkt. 74, at ¶6. However, the
Plaintiff failed to submit himself to the scheduled colonoscopy because he “slipped with
a puddle of water and hurt [his] knee and elbow” and he “had a nightmare regarding the
colonoscopy”. See Dkt. 97 and Exhibit 1. As a result, the colonoscopy has not been
performed to date because the Plaintiff has been unwilling to submit himself to the
procedure. The Court understands that this is a case where the Defendant filed his
Complaint requesting the Court to “order the defendant C.H.S.C. to obtain an appointment
with a different gastroenterologist at a different hospital for the extirpation of polyps”. Dkt.
28 at 10. Nonetheless, when CHSC effectively scheduled a second colonoscopy to
remove the polyps, the Plaintiff refused the medical treatment. Dkt. 97, Exhibit 1. As such,
the Court finds that the Plaintiff’s pain is self-inflicted and the only obstacle preventing the
colonoscopy from taking place is the Plaintiff himself.
C. Medical Malpractice
Medical Malpractice in Puerto Rico requires three elements be present: (1) the
duty owed, (2) and act or omission transgressing that duty; and (3) a sufficient causal
nexus between the breach and the harm. See Rosa-Rivera v. Dorado Helath, Inc., 787
13
F.3d 614 (1st Cir. 2015). In the case at hand, the Court already determined it may be
arguable that there was a duty owed to inform Plaintiff to suspend the use of Plavix, and
that said duty was violated by Dr. Ramos-Mercado’s failure to inform. See Dkt. 66 at 8.
Nonetheless, the Court also found that the Plaintiff failed at the third prong as he did not
appropriately establish a causal nexus between the breach and the harm (his continued
pain). Id. The causal relationship between the failure to inform Plaintiff to suspend Plavix
and the chronic pain was not been demonstrated in the Complaint. Proof of causation
requires a showing that “it is more probable than not” that the harm was as a result of the
physician’s negligence. See Mitchell v. United States, 141 F.3d 8 (1st Cir. 1998). At most,
Plaintiff alleges that “as a result of the defendants’ acts and omissions described herein
were a proximate cause that [kept] me today with abdominal pain.” Dkt. 28 at 10. Plaintiff
has failed to establish that the defendant’s failure to remove the polyps indeed caused
his abdominal pain especially considering he was submitted to the procedure because he
was experiencing abdominal beforehand. Therefore, the Court reiterates the Plaintiff also
failed to plead sufficiently a claim for medical malpractice.
IV. CONCLUSION
Taking the complaint in the light most favorable to the Plaintiff, the Court finds that
the complaint fails to state a plausible claim for relief in relation to his claim of conspiracy
to commit fraud, cruel and unusual punishment, and medical malpractice. Nonetheless,
the Court understands the sensitivity related to the Plaintiff’s medical condition
considering Dr. Ramos-Mercado discovered the Plaintiff has sessile polyps. Thus, the
Court encourages the Defendant to schedule another colonoscopy in order for the Plaintiff
to receive the necessary treatment for his polyps. Due to the aforementioned reasons,
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Dr. Ramos-Mercado’s Motion to Dismiss Pursuant to Rule 12 of the Federal Rules of Civil
Procedure (Dkt. 69), as well as CHSC and Dr. Negron-Vera’s Motion to Dismiss (Dkt. 86)
are both GRANTED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 31st day of January 2018.
/S/ Daniel R. Domínguez
DANIEL R. DOMÍNGUEZ
United States District Judge
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