Ramos Orengo v. Government of the Capital of Puerto Rico
Ramos Orengo v. Government of the Capital of Puerto Rico
Opinion of the Court
The facts of this case are simple. On September 17, 1959 appellee Agustín Ramos Orengo was removed by Carlos Juan Medina Rivera to the outpatient clinic of the Government of the Capital in Barrio Obrero, Santurce, Puerto Rico, because the night before he had been taken ill with vomiting and diarrhea. From the taxicab he was placed on a wheel stretcher and taken to clerk Esther Carbonell de Reinosa who referred him to nurse Santa Rivera because it was an emergency case. The latter referred him to Dr. Ben-liza who instructed her to prepare him for examination while he finished attending another patient. Nurse Rivera then proceeded to take off his shirt.
The trial court concluded that the fracture in question would not have occurred if the outpatient clinic employees had exercised due care and diligence to protect appellee so he would not fall from the stretcher, which constitutes negli
In its petition for review which we granted on August 7, 1962, appellant assigns three errors of which we will discuss two in the course of this opinion.
FIRST ERROR: “The trial court committed gross error of law in concluding that it was defendant’s duty to exercise continuous vigilance over plaintiff while he was in .the outpatient clinic of Barrio Obrero.”
We cite, with approval, the following from appellant’s brief:
“In the discussion of its conclusions of law the trial court stated as follows:
‘In our opinion, the patella of plaintiff’s left knee would not have been fractured if the employees of the outpatient clinic of Barrio Obrero had exercised due care and diligence to protect the patient. When a patient is confined in a clinic, it is the latter’s duty to .determine his condition and to give him due assistance in order to protect him in accordance with his condition. It was the duty of the officers and employees of the outpatient clinic to exercise due diligence in order to determine the degree of care and continuous vigilance so he would not fall from the stretcher. The lack of such ordinary care constitutes negligence.’ ” (Italics ours.) See Statement of the Case, Findings of Fact and Conclusions of Law, p. 6.
*310 “This conclusion of .the trial court presupposes that the nurses who attended plaintiff in the outpatient clinic of Barrio Obrero should have anticipated the possibility of the occurrence of the accident. The court’s reasoning seems to be predicated on the doctrine of Hernández v. The Capital, 81 P.R.R. 998, in which it was established as a standard of conduct for hospitals in connection with their patients that they owe the latter the reasonable care and attention required by the circumstances, and that such standards of care and attention are measured by taking as a guidopost the practice prevailing in the community and considering the specific conditions of the patient which are controlling in each case.”
However, the trial judge did not rely on the case of Hernández, supra, but on those of Roses v. Juliá, 67 P.R.R. 485 (1947); Carrasquillo v. Am. Missionary Association, 61 P.R.R. 837 (1943); and President and Director of Georgetown College v. Hughes, 130 F.2d 810 (D.C. Cir. 1942).
In Carrasquillo, supra, we held that the burns suffered by a newly born baby as a result of two hot water bags placed by a nurse in the cradle was not an unavoidable accident, since by the exercise of reasonable care on the part of the nurse and the physician who attended the patient and the child in order to determine whether the cradle was at the proper temperature, the accident could have certainly been avoided. In this case, citing that of President and Director of Georgetown College, supra, we also held that a hospital is liable for the damages sustained by the child as a result of the negligence of its employees, notwithstanding the fact that the hospital renders gratuitous services to insolvent patients. In Roses, supra, a patient who was suffering from involutional psychosis, with a special tendency to suicide, was hospitalized in defendant’s clinic. She escaped from her room, climbed to the terrace of the building, and from there she fell or jumped to the ground, suffering bruises and wounds as a result of which she died the same day. We upheld the trial court’s conclusion in this case in the sense that the
“. . . The nurse was outside the room, busy changing the serum of one of the very sick patients, in a position where she could observe the adjoining room through a glass,
“We believe that the hospital could have given Marta Iris the protection and care required by her condition by the use of certain simple measures at a minimum cost. Thus, for example, it could have assigned an additional nurse at the time when the aide was outside the ward or when there were several patients who required special vigilance; it could have grouped the latter in such a way that upon assisting one of them the nurse could, at the same time, watch the others closely; and provided cribs so equipped as to make it impossible for restless children to get down.”
