MARIA SANTANA-CONCEPCIÓN, ET AL., Plaintiffs, Appellants, CONJUGAL PARTNERSHIP CRUZ-SANTANA, ET AL., Plaintiffs,
CENTRO MÉDICO DEL TURABO, INC., d/b/a Hospital HIMA San Pablo Bayamón; DR. JULIO ROSADO-SÁNCHEZ, ET AL., Defendants, Appellees, HIMA SAN PABLO PROPERTIES, INC.; GRUPO HIMA SAN PABLO, INC., Defendants
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Salvador E. Casellas, U.S. District Judge.
Glenn Carl James for appellants.
José Arturo González-Villamil, with whom Bufete González-Villamil was on brief, for appellees Centro Mé dico del Turabo, Inc., Hima San Pablo Bayamón and its insurer HIMA San Pablo Captive Insurance Company Limited.
José A. Miranda-Daleccio, with whom Miranda Cá rdenas & Córdova was on brief, for appellees Dr. Julio Rosado-Sá nchez and the conjugal partnership Rosado-Philippi.
Before Lynch, Chief Judge, Torruella and Lipez, Circuit Judges.
LIPEZ, Circuit Judge.
This is a medical malpractice and informed consent case from Puerto Rico involving claims by the patient and her children. The district court held that the statute of limitations barred the claims brought by the patient and her adult children, granting summary judgment to the defendants on that basis. Given that the statute of limitations does not apply to minor children until they reach majority age, the district court addressed the merits of their malpractice and informed consent claims. Concluding that the " error of judgment" defense foreclosed malpractice liability and that the failure of proof on causation foreclosed liability for lack of informed consent, the court granted summary judgment on those claims as well. We affirm.
We recount the facts in the light most favorable to the appellants, who were the non-moving party at summary judgment. O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993).
On August 16, 2006, plaintiff-appellant Santana-Concepción, a registered nurse, after submitting to a CT scan of her brain at Rochester General Hospital in Rochester, New York, was diagnosed with a large arachnoid cyst. After further medical testing, Santana-Concepción's doctors there advised her that her arachnoid cyst did not require surgery.
While in Puerto Rico during the fall of that year, Santana-Concepción experienced extreme pain and went to the emergency room at HIMA-San Pablo Hospital on November 15. The emergency room physician referred her to neurosurgeon Dr. Julio Rosado-Sá nchez (" Dr. Rosado" ), who diagnosed her with a " symptomatic arachnoid cyst" and recommended surgery and antiedema medication to help release the increased intracranial pressure. Dr. Rosado explained to Santana-Concepción that she needed an operation as soon as possible and that it could be a life-or-death situation. Santana-Concepción replied, " Good, not a problem. Do as you see fit, as far as you take away this pain. I just need this pain to go away." Dr. Rosado
operated on Santana-Concepción on November 17, 2006, performing exploratory brain surgery around the cyst and placing a shunt to relieve pressure created by the cyst.
Santana-Concepción returned to Rochester that winter and visited her physician there on January 2, 2007. Her physician recorded the details of that visit as follows:
This is a 46-year-old female with history of an arachnoid cyst, who comes in today in follow-up. She actually apparently had a VP shunt placed in Puerto Rico when she was seen in the ER [and] the cyst was evaluated there. This was in mid-November. She states that she has no further depressive symptoms. She has however, had symptoms of decreased vision, difficulty with gait and balance, and she has noticed that her voice is much louder than previously and her sons need to have to point out to her that she is talking loudly.
She has had no seizure activity. She was started on Dilantin at that point. She did not bring her records today for me to look at.
. . .
We will look at her records and then try to get her referred back to Dr. Maxwell for neurosurgery to follow the shunt as well as Dr. Honch. Will continue the Dilantin and Depakote for now and check levels of those as a CBC and complete metabolic panel and come up with a treatment plan after we see her records.
Her son, who spoke fluent English, accompanied her on that visit.
On February 20, 2007, Santana-Concepción was hospitalized at Rochester General Hospital with symptoms of headache, dizziness, and visual changes. A CT scan and an MRI revealed that she had a shunt within her arachnoid cyst. Two days later, Santana-Concepción again met with her treating physician. Her physician recorded the details of that visit as follows:
This is a 46-year-old female with history of arachnoid cyst, S/P VP shunt placement in Puerto Rico who comes in today in follow-up from a hospital stay. She had what appears to be as a final diagnosis benign positional vertigo. However, she did see a neurologist in consult who recommended that she might consider getting the shunt taken out as it is not decreasing the size of the cyst and has seemed to result in some behavior changes.
She also complains of intermittent pain at the shunt site behind the left ear.
On April 19, 2007, Santana-Concepción visited her doctor in Rochester yet another time complaining of pain. During this visit her physician allegedly made the comment that whoever did this to her (meaning the shunt surgery) was a " butcher."
Santana-Concepción, along with her husband and four children, filed this suit against Dr. Rosado and HIMA-San Pablo Hospital on March 3, 2008, a little more than a year after Santana-Concepción's second hospitalization in New York. They claimed that Dr. Rosado failed to adequately inform Santana-Concepción of the risks associated with the shunt surgery before obtaining her consent, and that he failed to abide by the prevailing medical standards applicable to the treatment he provided (i.e., engaged in malpractice). The alleged malpractice concerned the treatment decision to operate on the cyst, rather than the adequacy of Dr. Rosado's
surgical technique in the operating room. The plaintiffs contended that the hospital was vicariously liable for Dr. Rosado's conduct.
The district court granted summary judgment to the defendants on all claims. The court held that the claims of Santana-Concepción and her adult children were all time-barred. It further held that the medical malpractice claim of her minor children was foreclosed by the " error of judgment" defense and the informed ...