Montalvo v. Gonzalez-Amparo ( 2011 )

United States Court of Appeals
For the First Circuit
No. 09-2528
MARISOL RODRÍGUEZ-DÍAZ; JOSÉ RAFAEL FERRERAS-DURAN;
CONJUGAL PARTNERSHIP FERRERAS-RODRÍGUEZ,
Plaintiffs, Appellants,
v.
SEGUROS TRIPLE-S, INC.; JAVIER J. RODRÍGUEZ-BECERRA;
CONJUGAL PARTNERSHIP RODRÍGUEZ-DOE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Boudin and Lipez,
Circuit Judges.
Jorge Miguel Suro Ballester for appellants.
Benjamín Morales-del Valle with whom Jaime E. Morales Morales
and Morales-Morales Law Offices were on brief for appellees.
February 23, 2011
BOUDIN, Circuit Judge. This is an appeal by Marisol
Rodríguez-Díaz and her husband José Rafael Ferreras-Durán from a
decision granting summary judgment to Dr. Javier J. Rodríguez-
Becerra ("Dr. Rodríguez") and his insurer Seguros Triple-S, Inc. in
a medical malpractice action brought under Article 1802 of the
Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 5141 (1990). We
recount the facts in the light most favorable to the plaintiffs as
the non-moving parties. Statchen v. Palmer, 623 F.3d 15, 16 (1st
Cir. 2010).
In early 2007, Rodríguez-Díaz, a forty-five-year-old
woman then resident in Puerto Rico with a personal and family
history of thyroid cancer, felt a lesion in her left parotid gland,
which is one of the salivary glands. Her treating physician, Dr.
José Arsuaga, referred her to Hato Rey Pathology Associates
("HRPA") to undergo a fine needle aspiration biopsy of her left
parotid gland. Dr. Rodríguez, a physician at HRPA, performed the
biopsy on March 1 and issued a cytology report on March 6.
Dr. Rodríguez's report provided a pathologic diagnosis of
pleomorphic adenoma, which is a benign tumor of the salivary
glands. That diagnosis--and Dr. Rodríguez's failure to conduct a
"differential diagnosis"--is the basis of this suit. Differential
diagnosis is a standard technique for "the determination of which
of two or more diseases with similar symptoms is the one from which
the patient is suffering, by a systematic comparison and
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contrasting of the clinical findings." Stedman's Medical
Dictionary 492 (27th ed. 2000); see also Baker v. Dalkon Shield
Claimants Trust, 156 F.3d 248, 252-53 (1st Cir. 1998).
Dr. Arsuaga told Rodríguez-Díaz of Dr. Rodríguez's
diagnosis on March 30, 2007, and recommended surgical removal of
the tumor--the standard treatment for pleomorphic adenoma--but said
that there was no urgency. Rodríguez-Díaz later scheduled a
consultation with Dr. Thomas Shellenberger, a head and neck
surgical oncologist at the M.D. Anderson Cancer Center in Orlando,
Florida, and requested her biopsy slides from HRPA to take to Dr.
Shellenberger. Under HRPA policy, this request required a review
of the slides by another HRPA physician.
Dr. Víctor J. Carlo-Chévere ("Dr. Carlo"), one of Dr.
Rodríguez's colleagues at HRPA, reviewed Rodríguez-Díaz's slides
and diagnosis. Dr. Carlo conducted a differential diagnosis,
included mucoepidermoid carcinoma--a malignant tumor--as one of the
possibilities, and therefore conducted a mucicarmine stain (which
Dr. Rodríguez had not done) to check for mucin, indicating
mucoepidermoid carcinoma. Dr. Carlo produced an amended cytology
report that changed Rodríguez-Díaz's pathologic diagnosis from
pleomorphic adenoma to low grade mucoepidermoid carcinoma.
On July 18, 2007, Rodríguez-Díaz picked up the slides and
Dr. Carlo's amended cytology report with the revised diagnosis of
a malignant tumor. She alleges that when she read Dr. Carlo's
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report, realized Dr. Rodríguez's report was not correct, and
learned she had cancer, she and her husband were shocked and their
lives fell apart. Now mistrusting Puerto Rico physicians, they
resorted at great expense to health care in the continental United
States, which their health insurer refused to cover.
