Ortiz-Olivera v. Doctors' Center Hospital Inc.

• Court: District Court, D. Puerto Rico
• Decided: May 23, 2024
• Docket: 3:21-cv-01169
• Status: Unknown

Opinion

1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF PUERTO RICO

5 SANDRA J. ORTIZ-OLIVERA,

6 Plaintiff,

v. 8 CIVIL NO. 21-1169 (HRV)

9 DOCTORS’ CENTER HOSPITAL, INC., et. al., 10

11 Defendants.

13 MEMORANDUM AND ORDER 14 The present is a diversity jurisdiction medical malpractice action brought by 15 16 Plaintiff Sandra Ortiz-Olivera alleging that she suffered damages at the hands of the co- 17 defendants due to negligence in treating her serious medical conditions. (Complaint, 18 Docket No. 1). More specifically, it is alleged that after undergoing surgery, Plaintiff was 19 discharged from the hospital even though her clinical picture demonstrated that an 20 infection was in progress. Said infection, Plaintiff avers, developed quickly into sepsis. 21 She returned to the hospital approximately three (3) hours later after being found 22 23 unconscious on the floor of her home. Plaintiff maintains that a delay in treating her 24 caused her to go into septic shock and organ failure. According to Plaintiff, she went into 25 cardiac arrest, had to be intubated and endured a hospitalization that lasted over a 26 month. 27 28 1 1 The Defendants have denied liability claiming that the treatment provided to the 2 Plaintiff did not deviate from the established standard of care, nor are any of their actions 3 the proximate cause of Plaintiff’s damages. Trial is set to begin on June 3, 2024. (Docket 4 No. 103). 5 Pending before the court are two motions in limine pertaining the report and 6 7 testimony of plaintiff’s expert, Dr. Pedro Rodríguez Benítez (“Dr. Rodríguez”). 1 8 Codefendant Dr. Manuel Morales Maldonado’s (“Dr. Morales”) moved to preclude Dr. 9 Rodríguez’ report for failing to state the medical standard upon which he based his 10 conclusions. (Docket No. 118). Similarly, codefendant Doctors’ Center Hospital of 11 Manati, Inc.’s (“DCHM”) motion in limine argues that Dr. Rodríguez’ report does not 12 13 specify the manner in which DCHM was negligent or what standard of care applies to its 14 nurses, technicians, and other personnel. (Docket No. 126). Plaintiff opposed. (Docket 15 No. 136). Both Dr. Rodríguez and DCHM replied. (Docket Nos. 140 and 141). Plaintiff 16 filed a surreply. (Docket No. 151). 17 I. Dr. Morales’ motion in limine 18 19 “The touchstone for the admission of expert testimony in federal court litigation 20 is Federal Rule of Evidence 702.” Crow v. Marchand, 506 F.3d 13, 17 (1st Cir. 2007). 21 Rule 702 requires the expert’s testimony to be based on “sufficient facts or data” and 22 “reliable principles and methods.” Fed. R. Evid. 702. “Rule 702 has been interpreted 23 24 25 26 1 Dr. Rodríguez rendered his report on February 27, 2023. (Docket No. 118-2). The Report was not supplemented or amended. 27

