Melendez-Colon v. Rosado Sanchez ( 2021 )

United States Court of Appeals
For the First Circuit
No. 19-1956
LUZ B. MELÉNDEZ COLÓN; MILTON RAMOS MELÉNDEZ
Plaintiffs, Appellants,
v.
JULIO ROSADO SÁNCHEZ; SINDICATO DE ASEGURADORES PARA
LA SUSCRIPCION CONJUNTA DE SEGUROS DE RESPONSABILIDAD
PROFESIONAL MEDICO HOSPITALARIA (SIMED)
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Bruce J. McGiverin, U.S. Magistrate Judge]
Before
Barron and Selya, Circuit Judges,
and Katzmann, Judge.
Manuel San Juan, with whom Héctor M. Alvarado-Tizol, Mariela
Maestre-Cordero, and Law Offices of Manuel San Juan were on brief,
for Appellants.
Jeanette López de Victoria, with whom Oliveras & Ortiz, PSC
was on brief, for Appellees.
April 21, 2021
 Of the United States Court of International Trade, sitting
by designation.
KATZMANN, Judge. This diversity case concerns a medical
malpractice claim filed by Luz Meléndez Colón and her son Milton
Ramos Meléndez ("Plaintiffs") against Dr. Julio Rosado Sánchez and
his insurer, SIMED ("Defendants").1 The appeal raises questions
regarding the bounds of constructive knowledge under Puerto Rico
law in the context of a statute of limitations where the one-year
clock for timely filing of a lawsuit begins to tick on the date of
the accrual of the claim. Here, as in other such cases, knowledge
by the plaintiffs of the injury and the person who caused it is
key to evaluating whether a claim has been filed before the clock
has run out. At what point can a plaintiff claiming medical
malpractice no longer reasonably be found to lack constructive
knowledge of a potential tort committed against her more than a
year before the filing? To that end, what diligence is required
on the part of a reasonable person whose injuries improve upon
securing treatment by a medical professional other than the alleged
tortfeasor?
In the case before us, the district court set aside a
jury verdict for Plaintiffs, granted Defendants' motion for
judgment as a matter of law, and dismissed the case as time-barred
The action below included Dr. Rosado's wife and their
1
conjugal partnership as co-defendants, but both were dismissed
prior to this appeal on March 13, 2019. The initial suit also
listed Insurance Company A-Z as a placeholder defendant but
Plaintiffs have since identified SIMED as Dr. Rosado’s insurer.
- 2 -
upon finding that a reasonable jury could not have concluded that
Plaintiffs' suit was timely filed. Plaintiffs subsequently
initiated this appeal, arguing that the district court erred in
setting aside the jury's finding that even with the exercise of
proper diligence, they could not have had the necessary knowledge
to file suit against Dr. Rosado more than a year before they did.
We determine that the lawsuit was timely filed and not outside the
statute of limitations, reverse the district court's dismissal,
vacate the judgment in favor of Defendants, and remand for
reinstatement of the jury verdict and for such other proceedings
as may be appropriate, consistent with this opinion.
I.
This appeal arises from a series of surgeries performed
by Dr. Rosado, a neurosurgeon, on Meléndez while she was a resident
of Puerto Rico. In 2013, at the age of seventy-two, Meléndez began
suffering from severe back pain. Her pain became so severe that
she retired from her career as a nurse and sought medical
assistance. Prior to consulting Dr. Rosado, Meléndez had
unsuccessfully sought the assistance of numerous doctors regarding
her pain.
On August 20, 2013, Meléndez first met with Dr. Rosado
on the recommendation of a prior treating physician. Dr. Rosado
initially attempted to treat Meléndez's pain without surgery, but
ultimately diagnosed her with spinal compression and recommended
- 3 -
surgical treatment. Meléndez underwent the recommended surgery in
February of 2014 but continued to experience escalating back pain
following her operation, which ultimately rendered her bedridden.
In March 2014, Dr. Rosado performed a secondary surgery on Meléndez
but was again unable to alleviate her pain. Meléndez remained
bedridden following the second surgery despite ongoing physical
therapy.
