Pacheco v. Government of the Capital

93 P.R. 455
CourtSupreme Court of Puerto Rico
DecidedApril 18, 1966
DocketNo. R-63-89
StatusPublished

This text of 93 P.R. 455 (Pacheco v. Government of the Capital) is published on Counsel Stack Legal Research, covering Supreme Court of Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pacheco v. Government of the Capital, 93 P.R. 455 (prsupreme 1966).

Opinion

Mr. Justice Pérez Pimentel

delivered the opinion of the Court.

The heirs of Nicolasa Diaz Mojica filed an action against the Government of the Capital claiming damages suffered as a result of their predecessor’s death. In the complaint they alleged, in synthesis, that Nicolasa Diaz Mojica died on March 27, 1950 as a result of an anaphylactic shock caused by an achromycin shot administered to her on said day in the out-patient clinic of Puerta de Tierra, property of and operated by the Government of the Capital; that the death of Mrs. Diaz Mojica was caused by the faulty and negligent acts and omissions of the Government of the Capital. As specific acts of negligence they alleged (1) that they failed to make the tests indicated by the medical science prior to injecting the achromycin shot to Mrs. Diaz Mojica and (2) that the defendant government “failed to maintain or keep available in said clinic the minimum medical facilities that science and prudence require to have at hand for use even in case where, notwithstanding having previously made the indispensable tests for the verification of the sensitivity to said injection, a shock might come unexpectedly requiring immediate treatment, as in the present case, with oxygen equipment, etc. and others, which would prevent the death of the patient thus affected.”

The complaint was answered and the trial was held on the merits; the trial court rendered judgment dismissing the complaint after making the following

“Findings of Fact
That on March 25, 1958, Nicolasa Diaz Mojica, wife of plaintiff Federico Pacheco and legitimate mother of coplaintiffs, appeared at the Municipal Hospital in Santurce, which is operated by the Government of the Capital, to receive medical [457]*457treatment for an ailment of the throat which was diagnosed as sinusitis, laryngitis, pharyngitis, for which Dr. Víctor M. Quinones prescribed four (4) achromycin shots, the usual treatment in the medical practice in the community.
That Dr. Quiñones submitted the patient to an interrogatory in relation to the use of antibiotics, such as achromycin, and she answered ‘that she never had adverse reactions to them.’ He asked her whether she had ever had hives, dizziness, etc. to which she answered negatively. That next day she appeared at the clinic in Puerta de Tierra, property of the Government of the Capital, to get one of the achromycin shots prescribed by Dr. Quiñones taking along with her the injections and the prescription. There were no achromycin injections in the clinic. That the nurse made the skin test, the usual and normal practice for the administration of antibiotics, and it gave a negative reaction, for which reason the nurse proceeded to give her the first achromycin shot which she assimilated very well.
That next day, March 27, about 8:00 a.m. Nicolasa Diaz Mojica returned to the clinic to get the second achromycin shot, which was given to her by the same nurse. The patient went out and returned right away and sat down. The nurse asked her whether she was feeling sick to which she answered affirmatively. Immediately, the nurse called an ambulance, but as it was delayed she called a taxi and they went to the Municipal Hospital. Upon arriving at the hospital the lady died. The cause of her death was an anaphylactic shock, although it has never been known that achromycin has caused the latter.
The anaphylactic shock is produced by injecting into the body a foreign matter which being originally an antibiotic transforms itself into an antigen. In this case the achromycin is originally an antibiotic and when it is injected it is transformed into an antigen. In receiving the antigen the body develops what in medical terms are known as antibodies which attack the antigen thus producing the anaphylactic shock.
An adverse reaction to antibiotics like achromycin cannot be predicted even when the patient is submitted to a skin test and even when the patient has been injected on several occasions with the antibiotic, since it is an accepted medical principle that the test is not reliable, and it is likewise an accepted medical principle that even when the patient receives certain quantities of such antibiotics without having adverse reactions, a certain [458]*458point may be reached where the latter may develop an allergy thereto which may cause his death.
The test made in these cases is not controlling. The probabilities are that if a shot has not produced reaction, the others will not either. The detailed history given by the patient is more decisive than the skin test.” (Tr. Ev. pp. 45 to 47.)

As legal grounds the trial court based its decision (1) on the doctrine established in the case of Rivera v. Dunscombe, 73 P.R.R. 764, 782 (1952); (2) in that the doctrine of res ipsa loquitur is not applicable, as a general rule, in cases of “malpractice” with the only exception of such cases in which, the “malpractice” occurs while the patient is unconscious and his body is under the doctor’s control, and (3) that the facts do not establish negligent acts or omissions on the part of defendant.

We agree with the trial court in that defendant’s negligence is not inferred from the facts proved, and consequently the doctrine of res ipsa loquitur is not applicable. In Hermida v. Feliciano, 62 P.R.R. 54 (1943) and in other subsequent cases we have said that there are at least three requirements to apply said doctrine: (1) the accident ordinarily would not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant: (3) it must not have been due to any voluntary action on the part of plaintiff. We added in Kirchberger v. Gover, 76 P.R.R. 851 (1954), that the doctrine was not applicable and there was no presumption of negligence where the facts showed that there was some other probable cause of the accident from which it may be inferred that there was no negligence and where the evidence was compatible with the probability of absence of negligence. “As may be observed [we said in Community Partnership v. Presbyterian Hospital, 88 P.R.R. 379 (1963)] the principle supra contemplates that against the inference of negligence — probable cause of the accident— [459]*459there should appear another cause from which, because it is probable, it may be inferred that there was no negligence. The possibility of the occurrence of an act would not be sufficient evidence to consider controverted the inference to be drawn from the occurrence of certain facts under certain circumstances on the basis of the doctrine of res ipsa loqui-tur.”

In the present case the first element of the doctrine is absent. It cannot be inferred, from the death of a person as a result of an anaphylactic shock produced by the injection of antibiotics, that there was any negligence whatsoever, where-the facts, as in this case, show (1) that the doctor who prescribed the antibiotic knew, through the interrogatory to the patient, that the latter was not allergic to antibiotics; (2) that the prescribed antibiotic was the proper treatment for the patient’s ailment; (3) that prior to injecting the antibiotic to the patient the skin test was made giving negative results; (4) the first antibiotic shot injected had no reaction on the patient.

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93 P.R. 455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pacheco-v-government-of-the-capital-prsupreme-1966.