United States Court of Appeals
For the First Circuit
No. 03-1215
RUTH GONZÁLEZ-PÉREZ; ANACLETO ORTIZ-VILLANUEVA;
MIRIAM LEMOINE; FRITZ F. LEMOINE;
GLORIA GONZÁLEZ-PÉREZ; LUCY GONZÁLEZ-PÉREZ,
Plaintiffs, Appellants,
v.
HOSPITAL INTERAMERICANO DE MEDICINA AVANZADA (HIMA);
MIGUEL LÓPEZ-NAPOLEONI; JANE DOE;
CONJUGAL PARTNERSHIP LÓPEZ-DOE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Kevin G. Little, with whom Law Offices of David Efrón, was on
brief, for appellants.
Jesús R. Morales-Cordero, with whom José L. González-Castañer
and González Castañer, Morales & Guzmán, PSC, were on brief, for
appellee Dr. Miguel A. López-Napoleoni and his Conjugal
Partnership.
Fernando E. Agrait, for appellee HIMA.
January 14, 2004
TORRUELLA, Circuit Judge. Plaintiffs-appellants brought
a medical malpractice claim under Puerto Rico law. The district
court had jurisdiction to hear the claim pursuant to 28 U.S.C.
1332.1 The defendants successfully moved for summary judgment
arguing that the action was time-barred by the applicable one-year
statute of limitations. We conclude that the district court ruled
correctly as a matter of law and, thus, we affirm.
I. Background
On May 23, 2000, Anacleto Ortiz-Villanueva brought his
wife, Ruth González-Pérez ("González"), to the emergency room at
the Hospital Interamericano de Medicina Avanzada ("HIMA"). She was
suffering from shortness of breath, coughing, tightness in her
chest and palpitations.
González was admitted to HIMA with a diagnosis of status
asthmaticus, bronchitis and atrial fibrillation. On May 25, 2000,
while under the care of Dr. Miguel A. López-Napoleoni
("Dr. López"), a pneumologist, González suffered a stroke.
1
The complaint presented a claim under the Emergency Medical
Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd, et
seq., and the plaintiffs alleged that the district court had
jurisdiction to hear the Puerto Rico law malpractice claims due to
diversity of citizenship, 28 U.S.C. § 1332, and supplemental
jurisdiction, 28 U.S.C. § 1367. On September 23, 2002, the
district court issued a partial judgment dismissing the EMTALA
claim. In its opinion granting summary judgment on the remaining
claims, the district court stated that its jurisdiction was based
on the parties' diversity of citizenship, as all the defendants are
residents of Puerto Rico and the plaintiffs are residents of either
New York or Tennessee.
-2-
González remained hospitalized at HIMA until June 9, 2000, at which
time she was released to a rehabilitation facility.
According to the complaint, González received negligent
care, which in turn caused her permanent disability. González is
joined in this suit by family members ("González family"),
including her husband, Mr. Ortiz, her daughter, Miriam Lemoine, her
son-in-law, Dr. Fritz F. Lemoine2 ("Dr. Lemoine") and her sisters,
Gloria González-Pérez and Lucy González-Pérez.
The González family filed their complaint in the District
Court of Puerto Rico on August 31, 2001.
II. Analysis
A. Accrual of Claim
Under Puerto Rico law, an action for damages for
negligence must be commenced within one year of its accrual. 31
P.R. Laws Ann. § 5298(2). The Puerto Rico Supreme Court has
interpreted this provision as incorporating a discovery rule.
Villarini-García v. Hospital Del Maestro, Inc., 8 F.3d 81, 84 (1st
Cir. 1993). Under this discovery rule, a claim accrues, and the
one-year period starts to run, not at the time of the injury, but
upon the discovery by the injured party of the injury and of its
2
Dr. Lemoine plays an important role in this litigation because
he became involved in González's treatment as an advisor early
during the HIMA hospitalization.
