
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-1071                             ROBERTO ROMERO LAMA, ET AL.,                                Plaintiffs, Appellees,                                          v.                             DR. PEDRO J. BORRAS, ET AL.,                                Defendants, Appellees.                                 ____________________                        ASOCIACION HOSPITAL DEL MAESTRO, INC.                                Defendant, Appellant.                                 ____________________        No. 93-1072                             ROBERTO ROMERO LAMA, ET AL.                                Plaintiffs, Appellees,                                          v.                             DR. PEDRO J. BORRAS, ET AL.                               Defendants, Appellants.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                     Aldrich and Campbell, Senior Circuit Judges.                                           _____________________                                 ____________________            Alvaro R.  Calderon, Jr.  with whom  Alvaro R.  Calderon, Jr.  Law            ________________________             _____________________________        Offices were on brief for appellant Borras, et al.        _______            Fernando J.  Fornaris with  whom Luis Berrios Amadeo,  and Cancio,            _____________________            ___________________       _______        Nadal &  Rivera were  on brief for  appellant Asociacion  Hospital Del        _______________        Maestro, Inc.            Harold  D. Vincente with whom  Vicente & Cuebas were  on brief for            ___________________            ________________        appellee.                                 ____________________                                  February 25, 1994                                 ____________________                      STAHL, Circuit  Judge.   Defendants-appellants Dr.                             ______________             Pedro  Borras1 and  Asociacion  Hospital del  Maestro, Inc.             (Hospital) appeal from  a jury verdict finding  them liable             for  medical malpractice to  plaintiffs Roberto Romero Lama             (Romero)  and  his  wife, Norma.2    Defendants principally             argue that the district court erred in denying their  post-             verdict motions for judgment as  a matter of law under Fed.             R. Civ. P. 50(b) because  the evidence at trial was legally             insufficient  to   prove  the  prima   facie  elements   of             negligence.   For the  same reason,  the Borras  Defendants             also argue that the court erred in denying their motion for             a new trial  pursuant to Fed.  R. Civ. P.  59.  Finding  no             error, we affirm.                                          I.                                          I.                                          __                                     BACKGROUND                                      BACKGROUND                                     __________                      Since the jury found defendants liable, we recount             the  facts in  the  light  most  favorable  to  plaintiffs,             drawing all reasonable inferences in their favor; we do not             evaluate  the credibility of witnesses or the weight of the             evidence.  Santiago-Negron v. Castro-Davila,  865 F.2d 431,                        _______________    _____________                                            ____________________            1.  In addition to  Dr. Borras, his  wife and their  conjugal            partnership were also named as defendants.  We refer to these            three parties collectively as "the Borras Defendants."            2.  Corporacion Insular de Seguros, Dr. Borras' insurer,  was            also found liable but is not a party to this appeal.                                         -2-                                          2             445 (1st Cir. 1989); Forrestal v. Magendantz, 848 F.2d 303,                                  _________    __________             305 (1st Cir. 1988); Computer Sys. Eng'g v.  Quantel Corp.,                                  ___________________     _____________             740 F.2d 59, 65 (1st Cir. 1984).                      In 1985,  Romero was suffering from  back pain and             searching  for solutions.    Dr.  Nancy  Alfonso,  Romero's             family physician, provided some treatment but then referred             him  to Dr. Borras,  a neurosurgeon.   Dr. Borras concluded             that  Romero had  a herniated  disc and  scheduled surgery.             Prior  to  surgery,  Dr.  Borras  neither  prescribed   nor             enforced a  regime of absolute  bed rest, nor did  he offer             other key components of "conservative treatment."  Although             Dr. Borras instructed Romero, a heavy  smoker, to enter the             hospital one  week before surgery  in order to  "clean out"             his lungs  and strengthen his  heart, Romero was  still not             subjected to standard conservative treatment.                      While  operating  on  April  9,  1986,  Dr. Borras             discovered that Romero had an "extruded" disc and attempted             to  remove the  extruding  material.   Either  because  Dr.             Borras failed to  remove the offending material  or because             he operated at the  wrong level, Romero's original symptoms             returned  in full force  several days after  the operation.             Dr. Borras concluded that a second operation  was necessary             to remedy the "recurrence."                                         -3-                                          3                      Dr.  Borras operated again  on May 15,  1986.  Dr.             Borras did  not order pre-  or post-operative  antibiotics.             It is unclear  whether the second operation  was successful             in curing the  herniated disc.  In  any event, as  early as             May 17,  a nurse's note indicates that the bandage covering             Romero's surgical wound was "very bloody," a symptom which,             according to expert testimony, indicates the possibility of             infection.  