United States Court of Appeals
For the First Circuit
No. 92-2298
SANDRA ROLON-ALVARADO,
Plaintiff, Appellant,
v.
MUNICIPALITY OF SAN JUAN,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Selya, Cyr and Stahl,
Circuit Judges.
Pedro J. Varela and Jose E. Colon on brief for appellant.
Thomas Doran Gelabert and Eli B. Arroyo on brief for
appellee.
August 9, 1993
SELYA, Circuit Judge. This appeal necessitates that we
SELYA, Circuit Judge.
consider the quantum and character of proof needed under Puerto
Rico law in a medical malpractice case. The lower court found
plaintiff's evidence to be apterous and grounded her suit before
it reached the jury. We affirm.
I
Plaintiff-appellant Sandra Rolon-Alvarado is a citizen
and resident of New York. She is also a surviving daughter of
Efrain Rolon-Robles, who died while undergoing treatment at a
hospital operated by defendant-appellee (a municipality).
The facts leading up to Rolon-Robles's demise are
largely uncontradicted. Rolon-Robles began experiencing
abdominal pain on May 4, 1990. The next day, he was admitted to
San Juan Municipal Hospital for treatment of an intestinal
obstruction. While being rehydrated in preparation for surgery
on May 6, Rolon-Robles remarked that the abdominal pain had
abated. The attending physicians took this as an indication that
he probably had a paralytic ileus rather than an intestinal
obstruction. Consequently, they postponed the scheduled surgery.
As the hours went by, the patient's condition
deteriorated. The doctors reversed their field, reinstated the
original diagnosis, and operated on May 7. Rolon-Robles remained
in stable condition until later that day, when an endotracheal
tube, reinserted in the immediate aftermath of the surgery,
snapped. While a physician attempted to replace the broken tube,
Rolon-Robles went into cardiorespiratory arrest. Shortly
2
thereafter, he expired.
The parties draw vastly different inferences from this
set of facts. One series of inferences prompted plaintiff to
bring the instant action in Puerto Rico's federal district court.
Invoking diversity jurisdiction, see 28 U.S.C. 1332(a) (1988),
she alleged that her father died due to the careless and
negligent treatment he received at the hospital. Defendant,
preferring a far more flattering series of inferences, denied the
allegations.
In the course of discovery, plaintiff refined her
charges into four basic claims. Three sounded in ordinary
negligence: that defendant's agents (the hospital and the
staff), heedless of their obligation to exercise due care, (1)
delayed surgery, (2) misdiagnosed her father's condition, and (3)
left him unattended during critical stages of the postoperative
period. The fourth claim posited that the defendant should be
held strictly liable for the ruptured endotracheal tube. At
trial, plaintiff attempted to prove her claims. When she rested,
the district court granted defendant's motion for judgment as a
matter of law. See Fed. R. Civ. P. 50(a)(1). This appeal
followed.
II
We restate, in capsule form, the principles that govern
judicial consideration of motions under Rule 50(a).
A trial court, confronted with a motion for judgment as
a matter of law, whether at the end of the plaintiff's case or at
3
the close of all the evidence, must scrutinize the proof and the
inferences reasonably to be drawn therefrom in the light most
hospitable to the nonmovant. See Lowe v. Scott, 959 F.2d 323,
337 (1st Cir. 1992); Santiago Hodge v. Parke Davis & Co., 909
F.2d 628, 634 (1st Cir. 1990); Wagenmann v. Adams, 829 F.2d 196,
200 (1st Cir. 1987). In conducting that perscrutation, the court
must refrain from differential factfinding; that is to say, the
court must "not consider the credibility of witnesses, resolve
conflicts in testimony, or evaluate the weight of the evidence."
Wagenmann, 829 F.2d at 200. A verdict may be directed only if
the evidence, viewed from this perspective, is such that
reasonable minds could not differ as to the outcome. See Veranda
Beach Club Ltd. Partnership v. Western Sur. Co., 936 F.2d 1364,
1383 (1st Cir. 1991); Hubbard v. Faros Fisheries, Inc., 626 F.2d
196, 199 (1st Cir. 1980).
