       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: ___________

Filing Date: September 17, 2014

Docket No. 32,988

DEBORAH BROWN, Individually and
on Behalf of Her Minor Children, H.B
and B.S.,

       Plaintiff-Appellant,

v.

ROBERT KELLOGG, M.D.,
ROBERT OLSEN, M.D., and
PRESBYTERIAN HEALTHCARE
SERVICES d/b/a KASEMAN
PRESBYTERIAN HOSPITAL,

       Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Valerie A. Huling, District Judge

Law Offices of James P. Lyle, P.C.
James P. Lyle
Albuquerque, NM

for Appellant

Rodey, Dickason, Sloan, Akin & Robb, P.A.
Jeffrey M. Croasdell
Shannon M. Sherrell
Edward Ricco
Albuquerque, NM

for Appellees

                                     OPINION

GARCIA, Judge.

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{1}     Plaintiff, Deborah Brown, appeals from the district court’s grant of summary
judgment in favor of Defendants, Robert Kellogg, M.D., Robert Olsen, M.D., and
Presbyterian Healthcare Services d/b/a Kaseman Presbyterian Hospital. Plaintiff contends
the district court erred in failing to recognize that Defendants had a legal duty to order that
Plaintiff’s husband, Jeremy Brown, undergo a fitness for duty evaluation before releasing
him to return to work as a police officer. We agree with the district court that Defendants did
not have a legal duty to order a fitness for duty evaluation. We affirm.

BACKGROUND

{2}    Jeremy Brown was a detective with the Pueblo of Laguna Police Department. On
May 17, 2007, Brown presented himself to the emergency room with thoughts of suicide
stemming from the breakup of his marriage. Brown was found to exhibit “[n]o current . . .
psychosis” and was discharged after a few hours. Brown returned to the emergency room on
May 21, 2007, and was admitted to the hospital “in order to evaluate [his] dangerousness in
view of expressed suicidal ideation and to evaluate for depression.”

{3}     On May 23, 2007, Brown was discharged from the hospital with a diagnosis of
depression and adjustment reaction with anxiety and depression. The follow-up plan
provided for individual therapy and for Brown to contact a psychologist at work. Brown
received medical authorization from his doctors to return to work without restriction on May
26, 2007. A fitness for duty examination was not performed on Brown before he received
authorization to return to work. On June 8, 2007, Brown used his service weapon to shoot
Plaintiff and kill himself. Plaintiff suffered permanent brain injuries as a result of the
shooting and lost custody of her minor children.

{4}    Plaintiff, individually and on behalf of her minor children, filed a complaint against
Defendants on May 14, 2010, asserting a claim for medical malpractice. Defendants filed
a motion to dismiss that was denied by the district court. Defendants next filed a motion for
summary judgment, arguing that they did not owe a duty to Plaintiff as a matter of law.
Following a hearing, the district court granted Defendants’ motion and entered summary
judgment in favor of Defendants. Plaintiff appeals from this order granting summary
judgment.

DISCUSSION

{5}     We review the district court’s grant of summary judgment de novo. See Farmington
Police Officers Ass’n v. City of Farmington, 2006-NMCA-077, ¶ 13, 139 N.M. 750, 137
P.3d 1204. Summary judgment should be granted “if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Rule 1-056(C) NMRA.

{6}    “To prove medical malpractice, a plaintiff must show that (1) the defendant owed the

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plaintiff a duty recognized by law; (2) the defendant breached the duty by departing from the
proper standard of medical practice recognized in the community; and (3) the acts or
omissions complained of proximately caused the plaintiff’s injuries.” Diaz v. Feil,
1994-NMCA-108, ¶ 5, 118 N.M. 385, 881 P.2d 745. The district court concluded that
Defendants did not owe a duty to Plaintiff as a matter of law. Plaintiff contends the district
court erred in failing to recognize that Defendants had a duty to order a fitness for duty
evaluation for Brown before authorizing him to return to work as a police officer with access
to a service weapon.

