Vargas-Alicea v. Cont'l Cas. Co.
| Decision Date | 25 June 2020 |
| Docket Number | CIVIL NO. 15-1941 (PAD) |
| Parties | SANDRA CRUZ VARGAS-ALICEA, et al., Plaintiffs, v. CONTINENTAL CASUALTY COMPANY, et al., Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Before the court is plaintiffs' (Docket No. 219), which defendants opposed (Docket No. 235). After careful review, the motion is granted in part, to allow plaintiffs' expert witness to provide opinion testimony as to standard of care, the extent to which BMA-Ponce deviated from that standard, the alleged causal relation between the deviation and decedent's passing and a note that a BMA-Ponce nurse discarded after the incident that culminated in this action. He is precluded from proffering opinions about the care that the deceased received in the hospital.
On June 3, 2013, Mr. Héctor Cruz fell to the floor following a dialysis session in a BMA-Ponce clinic in Ponce, Puerto Rico, after which he was taken to a hospital, underwent brain surgery for a subdural hematoma, and passed away three (3) days later.1 Plaintiffs - Mr. Cruz' former wifeand his three sons (Docket No. 145, p. 10) - sued BMA-Ponce and its insurer, Continental Casualty Company, under Puerto Rico law for damages arising out of the incident (Docket No. 1). Defendants filed a "Motion to Exclude Certain Testimony from Plaintiff's Expert Witness" (Docket No. 150), which plaintiffs opposed (Docket No. 154).2 The court granted the motion ("Initial Ruling"), precluding plaintiffs' expert from providing expert opinion during trial on the standard of care, fall prevention measures, the propriety of treatment in the hospital, a paper that a nurse discarded, and the cause of death. Plaintiffs request reconsideration (Docket No. 219).
Plaintiffs retained Dr. Julio Benabe as an expert witness. Dr. Benabe prepared a report and was deposed. Defendants contend that Dr. Benabe's testimony should be limited to the matters contained in the report, and that any testimony regarding opinions or subjects not included or mentioned in his expert report, even if discussed during the deposition, should be excluded from trial (Docket No. 150 at p. 1).
In the Initial Ruling, the court described the basic framework within which the parties' contentions must be evaluated, namely: (1) the legal parameters governing liability; and (2) theFederal Rules of Civil Procedure applicable to discovery of expert witness reports and testimony. See, Initial Ruling (Docket No. 201, pp. 2-4, 6-7). The court found Dr. Benabe's report deficient, concluded that the deficiencies could not be cured through deposition testimony, held that plaintiffs' failure to comply with expert report disclosure requirements was neither justified nor harmless, and prohibited the expert from testifying about the items mentioned earlier. Id. at pp. 2-9).
Plaintiffs state they can proceed under an "ordinary" negligence theory instead of "medical malpractice" (Docket No. 219, p. 13).3 The theory plaintiffs put forward in the Joint Pretrial Conference Report is that this is a "medical malpractice" action (Docket No. 145, p. 15).4 The court approved and adopted the Report as the court's order to govern subsequent proceedings under Fed. R. Civ. P. 16(e) (Docket No. 155, p. 3). Thus, the parties' representations in the Report replaced the pleadings, and that generally binds them in the remaining stages of the litigation.5 See, United States ex rel. Concilio de Salud Integral de Loíza, Inc. v. J.C. Remodeling, Inc., ---F.3d----, 2020 WL 3168086, *3-*4 (1st Cir. Jun. 15, 2020)(discussing effect of final pretrial orders).
In any event, "ordinary negligence actions" and "medical malpractice" actions are informed by the same basic elements. That is apparent not only from Vázquez-Filippetti v. Banco Popular de Puerto Rico, 504 F.3d 43, 49 (1st Cir. 2007), which plaintiffs cite as support (Docket No. 219, p. 14), but from other cases applying Article 1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31 § 5141, the basic provision pursuant to which this action was brought. As stated in Vázquez-Fillippetti:
Under Article 1802 of Puerto Rico's Civil Code, recovery of tort damages requires a showing that the defendant by act or omission caused damage to another through fault or negligence. The three essential elements for general tort claims are: (1) evidence of physical or emotional injury; (2) a negligent or intentional act or omission (the breach of duty element) and (3) a sufficient causal nexus between the injury and defendant's act or omission (in other words, proximate cause). Id. at 49.6
These elements are applied in the factual context of the allegations upon which the question is predicated. Here, plaintiffs allege, among other things, that BMA-Ponce should have recognized that the deceased's medical condition presented significant risk factors that predisposed him to a fall (Docket No. 145, p. 8). As such, the allegations configure a "medical malpractice" action rather than one involving "ordinary" negligence. See, Lamarca v. United States, 31 F.Supp.2d 110 (E.D.N.Y. 1999)( )(internal quotations omitted).
