Nieves v. University of Puerto Rico

• Decision Date: 02 August 1993
• Docket Number: No. 92-2214,92-2214
• Citation: 7 F.3d 270
• Parties: 86 Ed. Law Rep. 611 Marta NIEVES, in Representation and on Behalf of her minor son Angel Luis Hernandez Nieves, Plaintiff, Appellant, v. UNIVERSITY OF PUERTO RICO, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 270

7 F.3d 270

86 Ed. Law Rep. 611

Marta NIEVES, in Representation and on Behalf of her minor son Angel Luis Hernandez Nieves, Plaintiff, Appellant, v. UNIVERSITY OF PUERTO RICO, et al., Defendants, Appellees.

No. 92-2214.

United States Court of Appeals First Circuit.

Heard Aug. 2, 1993.

Decided Oct. 18, 1993.

David Efron with whom Law Offices of David Efron, was on brief, for plaintiff, appellant.

Efren T. Irizarry-Colon with whom Elisa M. Figueroa-Baez, was on brief, for defendants, appellees.

Before SELYA, CYR and BOUDIN, Circuit Judges.

CYR, Circuit Judge.

Marta Nieves appeals a district court order dismissing the medical malpractice action she brought in behalf of her minor son Angel Luis Hernandez Nieves against Angel Gelpi, M.D., and Gonzalez Recio, M.D., whom the district court found immune from suit pursuant to P.R.Laws Ann. tit. 26, § 4105. We affirm.

I BACKGROUND

We recite the facts in the light most favorable to plaintiff. See Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit Int'l, Inc., 982 F.2d 686, 689 (1st Cir.1993) (summary judgment). In December 1983, Marta Nieves entered the Federico Trilla Hospital ("the Hospital"), a privately owned and operated medical facility in Puerto Rico. Appellee Angel Gelpi and Jose Melendez, medical residents under the supervision of the attending physician, Dr. Ailed Gonzalez Recio, undertook the delivery of Nieves' son Angel. The three physicians were affiliated with the University of Puerto Rico Medical School ("UPR"). Later, Angel was diagnosed with serious physical and mental impairments, allegedly attributable to asphyxiation during childbirth.

In December 1990, Nieves, by that time a resident of Florida, brought this diversity action against, inter alia, UPR, Drs. Gelpi and Gonzalez Recio, and their insurers, alleging professional negligence. See P.R.Laws Ann. tit. 31, §§ 5141-5142. ¹ Defendants answered and moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). UPR, noting its status as an "arm" of the Commonwealth of Puerto Rico, asserted its Eleventh Amendment immunity from unconsented suit, see Perez v. Rodriguez Bou, 575 F.2d 21, 25 (1st Cir.1978), and its insusceptibility to federal diversity jurisdiction, see Moor v. County of Alameda, 411 U.S. 693, 717, 93 S.Ct. 1785, 1799, 36 L.Ed.2d 596 (1973).

The two appellees, who claimed to be UPR "employees," hence physicians employed by the Commonwealth, relied on P.R.Laws Ann. tit. 26, § 4105 (Supp.1989) as a basis for dismissal No health service professional may be included as a defendant in a civil suit for damages due to malpractice caused in performance of his profession while said health service professional acts in compliance with his duties and functions as an employee of the Commonwealth of Puerto Rico, its dependencies, instrumentalities and municipalities.

Id. Section 4105, a provision of Act No. 74 of 1976, otherwise known as the Medico-Hospital Professional Liability Insurance Act (MHPLIA), was enacted to alleviate the severe malpractice insurance crisis facing Puerto Rico. See generally Enriquez Perez v. Fernandez, 108 P.R. Dec. 674, 677-80 (1979). The appellee doctors contend that any patient injured by the professional negligence of a physician covered by section 4105 has legal recourse only against the physician's employer, or the Commonwealth, which is immune from compensatory damages liability in excess of $75,000, see P.R.Laws Ann. tit. 32, § 3077(a), and, in any event, not amenable to suit in federal court. ²

On January 31, 1992, following eight months of discovery, Nieves filed her opposition to the motion to dismiss. Nieves contended that section 4105 violated the Equal Protection Clause and the Due Process Clause of the United States Constitution and their counterpart clauses in the Puerto Rico Constitution. Alternatively, Nieves argued that there remained a genuine issue of material fact with respect to whether Drs. Gelpi and Gonzalez Recio were UPR "employees" entitled to section 4105 immunity, or merely "independent contractors" employed pursuant to a contract between the Hospital and UPR.

On the same day that Nieves filed her opposition to the motion to dismiss, the district court dismissed the complaint as to all defendants. ³ Three weeks later, however, the two appellee physicians filed a "reply" to Nieves' opposition, to which they attached a sworn statement by a UPR dean attesting that Dr. Gonzalez Recio was an "employee" of the UPR medical school campus in December 1983, and that Dr. Gelpi was a "resident" in the UPR medical graduate program. On April 7, 1992, Nieves filed a motion for clarification and reconsideration, expressing concern that the district court overlooked the arguments presented in the opposition memorandum she filed the day the court dismissed the complaint. The district court denied the motion to reconsider.

