Sherman v. Anasazi Medical Associates ( 2016 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 SANDRA L. SHERMAN,
3 Plaintiff-Appellant,
4 v. No. 35,151
5 Bernalillo County
6 D-202-CV-2008-05751
7 ANASAZI MEDICAL ASSOCIATES,
8 ARDENT HEALTH SERVICES, and
9 LOVELACE SANDIA HEALTH SYSTEM,
10 INC., DR. WILLIAM HUGHES, and DR.
11 THOMAS STRAIN,
12 Defendant-Appellees,
13 and
14 DR. CARL FRIEDRICHS, DR. CAROLINE
15 KINGSTON, LAUREN BLANCHARD,
16 and BONNIE GIACCHETTI,
17 Defendants.
18 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
19 Clay Campbell, District Judge
20 Sandra L Sherman
21 Albuquerque, NM
1 Pro Se Appellant
2 Rodey, Dickason, Sloan, Akin & Robb P.A.
3 Michael Brescia
4 R. Nelson Franse
5 Valerie Reighard Denton
6 Albuquerque, NM
7 for Appellees Lovelace Sandia Health System, Inc., Dr. William Hughes, Dr.
8 Thomas Strain, and Ardent Health Services
9 Allen, Shepherd, Lewis & Syra, P.A.
10 Edward W. Shepherd
11 Albuquerque, NM
12 Hinkle Shanor LLC
13 S. Barry Paisner
14 Santa Fe, NM
15 for Appellee Anasazi Medical Associates
16 MEMORANDUM OPINION
17 SUTIN, Judge.
18 {1} Plaintiff-Appellant Sandra Sherman appeals in a self-represented capacity from
19 the district court’s dismissals of her medical malpractice claims against Defendants
20 Ardent Health Services, Anasazi Medical Associates, and Lovelace doctors William
21 Hughes and Thomas Strain (collectively referred to as the Lovelace Defendants). Our
22 notice proposed to dismiss in part and to affirm in part. Plaintiff filed a timely
2
1 response in opposition. We remain unpersuaded by Plaintiff’s arguments and thus
2 affirm.
3 {2} Regarding Plaintiff’s appeal from the orders dismissing her claims against
4 Defendants Ardent Health Services and Anasazi Medical Associates [1 RP 199; 2 RP
5 517, 710], as we explained in detail in our notice, Plaintiff did not timely appeal from
6 these orders, see Rule 12-201(A)(2) NMRA, and the timely filing of a notice of appeal
7 is a mandatory precondition to our jurisdiction over an appeal. See Govich v. N. Am.
8 Sys., Inc., 1991-NMSC-061, ¶ 12, 112 N.M. 226, 814 P.2d 94 (explaining that time
9 and place of filing a notice of appeal is a mandatory precondition to appellate
10 jurisdiction). Because Plaintiff did not file timely notices of appeal from the respective
11 orders of dismissal for these Defendants, for the reasons provided in our notice, we
12 dismiss her appeal for lack of timeliness.
