Tonge v. Doctors' Ctr. Hosp., San Juan, Inc.

• Court: U.S. District Court — District of Puerto Rico
• Writing for the Court: AIDA M. DELGADO-COLÓN, United States District Judge
• Citation: Tonge v. Doctors' Ctr. Hosp., San Juan, Inc., 531 F.Supp.3d 491 (D. P.R. 2021)
• Decision Date: 31 March 2021
• Docket Number: Civil No. 18-1916 (ADC)
• Parties: Aixa Rosa TONGE, et al., Plaintiffs, v. DOCTORS’ CENTER HOSPITAL, San Juan, Inc., et al., Defendants; third-party Plaintiff v. Galope Anesthesia Services, PSC; Dr. Ricardo Galán-Vázquez, Individually and as Medical Director of Galope Anesthesia Services, PSC; Continental Casualty Company; Dr. Jorge L. López; Simed; John Doe, Insurance Companies X, Y, and Z., Third-party defendants

531 F.Supp.3d 491

Aixa Rosa TONGE, et al., Plaintiffs,

v.DOCTORS’ CENTER HOSPITAL, San Juan, Inc., et al., Defendants; third-party Plaintiff

v.Galope Anesthesia Services, PSC; Dr. Ricardo Galán-Vázquez, Individually and as Medical Director of Galope Anesthesia Services, PSC; Continental Casualty Company; Dr. Jorge L. López; Simed; John Doe, Insurance Companies X, Y, and Z., Third-party defendants

Civil No. 18-1916 (ADC)

United States District Court, D. Puerto Rico.

Signed March 31, 2021

Rafael Mayoral-Morales, Latimer, Biaggi, Rachid & Godreau, San Juan, PR, for Plaintiffs Aixa Rosa Tonge, Hilda Tonge-Landron, Jorge Tonge-Landron.

Rosa L. Irizarry-Millan, M.L. & R.E. Law Firm, San Juan, PR, for Third-Party Defendant Continental Casualty Company.

Charles A. DeMier-LeBlanc, De Corral & De Mier, LLP, San Juan, PR, for Third-Party Defendants Dr. Ricardo Galan-Vazquez, Galope Anesthesia Services PSC.

Ramonita Dieppa-Gonzalez, San Juan, PR, for Defendants; Third-Party Plaintiff.

OPINION AND ORDER

AIDA M. DELGADO-COLÓN, United States District Judge

Before the Court are third-party defendants Galope Anesthesia Services, PSC ("Galope") and Dr. Ricardo Galán-Vázquez's ("Dr. Galán-Vázquez") motion to dismiss at ECF No. 45 , third-party defendant Dr. Jorge L. López's ("Dr. Jorge López") motion to dismiss at ECF No. 46 , and third-party defendant Continental Casualty Company's ("CCC") motion to dismiss at ECF No. 47 . Third-party plaintiff Doctors’ Center Hospital San Juan, Inc. ("DCH"), filed its responses thereto at ECF Nos. 51, 52, 53 . third-party defendants replied at ECF Nos. 54, 55, 56 . DCH did not request leave to file a sur-reply.

For the reasons below, the motion to dismiss at ECF No. 45 is hereby GRANTED IN PART . The motions to dismiss at ECF Nos. 46, 47 are GRANTED .

I. Procedural Background

On November 29, 2018, Aixa Rosa-Tonge, Hilda Tonge-Landrón and Jorge Tonge-Landrón ("plaintiffs") filed the original complaint, at ECF No. 1 , against DCH, requesting damages for "medical and hospital malpractice." See ECF No. 28 at 4. Plaintiffs allege that Marissa Tonge-Landrón¹ ("Marissa Tonge-Landrón" or the "patient") went into respiratory arrest after a May 26, 2017 surgery, to which medical personnel failed to timely respond, thereby causing Marissa Tongue-Landrón to sustain permanent brain damage. ECF No. 1 at 2-5. Plaintiffs assert they served DCH with "an extrajudicial claim" to toll the applicable one-year statute of limitations. ECF No. 1 at 8. Plaintiff did not send an "extrajudicial claim" to third-party defendants.

DCH filed its answer to the complaint. ECF No. 8 . Notwithstanding, due to the unfortunate death of Marissa Tonge-Landrón on January 21, 2019, the Court granted plaintiffs’ motion to file an amended complaint, docketed on March 20, 2019. ECF No. 11 . Plaintiffs added claims arising out of Marissa Tonge-Landrón's death, including increasing the amounts of compensatory damages to account for their additional suffering. On March 26, 2019, DCH filed an informative motion and requested an extension of time to join other parties in light of plaintiffs’ amended complaint. ECF No. 13 . DCH filed its answer to the amended complaint on April 5, 2019. ECF No. 16 . On November 18, 2019, DCH filed a motion for leave to file a third-party complaint, appending its proposed complaint. The Court granted the request. ECF Nos. 25 , 26 . However, on February 26, 2020, DCH did not the file the same third-party complaint submitted to the Court in November, but rather an amended third-party complaint which included, for the first time, Dr. Jorge López as a third-party defendant joint tortfeasor. ECF No. 28 .

A. Galope and Dr. Galán-Vázquez's motion to dismiss

Third-party defendants Galope and Dr. Galán-Vázquez filed a motion to dismiss at ECF No. 45 . They argue that the amended third-party complaint fails to state a claim and should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). They also argue that the amended third-party complaint is time-barred under Puerto Rico law. Id. Making reference to Puerto Rico Supreme Court opinions, Galope and Dr. Galán-Vázquez sustain that, "[b]eing uncontested that plaintiffs’ claim against the appearing defendants is time-barred, third-party Plaintiffs may not bring their contribution claim against the appearing parties via third party practice." Id. at 12.