Ultimately Meléndez's son Herminio, who is not a party
to this action, contacted Meléndez's other son, Plaintiff Ramos,
for support. Ramos was at the time employed in the healthcare
industry in Georgia. In June of 2014, Ramos traveled to Puerto
Rico to meet with Dr. Rosado because of his concern regarding his
mother's ongoing back pain and worsening health following her
surgeries. Ramos and Meléndez met with Dr. Rosado on June 6, 2014,
at which time Dr. Rosado initially confused Meléndez's case with
another surgery, but ultimately identified Meléndez and discussed
her ongoing pain and care with Ramos. After the meeting, Meléndez
was again hospitalized, and Dr. Rosado recommended a third surgery.
Rather than agreeing to a third surgery, 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. Dr.
Rosado agreed.
Nevertheless, Dr. Rosado did not transmit copies of
Meléndez's records to either Ramos or Meléndez at that time.
- 4 -
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
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.2
In Georgia, Meléndez sought treatment at the Emory
Health Emergency Room, and with an orthopedist at the Emory Spine
Center, before ultimately obtaining a referral to Dr. Daniel Refai.
She had her first appointment with Dr. Refai in November 2014.
Dr. Refai reviewed Meléndez's MRI, which had been performed by the
referring physician, and recommended a third surgery on Meléndez's
spine. While Meléndez remained hesitant to undergo another surgery
she ultimately agreed, and after receiving medical clearance was
operated upon by Dr. Refai on December 18, 2014. Following this
third surgery, while her pain was not eradicated, Meléndez
experienced substantial improvement such that she was able to lie
flat, sit, and walk with assistance. She was instructed by the
hospital to strictly limit her motion for six weeks following the
2 Meléndez became a citizen of Georgia. Ramos was already a
citizen of Georgia, the Defendants are both citizens of Puerto
Rico, and the amount in controversy exceeds $75,000. Accordingly,
diversity jurisdiction exists. See 28 U.S.C. § 1332(a).
- 5 -
surgery, and ultimately underwent physical therapy through June of
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 Plaintiffs provided
Dr. Refai with the translated records. Shortly thereafter, in
September of 2016, Dr. Refai provided Plaintiffs with a report
stating his opinion that Dr. Rosado had negligently operated upon
Meléndez.
After receiving Dr. Refai's report, Plaintiffs filed a
complaint in United States District Court against Defendants on
October 19, 2016. The case proceeded to a trial on the merits,
the United States Magistrate Judge presiding. At the close of
Plaintiffs' case-in-chief, and then again at the end of Defendants'
case-in-chief, Defendants moved pursuant to Federal Rule of Civil
Procedure 50(a) for judgment as a matter of law. They argued that
Plaintiffs' claims were time-barred; that Plaintiffs had not acted
diligently in investigating and/or pursuing their claims; and that
Plaintiffs had not presented legally sufficient evidence to
establish their claims. After both Rule 50 arguments, the court
advised Defendants that their Rule 50 motions would be held in
abeyance. The case was submitted to the jury. Because Dr. Rosado
- 6 -
had raised a defense of statute of limitations, the instructions
for the jury included an instruction on the statute of limitations
for malpractice. On March 15, 2019, the jury returned a verdict
form where it determined that the case was not time barred, finding
that Plaintiffs proved by a preponderance of the evidence that
they exercised due diligence to acquire the knowledge necessary to
their 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 Plaintiffs' claim of
medical malpractice, finding total compensatory damages in the sum
of $250,000. Judgment was entered accordingly. On April 24, 2019,
seeking to set aside the verdict, Defendants filed a Motion for
Judgment as a Matter of Law, or in the alternative for a new trial
or remittitur, which Plaintiffs opposed. In an Opinion and Order,
the district court granted Defendants' motion on August 20, 2019,
and set aside the jury's verdict, concluding that a reasonable
jury could not have found that the claim against Dr. Rosado was
timely filed. This rendered Defendants' alternative motion moot.
Judgment was entered dismissing the case with prejudice.
- 7 -
Plaintiffs timely appealed on September 10, 2019.
II.
The Puerto Rico statute of limitations for medical
malpractice is one year.3 Villarini-Garcia v. Hosp. Del Maestro,
Inc., 8 F.3d 81, 84 (1st Cir. 1993) (quoting P.R. Laws Ann. tit.
