*1 Sandra Cruz Vargas Alicea, Brian Rafael Cruz Vargas, Steven José Cruz Vargas, and Michael Ruben Cruz Vargas (collectively “Cruz Vargas”) brought a claim against Continental Casualty Company, Bio-Medical Applications of Ponce, Inc., John Doe, Inc., and ABC Insurance Company (collectively “BMA”) under the court's diversity jurisdiction, alleging that BMA was negligent under Article 1802 of the Puerto Rico Civil Code (“Article 1802”), P.R. Laws Ann. tit. 31, § 5141, and Article 1803 of the Puerto Rico Civil Code (“Article 1803”), P.R. Laws Ann. tit. 31, § 5142. Docket No. 25. BMA moved for summary judgment, Docket Nos. 74, 92, and Cruz Vargas opposed. Docket Nos. 83, 93. This matter was referred to me for a report and recommendation. Docket No. 87.

For the reasons set forth below, BMA's motion should be DENIED.

Summary judgment is appropriate when the movant shows “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is “genuine” only if it “is one that could be resolved in favor of either party.” Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004). A fact is “material” only if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions” of the record materials “which it believes demonstrate the absence” of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

The court does not act as trier of fact when reviewing the parties’ submissions and so cannot “superimpose [its] own ideas of probability and likelihood (no matter how reasonable those ideas may be) upon” conflicting evidence. Greenburg v. P.R. Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987). Rather, it must “view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor.” Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). The court may not grant summary judgment “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. But the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and may not rest upon “conclusory allegations, improbable inferences, and unsupported speculation.” Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

Except where otherwise noted, the following facts are drawn from the parties’ Local Rule 56[1] submissions.[2]

*2 BMA is a Delaware corporation with its principal place of business in Massachusetts. SMF ¶ 1. It runs a dialysis clinic in Ponce where Héctor Cruz Santiago (“Cruz”) was scheduled to receive dialysis treatment three times per week. SMF ¶¶ 5, 10. On June 3, 2013, Cruz was 48-years-old, did not have trouble walking and did not use any device to help him walk. SMF ¶¶ 5, 10. Cruz's conditions included severe kidney disease, hyperkalemia, and anemia. OSF ¶ C.

On June 3, 2013, Cruz drove himself to his dialysis treatment, which started at 6:21 p.m. and lasted until 9:57 p.m. SMF ¶¶ 7, 14. During that treatment, he was under the immediate physical care of Nurse Maria Ramos La Torre (“Ramos”). SMF ¶ 12. The dialysis procedure was uneventful: Cruz denied any complaints, and the treatment was completed without any problems. SMF ¶¶ 13, 15. At the time the dialysis ended at 9:57 p.m., Cruz was alert and resting comfortably. SMF ¶ 15. Ramos took Cruz's blood pressure, which was recorded by a machine and then automatically entered in Cruz's medical recorded. SMF ¶ 36; DRSF ¶ Q. His sitting blood pressure measurement was recorded as 165/83, and his standing blood pressure measurement was recorded as 163/89. Docket No. 74–8 at 1. Cruz Vargas contests the accuracy of these measurements. PRSF ¶ 30.

In a usual dialysis treatment, the nurse removes the needles and places a gauze on the wound for several minutes to stop the bleeding. SMF ¶ 16. Around 10:15 p.m. (the precise time is contested), Cruz stood up. SMF ¶ 17; OSF ¶ T. However, the exact timeline of what occurred is unclear. Ramos provided three slightly different versions of what occurred. In her deposition, she stated,

Docket No. 74–9 at 58–59. In the nursing note that Ramos completed the night of the incident, she stated that Cruz was “going towards the scale” when she spoke to him and that she only told him to wait:

Docket No. 92–4 at 1–2; OSF ¶ U. Finally, in the Adverse Event Form that Ramos completed the following morning, she stated that Cruz was standing in front of his chair gathering his belongings when she spoke to him:

*3 Docket No. 92–5 at 1; OSF ¶ W. Once Cruz fell, he was on the floor in the fetal position, having seizures. SMF ¶ 22. Cruz Vargas states that something else also happened at this time but it is unclear as to what. OSF ¶ H.

