United States Court of Appeals

For the First Circuit

No. 03-1215

RUTH GONZÁLEZ-PÉREZ; ANACLETO ORTIZ-VILLANUEVA;

MIRIAM LEMOINE; FRITZ F. LEMOINE;

GLORIA GONZÁLEZ-PÉREZ; LUCY GONZÁLEZ-PÉREZ,

Plaintiffs, Appellants,

v.

HOSPITAL INTERAMERICANO DE MEDICINA AVANZADA (HIMA);

MIGUEL LÓPEZ-NAPOLEONI; JANE DOE;

CONJUGAL PARTNERSHIP LÓPEZ-DOE,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella and Howard, Circuit Judges.

Kevin G. Little, with whom Law Offices of David Efrón, was on

brief, for appellants.

Jesús R. Morales-Cordero, with whom José L. González-Castañer

and González Castañer, Morales & Guzmán, PSC, were on brief, for

appellee Dr. Miguel A. López-Napoleoni and his Conjugal

Partnership.

Fernando E. Agrait, for appellee HIMA.

January 14, 2004
1 The complaint presented a claim under the Emergency Medical

Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd, et

seq., and the plaintiffs alleged that the district court had

jurisdiction to hear the Puerto Rico law malpractice claims due to

diversity of citizenship, 28 U.S.C. § 1332, and supplemental

jurisdiction, 28 U.S.C. § 1367. On September 23, 2002, the

district court issued a partial judgment dismissing the EMTALA

claim. In its opinion granting summary judgment on the remaining

claims, the district court stated that its jurisdiction was based

on the parties' diversity of citizenship, as all the defendants are

residents of Puerto Rico and the plaintiffs are residents of either

New York or Tennessee.

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TORRUELLA, Circuit Judge. Plaintiffs-appellants brought

a medical malpractice claim under Puerto Rico law. The district

court had jurisdiction to hear the claim pursuant to 28 U.S.C.

1332.1 The defendants successfully moved for summary judgment

arguing that the action was time-barred by the applicable one-year

statute of limitations. We conclude that the district court ruled

correctly as a matter of law and, thus, we affirm.

I. Background

On May 23, 2000, Anacleto Ortiz-Villanueva brought his

wife, Ruth González-Pérez ("González"), to the emergency room at

the Hospital Interamericano de Medicina Avanzada ("HIMA"). She was

suffering from shortness of breath, coughing, tightness in her

chest and palpitations.

González was admitted to HIMA with a diagnosis of status

asthmaticus, bronchitis and atrial fibrillation. On May 25, 2000,

while under the care of Dr. Miguel A. López-Napoleoni

("Dr. López"), a pneumologist, González suffered a stroke.
2 Dr. Lemoine plays an important role in this litigation because

he became involved in González's treatment as an advisor early

during the HIMA hospitalization.

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González remained hospitalized at HIMA until June 9, 2000, at which

time she was released to a rehabilitation facility.

According to the complaint, González received negligent

care, which in turn caused her permanent disability. González is

joined in this suit by family members ("González family"),

including her husband, Mr. Ortiz, her daughter, Miriam Lemoine, her

son-in-law, Dr. Fritz F. Lemoine2 ("Dr. Lemoine") and her sisters,

Gloria González-Pérez and Lucy González-Pérez.

The González family filed their complaint in the District

Court of Puerto Rico on August 31, 2001.

II. Analysis

A. Accrual of Claim

Under Puerto Rico law, an action for damages for

negligence must be commenced within one year of its accrual. 31

P.R. Laws Ann. § 5298(2). The Puerto Rico Supreme Court has

interpreted this provision as incorporating a discovery rule.

Villarini-García v. Hospital Del Maestro, Inc., 8 F.3d 81, 84 (1st

Cir. 1993). Under this discovery rule, a claim accrues, and the

one-year period starts to run, not at the time of the injury, but

upon the discovery by the injured party of the injury and of its
3 The statutory period may be tolled under appropriate

circumstances. 31 P.R. Laws Ann. § 5303 ("Prescription of actions

is interrupted by their institution before the courts, by

extrajudicial claim of the creditor, and by any act of

acknowledgment of the debt by the debtor."). None of these

circumstances are extant in the present appeal, nor does any party

so claim.