When, as now, a disappointed suitor seeks to set aside
a directed verdict, the court of appeals is constrained in
precisely the same fashion as the district court. For this
reason, and because the key question revolves around the legal
sufficiency of the evidence, appellate review is plenary. See
Salve Regina Coll. v. Russell, 111 S. Ct. 1217, 1221 (1991);
Jordan Milton Mach., Inc. v. F/V Teresa Marie, II, 978 F.2d 32,
34 (1st Cir. 1992).
III
The substantive law of Puerto Rico controls in this
4
diversity suit.1 To establish a prima facie case of medical
malpractice under that law, a plaintiff must adduce evidence
showing at least three separate things: (1) the duty owed,
expressed as the minimum standard of professional knowledge and
skill required under the circumstances then obtaining; (2) a
breach of that duty attributable to the defendant; and (3) a
sufficient causal nexus between the breach and the plaintiff's
claimed injury.2 See Sierra Perez v. United States, 779 F. Supp.
637, 643 (D.P.R. 1991); Crespo v. Hernandez, 121 P.R. Dec. 639,
650 (1988); Medina Santiago v. Velez, 120 P.R. Dec. 380, 385
(1988). The district court concluded that Rolon-Alvarado's
proof, viewed in the light most favorable to her, did not suffice
to establish any of these three elements. We agree with the
court below that plaintiff did not prove a prima facie case.
A
1First Circuit Local Rule 30.7 provides in pertinent part
that, "[w]henever an opinion of the Supreme Court of Puerto Rico
is cited in a brief . . . [and] does not appear in the bound
volumes in English, an official, certified or stipulated
translation thereof with three conformed copies shall be filed."
In this instance, the parties have cited several such cases
without supplying translations. Although we have coped by using
informal translations of the opinions in question, we remind
litigants of their obligations under Local Rule 30.7 and forewarn
the bar that, in the future, we will insist upon strict
observance of the rule.
2The elements of this cause of action under Puerto Rico law
are comparable to the elements of a cause of action for medical
malpractice elsewhere. See, e.g., Mills v. Levy, 537 F.2d 1331,
1332 (5th Cir. 1976) (applying Louisiana law); MacDonald v.
United States, 767 F. Supp. 1295, 1307 (M.D. Pa. 1991) (applying
Pennsylvania law); McGuiness v. United States, 738 F. Supp. 566,
569 (D.D.C. 1990) (applying Maryland law); Powers v. United
States, 589 F. Supp. 1084, 1099 (D. Conn. 1984) (applying
Connecticut law).
5
We begin and end our consideration of plaintiff's
first three claims by focusing on her abortive attempt to
delineate the duty owed. In 1973, Puerto Rico jettisoned the so-
called "locality" or "community standard" rule in favor of a more
universal, less parochial approach to establishing the standard
of acceptable care for purposes of a medical malpractice suit.
See Valendon Martinez v. Hospital Presbiteriano, 806 F.2d 1128,
1135-36 (1st Cir. 1986) (discussing effect of Oliveros v. Abreu,
101 P.R. Dec. 209 (1973)). Today, a physician is expected to
possess, and use, that level of knowledge and skill prevalent in
his or her specialty generally, not simply the knowledge and
skill commonly displayed in the community or immediate geographic
region where the treatment is administered. See Oliveros, 101
P.R. Dec. at 223, 226-27, translated in 1 P.R. Sup. Ct. Off'l
Translations 293, at 303, 313. In other words, a health-care
provider has 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,
regardless of regional variations in professional acumen or level
of care.
Under the law of Puerto Rico, "there exists always a
presumption that the treating physicians have observed a
reasonable degree of care . . . in the process of giving medical
attention and treatment." Del Valle Rivera v. United States, 630
F. Supp. 750, 756 (D.P.R. 1986). Plaintiff bears the burden of
refuting this presumption. See id. To do so, she must first
6
establish the physician's duty. Because medical knowledge and
training are critical to demonstrating the parameters of a
health-care provider's duty, the minimum standard of acceptable
care is almost always a matter of informed opinion. Thus, it
must ordinarily be established by expert testimony. See
Oliveros, 1 P.R. Sup. Ct. Off'l Translations at 315; see also
Bellecourt v. United States, F.2d , (8th Cir. 1993)
(applying Minnesota law) [1993 U.S. App. LEXIS 11,088, at *11];
Dunning v. Kerzner, 910 F.2d 1009, 1014 (1st Cir. 1990) (applying
Rhode Island law); Crowley v. United States, 773 F. Supp. 98, 102
(N.D. Ill. 1991). No such testimony graces this record.
