Vaughan v. St. Vincent Hospital

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 WILLIAM “MACK” VAUGHAN,
3 Plaintiff-Appellant,
4 v. NO. 30,395
5 ST. VINCENT HOSPITAL, INC.,
6 Defendant-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
8 Barbara J. Vigil, District Judge
9 Stephen Durkovich
10 Nikko Harada
11 Santa Fe, NM
12 Garcia & Vargas, LLC
13 Ray M. Vargas, II
14 Erin O’Connell
15 Santa Fe, NM
16 for Appellant
17 Hinkle, Hensley, Shanor & Martin, LLP
18 William P. Slattery
19 Dana S. Hardy
20 Santa Fe, NM
1 for Appellee
2 MEMORANDUM OPINION
3 SUTIN, Judge.
4 The district court entered summary judgment in favor of St. Vincent Hospital,
5 Inc. (the Hospital) on Plaintiff William “Mack” Vaughan’s complaint for medical
6 negligence alleging “the apparent failure by [the Hospital] through an administrative
7 inadequacy to forward [a] radiology report on to” Plaintiff’s treating physician. The
8 court entered summary judgment on the ground that Plaintiff failed to present an
9 expert witness on the Hospital’s alleged negligence and on causation and on the
10 ground that the complaint failed to give sufficient notice of a claim against the
11 Hospital based on apparent agency and vicarious liability. We hold that Plaintiff’s
12 complaint did not give sufficient notice of a claim of vicarious liability, and we affirm
13 the summary judgment on that issue. We hold, too, that Plaintiff failed to establish
14 evidence supporting a breach of duty under any standard of care. We also affirm the
15 summary judgment on that issue. Because we affirm the summary judgment on those
16 issues, we do not address the causation issue.
17 BACKGROUND
18 Facts
2
1 On August 8, 2002, Plaintiff went to the Hospital’s emergency room because
2 he was suffering from severe abdominal pain. Plaintiff was first treated by Dr. Martin
3 Wilt. Plaintiff underwent a number of examinations, including an abdominal CT scan
4 ordered by Dr. Wilt. Dr. Wilt called the on-call surgeon, Dr. Anna Voltura, to
5 examine Plaintiff. Before she saw Plaintiff, Dr. Voltura went to the radiology
6 department to review Plaintiff’s CT scan with the radiologist, Dr. Damron. Dr.
7 Damron and Dr. Voltura looked at the CT scan and concluded that Plaintiff had a
8 diverticular abscess. According to Dr. Voltura, they did not discuss the possibility of
9 the abscess being a neoplasm (cancer).
10 Based on what Dr. Voltura and Dr. Damron read on the CT scan, as well as the
11 fact that Plaintiff’s white blood count was elevated, Dr. Voltura told Plaintiff that he
12 had a diverticular abscess. Dr. Voltura stated in her deposition that she attempted to
13 persuade Plaintiff to be admitted to the hospital that night, but Plaintiff, having
14 received IV fluids and medication, was feeling better, and did not want to be admitted.
15 Plaintiff was discharged with antibiotics for a diverticular abscess. Dr. Voltura
16 explained that, had Plaintiff been admitted, he would have been treated with
17 antibiotics and a follow-up CT scan, and he would have been set up with a
18 gastroenterologist to do a colonoscopy in the future. Dr. Voltura indicated to Plaintiff
19 that whether he went home that night or not, he needed to follow up with her in order
3
1 to undergo a sigmoid colectomy (removal of the left side of the colon). Plaintiff did
2 not follow up with Dr. Voltura for the sigmoid colectomy.
3 A radiology report was apparently dictated at some point by Dr. Damron and
4 the report was transcribed the day after Plaintiff’s visit on August 9, 2002. The
5 transcription indicates that it is a Hospital document. The report noted “[a]n abscess
6 associated with a diverticulitis would be a first consideration with neoplasm as the
7 etiology being the second consideration.” Dr. Damron’s “[impression,]” however,
8 read only: “Pelvic abscess, probably associated with diverticular disease of the
9 sigmoid colon. The abscess approximates 4.5 x 3 cm in size. The results of this study
10 were communicated to Dr. Wilt and Dr. Voltura.” The transcription of Dr. Damron’s
11 report does not indicate any copy was to go to Dr. Wilt or to Dr. Voltura. In her
12 sworn statement in the record, Dr. Voltura states that she should have received the
13 report1 and that if she would have seen the word “neoplasm” in the report, she would
14 have called Dr. Damron to discuss it; had she thought it was a cancer she “would have
15 tried to do whatever I could to get ahold of the patient.” In October 2003, Plaintiff
16 was diagnosed with stage III colon cancer.
17 District Court Proceedings
1
18 Dr. Voltura agreed, however, that she could not “rule out” that the report
19 was otherwise sent to her office, but for some reason did not get filed in her office
20 chart for Plaintiff.