-3-
author.3 Espada v. Lugo, 312 F.3d 1, 5 (1st Cir. 2002)(citing
Tokyo Marine & Fire Ins. Co v. Pérez y Cía., de Puerto Rico, Inc.,
142 F.3d 1, 3 (1st Cir. 1998)).
Because "[t]he law of Puerto Rico treats a person as
being aware of all . . . that person would have been likely to come
to know through the exercise of care," Rodríguez-Surís v.
Montesinos, 123 F.3d 10, 16 (1st Cir. 1997), the González family's
claim accrued at the earlier of the following moments: (1) when the
González family had subjective awareness of González's injury and
its author, see id. at 15, or (2) when they should have known about
the injury and its author by the exercise of due diligence.4 See
3
The statutory period may be tolled under appropriate
circumstances. 31 P.R. Laws Ann. § 5303 ("Prescription of actions
is interrupted by their institution before the courts, by
extrajudicial claim of the creditor, and by any act of
acknowledgment of the debt by the debtor."). None of these
circumstances are extant in the present appeal, nor does any party
so claim.
4
The parties have not argued that the claim accrued on different
dates for different plaintiffs. In fact, the record shows that the
family members kept in close touch with each other making it
reasonable to infer that they reached the requisite subjective
assessments pari passu. And as for Mrs. González,
[i]t . . . seems unlikely that appellant's illness
deprived [her] counsel of the knowledge or consent needed
to file a court complaint; it is more likely that counsel
knew plaintiff wished to pursue [her] legal remedies and
knew (or should have known) about the relevant
limitations period. And, appellant has alleged no
specific facts that would show the contrary. In such
circumstances, we believe a federal court should assume
that the . . . illness was not of a sort that makes it
equitable to toll the statute -- at least absent a strong
reason for believing the contrary.
-4-
id. at 16. If the González family's claims accrued before
August 31, 2000, a year ahead of the complaint's filing, their
claim is time-barred.
As the González family is the non-moving party, we
interpret the record in the light most favorable to them.
Ruiz-Sulsona v. Univ. of P.R., 334 F.3d 157, 159 (1st Cir. 2003).
Nevertheless, the González family's own testimony demonstrates that
they discovered the injury and its author well before the end of
August 2000. González's husband, Mr. Ortiz, was already
considering a suit when his wife was released from the hospital in
early June, his legal theory being the doctor's alleged negligence.
González's sister Gloria remembers Ortiz's saying, in May or June,
that the stroke could have been avoided if González had received
adequate treatment. These admissions, on their own, may well
suffice to commence the running of the statute of limitations under
Puerto Rico law. See Torres v. E.I. Dupont de Nemours & Co., 219
F.3d 13, 20 (1st Cir. 2000). Dr. Lemoine's extensive and detailed
deposition, however, definitively settles the point.
Dr. Lemoine developed the opinion, during González's
hospitalization at HIMA, that she "had not received the appropriate
care from the start, that all of this could have been avoided, that
the care after she received the stroke [sic] was not aggressive
López v. Citibank, N.A., 808 F.2d 905, 907 (1st Cir. 1987). Thus,
we treat the González family as a single appellant for the purpose
of determing whether their claim was time-barred.
-5-
enough, that details for any common stroke patient were not being
observed, that the monitoring of the patient in the hospital was
inadequate . . . ." Dr. Lemoine had technical opinions regarding
Dr. López's and HIMA's failings: "A patient that presents with new
onset atrial fibrillation generally should be anticoagulated
. . . . When the patient starts to complain of numbness and
tingling in their arm and difficulty with speech, they need to be
evaluated by a physician immediately and then treatment
subsequently started." Dr. Lemoine had specific complaints
regarding Dr. López's competence: "I felt that the use of simply
[sic] a transthoracic echocardiogram to determine whether or not
she had a source for embolization was not adequate, . . . that
possibly the extent of her stroke could have been prevented, that
I should not have had to tell [Dr. López] basic standards of care
for a stroke victim . . . ." Moreover, Dr. Lemoine shared these
opinions with the González family later in June, and he had already
communicated his dissatisfaction with González's care to Mr. Ortiz
during the initial hospitalization.
