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                                                                 New Mexico Compilation
                                                               Commission, Santa Fe, NM
                                                              '00'04- 14:55:10 2013.09.04
        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-087

Filing Date: June 4, 2013

Docket No. 30,307

MICHAEL SALOPEK,

        Plaintiff-Appellee/Cross-Appellant,

v.

DAVID J. FRIEDMAN, M.D.,

        Defendant-Appellant/Cross-Appellee.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Jerald A. Valentine, District Judge

The Perrin Law Firm
Doug Perrin
Santa Fe, NM

for Appellee

Kemp Smith LLP
CaraLyn Banks
Las Cruces, NM

for Appellant

                                           OPINION

KENNEDY, Chief Judge.

{1}      David J. Friedman, M.D. (Defendant) appeals from a $600,000 judgment against him
for medical malpractice on three grounds: (1) the district court failed to properly instruct the
jury on the scope of Defendant’s duty to Michael Salopek (Plaintiff), (2) the district court
gave incorrect “eggshell plaintiff” damages instructions, and (3) the district court erred in
failing to order a new trial or remittitur. Plaintiff cross-appeals, contending that the statutory
cap on damages in Section 41-5-6 of the Medical Malpractice Act (Act), NMSA 1978, §§
41-5-1 to -29 (1976, as amended through 2008), is unconstitutional. We affirm.

                                                1
I.      BACKGROUND

{2}      Plaintiff has familial adenomatous polyposis (polyposis), which is an inherited
disorder characterized by the development of numerous polyps in the colon, which readily
leads to colon cancer. Due to this condition, Plaintiff biannually underwent colonoscopies
to remove polyps and evaluate the progression of his condition. On February 16, 2005,
Plaintiff returned home from a routine colonoscopy with increasingly sharp abdominal pain
and a fever. The following day Plaintiff went to the emergency room where he was attended
to by Defendant, who, after evaluating the results of a CAT scan, stated that there appeared
to be a perforation in Plaintiff’s colon. The perforation appeared to have been caused by the
colonoscopist puncturing Plaintiff’s colon while removing a polyp with hot forceps during
his colonoscopy.

{3}     On February 17, 2005, to find and mend the perforation in Plaintiff’s colon,
Defendant performed a laparotomy, an exploratory abdominal surgery. Defendant
“anticipated that if found, the perforation[] could be closed with a suture[.]” Defendant did
not locate the perforation at this juncture. Evidence indicated that this failure occurred
because Defendant did not pressurize the colon with air during the laparotomy, a procedure
which would have revealed the perforation. Testimony at trial established that a well-
qualified surgeon, practicing under similar circumstances, would have pressurized the colon
to locate the perforation. Eleven days after this failed attempt to locate the perforation,
Defendant again operated on Plaintiff to find and fix the perforation. By this time, the
perforation had enlarged because the injured colon tissue began to disintegrate. During this
second surgery, Defendant used dye to pressurize the colon and locate the perforation.
Defendant then removed the part of the colon where the perforation was located and created
a colostomy to allow the colon to heal. The colostomy redirected Plaintiff’s colon through
his abdominal wall, so that stool would drain out of his body through his abdomen and into
a colostomy bag that adhered to his skin.

{4}     Shortly thereafter, Plaintiff terminated his doctor-patient relationship with Defendant.
Plaintiff sought treatment from Dr. William Abbott to perform a take-down of the colostomy,
which would reconnect the severed parts of his intestines. Because of Plaintiff’s polyposis
condition, performing a colostomy take-down that reattached his colon created additional
concerns for his health. Due to these additional concerns, Plaintiff chose to have a
restorative proctocolectomy that would remove the colon and attach the small intestine to
the anus. Plaintiff suffered complications from the restorative proctocolectomy and,
ultimately, had to have thirteen surgeries in total. Due to complications, Plaintiff’s small
intestine was not successfully permanently connected to his anus. As a result, his small
intestine was yet again rerouted through his abdominal wall, so that waste could drain from
his body through his abdominal wall into an ileostomy bag attached to his abdomen. At the
time of trial, Plaintiff was still in this condition and stated that he did not anticipate living
without an ileostomy bag in the future.

{5}     Plaintiff sued Defendant for malpractice, claiming that Defendant was negligent in

                                               2
failing to use the proper techniques and find the perforation during the initial laparotomy.
The jury found Defendant negligent and awarded Plaintiff $1,000,000. The district court
reduced the award to $600,000, pursuant to the cap on damages contained in Section 41-5-6
of the Act. These appeals followed.

II.    DISCUSSION

A.     The District Court Properly Denied Defendant’s Motion Regarding Duty

{6}    Defendant argues that the district court erred in denying his motion for judgment as
a matter of law. Defendant contends that, by denying his motion, the district court
“expanded the duty of physicians beyond that recognized under New Mexico law.”

       [D]uty . . . is for the court alone to define. Before the jury can resolve any
       factual matter, . . . the court must first frame the relevant law. In a
       negligence action, this means the court must first find an actionable duty of
       care and then define the nature and scope of that duty.

Provencio v. Wenrich, 2011-NMSC-036, ¶ 16, 150 N.M. 457, 261 P.3d 1089.

{7}      It is well established that “a doctor owes a general duty to provide competent care
in treating a patient’s medical condition.” Id. ¶ 27. The duty of care required of a doctor to
a patient is set forth in UJI 13-1101 NMRA, which was applied at trial in this case and
states:

               In [treating, operating upon, making a diagnosis of, or caring for] a
       patient, [the doctor] is under the duty to possess and apply the knowledge and
       to use the skill and care ordinarily used by reasonably well-qualified
       [doctors] . . . practicing under similar circumstances, giving due
       consideration to the locality involved.

{8}     As Defendant argues, we reference “the specific circumstances actually presented”
to determine whether a duty exists with reference to a foreseeable plaintiff with foreseeable
harm. Romero v. Giant Stop-N-Go of N.M., Inc., 2009-NMCA-059, ¶ 9, 146 N.M. 520, 212
P.3d 408. In the context of duty, “[f]oreseeability is what one might objectively and
reasonably expect, not merely what might conceivably occur.” Johnstone v. City of
Albuquerque, 2006-NMCA-119, ¶ 8, 140 N.M. 596, 145 P.3d 76 (internal quotation marks
and citation omitted); see Chavez v. Desert Eagle Distrib. Co. of N.M., LLC,
2007-NMCA-018, ¶ 17, 141 N.M. 116, 151 P.3d 77 (“The risk must be actual and
perceptible, not speculative.” (internal quotation marks and citation omitted)). Thus, we
frame the question of duty in this case to be whether a well-qualified doctor in New Mexico,
who knows his patient likely has a punctured colon and fails to pressurize his patient’s colon
during a laparotomy, should foresee that he would fail to find the perforation during the
laparotomy and that complications related to a corrective procedure would arise as a result

                                              3
of this failure.

{9}       Defendant argues that “[t]here is no basis to support the [d]istrict [c]ourt’s decision
that Defendant owed a duty to Plaintiff related to prospective elective procedures given the
circumstances present in this case.” Defendant explains that he “could not objectively and
reasonably expect that his purported failure to find a perforation in Plaintiff’s colon during
surgery . . . [would] result in Plaintiff suffering complications [from a later] elective
procedure.” Defendant concludes that he had “no duty [to Plaintiff for Plaintiff’s later
complications] given his inability to control the subsequent treatment provided to Plaintiff
. . . after the [doctor-patient relationship] was terminated.” Defendant argues that he “was
therefore not liable for Plaintiff’s decision to have the [restorative proctocolectomy]
procedure in November 2005 or the resulting complications from that procedure.”

{10} We disagree with Defendant and conclude that he should have foreseen that Plaintiff
would suffer these particular harms when Defendant failed to pressurize Plaintiff’s colon
during the laparotomy. At trial, expert testimony indicated that Defendant would have
discovered the perforation during the first surgery if he had pressurized the colon. In
addition, evidence demonstrated that if the perforation was located in the first surgery,
Defendant would have been able to mend it with sutures. Because Defendant waited eleven
days, the injured colon tissue began to disintegrate, and the affected part of the colon now
required removal rather than a few stitches. In addition, Defendant knew Plaintiff had pre-
existing hereditary polyposis and that Plaintiff would require additional surgery to take down
the colostomy that Defendant unnecessarily created. We conclude that removal of a section
of Plaintiff’s colon, a colostomy, and additional surgery were foreseeable harms that Plaintiff
would suffer when Defendant did not pressurize the colon and, thereby, failed to locate the
puncture during the first surgery.

