                                             I attest to the accuracy and
                                              integrity of this document
                                                New Mexico Compilation
                                              Commission, Santa Fe, NM
                                             '00'04- 16:29:20 2014.06.04
Certiorari Denied, May 2, 2014, No. 34,449

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMCA-056

Filing Date: February 26, 2014

Docket Nos. 30,926 & 31,004 (consolidated)

TIMOTHY ANDREW RICHTER, Individually,
and as Personal Representative of the Estate of
KATHRYN LESLIE RICHTER, KRISTIN
LESLIE RICHTER, and DAVID JEFFREY RICHTER,

       Plaintiff-Appellant,

v.

PRESBYTERIAN HEALTHCARE SERVICES, and
REGIONAL LAB CORPORATION d/b/a TRI-CORE
LABORATORIES, RICHARD LOVATO, M.D., and
KEITH WINTERKORN, M.D.,

       Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Nan G. Nash, District Judge

Law Office of Stephen Durkovich
Stephen G. Durkovich
Santa Fe, NM

Hunt Law, P.C.
MacKenzie Lee Hunt
Roswell, NM

for Appellant

Butt, Thornton, & Baehr, P.C.
Emily A. Franke
W. Ann Maggiore
Albuquerque, NM


                                        1
Keleher & McLeod, P.A.
Charles A. Pharris
Thomas C. Bird
Marian B. Hand
Heather K. Hansen
Albuquerque, NM

Krehbiel Law Office, P.C.
Lorri Krehbiel
Melanie Frassanito
Albuquerque, NM

Allen, Shepherd, Lewis, Syra & Chapman, P.A.
Ben M. Allen
Richard E. Hatch
Sebastian A. Dunlap
Albuquerque, NM

for Appellees

                                         OPINION

BUSTAMANTE, Judge.

{1}     Kathryn Richter died in 2005 when she developed a heart arrhythmia during surgery
intended to remove a tumor from her adrenal gland. The heart arrhythmia was caused by an
undiagnosed condition called pheochromocytoma. Adding to the tragedy inherent in such
a death, the parties discovered that during the course of a hospitalization in 2001, Mrs.
Richter’s then physicians ordered laboratory tests which were diagnostic of the condition
that caused her death on the operating table. The tests were never read or acted on by her
physicians.

{2}     Plaintiff, Timothy Richter, as personal representative for his wife, brought a wrongful
death action against Presbyterian Healthcare Services (PHS) and Regional Lab Corporation
d/b/a Tri-Core Laboratories (TriCore), alleging negligent delivery of Mrs. Richter’s
laboratory test results in 2001. Plaintiff also brought a medical malpractice action against
the two physicians treating Mrs. Richter at the time of her death, alleging medical negligence
in her treatment. The district court granted some motions for summary judgment in favor
of Plaintiff and some in favor of PHS and TriCore, and granted a partial directed verdict in
favor of Dr. Winterkorn, one of Mrs. Richter’s treating physicians.

{3}     Analysis of the summary judgment rulings requires us to evaluate whether Plaintiff
can assert his claims against PHS and TriCore as matters of “ordinary” negligence not
requiring expert testimony, or whether they of necessity involve professional negligence

                                              2
which cannot be successfully pursued without experts. We conclude that certain aspects of
Plaintiff’s claims do not require expert testimony. We thus reverse the summary judgments
as to those claims and affirm others.1

{4}     We affirm the partial directed verdict in favor of Dr. Winterkorn primarily because
Plaintiff did not present sufficient expert testimony to avoid it.

{5}      Plaintiff also appeals the district court’s decision to include Mrs. Richter’s 2001
physicians on the special verdict form as non-party tortfeasors. This decision allowed the
jury to compare the negligence of the 2001 physicians with that of the 2005 physicians even
though Plaintiff could not seek damages against the 2001 physicians because the statute of
limitations under the Medical Malpractice Act, NMSA 1978, § 41-5-13 (1976), had run.
Concluding that including the 2001 physicians on the verdict form is consistent with New
Mexico’s approach to comparative negligence, we affirm this ruling of the district court.

BACKGROUND

{6}    We provide a short summary of the facts and procedural posture of the case here.
Additional details will be provided as appropriate during discussion of the issues.

{7}     Mrs. Richter was admitted to PHS in April 2001 for treatment and testing related to
cardiac symptoms. On April 16, 2001, Dr. Seligman, one of Mrs. Richter’s physicians,
ordered catecholamine and metanephrine testing on her urine to determine whether she
might have an undiagnosed pheochromocytoma. TriCore was responsible for processing the
results of Mrs. Richter’s urine catecholamine and metanephrine testing (the Lab Results) and
delivering the Lab Results to PHS. TriCore also had the responsibility to deliver the Lab
Results to Mrs. Richter’s physicians, although there is a conflict in the record as to which
of her physicians should have received them.

{8}     Because TriCore did not perform testing of the type requested by Mrs. Richter’s
physician, the sample was shipped to ARUP Laboratories in Utah. The first of the Lab
Results was sent by ARUP to TriCore on Saturday, April 21, 2001, and the second on
Sunday. The first test showed catecholamine levels 150 times higher than normal. ARUP’s
interpretation of the result included the notation “[m]assive elevation of catecholamines . .
. associated with . . . drug interferences, life-threatening illnesses, and neuroendocrine


       1
          This is the third iteration of the Opinion in this case. Appellees Presbyterian
Healthcare Services and Regional Lab Corporation each filed motions for rehearing after the
first iteration was filed. Both motions for rehearing were denied on the merits, but the
Opinion filed on August 26, 2013, was withdrawn and another substituted in its place on
November 4, 2013. On December 10, 2013, Plaintiff filed an unopposed—albeit
late—motion for clarification. The motion is granted and this Opinion is substituted for the
November 4, 2013, iteration.

                                             3
tumors.” The second test showed catecholamine metabolite levels in excess of 100 times
normal. The interpretation provided by ARUP included the notation “Massive elevations
of metanephrine or normetanephrine . . . associated with . . . drug interferences, life-
threatening illnesses, and . . . neuroendocrine tumors.” These levels were diagnostic of
pheochromocytoma.

