USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1429
LINDA M. DANIELS-RECIO,
Plaintiff - Appellee,
v.
HOSPITAL DEL MAESTRO, INC., ET AL.,
Defendants - Appellants.
____________________
No. 96-1686
LINDA M. DANIELS-RECIO,
Plaintiff - Appellant,
v.
HOSPITAL DEL MAESTRO, INC., ET AL.,
Defendants - Appellees.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, Senior U.S. District Judge] __________________________
____________________
Before
Torruella, Chief Judge, ___________
Coffin and Campbell, Senior Circuit Judges. _____________________
_____________________
Mario Pab n-Rosario, with whom Jos Luis Gonz lez-Casta er ___________________ ____________________________
and Law Offices of Jos Luis Gonz lez-Casta er were on brief for __________________________________________
appellant SIMED.
Kevin G. Little, with whom Law Offices David Efr n was on ________________ ________________________
brief for Linda Daniels-Recio.
Edgardo A. Vega-L pez, with whom Jim nez, Graffam & Lausell _____________________ __________________________
was on brief for Asociaci n Hospital del Maestro and Evanston
Insurance Company.
____________________
March 28, 1997
____________________
-2-
TORRUELLA, Chief Judge. On June 24, 1992, Linda TORRUELLA, Chief Judge. ____________
Daniels- Recio ("Daniels") filed a medical malpractice suit
against Dr. Rafael S nchez-Monserrat ("S nchez") and Asociaci n
Hospital del Maestro ("AHDM"), a hospital in San Juan, Puerto
Rico. On November 2, 1992, Daniels amended her complaint to add
Dr. S nchez' insurer, Sindicato de Aseguradores Para la
Suscripci n Conjunta de Seguros de Responsibilidad Profesional
M dico Hospitalaria ("SIMED"), and AHDM's insurer, Evanston
Insurance Company ("Evanston"), as defendants. On January 17,
1995, AHDM and Evanston filed a motion for summary judgment. On
March 30, 1995, the district court granted AHDM and Evanston's
motion for summary judgment.
In the meantime, on February 3, 1995, Daniels filed a
motion in limine seeking determination of coverage under
Dr. S nchez' insurance policy with SIMED. On February 28, 1996,
the district court determined that Daniels' claim was covered by
Dr. S nchez' policy, which had a stated limit of $500,000. The
case was scheduled for trial. On March 15, 1996, following a
settlement conference, Daniels, Dr. S nchez and SIMED entered
into a Stipulation Agreement whereby they agreed that the
district court would enter final judgment for Daniels in the
amount of $500,000 in order for SIMED to appeal the district
court's determination of policy coverage.
We have before us SIMED's appeal from the final
judgment, based on the district court's allegedly erroneous
determination regarding policy coverage, as well as Daniels'
-3-
appeal from the district court's entry of summary judgment in
favor of AHDM and Evanston. We affirm.
BACKGROUND BACKGROUND
As our review of the district court's grant of summary
judgment is de novo, we present the background facts in the light __ ____
most favorable to the nonmovant, drawing all reasonable
inferences in her favor. Dubois v. United States Dep't of ______ ________________________
Agriculture, 102 F.3d 1273, 1283-84 (1st Cir. 1996). ___________
In May 1989, after being admitted to AHDM's emergency
room, Daniels was referred by AHDM staff to Dr. Regis-Bonilla, a
pneumologist at Cl nica Las Am ricas. Daniels received treatment
from Dr. Regis-Bonilla for approximately nine months, before he
moved his practice to another city. After Dr. Regis-Bonilla left
his San Juan practice, Dr. S nchez joined Cl nica Las Am ricas
and began treating Daniels. In early 1990, Dr. S nchez diagnosed
Daniels' condition as "silent asthma."
On August 31, 1990, Daniels was again admitted to AHDM
on an emergency basis. She was hospitalized until September 17,
1990. During this hospitalization, Dr. S nchez prescribed
Medrol, an adrenocortical steroid, for the first time. Extended
use of this medication can cause a number of adverse reactions,
including hypertension, muscle weakness, steroid myopathy,
osteoporosis, spinal compression fractures, abdominal distention,
-4-
development of a Cushingoid state,1 and manifestations of latent
diabetes mellitus.
Daniels was again admitted to AHDM on an emergency
basis on October 5, 1990. After a consultation, Dr. S nchez took
over as Daniels' primary attending physician. Hospital records
showed that Daniels had been taking Medrol since her August 31
admission and that she had steroid myopathy as a complication of
the steroid treatment. Daniels was discharged on November 1,
1990.
