United States Court of Appeals
For the First Circuit
No. 09-1699
ARTEMIO BORGES AND KIMBERLY WETHERELL, AS PARENTS AND NEXT
FRIENDS OF S.M.B.W., A MINOR,
Plaintiffs, Appellants,
v.
DR. ALFONSO SERRANO-ISERN, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Torruella, Selya and Lipez,
Circuit Judges.
David Efron, with whom Law Offices David Efron, P.C. was on
brief, for appellants.
Benjamin Morales Del Valle, with whom Morales-Morales Law
Offices was on brief, for Serrano-Isern and related appellees.
Roberto Ruiz Comas, with whom Bufete González Villamil was on
brief, for Hospital Interamericano de Medicina Avanzada and related
appellees.
May 3, 2010
SELYA, Circuit Judge. This appeal grows out of a medical
malpractice action brought under diversity jurisdiction. See 28
U.S.C. § 1332(a). The district court jettisoned the action at the
summary judgment stage. The plaintiffs appeal. Discerning no
error, we affirm.
I. BACKGROUND
We rehearse the facts limned in the summary judgment
record, taking them in the light most hospitable to the plaintiffs.
Alt. Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 26 (1st
Cir. 2004). We add more detail in our later discussion of the
plaintiffs' specific claims. To the extent that we refer to the
allegations of the complaint, we caution that mere allegations are
not entitled to weight in the summary judgment calculus. Id.
We start with the cast of characters. The plaintiffs are
Artemio Borges and Kimberly Wetherell, husband and wife, who sue on
behalf of their minor daughter, Stephanie Marie Borges-Wetherell.
There are a plethora of defendants but, for present purposes, the
only two who matter are Alfonso Serrano-Isern (Dr. Serrano) and
Hospital Interamericano de Medicina Avanzada (the Hospital).
Dr. Serrano practices obstetrics and gynecology in Puerto
Rico. Wetherell (who, like all the plaintiffs, claims Florida
citizenship) became pregnant, and enlisted Dr. Serrano's services.
Dr. Serrano treated her from and after February 6, 2003.
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Wetherell's pregnancy was unremarkable, her prenatal course
uneventful, and her prognosis good.
At around 7:33 a.m. on June 2, 2003, Wetherell was
admitted to the Hospital for induction of labor. Following
Wetherell's admission, Dr. Serrano, together with the Hospital's
nurses and other staff, took charge of her care.
Dr. Serrano decided to deliver the baby by Cesarean
section (C-section). He says that he made this decision because
the baseline fetal heart rate, which he characterized as low but
within normal limits, indicated the wisdom of this method of
delivery. The plaintiffs do not accept this explanation,
suggesting that an emergency C-section was required because of the
presence of fetal bradycardia (that is, a sustained, abnormally low
fetal heart rate).
Whatever the reason for deciding to deliver the baby by
C-section, Wetherell signed a consent form for the procedure at
8:15 a.m. She was taken to an operating room at 10:00 a.m.
Anesthesia was administered at 10:18 a.m. She gave birth to
Stephanie at 10:22 a.m.
In the course of performing the C-section, Dr. Serrano
discovered an occult cord prolapse. The hospital records show that
the C-section was well underway when that discovery occurred.
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At birth, Stephanie was an apparently healthy baby. She
cried and suckled normally. A cranial sonogram, a neurological
consultation, and a pulmonary evaluation revealed no problems.
The Hospital discharged Wetherell on June 5, 2003. It
sent Stephanie home six days later.
On October 26, 2006, the plaintiffs sued for medical
malpractice. The complaint alleges that Stephanie has experienced
serious physical and neurological deficits, global developmental
delay, and low muscle tone — conditions that allegedly require, and
will in the future require, continuous physical, occupational, and
speech therapies. The complaint attributes these maladies to
injuries sustained at birth, specifically, intrapartum anoxia
secondary to umbilical cord prolapse and delay in calling for and
performing the C-section.
