Opinion
Civil No. 01-1571 (DRD).
May 24, 2004
REPORT AND RECOMMENDATION
INTRODUCTION
On February 17, 2004, co-defendants Dr. Orlando López de Victoria and Guaranty Association of Miscellaneous Insurance of Puerto Rico, in the interest of Hospital Pavia, Hospital Susoni and Saint Paul Fire and Marine Ins. Co., filed a Motion for Summary Judgment, together with the Statement of Uncontested Material Facts and exhibits attached thereto. ( Docket No. 90 and 91). Plaintiffs filed their timely Opposition to Motion for Summary Judgment. ( Docket No. 96). Additional replies and sur-replies were considered and they are summarily discussed below as other related issues and in footnote two (2). The court has referred the above and all related and pending motions to this Magistrate Judge for Report and Recommendation ( Docket No. 121).
BACKGROUND
On May 4, 2001, plaintiffs filed their complaint under diversity jurisdiction, pursuant to Article 1802 of the Civil Code of Puerto Rico, alleging medical malpractice incurred by co-defendants for being jointly and severally liable to plaintiffs. Co-plaintiff Milagros García had been under the care of co-defendant Dr. Raúl García Rinaldi until September 26, 1996. Co-plaintiff required more than one amputation of her legs upon post-operative complications for an infected aortofemoral by-pass graft. Co-defendant Dr. López de Victoria treated co-plaintiff Milagros García and was consulted by her relatives in regard to the right inguinal wound that was draining serous sanguineous fluids. Dr. López de Victoria informed them that the complications appeared to be caused by a blood illness. Up to the time said co-plaintiff was discharged and transferred under the care of another cardiovascular surgeon at the Cardiovascular Center of Puerto Rico, plaintiffs claim they had reasonably relied on the good faith, capacity, and medical opinions of co-defendants Dr. García Rinaldi and/or Dr. López de Victoria, as to the effect that co-plaintiff's post-operative cardiovascular complications were caused by other conditions and were not related to the surgical procedures performed by defendant Dr. García Rinaldi.
In plaintiffs' statement of uncontested facts, they included evidence of their extrajudicial claims which they allege tolled the limitation of time on their malpractice claim. They also submitted legal memoranda claiming that co-defendants herein are to be considered joint tortfeasors for which the claims as to them were also properly tolled.
Co-defendants Dr. López de Victoria and Guaranty Association of Miscellaneous Insurance of Puerto Rico submit in their respective motions for summary judgment that plaintiffs' claim is time barred by the applicable statute of limitations since their extrajudicial claims to another tortfeasor, Dr. García Rinaldi, did not toll the limitation period as to them.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Pagano v. Frank, 983 F.2d 343, 347 (1st Cir. 1993); Lipsett v. Univ. of P.R., 864 F.2d 881, 894 (1st Cir. 1988); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505 (1986).When from the face of the complaint the statute of limitations becomes an issue, plaintiffs, non-movant herein, have the burden to show under the above predicament that either tolling ensues as to their claim or that they lacked sufficient knowledge of same.Fragoso v. López, 991 F.2d 878, 887 (1st Cir. 1993) (burden of proof to show lack of knowledge is on the plaintiff who sues more than one year after the event); Hodge v. Parke Davis Co., 833 F.2d 6, 7 (1st Cir. 1987);Villarini-García v. Hospital Del Maestro, Inc., 8 F.3d 81, 87 (1st Cir. 1993). Still, the court should examine the record "in the light most favorable to the party opposing the motion".Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491 (1962).
LEGAL ANALYSIS
I. LIMITATION OF MALPRACTICE ACTIONS.
Under Puerto Rico law, an action for damages for negligence must be commenced within one year of its accrual. 31 P.R. Laws Ann. § 5298(2). The Puerto Rico Supreme Court has construed this provision as incorporating a discovery rule. Villarini-García, 8 F.3d at 84. Thus, a claim accrues, and the one-year period starts to run, not at the time of the injury, but upon the discovery by the injured party of the injury and of its author. Espada v. Lugo, 312 F.3d 1, 5 (1st Cir. 2002) ( citing Tokyo Marine Fire Ins. Co. v. Pérez y Cia., De Puerto Rico, Inc., 142 F.3d 1, 3 (1st Cir. 1998)).
Title 31 of the Laws of Puerto Rico Annotated, § 5298, provides that:
The following prescribe in one year: . . . Actions to demand civil liability for grave insults of calumny, and for obligations arising from fault or negligence . . . from the time the aggrieved person had knowledge thereof. Art. 1868 (1930).
The one-year statutory period may be tolled under appropriate circumstances. 31 P.R. Laws Ann. § 5303 ("Prescription of actions is interrupted by their institution before the courts, by extrajudicial claim of the creditor, and by any act of acknowledgment of the debt by the debtor.").
Once a plaintiff acquires knowledge of the fact of his/her injury, a mistake of law as to the time of its accrual should not be allowed to resurrect a time-barred cause of action. United States v. Kubrick, 444 U.S. 111, 122, 100 S.Ct. 352, 359 (1979) (in medical malpractice case, so long as the plaintiff is aware of "the critical facts that he has been hurt and who has inflicted the injury," the statute of limitations is triggered). See Sheldon Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983, § 9.04 at 253 ( commenting that the medical malpractice discovery accrual rule "is also the rule in § 1983 cases"). See also Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 354 (1st Cir. 1992).