The care that Ramos and her fellow BMA employees provided once Cruz fell is also contested because Ramos threw away the paper where she took notes on what happened after Cruz fell and before he was taken to the hospital. OSF ¶ P; DRSF ¶ P. This paper may have included the time of Cruz's fall and did include his vital signs as well as the treatment that the BMA employees provided before the ambulance arrived. OSF ¶ P; DRSF ¶¶ P, BB. BMA states that Ramos contacted her supervisor and co-workers and that the nurses protected Cruz's head and extremities and took his vital signs. SMF ¶ 24; PRSF ¶ 24. Ramos stated that Cruz's blood pressure after he fell was 120/110. Docket No. 65–3 at 28. It is uncontested that Ramos's supervisor contacted by telephone the physician on call, Dr. Santos Cosme, who instructed her to send Cruz to the emergency room. SMF ¶ 25. BMA states that Cruz regained consciousness and, at Cruz's request, BMA employees helped him into a chair. SMF ¶ 26; PRSF ¶ 26. Around 11:10 p.m., an ambulance arrived and took Cruz to the emergency room at Damas Hospital. SMF ¶ 27; PRSF ¶ 27. On June 6, 2013, Cruz died. PRSF ¶ 28.

Cruz is survived by three sons, Brian Rafael Cruz Vargas, Steven José Cruz Vargas, and Micahel Rubén Cruz Vargas, and his ex-wife Sandra Cruz Vargas, all of whom are the plaintiffs in this lawsuit. SMF ¶¶ 3, 4.

Under Puerto Rico law, which governs this diversity tort action, medical malpractice cases are brought under Article 1802. P.R. Laws Ann. tit. 31, § 5141; see also Martinez-Serrano v. Quality Health Servs. of P.R., Inc., 568 F.3d 278, 285 (1st Cir. 2009); Ramos Lozada v. Orientalist Rattan Furniture Inc., 130 D.P.R. 712, 728 n. 10 (1992). Article 1802 provides that “[a] person who by an act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so done.” P.R. Laws Ann. tit. 31, § 5141. Article 1802 requires the plaintiff in a medical malpractice action to establish “three separate things: (1) the duty owed, expressed as the minimum standard of professional knowledge and skill required under the circumstances then obtaining; (2) a breach of that duty attributable to the defendant; and (3) a sufficient causal nexus between the breach and the plaintiff's claimed injury.” Rodriguez-Sanchez v. United States, No. CV 14–1073 (FAB/BJM), 2016 WL 10803834, at *5 (D.P.R. Feb. 16, 2016) (quoting Rolon-Alvarado v. Municipality of San Juan, 1 F.3d 74, 77 (1st Cir. 1993)); see, e.g., Martinez-Serrano, 568 F.3d at 285; Cortés-Irizarry v. Corporación Insular de Seguros, 111 F.3d 184, 190 (1st Cir. 1997) (“Notwithstanding proof of both duty and breach, a plaintiff also must offer competent evidence of causation in a medical malpractice case.”).

Article 1803 “embodies the principle of respondeat superior, and provides, inter alia, that ‘[t]he obligation imposed by § 5141 of this title is demandable, not only for personal acts and omissions, but also for those of the persons for whom they should be responsible.’ ” Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 14 (1st Cir. 2009); see P.R. Laws Ann. tit. 31, § 5142; De La Cruz v. United States, 656 F. Supp. 575, 579–80 (D.P.R. 1987) (per Article 1803, “a hospital may be liable for the medical malpractice of its physicians under a theory of vicarious liability”).

