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Case 3:11-cv-02092-FAB-BJM Document 102 Filed 08/15/13 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

PAUL CASILLAS-SANCHEZ, et al.,

Plaintiffs,
v.

RYDER MEMORIAL HOSPITAL, INC.,
et al.,

Defendants.

Civil No. 11-2092 (FAB)

MEMORANDUM AND ORDER

BESOSA, District Judge.

Before the Court is the “petition for certification of issue
of law” filed by defendant Ryder Memorial Hospital, Inc. (“Ryder”)
on August 8, 2013. (Docket No. 98.) Having considered the
arguments contained in defendant Ryder’s motion, as well as the
opposition filed by plaintiffs, (Docket No. 99), the Court DENIES
defendant Ryder’s petition for certification to the Supreme Court
of Puerto Rico.
I.

PROCEDURAL BACKGROUND
On February 24, 2012, seven children and one grandchild
(collectively, “plaintiffs”) of decedent Mrs. Rosa E. Sanchez
(“Rosa”) filed this diversity action against, inter alia, Ryder
Hospital and Dr. Edgar A. Cardona-Traverso (“Dr. Cardona”).
(Docket No. 30.) Plaintiffs allege gross negligence and medical
malpractice by Dr. Cardona, and they claim that defendant Ryder is
vicariously liable for Dr. Cardona’s alleged actions.

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Civil No. 11-2092 (FAB)

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Defendant Ryder filed a motion for summary judgment on
April 22, 2013, arguing that plaintiffs lack any evidence to
establish Ryder as a co-tortfeasor of Dr. Cardona or to establish
that Ryder’s personnel was negligent. (Docket No. 56 at 1–2.)
Plaintiffs subsequently filed their own motion for summary
judgment, requesting that the Court find Ryder vicariously liable
for Dr. Cardona’s alleged actions. (Docket No. 61.) The Court
referred the case to United States Magistrate Judge Velez-Rive, who
issued a report and recommendation (“R&R”) in which she recommended
that the Court deny both motions for summary judgment. (Docket
No. 63.) Defendant Ryder failed to object to the R&R. On July 24,
2013, the Court adopted the magistrate judge’s findings and denied
both motions. (Docket No. 80.) Defendant Ryder now moves to
certify to the Supreme Court of Puerto Rico the issue of whether
the doctrine of apparent or ostensible agency relieves plaintiffs
of the burden to prove a negligent act, omission or “in eligendo;
in vigilando or in contrahendo” duties on part of the hospital.
(Docket No. 98 at 6.)
II. CERTIFICATION STANDARD

The Supreme Court of Puerto Rico has established several
prerequisites for accepting certified questions of Puerto Rico law
from federal courts, one of which is fatal to defendant Ryder’s
petition: “no clear precedents in the decisions of the Supreme
Court of the Commonwealth of Puerto Rico” can exist. P.R. Laws

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Civil No. 11-2092 (FAB)
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Ann. tit. 32, App. III, Rule 53.1(f); see also Pan Am. Comp. Corp.
v. Data Gen. Corp., 112 D.P.R. 780, 788, 12 P.R. Offic. Trans. 983,
993 (1982) (interpreting the same provision in an earlier version
of Rule 53.1’s certification requirements). In its previous
Memorandum and Order, the Court cited two Puerto Rico cases
addressing the apparent authority doctrine and thus held that
“clear legal precedent” exists as a basis for holding the hospital
vicariously liable for Dr. Cardona’s alleged acts. (Docket No. 80
at 9) (citing Marquez-Vega v. Martinez-Rosado, 116 D.P.R. 397; 16
P.R. Offic. Trans. 487 and Fonseca v. Inter-Am. Hosp. for Advanced
Medicine (HIMA), 184 D.P.R. 281 (2012)). Certification is not
warranted, therefore, because defendant Ryder cannot meet all of
Rule 53.1(f)’s requirements. Moreover, the First Circuit Court of
Appeals has held that “the purpose of certification [to a state
court] . . . is not to permit a party to seek to persuade the state
court to change what appears to be present law.” Cantwell v. Univ.
of Mass., 551 F.2d 879, 880 (1st Cir. 1977). The court of appeals
also does not look favorably on “trying to take two bites at the
cherry by applying to the state court after failing to persuade the
federal court . . . .”) Id. For these reasons alone,
certification of defendant Ryder’s issue is unwarranted.
Nonetheless, the Court addresses Ryder’s concern that the
principles underlying Puerto Rico law are somehow inconsistent with
imposing strict liability on a hospital for the exclusive

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Civil No. 11-2092 (FAB)
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negligence of a non-employee physician under the apparent or
ostensible agency doctrine.
III. DISCUSSION

