The United States Court of Appeals for the First Circuit (“Federal Appellate Court”), in its opinion dated April 21, 2021, held: “We conclude that a reasonable jury could have found that, despite exercising due diligence to acquire the knowledge needed to sue, Plaintiffs nevertheless did not obtain that knowledge until sometime after one year prior to filing suit. Accordingly, the dismissal of the case is reversed, the judgment for Defendants is vacated, and the case is remanded to the district court for reinstatement of the verdict.”
The plaintiff, Luz Meléndez Colón (“Meléndez”), had a series of surgeries performed by Dr. Julio Rosado Sánchez (“Dr. Rosado”), a neurosurgeon, while she was a resident of Puerto Rico. Subsequently, the plaintiff’s son, Ramos, chose to bring Meléndez with him to Georgia for further treatment and requested her records from Dr. Rosado to facilitate a transfer of care, to which Dr. Rosado agreed. Nevertheless, Dr. Rosado did not transmit copies of Meléndez’s records to either Ramos or Meléndez at that time. Rather, it was only after multiple messages to Dr. Rosado personally and to his office, along with a complaint regarding the delay to the Medical Disciplinary and Licensing Board and associated hearing before the Municipal Court of San Juan, that the plaintiff’s other son, Herminio, received a copy of Meléndez’s records, on August 22, 2014.
Upon Ramos’s receipt of the records, Meléndez traveled to Georgia in September 2014 to stay with Ramos and seek additional medical treatment. In Georgia, Dr. Daniel Refai performed surgery on the plaintiff on December 18, 2014, after which the plaintiff experienced substantial improvement such that she was able to lie flat, sit, and walk with assistance. The plaintiff was instructed by the hospital to strictly limit her motion for six weeks following the surgery, and ultimately underwent physical therapy through June 2015.
Dr. Refai continued to see Meléndez regularly until November 2015 as part of his standard post-surgery recovery procedure. At her last appointment, in November of 2015, Meléndez and Ramos asked Dr. Refai to review the records from Meléndez’s earlier surgeries. He agreed, and in mid-2016 they provided Dr. Refai with the translated records. Shortly thereafter, in September 2016, Dr. Refai provided them with a report stating his opinion that Dr. Rosado had negligently operated upon Meléndez.
After receiving Dr. Refai’s report, the plaintiff filed a medical malpractice complaint in the United States District Court against Dr. Rosado, on October 19, 2016. On March 15, 2019, the jury returned a verdict form where it determined that the case was not time barred, finding that the plaintiff proved by a preponderance of the evidence that she exercised due diligence to acquire the knowledge necessary to her claim and nevertheless did not obtain the relevant knowledge until at least October 19, 2015. On that form, the jury also returned a verdict against Dr. Rosado on the plaintiff’s claim of medical malpractice, finding total compensatory damages in the sum of $250,000.
In an Opinion and Order, the district court concluded that a reasonable jury could not have found that the claim against Dr. Rosado was timely filed. The plaintiff appealed.
Puerto Rico Medical Malpractice Statute Of Limitations
The Puerto Rico statute of limitations for medical malpractice is one year. The statutory period begins to run once the plaintiff possesses, or with due diligence would possess, information sufficient to permit suit. For accrual purposes, that information includes not only (1) the fact of the plaintiff’s injury, but also (2) knowledge of the author of the injury. The Federal Appellate Court has interpreted the latter requirement to extend beyond an awareness of some ill effects resulting from an operation by a particular doctor. Rather, a putative plaintiff must have knowledge that the injury could be considered a tort rather than an expected side effect. If a plaintiff is not aware of some level of reasonable likelihood of legal liability on the part of the person or entity that caused the injury, the statute of limitation will be tolled.
Under Puerto Rico law, either actual knowledge (where a claimant is aware of the relevant facts underlying her potential claim) or constructive knowledge, often referred to as “deemed knowledge,” (where she would have been aware of such facts, had she engaged in due diligence) can trigger the statute of limitations. In determining a plaintiff’s knowledge, the relevant inquiry is whether a putative plaintiff knew or with due diligence would have known the facts that gave rise to the claim, not their full legal implications. Once a plaintiff is made aware of facts sufficient to put her on notice that she has a potential tort claim, she must pursue that claim with reasonable diligence, or risk being held to have relinquished her right to pursue it later, after the limitation period has run.
Federal Appellate Court Opinion
The Federal Appellate Court stated that the question of whether the plaintiff has exercised reasonable diligence is typically given to the jury, even where no raw facts are in dispute, because the issues of due diligence and adequate knowledge are still ones for the jury so long as the outcome is within the range where reasonable men and women can differ. The Federal Appellate Court stated: “we must examine whether a reasonable jury could find that Plaintiffs exercised due diligence and yet were not aware (1) of Meléndez’s injury, (2) that the injury was caused by Dr. Rosado, and (3) that the injury was potentially tortious … a reasonable jury could find that Plaintiffs exercised due diligence in investigating their potential claim and nevertheless did not have “sufficient information to permit suit,” Villarini-Garcia, 8 F.3d at 84, in advance of the one-year statutory period … We conclude that a reasonable jury could find that Meléndez had no knowledge of her potential claim insofar as she was aware of neither an additional injury following her surgery, nor its potentially tortious origin … We conclude that a reasonable jury could find that Plaintiffs had neither actual nor constructive knowledge at any time prior to her third surgery at the hands of Dr. Refai.”
The Federal Appellate Court therefore held: “We do not hold that the record in this case compels a finding that Plaintiffs complied with the statute of limitations. We recognize that there is enough evidence on both sides of the limitations issue such that the district court quite properly determined in response to Defendants’ initial Rule 50 motions that the issue should, in the first instance, be left to the jury. We conclude that a reasonable jury could have found that, despite exercising due diligence to acquire the knowledge needed to sue, Plaintiffs nevertheless did not obtain that knowledge until sometime after one year prior to filing suit. Accordingly, the dismissal of the case is reversed, the judgment for Defendants is vacated, and the case is remanded to the district court for reinstatement of the verdict … ”
Source Melendez-Colon v. Rosado Sanchez, No. 19-1956.
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