The plaintiffs claimed that Dr. Serrano was liable for
his own negligence and that the Hospital was liable both
vicariously (for Dr. Serrano's carelessness) and by virtue of its
independent negligence. Both the doctor and the Hospital denied
these claims.
A period of pretrial discovery began, during which both
sides retained experts. Following the completion of discovery, Dr.
Serrano moved for summary judgment, arguing that he had provided
treatment that fully comported with the applicable standard of care
and that the plaintiffs had failed to show that any negligence on
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his part had caused harm to Stephanie. Two days later, the
Hospital likewise moved for summary judgment, arguing that the
plaintiffs had failed to show a basis for any liability (vicarious
or direct) on its part.
The district court granted both motions. See Wetherell
v. Hosp. Interamericano de Medicina Avanzada, Inc. (Wetherell II),
609 F. Supp. 2d 186, 193 (D.P.R. 2009) (granting the Hospital's
motion); Wetherell v. Hosp. Interamericano de Medicina Avanzada,
Inc. (Wetherell I), No. 06-2079, 2009 WL 921157, at *7 (D.P.R. Mar.
31, 2009) (granting Dr. Serrano's motion). In its thoughtful
opinion allowing Dr. Serrano's motion, the court held that the
plaintiffs had failed to show either that Dr. Serrano had
transgressed his duty of care or that a causal nexus existed
between Dr. Serrano's conduct and Stephanie's alleged injuries.
Wetherell I, 2009 WL 921157, at *7. In a separate opinion, the
court held that the plaintiffs had failed to show that the Hospital
could be found either independently negligent or vicariously
liable. Wetherell II, 609 F. Supp. 2d at 192-93. This timely
appeal ensued.
II. ANALYSIS
On appeal, the plaintiffs challenge the district court's
entry of summary judgment in favor of both the Hospital and Dr.
Serrano. We first delineate the summary judgment standard; then
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clarify a procedural point; and, finally, examine sequentially the
two challenged rulings.
A. The Summary Judgment Standard.
We review orders granting summary judgment de novo,
considering the facts of record and all reasonable inferences
therefrom in the light most favorable to the nonmoving party. See
Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 183-84
(1st Cir. 1999). Summary judgment is appropriate if there is no
genuine issue as to any material fact and the undisputed facts show
that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c)(2).
The vocabulary of summary judgment is well-defined. An
issue is "genuine" if the evidence of record permits a rational
factfinder to resolve it in favor of either party. See Medina-
Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
A fact is "material" if its existence or nonexistence has the
potential to change the outcome of the suit. See Martínez v.
Colón, 54 F.3d 980, 984 (1st Cir. 1995).
The moving party bears the initial burden of informing
the trial court of the basis for his motion and identifying the
portions of the pleadings, depositions, answers to interrogatories,
admissions, and affidavits, if any, that demonstrate the absence of
any genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once the moving party has accomplished this
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feat, the burden shifts to the nonmoving party, who must, with
respect to each issue on which she would bear the burden of proof
at trial, demonstrate that a trier of fact could reasonably resolve
that issue in her favor. Id. at 324; DeNovellis v. Shalala, 124
F.3d 298, 306 (1st Cir. 1997). As a general rule, that requires
the production of evidence that is "significant[ly] probative."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If the
nonmovant fails to make this showing, then summary judgment is
appropriate. Celotex, 477 U.S. at 324.
B. The Deeming Order.
The local rules of the United States District Court for
the District of Puerto Rico require that parties make certain
filings in connection with motions for summary judgment. The
movant must support his motion with "a separate, short, and concise
statement of material facts, set forth in numbered paragraphs, as
to which the moving party contends there is no genuine issue of
material fact to be tried." D.P.R.R. 56(b). "Each fact asserted
in the statement shall be supported by a record citation . . . ."
Id.
If the target of the motion chooses to oppose it, she
must file with her opposition a "separate, short, and concise"
counter-statement. D.P.R.R. 56(c). "Th[is] opposing statement
shall admit, deny or qualify the facts [supporting the motion for
summary judgment] by reference to each numbered paragraph of the
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moving party's statement of material facts and unless a fact is
admitted, shall support each denial or qualification by a record
citation . . . ." Id.