A. Time frame when plaintiffs acquired knowledge.
Co-defendants submit in their motion for summary judgment that co-plaintiff Milagros García had the duty to inquire into the reasons for her health injury well before the date claimed of September 30, 1996, and that by the time extrajudicial claims were made the action was already time-barred. Co-defendants assert that plaintiffs should have been diligent in finding the extent and nature of co-plaintiff Milagros García's injuries due on account of the graft surgery and the quality of medical care provided.
In opposition, plaintiffs submit that the claim in this case accrued not at the time of the injury but when plaintiffs discovered the cause of the injury and who committed it pursuant to Villarini-García, 8 F.3d at 84. It is also alleged that during the time the medical-patient relationship persisted, the physicians' representations and assertions as to the patient's condition were misleading, making them unable to acquire the necessary knowledge of the injury and who was responsible, for which tolling was appropriate.
Under the discovery rule encompassed by § 1802, a claim does not accrue when a person has merely a hint, suspicion or rumor of the claim, but once a duty to inquire into the existence of the claim rises. McIntyre v. United States, 2004 WL 1045544 (1st Cir. 2004).
On the basis of the above premises, it becomes evident that there are genuine issues of fact, resting on credibility determinations, as to the moment when plaintiffs acquired knowledge of Milagros García's damages. There is also controversy as to the representations and assertions allegedly made by the physicians which prevented plaintiffs from acquiring said knowledge. Therefore, summary disposition is not appropriate and co-defendants' request for summary judgment should BE DENIED.
B. Article 1802 — joint tortfeasors.
Under Article 1802 of the Puerto Rico Civil Code, when the negligent acts of more than one person have adequately caused a harm, each such person is a joint tortfeasor who is liable in full to the plaintiff for the harm caused. Tokyo Marine Fire Ins. v. Pérez Cia., 142 F.3d 1, 4 (1st Cir. 1998).
Under Article 1802, a person is liable for the harm he or she may have negligently caused. In order for liability to attach, the negligent act must be the "adequate cause" of the harm. Adequate cause, a concept similar to proximate cause, permits more than one person to be found to have "caused" the harm.Id.; see also Marshall v. Perez Arzuaga, 828 F.2d 845, 847 (1st Cir. 1987).
See Ortiz Torres v. K A Developers, Inc., 136 P.R. Dec. 192, 1994 WL 909260, at 3 (May 25, 1994); Sociedad De Gananciales v. González Padín, 117 P.R. Dec. 94, 1986 WL 376809 (1986); Jiménez v. Pelegrina Espinet, 112 P.R. Dec. 700, 1982 WL 210615 (1982).
Co-defendants claim that there is no joint liability because the acts were diverse in time and nature and there is a lack of solidarity among the physicians who treated co-plaintiff. Co-defendants contend that their identity was known to plaintiffs since the outset and they still pursued their extrajudicial claim only as to co-defendant García Rinaldi, who is not a party to this summary request.
Co-defendants' claims are without merit. Under solidarity of joint tortfeasors, the Puerto Rico Supreme Court has held that physicians were jointly and solidarily liable for their multiple acts, omissions and events that combined to cause them, although their actions were not contemporary but consecutive. Riley v. Rodriguez De Pacheco, 119 D.P.R. 762, 19 P.R. Offic. Trans. 806, 851-852 (1987); and Cruz v. Centro Medico de Puerto Rico, 113 D.P.R. 719, 744, 13 P.R. Offic. Trans. 931, 960-962 (1983) ( holding injury in solidum by emergency room physicians and orthopedists who provided treatment on different days at different locations).
Accordingly, if co-defendants are eventually found liable in this case, they will be joint tortfeasors liable each in full to plaintiffs for the harm caused.
C. Tolling through extra-judicial claim as to joint tortfeasors.
As to joint tortfeasors, the statute of limitations is tolled when a claim is filed against another tortfeasor and the interruption of the tolling period against one defendant tolls the period for any defendant who is solidarily liable with the first. See Tokyo Marine, 142 F.3d at 4. The extrajudicial tolling under 31 L.P.R.A. § 5303 would restart the statute of limitations on the date of the extrajudicial claim and once successfully interrupted, the full period begins to run again. See Díaz De Diana v. A.J.A.S. Ins. Co., 110 D.P.R. 471, 475, 110 P.R. Offic. Trans. 597, 606 (1980) ("The letter sent on April 15, 1974 . . . was an extrajudicial claim. On that date, a new one-year period of limitations began to run."); see also González García v. Puerto Rico Elec. Power Authority, 214 F.Supp.2d 194, 201 (D. Puerto Rico 2002).