On  May 18, Romero was  experiencing local pain             at the  site of  the incision,  another symptom  consistent             with  an infection.   On  May 19,  the bandage  was "soiled             again."     A  more complete  account of  Romero's evolving             condition is  not available because the Hospital instructed             nurses  to  engage  in "charting  by  exception,"  a system             whereby  nurses did not record qualitative observations for             each of the day's three shifts, but instead made such notes             only  when necessary  to chronicle  important changes  in a             patient's condition.3                      On the night of May 20, Romero began to experience             severe discomfort  in  his  back.    He  passed  the  night             screaming in pain.  At some point on May 21, Dr. Edwin Lugo             Piazza,  an attending  physician, diagnosed the  problem as                                            ____________________            3.  Notwithstanding  the  "charting   by  exception"  policy,            nurses  regularly recorded routine  quantitative data such as            the  patient's body temperature.   Romero apparently  did not            develop  a fever (another  possible sign of  infection) until            May 21.                                         -4-                                          4             discitis -- an infection of  the space between discs -- and             responded by initiating antibiotic treatment.  Discitis  is             extremely painful and, since  it occurs in a  location with             little blood  circulation, very slow  to cure.   Romero was             hospitalized for several additional months while undergoing             treatment for the infection.                         After  moving  from Puerto  Rico  to Florida,  the             Romeros filed  this diversity tort action  in United States             District   Court  for   the   District  of   Puerto  Rico.4             Plaintiffs alleged  that Dr. Borras  was negligent  in four             general  areas: (1) failure  to provide proper conservative             medical  treatment;  (2) premature  and  otherwise improper             discharge  after  surgery;  (3)  negligent  performance  of             surgery;  and (4) failure to  provide proper management for             the  infection.   While plaintiffs did  not claim  that the             Hospital was  vicariously liable for any  negligence on the             part  of Dr.  Borras, they  alleged that  the Hospital  was             itself  negligent in two respects:  (1) failure to prepare,             use, and monitor proper medical records; and (2) failure to             provide proper hygiene at the hospital premises.                                            ____________________            4.  In  addition to the  Borras Defendants and  the Hospital,            plaintiffs  named as defendants  several other physicians, as            well  as  their spouses  and  insurers.   The  district court            granted summary judgment in favor of the other defendants and            that decision is not at issue in this appeal.                                         -5-                                          5                      At each  appropriate moment,  defendants attempted             to  remove the case from the jury.  Before trial they moved             for summary judgment.   See  Fed. R.  Civ. P. 56.   At  the                                     ___             close  of plaintiffs'  case and  at  the close  of all  the             evidence, defendants moved for judgment as a matter of law.             See  Fed. R.  Civ. P.  50(a).   After the  jury returned  a             ___             verdict  awarding   plaintiffs  $600,000   in  compensatory             damages, defendants  again sought  judgment as a  matter of             law.  See Fed. R. Civ. P. 50(b).   Additionally, the Borras                   ___             Defendants requested either a new trial or remittitur.  See                                                                     ___             Fed. R. Civ.  P. 50(b) and 59.  At each procedural step and             with respect  to each allegation of negligence, defendants'             primary  argument  was   that  plaintiffs  had  failed   to             establish  the  required  elements  of  duty,  breach,  and             causation.                      The  district court  rebuffed  all of  defendants'             entreaties, ruling that the evidence was legally sufficient             to fuel the jury's deliberations and ultimately  to support             its findings.  Because our  analysis necessarily focuses on             the denial  of the post-verdict  motions for judgment  as a                                         -6-                                          6             matter  of  law,5 we  quote  at  length  from the  district             court's order denying those motions:                           In  reference  to  Dr.  Borras,  the                      evidence,   seen   in  the   light   most                      favorable to the  plaintiffs, allowed the                      jury to at least conclude that Dr. Borras                           ____________________                      failed  to  pursue   a  well-planned  and                      managed,  conservative  treatment  course                      for  Roberto Romero  Lama's back  ailment                      before  exposing  him   to  the  inherent                      dangers  of a  herniated disc  operation.                      Had  such  conservative   treatment  been                      successful,   then    the   post-surgical                      complications  that   unfortunately  took                                              ____________________             5.  We  do not  directly address  the merits of  the Borras             Defendants' pre-verdict  challenges to  the sufficiency  of             the  evidence.  