4 The parties have not argued that the claim accrued on different

dates for different plaintiffs. In fact, the record shows that the

family members kept in close touch with each other making it

reasonable to infer that they reached the requisite subjective

assessments pari passu. And as for Mrs. González,

[i]t . . . seems unlikely that appellant's illness

deprived [her] counsel of the knowledge or consent needed

to file a court complaint; it is more likely that counsel

knew plaintiff wished to pursue [her] legal remedies and

knew (or should have known) about the relevant

limitations period. And, appellant has alleged no

specific facts that would show the contrary. In such

circumstances, we believe a federal court should assume

that the . . . illness was not of a sort that makes it

equitable to toll the statute -- at least absent a strong

reason for believing the contrary.

-4-

author.3 Espada v. Lugo, 312 F.3d 1, 5 (1st Cir. 2002)(citing

Tokyo Marine & Fire Ins. Co v. Pérez y Cía., de Puerto Rico, Inc.,

142 F.3d 1, 3 (1st Cir. 1998)).

Because "[t]he law of Puerto Rico treats a person as

being aware of all . . . that person would have been likely to come

to know through the exercise of care," Rodríguez-Surís v.

Montesinos, 123 F.3d 10, 16 (1st Cir. 1997), the González family's

claim accrued at the earlier of the following moments: (1) when the

González family had subjective awareness of González's injury and

its author, see id. at 15, or (2) when they should have known about

the injury and its author by the exercise of due diligence.4 See
López v. Citibank, N.A., 808 F.2d 905, 907 (1st Cir. 1987). Thus,

we treat the González family as a single appellant for the purpose

of determing whether their claim was time-barred.

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id. at 16. If the González family's claims accrued before

August 31, 2000, a year ahead of the complaint's filing, their

claim is time-barred.

As the González family is the non-moving party, we

interpret the record in the light most favorable to them.

Ruiz-Sulsona v. Univ. of P.R., 334 F.3d 157, 159 (1st Cir. 2003).

Nevertheless, the González family's own testimony demonstrates that

they discovered the injury and its author well before the end of

August 2000. González's husband, Mr. Ortiz, was already

considering a suit when his wife was released from the hospital in

early June, his legal theory being the doctor's alleged negligence.

González's sister Gloria remembers Ortiz's saying, in May or June,

that the stroke could have been avoided if González had received

adequate treatment. These admissions, on their own, may well

suffice to commence the running of the statute of limitations under

Puerto Rico law. See Torres v. E.I. Dupont de Nemours & Co., 219

F.3d 13, 20 (1st Cir. 2000). Dr. Lemoine's extensive and detailed

deposition, however, definitively settles the point.

Dr. Lemoine developed the opinion, during González's

hospitalization at HIMA, that she "had not received the appropriate

care from the start, that all of this could have been avoided, that

the care after she received the stroke [sic] was not aggressive
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enough, that details for any common stroke patient were not being

observed, that the monitoring of the patient in the hospital was

inadequate . . . ." Dr. Lemoine had technical opinions regarding

Dr. López's and HIMA's failings: "A patient that presents with new

onset atrial fibrillation generally should be anticoagulated

. . . . When the patient starts to complain of numbness and

tingling in their arm and difficulty with speech, they need to be

evaluated by a physician immediately and then treatment

subsequently started." Dr. Lemoine had specific complaints

regarding Dr. López's competence: "I felt that the use of simply

[sic] a transthoracic echocardiogram to determine whether or not

she had a source for embolization was not adequate, . . . that

possibly the extent of her stroke could have been prevented, that

I should not have had to tell [Dr. López] basic standards of care

for a stroke victim . . . ." Moreover, Dr. Lemoine shared these

opinions with the González family later in June, and he had already

communicated his dissatisfaction with González's care to Mr. Ortiz

during the initial hospitalization.

