Reaves v. Bergsrud

1999 NMCA 075, 982 P.2d 497, 127 N.M. 446
CourtNew Mexico Court of Appeals
DecidedMay 5, 1999
Docket19,536
StatusPublished
Cited by25 cases

This text of 1999 NMCA 075 (Reaves v. Bergsrud) 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
Reaves v. Bergsrud, 1999 NMCA 075, 982 P.2d 497, 127 N.M. 446 (N.M. Ct. App. 1999).

Opinions

OPINION

ALARID, Judge.

{1} Plaintiff filed a medical malpractice action against Defendant. After a trial by jury, Defendant was exonerated of any negligent action. On appeal, Plaintiff asserts that the trial court erred in (1) denying Plaintiffs motion to compel discovery regarding Defendant’s mental health, and (2) denying her pretrial motion for leave to name a pathologist as an expert witness. We disagree and affirm the decisions of the trial court.

FACTS

A. Complaint

{2} On July 12, 1994, Plaintiff consulted with Defendant regarding an unidentified mass in her hand. After examining her, Defendant recommended exploratory surgery. On July 15, 1994, Defendant performed the surgery on an outpatient basis. The identity of the mass in Plaintiffs hand was in dispute. The Lea County Hospital pathologist thought the mass to be a benign neurofibroma, another pathologist in Dallas, identified the mass as a plexiform neurofibroma, and yet another pathologist, at University of New Mexico Hospital, identified the mass as an intraneural fibrolimpoma.

{3} After the surgery, Plaintiff began to complain of numbness in her thumb and several of her fingers, significant pain, and electrical shock sensations. In her complaint, Plaintiff asserted that these problems she was experiencing were a result of Defendant severing her median nerve during surgery and that he severed her nerve because his “standard of conduct was below the reasonable standard of care.” Plaintiff alleged that as a proximate result of Defendant’s alleged negligence, she has sustained “pain, suffering, disability, mental anguish, past and future medical expenses, loss of wages, and other general damages!?]” Plaintiff also asserted that Defendant was negligent in his diagnosis and postoperative care of her. Defendant answered Plaintiffs complaint and denied all allegations.

B. Motion to Compel

{4} During discovery, Plaintiff learned that Defendant had been diagnosed as having a mental impairment. Plaintiff learned that the state of Florida had suspended Defendant’s medical license in the summer of 1988 because he was suffering from bipolar disorder and had inappropriately quit his psychiatric care and medication. He was subsequently reinstated in the fall of 1988. Plaintiff also learned that in 1993, the states of New Mexico and California granted Defendant medical licenses on the condition that he continue to receive psychological treatment and take his medication. On May 20, 1994, the New Mexico Board of Medical Examiners lifted the condition on Defendant’s medical license.

{5} On November 8, 1996, Plaintiff propounded interrogatories to Defendant asking: ‘When did you first come under the treatment of Ronald Monteverde, M.D. for treatment of your bipolar mood disorder?” and “Please identify by date and treatment given each visit you had with Dr. Monteverde from July 1993 through July 1994.” Defendant objected, raising the physician-patient privilege and asserting that the information requested was irrelevant and was not calculated to lead to the discovery of any admissible evidence.

{6} During a deposition on March 24, 1997, Defendant stated that he was taking lithium, had been taking lithium in 1994, and had been seeing a psychiatrist every two to three months in 1994. When Defendant was asked whether he was still under medical treatment, his attorney objected that the relevant time period was 1994 and instructed Defendant not to answer. Defendant also refused to answer questions about a hearing scheduled in January 1997 concerning hospital privileges at Lea General Hospital and about the voluntary withdrawal of his privileges there. Plaintiff sought an order compelling discovery. On July 10, 1997, the district court heard the arguments of the parties on this issue. Plaintiff asserted that information regarding Defendant’s mental health at the time of treatment was crucial to her case and that Plaintiff had the right to know if his condition impaired Defendant at the time he treated her hand. Plaintiff contended that Defendant placed his mental health at issue when he denied that any state had previously revoked his license because he had failed to take his medication.

{7} Defendant responded by stating that his license to practice medicine was placed on probation for a period of time with the condition that he seek psychiatric treatment and take medication for his bipolar disorder. He also pointed out that his license was fully reinstated without condition. Defendant asserted that there was no evidence that he has ever stopped taking his medication since the time of his first bipolar episode in 1988. Additionally, Defendant argued that his own medical condition was not at issue. He denied that he deviated from any standard of care in his treatment of Plaintiff and noted that he has not argued that he made a mistake due to some diminished mental capacity. Last, Defendant asserted that information regarding his psychotherapy or medication at the time he was treating Plaintiff was inflammatory, prejudicial, and irrelevant.

{8} The district court found that Plaintiff had not produced any evidence that Defendant’s mental health had an impact on his performance. Therefore, the district court denied Plaintiff’s motion and stated that (1) Defendant’s mental status at the time of Plaintiffs treatment was irrelevant to the proceedings, and (2) the information was confidential under Rule 11-504 NMRA1999, the physician-patient privilege.

{9} Plaintiff moved for reconsideration on March 30, 1998. The motion was supported by an affidavit of Dr. Donald Cummings filed on April 6, 1998. In response, Defendant filed (1) his own affidavit stating that at the time in question he was taking his medication as prescribed, and (2) an affidavit from Dr. Ronald Monteverde indicating that he was Defendant’s psychiatrist at the time in question and that to the best of his knowledge, Defendant was compliant in taking his prescribed medication. The court denied the motion.

C. Expert Witness

{10} The district court held a pretrial conference on July 10, 1997. At this conference, the judge and the parties developed the pretrial scheduling order and the deadline for disclosing expert witnesses was set for August 10, 1997. Defendant’s attorney announced at the hearing that Defendant would identify both a liability and causation expert. On August 7, 1997, Defendant named Dr. Steven Bauserman as an expert who would testify that the tumor found in Plaintiffs hand, not Defendant’s conduct, was the cause of Plaintiffs problems. On August 28, 1997, Plaintiff made a motion to name an expert witness in neuropathology, if necessary. Plaintiff alleged that Defendant’s naming Dr. Bauserman as an expert was the “first time they have raised the fact that the type of tumor that she had may be a factor in causing damage to the Plaintiff!,]” and that in fairness to Plaintiff, the court should allow her to name an expert. Plaintiff asserted that because she had not yet taken Dr. Bauserman’s deposition it may be necessary for her to call a neuropathologist to respond to Dr. Bauserman’s as-of-yet, unobtained testimony.

{11} Defendant responded by arguing that from the outset of this case the type of tumor and its effect on Plaintiff has been at issue.

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Cite This Page — Counsel Stack

Bluebook (online)
1999 NMCA 075, 982 P.2d 497, 127 N.M. 446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reaves-v-bergsrud-nmctapp-1999.