Maldonado-Falcon et al v. Hospital Espanol Auxilio Mutuo de Puerto Rico, Inc., No. 3:2012cv01907 - Document 66 (D.P.R. 2014)

Court Description: OPINION AND ORDER. DENIED 43 MOTION for Reconsideration. Signed by Judge Salvador E. Casellas on 2/18/2014.(AVB)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 1 2 3 4 RAFAEL MALDONADO-FALCON, ET AL., Plaintiffs, Civil No. 12-1907 (SEC) 5 6 7 8 v. HOSPITAL ESPANOL AUXILIO MUTUO DE PUERTO RICO, INC., ET AL., Defendants. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 OPINION AND ORDER Before the Court are the defendant s motion for reconsideration (Docket # 43), the plaintiffs opposition thereto (Dockets # 46), and their reply memoranda. Dockets # 55, 59. After reviewing the filings and the applicable law, the motion is DENIED. Factual and Procedural Background This diversity medical malpractice suit stems from the alleged misdiagnosis and inadequate treatment of Rafael Maldonado-FalcÃ³n. The plaintiffs are Maldonado-FalcÃ³n, and his daughter and son. The defendants are the doctors who treated Maldonado-FalcÃ³n, and the hospital where Maldonado FalcÃ³n sought treatment, Hospital EspaÃ±ol Auxilio Mutuo de Puerto Rico, Inc. (Hospital). A synopsis of the relevant facts which are drawn from the pleadings and the uncontested documentary evidence on record, see MartÃnez v. Bloomberg LP, --- F.3d ---- 2014 WL 114252, at * 3 (2d Cir. Jan. 14, 2014) suffices to set the stage for the analysis.1 On May 23 24 1 25 26 The Supreme Court recently held that the appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens, Atlantic Marine Construction Co. v. United States District Court for the Western District of Texas, 134 S.Ct. 568, 580 (2013), rather than through a Rule 12(b)(6) motion, as determined by the First Circuit, see Silva v. 1 CIVIL NO. 12-1907 (SEC) Page 2 5, 2008, Maldonado-FalcÃ³n was admitted to the Hospital with a diagnosis of pancreatic head 2 mass and was discharged on June 15, 2008 with a diagnosis of pancreatic cancer . . . . Docket 3 # 6, ¶ 3. Though he underwent surgery during that period, his condition did not improve and 4 he continued experiencing pains in the abdominal area, id. ¶¶ 9-10, so on July 29, 2009 he was 5 again admitted to the Hospital in septic shock ; he was thereafter discharged in August 2009. 6 According to the amended complaint, Maldonado-FalcÃ³n was subsequently admitted to the 7 Hospital on September 10, 2009, and on October 29, 2009. Id. ¶¶ 11-12. 8 In January 2010, Maldonado-FalcÃ³n was transferred to another hospital in New York, 9 where doctors allegedly diagnosed him with epigastric pain, a serious, infected abscess and 10 liver inflammation and a severe depression. Id. ¶ 23. According to the amended complaint, the 11 New York doctors said that he was unlikely to have had pancreatic cancer, with negative tumor 12 markers and a negative pancreatic biopsy report. Id. This suit followed in late 2012. Docket 13 # 1. The plaintiffs claim medical malpractice and breach of the duty of care, asserting a right 14 to recover damages under Articles 1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws 15 Ann. tit. 31, §§ 5141, 5142. 16 In September 2013, the Hospital filed a motion to dismiss based on a forum-selection 17 clause contained in a consent form that Maldonado-FalcÃ³n had signed on May 5, 2008, prior 18 to his first admission to the Hospital. Docket # 41. In pertinent part the consent form provided: 19 20 21 22 23 If I understand I have suffered damages as a direct or indirect result or in any way related to diagnostic and/or therapeutic services offered by my physician and/or [the Hospital] physicians or by the Hospital, and as a result, I decide to file suit in court, I accept, consent, and agree to bring said claim solely and exclusively before the Court of First Instance of the Commonwealth of Puerto Rico, San Juan Court. Docket # 41-2, p. 2. 