Dr. Lemoine stated that these initial assessments were

not definitively confirmed until he was able to review González's

hospital record. We doubt that Puerto Rico law demands such

certainty; nevertheless, Dr. Lemoine looked at the records and

confirmed his earlier opinions no later than the first week of

August, well before the critical August 30 date. The subjective
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awareness implied by these statements, even on the reading most

favorable to the González family, is incompatible with a belief

that any entity or person other than HIMA and Dr. López bore

responsibility for an injury the González family clearly thought,

correctly or not, could have been avoided.

To counteract the clear picture painted by their

depositions, the González family argues that the claim accrued only

after they met with Dr. Blaize Ferracio, a neurologist, on

September 25, 2000. In September, González and her husband moved

to Clarksville, Tennessee to be near the Lemoines. Dr. Lemoine

arranged an informal visit with Dr. Ferracio to follow up on

González's treatment. Miriam Lemoine and Mr. Ortiz asked

Dr. Ferracio after that meeting whether he would take their legal

case (presumably as an expert witness) since the family was so

upset by González's condition. Dr. Ferracio recommended working

with Puerto Rico counsel and helped the family identify suitable

attorneys. It was only after speaking with Dr. Ferracio that the

family agreed to bring legal action against HIMA and Dr. López. To

support the contention that the claim accrued at that point, they

cite our language in Montesinos: "If a plaintiff is not aware of

some level of reasonable likelihood of legal liability on the part

of the person or entity that caused the injury, the statute of

limitation will be tolled." 123 F.3d at 13-14. The González

family would have us hold that their claim did not accrue until
5 In the quoted sentence, we were simply pointing out that

discovery of the injury is not enough for accrual. The paragraph

in full:

In some circumstances, awareness of the existence of an

injury, on its own, will not be enough to trigger the

running of the limitation period. If a plaintiff is not

aware of some level of reasonable likelihood of legal

liability on the part of the person or entity that caused

the injury, the statute of limitation will be tolled. In

other words, a plaintiff must also have "knowledge of the

author of the injury," a concept articulated at length in

the Supreme Court of Puerto Rico's decision in Colón

Prieto.

Montesinos, 123 F.3d at 13-14 (citations omitted).

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they were sure they had a case worth pursuing. Not only have they

misunderstood our language by taking it out of context,5 we cannot

accept the substance of the contention.

Some plaintiffs decide to bring suit the instant their

claims accrue, upon discovery. Often, however, there is a span of

time during which the prospective plaintiff mulls over the injury

and the tortfeasor's liability before initiating legal process.

Under Puerto Rico's discovery rule, these two moments are distinct,

and only the former has legal significance. Cf. Villarini-García

v. Hospital Del Maestro, 8 F.3d 81, 85 (1st Cir. 1984) ("The

discovery rule . . . focuses on whether the plaintiff knew the

facts that gave rise to the claim, not their full legal

implications."); see, e.g., Colón Prieto v. Géigel, 15 P.R. Offic.

Trans. 313, 329 (1984) (claim accrued when plaintiff "found out

that the injury had not been caused by a bite but by the fact that
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the right lingual nerve had been cut"). Although Puerto Rico's

discovery rule is, relatively-speaking, plaintiff friendly, compare

Joyce v. A.C. & S., Inc., 785 F.2d 1200, 1204 (4th Cir. 1986)

(discussing Virginia's rule that a claim accrues at the time of

injury regardless of its discovery), its purpose is not to ensure

plaintiffs a set period of time to draft a complaint after

resolving to file one.

The González family also argues that Dr. López and HIMA

gave them reassurances that delayed their discovery until after

August 31. The Puerto Rico Supreme Court has, indeed, recognized

the special role that a tortfeasor's reassurances can play in

delaying a victim's discovery of an injury or its author. See

Montesinos, 123 F.3d at 16-17 (citing Colón Prieto, 15 P.R. Offic.

Trans. at 329-30); see, e.g., Galarza v. Zagury, 739 F.2d 20, 23

(1st Cir. 1984) (finding period tolled where doctor informed

patient that her difficulties were due to a weakened sphincter but

did not disclose that the sphincter had been lacerated in a prior

visit). But "[i]f the defendant succeeds in showing that plaintiff

has not satisfied, or cannot satisfy, plaintiff's burden of proving

lack of true knowledge (that is, lack of full awareness of all that

need be known to preclude tolling), final judgment for the

defendant on the ground of late filing is appropriate."