The facts in the case under consideration are entirely different from those which we considered in the cases which we have just analyzed. Neither the specific acts which caused the injuries in Carrasquillo, supra, nor the knowledge of the patient’s mental condition which defendant’s employees had in Roses, supra, nor the very special conditions which existed in Hernández, supra, are present in the instant case. On the contrary, the evidence is rather to the effect that when appellee arrived at the outpatient clinic he was quiet, weakened to such an extent that it was necessary to carry him on a wheel stretcher, and that at the very moment the nurse was taking off his shirt in order to prepare him for medical examination, suddenly and unexpectedly he turned over and fell from the stretcher. At no time was appellee left alone on the stretcher; on the contrary, he fell from it while he was being attended. The trial judge concluded that the injection was administered after he fell, so that the latter was not caused by the former. As we stated in Hernández, supra:
“The duty of foreseeability does not extend to all the hazards imaginable which could conceivably threaten the patient’s security but to those which are likely to happen and which can be anticipated by a prudent person.”
“And we can not but insist that the entire evidence of this case shows that the accident occurred so suddenly that its occurrence could not be foreseen.”
In Roth v. Havens, Inc., 353 P.2d 159 (Wash. 1960), a mental patient fell from her bed and injured herself while the nurse momentarily left her room in defendant hospital without raising the bed rails. The evidence was that, while the nurse administered to respondent on the morning in question, she appeared normal and coherent. Bed rails were required to be raised after each electric shock treatment when the patient would be temporarily confused, incoherent and unsteady. Under such circumstances, the Supreme Court of the State of Washington, citing from the case of Cochran v.
. . hospitals owe to their patients such ordinary care and attention as the mental and physical condition of such patient reasonably requires. The law demands reasonable care, such care as a reasonable man would take under the circumstances existing, but no man is required to take measures against a danger which the circumstances as known to him do not suggest as likely to happen.”
The court further said:
“Respondent contends the fact that the nurse momentarily left respondent alone on the bed with the bed rails down constituted a breach of the duty of care owed the respondent. Such itself is not proof of negligence. There must be proof that respondent was in such a condition, which was known or should have been known by the nurse, that reasonable care under the circumstances required raised bed rails.
“There was no such proof ....
“. . . As a consequence, the other allegations of negligence which allegedly resulted in the nurse leaving respondent momentarily with the bed rails down, must also fail.”
In McPartland v. State, 98 N.Y.S.2d 665 (1950), an epileptic patient confined in a state hospital, while convalescing and several weeks since he had an epileptic seizure, drowned in a tub for watering cattle on the other side of a fence consisting of three wire strands which separated it from the cottage where the patient lived. There was evidence that he had an epileptic seizure which caused him to fall with the upper half of the body in the tub. In affirming the judgment of dismissal, the court said:
“. . . To say the epileptic patient might at long intervals be expected to fall is not to say that all that happened here was to be predicated at the risk of liability. Our judgment is that a reasonably prudent hospital management would not have anticipated what happened and should not be expected to have anticipated it at the risk of liability for the occurrence.”
“That the accident occurred suddenly and unexpectedly is clearly demonstrated by the following statements of defendant’s witness Santa Rivera. Pages 48 and 50 of the transcript of the evidence.
Page U8:
‘Q. Could you inform the court what your intervention with this man consisted of?
‘A. Well, they brought him to me on a stretcher. I was getting him ready when all of a sudden something went wrong with him, he turned over and fell to the floor.
Page 50:
‘Q. How did the fall occur, if you know ?
‘A. I don’t know, all of a sudden the man, you know, raised his feet, turned over and fell right away. Since the stretcher is narrow, he fell to the floor.
‘Q. Did that happen suddenly or gradually?
‘A. Suddenly.’