*4 In Torres-Lazarini v. United States, the First Circuit defined “the duty owed under Puerto Rico law in a malpractice case against a hospital in terms of ‘the minimum standard of professional knowledge and skill required in the relevant circumstances.’ ” Martinez-Serrano, 568 F.3d at 286 (quoting Torres-Lazarini v. United States, 523 F.3d 69, 72 (1st Cir. 2008)); see Marcano Rivera v. Turabo Med. Ctr. P'ship, 415 F.3d 162, 167–68 (1st Cir. 2005) (“Puerto Rico courts have explained the standard of care owed to patients as [t]hat [level of care] which, recognizing the modern means of communication and education, ... meets the professional requirements generally acknowledged by the medical profession.” (internal quotations omitted)). The standard of care is evaluated on a national basis. See Marcano Rivera, 415 F.3d at 168. “Under Puerto Rico law, there is always a presumption that the treating physicians have observed a reasonable degree of care ... in the process of giving medical attention and treatment.” Rodriguez-Sanchez v. United States, No. CV 14–1073 (FAB/BJM), 2016 WL 10803834, at *5 (D.P.R. Feb. 16, 2016) (internal quotations omitted). Consequently, plaintiffs must generally provide expert testimony to rebut this presumption and prove both the standard of care and causation. See Pages-Ramirez v. Ramirez-Gonzalez, 605 F.3d 109, 113 (1st Cir. 2010) (“In order to determine the applicable standard of care in a medical malpractice action and to make a judgment on causation, a trier of fact will generally need the assistance of expert testimony.”).

A. Evidentiary Issues

As I granted Cruz Vargas's motion for sanctions, Docket 103, the first question is how BMA's spoliation of evidence affects the court's weighing of evidence in BMA's motion for summary judgment. Courts have held that, “[i]n borderline cases, an inference of spoliation, in combination with ‘some (not insubstantial) evidence’ for the plaintiff's cause of action, can allow the plaintiff to survive summary judgment.” Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001) (quoting Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998)); see also Talavera v. Shah, 638 F.3d 303, 312 (D.C. Cir. 2011) (when evaluating motion for summary judgment, “[t]he spoliation inference must be considered along with [the party]’s other admissible evidence”); Nation-Wide Check Corp. v. Forest Hills Distributors, Inc., 692 F.2d 214, 218–19 (1st Cir. 1982) (Breyer, J.) (“The issue before the court was ... whether the destruction was at all relevant to the tracing issue, and if so, whether it was sufficiently probative in conjunction with the other evidence to support the tracing conclusion.”). That is because “holding the prejudiced party to too strict a standard of proof regarding the likely contents of the destroyed evidence would subvert the prophylactic and punitive purposes of the adverse inference, and would allow parties who have intentionally destroyed evidence to profit from that destruction.” Kronisch, 150 F.3d at 128.

In Pelletier v. Magnusson, after the court assumed for summary judgment purposes “that the documents missing are those that the defendants were obliged to keep and that the destruction was intentional,” the court found that the plaintiff had met his burden of proof in his claim under 42 U.S.C. ¶ 1983 by combining evidence that some of the defendants were “deliberately indifferent” to the plaintiff's health and the destruction of medical record progress notes, which would have “provided the most insight into how” the plaintiff was doing and whether the prison officials knew that he was suicidal. 195 F. Supp. 2d 214, 236–37 (D. Me. 2002) (“[T]he intentional destruction of relevant evidence by the defendants has pushed a claim that might not otherwise survive summary judgment over the line.” (internal quotations omitted)); cf. Hankey v. Town of Concord-Carlisle, 136 F. Supp. 3d 52, 72 (D. Mass. 2015) (claim did not survive summary judgment where plaintiff “presented no evidence as to an essential element of her legal claim” and relied exclusively on the adverse inference because “without any evidence, a generalized adverse inference, alone, will not support a jury verdict” (internal quotations omitted)).

*5 The second evidentiary issue is the log entry that Cruz Vargas relies on as an admission of liability by BMA's employees. BMA challenges both the authenticity of the record and argues that it is inadmissible hearsay. Docket No. 92 at 6. For the purposes of this motion for summary judgment, I find that the log entry is both authenticated and not hearsay.