4
1 We set out the court proceedings in detail to show the manner in which Plaintiff
2 litigated the case in the district court. In January 2006, Plaintiff filed a “Complaint
3 for Medical Negligence” against the Hospital. He alleged that the CT scan showed
4 “a mass adjacent to [Plaintiff’s] sigmoid colon and his bladder” and that “[t]he
5 radiologist who read the CT scan determined that, given the mass, the diagnostic
6 possibilities were either an abscess associated with diverticulitis or a neoplasm.” He
7 further alleged that it was not clear whether all of the diagnostic possibilities set out
8 in the transcribed report had been communicated in the conversation that occurred
9 when Drs. Damron and Voltura reviewed the CT scan together and discussed the
10 diagnosis that Dr. Voltura later conveyed to Plaintiff while he was still in the
11 emergency room. Plaintiff claimed in the complaint that, through “administrative
12 inadequacy[,]” the Hospital failed to forward the radiology report to Dr. Voltura. He
13 alleged that “[t]he action of [the Hospital] in not forwarding on the radiology report
14 . . . to Dr. Voltura was negligent.” And he alleged that, as a consequence of the
15 negligence, Dr. Voltura neither worked up nor ruled out the neoplasm mentioned in
16 the report, Dr. Voltura never told Plaintiff that the CT scan showed a mass that was
17 potentially a neoplasm, and his neoplasm was allowed to grow, undiscovered, until
18 July 2003, by which time the cancer had entered one of Plaintiff’s lymph nodes.
5
1 The complaint did not allege negligence on the part of any physician or on the
2 part of any particular agent or employee of the Hospital. Nor did the complaint allege
3 “ordinary” negligence as opposed to “medical negligence” as its title claimed. In
4 August 2006, Plaintiff filed a “First Amended Complaint for Medical Negligence”
5 that was identical to the original complaint except for correction of a date.
6 The Hospital denied negligence. In its affirmative defenses, the Hospital
7 indicated that any negligence on its part should be measured comparatively if Drs.
8 Damron, Wilt, or Voltura were negligent. The Hospital moved for summary judgment
9 in June 2009 and based on an affidavit of its expert, Dr. Mark Kozlowski, it contended
10 that the Hospital complied with the applicable standard of care and that the care
11 provided was not the cause of Plaintiff’s injury. The Hospital further contended that
12 Plaintiff’s claim required expert testimony on the issues of (1) the standard of care
13 relating to the distribution of radiology reports in an emergency department, and
14 (2) whether the alleged delay in diagnosis caused Plaintiff’s injury. The Hospital
15 asserted that Plaintiff had not identified experts who would testify regarding the
16 standard of care and causation.
17 Plaintiff filed a response in August 2009, in which Plaintiff did not controvert
18 facts; set out his own undisputed facts and asked the court to enter summary judgment
19 on his behalf; argued that he needed no hired expert to defeat summary judgment; and
6
1 provided no authority whatsoever in support of any contention or argument. The
2 Hospital filed a supplemental memorandum in support of its summary judgment
3 motion, again with supportive authority, responsive to Plaintiff’s August 2009
4 response.
5 Apparently in anticipation of a hearing set for October 22, 2009, Plaintiff fax-
6 filed a motion for summary judgment on October 20, 2009 and filed the identical
7 motion again on October 21, 2009. This motion asserted, among other things, that
8 “not communicating [a radiology report] effectively is not medical negligence, it’s
9 simple negligence” and that “[t]he failure to copy Dr. Voltura might have been the
10 fault of [the Hospital’s] transcriptionist or the failure of [the Hospital’s] radiologist
11 . . . to ask that [there] be copies in his dictation.” Plaintiff argued that the failure
12 to furnish Dr. Voltura with a copy of the report was “ordinary negligence.” Once
13 again, Plaintiff provided no authority whatsoever in support of his argument.
14 At the hearing on October 22, 2009, before District Judge Michael Vigil on the
15 Hospital’s motion for summary judgment, the Hospital pointed out that Plaintiff’s
16 response to the Hospital’s motion for summary judgment relied on a statement of Dr.
17 Voltura’s that she would have expected Dr. Damron to call her if his impression had
18 changed. Counsel asserted that, in almost four years that the case had been pending,
19 there had never been a complaint allegation by Plaintiff that Dr. Damron was
7
1 negligent or that Dr. Damron was an agent or apparent agent or employee of the
2 Hospital. Plaintiff then argued, based on statements in an affidavit of Dr. Donald
3 Wolfel that Plaintiff filed on the day of the hearing, that “Dr. Damron should have
4 copied his report and sent it on down to Dr. Voltura[,]” which was “an ordinary
5 negligence issue.” This prompted the Hospital to again point out that there existed no
6 allegation in the complaint that Dr. Damron was negligent or that he was an agent or
7 apparent agent or employee of the Hospital. The district court questioned Plaintiff’s
8 counsel regarding how he was to deal with this, stating “[y]our claim is against [the
9 Hospital], but your acts of negligence seem to be [against] Dr. Damron.” Plaintiff’s
10 counsel responded that Dr. Damron was an apparent agent, that the Hospital was
11 responsible for its apparent agents, that Plaintiff was “going to have to take some
12 discovery on it,” and that Plaintiff did not have to “make the allegation” because
13 “[t]hey’re apparent agents . . . period. That’s it. They just are . . . and they’re aware
14 of that.”