{9}      Because TriCore did not operate on weekends, TriCore did not actually process the
Lab Results and transmit them to PHS via the TriCore-PHS PACIS computer sharing system
until 7:27 a.m. on Monday, April 23, 2001. TriCore records indicate that a hard copy of the
Lab Results was printed for courier delivery to PHS at 11:06 a.m. that day. The record does
not reveal whether the Lab Results were actually delivered to PHS that day or the next. Mrs.
Richter was discharged from PHS at 2 p.m. on April 23, 2001. The record is unclear as to
whether, at the time of Mrs. Richter’s discharge, her chart was up-to-date or whether it
indicated that her Lab Results were still pending. It appears from the record that Mrs.
Richter’s discharging physician—Dr. Ignacio Garcia—believed her results were still pending
at the time of her discharge.

{10} Approximately four years later, a CT scan ordered by Mrs. Richter’s
gastroenterologist disclosed a mass sitting atop her adrenal gland. Her gastroenterologist
referred Mrs. Richter to Dr. Lovato for surgery to remove the tumor. Prior to surgery, Dr.
Lovato asked Mrs. Richter’s then primary care physician to perform catecholamine
testing—the same test conducted in 2001—to determine if her adrenal tumor was a
pheochromocytoma. Dr. Lovato then scheduled Mrs. Richter for an embolectomy, to be
conducted by Dr. Winterkorn. Dr. Winterkorn conducted the embolectomy before Dr.
Lovato had received the results of the catecholamine testing. Mrs. Richter died while under
the care of Drs. Lovato and Winterkorn due to complications that arose when she developed
an arrhythmia during the embolectomy procedure.

{11} Plaintiff filed suit against PHS, TriCore, Dr. Lovato, and Dr. Winterkorn. Plaintiff
and TriCore litigated at length in the early stages of the case as to whether TriCore was a
qualified health care provider under the Medical Malpractice Act and whether TriCore’s
services constituted medical care under the Act. The district court first denied TriCore’s
motion to dismiss but granted a stay of the litigation and ordered Plaintiff to take his claim
before the Medical Review Commission “for purposes of the procedural prerequisite.”

{12} Plaintiff subsequently filed three motions for summary judgment on the issue of
whether the Medical Malpractice Act applied to his claims. In the first, he argued that
TriCore was not a qualified health care provider under the Act. This motion was denied.
The second motion asserted that the conduct Plaintiff alleged in his complaint did not
constitute medical care under the Act. In the third motion, Plaintiff made additional
arguments for his position that TriCore was not a health care provider under the Act. The
district court heard argument on the second and third motions together. It ruled that
TriCore’s acts in delivering the Lab Results were not medical acts but instead were
“ministerial” acts subject to ordinary negligence or negligence per se review and granted the

                                              4
second motion. Given this determination, the district court decided that the issue of whether
TriCore was a health care provider under the Act was moot and did not rule on the third
motion.

{13} A few days prior to trial, the district court found that “[t]here [are] no genuine issues
of material fact as to the claims of negligence as against PHS and TriCore,” granted
summary judgment in favor of PHS and TriCore, and dismissed the complaints against them.
At the close of Plaintiff’s case in chief, the district court granted a partial directed verdict in
favor of Dr. Winterkorn on Plaintiff’s medical negligence claim regarding Dr. Winterkorn’s
decision to continue the embolization procedure after Mrs. Richter developed an arrhythmia.
During trial on the remaining claims against Drs. Lovato and Winterkorn, testimony was
presented asserting that Plaintiff’s 2001 PHS physicians were comparatively negligent. For
comparative negligence purposes, the 2001 physicians were identified as non-party
tortfeasors on the jury’s special verdict form. The jury returned a verdict against Dr. Lovato
and in favor of Dr. Winterkorn. The jury also found the four 2001 physicians negligent.
Plaintiff timely appealed.

DISCUSSION

{14} On appeal we address four major questions. The first is whether Plaintiff’s claims
against TriCore and PHS sound in ordinary negligence rather than medical malpractice.
Second, we address whether the district court properly granted motions for summary
judgment and dismissal in favor of TriCore and PHS. The third issue is whether the district
court improperly limited opinion testimony by a treating physician about Dr. Winterkorn and
properly directed a verdict in favor of Dr. Winterkorn. The fourth and final issue is whether
the district court erred when it permitted the jury to compare the alleged negligence of non-
parties with the negligence of Drs. Lovato and Winterkorn.

I.      Plaintiff’s Claims of Ordinary Negligence

{15} Before we analyze the summary judgments in favor of TriCore and PHS, we must
address whether Plaintiff’s claims against them can be brought and pursued as “ordinary”
negligence actions not requiring expert testimony. This preliminary discussion is necessary
because, even though the district court apparently analyzed the motions only under an
ordinary negligence standard, TriCore and PHS argued below that Plaintiff’s claims could
only be established through expert testimony. On appeal TriCore requests, pursuant to Rule
12-201(C) NMRA, that we review the district court’s ruling even though it did not file a
cross-appeal on the issue. We agree that Rule 12-201(C) permits us to do so.

{16} PHS also suggests that we overrule the district court’s application of ordinary
negligence standards to it. Although PHS made this argument to the district court, the
district court never ruled specifically on the standard applicable to PHS, and PHS never
invoked a ruling on the issue. Thus, PHS is not on the same footing as TriCore. As such it
is likely that PHS did not preserve the issue sufficiently to rely on Rule 12-201(C).

                                                5
Nevertheless we shall address the issue because it is otherwise properly before us as to
TriCore.

{17} Our analysis leads us to conclude that Plaintiff can proceed on some of his claims
relying on an ordinary negligence theory and eschewing expert testimony. But the range of
acts and failures to act he can pursue as an ordinary negligence claim is narrower than he has
attempted thus far. We explain.

{18} We start by noting that New Mexico courts have not previously considered the
particular claims brought here. Plaintiff does not assert that the testing was improperly
conducted or interpreted. He is concerned solely with the proper delivery of the Lab Results.
None of our prior cases have dealt with a claim of negligence in the delivery of medical
laboratory test results to a patient’s physicians. To that extent we are presented with a
question of first impression. The issue provides us an opportunity to explore the general
problem of how to distinguish between issues and claims which must be proven by expert
testimony and those which are susceptible to proof without expert testimony.

