Loyola-Cintron v. Betancourt-Aquino ( 1998 )

USCA1 Opinion

                         [Not for Publication]



                    UNITED STATES COURT OF APPEALS

                         FOR THE FIRST CIRCUIT





No. 97-1930



                     JAIME LOYOLA-CINTRON, ET AL.,



                        Plaintiffs, Appellants,



                                  v.



                  BENJAMIN BETANCOURT-AQUINO, ET AL.,



                        Defendants, Appellees.









             APPEAL FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF PUERTO RICO



           [Hon. Salvador E. Casellas, U.S. District Judge]







                                Before



                         Lynch, Circuit Judge,



                Coffin and Cyr, Senior Circuit Judges.











     Astrid Col¢n-Led‚e for appellants.

     Carlos A. Ortiz-Morales, with whom Alfonso Miranda Cardenas and

Miranda Cardenas & Cordova were on brief for appellee Garcia Rinaldi.

     Jose Luis Gonzalez-Castaner, with whom Law Offices of Jose Luis

Gonzalez-Castaner and Jose R. Ortiz-Velez were on brief for appellees

Betancourt Aquino and Simed.

     Rafael Mayoral Morales, with whom Latimer, Biaggi, Rachid &

Godreau was on brief for appellee Hosital Pavia.





                            April 3, 1998



                                                       Per Curiam.    Plaintiffs challenge various rulings

underlying the dismissal of their wrongful death action against Dr.

Raul Garcia Rinaldi, Dr. Benjamin Betancourt Aquino, and Hospital

Pavia, for providing negligent post-operative care and supervision

to their father.  We summarily affirm the district court judgment

based on a thorough review of the entire record.

          On May 11, 1993, plaintiffs' father was admitted to

Hospital Pavia and treated by defendant Betancourt for chest pain.

The next day defendant Garcia performed emergency coronary by-pass

surgery, followed by a second surgery to correct temporary

bleeding.  During the post-operative recovery period the patient

was successfully treated for several episodes of cardiac

arrhythmia, the latest having occurred three days prior to his

discharge in stable condition.  On May 23, three days after

discharge, he suffered a cardiac arrest and died despite defendant

Betancourt's efforts to resuscitate.

          The district court correctly granted summary judgment to

Dr. Garcia on the ground that plaintiffs failed to present any

evidence which, if believed, could have rebutted the presumption

under Puerto Rico law that the decedent received reasonable medical

care from Dr. Garcia.  See Fernandez v. Corporacion Insular de

Seguros, 79 F.3d 207, 211 (1st Cir. 1996).  Instead, plaintiffs

relied exclusively upon the unsupported, conclusory allegations in

their complaint.  Absent affidavits generating a trialworthy issue,

summary judgment was inevitable.  See Medina-Munoz v. R.J. Reynolds

Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990); see also Fed. R. Civ.

P. 56(e).

          Plaintiffs further contend that they should have been

granted a new trial because the district court refused to allow

their expert witnesses, an internist and a pathologist, to testify

that defendants Betancourt and Hospital Pavia provided negligent

post-operative care.  The district court committed no error, let

alone manifest error.  See United States v. Sepulveda, 15 F.3d

1161, 1183 (1st Cir. 1993).

          First, one of the witnesses, neither a surgeon nor a

cardiologist, acknowledged having nothing "to do with open-heart

surgery.  It's not my expertise.  I have not been trained for it .

. . ."  The other, likewise not a cardiologist, had never treated

either a cardiac patient or a post-operative condition; nor did he

examine the decedent, either before or after death.  Nor was an

autopsy ever performed on the decedent.

          AFFIRMED.