575 F.3d 10 (1st Cir. 2009), 07-2657, Rivera v. Centro Medico de Turabo, Inc.

Docket Nº:07-2657.
Citation:575 F.3d 10
Opinion Judge:LIPEZ, Circuit Judge.
Party Name:Florentino RIVERA, Carmen De Le
Attorney:Seth A. Erbe, with whom Jose R. Ortiz-Velez, Pedro F. Soler-Mu
Judge Panel:Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.
Case Date:July 31, 2009
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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575 F.3d 10 (1st Cir. 2009)

Florentino RIVERA, Carmen De León Rivera, Conjugal Partnership Rivera-De León, Plaintiffs, Appellants,


CENTRO MÉDICO DE TURABO, INC., d/b/a Hima San Pablo Caguas, Defendant, Appellee,

Dr. Marcial Walker; Jane Doe; Conjugal Partnership Walker-Doe; Dr. Lydia Díaz-Borrás; John Doe; Conjugal Partnership Doe-Díaz; Companies A-Z; John Richard Poe; Peter Moe, Defendants.

No. 07-2657.

United States Court of Appeals, First Circuit.

July 31, 2009

Heard Oct. 30, 2008.

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[Copyrighted Material Omitted]

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Seth A. Erbe, with whom Jose R. Ortiz-Velez, Pedro F. Soler-Muñiz, David C. Indiano, Ada Sofia Esteves, and Indiano & Williams, P.S.C. were on brief, for appellants.

Heidi Rodriguez, with whom Giselle Lopez Soler and Pietrantoni Mendez & Alvarez LLP were on brief, for appellees.

Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.

LIPEZ, Circuit Judge.

This case requires us to determine the enforceability of a forum selection clause

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embedded in informed consent documents presented to a patient before a medical procedure. The appellants, Florentino Rivera, his wife Carmen de León Rivera, and their conjugal partnership, filed suit against the Centro Médico de Turabo, Inc., which does business as HIMA San Pablo Caguas (" HIMA" or " the hospital" ), in the United States District Court for the District of Puerto Rico, alleging medical malpractice. HIMA moved to dismiss the complaint, arguing that, pursuant to a forum selection clause contained in two preoperative consent forms signed by Rivera, the Commonwealth Court of First Instance was the exclusive venue for any claims against the hospital. The district court granted HIMA's motion to dismiss based on the forum selection clause. For the reasons set forth below, we affirm.


A. Factual Background

Since this appeal arises from a dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, we " assume the truth of all well-pleaded facts" in the complaint and " indulge all reasonable inferences that fit the plaintiff's stated theory of liability." Centro Médico de Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 5 (1st Cir.2005) (quotation marks and citation omitted).1

On November 9, 2005, Rivera, a 65-year-old male, visited the office of Dr. Marcial Walker to discuss the results of a test indicating elevated levels of PSA (Prostate Specific Antigen) in Rivera's blood. Based on the test results, the doctor scheduled Rivera for a prostate biopsy. The biopsy, performed on December 12, 2005, revealed a prostatic adenocarcinoma-a tumor in Rivera's prostate. In an appointment after the biopsy, Dr. Walker recommended the surgical removal of Rivera's prostate. The procedure was scheduled for February 21, 2006.

Before the surgery, Rivera was examined by Dr. Lydia Díaz Borrás to determine whether he should receive medical clearance for the procedure. Dr. Díaz Borrás noted that the patient suffered from several medical conditions, including hypertension (high blood pressure) and hyperlipidemia (elevated levels of lipids in the blood stream), and that he exhibited several risk factors for cardiac and pulmonary conditions. Nevertheless, she declared him to be clinically stable for surgery. On February 16, 2006, Rivera also passed a pre-anaesthesia screening.

The surgery was performed as scheduled on February 21, 2006. However, due to significant blood loss resulting from a hemorrhage during surgery, Rivera required several blood transfusions. The next day, he developed weakness or paralysis on one side of his body and was diagnosed with a " stroke in evolution," i.e., the preliminary stages of a stroke.

Rivera was discharged on February 27 to an extended care facility, where he remained for five weeks of recovery and rehabilitation. During this time, he received a course of antibiotics to treat a postoperative infection that he had developed at the hospital. After his discharge from the rehabilitation center, Rivera had a follow-up appointment with Dr. Walker, who recommended a second operation to remedy some of the negative effects of the initial procedure. Rivera refused.

