Ramirez-Velez v. Centro Cardiovascular de P.R. (Full Text)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO
AUREA ESTHER RAMIREZ-VELEZ, ET
ALS.,

Plaintiffs,
v.
CENTRO CARDIOVASCULAR DE PUERTO
RICO Y DEL CARIBE, ET ALS.,
Defendants.

CIV. NO. 05-1732 (PG)

OPINION AND ORDER
In the instant diversity suit, plaintiffs Aurea Esther Ramirez-Velez,

Wanda Ramirez-Velez, and Waleska Ramirez-Velez are suing the Centro
Cardiovascular de Puerto Rico y del Caribe (hereinafter “Centro
Cardiovascular” or “the Hospital”), Corporación del Centro Cardiovascular de
Puerto Rico y del Caribe, Dr. Pedro Diaz, Dr. Eddy Mieses, and Dr. Elizardo
Matos, alleging that co-defendants should be held responsible for the death
of their mother, Abiezer Velez. According to plaintiffs, defendants departed
from the standards of care in the medical treatment provided to their mother,
and their negligence resulted in her untimely death. See Complaint, Docket
No. 1.
Before the Court is the Centro Cardiovascular’s motion for summary
judgment (Dockets No. 51-53), plaintiffs’ opposition (Dockets No. 56-57), and
a reply and sur-reply thereto (Dockets No. 61-62, 65). After a close
examination of the record and the applicable statutory and case law, the Court
DENIES the Centro Cardiovascular’s motion for summary judgment for the reasons
explained below.

CIV. NO. 05-1732 (PG)

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I.SUMMARY JUDGMENT STANDARD
A motion for summary judgment is governed by Rule 56(c) of the Federal
Rules of Civil Procedure, which allows disposition of a case if “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 a judgment as
a matter of law.” See Sands v. Ridefilm Corp., 212 F.3d 657, 660 (1st
Cir.2000). A factual dispute is “genuine” if it could be resolved in favor of
either party, and “material” if it potentially affects the outcome of the
case. Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1 Cir .2004).
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To be successful in its attempt, the moving party must demonstrate the
absence of a genuine issue as to any outcome-determinative fact in the record,
DeNovellis v. Shalala, 124 F.3d 298, 306 (1 Cir.1997), through definite and
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competent evidence. Maldonado-Denis v. Castillo Rodriguez, 23 F.3d 576, 581
(1 Cir.1994). Once the movant has averred that there is an absence of
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evidence to support the non-moving party’s case, the burden shifts to the non-
movant to establish the existence of at least one fact in issue that is both
genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st
Cir.1990) (citations omitted). If the non-movant generates uncertainty as to
the true state of any material fact, the movant’s efforts should be deemed
unavailing. Suarez v. Pueblo Int’l, 229 F.3d 49, 53 (1 Cir.2000).
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Nonetheless, the mere existence of “some alleged factual dispute between the
parties will not affect an otherwise properly supported motion for summary
judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
At the summary judgment juncture, the Court must examine the facts in the
light most favorable to the non-movant, indulging that party with all possible
inferences to be derived from the facts. See Rochester Ford Sales, Inc. v.
Ford Motor Co., 287 F.3d 32, 38 (1 Cir.2002). The Court must review the
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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, 135 (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. Id.
II.FACTUAL AND PROCEDURAL BACKGROUND
On July 5, 2005, plaintiffs filed the instant claim alleging that the
physician defendants and the caring hospital, Centro Cardiovascular, breached
their duty under Articles 1802 and 1803 of the Puerto Rico Civil Code, P.R.
LAWS ANN. tit. 31, §§ 5141-5142, to provide medical care and treatment in
compliance with the applicable standards of the medical profession. Federal
jurisdiction is predicated on diversity of citizenship pursuant to 28 U.S.C.
§ 1332. Co-defendants answered the complaint and denied all responsibility for
the damages alleged by plaintiffs. See Dockets No. 9, 13, 17, 19.
It is uncontested that on January 11, 2005, Abiezer Velez was admitted
to the Centro Cardiovascular as a private patient of co-defendant Dr. Eddy
Mieses and under his direct orders. Adiezer Velez arrived in stable condition
to have an elective ambulatory cardiac catheterization performed. Dr. Mieses
performed said procedure on that same date. After the initial procedure, the
patient’s condition required further evaluation and treatment. Dr. Mieses
determined that an angioplasty was necessary, at which point he consulted Dr.
Pedro Diaz to perform the procedure. Dr. Diaz requested Dr. Matos to provide
surgical back-up.
The next day, January 12, 2005, Dr. Diaz, with the assistance of other
hospital personnel, performed a percutaneous transluminal coronary angioplasty
and stent replacement on Abiezer Velez. Shortly after this procedure, and
while still in the recovery room, Abiezer Velez showed the following symptoms:
sweating, dizziness, hypotension, decreased hemoglobin. Due to the
complications that arose after the angioplasty, Abiezer Velez had to be

