USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 93-1071
ROBERTO ROMERO LAMA, ET AL.,
Plaintiffs, Appellees,
v.
DR. PEDRO J. BORRAS, ET AL.,
Defendants, Appellees.
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ASOCIACION HOSPITAL DEL MAESTRO, INC.
Defendant, Appellant.
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No. 93-1072
ROBERTO ROMERO LAMA, ET AL.
Plaintiffs, Appellees,
v.
DR. PEDRO J. BORRAS, ET AL.
Defendants, Appellants.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
___________________
____________________
Before
Stahl, Circuit Judge,
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Aldrich and Campbell, Senior Circuit Judges.
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Alvaro R. Calderon, Jr. with whom Alvaro R. Calderon, Jr. Law
________________________ _____________________________
Offices were on brief for appellant Borras, et al.
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Fernando J. Fornaris with whom Luis Berrios Amadeo, and Cancio,
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Nadal & Rivera were on brief for appellant Asociacion Hospital Del
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Maestro, Inc.
Harold D. Vincente with whom Vicente & Cuebas were on brief for
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appellee.
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February 25, 1994
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STAHL, Circuit Judge. Defendants-appellants Dr.
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Pedro Borras1 and Asociacion Hospital del Maestro, Inc.
(Hospital) appeal from a jury verdict finding them liable
for medical malpractice to plaintiffs Roberto Romero Lama
(Romero) and his wife, Norma.2 Defendants principally
argue that the district court erred in denying their post-
verdict motions for judgment as a matter of law under Fed.
R. Civ. P. 50(b) because the evidence at trial was legally
insufficient to prove the prima facie elements of
negligence. For the same reason, the Borras Defendants
also argue that the court erred in denying their motion for
a new trial pursuant to Fed. R. Civ. P. 59. Finding no
error, we affirm.
I.
I.
__
BACKGROUND
BACKGROUND
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Since the jury found defendants liable, we recount
the facts in the light most favorable to plaintiffs,
drawing all reasonable inferences in their favor; we do not
evaluate the credibility of witnesses or the weight of the
evidence. Santiago-Negron v. Castro-Davila, 865 F.2d 431,
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____________________
1. In addition to Dr. Borras, his wife and their conjugal
partnership were also named as defendants. We refer to these
three parties collectively as "the Borras Defendants."
2. Corporacion Insular de Seguros, Dr. Borras' insurer, was
also found liable but is not a party to this appeal.
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2
445 (1st Cir. 1989); Forrestal v. Magendantz, 848 F.2d 303,
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305 (1st Cir. 1988); Computer Sys. Eng'g v. Quantel Corp.,
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740 F.2d 59, 65 (1st Cir. 1984).
In 1985, Romero was suffering from back pain and
searching for solutions. Dr. Nancy Alfonso, Romero's
family physician, provided some treatment but then referred
him to Dr. Borras, a neurosurgeon. Dr. Borras concluded
that Romero had a herniated disc and scheduled surgery.
Prior to surgery, Dr. Borras neither prescribed nor
enforced a regime of absolute bed rest, nor did he offer
other key components of "conservative treatment." Although
Dr. Borras instructed Romero, a heavy smoker, to enter the
hospital one week before surgery in order to "clean out"
his lungs and strengthen his heart, Romero was still not
subjected to standard conservative treatment.
While operating on April 9, 1986, Dr. Borras
discovered that Romero had an "extruded" disc and attempted
to remove the extruding material. Either because Dr.
Borras failed to remove the offending material or because
he operated at the wrong level, Romero's original symptoms
returned in full force several days after the operation.
Dr. Borras concluded that a second operation was necessary
to remedy the "recurrence."
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3
Dr. Borras operated again on May 15, 1986. Dr.
Borras did not order pre- or post-operative antibiotics.
