Valedon Martinez v. Hospital Presbiteriano de la Comunidad, Inc.

• Decision Date: 17 December 1986
• Docket Number: No. 86-1429,86-1429
• Citation: 806 F.2d 1128
• Parties: Marjorie Marie VALEDON MARTINEZ, Plaintiff, Appellee, v. HOSPITAL PRESBITERIANO de la COMUNIDAD, INC., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1128

806 F.2d 1128

Marjorie Marie VALEDON MARTINEZ, Plaintiff, Appellee, v. HOSPITAL PRESBITERIANO de la COMUNIDAD, INC., Defendant, Appellant.

No. 86-1429.

United States Court of Appeals First Circuit.

Argued Nov. 5, 1986.

Decided Dec. 17, 1986.

Igor Dominguez with whom William Estrella Law Offices, San Juan, P.R., was on brief, for defendant, appellant.

Charles A. Cordero with whom Cordero, Colon & Miranda, Old San Juan, P.R., was on brief, for plaintiff, appellee.

Before COFFIN, Circuit Judge, TIMBERS, ^* Senior Circuit Judge, and BOWNES, Circuit Judge.

TIMBERS, Circuit Judge:

In this diversity medical malpractice action, appellant Hospital Presbiteriano de la Comunidad, Inc. ("appellant") appeals from a judgment entered August 26, 1985 on a jury verdict in the District of Puerto Rico, Raymond L. Acosta, District Judge, awarding appellee Marjorie Marie Valedon-Martinez ("appellee") $600,000 damages. Appellant's appeal brings up for review an order entered March 27, 1986 denying its motions to dismiss the action or for judgment n.o.v.

Appellant claims on appeal that the district court lacked subject-matter jurisdiction, that appellee's action was time-barred, that the evidence was insufficient to support the finding of the jury that appellant was negligent, and that a jury instruction on the standard of care applicable to appellant in 1962 was erroneous. ¹

We hold that the determination of the district court that there was diversity of citizenship at the time appellee commenced the action was not clearly erroneous and accordingly the district court had subject matter jurisdiction. We also hold that appellee's action was not time-barred, that there was sufficient evidence to support the jury's finding that appellant was negligent, and that the district court did not err in denying appellant's motions to dismiss the action or for judgment n.o.v. We further hold that, based on the record before us which does not contain a transcript of the jury instructions, it does not appear that the district court's instruction on the standard of care requires reversal. We affirm.

I.

We summarize only those facts believed necessary to an understanding of the issues raised on appeal.

Appellant is a private nonprofit hospital incorporated under the laws of Puerto Rico and located in San Juan.

On March 17, 1962, appellee's mother, then between 26 and 28 weeks pregnant, sustained a rupture of the amniotic sac and was admitted to appellant hospital. ² On March 22, she developed a high fever as a result of an intra-uterine infection. Appellant's records indicate that between 8:00 a.m. and 1:00 p.m. on March 23, a nurse tested her five times with a stethoscope for a fetal heartbeat. Each time the nurse could hear no heartbeat, but no doctor ever confirmed this. At 1:45 p.m., a hospital intern, fearing that the baby was dead, administered to appellee's mother a labor-inducing drug. The intern delivered appellee at 2:00 p.m. Appellee weighed two pounds, 14 ounces. Appellant's records indicate that she was "deeply cyanotic", meaning that, due to respiratory problems, she looked bluish. In view of this condition, a pediatric resident employed by appellant ordered that appellee be placed in an incubator and that oxygen be administered to her for 48 hours. The resident's order was recorded in appellant's records as "Keep in incubator with oxygen." The records do not indicate the amount of oxygen that was to be administered or the amount that actually was administered. The incubator used had no device to control or measure the amount of oxygen administered. An incubator with such a device had been on the market in the United States since the early fifties, but appellant did not own one.

Appellant's records contain notations by nurses that at 2:30 p.m. the cyanosis was subsiding and that at 5:00 p.m. appellee had good color and her eyes were normal. At 12:30 p.m. on the following day, March 24, a pediatrician examined appellee. He ordered that the use of oxygen was to be continued, but for the first time noted on appellant's records the exact amount of oxygen to be administered.

When appellee was one year old, she was diagnosed to be suffering from retrolental fibroplasia ("RLF") in both eyes, rendering her legally blind without glasses. With glasses, appellee has from 20/30 to 20/40 vision in one eye but is still legally blind in the other eye. Appellee also has several other eye problems, all resulting from the RLF.

