
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                                                                     _________________________          No. 92-2298                                SANDRA ROLON-ALVARADO,                                Plaintiff, Appellant,                                          v.                              MUNICIPALITY OF SAN JUAN,                                 Defendant, Appellee.                                                                                     _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                                                                     _________________________                                        Before                                Selya, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                                                                     _________________________               Pedro J. Varela and Jose E. Colon on brief for appellant.               _______________     _____________               Thomas Doran  Gelabert  and  Eli  B.  Arroyo  on  brief  for               ______________________       _______________          appellee.                                                                                     _________________________                                    August 9, 1993                                                                                     _________________________                    SELYA, Circuit Judge.  This appeal necessitates that we                    SELYA, Circuit Judge.                           _____________          consider the quantum  and character of proof  needed under Puerto          Rico  law in a  medical malpractice case.   The lower court found          plaintiff's evidence to  be apterous and grounded her suit before          it reached the jury.  We affirm.                                          I                                          I                    Plaintiff-appellant Sandra Rolon-Alvarado is  a citizen          and resident  of New York.   She is also a  surviving daughter of          Efrain  Rolon-Robles, who  died while  undergoing treatment  at a          hospital operated by defendant-appellee (a municipality).                    The  facts  leading  up  to  Rolon-Robles's demise  are          largely   uncontradicted.      Rolon-Robles  began   experiencing          abdominal pain on May 4, 1990.   The next day, he was admitted to          San  Juan  Municipal  Hospital  for treatment  of  an  intestinal          obstruction.   While being rehydrated in  preparation for surgery          on  May  6, Rolon-Robles  remarked  that the  abdominal  pain had          abated.  The attending physicians took this as an indication that          he  probably had  a  paralytic ileus  rather  than an  intestinal          obstruction.  Consequently, they postponed the scheduled surgery.                    As   the  hours   went  by,  the   patient's  condition          deteriorated.   The doctors reversed their  field, reinstated the          original diagnosis, and operated on May 7.  Rolon-Robles remained          in  stable condition until  later that day,  when an endotracheal          tube,  reinserted  in the  immediate  aftermath  of the  surgery,          snapped.  While a physician attempted to replace the broken tube,          Rolon-Robles   went  into  cardiorespiratory   arrest.    Shortly                                          2          thereafter, he expired.                    The parties draw vastly  different inferences from this          set of facts.   One  series of inferences  prompted plaintiff  to          bring the instant action in Puerto Rico's federal district court.          Invoking diversity jurisdiction, see  28 U.S.C.   1332(a) (1988),                                           ___          she  alleged that  her  father  died  due  to  the  careless  and          negligent  treatment he  received  at the  hospital.   Defendant,          preferring a far more flattering series of inferences, denied the          allegations.                    In  the  course  of  discovery, plaintiff  refined  her          charges  into  four basic  claims.    Three sounded  in  ordinary          negligence:    that  defendant's  agents (the  hospital  and  the          staff), heedless of  their obligation to  exercise due care,  (1)          delayed surgery, (2) misdiagnosed her father's condition, and (3)          left him  unattended during critical stages  of the postoperative          period.   The fourth claim  posited that the  defendant should be          held  strictly liable  for the  ruptured  endotracheal tube.   At          trial, plaintiff attempted to prove her claims.  When she rested,          the district  court granted defendant's motion for  judgment as a          matter  of  law.   See Fed.  R. Civ.  P.  50(a)(1).   This appeal                             ___          followed.                                          II                                          II                    We restate, in capsule form, the principles that govern          judicial consideration of motions under Rule 50(a).                    A trial court, confronted with a motion for judgment as          a matter of law, whether at the end of the plaintiff's case or at                                          3          the close of all the evidence, must scrutinize the proof and  the          inferences reasonably  to be  drawn therefrom  in the  light most          hospitable  to the nonmovant.   