It is unclear whether the second operation was successful
in curing the herniated disc. In any event, as early as
May 17, a nurse's note indicates that the bandage covering
Romero's surgical wound was "very bloody," a symptom which,
according to expert testimony, indicates the possibility of
infection. On May 18, Romero was experiencing local pain
at the site of the incision, another symptom consistent
with an infection. On May 19, the bandage was "soiled
again." A more complete account of Romero's evolving
condition is not available because the Hospital instructed
nurses to engage in "charting by exception," a system
whereby nurses did not record qualitative observations for
each of the day's three shifts, but instead made such notes
only when necessary to chronicle important changes in a
patient's condition.3
On the night of May 20, Romero began to experience
severe discomfort in his back. He passed the night
screaming in pain. At some point on May 21, Dr. Edwin Lugo
Piazza, an attending physician, diagnosed the problem as
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3. Notwithstanding the "charting by exception" policy,
nurses regularly recorded routine quantitative data such as
the patient's body temperature. Romero apparently did not
develop a fever (another possible sign of infection) until
May 21.
-4-
4
discitis -- an infection of the space between discs -- and
responded by initiating antibiotic treatment. Discitis is
extremely painful and, since it occurs in a location with
little blood circulation, very slow to cure. Romero was
hospitalized for several additional months while undergoing
treatment for the infection.
After moving from Puerto Rico to Florida, the
Romeros filed this diversity tort action in United States
District Court for the District of Puerto Rico.4
Plaintiffs alleged that Dr. Borras was negligent in four
general areas: (1) failure to provide proper conservative
medical treatment; (2) premature and otherwise improper
discharge after surgery; (3) negligent performance of
surgery; and (4) failure to provide proper management for
the infection. While plaintiffs did not claim that the
Hospital was vicariously liable for any negligence on the
part of Dr. Borras, they alleged that the Hospital was
itself negligent in two respects: (1) failure to prepare,
use, and monitor proper medical records; and (2) failure to
provide proper hygiene at the hospital premises.
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4. In addition to the Borras Defendants and the Hospital,
plaintiffs named as defendants several other physicians, as
well as their spouses and insurers. The district court
granted summary judgment in favor of the other defendants and
that decision is not at issue in this appeal.
-5-
5
At each appropriate moment, defendants attempted
to remove the case from the jury. Before trial they moved
for summary judgment. See Fed. R. Civ. P. 56. At the
___
close of plaintiffs' case and at the close of all the
evidence, defendants moved for judgment as a matter of law.
See Fed. R. Civ. P. 50(a). After the jury returned a
___
verdict awarding plaintiffs $600,000 in compensatory
damages, defendants again sought judgment as a matter of
law. See Fed. R. Civ. P. 50(b). Additionally, the Borras
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Defendants requested either a new trial or remittitur. See
___
Fed. R. Civ. P. 50(b) and 59. At each procedural step and
with respect to each allegation of negligence, defendants'
primary argument was that plaintiffs had failed to
establish the required elements of duty, breach, and
causation.
The district court rebuffed all of defendants'
entreaties, ruling that the evidence was legally sufficient
to fuel the jury's deliberations and ultimately to support
its findings. Because our analysis necessarily focuses on
the denial of the post-verdict motions for judgment as a
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6
matter of law,5 we quote at length from the district
court's order denying those motions:
In reference to Dr. Borras, the
evidence, seen in the light most
favorable to the plaintiffs, allowed the
jury to at least conclude that Dr. Borras
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failed to pursue a well-planned and
managed, conservative treatment course
for Roberto Romero Lama's back ailment
before exposing him to the inherent
dangers of a herniated disc operation.
Had such conservative treatment been
successful, then the post-surgical
complications that unfortunately took
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5. We do not directly address the merits of the Borras
Defendants' pre-verdict challenges to the sufficiency of
the evidence. The Borras Defendants' attack on the denial
of summary judgment has been overtaken by subsequent
events, namely, a full-dress trial and an adverse jury
verdict. In these circumstances, we will not address the
propriety of the denial of summary judgment. See Whalen v.
