Lama Romero v. Asociacion

United States Court of Appeals
For the First Circuit

No. 93-1071

ROBERTO ROMERO LAMA, ET AL.,
Plaintiffs, Appellees,

v.

DR. PEDRO J. BORRAS, ET AL.,
Defendants, Appellees.

ASOCIACION HOSPITAL DEL MAESTRO, INC.
Defendant, Appellant.

No. 93-1072

ROBERTO ROMERO LAMA, ET AL.
Plaintiffs, Appellees,

v.

DR. PEDRO J. BORRAS, ET AL.
Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]

Before
Stahl, Circuit Judge,

Aldrich and Campbell, Senior Circuit Judges.

Alvaro R. Calderon, Jr. with whom Alvaro R. Calderon, Jr. Law

Offices were on brief for appellant Borras, et al.

Fernando J. Fornaris with whom Luis Berrios Amadeo, and Cancio,

Nadal & Rivera were on brief for appellant Asociacion Hospital Del

Maestro, Inc.
Harold D. Vincente with whom Vicente & Cuebas were on brief for

appellee.

February 25, 1994

STAHL, Circuit Judge. Defendants-appellants Dr.

Pedro Borras1 and Asociacion Hospital del Maestro, Inc.

(Hospital) appeal from a jury verdict finding them liable

for medical malpractice to plaintiffs Roberto Romero Lama

(Romero) and his wife, Norma.2 Defendants principally

argue that the district court erred in denying their post-

verdict motions for judgment as a matter of law under Fed.

R. Civ. P. 50(b) because the evidence at trial was legally

insufficient to prove the prima facie elements of

negligence. For the same reason, the Borras Defendants

also argue that the court erred in denying their motion for

a new trial pursuant to Fed. R. Civ. P. 59. Finding no

error, we affirm.

I.

BACKGROUND
BACKGROUND

Since the jury found defendants liable, we recount

the facts in the light most favorable to plaintiffs,

drawing all reasonable inferences in their favor; we do not

evaluate the credibility of witnesses or the weight of the

evidence. Santiago-Negron v. Castro-Davila, 865 F.2d 431,

1. In addition to Dr. Borras, his wife and their conjugal
partnership were also named as defendants. We refer to these
three parties collectively as "the Borras Defendants."

2. Corporacion Insular de Seguros, Dr. Borras' insurer, was
also found liable but is not a party to this appeal.

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445 (1st Cir. 1989); Forrestal v. Magendantz, 848 F.2d 303,

305 (1st Cir. 1988); Computer Sys. Eng'g v. Quantel Corp.,

740 F.2d 59, 65 (1st Cir. 1984).

In 1985, Romero was suffering from back pain and

searching for solutions. Dr. Nancy Alfonso, Romero's

family physician, provided some treatment but then referred

him to Dr. Borras, a neurosurgeon. Dr. Borras concluded

that Romero had a herniated disc and scheduled surgery.

Prior to surgery, Dr. Borras neither prescribed nor

enforced a regime of absolute bed rest, nor did he offer

other key components of "conservative treatment." Although

Dr. Borras instructed Romero, a heavy smoker, to enter the

hospital one week before surgery in order to "clean out"

his lungs and strengthen his heart, Romero was still not

subjected to standard conservative treatment.

While operating on April 9, 1986, Dr. Borras

discovered that Romero had an "extruded" disc and attempted

to remove the extruding material. Either because Dr.

Borras failed to remove the offending material or because

he operated at the wrong level, Romero's original symptoms

returned in full force several days after the operation.

Dr. Borras concluded that a second operation was necessary

to remedy the "recurrence."

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Dr. Borras operated again on May 15, 1986. Dr.

Borras did not order pre- or post-operative antibiotics.