These statements — both the movant's and the nonmovant's
— must satisfy specific commands:
Facts contained in a supporting or opposing
statement of material facts, if supported by
record citations as required by this rule,
shall be deemed admitted unless properly
controverted. An assertion of fact set forth
in a statement of material facts shall be
followed by a citation to the specific page or
paragraph of identified record material
supporting the assertion. The court may
disregard any statement of fact not supported
by a specific citation to record material
properly considered on summary judgment. The
court shall have no independent duty to search
or consider any part of the record not
specifically referenced in the parties'
separate statement of facts.
D.P.R.R. 56(e).
When Dr. Serrano and the Hospital filed their respective
summary judgment motions, each of them filed the required
statement.1 The plaintiffs filed oppositions, admitting some of
the declared facts and purporting to dispute or qualify others.
The plaintiffs, however, neglected to observe the strictures of the
local rule and omitted appropriate citations to the record with
1
This is not to say that the defendants complied fully with
the local rule. Their proffers included some factual assertions
that were not accompanied by appropriate record citations. The
court below accorded these assertions no weight in the summary
judgment calculus, and we emulate its example.
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respect to their denials and qualifications. Accordingly, the
district court deemed admitted the properly supported facts set
forth by the defendants in their respective statements.
The district court's deeming order is unimpugnable. See
Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir. 2000) (explaining
that "failure to present a statement of disputed facts, embroidered
with specific citations to the record, justifies the court's
deeming the facts presented in the movant's statement of undisputed
facts admitted"). Indeed, "deeming" is precisely the remedy that
the local rule envisions for failures of compliance. See D.P.R.R.
56(e). Thus, we treat the facts expressly admitted by the
plaintiffs, as well as those deemed admitted by the district court,
as uncontested.
C. Liability of the Hospital.
We move next to the plaintiffs' challenge to the entry of
summary judgment in favor of the Hospital. We need not tarry.
The plaintiffs' brief is devoid of any developed
argumentation as to the issue of the Hospital's liability. It
offers only an oblique suggestion that the Hospital was vicariously
liable for the acts of Dr. Serrano (ostensibly an independent
contractor) and a conclusory assertion that Stephanie's injuries
were the result of the Hospital's "condonation of . . . negligent
acts and malpractice" on the doctor's part. Appellants' Br. at 10.
This sparse rhetoric falls well short of satisfying the imperative
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that an appellant's brief must set forth her "contentions and the
reasons for them, with citations to the authorities and parts of
the record on which the appellant relies." Fed. R. App. P.
28(a)(9)(A).
To say more about this assignment of error would be
supererogatory. By their failure to present any developed
argumentation with respect to the Hospital's liability, the
plaintiffs have waived their claim that the district court erred in
granting the Hospital's motion for summary judgment. See Adorno v.
Crowley Towing & Transp. Co., 443 F.3d 122, 124 n.2 (1st Cir. 2006)
(declining to address argument that district court erred in
granting summary judgment because appellants' brief "failed to
develop any . . . argument sufficiently to put the correctness of
the summary judgment rulings in dispute"); United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that "issues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived").
D. Liability of Dr. Serrano.
We turn now to the entry of summary judgment in favor of
Dr. Serrano. Because this is a diversity case, the substantive law
of Puerto Rico controls. Erie R.R. Co. v. Tompkins, 304 U.S. 64,
78 (1938); Cortés-Irizarry v. Corporación Insular De Seguros, 111
F.3d 184, 189 (1st Cir. 1997). To make out a prima facie case for
medical malpractice under the Civil Code, P.R. Laws Ann. tit. 31,
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§ 5141, a plaintiff must adduce evidence sufficient to establish
three elements: (i) the duty owed (i.e., the minimum standard of
professional skill and knowledge required in the relevant
circumstances), (ii) an act or omission transgressing that duty,
and (iii) a sufficient causal nexus between the breach of duty and
the harm claimed. Cortés-Irizarry, 111 F.3d at 189; Lama v.