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Unit Rig, Inc., 974 F.2d 1248, 1250 (10th Cir. 1992), cert.
______________ _____
denied, 113 S. Ct. 1417 (1993); Bottineau Farmers Elevator
______ __________________________
v. Woodword-Clyde Consultants, 963 F.2d 1064, 1068 n.5 (8th
__________________________
Cir. 1992); Jarrett v. Epperly, 896 F.2d 1013, 1016 & n.1
_______ _______
(6th Cir. 1990); Holley v. Northrop Worldwide Aircraft
______ _____________________________
Servs., Inc., 835 F.2d 1375, 1378 (11th Cir. 1988) ("[A]
____________
party may not rely on the undeveloped state of the facts at
the time [the party] moves for summary judgment to
undermine a fully-developed set of trial facts which
militate against [the party's] case."); Locricchio v. Legal
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Servs. Corp., 833 F.2d 1352, 1358-59 (9th Cir. 1987);
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Glaros v. H.H. Robertson Co., 797 F.2d 1564, 1573 (Fed.
______ ___________________
Cir. 1986), cert. dismissed, 479 U.S. 1072 (1987). But see
_____ _________ ___ ___
Trustees of Indiana Univ. v. Aetna Casualty & Sur. Co., 920
_________________________ _________________________
F.2d 429, 433 (7th Cir. 1990) (addressing denial of summary
judgment even after an adverse jury verdict). Were we to
consider the issue, we would find the Borras Defendants'
position to be without merit. For similar reasons, we do
not separately address the district court's denial of the
Borras Defendants' Rule 50(a) motion for judgment as a
matter of law, which is either non-appealable at this stage
or resolved by our affirmance of the denial of defendants'
Rule 50(b) motions. See Locricchio, 833 F.2d at 1356 n.2.
___ __________
-7-
7
place in the operated vertebral
interspace [including the infection
following the second surgery] would not
have occurred. A reasonable jury could
have concluded that the negligent act was
the recommendation of a first operation
without the benefit of additional
conservative treatment . . . .
As to Hospital del Maestro, it was
entirely possible for the jury to
conclude that the particular way in which
the medical and nursing records were kept
constituted evidence of carelessness in
monitoring the patient after the second
operation. Perhaps the infection would
have been reported and documented
earlier. Perhaps the hospital was
negligent in not dealing appropriately
with wound inspection and cleaning, [and]
bandage changing . . . .
Romero Lama v. Borras, No. 91-1055, slip op. at 1-2 (D.P.R.
___________ ______
Sept. 1, 1992) (order denying post-verdict motions). We
find the reasoning of the district court to be
substantially sound and therefore affirm the result.
II.
II.
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STANDARD OF REVIEW
STANDARD OF REVIEW
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Our review of a denial of a post-verdict motion
for judgment as a matter of law is plenary, yet highly
circumscribed by the deferential Rule 50(b) standard. See
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Rolon-Alvarado v. Municipality of San Juan, 1 F.3d 74, 77
______________ ________________________
(1st Cir. 1993). We must sustain the district court's
denial of a Rule 50(b) motion for judgment as a matter of
law, "unless the evidence, together with all reasonable
inferences in favor of the verdict, could lead a reasonable
person to only one conclusion, namely, that the moving
-8-
8
party was entitled to judgment." PH Group Ltd. v. Birch,
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985 F.2d 649, 653 (1st Cir. 1993).
The standard of review for denial of a Rule 59
motion for new trial is similarly circumscribed, but
counsels ample deference to the district court's exercise
of discretion. There is no abuse of discretion in such a
case unless "the verdict was so clearly against the weight
of the evidence as to amount to a manifest miscarriage of
justice." Id. (citations and quotations omitted).
___
The Borras Defendants correctly argue that the
district court may order a new trial even where the verdict
___
is supported by substantial evidence. E.g., Wagenmann v.