On December 17, 1990, Daniels yet again was admitted to
AHDM. Daniels had been taking Medrol since her last
hospitalization and continued to take it throughout this stay.
Steroid complications, specifically steroid-induced diabetes,
were noted in her records. Daniels was discharged on December
31, 1990, with records showing that her "asthma" continued to be
active and that she was taking Medrol upon her discharge.
On May 30, 1991, Daniels was admitted to AHDM for a
fifth time. She was still taking Medrol at the time of her
admission and was continued on the medication during the course
of her hospitalization. Several steroid related complications,
including Cushing's syndrome, osteoporosis, spinal compression
fractures, hypertension, and a decrease in height, were noted at
the time of her admission. She was discharged on June 28, 1991.
____________________
1 Cushing's Syndrome is characterized by mood phases, excessive
hair growth, increased bruisability, peripheral muscle atrophy,
the formation of a pot belly and the formation of a "buffalo
hump" on the afflicted person's back.
-5-
During each hospitalization, a series of respiratory
function tests were run on Daniels. None of these tests
indicated that she was having respiratory difficulty.
Upon her last discharge, on June 28, 1991, Daniels was
referred by Dr. S nchez to the National Jewish Center for
Immunology and Respiratory Medicine ("National Jewish Center") in
Denver, Colorado. Dr. S nchez' referral letter indicates that
Daniels had been prescribed Medrol for the previous twelve months
and that she was suffering from complications related to extended
corticosteroid usage. On August 26, 1991, Daniels had her first
appointment at National Jewish Center. At the time of this first
visit, the staff at National Jewish Center questioned both
Dr. S nchez' diagnosis of "silent asthma" and his treatment with
Medrol for at least a year. The staff at National Jewish Center
tapered Daniels' Medrol dosage and gave her a final dose on
September 3, 1991, the day she was admitted to National Jewish
Center. Doctors there discovered that her osteoporosis had
developed to such an extent that her bone mass was approximately
70% of the normal level. The National Jewish Center staff
diagnosed Daniels as suffering from breathing difficulties
secondary to an anxiety disorder. Daniels was discharged from
National Jewish Center on September 21, 1991.
Daniels' experts indicated that the diagnosis of
"silent asthma" was, at least ultimately, incorrect based on the
objective respiratory test results. They further stated that a
course of Medrol treatment extending beyond two weeks would
-6-
certainly result in the severe complications experienced by
Daniels.
DISCUSSION DISCUSSION
In this diversity case, we apply Puerto Rico
substantive law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 92 ___ _____________ ________
(1938); Carota v. Johns Manville Corp., 893 F.2d 448, 450 (1st ______ _____________________
Cir. 1990).
I. Policy Coverage I. Policy Coverage
SIMED issued to Dr. S nchez a "claims made" medical
malpractice insurance policy effective from July 7, 1991, to
July 7, 1992. This policy limited liability to $500,000 per
"medical incident" that occurred during the period of coverage,
up to an aggregate of $1,000,000. The policy also had a
retroactive component, which provided coverage to Dr. S nchez
from July 2, 1986 to July 7, 1991. The retroactive portion of
the policy provided coverage of $100,000 per "medical incident"
that occurred during the retroactive period of coverage, up to an
aggregate of $300,000. The question presented below and on
appeal is when Daniels' "medical incident" occurred, which would
determine which policy, and coverage limit, applied.
SIMED claims the district court erred by determining
that Daniels' "medical incident" spanned the coverage period of
both policies2 and, thus, that Daniels' claim is covered by the
____________________
2 The policy language states:
The Syndicate will pay on behalf of the Insured, with
respect only to his practice within the Commonwealth of
Puerto Rico:
-7-
subsequent policy, whose liability limit is $500,000. We find no
error in the district court's determination.
The policy language, including the language of the
amendment, as set out in the margin, ties policy coverage to the
timing of medical incidents.3 The district court properly framed
the issue as follows:
if the incident transcended the period of the
lower policy coverage, that is, if Dr.
S NCHEZ MONSERRAT'S rendering of, or failure
to render professional services extended
beyond the July 7, 1991 date, then the higher
coverage would apply because all his acts or
omissions, when taken together, comprise one
____________________
All sums which the Insured shall become legally
obligated to pay as damages because of injury to which
this policy applies caused by medical incident . . . .