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transferred to the Intensive Care Unit. She then suffered a cardio-respiratory
arrest, which required that she be intubated and aided by a mechanical
ventilator. Thereafter, Abiezer Velez entered into a comatose state and on
January 13, 2005, she suffered another cardio-respiratory arrest during which
she died. Abiezer Velez was declared dead at 6:30 p.m. on January 13, 2005.
The provisional diagnoses listed in Abiezer Velez’s Autopsy Report are: (i)
massive abdominopelvic hemorrage; (ii) atherosclerotic disease; and,
(iii) diverticulosis, sigmoid colon. See Provisional Autopsy Report, Docket
No. 57-3.
It is also uncontested that neither Dr. Mieses, Dr. Diaz or Dr. Matos is
an employee of the Centro Cardiovascular. These physicians merely hold
clinical privileges at the Hospital. The record also shows that they have
furnished the Hospital with the credentialing documents and the re-
certification papers issued by the Puerto Rico Board of Medicine in order to
maintain active privileges at the Centro Cardiovascular. It is also a fact
that there is not a CT scan machine at the Centro Cardiovascular. The closest
CT scan machine is located in a different building.
Co-defendant the Centro Cardiovascular now filed a request for summary
judgment arguing, in essence, that plaintiffs cannot make a showing of a
malpractice claim against the Hospital. The Centro Cardiovascular claims that
the deceased patient did not entrust her care to the Hospital, but to her
private physician. Thus, under the applicable jurisprudence, a medical
institution, in this case the Centro Cardiovascular, cannot be held liable for
the alleged malpractice by a physician who merely holds privileges at the
institution and, wherefore, is treating a private patient at the institution.
See Docket No. 52.
Plaintiffs opposed co-defendant’s dispositive motion asserting that under
the applicable law there are independent grounds to establish direct hospital
liability for the negligence of its employee nurses and other personnel, and

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for its failure to have available adequate and necessary medical equipment.
Plaintiffs argue that their expert witnesses support their theory of the case
with regards to the Centro Cardiovascular’s departure from the medical
standard of care, and that the disagreement between their experts and the co-
defendant precludes entry of summary judgment. See Docket No. 56.
The Centro Cardiovascular riposted plaintiffs’ opposition asserting that
plaintiffs failed to advance any evidence of the required elements to
establish a hospital’s liability according to Puerto Rico case law. See
Docket No. 61. In their sur-reply, plaintiffs essentially rehashed the
arguments set forth in their opposition. See Docket No. 65.
III. ANALYSIS
In this diversity suit, the substantive law of Puerto Rico controls. The
statute that governs the liability of a physician in a medical malpractice
suit is Article 1802 of the Puerto Rico Civil Code. See P.R. LAWS ANN. tit. 31,
§ 5141; see also Vda. De López v. ELA, 104 P.R. Dec. 178, 183 (1975). This
statute states that “[a] person who by an act or omission causes damage to
another through fault or negligence shall be obliged to repair the damage so
done.” P.R. LAWS ANN. tit. 31, § 5141. “Under this proviso, three elements
comprise a prima facie case of medical malpractice.” Cortes-Irizarry v.
Corporacion Insular De Seguros, 111 F.3d 184, 189 (1 Cir.1997). In order to
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prevail in a medical malpractice claim under Puerto Rico law, “a party must
establish (1) the duty owed; (2) an act or omission transgressing that duty;
and (3) a sufficient causal nexus between the breach and the harm.” Marcano
Rivera v. Turabo Medical Center Partnership, 415 F.3d 162, 167 (1 Cir.2005);
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see also Rojas-Ithier v. Sociedad Espanola de Auxilio Mutuo y Beneficiencia
de P.R., 394 F.3d 40, 43 (1 Cir.2005); Cortes-Irizarry v. Corporacion Insular
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De Seguros, 111 F.3d at 189; Lama v. Borras, 16 F.3d 473, 478 (1 Cir.1994);
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Rolon-Alvarado v. Municipality of San Juan, 1 F.3d 74, 77 (1 Cir.1993);
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Torres Nieves v. Hospital Metropolitano, 998 F.Supp. 127, 136 (D.P.R. 1998).