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Adams, 829 F.2d 196, 200 (1st Cir. 1987) (citing Hubbard v.
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Faros Fisheries, Inc., 626 F.2d 196, 200 (1st Cir. 1980));
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see generally 11 Charles Alan Wright & Arthur R. Miller,
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Federal Practice and Procedure 2805-2810, at 37-77
_________________________________
(1973) (describing traditional alternative grounds for new
trial, including errors of law as well as misconduct on the
part of court, counsel, or jury). However, there is no
rule that the district court must do so. Indeed, we have
____
noted that, where the verdict rests on substantial
evidence, it is "`only in a very unusual case'" that we
will find that the district court abused its discretion by
denying a new trial. Wagenmann, 829 F.2d at 200 (quoting
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Hubbard, 626 F.2d at 200 and Sears v. Pauly, 261 F.2d 304,
_______ _____ _____
309 (1st Cir. 1958)). In other words, when an argument
-9-
9
that the evidence was insufficient forms the basis of a
motion for new trial, the district court is generally well
within the bounds of its discretion in denying the motion
using the same reasoning as in its denial of a motion for
judgment as a matter of law. See Robinson v. Watts
___ ________ _____
Detective Agency, Inc., 685 F.2d 729, 740 (1st Cir. 1982),
______________________
cert. denied, 459 U.S. 1105, 1204 (1983). In these
_____ ______
circumstances, then, our review of the denial of a Rule 59
motion is essentially coterminous with our review of the
denial of a Rule 50(b) motion. See id.
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III.
III.
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DISCUSSION
DISCUSSION
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A. Medical Malpractice under Puerto Rico Law
_____________________________________________
We begin our analysis by laying out the
substantive law of Puerto Rico governing this diversity
suit.6 To establish a prima facie case of medical
malpractice in Puerto Rico, a plaintiff must demonstrate:
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6. First Circuit Local Rule 30.7 provides that
"`[w]henever an opinion of the Supreme Court of Puerto Rico
is cited in a brief . . . [and] does not appear in the
bound volumes in English, an official, certified or
stipulated translation thereof with three conformed copies
shall be filed.'" Rolon-Alvarado, 1 F.3d at 77 n.1. As in
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Rolon-Alvarado, the parties to this appeal have not
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furnished translations of such cases. In the future, we
may commission unofficial translations and impose on the
offending parties the costs incurred and, where
appropriate, sanctions. Failure to follow Rule 30.7 can
lead to delay while this court engages in its own
translation efforts, to uncertainty about the meaning of
important language, or both.
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10
(1) the basic norms of knowledge and medical care
applicable to general practitioners or specialists; (2)
proof that the medical personnel failed to follow these
basic norms in the treatment of the patient; and (3) a
causal relation between the act or omission of the
physician and the injury suffered by the patient. Sierra
______
Perez v. United States, 779 F. Supp. 637, 643 (D.P.R.
_____ ______________
1991); see also Rolon-Alvarado, 1 F.3d at 77 & n.2
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(describing elements of medical malpractice in Puerto Rico
and noting similarity with other jurisdictions).
The burden of a medical malpractice plaintiff in
establishing the physician's duty is more complicated than
that of an ordinary tort plaintiff. Instead 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. See
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Rolon-Alvarado, 1 F.3d at 77. In adopting a national
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standard, the Supreme Court of Puerto Rico explained that
physicians are required to provide "[t]hat [level of care]
which, recognizing the modern means of communication and
education, . . . meets the professional requirements
generally acknowledged by the medical profession."
Oliveros v. Abreu, 101 P.R. Dec. 209, 226, 1 P.R. Sup. Ct.
________ _____
Off'l Translations 293, 313 (1973).