“That the accident occurred suddenly and unexpectedly was also confirmed by Dr. Benliza’s testimony:
Page 68:
‘Q. Could you tell us what the intervention consisted of?
‘A. Well . . . and when I arrived he was still on the floor having chronic convulsions . . .’
Page 69:
‘Q. What was the injection for?
‘A. Since he was having convulsions it was necessary to stop them.
‘Q. What type of convulsions and seizures ?
‘A. Type of (sic).
‘Q. Does that occur suddenly or gradually ?
‘A. It comes suddenly.
Page 70:
‘Q. Doctor, these symptoms of convulsions which you noticed in this plaintiff, are they typical of epilepsy?
‘A. No, I’ve said that they are epileptiform, that they resemble an epileptic attack.’
“We therefore have it that while nurse Santa Rivera was getting him ready, plaintiff had a sudden epileptiform attack as a result of which he started to move suddenly, and we also*317 have it that this type of behavior could neither be anticipated by the nurse who was assisting him that moment since, as we have already said, the attack came unexpectedly without any previous signs that it could occur.
“In view of such clear facts, the trial court had no basis to conclude that defendant’s employees were under duty to keep continuous vigilance over plaintiff’s person. Nothing in the evidence shows that those employees had the least suspicion that plaintiff would be seized by such an attack.”
SECOND ERROR: “The trial court erred in concluding, as a matter of law, that the physicians who attended plaintiff in the municipal hospital .did not administer proper treatment.”
Appellant contends, correctly in our opinion, that:
“In the course of the discussion of its conclusions of law, the trial court stated as follows:
‘. . . But there is more, the patient remained five (5) days in the municipal hospital and he was not administered any treatment for the black-and-blue and fractured knee, and that with proper medical treatment and due diligence ■the patient would not have experienced such severe and distressing pains.’ Page 6, Statement of the Case, Findings of Fact and Conclusions of Law.
“The only disclosure in the record on which the trial court could perhaps base the preceding conclusion is some indicia in the evidence which are wholly insufficient. Such indicia appear from the testimony of plaintiff himself who testified that during his confinement in the municipal hospital the only treatment administered consisted in staying in bed, rest and food, and ■that they were going .to operate on him the sixth day, but that he was then removed to San Patricio Hospital.
“There was no evidence that such type of treatment was not the proper treatment for this particular case and that it was not the one used by other physicians of the community for that type of case. In considering plaintiff’s testimony, the trial court became its own expert in order to judge and determine the adequate treatment for the injury to plaintiff’s knee, and to conclude that the treatment administered by the attending physicians was not the proper treatment for the case.”
Appellant contends that “It is a well-established doctrine in our law that in the absence of evidence to the contrary, the presumption is that professionals have exercised a degree of reasonable care and that the treatment administered to the patient was adequate. Rivera v. Dunscombe, 73 P.R.R. 764 (1952); Sáez v. Municipality, 84 P.R.R. 515 (1962). Plaintiff was therefore bound to overcome this presumption, and in order to do so the evidence should have established that there was something more than a mere possibility that the damage was due to the physician’s failure to do his duty.”
