Case 3:12-cv Document 1 Filed 08/02/12 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

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1 Case 3:12-cv Document 1 Filed 08/02/12 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO ANA CEASAR, DIANA PERALTA, MARIA TEJEDA, and MILTON MALDONADO, Plaintiffs, vs. HOSPITAL METROPOLITANO, IMAGING CENTER AT REPARTO METROPOLITANO, DR. GUSTAVO MELERO GIGANTE, DR. CARMEN ALVAREZ VILLAR, DR. JOSE M. DIAZ, DR. URIEL CAMACHO, DR. FERNANDO J. LOPEZ, SIMED, DOE- ROE CONJUGAL PARTNERSHIPS, DOES I-X, and ABC INSURANCE COMPANIES, CIVIL NO ( ) MEDICAL MALPRACTICE Article 1802 and 1803 TRIAL BY JURY DEMANDED Defendants. COMPLAINT TO THE HONORABLE COURT: APPEAR NOW the Plaintiffs in this action, through the undersigned attorneys, and respectfully state, allege and pray as follows: JURISDICTIONAL BASIS & VENUE 1. Plaintiffs are citizens of, domiciled in, and reside in the states of South Carolina, New York, and Florida. 2. Defendants are citizens of, domiciled in, incorporated in or with their principle place of Page 1 of 11

2 Case 3:12-cv Document 1 Filed 08/02/12 Page 2 of 11 business in Puerto Rico or a state other than South Carolina, New York, or Florida. 3. The matter in controversy exceeds the sum of Seventy Five Thousand Dollars ($75,000), exclusive of interest and costs, vesting jurisdiction on this Honorable Court pursuant to 28 U.S.C Venue is proper in the District of Puerto Rico pursuant to 28 U.S.C since the events or omissions giving rise to this claim occurred in this district. THE PARTIES 5.. Plaintiff Ana Ceasar is the adult daughter of the deceased, Lucila Maldonado a/k/a Lucila Maldonado Calderon a/k/a Lucila Calderon Rivera (hereinafter Lucila Maldonado ), and is domiciled and residing in South Carolina. 6. Plaintiff Diana Peralta is the adult daughter of the deceased, Lucila Maldonado, and is domiciled and residing in Florida. 7. Plaintiff Maria Tejeda is the adult daughter of the deceased, Lucila Maldonado, and is domiciled and residing in New York. 8. Plaintiff Milton Maldonado is the adult son of the deceased, Lucila Maldonado, and is domiciled and residing in New York. 9. Defendant Hospital Metropolitano is a business organized and/or operated with its principal place of business in Puerto Rico which owns, operates, and/or manages a private hospital as well as a radiology and imaging and nuclear medicine center. 10. Defendant Imaging Center at Reparto Metropolitano is a business organized and/or operated with its principal place of business in Puerto Rico which owns, operates, and/or manages a radiology and/or imaging center. Page 2 of 11

3 Case 3:12-cv Document 1 Filed 08/02/12 Page 3 of Dr. Gustavo Melero Gigante is a citizen of Puerto Rico that was Lucila Maldonado s treating physician and ENT. 12. Dr. Carmen Alvarez Villar is a citizen of Puerto Rico and doctor at Hopsital Metropolitano that conducted and/or provided radiological reading of Lucila Maldonado s CT Scan on or about January 26, Dr. Carmen Alvarez Villar is a citizen of Puerto Rico and a doctor at Hospital Metropolitano that conducted and/or provided a radiological reading of Lucila Maldonado s CT Scan on or about January 26, Dr. Jose Diaz is a citizen of Puerto Rico and a doctor at Hospital Metropolitano that conducted and/or provided a radiological reading of Lucila Maldonado s whole body gallium scan on or about February 3, Dr. Uriel Camacho is a citizen of Puerto Rico and a doctor at Imaging Center at Reparto Metropolitano that conducted and/or provided a neuro-radiological reading of Lucila Maldonado s CT Scan on or about March 17, Dr. Fernando J. Lopez is a citizen of Puerto Rico and a doctor at Imaging Center at Reparto Metropolitano that conducted and/or provided a radiological reading of Lucila Maldonado s Brain MRI on or about April 19, Defendants Doe-Roe Conjugal Partnerships are unknown conjugal partnerships comprised of Defendants and their respective husbands and/or wives, who are currently unknown. 18. Upon information and belief, all defendant doctors are insured by SIMED. 19. Defendant Sindicato de Aseguradores Para La Suscripcion Conjunta de Seguro de Page 3 of 11