Naturally, the trier of fact can rarely determine
the applicable standard of care without the assistance of
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11
expert testimony. Rolon-Alvarado, 1 F.3d at 78 (citing
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Oliveros, 1 P.R. Sup. Ct. Off'l Translations at 315). The
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predictable battle of the experts then creates a curious
predicament for the fact-finder, because an error of
judgment regarding diagnosis or treatment does not lead to
liability when expert opinion suggests that the physician's
conduct fell within a range of acceptable alternatives.
See Sierra Perez, 779 F. Supp. at 643-44; Cruz Rodriguez v.
___ ____________ ______________
Corporacion de Servicios del Centro Medico de Puerto Rico,
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113 P.R. Dec. ___, ___, 13 P.R. Sup. Ct. Off'l Translations
931, 946 (1983); Oliveros, 1 P.R. Sup. Ct. Off'l
________
Translations at 315 (holding that physician is not liable
for malpractice when there is "educated and reasonable
doubt" about the appropriate course). While not allowed to
speculate, the fact-finder is of course free to find some
experts more credible than others. See, e.g., Waffen v.
___ ____ ______
United States Dep't of Health & Human Servs., 799 F.2d 911,
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921 (4th Cir. 1986) (applying Maryland law; noting that the
fact-finder in a medical malpractice case is entitled to
decide the weight and credibility of expert testimony);
Rosario v. United States, 824 F. Supp. 268, 279 (D. Mass.
_______ ______________
1993) (applying Massachusetts law; similar) (citing
Leibovich v. Antonellis, 574 N.E.2d 978, 982 (Mass. 1991)).
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Proof of causation is also more difficult in a
medical malpractice case than in a routine tort case
because a jury must often grapple with scientific processes
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12
that are unfamiliar and involve inherent uncertainty. A
plaintiff must prove, by a preponderance of the evidence,
that the physician's negligent conduct was the factor that
"most probably" caused harm to the plaintiff. Sierra
______
Perez, 779 F. Supp. at 643; Cruz Rodriguez, 13 P.R. Sup.
_____ ______________
Ct. Off'l Translations at 960. "This fact need not be
established with mathematical accuracy[;] neither must all
other cause of damage be eliminated." Cruz Rodriguez, 13
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P.R. Sup. Ct. Off'l Translations at 960-61 (citations
omitted). As in the case of duty, however, a jury normally
cannot find causation based on mere speculation and
conjecture; expert testimony is generally essential. See,
___
e.g., Johns v. Jarrard, 927 F.2d 551, 557 (11th Cir. 1991)
____ _____ _______
(applying Georgia law; observing that medical malpractice
plaintiff must usually present expert medical testimony on
issue of causation in order to get to a jury).
B. Negligence of Dr. Borras
____________________________
The Borras Defendants claim that plaintiffs failed
to introduce any evidence sufficient to prove either (1)
the relevant standards of acceptable medical practice or
(2) the causal link between Dr. Borras' conduct and harm to
the plaintiffs. While plaintiffs may not have been able to
substantiate the broad attack outlined in their complaint,
we focus here on only one allegation of negligence: Dr.
Borras' failure to provide conservative treatment prior to
the first operation.
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13
Defendants argue that plaintiffs failed to prove a
general medical standard governing the need for
conservative treatment in a case like that of Romero. We
disagree. Plaintiffs' chief expert witness, Dr. George
Udvarhelyi, testified that, absent an indication of
neurological impairment, the standard practice is for a
neurosurgeon to postpone lumbar disc surgery while the
patient undergoes conservative treatment, with a period of
absolute bed rest as the prime ingredient.7 In these
respects, the views of defendants' neurosurgery experts did
not diverge from those of Dr. Udvarhelyi. For example, Dr.
Luis Guzman Lopez testified that, in the absence of
extraordinary factors, "all neurosurgeons go for
[conservative treatment] before they finally decide on [an]
operation."8 Indeed, when called by plaintiffs, Dr.