To be sure, plaintiff presented an expert witness, Dr.
Piza.3 But, Dr. Piza did not testify anent duties or standards
of care. Rather, he testified as to what he would have done
differently in managing the decedent's case. Medicine, however,
is not an exact science. It is, therefore, insufficient for a
plaintiff in a malpractice case merely to show that another
doctor would have chosen to treat the patient in a manner
different from the manner in which the attending physicians
treated him. See, e.g., Campbell v. United States, 904 F.2d
1188, 1192 (7th Cir. 1990); Polikoff v. United States, 776 F.
Supp. 1417, 1421 (S.D. Cal. 1991); East v. United States, 745 F.
3Another physician, Dr. Mercado, also testified in
plaintiff's behalf. However, Dr. Mercado did not qualify as an
expert in surgery and the district court limited his testimony
accordingly. On appeal, plaintiff does not assign error to this
ruling. Nothing in Dr. Mercado's remaining testimony adds
materially to Dr. Piza's comments or otherwise assists in filling
the standard-of-care void.
7
Supp. 1142, 1149 ( D. Md. 1990); Walski v. Tiesengas, 381 N.E.2d
279, 285 (Ill. 1978).
We have no doubt that Puerto Rico would follow this
rule; indeed, in what amounts to a variation on the same theme,
the Puerto Rico Supreme Court has held that even an acknowledged
error in medical judgment cannot support a malpractice claim so
long as the mistake is reasonable. See Oliveros, 1 P.R. Sup. Ct.
Off'l Translations at 314; see also Suarez Matos v. Ashford
Presbyterian Community Hosp., F.2d , (1st Cir. 1993)
[No. 92-1861, slip op. at 5] (suggesting that, in Puerto Rico, a
mistake in diagnosis will not necessarily constitute
malpractice); Del Valle Rivera, 630 F. Supp. at 756 (stating
that, under Puerto Rico's jurisprudence, a plaintiff who charges
a physician with malpractice must establish that the defendant's
fault "is more than a mere hindsight possibility"). In sum, tort
law neither holds a doctor to a standard of perfection nor makes
him an insurer of his patient's well-being. Professional
standards require normative judgments, not merely proof that a
better way to treat a particular patient could have been devised.
Against this backdrop, plaintiff's first three
statements of claim cannot survive scrutiny. As to the one-day
delay in operating, Dr. Piza made it clear that he would have put
Rolon-Robles under the knife on May 6 rather than waiting until
May 7 but he offered no enlightenment on the subject of the
prevailing standard by which decisions on the timing of such
operations might be held to fall outside the range of reasonable
8
judgments. By like token, while Dr. Piza testified that he
disagreed with the mid-stream change in diagnosis, and the way in
which the hospital monitored the patient postoperatively, he
failed to advance any basis on which applicable standards could
be fixed or, conversely, against which defendant's conduct could
be measured. The mere fact that Dr. Piza might have selected a
particular approach or method of treatment does not, without
more, establish that a different approach or method, even if
unsuccessful, fell short of the duty owed. Nor did the witness's
references to generalities contained in a learned treatise bridge
the gap.
The short of it is that, as the district court found,
the evidentiary predicate in regard to standards of care is
wholly inadequate; and without such a predicate, the jury had no
legally satisfactory basis for making a reasoned determination as
to whether defendant's employees were negligent in caring for
Rolon-Robles. Consequently, plaintiff could not carry her burden
of proof.
Of course, the law recognizes a narrowly configured
exception to the general rule requiring expert testimony in
medical malpractice cases.4 Although courts have formulated the
exception in divers ways it has been variously described as
implicating situations where common knowledge and experience are
4Although plaintiff has cited no Puerto Rico cases endorsing
this exception, we assume for present purposes, albeit without
deciding, that the Puerto Rico Supreme Court would follow the
majority view and adopt the exception.
