Borges Ex Rel. SMBW v. Serrano-Isern

United States Court of Appeals

For the First Circuit

No. 09-1699

ARTEMIO BORGES AND KIMBERLY WETHERELL, AS PARENTS AND NEXT

FRIENDS OF S.M.B.W., A MINOR,

Plaintiffs, Appellants,

v.

DR. ALFONSO SERRANO-ISERN, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Torruella, Selya and Lipez,

Circuit Judges.

David Efron, with whom Law Offices David Efron, P.C. was on

brief, for appellants.

Benjamin Morales Del Valle, with whom Morales-Morales Law

Offices was on brief, for Serrano-Isern and related appellees.

Roberto Ruiz Comas, with whom Bufete González Villamil was on

brief, for Hospital Interamericano de Medicina Avanzada and related

appellees.

May 3, 2010

SELYA, Circuit Judge. This appeal grows out of a medical

malpractice action brought under diversity jurisdiction. See 28

U.S.C. § 1332(a). The district court jettisoned the action at the

summary judgment stage. The plaintiffs appeal. Discerning no

error, we affirm.

I. BACKGROUND

We rehearse the facts limned in the summary judgment

record, taking them in the light most hospitable to the plaintiffs.

Alt. Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 26 (1st

Cir. 2004). We add more detail in our later discussion of the

plaintiffs' specific claims. To the extent that we refer to the

allegations of the complaint, we caution that mere allegations are

not entitled to weight in the summary judgment calculus. Id.

We start with the cast of characters. The plaintiffs are

Artemio Borges and Kimberly Wetherell, husband and wife, who sue on

behalf of their minor daughter, Stephanie Marie Borges-Wetherell.

There are a plethora of defendants but, for present purposes, the

only two who matter are Alfonso Serrano-Isern (Dr. Serrano) and

Hospital Interamericano de Medicina Avanzada (the Hospital).

Dr. Serrano practices obstetrics and gynecology in Puerto

Rico. Wetherell (who, like all the plaintiffs, claims Florida

citizenship) became pregnant, and enlisted Dr. Serrano's services.

Dr. Serrano treated her from and after February 6, 2003.

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Wetherell's pregnancy was unremarkable, her prenatal course

uneventful, and her prognosis good.

At around 7:33 a.m. on June 2, 2003, Wetherell was

admitted to the Hospital for induction of labor. Following

Wetherell's admission, Dr. Serrano, together with the Hospital's

nurses and other staff, took charge of her care.

Dr. Serrano decided to deliver the baby by Cesarean

section (C-section). He says that he made this decision because

the baseline fetal heart rate, which he characterized as low but

within normal limits, indicated the wisdom of this method of

delivery. The plaintiffs do not accept this explanation,

suggesting that an emergency C-section was required because of the

presence of fetal bradycardia (that is, a sustained, abnormally low

fetal heart rate).

Whatever the reason for deciding to deliver the baby by

C-section, Wetherell signed a consent form for the procedure at

8:15 a.m. She was taken to an operating room at 10:00 a.m.

Anesthesia was administered at 10:18 a.m. She gave birth to

Stephanie at 10:22 a.m.

In the course of performing the C-section, Dr. Serrano

discovered an occult cord prolapse. The hospital records show that

the C-section was well underway when that discovery occurred.

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At birth, Stephanie was an apparently healthy baby. She

cried and suckled normally. A cranial sonogram, a neurological

consultation, and a pulmonary evaluation revealed no problems.

The Hospital discharged Wetherell on June 5, 2003. It

sent Stephanie home six days later.

On October 26, 2006, the plaintiffs sued for medical

malpractice. The complaint alleges that Stephanie has experienced

serious physical and neurological deficits, global developmental

delay, and low muscle tone — conditions that allegedly require, and

will in the future require, continuous physical, occupational, and

speech therapies. The complaint attributes these maladies to

injuries sustained at birth, specifically, intrapartum anoxia

secondary to umbilical cord prolapse and delay in calling for and

performing the C-section.