Authentication is a requirement applicable to all evidence offered as exhibits at trial or as factual support for pretrial motions. See United States v. Holmquist, 36 F.3d 154, 166 (1st Cir. 1994) (“It cannot be gainsaid that documentary evidence must be authentic.”), cert. denied, 514 U.S. 1084 (1995); United States v. Paulino, 13 F.3d 20, 22 (1st Cir. 1994) (documentary evidence must be authentic; authentication is condition precedent to admissibility). The authentication of records is governed by Federal Rule of Evidence 901(a), which states in pertinent part that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed. R. Evid. 901(a); see also United States v. Neal, 36 F.3d 1190, 1210 (1st Cir. 1994) (“Federal Rule of Evidence 901(a) requires the trial court to determine if there is a ‘reasonable probability’ that the evidence is what it is purported to be.”). It is clear that Rule 901 of the Federal Rules of Evidence “does not erect a particularly high hurdle.” United States v. Ortiz, 966 F.2d 707, 716 (1st Cir. 1992). The burden of authentication “does not require the proponent of the evidence to rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be. Rather, the standard for authentication, and hence for admissibility, is one of reasonable likelihood.” Holmquist, 36 F.3d at 168; see also United States v. Díaz, 519 F.3d 56, 63–64 (1st Cir. 2008) (evidence that documents offered by government to prove alienage were produced by Department of Homeland Security officials and came from Alien Registration file associated with alien's known aliases was “sufficient ... to allow a reasonable person to believe evidence is what it purports to be.”).

In her deposition, Ramos described the log and how it was used to document “all events” at the clinic. See Docket No. 65–3 at 40–41 (“[M]y notes were in the record, but already the report of the event was there and the supervisor's report was there, all in a log that we write everything ... that happens every day.... It's a book where we write every patient that is absent and all events.”). “In addition, the document was produced by defendant to plaintiff during discovery as the [log book]. Although the fact that a defendant may have produced a document is alone not enough for authentication, [Ramos's] deposition testimony is sufficient” to authenticate the document. DSSDR, LLC v. Zenith Infotech, Ltd., No. CV. 13–10026, 2014 WL 1382553, at *3 (D. Mass. Apr. 8, 2014); see Docket Nos. 65–3 at 41 (BMA's attorney states after Ramos's testimony and in response to Cruz Vargas's request for the log that she will find it and look for it); 93–1 (email from BMA's attorney producing the documents requested during the depositions); 65–4 at 1 (log entry with BMA bates-stamp). Other courts have also found that the fact that a document was produced by the defendant is enough to authenticate it. See Cook v. Perkins, No. CV.A. 12–258, 2013 WL 5592805, at *2 (M.D. La. Oct. 10, 2013) (plaintiff sufficiently authenticated unsigned document by stating that it “came from defendant [Deputy] Perkins’ personnel folder and were obtained through discovery. It is reasonable to conclude that the defendants would have produced these documents to the plaintiff in response to a discovery request”); Anand v. BP W. Coast Prod. LLC, 484 F. Supp. 2d 1086, 1092 (C.D. Cal. 2007) (“Documents produced in response to discovery requests are admissible on a motion for summary judgment since they are selfauthenticating and constitute the admissions of a party opponent.”); S. Cent. Bank & Tr. Co. v. Citicorp Credit Servs., Inc., 863 F. Supp. 635, 645–46 (N.D. Ill. 1994) (plaintiff did not prove who the author of the draft letter was or whether it was sent or received, but plaintiff sufficiently authenticated it by stating that it had been produced by the opposing party).

*6 Moreover, the log entry is not hearsay because it is an admission of a party opponent, as BMA's attorney produced it during discovery. See Fed. R. Evid. 801(d)(2)(A) (not hearsay when a statement is “offered against a party” and is “the party's own statement, in either an individual or a representative capacity”); Donahue v. Clair Car Connection, Inc., 736 F. Supp. 2d 294, 304 (D. Me. 2010) (document is an admission of a party-opponent because it was produced by the defendants during discovery).

It is also falls under the business records exception to the hearsay rule exception for business records, which provides that records of “acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity” are admissible. Fed.R.Evid. 803(6); see Petrocelli v. Gallison, 679 F.2d 286, 290 (1st Cir. 1982) (“Rule 803(6) requires that information in a business record be ‘transmitted by a person with knowledge’ acting ‘in the course of a regularly conducted business activity.’ ”). Here, the log entry was written near the time of Cruz's fall as it was already created by the time Ramos was called in at 8:00 a.m. the following morning. The entry was also transmitted by a person with knowledge as part of a “regular, systematic business activity” within the clinic because the log was where BMA employees documented everything that happened with patients. Hiram Ricker & Sons v. Students Int'l Meditation Soc., 501 F.2d 550, 554 (1st Cir. 1974).

