Kenyon v. Hosp. San Antonio, Inc.

Full title: JOHN KENYON, ET AL Plaintiffs, v. HOSPITAL SAN ANTONIO, INC., ET AL…

Court: United States District Court, District of Puerto Rico

Date published: Dec 1, 2022

CIVIL 14-1516 (SCC-GLS) (D.P.R. Dec. 1, 2022)

Opinion

CIVIL 14-1516 (SCC-GLS)

12-01-2022

JOHN KENYON, ET AL Plaintiffs, v. HOSPITAL SAN ANTONIO, INC., ET AL Defendants.

GISELLE LOPEZ-SOLER, United States Magistrate Judge.

REPORT AND RECOMMENDATION

GISELLE LOPEZ-SOLER, United States Magistrate Judge.

This is a medical malpractice case with a lengthy procedural history. But the matter before the Court is straightforward. Three co-defendants, Dr. Juan R. Jimenez-Barbosa, Dr. Maria de los Angeles Rodriguez-Maldonado, and Dr. Ricardo Cedeno-Rivera (jointly, the “Physicians”), through their insurer Insurers Syndicate for the Joint Underwriting of Medical-Hospital Professional Liability Insurance (“SIMED”), have moved the Court to dismiss Plaintiffs' claims on account of the Court's Omnibus Order at Docket No. 243, holding that all three Physicians are immune from suit under Article 41.050 of the Puerto Rico Insurance Code, and the U.S. Court of Appeals for the First Circuit's decision affirming the Court's dismissal (Docket No. 313). Docket No. 332. The motion is unopposed. The matter was referred to the undersigned for a Report and Recommendation. Docket No. 333. For the reasons discussed below, the motion at Docket No. 332 should be deemed MOOT.

I. Discussion

On March 30, 2017, this Court issued an Omnibus Order granting the Physicians' motion for summary judgment for they are immune from suit pursuant to the 2013 version of Article 41.050 of the Puerto Rico Insurance Code. Docket No. 243 at 25-26. By extension, the Court determined that “since there is no basis of liability for SIMED's insureds, SIMED cannot be liable to plaintiffs for claims outside its contractual obligations.” Id. at 21-22. Partial Judgment dismissing all of Plaintiffs' claims against the Physicians and SIMED, as the Physicians' insurance carrier, was entered on May 17, 2017. Docket No. 244. On August 25, 2022, the First Circuit affirmed the Court's denial of Plaintiffs' motion for reconsideration and its dismissal of Plaintiffs' claims against the Physicians and SIMED. Docket No. 313. Because the First Circuit's decision is now final and unappealable, the dismissal of Plaintiffs' claims against the Physicians and SIMED, as insurance carrier for the Physicians, at Docket No. 244 stands. There is no need for dismissal of those claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Court thus recommends that the Physicians' and SIMED's motion at Docket No. 323 be deemed MOOT and that the named Physicians and SIMED, as insurance carrier of the three Physicians, be excused from further participation in this litigation.

This Report and Recommendation is issued pursuant to 28 U.S.C. §636(b)(1) and Rule 72(d) of the Local Rules of this District Court. Pursuant to Local Rule 72(d), the parties have fourteen (14) days to file any objections to this Report and Recommendation. Failure to file timely and specific objections within the specified time waives the right to review in the District Court and those claims not preserved by objections are precluded on appeal. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Davet v. Maccarone, 973 F.2d 22, 30-31 (1^stCir. 1992); Paterson-Leitch Co. v. Mass. Mun. Wholesale Electric Co., 840 F.2d 985 (1^stCir. 1988); Borden v. Secretary of Health and Human Services, 836 F.2d 4, 6 (1^st Cir. 1987).

IT IS SO RECOMMENDED.