Borras, 16 F.3d 473, 478 (1st Cir. 1994); Rolon-Alvarado v. Mun'y
of San Juan, 1 F.3d 74, 77 (1st Cir. 1993).
Under this framework, breach of duty is an essential
element of a cause of action for malpractice. To consider whether
a breach has been shown, we first must understand the nature of the
duty owed.
The general parameters of the duty of care that a
physician owes to a patient under Puerto Rico law are
uncontroversial. The physician must employ a level of care
consistent with that set by the medical profession nationally.
Cortés-Irizarry, 111 F.3d at 190. Thus, an obstetrician, like Dr.
Serrano, must use the same level of care that is generally accepted
as good practice in the obstetrical subspecialty, nationwide. Id.
Puerto Rico law affords a physician a presumption that he
has provided an appropriate level of care. Id. It is the
plaintiff's obligation to refute this presumption by adducing
evidence sufficient to show both the minimum standard of care
required and the physician's failure to achieve it. Id.
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The plaintiffs argue that they adequately rebutted the
presumption that Dr. Serrano used a reasonable degree of care and
that, therefore, the district court erred in concluding that they
failed to show a breach of duty. An appraisal of this argument
begins with an acknowledgment that Dr. Serrano's motion and
supporting statement of undisputed facts were adequate to shift to
the plaintiffs the burden of providing evidence reflecting a
genuine issue of material fact. See Celotex, 477 U.S. at 322-23.
In an effort to satisfy this burden, the plaintiffs asserted that
Dr. Serrano breached his duty of care in two interrelated ways: (i)
by inordinate delay in calling for and performing an emergency C-
section; and (ii) by failing properly to diagnose and treat
intrapartum anoxia secondary to cord prolapse. We evaluate these
assertions in the cold light of the summary judgment record.
The charge of inordinate delay focuses on the gap of
roughly one hour and forty-five minutes between the time that
Wetherell signed the consent form for the C-section and the time
when she was wheeled into the operating room. The claim is that
Dr. Serrano, in the exercise of due care, should have performed the
C-section as soon as he knew or had reason to know that Stephanie,
while in utero, was suffering from fetal bradycardia. The
plaintiffs say that Dr. Serrano knew or should have known of that
fact when, or very shortly after, Wetherell arrived at the
Hospital. The relevant facts are as follows.
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During labor, the fetal heart rate is monitored and
contemporaneous tracings are available to the attending
obstetrician. Fetal bradycardia is a slowing of the fetal heart
rate. A normal fetal heart rate ranges from 120 to 160 beats per
minute. A fetal heart rate below 110 beats per minute is termed
bradycardia; subject, however, to the limitation that bradycardia
requires this low fetal heart rate, according to the plaintiffs'
obstetrical expert, Dr. Steven Weissberg, to be "constant and for
a certain period of time . . . not just fractions of seconds."
Here, the plaintiffs did not adduce any evidence that
Stephanie in fact had bradycardia. To establish bradycardia, the
plaintiffs rely almost exclusively on Dr. Weissberg's review of the
fetal heart rate tracings. Those tracings showed an occasional dip
in the fetal heart rate below 110, but Dr. Weissberg did not
envision this as an aposematic sign. He freely admitted that a
momentary fetal heart rate under 110 beats per minute is not in
itself sufficient to show bradycardia; that the presence of
bradycardia ordinarily would be manifested by a fetal heart rate
staying below 110 beats per minute "constant[ly] and for a certain
period of time"; and that the infrequent occasions when Stephanie's
heart rate fell below 110 beats per minute were fleeting and not
sustained. Fairly read, Dr. Weissberg's testimony undercuts,
rather than supports, the proposition that Stephanie was
experiencing bradycardia.