The plaintiffs claimed that Dr. Serrano was liable for

his own negligence and that the Hospital was liable both

vicariously (for Dr. Serrano's carelessness) and by virtue of its

independent negligence. Both the doctor and the Hospital denied

these claims.

A period of pretrial discovery began, during which both

sides retained experts. Following the completion of discovery, Dr.

Serrano moved for summary judgment, arguing that he had provided

treatment that fully comported with the applicable standard of care

and that the plaintiffs had failed to show that any negligence on

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his part had caused harm to Stephanie. Two days later, the

Hospital likewise moved for summary judgment, arguing that the

plaintiffs had failed to show a basis for any liability (vicarious

or direct) on its part.

The district court granted both motions. See Wetherell

v. Hosp. Interamericano de Medicina Avanzada, Inc. (Wetherell II),

609 F. Supp. 2d 186, 193 (D.P.R. 2009) (granting the Hospital's

motion); Wetherell v. Hosp. Interamericano de Medicina Avanzada,

Inc. (Wetherell I), No. 06-2079, 2009 WL 921157, at *7 (D.P.R. Mar.

31, 2009) (granting Dr. Serrano's motion). In its thoughtful

opinion allowing Dr. Serrano's motion, the court held that the

plaintiffs had failed to show either that Dr. Serrano had

transgressed his duty of care or that a causal nexus existed

between Dr. Serrano's conduct and Stephanie's alleged injuries.

Wetherell I, 2009 WL 921157, at *7. In a separate opinion, the

court held that the plaintiffs had failed to show that the Hospital

could be found either independently negligent or vicariously

liable. Wetherell II, 609 F. Supp. 2d at 192-93. This timely

appeal ensued.

II. ANALYSIS

On appeal, the plaintiffs challenge the district court's

entry of summary judgment in favor of both the Hospital and Dr.

Serrano. We first delineate the summary judgment standard; then

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clarify a procedural point; and, finally, examine sequentially the

two challenged rulings.

A. The Summary Judgment Standard.

We review orders granting summary judgment de novo,

considering the facts of record and all reasonable inferences

therefrom in the light most favorable to the nonmoving party. See

Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 183-84

(1st Cir. 1999). Summary judgment is appropriate if there is no

genuine issue as to any material fact and the undisputed facts show

that the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c)(2).

The vocabulary of summary judgment is well-defined. An

issue is "genuine" if the evidence of record permits a rational

factfinder to resolve it in favor of either party. See Medina-

Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

A fact is "material" if its existence or nonexistence has the

potential to change the outcome of the suit. See Martínez v.

Colón, 54 F.3d 980, 984 (1st Cir. 1995).

The moving party bears the initial burden of informing

the trial court of the basis for his motion and identifying the

portions of the pleadings, depositions, answers to interrogatories,

admissions, and affidavits, if any, that demonstrate the absence of

any genuine issue of material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). Once the moving party has accomplished this

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feat, the burden shifts to the nonmoving party, who must, with

respect to each issue on which she would bear the burden of proof

at trial, demonstrate that a trier of fact could reasonably resolve

that issue in her favor. Id. at 324; DeNovellis v. Shalala, 124

F.3d 298, 306 (1st Cir. 1997). As a general rule, that requires

the production of evidence that is "significant[ly] probative."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If the

nonmovant fails to make this showing, then summary judgment is

appropriate. Celotex, 477 U.S. at 324.

B. The Deeming Order.

The local rules of the United States District Court for

the District of Puerto Rico require that parties make certain

filings in connection with motions for summary judgment. The

movant must support his motion with "a separate, short, and concise

statement of material facts, set forth in numbered paragraphs, as

to which the moving party contends there is no genuine issue of

material fact to be tried." D.P.R.R. 56(b). "Each fact asserted

in the statement shall be supported by a record citation . . . ."

Id.

If the target of the motion chooses to oppose it, she

must file with her opposition a "separate, short, and concise"

counter-statement. D.P.R.R. 56(c). "Th[is] opposing statement

shall admit, deny or qualify the facts [supporting the motion for

summary judgment] by reference to each numbered paragraph of the

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moving party's statement of material facts and unless a fact is

admitted, shall support each denial or qualification by a record

citation . . . ." Id.