{19} Our cases recognize that “[i]t is not mandatory in every case that negligence of the
doctor be proved by expert testimony . . . .” Pharmaseal Labs., Inc. v. Goffe, 1977-NMSC-
071, ¶ 17, 90 N.M. 753, 568 P.2d 589. This notion can be extrapolated to most if not all
circumstances involving medical treatment. See Wade R. Habeeb, Annotation, Necessity of
Expert Evidence to Support Action Against Hospital for Injury to or Death of Patient, 40
A.L.R. 3d 515 (1971). The idea is reflected in our uniform jury instructions describing the
duties of hospitals and doctors. The first paragraph of UJI 13-1119A NMRA explicitly
refers to an “ordinary care” standard while the second paragraph describes situations
involving the possession and use of special knowledge and skills which require expert proof.
The Use Note to UJI 13-1119A cautions that the second paragraph “should be omitted in
those cases in which the court determines that expert testimony is not required and
negligence can be determined by resort to common knowledge ordinarily possessed by the
average person.” This direction echoes language used in Goffe, 1977-NMSC-071, ¶ 17,
describing when expert testimony is not necessary. See also UJI 13-1101 NMRA cmt. 5
(“The final paragraph is included in brackets to make it clear that expert testimony is not
required if the jury can decide[] the matter based on its common knowledge without the need
for medical or scientific expertise.”).

{20} The difficulty with these formulations is that they do not provide much guidance for
trial courts to use in making the assessment. The language is instead quite circular: expert
testimony is required—except when it is not.

{21} We have not found any New Mexico authority involving tort claims that expands on
the Goffe language. Our Supreme Court did consider the meaning of the phrase
“professional services” in the context of deciding whether a doctor’s sexual assault of a
patient in the course of treatment would come within the coverage of a malpractice insurance
policy. N.M. Physicians Mut. Liab. Co. v. LaMure, 1993-NMSC-048, ¶ 12, 116 N.M. 92,

                                              6
860 P.2d 734. We, of course, appreciate the difference in context between liability insurance
coverage and a tort action. But we believe the Supreme Court’s approach to defining
covered “professional services” offers a path to a workable test for distinguishing medical
or professional negligence claims from ordinary negligence claims.

{22} In resolving the coverage issue, the Supreme Court cited approvingly to a definition
found in Marx v. Hartford Accident & Indemnity Co., 157 N.W.2d 870 (Neb. 1968). The
Nebraska court defined “professional services” in large part using a functional test, as
follows:

       Something more than an act flowing from mere employment or vocation is
       essential. The act or service must be such as exacts the use or application of
       special learning or attainments of some kind. . . . In determining whether a
       particular act is of a professional nature or a ‘professional service’ we must
       look not to the title or character of the party performing the act, but to the act
       itself.

Id. at 871-72. We interpret this as a functional test because it is concerned with the skills,
knowledge, and acts necessarily used to decide on a course of action. If the act involves the
use of specialized knowledge or skill to make a judgment call as to the appropriate thing to
do or not do, expert testimony will likely be needed to assess the resultant act or failure to
act. If not, expert testimony is not required.

{23} This functional inquiry gives content to the idea that “[n]ot all cases involving health
or medical care automatically qualify as medical malpractice claims.” Estate of French v.
Stratford House, 333 S.W.3d 546, 556 (Tenn. 2011). It has been used in settings including
nursing homes, psychiatric facilities, and hospitals. See id. at 556, 559 (holding that
negligence in providing basic care for residents which did not involve the exercise of
medical judgment or skill did not constitute an instance of malpractice and could be proven
without expert testimony); Joseph v. Univ. Behavioral LLC, 71 So. 3d 913, 917 (Fla. Dist.
Ct. App. 2011) (stating that for a claim to constitute medical malpractice “[t]he wrongful act
must be directly related to the improper application of medical services and the use of
professional judgment or skill”); Gould v. N.Y. City Health & Hosps. Corp., 490 N.Y.S.2d
87, 89 (N.Y. Sup. Ct. 1985) (“If a hospital’s employee’s acts require professional skill and
judgment, then the complaint sounds in malpractice for which the hospital may be held
liable. Otherwise, the triers of fact are presented with issues of ordinary negligence.”).

{24} Of course, whether a claim involves ordinary negligence or medical malpractice is
a fact-dependent inquiry. See UJI 13-1119A Comm. cmt. (“Distinguishing claims that need
not be established by expert testimony from those that must is a task to be accomplished by
the trial judge on a case[-]by[-]case basis.”); see also Estate of French, 333 S.W.3d at 556
(“[W]hether claims should be characterized as ordinary negligence or medical malpractice
claims obviously depends heavily on the facts of each individual case.”); Joseph, 71 So. 3d
at 917 (“A court must, on a case-by-case basis, look to the allegations in the complaint when

                                               7
determining whether a suit raises an issue of ordinary negligence or medical malpractice.”).

{25} We see no reason why this functional approach should not be applied to TriCore and
PHS. And, in fact, it appears that the district court applied a variant of this analysis when
it ruled that TriCore’s acts or failures to act in delivering the Lab Results were not medical
but, rather, were “ministerial” in nature.

A.      TriCore

{26} We apply the functional approach to TriCore first. Medical testing laboratories
undoubtedly have a general duty to deliver reports generated by them. This statement, of
course, merely begs the more vexing questions of who should receive copies and the
reasonableness of the timing of the delivery. Though it does not involve a testing laboratory
directly, Schindel v. Albany Medical Corp., 625 N.E.2d 114 (Ill. App. Ct. 1993) is
illustrative. In Schindel, the plaintiff sought damages for a ruptured fallopian tube caused
by an ectopic pregnancy. Id. at 115. The clinic did not contact the plaintiff with the results
of the lab report that indicated the pregnancy for a period of eight days. Id. at 115-16. The
plaintiff presented no expert testimony concerning the significance of the delay. Id. at 118.
On appeal the jury verdict in the plaintiff’s favor was overturned because of the lack of
expert testimony. Id. at 122. The court noted that “it is the urgency of the danger involved
and the likelihood and extent of harm to the plaintiff which would dictate the extent of [the]
defendant’s duty to notify [the] plaintiff.” Id. at 120. Evaluation of the urgency of the
situation required the exercise of medical judgment and had to be established by expert
testimony. See also Sinclair v. Quest Diagnostics, Inc., No. 000062320S, 2000 WL 573186,
at *3 (Conn. Super. Ct. Apr. 25, 2000) (mem.) (holding that expert testimony was required
to establish that a two week-delay in conducting and reporting the results of an
amniocentesis was negligence).

