United States Court of Appeals
For the First Circuit
No. 01-2296
CARMEN GLORIA SANTOS ESPADA,
Plaintiff, Appellant,
v.
JAIME CANCEL LUGO,
Defendant, Appellee,
C/P CANCEL-DOE; HOSPITAL PAVIA,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior District Judge]
Before
Boudin, Chief Circuit Judge,
Lynch, Circuit Judge,
and Shadur,* Senior District Judge
Alexander H. Bopp, with Ernesto G. López Soltero on brief, for
appellant.
Mirta E. Rodriguez-Mora for appellee.
December 2, 2002
*
Of the Northern District of Illinois, sitting by designation.
SHADUR, Senior District Judge. Carmen Gloria Santos
Espada (“Santos”) brought this diversity-of-citizenship action
against Dr. Jaime Cancel Lugo, claiming that Dr. Cancel had
committed medical malpractice under Article 1802 of the Puerto Rico
Civil Code. Santos contends that Dr. Cancel acted negligently in
performing a modified radical mastectomy that included the excision
of 14 lymph nodes, causing lymphedema in her right arm.
When the case went to trial, Dr. Cancel moved under Fed.
R. Civ. P. ("Rule”) 50(a) for judgment as a matter of law when
Santos had completed her proofs and rested. That motion was
granted on statute of limitations grounds, and the action was
therefore dismissed. Santos appeals, and we reverse the district
court's judgment and remand for further proceedings in light of
this opinion.
Standard of Review
We review the grant of a Rule 50(a) motion for judgment
as a matter of law de novo, using the same standards as the
district court (Andrade v. Jamestown Hous. Auth., 82 F.3d 1179,
1186 (1st Cir. 1996)). All of the evidence and reasonable
inferences drawn from the evidence are thus considered in the light
most favorable to nonmovant Santos (id.), and we take that approach
in the Facts discussion below.
As for the legal standard to be applied to the facts,
Andrade, id. (internal quotation marks omitted) spoke in terms of
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the older Rule 50(a) “directed verdict” language (which embodied
the same concept) to teach that a “verdict may be directed only if
the evidence, viewed from this perspective [most favorable to the
nonmovant], would not permit a reasonable jury to find in favor of
the plaintiff[ ] on any permissible claim or theory.” If instead
fair-minded persons could draw different inferences from the
evidence presented at trial, the matter is for the jury (Santiago
Hodge v. Parke Davis & Co., 909 F.2d 628, 634 (1st Cir. 1990)).
Facts
On May 27, 1997 Santos underwent a right modified radical
mastectomy, performed by Dr. Cancel at Hospital Pavia in San Juan,
Puerto Rico. That procedure included the removal of remaining
breast tissue, as well as the axillary contents of 14 lymph nodes
that were free of tumor. Santos was never warned of the risks of
removing those axillary contents or of the effects that such a
procedure may have, nor was she advised about the appropriate
measures to take regarding her arm. Approximately a week after
surgery, Dr. Cancel told Santos that 14 lymph nodes had been
removed during surgery.
In July 1997 Santos visited Dr. Cancel to inquire about
some swelling of her right arm. Dr. Cancel told her that it was
nothing. During other July appointments Dr. Cancel never mentioned
the possibility of swelling or lymphedema to Santos.
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In November 1997 Santos was told that she had lymphedema
by a doctor in a Florida hospital. Santos began treatment for
lymphedema by December 1997. Next Santos met with a lymphedema
specialist in April or May 1998. In the meantime she had
communicated with the National Lymphedema Network in 1997,
receiving some information about lymphedema.
On July 21, 1999 oncologists at the Veterans Hospital in
Tampa, Florida first informed Santos that the procedure used for
her intraductal carcinoma, the modified radical mastectomy, was not
the recommended procedure. Those physicians also identified the
modified radical mastectomy and removal of the 14 lymph nodes as
the reason for the development of the lymphedema.
On May 30, 2000 Santos filed a complaint alleging medical
malpractice in the course of the May 27, 1997 surgery. Trial by
jury began on July 16, 2001. When Santos rested her case, Dr.
Cancel moved for dismissal of the action under Rule 50(a) on the
grounds that the cause of action was time-barred and,
alternatively, that Santos had failed to satisfy her evidentiary
burden in her case in chief. In a July 17 order (Santos Espada v.