In Sáez, supra, we said:
“. . . As stated above, an action to exact professional liability is not different from an ordinary case of damages for negligence. It is only necessary that the plaintiff establish by a preponderance of the evidence, believed by the trier, that the resulting damage was caused by acts of negligence, lack of care or skill of the physician. There is a presumption, in the absence of evidence to the contrary, that a degree of reasonable care has been exercised and that the adequate treatment was administered to the patient. The plaintiff is bound to present sufficient evidence to controvert this presumption, and to that end the evidence should show that there is more than a mere possibility that the damage was due to the physician’s failure to do his duty. It is necessary that the relation of causation should not be the product of mere speculation or conjecture, Johnson v. Ely, 205 S.W.2d 759 (Tenn. 1947); Lanier v. Trammell, 180 S.W.2d 818, 824 (Ark. 1944), but a preponderance of the evidence, Demchuk v. Bralow, 170 A.2d 868 (Pa. 1961); Atkins v. Humes, 107 So.2d 253 (Fla. 1958); Soest v. Balsinger, 141 P.2d 13 (Cal. 1943); Sansom v. Roos-Loos Medical Group, 134 P.2d 927 (Cal. 1943); Lohr v. Watson, 2 N.W.2d 6, 8 (S.D. 1942), namely, that it was more probable that the harm resulted from the negligence imputed by the plaintiff. Crewse v. Munroe, 355 P.2d 637 (Ore. 1960); Thompson v. Lillehei, 164 F.Supp. 716 (Minn.*319 1958); cf. Steele v. Woods, 327 S.W.2d 187 (Mo. 1959). He can not be required in this respect to exclude every other possible causation of the damage. Christie v. Callahan, 124 F.2d 825, 840 (C.C.A. D.C. 1941); Barham v. Widing, 291 Pac. 173, 177 (Cal. 1930); Boles v. Hotel Maytag Co., 253 N.W. 515, 517 (Iowa 1934). If the evidence discloses more than one possible cause of the damage, the physician can not be adjudged liable unless the evidence as a whole shows that the negligent act for which he is responsible is the more probable. Ritter v. Sivils, 293 P.2d 211 (Ore. 1956); Heinlich v. Harvey, 39 N.W.2d 394 (Wis. 1949); Woronka v. Sewall, 69 N.E.2d 581 (Mass. 1946); Anderson v. Nixon, 139 P.2d 216, 220 (Utah 1943). See Annot., Proximate cause in malpractice cases, 13 A.L.R.2d 11 (1950)."
We are conscious of the regrettable reluctance that generally prevails among the medical class to testify in cases such as this. However, the evidence fails to show that appellee even made attempts to obtain and present evidence that the five-day wait in the hospital and the decision that he would be operated on the sixth day, as he was actually operated on in another hospital, constituted lack of care, a case of malpractice for negligence of the hospital physicians.
For the reasons stated, we conclude that the second error assigned was committed.
In view of the preceding conclusions, we need not discuss the third error assigned to the effect that the trial court gave full credit to appellee’s evidence and disregarded appellant’s evidence.
For the reasons stated, the judgment will be reversed and another rendered instead dismissing the complaint in this case.
As to the liability for a nurse’s actions, see Castro v. Municipality of Guánica, 87 P.R.R. 690 (1963).
The new Municipal Law, No. 142 oí July 21, 1960 (21 L.P.R.A. §§ 1601-1603), confers jurisdiction to the Superior Court, on motion of a party, to grant, through ordinary action, compensation for damages to parties injured by acts or omissions of municipal officers or employees through malice or inexcusable negligence or ignorance. Any person having any claim against a municipal corporation for damages to the person or property, caused through the fault or negligence of the municipal corporation, shall present to the chief executive of the municipality a written notice setting forth clearly and concisely the date, place, cause and general nature of the damage sustained, the amount of monetary compensation or the type of remedy adequate to the damage sustained, the names and addresses of his witnesses and the address of the claimant as well as the place where he received medical treatment for the first time. Such notice, which may he served personally or by registered mail, shall be presented within 90 days following the date on which the claimant learned of the damages he is claiming, and no judicial action may be instituted against a municipal corporation for damages caused by the fault or negligence of the latter if written notice thereof is not given within the term, prescribed. (Italics ours.)
For this reason we cite at length from the brief. Unfortunately it is not often that we are so fully enlightened as is done in this case.
Cf. Robinson v. Wirts, 127 A.2d 706 (Pa. 1956); Modrzynski v. Lust, 88 N.E.2d 76 (Ohio 1949); 82 A.L.R.2d 1257; 57 A.L.R.2d 379; 141 A.L.R. 5, supplemented in 81 A.L.R.2d 597; Louisell and Williams, Trial of Medical Malpractice Cases 436, par. 14.06 (1960); R. B. H. Gradwohl, Legal Medicine 114 (1954); Harper and James, The Law of Torts 968, par. 17.1.