It is unclear whether the second operation was successful

in curing the herniated disc. In any event, as early as

May 17, a nurse's note indicates that the bandage covering

Romero's surgical wound was "very bloody," a symptom which,

according to expert testimony, indicates the possibility of

infection. On May 18, Romero was experiencing local pain

at the site of the incision, another symptom consistent

with an infection. On May 19, the bandage was "soiled

again." A more complete account of Romero's evolving

condition is not available because the Hospital instructed

nurses to engage in "charting by exception," a system

whereby nurses did not record qualitative observations for

each of the day's three shifts, but instead made such notes

only when necessary to chronicle important changes in a

patient's condition.3

On the night of May 20, Romero began to experience

severe discomfort in his back. He passed the night

screaming in pain. At some point on May 21, Dr. Edwin Lugo

Piazza, an attending physician, diagnosed the problem as

3. Notwithstanding the "charting by exception" policy,
nurses regularly recorded routine quantitative data such as
the patient's body temperature. Romero apparently did not
develop a fever (another possible sign of infection) until
May 21.

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discitis -- an infection of the space between discs -- and

responded by initiating antibiotic treatment. Discitis is

extremely painful and, since it occurs in a location with

little blood circulation, very slow to cure. Romero was

hospitalized for several additional months while undergoing

treatment for the infection.

After moving from Puerto Rico to Florida, the

Romeros filed this diversity tort action in United States

District Court for the District of Puerto Rico.4

Plaintiffs alleged that Dr. Borras was negligent in four

general areas: (1) failure to provide proper conservative

medical treatment; (2) premature and otherwise improper

discharge after surgery; (3) negligent performance of

surgery; and (4) failure to provide proper management for

the infection. While plaintiffs did not claim that the

Hospital was vicariously liable for any negligence on the

part of Dr. Borras, they alleged that the Hospital was

itself negligent in two respects: (1) failure to prepare,

use, and monitor proper medical records; and (2) failure to

provide proper hygiene at the hospital premises.

4. In addition to the Borras Defendants and the Hospital,
plaintiffs named as defendants several other physicians, as
well as their spouses and insurers. The district court
granted summary judgment in favor of the other defendants and
that decision is not at issue in this appeal.

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At each appropriate moment, defendants attempted

to remove the case from the jury. Before trial they moved

for summary judgment. See Fed. R. Civ. P. 56. At the

close of plaintiffs' case and at the close of all the

evidence, defendants moved for judgment as a matter of law.

See Fed. R. Civ. P. 50(a). After the jury returned a

verdict awarding plaintiffs $600,000 in compensatory

damages, defendants again sought judgment as a matter of

law. See Fed. R. Civ. P. 50(b). Additionally, the Borras

Defendants requested either a new trial or remittitur. See

Fed. R. Civ. P. 50(b) and 59. At each procedural step and

with respect to each allegation of negligence, defendants'

primary argument was that plaintiffs had failed to

establish the required elements of duty, breach, and

causation.

The district court rebuffed all of defendants'

entreaties, ruling that the evidence was legally sufficient

to fuel the jury's deliberations and ultimately to support

its findings. Because our analysis necessarily focuses on

the denial of the post-verdict motions for judgment as a

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matter of law,5 we quote at length from the district

court's order denying those motions:

In reference to Dr. Borras, the
evidence, seen in the light most
favorable to the plaintiffs, allowed the
jury to at least conclude that Dr. Borras

failed to pursue a well-planned and
managed, conservative treatment course
for Roberto Romero Lama's back ailment
before exposing him to the inherent
dangers of a herniated disc operation.
Had such conservative treatment been
successful, then the post-surgical
complications that unfortunately took

5. We do not directly address the merits of the Borras

Defendants' pre-verdict challenges to the sufficiency of
the evidence. The Borras Defendants' attack on the denial
of summary judgment has been overtaken by subsequent
events, namely, a full-dress trial and an adverse jury
verdict. In these circumstances, we will not address the
propriety of the denial of summary judgment. See Whalen v.

Unit Rig, Inc., 974 F.2d 1248, 1250 (10th Cir. 1992), cert.

denied, 113 S. Ct. 1417 (1993); Bottineau Farmers Elevator

v. Woodword-Clyde Consultants, 963 F.2d 1064, 1068 n.5 (8th

Cir. 1992); Jarrett v. Epperly, 896 F.2d 1013, 1016 & n.1

(6th Cir. 1990); Holley v. Northrop Worldwide Aircraft

Servs., Inc., 835 F.2d 1375, 1378 (11th Cir. 1988) ("[A]

party may not rely on the undeveloped state of the facts at
the time [the party] moves for summary judgment to
undermine a fully-developed set of trial facts which
militate against [the party's] case."); Locricchio v. Legal

Servs. Corp., 833 F.2d 1352, 1358-59 (9th Cir. 1987);

Glaros v. H.H. Robertson Co., 797 F.2d 1564, 1573 (Fed.