Medical incident is defined as:
[A]ny act or omission . . . in the furnishing of
professional medical . . . services by the Insured.
Any such act or omission, together with all related
acts or omissions in the furnishing of such services to
any one person shall be considered one medical
incident.
The Retroactive Date Amendment Endorsement II, which deals with
retroactive insurance coverage in the amount of $100,000 per
medical incident, states:
Irrespectively of the retroactive date and the limits
of liability shown in the Declarations Page of the
above numbered policy, in consideration of the payment
of the above stated premium, claims arising out of a
medical incident which occurred between 7-02-86 and 7-
07-91 will be covered by this policy subject to a limit
of liability of $100,000 per medical incident and an
aggregate of $300,000.
3 Because the "event" triggering policy coverage is the timing
of the medical incident, SIMED's repeated references in its brief
to state and federal cases that reviewed policies in which the
triggering event was the manifestation of the injury miss the
mark.
-8-
medical incident pursuant to the policy
definitions.
Amended Order Granting Plaintiff's Motion in Limine and Setting
Trial and Pretrial Settlement Conference, Feb. 28, 1996, at 2-3.
Title 26, section 1114, of the Puerto Rico Civil Code
governs the contents of insurance policies. In accordance with
this provision, language in an insurance policy is to be
construed according to the "most common and usual meaning, . . .
paying . . . attention . . . to the general use and popular
meaning of the idioms." Morales Garay v. Rold n Coss, 110 P.R.R. _____________ ___________
909, 916 (1981).4 Moreover, "insurance contracts, being contracts
of adhesion, are to be liberally construed in favor of the
insured." Rivera v. Insurance Co. of Puerto Rico, 103 P.R.R. ______ ______________________________
128, 131 (1974); see also P.R. Laws Ann. tit. 26, 1114(2) ________
(Supp. 1996) ("In the interpretation of said policies, the text
that is of most benefit to the insured shall prevail.").
The district court relied on the following facts in
reaching its determination that the medical incident spanned both
policies and, therefore, triggered coverage of the subsequent
policy:
1. Insurance Company Progressive Report
In the Progressive Report submitted to the
Caribbean American Life Assurance Company,
Dr. S NCHEZ MONSERRAT marked the box
indicating "YES" to the question posed on the
report which asked "Is patient still under
your care for this condition?". He further
informed that she had received a consultation
from his office on August 4, 1991 and that
____________________
4 Page cites are to the Official Translation.
-9-
she was at the time in Colorado for
"treatment." Significantly, the report is
dated September 3, 1991, and is filled out in
the doctor's own handwriting.
2. Pulmonary Questionnaire
SIMED argues that the doctor's treatment of
Ms. DANIELS ended on June 28, 1991, the date
of her last hospitalization. It bases its
belief on the Pulmonary Questionnaire
prepared by Dr. S NCHEZ MONSERRAT, for
submission to the Social Security Disability
Determination Program. This form was filled
out by the doctor on April 20, 1992,
approximately seven months after the
aforementioned insurance report was
completed. Although on this questionnaire,
the doctor indicates that "[Ms. Daniels was]
not seen since June 28, 1991", it appears
that the doctor's statements therein were
made in reference to his last visit to the
plaintiff at the hospital. A closer
examination of page 3 of the questionnaire,
requesting a listing of the office visits by
the patient, reveals that the last entry for
Ms. DANIELS was for May 30, 1991, the date
that the doctor ordered her hospitalization,
which hospitalization concluded on June 28,
1991. Thus, noticeably absent is the
August 4, 1991, consultation which he had
disclosed in the form filled out seven months
earlier for the insurance company.
Furthermore, in the aforementioned pulmonary
questionnaire, the doctor indicated that
Ms. DANIELS was "sent to the Jewish Institute
of Allergy & Immunology--Aug. 26, 1991...."
Since he was the doctor originating the
referral to the Institute, this affirmation
could be construed as another acknowledgment
that Ms. DANIELS was still under his care and
treatment at that time; clearly beyond July
7, 1991, the higher coverage date.
3. Admitted Facts-Pretrial Order
Finally, though not less significant, the
parties conceded in Part II, Admitted Facts
of the Proposed Joint Pretrial Order filed on
February 2, 1995 (docket No. 49) that
Ms. DANIELS was a patient of Dr. RAFAEL
-10-
S NCHEZ MONSERRAT from May 21, 1990 until
September 3, 1991.