15 Near the conclusion of the hearing on the Hospital’s motion, the court stated
16 that “the purpose of the pleadings is to put . . . Defendant[] on notice [of] what your
17 theories are, and, frankly, when I read this, I have no idea [that] Dr. Damron had
18 anything to do with the case[.]” The court then ordered the parties to file
19 supplemental briefs on the issue of “what [has] to be alleged in a malpractice
8
1 complaint to establish . . . agency or apparent agen[cy] of Dr. Damron[.]” Seeing the
2 court’s concern, Plaintiff’s counsel stated, “if it’s a matter of pleading, heck, I’ll
3 amend if that’s an issue.” The court again asked the parties to file briefs on the issue
4 of having to plead apparent agency and stated to Plaintiff’s counsel, “then you can file
5 a motion to amend[,]” to which Plaintiff’s counsel responded, “All right.” At the
6 close of the hearing, the court asked if “the deposition of [Dr.] Damron or anybody
7 out there” had been taken, and Plaintiff’s counsel responded, “[n]o.”
8 At no time in the October 22, 2009, hearing did Plaintiff cite any authority
9 relating to medical or ordinary negligence. On October 29, 2009, Plaintiff filed a first
10 amended motion for summary judgment stating little, if anything, more than he stated
11 in his prior motion, but adding the October 22, 2009, affidavit of Dr. Wolfel. Plaintiff
12 set out as undisputed facts the following characterizations of contents of Dr. Wolfel’s
13 affidavit.
14 7. It is the standard of care that a radiologist must communicate his
15 diagnostic impression to the physicians known to be treating the
16 patient. Wolfel Affidavit, ¶ 8.
17 8. This is particularly so when the diagnostic impression indicates a
18 potentially life-threatening or urgent situation. Id.
19 9. The reasonable way for the radiologist to communicate his
20 impressions of [Plaintiff’s] CT was to copy his report to the
21 consulting physicians. Id. ¶¶ 13, 14, 17.
9
1 10. The [Hospital’s] written . . . radiology report was negligently
2 never communicated to Dr. Voltura. See Voltura Statement, pp.
3 12-13; Wolfel Affidavit, ¶¶ 14-19.
4 As with his prior summary judgment motion, Plaintiff set out no authority in support
5 of his claim of negligence.
6 In another supplemental memorandum filed in November 2009, the Hospital
7 argued that the complaint failed to allege any facts or contain the elements necessary
8 to recover under theories of apparent agency and vicarious liability, and therefore, the
9 complaint did not provide the Hospital with notice of any such claims as required
10 under Rule 1-008(A)(2) NMRA. The Hospital further argued that Plaintiff should not
11 be allowed to amend his complaint to assert vicarious liability. The Hospital also filed
12 its response to Plaintiff’s motion and first amended motion for summary judgment.
13 The Hospital argued that the motions sought relief based on vicarious liability and that
14 Plaintiff should not be permitted to seek summary judgment on a claim he had never
15 asserted, but that if the claim were considered by the court, disputed issues of fact
16 precluded summary judgment.
17 Relying on Houghland v. Grant, 119 N.M. 422, 891 P.2d 563 (Ct. App. 1995),
18 in a memorandum filed in November 2009, Plaintiff argued that New Mexico law did
19 not require apparent agency to be pleaded, given that “a hospital is vicariously liable
20 for the acts of hospital-based physicians[.]” He asserted that his complaint comported
10
1 with Rule 1-008(A)(2) and included apparent agency by alleging in a “short and plain
2 statement” that because of the Hosptial’s “administrative shortcomings” the radiology
3 report did not reach Dr. Voltura. In December 2009, Plaintiff reiterated his apparent
4 agency position and arguments in a reply to the Hospital’s response to his summary
5 judgment motions. The Hospital got in the last written word on apparent agency in
6 its December 2009 response to Plaintiff’s November 2009 memorandum.
7 At a hearing in February 2010 on pending matters, a newly assigned judge,
8 District Judge Barbara Vigil, stated:
9 I find the following[.] I find that to establish his malpractice claim
10 against [the Hospital], Plaintiff has the burden of demonstrating the
11 existence of four elements: A legal duty, breach of the applicable
12 standard of care, and actual loss or damage, and causation. In this case,
13 in order to establish the standard of care and causation of [Plaintiff’s]
14 injury, . . . Plaintiff[] must establish expert testimony in the area of the
15 administrative inadequacy that [the Hospital] allegedly committed.
16 Unfortunately, upon my review of the record thus far, . . . Plaintiff
17 has failed to establish that expert testimony in those areas. I believe that
18 Judge [Michael] Vigil had opened the door to allow . . . Plaintiff to come
19 forward and determine whether [he] needed to establish more in [his]
20 [c]omplaint by virtue of agency and vicarious liability. . . . Plaintiff[] . . .
21 has stated, no, [I] don’t need to establish vicarious liability or agency in
22 [my c]omplaint, and that that’s something that needs to be flushed out
23 during the discovery phase of the case. But I find that [the Hospital] has
24 made a very credible and appropriate legal argument to this [c]ourt on
25 this issue.
26 The idea of pleading is to give the other side notice, and I believe
27 that . . . Plaintiff’s late theory in this case that somehow Dr. Damron did
28 something inappropriate by not sending the CT scan report to Dr.
11
1 Voltura is simply a moving target at this late date. I find that . . .
2 Plaintiff[] should not be permitted, at this late date, to assert such a claim
3 against Dr. Damron and to assert an agency theory against the [H]ospital
4 for this alleged violation. The [Hospital] is correct that memories fade,
5 people forget what occurred a year ago, two years ago, three years ago,
6 and now . . . Plaintiff[] [is] asking the [c]ourt to give him an opportunity
7 to allege this and have Dr. Damron and [the Hospital] defend this — this
8 alleged activity six years ago. That failure of memory would work
9 against [the Hospital] and that, in my opinion, is undue prejudice. That
10 is not permitted under the pleading standards in New Mexico, and under
11 the pleading standards under Rule [1-00]8 and Rule [1-00]9 [NMRA].