Rivera alleges that, as a result of his treatment at HIMA, he is partially disabled and cannot enjoy life as he did before the surgery. Despite the aid of a leg

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brace and a cane, he requires assistance to walk, as well as to perform daily tasks such as bathing and eating. When the complaint was filed, Rivera received physical and occupational therapy multiple times a week and expected the disability to be permanent. The complaint also alleges that both Rivera and his wife have endured significant mental anguish as a result of his medical condition.

B. Procedural History

On February 16, 2007, appellants filed a complaint in United States District Court for the District of Puerto Rico, alleging medical malpractice and breach of the duty of care, and asserting a right to recover damages under Articles 1802 and 1803 of the Civil Code of Puerto Rico (P.R. Laws Ann. tit. 31, § § 5141 and 5142).2 The complaint named as defendants the hospital, Drs. Walker and Díaz Borrás, several " placeholder" defendants representing unidentified individuals who may have contributed to Rivera's injuries, and unidentified insurance companies from whom the hospital had purchased malpractice coverage; the placeholder defendants were to be identified through discovery.

The complaint alleged that Rivera had not been informed about many of the less radical alternatives to prostate removal or about the risks and benefits of each treatment option, and therefore that he never gave his informed consent to the operation. Rivera also accused the hospital and the doctors of negligence in the selection and execution of Rivera's course of treatment, including the preoperative evaluations, which the complaint characterized as " substandard." In sum, Rivera claimed that the defendants were jointly and severally liable both for the treatment expenses arising from his postoperative complications and for damages sufficient to compensate him (and his wife) for their physical and mental suffering.

The hospital filed a motion to dismiss based on a forum selection clause contained in two different consent forms that Rivera had signed prior to surgery. On February 16, 2006, five days before the operation, Rivera signed a form entitled " Consent to Administer Anesthesia and Conscious Sedation." On February 26, 2006, the day of the procedure itself, he signed an additional " Consent to Surgery" form. Both documents contained the following identical clause: " In the event that by act or omission I consider that physical, emotional or economic damages have been caused to me, I expressly agree to submit to the Jurisdiction of the Court of First Instance of the Commonwealth of Puerto Rico, for any possible claim." On both forms, this clause was in boldface type and surrounded by a box that set it apart from the rest of the text. Each document further required that Rivera specifically place his initials next to the forum selection clause and also that he separately sign under a certification that: " this consent has been explained to me and to my entire satisfaction and that I understand the content of this form, that I have read and I have been given a copy of the same, thus, I accept its terms as patient...."

In its motion to dismiss, HIMA argued that, pursuant to the forum selection clause, the Commonwealth Court of First Instance was the exclusive venue for Rivera's

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claims against the hospital. In reply, Rivera argued that the consent forms should not be considered freely negotiated contracts; that, as a general matter, forum selection clauses should not be enforced in medical malpractice cases; and, in the alternative, that at least Rivera's wife, as a non-signatory, should not be bound by the forum selection clause in the consent form. The district court granted the motion to dismiss. Rivera appeals.


In this circuit, we treat a motion to dismiss based on a forum selection clause as a motion alleging the failure to state a claim for which relief can be granted under Rule 12(b)(6). Silva v. Encyclopedia Britannica, Inc., 239 F.3d 385, 387 & n. 3 (1st Cir.2001); compare Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285, 1289-90 (11th Cir.1998) (describing the circuits' varying approaches to motions to dismiss on the basis of forum selection clauses and concluding that such motions are most properly brought under Rule 12(b)(3)). We review the grant of a motion to dismiss for failure to state a claim de novo. Vernet v. Serrano-Torres, 566 F.3d 254, 258 (1st Cir.2009). In such cases, the district court must " accept as true the well-pleaded factual allegations of the complaint, draw all reasonable inferences therefrom in the plaintiff's favor, and determine whether the complaint, so read, limns facts sufficient to justify recovery on any cognizable theory." LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir.1998).

The fact that a motion to dismiss on the basis of a forum selection clause is treated as a 12(b)(6) motion has certain consequences for the materials that a district court may appropriately consider when ruling on such a motion. " Under Rule 12(b)(6), the district court may properly consider only facts and documents that are part of or incorporated into the complaint; if matters outside the pleadings are considered, the motion must be decided under the more stringent standards applicable to a Rule 56 motion for summary judgment." Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir.2008); see also Fed.R.Civ.P. 12(d) (" If, on a motion under Rule 12(b)(6) ..., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." ). We have recognized an...

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