A woman submitted to a CT scan of her brain and was diagnosed with a large arachnoid cyst. An arachnoid cyst is a membrane-lined fluid sac, located between the lower brain and spinal cord region of the cranium. After further medical testing, her doctors advised her that her arachnoid cyst did not require surgery.
A few months later, the woman experienced extreme pain and went to a medical center’s emergency room. The emergency room physician referred her to a neurosurgeon who diagnosed her with a symptomatic arachnoid cyst and recommended surgery and antiedema medication to help release the increased intracranial pressure. The neurosurgeon explained to the woman that she needed an operation as soon as possible and that it could be a life-or-death situation. The woman replied, “Good, not a problem. Do as you see fit, as far as you take away this pain. I just need this pain to go away.” The neurosurgeon performed exploratory brain surgery around the cyst and placed a shunt to relieve the pressure created by the cyst.
About six weeks after the shunt placement surgery, the woman returned to her primary care physician. Her son, who spoke fluent English, accompanied her on that visit. The physician noted that the woman had symptoms of decreased vision and difficulty with gait and balance.
About three months after the shunt placement surgery, the woman was hospitalized with symptoms of headache, dizziness, and visual changes. A CT scan and an MRI revealed that she had a shunt within her arachnoid cyst. Two days later, she again met with her primary care physician. The physician noted that a neurologist recommended that she get the shunt taken out as it was not decreasing the size of the cyst and seemed to result in some behavior changes. She complained of intermittent pain at the shunt site behind the left ear.
About five months after the shunt placement surgery, the woman visited her primary care physician complaining of pain. During this visit her physician allegedly made the comment that whoever did this to her (meaning the shunt surgery) was a “butcher.”
About a year and three months after the shunt placement surgery, the woman and her four children sued the neurosurgeon and the medical center where the shunt placement surgery took place. They claimed that the neurosurgeon failed to adequately inform the woman of the risks associated with the shunt surgery before obtaining her consent, and that he engaged in malpractice. The alleged malpractice concerned the treatment decision to operate on the cyst, rather than the adequacy of the neurosurgeon's surgical technique in the operating room. The complaint contended that the medical center was vicariously liable for the neurosurgeon's conduct.
The United States District Court for the District of Puerto Rico entered summary judgment in favor of the neurosurgeon and medical center. The district court held that that the statute of limitations barred the claims brought by the patient and her adult children, the error of judgment doctrine precluded her minor children’s medical malpractice claims, and failure of proof on causation foreclosed liability for lack of informed consent.
The First Circuit United States Court of Appeals affirmed. The court held that the statutory clock for the woman's malpractice claim began ticking soon after onset of her first negative post-operation symptoms, the woman’s claim for failure to obtain informed consent accrued when she learned that she was experiencing negative side effects, the error of judgment doctrine barred the woman’s medical malpractice claims, and the neurosurgeon did not breach his duty to inform the woman of the nature and risks of the proposed surgery.
The statutory clock for the woman's malpractice claim began ticking soon after the onset of her first negative post-operation symptoms. The court held that, under Puerto Rico law, although the running of the one-year medical malpractice statute of limitations does not wait for the injury to reach its final degree of development, it does not begin to run until there is knowledge of malpractice, including knowledge of both injury and causal link between injury and allegedly negligent medical procedure. The statutory clock for the woman's medical malpractice claim began ticking soon after the onset of her first negative post-operation symptoms. Her primary care physician first documented her symptoms about six weeks after the shunt placement surgery at her first post-shunt appointment. The hospital documented her symptoms of headache, dizziness, and visual changes when she was admitted about three months after the shunt placement surgery. The neurologist who examined her while she was in the hospital recommended getting the shunt taken out as it was not decreasing the size of the cyst and had seemed to result in some behavior changes. The court concluded that no reasonable jury could conclude that the woman or her adult children were not aware of any adverse consequences of her surgery by about six weeks after the shunt placement surgery.
The woman’s claim for failure to obtain informed consent accrued when she learned that she was experiencing negative side effects. Under Puerto Rico law, the statute of limitations for a physician's failure to obtain a patient's informed consent for surgery begins to run when she learns that she was subjected to an unauthorized medical procedure. The woman's cause of action for failing to adequately inform her of the risks associated with shunt surgery before obtaining her consent accrued when she learned that she was experiencing negative side effects from the shunt operation, about six weeks after the operation. Relying on the same evidence it relied on to determine the medical malpractice claim was time barred, the court concluded that a reasonable jury would be compelled to find that, at least about three months after the shunt placement surgery when she was admitted to the hospital, a reasonable person would have concluded that she should have been warned of the previously undisclosed potential negative consequences of shunt surgery.
The error of judgment doctrine barred the woman’s medical malpractice claims. Under Puerto Rico's error of judgment doctrine, when evidence shows that different courses of treatment existed for the injured party's condition and legitimate debate existed between medical experts as to which treatment would be appropriate, a physician's judgment call cannot be the basis for a medical malpractice claim. The error of judgment doctrine barred the woman’s medical malpractice claims based on the neurosurgeon's decision to place a shunt in her brain. She suffered from an asymptomatic arachnoid cyst. Her medical expert conceded that while the majority of clinicians advocated placement of shunts only in patients with symptomatic cysts, a minority of clinicians advocated placement of shunts also in patients with asymptomatic cysts. This indicated that a legitimate debate existed among medical experts as to which treatment would be appropriate for her arachnoid cyst, which, though not causing hydrocephalus, did cause significant pain. Therefore, the court concluded that the neurosurgeon’s judgment call to place a shunt could not be the basis for a medical malpractice claim.
The woman’s informed consent claims failed because the neurosurgeon did not breach his duty to inform the woman of the nature and risks of the proposed surgery. Under Puerto Rico law, the proximate causation analysis turns on whether in the normal course of events the physician had to foresee that the lack of pertinent information would lead the patient to make a different decision than the one she would have made if she had been suitably informed. The neurosurgeon's purported failure to fully inform the woman of the risks of shunt placement or that foregoing surgery was a viable option for treatment of her arachnoid cyst did not breach the neurosurgeon's duty to inform the woman of the nature and risks of the proposed surgery. The court noted that the neurosurgeon was confronted with a patient who had a cyst on her brain that was causing her debilitating pain. The neurosurgeon understood it to be a life-or-death situation. The woman indicated her willingness to entertain any treatment option that would take away her pain. The neurosurgeon informed the woman and her family of the major risks of surgery and obtained written consent. The court concluded that the woman’s minor children failed to generate a genuine issue of material fact on the proposition that the neurosurgeon could have foreseen that providing Spanish translations for the four English terms on the consent form or further discussing some of the possible side effects of surgery as reasons for not undergoing it, would have changed the woman's decision to consent to surgery.
The First Circuit United States Court of Appeals affirmed the district court’s grant of summary judgment in favor of the neurosurgeon and medical center.
See: Santana-Concepcion v. Centro Medico del Turabo, Inc., 2014 WL 4695852 (C.A.1 (Puerto Rico), September 23, 2014) (not designated for publication).