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The duty owed to a patient has been explained by the Puerto Rico courts
as “[t]hat (level of care) which, recognizing the modern means of
communication and education, … meets the professional requirements generally
acknowledged by the medical profession.” Marcano Rivera, 415 F.3d at 167-68
(citing Lama v. Borras, 16 F.3d 473 at 478 (quoting Oliveros v. Abreu, 101
P.R. Dec. 209, 226 (1973))). This standard is considered national and must be
proven through expert testimony. To establish the act or omission
transgressing the duty owed, Plaintiff must bring forth proof that “the
medical personnel failed to follow these basic norms in the treatment of the
patient.” Lama v. Borras, 16 F.3d 473 at 478.
With regards to the third requirement, causation cannot be found based
on mere speculation and conjecture. Expert testimony, consequently, is
generally essential in order to clarify complex medical issues that are more
prevalent in medical malpractice cases than in standard negligence cases. See
Marcano Rivera, 415 F.3d at 168; see also Rojas-Ithier, 394 F.3d at 43. Hence,
a plaintiff must establish, by a preponderance of the evidence, that the
defendants’ negligent conduct was the factor that most probably caused the
harm suffered by plaintiff. Id.
With regard to a hospital’s liability towards its patients, it is a
firmly established doctrine by the highest court of Puerto Rico that said
institutions owe their patients that degree of care that would be exercised
by a reasonable and prudent man in the same conditions and circumstances. See
Marquez Vega v. Martínez Rosado, 116 P.R. Dec. 397, 404-405 (1985) (internal
quotations omitted). Puerto Rico courts have held a hospital liable to its
patients for malpractice “on account of a negligent act on the part of the
institution’s employees; consequently, the hospital’s liability has been
predicated on the vicarious liability doctrine.” Marquez Vega, 116 P.R. Dec.
at 405. The statutory source of the vicarious liability doctrine is Article

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1803 of the Puerto Rico Civil Code, P.R. LAWS ANN. tit. 31, § 5142, which states
in relevant part that:
The obligation imposed by § 5142 of this title is
demandable, not only for personal acts and omissions,
but also for those of the persons for whom they should
be responsible … Owners or directors of an
establishment or enterprise are likewise liable for any
damages caused by their employees in the service of the
branches in which the latter are employed or on account
of their duties.
When a patient goes directly to a hospital for medical treatment and the
hospital “provides” the physicians that treat him/her, the Supreme Court of
Puerto Rico has established that the hospital and the physician are jointly
liable for any act of malpractice. See Marquez Vega, 116 P.R. Dec. at 406-407.
However, a special situation arises in cases where a physician is not employed
by the hospital, but is granted the privilege of using the hospital’s
facilities for his/her private patients. When a patient goes directly to a
physician’s private office, agrees with him/her as to the treatment he or she
is going to receive, and goes to a given hospital on the physician’s
recommendation merely because said institution is one of several which the
physician has the privilege of using, the hospital should not be held liable
for the exclusive negligence of an unsalaried physician, who was first and
foremost entrusted with the patient’s health. Id. at 408-409. Notwithstanding
the above, even in these types of situations, the hospital has the continuous
obligation to protect the health of its patients by: (a) carefully selecting
the physicians who, for some reason or another, are granted the privilege of
using its facilities; (b) requiring that said physicians keep up-to-date
through professional advancement studies; (c) monitoring the labor of said
physicians and taking action, when possible, in the face of an obvious act of
malpractice; (d) discontinuing the privilege granted in the face of the
repeated or crass acts of malpractice on the part of one of those physicians;