{11} After the colostomy, Plaintiff had several options, including a take-down of the
colostomy and reattaching of the colon, or a restorative proctocolectomy (removing the
colon and attaching the small intestine to the anus). The heart of Defendant’s argument is
that the restorative proctocolectomy was an elective procedure unrelated to the colostomy
and that he could not expect complications to occur during the restorative proctocolectomy
due to Plaintiff’s anatomy. We disagree and conclude that the restorative proctocolectomy
was related to the colostomy, in that it was among several reasonable options presented to
Plaintiff to reverse the colostomy and restore Plaintiff’s bowels to a more normal function.
Plaintiff’s expert, a physician and surgeon, testified that it was foreseeable that a restorative
proctocolectomy would be an option for Plaintiff following a colostomy because of his
polyposis condition. If Defendant had pressurized the colon during the first surgery and
discovered the perforation, Plaintiff would not have been prematurely presented with the
decision of whether to have a proctocolectomy.

{12} Both Plaintiff and Dr. Abbott appeared to believe that the colostomy take-down
would not have been a good solution, given that Plaintiff’s polyposis condition would
require that he have a colonoscopy every six months, and he had already suffered a

                                               4
punctured colon from a colonoscopy, which caused Plaintiff grave apprehension about ever
having another one. A corrective procedure, as well as complications from that surgery,
which are not the result of another doctor’s negligence, were foreseeable outcomes of a
colostomy for Plaintiff. Furthermore, Plaintiff was not required to choose a colostomy take-
down and reattachment of the colon over the proctocolectomy simply because it might have
had the potential to limit Defendant’s liability.

{13} We conclude that simply by operating on Plaintiff, Defendant had a duty to act as a
reasonably well-qualified doctor during the surgery. Evidence established that a reasonably
well-qualified doctor would have pressurized the colon to locate the perforation. A
reasonably well-qualified doctor would objectively and reasonably expect that his failure to
do so would result in a patient with polyposis undergoing a colostomy and, subsequently,
a restorative proctocolectomy. This doctor would also expect the patient to experience any
of the array of possible complications associated with these procedures.

{14} In addition, we are unpersuaded by Defendant’s argument that we should conclude
that there is no duty because this case is like Estate of Haar v. Ulwelling, 2007-NMCA-032,
141 N.M. 252, 154 P.3d 67. In Estate of Haar, this Court held that the defendant psychiatrist
did not owe a duty of care to a potentially suicidal patient after the patient terminated the
doctor-patient relationship with the defendant and started a new doctor-patient relationship
with another physician. Id. ¶¶ 25-29. Defendant’s reliance on this case is misplaced. In
Estate of Haar, the alleged negligent acts, which included the doctor’s failure to
“affirmatively monitor [the patient’s] medication, enhance [the patient’s] compliance with
treatment, and schedule follow-up appointments[,]” all occurred after the patient terminated
the relationship with the doctor. Id. ¶ 25. There, we concluded that after the patient made
it clear that he no longer wanted a doctor-patient relationship with the defendant, “it is
unreasonable to place upon [the d]efendant a requirement that he have imposed his views
or treatment recommendations on [the patient] or [the patient’s new treating physicians] for
the purpose of guarding against [the patient’s] suicide.” Id. ¶ 28. Our decision in Estate of
Haar was clearly premised upon the fact that the alleged negligent act occurred after the
doctor-patient relationship ended. Estate of Haar is inapplicable here because, in this case,
the negligent act occurred prior to the termination of the doctor-patient relationship.

{15} We conclude that Defendant had a duty to act as a reasonably well-qualified doctor
toward Plaintiff during the surgery, to use all of the proper procedures, and to protect
Plaintiff against unnecessary complications. All injuries that followed were objectively and
reasonably foreseeable. We thus affirm the district court’s denial of Defendant’s motion for
judgment as a matter of law.

B.     The Jury Instruction About Damages Was Proper

{16} “We review jury instructions de novo to determine whether they correctly state the
law and are supported by the evidence introduced at trial.” Benavidez v. City of Gallup,
2007-NMSC-026, ¶ 19, 141 N.M. 808, 161 P.3d 853 (internal quotation marks and citations

                                             5
omitted). “A party is entitled to instructions on all of his or her correct legal theories of the
case if there is evidence in the record to support the theories.” Id. “It is not error to deny
requested instructions when the instructions given adequately cover the law to be applied.”
Kirk Co. v. Ashcraft, 101 N.M. 462, 466, 684 P.2d 1127, 1131 (1984). “A civil case will not
be reversed due to error in jury instructions unless the result is fundamentally unjust.”
McNeill v. Burlington Res. Oil & Gas Co., 2007-NMCA-024, ¶ 19, 141 N.M. 212, 153 P.3d
46, aff’d, 2008-NMSC-022, 143 N.M. 740, 182 P.3d 121.

{17} At trial, Plaintiff submitted UJI 13-1802 NMRA to the district court, seeking
recovery of damages under two theories that Defendant’s actions (1) aggravated Plaintiff’s
pre-existing condition; or (2) injured Plaintiff, who may have been unusually susceptible to
injury. The district court concluded that Defendant’s actions did not aggravate Plaintiff’s
pre-existing condition and, consequently, denied the instruction on aggravation of a pre-
existing condition. Yet, the district court concluded that the latter instruction, also known
as, the “eggshell plaintiff” instruction, was supported by evidence and the theory of
Plaintiff’s case and, thus, presented it to the jury. See UJI 13-1802 cmt. (describing the jury
instruction as the “eggshell plaintiff” instruction). The instruction stated:

                Whether any of these elements of damages have been proved by the
        evidence is for you to determine. However, damages are to be measured
        without regard to the fact Plaintiff may have been unusually susceptible to
        injury or likely to be harmed. . . . Defendant is said to “take the Plaintiff as
        he finds him,” meaning that . . . Defendant, if liable, is responsible for all
        elements of damages caused by . . . Defendant’s conduct even if some of . .
        . Plaintiff’s injury arose because . . . Plaintiff was unusually susceptible to
        being injured.

{18} Defendant makes two arguments in contending that the district court erred in
permitting the eggshell plaintiff instruction to be submitted to the jury. First, Defendant
contends that Plaintiff does not fit the requirements of an “eggshell plaintiff.” Defendant
argues that either the entire UJI 13-1802 should have been given, or no instruction should
have been given on the matter at all. In making this argument, Defendant states that
“[s]pecifically, the evidence presented at trial established that Plaintiff’s injuries, i.e., pain
and suffering, loss of enjoyment of life etc., resulted from the effect of his anatomical
abnormality (deep narrow pelvis) on Dr. Abbott’s ability to successful[ly] perform the
elective procedure on November 15, 2005 to treat Plaintiff’s inherited disorder.”

{19} Second, Defendant argues in the alternative that error occurred in submitting the
instruction without “a reference to Defendant only being liable for the worsening of
Plaintiff’s cond[ition] and not for elements of damages attributed to Plaintiff’s . . .
polyposis.” Referring to UJI 13-1802, Defendant asserts:

        While the jury instruction on [damages for an] “eggshell” plaintiff describes
        the extent of the damages that can be imposed on a defendant, the instruction

                                                6
        does not relieve a plaintiff of the burden of establishing that the underlying
        condition was exacerbated by the negligence of the defendant . . . as opposed
        to the underlying condition.

Defendant contends that the court’s failure to do this permitted the jury to impose liability
on him for damages that he did not cause.

{20} We disagree with Defendant and conclude that the jury was properly instructed about
Plaintiff’s status as an “eggshell plaintiff.” The jury instruction defines the “eggshell
plaintiff” as a person “unusually susceptible to injury or likely to be harmed.” UJI 13-1802.
The defendant must “take the plaintiff as he finds [him]” and, therefore, “is responsible for
all elements of damages caused by the defendant’s conduct even if some of the plaintiff’s
injury arose because the plaintiff was unusually susceptible to being injured.” Id. This
means that “the wrongdoer is liable for the proximate results of that injury, although the
consequences are more serious than they would have been, had the injured person been in
perfect health.” Rowe v. Munye, 702 N.W.2d 729, 741 (Minn. 2005) (internal quotation
marks and citation omitted). “The eggshell plaintiff rule . . . applies only when the pain or
disability arguably caused by another condition arises after the injury caused by the
defendant’s fault has lighted up or exacerbated the prior condition.” Sleeth v. Louvar, 659
N.W.2d 210, 212 (Iowa 2003); see Avery v. Ward, 934 S.W.2d 516, 520 (Ark. 1996) (“[A]n
‘eggshell plaintiff’ . . . is[] one who was susceptible to enhanced injury by virtue of an
existing condition.”); Iazzetta v. Nevas, 939 A.2d 617, 619 (Conn. App. Ct. 2008)
(explaining the meaning of an “eggshell plaintiff”).

