Galarza v. Zagury, 82-1449

• Decision Date: 17 March 1983
• Docket Number: No. 82-1449,82-1449
• Citation: 702 F.2d 29
• Parties: Carmen GALARZA, Plaintiff, Appellant, v. Dr. Cecil ZAGURY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 29

702 F.2d 29

Carmen GALARZA, Plaintiff, Appellant, v. Dr. Cecil ZAGURY, Defendant, Appellee.

No. 82-1449.

United States Court of Appeals First Circuit.

Argued Nov. 3, 1982.

Decided March 17, 1983.

Wilfredo A. Geigel, Santurce, P.R., for appellant.

Angel R. De Corral Julia, San Juan, P.R., with whom Law Offices of Miranda, Cardenas, De Corral & Rodriguez Suris, San Juan, P.R., were on brief, for appellee.

Before BOWNES, BROWN ^* and BREYER, Circuit Judges.

BAILEY BROWN, Senior Circuit Judge.

The issue presented in this case involves the proper interpretation of the medical malpractice statute of limitations of Puerto Rico. The district court granted a motion to dismiss this medical malpractice action on the ground that it was time-barred by this statute of limitations. ¹ After the dismissal, the plaintiff below brought this appeal.

At the time the district court granted the motion, the following facts were not disputed by plaintiff-appellant, Ms. Carmen Galarza, and were before the district court.

Ms. Galarza underwent a perianal fistulectomy performed by the appellee, Dr. Cecil Zagury, on November 29, 1977, in Puerto Rico. During this surgery, Dr. Zagury lacerated and damaged her sphincter muscle. As a result, she suffered "continuous fecal incontinence" from the time of the operation until she underwent corrective surgery by another surgeon.

For a number of months after the operation, Dr. Zagury continued to treat Ms. Galarza. She complained to him of her incontinence problem almost immediately, but he assured her that everything was normal and that healing would take some time. Nevertheless, she continued to complain to him.

Ms. Galarza visited her gynecologist, Dr. Natalio Bayonet, for an examination during January 1978, about two months after the operation. He asked her about her problem, and she told him that she had been suffering from incontinence since the operation. Dr. Bayonet immediately called Dr. Zagury, and after the conversation, Dr. Bayonet sent her to see Dr. Zagury. She did so and Dr. Zagury told her not to see Dr. Bayonet again.

On June 20, 1978, Dr. Zagury performed a second operation, apparently for the purpose of correcting the incontinence problem. But the problem continued, and in September 1978, Ms. Galarza visited Dr. Zagury for the last time and informed him that she was going to consult her doctors in New York.

Beginning on October 12, 1978, Ms. Galarza received evaluation and treatment in New York City. She then found out for the first time that her incontinence was the result of negligence of Dr. Zagury in performing the operation when one of her New York doctors so informed her in February or March 1979.

On July 31, 1979, Ms. Galarza filed this medical malpractice suit against Dr. Zagury.

The applicable statute that is before us for interpretation reads in relevant part:

The action for alleged damages for malpractice shall commence, irrespective of any provisions in other acts, within one year from the date of the damage giving rise to the action occurred, or within one year from the time the damage was discovered or should have been discovered with due diligence. In no case may the action be instituted after two years from the date of the damage giving rise to the cause of action occurred.

In those actions covered by this section in which it is shown that because of fraud, concealment or misrepresentation of facts the discovery of the damage was prevented within the period of two years, the prescription term shall be extended indefinitely.

P.R.Laws Ann. tit. 26, Sec. 4109 (Supp.1981).

Pretermitting for the moment the meaning of "damage" as used in this statute of limitations, we conclude that the statute should be construed as follows:

1. If the damage was or should have been discovered by Ms. Galarza at the time it occurred, the claim would be barred one year from the time the damage occurred.

2. If the damage was not and should not have been discovered by Ms. Galarza at the time it occurred, but was discovered or should have been discovered within two years of the time it occurred, the claim would be barred one year after it was or should have been discovered provided that in any event the claim would be barred two years after the time it occurred.

3. If the damage was not discovered and should not have been discovered by Ms. Galarza, because of fraud, concealment or misrepresentation of facts, within two years of the time it occurred, then the claim is never barred.

However we define "damage" for purposes of this limitations statute, the second paragraph of the statute quoted above could not be applicable here since Ms. Galarza filed her lawsuit, setting out her malpractice claim, within two years of the date of the surgery.

Ms. Galarza contends that "damage" within the meaning of this malpractice limitations statute and in this context includes all of the following facts: (a) that incontinence followed the surgery plus (b) that the incontinence was caused by laceration of the sphincter muscle that occurred during the surgery plus (c) that Dr. Zagury was guilty of negligence in so lacerating the sphincter muscle. Ms. Galarza further contends that she neither knew nor should have known of the "damage," as so defined, until she learned of Dr. Zagury's negligence after she received evaluation and treatment in October 1978. Thus, Ms. Galarza contends, her claim is not barred since she filed this action on July 31, 1979, within one year of the time she knew or should have known of Dr. Zagury's negligence.

Dr. Zagury contends, on the other hand, that "damage" within the meaning of this malpractice limitations statute and in this context includes only the following fact(s): (a) that incontinence followed the operation plus (at the most) (b) that the incontinence was caused by the laceration of the sphincter muscle that occurred during surgery. Dr. Zagury points out that, as is admitted, Ms. Galarza was aware of her incontinent condition shortly after the surgery. Dr. Zagury further contends that on June 9, 1978, Ms. Galarza received notice that her incontinence was caused by damage to the sphincter muscle that occurred during surgery, because on that date she received from Dr. Bayonet a certificate so stating, which she filed with the Social Security Administration and was granted benefits. ² Thus, Dr. Zagury contends, Ms. Galarza's claim is barred since she filed the action on July 31, 1979, which is more than one year after she knew of her incontinence and after she knew or should have known that such was caused by laceration of her sphincter muscle that was done during the surgery.

We conclude, for reasons hereinafter stated, that "damage" within the meaning of this limitations statute does not include the presence of negligence or malpractice. Rather, we believe that, as applied to this factual situation, Ms. Galarza can be said to have been damaged because of the incontinence that she suffered following the surgery and because such was caused by laceration of the sphincter muscle by Dr. Zagury during surgery.

The problem presented here has been described in very general terms as follows:

In determining the proper event which starts the period of limitation running against a malpractice action, the courts are confronted with two very basic, yet conflicting policies: on the one hand the policy of protecting a practitioner against the danger of stale...