On August 29, 2007, Dr. Shellenberger successfully
operated on Rodríguez-Díaz, surgically removing the malignant
tumor. The attendant pathology confirmed the revised diagnosis of
a malignant tumor. Within the year, on August 8, 2008, Rodríguez-
Díaz and her husband brought this malpractice action in federal
district court in Puerto Rico against Dr. Rodríguez and his medical
insurer. Having become residents of Florida, they premised
jurisdiction on diversity. Their claim was that Dr. Rodríguez had
been negligent in failing to conduct a differential diagnosis.
During discovery, Dr. Rodríguez stated that he had not
conducted a differential diagnosis because the evidence that he
discerned in studying the biopsy slide and described in his report
(specifically, myxoid stroma, epithelioid cells, and plasmacytoid
cells) persuaded him that Rodríguez-Díaz suffered from a benign
tumor, making unnecessary any differential diagnosis. The
defendants thereafter moved for summary judgment. Their supporting
evidence went considerably beyond Dr. Rodríguez's explanation.
The defense offered by expert witness report and
deposition testimony that the treatment for pleomorphic adenoma--
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which can become malignant--and low grade mucoepidermoid carcinoma
are the same; that Rodríguez-Díaz had received the appropriate
treatment in sufficient time; that an Orlando specialist had in
July 2007 reviewed the same slides and made no diagnosis of
malignancy; and that no definitive diagnosis could be made until
surgery.
In opposition, Rodríguez-Díaz offered no expert testimony
on the standard of care. She relied primarily on the failure of
Dr. Rodríguez to conduct a differential diagnosis and thus to
consider low grade mucoepidermoid carcinoma as an alternative to
pleomorphic adenoma; on Dr. Carlo's use of the technique and the
mucicarmine stain test in an attempt to exclude this alternative;
and on Dr. Carlo's correct diagnosis and its confirmation after
surgery. Rodríguez-Díaz made no claim of physical harm from the
delay in surgery but did claim emotional distress and increased
expenses due to her concern about medical care in Puerto Rico.
On September 22, 2009, the district court granted the
defendants' motion for summary judgment, ruling that the plaintiffs
could not establish a prima facie claim of medical malpractice
under Article 1802 because they had not offered expert evidence
establishing the relevant standard of care. The plaintiffs now
appeal. Our review is de novo. Great Clips, Inc. v. Hair Cuttery
of Greater Bos., L.L.C., 591 F.3d 32, 35 (1st Cir. 2010).
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This being a diversity suit, the substantive law of
Puerto Rico governs. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78
(1938). Under Puerto Rico law, the applicable rule of decision in
a medical malpractice action is fault-based, Martínez-Serrano v.
Quality Health Servs. of P.R., Inc., 568 F.3d 278, 285 (1st Cir.
2009); Article 1802 provides in pertinent part 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.
To show medical malpractice, a plaintiff must establish
that the care afforded did not meet "the professional requirements
generally acknowledged by the medical profession." Santiago Otero
v. Méndez, 1994 P.R.-Eng. 909,224, 135 P.R. Dec. 540 (1994); see
also Pagés-Ramírez v. Ramírez-González, 605 F.3d 109, 113 (1st Cir.
2010) (listing the elements). This, in turn, "[a]lmost invariably"
requires the plaintiff to introduce expert testimony. Cruz-Vázquez
v. Mennonite Gen. Hosp., Inc., 613 F.3d 54, 56 (1st Cir. 2010).
Under Puerto Rico law, to make out a prima facie case of physician
negligence:
Plaintiff must establish, through expert
evidence, the degree of care and scientific
knowledge required by the profession in the
treatment of a specific type of patient.
Rodríguez Crespo v. Hernández, 21 P.R. Offic. Trans. 637, 647
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(1988).1
Despite such broad statements, the jury's own common
sense could occasionally close the gap and establish that the care
afforded did not meet minimal standards. See Rolon-Alvarado v.