{27} On the other end of the scale is Morgan v. Laboratory Corp. of America, 844 N.E.2d
689 (Mass. App. Ct. 2006). In Morgan, the plaintiff brought a negligence claim against a
testing laboratory for failing to provide prompt notice to his doctor that the laboratory’s
analysis of his blood sample had revealed life-threatening changes in the anticoagulation
level of his blood. Id. at 695-96. The defendant argued that there was insufficient evidence
of negligence because the plaintiff failed to present expert testimony that its conduct
“breach[ed] the proper standard of care.” Id. at 695. The court disagreed, stating “Here, the
plaintiffs’ actions against [the defendant] concerned neither an allegation of a missed
diagnosis nor the failure to institute policies and procedures for the reporting of life-
threatening results. Rather, it was based upon alleged inadequacies in the actual reporting
of indisputably urgent test results.” Id. “Moreover, . . . the reporting responsibility lay with
[the defendant’s] administrator, whose job functions required no special training or skill
comparable to that of a physician or other licensed professional.” Id. The court held that
because of the specific allegations in the complaint, “[t]he jury were thus capable of
determining, without the assistance of an expert, whether or not [the defendant’s] conduct
was reasonable under the circumstances.” Id. at 695-96.

                                               8
{28} We draw from these cases two principles. First, challenges to the timing of the
delivery of laboratory reports will normally require expert testimony, except when the
required timing is set by a known standard such as internal policy, contract, or governmental
regulation. Second, expert testimony will not be required if the asserted negligence is based
on a standard of reasonable care which does not require professional interpretation. For
example, when—as is the circumstance in this case—there is an established routine
procedure regarding the delivery of reports to certain doctors, any asserted negligence in
failing to deliver the reports to the specific doctors would be based on a breach of the
standard of reasonable care because no professional interpretation would be needed
regarding the requirement that the reports be delivered to the ultimate recipients.

{29} This summary has obvious consequences in this case. Many of Plaintiff’s points or
instances of asserted negligence involve the timing of delivery of the Lab Reports. Timing
challenges almost by definition require an assessment of urgency, and that assessment
requires expert testimony. Similarly, Plaintiff’s points about the efficiency and design of the
delivery system, to the extent they are prompted by timeliness concerns, require expert
testimony. Thus, expert testimony would be required where Plaintiff’s claims addressed the
timeliness or urgency of the delivery of the Lab Reports, including any timeliness claims that
involve the efficiency and design of TriCore’s delivery system.

B.     PHS

{30} We turn now to the claims against PHS. As we noted above, they are different from
those against TriCore.2 Plaintiff cites no case determining that hospitals in general have a
duty to deliver laboratory reports to their patients’ physicians—at least not the kind of duty
laboratories such as TriCore have. Our research has revealed authority that hospitals have
no duty to “personally notify every patient’s treating physician of every test result, even
when [the] patient has been discharged.” Edwards v. Brandywine Hosp., 652 A.2d 1382,
1387 (Pa. Super. Ct. 1995)

{31} But hospitals do have a clearly established duty to maintain their patients’ medical
charts in good order, and that duty includes posting completed lab tests as received. The
court in Johnson v. Hillcrest Health Center, Inc., 2003 OK 16, 70 P.3d 811, aptly described
the function and importance of the patient chart.

       The obvious purpose of the charting requirement is to provide a record to
       assist the physician in properly treating the patient. Physicians depend on the


       2
          In saying this we are not forgetting an undecided motion for summary judgment on
joint venture which the district court deemed moot after it granted summary judgment in
favor of PHS and TriCore. We, of course, venture no opinion as to the merits of the motion
or its effects on the potential liability of TriCore and PHS if granted.


                                              9
       reliability and trustworthiness of the chart. As far as a hospital is concerned,
       there is no more important record than the chart for indicating the diagnosis,
       the condition, and the treatment required for patients. In our view, no degree
       of knowledge or skill is required other than that possessed by the average
       person to conclude that the applicable standard of care required the hospital
       to include completed lab tests and lab reports in the patient’s chart to aid the
       doctor in diagnosing and treating the patient—regardless of whether lab tests
       are made available on the computer.

Id. ¶ 15 (footnote omitted).

{32} We agree with the Johnson court’s conclusion that assessing a hospital’s compliance
with its charting duty does not require expert testimony. Thus this portion of Plaintiff’s
claims against PHS can be brought as an ordinary negligence claim. In this context
timeliness in the form of maintaining the chart does not implicate the kind of urgency that
would require the exercise of professional judgment.

II.    Summary Judgment in Favor of Tricore and PHS Reversed in Part

{33} PHS and TriCore both filed motions for summary judgment in response to Plaintiff’s
complaint. Their motions for summary judgment asserted that no breach of duty had
occurred, that Plaintiff’s claim must be addressed as medical negligence rather than ordinary
negligence, and that Plaintiff had failed to present a qualified expert to testify regarding the
proper duty of care required for medical negligence. The district court granted the motions
for summary judgment, finding that Plaintiff “failed to make a showing of any breach by
either [PHS] or TriCore of its duty of care in reporting lab results.” We review de novo a
district court’s grant of summary judgment, construing the evidence most favorably to the
non-moving party. City of Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-NMCA-
081, ¶ 7, 146 N.M. 717, 213 P.3d 1146; Headley v. Morgan Mgmt. Corp., 2005-NMCA-045,
¶ 5, 137 N.M. 339, 110 P.3d 1076. “Summary judgment is appropriate where there are no
genuine issues of material fact and the movant is entitled to judgment as a matter of law.”
Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “If the
facts are undisputed and only a legal interpretation of the facts remains, summary judgment
is the appropriate remedy.” Bd. of County Comm’rs v. Risk Mgmt. Div., 1995-NMSC-046,
¶ 4, 120 N.M. 178, 899 P.2d 1132. “Summary judgment should not be granted when
material issues of fact remain or when the facts are insufficiently developed for
determination of the central issues involved.” Vieira v. Estate of Cantu, 1997-NMCA-042,
¶ 17, 123 N.M. 342, 940 P.2d 190.