31, § 5298 (1955)). The statutory period begins to run once the
plaintiff "possesses, or with due diligence would possess,
information sufficient to permit suit." Id. 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."4
Colón Prieto v. Géigel, 15 P.R. Offic. Trans. 313, 330 (1984)
(quoting I. A. Borrell y Soler, Derecho Civil Español 500 (Bosch
ed., 1955)). We have interpreted this latter requirement to extend
beyond "an awareness of some ill effects resulting from an
operation by a particular doctor." Galarza v. Zagury, 739 F.2d
3 The parties agree that the case is before us under diversity
jurisdiction, and thus Puerto Rico substantive law applies. That
is correct. Sitting in diversity, the court must apply the
"[Commonwealth’s] substantive law and federal rules for procedural
matters." Alejandro-Ortiz v. P.R. Elec. Power Auth., 756 F.3d 23,
26 (1st Cir. 2014). Because in Puerto Rico, the statute of
limitations is not a procedural matter but rather an issue of
substantive law, see Vera v. Dr. Bravo, 161 D.P.R. 308, 321, __
P.R. Offic. Trans. __, __ (2004), Commonwealth law applies.
4 The verdict form below required the jury to find by a
preponderance of the evidence whether Plaintiffs had the necessary
knowledge to file suit at any time before October 19, 2015, or
whether they could have had the necessary knowledge before that
date if they exercised proper diligence.
- 8 -
20, 24 (1st Cir. 1984). Rather, a putative plaintiff must have
knowledge that "the injury could be considered a tort rather than
an expected side effect." Espada v. Lugo, 312 F.3d 1, 4 (1st Cir.
2002). "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."
Id. (quoting Rodriguez–Suris v. Montesinos, 123 F.3d 10, 13–14 (1st
Cir. 1997))
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. Rodriguez-Suris, 123 F.3d at 14.5
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." Villarini-Garcia, 8 F.3d at 85 (citing
Osborn v. United States, 918 F.2d 724, 731 (8th Cir. 1990)). Where
5An exception, not applicable in this case, exists where "a
diligent plaintiff reasonably relies upon representations made by
a tortfeasor that her symptoms are not the result of a negligent
or otherwise tortious act," which permits such a plaintiff to toll
the limitation period regardless of her knowledge of the underlying
injury and its cause. Rodriguez-Suris, 123 F.3d at 16–17 (citing
Colón Prieto, 15 P.R. Offic. Trans. at 329–30; Villarini-Garcia,
8 F.3d at 85–86).
- 9 -
a plaintiff's ignorance of a potential cause of action is caused
only by her failure to timely consult an attorney, the statute of
limitations is not tolled. Aldahonda-Rivera v. Parke Davis & Co.,
882 F.2d 590, 593–94 (1st Cir. 1989). Similarly, where a plaintiff
is aware of a potentially tortious injury but makes no effort to
ascertain its source, she is not excused in delaying a potential
claim. Id.; Espada, 312 F.3d at 4. Rather, "[o]nce 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."
Rodriguez-Suris, 123 F.3d at 16 (citing Villarini-Garcia, 8 F.3d
at 85). As we have previously noted, the requirement that actual
or constructive knowledge trigger the statutory period "is
designed to accommodate a plaintiff's interests but not to make
them trump all others." Villarini-Garcia, 8 F.3d at 85.
Accordingly, "there is nothing unfair in a policy that insists
that the plaintiff promptly assert her rights" where she knew or
with due diligence would have known the relevant facts more than
a year before bringing her claim. Id. (citing Aldahonda-Rivera,
882 F.2d at 593).
Where, as here, an action was instituted more than one
year after the alleged tortious harm, the plaintiff bears the
burden of showing her claim was timely filed. Torres v. E.I.
- 10 -
DuPont De Nemours & Co., 219 F.3d 13, 19 (1st Cir. 2000). Where
timeliness hinges on the presence or absence of due diligence, and
constructive rather than actual knowledge, it raises "a normative
question of how much diligence should be expected of a reasonable
lay person." Villarini-Garcia, 8 F.3d at 84. Accordingly, "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.'"
