6.

Facts: In 1985, Romero was suffering from back pain and searching for solutions. Dr. Nancy Alfonso, Romero's family physician, provided some treatment but then referred him to Dr. Borras, a neurosurgeon. Dr. Borras concluded that Romero had a herniated disc and scheduled surgery. Prior to surgery, Dr. Borras neither prescribed nor enforced a regime of absolute bed rest, nor did he offer other key components of "conservative treatment." Although Dr. Borras instructed Romero, a heavy smoker, to enter the hospital one week before surgery in order to "clean out" his lungs and strengthen his heart, Romero was still not subjected to standard conservative treatment.

While operating on April 9, 1986, Dr. Borras discovered that Romero had an "extruded" disc and attempted to remove the extruding material. Either because Dr. Borras failed to remove the offending material or because he operated at the wrong level, Romero's original symptoms returned in full force several days after the operation. Dr. Borras concluded that a second operation was necessary to remedy the "recurrence."

Dr. Borras operated again on May 15, 1986. Dr. Borras did not order pre- or postoperative antibiotics. It is unclear whether the second operation was successful in curing the herniated disc. In any event, as early as May 17, a nurse's note indicates that the bandages covering Romero's surgical wound was "very bloody," a symptom which, according to expert testimony, indicates the possibility of infection. On May 18, Romero was experiencing local pain at the site of the incision, another symptom consistent with an infection. On May 19, the bandage was "soiled again." A more complete account of Romero's evolving condition is not available because the hospital instructed nurses to engage in "charting by exception," a system whereby nurses did not record qualitative observations for each of the day's three shifts, but instead made such notes only when necessary to chronicle important changes in a patient's condition.

Notwithstanding the "charting by exception" policy, nurses regularly recorded routine quantitative data such as the patient's body temperature. Romero apparently did not develop a fever (another possible sign of infection) until May 21.

On the night of May 20, Romero began to experience severe discomfort in his back. He passed the night screaming in pain. At some point on May 21, Dr. Edwin Lugo Piazza, an attending physician, diagnosed the problem as discitis an infection of the space between discs _ and responded by initiating antibiotic treatment. Discitis is extremely painful and, since it occurs in a location with little blood circulation, very slow to cure. Romero was hospitalized for several additional months while undergoing treatment for the infection.

After moving from Puerto Rico to Florida, the Romeros filed this diversity tort action in United States District Court for the District of Puerto Rico. Plaintiffs alleged that Dr. Borras was negligent in four general areas: (1) failure to provide proper conservative medical treatment; (2) premature and otherwise improper discharge after surgery; (3) negligent performance of surgery; and (4) failure to provide proper management for the infection. While plaintiffs did not claim that the hospital was vicariously liable for any negligence on the part of Dr. Borras, they alleged that the hospital itself negligent in two respects: (1) failure to prepare, use, and monitor proper medical records; and (2) failure to provide proper hygiene at the hospital premises.

The jury found Dr. Borras and other defendants liable for medical malpractice and awarded a plaintiffs $600,000 in compensatory damages. Defendants took an appeal from this judgment.

Court Decision: To establish a prima facie case of medical malpractice in Puerto Rico, a plaintiff must demonstrate: (1) the basic norms of knowledge and medical care applicable to general practitioners or specialists; (2) proof that the medical personnel failed to follow these basic norms in the treatment of the patient; and (3) a causal relation between the act or omission of the physician and the injury suffered by the patient.

Plaintiffs' chief expert witness, Dr. George Udvarhelyi, testified that, absent an indication of neurological impairment, the standard practice is for a neurosurgeon to postpone lumbar disc surgery while the patient undergoes conservative treatment, with a period of absolute bed rest as the prime ingredient. In these respects, the views of defendants' neurosurgery experts did not diverge from those of Dr. Udvarhelyi. For example, Dr. Luiz Guzman Lopez testified that, in the absence of extraordinary factors, "all neurosurgeons go for [conservative treatment] before they finally decide on [an] operation." Indeed, when called by plaintiffs, Dr. Borras (who also testified as a neurosurgery expert) agreed on cross-examination with the statement that "bed rest is normally recommended before surgery is decided in a patient like Mr. Romero," and claimed that he did give conservative treatment to Romero.

The issue of causation is somewhat more problematic. There are two potential snags in chain of causation. First, it is uncertain that premature surgery was the cause of Romero's infection. Second, it is uncertain whether conservative treatment would have made surgery unnecessary. The Puerto Rico Supreme Court has suggested that, when a physician negligently exposes a patient to risk-prone surgery, the physician is liable for the harm associated with a foreseeable risk. A treatment that submits the patient to unnecessary and foreseeable risks cannot be considered reasonable, when alternate means to reduce or avoid them are available. In this case, it is undisputed that discitis was a foreseeable risk of lumbar disc surgery.

The hospital does not contest plaintiffs' allegation that a regulation of the Puerto Rico Department of Health, in force in 1986, requires qualitative nurse's notes for each nursing shift. Nor does the hospital dispute the charge that, during Romero's hospital stay, the nurses attending to Romero did not supply the required notes for every shift but instead followed the hospital's official policy of charting by exception.

Indeed, one former nurse at the hospital who attended to Romero in 1986 testified that, under the charting by exception policy, she would not report a patient's pain if she either did not administer any medicine or simply gave the patient an aspirin-type medication (as opposed to a narcotic). Further, since there was evidence that Romero's hospital records contained some scattered possible signs of infection that, according to Dr. Udvarhelyi, deserved further investigation (e.g., an excessively bloody bandage and local pain at the site of the wound), the jury could have reasonably inferred that intermittent charting failed to provide the sort of continuous signals that would be the most likely spur to early intervention by a physician.

The hospital claims, however, that, even if faulty record-keeping is a cause of the delayed diagnosis, plaintiffs failed to demonstrate a link between the timing of the diagnosis and the harm Romero eventually suffered. While there may have been no way to prevent the initial wound infection, the key question then becomes whether early detection and treatment of the wound infection could have prevented the infection from reaching the disc interspace in the critical period prior to May 20.

Dr. Udvarhelyi testified that "time is an extremely important factor" in handling an infection; a 24-hour delay in treatment can make a difference; and a delay of several days "carries a high-risk [sic] that the infection will [not be] properly controlled." As a result, the jury could have reasonably concluded that the timing of the diagnosis and treatment of the wound infection was a proximate cause of Romero's discitis.

We hold that plaintiffs met their burden of proof as to the allegation that the hospital's substandard record-keeping procedures delayed the diagnosis and treatment of Romero's wound infection at a time when controlling the wound infection was likely to prevent the development of the more serious discitis.

Editor's Note: The court affirmed the verdict for medical malpractice.

Romero v. Borras 16 F.3d 473; 1994 U.S.