{34} Our discussion above concerning the type of claims Plaintiff can pursue without
relying on expert testimony simplifies our task in considering the propriety of the summary
judgments. We address TriCore first.

A.      TriCore

                                              10
{35} The great majority of TriCore’s “Statement of Uncontroverted Facts” concerns
matters of timing. Some address the lack of any internal standards for the timing of delivery
(nos. 7-10) while others address the idea that nothing about the Lab Results themselves
imposed any need for action outside TriCore’s routine practice (nos. 11-17). In accordance
with our discussion above, the matters involving relative urgency require expert testimony.
Because Plaintiff presented none, summary judgment was appropriate as to those claims.
With regard to TriCore’s compliance with internal standards of promptness, we agree that
Plaintiff did not demonstrate a question of fact and summary judgment was appropriate as
to these claims also.3

{36} The issue as to which of Mrs. Richter’s physicians should have received a copy of
the Lab Results requires a different result. TriCore noted in its motion for summary
judgment that one of Plaintiff’s claims was that “TriCore was obligated to notify Plaintiff’s
physicians of abnormal test results personally.” TriCore’s motion for summary judgment
thereafter simply ignores the issue of who should have received the Lab Results. It could
be argued that TriCore did not even make out a prima facie case for summary judgment on
this issue. We need not rely on that rubric to resolve the issue, however. Plaintiff
demonstrated an issue of material fact by citing testimony from PHS’s vice president for
operations and TriCore’s medical director that as a matter of routine procedure, the Lab
Results should have been delivered to the ordering physician and the treating physicians.
The ordering physician was Dr. Seligman. It is undisputed that he did not receive a copy of
the Lab Results at any time from 2001 until after Mrs. Richter’s death. Dr. Seligman
described the Lab Results as indicating significant abnormalities requiring further
evaluation. He also characterized the Lab Results as reflecting “critical values.” TriCore’s
medical director did not know why the ordering and treating physicians did not receive a
copy of the Lab Results.

{37} This record is sufficient for us to determine that summary judgment was improper
with regard to TriCore’s delivery of the Lab Results to all the physicians who should have
received them. No expert testimony is needed to prove this claim. See Morgan, 844 N.E.2d
at 695. And, as is the norm with ordinary negligence cases, issues as to breach and causation
are within the realm of the jury to decide. Lessard v. Coronado Paint & Decorating Ctr.,
Inc., 2007-NMCA-122, ¶ 27, 142 N.M. 583, 168 P.3d 155. TriCore’s negligence regarding
the delivery of the Lab Results to physicians who should have received them must now be
addressed by the district court on remand.

B.     PHS


       3
         TriCore also argued in its Answer Brief that the district court erred in not granting
its motion to dismiss based on the statute of limitations under the Medical Malpractice Act.
Because we hold that the claims based on the Act were properly dismissed, we need not
address the issue of the statute of limitations.


                                             11
{38} We turn now to PHS. PHS’s motion for summary judgment relied on four basic
points: (1) In the absence of results reflecting critical values under the Clinical Laboratory
Improvement Amendments (CLIA), 42 C.F.R. § 493.1291(g) (2012), it had no duty to give
any notice to Mrs. Richter’s physicians; (2) PHS fulfilled whatever duty it had by making
the test results available to the physicians by computer access on the morning of April 23,
2001, and by placing the chart copy in the patient’s chart when it was delivered by TriCore
Laboratory; (3) its Rule 11-406(A) NMRA evidence of its habitual handling of lab results
created a presumption that it followed that habit in this case; and (4) Mrs. Richter’s
physicians had their own duty to follow up on the test results.

{39} PHS’s argument concerning its duty under CLIA is well taken. Plaintiff does not
argue at this point that the Lab Results met the CLIA standard for critical values and its
attendant need for immediate delivery of results. To the extent the summary judgment was
based on this ground, it was proper.

{40} We disagree that summary judgment was proper as to the second ground. While it
is undisputed that the Lab Results were transmitted to the PHS PACIS computer at 7:17 a.m.
on April 21, Plaintiff raised at least two questions of fact as to whether that delivery was
effective and whether it was properly handled by PHS upon receipt. The question of
effectiveness arises from the unresolved issue of whether and how physicians had access to
or used the computer records to review patient records. Plaintiff presented testimony from
a TriCore-designated expert that in 2001 PHS did not have an electronic medical record from
which physicians would retrieve lab results. Plaintiff also presented the testimony of a
physician who stated that in 2001, physicians did not use the computer to access lab results.
This testimony, combined with the undisputed fact that in 2001 the printed or hard copy of
lab results was the official copy of such results, creates a classic question of fact whether
receipt of the Lab Results on PHS’s computer system by itself constituted compliance with
its duty to exercise ordinary care to keep patient charts up to date. Johnson, 2003 OK 16,
¶¶ 15-18.

{41} Perhaps the most salient and difficult question regarding PHS’s position, however,
is that it did not demonstrate that the computer system—if it had been checked—would have
informed Mrs. Richter’s physicians that the Lab Results were in. There is an unresolved
question whether the computer system reflected that the Lab Results were “pending”
throughout the day that Mrs. Richter was discharged. The “pending” notation was a message
to everyone that tests had been ordered but results not yet received. PHS did not make an
actual showing or present evidence that receipt of the Lab Results on PHS’s computers
resulted in a change of the “pending” signal in the system.

{42} Whether the computer continued reflecting that the Lab Results were “pending” and
whether the system should have been designed to reflect a “received” signal upon transfer
of results from TriCore does not require expert testimony. And they are questions of
material fact making summary judgment improper with regard to PHS’s duty to reasonably
maintain its patient charts.