Cir. 1986), cert. dismissed, 479 U.S. 1072 (1987). But see

Trustees of Indiana Univ. v. Aetna Casualty & Sur. Co., 920

F.2d 429, 433 (7th Cir. 1990) (addressing denial of summary
judgment even after an adverse jury verdict). Were we to
consider the issue, we would find the Borras Defendants'
position to be without merit. For similar reasons, we do
not separately address the district court's denial of the
Borras Defendants' Rule 50(a) motion for judgment as a
matter of law, which is either non-appealable at this stage
or resolved by our affirmance of the denial of defendants'
Rule 50(b) motions. See Locricchio, 833 F.2d at 1356 n.2.

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place in the operated vertebral
interspace [including the infection
following the second surgery] would not
have occurred. A reasonable jury could
have concluded that the negligent act was
the recommendation of a first operation
without the benefit of additional
conservative treatment . . . .

As to Hospital del Maestro, it was
entirely possible for the jury to
conclude that the particular way in which
the medical and nursing records were kept
constituted evidence of carelessness in
monitoring the patient after the second
operation. Perhaps the infection would
have been reported and documented
earlier. Perhaps the hospital was
negligent in not dealing appropriately
with wound inspection and cleaning, [and]
bandage changing . . . .

Romero Lama v. Borras, No. 91-1055, slip op. at 1-2 (D.P.R.

Sept. 1, 1992) (order denying post-verdict motions). We

find the reasoning of the district court to be

substantially sound and therefore affirm the result.

II.

STANDARD OF REVIEW

Our review of a denial of a post-verdict motion

for judgment as a matter of law is plenary, yet highly

circumscribed by the deferential Rule 50(b) standard. See

Rolon-Alvarado v. Municipality of San Juan, 1 F.3d 74, 77

(1st Cir. 1993). We must sustain the district court's

denial of a Rule 50(b) motion for judgment as a matter of

law, "unless the evidence, together with all reasonable

inferences in favor of the verdict, could lead a reasonable

person to only one conclusion, namely, that the moving

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party was entitled to judgment." PH Group Ltd. v. Birch,

985 F.2d 649, 653 (1st Cir. 1993).

The standard of review for denial of a Rule 59

motion for new trial is similarly circumscribed, but

counsels ample deference to the district court's exercise

of discretion. There is no abuse of discretion in such a

case unless "the verdict was so clearly against the weight

of the evidence as to amount to a manifest miscarriage of

justice." Id. (citations and quotations omitted).

The Borras Defendants correctly argue that the

district court may order a new trial even where the verdict

is supported by substantial evidence. E.g., Wagenmann v.

Adams, 829 F.2d 196, 200 (1st Cir. 1987) (citing Hubbard v.

Faros Fisheries, Inc., 626 F.2d 196, 200 (1st Cir. 1980));

see generally 11 Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure 2805-2810, at 37-77

(1973) (describing traditional alternative grounds for new

trial, including errors of law as well as misconduct on the

part of court, counsel, or jury). However, there is no

rule that the district court must do so. Indeed, we have

noted that, where the verdict rests on substantial

evidence, it is "`only in a very unusual case'" that we

will find that the district court abused its discretion by

denying a new trial. Wagenmann, 829 F.2d at 200 (quoting

Hubbard, 626 F.2d at 200 and Sears v. Pauly, 261 F.2d 304,

309 (1st Cir. 1958)). In other words, when an argument

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that the evidence was insufficient forms the basis of a

motion for new trial, the district court is generally well

within the bounds of its discretion in denying the motion

using the same reasoning as in its denial of a motion for

judgment as a matter of law. See Robinson v. Watts

Detective Agency, Inc., 685 F.2d 729, 740 (1st Cir. 1982),

cert. denied, 459 U.S. 1105, 1204 (1983). In these

circumstances, then, our review of the denial of a Rule 59

motion is essentially coterminous with our review of the

denial of a Rule 50(b) motion. See id.

III.