{21} In this case, Plaintiff had dormant conditions that made him more susceptible to
injuries caused by Defendant’s failure to find the perforation during the first surgery.
Namely, Plaintiff’s polyposis condition complicated his recovery from the colostomy
because the polyposis necessitated a restorative proctocolectomy in order to undo the
colostomy created by Defendant. Plaintiff’s anatomical abnormalities made him more
susceptible to complications with regard to the restorative proctocolectomy. The pain and
disablement that occurred as a result of the restorative proctocolectomy can fairly be viewed
as a proximate result of Defendant’s failure to find the perforation during the first surgery.
The consequences of Defendant’s negligence are certainly more serious than they would
have been with someone who did not possess these conditions. Yet, the additive effect of
Plaintiff’s condition does not lessen Defendant’s liability for his conduct, as the jury was
instructed under UJI 13-1802.

{22} To the extent that Defendant argues that the eggshell plaintiff instruction cannot be
given without the aggravation instruction, we conclude that aggravation and eggshell
instructions are two different theories of liability and can be given separately or together, in
the alternative, as long as each is supported by a factual basis. See Sleeth, 659 N.W.2d at
212-16 (determining whether the trial court properly advised on a theory of aggravation of
the plaintiff’s pre-existing condition as well as the eggshell plaintiff theory); Waits v. United
Fire & Cas. Co., 572 N.W.2d 565, 578 (Iowa 1997) (stating that both instructions can be

                                               7
given because the trial court determined that a factual basis supported each). The Iowa
Supreme Court explained:

       Whether the eggshell plaintiff rule applies or the aggravation rule applies
       depends in the first instance on when the pain or disability for which
       compensation is sought arose. Where the prior condition resulted in pain or
       disability before the second injury, the tortfeasor is liable only for the
       additional pain and disability arising after the second injury. With respect
       to any pain or disability arising after the second injury, the tortfeasor is fully
       responsible, even though that pain and disability is greater than the injured
       person would have suffered in the absence of the prior condition.

Id. at 577-78.

{23} The case before us exemplifies a situation where the eggshell plaintiff instruction,
but not the aggravation instruction, is applicable.             Plaintiff had pre-existing
conditions—polyposis and a deep, narrow pelvis. The specific pain and disability for which
Plaintiff sought redress here did not exist before Defendant’s negligent action, despite the
fact that Plaintiff had these conditions. Only after Defendant injured Plaintiff, did Plaintiff
have to endure a proctocolectomy and complications from that surgery. No pre-existing
conditions were aggravated, but Plaintiff’s pre-existing conditions amplified the effect of
Defendant’s actions. The pain and disability occurred after Defendant’s actions and not
before.

{24} At the heart of Defendant’s second argument is the contention that the jury should
distinguish the damages caused by him from the damages caused by Plaintiff’s underlying
conditions. Yet, UJI 13-1802 makes it clear that, although the condition may contribute to
the injury, as long as Defendant’s conduct can be said to have proximately caused the injury,
he will be held liable for the resulting injuries. The eggshell plaintiff theory of liability
prevents the defendant from escaping liability when his conduct precipitates a more severe
injury than a person of normal health would typically suffer. See Gasiorowski v. Hose, 897
P.2d 678, 680 (Ariz. Ct. App. 1994) (holding that the “‘eggshell plaintiff’ instruction [states]
that an accident victim’s predisposing susceptibility does not relieve a negligent actor of
responsibility for whatever injuries his negligence precipitates”); Hoffman v. Schafer, 815
P.2d 971, 972-73 (Colo. App. 1991) (stating that, under the eggshell plaintiff rule, “the jury
[is] not to refuse to award or to reduce the amount of damages it awarded [the] plaintiff
because of ‘any physical frailties of the plaintiff that may have made her more susceptible
to injury, disability, or impairment’”); City of Jackson v. Estate of Stewart ex rel. Womack,
2003-CA-01413-SCT, 908 So. 2d 703, 715 (Miss. 2005) (“It simply provides that plaintiffs
who are far more susceptible to a particular harm than the average person may nonetheless
recover their full damages without reduction.”). Here, there is evidence indicating that both
Defendant’s conduct and the underlying condition resulted in the injuries and not one or the
other exclusively. Thus, this case fits the requirements of the eggshell plaintiff theory, and
we do not apportion damages by attempting to distinguish between how much injury the

                                               8
condition caused, and how much injury Defendant caused, as the injury would not have
occurred without his negligence.

{25} In support of his argument, Defendant states that this Court has held that “a defendant
was only liable for the damages the defendant caused, regardless of the plaintiff’s physical
conditioning or lack thereof.” See Thomas v. Henson, 102 N.M. 417, 424, 696 P.2d 1010,
1017 (Ct. App. 1984), aff’d in part, rev’d in part on other grounds by 102 N.M. 326, 695
P.2d 476 (1984). Defendant misapplies our holding in Thomas. In Thomas, passengers, who
were injured in an automobile accident, sued the defendant driver. Id. at 419, 696 P.2d at
1012. The passengers were not wearing their seat belts, and the defendant argued that their
damages should be reduced because of their failure to wear seat belts. Id. at 419-20, 696
P.2d 1012-13. There, we held that, “as part of the continuing duty to exercise reasonable
care for his or her own safety, an occupant of an automobile has a duty to fasten an available
seat belt or similar safety restraint device unless the circumstances dictate otherwise.” Id.
at 424, 696 P.2d at 1017. We concluded that such damages arising out of the plaintiff’s
failure to wear a seat belt “may not be recovered from a defendant because such damages
resulted from [the] plaintiff’s conduct.” Id. We emphasized that “a defendant will still take
the victim as he finds him and be liable for the damages the defendant causes. Where,
however, damages are caused by the plaintiff’s failure to care for his own safety (not his
physical condition), [the] plaintiff may not recover those damages.” Id. Thomas does not
support Defendant’s argument that he is not liable for Plaintiff’s resulting injuries. Rather,
it reiterates our rationale for affirming the district court. Defendant must take Plaintiff as he
found him with his hereditary condition and anatomical abnormalities. Unlike the plaintiffs
in Thomas, no evidence in this case indicates that Plaintiff failed to care for his own safety,
or that the pre-existing condition caused his damages. As explained above, the jury
determined that the damages resulted from Defendant’s negligent act.

{26} Furthermore, to the extent that Defendant argues that the proctocolectomy was an
elective procedure, we agree that Plaintiff can only recover for the injuries caused by
Defendant. At trial, the district court properly instructed the jury that the injuries must be
caused by Defendant’s negligence and not by another source. These instructions fully
inform the jury that Defendant can only be liable for the injuries he actually caused Plaintiff.
We read jury instructions as a whole and, when they fairly present the issues and the
applicable law in light of the evidence presented at trial, they are sufficient. Diversey Corp.
v. Chem-Source Corp., 1998-NMCA-112, ¶ 16, 125 N.M. 748, 965 P.2d 332. The jury
instructions given sufficiently allowed the jury to differentiate between the harm caused by
Defendant and the harm caused by any other sources.

{27} In arguing that the proctocolectomy was an elective procedure, Defendant seems to
indicate that this was an unnecessary procedure chosen by Plaintiff unrelated to the
colostomy. As explained above, Plaintiff had to make a choice of how to deal with the
colostomy, and the evidence shows that a proctocolectomy was a reasonable choice given
the options facing him. To the extent that Defendant argues the proctocolectomy would have
inevitably occurred due to Plaintiff’s polyposis, we remind Defendant that the only reason

                                               9
why Plaintiff underwent such a drastic surgery when he did was because of Defendant’s
negligent conduct. “A tortfeasor is liable for damages suffered by an ‘eggshell’ plaintiff
which are a natural consequence of the accident, even though the plaintiff may inevitably
suffer similar injuries from a pre-existing condition unrelated to the accident.” Sumpter v.
City of Moulton, 519 N.W.2d 427, 434 (Iowa Ct. App. 1994). Even if Plaintiff may have
needed the procedure in the future, he had to undergo the procedure prematurely because of
Defendant’s negligent act. Furthermore, it remains uncertain whether Plaintiff would have
needed the restorative proctocolectomy due to the progression of his polyposis in the future
as that set of events never came to fruition.