12 For this reason, I find that as pled and as discovered thus far, that
13 . . . Plaintiff has failed to establish the minimum requirements necessary
14 to go forward on [his] malpractice claim against [the Hospital] by failing
15 to narrow the issue, what the facts are, and establish expert testimony to
16 support it. For that reason, I’m granting [the] Hospital’s motion for
17 summary judgment on the — on the [c]omplaint as — as argued by [the
18 Hospital], as presented by [the Hospital].
19 At the February 2010 hearing, the parties argued the issue of failure to plead
20 apparent agency and vicarious liability, and also argued whether the Hospital was
21 entitled to summary judgment for failure of Plaintiff to present any expert testimony
22 on the claim of administrative inadequacy. Plaintiff’s counsel noted that the report
23 was never sent to Dr. Voltura and that “[n]o one can seem to say why.” In regard to
24 standard of care, the most Plaintiff argued was a reference to the affidavit of Dr.
25 Wolfel who, according to counsel, “[found] a deviation from the standard of care.”
26 Nowhere in the hearing did Plaintiff argue further relating to the standard of care that
27 was breached, nowhere did Plaintiff mention ordinary negligence, and nowhere did
12
1 he set out any authority to support a position that expert witness testimony was not
2 required in whatever standard of care he sought to apply. Furthermore, the Hospital
3 rebutted the requirement for expert testimony related to the claim of administrative
4 inadequacy, and the court expressly found that Plaintiff failed to “narrow the issue,”
5 establish “what the facts are,” establish expert testimony to support his claim, and thus
6 “establish the standard of care” necessary to his “malpractice claim[.]” Yet, even after
7 the hearing, Plaintiff did not seek leave to conduct further discovery or seek to clarify
8 that his claim was not one for medical negligence or malpractice, but instead only for
9 the ordinary negligence of the Hospital alone.
10 The court entered summary judgment in the Hospital’s favor on the grounds
11 that (1) Plaintiff was required to, but failed to submit, expert testimony to support the
12 claim that the Hospital was liable in negligence in allegedly failing to have a process
13 in place to attempt to assure that the radiology report was communicated to Dr.
14 Voltura, and (2) Plaintiff’s complaint and discovery responses did not provide notice
15 to the Hospital, required under Rule 1-008, that he was claiming that Dr. Damron was
16 negligent and that the Hospital was vicariously liable.
17 Proceedings on Appeal
18 Plaintiff asserts three points of reversible error on appeal: (1) his negligence
19 claim against the Hospital did not require expert testimony because it was a claim of
13
1 ordinary, not medical negligence; (2) if expert testimony was required, the expert
2 testimony in affidavits he provided of Drs. Wolfel and John Bagwell and in the sworn
3 statement of Dr. Voltura provided whatever expert testimony was necessary to support
4 his negligence claims “whether ordinary or medical as well as causation”; and (3) it
5 was unnecessary to specifically plead apparent agency and vicarious liability in order
6 to place the Hospital on notice of his vicarious liability claim that Dr. Damron’s
7 ordinary negligence was part of the Hospital’s ordinary negligence to the extent that
8 Dr. Damron “may have had a hand in the chain of negligence by which his report
9 never was given to Dr. Voltura.”
10 Following his habit in his briefs in the district court, in his brief in chief on
11 appeal Plaintiff absolutely fails to provide any authority to support his contentions and
12 arguments regarding the issue of expert testimony on the claim of administrative
13 inadequacy recited in his complaint for medical negligence. Likewise, the brief in
14 chief contains no authority for the assertion in his briefing in the district court and in
15 the present appeal that the claim is solely one in ordinary negligence. By the filing
16 of his reply brief on appeal, Plaintiff apparently discovered UJI 13-1119A NMRA and
17 cases referred to in the committee commentary relating specifically to hospital
18 negligence. In his reply brief, Plaintiff also for the first time specifically argues from
19 two New Mexico medical malpractice cases the theory that, in some instances,
14
1 medical negligence can be proved without expert testimony when the malpractice is
2 within common knowledge ordinarily possessed by an average person. See Toppino
3 v. Herhahn, 100 N.M. 564, 567, 673 P.2d 1297, 1300 (1983) (“[I]f negligence [of a
4 doctor] can be determined by resort to common knowledge ordinarily possessed by
5 an average person, expert testimony as to standards of care is not essential.” (internal
6 quotation marks and citation omitted)); Mascarenas v. Gonzales, 83 N.M. 749, 751,
7 497 P.2d 751, 753 (Ct. App. 1972) (“[W]here negligence on the part of a doctor is
8 demonstrated by facts which can be evaluated by resort[ing] to common knowledge,
9 expert testimony is not required.”).
10 DISCUSSION
11 We address only Plaintiff’s points relating to ordinary negligence and apparent
12 agency/vicarious liability. The facts on these issues are not in dispute. We review
13 summary judgments de novo when the facts are undisputed and the determination is
14 made as a matter of law. Moriarty Mun. Sch. Dist. Bd. of Educ. v. Thunder Mtn.