II DISCUSSION

A. Constitutionality of Section 4105.

Nieves contends that section 4105 violates the equal protection and due process clauses of the Puerto Rico Constitution ⁴ because it (1) discriminates against "poor" people--an inherently "suspect" class under Puerto Rico constitutional law--who have no economic option but to use the low-cost public health services provided by physicians employed by the Commonwealth, or (2) divests all patients treated by Commonwealth-employed physicians of a "fundamental" constitutional right; that is, the right to recover full compensatory damages for injuries caused by physician negligence. ⁵ Nieves argues, therefore, that her constitutional challenges require us to subject section 4105 to "strict scrutiny." She requests that the district court's interpretation of Puerto Rico law be set aside, or that these constitutional questions be certified to the Puerto Rico Supreme Court. See P.R.Laws Ann. tit. 4, App. I-A, Rule 27(a). ⁶

Under Puerto Rico law, a statutory classification that "affects fundamental rights of the citizen or is intended against a suspect classification" is subjected to "strict scrutiny," a heightened standard under which the Commonwealth must demonstrate "a compelling state interest which justifies the classification and that the [classification] necessarily encourages the attainment of that interest." Zachry Int'l of Puerto Rico v. Superior Court of Puerto Rico, 104 P.R. Dec. 267, 277-78 (1975) (emphasis added). We have been unable to find a reported Puerto Rico decision squarely addressing the constitutional questions raised by Nieves. The cases cited by appellees, and presumably endorsed by the district court, are distinguishable, either because they involve statutory classifications which do not implicate the species of "fundamental right" or "suspect class" relied on by Nieves in the present case, see, e.g., Lind Rodriquez v. Commonwealth of Puerto Rico, 112 P.R. Dec. 67 (1982); Vazquez Negron v. Department of Health of Puerto Rico, 109 P.R. Dec. 19 (1979), ⁷ or because they treat with arguments exclusively based on the United States Constitution, not the Commonwealth constitution, see, e.g., Rodriquez Diaz v. Sierra Martinez, 717 F.Supp. 27, 32 (D.P.R.1989) (presuming that Lind and Vazquez also determined § 4105's validity under the United States Constitution, undertaking its own independent inquiry of federal case law, and citing Schweiker v. Wilson, 450 U.S. 221, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981)); supra note 5.

Absent controlling state-law precedent, a federal court sitting in diversity has the discretion to certify a state-law question to the state's highest court. See Lehman Bros. v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741, 1744, 40 L.Ed.2d 215 (1974). Before this discretionary decision is even considered, however, we must first undertake our own prediction of state law for we may conclude that "the course [the] state court[ ] would take is reasonably clear." Porter v. Nutter, 913 F.2d 37, 41 n. 4 (1st Cir.1990); cf. Salve Regina College v. Russell, 499 U.S. 225, 239-40, 111 S.Ct. 1217, 1225, 113 L.Ed.2d 190, 203 (1991) (court of appeals erred by deferring to district court interpretation of local state law).

1. Suspect Class Based on "Social Condition".

The equal protection clause of the Puerto Rico Constitution, eclectically patterned on such works as the American Declaration of the Rights and Duties of Man and the Universal Declaration of the Rights of Man, is more liberally phrased than its federal counterpart. See Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741 (1980) (state constitution may afford more, but not less, protection than Federal Constitution). Specifically, Article II, section 1, of the Commonwealth constitution bans discrimination based on "social origin or condition." See supra note 4. The Puerto Rico Supreme Court has held that any statutory classification that discriminates on the basis of a "human dignity" standard enumerated in Article II, section 1, is inherently "suspect." See, e.g., Leon Rosario v. Torres, 109 P.R. Dec. 804, 813-14 (1980). Thus, although its precise contours remain undefined, "poverty" is considered a suspect classification under the Commonwealth constitution, triggering "strict scrutiny" analysis unobtainable under the Equal Protection Clause of the United States Constitution. Compare, e.g., Molina v. Urban Renewal and Hous. Corp., 114 P.R. Dec. 295, 312 (1983) (summarizing history of Puerto Rico's constitutional convention, noting that "there can be no doubt that the drafters of our Constitution thought it was basic that there be no discrimination against any person by reason of the person's poverty ... and any classification based on this should be regarded with suspicion and be strictly scrutinized") (Irizarry, J., concurring), with, e.g., Harris v. McRae, 448 U.S. 297, 323, 100 S.Ct. 2671, 2691, 65 L.Ed.2d 784 (1980) ("[P]overty, standing alone, is not a suspect classification.").

Notwithstanding the unique history, culture...