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7. Dr. Udvarhelyi testified that "[i]n general, when you
have a relatively mild protrusion of the disk [sic]
material, our policy is that you provide the patient with
the possibility of a conservative treatment." If Dr.
Udvarhelyi's reference to "our policy" merely represented a
personal view about what he would have done differently,
his statement would not be sufficient to establish a
general medical standard. See Rolon-Alvarado, 1 F.3d at
___ ______________
78. The jury was free, however, to conclude that "our
policy" referred to the policy shared by neurosurgeons,
particularly where nearly all of defendants' neurosurgery
experts espoused the same basic "policy." In addition, Dr.
Udvarhelyi later testified, "I couldn't see evidence that a
proper time was given for the conservative management
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before deciding surgery." (Emphasis added).
8. Defendants argue that, even if Dr. Udvarhelyi's
testimony represents the generally accepted standard, that
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14
Borras (who also testified as a neurosurgery expert) agreed
on cross-examination with the statement that "bed rest is
normally recommended before surgery is decided in a patient
like Mr. Romero," and claimed that he did give conservative
___
treatment to Romero.
In spite of Dr. Borras' testimony to the contrary,
there was also sufficient evidence for the jury to find
that Dr. Borras failed to provide the customary
conservative treatment. Dr. Alfonso, Romero's family
physician, testified that Dr. Borras, while aware that
Romero had not followed a program of absolute bed rest,
proceeded with surgery anyway. Although Romero was
admitted to the hospital one week before surgery, there was
evidence that Dr. Borras neither prescribed nor attempted
to enforce a conservative treatment regime. In fact, there
was evidence that Dr. Borras' main goal was simply to admit
Romero for a week of smoke-free relaxation, not absolute
bed rest, because Romero's heavy smoking and mild
____________________
standard does not apply to Romero's case because, according
to some of the defense witnesses, Romero was suffering from
___
neurological impairments prior to the first surgery. Dr.
Guzman, for example, claimed that Romero "had neurological
deficit from the very beginning." In contrast, Dr.
Udvarhelyi, who claimed that he was fully aware of all of
Romero's symptoms, opined that Romero's symptoms at the
time did not suggest a neurological deficit. This was a
disputed factual issue for the jury to resolve. We cannot
say that it would have been unreasonable for the jury to
resolve this dispute in plaintiffs' favor.
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15
hypertension made him a high-risk surgery patient. In
short, we agree with the district court that the jury could
reasonably have concluded that Dr. Borras failed to
institute and manage a proper conservative treatment plan.
The issue of causation is somewhat more
problematic. There are two potential snags in the chain of
causation. First, it is uncertain that premature surgery
was the cause of Romero's infection. Second, it is
uncertain whether conservative treatment would have made
surgery unnecessary. With respect to the first problem,
the Puerto Rico Supreme Court has suggested that, when a
physician negligently exposes a patient to risk-prone
surgery, the physician is liable for the harm associated
with a foreseeable risk. See Cruz Rodriguez, 13 P.R. Sup.
___ ______________
Ct. Off'l Translations at 956 ("A treatment that submits
the patient to unnecessary and foreseeable risks cannot be
considered reasonable, when alternate means to reduce or
__________
avoid them are available."). In this case, it is
undisputed that discitis was a foreseeable risk of lumbar
disc surgery.
Turning to the second area of uncertainty, we
observe that nearly all of the experts who testified on the
subject for both plaintiffs and defendants were of the
opinion that conservative treatment would eliminate the
need for surgery in the overwhelming majority of cases.
Nonetheless, defendants introduced expert testimony that,
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16
because Romero suffered from an "extruded" disc,
conservative treatment would not have helped. Dr.
Udvarhelyi testified, however, that an extruded disc is
indeed amenable to conservative treatment. With competent
expert testimony in the record, the jury was not left to
conjure up its own theories of causation. And certainly,
the jury was free to credit some witnesses more than
others. The question is admittedly close, but the jury
could have reasonably found that Dr. Borras' failure to
administer conservative treatment was the "most probable
cause" of the first operation.