The courts have dispensed with the requisite of presenting expert testimony only in those cases in which the layman’s common sense indicates that the damage would not he caused if someone had not been negligent, and where the physician’s good judgment in deciding on the form and manner of treating the patient does not come into play.
The following are examples of cases in which the courts have dispensed with the presentation of expert testimony:
When the question involved was:
1) object left inside the body: needle left in the abdomen, Hohenthal v. Smith, 114 F.2d 494 (D.C. Cir. 1940); sponge left in the abdomen, Ales v. Ryan, 64 P.2d 409 (Cal. 1937); Armstrong v. Wallace, 47 P.2d 740 (Cal. 1935); Funk v. Bonham, 183 N.E. 312 (Ind. 1932).
2) damage to a part of the body which was within the area treated but which was in good condition; also on damages*320 caused to parts of the body which were distant from the area where the treatment in question was administered, James v. Spear, 338 P.2d 22 (Cal. 1959); removal of uvula during tonsillectomy, Thomsen v. Burgeson, 79 P.2d 136 (Cal. 1938); breakage of tooth during tonsillectomy, Brown v. Shortlidge, 277 Pac. 134 (Cal. 1929).
3) removal of an unaffected part of the body instead of the part to be actually removed, Thomsen v. Burgeson, supra; Griffin v. Norman, 192 N.Y.S. 322 (1922).
4) teeth lodged in patient’s trachea, Meyer v. St. Paul-Mercury Indemnity Co., 61 So.2d 901, aff’d, 73 So.2d 781 (La. 1953); Whetstine v. Moravec, 291 N.W. 424 (Iowa 1940); Nelson v. Painless Parker, 104 Cal. App. 770 (1930).
5) burns by (a) hot water bags, (b) diathermy, (c) heat lamps, (d) X rays, particularly when they are used for diagnostic purposes, (e) vaporizers, (f) chemical agents, (g) lamps (bedside), Bessinger v. De Loach, 94 S.E.2d 3 (S.C. 1956); Emrie v. Tice, 258 P.2d 332 (Kan. 1953); Dodson v. Pohle, 239 P.2d 591 (Ariz. 1952); Blackman v. Zeligs, 103 N.E.2d 13 (Ohio 1951); West Coast Hospital Ass’n v. Webb, 52 So.2d 803 (Fla. 1951); Crowe v. McBride, 153 P.2d 727 (Cal. 1944); Trindel v. Wheeler, 143 P.2d 932 (Cal. 1943); Dillon v. Rockaway Beach Hospital, 30 N.E.2d 373 (N.Y. 1940); McCullough v. Langer, 73 P.2d 649 (Cal. 1937); Timbrell v. Suburban Hospital, 47 P.2d 737 (Cal. 1935); Vonault v. O’Rourke, 33 P.2d 535 (Mont. 1934); Quillen v. Skaggs, 25 S.W.2d 33 (Ky. 1930); Moore v. Steen, 283 Pac. 833 (Cal. 1929); Meyer v. McNutt Hospital, 159 Pac. 436 (Cal. 1916).
6) infection resulting from unsterilized instruments, Mastro v. Kennedy, 134 P.2d 865 (Cal. 1943); Barham v. Widing, 291 Pac. 173 (Cal. 1930).
7) failure to take X rays to discover possible fractures, Reynolds v. Struble, 18 P.2d 690 (Cal. 1933).
8) a fracture so inadequately treated or cured that any person would notice it, Olson v. Weitz, 221 P.2d 537 (Wash. 1950).
9) incapacity resulting from drugs administered to the body, Wolfsmith v. Marsh, 337 P.2d 70 (Cal. 1959); Toy v. Rickert, 146 A.2d 510 (N.J. 1958); Bauer v. Otis, 284 P.2d 133 (Cal. 1955).
10)explosion of anaesthetic gases, Dierman v. Providence Hospital, 188 P.2d 12 (Cal. 1948).
See, however, Sáez v. Municipality, supra.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.