These statements — both the movant's and the nonmovant's

— must satisfy specific commands:

Facts contained in a supporting or opposing

statement of material facts, if supported by

record citations as required by this rule,

shall be deemed admitted unless properly

controverted. An assertion of fact set forth

in a statement of material facts shall be

followed by a citation to the specific page or

paragraph of identified record material

supporting the assertion. The court may

disregard any statement of fact not supported

by a specific citation to record material

properly considered on summary judgment. The

court shall have no independent duty to search

or consider any part of the record not

specifically referenced in the parties'

separate statement of facts.

D.P.R.R. 56(e).

When Dr. Serrano and the Hospital filed their respective

summary judgment motions, each of them filed the required

statement.1 The plaintiffs filed oppositions, admitting some of

the declared facts and purporting to dispute or qualify others.

The plaintiffs, however, neglected to observe the strictures of the

local rule and omitted appropriate citations to the record with

1

This is not to say that the defendants complied fully with

the local rule. Their proffers included some factual assertions

that were not accompanied by appropriate record citations. The

court below accorded these assertions no weight in the summary

judgment calculus, and we emulate its example.

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respect to their denials and qualifications. Accordingly, the

district court deemed admitted the properly supported facts set

forth by the defendants in their respective statements.

The district court's deeming order is unimpugnable. See

Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir. 2000) (explaining

that "failure to present a statement of disputed facts, embroidered

with specific citations to the record, justifies the court's

deeming the facts presented in the movant's statement of undisputed

facts admitted"). Indeed, "deeming" is precisely the remedy that

the local rule envisions for failures of compliance. See D.P.R.R.

56(e). Thus, we treat the facts expressly admitted by the

plaintiffs, as well as those deemed admitted by the district court,

as uncontested.

C. Liability of the Hospital.

We move next to the plaintiffs' challenge to the entry of

summary judgment in favor of the Hospital. We need not tarry.

The plaintiffs' brief is devoid of any developed

argumentation as to the issue of the Hospital's liability. It

offers only an oblique suggestion that the Hospital was vicariously

liable for the acts of Dr. Serrano (ostensibly an independent

contractor) and a conclusory assertion that Stephanie's injuries

were the result of the Hospital's "condonation of . . . negligent

acts and malpractice" on the doctor's part. Appellants' Br. at 10.

This sparse rhetoric falls well short of satisfying the imperative

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that an appellant's brief must set forth her "contentions and the

reasons for them, with citations to the authorities and parts of

the record on which the appellant relies." Fed. R. App. P.

28(a)(9)(A).

To say more about this assignment of error would be

supererogatory. By their failure to present any developed

argumentation with respect to the Hospital's liability, the

plaintiffs have waived their claim that the district court erred in

granting the Hospital's motion for summary judgment. See Adorno v.

Crowley Towing & Transp. Co., 443 F.3d 122, 124 n.2 (1st Cir. 2006)

(declining to address argument that district court erred in

granting summary judgment because appellants' brief "failed to

develop any . . . argument sufficiently to put the correctness of

the summary judgment rulings in dispute"); United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that "issues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived").

D. Liability of Dr. Serrano.

We turn now to the entry of summary judgment in favor of

Dr. Serrano. Because this is a diversity case, the substantive law

of Puerto Rico controls. Erie R.R. Co. v. Tompkins, 304 U.S. 64,

78 (1938); Cortés-Irizarry v. Corporación Insular De Seguros, 111

F.3d 184, 189 (1st Cir. 1997). To make out a prima facie case for

medical malpractice under the Civil Code, P.R. Laws Ann. tit. 31,

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§ 5141, a plaintiff must adduce evidence sufficient to establish

three elements: (i) the duty owed (i.e., the minimum standard of

professional skill and knowledge required in the relevant

circumstances), (ii) an act or omission transgressing that duty,

and (iii) a sufficient causal nexus between the breach of duty and

the harm claimed. Cortés-Irizarry, 111 F.3d at 189; Lama v.

