Lopez v. Southwest Community Health Services

833 P.2d 1183, 114 N.M. 2
CourtNew Mexico Court of Appeals
DecidedApril 2, 1992
Docket11543
StatusPublished
Cited by41 cases

This text of 833 P.2d 1183 (Lopez v. Southwest Community Health Services) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lopez v. Southwest Community Health Services, 833 P.2d 1183, 114 N.M. 2 (N.M. Ct. App. 1992).

Opinion

OPINION

BIVINS, Judge.

This case involves a medical malpractice claim resulting from the premature birth of Adam Lopez, bom May 27, 1982, after only twenty-eight weeks of gestation. 1 Because of his premature birth, Adam suffers severe physical and mental disabilities. Adam’s parents, Rudy and Dorothy Lopez, brought this action, in their representative capacity, against the physician who delivered Adam and Southwest Community Health Services (Hospital), where Adam was born. In bifurcated proceedings which first considered liability, the jury found both Defendants liable, allocating 70% fault to the physician and 30% fault to Hospital. In the subsequent damages phase, the jury awarded substantial damages, apportioning responsibility between Defendants in the same percentages. Defendants appealed; however, pending appeal Plaintiff and the physician settled. Therefore, we consider only the claims of error raised by Hospital.

Hospital claims that: (1) as a matter of law, its conduct was not a proximate cause of Adam’s injuries; (2) it was denied a fair trial by improper and inflammatory arguments made by Plaintiff’s counsel; (3) as a matter of law, Plaintiff could not recover future medical and non-medical expenses; and (4) Hospital was prejudiced by inadmissible evidence of insurance coverage. As to the proximate cause issue, we hold the jury could find that negligent conduct on the part of Hospital personnel influenced the physician’s decision to deliver Adam when Dorothy was not in labor, notwithstanding the physician’s pronouncements that Dorothy was in labor and that the decision to deliver was his alone. Also under the proximate cause question, we reject Hospital’s argument that Plaintiff must prove that proper action by the physician or Hospital would have prevented premature delivery during the remainder of Dorothy’s pregnancy. We do so on the basis that the jury could have found, and undoubtedly did find, that Dorothy was not in labor when the delivery was made. We decline to consider the claim of improper or inflammatory statements of counsel because no timely objection was made, and Hospital has not persuaded us that the principle of fundamental error should apply. With respect to recovery for future medical and non-medical expenses, a question of first impression, we hold that the cause of action to recover a minor’s future medical and non-medical expenses belongs to both the minor and the parents, and that the minor can recover such expenses as long as there is no double recovery. Finally, with regard to the evidence of insurance, we hold that, under the circumstances of this case, counsel for Plaintiff could properly inquire into this matter for impeachment purposes since Defendants invited inquiry by putting before the jury their medical expert’s affiliation with the insurance companies. Accordingly, we affirm the judgment against Hospital.

1. PROXIMATE CAUSE

Hospital contends that the trial court should have directed a verdict in its favor because Plaintiff failed to establish that the conduct of its nurses proximately caused the physician’s premature delivery of Adam. Hospital argues that Plaintiff failed to establish this element in two related ways. First, Hospital contends that the conduct of the nurses did not in fact cause the physician to deliver Adam; that “the only evidence was to the contrary and established that [the physician] alone made the decision ... based entirely on his own examination____” Second, Hospital claims that Plaintiff never proved that Adam’s injuries would have been avoided had he been delivered after May 27. We discuss these aspects of proximate cause separately-

A. Was the Conduct of the Nurses a “Cause in Fact”

In arguing that the hospital nurses did not cause the physician to deliver Adam prematurely, Hospital relies on the testimony of the physician that he alone made the decision to deliver Adam and that he did so based on his personal examination and diagnosis of Dorothy. We accept, for the moment, Hospital’s claim that “there was no evidence to contradict [the physician’s] testimony” in this regard. From this point, Hospital argues that in order to recover, Plaintiff must prove the conduct of the nurses was a proximate , cause of the injuries sustained. See Schmidt v. St. Joseph’s Hospital, 105 N.M. 681, 683, 736 P.2d 135, 137 (Ct.App.1987). While not challenging the nurses’ negligence, Hospital contends that negligence cannot result in liability in the absence of proximate cause. 2

We agree with Hospital as to the law. We do not agree, however, with the application of the law to these facts. To understand the rationale for our holding, it is necessary to explain the respective theories advanced by the parties.

Plaintiff’s theory of liability against the physician and Hospital was based on the premature delivery of Adam when the mother, Dorothy, was not in labor. Plaintiff offered substantial evidence to support that theory. While we are not called upon to consider the sufficiency of the evidence, 3 we nevertheless summarize Plaintiff’s case briefly in order to make clear what Plaintiff contends actually happened.

After experiencing pain at home, Dorothy, who at the time was twenty-eight weeks pregnant, called her physician’s office. The physician’s nurse told Dorothy to meet the physician at the hospital. The nurse then informed Hospital that Dorothy was on her way and that she was having contractions. Nurse D., an apprentice, declined to make the examination because of her lack of experience. Nurse W. examined Dorothy and determined that she was dilated to ten centimeters which indicated that Dorothy was ready to deliver. Neither nurse took a history from Dorothy, nor did they talk to her. Nurse W. took Dorothy to the delivery room.

Neither Dorothy nor her mother, who accompanied her to the hospital, thought Dorothy was in labor. Dr. Reyes, a pediatrician called because of a report of a completely dilated, twenty-eight week pregnant woman about to deliver, testified that Dorothy did not appear to be in labor. In addition, a fetal heart monitor indicated that Adam’s heartbeat was normal, but registered no contractions for Dorothy. 4

The physician and Hospital advanced an entirely different theory. It was their contention, as testified by the physician, that not only was Dorothy in labor, but that Dorothy had a prolapsed bag or bulging membranes, and the fetus was in a transverse lie. This is considered an emergency situation and, according to the physician, requires immediate action to deliver the baby. The physician broke the amniotic sac and delivered the baby. Faced with this situation, as we understand the testimony, if nothing had been done, the baby would have died. After breaking the amniotic sac, the usual risks associated with delivering an underdeveloped infant were present. In this case, Adam is a quadriplegic, deaf, apparently blind, mute, subject to seizures, and has a shunt in his head.

Presented with the two conflicting theories of what occurred, the jury was faced with a clear choice of adopting one theory or the other.

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Cite This Page — Counsel Stack

Bluebook (online)
833 P.2d 1183, 114 N.M. 2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lopez-v-southwest-community-health-services-nmctapp-1992.