USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 92-2373
AWILDA VILLARINI-GARCIA,
Plaintiff, Appellant,
v.
HOSPITAL DEL MAESTRO, INC., ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Daniel R. Bright with whom Robert Braunschweig and Braunschweig
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Rachlis Fishman & Raymond, P.C. were on brief for appellant.
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Jose L. Gandara with whom Ramon E. Bauza Higuera and Raul Davila
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Rivera were on brief for appellees Dr. & Mrs. Mario Tomasini.
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Thomas Doran Gelabert with whom Eli B. Arroyo was on brief for
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appellee Hospital Del Maestro, Inc.
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November 1, 1993
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BOUDIN, Circuit Judge. This case is a medical
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malpractice action arising under Puerto Rico law. On summary
judgment, the district court ruled that the claims, brought
four years after the event, were barred by the local one-year
statute of limitations. In our view, the district court's
ruling is correct as to three of the claims; on the remaining
claim, we think that it was for the jury rather than the
court to determine whether the knowledge and due diligence
requisites for bringing the claim at this time have been met.
The facts are largely undisputed. In August 1986,
Awilda Villarini Garcia ("Villarini") consulted Dr. Mario
Tomasini about a birthmark or mole that Villarini had on her
back. Villarini had been referred to Tomasini by Hospital
del Maestro at which Tomasini was a surgeon. After examining
Villarini, but without doing a biopsy, Tomasini advised
Villarini that the mole should be surgically removed because
it might turn malignant in the future.
Villarini was concerned that surgery involving her back
might affect her career as a concert pianist, and she asked
Tomasini whether the proposed operation would impair her
ability to practice and perform at the piano. Tomasini
assured her that the proposed excision was minor surgery that
would pose no risk to Villarini's musical career. The
surgery was performed in Puerto Rico on September 8, 1986.
During the surgery, Tomasini removed a piece of muscle tissue
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as well as the mole. No biopsy was performed either before
or during the operation. The pathology report showed that
nothing removed was cancerous.
After the operation Villarini experienced severe pain.
A few weeks after the surgery Villarini received the hospital
pathology report and learned for the first time that muscle
tissue had been cut out, despite the absence of cancer. She
then called Tomasini, advised him that serious pain was
continuing and inquired about the removal of the muscle
tissue. Tomasini replied that the removal was normal and
necessary, that only a small amount had been removed, and
that she would suffer no lasting harm and had no reason for
concern about her career. Tomasini also said that post-
operative pain was to be expected and might last for a year
or even more. He said that no further treatment was needed,
apart from light exercise.
Villarini's back pain continued, although declining in
severity and frequency, through the remainder of 1986,
throughout 1987, and during the first half of 1988. By early
summer 1988, the back pain had largely disappeared but in
June 1988 Villarini experienced a new discomfort involving
her arm and apparently a different sort of back pain as well.
In July 1988, she visited a chiropractor, Dr. Efrain Palmer,
whom Villarini had consulted in previous years for a
scoliosis, or spine curvature, condition. She visited Palmer
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several more times between September 1988 and May 1989. In
one of these visits, probably the September 1988 visit,
Villarini mentioned her mole-removal surgery and Palmer
speculated that the operation might have adversely affected
her scoliosis. When Villarini asked whether she should sue
Tomasini, Palmer (in his own words) "tried to discourage"
this course. In Villarini's recollection, Palmer told her
"that there seemed to be no basis or relationship between my
current complaint and the surgery."