Borras, 16 F.3d 473, 478 (1st Cir. 1994); Rolon-Alvarado v. Mun'y

of San Juan, 1 F.3d 74, 77 (1st Cir. 1993).

Under this framework, breach of duty is an essential

element of a cause of action for malpractice. To consider whether

a breach has been shown, we first must understand the nature of the

duty owed.

The general parameters of the duty of care that a

physician owes to a patient under Puerto Rico law are

uncontroversial. The physician must employ a level of care

consistent with that set by the medical profession nationally.

Cortés-Irizarry, 111 F.3d at 190. Thus, an obstetrician, like Dr.

Serrano, must use the same level of care that is generally accepted

as good practice in the obstetrical subspecialty, nationwide. Id.

Puerto Rico law affords a physician a presumption that he

has provided an appropriate level of care. Id. It is the

plaintiff's obligation to refute this presumption by adducing

evidence sufficient to show both the minimum standard of care

required and the physician's failure to achieve it. Id.

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The plaintiffs argue that they adequately rebutted the

presumption that Dr. Serrano used a reasonable degree of care and

that, therefore, the district court erred in concluding that they

failed to show a breach of duty. An appraisal of this argument

begins with an acknowledgment that Dr. Serrano's motion and

supporting statement of undisputed facts were adequate to shift to

the plaintiffs the burden of providing evidence reflecting a

genuine issue of material fact. See Celotex, 477 U.S. at 322-23.

In an effort to satisfy this burden, the plaintiffs asserted that

Dr. Serrano breached his duty of care in two interrelated ways: (i)

by inordinate delay in calling for and performing an emergency C-

section; and (ii) by failing properly to diagnose and treat

intrapartum anoxia secondary to cord prolapse. We evaluate these

assertions in the cold light of the summary judgment record.

The charge of inordinate delay focuses on the gap of

roughly one hour and forty-five minutes between the time that

Wetherell signed the consent form for the C-section and the time

when she was wheeled into the operating room. The claim is that

Dr. Serrano, in the exercise of due care, should have performed the

C-section as soon as he knew or had reason to know that Stephanie,

while in utero, was suffering from fetal bradycardia. The

plaintiffs say that Dr. Serrano knew or should have known of that

fact when, or very shortly after, Wetherell arrived at the

Hospital. The relevant facts are as follows.

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During labor, the fetal heart rate is monitored and

contemporaneous tracings are available to the attending

obstetrician. Fetal bradycardia is a slowing of the fetal heart

rate. A normal fetal heart rate ranges from 120 to 160 beats per

minute. A fetal heart rate below 110 beats per minute is termed

bradycardia; subject, however, to the limitation that bradycardia

requires this low fetal heart rate, according to the plaintiffs'

obstetrical expert, Dr. Steven Weissberg, to be "constant and for

a certain period of time . . . not just fractions of seconds."

Here, the plaintiffs did not adduce any evidence that

Stephanie in fact had bradycardia. To establish bradycardia, the

plaintiffs rely almost exclusively on Dr. Weissberg's review of the

fetal heart rate tracings. Those tracings showed an occasional dip

in the fetal heart rate below 110, but Dr. Weissberg did not

envision this as an aposematic sign. He freely admitted that a

momentary fetal heart rate under 110 beats per minute is not in

itself sufficient to show bradycardia; that the presence of

bradycardia ordinarily would be manifested by a fetal heart rate

staying below 110 beats per minute "constant[ly] and for a certain

period of time"; and that the infrequent occasions when Stephanie's

heart rate fell below 110 beats per minute were fleeting and not

sustained. Fairly read, Dr. Weissberg's testimony undercuts,

rather than supports, the proposition that Stephanie was

experiencing bradycardia.