Cancel Lugo, 165 F. Supp. 2d 76 (D.P.R. 2001)) the District Court
dismissed the action with prejudice by finding that Santos knew of
her injury as early as 1997 or 1998 and also that Santos “should
have known during the course of her treatment for lymphedema that
the excision of the axillary contents of 14 lymph nodes may not
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have been necessary given the nature of [Santos’] breast cancer”
(id. at 78). That order did not address Dr. Cancel's other Rule
50(a) argument that Santos had failed to satisfy her evidentiary
burden.
Statute of Limitations Considerations
This diversity action looks to the Puerto Rico Civil
Code, which sets a one-year statute of limitations for personal
injury claims (31 P.R. Laws Ann. §5298(2); see also Ramos-Baez v.
Bossolo-Lopez, 240 F.3d 92, 93 (1st Cir. 2001)). That one-year
time clock begins to tick on the day after the date of accrual of
the claim (Carreras-Rosa v. Alves-Cruz, 127 F.3d 172, 175 (1st Cir.
1997)(per curiam)). Because Santos filed suit on May 30, 2000, its
timeliness therefore depends on a date of accrual no later than
May 30, 1999.
For accrual purposes, the injured person must have both
notice of her injury and knowledge of the likely identity of the
tortfeasor (Tokyo Marine & Fire Ins. Co. v. Perez y Cia. de Puerto
Rico, Inc., 142 F.3d 1, 3 (1st Cir. 1998)). We therefore examine
when both of those elements were present in this case.
Notice of an injury occurs when there “exist some outward
or physical signs through which the aggrieved party may become
aware and realize that [s]he has suffered an injurious aftereffect”
(Kaiser v. Armstrong World Indus., Inc., 872 F.2d 512, 516 (1st
Cir. 1989), quoting Puerto Rico authorities). Santos gained such
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notice of her injury at the latest by November 1997, when the
swelling in her arm was diagnosed as lymphedema.
But such a diagnosis of lymphedema is not necessarily
sufficient for knowledge that a tortfeasor was involved as well.
Colon Prieto v. Geigel, 115 P.R. Dec. 232, 15 P.R. Offic. Trans.
313 (1984) teaches that “not only must the aggrieved person know
that [s]he has been injured; [s]he must know who is the author of
the injury in order to address the action against him, so [s]he may
know who to sue” (15 Offic. Trans. at 330)(internal quotation marks
omitted; emphasis in original). And Galarza v. Zagury, 739 F.2d
20, 24 (1st Cir. 1984) has read Colon Prieto as making “clear that
knowledge of the author of the harm means more than an awareness of
some ill effects resulting from an operation by a particular
doctor.” From that it follows that (Rodriguez-Suris v.
Montesinos, 123 F.3d 10, 13-14 (1st Cir. 1997)):
If a plaintiff is not aware of some level of
reasonable likelihood of legal liability on the
part of the person or entity that caused the
injury, the statute of limitation will be tolled.
It was only when Santos knew that the lymphedema may have
been caused by an improper surgical procedure that she also had
actual knowledge of the possibility that Dr. Cancel was the author
of her injury--that is, enough to provide a causal nexus between
Dr. Cancel's conduct and the injury. That knowledge came on July
21, 1999, when Santos first learned that Dr. Cancel's removal of 14
lymph nodes was not a recommended procedure. And that knowledge
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that Dr. Cancel had increased the likelihood of Santos developing
lymphedema meant that the injury could be considered a tort rather
than an expected side effect (see, e.g., Villarini-Garcia v.
Hospital Del Maestro, Inc., 8 F.3d 81, 85-87 (1st Cir. 1993);
Galarza, 739 F.2d at 21-24).
But the limitations period can begin to run not simply
when a claimant gains “actual knowledge” but at an earlier date
when “by due diligence, such knowledge would likely have been
acquired” (Rodriguez-Suris, 123 F.3d at 16, quoting
Villarini-Garcia, 8 F.3d at 84). In cases where a tort claim is
filed beyond the one-year statutory term, plaintiff bears the
burden of proving timeliness by establishing that she lacked the
necessary knowledge or imputed knowledge before instituting the
action (Torres v. E.I. DuPont de Nemours & Co., 219 F.3d 13, 19
(1st Cir. 2001)). And for that purpose the question whether the
plaintiff has exercised reasonable diligence is typically given to
the jury, “even where no raw facts are in dispute,” because “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” (Villarini-Garcia, 8 F.3d at
87).