We conclude that plaintiffs introduced legally
sufficient evidence to support each element of at least one
major allegation of negligence on the part of Dr. Borras.
We therefore hold that the district court properly denied
the Borras Defendants' Rule 50 and Rule 59 motions.
C. Negligence of Asociacion Hospital Del Maestro
_________________________________________________
While plaintiffs made a number of allegations
against the Hospital, we focus on the allegation that the
failure of hospital nurses to report on each nursing shift
was a negligent cause of the late detection of Romero's
infection.9
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9. Since we do not reach the issue of the alleged lack of
proper hygiene at the hospital, we need not discuss the
Hospital's argument that the district court erred in
allowing Dr. Udvarhelyi, who qualified only as a
neurosurgery expert and allegedly pledged not to testify
-17-
17
The Hospital cannot seriously dispute that
plaintiffs introduced sufficient evidence on the elements
of duty and breach. The Hospital does not contest
plaintiffs' allegation that a regulation of the Puerto Rico
Department of Health, in force in 1986, requires
qualitative nurses' notes for each nursing shift.10 Nor
does the Hospital dispute the charge that, during Romero's
hospital stay, the nurses attending to Romero did not
supply the required notes for every shift but instead
followed the Hospital's official policy of charting by
exception. The sole question, then, is whether there was
sufficient evidence for the jury to find that violation of
the regulation was a proximate cause of harm to Romero.11
The Hospital questions plaintiffs' proof of
causation in two respects. First, the Hospital claims that
plaintiffs did not prove that the charting by exception
policy was a proximate cause of the delayed detection of
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against the hospital, to testify about the effect of
cockroaches in the hospital on the likelihood of infection.
10. The regulation itself was not made part of the record
on appeal.
11. The district judge suggested that causation was the
principal issue for jury consideration when he instructed
the jury that "violation of [a] law or regulation is not in
itself enough to constitute negligence absent proof of the
existence of the proximate cause between the damage
allegedly sustained and such alleged violation of the law
and/or of the regulation." Neither party objected to the
jury instructions.
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18
Romero's infection. Second, the Hospital argues that there
was no causal relationship between the belated diagnosis of
the infection and any unnecessary harm suffered by Romero.
We address each of these arguments in turn.
The Hospital essentially argues that it is
uncertain whether the hospital staff observed, but failed
to record, any material symptoms that would probably have
led an attending physician to investigate the possibility
of an infection at an earlier stage. The Hospital notes
that, even under the charting by exception policy, its
nurses regularly recorded such information as the patient's
temperature, vital signs, and any medication given to the
patient. Indeed, there is some evidence that Romero did
not have a fever (one possible sign of infection) before
May 21, when Dr. Piazza diagnosed the infection and began
antibiotic treatment.
Nonetheless, there was evidence from which the
jury could have inferred that, as part of the practice of
charting by exception, the nurses did not regularly record
certain information important to the diagnosis of an
infection, such as the changing characteristics of the
surgical wound and the patient's complaints of post-
operative pain. Indeed, one former nurse at the Hospital
who attended to Romero in 1986 testified that, under the
charting by exception policy, she would not report a
patient's pain if she either did not administer any
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19
medicine or simply gave the patient an aspirin-type
medication (as opposed to a narcotic). Further, since
there was evidence that Romero's hospital records contained
some scattered possible signs of infection that, according
to Dr. Udvarhelyi, deserved further investigation (e.g., an
excessively bloody bandage and local pain at the site of
the wound), the jury could have reasonably inferred that
intermittent charting failed to provide the sort of
continuous danger signals that would be the most likely
spur to early intervention by a physician.
The Hospital claims, however, that, even if faulty
record-keeping is a cause of the delayed diagnosis,
plaintiffs failed to demonstrate a link between the timing
of the diagnosis and the harm Romero eventually suffered.
