United States Court of Appeals
For the First Circuit
No. 03-2385
DARLENE I. ROJAS-ITHIER, ET AL.,
Plaintiffs-Appellees,
v.
SOCIEDAD ESPANOLA de AUXILIO MUTUO y
BENEFICIENCIA de PUERTO RICO,
Defendant and Third Party Plaintiff-Appellant,
v.
SINDICATO de ASEGURADORES de IMPERICIA MEDICO
HOSPITALARIA; CECILIA MENDEZ-MARTIR,
Third Party Defendants-Appellees
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. Garcia-Gregory, U.S. District Judge]
Before
Boudin, Chief Judge,
Howard, Circuit Judge,
Carter,* Senior District Judge.
Dennis J. Cruz Perez for Third Party Plaintiff-Appellant.
Maria Z. Trigo-Ferraiuoli, with whom Ramonita Dieppa
Gonzales, was on brief for Third Party Defendants-Appellees.
January 6, 2005
*
Of the District of Maine, sitting by designation.
CARTER, Senior District Judge. Defendant-Third Party
Plaintiff Sociedad Espanola de Auxilio Mutuo y Beneficiencia de
Puerto Rico (hereinafter “Hospital”) appeals from an order of the
United States District Court for the District of Puerto Rico
granting third party defendant Dr. Celia Mendez Martir’s Motion
for Summary Judgment. Finding no error, we affirm.
I. FACTS AND PROCEDURAL HISTORY
Plaintiffs Darlene Rojas-Ithier and Victor Varela Teron
initiated this medical malpractice action following the death of
their infant son.
Rojas was admitted to the Hospital on March 3, 2000, after a
series of pregnancy complications, including a threatened
abortion at twelve weeks’ gestation, first trimester bleeding, a
urinary tract infection, and premature rupture of membranes.
During this hospital stay, Rojas was ordered to remain in bed by
her obstetrician, Dr. Mendez. At approximately 2:00 AM on April
26, 2000, twenty-nine weeks into the pregnancy, Dr. Mendez was
notified at home by the attending nurses that Rojas was having
gas pain and abdominal pain. Although Dr. Mendez ordered the
hospital staff to keep Rojas under strict bed rest, Rojas moved
from her bed to the adjacent bathroom in an effort to relieve her
gas pains.
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While in the bathroom, Rojas delivered her baby into the
toilet. The baby boy remained in the toilet for an undetermined
period of time before being discovered. Thereafter, a
neonatologist attempted to resuscitate the baby, but his efforts
ultimately proved unsuccessful. Approximately eleven hours after
the live birth, the baby was pronounced dead.
Plaintiffs brought this diversity suit1 against the Hospital
on February 6, 2002. Defendant Hospital subsequently brought a
third party complaint against Dr. Mendez and her insurance
carrier, Sindicato de Aseguradores de Impericia Medico
Hospitalaria. The district court, finding no genuine issues of
material fact, granted Dr. Mendez’s Motion for Summary Judgment.2
This appeal followed.
II. STANDARD OF REVIEW
We review the grant of summary judgment de novo, applying
the same standard as did the district court. Leon v.
Municipality of San Juan, 320 F.3d 69, 71 (1st Cir. 2003).
1
At the time this suit was commenced, Plaintiffs were residents
of the State of Florida.
2
While Dr. Mendez’s Motion for Summary Judgment was pending
before the district court, Plaintiffs and the Hospital settled
their dispute. The Hospital filed a motion for voluntary dismissal
without prejudice of all claims, including its third party
complaint against Dr. Mendez, following the settlement between the
Hospital and Plaintiffs.
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The objective of summary judgment “is to pierce the
boilerplate of the pleadings and assay the parties’ proof in
order to determine whether trial is actually required.” Wynne v.
Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992).
Summary judgment is appropriate only if “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show 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.” Fed. R. Civ. P.
56(c). “In this regard, ‘material’ means that a contested fact
has the potential to change the outcome of the suit under the
governing law if the dispute over it is resolved favorably to the
nonmovant. By like token, ‘genuine’ means that the evidence
about the fact is such that a reasonable jury could resolve the
point in favor of the nonmoving party.” Navarro v. Pfizer Corp.,
261 F.3d 90, 93-94 (1st Cir. 2001) (citing McCarthy v. Northeast
Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)). “A
trialworthy issue exists if the evidence is such that there is a
factual controversy pertaining to an issue that may affect the
outcome of the litigation under the governing law, and the
evidence is ‘sufficiently open-ended to permit a rational
factfinder to resolve the issue in favor of either side.’” De-
Jesus-Adorno v. Browning Ferris Indus., 160 F.3d 839, 841-42 (1st
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Cir. 1998) (quoting Nat’l Amusements, Inc. v. Town of Dedham, 43
F.3d 731, 735 (1st Cir. 1995)).
The Court views the record on summary judgment in the light
most favorable to the nonmovant. See Santiago-Ramos v.
Centennial P.R. Wireless Corp., 217 F.3d 46, 50 (1st Cir. 2000).
However, summary judgment is appropriate “against a party who
fails to make a showing sufficient to establish the existence of
an element essential to that party's case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). Once the moving party has
presented evidence of the absence of a genuine issue, the
nonmoving party must respond by “placing at least one material
fact into dispute.” FDIC v. Anchor Props., 13 F.3d 27, 30 (1st
Cir. 1994) (citing Darr v. Muratore, 8 F.3d 854, 859 (1st Cir.
