Lama v.

Borras
16 F.3d 473 (1st Cir. 1994)
Facts: Plaintiff was suffering from back pain and was referred to Defendant, a neurosurgeon.
Defendant concluded that Plaintiff had a herniated disc and scheduled Plaintiff for surgery.
Defendant neither prescribed nor enforced a regime of absolute bed rest prior to surgery, but did
instruct Plaintiff to enter the hospital one week before the surgery in order to clean out his lungs.
Plaintiff was a heavy smoker. Plaintiff was not subjected to conservative treatment. While
operating, Defendant discovered that Plaintiff had an “extruded” disc and attempted to remove
the extruding material. Either because Defendant failed to remove all the material, or because he
operated at the wrong level, Plaintiff’s back pain returned in full force. Defendant scheduled
Plaintiff for a second surgery. It is unclear if the second operation cured the herniated disc.
However, shortly after the second surgery, Plaintiff began to experience severe pain in his back.
Another doctor, Dr. Piazza, diagnosed Plaintiff with discitis (an infection of the space between
discs) and initiated antibiotic treatment. Discitis is extremely painful and very slow to cure.
Plaintiff alleged that Defendant was negligent in four 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. The jury awarded Plaintiff $600,000. Defendant appealed.
Issue: Is Defendant required to use that degree of skill and learning which is normally possessed
and used by doctors in good standing, in a similar practice, in a similar community, and under
like circumstances?
Rule: A doctor must use that degree of skill and learning which is normally possessed and used
by doctors in good standing, in a similar practice, in a similar community, and under like
circumstances.
Holding: The jury’s finding of negligence on behalf of the hospital is affirmed, as is its award of
damages to Romero.
Reasoning: Romero presented adequate evidence for a reasonable jury to conclude Borras and
the hospital were negligent, and this negligence was the legal cause of his injuries. Borras and
the hospital are liable for damages to Romero. Under Puerto Rico law, to demonstrate a prima
facie case of medical malpractice, a plaintiff must demonstrate the basic norms of knowledge
and medical care applicable to general practitioners or specialists, proof that the medical
personnel failed to follow these basic norms in the treatment of the patient and a causal relation
between the act or omission of the physician and the injury suffered by the patient. The burden of
a medical malpractice plaintiff is higher than that of plaintiffs in ordinary tort cases as the
medical malpractice plaintiff must establish the relevant national standard of care. This is usually
accomplished by expert testimony. In a “battle” of competing experts, the finder of fact must
decide the relevant standard of care, guided by the testimony. Finally, a medical malpractice
plaintiff must prove by a preponderance of the evidence that the physician’s negligent conduct
was the factor that “most probably” caused his injury. Here, it is only necessary to consider
Romero’s claim that Borras failed to provide “conservative treatment” and was thus negligent.
Based on expert testimony at trial, the standard of care for neurosurgeons is to always provide
“conservative treatment” such as bed rest before operation. Borras ordered no such thing for
Romero, and still operated on him knowing he had not had the benefit of conservative treatment.
A reasonable jury could conclude that this alone is a violation of the normal standard of care and
is thus negligence. Additional credible expert testimony was introduced that premature surgery
(without bed rest) was the cause of Romero’s infection, and that conservative treatment could
have possibly improved Romero’s condition to the point where surgery was unnecessary. The
complications associated with Romero’s condition are reasonably foreseeable risks of premature
surgery, and a reasonable jury could find that Borras is liable for negligence in failing to take
precautions against these risks. Additionally, a reasonable jury could believe the expert
testimony that conservative treatment would have improved Romero’s condition and concluded
that the lack of such treatment was the legal cause of Romero’s injuries. Thus, the jury’s finding
that Borras was negligent is without error and affirmed. Additionally, the jury reasonably
concluded that the hospital was negligent in failing to detect Romero’s infection in time, thus
causing additional complications and injury.