See Lowe v.  Scott, 959 F.2d 323,                                          ___ ____     _____          337 (1st  Cir. 1992); Santiago  Hodge v. Parke  Davis & Co.,  909                                _______________    __________________          F.2d 628, 634 (1st Cir. 1990);  Wagenmann v. Adams, 829 F.2d 196,                                          _________    _____          200 (1st Cir. 1987).  In conducting that perscrutation, the court          must refrain from differential  factfinding; that is to  say, the          court must  "not consider  the credibility of  witnesses, resolve          conflicts in testimony, or evaluate  the weight of the evidence."          Wagenmann, 829  F.2d at 200.   A verdict may be  directed only if          _________          the  evidence,  viewed  from   this  perspective,  is  such  that          reasonable minds could not differ as to the outcome.  See Veranda                                                                ___ _______          Beach Club Ltd. Partnership  v. Western Sur. Co., 936  F.2d 1364,          ___________________________     ________________          1383  (1st Cir. 1991); Hubbard v. Faros Fisheries, Inc., 626 F.2d                                 _______    _____________________          196, 199 (1st Cir. 1980).                    When, as now, a disappointed suitor  seeks to set aside          a  directed  verdict, the  court  of  appeals  is constrained  in          precisely  the  same fashion  as the  district  court.   For this          reason, and because  the key question  revolves around the  legal          sufficiency of  the evidence, appellate  review is plenary.   See                                                                        ___          Salve  Regina Coll.  v. Russell,  111 S.  Ct. 1217,  1221 (1991);          ___________________     _______          Jordan Milton Mach., Inc.  v. F/V Teresa Marie, II, 978  F.2d 32,          _________________________     ____________________          34 (1st Cir. 1992).                                         III                                         III                    The  substantive law  of Puerto  Rico controls  in this                                          4          diversity  suit.1   To establish  a prima  facie case  of medical                                              _____  _____          malpractice  under that  law,  a plaintiff  must adduce  evidence          showing  at  least three  separate things:    (1) the  duty owed,          expressed as  the minimum standard of  professional knowledge and          skill  required under  the  circumstances then  obtaining; (2)  a          breach  of that  duty attributable  to the  defendant; and  (3) a          sufficient causal  nexus between  the breach and  the plaintiff's          claimed injury.2  See Sierra Perez v. United States, 779 F. Supp.                            ___ ____________    _____________          637, 643 (D.P.R. 1991);  Crespo v. Hernandez, 121 P.R.  Dec. 639,                                   ______    _________          650  (1988); Medina  Santiago v.  Velez, 120  P.R. Dec.  380, 385                       ________________     _____          (1988).    The  district  court  concluded that  Rolon-Alvarado's          proof, viewed in the light most favorable to her, did not suffice          to establish  any of  these three  elements.   We agree with  the          court below that plaintiff did not prove a prima facie case.                                                     _____ _____                                          A                                          A                                        ____________________               1First Circuit  Local Rule  30.7 provides in  pertinent part          that,  "[w]henever an opinion of the Supreme Court of Puerto Rico          is cited in  a brief  . . .  [and] does not  appear in the  bound          volumes   in  English,  an   official,  certified  or  stipulated          translation thereof with three  conformed copies shall be filed."          In  this  instance, the  parties  have cited  several  such cases          without supplying  translations.  Although we have coped by using          informal  translations of  the  opinions in  question, we  remind          litigants of their obligations under Local Rule 30.7 and forewarn          the  bar  that,  in  the  future,  we  will  insist  upon  strict          observance of the rule.               2The  elements of this cause of action under Puerto Rico law          are comparable to  the elements of a cause  of action for medical          malpractice  elsewhere.  See, e.g., Mills v. Levy, 537 F.2d 1331,                                   ___  ____  _____    ____          1332  (5th  Cir. 1976)  (applying  Louisiana  law); MacDonald  v.                                                              _________          United  States, 767 F. Supp. 1295, 1307 (M.D. Pa. 1991) (applying          ______________          Pennsylvania law); McGuiness v. United States,  738 F. Supp. 566,                             _________    _____________          569  (D.D.C.  1990) (applying  Maryland  law);  Powers v.  United                                                          ______     ______          States, 589  F.  Supp.  1084,  1099  (D.  