DISCUSSION

A. Medical Malpractice under Puerto Rico Law

We begin our analysis by laying out the

substantive law of Puerto Rico governing this diversity

suit.6 To establish a prima facie case of medical

malpractice in Puerto Rico, a plaintiff must demonstrate:

6. First Circuit Local Rule 30.7 provides 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.'" Rolon-Alvarado, 1 F.3d at 77 n.1. As in

Rolon-Alvarado, the parties to this appeal have not

furnished translations of such cases. In the future, we
may commission unofficial translations and impose on the
offending parties the costs incurred and, where
appropriate, sanctions. Failure to follow Rule 30.7 can
lead to delay while this court engages in its own
translation efforts, to uncertainty about the meaning of
important language, or both.

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(1) the basic norms of knowledge and medical care

applicable to general practitioners or specialists; (2)

proof that the medical personnel failed to follow these

basic norms in the treatment of the patient; and (3) a

causal relation between the act or omission of the

physician and the injury suffered by the patient. Sierra

Perez v. United States, 779 F. Supp. 637, 643 (D.P.R.

1991); see also Rolon-Alvarado, 1 F.3d at 77 & n.2

(describing elements of medical malpractice in Puerto Rico

and noting similarity with other jurisdictions).

The burden of a medical malpractice plaintiff in

establishing the physician's duty is more complicated than

that of an ordinary tort plaintiff. Instead of simply

appealing to the jury's view of what is reasonable under

the circumstances, a medical malpractice plaintiff must

establish the relevant national standard of care. See

Rolon-Alvarado, 1 F.3d at 77. In adopting a national

standard, the Supreme Court of Puerto Rico explained that

physicians are required to provide "[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, 1 P.R. Sup. Ct.

Off'l Translations 293, 313 (1973).

Naturally, the trier of fact can rarely determine

the applicable standard of care without the assistance of

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expert testimony. Rolon-Alvarado, 1 F.3d at 78 (citing

Oliveros, 1 P.R. Sup. Ct. Off'l Translations at 315). The

predictable battle of the experts then creates a curious

predicament for the fact-finder, because an error of

judgment regarding diagnosis or treatment does not lead to

liability when expert opinion suggests that the physician's

conduct fell within a range of acceptable alternatives.

See Sierra Perez, 779 F. Supp. at 643-44; Cruz Rodriguez v.

Corporacion de Servicios del Centro Medico de Puerto Rico,

113 P.R. Dec. , , 13 P.R. Sup. Ct. Off'l Translations

931, 946 (1983); Oliveros, 1 P.R. Sup. Ct. Off'l

Translations at 315 (holding that physician is not liable

for malpractice when there is "educated and reasonable

doubt" about the appropriate course). While not allowed to

speculate, the fact-finder is of course free to find some

experts more credible than others. See, e.g., Waffen v.

United States Dep't of Health & Human Servs., 799 F.2d 911,

921 (4th Cir. 1986) (applying Maryland law; noting that the

fact-finder in a medical malpractice case is entitled to

decide the weight and credibility of expert testimony);

Rosario v. United States, 824 F. Supp. 268, 279 (D. Mass.

1993) (applying Massachusetts law; similar) (citing

Leibovich v. Antonellis, 574 N.E.2d 978, 982 (Mass. 1991)).

Proof of causation is also more difficult in a

medical malpractice case than in a routine tort case

because a jury must often grapple with scientific processes

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that are unfamiliar and involve inherent uncertainty. A

plaintiff must prove, by a preponderance of the evidence,

that the physician's negligent conduct was the factor that

"most probably" caused harm to the plaintiff. Sierra

Perez, 779 F. Supp. at 643; Cruz Rodriguez, 13 P.R. Sup.

Ct. Off'l Translations at 960. "This fact need not be

established with mathematical accuracy[;] neither must all

other cause of damage be eliminated." Cruz Rodriguez, 13

P.R. Sup. Ct. Off'l Translations at 960-61 (citations

omitted). As in the case of duty, however, a jury normally

cannot find causation based on mere speculation and

conjecture; expert testimony is generally essential. See,

e.g., Johns v. Jarrard, 927 F.2d 551, 557 (11th Cir. 1991)

(applying Georgia law; observing that medical malpractice

plaintiff must usually present expert medical testimony on

issue of causation in order to get to a jury).