Drawing all inferences in favor of the plaintiffs, it
appears that Romero acquired a wound infection as early as
May 17 (when a nurse noted a "very bloody" bandage) or May
19 (when Romero complained of pain at the site of the
wound); the wound infection then developed into discitis on
or about May 20 (when Romero began experiencing
excruciating back pain). While there may have been no way
to prevent the initial wound infection, the key question
then becomes whether early detection and treatment of the
wound infection could have prevented the infection from
reaching the disc interspace in the critical period prior
to May 20.
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Dr. Udvarhelyi testified that "time is an
extremely important factor" in handling an infection; a 24
hour delay in treatment can make a difference; and a delay
of several days "carries a high-risk [sic] that the
infection will [not be] properly controlled." Here, the
jury could have reasonably inferred that diagnosis and
treatment were delayed at least 24 hours (May 19 to 20),
and perhaps 72 (May 17 to 20). As a result, the jury could
have reasonably concluded that the timing of the diagnosis
and treatment of the wound infection was a proximate cause
of Romero's discitis.
In conclusion, we agree with the district judge
that this case "is by no means the strongest proposition
for medical malpractice against . . . a hospital," Romero
______
Lama, slip op. at 3. Nevertheless, we find none of the
____
Hospital's arguments persuasive enough to disturb the
verdict. We hold that plaintiffs met their burden of proof
as to the allegation that the Hospital's substandard
record-keeping procedures delayed the diagnosis and
treatment of Romero's wound infection at a time when
controlling the wound infection was likely to prevent the
development of the more serious discitis. Accordingly,
there was no error in the district court's denial of the
Hospital's Rule 50(b) motion for judgment as a matter of
law.
IV.
IV.
___
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CONCLUSION
CONCLUSION
__________
There is no need to discuss defendants' other
assignments of error.12 For the foregoing reasons, the
order of the district court denying defendants' motions for
judgment as a matter of law and the Borras Defendants'
motions for new trial is
Affirmed.
Affirmed.
_________
____________________
12. Appellants' other arguments on appeal are moot,
meritless, or waived. First, because the denial of summary
judgment is now a non-issue, see supra note 5, so is the
___ _____
question whether the district court, in ruling on the
motion for summary judgment, failed to adhere to the local
rules of the District of Puerto Rico in its treatment of
allegedly uncontroverted facts. Second, we discern no
reversible error in the district court's denial of the
Borras Defendants' "informative motion" concerning the
deposition of Dr. Barth Green, a neurosurgeon who was
treating Romero at the time of the trial, and who had
planned to operate on Romero in 1992 in an attempt to
relieve Romero's persistent back pain. We are puzzled as
to how an "informative" motion can be "denied,"
particularly where leave of court would appear to be
unnecessary, see Fed. R. Civ. P. 30(a), and no party has
___
moved for a protective order, see Fed. R. Civ. P. 26(c).
___
But even if the district court abused its discretion in
curtailing discovery of relevant material, the Borras
Defendants had other means of countering plaintiffs' proof
of physical injury, and Romero's condition in 1992 is
irrelevant to the compensable harm suffered by plaintiffs
prior to 1992. In short, the Borras Defendants have not
_____
demonstrated the "substantial prejudice" necessary to
justify appellate intervention. Mack v. Great Atl. & Pac.
____ _________________
Tea, Inc., 871 F.2d 179, 186-87 (1st Cir. 1989). Third,
_________
since the Borras Defendants argued the issue of remittitur
in the most perfunctory fashion on appeal, we deem waived
any argument about the excessiveness of the compensatory
damages. See FDIC v. World Univ., Inc., 978 F.2d 10, 15
___ ____ _________________
(1st Cir. 1992) (noting that "issues adverted to in a
perfunctory manner, unaccompanied by some effort at
developed argumentation," may be deemed waived).
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