Montesinos, 123 F.3d at 14.
6 Other courts have required a party seeking to amend the

pleadings to file a motion specifically for that purpose. See

Harris v. Secretary, 126 F.3d 339, 344-45 (D.C. Cir. 1997). We

decline to demand that level of formalism of the pretrial process.

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We conclude that facts sufficient to support every

element of the claim were apparent to the González family before

the end of August 2000. See Morales-Vallellanes v. Potter, 339

F.3d 9, 14 (1st Cir. 2003) ("[A] complaint sufficiently raises a

claim even if it points to no legal theory or even if it points to

the wrong legal theory as a basis for that claim, as long as relief

is possible under any set of facts that could be established

consistent with the allegations.") (quoting Tolle v. Carroll Touch,

Inc., 977 F.2d 1129, 1134 (7th Cir. 1992) (internal quotations

omitted)).

B. Waiver of time-bar defense

The González family has also argued that HIMA waived the

affirmative defense of untimeliness by failing to raise that

defense in its answer. HIMA, in conjunction with Dr. López, based

its motion for summary judgment on the defense of untimeliness.

The proper approach to González's claim is, accordingly, to ask

whether it was within the district court's discretion to accept the

defense raised in the summary judgment motion as an amendment to

the pleadings pursuant to Fed. R. Civ. P. 15(a).6 See 5 Charles

Alan Wright & Arthur R. Miller, Federal Practice and Procedure,

§ 1278, at 494 (2d ed. 1990). We normally review such an appeal
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for abuse of discretion alone. See Foman v. Davis, 371 U.S. 178,

182 (1962) ("the grant or denial of an opportunity to amend is

within the discretion of the District Court"); see also Watson v.

Deaconess Waltham Hosp., 298 F.3d 102, 109 (1st Cir. 2002). "If,

however, leave to amend is not sought until after discovery has

closed and a summary judgment motion has been docketed, the

proposed amendment must be not only theoretically viable but also

solidly grounded in the record. . . ." Deaconess Waltham Hosp.,

298 F.3d at 109 (quoting Hatch v. Dep't of Children, 274 F.3d 12,

19 (1st Cir. 2001)).

An untimeliness defense is plainly supported by the

record. Therefore, we must simply review for abuse of discretion.

Rule 15(a) instructs that "leave [to amend the pleadings] shall be

freely given when justice so requires." Fed. R. Civ. P. 15(a).

"In the absence of any apparent or declared reason -– such as undue

delay, bad faith or dilatory motive on the part of the movant,

repeated failure to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party by virtue of

allowance of the amendment, futility of the amendment, etc. –- the

leave sought should, as the rules require, be 'freely given.'"

Foman, 371 U.S. at 182 (quoting Fed. R. Civ. P. 15(a)).

The González family was put on notice that they would

have to reckon with the defense of their action's untimeliness by

Dr. López's answer on December 31, 2001. Absent any showing of bad
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faith on HIMA's part, and there is none, we have no difficulty --

despite the irony -- finding the district court acted within its

discretion in accepting HIMA's late entry of the untimeliness

defense. See In re Cumberland Farms, Inc., 284 F.3d 216, 226 (1st

Cir. 2002) ("Amendment may be permitted, for example, where the

opposing party already had notice of the defense through some means

other than the pleadings, or would not have benefitted from advance

notice in any event -- in other words, where the delay was

harmless.").

III. Conclusion

Puerto Rico gives prospective plaintiffs just one year to

institute a cause of action for recovery of damages caused by

negligence. Legislatures have power to circumscribe the causes of

action they create, and courts are bound to follow. We find the

record creates no question that more than one year elapsed between

the time González's claim accrued and the time the complaint was

filed. Since the district court was within its discretion in

permitting HIMA to benefit from the defense of untimeliness, the

judgment is affirmed. Costs to appellees.

Affirmed.