Galarza v. Zagury, 83-1958

• Decision Date: 18 July 1984
• Docket Number: No. 83-1958,83-1958
• Citation: 739 F.2d 20
• Parties: Carmen GALARZA, Plaintiff, Appellant, v. Dr. Cecil ZAGURY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 20

739 F.2d 20

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

No. 83-1958.

United States Court of Appeals First Circuit.

Argued June 4, 1984.

Decided July 18, 1984.

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

Angel R. De Corral Julia, San Juan, P.R., and Law Offices of Miranda Cardenas, De Corral & Rodriguez, San Juan, P.R., on brief for defendant, appellee.

Before CAMPBELL, Chief Judge, STEWART, ^* Associate Justice (Retired), and BOWNES, Circuit Judge.

LEVIN H. CAMPBELL, Chief Judge.

This diversity case is before us for the second time on a question of the application of Puerto Rico's statute of limitations governing medical malpractice. In the previous appeal we vacated the district court's order of dismissal and remanded for further proceedings. Galarza v. Zagury, 702 F.2d 29 (1st Cir.1983). Upon reconsideration in light of our opinion, the district court again ordered a judgment of dismissal from which plaintiff appeals. 574 F.Supp. 875 (D.P.R.1983). We quote the relevant facts from our prior opinion:

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.

702 F.2d at 29-30.

The relevant statute of limitations provides that,

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....

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

P.R.Laws Ann. tit. 26, Sec. 4109 (Supp.1982). In the previous appeal the parties cited no cases in which the Supreme Court of Puerto Rico had construed this provision. Thus while the controlling law is of course that of Puerto Rico, we felt obliged to address the proper interpretation of the term "damage" as a question of first impression:

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.

702 F.2d at 31.

In fact, the Supreme Court of Puerto Rico had construed section 4109 prior to our decision. In Ortiz v. Municipality of Orocovis, 82 J.T.S. No. 143 (1982), the court had held, similarly to our own decision, that "[o]nce plaintiff had knowledge of the damage he could not wait for his injury to reach its final degree of development and postpone the running of the period of limitations according to his subjective appraisal and judgment." The court did not, however, discuss the question of how much the plaintiff had to know about the likely author and precise nature of the injury in order to be said to have had knowledge of the damage.

The district court, referring to our previous decision, held that "plaintiff learned, both on January 30 and June 9, 1978, with the certainty of medical criteria, that her incontinent problem had its source in the surgery performed by Dr. Zagury, which left her with a weakened sphincter muscle." 574 F.Supp. at 880.

After the district court granted the dismissal, the Supreme Court of Puerto Rico interpreted another Puerto Rico prescription statute as applied to medical malpractice. In Colon Prieto v. Geigel, 84 J.T.S. No. 26 (1984), the court faced the question of when the prescriptive period began to run on an action based on a tongue laceration. Colon Prieto had undergone surgery for extraction of four impacted wisdom teeth in November 1971. After the operation he noticed a painful wound on the side of his tongue. He asked his doctor, Dr. Ark, about the wound; Dr. Ark indicated that he had bitten himself while anesthetized and that the pain would soon subside. The pain persisted despite repeated visits by Colon Prieto to Dr. Ark. Finally, sometime after March 1972, Colon Prieto visited a different surgeon, who in turn referred him to a neurosurgeon. In November 1972, Colon Prieto was told the wound was not caused by a bite, but rather was produced by a cut. In September 1973 he filed a malpractice action against Dr. Ark.

The court applied P.R.Laws Ann. tit. 31, Sec. 5298 (1968), which governed medical malpractice actions prior to enactment of P.R.Laws Ann. tit. 26, Sec. 4109 (Supp.1982). Although differently worded, the relevant provision covering initiation of the prescriptive period seems rather similar to section 4109. Under section 5298 the prescriptive period began to run on the malpractice action "from the time the aggrieved person had knowledge thereof." The court held that the prescriptive period started to run on Colon Prieto's action only when he learned that his injury was caused by a cut rather than a self-inflicted bite as Dr. Ark had said:

In the instant case Colon Prieto realized he had a lesion in his tongue on November 10, 1971. Upon immediately inquiring, his doctor, Dr. Ark, told him that the wound was the result of a bite that he had inflicted upon himself. On various occasions he saw Dr. Ark again. That he continued suffering--as the...