Defendant Ryder disputes that hospital liability for the
exclusive negligence of a non-employee doctor can be sustained
under the apparent or ostensible agency doctrine. It alleges that
courts have misconstrued Supreme Court of Puerto Rico case law by
allowing a plaintiff to invoke the theory without first requiring
proof of two elements that are typically required for vicarious
liability: (1) a negligent act or omission by the hospital and (2)
the hospital’s failure to comply with its legal duties of “in
eligendo; in vigilando or in contrahendo.” (Docket No. 98 at 5–6.)
Because strict or absolute liability “is against the gist” of the
concepts underlying articles 1802 and 1803 of the Puerto Rico Civil
Code, defendant Ryder claims that hospital liability for Dr.
Cardona’s alleged negligence cannot stand unless the plaintiff
retains his or her burden of proof of the two factors above. Id.
In Marquez-Vega, the Supreme Court of Puerto Rico embarked on
a historical review of the evolution of hospital liability for a
physician’s malpractice. Its discussion began by recognizing the
growth of the concept of hospitals as “merely institutions that
provided some basic health care services” in the early twentieth
century to modern times, in which “total health-care centers” hire
physicians as part of their staff. Marquez-Vega, 16 P.R. Offic.

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Trans. 487. In light of that evolution, the Supreme Court of
Puerto Rico identified three legal theories under which hospitals
have become liable pursuant to what the Supreme Court of Puerto
Rico characterizes as “North American law.” First, when there has
been negligence on the part of the hospital’s employees, medical
staff, or agents, the institution is liable under the theory of
respondeat superior. Id. Second, pursuant to the “corporate
negligence” doctrine, a hospital may be liable for the negligent
acts of a physician who was merely granted the privilege of using
the hospital’s facilities for his or her private patients. Id.
(explaining that pursuant to the corporate negligence doctrine,
hospitals can be liable for their carelessness or imprudence in
selecting a physician and granting him or her hospital privileges;
failing to require a physician to keep abreast of professional
advancement studies; or neglecting to monitor a physician’s work
adequately). Third, a hospital may be liable for a physician’s
negligence under the “apparent or ostensible agency” doctrine,
which is implicated “when a patient first comes to a hospital in
search of help and he [or she] understands, or is given the
impression, that all the medical staff attending him [or her] is
employed by the hospital, regardless of whether or not it is.” Id.
After detailing the three recognized legal theories under
“North American law,” the Supreme Court of Puerto Rico turned to
the doctrine under the Commonwealth’s jurisdiction. It

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acknowledged that historically, “whenever this Court has held a
hospital liable for malpractice with regard to patients interned
[sic] in the same, it has always been on account of a negligent act
on the part of the institution’s employees; consequently the
hospital’s liability has been predicated on the vicarious liability
doctrine.” Marquez-Vega, 16 P.R. Offic. Trans. 487 (emphasis in
original). It then went on to acknowledge, however, that given the
historical evolution of hospitals, the doctrine under which
hospitals are held liable has similarly expanded in Puerto Rico.
Id. (“[T]he very same events which have caused the rapid evolution
of the North American doctrine on hospital liability have already
been felt in our jurisdiction. Consequently, our doctrine has also
been undergoing a gradual development.”).

The Supreme Court of Puerto Rico ultimately found that whether
a hospital may be held liable for the malpractice committed
exclusively by a physician who is not an employee depends on the
patient-hospital relationship. Id.; Garcia-Colon v. Garcia-
Rinaldi, 340 F.Supp.2d 113, 127 (D.P.R. 2004) (Dominguez, J.). The
fundamental question is whether the patient entrusted his or her
health to the hospital or to the physician. Marquez-Vega, 16 P.R.
Offic. Trans. 487. When a patient “goes directly to the hospital
seeking medical aid and the hospital ‘provides’ the physicians who
treat him [or her],” then the hospital is jointly and severally
liable for the physician’s negligence because the patient has

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entrusted his or her health to the hospital. Id.; Mercado-Velilla
v. Asociacion Hosp. del Maestro, 902 F.Supp.2d 217, 236–37 (D.P.R.
June 16, 2012) (Lopez, M.J.). Under this scenario, the
relationship between the physician and the hospital is not
relevant. Garcia-Colon, 340 F. Supp. 2d 113 at 127 (“[T]he Supreme
Court [of Puerto Rico] found that in the described situation where
the patient seeks for medical help directly at the institution, it
did not matter if the doctor who was negligent was an employee of
the institution, had privileges to work at the institution[,] or
was part of the consulting staff of the institution.”). To the
contrary, when the patient has first gone directly to the
physician’s private office and then is treated at the hospital “on
the physician’s recommendation merely because said institution is
one of several which the physician has the privilege of using,” the
hospital cannot be held liable for the physician’s exclusive
negligence. Mercado-Velilla, 902 F.Supp.2d at 236 (citing Marquez-
Vega, 16 P.R. Offic. Trans. 487). In that situation, however, the

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hospital may be held liable for its own negligence. Garcia-Colon,
340 F.Supp.2d at 127.