15 Water Co., 2007-NMSC-031, ¶ 6, 141 N.M 824, 161 P.3d 869. “We are mindful that
16 summary judgment is a drastic remedial tool which demands the exercise of caution
17 in its application, and we review the record in the light most favorable to support a
18 trial on the merits.” Woodhull v. Meinel, 2009-NMCA-015, ¶ 7, 145 N.M. 533, 202
19 P.3d 126 (internal quotation marks and citation omitted). We are mindful, too, that
15
1 “[w]e view the facts in a light most favorable to the party opposing summary
2 judgment[.]” City of Rio Rancho v. Amrep Sw. Inc., 2011-NMSC-037, ¶ 14, __ N.M.
3 __, 260 P.3d 414 (internal quotation marks and citation omitted). Further, we view
4 the question of whether Plaintiff was required to provide expert testimony as a
5 question of law which we review de novo. See Parkhill v. Alderman-Cave Milling &
6 Grain Co. of N.M., 2010-NMCA-110, ¶ 58, 149 N.M. 140, 245 P.3d 585 (stating that
7 an issue of law is reviewed de novo), cert. granted sub nom. Joey P. v. Alderman-
8 Cave Milling, 2010-NMCERT-012, 150 N.M. 493, 263 P.3d 270; cf. State v. Torres,
9 1999-NMSC-010, ¶¶ 27-28, 127 N.M. 20, 976 P.2d 20 (explaining that, although the
10 admission of expert testimony is reviewed for an abuse of discretion, the initial
11 determination of whether to apply the evidentiary standard for the admissibility of
12 scientific evidence entails a conclusion of law that is subject to de novo review).
13 The Complaint Was Insufficient As To Vicarious Liability
14 Rule 1-008(A)(2) controls the issue of the sufficiency of the complaint as to
15 vicarious liability. It requires a complaint to contain “a short and plain statement of
16 the claim showing that the pleader is entitled to relief[.]” Id. Under our notice
17 pleading standard, the complaint must be sufficiently detailed to give the defendant
18 a fair idea of the plaintiff’s claim. Valles v. Silverman, 2004-NMCA-019, ¶ 18, 135
19 N.M. 91, 84 P.3d 1056; Wirtz v. State Educ. Ret. Bd., 1996-NMCA-085, ¶ 11, 122
16
1 N.M. 292, 923 P.2d 1177 (stating that “[t]he theory of pleadings is to give the parties
2 fair notice of the claims and defenses against them, and the grounds upon which they
3 are based” (internal quotation marks and citation omitted)).
4 Pertinent to Plaintiff’s negligence claim, the complaint alleged:
5 6. The radiologist who read the CT scan determined that, given the
6 mass, the diagnostic possibilities were either an abscess associated
7 with diverticulitis or a neoplasm.
8 7. While the radiologist apparently called [Dr.] Voltura . . . it is not
9 clear whether all of the diagnostic possibilities set forth in the CT
10 scan report were communicated in that conversation.
11 8. Whatever was said in the conversation, the radiology report itself
12 was apparently never sent by [the Hospital] to Dr. Voltura or to
13 Dr. Wilt.
14 ....
15 13. As a consequence of the apparent failure by [the Hospital] through
16 an administrative inadequacy to forward the radiology report on
17 to Dr. Voltura, [Plainitff] was treated for a diverticular abscess
18 with antibiotics, allowing the neoplasm to continue to grow.
19 14. The neoplasm, which turned out to be cancerous, continued to
20 grow over the next year until approximately July of 2003 when it
21 was discovered that it had invaded the bladder and that the colon
22 was communicating with the bladder through a cancerous fistula.
23 15. By this time, the cancer was already in one of [Plaintiff’s] lymph
24 nodes.
17
1 16. The action of [the] Hospital in not forwarding . . . the radiology
2 report of the . . . CT scan showing the potential neoplasm to Dr.
3 Voltura was negligent.
4 Not until the Hospital’s motion for summary judgment was filed, well over three years
5 after Plaintiff’s complaint, did Plaintiff raise the idea of amending his complaint to
6 include apparent agency and vicarious liability. But Plaintiff never filed a motion to
7 amend despite having discussed the possibility with the district court at the October
8 2009 hearing. And, while the court nevertheless ultimately denied Plaintiff’s last
9 minute request for leave to amend at the time the court entered its summary judgment
10 in favor of the Hospital, Plaintiff has not appealed that denial and does not argue on
11 appeal that the court erred in denying him leave to amend.
12 Plaintiff’s argument that his complaint gave sufficient notice of the Hospital’s
13 vicarious liability for Dr. Damron’s alleged negligence is based on his contention that,
14 under Houghland, he does not have to allege apparent agency or vicarious liability in
15 order to claim apparent agency and vicarious liability. We reject that argument.
16 Houghland does not meet the issue or assist Plaintiff. Houghland stands for the
17 proposition that a hospital is vicariously liable for the alleged malpractice committed
18 by independent contractor physicians in the hospital’s emergency room. 119 N.M. at
19 428, 891 P.2d at 569. But nothing in Houghland bears on whether a claim for relief
20 can be pursued when the complaint is drafted without sufficient detail to give a
18
1 defendant, who is expressly sued for its own negligence, a fair idea of any claim of
2 vicarious liability. Contrary to Plaintiff’s argument, UJI 13-1120B NMRA, which
3 states the elements of a hospital’s vicarious liability for non-employees, does not
4 require a different conclusion. We hold that the district court did not err in
5 determining on summary judgment in the Hospital’s favor that Plaintiff did not give
6 sufficient notice under Rule 1-008 of assertion of a claim of apparent agency giving
7 rise to vicarious liability.