DCH responded that Galope and Dr. Galán-Vázquez calculated the statute of limitations from the wrong starting point. ECF No. 53 . DCH claims that the relevant date is not the "date of the initial injury" on "May 26, 2017," but the date of Marissa Tonge-Landrón's death on January 21, 2019. Id. at 1-2. DCH's argument is grounded on the notion that Marissa Tonge-Landrón's death triggered the filing of plaintiffs’ amended complaint, which, according to DCH, "transformed the nature of the cause of action from a straight medical malpractice case, to a claim for wrongful death." Id. at 2. In other words, plaintiffs’ "inclusion of the wrongful death claim gave rise to a new limitations clock on Plaintiffs’ wrongful-death action, which began to run on the date of their injury, that is on January 21, 2019 - the date of Tonge's death." Id. at 9. DCH also sustains that the statute of limitation was tolled because there is "perfect solidarity" among the third-party litigants. Id.

Finally, Galope and Dr. Galán-Vázquez filed a motion at ECF No. 56 for joinder in CCC's reply at ECF No. 55 , 55-1 . Specifically, after stating their insured-insurer relationship with CCC, Galope and Dr. Galán-Vázquez "adopt[ed] by reference all of the arguments presented by [their] insurer [CCC] in relation to third party plaintiffs’ response to our motion to dismiss, except obviously as to those pertaining to the insurance policy itself." ECF No. 56 at 2.

DCH did not move for leave to file a sur-reply.

B. Dr. Jorge López's motion to dismiss

Dr. Jorge López similarly argues that the amended third-party complaint is time barred because DCH filed it more than a year after plaintiffs’ claim accrued on May 27, 2017. ECF No. 46 at 4. Dr. Jorge López notes that plaintiffs did not bring a claim against him in their original or amended complaints and DCH does not argue that any possible claims against him were tolled. Accordingly, Dr. Jorge López concludes, DCH's third-party claims against him should be dismissed as untimely.

DCH responds with the same arguments stated in its response to Galope and Dr. Galán-Vázquez, focusing on Marissa Tonge's January 21, 2019 death as the proper statute of limitations trigger. ECF No. 52. DCH also argues that "perfect solidarity" exists between Dr. Jorge López and DCH pursuant to a professional service agreement. Id. at 10. Because of this contractual relationship, DCH concludes, DCH was not under the time constraints of the one-year tort statute of limitation. Id.

Dr. Jorge López replied, rejecting DCH's interpretation of plaintiffs’ amended complaint as having recharacterized their claims as purely "wrongful death." ECF No. 52 at 4. Even if that were the case, Dr. Jorge López sustains, DCH's amended third-party complaint is still time barred because plaintiffs’ claims against him, if any, would likewise be time barred. Id.

DCH did not seek leave to file a sur-reply to Dr. Jorge López's reply.

C. CCC's motion to dismiss

CCC filed a motion to dismiss the amended third-party complaint asserting, (1) it is not "a joint tortfeasor to the action and has no contractual relation with DCH," (2) DCH "lacks a substantive right under the Insurance Code of Puerto Rico or a substantive right of indemnity or contribution against CCC," thereby lacking standing to bring its claim, and (3), akin to the arguments above, DCH's filing is barred by the statute of limitations. ECF No. 47 at 2.

DCH filed a response, rehashing the same statute of limitations arguments addressed above. ECF No. 51. Additionally, DCH argues that it has standing to file a claim against CCC "by virtue of the policy issued by CCC" whereby CCC "is contractually obligated to provide defense to said insureds, and also to pay for any damages that its insureds become legally obligated to pay within the policy's limits." Id. at 8. DCH concludes that its amended third-party complaint "is not separate and distinct from the main action and is dependent on the resolution of the principal complaint." Id. at 9.

CCC replied at ECF No. 55 , but DCH did not move for leave to file a sur-reply.

II. Legal Standard

Fed. R. Civ. P. 12(b)(6)

Pursuant to Bell Atlantic v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), Fed. R. Civ. P. 12(b)(6) requires a plaintiff to "provide the grounds of his entitlement [with] more than labels and conclusions." See Ocasio-Hernández v. Fortuño-Burset , 640 F.3d 1, 12 (1st Cir. 2011). Thus, a plaintiff must present allegations that "nudge [his] claims across the line from conceivable to plausible" in order to comply with the pleading requirements of Fed. R. Civ. P. 8(a). Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ; see Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). When considering a motion to dismiss, the Court's inquiry occurs in a two-step process under the context based "plausibility" standard established by Twombly , 550 U.S. at 544, 127 S.Ct. 1955, and Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868. A plaintiff must allege sufficient facts that comply with the basic elements of the cause of action. See Iqbal , 556 U.S. at 677-679, 129 S.Ct. 1937. In analyzing this standard, the Court must "accept as true all of the allegations contained in a complaint [,]" discarding legal conclusions, conclusory statements and factually threadbare recitals of the elements of a cause of action. Iqbal , at 678, 129 S.Ct. 1937. Yet, the Court is not bound to "accept as true legal conclusions from the complaint or ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Maldonado v. Fontanés , 568 F.3d 263, 268 (1st Cir. 2009) (quoting Iqbal , ...