B. Negligence of Dr. Borras

The Borras Defendants claim that plaintiffs failed

to introduce any evidence sufficient to prove either (1)

the relevant standards of acceptable medical practice or

(2) the causal link between Dr. Borras' conduct and harm to

the plaintiffs. While plaintiffs may not have been able to

substantiate the broad attack outlined in their complaint,

we focus here on only one allegation of negligence: Dr.

Borras' failure to provide conservative treatment prior to

the first operation.

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Defendants argue that plaintiffs failed to prove a

general medical standard governing the need for

conservative treatment in a case like that of Romero. We

disagree. Plaintiffs' chief expert witness, Dr. George

Udvarhelyi, testified that, absent an indication of

neurological impairment, the standard practice is for a

neurosurgeon to postpone lumbar disc surgery while the

patient undergoes conservative treatment, with a period of

absolute bed rest as the prime ingredient.7 In these

respects, the views of defendants' neurosurgery experts did

not diverge from those of Dr. Udvarhelyi. For example, Dr.

Luis Guzman Lopez testified that, in the absence of

extraordinary factors, "all neurosurgeons go for

[conservative treatment] before they finally decide on [an]

operation."8 Indeed, when called by plaintiffs, Dr.

7. Dr. Udvarhelyi testified that "[i]n general, when you
have a relatively mild protrusion of the disk [sic]
material, our policy is that you provide the patient with
the possibility of a conservative treatment." If Dr.
Udvarhelyi's reference to "our policy" merely represented a
personal view about what he would have done differently,
his statement would not be sufficient to establish a

general medical standard. See Rolon-Alvarado, 1 F.3d at

78. The jury was free, however, to conclude that "our
policy" referred to the policy shared by neurosurgeons,
particularly where nearly all of defendants' neurosurgery
experts espoused the same basic "policy." In addition, Dr.
Udvarhelyi later testified, "I couldn't see evidence that a
proper time was given for the conservative management

before deciding surgery." (Emphasis added).

8. Defendants argue that, even if Dr. Udvarhelyi's
testimony represents the generally accepted standard, that

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Borras (who also testified as a neurosurgery expert) agreed

on cross-examination with the statement that "bed rest is

normally recommended before surgery is decided in a patient

like Mr. Romero," and claimed that he did give conservative

treatment to Romero.

In spite of Dr. Borras' testimony to the contrary,

there was also sufficient evidence for the jury to find

that Dr. Borras failed to provide the customary

conservative treatment. Dr. Alfonso, Romero's family

physician, testified that Dr. Borras, while aware that

Romero had not followed a program of absolute bed rest,

proceeded with surgery anyway. Although Romero was

admitted to the hospital one week before surgery, there was

evidence that Dr. Borras neither prescribed nor attempted

to enforce a conservative treatment regime. In fact, there

was evidence that Dr. Borras' main goal was simply to admit

Romero for a week of smoke-free relaxation, not absolute

bed rest, because Romero's heavy smoking and mild

standard does not apply to Romero's case because, according
to some of the defense witnesses, Romero was suffering from

neurological impairments prior to the first surgery. Dr.

Guzman, for example, claimed that Romero "had neurological
deficit from the very beginning." In contrast, Dr.
Udvarhelyi, who claimed that he was fully aware of all of
Romero's symptoms, opined that Romero's symptoms at the
time did not suggest a neurological deficit. This was a
disputed factual issue for the jury to resolve. We cannot
say that it would have been unreasonable for the jury to
resolve this dispute in plaintiffs' favor.

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hypertension made him a high-risk surgery patient. In

short, we agree with the district court that the jury could

reasonably have concluded that Dr. Borras failed to

institute and manage a proper conservative treatment plan.

The issue of causation is somewhat more

problematic. There are two potential snags in the chain of

causation. First, it is uncertain that premature surgery

was the cause of Romero's infection. Second, it is

uncertain whether conservative treatment would have made

surgery unnecessary. With respect to the first problem,

the Puerto Rico Supreme Court has suggested that, when a

physician negligently exposes a patient to risk-prone

surgery, the physician is liable for the harm associated

with a foreseeable risk. See Cruz Rodriguez, 13 P.R. Sup.