                                             12
{43} Similarly, there are questions of fact raised by the record which undermine PHS’s
Rule 11-406(A) habit evidence. “Courts may accept Rule 406 [(habit)] evidence at the
summary judgment stage as providing an inference that a routine practice was actually
carried out. Hancock v. Am. Tel. & Tel. Co., 701 F.3d 1248, 1261-62 (10th Cir. 2012), cert.
denied, _ U.S. _, 133 S. Ct. 2009 (2013). PHS’s habit evidence permits an inference that it
followed its ordinary practices in handling Mrs. Richter’s Lab Results, which “would have
resulted in delivery of a hard copy of the results to the nursing station . . . on April 23rd or
24th of 2001, where a nurse or a ward clerk would file the results in [Mrs.] Richter’s patient
chart.” But even if we accept that the habit evidence created this inference, Plaintiff
provided evidence to rebut it. Plaintiff asserted below that “[t]he hard copy of Mrs. Richter’s
Lab Results actually found in her archived chart [is dated] May 1, 2001, more than a week
after her discharge.” Plaintiff also pointed to PHS’s admission that it “cannot ascertain from
the available records when the test results were communicated.” In addition, although not
addressed in the response to motion for rehearing, Plaintiff stated in his reply brief that none
of Mrs. Richter’s treating physicians had ever “seen Mrs. Richter’s test results at any time
until after her death in 2005[.]” We view these facts in the light most favorable to trial.
Woodhull v. Meinel, 2009-NMCA-015, ¶ 7, 145 N.M. 533, 202 P.3d 126. Thus, even if
PHS’s habit evidence permitted an inference in its favor, Plaintiff provided facts sufficient
to create a genuine issue of fact as to whether the Lab Results were actually received and
filed at the nurses’ station before Mrs. Richter was discharged. Thus, judgment as to
whether PHS properly handled the hard copy of the results was improper.

{44} In its motion for rehearing PHS argues that reliance on Johnson v. Hillcrest Health
Care Center, Inc., 2003 OK 16, 70 P.3d 811, is improper because “[Plaintiff’s] case never
rested on any claim or evidence showing that PHS failed to file the test results properly after
delivery of the paper copy by Tri-Core’s courier to [Mrs.] Richter’s nursing station” and that
“[Plaintiff’s] case against PHS alleged improper delivery management practices, not
inadequate filing once [L]ab [R]esults were delivered.” This argument hinges on an overly
narrow interpretation of the term “charting requirement” to include only the actual filing of
results. As used in Johnson and in this Court’s Opinion, “charting” includes both delivery
and filing of results in the chart. See id. 2003 OK 16, ¶ 9 (stating that the plaintiff there
argued that the hospital “alleged failure to post the lab tests and the lab report to [the
plaintiff’s] husband’s chart and/or call them to the doctor’s attention before [the plaintiff’s
husband] was discharged” was negligent” (emphasis added)); Opinion ¶ 32 (stating,
“hospitals do have a clearly established duty to maintain their patients’ medical charts in
good order, and that duty includes posting completed lab tests as received”). Similarly, as
PHS acknowledges elsewhere in its motion, Plaintiff alleged—with support in the
record—that the results were neither delivered nor filed. In addition, PHS appears to
acknowledge that “charting” involves both delivery and filing by repeatedly arguing that its
habit evidence demonstrated that it did both. This argument is therefore unavailing.

{45} Finally, we reject PHS’s fourth argument—that the physicians’ duty to follow up on
ordered lab tests acts to shield it from liability entirely. We agree that the physicians had a
duty to follow up. But any failure on their part to comply with their independent duty cannot

                                              13
absolve PHS of its failure to comply with its duties. At most the negligence of the
physicians is subject to a comparative analysis. See Martinez v. First Nat’l Bank of Santa
Fe, 1987-NMCA-114, ¶ 12, 107 N.M. 268, 755 P.2d 606.

{46} We conclude that summary judgment in favor of PHS was proper to the extent that
it was granted based on an absence of duty to report under CLIA. However, summary
judgment as to the use of the computer system to report results was improper because there
were genuine issues of material fact on how that system functioned or should have
functioned. Finally, PHS was not relieved of its duty to Mrs. Richter simply because the
ordering physicians had a duty to follow up on the Lab Results. Further proceedings
regarding PHS’s negligence must also be addressed by the district court on remand.

III.   Rulings Related to Dr. Winterkorn

{47} Plaintiff articulated three theories of malpractice against Dr. Winterkorn. Two claims
involving presurgery decisions were submitted to the jury. The district court granted Dr.
Winterkorn’s motion for directed verdict on the third theory—that Dr. Winterkorn was
negligent in continuing with the surgery after Mrs. Richter developed an arrhythmia during
the surgery.

{48} Plaintiff asserts that the district court improperly prevented “Dr. Lovato from
testifying as to Dr. Winterkorn’s negligence.” We disagree with Plaintiff’s argument
concerning Dr. Lovato’s testimony because we see no abuse of discretion in the ruling. As
a separate matter, Plaintiff argues that a directed verdict was improper because (1) Dr.
Winterkorn committed medical negligence when he continued with the embolization
procedure after Mrs. Richter had developed arrhythmia and that his explanation for why he
continued betrays such a basic misunderstanding of the procedure that it constitutes—and
here we paraphrase—negligence per se, allowing jury review; and (2) Dr. Winterkorn’s
promise to stop the procedure if Mrs. Richter developed an arrhythmia was sufficient to
allow the claim to be heard by the jury. We disagree with Plaintiff’s arguments concerning
the directed verdict because they do not address the fact that Plaintiff simply did not present
enough admissible evidence to avoid dismissal.

A.     Exclusion of Dr. Lovato’s Opinion Testimony Was Not an Abuse of Discretion

{49} Plaintiff called Dr. Lovato as an adverse witness. Among other topics, Plaintiff
“questioned Dr. Lovato about his and Dr. Winterkorn’s decision to proceed with Mrs.
Richter’s embolization not knowing her catecholamine test results and despite ‘panic-value’
potassium levels, which posed a likely chance of death if any surgical procedures were
undertaken on her that day.” After a series of questions exploring who made the decision
to proceed with surgery that morning, Plaintiff asked a question meant to elicit an opinion
from Dr. Lovato as to which acts of Dr. Winterkorn were negligent. The following colloquy
occurred:


                                              14
        [Plaintiff]:            Isn’t it true that Mrs. Richter died, not because of her
                                pheochromocytoma, but because of the treatment that
                                was given her on the 26th, by Dr. Winterkorn?