{7}      In Wilschinsky v. Medina, our Supreme Court explained that “[t]he finding of a duty
involves the court in a careful balancing.” 1989-NMSC-047, ¶ 7, 108 N.M. 511, 775 P.2d
713. In determining whether to recognize a duty, the court “must take into account the
likelihood of injury, the magnitude of the burden of guarding against it and the consequences
of placing that burden upon the defendant.” Id. (internal quotation marks and citation
omitted). Our Supreme Court has recently clarified that “foreseeability is not a factor for
courts to consider when determining the existence of a duty . . . [because it] is a fact-
intensive inquiry relevant only to breach of duty and legal cause considerations.” Rodriguez
v. Del Sol Shopping Ctr. Assoc., 2014-NMSC-014, ¶ 1, 326 P.3d 465. “Instead, courts must
articulate specific policy reasons, unrelated to foreseeability considerations, when deciding
whether a defendant does or does not have a duty or that an existing duty should be limited.”
Id. ¶ 25. We thus undertake an analysis of the policy considerations and interests involved
without regard to whether the injury sustained by Plaintiff was foreseeable. Unfortunately,
the district court addressed the issue of whether Defendants owed Plaintiff a duty to require
Brown to undergo a fitness for duty evaluation prior to the issuance of the Supreme Court’s
ruling in Rodriguez. As a result, neither party developed a significant record addressing the
policy-based considerations to be weighed by the district court. This Court’s analysis of
Defendant’s duty to Plaintiff is reflective of the limited record that was developed in the
district court.

{8}     Our courts have recognized three sources of duty for medical professionals to third
parties. See Wilschinsky, 1989-NMSC-047, ¶ 8. In the first instance, a doctor or institution
can potentially be liable for injury caused by patients with known “dangerous propensities”
if the doctor exerts control over the patient. See id.; see e.g., Kelly v. Bd. of Trustees of
Hillcrest Gen. Hosp. Inc., 1974-NMCA-139, ¶¶ 5-7, 87 N.M. 112, 529 P.3d 1233 (holding
summary judgment was improperly entered in favor of the defendant because the defendant
failed to make a prima facie showing that it did not have actual knowledge of patient’s
“dangerous propensities”); see also Stake v. Woman’s Div. of Christian Serv., 1963-NMSC-
221, ¶¶ 4-5, 73 N.M. 303, 387 P.2d 871 (recognizing the potential duty to warn of patient’s
“dangerous propensities” when the defendant has actual knowledge of such propensities).
In the second instance, a doctor who is aware of specific threats to the life of an individual
can potentially be liable for failing to disclose those threats to the authorities or to the person
threatened. See Wilschinsky, 1989-NMSC-047, ¶ 9 (discussing Tarasoff v. Regents of Univ.
of Cal., 551 P.2d 334 (Cal. 1976)). In the third instance, a doctor who administers powerful
drugs in his office that result in impairment to a patient can potentially be liable to those

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injured by the impaired patient. Wilschinsky, 1989-NMSC-047, ¶¶ 11, 28.

{9}      Plaintiff does not suggest that the duty it seeks to impose on Defendants falls within
any of the three categories identified in Wilschinsky. Instead, Plaintiff argues that under
Wilschinsky, a duty exists based upon a factual analysis of 1) foreseeability—a likelihood
of injury to the plaintiff, and 2) the burden placed upon a defendant—the magnitude of the
burden on a defendant and the consequences of doing so. See id ¶ 9. Plaintiff bases her
argument on a consideration of “the uniquely dangerous perspective posed by law
enforcement officers who are trained in all aspects of lethal force, combined with the well
known need among mental [healthcare] professionals to order a fitness for duty evaluation
under these [factual] circumstances.” Effectively, Plaintiff argues that this Court should
impose a new, more focused duty to order a fitness for duty evaluation on independent
healthcare professionals who treat individuals with access to firearms as part of their
workplace environment. Plaintiff cites to neither New Mexico nor outside authority that
would impose such a duty on independent healthcare professionals. The only fitness for duty
examination requirement identified and recognized under existing law would apply to certain
federal law enforcement agencies.1 Even under the federal regulation referenced by Plaintiff,
it is the discretionary function of the federal agency, as employer, to consider imposing a
psychiatric evaluation on a federal employee. Id. Plaintiff does not even assert that such a
duty is imposed upon Brown’s employer in this case. In addition, Plaintiff does not dispute
that a fitness for duty evaluation is not imposed on public agencies in New Mexico and is
not required by independent healthcare professionals pursuant to existing law. Finally,
Plaintiff’s fact-based analysis of foreseeability is inconsistent with the policy-based analysis
required under Rodriguez. 2014-NMSC-014, ¶¶ 1, 25.

