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.

________________________
__________________________
Offices were on brief for appellant Borras, et al.
_______
Fernando J. Fornaris with whom Luis Berrios Amadeo, and Canc
_____________________
___________________
____
Nadal & Rivera were on brief for appellant Asociacion Hospital
_______________
Maestro, Inc.
Harold D. Vincente with whom Vicente & Cuebas were on brief
___________________
________________
appellee.
____________________
February 25, 1994
____________________

STAHL, Circuit Judge.

______________
Pedro

Borras1 and

Asociacion

(Hospital) appeal from

for

and

his

Hospital del

a jury verdict finding

medical malpractice to

(Romero)

Defendants-appellants Dr.
Maestro, Inc.
them liable

plaintiffs Roberto Romero Lama

wife, Norma.2

Defendants principally

argue that the district court erred in denying their

verdict motions for judgment as
R. Civ. P. 50(b) because

post-

a matter of law under Fed.

the evidence at trial was legally

insufficient

to

prove

negligence.

For the

the

prima

same reason,

facie

elements

the Borras

of

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
evidence.

the credibility of witnesses or the weight of the

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,
also found liable but is not a party to this appeal.
-22

was

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,
searching

Romero was suffering from

for solutions.

Dr.

Nancy

back pain and

Alfonso,

Romero's

family physician, provided some treatment but then referred

him

to Dr. Borras,

that

Romero had

Prior

to

a herniated

surgery,

enforced a

a neurosurgeon.

Dr.

disc and

Borras

regime of absolute

Dr. Borras concluded

scheduled surgery.

neither

prescribed

nor

bed rest, nor did

he offer

other key components of "conservative treatment."

Although

Dr. Borras instructed Romero, a heavy

hospital one
his lungs

week before surgery

and strengthen his

smoker, to enter the

in order to

"clean out"

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

Borras failed to
he operated at the
returned

material.

Either

because

remove the offending material

Dr.

or because

wrong level, Romero's original symptoms

in full force

several days after

Dr. Borras concluded that a second operation

to remedy the "recurrence."

the operation.
was necessary

-33

Dr.
Borras did

Borras operated again

not order pre-

on May 15,

or post-operative

It is unclear

whether the second operation

in curing the

herniated disc.

May 17,

In

1986.

Dr.

antibiotics.
was successful

any event, as

early as

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.
at the
with

On

May 18, Romero was

site of

the incision,

an infection.

again."

condition is
nurses

to

whereby

On

another symptom

May 19,

more complete

experiencing local pain

the bandage

account of

consistent
was "soiled

Romero's evolving

not available because the Hospital instructed

engage

in "charting

by

exception,"

a system

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
screaming in pain.
Piazza,

in

his

back.

He

passed

the

night

At some point on May 21, Dr. Edwin Lugo

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.
-44

discitis -- an infection of

the space between discs -- and

responded by initiating antibiotic treatment.

extremely painful and, since
little blood

it occurs in a

circulation, very slow

to cure.

Discitis

is

location with
Romero was

hospitalized for several additional months while undergoing

treatment for the infection.
After
Romeros filed

moving

from Puerto

Rico

this diversity tort action

to Florida,

the

in United States

District

Court

for

Plaintiffs alleged

the

that Dr. Borras

general

areas: (1) failure

medical

treatment;

discharge
surgery;
the

after

surgery;

of

Puerto

was negligent

Rico.4
in four

to provide proper conservative

(2) premature

and (4) failure to

infection.

District

(3)

and

otherwise improper

negligent

performance

of

provide proper management for

While plaintiffs did

not claim

that the

Hospital was

vicariously liable for any

negligence on the

part

Borras, they

the Hospital

itself

of Dr.

alleged that

negligent in two respects:

was

(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.
-55

At each

appropriate moment,

defendants attempted

to

remove the case from the jury.

for summary judgment.

close

See
___

of plaintiffs'

Before trial they moved

Fed. R.

case and

at

Civ. P. 56.
the close

At

the

of all

the

evidence, defendants moved for judgment as a matter of law.

See
___

Fed. R.

verdict

Civ. P.

awarding

damages, defendants
law.

50(a).

plaintiffs

After the

jury returned

$600,000

in

again sought

compensatory

judgment as a

See Fed. R. Civ. P. 50(b).

___

matter of

Additionally, the Borras

Defendants requested either a new trial or remittitur.

See
___

Fed. R. Civ.

P. 50(b) and 59.

with respect

to each allegation of negligence, defendants'

primary

argument

establish

the

was

At each procedural step and

that

required

plaintiffs

elements

of

had

duty,

failed

to

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
its findings.
the denial

Because our

to support

analysis necessarily focuses on

of the post-verdict

motions for judgment

as a

-66

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

______
_____________________________
835 F.2d 1375, 1378 (11th Cir. 1988) ("[A]

Servs., Inc.,
____________
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.
___ __________
-77

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

of

be

reasoning

the

district

court

to

substantially sound and therefore affirm the result.