24 25 26 Encyclopedia Britannica, Inc., 239 F.3d 385, 388 (1st Cir. 2001), or a Rule 12(b)(3), as maintained by other circuits, see Atl Marine, 134 S.Ct. at 580. The Court, however, expressed no opinion on whether a party bringing an action for breach of contract might obtain dismissal under Rule 12(b)(6). Id. 1 CIVIL NO. 12-1907 (SEC) Page 3 2 Noting that Maldonado FalcÃ³n s signature did not appear on the separate signature line 3 below the forum-selection clause, the Court summarily denied the motion. Because a signature 4 is the universal requisite of informed consent, and because Maldonado-FalcÃ³n did not 5 signal[ ] his assent to the forum selection clause, Docket # 42 (quoting Rivera v. Centro 6 MÃ©dico de Turabo, Inc., 575 F.3d 10, 22 (1st Cir. 2009)), the Court refused to enforce the 7 forum-selection clause. Id.2 8 The Hospital promptly moved for reconsideration. It argues that Maldonado-Falcon did 9 sign the consent form, only that his signature was placed on the wrong field. Docket # 43, p. 10 2. His signature, the Hospital explains, appeared on the line for the name of person giving 11 consent. See Docket # 41-2. 12 The plaintiffs opposed. Conceding that Maldonado-FalcÃ³n did sign the informed 13 consent form, they nevertheless observe that his signature was placed on the last page, page 14 3, away from the forum selection clause, which is buried in a single spaced paragraph in the 15 middle of page 2. Docket # 46, p. 2. They also submit that Regulation No. 7504 (Regulation), 16 which in pertinent part prohibits health care providers from including in informed-consent 17 documents any forum-selection clauses, was in effect during Maldonado-FalcÃ³n s last three 18 admissions to the Hospital. 19 Standard of Review 20 The granting of a motion for reconsideration is an extraordinary remedy which should 21 be used sparingly. Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006) (citation 22 omitted). It is common ground that the moving party must either clearly establish a manifest 23 24 2 25 26 In denying the Hospital s motion, the Court assumed without deciding that the forumselection clause was mandatory, rather than permissive. See Rivera, 575 F.3d at 16-17 (describing the difference between mandatory and permissive forum selection clause). The Court emulates that assumption here. 1 CIVIL NO. 12-1907 (SEC) Page 4 error of law or must present newly discovered evidence. Marie v. Allied Home Mortg. Corp., 2 402 F.3d 1, 7 n. 2 (1st Cir. 2005) (quoting Pomerleau v. W. Springfield Pub. Sch., 362 F.3d 143, 3 146 n. 2 (1st Cir. 2004)). It is also well settled that [a] motion for reconsideration is not a 4 vehicle for the introduction of arguments that could and should have been made to the district 5 court earlier. FÃ¡brica de Muebles J.J. Ã lvarez, Incorporado v. Inversiones Mendoza, Inc., 682 6 F.3d 26, 33 (1st Cir. 2012). Nor does Rule 59(e) provide a vehicle for a party to undo its own 7 procedural failures. Aybar v. CrispÃn-Reyes, 118 F.3d 10, 16 (1st Cir. 1997) (quoting Moro v. 8 Shell Oil Co., 91 F.3d 872, 876 (7th Cir.1996)). 9 Applicable Law and Analysis 10 As said, the Court summarily denied the Hospital s request to enforce the 11 forum-selection clause. For the reasons laid out below, the Hospital s motion for reconsideration 12 does not upend that determination. 13 Judicial Enforcement of Forum-Selection Clauses 14 The analysis begins with the mechanics of judicial enforcement of forum-selection 15 clauses. Because forum-selection clauses are prima facie valid, M/S Bremen v. Zapata Off16 Shore Co., 407 U.S. 1, 10 (1972), they carr[y] a strong presumption of enforceability. 17 Marrero v. Aragunde, 341 F. App x 656, 658 (1st Cir. 2009) (citation and internal quotation 18 marks omitted). 