16 F.3d 473 (1st Cir. 1994), 93-1071, Lama v. Borras

Docket Nº:93-1071, 93-1072.
Citation:16 F.3d 473
Party Name:Roberto Romero LAMA, et al., Plaintiffs, Appellees, v. Dr. Pedro J. BORRAS, et al., Defendants, Appellees. Asociacion Hospital Del Maestro, Inc. Defendant, Appellant. Roberto Romero LAMA, et al. Plaintiffs, Appellees, v. Dr. Pedro J. BORRAS, et al., Defendants, Appellants.
Case Date:February 25, 1994
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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16 F.3d 473 (1st Cir. 1994)

Roberto Romero LAMA, et al., Plaintiffs, Appellees,


Dr. Pedro J. BORRAS, et al., Defendants, Appellees.

Asociacion Hospital Del Maestro, Inc. Defendant, Appellant.

Roberto Romero LAMA, et al. Plaintiffs, Appellees,


Dr. Pedro J. BORRAS, et al., Defendants, Appellants.

Nos. 93-1071, 93-1072.

United States Court of Appeals, First Circuit

February 25, 1994

Heard Sept. 10, 1993.

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[Copyrighted Material Omitted]

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Alvaro R. Calderon, Jr. with whom Alvaro R. Calderon, Jr. Law Offices, Hato Rey, PR, were on brief for appellant Borras, et al.

Fernando J. Fornaris with whom Luis Berrios Amadeo, and Cancio, Nadal & Rivera, San Juan, PR, were on brief for appellant Asociacion Hospital Del Maestro, Inc.

Harold D. Vicente with whom Vicente & Cuebas, Santurce, PR, were on brief for appellee.

Before STAHL, Circuit Judge, ALDRICH and CAMPBELL, Senior Circuit Judges.

STAHL, Circuit Judge.

Defendants-appellants Dr. Pedro Borras 1 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.



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, 445 (1st Cir.1989); Forrestal v. Magendantz, 848 F.2d 303, 305 (1st Cir.1988); Computer Sys. Eng'g v. Qantel 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."

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

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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 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.

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 matter of law, 5 we

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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 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, 1992 WL 584068 (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.



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 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 Secs. 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...

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