Dr. Lemoine stated that these initial assessments were
not definitively confirmed until he was able to review González's
hospital record. We doubt that Puerto Rico law demands such
certainty; nevertheless, Dr. Lemoine looked at the records and
confirmed his earlier opinions no later than the first week of
August, well before the critical August 30 date. The subjective
-6-
awareness implied by these statements, even on the reading most
favorable to the González family, is incompatible with a belief
that any entity or person other than HIMA and Dr. López bore
responsibility for an injury the González family clearly thought,
correctly or not, could have been avoided.
To counteract the clear picture painted by their
depositions, the González family argues that the claim accrued only
after they met with Dr. Blaize Ferracio, a neurologist, on
September 25, 2000. In September, González and her husband moved
to Clarksville, Tennessee to be near the Lemoines. Dr. Lemoine
arranged an informal visit with Dr. Ferracio to follow up on
González's treatment. Miriam Lemoine and Mr. Ortiz asked
Dr. Ferracio after that meeting whether he would take their legal
case (presumably as an expert witness) since the family was so
upset by González's condition. Dr. Ferracio recommended working
with Puerto Rico counsel and helped the family identify suitable
attorneys. It was only after speaking with Dr. Ferracio that the
family agreed to bring legal action against HIMA and Dr. López. To
support the contention that the claim accrued at that point, they
cite our language in Montesinos: "If a plaintiff is not aware of
some level of reasonable likelihood of legal liability on the part
of the person or entity that caused the injury, the statute of
limitation will be tolled." 123 F.3d at 13-14. The González
family would have us hold that their claim did not accrue until
-7-
they were sure they had a case worth pursuing. Not only have they
misunderstood our language by taking it out of context,5 we cannot
accept the substance of the contention.
Some plaintiffs decide to bring suit the instant their
claims accrue, upon discovery. Often, however, there is a span of
time during which the prospective plaintiff mulls over the injury
and the tortfeasor's liability before initiating legal process.
Under Puerto Rico's discovery rule, these two moments are distinct,
and only the former has legal significance. Cf. Villarini-García
v. Hospital Del Maestro, 8 F.3d 81, 85 (1st Cir. 1984) ("The
discovery rule . . . focuses on whether the plaintiff knew the
facts that gave rise to the claim, not their full legal
implications."); see, e.g., Colón Prieto v. Géigel, 15 P.R. Offic.
Trans. 313, 329 (1984) (claim accrued when plaintiff "found out
that the injury had not been caused by a bite but by the fact that
5
In the quoted sentence, we were simply pointing out that
discovery of the injury is not enough for accrual. The paragraph
in full:
In some circumstances, awareness of the existence of an
injury, on its own, will not be enough to trigger the
running of the limitation period. If a plaintiff is not
aware of some level of reasonable likelihood of legal
liability on the part of the person or entity that caused
the injury, the statute of limitation will be tolled. In
other words, a plaintiff must also have "knowledge of the
author of the injury," a concept articulated at length in
the Supreme Court of Puerto Rico's decision in Colón
Prieto.
Montesinos, 123 F.3d at 13-14 (citations omitted).
-8-
the right lingual nerve had been cut"). Although Puerto Rico's
discovery rule is, relatively-speaking, plaintiff friendly, compare
Joyce v. A.C. & S., Inc., 785 F.2d 1200, 1204 (4th Cir. 1986)
(discussing Virginia's rule that a claim accrues at the time of
injury regardless of its discovery), its purpose is not to ensure
plaintiffs a set period of time to draft a complaint after
resolving to file one.
The González family also argues that Dr. López and HIMA
gave them reassurances that delayed their discovery until after
August 31. The Puerto Rico Supreme Court has, indeed, recognized
the special role that a tortfeasor's reassurances can play in
delaying a victim's discovery of an injury or its author. See
Montesinos, 123 F.3d at 16-17 (citing Colón Prieto, 15 P.R. Offic.