The Borras Defendants' attack on the denial             of  summary  judgment  has  been  overtaken  by  subsequent             events,  namely,  a full-dress  trial  and an  adverse jury             verdict.  In  these circumstances, we will  not address the             propriety of the denial of summary judgment.  See Whalen v.                                                           ___ ______             Unit Rig, Inc., 974 F.2d 1248, 1250 (10th Cir. 1992), cert.             ______________                                        _____             denied, 113 S. Ct. 1417  (1993); Bottineau Farmers Elevator             ______                           __________________________             v. Woodword-Clyde Consultants, 963 F.2d 1064, 1068 n.5 (8th                __________________________             Cir. 1992); Jarrett  v. Epperly, 896 F.2d 1013,  1016 & n.1                         _______     _______             (6th Cir.  1990);  Holley v.  Northrop  Worldwide  Aircraft                                ______     _____________________________             Servs., Inc.,  835 F.2d 1375,  1378 (11th Cir.  1988) ("[A]             ____________             party may not rely on the undeveloped state of the facts at             the  time  [the  party]  moves   for  summary  judgment  to             undermine  a  fully-developed  set  of  trial  facts  which             militate against [the party's] case."); Locricchio v. Legal                                                     __________    _____             Servs.  Corp.,  833  F.2d 1352,  1358-59  (9th  Cir. 1987);             _____________             Glaros  v. H.H.  Robertson Co.,  797 F.2d 1564,  1573 (Fed.             ______     ___________________             Cir. 1986), cert. dismissed, 479 U.S. 1072 (1987).  But see                         _____ _________                         ___ ___             Trustees of Indiana Univ. v. Aetna Casualty & Sur. Co., 920             _________________________    _________________________             F.2d 429, 433 (7th Cir. 1990) (addressing denial of summary             judgment even after  an adverse jury verdict).   Were we to             consider  the issue, we  would find the  Borras Defendants'             position to be  without merit.  For similar  reasons, we do             not separately address  the district court's denial  of the             Borras  Defendants'  Rule 50(a)  motion  for judgment  as a             matter of law, which is either non-appealable at this stage             or resolved by our affirmance of  the denial of defendants'             Rule 50(b) motions.  See Locricchio, 833 F.2d at 1356 n.2.                                  ___ __________                                         -7-                                          7                      place   in    the   operated    vertebral                      interspace   [including   the   infection                      following the  second surgery]  would not                      have occurred.   A reasonable  jury could                      have concluded that the negligent act was                      the recommendation  of a  first operation                      without   the   benefit   of   additional                      conservative treatment . . . .                           As to  Hospital del Maestro,  it was                      entirely   possible  for   the  jury   to                      conclude that the particular way in which                      the medical and nursing records were kept                      constituted evidence  of carelessness  in                      monitoring the  patient after  the second                      operation.   Perhaps the  infection would                      have   been   reported   and   documented                      earlier.     Perhaps  the   hospital  was                      negligent  in  not  dealing appropriately                      with wound inspection and cleaning, [and]                      bandage changing . . . .             Romero Lama v. Borras, No. 91-1055, slip op. at 1-2 (D.P.R.             ___________    ______             Sept.  1, 1992) (order  denying post-verdict motions).   We             find   the  reasoning   of  the   district   court  to   be             substantially sound and therefore affirm the result.                                         II.                                         II.                                         ___                                  STANDARD OF REVIEW                                  STANDARD OF REVIEW                                  __________________                      Our  review of a  denial of a  post-verdict motion             for  judgment as  a matter  of law  is plenary,  yet highly             circumscribed  by the deferential Rule 50(b) standard.  See                                                                     ___             Rolon-Alvarado v.  Municipality of San Juan, 1  F.3d 74, 77             ______________     ________________________             (1st  Cir. 1993).   We  must sustain  the district  court's             denial of a  Rule 50(b) motion for judgment  as a matter of             law, "unless  the  evidence, together  with all  reasonable             inferences in favor of the verdict, could lead a reasonable             person  to only  one conclusion,  namely,  that the  moving                                         -8-                                          8             party was entitled  to judgment."  PH Group  Ltd. v. Birch,                                                ______________    _____             985 F.2d 649, 653 (1st Cir. 1993).                       The  standard of  review for denial  of a  Rule 59             motion  for  new  trial  is  similarly  circumscribed,  but             counsels ample deference  to the district  court's exercise             of  discretion.  There is no  abuse of discretion in such a             case unless "the verdict was so clearly  against the weight             of the evidence  as to amount to a  manifest miscarriage of             justice."  Id. (citations and quotations omitted).                        ___                      The  Borras Defendants  correctly  argue that  the             district court may order a new trial even where the verdict                            ___             is supported by  substantial evidence.  E.g.,  Wagenmann v.                                                     ____   _________             Adams, 829 F.2d 196, 200 (1st Cir. 1987) (citing Hubbard v.             _____                                            _______             Faros Fisheries, Inc., 626 F.2d 196, 200 (1st  Cir. 1980));             _____________________             see generally 11  Charles Alan Wright  & Arthur R.  Miller,             ___ _________             Federal  Practice  and  Procedure     2805-2810,  at  37-77             _________________________________             (1973) (describing traditional alternative grounds for  new             trial, including errors of law as well as misconduct on the             part of  court, counsel,  or jury).   However, there  is no             rule that  the district court must do  so.  Indeed, we have                                           ____             noted  that,   where  the  verdict  rests   on  substantial             evidence, it  is "`only  in a very  unusual case'"  that we             will find that the district court abused its  discretion by             denying a new  trial.  Wagenmann, 829 F.2d  at 200 (quoting                                    _________             Hubbard, 626 F.2d at 200 and Sears v.  Pauly, 261 F.2d 304,             _______                      _____     _____             309 (1st  Cir. 1958)).   In other  words, when  an argument                                         -9-                                          9             that the  evidence was  insufficient forms the  basis of  a             motion for new trial, the  district court is generally well             within the  bounds of its discretion in  denying the motion             using the same reasoning  as in its denial of  a motion for             judgment  as  a matter  of  law.    See Robinson  v.  Watts                                                 ___ ________      _____             Detective Agency, Inc.,  685 F.2d 729, 740 (1st Cir. 1982),             ______________________             cert.  denied,  459  U.S.  1105,  1204  (1983).   In  these             _____  ______             circumstances, then, our review of  the denial of a Rule 59             motion  is essentially coterminous  with our review  of the             denial of a Rule 50(b) motion.  See id.                                               ___ ___                                         III.                                         III.                                         ____                                      DISCUSSION                                      DISCUSSION                                      __________             A.  Medical Malpractice under Puerto Rico Law             _____________________________________________                      We   begin  our   analysis  by   laying  out   the             substantive  law of  Puerto Rico  governing this  diversity             suit.6    To  establish  a  prima  facie  case  of  medical             malpractice  in Puerto Rico,  a plaintiff must demonstrate:                                              ____________________             6.  First   Circuit   Local   Rule   30.7   provides   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.'"  Rolon-Alvarado, 1 F.3d at 77 n.1.  As in                                ______________             Rolon-Alvarado,  the  parties  to   this  appeal  have  not             ______________             furnished translations  of such cases.   In the  future, we             may commission  unofficial translations  and impose  on the             offending   parties   the   costs   incurred   and,   where             appropriate, sanctions.   Failure to  follow Rule 30.7  can             lead  to   delay  while  this  court  engages  in  its  own             translation  efforts, to  uncertainty about the  meaning of             important language, or both.                                         -10-                                          10             (1)  the  basic   norms  of  knowledge  and   medical  care             applicable  to general  practitioners  or specialists;  (2)             proof that  the medical  personnel failed  to follow  these             basic  norms in  the treatment  of the  patient; and  (3) a             causal   relation  between  the  act  or  omission  of  the             physician  and the injury suffered  by the patient.  Sierra                                                                  ______             Perez v.  United  States, 779  F.  Supp. 637,  643  (D.P.R.             _____     ______________             1991);  see  also  Rolon-Alvarado,  1  F.3d  at  77  &  n.2                     ___  ____  ______________             (describing elements of medical malpractice  in Puerto Rico             and noting similarity with other jurisdictions).                      The burden  of a medical  malpractice plaintiff in             establishing  the physician's duty is more complicated than             that  of an  ordinary tort  plaintiff.   Instead of  simply             appealing to  the jury's view  of what is  reasonable under             the  circumstances,  a medical  malpractice  plaintiff must             establish  the relevant  national standard  of  care.   See                                                                     ___             Rolon-Alvarado,  1 F.3d  at  77.   In  adopting a  national             ______________             standard, the Supreme  Court of Puerto Rico  explained that             physicians  are required to provide "[t]hat [level of care]             which, recognizing  the modern  means of communication  and             education,  .  .  .  meets  the  professional  requirements             generally   acknowledged   by  the   medical   profession."             Oliveros v. Abreu, 101 P.R. Dec. 209, 226, 1 P.R. Sup.  Ct.             ________    _____             Off'l Translations 293, 313 (1973).                      