Conn.  1984)  (applying          ______          Connecticut law).                                          5                    We begin    and end   our  consideration of plaintiff's          first  three  claims  by  focusing on  her  abortive  attempt  to          delineate the duty owed.  In 1973, Puerto Rico jettisoned the so-          called "locality" or "community standard" rule in favor of a more          universal, less  parochial approach to  establishing the standard          of acceptable  care for purposes  of a medical  malpractice suit.          See Valendon  Martinez v. Hospital Presbiteriano,  806 F.2d 1128,          ___ __________________    ______________________          1135-36  (1st Cir. 1986) (discussing effect of Oliveros v. Abreu,                                                         ________    _____          101 P.R. Dec.  209 (1973)).   Today, a physician  is expected  to          possess,  and use, that level of knowledge and skill prevalent in          his  or her  specialty generally,  not simply  the knowledge  and                                 _________          skill commonly displayed in the community or immediate geographic          region where the  treatment is administered.   See Oliveros,  101                                                         ___ ________          P.R.  Dec. at 223,  226-27, translated in  1 P.R.  Sup. Ct. Off'l                                      _____________          Translations 293, at  303, 313.   In other  words, a  health-care          provider has a duty to use the same degree of  expertise as could          reasonably be  expected of a typically  competent practitioner in          the identical specialty under  the same or similar circumstances,          regardless of regional variations in professional acumen or level          of care.                    Under the  law of Puerto  Rico, "there exists  always a          presumption  that   the  treating  physicians  have   observed  a          reasonable degree  of care . . . in the process of giving medical          attention and treatment."  Del Valle Rivera v. United States, 630                                     ________________    _____________          F. Supp. 750, 756 (D.P.R.  1986).  Plaintiff bears the burden  of          refuting  this presumption.   See id.   To do so,  she must first                                        ___ ___                                          6          establish the  physician's duty.   Because medical  knowledge and          training  are  critical  to  demonstrating the  parameters  of  a          health-care provider's duty,  the minimum standard of  acceptable          care is  almost always a  matter of informed  opinion.  Thus,  it          must  ordinarily  be  established   by  expert  testimony.    See                                                                        ___          Oliveros, 1 P.R.  Sup. Ct.  Off'l Translations at  315; see  also          ________                                                ___  ____          Bellecourt  v. United States, ___  F.2d ___, ___  (8th Cir. 1993)          __________     _____________          (applying Minnesota law)  [1993 U.S. App. LEXIS 11,088,  at *11];          Dunning v. Kerzner, 910 F.2d 1009, 1014 (1st Cir. 1990) (applying          _______    _______          Rhode Island law); Crowley v. United States, 773 F. Supp. 98, 102                             _______    _____________          (N.D. Ill. 1991).  No such testimony graces this record.                    To be sure, plaintiff  presented an expert witness, Dr.          Piza.3   But, Dr. Piza did not  testify anent duties or standards          of care.   Rather, he  testified as  to what he  would have  done          differently in managing the  decedent's case.  Medicine, however,          is not  an exact science.   It is, therefore, insufficient  for a          plaintiff in  a  malpractice case  merely  to show  that  another          doctor  would  have  chosen to  treat  the  patient  in a  manner          different  from  the manner  in  which  the attending  physicians          treated  him.   See, e.g.,  Campbell v.  United States,  904 F.2d                          ___  ____   ________     _____________          1188, 1192 (7th  Cir. 1990);  Polikoff v. United  States, 776  F.                                        ________    ______________          Supp. 1417, 1421 (S.D. Cal. 1991); East  v. United States, 745 F.                                             ____     _____________                                        ____________________               3Another   physician,   Dr.  Mercado,   also   testified  in          plaintiff's behalf.  However,  Dr. Mercado did not qualify  as an          expert in  surgery and the  district court limited  his testimony          accordingly.   On appeal, plaintiff does not assign error to this          ruling.    Nothing  in  Dr. Mercado's  remaining  testimony  adds          materially to Dr. Piza's comments or otherwise assists in filling          the standard-of-care void.                                          7          Supp. 1142, 1149 ( D. Md. 1990); Walski v. Tiesengas, 381  N.E.2d                                           ______    _________          279, 285 (Ill. 1978).                    We have  no doubt that  Puerto Rico  would follow  this          rule; indeed, in what  amounts to a variation on  the same theme,          the  Puerto Rico Supreme Court has held that even an acknowledged          error in medical judgment  cannot support a malpractice claim  so          long as the mistake is reasonable.  