        [Defendant]:            Objection, your Honor. Calls for expert testimony.

        [Plaintiff]:            I believe he’s the treating physician.

        [Court]:                Approach. If you’re asking a treating physician to
                                render an ultimate conclusion on another treating
                                physician, I think I ruled that I was not going to allow
                                treating physicians to testify as to that. Only the
                                expert physician can testify—or the physicians who
                                have been designated as experts. I think that’s what
                                my ruling was.

        [Plaintiff]:            That’s what you’re saying now. That wasn’t the
                                ruling before. It was the ruling with Dr. Gurule, and
                                only with respect to Dr. Gurule.

        [Court]:                Then I will extend that ruling. This is also a treating
                                physician. He’s one of the [D]efendants on trial and
                                you’re asking him to testify to the ultimate conclusion
                                that—of the [P]laintiff.

Plaintiff argues that limiting his ability to elicit opinions from one of the treating physicians
against another tilted the field unfairly in Dr. Winterkorn’s favor. Plaintiff bases this
argument partly on the circumstance that later in the trial Dr. Winterkorn was asked to
opine—without objection from anyone—on the negligence of other defendant doctors,
including Dr. Lovato.

{50} Plaintiff makes only one argument that raises a colorable challenge to the district
court’s ruling. Plaintiff essentially argues that, in a case such as this, treating physicians
should be allowed to provide opinions on the ultimate issues of professional negligence by
others because they are almost by definition experts. Plaintiff argues that treating physicians
should not be required to be disclosed or listed with “ordinary ‘retained’ experts” in pretrial
witness disclosure documents. Instead, Plaintiff asserts, “treating physicians are usually
listed elsewhere with the attending notification that they will be asked questions about or
will [testify] about the matters at issue in the case.”

{51} Consistent with this approach, Plaintiff listed the treating physicians separately from
the witnesses and in a footnote to the witness list stated:

        The witnesses set forth in this designation are all treating physicians. Mr.

                                               15
        Richter has no control over these witnesses. They do have opinions about
        Mrs. Richter’s care arising from their treatment of Mrs. Richter and their
        knowledge of the circumstances of such treatment. Mr. Richter will be
        asking for their opinions on these issues as well as how lab results are
        communicated to a patient’s physician.

Plaintiff included a more limited observation to the same effect in his notice of expert
witness availability.

{52} One difficulty for Plaintiff on appeal is that he did not mention these matters to the
district court during the argument following the objection to his question seeking an opinion
from Dr. Lovato. Plaintiff’s failure to raise the argument at this juncture leads us to
conclude that the argument was likely not preserved. Woolwine v. Furr’s, Inc., 1987-
NMCA-133, ¶ 20, 106 N.M. 492, 745 P.2d 717.

{53} Further, Plaintiff was at that point on explicit notice of the district court’s approach
to the scope of opinion testimony she would allow from treating physicians who had not
been identified as “expert” witnesses. In response to a motion in limine filed by Dr. Lovato,
the district court had earlier ruled that Plaintiff would not be allowed to elicit testimony from
co-defendant Dr. Gurule as to the “standard of care and breach thereof by Drs. Lovato or
Winterkorn.” The district court’s ruling relied on the fact that Dr. Gurule had not been
identified as an “expert” witness by Plaintiff or any other party. The district court
recognized that Dr. Gurule’s “lay” testimony would be based on his specialized knowledge
as a physician and percipient witness. Thus, the district court’s order permitted Dr. Gurule
to be questioned about: (1) “his knowledge of [Mrs.] Richter”; (2) “her condition as he
observed it”; (3) “her cause of death”; (4) “her underlying cardiac condition”; and (5) “the
etiology of that condition.” The rationale of the order concerning Dr. Gurule applied directly
to Plaintiff’s questioning of Dr. Lovato. In sum, we find no abuse of discretion in the district
court’s ruling limiting Dr. Lovato’s testimony.

{54} Finally, we do not see how the limit on Dr. Lovato’s opinion testimony—even if
erroneous—could require reversal. Dr. Lovato could only have opined concerning Dr.
Winterkorn’s presurgery decision. Dr. Lovato himself explained that he could not speak to
what Dr. Winterkorn should or should not have done during the surgery. Dr. Lovato was
allowed to testify fully as to his version of the presurgery events, including that it was Dr.
Winterkorn’s decision to start the surgery in the face of Mrs. Richter’s potassium levels and
the lack of results on the catecholamine testing.

{55} The presurgery theories of malpractice against Dr. Winterkorn were submitted to the
jury. The jury instruction read:

        4.      Dr. Winterkorn was medically negligent in proceeding with the
                embolization procedure without knowing that the pheochromocytoma
                test results were negative.

                                               16
       5.      Dr. Winterkorn was medically negligent in failing to do a proper pre-
               procedure cardiologic work up.

       6.      Dr. Winterkorn was medically negligent in prescribing an inadequate
               potassium supplement upon learning of Mrs. Richter’s critical value
               potassium level of 2.3.

       7.      Dr. Winterkorn was medically negligent in not cancelling the
               embolization procedure for the 2.3 potassium level.

       8.      Dr. Winterkorn was medically negligent in failing to recheck Mrs.
               Richter’s potassium level before proceeding with the embolization
               procedure.

The jury found in favor of Dr. Winterkorn on all theories. The jury clearly accepted Dr.
Winterkorn’s version of the presurgery events over Dr. Lovato’s. We fail to see how Dr.
Lovato’s additional testimony in the form of an opinion about presurgery decisions would
have made any impact on the final result of the jury’s deliberations. After all, Dr. Lovato
was not an uninterested witness. His personal fault and liability was at stake. As such, even
if the district court had erred, it would be harmless. See Rule 1-061 NMRA.

B.     Directed Verdict Was Not Improper

{56} We review de novo the district court’s decision on a motion for a directed verdict.
McNeill v. Burlington Res. Oil & Gas Co., 2008-NMSC-022, ¶ 36, 143 N.M. 740, 182 P.3d
121. We will uphold a district court’s grant of directed verdict only if it is clear that “the
facts and inferences are so strongly and overwhelmingly in favor of the moving party that
the judge believes that reasonable people could not arrive at a contrary result.” Melnick v.
State Farm Mut. Auto. Ins. Co., 1988-NMSC-012, ¶ 11, 106 N.M. 726, 749 P.2d 1105. We
review a district court’s evidentiary rulings for an abuse of discretion. State v. Harrison,
2000-NMSC-022, ¶ 18, 129 N.M. 328, 7 P.3d 478. In order to find an abuse of discretion,
this Court must conclude that the district court’s decision to admit or exclude testimony “was
obviously erroneous, arbitrary, or unwarranted.” Id.