{28} In conclusion, the district court properly advised the jury on the eggshell plaintiff
rule. Defendant must take Plaintiff as he found him with his hereditary condition and
anatomical abnormalities and is liable in full for all injuries he proximately caused.

C.     The District Court Did Not Err When It Refused to Reduce the Amount of the
       Jury Verdict or Grant a New Trial

{29} When the jury returned a $1,000,000 judgment against Defendant, he moved for a
new trial or remittitur. The district court denied the motion. Defendant contends that the
district court erred by refusing to grant either remedy. “The applicable standard in reviewing
the denial of a motion for a new trial or remittitur is abuse of discretion.” Sandoval v. Baker
Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 13, 146 N.M. 853, 215 P.3d 791. “An
abuse of discretion occurs when a ruling is clearly contrary to the logical conclusions
demanded by the facts and circumstances of the case.” Sims v. Sims, 1996-NMSC-078, ¶ 65,
122 N.M. 618, 930 P.2d 153. “When there exist reasons both supporting and detracting from
a trial court decision, there is no abuse of discretion.” State v. Moreland, 2008-NMSC-031,
¶ 9, 144 N.M. 192, 185 P.3d 363 (internal quotation marks and citation omitted). “Where
the court’s discretion is fact-based, we must look at the facts relied on by the trial court as
a basis for the exercise of its discretion, to determine if these facts are supported by
substantial evidence.” Apodaca v. AAA Gas Co., 2003-NMCA-085, ¶ 60, 134 N.M. 77, 73
P.3d 215 (internal quotation marks and citation omitted).

{30} “In determining whether a jury verdict is excessive, we do not reweigh the evidence
but determine whether the verdict is excessive as a matter of law. The jury’s verdict is
presumed to be correct.” Ennis v. Kmart Corp., 2001-NMCA-068, ¶ 27, 131 N.M. 32, 33
P.3d 32. To rebut this presumption, either of the following tests must be met: “(1) whether
the evidence, viewed in the light most favorable to [the] plaintiff, substantially supports the
award[;] and (2) whether there is an indication of passion, prejudice, partiality, sympathy,
undue influence[,] or a mistaken measure of damages on the part of the fact finder.”
Sandoval, 2009-NMCA-095, ¶ 16 (internal quotation marks and citation omitted); Baxter
v. Gannaway, 113 N.M. 45, 48, 822 P.2d 1128, 1131 (Ct. App. 1991) (“In the absence of an
unmistakable indication of passion or prejudice, a reviewing court will not set aside a jury’s
award of damages unless the amount of the verdict in light of the evidence indicates the jury
was influenced by prejudice, passion, or other improper considerations.”). We will not

                                              10
disturb the verdict simply because “a jury’s award is possibly larger than the court would
have given.” Richardson v. Rutherford, 109 N.M. 495, 503, 787 P.2d 414, 422 (1990)
(internal quotation marks and citation omitted). “Only in extreme cases will an award of
damages be found excessive.” Sandoval, 2009-NMCA-095, ¶ 19. In this case, Defendant
argues that both insufficient evidence and improper jury considerations indicate that the jury
verdict was excessive.

1.      Evidence Substantially Supports the Award

{31} In addressing this prong of the test, “[t]he proper approach is to examine [the
p]laintiff’s evidence related to damages and determine whether that evidence could justify
the amount of the verdict, or determine whether the verdict amount was grossly out of
proportion to the evidence of [the p]laintiff’s pain and suffering.” Id. ¶ 22. After examining
the evidence, we determine whether any “disproportionality [between the evidence and the
verdict] shocks our conscience.” Id. (footnote omitted). “A jury’s damages award will be
upheld unless it appears that the amount awarded is so grossly out of proportion to the injury
received as to shock the conscience.” Id. ¶ 20 (internal quotation marks and citations
omitted).

{32} Defendant first argues that there was not sufficient evidence to justify the amount of
the award. Defendant’s argument again centers around causation, as he contends that
“Plaintiff’s injury was a result of his dormant medical condition and the procedure
performed on November 2005 for the treatment of his inherited disease.” Defendant states
that “[a]ny future pain and suffering incurred by Plaintiff resulted either from the November
2005 procedure or the progression of his inherited disease.” Defendant concludes that
“[g]iven the evidence regarding the cause of Plaintiff’s injury, the lack of substantial
evidence regarding damages, and the application of incorrect substantive law (duty and jury
instruction) by the [d]istrict [c]ourt, the [d]istrict [c]ourt abused its discretion in not granting
a remittitur or new [t]rial.”

{33} At trial, the jury was instructed that, if it decided in favor of Plaintiff on the question
of liability, it must then determine what amount of money would reasonably and fairly
compensate Plaintiff for any of the following elements of damages:

        1.      Reasonable value of medical care treatment and services received
                which the parties have stipulated cannot exceed $165,000[];

        2.      Nature, extent[,] and duration of injury;

        3.      The pain and suffering, including, but not limited to[,] physical
                disfigurement, loss of enjoyment of life, between the time of the
                injury and present; and

        4.      Future pain and suffering.

                                                11
{34} We conclude that, based upon the injury suffered by Plaintiff, there was sufficient
evidence to support the verdict amount based on these factors. Plaintiff testified in extensive
detail about the physical and emotional ramifications of his injury. While recovering after
the first unsuccessful surgery, Plaintiff characterized the pain as “intense” and described
himself as a “very frustrated [and] very hurting human being.” Plaintiff could not walk well,
was in constant pain, and had fevers. Shortly before the second surgery, Plaintiff thought
that he “was losing [his] life.” Immediately following the second surgery, Plaintiff had
complications with his lungs that caused him great discomfort. Over the course of the
twenty days that he was in the hospital for the two surgeries and recovery, Plaintiff lost fifty
pounds.

{35} Moreover, after the second surgery, Plaintiff woke up in severe pain with a
colostomy bag over an open wound through which waste would exit his body. Plaintiff
stated that living with the colostomy bag changed his life, explaining that “[i]t is a whole
different process of using the restroom. It poses a whole series of things you must now
guard. It is quite a big change.” Plaintiff explained that the colostomy bag affected how he
went out in public, slept, and lived. Plaintiff testified that he no longer had any control of
his bowel movements and that this would result in accidents with his colostomy bag filling
up and breaking during the day. He explained that sleeping became very difficult, as he
would “average about two and a half hours of straight sleep and then . . . get up to change
the [colostomy] bag.” He described instances of how the colostomy bag would accidentally
get caught on something and rip, spilling feces wherever he might be at the time. As a result
of the colostomy bag, Plaintiff’s return to work on his family farm was limited. Following
the surgery, he could not travel because he had issues with the colostomy bag leaking.
Plaintiff still deals with these problems today, as his bowels were never restored to normal
function due to complications with the restorative proctocolectomy.

{36} Plaintiff testified about how the colostomy affected his relationship with his wife and
his teenage daughter, who was just starting high school around the time of the surgeries. The
colostomy impacted Plaintiff’s sexual relationship with his wife. Plaintiff stated that he has
felt “so obligated to his wife for helping [him].” Due to the colostomy and his weakness
from the surgery, Plaintiff had trouble taking an active role in his daughter’s life, and he
could not support her at her athletic events the way he used to.

{37} In order to take down the colostomy, Plaintiff underwent surgery from another doctor
who removed the colon and attached the small intestine to the anus. This attempted
proctocolectomy resulted in serious complications because scar tissue developed around his
rectum and impeded the passage of waste through Plaintiff’s body. He described the
experience as “really septic[, a]nd it’s like if you’re having . . . your worst flu that you’re
living with every day. . . . It was very uncomfortable.” Plaintiff testified that when waste
was capable of passing, “it was real urgent, and I had accidents all the time.” Accidents
became common in bed, and he had great difficulty running to the restroom. He felt
humiliated by the experience and going out in public or traveling was very difficult for him,
as he would need to use the restroom at least twenty times per day. Plaintiff concluded that

                                              12
it “was a real low point in [his] life. . . . [He] was very weak, and the pains of it were
horrendous of blockage and gas, and . . . constant . . . internal problem[s].”

{38} After the proctocolectomy, Plaintiff suffered from an abscess as a complication of
the surgery, which required doctors to insert a tube into his side to drain it. Plaintiff stated
that “it was very painful having that tube stuck out of [his] abscess. And [he] was not
allowed to eat. [He] had to eat through an IV.” As a result, he rapidly lost weight during
the three months with the tube.