9
all that is necessary to comprehend a defendant's negligence,
see, e.g., Nixdorf v. Hicken, 612 P.2d 348, 352 (Utah 1980)
(applying exception to loss of surgical instrument within an
incision), or where negligence is grossly apparent, see, e.g.,
Thomas v. Corso, 288 A.2d 379, 388 (Md. 1972) (applying exception
to physician's outright failure to attend a patient), or where a
doctor's conduct violates a set standard, see, e.g., Monk v.
Doctors Hosp., 403 F.2d 580, 583 (D.C. Cir. 1968) (applying
exception to provider's contravention of manufacturer's
instruction manual for operation of electrosurgicial machine)
we think that the exception encompasses only those few situations
in which the claimed medical malpractice is sufficiently blatant
or patent that lay persons, relying on common knowledge and
experience, can legitimately recognize or infer negligence. Cf.
Wagenmann, 829 F.2d at 218-20 (discussing circumstances under
which expert testimony may properly be foregone in cases of
claimed legal malpractice).
However it may be fine-tuned, the exception does not
sweep so broadly as to avail the present plaintiff. The
questions plaintiff has raised anent decedent's care involve
matters of timing, differential diagnosis, and hospital protocol
matters which are neither obvious to the untrained eye nor, by
any stretch, within a layman's ken. Where, as here, medical
personnel make on-the-spot decisions, requiring sophisticated
medical insights, a jury cannot be expected to evaluate those
judgment calls without the aid of expert opinion. And, because
10
expert testimony is necessary to demonstrate the claimed
negligence of defendant's agents under the circumstances at hand,
this case does not fit within the isthmian confines of the
exception.
We conclude, therefore, given the paucity of the proof,
especially the absence of expert testimony concerning applicable
standards of acceptable care, that the district court properly
directed a verdict on plaintiff's first three claims.
B
We have left for last plaintiff's contention that
liability can be premised on the splintered endotracheal tube.
On this issue, independent proof of a standard of care might not
be required if, as plaintiff says, the doctrine of res ipsa
loquitur pertains.5 Nonetheless, we think that plaintiff's
reliance on the doctrine is mislaid.
For the doctrine of res ipsa loquitur to apply, a
plaintiff must establish that an occurrence is "(1) . . . of a
kind which does not ordinarily take place unless someone is
negligent; (2) caused by an agency or instrumentality within the
defendant's exclusive control; and (3) not due to any voluntary
5Plaintiff initially pleaded strict liability, but abandoned
this approach at trial in favor of a res ipsa loquitur theory.
In any event, it is hornbook law that a health-care provider
cannot be held strictly liable for a latent defect in a medical
device manufactured by a third party. See, e.g., Hoff v. Zimmer,
Inc., 746 F. Supp. 872, 874 (W.D. Wis. 1990); NMF Hosp. v.
Azzariti, 573 So.2d 173, 173 (Fla. 1991) (per curiam); Silverhart
v. Mt. Zion Hosp., 20 Cal. App.3d 1022, 1028 (Cal. 1971).
11
action on the part of the plaintiff." De Leon Lopez v.
Corporacion Insular de Seguros, 931 F.2d 116, 123 (1st Cir. 1991)
(applying Puerto Rico law); accord Colmenares Vivas v. Sun
Alliance Ins. Co., 807 F.2d 1102, 1104 (1st Cir. 1986). Here,
plaintiff's own expert, Dr. Piza, testified categorically that
the breaking of the tube "could not be foreseen"; that mechanical
mishaps of this sort frequently happen in the absence of provider
negligence; that, in general, "there is no possible malpractice
in the rupture of a mechanical device"; and that, in this
specific situation, the attending physicians and nurses were
blameless. Thus, res ipsa loquitur has no bearing on the case.
It follows that plaintiff's fourth statement of claim is
meritless.
IV
We need go no further.6 On this impoverished record,
the district court correctly withheld the case from the jury and
directed a verdict in favor of the defendant.
Affirmed. See 1st Cir. Loc. R. 27.1.
6Since plaintiff failed to prove the minimum standard of
care owed by defendant to her decedent, we need not dwell on the
other deficiencies that the district court attributed to her
case. It suffices to say that, absent proof of the legal duty
owed by a defendant to a plaintiff in a medical malpractice suit,
it is virtually impossible to prove either breach or proximate
cause; breach, after all, depends directly on the contours of the
duty owed, and proximate cause, in turn, depends on the nature
and effect of the breach.
12