Trans. at 329-30); see, e.g., Galarza v. Zagury, 739 F.2d 20, 23
(1st Cir. 1984) (finding period tolled where doctor informed
patient that her difficulties were due to a weakened sphincter but
did not disclose that the sphincter had been lacerated in a prior
visit). But "[i]f the defendant succeeds in showing that plaintiff
has not satisfied, or cannot satisfy, plaintiff's burden of proving
lack of true knowledge (that is, lack of full awareness of all that
need be known to preclude tolling), final judgment for the
defendant on the ground of late filing is appropriate."
Montesinos, 123 F.3d at 14.
-9-
We conclude that facts sufficient to support every
element of the claim were apparent to the González family before
the end of August 2000. See Morales-Vallellanes v. Potter, 339
F.3d 9, 14 (1st Cir. 2003) ("[A] complaint sufficiently raises a
claim even if it points to no legal theory or even if it points to
the wrong legal theory as a basis for that claim, as long as relief
is possible under any set of facts that could be established
consistent with the allegations.") (quoting Tolle v. Carroll Touch,
Inc., 977 F.2d 1129, 1134 (7th Cir. 1992) (internal quotations
omitted)).
B. Waiver of time-bar defense
The González family has also argued that HIMA waived the
affirmative defense of untimeliness by failing to raise that
defense in its answer. HIMA, in conjunction with Dr. López, based
its motion for summary judgment on the defense of untimeliness.
The proper approach to González's claim is, accordingly, to ask
whether it was within the district court's discretion to accept the
defense raised in the summary judgment motion as an amendment to
the pleadings pursuant to Fed. R. Civ. P. 15(a).6 See 5 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure,
§ 1278, at 494 (2d ed. 1990). We normally review such an appeal
6
Other courts have required a party seeking to amend the
pleadings to file a motion specifically for that purpose. See
Harris v. Secretary, 126 F.3d 339, 344-45 (D.C. Cir. 1997). We
decline to demand that level of formalism of the pretrial process.
-10-
for abuse of discretion alone. See Foman v. Davis, 371 U.S. 178,
182 (1962) ("the grant or denial of an opportunity to amend is
within the discretion of the District Court"); see also Watson v.
Deaconess Waltham Hosp., 298 F.3d 102, 109 (1st Cir. 2002). "If,
however, leave to amend is not sought until after discovery has
closed and a summary judgment motion has been docketed, the
proposed amendment must be not only theoretically viable but also
solidly grounded in the record. . . ." Deaconess Waltham Hosp.,
298 F.3d at 109 (quoting Hatch v. Dep't of Children, 274 F.3d 12,
19 (1st Cir. 2001)).
An untimeliness defense is plainly supported by the
record. Therefore, we must simply review for abuse of discretion.
Rule 15(a) instructs that "leave [to amend the pleadings] shall be
freely given when justice so requires." Fed. R. Civ. P. 15(a).
"In the absence of any apparent or declared reason -– such as undue
delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of the amendment, etc. –- the
leave sought should, as the rules require, be 'freely given.'"
Foman, 371 U.S. at 182 (quoting Fed. R. Civ. P. 15(a)).
The González family was put on notice that they would
have to reckon with the defense of their action's untimeliness by
Dr. López's answer on December 31, 2001. Absent any showing of bad
-11-
faith on HIMA's part, and there is none, we have no difficulty --
despite the irony -- finding the district court acted within its
discretion in accepting HIMA's late entry of the untimeliness
defense. See In re Cumberland Farms, Inc., 284 F.3d 216, 226 (1st
Cir. 2002) ("Amendment may be permitted, for example, where the
opposing party already had notice of the defense through some means
other than the pleadings, or would not have benefitted from advance
notice in any event -- in other words, where the delay was
harmless.").
III. Conclusion
Puerto Rico gives prospective plaintiffs just one year to
institute a cause of action for recovery of damages caused by
negligence. Legislatures have power to circumscribe the causes of
action they create, and courts are bound to follow. We find the
record creates no question that more than one year elapsed between
the time González's claim accrued and the time the complaint was
filed. Since the district court was within its discretion in
permitting HIMA to benefit from the defense of untimeliness, the
judgment is affirmed. Costs to appellees.
Affirmed.
-12-