28 2 1 liberally in favor of the admission of expert testimony.” Saldana Caban v. Centro Medico 2 del Turabo, Inc., No. CV 22-1019 (GMM), 2023 WL 5122171, at *3, 2023 U.S. Dist. LEXIS 3 140738 (D.P.R. Aug. 10, 2023)(quoting Levin v. Dalva Bros., Inc., 459 F.3d 68, 78 (1st 4 Cir. 2006)). 5 A district court examining the reliability aspect of an expert’s opinion, must 6 7 determine: 1) whether the expert is qualified, 2) whether the opinion is supported by 8 reliable information or knowledge, and 3) whether the opinion is supported by logical 9 scientific reasoning or methodology. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 10 U.S. 579, 589-590, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). 11 As to the first requirement, I conclude that Dr. Rodríguez is qualified to render 12 13 his expert opinion in this case. Dr. Rodríguez’ resume shows that he has a specialty in 14 Internal Medicine and a subspecialty in Cardiology. (Docket No. 118-1). He is Board 15 certified in both disciplines. (Id.). His resume also includes his extensive experience as a 16 practicing physician. Because this is a case about the management of sepsis in an 17 emergency room, I find that Dr. Rodríguez’s educational background and professional 18 19 experience qualify him to render an opinion in this case. 20 The crux of Dr. Morales’ Daubert challenge rests on the second part of the inquiry. 21 He points to deficiencies in his colleague’s expert report, particularly, that it fails to 22 identify the national standard of care or elaborate on how the cited medical literature 23 applies to Dr. Morales’ intervention with the patient. (Docket No. 118 at pgs. 20-21). 24 An expert witness is required to provide a written and signed report that contains: 25 26 “(i) a complete statement of all opinions the witness will express and the basis and 27 reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) 28 3 1 any exhibits that will be used to summarize or support them; (iv) a complete statement 2 of all opinions the witness will express and the basis and reasons for them; (v) a list of all 3 other cases in which, during the previous 4 years, the witness testified as an expert at 4 trial or by deposition; and (vi) a statement of the compensation to be paid for the study 5 and testimony in the case.” Fed. R. Civ. P. 26(a)(2)(B). 6 7 In Puerto Rico, whose substantive law controls this diversity suit,2 “to prevail on a 8 medical malpractice claim, ... a plaintiff must prove by a preponderance of the evidence 9 both that the standard of care was not met, and that the failure to meet an acceptable 10 standard caused the harm.” Gonzalez-Arroyo v. Doctors' Ctr. Hosp. Bayamon, Inc., 54 11 F.4th 7, 14 (1st Cir. 2022)(citing Pagés-Ramírez v. Ramírez–González, 605 F.3d 109, 12 13 113 (1st Cir. 2010)). To establish both elements, “a trier of fact will generally need the 14 assistance of expert testimony.” Id. 15 The duty owed, which is the standard of care owed by physicians to their patients, 16 is based on a national standard and must meet the requirements “generally recognized 17 by the medical profession.” See Noel Martinez et al. v. United States of America, 2020 18 19 WL 5039242, at *4 (D.P.R. 2020); Cortés-Irizarry v. Corporación Insular De Seguros, 20 111 F.3d 184, 189-190 (1st Cir. 1997)(Puerto Rico holds health care professionals to a 21 national standard of care.). 22 The national standard of care may be shown by, for example: “(1) evidence of 23 discussions about the described course of treatment among practitioners outside of 24 25 26 27 2 Summers v. Fin. Freedom Acquisition LLC, 807 F.3d 351, 354 (1st Cir. 2015).