4 Case 3:12-cv Document 1 Filed 08/02/12 Page 4 of 11 Responsabilidad Profesional Medic-Hospitalaria (hereinafter, SIMED ) is the insurance carrier who issued a professional liability policy or other applicable insurance policy in favor of Defendants and/or unknown joint tortfeasors and is deemed a deemed a citizen of the state of its insured pursuant to 28 U.S.C. 1332(c)(1). 20. Defendants Does I-X, fictitiously named herein to be later replaced by the action name which may become known through further discovery in this litigation, which are individuals, doctors, radiologists, business entities and/or corporations who are citizens of Puerto Rico or a state other than South Carolina, New York, or Florida, who caused and/or contributed through their own acts or omissions or the acts or omissions of the employees, agents, or assignees in violation of 31 L.P.R.A and/or 31 L.P.R.A to the damages caused to Plaintiffs in this case, for which they are jointly and severally liable to Plaintiffs. 21. Defendants ABC Insurance Companies, fictitiously named herein to be later replaced by their actual name which may become known through further discovery in this litigation, which issued insurance policies to one or more of the Defendants. GENERAL ALLEGATIONS 22. As a result of experiencing prolonged and extended periods of pain in the left ear, dizziness, and vertigo, Lucila Maldonado (DOB 7/9/38) visited Dr. Gustavo Melero, an ENT, on or about May Dr. Melero provided examinations, assessments, treatment and other medical services to Lucila Maldonado over the course of the next year. 24. Dr. Melero also prescribed and referred Lucila Maldonado to perform certain auditory, Page 4 of 11

5 Case 3:12-cv Document 1 Filed 08/02/12 Page 5 of 11 radiological, and other diagnostic tests. 25. During the course of treatment, Dr. Melero diagnosed and treated Lucila Maldonado for a left ear mastoiditis, or infection, despite the fact that the left ear pain was persistent for months and various medications and/or antibiotics were prescribed and taken. 26. Dr. Melero failed to take the appropriate and necessary steps identify and appropriately treat Lucila Maldonado s condition and/or symptoms. 27. On or about January 26, 2011, Lucila Maldonado had a CT Scan of her brain performed at Hospital Metropolitano s Imaging and Nuclear Medicine Center which was taken and/or read by Dr. Carmen Alvarez Villar. 28. No significant abnormality was reported in the January 26, 2011 CT Scan. 29. On or about February 3, 2011, Lucila Maldonado had a whole body gallium scan performed at Hospital Metropolitano s nuclear medicine division which was taken and/or read by Dr. Jose M. Diaz. 30. The whole body gallium scan reportedly indicated that Lucila Maldonado was experiencing left ear mastoiditis (infection). 31. On or about March 17, 2011, Lucila Maldonado had a temporal bone CT scan performed at Imaging Center at Reparto Metropolitan which was taken and/or read by Dr. Uriel Camacho. 32. The temporal bone CT scan reported inflamation and suggested further evaluation with an MRI. 33. On or about April 19, 2011, Lucila Maldonado had a brain MRI performed at Imaging Center at Reparto Metropolitano which was taken and/or read by Dr. Fernando Lopez. Page 5 of 11

6 Case 3:12-cv Document 1 Filed 08/02/12 Page 6 of The brain MRI suggested possible osteomyelitis (bone infection) and suggested further evaluation with a temporal bone CT scan. 35. None of the examinations or tests performed or ready by Defendants identified or indicated that Lucila Maldonado could or did have cancer. 36. Despite Lucila Maldonado s diligent efforts, her persistent left ear pain continued. 37. After receiving unsuccessful additional care at Centro Medico, Lucial Maldonado was transferred to the Beth Israel Medical Center in New York on or about July 31, On August 5, 2011, Lucila Maldonado, while under the care of the Beth Israel Medical Center, was informed that she actually had a tumor and squamous cell carcinoma (cancer) in her left inner ear. 39. Unfortunately, as a result of the cancer and the Defendants failure to timely identify and treat the condition, Lucila Maldonado died on December 22, Proper treatment and medical services from Defendants would have revealed the cancer earlier and increased the chances and made a recovery from Lucila Maldonado s condition more likely. 41. Defendants failed to timely or properly examine, diagnosis, intervene or otherwise provide adequate or appropriate treatment causing Lucila Maldonado s cancer to worsen so that recovery was more difficult if not impossible. 42. Plaintiffs have suffered physical, emotional, mental and economic damages a direct result of Defendants negligence and/or the negligence of their employees, agents, or assignees. Page 6 of 11

7 Case 3:12-cv Document 1 Filed 08/02/12 Page 7 of 11 FIRST CAUSE OF ACTION - NEGLIGENCE 43. The allegations contained above are incorporated by reference as if again fully set forth herein. 44. Defendants, through their own acts or omissions or the acts or omissions of their employees, agents, representatives, or assignees, caused damage to Plaintiffs through fault or negligence in violation of 31 L.P.R.A and/or 31 L.P.R.A Defendants owed a duty to Lucila Maldonado and to Plaintiffs to provide personnel, doctors, facilities, staffing, treatment and medical care consistent with the medical standards that satisfy the exigencies generally recognized by the medical profession in light of the modern means of communication and teaching. 46. The treatment and medical care offered to Defendants, directly or through its personnel, nurses, employees, doctors, agents and assignees, to Lucila Maldonado and Plaintiffs was below the medical standard that satisfies the exigencies generally recognized by the medical profession in light of the modern means of communication and teaching, and as such directly caused and/or contributed to causing Lucila Maldonado s pain, suffering, and death as well as the injuries to her children, as described herein. 47. Defendants failed to provide adequate medical care and treatment, including but not limited to, failing to have or exercise the required knowledge and medical skill, failing to adequately perform examinations of Lucila Maldonado s left ear, failing to refer or conduct necessary testing, failing to order, properly conduct or read the pertinent tests, CT scans, and/or MRIs, failing to take the timely, appropriate, or necessary steps to treat or alleviate Lucila Maldonado s symptoms, failing to refer Lucila Maldonado to an Page 7 of 11