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and (e) keeping reasonably up-to-date on current technological breakthroughs.
Id. at 409-410 (internal quotations omitted).
In its motion for summary judgment, the Centro Cardiovascular sustains
that, according to Puerto Rico’s malpractice law, plaintiffs cannot make a
showing of a malpractice claim against it because the Hospital cannot be held
liable for the medical negligence allegedly incurred by the three physicians
sued in this case, who are not employees of the Hospital, but merely hold
privileges to use its facilities for the benefit of their private patients.
The Hospital argues that it has complied with its continuous obligation to
protect the health of its patients in accordance with the requirements set
forth in Marquez Vega. Accordingly, plaintiffs have failed to purport a
cognizable claim of medical malpractice against the Centro Cardiovascular. See
Docket No. 52.
On the other hand, according to plaintiffs, there are independent grounds
for which liability against the Centro Cardiovascular can be found. Plaintiffs
argue that the nurses at the Centro Cardiovascular failed to comply with the
Hospital’s rules and regulations by not promptly informing the attending
physicians of the emergency Abiezer Velez was going trough. Plaintiffs also
pin responsibility on the Hospital for failing to have a CT scan machine on
its premises. According to plaintiffs’ expert witness, Dr. Andrew Selwyn,
Professor of Medicine at Harvard Medical School:
The failure to utilize any internal guidelines and
standards by the nurses at the Cardiovascular Center of
Puerto Rico and the Caribbean represented a failure in
a necessary standard of care and contributed to this
patient’s death. These guidelines should have been used
to identify continuation of severe hypovolemic shock,
urgent efforts to institute adequate resuscitation and
to continuously notify doctors. In addition the
Institution failed to provide CT scanning. In 2005 this
is an unacceptable lack of services required to support
cardiac catheterization. These deficiencies in nursing
standards and guidelines also lack of investigative
facilities played a significant role in deterioration
and death in this patient.

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See Exhibit III, Expert Report of Dr. Andrew Selwyn, Docket No. 57-4.
Plaintiffs’ second expert witness, Dr. Luis Soltero Harrington, also stated
in his expert report:
It is absurd that in a supratertiary institution like
the Cardiovascular Center of Puerto Rico and the
Caribbean there is not a CT Scan machine in existence.
Nowadays these are found in all recognized hospitals.
The CT is essential in cases like these just as in
cases dealing with tumors, aortic dissection,
effusions, etc. etc. etc.. Not having the CT Scan
available in the hospital is a deviation of the
standard of care and exposes patients to additional and
unnecessary risk.
See Exhibit IV, Expert Report of Dr. Soltero Harrington, Docket No. 57-5.
Accordingly, plaintiffs sustain the Hospital is vicariously liable for
malpractice on account of the negligent acts on the part of its nurses and
other personnel, as well as for not keeping reasonably up-to-date on
current technological breakthroughs by not having a CT scan machine on its
premises. See Docket No. 61.
Plaintiffs’ experts’ assertions and the Centro Cardiovascular’s arguments
are clearly juxtaposed, and the net result is a factual issue as to what is
the applicable standard of care and whether or not the Hospital and its
employees breached it. To decide whether summary judgment is warranted would
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require that the Court weigh the evidence and decide who is more credible,
plaintiffs or co-defendant the Centro Cardiovascular. This the Court cannot
do as issues of deviations from the medical standard of care are questions of
fact that must be decided by the jury. Plaintiffs’ evidence “establishes
factual disagreements as to which reasonable minds may differ. No more is
exigible … Right or wrong, the plaintiff[s] [are] entitled to present [their]
case to a jury.” See Cortes-Irizarry, 111 F.3d at 189 (1 Cir.1997)(internal
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quotations omitted). Quite simply, the controversies as to the facts mentioned

In light of the obvious genuine issues of material facts, co-defendant’s reply and
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plaintiffs’ reply need not be discussed herein.

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above preclude any such finding, and thus, the Centro Cardiovascular’s motion
for summary judgment is denied.

IV.CONCLUSION
For the foregoing reasons, this Court hereby DENIES co-defendant the
Centro Vascular’s motion for summary judgment (Dockets No. 51-53).
IT IS SO ORDERED.
In San Juan, Puerto Rico, October 25, 2007.

S/ JUAN M. PEREZ-GIMENEZ
JUAN M. PEREZ-GIMENEZ
U.S. DISTRICT JUDGE