RLF is a disease of the retina characterized by the presence of an opaque fibrous membrane behind the lens of the eye. RLF is most common among premature babies with low birthweight. Since the early 1950s, excessive use of oxygen has been recognized as a major cause of RLF. A 1955 American Medical Association ("AMA") publication warned the medical profession that oxygen administered to premature babies should be controlled carefully to avoid damage to the eyes.

Appellee commenced the instant action on March 21, 1984. She alleged that appellant had breached its duty of care to her by failing to control the level of oxygen in the incubator in which she was placed following her birth on March 23, 1962. She alleged that this negligence had caused her RLF.

In its answer filed August 17, 1984, appellant denied that it was negligent and asserted the statute of limitations as an affirmative defense.

On May 3, 1985, appellant filed a motion to dismiss the complaint for lack of subject matter jurisdiction and on the ground that the action was untimely. On May 8, a magistrate entered an order recommending that the district court hold a hearing on the jurisdictional issue.

On August 20, 1985, the district court entered an order denying appellant's motion to dismiss, but without holding a hearing on the issue of jurisdiction.

During the period August 21-26, 1985, the case was tried to a jury. On August 23, at the close of appellee's case, appellant moved unsuccessfully for a directed verdict on the ground that there was insufficient evidence to support a verdict for appellee. On August 26, the jury returned a special verdict finding appellant negligent and awarding appellee $600,000 in damages. Judgment was entered on the jury's verdict on August 30. On September 6, appellant filed motions to dismiss the action or for judgment n.o.v., and for a variety of other forms of post-trial relief not relevant to this appeal. The district court entered an order denying the motions on March 27, 1986.

Appellant appeals from the judgment entered August 30, 1985, which brings up for review the order entered March 27, 1986. For the reasons stated below, we affirm.

II.

Appellant claims that the district court erred in failing to dismiss the action for lack of subject matter jurisdiction.

Appellee alleged in her complaint that the jurisdictional underpinning for the action was diversity of citizenship. 28 U.S.C. Sec. 1332(a)(1), (c) and (d) (1982). She alleged that appellant was a citizen of Puerto Rico, that she was a citizen of Florida, and that the matter in controversy exceeded $10,000.

On May 3, 1985, appellant filed a motion to dismiss the action for lack of subject matter jurisdiction. Appellant claimed that appellee was a citizen of Puerto Rico at the time she commenced the action and therefore there was no diversity. In opposition to appellant's motion, appellee filed, in addition to her own affidavit, those of her mother and her sister. From these affidavits and appellee's deposition, it appeared that appellee had been emotionally dependent on her older sister since their parents' divorce in 1975. Appellee's sister had moved to Miami, Florida, in 1982. Appellee moved permanently to Miami to join her sister in December 1982. Appellee brought with her all of her clothes and personal belongings, obtained a job in Miami, opened a bank account, and began studying English. In July 1983, appellee developed a kidney problem. She returned to Puerto Rico to obtain free medical treatment from her father who is a physician. While in Puerto Rico, she enrolled in college. In December 1983, appellee returned to Florida and unsuccessfully applied for admission to several universities in Miami. After commencing the instant action on March 21, 1984, appellee worked in Miami until July 1984, when she returned to Puerto Rico to finish school. She planned to return to Miami on completion of her schooling in the summer of 1985. Throughout this period, appellee kept her personal belongings in Miami, maintained a bank account there and not in Puerto Rico, worked only in Miami, and intended to make Florida her home.

As stated above, the district court entered an order on August 20, 1985 denying appellant's motion to dismiss for lack of subject matter jurisdiction. The court held that appellee was a citizen of Florida at the time she commenced the action and, appellant being a citizen of Puerto Rico, the court had jurisdiction based on diversity of citizenship. On September 6, 1985, appellant filed various post-trial motions, including one to dismiss for lack of jurisdiction. The court denied this motion by an order entered March 27, 1986.

There is diversity of citizenship if the plaintiff and the defendant are "citizens" of different states. 28 U.S.C. Sec. 1332(a)(1). For the purposes of Sec. 1332(a)(1), state citizenship is the equivalent of "domicile." Hawes v. Club Ecuestre el Comandante, 598 F.2d 698, 701 (1st Cir.1979). "Domicile" is "the technically preeminent headquarters that every person is compelled to have in order that certain rights and duties that have been attached to it by the law may be determined." Williamson v. Osenton, 232 U.S. 619, 625 (1914) (Holmes, J.). To effect a change in domicile, two things are required: " 'First, residence in a new domicil; and second, the intention to remain there.' " Hawes, supra, 598 F.2d at 701 (quoting Sun Printing and Publishing Association v. Edwards, 194 U.S. 377, 383 (1904))....