II.
II.
___
STANDARD OF REVIEW
STANDARD OF REVIEW
__________________
Our
for

review of a

judgment as

circumscribed

Cir. 1993).

denial of a
law, "unless

of law

post-verdict motion

is plenary,

yet highly

by the deferential Rule 50(b) standard.

Rolon-Alvarado v.
______________
(1st

a matter

denial of a

Municipality of San Juan, 1

________________________
We

must sustain

the

evidence, together

F.3d 74, 77

the district

Rule 50(b) motion for judgment

See
___

court's

as a matter of

with all

reasonable

inferences in favor of the verdict, could lead a reasonable

person

to only

one conclusion,
-8-

namely,

that the

moving

party was entitled

to judgment."

PH Group Ltd. v. Birch,

______________
_____

985 F.2d 649, 653 (1st Cir. 1993).

The
motion

for

standard of
new

trial

counsels ample deference

of

discretion.

review for denial

is

similarly

justice."

but

court's exercise

abuse of discretion in such a

case unless "the verdict was so clearly

of the evidence

Rule 59

circumscribed,

to the district

There is no

of a

as to amount to a

against the weight

manifest miscarriage of

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
_____________________
see generally 11
___ _________
Federal

Practice

Charles Alan Wright

and

Procedure

Cir. 1980));

& Arthur R.
2805-2810,

Miller,
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,

rule that
noted

or jury).

However, there

the district court must do

____

that,

where

evidence, it

the

is "`only

verdict
in a very

so.

rests

Indeed, we have
on

trial.

Wagenmann, 829 F.2d

_________

Hubbard, 626 F.2d at 200 and Sears v.

_______
_____
309 (1st

Cir. 1958)).

In other

substantial

unusual case'"

will find that the district court abused its

denying a new

is no

that we

discretion by
at 200 (quoting

Pauly, 261 F.2d 304,

_____

words, when

an argument

-99

that the

evidence was

insufficient forms the

motion for new trial, the

within the

bounds of its discretion in

as

a matter

Detective Agency, Inc.,

district court is generally well

using the same reasoning

judgment

basis of

denying the motion

as in its denial of
of

law.

a motion for

See Robinson
___ ________

v.

Watts
_____

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

with our review

is essentially coterminous

denial of a Rule 50(b) motion.

of the

See id.
___ ___

III.
III.
____
DISCUSSION
DISCUSSION
__________
A. Medical Malpractice under Puerto Rico Law
_____________________________________________
We

begin

substantive

law of

suit.6

To

malpractice

our

analysis

Puerto Rico

establish

in Puerto Rico,

prima

by

laying

out

governing this
facie

case

the

diversity
of

medical

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

______________
the parties to
this appeal have not

Rolon-Alvarado,
______________
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.
-1010

(1)

the

basic

norms

applicable

to general

proof that

the medical

basic

norms in

causal

Perez v.
_____
1991);

knowledge

practitioners

between

the

act

United States, 779

______________
also
____

F.

Rolon-Alvarado,
______________

medical

(2)

to follow

these

patient; and

(3) a

or

omission

of

by the patient.
Supp. 637,
1

care

or specialists;

of the

and the injury suffered

see
___

and

personnel failed

the treatment

relation

physician

of

F.3d

(describing elements of medical malpractice

643
at

the

Sierra
______
(D.P.R.

77

&

n.2

in Puerto Rico

and noting similarity with other jurisdictions).

The burden
establishing
that

of an

plaintiff.

the jury's view

circumstances,

establish

malpractice plaintiff in

the physician's duty is more complicated than

ordinary tort

appealing to
the

of a medical

Rolon-Alvarado,
______________

of what is

a medical

the relevant
1 F.3d

Instead of

malpractice

national standard
at

77.

In

simply

reasonable under
plaintiff must
of

care.

adopting a

See
___

national

standard, the Supreme

physicians

Court of Puerto Rico

explained that

are required to provide "[t]hat [level of care]

which, recognizing
.

the modern

education,

meets

generally

acknowledged

means of communication

the
by

professional
the

medical

and

requirements
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
the applicable standard

of care without the

determine

assistance of

-1111

expert testimony.

Rolon-Alvarado,
______________

1 F.3d

at 78

(citing

Oliveros, 1 P.R. Sup. Ct. Off'l Translations at 315).

________
predictable

battle of the

predicament

for

judgment

the

experts then creates

fact-finder,

because

an

The

a curious
error

of

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);

Translations at 315
for

malpractice

Oliveros,
________

P.R.

experts

Ct.