See Oliveros, 1 P.R. Sup. Ct.                                              ___ ________          Off'l Translations  at  314; see  also  Suarez Matos  v.  Ashford                                       ___  ____  ____________      _______          Presbyterian Community Hosp.,  ___ F.2d ___, ___  (1st Cir. 1993)          ____________________________          [No. 92-1861, slip  op. at 5] (suggesting that, in Puerto Rico, a          mistake   in   diagnosis   will   not    necessarily   constitute          malpractice);  Del Valle  Rivera,  630 F.  Supp. at  756 (stating                         _________________          that, under Puerto Rico's  jurisprudence, a plaintiff who charges          a physician with malpractice  must establish that the defendant's          fault "is more than a mere hindsight possibility").  In sum, tort          law neither holds a doctor to  a standard of perfection nor makes          him  an  insurer  of  his  patient's  well-being.    Professional          standards require  normative judgments,  not merely proof  that a          better way to treat a particular patient could have been devised.                    Against   this   backdrop,   plaintiff's  first   three          statements of claim cannot  survive scrutiny.  As to  the one-day          delay in operating, Dr. Piza made it clear that he would have put          Rolon-Robles under the knife  on May 6 rather than  waiting until          May 7    but he  offered no enlightenment  on the subject  of the          prevailing  standard  by which  decisions on  the timing  of such          operations  might be held to fall outside the range of reasonable                                          8          judgments.    By like  token, while  Dr.  Piza testified  that he          disagreed with the mid-stream change in diagnosis, and the way in          which  the  hospital monitored  the  patient  postoperatively, he          failed  to advance any basis  on which applicable standards could          be fixed or, conversely,  against which defendant's conduct could          be measured.   The mere fact that Dr. Piza  might have selected a          particular  approach or  method  of treatment  does not,  without          more,  establish that  a different  approach  or method,  even if          unsuccessful, fell short of the duty owed.  Nor did the witness's          references to generalities contained in a learned treatise bridge          the gap.                    The short of it  is that, as the district  court found,          the  evidentiary  predicate in  regard  to standards  of  care is          wholly  inadequate; and without such a predicate, the jury had no          legally satisfactory basis for making a reasoned determination as          to  whether defendant's  employees were  negligent in  caring for          Rolon-Robles.  Consequently, plaintiff could not carry her burden          of proof.                    Of  course, the  law  recognizes a  narrowly configured          exception  to  the general  rule  requiring  expert testimony  in          medical malpractice cases.4   Although courts have formulated the          exception in divers  ways    it has been  variously described  as          implicating situations where common  knowledge and experience are                                        ____________________               4Although plaintiff has cited no Puerto Rico cases endorsing          this exception,  we assume  for present purposes,  albeit without          deciding, that  the Puerto  Rico Supreme Court  would follow  the          majority view and adopt the exception.                                          9          all  that is  necessary to  comprehend a  defendant's negligence,          see,  e.g.,  Nixdorf v.  Hicken, 612  P.2d  348, 352  (Utah 1980)          ___   ____   _______     ______          (applying  exception to  loss  of surgical  instrument within  an          incision), or  where negligence  is grossly apparent,  see, e.g.,                                                                 ___  ____          Thomas v. Corso, 288 A.2d 379, 388 (Md. 1972) (applying exception          ______    _____          to  physician's outright failure to attend a patient), or where a          doctor's  conduct  violates a  set standard,  see, e.g.,  Monk v.                                                        ___  ____   ____          Doctors Hosp.,  403  F.2d 580,  583  (D.C. Cir.  1968)  (applying          _____________          exception   to   provider's   contravention   of   manufacturer's          instruction manual for  operation of electrosurgicial machine)             we think that the exception encompasses only those few situations          in which the claimed  medical malpractice is sufficiently blatant          or  patent  that lay  persons,  relying on  common  knowledge and          experience, can legitimately recognize  or infer negligence.  Cf.                                                                        ___          Wagenmann,  829 F.2d  at 218-20  (discussing circumstances  under          _________          which  expert  testimony may  properly  be foregone  in  cases of          claimed legal malpractice).                    However it  may be  fine-tuned, the exception  does not          sweep  so broadly  as  to  avail  the  present  plaintiff.    