Espada, 312 F.3d at 4 (quoting Villarini–Garcia, 8 F.3d at 87).
Such a question may only be withdrawn from the jury where a
reasonable jury could not, given the evidence, "find that the
plaintiff lacked knowledge despite due diligence." Villarini-
Garcia, 8 F.3d at 87.
III.
We review the grant of judgment as a matter of law de
novo. Grande v. St. Paul Fire & Marine Ins. Co., 436 F.3d 277,
280 (1st Cir. 2006). Thus, we consider on appeal whether the
evidence before the jury "could lead a reasonable person to only
one conclusion" – namely, that Plaintiffs had either actual or
constructive knowledge of a potential claim prior to October 19,
2015. Acevedo-Diaz v. Aponte, 1 F.3d 62, 66 (1st Cir. 1993)
(quoting Hiraldo-Cancel v. Aponte, 925 F.2d 10, 12 n.2 (1st Cir.
- 11 -
1991)). To affirm the district court, we must therefore conclude
that no reasonable jury could find that Plaintiffs (1) exercised
due diligence to acquire the knowledge needed to sue and (2)
nevertheless did not obtain that knowledge until sometime after
one year prior to filing suit.
Because Plaintiffs filed suit on October 19, 2016, the
timeliness of that action depends on a date of accrual no earlier
than October 19, 2015. Plaintiffs contend that the jury reasonably
determined that the statutory period had not expired and posit
accrual upon either their request that Dr. Refai review Meléndez's
records in November 2015, or their receipt of his expert report on
September 21, 2016. Plaintiffs argue that it was not unreasonable
for the jury to conclude that Meléndez and Ramos acted with
reasonable diligence in focusing initially on Meléndez's
rehabilitation, and only upon the completion of that
rehabilitation requesting Dr. Refai's assistance in the review of
Meléndez's medical records. In support of the jury's finding,
Plaintiffs note that they did not initially suspect any malpractice
in Dr. Rosado's treatment of Meléndez, that they only requested
Meléndez's medical records from Dr. Rosado to assist in her ongoing
treatment, and that they discussed the particulars of Meléndez's
- 12 -
earlier surgeries with Dr. Refai even before requesting that he
review her medical records in November of 2015.
Conversely, Defendants argue that Meléndez and Ramos
were aware of facts sufficient to put them on notice of a potential
claim prior to October 19, 2015, and that they failed to pursue
that claim with reasonable diligence. Defendants specifically
identify three potential dates by which Plaintiffs had knowledge
of both Meléndez's injury and the author of that injury: (1) March
24, 2014, the date of Meléndez's second surgery; (2) June 2014, on
whatever date Plaintiffs, Herminio and Meléndez's husband
collectively determined that Meléndez should seek treatment in
Georgia; or (3) August 22, 2014, the date on which Plaintiffs
received Meléndez's medical records from Dr. Rosado. Defendants
further allege that there is no evidence whatsoever of any
affirmative diligence undertaken by Plaintiffs in the fifteen
months between their receipt of Meléndez's medical records, in
August 2014, and their request that Dr. Refai review those medical
records in November 2015.
These arguments derive from much of the same evidence
but require analysis through the distinct lenses of actual and
constructive knowledge. Accordingly, we first consider
Defendants' contention that Plaintiffs' knowledge of the
information necessary for suit (in either March, June, or August
of 2014) precludes a reasonable jury from finding that their claim
- 13 -
was timely filed. We then consider Plaintiffs' argument that the
question of constructive or actual knowledge should properly be
reserved to the jury, and Defendants' counterargument that
Plaintiffs' lack of due diligence between August of 2014 and
November of 2015 also precludes a reasonable jury from finding
their claim was timely filed. We conclude that 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.
To substantiate their claim that Plaintiffs were
actually aware of facts sufficient to put them on notice of their
claim against Dr. Rosado after Meléndez's second surgery,
Defendants rely primarily on testimony that Meléndez was in pain
following the surgery. In particular, they point to Meléndez's
own testimony that her life "changed entirely" during the period
following the second surgery. They note that Meléndez was unable
to care for herself or perform her daily activities after the
second surgery and conclude that Plaintiffs were therefore aware
of the "outward physical manifestations" of Dr. Rosado's
negligence.