8 Case 3:12-cv Document 1 Filed 08/02/12 Page 8 of 11 appropriate hospital, doctor, or specialist, failing to exercise due care and caution, failing to properly staff their medical practices to timely, safely, and appropriately treat their patients, failing to obtain or receive appropriate and proper medical training, failing to timely take the necessary and appropriate steps to reach an accurate diagnosis, and/or to otherwise recognize the existence of Lucila Maldonado s cancer. 48. Defendants negligently failed to recognize the serious nature of the Lucila Maldonado s condition, i.e. the cancer in her left ear. 49. Defendants negligently failed to appropriately treat or otherwise address Lucila Maldonado s left ear cancer. 50. Defendants misled Lucila Maldonado and Plaintiffs into thinking that she would be appropriately treated. 51. As a direct and proximate result of Defendants direct negligence or the negligence of their employees, agents, or assignees, Lucila Maldonado cancer was left untreated for many months, her condition worsened, she died, and Plaintiffs suffered the injuries as described herein. SECOND CAUSE OF ACTION - CONJUGAL PARTNERSHIPS 52. The allegations contained above are incorporated by reference as if again fully set forth herein. 53. The activities by which the individual defendant doctors caused Plaintiffs damages were activities which benefitted their respective conjugal partnerships comprised, referred to herein as Doe-Roe Conjugal Partnerships, as Plaintiffs lack information as to the actual names of the respective wives and/or husbands. Page 8 of 11

9 Case 3:12-cv Document 1 Filed 08/02/12 Page 9 of As such, each conjugal partnership is jointly and severally liable to all Plaintiffs for the damages caused by Defendants. THIRD CAUSE OF ACTION - SIMED & ABC INSURANCE COMPANIES 55. The allegations contained above are incorporated herein by reference as if again fully set forth. 56. Defendant SIMED and ABC Insurance Companies were, at all times herein pertinent, an insurance company authorized to do business as such in the Commonwealth of Puerto Rico which issued a public liability and/or malpractice insurance policy and/or other applicable insurance on behalf of Defendants and/or other unknown joint tortfeasors. 57. Pursuant to 26 P.R. Laws Ann. 2001, Defendants SIMED and ABC Insurance Companies are jointly and severally liable for the negligence or fault of their insured(s). 58. Pursuant to 26 P.R. Laws Ann. 2003, this action is brought directly against Defendants SIMED and ABC Insurance Companies. DAMAGES 59. The allegations contained above are incorporated herein by reference as if again fully set forth. 60. As a direct and proximate result of the negligent acts and omissions of the Defendants, Plaintiffs have suffered physical, mental, emotional, and economic damages. 61. As a direct and proximate result of the negligent acts and omissions of the Defendants, Lucila Maldonado s condition and physical pain went untreated and undiagnosed causing her physical and emotional pain and suffering which is inherited by her children, the Plaintiffs. 62. As a direct and proximate result of the negligent acts and omissions of the Defendants, Page 9 of 11

10 Case 3:12-cv Document 1 Filed 08/02/12 Page 10 of 11 Lucila Maldonado died on December 22, As a direct result of the acts or omissions of all the Defendants, Plaintiffs have suffered damages, including but not limited to, mental anguish and ongoing emotional pain and suffering. 64. As a direct result of the acts or omissions of Defendants, Plaintiffs have lost their mother, who they loved very much. 65. As a direct result of the acts or omissions of Defendants, Plaintiffs have been deprived of the irreplaceable pleasures and value of their mother s love, companionship, advice and will continue to experience that premature loss each day for the rest of their lives. 66. Plaintiffs past, present and future economic, emotional, physical, and inherited damages stemming from the negligent treatment of their mother and her death has a reasonable value of not less than Two Million Dollars ($2,000,000.00). 67. Plaintiffs hereby demand trial by jury. TRIAL BY JURY DEMANDED WHEREFORE, Plaintiffs demand judgment against Defendants jointly and severally, in the amount of no less than $2,000,000.00, as well as costs incurred, reasonable attorneys' fees, and such other and further relief as to this Honorable Court may seem just and proper under the circumstances. RESPECTFULLY SUBMITTED. nd In San Juan, Puerto Rico this 2 day of August, Page 10 of 11

11 Case 3:12-cv Document 1 Filed 08/02/12 Page 11 of 11 CERTIFICATE OF SERVICE: We hereby certify that on this same date, the preceding document was filed with the Court s CM/ECF system which will notify the counselors of record. INDIANO & WILLIAMS, P.S.C. rd 207 del Parque Street; 3 Floor San Juan, P.R Tel: (787) ; Fax: (787) jeffrey.williams@indianowilliams.com By: s/ Jeff Williams JEFFREY M. WILLIAMS USDC PR Bar No Page 11 of 11