B. Medical Malpractice

Cruz Vargas proffered the testimony of Doctor Julio Benabe to prove the standard of care. Dr. Benabe attested to a number of fall prevention measures that should have been taken by BMA to prevent a fall such as the one that Cruz suffered.[3] Docket No. 74–4. Specifically, he stated that given Cruz's medical history and condition and the fact that he “was finishing a procedure with major hemodynamic changes that required continuing observation and assistance in his ambulatory needs,” BMA should have had a doctor present during Cruz's dialysis to “make sure that [Cruz] was stable, ... that his blood pressure and potassium levels were controlled, ... that the nurse accurately took [Cruz's] standing blood pressure measurement, and [that] he was assisted in moving from the dialysis chair to the place where he needed to go.” OSF ¶ C. BMA should also not have allowed Cruz to stand up, “always accompan[ied] him,” and made “sure that his blood pressure was going to be stable.” OSF ¶ C. BMA should have measured Cruz's blood pressure while he was standing. In addition, if Cruz's “blood pressure was too low upon finishing dialysis, BMA should have prevented the fall by telling him not to stand or, if he were to stand, having him do it gradually and with assistance.” OSF ¶ C. Finally, “BMA should have formulated a plan to address [Cruz's] risk factors for a fall, and consistently monitored and documented his blood pressure to watch for post-dialysis sudden drops.” OSF ¶ C; DRSF ¶ C (agreeing that Dr. Benabe testified to the above).

*7 BMA argues that the court should disregard the standards of care that Dr. Benabe described because he did not support his opinion by citing to a written policy. See Docket No. 74 at 7. However, as Cruz Vargas states, the law does not require an expert to put forth “specific medical literature” to support his opinion. Casillas-Sanchez v. Ryder Mem'l Hosp., Inc., 14 F. Supp. 3d 22, 26 (D.P.R. 2014) (“Defendants’ further argument that Dr. Torres did not mention or produce ‘any single piece of specific medical literature in order to establish the alleged standard of care,’ is utterly insignificant. Federal Rules of Evidence 705 and 703 do not require an expert to do so.” (internal citations omitted)).

BMA further argues that the Medicare coverage regulations for dialysis clinics create the relevant standard of care. See Docket No. 74 at 6 (citing 42 C.F.R. § 494.90(b)(4)). Not only does BMA fail to provide any case law that suggests that the Medicare guidelines now dictate the national standard of care for dialysis clinics, but even if the Medicare guidelines were relevant, this merely creates a genuine dispute of material fact as to the duty of care, which precludes entry of summary judgment.

The second element of a medical malpractice claim is breach. Cruz Vargas argues that BMA breached its duty of care in a variety of ways. Namely, Cruz Vargas argues that there was no doctor present at Cruz's dialysis treatments, that Ramos took Cruz's blood pressure incorrectly, that Ramos did not properly assist Cruz after his treatment, and that BMA did not create a plan to address Cruz's risk of falls and properly monitor Cruz's blood pressure as that plan would have dictated. OSF ¶¶ E, F, M, N. BMA argues that Dr. Benabe stated that Cruz's post-treatment blood pressure readings did not provide an indication that Cruz would fall, so BMA could not be held responsible for failing to act based on an unanticipated event. Docket No. 74 at 8. However, Dr. Benabe had stated previously that a blood pressure of 164/83 would not have caused him to implement any specific or preventive measures only if the patient was lying down or sitting when that blood pressure was taken (Cruz was standing when Ramos recorded his blood pressure as 163/89). Docket Nos. 74–4 at 110; 74–8 at 1. Moreover, Dr. Benabe challenged the accuracy of Ramos's blood pressure measurements.[4] DRSF ¶ N (Dr. Benabe testified, “[T]he standing blood pressure of 163/90 and after that immediately falling and having a blood pressure of 120/110, I don't think it's believable”). Moreover, Ramos threw away the note that memorialized Cruz's vital signs immediately after falling as well as the time of the fall, which could have been compared to the time when she took the other measurements. As Cruz Vargas does not have the benefit of this evidence due to BMA's spoliation, I will not hold its absence against Cruz Vargas during summary judgment. Finally, Cruz Vargas argues that Cruz's medical condition essentially put BMA on warning of Cruz's high risk of falling, so Cruz Vargas's argument is not that BMA should have taken fall prevention measure solely based on the abnormality of Cruz's blood pressure measurements. See OSF ¶ A (“As a dialysis patient with comorbid conditions, Mr. Cruz was at a high risk of falling.”).