We find this argument uncompelling. There is no
indication in Meléndez's testimony that the change in her quality
of life was sudden or otherwise suspicious. As already noted,
- 14 -
Meléndez was bedridden even before her second surgery.
Furthermore, when describing her pain following the second surgery
Meléndez specifically highlighted the intensive care she required
following her discharge from the hospital in May of 2014, a month
and a half after her second surgery. Under the circumstances, a
reasonable person in Meléndez's situation could have believed that
her increasingly unmanageable pain was simply a continuation of
the decline which she was already suffering, and which prompted
her to seek medical assistance from Dr. Rosado in the first place.
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.
In the alternative, Defendants suggest that Plaintiffs
were aware of facts sufficient to put them on notice of their claim
upon Meléndez's departure from Dr. Rosado's care in June of 2014.
To substantiate their argument, Defendants highlight Herminio's
testimony before the court, including his statements that
following Meléndez's second surgery she was bedridden and in severe
pain, and that her family no longer trusted Dr. Rosado. Defendants
also point to Ramos's testimony that he initially met with Dr.
Rosado because Meléndez's condition was worsening, and because her
pain had increased rather than decreased after her second surgery.
These statements and others are presented as evidence that
- 15 -
Plaintiffs knew of Meléndez's injury, knew that it was a result of
her surgeries at the hands of Dr. Rosado, and knew that the injury
could be considered tortious rather than a mere side effect.
We again find Defendants' argument uncompelling. In
light of our prior decisions, the statements made by Plaintiffs
and Herminio do not preclude a reasonable jury from finding that
Plaintiffs had no knowledge of their claim as of June 2014. Not
only could Plaintiffs reasonably have concluded that Meléndez's
ongoing pain was a result of her initial, pre-surgery spinal
problems, they also had no basis for believing any further injury
(if identified) was tortious in nature. It is well-established
that a plaintiff may "reasonably rel[y] upon representations made
by a tortfeasor that her symptoms are not the result of a negligent
or otherwise tortious act," even where she is aware of her
underlying injury and its cause. Rodriguez-Suris, 123 F.3d at 16–
17 (first citing Colón Prieto, 15 P.R. Offic. Trans. at 329–30;
and then citing Villarini-Garcia, 8 F.3d at 85–86). As Plaintiffs
note, Dr. Rosado warned Meléndez in advance of her operations that
side effects including severe pain, re-compression of the spine,
or even paralysis could all result from surgical intervention.
Indeed, Ramos testified to being apprehensive about the outcome of
the surgeries even before Meléndez underwent her first operation
simply because he was aware that spinal surgery is a very delicate
process. While warnings prior to a risky surgery do not rise to
- 16 -
the level of assurances that an operation was non-negligently
performed, they nevertheless provide a basis for a reasonable
person to assume that, insofar as an identifiable injury results
from surgery, that injury is not potentially tortious in origin.
Furthermore, Plaintiffs provide a reasonable alternative
explanation for their loss of trust in Dr. Rosado. They argue
that a jury could reasonably infer that Meléndez and Ramos lost
trust in Dr. Rosado because he failed to visit Meléndez during her
post-surgery hospitalization, or because he confused her with
another patient when she visited his office for a follow up
appointment. We agree. A patient who decides that her current
doctor is unsuitable, untrustworthy, or simply unlikeable may
nevertheless not suspect him of malpractice. Similarly, a patient
warned of the many risks of a medical procedure and suffering only
an escalation of her original condition following the procedure,
may reasonably not suspect that the procedure itself caused some
tortious harm. We therefore conclude that a reasonable jury could
find that Plaintiffs had no knowledge of their potential claim
when they withdrew Meléndez from Dr. Rosado's care in June of 2014.
Nor do we accept Defendants' argument that Plaintiffs
had knowledge of their potential claim by the time they received
Meléndez's records from Dr. Rosado on August 22, 2014. Defendants
support this argument by reference to the testimony already
considered above, and to statements by Plaintiffs' counsel alone
- 17 -
at sidebar that trial testimony on Plaintiffs' efforts to obtain
Meléndez's medical records was relevant to the statute of
limitations. The statements of counsel at sidebar are not evidence
before the jury and are therefore not relevant to the disposition
of a motion for judgment as a matter of law. See Fed. R. Civ. P.
