Herbert Room v. Caribe Hilton Hotel, 659 F.2d 5, 1st Cir. (1981)

659 F.
2d 5
Herbert ROOM, Plaintiff, Appellant,

v.
CARIBE HILTON HOTEL, Defendant, Appellee.
No. 80-1607.
United States Court of Appeals,

First Circuit.
Argued June 1, 1981.
Decided Sept. 14, 1981.
Jose E. Fernandez Sein, Rio Piedras, P. R., with whom Harvey B.

Nachman, Santucce, P. R., was on brief, for plaintiff, appellant.
Charles DeMier Leblanc, Hato Rey, P. R., with whom A. Miranda
Cardenas, De Corral & Rodriguez, Old San Juan, P. R., was on brief, for
defendant, appellee.
Before COFFIN, Chief Judge, CAMPBELL and BREYER, Circuit
Judges.
LEVIN H. CAMPBELL, Circuit Judge.
Plaintiff Herbert Room commenced this diversity action to recover damages

allegedly arising out of a heart attack he suffered on November 24, 1976, while
a guest at defendant Caribe Hilton Hotel. At the close of plaintiff's case-inchief, the district court granted a directed verdict for defendant and plaintiff
appeals. We affirm.
The facts as viewed in the light most favorable to plaintiff, see, e. g., Carlson v.
American Safety Equipment Corp., 528 F.2d 384, 385 (1st Cir. 1976), are as
follows. Herbert Room arrived in Puerto Rico on November 24, 1976 and
registered as a guest at the Caribe Hilton Hotel in San Juan. That evening,
Room gambled at the hotel casino. As he was leaving the casino, he began to
feel weak and returned to his room. Upon arriving there, he felt nauseous, and
therefore called the hotel operator, after reading the following section in the
hotel service directory:
3 registered nurse is on duty, and a qualified physician is available at all times. Call
A
doctor's office for appointment 8:30 A.M. to 5:00 P.M., Monday through Friday.
After hours and Saturdays and Sundays, call: Telephone operator. Nurse will be glad
to make dental appointments. Call: Ext. 1740.
4
this first call to the operator took place, according to Room, at 7:30 p. m. He
requested a doctor, although he did not describe his symptoms, and testified that
the operator told him she would get him one. At 11:30 p. m., he called the
operator and again requested a doctor, again making no mention of his
symptoms. The operator tried to call one of three doctors listed on a hotel roster
as available to treat guests, but his line was busy. She then called Room, who
told her to keep trying. Five or ten minutes later she tried again to call the
doctor, but his line was still busy. She informed Room, who again asked her to
keep trying. She tried to call the other doctors on the list, but was unable to
make contact with any of them. Once again, she called Room, who again asked
her to keep trying. At no time did she call the 24-hour emergency number of the
San Jorge Hospital, although that number was also listed on her roster.
Eventually, Room called some friends in Puerto Rico, who advised him to take
a cab to the Presbyterian Hospital, which he did. They also called the hotel
operator and informed her that she could stop trying to call the doctor.
Room arrived at the hospital at approximately 1:15 a. m. His condition was

diagnosed as a myocardial infarction, or heart attack. He remained hospitalized
for almost a month. In the course of that time, he suffered two more serious
incidents involving his heart, acute cardiac failure on November 30, and
paroxysmal tachycardia on December 8.
After being released from the hospital, Room returned to his home in New
York and took a job as a converter in the textile industry. He quit approximately
nine months later because he was unable to keep enough information in his
head to do his job satisfactorily. He now suffers from a poor memory and head
pains, complaints he never had before his heart attack.
Room sued the hotel, alleging that it had breached a duty under Puerto Rico law
to provide him with adequate medical care by failing to put him in touch with a
doctor from the time he first called the operator until he left for the hospital.
Room alleged that this delay caused him permanent brain damage, and claimed
$1 million in damages for hospital and medical expenses, loss of earnings, and
pain and suffering. In directing a verdict for the defendant, the district court
found, inter alia, that the delay in providing plaintiff with medical attention was
not a proximate cause of his injuries.1
Assuming arguendo that the defendant breached a duty to exercise reasonable