Naturally, the trier of fact can rarely  determine             the applicable standard  of care without the  assistance of                                         -11-                                          11             expert testimony.   Rolon-Alvarado,  1 F.3d  at 78  (citing                                 ______________             Oliveros, 1 P.R. Sup. Ct. Off'l Translations at 315).   The             ________             predictable  battle of the  experts then creates  a curious             predicament  for  the  fact-finder,  because  an  error  of             judgment  regarding diagnosis or treatment does not lead to             liability when expert opinion suggests that the physician's             conduct  fell within  a range  of acceptable  alternatives.             See Sierra Perez, 779 F. Supp. at 643-44; Cruz Rodriguez v.             ___ ____________                          ______________             Corporacion  de Servicios del Centro Medico de Puerto Rico,             __________________________________________________________             113 P.R. Dec. ___, ___, 13 P.R. Sup. Ct. Off'l Translations             931,   946  (1983);  Oliveros,   1  P.R.  Sup.   Ct.  Off'l                                  ________             Translations at 315  (holding that physician is  not liable             for  malpractice  when  there is  "educated  and reasonable             doubt" about the appropriate course).  While not allowed to             speculate,  the fact-finder is of  course free to find some             experts  more credible than  others.  See,  e.g., Waffen v.                                                   ___   ____  ______             United States Dep't of Health & Human Servs., 799 F.2d 911,             ____________________________________________             921 (4th Cir. 1986) (applying Maryland law; noting that the             fact-finder  in a medical  malpractice case is  entitled to             decide  the weight  and credibility  of  expert testimony);             Rosario v. United  States, 824 F. Supp. 268,  279 (D. Mass.             _______    ______________             1993)   (applying  Massachusetts   law;  similar)   (citing             Leibovich v. Antonellis, 574 N.E.2d 978, 982 (Mass. 1991)).             _________    __________                      Proof of  causation is  also more  difficult in  a             medical  malpractice case  than  in  a  routine  tort  case             because a jury must often grapple with scientific processes                                         -12-                                          12             that  are unfamiliar and  involve inherent uncertainty.   A             plaintiff must prove,  by a preponderance of  the evidence,             that  the physician's negligent conduct was the factor that             "most  probably"  caused  harm to  the  plaintiff.   Sierra                                                                  ______             Perez, 779  F. Supp. at  643; Cruz Rodriguez, 13  P.R. Sup.             _____                         ______________             Ct.  Off'l Translations  at 960.   "This  fact need  not be             established with mathematical  accuracy[;] neither must all             other cause of damage  be eliminated."  Cruz Rodriguez,  13                                                     ______________             P.R.  Sup.  Ct.  Off'l  Translations at  960-61  (citations             omitted).  As in the case of duty, however, a jury normally             cannot  find  causation  based  on  mere  speculation   and             conjecture;  expert testimony is generally essential.  See,                                                                    ___             e.g., Johns v. Jarrard, 927  F.2d 551, 557 (11th Cir. 1991)             ____  _____    _______             (applying Georgia  law; observing that  medical malpractice             plaintiff must usually present  expert medical testimony on             issue of causation in order to get to a jury).              B.  Negligence of Dr. Borras             ____________________________                      The Borras Defendants claim that plaintiffs failed             to  introduce any evidence  sufficient to prove  either (1)             the relevant  standards of  acceptable medical practice  or             (2) the causal link between Dr. Borras' conduct and harm to             the plaintiffs.  While plaintiffs may not have been able to             substantiate the broad attack outlined  in their complaint,             we focus  here on  only one  allegation of negligence:  Dr.             Borras' failure to provide conservative treatment prior  to             the first operation.                                           -13-                                          13                      Defendants argue that plaintiffs failed to prove a             general   medical   standard   governing   the   need   for             conservative treatment in  a case like that of  Romero.  We             disagree.   Plaintiffs'  chief  expert witness,  Dr. George             Udvarhelyi,  testified   that,  absent  an   indication  of             neurological  impairment, the  standard practice  is  for a             neurosurgeon  to postpone  lumbar  disc  surgery while  the             patient undergoes conservative treatment,  with a period of             absolute  bed  rest as  the  prime ingredient.7    In these             respects, the views of defendants' neurosurgery experts did             not diverge from those of Dr. Udvarhelyi.  For example, Dr.             Luis  Guzman  Lopez  testified  that,  in  the  absence  of             extraordinary   factors,   "all    neurosurgeons   go   for             [conservative treatment] before they finally decide on [an]             operation."8    Indeed,  when  called  by  plaintiffs,  Dr.                                              ____________________             7.  Dr. Udvarhelyi  testified that "[i]n  general, when you             have  a  relatively  mild  protrusion  of  the  disk  [sic]             material,  our policy is that you  provide the patient with             the  possibility  of  a conservative  treatment."    If Dr.             