Millan v. Hosp. San Pablo

• Decision Date: 08 September 2005
• Docket Number: No. Civ. 02-2687(DRD).,Civ. 02-2687(DRD).
• Parties: Mayra MILLAN, et als., Plaintiffs v. HOSP. SAN PABLO, et als., Defendants
• Court: U.S. District Court — District of Puerto Rico

389 F.Supp.2d 224

Mayra MILLAN, et als., Plaintiffs v. HOSP. SAN PABLO, et als., Defendants

No. Civ. 02-2687(DRD).

United States District Court, D. Puerto Rico.

September 8, 2005.

COPYRIGHT MATERIAL OMITTED

Jose R. Ortiz-Velez, Ortiz Velez Law Office, Pedro F. Soler-Muniz, Pedro F. Soler Muniz Law Office, Guaynabo, PR, for Plaintiffs.

Roberto E. Ruiz-Comas, Gonzalez Villamil Law Office, Gloria M. De-Corral-Hernandez, De Corral & De Mier, Pedro J. Cordova-Pelegrina, Miranda Cardenas & Cordova Law Office, San Juan, PR, Benjamin Morales-Del-Valle, Jaime E. Morales-Morales, Weinstein-Bacal & Miller, Eugene F. Hestres-Velez, Alicia Margarita Santos-Irizarry, Bird, Bird & Hestres, Old San Juan, PR, for Defendants.

ORDER

DOMINGUEZ, District Judge.

Before the Court are defendants Hospital San Pablo, Inc.; Hospital Hermanos Melendez, American International Insurance Company; doctor Edgardo Feliciano; Sistema Integrado de Atencion Pediatrica ("SIAP"); doctor Mario E. Paulino Payano; and Sindicato de Aseguradores para la Subscripcion Conjunta de Seguros de Responsabilidad Profesional Medico-Hospitalaria's ("SIMED") respective Motions for Summary Judgment. (Docket Nos. 114, 117, 119, 121, and 126, respectively). Plaintiffs duly opposed all requests for summary judgement through an Omnibus Opposition (Docket No. 130) which was then timely replied by Hospital San Pablo, Inc., SIAP, and SIMED (Docket Nos. 156, 155, and 153, respectively). Although Hospital Hermanos Meledez and AIICO also filed a reply (Docket No. 158), having done so in an untimely fashion, said reply was denied by the Court. (Docket No. 162). In similar fashion, plaintiffs' sur-reply (Docket No. 159) was denied for having been filed in an untimely fashion. (Docket No. 162).

After analyzing the submissions and because there are genuine issues as to material facts that persist, Cortes-Irizarry v. Corporacion Insular, 111 F.3d 184, 187 (1st Cir.1997), co-defendant hospitals' requests for brevis disposition are DENIED. Finally, Dr. Paulino, Dr. Feliciano, and SIAP's requests are DENIED IN PART AND GRANTED IN PART.

I. SUMMARY JUDGMENT STANDARD

The framework of Fed.R.Civ.P. 56 provides that it is appropriate to enter summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986); Abbadessa v. Moore Business Forms, Inc., 987 F.2d 18, 22 (1st Cir.1993). Pursuant to the language of the rule, the moving party bears the twofold burden of showing that there is "no genuine issue as to any material facts," and that he is "entitled to judgment as a matter of law." Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir.1997). When the moving party asserts that the competent evidence clearly demonstrates that it is entitled to judgment and after the moving party has satisfied this burden, the onus shifts to the resisting party to show that there still exists "a trial worthy issue as to some material fact." Cortes-Irizarry v. Corporacion Insular, 111 F.3d 184, 187 (1st Cir.1997).

To determine whether these criteria have been met, a court must pierce the boilerplate of the pleadings and carefully review the parties' submissions to ascertain whether they reveal a trial worthy issue as to any material fact. See Perez v. Volvo Car Corporation, 247 F.3d 303, 310 (1st Cir.2001); Grant's Dairy-Me., LLC v. Comm'r of Me. Dep't of Agric., Food & Rural Res., 232 F.3d 8, 14 (1st Cir.2000); Cortes-Irizarry v. Corporacion Insular, 111 F.3d 184, at 187; McIntosh v. Antonino, 71 F.3d 29, 33 (1st Cir.1995) (the Court must look behind the facade of the pleadings alleged in the complaint, in this case the Third Amended Complaint (Docket No. 59) and examine the parties proof in order to determine whether a trial is required.). Furthermore, a fact is "material" if it potentially could affect the suit's outcome. See Id. An issue concerning such a fact is "genuine" if a reasonable fact finder, examining the evidence and drawing all reasonable inferences helpful to the party resisting summary judgment, could resolve the dispute in that party's favor. See Id. The Court must review the record "taken as a whole," and "may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000).