19 In Bremen, the beacon by which courts must steer to determine a mandatory forum 20 selection clause s enforceability, the Supreme Court listed four grounds for finding a forum21 selection clause unenforceable: 22 (1) the clause was the product of fraud or overreaching, 23 (2) enforcement would be unreasonable and unjust, ; 24 25 26 (3) proceedings in the contractual forum will be so gravely difficult and inconvenient that [the party challenging the clause] will for all practical purposes be deprived of his day in court, ; or 1 2 CIVIL NO. 12-1907 (SEC) Page 5 (4) enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision, 3 Huffington v. T.C. Group, Inc., 637 F.3d 18, 23 (1st Cir. 2011) (alterations in original and 4 citations omitted) (construing and discussing Bremen). The party resisting its enforcement bears 5 the heavy burden of persuading why a forum-selection clause should not be enforced. 6 Bremen, 407 U.S. at 17. 7 As to the last condition, the First Circuit s 2009 decision in Rivera recognized that the 8 Regulation, which was passed on May 12, 2008 a week after Maldonado-FalcÃ³n s first 9 admission to the Hospital reflected Puerto Rico s strong public policy against forum10 selection clauses in informed consent forms. See 575 F.3d at 23 (remarking that the Regulation 11 is persuasive evidence of Puerto Rico s public policy against forum-selection clauses in 12 admissions documents). Two years later, the Puerto Rico Supreme Court ratified Rivera s 13 observation, finding that forum selection clauses in the informed consent documents presented 14 to patients . . . ha[ve] been validly banned in our legal system. GarcÃa-Mones v. Groupo HIMA 15 San Pablo, Inc., 875 F.Supp.2d 98, 105-06 (D.P.R. 2012) (citing Centro MÃ©dico del Turabo, Inc. 16 v. Departamento de Salud, 181 P.R. Dec. 72, 77 n. 1 (2011)). And a phalanx of cases in this 17 district have repeatedly enforced such a prohibition, expanding it to encompass medical 18 admissions forms as well. RodrÃguez v. Ryder Mem l Hosp., Inc., No. 11-1905, --- F.Supp.2d 19 ---- 2013 WL 2456215, at * 3 (D.P.R. June 6, 2013).3 20 21 3 22 23 24 25 26 See Segura-SÃ¡nchez v. Hosp. Gen. Menonita, Inc., 953 F. Supp. 2d 344, 346 (D.P.R. 2013) (finding that forum-selection clause contained in documents to gain admission to hospital for emergency treatment was unenforceable as contrary to Puerto Rico public policy); RodrÃguez, 2013 WL 2456215, at * 4( The [Puerto Rico] Supreme Court s statement . . . is clear: forum selection clauses are against public policy in informed-consent documents. ); Prince v. Hosp. HIMA San Pablo-Caguas, 943 F. Supp. 2d 280, 284 (D.P.R. 2013) ( Certainly, the enactment of Regulation No. 7617 is a testament to the public policy of prohibiting the enforcement of forum selection clauses included in admissions documents for medical treatment. ); VÃ¡zquez v. Hosp. Episcopal Cristo, No. 10-2216, 2011 WL 6748951, at *1 (D.P.R. Dec. 22, 2011) ( As noted by the Puerto Rico Supreme Court, Puerto Rico has 1 CIVIL NO. 12-1907 (SEC) Page 6 Here, no one disputes that the consent form containing the forum-selection clause that 2 Maldonado-FalcÃ³n signed in May 2008 fell under the Regulation s aegis. And for good reason: 3 The Regulation, as noted earlier, prohibits a health care provider from including in informed 4 consent documents any [a]spects about any decision regarding the possibility of any act of 5 malpractice by a provider or legal clauses foreign to the sphere or field of medicine or health 6 . . . such as, but not limited to, forum selection clauses. Rivera, 575 F.3d at 23 (citing Article 7 13, Section 8C of Regulation 7504 of May 12, 2008 (alterations in original)). Puerto Rico s 8 strong public policy against forum-selection clauses in admissions documents would therefore 9 apply here; and the clause would violate that public policy. The upshot is that the clause would 10 be unenforceable. 