The          questions  plaintiff  has raised  anent  decedent's care  involve          matters of  timing, differential diagnosis, and hospital protocol            matters which are neither obvious to  the untrained eye nor, by          any  stretch, within  a layman's  ken.   Where, as  here, medical          personnel  make  on-the-spot  decisions, requiring  sophisticated          medical insights, a  jury cannot  be expected  to evaluate  those          judgment calls without the  aid of expert opinion.   And, because                                          10          expert  testimony   is  necessary  to  demonstrate   the  claimed          negligence of defendant's agents under the circumstances at hand,          this  case does  not  fit within  the  isthmian confines  of  the          exception.                    We conclude, therefore, given the paucity of the proof,          especially  the absence of expert testimony concerning applicable          standards of  acceptable care,  that the district  court properly          directed a verdict on plaintiff's first three claims.                                          B                                          B                    We  have  left  for  last  plaintiff's contention  that          liability can  be premised  on the splintered  endotracheal tube.          On this issue, independent  proof of a standard of care might not          be  required  if, as  plaintiff says,  the  doctrine of  res ipsa                                                                   ________          loquitur  pertains.5    Nonetheless, we  think  that  plaintiff's          ________          reliance on the doctrine is mislaid.                    For the  doctrine  of res  ipsa  loquitur to  apply,  a                                          ___________________          plaintiff must  establish that an occurrence  is "(1) . .  . of a          kind  which  does not  ordinarily  take place  unless  someone is          negligent; (2) caused by an  agency or instrumentality within the          defendant's  exclusive control; and (3) not  due to any voluntary                                        ____________________               5Plaintiff initially pleaded strict liability, but abandoned          this approach  at trial in favor  of a res  ipsa loquitur theory.                                                 __________________          In  any event,  it is  hornbook law  that a  health-care provider          cannot be held  strictly liable for a latent defect  in a medical          device manufactured by a third party.  See, e.g., Hoff v. Zimmer,                                                 ___  ____  ____    _______          Inc.,  746  F. Supp.  872,  874 (W.D.  Wis.  1990); NMF  Hosp. v.          ____                                                __________          Azzariti, 573 So.2d 173, 173 (Fla. 1991) (per curiam); Silverhart          ________                                               __________          v. Mt. Zion Hosp., 20 Cal. App.3d 1022, 1028 (Cal. 1971).             ______________                                          11          action  on  the  part  of  the  plaintiff."    De  Leon  Lopez v.                                                         _______________          Corporacion Insular de Seguros, 931 F.2d 116, 123 (1st Cir. 1991)          ______________________________          (applying  Puerto  Rico  law);  accord Colmenares  Vivas  v.  Sun                                          ______ _________________      ___          Alliance  Ins. Co., 807 F.2d  1102, 1104 (1st  Cir. 1986).  Here,          __________________          plaintiff's own  expert, Dr. Piza,  testified categorically  that          the breaking of the tube "could not be foreseen"; that mechanical          mishaps of this sort frequently happen in the absence of provider          negligence; that,  in general, "there is  no possible malpractice          in  the  rupture  of a  mechanical  device";  and  that, in  this          specific  situation,  the attending  physicians  and  nurses were          blameless.  Thus, res  ipsa loquitur has no bearing on  the case.                            __________________          It  follows  that  plaintiff's   fourth  statement  of  claim  is          meritless.                                          IV                                          IV                    We need go no  further.6  On this impoverished  record,          the  district court correctly withheld the case from the jury and          directed a verdict in favor of the defendant.          Affirmed.  See 1st Cir. Loc. R. 27.1.          ________   ___                                        ____________________               6Since  plaintiff failed  to prove  the minimum  standard of          care owed  by defendant to her decedent, we need not dwell on the          other  deficiencies that  the  district court  attributed to  her          case.   It suffices to say  that, absent proof of  the legal duty          owed by a defendant to a plaintiff in a medical malpractice suit,          it is virtually  impossible to prove  either breach or  proximate          cause; breach, after all, depends directly on the contours of the          duty  owed, and proximate cause,  in turn, depends  on the nature          and effect of the breach.                                          12