During the summer of 1988, Villarini felt that her back
was well enough to permit her to schedule piano concerts in
September 1988 in Puerto Rico and New York. As she began
preparing, Villarini experienced severe pain in her arm, and
she was forced to cancel the concerts. Between September
1988 and May 1989 Villarini consulted a number of other
doctors or other specialists, apart from her visits to
Palmer.1 These doctors, some of whom were aware of the mole
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1In September and October of 1988, Villarini consulted
Dr. Carlos Berrocol, her family physician who diagnosed her
problem as a swollen muscle; Dr. Stanley Weinapel, a member
of the Department of Rehabilitation Medicine at St. Luke's-
Roosevelt Hospital in New York, who told her that she had
"overuse syndrome"; Dr. Edwin Rosario Rios, a physiatrist who
concluded that the pain stemmed from calcifications in the
shoulder; and Dr. Jose Abreu Deliz, an orthopedic surgeon who
seconded the "overuse syndrome" diagnosis. In February and
April of 1989, Villarini saw Dr. James Parkes, a New York
physician who viewed the pain as arising from calcifications
and tendinitis; Dr. Glatter, a physiatrist who concluded that
she had scoliosis and mild tendinitis; and finally a number
of therapists and physicians at Lincoln Medical and Mental
Health Center in the Bronx, who told her the problem stemmed
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removal, gave various diagnoses for her continuing pain.
These included "swollen muscle," calcification in the
shoulder, "overuse syndrome," tendinitis in the arm, and
scoliosis.
On June 29, 1989, Villarini saw Dr. Gary Ostrow, an
osteopath. He opined that her back and arm pain were both
due to the surgery on her back. Villarini then retained
counsel and, just under a year after the Ostrow visit,
Villarini brought suit on June 28, 1990, against Tomasini,
Hospital del Maestro and various insurers in the federal
district court in Puerto Rico. The complaint, seeking $1
million in damages, made essentially four claims of
malpractice:
1. failure to secure appropriate consent for the
removal of the muscle tissue;
2. negligence in failing to warn Villarini adequately
about the risks and consequences of the operation;
3. negligence in choosing unnecessarily to remove the
muscle tissue;
4. negligence in failing to provide adequate post-
operative care or treatment.
Following discovery, including depositions of Villarini
and Palmer, motions for summary judgment were filed by the
hospital and by Tomasini. These motions relied upon the one-
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from overuse and administered physical therapy and ultrasound
treatments.
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year statute of limitations in Puerto Rico's Civil Code art.
1868, 31 L.P.R.A 5298, which pertinently provides:
The following prescribe in one year . . . [a]ctions
to demand civil liability . . . for obligations
arising from . . . fault or negligence . . . from
the time the aggrieved person had knowledge
thereof.
The motions were opposed by Villarini who included a
detailed affidavit setting forth many of the facts already
recited. On October 13, 1992, the district court granted
summary judgment for the defendants. After a discussion of
the facts and authorities, Judge Cerezo concluded that
Villarini had failed to exercise due diligence in pursuing
her claims. Given Villarini's state of knowledge as of
September 1988, the district court ruled that Villarini was
not entitled to wait almost two more years before bringing
suit. Accordingly, the court dismissed the complaint.
Article 1868, although it prescribes a one-year statute
of limitations, has been construed by the Supreme Court of
Puerto Rico to incorporate the so-called discovery rule.
See, e.g., Santiago Hodge v. Parke Davis & Co., 909 F.2d 628,
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632-33 (1st Cir. 1990), discussing Colon Prieto v. Geigel,
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115 D.P.R. 232, 247, 15 Off. Trans. 313 (1984). The one-year
period does not begin to run until the plaintiff possesses,
or with due diligence would possess, information sufficient
to permit suit. The classic case for the discovery rule is
the sponge, negligently left inside the patient during the
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operation, whose ill effects are not apparent for several
years.
It is easy to state the gist of the discovery rule but
more difficult to fine-tune it. Puerto Rico decisions say
that the knowledge required to start the statute running is
knowledge not only of harm but also of "the origin of the
injury," Geigel, 115 D.P.R. at 245, 15 Off. Trans. at 329,
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which we take to include knowledge of the wrong and a causal
link between the wrong and some harm. But actual knowledge
is not required where, by due diligence, such knowledge would
likely have been acquired. 115 D.P.R. at 244-45, 15 Off.
Trans. at 327-29. Actual knowledge is a matter of fact, but
the concept of due diligence has buried within it a normative
question of how much diligence should be expected of a
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reasonable lay person.
On review of a grant of summary judgment, disputed
issues of fact are resolved in favor of the non-moving party
and inferences are drawn in that party's favor. Mesnick v.
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General Electric Co., 950 F.2d 816, 822 (1st Cir. 1991),
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cert. denied, 112 S. Ct. 2965 (1992). Giving Villarini the
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benefit of this approach, we think that claims 1, 2 and 4
were properly dismissed but that a jury is entitled to decide
whether claim 3 was timely brought under the discovery rule
applied in Puerto Rico. We consider each of the claims in
order.
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1. The first claim is that Tomasini removed a part of
Villarini's body without getting her permission. If the
surgeon gets consent to remove a mole on the patient's back
but takes out the patient's appendix as well, there is little
doubt that the surgeon would face a lawsuit, whether one
calls it negligence or battery. Here, no doubt Tomasini will
say that the consent he got should be taken to include a
fragment of muscle tissue, but we are concerned now not with
the merits but with the statute of limitations.
From the standpoint of the statute of limitations,
Villarini knew three weeks after the operation that a portion
of her muscle had been removed without her specific consent;
she also knew that she was suffering substantial and
unexpected pain stemming from the operation. It seems to us
that Villarini knew at this point enough to require her to
resort to a lawyer on the lack of consent claim. If the
lawyer judged that the consent was deficient, then she had to
bring suit within one year after receiving the pathology
report and having it confirmed by Tomasini.
The core of the claim, after all, is the lack of consent
for the doctor's removal of the muscle tissue, so the alleged
malpractice was known to Villarini as soon as she learned
that the muscle had been removed. So, too, was the fact that
she was suffering pain from the operation beyond anything she
had expected. Villarini therefore had knowledge of the
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critical facts for this claim shortly after the operation,
and under Puerto Rico law she could not wait four years to
assert it.
2. The failure to warn claim is embraced by the same
logic. Villarini knew three weeks after the operation that
not only was she suffering unexpected pain but, according to
Tomasini himself, that the pain might well continue for over
a year. At this point, one might expect a reasonable person
to conclude that a warning of such possible consequences
should have been given before the operation, especially to
one whose career could depend on physical well-being.
As we explain below, Villarini was entitled to rely on
Tomasini so far as he predicted that the operation was normal
and the pain would come to an end. There thus might be good
reason for her to defer any suspicion that the operation had
gone awry. But the malpractice claim in question depends on
a lack of warning, not bungled surgery; and the duration and
effects of the pain following a perhaps inadequate warning
might affect the amount of damages but not the existence of
damages. Once again, we think that Villarini clearly knew
within three weeks all of the facts that justified this
claim.
Of course, Villarini was not a lawyer and could not know
whether technically the lack of warning (or, for that matter,
the lack of consent to the muscle removal) constituted
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malpractice. The discovery rule, however, focuses on whether
the plaintiff knew the facts that gave rise to the claim, not
their full legal implications. Osborn v. United States, 918
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F.2d 724, 731 (8th Cir. 1990). And where those known facts
create a reasonable basis for concern about malpractice,
there is nothing unfair in a policy that insists that the
plaintiff promptly assert her rights. Aldahonda-Rivera v.
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Parke Davis & Co., 882 F.2d 590, 593 (1st Cir. 1989). After
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all, the statute of limitations also serves to protect
defendants against stale claims, and the discovery rule is
designed to accommodate a plaintiff's interests but not to
make them trump all others.
3. Villarini's third claim--negligence in removing the
muscle fragment without a biopsy--stands on a different
footing. At the outset we must make clear that the record
reveals nothing about the intrinsic merit of this malpractice
claim. We do not know whether it is common, rare, or
unthinkable to remove muscle tissue of this amount, in this
bodily location, without determining the presence of cancer.
Nevertheless, assuming for present purposes that a claim may
exist, we think that a reasonable argument can be made on
both sides as to whether the statute of limitations debars
this claim.