11 But there is a wrinkle. Maldonado-FalcÃ³n s first visit to the Hospital took place on May 12 5, 2008, a week before the Regulation took effect. See Rivera, 575 F.3d at 23 (finding that the 13 Office of the Patient s Advocate of Puerto Rico passed the Regulation on May 12, 2008 ). And 14 in Rivera, the First Circuit explicitly declined to give the Regulation retroactive effect. See id. 15 (reasoning that the default position under Article 3 of the Puerto Rico Code is that laws shall 16 not have a retroactive effect unless they expressly so decree. (citing P.R. Laws Ann. tit. 31, 17 § 3)); accord RodrÃguez, 2013 WL 2456215, at *2. 18 However, the plaintiffs say that according to the amended complaint, Maldonado-FalcÃ³n 19 was also admitted to the Hospital on July 29, September 10, and October 29, 2009. See Docket 20 # 6 ¶¶ 11-12. His last three visits to the Hospital, they correctly observe, took place well over 21 a year from his initial May 5, 2008 admission. And the Regulation was irrefragably in full force 22 during that time frame. 23 24 25 26 statutorily prohibited forum selection clauses presented to patients as part of the informed consent process in obtaining medical treatment. (citations omitted)). 1 CIVIL NO. 12-1907 (SEC) Page 7 In its reply, the Hospital discloses, for the first time, two additional consent forms (with 2 embedded forum-selection clauses) for the July and October 2009 admissions. And the 3 Regulation, the Hospital acknowledges, was already in full force at that time.4 Downplaying this 4 problem, the Hospital demurs that the amended complaint makes clear that any subsequent 5 admission, medical treatment or intervention of Maldonado-FalcÃ³n at [the Hospital] was the 6 direct result of the alleged negligent treatment received during the May 2008 surgical 7 intervention at [the Hospital]. Docket # 55, p. 7. And because the May 2008 intervention 8 happened before the existence of [the Regulation], goes the argument, there is no need to 9 evaluate the applicability or not of the prohibition included in such regulation. Id., p. 8. This 10 argument lacks force. 11 As an initial matter, the Hospital three-sentence proffer, which contains neither a 12 supporting authority nor a developed argument makes waiver a real possibility. See, e.g., CMM 13 Cable Rep, Inc. v. Ocean Coast Props., Inc., 97 F.3d 1504, 1525-26 (1st Cir.1996) (three 14 sentences with three undiscussed citations did not defeat waiver). But even putting that flaw 15 aside, the Hospital s argument fails. If, as the Hospital says, the last three hospital visits were 16 covered by the May 2008 consent form s forum-selection clause, then why did the Hospital find 17 it necessary to provide Maldonado-FalcÃ³n with additional consent forms for his subsequent 18 hospitalizations which, again took place well over a year from his May 2008 visit? 19 It stands to reason that each hospital admission presented myriad risks and unforeseen 20 consequences. Such medical realities could explain why the Hospital (quite wisely) thought it 21 necessary to furnish its patients with new consent forms for each additional admission, 22 regardless of whether that admission related back to the initial visit. In all events, 23 24 4 25 26 Contrary to the May 5, 2008 consent form, none of the 2009 consent forms produced by the Hospital was signed by Maldonado-FalcÃ³n, because he appeared to be incapacitated at that time. See Docket # 60-1, 60-2. They were apparently signed by his sister-in-law. (While the plaintiffs dispute this, such a dispute is of no moment.) 1 CIVIL NO. 12-1907 (SEC) Page 8 countenancing the Hospital s argument would produce absurd results. Suppose that 2 Maldonado-FalcÃ³n visited the Hospital today with symptoms similar to those exhibited in 2008. 3 Can the May 2008 forum-selection clause bind him today five years later? Of course not. 4 Such a result would be nonsensical. 5 For these reasons, the Court rejects the Hospital s broad and implausible argument, 6 finding instead that, barring the May 2008 admission, Maldonado-FalcÃ³n s visits to the Hospital 7 took place during the Regulation s effectiveness. And because the forum-selection clauses 8 contained in the 2009 consent forms run contrary to Puerto Rico s public policy, they are 9 unenforceable. See note 3 above (collecting cases on this point). 10 That is not the end of the matter, however. The fact remains that the Regulation could 11 not bar enforcement of the May 2008 forum-selection clause, because as noted earlier the 12 Regulation lacks retroactive affect. But because the Court agrees with the plaintiffs that forum13 selection clause contained in the May 2008 consent form was a product of overreaching 14 thus being unenforceable the Court need not dwell on that point.5 After all, [t]he simplest 15 way to decide a case is often the best. Stor/Gard, Inc. v. Strathmore Ins. Co., 717 F.3d 242, 248 16 (1st Cir. 2013) (quoting Chambers v. Bowersox, 157 F.3d 560, 564 n.4 (8th Cir. 1998) (R. 17 Arnold, J.)). 18 While overreaching has been described as a nebulous concept at best, Haynsworth 19 v. The Corporation, 121 F.3d 956, 965 (5th Cir.1997), the Rivera court defined it as one party s 20 unfair exploitation of its overwhelming bargaining power or influence over the other party. 575 21 F.3d at 21 (construing concept).6 But the mere fact of this inequality, the First Circuit 22 23 24 25 26 5 By like token, the Court need not consider a recent non-binding, state-court decision submitted by the Hospital that invalidates the Regulation on procedural grounds. 6 Because Puerto Rico follows the federal standard enunciated in Bremen, see Rafael RodrÃguez Barril, Inc. v. Conbraco Indus., Inc., 619 F.3d 90, 92 (1st Cir. 2010) (citing Unisys P.R. v. Ramallo Bros. Printing, Inc., 128 P.R. Dec. 842, 856-57 (1991)), the Court need not decide whether, for Erie 1 CIVIL NO. 12-1907 (SEC) 2 clarified, is not enough to render an agreement unenforceable. Id. (citations omitted). The 3 party bearing the burden of persuading i.e., the one resisting a forum-selection clause s 4 enforcement must marshal some evidence that the party has exploited this bargaining 5 power in a way that the courts will not tolerate. Id. (quoting Outek Caribbean Distrib., Inc. v. 6 Echo, Inc., 206 F.Supp.2d 263, 267 (D.P.R. 2002)). Page 9 7 The plaintiffs have shouldered such a heavy burden here. To begin with, there are 8 certainly suggestions of overreaching here. Id. As the plaintiff in Rivera, Maldonado-FalcÃ³n s 9 relationship with the [H]ospital grew out of a grave medical condition, which supports the 10 inference that [h]e was likely more focused on that medical condition than the significance 11 of the documents that he was asked to sign. He was not thinking about possible lawsuits. Id. 12 Yet under Rivera, the above circumstances, without more, fall short of overcoming the 13 presumption in favor of enforcing a forum selection clause . . . . Id. at 22. The court 14 explained: 16 The language of the clause was clear. The clause was in bold print and marked off from the rest of the one-page form by a special box. It was not buried in fine print or otherwise obscured. The clause required the patient to signal his assent by placing his initials next to it. 17 Id. (citing Wilkerson ex rel. Estate of Wilkerson v. Nelson, 395 F.Supp.2d 281, 287 18 (M.D.N.C.2005)). The court further added that the Rivera plaintiff had signaled his assent to 19 the forum selection clause on two separate occasions . . . . Id. 15 20 Here, however, the clause was neither in bold nor marked off from the rest of the page 21 by a special box. See id. Nor did it require the patient to signal his assent by placing his 22 initials next to it, id. (citation omitted and emphasis added); rather, as properly argued by the 23 plaintiffs, Maldonado-FalcÃ³n s signature was placed on the last page (page three), away from 24 25 26 purposes, the forum-selection clause is enforceable as procedural and look to a federal test of validity or instead treat it as substantive and look to pertinent state law . . . . Id. 1 CIVIL NO. 12-1907 (SEC) 2 the forum-selection clause, which was buried in a single-spaced paragraph in the middle of page 3 two. And while the language of the clause was arguably clear, it was nonetheless buried in 4 fine print or otherwise obscured. Id. Moreover, unlike Rivera, Maldonado-FalcÃ³n signaled 5 his assent to the forum-selection clause only once. Id. Even so, his signature did not even 6 appear on the signature line. Compare Wilkerson, 395 F.Supp.2d at 287 (finding no claim of 7 ambiguity where [p]laintiff signed the form on the separate signature line before the 8 arbitration clause ); Wilcox v. Lexington Eye Inst., No. 53871-3-I, 2005 WL 1964481, at *2-3 9 (Wash .Ct. App. Aug.15, 2005) (rejecting argument that forum-selection clause was 10 unenforceable because of undue influence, and overweening bargaining power, where 11 plaintiff had the opportunity to read the consent form in advance of surgery and again on the day 12 of the procedure . . ., and plaintiff s signature appeared directly underneath the forum selection 13 provision). What is more, Maldonado-FalcÃ³n contrary to Rivera had neither the chance 14 to consult an attorney regarding the forum-selection clause nor the opportunity to consider 15 his assent to it outside the pressures of a hospital setting. Rivera, 575 F.3d at 22. Indeed, 16 Maldonado-FalcÃ³n visited the Hospital in an emergency state after feeling sharp stomach 17 pains. Page 10 18 These crucial differences set this case apart from Rivera. The Court is, therefore, 19 convinced that the forum-selection clause contained in the May 2008 consent form was a 20 product of overreaching. Accordingly, the Court refuses to enforce it. 21 The Hospital resists this conclusion. But Silva v. Encyclopedia Britannica Inc., 239 F.3d 22 385, 387 (1st Cir. 2001), and Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593 (1991), 23 much touted by the Hospital, do not compel a contrary conclusion. It is true that those decisions 24 found no overreaching. Yet they arose in a wholly different context. While the 25 forum-selection clause in Silva appeared in small print on the back of the contract, the contract 26 at play there was an encyclopedia sales commission contract. Similarly, the clause in the 1 CIVIL NO. 12-1907 (SEC) 2 Carnival case which also appeared in the fine print on the back of the contract involved 3 a passenger ticket. Page 11 4 Those scenarios are a far cry from cases like Rivera, and the case at hand, where there 5 are certainly suggestions of overreaching . . . . Rivera, 575 F.3d at 21. Contrary to the plaintiffs 6 in Silva and Carnival, Maldonado-FalcÃ³n s relationship with the [H]ospital grew out of a grave 7 medical condition, which supports the inference that [h]e was likely more focused on that 8 medical condition than the significance of the documents that he was asked to sign. He was not 9 thinking about possible lawsuits. Id. This reality in cases like this one undoubtedly explain 10 why Puerto Rico enacted the Regulation. Id. at 21-22. The May 2008 forum-selection clause is 11 unenforceable. 12 Conclusion 13 For the reasons stated, the Hospital s motion for reconsideration is DENIED. 14 IT IS SO ORDERED. 15 In San Juan, Puerto Rico, this 18th day of February, 2014. 16 17 18 19 20 21 22 23 24 25 26 S/ Salvador E. Casellas SALVADOR E. CASELLAS U.S. Senior District Judge

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