(holding that physician is

when

there is

"educated

doubt" about the appropriate course).

speculate,

Sup.

the fact-finder is of

more credible than

Off'l

not liable

and reasonable

While not allowed to

course free to find some

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
decide

in a medical

the weight

malpractice case is

and credibility

of

expert testimony);

Rosario v. United States, 824 F. Supp. 268,

_______
______________
1993)

(applying

Massachusetts

law;

entitled to

279 (D. Mass.

similar)

(citing

Leibovich v. Antonellis, 574 N.E.2d 978, 982 (Mass. 1991)).

_________
__________
Proof of
medical

causation is

malpractice case

than

also more
in

difficult in

routine

tort

case

because a jury must often grapple with scientific processes

-1212

that

are unfamiliar and

plaintiff must prove,

that

by a preponderance of

the evidence,

the physician's negligent conduct was the factor that

"most

probably"

Perez, 779
_____
Ct.

involve inherent uncertainty.

caused

F. Supp. at

Off'l Translations

harm to

P.R.

Sup.

omitted).
cannot

Ct.

Off'l

plaintiff.

643; Cruz Rodriguez, 13

______________
at 960.

established with mathematical

other cause of damage

the

"This

Sierra
______
P.R. Sup.

fact need

not be

accuracy[;] neither must all

be eliminated."
Translations at

Cruz Rodriguez,
______________
960-61

13

(citations

As in the case of duty, however, a jury normally

find

conjecture;

causation

based

speculation

and

expert testimony is generally essential.

See,
___

e.g., Johns v. Jarrard, 927

____ _____
_______
(applying Georgia

on

mere

F.2d 551, 557 (11th Cir. 1991)

law; observing that

plaintiff must usually present

medical malpractice

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

the relevant

standards of

sufficient to prove

either (1)

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

we focus

here on

only one

in their complaint,

allegation of negligence:

Dr.

Borras' failure to provide conservative treatment prior

to

the first operation.

-1313

Defendants argue that plaintiffs failed to prove a

general

medical

standard

conservative treatment in
disagree.

governing

the

a case like that of

Plaintiffs'

chief

expert witness,

testified

that,

absent

Udvarhelyi,
neurological

impairment, the

neurosurgeon

to postpone

an

disc

bed

rest as

the

Romero.

We

Dr. George

is

of

for a

surgery while

patient undergoes conservative treatment,

absolute

for

indication

standard practice

lumbar

need

the

with a period of

prime ingredient.7

In these

respects, the views of defendants' neurosurgery experts did

not diverge from those of Dr. Udvarhelyi.

For example, Dr.

Luis

the

Guzman

extraordinary

Lopez

testified

factors,

"all

that,

in

neurosurgeons

absence

of

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
-1414

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

that

Dr.

Borras

conservative

evidence for

failed

treatment.

physician, testified

that

Romero had

not followed

proceeded

with

surgery

to
Dr.

the jury

provide
Alfonso,

Dr. Borras,

the

to find
customary

Romero's
while

family

aware

a program

of absolute

anyway.

Although

that

bed rest,
Romero

was

admitted to the hospital one week before surgery, there was

evidence that

Dr. Borras neither prescribed

to enforce a conservative treatment regime.

nor attempted
In fact, there

was evidence that Dr. Borras' main goal was simply to admit
Romero
bed

for a week

rest,

because

of smoke-free relaxation,
Romero's

heavy

smoking

not absolute
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.
-1515

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

problematic.
causation.
was

First,
of

uncertain whether

Romero's

surgery,

somewhat

more

premature surgery

infection.

Second, it

conservative treatment
With

negligently

with a foreseeable risk.

patient

liable for the

is
made

first problem,

has suggested that,

exposes

the physician is

would have

respect to the

Rico Supreme Court

physician

is

it is uncertain that

unnecessary.

the Puerto

causation

There are two potential snags in the chain of

the cause

surgery

of

to

when a

risk-prone

harm associated

See Cruz Rodriguez, 13 P.R. Sup.

___ ______________

Ct.

Off'l Translations at

the

patient to unnecessary and foreseeable risks cannot be

considered
avoid

956 ("A treatment

reasonable, when alternate

__________

them

are

available.").

undisputed that discitis

In

that submits

means to
this

reduce or

case,

was a foreseeable risk

it

is

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

opinion

that

need for

plaintiffs and

defendants

conservative treatment

surgery in

would

the overwhelming

Nonetheless, defendants

were of

eliminate the

majority of

introduced expert

the

cases.

testimony that,

-1616

because

Romero

conservative

suffered

treatment

Udvarhelyi testified,

from

would

an

not

however,

"extruded"
have

that an

helped.

conjure
the

in the record,

up its own theories

jury

was

others.