In sum, BMA argues that all of the fall prevention measures that Dr. Benabe recommended were taken, but there is evidence that Ramos was not actively assisting Cruz as he stood, that there was no doctor present and supervising the dialysis, and that BMA did not have a fall plan for Cruz. Consequently, Cruz Vargas successfully met the requirements for making a prima facie showing of BMA's breach.

*8 The last element that Cruz Vargas must prove is causation. Dr. Benabe testified that BMA's various breaches of duty contributed to Cruz's fall. Docket No. 74–4 at 128. BMA relies on the fact that Dr. Benabe also testified that “an episode of orthostatic hypotension or some sort of arrhythmia that was not documented by the personnel in the dialysis unit” caused Cruz's fall to show that Cruz Vargas did not prove causation. SMF ¶ 34; Docket No. 74–4 at 127. However, the First Circuit has been clear that “a plaintiff in a medical malpractice suit need not prove a causal connection with mathematical accuracy nor eliminate all other possible causes of damage.” Cortes-Irizarry, 111 F.3d at 191. As “[t]here are often several factors which together cause injury[,]” it is not fatal to a plaintiff's case when a “doctor [cannot] say whether [a factor] was a more significant factor than others.” Heddinger v. Ashford Mem'l Cmty. Hosp., 734 F.2d 81, 84–85 (1st Cir. 1984). The plaintiff instead must show that the factor “fairly contributed to the injury.” Id. Dr. Benabe testified that “certainly the possibilities of having a major fall leading to the traumatic subdural -- and all the consequences after that, would've been much, much less had [Cruz] been assisted.” Docket No. 74–4 at 146. Consequently, Cruz Vargas has created a triable issue of fact as to whether BMA's breach of its duty fairly contributed to Cruz's injury and eventual death. Furthermore, such questions of causation are generally inappropriate for summary judgment: “[i]n any case where there might be reasonable difference of opinion as to evaluative determinations ... the question [of proximate causation] is one for the jury.” Quinones v. Metro Santurce, Inc., No. CV. 12–1658 (SEC), 2014 WL 4930913, at *3 (D.P.R. Sept. 30, 2014) (quoting Springer v. Seamen, 821 F.2d 871, 876 (1st Cir. 1987)); see Swift v. United States, 866 F.2d 507, 510 (1st Cir. 1989) (“Application of the legal cause standard to the circumstances of a particular case is a function ordinarily performed by, and peculiarly within the competence of, the factfinder.”). Lastly, Cruz Vargas also created a genuine dispute of material fact of both breach and causation through the evidence of the log entry in which a BMA employee stated that Ramos caused Cruz to fall. OSF ¶ II. This admission of liability serves as a separate grounds for finding that BMA breached its duty by acting negligently and that its breach caused Cruz's fall.

Drawing all reasonable inferences in favor of Cruz Vargas, the court should find that she met her burden of furnishing competent evidence to support her claim of medical malpractice. When combined with the inference of spoliation, Cruz Vargas certainly should defeat summary judgment.

For the foregoing reasons, the motion for judgment should be DENIED.

This report and recommendation is filed pursuant to 28 U.S.C. 636(b)(1) and Rule 72(d) of the Local Rules of this Court. Any objections to the same must be specific and must be filed with the Clerk of Court within fourteen days of its receipt. Failure to file timely and specific objections to the report and recommendation is a waiver of the right to appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Davet v. Maccorone, 973 F.2d 22, 30–31 (1st Cir. 1992); Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988); Borden v. Sec'y of Health & Human Servs., 836 F.2d 4, 6 (1st Cir. 1987).

IT IS SO RECOMMENDED.