Municipality of San Juan, 1 F.3d 74, 79 (1st Cir. 1993) (offering
examples of possible exceptions); W. Keeton et al., Prosser and
Keeton on the Law of Torts § 32, at 189 (5th ed. 1984) (same). And
the expert evidence, if required, might come not from the
plaintiff's expert but rather from, say, the defense expert or
admissions by the defendant doctor. See Chizmadia v. Smiley's
Point Clinic, 873 F.2d 1163, 1165 (8th Cir. 1989). The present
case, however, fits neither of these possible exceptions.
Differential diagnosis is a standard tool, but as to what
symptoms and in what conditions a differential diagnosis is
required for proper medical care, no lay jury would be likely to
know on its own. Rolon-Alvarado, 1 F.3d at 79. The fact that Dr.
Carlo conducted a differential diagnosis in this case, and that its
application led to the correct diagnosis, does not show that
failing to use it was negligent. There is no indication that Dr.
Carlo or another physician testifying as an expert was prepared to
say otherwise.
1
See also Pagés-Ramírez, 605 F.3d at 113; Martínez-Serrano,
568 F.3d at 285; Rojas-Ithier v. Sociedad Espanola de Auxilio Mutuo
y Beneficiencia de P.R., 394 F.3d 40, 43 (1st Cir. 2005); Cortés-
Irizarry v. Corporación Insular de Seguros, 111 F.3d 184, 190 (1st
Cir. 1997); Lama v. Borras, 16 F.3d 473, 478 (1st Cir. 1994).
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In the present case, counsel for Rodríguez-Díaz was asked
at oral argument why no expert was presented for the plaintiffs; he
answered, quite plausibly, that he made every effort to find one
but was unsuccessful. This hardly disproves the plaintiffs' claim:
doctors, especially in tightknit communities, may be hesitant to
accuse each other; pathology is a specialized field which could
further narrow the supply of experts; and although experts can
usually be found somewhere at some price, the lack of physical
injury here likely limited what the plaintiffs could promise to
pay.
Plaintiffs' counsel made an admirable effort to do his
own medical research. He cited both in the district court and on
this appeal a 2002 study in a medical periodical for the
proposition that low grade carcinoma is one of the differential
diagnoses of pleomorphic adenoma.2 Yet he has not argued directly
that this article, standing by itself, would allow the jury to
conclude that every pleomorphic adenoma requires for proper medical
treatment a differential diagnosis or the mucicarmine stain test.
We think that the implicit concession is warranted. The
article is highly technical--even to understand much of the
2
Stanley, Selected Problems in Fine Needle Aspiration of Head
and Neck Masses, 15 Modern Pathology 342 (2002). He also cited
literature to support the view that, where mucin is present, a
definitive judgment should be deferred pending further testing, see
Jacobs, Low Grade Mucoepidermoid Carcinoma ex Pleomorphic Adenoma,
38 Acta Cytologica 93 (1994), but such literature is of no help in
establishing when proper care requires the test to identify mucin.
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terminology would require a medical dictionary and probably some
science--and nowhere does it contain a flat statement that in every
case where pleomorphic adenoma is diagnosed a differential
diagnosis or the mucicarmine stain test is required. To say that
a set of symptoms can encompass several different conditions says
nothing about the precise mix in the case at hand, let alone what
other factors might suggest about the need for differentiation.
One can easily conjecture reasons why differentiating
might matter; the most obvious is the relative urgency of the
surgery. The surgery itself would also differ, but it appears from
testimony that this would likely be determined definitively during
the preliminary steps of the surgery itself rather than by the
stain test. Absent an expert witness, however, it would be hard
for the jury to know anything about relative urgency or any need
for differentiation on some other basis--let alone how the
patient's specific symptoms or the slide results in this case might
bear upon the question.
We have, as required in a summary judgment case, drawn
reasonable inferences in the favor of the plaintiffs as the parties
resisting the judgment, Faiola v. APCO Graphics, Inc., 629 F.3d 43,
45 (1st Cir. 2010), but the outcome does not turn on evaluating the
evidence under a reasonable jury standard. Rather, the appeal fails
because there is a legal rule requiring expert testimony in a case
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of this character, and possible exceptions to the rule have not been
shown to apply.
The judgment of the district court is affirmed. Each side
is to bear its own costs on the appeal.
It is so ordered.
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