Given that medical knowledge is critical to demonstrating the parameters of the health-care provider's duty in this case, expert testimony is required. See, Rolón-Alvarado v. Municipality of San Juan, 1 F.3d 74, 78 (1st Cir. 1993)(examining topic).7 So too with causation. See, Rojas-Ithier v. Sociedad Española de Auxilio Mutuo y Beneficiencia de Puerto Rico, 394 F.3d 40, 43 (1st Cir. 2005)(as with duty of care, "a factfinder normally cannot find causation without the assistance of expert testimony to clarify complex medical and scientific issues that are more prevalent in medical malpractice cases that in standard negligence cases").
Puerto Rico holds health care professionals to a national standard of care. See, Cortés-Irizarry v. Corporación Insular de Seguros, 111 F.3d 184, 190 (1st Cir. 1997)( standard). In this way, "[i]nstead of simply appealing to the jury's view of what is reasonable under the circumstances, a medical malpractice plaintiff must establish the relevant national standard of care." Lama v. Borrás, 16 F.3d 473, 478 (1st Cir. 1994). Reference to national standard of care means that "[t]he physician must employ a level of care consistent with that set by the medical profession nationally." Borges, 605 F.3d at 7. So, in the instance of the physician involved in thatcase, an obstetrician, the First Circuit warned that, "an obstetrician ... must use the same level of care that is generally accepted as good practice in the obstetrical subspecialty, nationwide." Id. (emphasis added). To comply, plaintiffs must prove that the asserted standard of care is "nationally used." Clemente-Vizcarrondo v. United States, 2020 WL 748840, *4 (D.P.R. Feb. 14, 2020). Absent proof of this element, "it is virtually impossible to prove either breach or proximate cause." Rolón-Alvarado, 1 F.3d at 80 n.6.
Within these parameters, the Initial Ruling observed that the national standard of care may be shown by: (1) evidence of discussions about the described course of treatment among practitioners outside of Puerto Rico such as at conventions, meetings or seminars; (2) presentation of relevant data like published protocols and standards; or (3) reliance on peer-reviewed literature (i.e. journals, textbooks, and treatises). See, Initial Ruling (Docket No. 201 at p. 3). The list is not exhaustive. However, an expert does not describe a national standard of care by merely stating what he would have done differently. See, Cortés-Irizarry, 111 F.3d at 190 (citing Rolón, 1 F.3d at 78 (addressing issue).8
Turning to this case, plaintiffs' expert's report concludes that the available data shows deviations from what should be the standard of care of unstable patients in a dialysis unit (Docket No. 53-8, p. 4). Stating what the standard of care should be, however, is not synonymous withasserting what the national standard of care is, much less that such standard reflects a national standard.9 Professional standards "require normative judgments, not merely proof that a better way to treat a particular patient could have been devised." Rolón-Alvarado, 1 F.3d at 78. For that reason, the court observed in the Initial Ruling that Dr. Benabe's report did not identify the national standard of care that applies in this setting. See, Initial Ruling (Docket No. 201, pp. 3, 6).
Plaintiffs take issue with this determination, arguing that the court should have followed Pages v. Ramírez-González, 605 F.3d 109 (1st Cir. 2010) and Casillas-Sánchez v. Ryder Memorial Hosp., Inc., 14 F.Supp.3d 22 (D.P.R. 2014) (Docket No. 219, p. 13). In their view, these two cases "show that the law in this Circuit is that an expert's credentials, together with a detailed description of what the defendants should have done, is sufficient." Id.
In Pages-Ramírez, the District Court ruled that Dr. Carolyn Crawford, a specialist in neonatal-perinatal medicine, would not be permitted to provide her opinion as to obstetrical standards of care, departures from those standards or causation. See, 605 F.3d at 115-116.10 The First Circuit noted that "[t]he proffered expert physician need not be a specialist in a particular medical discipline to render expert testimony relating to that discipline" (id. at 114-115); reviewed Dr. Crawford's extensive credentials (id.); and reversed, concluding that those credentials easily met and surpassed the standard for admissibility of expert...
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