Opinion
Civil No. 08-1886 (JAF).
September 22, 2009
OPINION AND ORDER
Plaintiffs, Marisol Rodríguez-Díaz ("Patient") and José Rafael Ferreras-Durán, individually and in representation of their conjugal partnership, bring the present diversity action for medical malpractice under Puerto Rico law, 31 L.P.R.A. § 5141 (1990) ("Article 1802"), against Defendants, Seguros Triple-S, Inc. and Javier J. Rodríguez-Becerra ("Rodríguez"), individually and in representation of his conjugal partnership. (Docket No. 1.) Defendants move for summary judgment (Docket No. 16), and Plaintiffs oppose and countermove for summary judgment as to Rodríguez' liability (Docket No. 20).
I. Factual and Procedural History
We derive the following factual and procedural summary from the parties' pleadings, motions, exhibits, and statements of uncontested facts. (Docket Nos. 1; 8; 16; 17; 18; 21; 22.)
On March 1, 2007, Rodríguez, a physician at Hato Rey Pathology Associates ("HRPA"), performed a biopsy on Patient. (Docket Nos. 21 at 3; 21-2 at 2.) On March 6, 2007, Rodríguez issued a cytology report providing a diagnosis of "pleomorphic adenoma" (Docket No. 21-5), which is a benign tumor of the salivary glands (Docket No. 17-2 at 14). On March 30, 2007, Patient's physician, José Arsuaga, reported this diagnosis to Patient and recommended removal of the tumor. (Docket No. 21-2 at 2.)
Due to circumstances not relevant here, Patient later requested from HRPA the slides from her biopsy. (Id. at 3.) Before releasing the slides to an outside institution, HRPA reviewed Rodríguez' diagnosis. (See Docket No. 21-6 at 3-4.) As a result, a different physician at HRPA, Víctor J. Carlo-Chévere ("Carlo"), produced an amended cytology report that changed Patient's diagnosis from pleomorphic adenoma to "mucoepidermoid carcinoma" (id. at 4; Docket No. 21-7), which is a malignant tumor (see Docket No. 21-6 at 4). To arrive at the revised diagnosis, Carlo used "differential diagnosis" (Docket No. 21-6 at 3), which, according to Plaintiffs, is a standard technique used by physicians to arrive at an accurate diagnosis (see, e.g., Docket No. 21 at 7). It is unclear from the record whether Rodríguez used differential diagnosis in arriving at his original diagnosis.
Plaintiffs state that Rodríguez did not use differential diagnosis, but they cite only testimony from Carlo describing Carlo's own method and stating that Rodríguez did not perform one particular step in Carlo's method. (Docket Nos. 21 at 4; 22-6 at 2-3.)
Patient read the amended report on July 18, 2007, the same day she retrieved it from HRPA, and learned for the first time that she had cancer. (Docket No. 21-2 at 3.) Plaintiffs suffered shock and long-lasting distress as a result of this unexpected change in diagnosis. (Id.) According to Patient's testimony, Plaintiffs believed that they could no longer trust Puerto Rico physicians, and they, therefore, opted for Patient to undergo treatment in Florida instead. (Id.) In Florida, a physician successfully removed the tumor, and the attendant pathology confirmed Carlo's revised diagnosis. (See Docket No. 21-3 at 2.)
On August 8, 2008, Plaintiffs filed suit in this court. (Docket No. 1.) Defendants moved for summary judgment on August 20, 2009. (Docket No. 16.) On September 1, 2009 Plaintiffs responded and countermoved for summary judgment on the issue of Rodríguez' liability. (Docket No. 21.)
II. Summary Judgment under Rule 56(c)
We grant a motion for summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A factual dispute is "genuine" if it could be resolved in favor of either party and "material" if it potentially affects the outcome of the case. Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004).
The movant carries the burden of establishing that there is no genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In evaluating a motion for summary judgment, we view the record in the light most favorable to the nonmovant. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970).
"Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must `produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.'" Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006) (quoting Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999)). The nonmovant "may not rely merely on allegations or denials in its own pleading; rather, its response must . . . set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2).
III. Analysis
Defendants argue that they are entitled to summary judgment because Plaintiffs cannot establish a cause of action under Article 1802 for medical malpractice. (Docket No. 16.) Specifically, they argue that Plaintiffs have not proffered evidence establishing (1) the relevant standard of care; (2) Rodríguez' breach of that standard; or (3) a causal link between Rodríguez' conduct and Plaintiffs' alleged damages. (Id.) Because we determine that Plaintiffs failed to adduce evidence establishing the relevant standard of care, we do not address the issues of breach and causation.
A. Applicable Substantive Law in a Diversity Case
In diversity cases, "the substantive law of the forum state controls." Martínez-Serrano v. Quality Health Servs. of P.R., 568 F.3d 278, 285 (1st Cir. 2009) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)); see 28 U.S.C. § 1652. "For this purpose, Puerto Rico is treated as the functional equivalent of a state."Id. (citing Rolón-Alvarado v. Municipality of San Juan, 1 F.3d 74, 77 (1st Cir. 1993)). Because the instant case is in diversity, we apply Puerto Rico law in determining whether Plaintiffs have established a prima-facie case of medical malpractice.
B. Medical Malpractice under Article 1802
Article 1802 provides that "[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." 31 L.P.R.A. § 5141 (1990). To establish a prima-facie case under Article 1802, a plaintiff must show "the duty owed, the occurrence of an act or omission constituting a breach of that duty, and a sufficient causal nexus between the breach and some resultant harm."Martínez-Serrano, 568 F.3d at 285.
A medical malpractice claim involves a specific duty owed by a doctor, namely "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." Id. (quoting Rolón-Alvarado, 1 F.3d at 77). Due to the technical nature of health-care provision, a plaintiff "ordinarily" must proffer expert testimony describing the "minimum standard of acceptable care" to make out the duty element. Rolón-Alvarado, 1 F.3d at 78. The rare exception from this expert-testimony requirement is where "the claimed medical malpractice is sufficiently blatant or patent that lay persons, relying on common knowledge and experience, can legitimately recognize or infer negligence." Id. at 79 (citing Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir. 1987)).
In the case at bar, Plaintiffs have not offered expert testimony describing the minimum standard of care that was owed by Rodríguez. (Docket Nos. 21; 22.) Instead, they argue that their case falls into the rare exception contemplated inRolón-Alvarado. (Docket No. 21 at 14-15, 17-18.) Their argument, however, hinges on their claim that "the applicable standard of care [was for Rodríguez] to make a differential diagnosis." (Id. at 18.) In Rolón-Alvarado, the court explicitly precluded this argument: "The questions plaintiff has raised [as to her doctor's duty] involve matters of . . . differential diagnosis . . . [which is] neither obvious to the untrained eye nor, by any stretch, within a layman's ken." 1 F.3d at 79. Thus, Plaintiffs cannot rely on the exception; they were required to provide expert testimony describing the standard of care applicable to Rodríguez. As they failed to do so, they cannot establish a prima-facie claim of medical malpractice under Article 1802.
Despite First Circuit law, Plaintiffs assert two other exceptions to the expert-testimony requirement: (1) where medical treatises demonstrate proper practice; and (2) where practice standards are published by professionals. (See Docket No. 21 at 15.) But they neither cite relevant law to support their assertion (see id.) nor provide either type of evidence for our consideration (see id. at 17-18).
IV. Conclusion
For the reasons stated herein, we GRANT Defendants' motion for summary judgment (Docket No. 16), and we DISMISS Plaintiffs' claims against Rodríguez and his malpractice underwriter, Seguros Triple-S, Inc. We DENY as MOOT Plaintiffs' countermotion for summary judgment (Docket No. 20).
IT IS SO ORDERED.