Udvarhelyi's reference to "our policy" merely represented a             personal  view about what  he would have  done differently,             his  statement  would  not  be  sufficient to  establish  a             general  medical standard.   See Rolon-Alvarado, 1  F.3d at                                          ___ ______________             78.   The  jury was  free, however,  to conclude  that "our             policy" referred  to  the policy  shared by  neurosurgeons,             particularly where  nearly all of  defendants' neurosurgery             experts  espoused the same basic "policy." In addition, Dr.             Udvarhelyi later testified, "I couldn't see evidence that a             proper  time  was  given for  the  conservative  management             ______             before deciding surgery."  (Emphasis added).             8.  Defendants  argue  that,   even  if  Dr.   Udvarhelyi's             testimony represents the  generally accepted standard, that                                         -14-                                          14             Borras (who also testified as a neurosurgery expert) agreed             on cross-examination with  the statement that "bed  rest is             normally recommended before surgery is decided in a patient             like Mr. Romero," and claimed that he did give conservative                                                   ___             treatment to Romero.                      In spite of Dr. Borras' testimony to the contrary,             there  was also sufficient  evidence for  the jury  to find             that   Dr.  Borras   failed   to   provide  the   customary             conservative  treatment.    Dr.  Alfonso,  Romero's  family             physician, testified  that  Dr. Borras,  while  aware  that             Romero had  not followed  a program  of absolute  bed rest,             proceeded   with  surgery  anyway.    Although  Romero  was             admitted to the hospital one week before surgery, there was             evidence that  Dr. Borras neither prescribed  nor attempted             to enforce a conservative treatment regime.  In fact, there             was evidence that Dr. Borras' main goal was simply to admit             Romero  for a week  of smoke-free relaxation,  not absolute             bed  rest,   because  Romero's  heavy   smoking  and   mild                                              ____________________             standard does not apply to Romero's case because, according             to some of the defense witnesses, Romero was suffering from                                                      ___             neurological impairments prior  to the first surgery.   Dr.             Guzman,  for example, claimed that Romero "had neurological             deficit  from  the  very  beginning."    In  contrast,  Dr.             Udvarhelyi, who claimed  that he was fully aware  of all of             Romero's  symptoms, opined  that Romero's  symptoms at  the             time did  not suggest a  neurological deficit.  This  was a             disputed factual issue for the  jury to resolve.  We cannot             say that  it would have  been unreasonable for the  jury to             resolve this dispute in plaintiffs' favor.                                         -15-                                          15             hypertension  made him  a high-risk  surgery  patient.   In             short, we agree with the district court that the jury could             reasonably  have  concluded  that  Dr.  Borras   failed  to             institute and manage a proper conservative treatment plan.                      The  issue   of   causation   is   somewhat   more             problematic.  There are two potential snags in the chain of             causation.  First,  it is uncertain that  premature surgery             was  the cause  of  Romero's  infection.     Second, it  is             uncertain whether  conservative treatment  would have  made             surgery  unnecessary.  With  respect to the  first problem,             the Puerto  Rico Supreme Court  has suggested that,  when a             physician  negligently  exposes  a  patient  to  risk-prone             surgery,  the physician is  liable for the  harm associated             with a foreseeable risk.   See Cruz Rodriguez, 13 P.R. Sup.                                        ___ ______________             Ct.  Off'l Translations at  956 ("A treatment  that submits             the  patient to unnecessary and foreseeable risks cannot be             considered  reasonable, when alternate  means to  reduce or                         __________             avoid  them  are  available.").    In   this  case,  it  is             undisputed that discitis  was a foreseeable risk  of lumbar             disc surgery.                         Turning to  the second  area of  uncertainty, we             observe that nearly all of the experts who testified on the             subject  for both  plaintiffs and  defendants  were of  the             opinion  that  conservative treatment  would  eliminate the             need for  surgery in  the overwhelming  majority of  cases.             Nonetheless, defendants  introduced expert  testimony that,                                         -16-                                          16             because   Romero   suffered   from  an   "extruded"   disc,             conservative  treatment  would   not  have  helped.     Dr.             Udvarhelyi testified,  however,  that an  extruded disc  is             indeed amenable to conservative treatment.  With  competent             expert testimony  in the record,  the jury was not  left to             conjure  up its own theories  of causation.  And certainly,             the  jury  was  free  to credit  some  witnesses  more than             others.   The  question is  admittedly close, but  the jury             could have  reasonably found  that Dr.  Borras' failure  to             administer  conservative treatment  was the  "most probable             cause" of the first operation.                      We  conclude  that plaintiffs  introduced  legally             sufficient evidence to support each element of at least one             major  allegation of negligence on the  part of Dr. Borras.             