In favor of the district court's view, it is clear that
Villarini knew three weeks after the operation that the
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muscle tissue had been removed without a biopsy and that she
was suffering substantial pain; these are two of the crucial
facts underlying this claim. Yet she was promptly assured by
Tomasini, the very surgeon who had performed the operation,
that the removal of the muscle tissue had been proper and
that the pain was normal and would eventually end. As a
matter of common sense, and Puerto Rico precedent, see
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Geigel, 315 D.P.R. at 245, 15 Off. Trans. at 329, she was
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entitled initially to rely on this prognosis from her doctor.
The prognosis was initially borne out because the pain
in her back did lessen and largely disappear over the next
year and a half. The new pain, which replaced the old, was
at least partly in the arm. And while Villarini might be
faulted for not specifically asking the doctors after Palmer
whether the operation had caused the new pain, at least some
of these specialists were aware of the operation but none of
the varying diagnoses she received pointed to the operation
as a possible cause, until Ostrow did so on June 29, 1989.
Arguably Ostrow's appraisal at that time was the first firm
knowledge Villarini had of an asserted direct link between
the operation and the persistence of pain elsewhere in the
body three years after the operation.
In sum we think that a reasonable factfinder, while not
necessarily compelled to do so, could find that Villarini did
exercise due diligence as to the third claim but did not
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obtain the necessary knowledge until June 29, 1989.
Tomasini's reassurances, while irrelevant to (or actually
strengthening) the lack of warning claim, could have lulled a
reasonable person into believing for a year or more that the
operation had not been botched. And while Villarini had all
the information needed to bring the lack of warning claim
within a few weeks after the operation, a factfinder could
conclude that the final ingredients for the third claim did
not fall into place until after the pain persisted and Ostrow
gave his opinion.
Of course, a jury might not find all of the facts as we
have described them. In particular, more than a year prior
to the suit, Palmer did suggest a link between the operation
and the continuing pain. Perhaps, as the district court
apparently believed, Palmer's withdrawal of this initial
suggestion was less firm than Villarini now claims.2 But
under the case law previously cited, Villarini is entitled to
the benefit of her version of events in resisting summary
judgment. To the extent that factual issues remain, that
itself would be a basis for denying summary judgment.
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2According to Villarini, Palmer backtracked and said
that there seemed to be "no basis or relationship" between
the operation and the later pain. Palmer's own recollection
was that he told Villarini that causation would be "very
difficult to prove" since the new condition was not on the
spine and there was a previous history of scoliosis. If
there is any disagreement between these versions, it was for
the jury to resolve.
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Even if we assume that all of the pertinent facts are
known, iron-clad and complete, the third claim still cannot
properly be dismissed on summary judgment. Whether or not a
case rests on diversity jurisdiction, the summary judgment
standard is a matter of federal law, for it is settled that,
broadly speaking, in a federal court federal law determines
the respective roles of trial judge, jury, and reviewing
court. See generally Molinar v. Western Electric Co., 525
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F.2d 521, 527 (1st Cir. 1975), cert. denied, 424 U.S. 978
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(1976).3 "Erie does not require a federal court to employ
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the state's rules on the allocation of issues between judge
and jury." McEwen, 919 F.2d at 60. See generally Byrd v.
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Blue Ridge Rural Electric Cooperative, 356 U.S. 525 (1958);
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Hanna v. Plumer, 380 U.S. 460 (1965).
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Under federal case law, "[t]he question whether a
plaintiff has exercised reasonable diligence is usually a
jury question." Bohus v. Beloff, 950 F.2d 919, 925 (3d Cir.
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1991). Accord, Nevada Power Co. v. Monsanto Co., 955 F.2d
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1304, 1307 (9th Cir. 1992). Our circuit took the same view
in Santiago Hodge, 909 F.2d at 633. This is not surprising
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3E.g., Bank of California v. Opie, 663 F.2d 977, 979
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(9th Cir. 1981) (federal summary judgment standard controls
in diversity case); Lewis Refrigeration Co. v. Sawyer Fruit,
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Vegetable and Cold Storage Co., 709 F.2d 427, 430 n.3 (6th
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Cir. 1983) (majority of circuits follow federal law on
directed verdict standard); McEwen v. Delta Air Lines, Inc.,
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919 F.2d 58, 59 (7th Cir. 1990) (federal law controls burden
and order of raising issues but not burden of proof in the
"risk of nonpersuasion" sense).