8 Plaintiff Failed to Establish Evidence Supporting Ordinary
9 Negligence and Failed to Provide the Necessary Expert Testimony
10 First, we will not consider Plaintiff’s reply brief arguments based on UJI 1119A
11 (first paragraph only) and case law. He failed to present to the district court any
12 authority, including UJI 1119A (first paragraph) and case law, and failed to present
13 arguments based on these authorities. Thus, the district court did not have the
14 opportunity to consider arguments based on the authorities now appearing in
15 Plaintiff’s appellate reply brief or, for that matter, arguments based on any authority.
16 Plaintiff failed in the same regard with respect to his brief in chief on appeal. See
17 Rule 12-213(A)(4) NMRA (requiring “a statement explaining how the issue was
18 preserved in the court below, with citations to authorities” and requiring that
19 “[a]pplicable New Mexico decisions shall be cited”). And his arguments as to the
20 application of rules in UJI 1119A (first paragraph) and in the cases he cites were made
19
1 for the first time in his reply brief on appeal. See Kersey v. Hatch, 2010-NMSC-020,
2 ¶ 19, 148 N.M. 381, 237 P.3d 683 (refusing to address an argument raised for the first
3 time in a reply brief); J.R. Hale Contracting Co. v. Union Pac. R.R., 2008-NMCA-
4 037, ¶ 64, 143 N.M. 574, 179 P.3d 579 (refusing to consider a party’s reliance on a
5 case cited for the first time in the reply brief); Padilla v. Wall Colmonoy Corp., 2006-
6 NMCA-137, ¶ 18, 140 N.M. 630, 145 P.3d 110 (declining to address a party’s
7 expansion of an argument when made for the first time in the reply brief because the
8 party did not make the argument in the district court and also because the expanded
9 argument was raised for the first time in the reply brief).
10 Presently, because none of the doctors were sued and Plaintiff cannot pursue
11 vicarious hospital responsibility based on alleged negligence of Dr. Damron, the issue
12 is limited to the claimed negligence liability of the Hospital based on “administrative
13 inadequacy” in allegedly failing to assure that the transcribed report was
14 communicated to Dr. Voltura. In summary judgment briefing, Plaintiff framed the
15 issue this way:
16 [Plaintiff’s] claim against [the Hospital] arising out of the . . . facts
17 has always been one for the administrative inadequacies of the
18 [H]ospital. . . . [Plaintiff’s] claim . . . is for [the Hospital’s]
19 administrative negligence in somehow not getting the radiology report
20 from Dr. Damron, who read it, to Dr. Voltura[,] who was to treat
21 [Plaintiff]. . . .
20
1 . . . How it is to be communicated is an administrative matter left
2 up to the Hospital and those who are part of the Hospital’s system.
3 The focus for this Court on this issue centers on the standard of care pertaining to any
4 alleged communication responsibility and what was shown to be the Hospital’s role
5 and obligation, if any, in regard to the communication of the report. If the standard
6 of care was ordinary care, no expert testimony was required. If not, expert testimony
7 was required. The district court’s judgment was based on Plaintiff’s failure to present
8 expert testimony on the question of standard of care and whether the Hospital
9 breached a duty. In its oral determination, the district court determined that “as pled
10 and as discovered . . . Plaintiff . . . failed to establish the minimum requirements
11 necessary to go forward . . . by failing to narrow the issue, what the facts are, and
12 establish expert testimony to support it.”
13 In his complaint, Plaintiff alleged that “[t]he action of [the] Hospital in not
14 forwarding on the radiology report . . . showing the potential neoplasm to Dr. Voltura
15 was negligent.” In his brief in chief on appeal, Plaintiff states that he sued the
16 Hospital “for the breach of its duty to communicate a radiology report containing
17 results from the radiologist . . . to the surgeon [the Hospital] had called in to work up
18 [Plaintiff.]” With no reference to any facts in the record, Plaintiff makes the general
19 and unsupported statement that, with the single exception of the radiologist who has
20 the responsibility of dictating who is to receive a copy, a delivery system for radiology
21
1 reports involves only “administrative personnel” consisting of “software specialists,
2 computer programmers, medical transcriptionists, fax operators, and couriers[,]” who
3 are only involved in the performance of “an administrative act.” He also makes the
4 general assertion that “a system is necessary for communicating a patient’s radiology
5 results in writing from one physician to another to confirm that the results of a
6 patient’s radiology study are actually communicated to all physicians involved in a
7 patient’s radiology study [and] are actually communicated to all physicians involved
8 in a patient’s care.” This assertion is not tied to anything in the record that would
9 indicate any actual Hospital involvement, policy, practice, or system relating to
10 communication of a radiology report to a treating physician.
11 Plaintiff’s ordinary negligence position thus merely assumes that the Hospital
12 had a particular policy, practice, or system, or otherwise had some obligation to
13 communicate the report to Dr. Voltura and failed to follow a policy, practice, or
14 system of the Hospital regarding communication. Or, the position assumes that the
15 Hospital should have had, but had no policy, practice, or system. The gorilla in the
16 room is that nothing in the summary judgment record reflects either the existence or
17 non-existence of any policy, practice, or system relating to the transmission of a CT
18 scan, done in an emergency room setting or otherwise, to physicians such as Dr. Wilt,
19 who ordered the scan, or to Dr. Voltura, who treated a patient in the emergency room.