{10} Based upon the record presented in this case, there appear to be good policy reasons
for rejecting the imposition of a fitness for duty legal obligation on independent healthcare
professionals who treat individuals with access to firearms as part of their workplace
environment. It appears from the testimony of Plaintiff’s own expert, Peter DiVasto, a fitness
for duty evaluation is a complex evaluation that “takes about two weeks to complete.”
DiVasto also testified that he has never been in a situation where a hospital has ordered a
fitness for duty evaluation. It is unclear who would conduct the evaluation, who would pay
for the evaluation, and how the outcome of the evaluation would affect a patient’s medical
care and workplace limitations. It is also unclear what negative effects a fitness for duty
evaluation requirement on independent healthcare professionals would have on law


       1
          Plaintiff cites to a portion of the Office of Personnel Management regulations
setting forth the circumstances under which a federal agency has discretion to order a
psychiatric examination. See 5 C.F.R. § 339.301(e)(1) (2014). However these regulations
involve the federal agency as an employer, do not address the specific situation involving
independent healthcare professionals presented in the present case, and do not place a duty
on any healthcare professional to order or compel a fitness for duty evaluation upon a
patient.

                                               4
enforcement personnel and their desire to seek medical assistance.

{11} We do not believe it is appropriate for this Court to impose an entirely new and novel
legal duty upon healthcare professionals without an extensive development of the policy
considerations in the record for review. A balancing of the various policy interests presented
in this case does not clearly support the imposition of such a new duty. These are the types
of policy considerations that should be publicly addressed as part of the legislative process
if a fitness for duty evaluation is to be imposed as a new duty upon healthcare professionals.
We find the following Supreme Court language to be particularly instructive:

               Policy determines duty. With deference always to constitutional
       principles, it is the particular domain of the [L]egislature, as the voice of the
       people, to make public policy. Elected executive officials and executive
       agencies also make policy, to a lesser extent, as authorized by the
       constitution or the [L]egislature. The judiciary, however, is not as directly
       and politically responsible to the people as are the legislative and executive
       branches of government.

Torres v. State, 1995-NMSC-025, ¶ 10, 119 N.M. 609, 894 P.2d 386.

{12} DiVasto testified at his deposition that he believed Defendants’ responsibility was
to provide Brown with an outpatient appointment upon discharge, and Defendants satisfied
that responsibility. Brown’s follow-up plan also required him to contact a psychologist at
work. The Legislature and our courts have not imposed any additional duty upon healthcare
professionals regarding their patients with jobs that involve carrying firearms as part of their
workplace functions. In addition, this Court is not aware of any other jurisdiction that has
recognized a duty on the part of a healthcare professional to order a fitness for duty
evaluation under similar circumstances. See 5 C.F.R. § 339.301(e)(1). The duty imposed
upon federal law enforcement agencies would be evaluated under a different and distinct set
of policy considerations focusing upon employment and workplace considerations. The
relationship between a healthcare professional and a patient is uniquely different,
necessitating policy considerations that focus on the medical circumstances present. We
agree with the district court that Defendants did not have a legal duty to order Brown to
undergo a fitness for duty evaluation before releasing him from the hospital and later
authorizing him to return to the workplace as a police officer pursuant to the specific
requirements set forth in his medical follow-up plan.

CONCLUSION

{13} For the foregoing reasons, we affirm the district court’s grant of summary judgment
in favor of Defendants.

{14}   IT IS SO ORDERED.


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                                    ____________________________________
                                    TIMOTHY L. GARCIA, Judge

WE CONCUR:

____________________________________
RODERICK T. KENNEDY, Chief Judge

____________________________________
JAMES J. WECHSLER, Judge




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