28 4 1 Puerto Rico such as at conventions, meetings or seminars; (2) presentation of relevant 2 data like published protocols and standards; or (3) reliance on peer-reviewed literature 3 (i.e. journals, textbooks, and treatises).” Vargas-Alicea v. Cont'l Cas. Co., No. CV 15-1941 4 (PAD), 2020 WL 3470325 at *3 (D.P.R. June 25, 2020)(citing Cortés-Irizarry, 111 F.3d 5 at 190). “However, an expert does not describe a national standard of care by merely 6 7 stating what he would have done differently.” Id. 8 In his report, Dr. Rodríguez opined that Dr. Morales’ negligence arose from the 9 unnecessary five-hour delay in conducting a proper evaluation and management of the 10 patient. (Docket No. 118-2 at pgs. 10-11). Although his report did not clearly enunciate 11 the standard of care regarding treatment of sepsis in a patient with plaintiff’s medical 12 13 history, Dr. Rodríguez included relevant sources in the bibliography portion pertaining 14 to sepsis management. (Docket 126-6). See Irizarry-Pagan v. Metro Santurce, Inc., No. 15 CV 18-1532 (JAG), 2022 WL 3909158, at *2 (D.P.R. Aug. 31, 2022)(giving weight to the 16 literature evaluated and cited by the expert in determining the national standard of care). 17 Furthermore, his deposition testimony expanded on the standard of care required 18 19 in this case. In response to a question from Dr. Morales’ attorney, he responded that it 20 was “customary” that when a patient goes through triage and has respiratory difficulty, 21 oxygen is placed on the patient automatically. (Docket No. 118-3 at pg. 11; pgs. 75 and 76 22 of Dr. Rodríguez’ deposition.). Dr. Rodríguez also testified that the proper course of 23 action would have been to consult the internal medicine specialist and not start 24 antibiotics until labs were made and the patient was hydrated. (Docket No. 118-3 at pg. 25 26 16; pg. 80 of Dr. Rodríguez’s deposition). Tellingly, when asked specifically whether his 27 testimony was based on his own opinion or in the standard of care, Dr. Rodríguez 28 5 1 responded that “it was really based on the standard of care.” (Docket No. 136-4 at pg. 6; 2 pg. 51 of Dr. Rodríguez’ deposition). 3 An expert report does not need to spell out the “magic words”, i.e., standard of 4 care, to be deemed sufficient. See Saldana Caban, 2023 WL 5122171, at *5 (finding that 5 the expert’s report was “sufficient” even though it did not spell out the applicable 6 7 standard of care); Martinez v. United States, 33 F.4th 20, 29 (1st Cir. 2022)(citing 8 Cortés-Irizarry, 111 F.3d at 190)(finding that the expert’s references to the “accepted 9 clinical practice” was sufficient and discussing that an expert’s mention of “prevailing 10 medical standard” has been deemed, when “read in context,” to constitute a “satisfactory 11 statement” of “the national standard of care.”); Irizarry-Pagan v. Metro Santurce, Inc., 12 13 No. CV 18-1532 (JAG/BJM), 2022 WL 4243567, at *6 (D.P.R. Aug. 8, 2022), report and 14 recommendation adopted, No. CV 18-1532 (JAG), 2022 WL 3909158 (D.P.R. Aug. 31, 15 2022)(“[E]ven highly general references to source material and personal experience 16 were enough to establish that expert testimony had a basis in reliable principles and 17 methods.”). 18 19 Ultimately, Dr. Rodríguez concluded that the delay in treatment “resulted in rapid 20 deterioration, progression and complication of her urosepsis with multiorgan 21 dysfunction, including a non ST elevation Myoeardial [sic] Infarction (NSTEMI), among 22 other complications.” (Docket No. 118-2 at pg. 11). 23 After reviewing his report and deposition testimony, I conclude that Dr. 24 Rodríguez has sufficiently explained how certain deviations from the applicable standard 25 26 of care in Dr. Morales’ intervention with the patient caused the damages claimed in this 27 case. Accordingly, Dr. Morales’ motion in limine is DENIED. 28 6 1 II. DCHM’s motion in limine 2 DCHM argues that Dr. Rodríguez’s report is deficient and unreliable in that it does 3 not specify the standard of care which is applicable to DCHM; nor the manner in which 4 DCHM allegedly breached the same. (Docket No. 126). 5 With regard to DCHM’s negligence, Dr. Rodríguez’ report states as follows: “If it 6 7 is established that the emergency room nurses or technicians did not promptly carry out 8 his [Morales’] medical orders, or timely provided results to him [Morales], as was 9 implied at some point at deposition, the emergency room would also be responsible for 10 that negligence, which made the patient’s condition worse.” (Docket No. 126-1 at pgs. 10- 11 11). 12 13 During his deposition, counsel for DCHM asked Dr. Rodríguez whether he had 14 made a specific mention of any deviation from the standard of care of the nursing staff 15 at DCHM. (Docket No. 126-2 at pg. 4; pg. 88 of Dr. Rodríguez’ deposition). He responded 16 that “if” it was the case that the nursing and administrative staff did not carry out the 17 medical orders on time, then there could be negligence on the hospital’s part. (Id.). 18 19 However, he affirmed that his report did not specifically mention any deviation of care 20 on the actions of the technicians or any ancillary services of the hospital for lack of 21 information (Id.). In short, Dr. Rodríguez lacked the necessary information from the 22 record to make an assessment regarding the specific deviations of care and gave a blanket 23 conclusion based on a set of assumptions. 24 Given that Dr. Rodríguez did not identify any specific deviation from the standard 25 26 of care as it pertains DCHM, nor did he establish a causation between the patient’s 27 deterioration and the hospital’s actions, I grant DCHM’s motion in limine. See, for 28 7 1 contrast, Vazquez v. Hosp. Hermanos Melendez, Inc., No. CV 20-1387 (GMM), 2023 2 WL 6450462, at *9 (D.P.R. Sept. 30, 2023)(discussing how the expert witness explained 3 that the hospital deviated from the applicable standard of care when it did not timely 4 transfer patient to another hospital that had a neurologist on staff); Rodriguez v. Hosp. 5 San Cristobal, Inc., 91 F.4th 59, 74–75 (1st Cir. 2024)(noting that even though the expert 6 7 report ascribed responsibility to the hospital for “poor hygiene,” nothing in the report 8 tied those “hygiene-related failures” to plaintiff’s premature death.). 9 Thus, Dr. Rodríguez is precluded from rendering an expert opinion as to the 10 deviations of the standard of care by DCHM’s nurses, technicians and/or ancillary 11 services. 12 13 III. Conclusion 14 For the reasons set forth herein, the Dr. Morales’ Motion in Limine (Docket No. 15 118) is DENIED, while DCHM’s Motion in Limine to limit the expert testimony of Dr. 16 Rodríguez (Docket No. 126) is GRANTED. 17 SO ORDERED. 18 19 In San Juan, Puerto Rico this 23rd day of May, 2024. 20 S/Héctor L. Ramos-Vega HÉCTOR L. RAMOS-VEGA 21 UNITED STATES MAGISTRATE JUDGE

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