Ct. Off'l Translations at 956 ("A treatment that submits

the patient to unnecessary and foreseeable risks cannot be

considered reasonable, when alternate means to reduce or

avoid them are available."). In this case, it is

undisputed that discitis was a foreseeable risk of lumbar

disc surgery.

Turning to the second area of uncertainty, we

observe that nearly all of the experts who testified on the

subject for both plaintiffs and defendants were of the

opinion that conservative treatment would eliminate the

need for surgery in the overwhelming majority of cases.

Nonetheless, defendants introduced expert testimony that,

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because Romero suffered from an "extruded" disc,

conservative treatment would not have helped. Dr.

Udvarhelyi testified, however, that an extruded disc is

indeed amenable to conservative treatment. With competent

expert testimony in the record, the jury was not left to

conjure up its own theories of causation. And certainly,

the jury was free to credit some witnesses more than

others. The question is admittedly close, but the jury

could have reasonably found that Dr. Borras' failure to

administer conservative treatment was the "most probable

cause" of the first operation.

We conclude that plaintiffs introduced legally

sufficient evidence to support each element of at least one

major allegation of negligence on the part of Dr. Borras.

We therefore hold that the district court properly denied

the Borras Defendants' Rule 50 and Rule 59 motions.

C. Negligence of Asociacion Hospital Del Maestro

While plaintiffs made a number of allegations

against the Hospital, we focus on the allegation that the

failure of hospital nurses to report on each nursing shift

was a negligent cause of the late detection of Romero's

infection.9

9. Since we do not reach the issue of the alleged lack of
proper hygiene at the hospital, we need not discuss the
Hospital's argument that the district court erred in
allowing Dr. Udvarhelyi, who qualified only as a
neurosurgery expert and allegedly pledged not to testify

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The Hospital cannot seriously dispute that

plaintiffs introduced sufficient evidence on the elements

of duty and breach. The Hospital does not contest

plaintiffs' allegation that a regulation of the Puerto Rico

Department of Health, in force in 1986, requires

qualitative nurses' notes for each nursing shift.10 Nor

does the Hospital dispute the charge that, during Romero's

hospital stay, the nurses attending to Romero did not

supply the required notes for every shift but instead

followed the Hospital's official policy of charting by

exception. The sole question, then, is whether there was

sufficient evidence for the jury to find that violation of

the regulation was a proximate cause of harm to Romero.11

The Hospital questions plaintiffs' proof of

causation in two respects. First, the Hospital claims that

plaintiffs did not prove that the charting by exception

policy was a proximate cause of the delayed detection of

against the hospital, to testify about the effect of

cockroaches in the hospital on the likelihood of infection.

10. The regulation itself was not made part of the record
on appeal.

11. The district judge suggested that causation was the
principal issue for jury consideration when he instructed
the jury that "violation of [a] law or regulation is not in
itself enough to constitute negligence absent proof of the
existence of the proximate cause between the damage
allegedly sustained and such alleged violation of the law
and/or of the regulation." Neither party objected to the
jury instructions.

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Romero's infection. Second, the Hospital argues that there

was no causal relationship between the belated diagnosis of

the infection and any unnecessary harm suffered by Romero.

We address each of these arguments in turn.

The Hospital essentially argues that it is

uncertain whether the hospital staff observed, but failed

to record, any material symptoms that would probably have

led an attending physician to investigate the possibility

of an infection at an earlier stage. The Hospital notes

that, even under the charting by exception policy, its

nurses regularly recorded such information as the patient's

temperature, vital signs, and any medication given to the

patient. Indeed, there is some evidence that Romero did

not have a fever (one possible sign of infection) before

May 21, when Dr. Piazza diagnosed the infection and began

antibiotic treatment.

Nonetheless, there was evidence from which the

jury could have inferred that, as part of the practice of

charting by exception, the nurses did not regularly record

certain information important to the diagnosis of an

infection, such as the changing characteristics of the

surgical wound and the patient's complaints of post-

operative pain. Indeed, one former nurse at the Hospital

who attended to Romero in 1986 testified that, under the

charting by exception policy, she would not report a

patient's pain if she either did not administer any

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medicine or simply gave the patient an aspirin-type

medication (as opposed to a narcotic). Further, since

there was evidence that Romero's hospital records contained

some scattered possible signs of infection that, according

to Dr. Udvarhelyi, deserved further investigation (e.g., an

excessively bloody bandage and local pain at the site of

the wound), the jury could have reasonably inferred that

intermittent charting failed to provide the sort of

continuous danger signals that would be the most likely

spur to early intervention by a physician.