50(a)(1); see also, e.g., United States v. Mejia-Lozano, 829 F.2d
268, 274 (1st Cir. 1987) (discussing the sufficiency of jury
instructions regarding statements of counsel). Defendants
therefore suggest no basis for their proposed August 22, 2014,
date that has not already been considered and rejected with respect
to the March and June dates. Accordingly, we determine that a
reasonable jury could have concluded that Plaintiffs lacked the
requisite knowledge of Meléndez's injury, its author, and its
potentially tortious nature as of their acquisition of Meléndez's
medical records.
We move now to the question of whether Plaintiffs had
constructive knowledge of their potential claim more than one year
before filing suit. To determine that they had such knowledge as
a matter of law, 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. See
Colón Prieto, 15 P.R. Offic. Trans. at 330–31; Espada, 312 F.3d at
4. We begin by considering, in light of the circumstances and
- 18 -
arguments recounted above, whether Plaintiffs could reasonably be
found to have exercised due diligence prior to October 19, 2015.
The diligence required to preclude a finding that a
plaintiff's claim is time-barred depends on the plaintiff's
specific situation. In Espada, the plaintiff underwent a
mastectomy to treat her breast cancer, including the removal of
numerous lymph nodes, and subsequently suffered persistent
swelling in her arm. 312 F.3d at 2—3. She was reassured by her
physician that the swelling was normal, despite receiving no
warning prior to the surgery that it was a potential side effect.
Id. at 4. The plaintiff sought treatment for her swelling
(diagnosed as lymphedema) from other physicians and ultimately
learned, two years after her surgery, that it was caused by the
removal of her lymph nodes. Id. at 5. While the plaintiff was
aware "more than one year before the suit was filed that a serious
and persistent affliction had followed her surgery and that [her
doctor] was responsible for the surgery," we determined that her
claim was not time-barred as a matter of law. Id. We indicated
specifically that the plaintiff (1) was initially entitled to rely
on her doctor's assessment that the operation was properly
performed, and (2) had no reason to suspect malpractice until she
was alerted of the possibility by a medical professional, given
- 19 -
that lymphedema could result even from non-negligent surgeries.
Id.In Villarini-Garcia, the plaintiff underwent a mole
removal surgery on her back during which her physician, without
her consent, removed a portion of her muscle tissue. 8 F.3d at
83. She was reassured that the removal was normal and that she
would suffer "no lasting harm," but nevertheless developed
debilitating arm pain which continued in the years following her
surgery. Id. Three years after her surgery, she consulted a
number of doctors about her persistent pain, before ultimately
receiving a diagnosis suggesting malpractice and filing suit. Id.
at 84. We determined that her negligence claim was not time barred
as a matter of law because (1) she was initially entitled to rely
on her doctor's assurances that she would suffer no lasting harm,
and (2) she could reasonably have lacked knowledge of her
negligence claim until she was informed of its existence by a
medical professional, despite failing specifically to investigate
whether the mole removal surgery could be the source of her pain.
Id. at 86.
Plaintiffs argue, and we agree, that the instant case is
largely comparable to Espada and Villarini-Garcia. On their face,
the injuries suffered by Meléndez were if anything less apparent
than those suffered by the plaintiffs in Espada and Villarini-
Garcia. Neither surgery resulted in an abrupt or identifiable
- 20 -
additional impairment, such as a swollen arm following a
mastectomy, or severe arm pain resulting from the removal of a
mole on the back. Espada, 312 F.3d at 3; Villarini-Garcia, 8 F.3d
at 83. Rather, they were of like kind and manifestation to
Meléndez's original condition. While Meléndez did experience an
increase in her back pain following the surgeries performed by Dr.