This is so, because credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. See Reeves, id. There is "no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails, [and] no room for the judge to superimpose his own ideas of probability and likelihood[.]" Greenburg v. Puerto Rico Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir.1987). "The Court should give credence to the evidence favoring the non-movant as well as the evidence supporting the moving party that is contradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses." Id. An absence of evidence on a critical issue weighs against the party — be it the movant or the non-movant — who would bear the burden of proof on that issue at trial. See Perez v. Volvo Corporation, 247 F.3d at 310; see also Torres Vargas v. Santiago Cummings, 149 F.3d 29, 35-36 (1st Cir.1998); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). Accordingly, "speculation and surmise, even when coupled with effervescent optimism that something definite will materialize further down the line, are impuissant on the face of a properly documented summary judgment motion." Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1st Cir.1996) (citations omitted).

At the summary judgment stage, the trial court examines the entire record "in the light most flattering to the non-movant and indulges all reasonable inferences in that party's favor. Only if the record, viewed in the manner and without regard to credibility determinations, reveals no genuine issue as to any material fact may the court enter summary judgment." Cadle Company v. Hayes, 116 F.3d 957 at 959-60 (1st Cir.1997). In other words, the court must construe the record and all reasonable inferences from it in favor of the non-movant (the party opposing the summary judgment motion). See Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir.2000); Cortes-Irizarry, 111 F.3d at 187; see also United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). Moreover, "[i]f the adverse party does not [file an opposition], summary judgment, if appropriate, shall be entered against the adverse party." Fed.R.Civ.P. 56(e) (emphasis added). The First Circuit Court of Appeals has made clear that failure to timely oppose a motion for summary judgment, does not, in itself, justify entry of summary judgment against the party; therefore, a District Court is "obliged to consider the motion on the merits, in light of the record as constituted, in order to determine whether judgment would be legally appropriate." Kelly v. United States, 924 F.2d 355, 358 (1st Cir.1991); see also Lopez v. Corporacion Azucarera de Puerto Rico, 938 F.2d 1510, 1517 (1st Cir.1991) (holding that before granting an unopposed summary judgment motion, the court must inquire whether the moving party has met its burden to demonstrate undisputed facts entitling it to summary judgment as a matter of law). In the case of failure to oppose a motion for summary judgment, the consequence "is that the party may lose the right to file an opposition." Mullen v. St. Paul Fire & Marine Ins. Co., 972 F.2d 446, 451-52 (1st Cir.1991) (discussing unopposed motion for summary judgment). Finally, a party that fails to oppose a motion for summary judgment, does so at its own risk and peril. See e.g. Corrada Betances v. Sea-Land Service, Inc., 248 F.3d 40, 43 (1st Cir.2001); Hebert v. Wicklund, 744 F.2d 218, 223 (1st Cir.1984). However, notwithstanding that there is no opposition to a summary judgement, the Court must entertain the motion on the merits and may not grant the same as a sanction even for failure to file an opposition. See De La Vega v. San Juan Star, 377 F.3d 111 (1st Cir.2004).

II. FACTUAL BACKGROUND

Plaintiffs have filed the instant complaint for damages resulting from the wrongful death of baby boy Joseph Bermudez Millan, three and a half months old at the time of his death, after having been treated in two different hospitals on two different dates, as well as an intermediate visit to a free standing medical facility. Plaintiffs aver this Court's jurisdiction pursuant to the provisions of the federal Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd. They also invoke supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) for they claim damages under Article 1802 of the Puerto Rico Civil Code, 31 P.R. Laws Ann. § 5141, for medical malpractice against the treating physicians at the emergency rooms, and against the caring hospitals.

Plaintiffs allege that baby Joseph's medical condition, i.e. coughs (initially non-productive, and later with phlegm), and slight fever, was not appropriately screened by the medical personnel of the defendant hospitals, and that he was discharged home while still in an unstable condition. According to the plaintiffs, on the evening of November 21, 2001, three and a half month old baby Joseph was taken to the emergency room of Hospital Hermanos Melendez (HHM) with major complains of asphyxiating coughs. At that time, the parents informed the physician that the baby had a prior history of bronchial asthma. Dr. Jose Cobos, pediatric physician...