The

free

question is

With

the jury was not

of causation.

to credit

some

reasonably found

that Dr.

administer

conservative treatment

witnesses

competent
left to

more than
the jury

Borras' failure

was the

is

And certainly,

admittedly close, but

could have

Dr.

extruded disc

indeed amenable to conservative treatment.

expert testimony

disc,

to

"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

against the Hospital,

made

a negligent

number of

allegations

we focus on the allegation

failure of hospital nurses to

was

that the

report on each nursing shift

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
-1717

The

Hospital

plaintiffs introduced
of

duty

and

cannot

seriously

dispute

sufficient evidence on

breach.

The

Hospital

does

that

the elements
not

contest

plaintiffs' allegation that a regulation of the Puerto Rico

Department
qualitative

of

Health,

in

nurses' notes for

force

in

1986,

requires

each nursing shift.10

Nor

does

the Hospital dispute the charge that, during Romero's

hospital
supply

stay,
the

nurses attending

required

followed the
exception.

the

notes for

Hospital's
The

to

every

official policy

sole question, then, is

Romero

shift
of

did not

but instead
charting

by

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

causation in two respects.

plaintiffs did
policy was

not prove

that the

to

proof

of

First, the Hospital claims that

a proximate cause

____________________
against the hospital,

plaintiffs'

charting by

of the delayed

testify

about the

exception

detection of

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.
-1818

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

uncertain whether the hospital

to record, any
led an

argues

attending physician to investigate

infection at an

that,

even under

earlier stage.

the charting

it

staff observed, but

material symptoms that would

of an

that

by

is

failed

probably have
the possibility

The

Hospital notes

exception policy,

its

nurses regularly recorded such information as the patient's

temperature, vital signs,
patient.

Indeed, there is

not have
May

and any medication given

a fever (one

some evidence that

possible sign of

21, when Dr. Piazza

to the

Romero did

infection) before

diagnosed the infection and began

antibiotic treatment.
Nonetheless,
jury could have
charting
certain

operative

from which

inferred that, as part of

information
such as
wound
pain.

who attended to
charting

evidence

the

the practice of

by exception, the nurses did not regularly record

infection,
surgical

there was

important
the

and

to

changing

the

patient's

Indeed, one former

Romero in 1986

by exception

policy,

the

diagnosis

of

characteristics of
complaints

of

the
post-

nurse at the Hospital

testified that, under

she

an

would

not

report

the
a

patient's

pain

if

she

either

did

not

administer

any

-1919

medicine

or

medication

simply

gave

(as opposed

the

to a

patient

an

narcotic).

aspirin-type

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
the

wound), the jury

intermittent

at the site

could have reasonably

charting

continuous danger

and local pain

failed

to

signals that

inferred that

provide

would be

of

the

sort

the most

of

likely

spur to early intervention by a physician.

The Hospital claims, however, that, even if faulty
record-keeping
plaintiffs

is

all

cause

of

the

delayed

diagnosis,

failed to demonstrate a link between the timing

of the diagnosis
Drawing

and the harm Romero

inferences

in favor

of

eventually suffered.
the

plaintiffs, it

appears that Romero acquired a wound infection

May 17 (when a nurse noted a "very bloody"

as early as

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

excruciating back pain).

to

While

prevent the initial

then becomes whether

wound infection

began

experiencing

there may have been no way

wound infection, the

key question

early detection and treatment

could

reaching the disc

Romero

have prevented

of the

the infection

interspace in the critical

from

period prior

to May 20.
-2020

Dr.
extremely

Udvarhelyi

testified

that

"time

is

an

important factor" in handling an infection; a 24

hour delay in treatment can

make a difference; and a delay

of

several

infection
jury

could

days

"carries

will [not be]

have

treatment were

high-risk

[sic]

properly controlled."

reasonably inferred

delayed at least

and perhaps 72 (May 17 to 20).

that

that

the

Here, the

diagnosis and

24 hours (May 19

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
that this
for

conclusion, we
case "is by

district judge

no means the

strongest proposition

medical malpractice against . .

. a hospital," Romero
______

Lama, slip
____

op. at 3.

Hospital's

arguments

verdict.
as

agree with the

to

Nevertheless, we
persuasive

enough

find none of
to

disturb

the
the

We hold that plaintiffs met their burden of proof

the

allegation

record-keeping
treatment

procedures

of Romero's

controlling the wound

development
there was

that

of the

Hospital's

delayed

the

wound

infection

more serious

substandard

diagnosis
at

infection was likely to

no error in

Hospital's Rule 50(b)

the

discitis.

time

law.
IV.
IV.
___
-2121

when

prevent the
Accordingly,

the district court's denial

motion for judgment

and

of the

as a matter

of

CONCLUSION
CONCLUSION
__________
There
assignments of

is

no need

error.12

to

discuss

For the

defendants' other

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.
Tea, Inc.,

871 F.2d 179,

Mack v. Great Atl. & Pac.

____
_________________
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).
-2222