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since factual disputes are often important in passing upon
the statute of limitations defense. But even where no raw
facts are in dispute, the issues of due diligence and
adequate knowledge are still ones for the jury so long as the
outcome is within the range where reasonable men and women
can differ.
Strictly speaking, due diligence and adequate knowledge
in this case may not turn on disputed issues of fact; rather,
the outcome may depend only on the application of general
standards to known facts. But juries make these normative
judgments all the time in negligence cases, and jurors are no
less well equipped to decide what a reasonable lay person
would and should do when faced with a certain amount of
information about a medical problem and the possibility of
malpractice. Indeed, one may have more confidence in the
jury's ability to decide such a question than to decide
whether a complex machine is properly designed, the staple
question in products liability litigation. In all events,
the case law favoring a jury decision on such "mixed"
questions has worn a deep groove.
Accordingly, we conclude that where a reasonable jury
could find that the plaintiff lacked knowledge despite due
diligence, the statue of limitations issue in a discovery-
rule jurisdiction should not be withdrawn from the jury by
summary judgment. This is so even though the raw facts are
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largely undisputed and even though the trial judge--acting as
an independent decisionmaker--might reasonably believe that
the plaintiff was not diligent.4 This is a description of
the third claim in our case, at least at the present stage.
What it will look like after the plaintiff rests is another
matter. 4. The fourth claim concerns Tomasini's alleged
failure to provide proper treatment for Villarini after the
operation. There is no indication in the complaint,
Villarini's opposition to summary judgment, or briefs in this
court of the facts comprising this claim: what treatment was
omitted, how the omission affected Villarini, or when she
learned of the pertinent facts to support this claim.
We conclude that the grant of summary judgment must be
sustained as to this claim. Villarini was in Tomasini's care
only for a limited period after the operation; there is no
indication that Tomasini's role continued into 1988 or 1989.
Accordingly, his supposed omissions or improprieties in post-
operative treatment occurred well over a year before this
suit was brought. It was Villarini's responsibility in
opposing summary judgment to assert facts that (if proved at
trial) would allow a jury to find that the discovery rule
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4See Greenburg v. Puerto Rico Maritime Shipping
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Authority, 835 F.2d 932, 936 (1st Cir. 1987) (on summary
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judgment, there is no room "for the measured weighing of
conflicting evidence . . . [or] for the judge to superimpose
his own ideas of probability and likelihood (no matter how
reasonable those ideas may be)").
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requirements were met, specifically, a lack of knowledge
despite an exercise of due diligence.5
No such facts were asserted in the district court by
Villarini to show lack of knowledge despite due diligence.
Indeed, even in this court Villarini's brief does not
separately address the treatment claim, describe the
underlying misconduct or give any reason to think that the
discovery rule applies to this claim, brought four years
after the underlying events. Since we do not normally
consider claims on appeal that are not substantially argued
in the briefs, this claim may be lost twice over.
The judgment of the district court is affirmed as to the
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consent, failure to warn and post-operative treatment claims.
As for the claim based on removal of the muscle without a
biopsy, the judgment is vacated and the case remanded for
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further proceedings consistent with this opinion. No costs.
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5 See Fragoso v. Lopez, 991 F.2d 878, 887 (1st Cir.
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1993) (burden of proof to show lack of knowledge is on the
plaintiff who sues more than one year after the event);
Hodge, 833 F.2d at 7 (same), citing Illuminada Rivera
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Encarnacion v. Estado Libre Asociado de Puerto Rico, 113
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D.P.R. 383, 385, 13 Off. Trans. 498, 501 (1982).
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