13 {3} We next address Plaintiff’s appeal from the October 28, 2015, order granting
14 summary judgment and dismissing with prejudice Plaintiff’s claims against the
15 Lovelace Defendants. [2 RP 710] Because Plaintiff’s appeal was timely from the
16 October 28, 2015, order, we consider its merits. See generally Montgomery v. Lomos
17 Altos, Inc., 2007-NMSC-002, ¶ 16, 141 N.M. 21, 150 P.3d 971 (setting forth our
18 standard of review). In doing so, we consider Plaintiff’s central allegations that her
19 blood pressure medication caused her to have an allergic reaction leading to her
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1 physical ailments and that she was wrongfully denied a prescription for a different
2 medication. [1 RP 2, 84; DS 1; MIO 1-2] Pertinent to this and as emphasized in
3 Plaintiff’s response to our notice, Plaintiff states that the lack of proper medication
4 poisoned her system and caused her to get sicker over time [DS 1; MIO 1], ultimately
5 requiring multiple ambulance rides and the need to take “Focus Factor” to help
6 sharpen her mind, as well as the suffering of over twenty heart upsets, tinnitus, nose
7 bleeds, the loss of vision, and a lack of balance. [MIO 2]
8 {4} As we emphasized in our notice, however, for Plaintiff’s claims against the
9 Lovelace Defendants, expert testimony was needed to address whether their treatment
10 of Plaintiff fell below the requisite standard of care. To this end, the risk-benefit
11 analysis regarding the prescribed medications, as well as whether continued use of
12 certain medications would have been dangerous or have harmful effects in a patient
13 with Plaintiff’s physicality, are complex issues that necessitate expert testimony. [2
14 RP 637] See generally Toppino v. Herhahn, 1983-NMSC-079, ¶ 14, 100 N.M. 564,
15 673 P.2d 1297 (providing that expert medical evidence is generally essential to
16 establish the elements of “departure from reasonable standards of care” and that
17 “[o]rdinarily expert evidence is essential to support an action for malpractice against
18 a physician or surgeon” (internal quotation marks and citation omitted)). But despite
19 the passage of almost seven years after the filing of the original complaint and the
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1 district court’s repeated expressed expectation to Plaintiff that she provide the
2 requisite expert testimony [2 RP 633-34], Plaintiff failed to disclose any experts
3 willing to state that the Lovelace Defendants breached the applicable standard of care,
4 much less that any alleged breach was a cause of Plaintiff’s alleged injuries. [2 RP
5 633-34] To the contrary, despite Plaintiff’s attempts with “some 40” doctors [DS 1],
6 none of these doctors would state that she received an unacceptable standard of care
7 or otherwise agree with her position that her prescription should have been replaced;
8 rather, Plaintiff had only one expert who would state only that the standard of care
9 was acceptable. [DS 1] And while Plaintiff is now pleased with her treatment at the
10 University of Texas Southwestern Medical Center in Dallas [MIO 1], this has no
11 bearing on the summary judgment proceedings before the district court below.
12 {5} In sum, given the lack of expert testimony to support Plaintiff’s claims that the
13 conduct of the Lovelace Defendants fell below the acceptable standards of
14 performance of medical practice, there could be no disputed issue of fact with regard
15 to Plaintiff’s allegations that the Lovelace Defendants breached their duty in
16 prescribing her medication or that any alleged breach was the cause of her injuries. [2
17 RP 638] See, e.g., Cervantes v. Forbis, 1964-NMSC-022, ¶¶ 1, 13, 73 N.M. 445, 389
18 P.2d 210 (holding that where a patient, suing physicians for alleged negligent
19 treatment of a broken leg, had no expert testimony to offer in order to establish failure
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1 to meet standard of care or proximate cause, the patient had not shown presence of a
2 genuine issue of material fact as to either, and the defendant physicians were entitled
3 to summary judgment), modified on other grounds by Pharmaseal Labs., Inc. v. Goffe,
4 1977-NMSC-071, ¶ 15, 90 N.M. 753, 568 P.2d 589. Thus, for the reasons provided
5 in this Opinion and in our notice, we affirm.
6 {6} To conclude, based on her untimely appeal [2 RP 710], we dismiss Plaintiff’s
7 appeal from the order dismissing Ardent Health Services [1 RP 199] and from the
8 order granting summary judgment and dismissing the claims as to Anasazi Medial
9 Associates. [2 RP 517] And although Plaintiff’s notice of appeal is timely as to the
10 district court’s order granting summary judgment and dismissing her claims against
11 the Lovelace Defendants, we affirm on the merits as to the dismissal of the Lovelace
12 Defendants.
13 {7} IT IS SO ORDERED.
14 __________________________________
15 JONATHAN B. SUTIN, Judge
16 WE CONCUR:
17 ___________________________________
18 MICHAEL D. BUSTAMANTE, Judge
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1 ___________________________________
2 LINDA M. VANZI, Judge
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