Rosado, she had been experiencing increasing pain for some time,
so much so that she had within the prior year found herself unable
to work, sit, or even stand for extended periods. Indeed, Meléndez
was initially able to continue managing her pain with medication
following the first surgery, and only after some time had passed
did her pain worsen to the point where she was confined to her
bed. Similarly, she was bedridden both before and after her second
surgery. Finally, while Meléndez did not receive direct assurances
from Dr. Rosado that her continuing pain was normal or nothing to
worry about, as did the Espada and Villarini-Garcia plaintiffs,
she nevertheless was clearly warned that the surgeries could be
unsuccessful or potentially result in additional pain even without
any negligence by Dr. Rosado.
Furthermore, the diligence undertaken by Meléndez is
comparable to that pursued by the plaintiffs in Espada and
Villarini-Garcia. We determined in Espada that "[i]t would surely
be permissible for a jury to find that [the plaintiff] was diligent
in her investigation of the cause of her lymphedema by
- 21 -
communicating with the National Lymphedema Network and by meeting
with other doctors in her attempt to discover the cause of her
lymphedema." 312 F.3d at 4–5. In Villarini-Garcia, we noted that
while the plaintiff "might be faulted for not specifically asking
the doctors" she saw following her surgery "whether the operation
had caused the new pain, at least some of these specialists were
aware of the operation but none of the varying diagnoses she
received pointed to the operation as a possible cause." 8 F.3d at
86. We therefore concluded that "a reasonable factfinder . . .
could find that [the plaintiff] did exercise due diligence" as to
her potential claim, but "the final ingredients for the
[negligence] claim did not fall into place until after the pain
persisted and [a new physician] gave his opinion." Id. Similarly,
Meléndez consulted multiple physicians regarding her persistent
back pain after her first two surgeries. Despite knowing of her
prior surgeries, even Dr. Refai did not suggest that Meléndez had
a potential claim for malpractice until he fully reviewed her
translated medical records.
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. First,
the basis for actual knowledge is not notably different between
Plaintiffs' acquisition of Meléndez's records in August of 2014
and their pre-surgery consultations with Dr. Refai in December of
- 22 -
that year. Meléndez remained bedridden from before her second
surgery until her third surgery, and her diagnosis by Dr. Refai
was the same diagnosis of spinal compression she had initially
received from Dr. Rosado. Indeed, the treatment suggested by Dr.
Refai (a third surgery) was also the treatment suggested by Dr.
Rosado. Our analysis of the facts prior to the third surgery
therefore mirrors our analysis with respect to Defendants'
suggested June and August dates, and we conclude that a reasonable
jury could find that Plaintiffs had no actual knowledge of their
potential claim prior to Meléndez's third surgery.
Second, there is no basis for concluding that a
reasonable jury could not find Plaintiffs lacked constructive
knowledge immediately prior to Meléndez's third surgery. Our
decisions in Espada and Villarini-Garcia demonstrate that even
where an injury is readily identifiable, and the author of the
injury is readily known, a plaintiff can be found to exercise
adequate diligence where she diligently seeks treatment for her
injury from additional physicians. Meléndez did exactly that.
While Meléndez was not directly reassured by Dr. Rosado that her
first two surgeries were non-negligent, she nevertheless had
reason to suspect, like the Espada plaintiff, that injury could
result even from non-negligently performed surgery. See 312 F.3d
at 5. Indeed, we have previously noted that a putative plaintiff
must have knowledge that "the injury could be considered a tort"
- 23 -
and not merely "an expected side effect." Id. at 4. That it is
possible to believe that Meléndez could have done more to
investigate her injury does not preclude a reasonable jury from
finding that she was nevertheless reasonably diligent under the
law. We therefore conclude that a reasonable jury could find that
Plaintiffs exercised due diligence but were nevertheless not aware
of the facts necessary to establish a claim at the time of
Meléndez's third surgery.
The district court found that even if Plaintiffs had no
actual knowledge of their potential claim as of the proposed dates,
they at least had constructive knowledge following Meléndez's
successful third surgery. Indeed, the district court concluded
that Meléndez's recovery following the third surgery would lead a
reasonable person to question the first two surgeries and seek
answers. Rather than seeking answers, however, the district court
found – and Defendants argue on appeal – that Plaintiffs engaged
in no due diligence prior to their request that Dr. Refai review
Meléndez's medical records in November of 2015, and therefore
failed to satisfy their burden with respect to constructive
knowledge.