Insofar as the extrajudicial claims, plaintiffs submitted several specific claims made through letter to Dr. García Rinaldi which they allege tolled the limitation of their actions as to those co-defendants who are jointly liable. Furthermore, plaintiffs aver that the limitation statute was tolled because it is not sufficient to have notice of the ill effects after the surgery and post-surgery complications, more so on account of co-defendants' representations and/or misrepresentations of the nature of her conditions. It was not until the surgery performed by a third party that plaintiffs claim they were informed that the graft infection, the embolizing, and its resulting persistent gangrene and complications had been caused by inadequate post-surgical treatment of defendant García Rinaldi and that co-defendants García Rinaldi and López de Victoria were most reasonably the ones at fault for the recently discovered injury.
Plaintiffs aver that codefendants had represented her complications to be caused either by a heart illness, a blood illness or a malignancy in the duodenum, up until September 30,1 996, when through treatment by a third party they found that the injuries had been caused by an infected graft and improper post-surgical treatment by codefendants.
Having discussed above that knowledge of damages and those liable thereof cannot be disposed summarily, for purposes of this summary judgment we will assume that plaintiffs' claim accrued by September 30, 1996.
There is no controversy that plaintiffs made extrajudicial claims to co-defendant Dr. García Rinaldi on August 15, 1997, June 11, 1998, May 14, 1999, February 10, 2000, and December 9, 2000. Upon filing of their judicial claim, plaintiffs claimed defendants were solidarily liable for co-plaintiff Milagros García's damages.
These letters constituted an extrajudicial claim, tolled the statute of limitations, and restarted the one-year time period. The new one-year period began upon the receipt of each of the extrajudicial claim by co-plaintiff to Dr. García Rinaldi. Thus, the extrajudicial tolling under 31 L.P.R.A. § 5303 that has already been determined in regard to alleged tortfeasor García Rinaldi would restart the statute of limitations on the date of the extrajudicial claim and once successfully interrupted, the full period begins to run again. Díaz De Diana, 110 D.P.R. at 475.
The prescription period was tolled as to all the joint tortfeasors, including co-defendant Dr. López de Victoria, as "the interruption of the prescription against one defendant also tolls the statute against any other defendants who are solidarily liable with the first." Tokyo Marine, 142 F.3d at 5 (citing 31 L.P.R.A. § 5304 "[i]nterruption of prescription of actions in joint obligations equally benefits or injures all the credits or debtors." (official translation 1991); Arroyo v. Hospital La Concepción, 130 D.P.R. 596, 1992 WL 755630, (1992)); Serrano Stubbe v. Hernandez Plana, 2002 WL 32006329, 12 (D. Puerto Rico 2002).
Since the solidarity doctrine allows for the timely inclusion of a solidary tortfeasor, such as co-defendant Dr. López de Victoria, as long as the original claim is considered to be timely, the subsequent addition of an alleged tortfeasor would not be considered to be time barred.
As such, co-defendant Dr. López de Victoria's claim of estoppel based on plaintiffs' extrajudicial claim against a tortfeasor, is not substantiated and is opposed by the solidarity and joint liability expressed by § 1802 statute and by similarly situated jurisprudence above discussed.
Accordingly, co-defendants' summary judgment request as to this matter should BE DENIED.
II. OTHER RELATED ISSUES
Co-defendant López de Victoria requested an extension of time for additional discovery. The Court has already ruled as to time limitations for dispositive motions in this case. All subsequent replies, sur-replies, supplemental motions, their oppositions and responses thereto properly submit the parties' positions as necessary to resolve the summary judgment issues. Accordingly, the extension of time for additional discovery should BE DENIED. If the Court, however, allows the extension, any subsequent filing should be considered as part of any opposition to this report and be dealt accordingly.
Docket No. 131
RESPONSE in Opposition to Motion to Compel filed by all plaintiffs.
REPLY to Response to Motion Plaintiffs' Motion to Strike filed by Guaranty Association of Miscellaneous Insurance of Puerto Rico.
MOTION to Compel Disclosure of Witness' Identity and, MOTION for extension of time to File Supplemental Brief in Support of Motion for Summary Judgment filed by Jose L. Gonzalez-Castaner on behalf of Orlando Lopez-de-Victoria.
MOTION to Strike Re: 124 Supplemental Motion [sic] Memorando of Law in Support Summary Judgement.
Supplemental Motion [sic] Memorando of Law in Support Summary Judgement.
Docket No. 131
RESPONSE in Opposition to Motion to Compel filed by all plaintiffs.
REPLY to Response to Motion Plaintiffs' Motion to Strike filed by Guaranty Association of Miscellaneous Insurance of Puerto Rico.
MOTION to Compel Disclosure of Witness' Identity and, MOTION for extension of time to File Supplemental Brief in Support of Motion for Summary Judgment filed by Jose L. Gonzalez-Castaner on behalf of Orlando Lopez-de-Victoria.
MOTION to Strike Re: 124 Supplemental Motion [sic] Memorando of Law in Support Summary Judgement.
Supplemental Motion [sic] Memorando of Law in Support Summary Judgement.
CONCLUSION
Considering the above discussed, it is recommended that co-defendants' Motions for Summary Judgment BE DENIED.
IT IS SO RECOMMENDED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994);United States v. Valencia, 792 F.2d 4 (1st Cir. 1986). See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988) ("Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round").
IT IS SO ORDERED.