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In an effort to blunt the force of this reasoning, the
plaintiffs argue that an excerpt from Dr. Weissberg's report
constitutes significantly probative evidence that Dr. Serrano did
not act quickly enough to perform a C-section while Stephanie was
experiencing bradycardia.2 The excerpt states:
In my opinion, I feel the care rendered
Kimberly Wetherell fell below the standard of
care because of the failure to perform a
timely Cesarean section. The patient had been
informed and signed for a Cesarean section at
0815, and she alleges she was told an
operating room was not available, and did not
enter the operating [room] for another hour
and 45 minutes, an excessive delay. During
this entire period of time, the fetal
heartbeat remained low.
We do not think that this passage creates a triable issue
as to any material fact. Dr. Weissberg's opinion is premised on
the assumption that, during Wetherell's entire waiting time, the
fetal heart rate was low. But there is no evidence of this;
rather, the evidence belies the assumption of a persistently low
fetal heart rate. An expert opinion grounded on a nonexistent fact
is not significantly probative. See, e.g., Guile v. United States,
422 F.3d 221, 227 (5th Cir. 2005) (holding that expert opinion
based on "incorrect factual assumptions" was insufficient to create
triable issue of fact).
2
As Dr. Weissberg testified, the terms "bradycardia" and "low
heart rate" are sometimes used interchangeably.
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Indeed, Dr. Weissberg admitted in his deposition that the
fetal heart rate tracings showed that the times Stephanie's heart
rate went below 110 beats per minute were brief, not sustained, and
did not occur in a pattern consistent with a diagnosis of
bradycardia. Thus, Dr. Weissberg's deposition testimony, given
after he wrote his report, conclusively shows the absence of any
significantly probative evidence that Stephanie suffered from
bradycardia during the relevant time frame.3 In light of his
later, more detailed deposition testimony, Dr. Weissberg's report
plainly cannot be said to create a triable issue of fact. Cf.
Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st
Cir. 1994) (holding that nonmovant cannot avoid summary judgment by
an affidavit that contradicts, without explanation for the
contradiction, the witness's deposition testimony); S.W.S.
Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 496 (5th Cir. 1996)
(similar).
That ends this aspect of our inquiry. Because there is
no evidence in the summary judgment record from which a reasonable
factfinder could conclude that Stephanie suffered from bradycardia
in the relevant time frame, the plaintiffs' first breach-of-duty
theory comes to naught.
3
The plaintiffs could have offered supplemental expert
reports or affidavits explaining how, despite these admissions,
there was still sufficient evidence of bradycardia in the record.
See, e.g., Tippens v. Celotex Corp., 805 F.2d 949, 954 (11th Cir.
1986). They did not do so.
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The plaintiffs' remaining breach-of-duty theory posits a
failure properly to diagnose and treat intrapartum anoxia secondary
to cord prolapse. Dr. Serrano argued below that there was an
absence of any evidence showing that he knew or should have known,
prior to performing the C-section, that Stephanie was endangered by
an occult cord prolapse. The plaintiffs, laboring to make out a
genuine issue of material fact, once again rely on Dr. Weissberg's
views. That reliance is mislaid.
We pause to lay out the medical background. A cord
prolapse (sometimes called an "overt cord prolapse") occurs when
the umbilical cord protrudes into the vagina, preceding the baby.
The Merck Manual 2207 (18th ed. 2006). It is accompanied by
ruptured membranes, id., and because compression of the cord during
labor may cause fetal hypoxemia,4 requires the immediate
performance of a C-section. Due to its positioning, an overt cord
prolapse is visible to the obstetrician very early in the continuum
of labor and delivery.
Dr. Weissberg admitted at deposition that there was no
cord prolapse as such during this delivery. Rather, Stephanie's
birth was complicated by a different condition: an occult cord
prolapse. As we explain below, the difference is critically
important.
4
Hypoxemia is deficient oxygenation of the blood. See
Merriam-Webster's Med. Desk Dict. 378 (2005).
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An occult cord prolapse occurs when a prolapsed umbilical
cord is confined to the uterus, not protruding into the vagina.
Generally, in an occult cord prolapse the cord is compressed by the
fetus's shoulder or head. Id. There are no ruptured membranes.