{39} Because of the complications of the proctocolectomy, Plaintiff returned to having an
ileostomy bag, so that waste could drain out through his abdominal wall into a bag attached
to a stoma. Plaintiff stated that the bag was permanent and that he continued to live with the
same set of problems he described with the colostomy bag. Although now he is more
familiar with it, he still must take precautions to prevent injury to his stoma and to prevent
bag breakage and leaks. He continues to have problems sleeping, as he must wake up in the
middle of the night several times to change his bag. Plaintiff testified that he no longer can
water ski, is limited when it comes to hunting or fishing, and has been forced to make many
life changes. Plaintiff summarized his colostomy and surgical experience with Defendant
as “traumatic,” indicating that it had a lasting effect on him. He explained that “I go on
vacations, and after four or five days I want to be home. I mean, I just can’t explain what
[twenty] days of . . . fighting for your life in the hospital, going through those processes that
I went through. It’s very horrifying. The recovery time was very horrifying.”

{40} The foregoing evidence provides a clear picture of the nature, extent, and duration
of Plaintiff’s injury, his present and future pain and suffering, his physical disfigurement,
and his loss of enjoyment of life. We hold that there is no disproportionality between the
evidence in the verdict that would shock our conscience. We conclude that, in combination
with his $165,000 in medical expenses, the evidence of this severe, disturbing, and far-
reaching injury substantially supports the jury’s $1,000,000 verdict.

{41} To the extent that Defendant argues that he did not cause the injury, pain, suffering,
disfigurement, or loss of enjoyment of life because they were a product of complications
caused by Plaintiff’s polyposis and abnormally shaped pelvis, we have already addressed
causation. We reiterate that the evidence substantially supports the jury’s finding that
Defendant caused Plaintiff’s initial injury and the resulting damage. To the extent that
Defendant asserts that the “objective evidence” did not support Plaintiff’s assertions that he
lost weight or suffered a great deal of pain, Defendant fails to provide citations to the record
for this proposition. Thus, we do not address this argument. See Santa Fe Exploration Co.
v. Oil Conservation Comm’n, 114 N.M. 103, 108, 835 P.2d 819, 824 (1992) (holding that
where a party fails to cite any portion of the record to support its factual allegation, the Court
need not consider its argument on appeal). We hold that substantial evidence ultimately
supports the verdict.

2.      There is No Indication of Passion, Prejudice, Partiality, Sympathy, Undue

                                               13
       Influence, or a Mistaken Measure of Damages on the Part of the Fact Finder

{42} Second, Defendant contends that the timing surrounding the return of a verdict by
the jury, coupled with the amount of the judgment, created a suspicion and impression of
juror misconduct and thus tainted the verdict. In this case, jury deliberations began on
August 28, 2009, at 8:30 a.m. At 12:45 p.m., the jury advised the district court that they
were deadlocked six to six. The district court called the jury into open court and reiterated
to the jury that they are the judges of the facts and must deliberate with each other only after
impartial consideration of the evidence. At 4:55 p.m., the jury advised the court that they
were still deadlocked seven to five. The district court then told the jury to “keep us
advised.” At 6:52 p.m., the jury advised that it was still deadlocked seven to five, although
one juror was considering moving. In response, the district court noted that there was no
question posed that the court could answer. At 8:35 p.m., the jury sent the following note
to the judge:

               After reviewing the information on the case[,] we are no closer to
       reaching the required number of [ten] people to agree. Currently[,] the count
       stands at [seven to five] and we have been deliberating for [twelve] hours[.]
       At what point[,] do we stop attempting to reach a verdict that [ten] of us can
       agree[?] The people are tired, hungry[,] and f[r]ustrated[.] We have only
       changed one vote during the [twelve] hours.

The district court and the parties then agreed that the jury should be brought back into the
courtroom, a mistrial declared, and the jury sent home. Shortly thereafter, the bailiff
knocked on the jury room door in order to bring them back to open court, and the jury
advised the bailiff that there had been a change and that they were coming to an agreement.
When the court relayed this news to the parties, Defendant moved for the court to declare
a mistrial and requested that the bailiff question the jury as to what caused the change. The
court denied the motion. Sometime around 9:20 p.m., the jury returned to the courtroom and
rendered a verdict against Defendant in the amount of $1,000,000.

{43} Defendant’s argument with regard to passion, prejudice, partiality, sympathy, undue
influence, or a mistaken measure of damages on the part of the fact finder can be broken into
two contentions. First, Defendant argues that the above-stated facts indicate that the jury did
not have sufficient time to reach a verdict and consider a verdict amount and, thus, the
verdict was unreliable. Second, Defendant contends that the timing supports a conclusion
that there was a quotient verdict. We address each in turn.

{44} Citing Skinner v. Total Petroleum, Inc., 859 F.2d 1439 (10th Cir. 1988) (per curiam),
superceded by statute as stated in Guillory-Wuerz v. Brady, 785 F. Supp. 889 (D. Colo.
1992), Defendant argues that this time line, “particularly beginning with the note the [c]ourt
received at 8:35 p.m. . . . that the jury felt they had an agreement, was sufficient for the
[d]istrict [c]ourt to arrive at a conclusion of impropriety, and grant a new trial.” In Skinner,
the plaintiff sued his employer for wrongful termination and was awarded $3,945.48 by the

                                              14
jury. Id. at 1441-42. The plaintiff moved for a new trial because this amount was only a
small fraction of the damages claimed by the plaintiff. Id. at 1442. The district court denied
the motion, “yet thereafter awarded [the plaintiff] over $40,000[] as compensation for
backpay and lost benefits.” Id. at 1445. The Tenth Circuit Court of Appeals, in holding that
the district court abused its discretion in failing to grant the plaintiff’s motion for a new trial,
evaluated whether the jury verdict was “the result of jury compromise[.]” Id. The court
stated that “a damages award that is grossly inadequate, a close question of liability, and an
odd chronology of jury deliberations are all indicia of a compromise verdict.” Id. at
1445-46. The court concluded that the $3,945.48 represented only a small fraction of the
damages asserted by the plaintiff and that there was no evidence in the record as to why the
jury chose to calculate the damages the way it did. Id. at 1446. The court reasoned the
pattern of jury deliberations was suspect because the jury told the court it could not reach
a unanimous decision shortly before its lunch break and, within two hours after the lunch
break, the jury returned its verdict. Id. The court held that “[t]his, coupled with the fact that
the district court, by awarding substantially greater damages in its Title VII judgment, thus
implicitly concluding that the jury’s backpay award was inadequate, supports our conclusion
that the district court’s denial of [the plaintiff’s] motion for new trial was an abuse of
discretion.” Id. In concluding that all three indicia were present in the case, the Tenth
Circuit reversed. Id.

{45} First, Skinner is not binding on this Court and, more importantly, is not on point or
persuasive because it engages in a juror compromise analysis not relevant to the case at bar.
The reversal of the jury award in Skinner is based upon several factors, only one of which
is the chronology of events associated with the jury verdict. Unlike Skinner, we are not
evaluating the jury verdict in this case for a compromise verdict. No evidence supports a
conclusion that the jury verdict was suspect. However, Defendant’s argument is otherwise
deficient. As explained above, unlike the evidence in Skinner, substantial evidence supports
the verdict amount in this case. Moreover, the district court did not adjust the verdict for any
other reason than to comply with the statutory cap on medical malpractice damages as it
indicated in its order. We conclude that juror passion, prejudice, partiality, sympathy, undue
influence, or a mistaken measure of damages has not been established by Defendant.

{46} Second, Defendant contends that the period of time between the jury’s note and the
interval in which they thought they had an agreement was insufficient “to reach a verdict and
then subsequently consider the verdict amount.” Defendant states:

                 The timing supports a conclusion that the jury only had time to add
        the amount indicated by the individual jurist, divide by eleven, and round up.
        . . . [W]hen there is no time for each juror to take the opportunity to approve
        of, to reject, or to discuss the results, as was the case here, the verdict falls
        within the definition of a prohibited quotient verdict.