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In an effort to blunt the force of this reasoning, the

plaintiffs argue that an excerpt from Dr. Weissberg's report

constitutes significantly probative evidence that Dr. Serrano did

not act quickly enough to perform a C-section while Stephanie was

experiencing bradycardia.2 The excerpt states:

In my opinion, I feel the care rendered

Kimberly Wetherell fell below the standard of

care because of the failure to perform a

timely Cesarean section. The patient had been

informed and signed for a Cesarean section at

0815, and she alleges she was told an

operating room was not available, and did not

enter the operating [room] for another hour

and 45 minutes, an excessive delay. During

this entire period of time, the fetal

heartbeat remained low.

We do not think that this passage creates a triable issue

as to any material fact. Dr. Weissberg's opinion is premised on

the assumption that, during Wetherell's entire waiting time, the

fetal heart rate was low. But there is no evidence of this;

rather, the evidence belies the assumption of a persistently low

fetal heart rate. An expert opinion grounded on a nonexistent fact

is not significantly probative. See, e.g., Guile v. United States,

422 F.3d 221, 227 (5th Cir. 2005) (holding that expert opinion

based on "incorrect factual assumptions" was insufficient to create

triable issue of fact).

2

As Dr. Weissberg testified, the terms "bradycardia" and "low

heart rate" are sometimes used interchangeably.

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Indeed, Dr. Weissberg admitted in his deposition that the

fetal heart rate tracings showed that the times Stephanie's heart

rate went below 110 beats per minute were brief, not sustained, and

did not occur in a pattern consistent with a diagnosis of

bradycardia. Thus, Dr. Weissberg's deposition testimony, given

after he wrote his report, conclusively shows the absence of any

significantly probative evidence that Stephanie suffered from

bradycardia during the relevant time frame.3 In light of his

later, more detailed deposition testimony, Dr. Weissberg's report

plainly cannot be said to create a triable issue of fact. Cf.

Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st

Cir. 1994) (holding that nonmovant cannot avoid summary judgment by

an affidavit that contradicts, without explanation for the

contradiction, the witness's deposition testimony); S.W.S.

Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 496 (5th Cir. 1996)

(similar).

That ends this aspect of our inquiry. Because there is

no evidence in the summary judgment record from which a reasonable

factfinder could conclude that Stephanie suffered from bradycardia

in the relevant time frame, the plaintiffs' first breach-of-duty

theory comes to naught.

3

The plaintiffs could have offered supplemental expert

reports or affidavits explaining how, despite these admissions,

there was still sufficient evidence of bradycardia in the record.

See, e.g., Tippens v. Celotex Corp., 805 F.2d 949, 954 (11th Cir.

1986). They did not do so.

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The plaintiffs' remaining breach-of-duty theory posits a

failure properly to diagnose and treat intrapartum anoxia secondary

to cord prolapse. Dr. Serrano argued below that there was an

absence of any evidence showing that he knew or should have known,

prior to performing the C-section, that Stephanie was endangered by

an occult cord prolapse. The plaintiffs, laboring to make out a

genuine issue of material fact, once again rely on Dr. Weissberg's

views. That reliance is mislaid.

We pause to lay out the medical background. A cord

prolapse (sometimes called an "overt cord prolapse") occurs when

the umbilical cord protrudes into the vagina, preceding the baby.

The Merck Manual 2207 (18th ed. 2006). It is accompanied by

ruptured membranes, id., and because compression of the cord during

labor may cause fetal hypoxemia,4 requires the immediate

performance of a C-section. Due to its positioning, an overt cord

prolapse is visible to the obstetrician very early in the continuum

of labor and delivery.

Dr. Weissberg admitted at deposition that there was no

cord prolapse as such during this delivery. Rather, Stephanie's

birth was complicated by a different condition: an occult cord

prolapse. As we explain below, the difference is critically

important.

4

Hypoxemia is deficient oxygenation of the blood. See

Merriam-Webster's Med. Desk Dict. 378 (2005).

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An occult cord prolapse occurs when a prolapsed umbilical

cord is confined to the uterus, not protruding into the vagina.

Generally, in an occult cord prolapse the cord is compressed by the

fetus's shoulder or head. Id. There are no ruptured membranes.