The Hospital claims, however, that, even if faulty

record-keeping is a cause of the delayed diagnosis,

plaintiffs failed to demonstrate a link between the timing

of the diagnosis and the harm Romero eventually suffered.

Drawing all inferences in favor of the plaintiffs, it

appears that Romero acquired a wound infection as early as

May 17 (when a nurse noted a "very bloody" bandage) or May

19 (when Romero complained of pain at the site of the

wound); the wound infection then developed into discitis on

or about May 20 (when Romero began experiencing

excruciating back pain). While there may have been no way

to prevent the initial wound infection, the key question

then becomes whether early detection and treatment of the

wound infection could have prevented the infection from

reaching the disc interspace in the critical period prior

to May 20.

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Dr. Udvarhelyi testified that "time is an

extremely important factor" in handling an infection; a 24

hour delay in treatment can make a difference; and a delay

of several days "carries a high-risk [sic] that the

infection will [not be] properly controlled." Here, the

jury could have reasonably inferred that diagnosis and

treatment were delayed at least 24 hours (May 19 to 20),

and perhaps 72 (May 17 to 20). As a result, the jury could

have reasonably concluded that the timing of the diagnosis

and treatment of the wound infection was a proximate cause

of Romero's discitis.

In conclusion, we agree with the district judge

that this case "is by no means the strongest proposition

for medical malpractice against . . . a hospital," Romero

Lama, slip op. at 3. Nevertheless, we find none of the

Hospital's arguments persuasive enough to disturb the

verdict. We hold that plaintiffs met their burden of proof

as to the allegation that the Hospital's substandard

record-keeping procedures delayed the diagnosis and

treatment of Romero's wound infection at a time when

controlling the wound infection was likely to prevent the

development of the more serious discitis. Accordingly,

there was no error in the district court's denial of the

Hospital's Rule 50(b) motion for judgment as a matter of

law.

IV.

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CONCLUSION

There is no need to discuss defendants' other

assignments of error.12 For the foregoing reasons, the

order of the district court denying defendants' motions for

judgment as a matter of law and the Borras Defendants'

motions for new trial is

Affirmed.

12. Appellants' other arguments on appeal are moot,
meritless, or waived. First, because the denial of summary
judgment is now a non-issue, see supra note 5, so is the

question whether the district court, in ruling on the

motion for summary judgment, failed to adhere to the local
rules of the District of Puerto Rico in its treatment of
allegedly uncontroverted facts. Second, we discern no
reversible error in the district court's denial of the
Borras Defendants' "informative motion" concerning the
deposition of Dr. Barth Green, a neurosurgeon who was
treating Romero at the time of the trial, and who had
planned to operate on Romero in 1992 in an attempt to
relieve Romero's persistent back pain. We are puzzled as
to how an "informative" motion can be "denied,"

particularly where leave of court would appear to be
unnecessary, see Fed. R. Civ. P. 30(a), and no party has

moved for a protective order, see Fed. R. Civ. P. 26(c).

But even if the district court abused its discretion in
curtailing discovery of relevant material, the Borras
Defendants had other means of countering plaintiffs' proof
of physical injury, and Romero's condition in 1992 is
irrelevant to the compensable harm suffered by plaintiffs
prior to 1992. In short, the Borras Defendants have not

demonstrated the "substantial prejudice" necessary to

justify appellate intervention. Mack v. Great Atl. & Pac.

Tea, Inc., 871 F.2d 179, 186-87 (1st Cir. 1989). Third,

since the Borras Defendants argued the issue of remittitur
in the most perfunctory fashion on appeal, we deem waived
any argument about the excessiveness of the compensatory
damages. See FDIC v. World Univ., Inc., 978 F.2d 10, 15

(1st Cir. 1992) (noting that "issues adverted to in a
perfunctory manner, unaccompanied by some effort at
developed argumentation," may be deemed waived).

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