The method of addition and division of the jurors’ individual verdicts, “by itself, is not
improper and does not brand the result as a quotient verdict.” Bd. of Comm’rs of Doña Ana

                                                15
Cnty. v. Gardner, 57 N.M. 478, 490, 260 P.2d 682, 689 (1953), superseded by statute as
stated in Yates Petroleum Corp. v. Kennedy, 108 N.M. 564, 568, 775 P.2d 1281, 1285
(1989). Rather, a quotient verdict occurs when the jurors agree in advance “to accept
one-twelfth of the aggregate amount of their several estimates as their verdict, without
subsequent reconsideration.” Gardner, 57 N.M. at 490, 260 P.2d at 689. In essence,
Defendant contends that we can infer there was an agreement to average each juror’s
individual verdict without subsequent consideration based upon the fact that only forty-five
minutes lapsed from the jury’s note, indicating that it was deadlocked until the time it gave
its verdict.1

{47} We disagree and will not make this inference. “Absent express evidence of such a
prior agreement, the presumption of the law is that the jury behaved properly.” Id. at 493,
260 P.2d at 691. Defendant cites no express evidence demonstrating that there was any
impermissible agreement. Tentative inferences of a quotient verdict made by Defendant are
insufficient proof to overturn a jury verdict award. Defendant’s failure to provide express
evidence of an agreement is fatal to his argument.

{48} We therefore cannot conclude that the verdict, which was supported by substantial
evidence, was tainted by passion, prejudice, partiality, sympathy, undue influence, or a
mistaken measure of damages on the part of the fact finder. We affirm the jury’s verdict.

D.      The Cap on Medical Malpractice Damages is Constitutional

{49} Plaintiff preserved four constitutional challenges to the cap on damages in the Act.
Specifically, he contends that the cap infringes on the right to a jury trial and is in violation
of the separation of powers doctrine under the New Mexico Constitution. In addition, he
contends that the cap violates equal protection and substantive due process under both the
New Mexico and United States Constitutions. We begin by reiterating the long-standing
presumption that acts of the Legislature are constitutional and that challenges must establish
unconstitutionality beyond all reasonable doubt. City of Albuquerque v. Jones, 87 N.M. 486,
488, 535 P.2d 1337, 1339 (1975); ACLU of N.M. v. City of Albuquerque, 2006-NMCA-078,
¶ 10, 139 N.M. 761, 137 P.3d 1215. We address each argument in turn.

1.      The Cap Does Not Violate the Right to a Trial by Jury



        1
         We note that Defendant argues that less time passed between the note and
consensus. Defendant contends that the jury indicated it had an agreement at 8:52 p.m. and,
thus, the total amount of time that had passed was seventeen minutes. We disagree. At 8:52
p.m., the jury indicated that they were coming to an agreement, not that there was an
agreement and a verdict amount decided upon. We therefore examine Defendant’s
contentions about the improper verdict amount based upon the time when the jury actually
gave their verdict at 9:20 p.m.

                                               16
{50} The Act expressly provides that “[e]xcept for punitive damages and medical care and
related benefits, the aggregate dollar amount recoverable by all persons for or arising from
any injury or death to a patient as a result of malpractice shall not exceed six hundred
thousand dollars ($600,000) per occurrence.” Section 41-5-6(A). Plaintiff contends this cap
violates his constitutional right to have a jury determine his damages under the New Mexico
Constitution. We disagree. When the Legislature adopted the Act almost thirty-seven years
ago in 1976, it created an entirely new statutory cause of action that was not recognized
under the common law. Thus, we conclude that the Act’s cap on damages does not violate
the constitutional right to a jury trial protected by the New Mexico Constitution.

{51} Article II, Section 12 of the New Mexico Constitution provides “[t]he right to trial
by jury as it has heretofore existed shall be secured to all and remain inviolate.” In State ex
rel. Bliss v. Greenwood, 63 N.M. 156, 161, 315 P.2d 223, 226 (1957), our Supreme Court
explained that through Article II, Section 12,

    the Constitution continues the right to jury trial in that class of cases in which it
    existed either at common law or by statute at the time of the adoption of the
    Constitution . . . . And, as we view the matter, the phrase as it has heretofore existed
    refers to the right to jury trial as it existed in the Territory of New Mexico at the time
    immediately preceding the adoption of the Constitution.

Greenwood, 63 N.M. at 161, 315 P.2d at 226 (internal quotation marks and citations
omitted). In making a determination about whether the right to trial by jury exists in a
specific context, we engage in two related inquiries. First, “we must consider whether such
an action fits within that ‘class of cases’ in which the right [to a jury trial] existed either at
common law or by statute at the time of the adoption of our constitution.” State ex rel.
Human Servs. Dep’t v. Aguirre, 110 N.M. 528, 529-30, 797 P.2d 317, 318-19; see Lisanti
v. Alamo Title Ins. of Tex., 2002-NMSC-032, ¶¶ 13-15, 132 N.M. 750, 55 P.3d 962. If we
do not answer this question affirmatively, there is no right to a jury trial, and our inquiry
ends. State ex rel. Children, Youth & Families Dep’t v. B.J., 1997-NMCA-021, ¶ 6, 123
N.M. 99, 934 P.2d 293. As noted by the court in Learmonth v. Sears, Roebuck & Co., 710
F.3d 249 (5th Cir. 2013), the “inviolate” guarantee of a jury trial “simply means that the jury
right is protected absolutely in cases where it applies; the term does not establish what that
right encompasses.” Id. at 263. A second related inquiry is “whether the type of case calls
for equitable or legal relief.” B.J., 1997-NMCA-021, ¶ 9; see Aguirre, 110 N.M. at 530, 797
P.2d at 319. Where the relief sought is essentially equitable, there is no right to a jury trial.
Bd. of Educ. of Carlsbad Mun. Sch. v. Harrell, 118 N.M. 470, 482, 882 P.2d 511, 523
(1994). Since we conclude that the Act creates a statutory cause of action that did not exist
at common law, we do not engage in the second inquiry. See id. at 481-82, 882 P.2d at 522-
23.

{52} The historical circumstances leading to passage of the Act are well documented.
Ruth L. Kovnat, Medical Malpractice Legislation in New Mexico, 7 N.M. L. Rev. 5, 7-8
(1976-77), states that the Act was enacted

                                               17
       in response to a widely-held perception that a medical malpractice crisis
       existed in the state. New Mexico was not alone in this perception. In 1975
       and 1976, [forty-five] states enacted some form of legislation to relieve the
       malpractice dilemma. The event which immediately triggered public concern
       in this state was the announced withdrawal, in 1975, of the Travelers
       Insurance Companies as the underwriter of the New Mexico Medical
       Society’s professional liability program. The Company’s withdrawal from
       the insurance market threatened providers of health care in New Mexico with
       a lack of protection against liability claims. Of at least equal importance, the
       withdrawal jeopardized the remedy of a patient suffering because of the
       negligent acts of such a health care provider even though his right to a
       remedy could be established employing ordinary negligence principles.

(Footnotes omitted). Thus, the stated purpose of the Act “is to promote the health and
welfare of the people of New Mexico by making available professional liability insurance
for health care providers in New Mexico.” Section 41-5-2. Against this backdrop, our
Supreme Court has declared that the Act “was enacted by the [L]egislature in order to meet
an insurance crisis, to promote health care in New Mexico by providing a framework for tort
liability with which the insurance industry could operate.” Wilchinsky v. Medina, 108 N.M.
511, 516, 775 P.2d 713, 718 (1989); see Baker v. Hedstrom, 2012-NMCA-073, ¶¶ 22-23,
284 P.3d 400 (recognizing why the Act was adopted), cert. granted, 2012-NMCERT-007,
295 P.3d 600; Roberts v. Sw. Cmty. Health Servs., 114 N.M. 248, 251, 837 P.2d 442, 445
(1992) (same).

{53} To achieve its purposes, the Act adopted by the Legislature creates a new statutory
cause of action, which did not exist when the Constitution was adopted and is not recognized
under the common law. The Act creates a “malpractice claim” against a “health care
provider.” A “malpractice claim” is

       any cause of action arising in this state against a health care provider for
       medical treatment, lack of medical treatment[,] or other claimed departure
       from accepted standards of health care which proximately results in injury to
       the patient, whether the patient’s claim or cause of action sounds in tort or
       contract, and includes but is not limited to actions based on battery or
       wrongful death[.]

Section 41-5-3(C) (1977). In turn, a “health care provider” is

       a person, corporation, organization, facility[,] or institution licensed or
       certified by this state to provide health care or professional services as a
       doctor of medicine, hospital, outpatient health care facility, doctor of
       osteopathy, chiropractor, podiatrist, nurse anesthetist[,] or physician’s
       assistant[.]