Thus, the cord is hidden from the obstetrician's view and does not

become visible until surgery is actually performed.

So it was here: there is no evidence that Dr. Serrano

could have known of the occult cord prolapse in advance of actually

performing the C-section. The cervix was closed and no membranes

had ruptured. Indeed, even Dr. Weissberg was unable to offer any

explanation as to how Dr. Serrano might have known about the occult

cord prolapse prior to performing the C-section (and, thus he

conceded that Dr. Serrano presumably did not know that such a

condition existed prior to his actual performance of the C-

section). Hence, the occult cord prolapse could not have

forewarned Dr. Serrano that an immediate C-section should be

undertaken.

The plaintiffs offer a weak retort. They cite a passage

from the report of Dr. Allan Hausknecht, their neurological expert,

and suggest that this excerpt is sufficient to create a trialworthy

issue with respect to whether and when Dr. Serrano should have

known of the prolapsed cord. The passage on which the plaintiffs

rely reads:

The findings that this child exhibits are

characteristic of hypoxic ischemic

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encephalopathy. Dr. Weissberg explained in

his report that the prolapse of the cord which

was left to exist for an inappropriate amount

of time is the cause of cerebral anoxia, which

is the cause of hypoxic ischemic

encephalopathy. I therefore feel with

reasonable medical certainty that the

departures present at the time of delivery

caused brain damage (hypoxic ischemic

encephalopathy) to [S.M.B.W.]

The plaintiffs do not advance a specific explanation as

to how this passage is evidence that Dr. Serrano breached his duty

of care. Their argument is presumably that Dr. Serrano should have

realized earlier that Stephanie was experiencing an occult cord

prolapse and, therefore, should have performed a C-section sooner.

That suggestion represents a triumph of hope over reason.

The plaintiffs' obstetrical expert, Dr. Weissberg, made it pellucid

that there was no way Dr. Serrano could have known about the occult

cord prolapse prior to undertaking the C-section. Dr. Hausknecht's

second-hand view of what he believed Dr. Weissberg meant cannot

reinvent this reality. Dr. Hausknecht expressly bases his

conjecture that the "prolapse of the cord . . . was left to exist

for an inappropriate amount of time" on Dr. Weissberg's report —

and, as we have explained, Dr. Weissberg's final conclusion was to

the contrary. Because the summary judgment record contains no

significantly probative evidence that Dr. Serrano either could or

should have known about the occult cord prolapse prior to

performing the C-section, there is no trialworthy issue about the

timing of the procedure.

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There is one loose end. The plaintiffs tack on at the

end of their brief a perfervid argument — without a single citation

to relevant authority — to the effect that the district court's

grant of summary judgment violated their due process rights.

This court, as well as many of our sister circuits, has

previously rejected this type of global constitutional attack on

the summary judgment mechanism. See, e.g., Calvi v. Knox County,

470 F.3d 422, 427 (1st Cir. 2006) (rejecting broadside Seventh-

Amendment attack on summary judgment mechanism); Koski v. Standex

Int'l Corp., 307 F.3d 672, 676 (7th Cir. 2002) (rejecting

"frivolous" argument that district court's grant of summary

judgment violated defendant's due process rights). We see no

meritorious basis for the attack here.

III. CONCLUSION

We need go no further.5 The plaintiffs' argument that

Dr. Serrano breached his duty of care through delay in calling for

and performing a C-section fails because the plaintiffs offered no

evidence that Dr. Serrano could or should have known, at the

relevant time, that Stephanie suffered from either bradycardia or

a cord prolapse. A physician cannot breach a duty to call for and

5

The district court also concluded that the plaintiffs had

not adduced evidence sufficient to establish a causal connection

between any acts or omissions on Dr. Serrano's part and the harm

alleged by the plaintiffs. In view of our disposition of the

breach-of-duty issue, there is no reason for us to grapple with the

causation issue.

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perform an emergency procedure when there is no evidence that the

physician knew or should have known, at the relevant time, that an

emergency existed. The district court did not err in entering

summary judgment in favor of all defendants.

Affirmed.

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