We therefore hold  that the district court  properly denied             the Borras Defendants' Rule 50 and Rule 59 motions.              C.  Negligence of Asociacion Hospital Del Maestro             _________________________________________________                      While  plaintiffs  made  a  number of  allegations             against the Hospital,  we focus on the allegation  that the             failure of hospital nurses to  report on each nursing shift             was  a negligent  cause of the  late detection  of Romero's             infection.9                                              ____________________             9.  Since we do not  reach the issue of the alleged lack of             proper  hygiene at the  hospital, we  need not  discuss the             Hospital's  argument  that  the  district  court  erred  in             allowing  Dr.   Udvarhelyi,  who   qualified   only  as   a             neurosurgery expert  and allegedly  pledged not  to testify                                         -17-                                          17                      The   Hospital  cannot   seriously  dispute   that             plaintiffs introduced  sufficient evidence on  the elements             of  duty  and  breach.    The  Hospital  does  not  contest             plaintiffs' allegation that a regulation of the Puerto Rico             Department  of   Health,  in   force   in  1986,   requires             qualitative  nurses' notes for  each nursing shift.10   Nor             does  the Hospital dispute the charge that, during Romero's             hospital  stay,  the  nurses attending  to  Romero  did not             supply  the  required  notes for  every  shift  but instead             followed the  Hospital's  official policy  of  charting  by             exception.  The  sole question, then, is  whether there was             sufficient evidence for the jury to find that violation  of             the regulation was a proximate cause of harm to Romero.11                      The  Hospital   questions  plaintiffs'   proof  of             causation in two respects.  First, the Hospital claims that             plaintiffs did  not prove  that the  charting by  exception             policy was  a proximate cause  of the delayed  detection of                                              ____________________             against  the  hospital,  to  testify  about the  effect  of             cockroaches in the hospital on the likelihood of infection.             10.  The  regulation itself was not made part of the record             on appeal.             11.   The district  judge suggested that causation  was the             principal issue  for jury consideration  when he instructed             the jury that "violation of [a] law or regulation is not in             itself  enough to constitute negligence absent proof of the             existence  of   the  proximate  cause  between  the  damage             allegedly sustained and  such alleged violation of  the law             and/or of the regulation."   Neither party objected  to the             jury instructions.                                         -18-                                          18             Romero's infection.  Second, the Hospital argues that there             was no causal relationship between the belated diagnosis of             the  infection and any unnecessary harm suffered by Romero.             We address each of these arguments in turn.                        The  Hospital   essentially  argues  that   it  is             uncertain whether the hospital  staff observed, but  failed             to record, any  material symptoms that would  probably have             led an  attending physician to investigate  the possibility             of an  infection at an  earlier stage.  The  Hospital notes             that,  even under  the charting  by  exception policy,  its             nurses regularly recorded such information as the patient's             temperature, vital signs,  and any medication given  to the             patient.   Indeed, there is  some evidence that  Romero did             not have  a fever (one  possible sign of  infection) before             May  21, when Dr. Piazza  diagnosed the infection and began             antibiotic treatment.                      Nonetheless,  there was  evidence  from which  the             jury could have  inferred that, as part of  the practice of             charting  by exception, the nurses did not regularly record             certain  information  important  to  the  diagnosis  of  an             infection,  such as  the  changing  characteristics of  the             surgical  wound  and  the  patient's  complaints  of  post-             operative  pain.  Indeed, one former  nurse at the Hospital             who attended to  Romero in 1986  testified that, under  the             charting  by exception  policy,  she  would  not  report  a             patient's  pain  if  she  either  did  not  administer  any                                         -19-                                          19             medicine  or  simply  gave   the  patient  an  aspirin-type             medication  (as opposed  to a  narcotic).   Further,  since             there was evidence that Romero's hospital records contained             some scattered possible signs of infection that,  according             to Dr. Udvarhelyi, deserved further investigation (e.g., an             excessively bloody bandage  and local pain  at the site  of             the  wound), the jury  could have reasonably  inferred that             intermittent  charting  failed  to   provide  the  sort  of             continuous danger  signals that  would be  the most  likely             spur to early intervention by a physician.                      The Hospital claims, however, that, even if faulty             record-keeping   is  a  cause  of  the  delayed  diagnosis,             plaintiffs  failed to demonstrate a link between the timing             of the diagnosis  and the harm Romero  eventually suffered.             