                                             18
Section 41-5-3(A). Construing this language, we have previously concluded that potential
defendants under the Act include individuals and entities with which the plaintiff may not
have a physician-patient relationship. Baer v. Regents of Univ. of Cal., 118 N.M. 685, 689,
884 P.2d 841, 845 (Ct. App. 1994) (“[T]he statute’s broad definition of potential defendants
provides significant evidence of the [L]egislature’s intent to impose liability beyond the
context of a physician-patient relationship.”).

{54} Before this statutory cause of action can be filed in court, a plaintiff must first present
the claim to the medical review commission created by Section 41-5-14 to be reviewed.
Section 41-5-15. The administrative duties of the medical review commission are handled
by its director, who is an attorney “appointed by and serving at the pleasure of the [C]hief
[J]ustice of the New Mexico [S]upreme [C]ourt.” Section 41-5-14(E). Following a hearing
conducted before a panel of the medical review commission under procedures statutorily
prescribed in Section 41-5-19, the panel determines whether there is substantial evidence
that malpractice occurred and whether there is a reasonable medical probability that the
patient was injured thereby. Section 41-5-20. If a decision is made in favor of the plaintiff,
the panel, its members, the director of the medical review commission, and the professional
association concerned must assist in retaining a physician qualified in the field of medicine
involved “who will consult with, assist in trial preparation[,] and testify on behalf of the
patient[.]” Section 41-5-23. There is no similar statutory precondition to bringing a
common law action, and the common law has no requirement for a plaintiff to be provided
assistance in securing a medical expert.

{55} In addition to the foregoing, the Act provides its own statute of limitations for
bringing a “malpractice claim.” A “malpractice claim” against a “health care provider” must
be filed “within three years after the date that the act of malpractice occurred,” the only
exception being a minor under the full age of six years who has until his ninth birthday in
which to file. Section 41-5-13. On the other hand, a common law medical malpractice claim
may be brought within three years from the time that the patient discovers, or with
reasonable diligence should have discovered, that a claim exists. See Roberts, 114 N.M. at
252-53, 837 P.2d at 446-47 (concluding that the Legislature intended to insulate a “health
care provider” under the Act from the much greater liability exposure that flows from the
discovery-based accrual date which applies to medical providers not covered by the Act).

{56} In a common law medical malpractice claim, a doctor or entity found to be negligent
is liable for all actual damages proximately caused by the negligence. See Collins ex rel.
Collins v. Perrine, 108 N.M. 714, 719-720, 778 P.2d 912, 917-918 (Ct. App. 1989)
(concluding that an attorney sued for mishandling a medical malpractice claim could have
secured an award of $1,500,000 for medical expenses, lost wages, the nature, extent, and
duration of the injury, including disfigurement, pain and suffering, loss of enjoyment of life,
and shortened life opportunity). However, under the Act, “[a] health care provider’s
personal liability is limited to two hundred thousand dollars ($200,000) for monetary
damages and medical care and related benefits[,]” and any amount due the plaintiff in excess
of this amount “shall be paid from the patient’s compensation fund[.]” Section 41-5-6(D);

                                              19
see NMSA 1978, § 41-5-25 (1997) (creating the patient’s compensation fund to be managed
and administered by the superintendent of insurance from surcharges levied on qualified
health care providers by the superintendent of insurance).

{57} In a common law medical malpractice claim, a successful plaintiff is entitled to
recover the present cash value of all “medical care, treatment[,] and services reasonably
certain to be received in the future.” UJI 13-1804. In contrast, under the Act, a successful
plaintiff who is found to be in need of future medical care “and continuing as long as
medical or surgical attention is reasonably necessary . . . shall be furnished with all medical
care and related benefits directly or indirectly made necessary by the health care provider’s
malpractice[.]” Section 41-5-7(B). Payment “shall be made as expenses are incurred.”
Section 41-5-7(D). Further, when future medical care is awarded, the district court has
continuing jurisdiction to enforce and modify the expenses of that care. Sections 41-5-9, -
10.

{58} When we consider why the Act was adopted, and how the Act as a whole
accomplishes its purposes, we are confident in concluding that the Act created a new
statutory cause of action not recognized under the common law. It is settled that “where the
[L]egislature creates a right of action pursuant to a special statutory proceeding, there is no
right to a jury trial under our constitution unless the statute so provides.” Smith v. First
Alamogordo Bancorp., Inc., 114 N.M. 340, 343, 838 P.2d 494, 497 (Ct. App. 1992). Thus,
the statutory cap limiting damage awards for anything other than punitive damages, medical
care, and related benefits from exceeding $600,000 does not infringe or violate Plaintiff’s
constitutional right to a jury trial under Article II, Section 12 of the New Mexico
Constitution.

2.     The Cap Does Not Violate Separation of Powers

{59} Plaintiff argues that the damages cap violates the separation of powers clause in the
New Mexico Constitution because it usurps the judiciary’s self-regulation and creates an
unappealable remittitur. The separation of powers clause states:

               The powers of the government of this state are divided into three
       distinct departments, the legislative, executive[,] and judicial, and no person
       or collection of persons charged with the exercise of powers properly
       belonging to one of these departments, shall exercise any powers properly
       belonging to either of the others, except [where constitutionally excepted].

N.M. Const. art. III, § 1. “[T]he separation of powers doctrine precludes the [L]egislature
from stepping into the judiciary’s exclusive domain of prescribing the rules of judicial
practice and procedure and similarly precludes the judiciary from overturning or
contradicting a constitutional legislative declaration of substantive law.” In re Daniel H.,
2003-NMCA-063, ¶ 17, 133 N.M. 630, 68 P.3d 176. In arguing that the damages cap
constitutes a form of legislative remittitur, Plaintiff asserts that through the cap on damages,

                                              20
the Legislature infringes on the “rules of judicial practice and procedure.” Id.

{60} In order for a trial court to grant a remittitur, “the exercise of such discretion must
be supported by express reasons, and those reasons must establish the presence of passion,
prejudice, partiality, sympathy, undue influence[,] or some corrupt cause or motive.”
Allsup’s Convenience Stores, Inc. v. N. River Ins. Co., 1999-NMSC-006, ¶ 19, 127 N.M. 1,
976 P.2d 1 (internal quotation marks and citations omitted). Because in a remittitur the court
changes the jury’s verdict, “under current practice[,] it has been held that the court must offer
the plaintiff the alternative of undergoing a new trial.” Id. ¶ 14.

{61} In Wachocki v. Bernalillo County Sheriff’s Department, we evaluated a challenge
based on separation of powers and legislative remittitur to the TCA cap on damages.
2010-NMCA-021, ¶ 49, 147 N.M. 720, 228 P.3d 504. We determined that the cap, “as a
limit on damages for a cause of action created by statute,” does not affect the judicial
branch’s ability to administer its own rules and procedures. Id. We agree with Wachocki’s
reasoning that a statutory cap does not violate the separation of powers doctrine. While
Allsup’s established that it is unconstitutional for a court to change the jury’s verdict without
offering a new trial, there is a distinction between a judge requiring litigants to accept a
reduction of the jury’s verdict and a statute mandating that all litigants must accept a
legislatively reduced verdict. The cap is applied across the board to all litigants and requires
no determination of the proportionality of a particular jury’s response to a particular party.
The cap, therefore, does not violate the doctrine of separation of powers.

3.      The Cap Does Not Violate Equal Protection

{62} Plaintiff argues that the damages cap violates his right to equal protection under the
Fifth Amendment of the United States Constitution made applicable to the states through the
Fourteenth Amendment as well as Article 2, Section 18 of the New Mexico Constitution.
We agree with Defendant that Plaintiff failed to identify a need to diverge from federal
precedent based upon any properly raised assertion of broader protections contained within
the state constitution and, thus, only examine the federal equal protection provision. See
ACLU of N.M., 2006-NMCA-078, ¶ 18.

{63} The Fourteenth Amendment of the United States Constitution provides that states
shall not “deny to any person within its jurisdiction the equal protection of the laws.” U.S.
Const. amend. XIV, § 1. Plaintiff argues that the damages cap creates different classes of
patients depending on whether they may be fully compensated, that the use of intermediate
scrutiny is appropriate under New Mexico case law, and that the Act has not successfully
controlled the costs of malpractice insurance and therefore fails to provide an appropriate
reason for treating injured persons differently. We disagree, apply rational basis review, and
conclude that there is no equal protection violation.