1993)).
III. DISCUSSION
Because this is a diversity action, the substantive law of
Puerto Rico applies. See Erie R.R. Co. v. Tompkins, 304 U.S. 64,
92 (1938); Daniels-Recio v. Hospital del Maestro, 109 F.3d 88, 90
(1st Cir. 1997).
The Puerto Rico Civil Code provides that “[a] person who by
an act or omission causes damage to another through fault or
negligence shall be obliged to repair the damage so done.” 31
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P.R. Laws Ann. § 5141. Three elements comprise a prima facie
case of medical malpractice under Puerto Rico law. To prevail
against a doctor, a party must establish (1) the duty owed; (2)
an act or omission transgressing that duty; and (3) a sufficient
causal nexus between the breach and the harm. Cortes-Irizarry v.
Corporacion Insular de Seguros, 111 F.3d 184, 189 (1st Cir.
1997); Lama v. Borras, 16 F.3d 473, 478 (1st Cir. 1994); Medina
Santiago v. Velez, 120 P.R. Dec. 380, 385 (1988).
Puerto Rico law holds physicians to a national standard of
care.3 “[B]ecause Puerto Rico law presumes that physicians
exercise reasonable care, a plaintiff bent on establishing a
breach of a physician’s duty of care ordinarily must adduce
expert testimony to limn the minimum acceptable standard and
confirm the defendant doctor’s failure to meet it.” Cortes-
Irizarry, 111 F.3d at 190. Without the assistance of expert
testimony, a trier of fact is rarely able to determine the
applicable standard of care in the medical profession. Rolon-
Alvarado v. Municipality of San Juan, 1 F.3d 74, 78 (1st Cir.
1993). Similarly, a factfinder normally cannot find causation
3
The Puerto Rico Supreme Court has described this national
standard as “[t]hat [level of care] which, recognizing the modern
means of communication and education, ... meets the professional
requirements generally acknowledged by the medical profession.”
Oliveros v. Abreu, 101 P.R. Dec. 209, 226 (1973).
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without the assistance of expert testimony to clarify complex
medical and scientific issues that are more prevalent in medical
malpractice cases than in standard negligence cases. Lama, 16
F.3d at 478.
To bring into question an element of the Hospital’s prima
facie case, Dr. Mendez submitted two expert opinions to the
district court, both of which attributed the infant’s death
solely to the negligence of the Hospital and its nurses. It is
undisputed that the Hospital has failed to furnish a medical
expert opinion suggesting that Dr. Mendez breached the standard
of care. Instead, the Hospital first urges us to conclude that
because of discrepancies between the nurses’ notes and Dr.
Mendez’s notes recounting the events of April 26, 2000, a genuine
issue of material fact exists. The existence of contradictions,
standing alone, however, is not enough to preclude summary
judgment. The Hospital fails to establish any nexus between the
inconsistencies in the notes and the resulting death of the
infant. Accordingly, we do not find any alleged discrepancies in
the notes sufficient to create an issue of material fact.
Realizing its predicament after failing to file any expert
opinions with the district court to support its claims of
negligent conduct by Dr. Mendez, the Hospital next asks us to
find that Dr. Mendez’s conduct alone was so egregious that an
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expert is not necessary to find such a nexus.4 We decline this
invitation. The Hospital offers no support for its claim of
egregious conduct other than its own unsubstantiated allegations
and theories. It is a long standing principle in this Circuit
that bald assertions and unsupportable conclusions are not enough
to create a genuine issue of material fact. See, e.g., Aulson v.
Blanchard, 83 F.3d 1, 2 (1st Cir. 1996).
Finally, Appellant challenges the expert opinions offered by
Dr. Mendez. “The Hospital submits that a plain reading by the
court of the experts [sic] reports suffices to conclude that they
are fundamentally written around the experts’ interpretation and
recreation of fragments of depositions containing no specific
references either to the medical record.” App. Br. at 15. A
thorough review of the record by this Court clearly indicates
that both experts retained by Dr. Mendez, in formulating their
expert opinions, carefully examined the hospital records and
available depositions in the case. We find no merit to
Appellant’s argument. The appropriate method for the Hospital to
4
Citing to Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986), the Hospital contends that to create a genuine issue of
material fact, it only need produce evidence that would allow a
reasonable jury to return a verdict in its favor. Appellant’s
problem is that Anderson’s requirement could be met in a libel case
without expert evidence; by contrast, under Puerto Rico law,
appellant did need an expert to establish medical malpractice,
given the state of the record in this case.
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challenge these expert reports is not through legal argument, but
by retaining its own medical expert and submitting to the
district court an expert opinion in accordance with Puerto Rico
law. This Court will not on its own create a dispute of medical
facts when the Hospital had an appropriate avenue in which to do
so during the discovery process in the district court.
IV. CONCLUSION
Dr. Mendez, through the submission of two expert opinions,
presented evidence of the absence of a genuine factual issue
central to the Hospital’s case. The Hospital failed to respond
with appropriate expert evidence and failed to adduce support for
its claim that Dr. Mendez breached the standard of care. Without
such evidence, the Hospital cannot establish an element of its
prima facie case. As such, the Hospital fails to meet its burden
of showing that there is a fact issue requiring trial. Because
we affirm the district court’s grant of summary judgment in favor
of Dr. Mendez, the Hospital’s arguments addressing the
appropriateness of a dismissal with prejudice are moot.
Affirmed.
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