22
1 Furthermore, no policy, practice, or system or absence thereof relating to
2 communication of radiology reports to treating physicians, under emergency room
3 circumstances or otherwise, can be inferred from the general statement of Dr. Voltura
4 that when she orders a report or is copied on one, she expects to receive it. Nor can
5 an inference be made from Dr. Voltura’s statement that having later seen her name in
6 the body of Dr. Damron’s report, she “should get it.” Dr. Voltura’s deposition
7 testimony does not assist Plaintiff.
8 Q. And a cc means send a — I guess, old terminology,
9 antiquated terminology, but it means carbon copy, correct?
10
11 A. Correct.
12
13 Q. And it’s something that we continue to use as signal to staff
14 people to provide a copy of something to someone whose name follows
15 the cc, even though we do it now by Xerox machine or whatever?
16
17 A. Correct.
18 Q. And really someone whose job it is to distribute things
19 knows whether to give a copy to somebody whether there’s a cc on it,
20 right?
21 A. Correct.
22 Q. And it’s not the person who distributes the documents who
23 places the cc on it, right?
24 A. Correct.
25 Q. In fact, it would be Dr. Damron, wouldn’t it?
23
1 A. Yes.
2 Q. In this instance with this report?
3 A. Yes.
4 Q. If he wanted a copy to go to you, he would indicate that by
5 saying, “Copy to Dr. Voltura.” If he used the shorthand, he’d say “cc
6 Dr. Voltura”?
7 A. Correct.
8 Q. And he didn’t do that, did he?
9 A. No.
10 Nothing in Dr. Voltura’s testimony suggests any obligation on the part of the Hospital.
11 That Plaintiff resorts to assumption and speculation in regard to the Hospital is
12 also shown in his brief in chief where, with no record support, Plaintiff states that the
13 Hospital “apparently had such a system in place requiring their radiologist to
14 explicitly set forth in writing their impressions and transmit them to the treating
15 physician.” He concludes, again with no basis in the record, that the Hospital “was
16 unable to get the dictated and transcribed impressions of Dr. Damron . . . to [Dr.
17 Voltura].” He does no more than run through “potential reasons why Dr. Voltura
18 never got [the Hospital’s t]ranscription [r]ecord[.]” Some of those potential reasons
19 are that it was not delivered to her, whether she was copied or not, and that a “more
20 obvious possibility is that [the Hospital] had not programmed its software or
24
1 implemented a policy or procedure mandating its transcriptionists to automatically
2 copy any physician mentioned in the body of a [t]ranscription [r]ecord as were Drs.
3 Wilt and Voltura in [Dr. Damron’s t]ranscription [r]ecord.”
4 Plaintiff’s reliance on the affidavit of one of his experts, Dr. Wolfel, whether
5 on the issue of medical negligence or in an attempt to establish a standard of ordinary
6 negligence, does not bring Plaintiff any closer to a legitimate basis on which to defeat
7 summary judgment for failure to provide expert testimony. Dr. Wolfel’s affidavit
8 stated:
9 8. It is absolutely the standard of care that a radiologist reading a
10 diagnostic film communicate the results of his diagnostic
11 impression to the physicians known to be managing the care of the
12 patient, particularly so when the observed condition is considered
13 urgent or potentially cancerous.
14 9. However, there is no medical standard for how this
15 communication is to be accomplished.
16 10. It is simply a basic communication issue no different than any
17 other communication issue in any other walk of life. How does a
18 person or entity communicate important information in such a
19 way to ensure the message gets across? The answer simply
20 depends upon the situation.
21 ....
22 13. The only way to ensure the entirety of the radiologist’s impression
23 is communicated in a circumstance such as that, particularly when
24 it contains information about a potential neoplasm, is to copy the
25 radiologist’s diagnostic impressions to the consulting physicians.
26
25
1 14. This was not done with the August 9 radiology report for
2 [Plaintiff]. It was unreasonable for the radiology report containing
3 the information about the potential neoplasm not to have been
4 copied to (or personally delivered) to Dr. Voltura.
5 15. In making this statement, I am again not stating that not copying
6 it to Dr. Voltura was medically negligent, because there was no
7 medical standard. It was simply unreasonable or wrong as a
8 matter of common sense not to do so.
9 16. This is simply an operational or administrative matter that [a]
10 hospital and the hospital’s radiologist have to decide for
11 themselves, knowing that the hospital and the radiologist are
12 ultimately responsible for making sure that the entire impression
13 to be communicated is in fact communicated.
14 ....
15 18. Whether the failure to copy Dr. Voltura with the radiology report
16 was due to the negligence of [the Hospital’s] transcriptionist, or
17 whether [the Hospital’s] radiologist, Dr. Damron, simply
18 overlooked the need to get his complete report to Dr. Voltura,
19 cannot be discerned from [Plaintiff’s] records.
20 19. The point is that it was negligent for the [Hospital’s] August 9
21 written radiology report not to have been conveyed to Dr Voltura
22 on that date.