While plausible, this line of reasoning is not so
persuasive that a reasonable jury could not disagree. First, as
Plaintiffs point out, given the potential complications of spinal
decompression surgery the jury could have reasonably concluded
- 24 -
that Meléndez's improvement did not raise suspicion that the prior
surgeries were unsuccessful due to medical malpractice. Just as
a jury could find Plaintiffs acted reasonably in assuming
Meléndez's negative surgical outcomes were expected and non-
negligent, there is no clear reason why a jury could not find
similar grounds for Plaintiffs' acceptance of positive surgical
outcomes. There is no evidence that either of Meléndez's surgeons
indicated that the unsuccessful first two surgeries were in any
way suspicious or out of the ordinary. Rather, Dr. Refai even
informed Meléndez that there would be significant risks to a third
surgery, thus providing a further ground for Plaintiffs to conclude
that spinal surgeries are simply often unsuccessful. Second,
although Meléndez "did remarkably well" after her third surgery,
it is not the case that the outcome was so radically different as
to preclude a finding that they lacked constructive knowledge.
After her first surgery, for example, Meléndez felt "okay" and
could manage her pain with medication as she had done previously.
Likewise, after her successful third surgery, it still took
Meléndez six weeks to be able to walk three quarters of a mile.
While Meléndez could have questioned the first two surgeries in
light of the third, a plaintiff's failure to act optimally does
not necessarily render her behavior unreasonable. See Villarini-
Garcia, 8 F.3d at 86 (noting that plaintiff "might be faulted" for
failing to inquire about the relationship between her earlier
- 25 -
surgery and current injury, but nevertheless declining to grant
judgment as a matter of law on the question of timeliness). A
jury could nevertheless conclude that a reasonable person would
withhold judgment as to the efficacy of the third surgery until
some time had passed and Meléndez was farther along the road to
full recovery.
Finally, although Defendants allege that Plaintiffs
engaged in no medical consultations or similar due diligence even
in the months following her third surgery, this is not entirely
true. Rather, Meléndez met with Dr. Refai "at regular intervals"
following the third surgery to discuss her recovery. Once it
became apparent that Meléndez's third surgery was indeed
successful, Plaintiffs proactively sought Dr. Refai's professional
opinion regarding the standard of care followed by Dr. Rosado in
Meléndez's first and second surgeries. Although eleven months
elapsed between Meléndez's third surgery and Plaintiffs' request
that Dr. Refai review her medical records, those eleven months
involved both a lengthy recovery process (during which it took at
least a month and a half for Meléndez to even walk a reasonable
distance) and consistent meetings with Dr. Refai about the very
condition that this action addresses. Given the precedent of
Villarini-Garcia, where a plaintiff's meetings with various
specialists for treatment of her arm pain over a four-year period
constituted adequate due diligence even where she knew that she
- 26 -
began suffering new and unusual pain following a surgical
intervention, it is not clear that Meléndez's ongoing pursuit of
treatment for her own back pain could not constitute due diligence
under the relevant law. 8 F.3d at 83, 86.
Nor is the fact that there are plausible arguments
against Plaintiffs' exercise of due diligence dispositive. It is
not the task of Plaintiffs to prove beyond a shadow of a doubt
that their diligence was adequate and that they therefore lacked
the constructive knowledge that would time-bar their complaint.
Rather, Plaintiffs must only show that the question of their
knowledge is one on which "reasonable men and women can differ."
Id. at 87. If a reasonable jury could have found Plaintiffs' claim
was timely filed, we must reverse the district court's issuance of
judgment as a matter of law. Astro-Med, Inc. v. Nihon Kohden Am.,
Inc., 591 F.3d 1, 13 (1st Cir. 2009). Under the relevant case
law, a reasonable jury could indeed have found that Plaintiffs
exercised adequate diligence to preclude a finding of constructive
knowledge as of Meléndez's final post-operative appointment with
Dr. Refai in November of 2015.
CONCLUSION
Let us be perfectly clear. 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
- 27 -
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,
consideration of defendants' alternative motion for a new trial or
remittitur, and such other proceedings as may be appropriate,
consistent with this opinion. Costs are taxed in favor of
plaintiffs-appellants.
So ordered.
- 28 -