Moreover, the statute of limitations can be tolled “[i]f
a plaintiff’s suspicions that she may have been the victim of a
tort are assuaged by the person who caused the injury” (Rodriguez-
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Suris, 123 F.3d at 16, citing Colon Prieto, 15 P.R. Offic. Trans.
at 329-30). Finally, such tolling may be halted by further
information that renders plaintiff’s reliance on those assurances
no longer reasonable, so that plaintiff then has an obligation of
diligent investigation (Rodriguez-Suris, 123 F.3d at 17).
How do those principles play out in this case? Santos
knew shortly after the operation that 14 lymph nodes had been
removed and that her right arm was swelling. But she was promptly
reassured by Dr. Cancel, the surgeon who had performed the surgery,
that the swelling in her arm was nothing and that the incision
looked good. Consequently Santos was initially entitled to rely on
the analysis from her doctor that the operation had been performed
properly.
Because the swelling persisted, however, Santos continued
her investigation and discovered that the swelling in her arm was
lymphedema. It would surely be permissible for a jury to find that
Santos was diligent in her investigation of the cause of her
lymphedema by communicating with the National Lymphedema Network
and by meeting with other doctors in her attempt to discover the
cause of her lymphedema.1
1
Because the trial testimony of Santos' expert witness Dr.
Robert De Jager (a specialist whose extensive curriculum vitae,
included in the record on appeal, reflects credentials that support
the district court's Fed. R. Evid. 702 admission of his testimony
as an expert), has not been transcribed for inclusion in the
appellate record, what is said hereafter in this opinion regarding
lymphedema is drawn from Dr. De Jager's Rule 26(a)(2)(B) expert
report (included in the pretrial order in the case).
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Lymphedema is a possible outcome any time a lymph node is
removed, and it is thus a common side effect from breast cancer
surgery. Lymphedema can stem from the removal of lymph nodes from
a radical mastectomy, either from a single lymph node (as Santos
claims is conventional and recommended practice) or from the
removal of as many as 14 lymph nodes (as occurred in this case).
Hence a jury could reasonably conclude that Santos’ investigation
into the cause of the lymphedema would not necessarily have
triggered further inquiry as to whether the excision of 14 lymph
nodes was actionably wrongful.
Here Santos clearly knew more than one year before the suit
was filed that a serious and persistent affliction had followed her
surgery and that Dr. Cancel was responsible for the surgery. But
lymphedema can occur after properly done surgery, and Santos had no
reason to know or suspect, until she was so told on July 21, 1999,
that less radical surgery had been a reasonable and less risky
alternative--or so the jury could permissibly conclude--so the jury
did not have to find that the statute barred her claim. It is
worth stressing that on somewhat different facts, an unexpected
adverse consequence from an operation could well be sufficiently
suspicious that a plaintiff would have to pursue that possibility
diligently at the risk of being barred by the statute of
limitations.
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We should not be misunderstood as signaling the actual
outcome of the necessary factual inquiry. It is rather that Santos
is entitled to the benefit of her version of events in resisting a
Rule 50(a) judgment as a matter of law. And on that version a
reasonable factfinder could determine that Santos, despite the
exercise of due diligence in investigating and treating her
lymphedema, obtained the requisite knowledge only when she learned
of Dr. Cancel's possible malpractice on July 21, 1999. Because
July 21, 1999 is less than one year before the May 30, 2000 date of
filing, Santos' claim is not barred by limitations as a matter of
law.
Santos' Appellate Relief
As stated earlier, Dr. Cancel's Rule 50(a) motion at the
conclusion of Santos' case in chief was predicated not only on
limitations grounds but on a claimed failure of proof sufficient to
justify submission to the jury. From Dr. De Jager's report (see
n.1) there may well have been enough evidence to support such
submission, but the district judge did not reach that issue, and it
has not been briefed before us. Hence a determination of that
issue by the district court on remand is called for.
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Conclusion
We therefore REVERSE the order of the district court
granting Dr. Cancel’s Rule 50(a) motion for judgment as a matter of
law. We REMAND the case to the district court for further
proceedings in light of this opinion.
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