23 These affidavit statements are, at best, lack a factual predicate in relation to the
24 Hospital. They are also general and vague. They are therefore inadequate to show
25 that, in the circumstances here, the Hospital had or did not have any particular policy,
26 practice, or system relating to communication of radiology reports generally, or
27 relating particularly to communication of the transcribed report to Dr. Voltura, let
26
1 alone one that would be dictated by a duty of ordinary care. With no such evidence,
2 no jury question existed as to the Hospital’s negligence. At most, the evidence before
3 the district court showed only that Dr. Damron had the duty to assure communication
4 of his report to treating physicians. Furthermore, Plaintiff does not contend that the
5 statements in Dr. Wolfel’s affidavit created a genuine issue of material fact precluding
6 summary judgment. And the district court was free to reject the statements as creating
7 a genuine issue of material fact. Plaintiff’s approach is nothing more than an
8 unsupported assertion that the facts, as completely undeveloped as they are in regard
9 to any Hospital policy, practice, system, or obligation, nevertheless somehow speak
10 for themselves and thereby prove a duty. Plaintiff has never presented any authority
11 to support such an approach.
12 Plaintiff essentially asks us to blanket all diverse arrangements, policies, and
13 practices in hospitals and conclude that this and all hospitals have a duty under a
14 standard of ordinary care to assure that all in-hospital transcribed radiology reports are
15 communicated to treating physicians. We will not make that broad jump. And we are
16 not going to make that jump with respect to the Hospital without evidence to support
17 it. If such a general, blanket duty is to be established as a matter of law, we leave that
18 policy determination to our Supreme Court or the Legislature. As to the case at hand,
27
1 the case was simply not sufficiently developed by Plaintiff for summary judgment in
2 his favor or to prevent summary judgment in the Hospital’s favor.
3 The district court was concerned with Plaintiff’s “moving-target” approach as
4 well as Plaintiff’s failure of evidence. Plaintiff started with a complaint and amended
5 complaint asserting a claim of medical negligence involving administrative
6 inadequacy. He shifted to vicarious liability based on medical negligence. He shifted
7 again to vicarious liability based on ordinary negligence. And he attempted to have
8 his direct liability claim in medical negligence based on administrative inadequacy
9 construed as a direct claim in ordinary negligence based on administrative inadequacy.
10 The district court construed Plaintiff’s direct liability claim as requiring expert
11 testimony on the standard of care and its breach, and implicitly, if not explicitly,
12 determined that Plaintiff did not establish facts to prove otherwise. Without those
13 facts, the court did not err on the record presented in holding that Plaintiff was
14 required to present expert testimony.
15 Plaintiff failed to present undisputed detailed facts in regard to any policy,
16 practice, system, or obligation of the Hospital, in particular, or for that matter, of any
17 duty, policy, practice, system, or obligation of hospitals generally. He did not take
18 depositions of Dr. Damron, Dr. Wilt, the transcriptionist, or the Hospital’s
19 administrator. He sought summary judgment and defended against summary
28
1 judgment based upon supposition. He asserts application of the standard of ordinary
2 care and also a breach by the Hospital of the standard of ordinary care based solely on
3 the bare fact that the transcribed radiology report was not communicated to Dr.
4 Voltura. He assumes that no other circumstances need be considered. Under that
5 approach, the circumstances of a particular policy, practice, system, or obligation of
6 assuring that communication occurs are irrelevant on the question of ordinary care.
7 Under Plaintiff’s ordinary-care approach, any evidence of policies and practices
8 or understandings among physicians or between physicians and hospitals in hospital
9 settings and of specialized knowledge or skill that might be associated with the
10 circumstances is unnecessary. This includes as unnecessary, for example, and without
11 limitation, any consideration of circumstances that (1) Dr. Damron had a duty to
12 assure that his reading of the CT scan was communicated; (2) Dr. Damron’s dictated
13 report apparently failed to correctly indicate required recipients; (3) the radiologist
14 and treating physician actually reviewed the CT scan together and discussed it and the
15 dictated report stated that the results had been communicated to Drs. Wilt and Voltura;
16 (4) Dr. Voltura presumably saw no suspected neoplasm when viewing the CT scan;
17 and (5) in the emergency room setting, Plaintiff chose not to be admitted to the
18 Hospital notwithstanding that Dr. Voltura recommended that he be admitted. Plaintiff
19 ignores these circumstances or other possible material circumstances that could have
29
1 been discovered, and Plaintiff failed to present any factual basis as to whether the
2 average person would ordinarily possess common knowledge regarding the
3 administrative operations and procedures “ordinarily used in reasonably well-operated
4 hospitals under similar circumstances, giving due consideration to the locality
5 involved.” UJI 1119A (second paragraph).
6 Dr. Wolfel’s affidavit was insufficient to constitute expert testimony on a
7 standard of care in medical negligence. It stated that no medical standard existed
8 covering the communication issue. The affidavit otherwise lacked any factual basis
9 for its conclusory and unclear attempt to set a different standard of care or no standard
10 of care.
11 In sum, we hold that the district court did not err in granting summary judgment
12 in favor of the Hospital.
13 CONCLUSION
14 We affirm.
15 IT IS SO ORDERED.
16 __________________________________
17 JONATHAN B. SUTIN, Judge
18 WE CONCUR:
19 ___________________________________
20 RODERICK T. KENNEDY Judge
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1 ___________________________________
2 J. MILES HANISEE, Judge
31