Id. at 3-5. We agree that these facts indicate that Dr. S nchez ___
continued to perform acts or omissions related to the furnishing
of professional medical services to Daniels after July 7, 1991,
thus triggering the subsequent policy, which provides coverage of
$500,000 per medical incident.
-11-
II. Summary Judgment II. Summary Judgment
We review the district court's grant of summary
judgment de novo, and will uphold that determination "if the _______
record, viewed in the light most favorable to the nonmoving
party, shows that 'there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.'" Continental Ins. Co. v. Arkwright Mut. Ins. _____________________ ____________________
Co., 102 F.3d 30, 33 n.4 (1st Cir. 1996) (quoting Fed. R. Civ. P. ___
56(c)). Faced with a properly documented motion, the nonmovant
must establish the existence of a genuine issue of material fact
in order to avoid the entry of an adverse judgment. Garside v. _______
Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990). _______________
Daniels attacks the district court's grant of summary
judgment on various grounds, which we will consider in turn.
A. Obvious malpractice A. Obvious malpractice
Dr. S nchez' AHDM personnel records indicate that he
maintained hospital privileges during the course of his treatment
of Daniels. Under Puerto Rico law, a hospital's relationship
with doctors to whom it grants hospital privileges must meet
several requirements. The obligation that Daniels suggests AHDM
failed to meet here, such that AHDM would be jointly and
severally liable for Dr. S nchez' malpractice, requires hospitals
to monitor the work of physicians with hospital privileges, and
to intervene when possible in the face of an obvious act of
medical malpractice. See M rquez Vega v. Mart nez Rosado, 116 ___ ____________ _______________
-12-
P.R.R. 489, 500 (1985); see also Carlos J. Irizarry Yunqu , _________
Responsabilidad Civil Extracontractual 253 (1996). ______________________________________
Beyond her conclusory allegations to the effect that
Dr. S nchez' malpractice was so obvious that AHDM staff should
have intervened, Daniels fails to present sufficient facts to
show that there is a "genuine issue for trial." LeBlanc v. Great _______ _____
American Ins. Co., 6 F.3d 836, 841-42 (1st Cir. 1993). Although __________________
Daniels directs our attention to the deposition testimony of her
experts, all of whom agreed that the diagnosis of asthma was
incorrect, none of this deposition testimony raises a genuine
issue as to whether any act of malpractice by Dr. S nchez was so
obvious that AHDM should have intervened. The only mention of
"obviousness" in the deposition testimony comes from Dr. Harold
Nelson, one of Daniels' experts. He states that Daniels'
osteoporosis and her Cushingoid state were obvious symptoms of
excessive corticosteroid use. That the symptoms Daniels
exhibited after corticosteroid treatment were the obvious result
of excessive use of the steroid does not sufficiently raise the
issue of whether those symptoms were the obvious result of an act
of malpractice. Daniels did not meet her burden of coming
forward with concrete facts that would give rise to a genuine
issue of material fact regarding AHDM's liability.
B. Negligence of AHDM Staff Doctors and Nurses B. Negligence of AHDM Staff Doctors and Nurses
Daniels next argues that the district court erred in
finding that AHDM's doctors did not engage in malpractice.
Daniels failed to press this contention before the district
-13-
court. Because Daniels' Opposition to Defendants' Motion for
Summary Judgment fails to squarely raise any contention of
specific malpractice on the part of AHDM's medical staff, we
generally will not consider such an argument on appeal. See ___
Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. _______ _______________________
1995) (recognizing that, by failing to present an argument in his
opposition to summary judgment below, appellant failed to
preserve the argument for appeal).
Moreover, her argument is without merit. She premises
AHDM's liability on the opinion of her expert, Dr. Alvarez, that
AHDM staff members should have questioned Dr. S nchez' faulty
diagnosis and that, had they done so, her result would have been
different. Daniels misconstrues Dr. Alvarez' deposition
testimony. Although Dr. Alvarez noted that nurses frequently
question doctors' practices and that it did not appear that
AHDM's nurses had questioned Dr. S nchez, immediately thereafter
Dr. Alvarez stated that he had no opinion as to whether the
nurses or hospital staff were negligent. This is hardly the
forceful evidence of negligence that Daniels makes it out to be,
and certainly does not raise a genuine issue as to whether AHDM's
staff was negligent.