{64} The Act is an economic regulation that requires rational basis review under Duke
Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 83 (1978) (stating that

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“[t]he liability-limitation provision thus emerges as a classic example of an economic
regulation—a legislative effort to structure and accommodate the burdens and benefits of
economic life” and requiring that the law be irrational to be overturned (internal quotation
marks and citation omitted)); Wachocki, 2010-NMCA-021, ¶ 41 (“The interests at stake in
a challenge of the TCA cap are of an economic or financial nature, and this Court is
unconvinced that equal protection rights are affected so substantially that intermediate
scrutiny is warranted.” (alteration, internal quotation marks, and citation omitted)); Trujillo
v. City of Albuquerque, 1998-NMSC-031, ¶ 28, 125 N.M. 721, 965 P.2d 305 (Trujillo III)
(determining that the cap in the TCA is economic legislation under the Duke Power
definition and therefore receives rational basis review); Marrujo v. N.M. State Highway
Transportation Department, 118 N.M. 753, 757-58, 887 P.2d 747, 751-52 (1994) (“The
rational basis standard of review is triggered by all other interests: those that are not
fundamental rights, suspect classifications, important individual interests, and sensitive
classifications. This level of scrutiny applies in economic and social legislation,
classifications based on property use, and business and personal activities that do not involve
fundamental rights.”). Other jurisdictions have reasoned similarly for medical malpractice
caps when faced with an equal protection challenge. See Hoffman v. United States, 767 F.2d
1431, 1437 (9th Cir. 1985); Evans ex rel. Kutch v. State, 56 P.3d 1046, 1055 (Alaska 2002);
Miller v. Johnson, 289 P.3d 1098, 1120 (Kan. 2012); Oliver v. Magnolia Clinic, 85 So. 3d
39, 44 (La. 2012); Robinson v. Charleston Area Med. Ctr., Inc., 414 S.E.2d 877, 888 (W.Va.
1991).

{65} Plaintiff argues that a heightened standard should be used because the cap creates a
classification that does not treat similarly situated people equally. However, the Supreme
Court in Trujillo III stated that the cap in the TCA did not receive heightened scrutiny
because “the interests at stake . . . are of an economic or financial nature,” and that it was not
convinced that equal protection rights were affected by the damages cap. 1998-NMSC-031,
¶ 26. The Supreme Court stated that “[t]he intermediate scrutiny standard is used to assess
legislative classifications infringing important but not fundamental rights, and involving
sensitive but not suspect classes. For example, classifications based on gender and
illegitimacy traditionally have been measured under intermediate scrutiny.” Id. ¶ 15
(internal quotation marks and citations omitted).

{66} Our Supreme Court has previously found that the Act creates “a mere administrative
categorization. It is a class defined by economic and bureaucratic distinctions that are far
removed from racial, religious, or other fundamental categories.” Cummings v. X-Ray
Assocs. of N.M., P.C., 1996-NMSC-035, ¶ 25, 121 N.M. 821, 918 P.2d 1321 (applying the
rational basis test “to legislation directed toward business, social, and financial activities”
such as the Act). The Act distinguishes merely between patients whose injuries are fully
compensable and those who are prevented from receiving their full award by the cap. The
distinction is based on the severity of their injury and not any factor that implicates a
classification such as gender or illegitimacy. See Trujillo III, 1998-NMSC-031, ¶ 15.
Therefore, applying the rational basis test is appropriate.


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{67} Under the rational basis standard, “the burden is on the opponent of the legislation
to prove that the law lacks a reasonable relationship to a legitimate governmental purpose.”
Marrujo, 118 N.M. at 757-58, 887 P.2d at 751-52 (citing Trujillo v. City of Albuquerque,
110 N.M. 621, 628, 798 P.2d 571, 578 (1990) (Trujillo I), and Richardson, 107 N.M. at 693,
763 P.2d at 1158). The Supreme Court in Marrujo noted that this is a high burden for the
party contesting the legislation. 118 N.M. at 758, 887 P.2d at 752 (“[T]hey must
demonstrate that the challenged legislation is clearly arbitrary and unreasonable, not just that
it is possibly so.”). In the light of any facts supporting the reasoning for the legislation, the
court will uphold the statute. Id.

{68} Plaintiff argues that the purposes of the Act are laudable, but that they have not been
accomplished and, therefore, the cap is not rationally related to the Legislature’s stated
purpose. That purpose is “to promote the health and welfare of the people of New Mexico
by making available professional liability insurance for health care providers.” Section 41-
5-2. The Supreme Court has stated that the Act as a whole “achieves the legislative purposes
of assuring that health care providers are adequately insured so that patients may be
reasonably compensated for their malpractice injuries.” Cummings, 1996-NMSC-035, ¶ 28.
The Act was passed in response to an insurance crisis that “arose out of a nationwide
perception that medical malpractice insurance was increasingly becoming unavailable.”
Baker, 2012-NMCA-073, ¶ 22. In response to the crisis, the Legislature limited heath care
providers’ liability through enacting damage caps, shortening the statute of limitations and
mandating an evaluation process by a medical review commission while protecting victims
of malpractice with ongoing coverage of their medical expenses. See id. ¶¶ 24-25. The
Legislature hoped that the limitations on liability would provide an incentive for insurance
companies to continue to provide malpractice insurance.

{69} To show that the Act’s purposes have not been achieved, Plaintiff relies solely on the
affidavit of Donald Letherer, which states that the cap has not controlled the costs of
malpractice insurance and cites supporting statistics. However, this does not meet the
difficult burden a challenger has to show that the legislation is arbitrary and unreasonable
under Marrujo. 118 N.M. at 757-58, 887 P.2d at 751-52. The cap on damages is not an
arbitrary response to the malpractice insurance issues. We hold that the Act is rationally
related to its stated goals and that, therefore, the Act does not violate the equal protection
clause of the United States Constitution.

4.      The Cap Does Not Violate Due Process and Fundamental Fairness

{70} Plaintiff finally argues that, under his substantive due process rights, the cap violates
a doctrine of fundamental fairness. Although he does not define what he means by
“fundamental fairness,” he relies on Garcia ex rel. Garcia v. La Farge, 119 N.M. 532, 541,
893 P.2d 428, 437 (1995), which held that “considerations of fairness implicit in the Due
Process Clauses of the United States and New Mexico Constitutions dictate that[,] when the
[L]egislature enacts a limitations period[,] it must allow a reasonable time within which
existing or accruing causes of action may be brought.” Garcia was a challenge to the

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constitutionality of the statute of limitations in the Act. Because the injury in
Garcia—cardiac arrest of the Garcias’ son—occurred only three months before his parents
ran out of time to sue the doctors who had failed to diagnose his condition, our Supreme
Court held that the Act’s statute of limitations created an unreasonably short period of time
within which the Garcias could bring their suit and that it violated due process. 119 N.M.
at 542, 893 P.2d at 438.

{71} However, Garcia, as a substantive due process case, relies on an analysis of the
fairness of legislative classification. Id. at 537, 893 P.2d at 433. This is the same analysis
that we performed above under Plaintiff’s equal protection argument, and “[s]ince no clear
due process argument is raised, we will simply restate the idea that analysis under the equal
protection clause of the fourteenth amendment is identical to that used under the due process
clauses.” Marrujo, 118 N.M. at 760, 887 P.2d at 754 (alterations, internal quotation marks,
and citations omitted); Duke Power, 438 U.S. at 93 (noting that “equal protection arguments
largely track and duplicate those made in support of the due process claim”). Because
Plaintiff fails to distinguish a separate basis for his substantive due process argument, we
consider it to be included in our equal protection argument and find that the cap does not
violate due process.

III.   CONCLUSION

{72} For the reasons stated above, we affirm the district court’s decisions with relation to
Defendant’s duty to Plaintiff, issuance of jury instructions, and refusal to grant further
remittitur or grant Defendant a new trial. We also affirm the district court’s order reducing
the $1,000,000 verdict because the damages cap contained in the Act is constitutional.

{73}   IT IS SO ORDERED.

                                              ____________________________________
                                              RODERICK T. KENNEDY, Chief Judge

WE CONCUR:

____________________________________
MICHAEL E. VIGIL, Judge

____________________________________
J. MILES HANISEE, Judge

Topic Index for Salopek v. Friedman, No. 30,307

CONSTITUTIONAL LAW
Due Process
Equal Protection

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Separation of Powers
Trial by Jury

JURIES
Right to Trial by Jury

JURY INSTRUCTIONS
Civil Jury Instruction

NEGLIGENCE
Duty
Foreseeability
Personal Injury
Proximate Cause
Standard of Care

REMEDIES
Additur and Remittitur
Loss of Consortium
Pain and Suffering
Proof of Damages

TORTS
Loss of Consortium
Medical Malpractice
Negligence




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