Thus, the cord is hidden from the obstetrician's view and does not
become visible until surgery is actually performed.
So it was here: there is no evidence that Dr. Serrano
could have known of the occult cord prolapse in advance of actually
performing the C-section. The cervix was closed and no membranes
had ruptured. Indeed, even Dr. Weissberg was unable to offer any
explanation as to how Dr. Serrano might have known about the occult
cord prolapse prior to performing the C-section (and, thus he
conceded that Dr. Serrano presumably did not know that such a
condition existed prior to his actual performance of the C-
section). Hence, the occult cord prolapse could not have
forewarned Dr. Serrano that an immediate C-section should be
undertaken.
The plaintiffs offer a weak retort. They cite a passage
from the report of Dr. Allan Hausknecht, their neurological expert,
and suggest that this excerpt is sufficient to create a trialworthy
issue with respect to whether and when Dr. Serrano should have
known of the prolapsed cord. The passage on which the plaintiffs
rely reads:
The findings that this child exhibits are
characteristic of hypoxic ischemic
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encephalopathy. Dr. Weissberg explained in
his report that the prolapse of the cord which
was left to exist for an inappropriate amount
of time is the cause of cerebral anoxia, which
is the cause of hypoxic ischemic
encephalopathy. I therefore feel with
reasonable medical certainty that the
departures present at the time of delivery
caused brain damage (hypoxic ischemic
encephalopathy) to [S.M.B.W.]
The plaintiffs do not advance a specific explanation as
to how this passage is evidence that Dr. Serrano breached his duty
of care. Their argument is presumably that Dr. Serrano should have
realized earlier that Stephanie was experiencing an occult cord
prolapse and, therefore, should have performed a C-section sooner.
That suggestion represents a triumph of hope over reason.
The plaintiffs' obstetrical expert, Dr. Weissberg, made it pellucid
that there was no way Dr. Serrano could have known about the occult
cord prolapse prior to undertaking the C-section. Dr. Hausknecht's
second-hand view of what he believed Dr. Weissberg meant cannot
reinvent this reality. Dr. Hausknecht expressly bases his
conjecture that the "prolapse of the cord . . . was left to exist
for an inappropriate amount of time" on Dr. Weissberg's report —
and, as we have explained, Dr. Weissberg's final conclusion was to
the contrary. Because the summary judgment record contains no
significantly probative evidence that Dr. Serrano either could or
should have known about the occult cord prolapse prior to
performing the C-section, there is no trialworthy issue about the
timing of the procedure.
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There is one loose end. The plaintiffs tack on at the
end of their brief a perfervid argument — without a single citation
to relevant authority — to the effect that the district court's
grant of summary judgment violated their due process rights.
This court, as well as many of our sister circuits, has
previously rejected this type of global constitutional attack on
the summary judgment mechanism. See, e.g., Calvi v. Knox County,
470 F.3d 422, 427 (1st Cir. 2006) (rejecting broadside Seventh-
Amendment attack on summary judgment mechanism); Koski v. Standex
Int'l Corp., 307 F.3d 672, 676 (7th Cir. 2002) (rejecting
"frivolous" argument that district court's grant of summary
judgment violated defendant's due process rights). We see no
meritorious basis for the attack here.
III. CONCLUSION
We need go no further.5 The plaintiffs' argument that
Dr. Serrano breached his duty of care through delay in calling for
and performing a C-section fails because the plaintiffs offered no
evidence that Dr. Serrano could or should have known, at the
relevant time, that Stephanie suffered from either bradycardia or
a cord prolapse. A physician cannot breach a duty to call for and
5
The district court also concluded that the plaintiffs had
not adduced evidence sufficient to establish a causal connection
between any acts or omissions on Dr. Serrano's part and the harm
alleged by the plaintiffs. In view of our disposition of the
breach-of-duty issue, there is no reason for us to grapple with the
causation issue.
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perform an emergency procedure when there is no evidence that the
physician knew or should have known, at the relevant time, that an
emergency existed. The district court did not err in entering
summary judgment in favor of all defendants.
Affirmed.
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