C. Whether Dr. S nchez was an independent contractor C. Whether Dr. S nchez was an independent contractor
Daniels contends that the district court misinterpreted
our opinion in Su rez Matos v. Ashford Presbyterian Community ____________ _______________________________
Hosp., 4 F.3d 47 (1st Cir. 1993), when it found that AHDM was not _____
liable because Dr. S nchez was merely an independent contractor.
-14-
Daniels argues that under Su rez Matos, a hospital is liable when ____________
a negligent doctor is more than a mere "independent contractor
having no other relationship with the hospital." Id. at 52. ___
Daniels takes this quotation out of context. The relevant quote
reads:
While strictly, perhaps, that decision
[M rquez Vega v. Mart nez Rosado, 116 D.P.R. ____________ _______________
489, 500 (1985)] contained dictum that we
might distinguish, and certainly we need not
adopt plaintiff[']s contention that it would
impose liability in the case of an
independent contractor having no other
relationship with the hospital, it is clear
here that granting staff privileges coupled
with a joint sharing in profits, left the
hospital fully responsible.
Id. The Su rez Matos opinion, which applies to situations in ___ ____________
which the hospital has granted staff privileges to and engages in
a profit-sharing relationship with a negligent physician to whom
it refers a patient, did not discuss the situation Daniels
presents here.
Furthermore, the situation dealt with in Su rez Matos _____________
was markedly different from the case before us. There, the
patient sought the assistance of the hospital on an emergency
basis. Id. at 48. The following day, a uterine tumor was ___
removed and was examined by a pathologist on the hospital staff.
Id. The pathologist misdiagnosed the tumor as benign. Id. By ___ ___
referring the tumor to the staff doctor, the hospital was, in
effect, certifying the competence of that doctor. The same
cannot be said of AHDM, which did not advise Daniels to seek
treatment from Dr. S nchez.
-15-
Daniels further argues that Dr. S nchez was more than
an independent contractor of AHDM and, thus, that AHDM is liable
for his malpractice. Daniels misconstrues the application of
Puerto Rico's independent contractor law. In M rquez Vega, the ____________
Puerto Rico Supreme Court visited this very issue:
Under the second alternative -- where a
person goes directly to a physician's private
office, agrees with him as to the treatment
he or she is going to receive, and goes to a
given hospital on the physician's
recommendation merely because said
institution is one of several which the
physician has the privilege of using -- the
situation is somewhat different. Under this
factual framework, the main relationship
established is between the "patient" and the
physician, while the relationship established
between the patient and the hospital is of a
supplementary and incidental nature. In this
case, as a rule, the hospital should not be __________
held liable for the exclusive negligence of
an unsalaried physician, who was first and
foremost entrusted with the patient's health.
116 D.P.R. at 499 (emphasis in original); see also Carlos J. ________
Irizarry Yunqu , Responsabilidad Civil Extracontractual 252-53 _______________________________________
(1996).
Daniels admitted in her deposition testimony that she
relied primarily on Dr. S nchez for her diagnosis and treatment
and "primarily entrusted [to him] the diagnosis and treatment of
her respiratory condition." Deposition of Linda Daniels-Recio,
July 26, 1993, at 113. She also indicated that she did not rely
on AHDM's doctors or staff for diagnosis and treatment of her
respiratory problems. Id. at 113-14. Finally, Daniels' ___
admissions to AHDM were at the instruction of Dr. S nchez, who
was not a salaried employee of AHDM. These facts certainly fall
-16-
within the scope of the discussion in M rquez Vega, and AHDM ____________
cannot be held liable on a theory of independent contractor
liability.5
Having addressed and found lacking all of Daniels'
claims regarding the district court's direction of summary
judgment in AHDM's favor, we affirm.
CONCLUSION CONCLUSION
For the foregoing reasons, we affirm the district affirm ______
court's determination of policy coverage and its grant of summary
judgment in favor of AHDM and Evanston.
____________________
5 Indeed, the Puerto Rico Supreme Court stated that, in this
situation, it is not the doctor, but the hospital that is the
independent contractor:
[T]he cited case [relied upon by the lower court] deals
with the benefits derived by the principal from the
work performed by the independent contractor. Under
the alternative we are discussing now -- where the
patient first goes to the physician and then to the
hospital on the physician's recommendation -- the
physician would be the principal and the hospital would
then be the "independent contractor."
M rquez Vega, 116 D.P.R. at 499. ____________
-17-