Drawing  all  inferences  in favor  of  the  plaintiffs, it             appears that Romero acquired a wound infection  as early as             May 17 (when a nurse noted a "very bloody"  bandage) or May             19  (when Romero  complained of  pain  at the  site of  the             wound); the wound infection then developed into discitis on             or   about   May   20  (when   Romero   began  experiencing             excruciating back pain).  While  there may have been no way             to  prevent the initial  wound infection, the  key question             then becomes whether  early detection and treatment  of the             wound infection  could  have prevented  the infection  from             reaching the disc  interspace in the critical  period prior             to May 20.                                         -20-                                          20                      Dr.   Udvarhelyi  testified   that  "time   is  an             extremely  important factor" in handling an infection; a 24             hour delay in treatment can  make a difference; and a delay             of  several  days  "carries  a  high-risk  [sic]  that  the             infection  will [not be]  properly controlled."   Here, the             jury  could  have  reasonably inferred  that  diagnosis and             treatment were  delayed at least  24 hours (May 19  to 20),             and perhaps 72 (May 17 to 20).  As a result, the jury could             have  reasonably concluded that the timing of the diagnosis             and  treatment of the wound infection was a proximate cause             of Romero's discitis.                         In  conclusion, we  agree with the  district judge             that this  case "is by  no means the  strongest proposition             for  medical malpractice against . .  . a hospital," Romero                                                                  ______             Lama, slip  op. at 3.   Nevertheless, we  find none of  the             ____             Hospital's  arguments  persuasive  enough  to  disturb  the             verdict.  We hold that plaintiffs met their burden of proof             as  to  the  allegation  that  the  Hospital's  substandard             record-keeping   procedures  delayed   the  diagnosis   and             treatment  of Romero's  wound  infection  at  a  time  when             controlling the wound  infection was likely to  prevent the             development  of the  more serious  discitis.   Accordingly,             there was  no error in  the district court's denial  of the             Hospital's Rule 50(b)  motion for judgment  as a matter  of             law.                                         IV.                                         IV.                                         ___                                         -21-                                          21                                      CONCLUSION                                      CONCLUSION                                      __________                      There  is  no need  to  discuss  defendants' other             assignments of  error.12   For the  foregoing reasons,  the             order of the district court denying defendants' motions for             judgment  as a  matter  of law  and the  Borras Defendants'             motions for new trial is                       Affirmed.                      Affirmed.                      _________                                              ____________________             12.  Appellants'  other  arguments  on  appeal  are   moot,             meritless, or waived.  First, because the denial of summary             judgment is now a  non-issue, see supra note  5, so is  the                                           ___ _____             question  whether  the  district court,  in  ruling  on the             motion for summary judgment, failed to  adhere to the local             rules of  the District of  Puerto Rico in its  treatment of             allegedly  uncontroverted facts.    Second,  we discern  no             reversible  error  in the  district  court's denial  of the             Borras  Defendants'  "informative  motion"  concerning  the             deposition  of  Dr.  Barth Green,  a  neurosurgeon  who was             treating  Romero at  the time  of  the trial,  and who  had             planned  to operate  on Romero  in  1992 in  an attempt  to             relieve Romero's persistent back  pain.  We are puzzled  as             to   how  an   "informative"   motion   can  be   "denied,"             particularly  where leave  of  court  would  appear  to  be             unnecessary, see  Fed. R. Civ.  P. 30(a), and no  party has                          ___             moved for  a protective order,  see Fed. R. Civ.  P. 26(c).                                             ___             But even  if the  district court  abused its  discretion in             curtailing  discovery  of  relevant  material,  the  Borras             Defendants had other means of countering plaintiffs'  proof             of  physical  injury,  and Romero's  condition  in  1992 is             irrelevant  to the compensable  harm suffered by plaintiffs             prior to  1992.  In  short, the Borras Defendants  have not             _____             demonstrated  the  "substantial   prejudice"  necessary  to             justify appellate intervention.  Mack  v. Great Atl. & Pac.                                              ____     _________________             Tea, Inc.,  871 F.2d 179,  186-87 (1st Cir. 1989).   Third,             _________             since  the Borras Defendants argued the issue of remittitur             in  the most perfunctory fashion on  appeal, we deem waived             any  argument about the  excessiveness of  the compensatory             damages.  See FDIC  v. World Univ., Inc.,  978 F.2d 10,  15                       ___ ____     _________________             (1st  Cir. 1992)  (noting  that "issues  adverted  to in  a             perfunctory  manner,  unaccompanied   by  some  effort   at             developed argumentation," may be deemed waived).                                         -22-                                          22