care in providing medical care to its guests,2 the plaintiff must still establish a
causal relation between the defendant's negligence and the plaintiff's injury.
See, e. g., Portilla v. Carreras Schira, 95 P.R.R. 785, 793 (1968). In discussing
this issue, it is necessary to distinguish the plaintiff's permanent brain damage
from any pain and mental anguish he may have suffered during the time when
the defendant failed to provide him with a doctor. We shall address the
permanent injuries first.
The plaintiff's sole expert testimony concerning his medical condition was
given by Dr. Jose Luis Freyre, a clinical neurologist. Dr. Freyre examined the
plaintiff on November 1, 1978. He had no contact with plaintiff at any time
prior to this; specifically, he did not treat plaintiff during his hospitalization in
1976.
10
Dr. Freyre testified as to plaintiff's loss of some cerebral function, and testified
further that the heart attack of November 24 could have caused this condition.
On cross-examination, however, he admitted that the hospital's records of
plaintiff's condition at the time of his admission were not complete enough to
determine with any degree of certainty whether the November 24 attack did
indeed cause any brain damage. In particular, the lack of any information as to
plaintiff's blood pressure at the time of admission made it impossible for Dr.
Freyre to ascertain whether the attack had resulted in any significant decrease in
blood flow to the brain.
11
Most significantly, Dr. Freyre was unable to determine which of the three
heart-related incidents suffered by plaintiff caused the brain damage. The
following colloquy took place between the court and Dr. Freyre:
12
THE COURT: (C)ould the second (heart failure) have been the cause of
(plaintiff's) condition?
13
THE WITNESS: It could have.
14
THE COURT: Is there any way of telling whether it was the second or the
first?
15
THE WITNESS: No way of telling whether it was the first, second or third.
16
It is not disputed that the delay in rendering medical assistance on November
24 was not a cause of the two subsequent cardiac incidents. There was no
evidence that the delay on November 24 was a more likely cause of plaintiff's
condition than were the other two incidents. In such a situation, any
determination by the jury that the delay did cause the injury would be pure
speculation and conjecture. Such speculation is not permitted. Widow of
Delgado v. Boston Insurance Co., 99 P.R.R. 693, 702-04 (1971); W. Prosser,
Handbook of the Law of Torts 41, at 241 (4th ed. 1971). The directed verdict
for defendant as to plaintiff's permanent brain damage was therefore proper.
17
The evidence of any mental anguish 3 that plaintiff may have suffered during
the delay in obtaining medical treatment was also insufficient to overcome
defendant's motion for a directed verdict. Plaintiff's sole evidence on this issue
is as follows. He testified that during the time he was in the hotel room waiting
for the operator to contact a doctor, he was weak and had few lucid moments.
He said he had some pains in his back and arms, and that at one point they
became very severe, at which time he felt that he was going to die.
18
There was, however, no evidence that the delay alone caused any pain or
mental suffering. Defendant quite rightly points out that the heart attack itself
an event for which defendant was not responsible would be accompanied by
some pain, regardless of the speed with which help arrived. There was no
attempt by plaintiff to show the extent to which prompt medical attention
would have alleviated his pain, if at all. Given this failure even to attempt to
apportion the damages between the delay and the heart attack,4 no reasonable
jury could conclude that the delay alone caused any pain or mental suffering.
19
Similarly, the proof of mental anguish based on plaintiff's fear that he was
going to die was insufficient. Again, there is no evidence that he would not
have feared for his life even after receiving medical attention. The fact that he
suffered two more cardiac-related crises while in the hospital certainly suggests
that he was not out of danger even after his hospitalization. Moreover, plaintiff
did not describe how long he feared for his life or how great that fear was. Any
attempt by the jury to assign a dollar value to this injury based on the testimony
described above could only be the result of speculation and conjecture. While
plaintiff's testimony may amount to a scintilla of evidence that the delay caused
him substantial mental anguish, that is not sufficient to overcome a motion for a
directed verdict. See, e. g., Trinidad v. Pan American World Airways, Inc., 575
F.2d 983, 985 (1st Cir. 1978).
20
Affirmed.
In light of our decision on this issue, it is not necessary to reach the other
grounds on which the district court rested its decision
We do not decide whether such a duty actually existed or whether it was

breached in this case
Under Puerto Rico law, a plaintiff may recover damages for mental suffering,
even without any physical injury being alleged or proven. See Compagnia
Nationale Air France v. Castano, 358 F.2d 203 (1st Cir. 1966); Muriel v.
Suazo, 72 P.R.R. 348 (1951); Rivera v. Rossi, 64 P.R.R. 683 (1945)
Defendant is not, of course, responsible for that portion of the injury resulting
solely from the heart attack. See generally W. Prosser, Handbook of the Law of
Torts 52, at 317-20

Herbert Room v. Caribe Hilton Hotel, 659 F.2d 5, 1st Cir. (1981)

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659 F.

Herbert ROOM, Plaintiff, Appellant,

United States Court of Appeals,

Jose E. Fernandez Sein, Rio Piedras, P. R., with whom Harvey B.

Plaintiff Herbert Room commenced this diversity action to recover damages

Room arrived at the hospital at approximately 1:15 a. m. His condition was

Assuming arguendo that the defendant breached a duty to exercise reasonable

THE WITNESS: It could have.

It is not disputed that the delay in rendering medical assistance on November

We do not decide whether such a duty actually existed or whether it was

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