Legal Update Volume 2017, Number 3

Publications Admin

NAVAS RODRIGUEZ & HERNANDEZ OBTAINS SIGNIFICANT DEFENSE JUDGMENT ON APPEAL

On Appeal on behalf of the Municipality of Carolina, attorneys Fred Gautier Lugo and Nestor J. Navas D’Acosta obtained Judgment from the Puerto Rico Court of Appeals, whereby the award for damages imposed by the Court of First Instance was determined to exceed the limits of statutory provisions, thus diminish the exposure of the Municipality.

For additional information please contact attorney Fred Gautier Lugo or Nestor Navas D’Acosta. (fgautier@nrhlawpr.com/nnavas@nrhlawpr.com).


MEDICAL MALPRACTICE UNDER PUERTO RICO LAW

Under Puerto Rico law, three elements comprise a prima facie case of medical malpractice: a party must establish (1) the duty owed; (2) an act or omission transgressing that duty; and (3) a sufficient causal nexus between the breach and the harm. Otero v. United States, 428 F.Supp.2d 34, 45-46 (D.P.R.2006) (citing Rivera v. Turabo Med. Ctr. P’ship, 415 F.3d 162, 167 (1st Cir.2005)).

Puerto Rico courts have explained the duty owed to a patient as that level of care which, recognizing the modern means of communication and education, meets the professional requirements generally acknowledged by the medical profession. Otero, 428 F.Supp.2d at 46; see also *149 Rivera v. Turabo Med. Ctr. P’ship, 415 F.3d 162, 167 (1st Cir.2005) (citing Lama v. Borrás, 16 F.3d 473, 478 (1st Cir.1994)) (quoting Oliveros v. Abreu, 1 P.R. Offic. Trans. 293, 101 P.R. Dec. 209, 226 (1973)).

The standard is considered national and should generally be proven through expert testimony. Otero, 428 F.Supp.2d at 46.In Puerto Rico to establish causation, a plaintiff must prove by a preponderance of the evidence, that “the [medical provider’s] negligent conduct was the factor that ‘most probably’ caused harm to the plaintiff.” Rivera v. Turabo Med. Ctr. P’ship, 415 F.3d 162, 168 (1st Cir.2005).

Causation usually cannot be found based on mere speculation and conjecture. Expert testimony is generally essential in order to clarify complicated medical issues that are more prevalent in medical malpractice cases than in standard negligence cases. Otero, 428 F.Supp.2d at 46.Thus in Puerto Rico, the decision to prevent the plaintiff’s expert from testifying equals the dismissal of a case as Plaintiff cannot prove a doctors negligence, without an expert witness.

For additional information please contact attorney Nestor Navas D’Acosta (nnavas@nrhlawpr.com).


DEFENDING A MEDICAL MALPRACTICE CLAIM

 

For most doctors facing a medical malpractice lawsuit can be an extremely frustrating experience, in terms of their personal liability and their professional reputation. Furthermore, a medical malpractice suit places the doctors in position to answer questions from lawyers who have never set foot in medical school and who probably do not understand their actions.

Notwithstanding, it is imperative for a doctor to properly handle a medical malpractice suit and to do so he has to be prepared to handle said claim, whenever it appears. To do so, we recommend that each doctor have a lawyer available at any time, since the assistance of the lawyer can aide the doctor through the process of being sued and most importantly can be essential in the preparation of a proper defense against the suit.

Key issues for a doctor to keep in mind when en or she is sued for medical malpractice:

  1. It is not personal;
  2. Being sued for malpractice certainly does not mean that the doctor did anything wrong or will be held liable for medical negligence.
  3. For a medical malpractice defense to be properly developed and be implemented, it is important that the doctor has the necessary patience to allow the lawsuit process to work.
  4. The doctor should know that most medical malpractice cases last 2-5 years. That can be a long time for a malpractice claim to be hanging over a doctor’s head, but there is little a doctor can do to accelerate the process.
  5. The doctor should always remember that a medical malpractice case is a judicial process with an established set of rules and procedures
  6. Assuming the doctor carries medical malpractice insurance, the insurance company’s lawyer will handle most of the heavy lifting throughout the case, but there are four major things that the doctor should expect to do during the course of the case.
  7. A doctor should always hire an attorney to handle the portions of his liability that is in excess of his policy limits.

For additional information please contact attorney Ignacio Gorrrin Maldonado or Nestor Navas D’Acosta. (igorrin@nrhlawpr.com/nnavas@nrhlawpr.com).


COMMENCEMENT OF AN ACTION UNDER TITLE VI OF THE PUERTO RICO OVERSIGHT, MANAGEMENT, AND ECONOMIC STABILITY ACT,

On May 16, 2017, Hon. Aida M. Delgado-Colón, in her position as Chief United States District Judge informed that the United States District Court for the District Court of Puerto Rico adopted new Local Civil Rule 3.1. Said Rule will govern the filing and docketing of any civil action which is commenced by the presentation, as an initial document, of an application for approval of a Qualifying Modification, as defined in the Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”). Specifically, Civil Rule 3.1 reeds:

“A civil action for relief under section 601(m)(1)(D), 48 U.S.C. § 2101(m)(1)(D), of Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”), is commenced by filing an application for approval of a Qualifying Modification as define in PROMESA, and as provided in section 601(m)(1)(D).

The application shall be filed with the clerk of the court, and the clerk shall open a docket for the action. “

For additional information please contact attorney Ignacio Gorrrin Maldonado or Nestor Navas D’Acosta. (igorrin@nrhlawpr.com/nnavas@nrhlawpr.com).

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