1

Thus, although historically a hospital’s liability was based
on the vicarious liability doctrine in Puerto Rico and extended to
a hospital’s employees, Morales v. Monagas, 723 F.Supp.2d 416, 419
(D.P.R. 2010) (Gelpi, J.), the Supreme Court of Puerto Rico has
made clear that the doctrine has expanded to situations where a
patient seeks medical aid directly from a hospital and the hospital

2

1

A hospital does owe an independent duty of care to its

patients to, inter alia:

(a) carefully select the physicians to whom it grants
privileges; (b) require that such physicians stay abreast
of the most recent developments in their respective
fields; [and] (c) monitor the work of such physicians,
intervening, when possible, in the face of an obvious act
of medical malpractice by one of them.

Marquez-Vega, 16 P.R. Offic. Trans. 487; Garcia-Colon, 340 F. Supp.
2d at 127. In their complaint, however, plaintiffs do not allege
that the hospital breached any independent duty to Rosa; rather,
they premise the hospital’s liability only on defendant Dr.
Cardon’s alleged negligence. Accordingly, this independent ground
for hospital liability is inapposite.

2

Article 1803 of the Puerto Rico Civil Code governs the

vicarious liability doctrine in Puerto Rico and provides:

[t]he obligation imposed by § 5141 of this title is
demandable, not only for personal acts and omissions, but
also for those of the persons for whom they should be
responsible . . . . Owners or directors of an
establishment or enterprise are likewise liable for any
damages caused by their employees in the service of the
branches in which the latter are employed or on account
of their duties.

P.R. Laws Ann. tit. 31, § 5142.

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provides the treating physician — regardless of the physician’s
employment relationship with the hospital. This is consistent with
a fundamental concept underlying article 1803 and the evolution of
hospitals as “total health-care centers.” A leading commentator on
the Spanish civil code confirms that the liability imposed by
article 1803 on those who must answer for the negligent act or
omissions of another is not subsidiary [“subsidiaria”], but rather,
direct. Manresa, Comentarios al Codigo Civil Español, 5th ed.,
1951, T.12, p. 665. (Court’s translation) The law imposes such
direct liability when a special relationship of authority or
superiority exists, and harm is caused by the superior’s dependents
in the effectuation of services with which the superior has been
entrusted. Id. at p. 672. As the Supreme Court of Puerto Rico
explained, hospitals have earned the reputation as total health-
care centers, and by providing physician services to a patient they
are “‘guaranteeing’ to the patient that said physician, or any
other who treats him [or her] under those circumstances, is a
competent physician who is fit to render medical assistance.”
Marquez-Vega, 16 P.R. Offic. Trans. 487. Moreover, “from the
patient’s point of view[,] what he [or she] has in ‘front’ of him
[or her] is the institution as such, not physicians independent and
distinct from each other and from the hospital.” Id. Holding the
hospital liable for the doctor’s negligence, regardless of the

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doctor’s actual employment relationship with the hospital,
therefore, is reasonable and consistent with Puerto Rico law.

In this case, Ryder Hospital may be held liable for
Dr. Cardona’s alleged negligence and malpractice. On September 12,
2009, Rosa sought admittance to the Emergency Room at Ryder for
medical aid. As the Court previously found, “[t]here is no
submission that [Rosa] was ever a former patient of Dr. Cardona or
that the relationship established by said patient and the hospital
was of an incidental nature.” (Docket No. 63 at 7.) Instead, a
physician at Ryder consulted Dr. Cardona in order to transfer Rosa
to Dr. Cardona’s care. Dr. Cardona ultimately accepted Rosa as his
patient and performed an open cholecystectomy on her. Rosa thus
entrusted her health to the hospital — not to the doctor — and
because the patient went directly to Ryder seeking medical aid and
the hospital provided Dr. Cardona as a treating physician, Ryder
may be held jointly and severally liable for Dr. Cardona’s
negligence. That Dr. Cardona was not an employee of Ryder but
instead had privileges to practice at Ryder and was a member of the
institution’s medical faculty staff does not affect the Court’s
conclusion.
IV. CONCLUSION

For the reasons discussed above, the Court DENIES defendant
Ryder’s petition for certification of issue of law, (Docket

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Civil No. 11-2092 (FAB)
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No. 98). It also DENIES plaintiffs’ request for sanctions and
attorney’s fees, (Docket No. 99).

IT IS SO ORDERED.
San Juan, Puerto Rico, August 15, 2013.

s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE