Kenyon v. Hosp. San Antonio, Inc.

951 F.Supp.2d 255

John KENYON, et al., Plaintiffs,

v.HOSPITAL SAN ANTONIO, INC., et al., Defendants.

Civil No. 11–1883 (FAB).

United States District Court, D. Puerto Rico.

June 28, 2013.

Julie A. Soderlund, San Juan, PR, for Plaintiffs.

Jose R. Ortiz–Velez, Ortiz Velez Law Office, San Juan, PR, Jose A. Gonzalez–Villamil, Jeanette Rodriguez–De Leon, Gonzalez Villamil Law Office, Igor Dominguez–Perez, Igor J. Dominguez Law Office, Benito I. Rodriguez–Masso, Benito I. Rodriguez Masso Law Office, Sigrid Lopez–Gonzalez, Sigrid Lopez Gonzalez Law Offices, San Juan, PR, Roberto Rafols–Davila, Aguadilla, PR, Anselmo Irizarry–Irizarry, Matta & Matta PSC, Ponce, PR, for Defendants.

OPINION AND ORDER¹

BESOSA, District Judge.

Before the Court is the magistrate judge's Report and Recommendation (R & R), recommending:

1. that the EMTALA claims against Hospital San Antonio (“HSA”) with respect to the patient's August 14, 2010 visit be dismissed with prejudice;

2. that the claims brought pursuant to Puerto Rico law against HSA for that visit be dismissed without prejudice;

3. that plaintiffs John Kenyon's and Rhea Minter's claim brought on their own behalf pursuant to EMTALA be dismissed with prejudice; and

4. that all other claims against HSA not be dismissed. (Docket No. 127.) HSA filed its objection to the R & R on February 4, 2013. (Docket No. 133.) Plaintiffs did not object to the R & R.

I. BACKGROUNDA. Factual History

The Court takes the following facts as true, as pled in plaintiffs' complaint:

CKM, a minor, “began experiencing severe vomiting, fevers[,] and diarrhea” in August 2010. (Docket No. 80 at p. 10.) On August 11, a doctor diagnosed a “summer virus” and gave CKM a prescription to relieve her vomiting and diarrhea. Id. CKM's symptoms worsened and her parents, John Kenyon and Rhea Minter, took CKM to the Añasco Emergency Room on August 13. Id. Noting symptoms of dehydration, fever, vomiting, diarrhea, allergic eyes, puffy face, and grey colored urine, the doctor treated CKM with intravenous fluids, Benadryl, and promethazine. Id. at 11. The doctor also ordered a complete blood count (CBC). Id. CKM was discharged from the hospital at 5:45 p.m. “with instructions to take her to the emergency room at San Antonio Hospital [ (HSA) ] in Mayaguez if her condition worsened.” Id.

At approximately 3:30 a.m. on August 14, CKM's parents took her to the emergency room (ER) at HSA in Mayaguez because she continued to suffer from a fever and vomiting. Id. A nurse triaged CKM at 3:30 a.m. and Dr. Ricardo Cedeño–Rivera (“Dr. Cedeño–Rivera”) evaluated her after 5:00 a.m. Id. Dr. Cedeño–Rivera ordered body fluid samples and “[a]ll laboratory results were read as normal.” Id. He diagnosed CKM with gastroenteritis and treated her with Benadryl and intravenous fluids. Id. Dr. Jose Velez–Vargas (“Dr. Velez–Vargas”) evaluated CKM at 9:10 a.m. and agreed with Dr. Cedeño–Rivera's diagnosis and treatment. Id. Dr. Maria Rodriguez–Maldonado (“Dr. Rodriguez–Maldonado”) evaluated CKM at 3:50 p.m. and also agreed with the diagnosis of gastroenteritis. Id. She treated CKM with solumedrol and discharged her. Id.

Plaintiff Rhea told Dr. Rodriguez–Maldonado that she was concerned the lab results were read as normal even though they showed high levels of protein and KET. Id. at p. 11–12. Rhea also questioned Dr. Rodriguez–Maldonado about CKM's discolored urine, the blood in her urine, and the high creatinine levels found in the laboratory tests but Dr. Rodriguez–Maldonado “dismissed her concerns.” Id.at p. 12. “Abnormally high levels of creatinine warn of possible malfunction or failure of the kidneys.” Id. “Therefore, CKM was sent home from that first ER visit suffering from an undiagnosed emergency medical condition that was not stabilized although it was clear from the laboratory results done at the facility that she was already in renal failure.” Id.

CKM's symptoms did not improve and throughout August and early September 2010 Rhea took CKM to several doctors. Id. at p. 14–15. After various laboratory tests, misdiagnoses, and treatments that did not alleviate CKM's symptoms, Dr. Navid Pourahmadi (“Dr. Pourahmadi”) diagnosed CKM with renal failure on September 8, 2010. Id. at p. 12–15. Dr. Pourahmadi arranged for CKM to be stabilized at HSA and then transferred to the University Pediatric Hospital (“UPH”) at the Puerto Rico Medical Center in San Juan. Id. at p. 15.

CKM arrived at HSA at 3:10 p.m. on September 8. Id. at p. 16. Rhea informed the nurse that the doctors were expecting CKM, but the nurse told her “to take a number and wait her turn with the public.” Id. CKM was triaged at 3:45 p.m. Id. Dr. Rodriguez–Maldonado was the pediatrician on duty. Id. Dr. Pourahmadi arrived at HSA around 5 p.m. on September 8 and Dr. Rodriguez–Maldonado “complained to Dr. Pourahmadi that she did not have facilities to treat CKM and it was a busy day.” Id. “Dr. Pourahmadi then told the doctor that the nephrology team at UPH was expecting CKM's transfer and had issued instructions for her stabilization.” Id. Dr. Rodriguez–Maldonado evaluated CKM at 4:50 p.m. and ordered a renal sonogram. Id. at p. 16–17. By 7:10 p.m., “Dr. Rodriguez Maldonado ordered STAT blood work, including CBC, SMA, CXR, Ca, Mg, PO4[,] and urinalysis.” Id. at p. 17. “The treatment prescribed included KUB, renal sonogram, cardiac monitor, pulse oxymeter, heparin lock, and to keep CKM in the ER's observation area.” Id. Around the same time, Dr. Rodriguez–Maldonado noted in the record that the medication CKM needed was not available at HSA. Id.

Although Dr. Rodriguez–Maldonado ordered a transfer of CKM from HSA to UPH in San Juan at 7:30 p.m. on September 8 and Rhea completed the transfer control sheet at 9 p.m., the ambulance did not arrive to transfer CKM until 11 p.m. Id. at p. 19–21. The ambulance did not transfer CKM at that time, however, because the paramedic said that there were two babies waiting for transfers and there was more money in transferring the babies. Id. at p. 19. At 5 a.m. on September 9, a nurse told Rhea that the paramedic said the family needed to pay $350 prior to the transfer because UPH did not accept CKM's insurance. Id. at p. 20. Rhea called CKM's insurance company, MCS Reforma, and was told that the charge was incorrect and the family did not need to pay cash up front for CKM's transfer. Id. “By then a new ER doctor, Dr. Juan R. Jimenez–Barbosa, informed the parents that he had already made arrangements for an ambulance to be there by 1100 hours to transfer CKM.” Id. at p. 20.

CKM was transferred from HSA at 2:15 p.m. on September 9, approximately 19 hours after the transfer was initially requested. Id. at p. 21. The Intensive Care Unit at UPH received CKM at 6:00 p.m. on September 9. Id. Plaintiffs allege that no medical records accompanied CKM when she was transferred except for the “transfer Control Sheet” that Rhea had filled out and signed on September 8. Id. The Control Sheet contained “a list of documents and transfer information.” Id. at p. 18.

On October 4, 2010, CKM was transferred to the Pediatric Intensive Care Unit (“PICU”) at UPH. (Docket No. 1 at p. 23.) In the transfer note, “the physician plainly state[d] that CKM's past arthritis, hematuria, lethargy[,] and weakness were not initially worked up as they should have been by CKM's physicians until Dr. Pourahmadi intervened.” Id. Plaintiffs allege that this note “constitut[es] an unequivocal medical opinion as to the negligent and substandard medical care provided to CKM at the ER [at HSA].” Id.

As a result of her acute renal failure, CKM continues to suffer from multiple medical conditions requiring extensive ongoing treatment. Id. at p. 24–25. CKM undergoes daily dialysis and is waiting for a kidney transplant. Id. at p. 25. Her renal failure has also caused heart complications, including “at least one heart attack.” Id.

B. Procedural History

Plaintiffs filed their first complaint on September 7, 2011 and named HSA, Dr. Maria Rodriguez–Maldonado, Dr. Evelyn Gonzalez-del Rio, Dr. X Doe, Dr. Y Doe, Dr. Z Doe, Lexmayris Ambulance, Inc., Insurance Company A, Insurance Company B, Insurance Company C, John Doe, Jane Doe, and Joe Doe as defendants. (Docket No. 1.) Plaintiffs then filed a first amended complaint on August 14, 2012, a second amended complaint on August 20, 2012, and a third amended complaint on November 9, 2012. (Docket Nos. 42, 43, & 80.) In these amended complaints, plaintiffs added as defendants Dr. Juan Jimenez–Barbosa, Dr. Roberto Latoni, Dr. Ricardo Cedeño–Rivera, and Dr. Jose Velez–Vargas. Id. Plaintiffs also added the spouses and conjugal partnerships of the defendant doctors and the insurance companies of HSA, Lexmayris Ambulance, and the defendant doctors as defendants. Plaintiffs bring a claim against HSA pursuant to the Emergency Medical Treatment and Active Labor Act (“EMTALA”) and invoke the Court's supplemental jurisdiction to adjudicate medical malpractice claims brought pursuant to Commonwealth law against the individual defendants and Lexmayris. ² Defendants answered the third amended complaint. (Docket Nos. 93, 96, 99, 100, 130, 131, & 132.) Dr. Latoni, his wife, and their conjugal partnership moved to dismiss the claims against them for failure to state a claim upon which relief can be granted. (Docket No. 77.) The Court granted the motion. (Docket No. 123.)

The Court referred this case to the United States magistrate judge, who issued a thorough Report and Recommendation (“R & R”) on January 17, 2013, 2013 WL 210273. (Docket No. 127.) The R & R recommended that HSA's motion to dismiss be GRANTED in part and DENIED in part. The magistrate judge found the facts alleged insufficient to state a claim for failure to screen CKM or failure to stabilize CKM prior to transfer, but denied the motion to dismiss to the extent that Plaintiffs alleged a violation of EMTALA's certification requirements. The parties had until February 4, 2013 to object to the R &...