1.     Plaintiff Failed to Present Expert Testimony on the Standard of Care

{57} Plaintiff asserts that Dr. Winterkorn committed medical negligence when he
continued with the embolization procedure after Mrs. Richter had developed arrhythmia.
Plaintiff was required to present expert testimony regarding the standard of care applicable
to Dr. Winterkorn and whether his conduct fell below that standard. See UJI 13-1102
NMRA; Lopez v. Sw. Cmty. Health Servs., 1992-NMCA-040, ¶ 13, 114 N.M. 2, 833 P.2d
1183 (“In a medical malpractice case, because of the technical and specialized subject
matter, expert medical testimony is usually required to establish departure from recognized
standards in the community.”); Mascarenas v. Gonzales, 1972-NMCA-062, ¶ 6, 83 N.M.

                                             17
749, 497 P.2d 751 (“Should the condition be such that knowledge about it is peculiarly
within the knowledge of medical men, then a court should not allow a jury to conjecture or
speculate about the matter.” (internal quotation marks and citation omitted)). To establish
the standard of care for Dr. Winterkorn’s conduct, Plaintiff offered testimony from Dr.
Sibbit, an interventional radiology expert. However, Dr. Sibbit explained that there was no
standard practice that an interventional radiologist would use regarding the embolization of
a patient’s arteries and stopping the procedure when a patient begins to develop arrhythmia.
He testified that there is not enough data or information to identify the standard practice or
methodology for addressing the complication in the embolization procedure that occurred
in this case. As a result, Dr. Sibbitt could not indicate whether Dr. Winterkorn was negligent
regarding the arrhythmia that developed during Mrs. Richter’s embolization procedure.

{58} Plaintiff argues that testimony from Dr. Eigelberger, a general surgeon, also
established the standard of care applicable to Dr. Winterkorn’s procedure. However, the
district court found, and Plaintiff does not challenge, that Plaintiff failed to lay the
foundation for Dr. Eigelberger to opine as to whether Dr. Winterkorn’s conduct was
negligent. See Giovannini v. Turrietta, 1966-NMSC-103, ¶ 4, 76 N.M. 344, 414 P.2d 855
(“The [district] court’s findings, not properly attacked, are conclusive on appeal.”).
Consequently, Dr. Eigelberger never provided an expert opinion regarding the proper
standard of care or whether Dr. Winterkorn was negligent in addressing the complication
that developed during Mrs. Richter’s embolization procedure. Plaintiff’s own expert, Dr.
Sibbit, opined that a general surgeon such as Dr. Eigelberger would not be qualified to offer
an opinion on the standard of care applicable to an interventional radiologist in
circumstances like those in this case. As a result, Dr. Eigelberger’s testimony does not assist
Plaintiff in overcoming the motion for a partial directed verdict.

{59} As an alternative, Plaintiff argues at length about facts in the record that might
support an inference that common sense and basic anatomy would require Dr. Winterkorn
to stop the procedure immediately after Mrs. Richter developed an arrhythmia. However,
these factual arguments do not constitute the kind of expert testimony required to set the
standard of care for Dr. Winterkorn’s conduct, because “arguments of counsel are not
evidence.” Muse v. Muse, 2009-NMCA-003, ¶ 51, 145 N.M. 451, 200 P.3d 104; see UJI 13-
1102; Cano v. Smith’s Food King, 1989-NMCA-080, ¶ 5 , 109 N.M. 50, 781 P.2d 322
(holding that medical causation ordinarily must be supported by expert medical testimony).

2.     A Physician’s Promise Does Not Establish the Standard of Care

{60} Finally, Plaintiff asserts that Dr. Winterkorn was negligent because he had broken
an earlier promise to stop the embolization procedure at the first signs of an arrhythmia.
Plaintiff fails to provide any authority to support a theory of medical negligence based solely
upon statements by the operating physician that he intended to stop the medical procedure
if certain complications arose. See State v. Godoy, 2012-NMCA-084, ¶ 5, 284 P.3d 410
(“Where a party cites no authority to support an argument, we may assume no such authority
exists.”). As a result, this Court will not speculate or presume that Dr. Winterkorn’s

                                              18
statement was a proper basis to establish medical negligence. See Cervantes v. Forbis, 1964-
NMSC-022, ¶ 15, 73 N.M. 445, 389 P.2d 210 (refusing to speculate in the absence of proof
as to whether the defendant’s doctor should have used an X-ray to place an intramedullary
pin). We need not address the theory any further.

{61} Plaintiff presented no expert testimony that Dr. Winterkorn breached any standard
of care by continuing the embolization procedure when Mrs. Richter developed an
arrhythmia. As such, Plaintiff failed to present a viable medical negligence issue against Dr.
Winterkorn for the jury’s consideration. It was not error for the district court to grant a
partial directed verdict in favor of Dr. Winterkorn and we affirm.

IV.    Comparative Negligence Principles Require the District Court to Consider the
       Comparative Negligence of Non-Parties.

{62} We now address Plaintiff’s argument that the district court violated the three- year
Medical Malpractice Act statute of limitations when it permitted the jury to compare the
alleged negligence of Mrs. Richter’s 2001 physicians, who were non-parties in this case,
with the negligence of Drs. Winterkorn and Lovato. Plaintiff’s argument asks this Court, in
effect, to allow comparative negligence to apply exclusively against the parties actually
brought to court, regardless of the fault of other non-parties. Plaintiff has failed to provide
this Court with any authority supporting this novel policy argument regarding the application
of comparative negligence in New Mexico. See State v. Garcia, 2005-NMCA-065, ¶ 7, 137
N.M. 583, 113 P.3d 406 (recognizing that an appellate court will not consider an issue if no
authority is cited in support of the argument).

{63} In fact, the district court cannot ignore the comparative liability of non-party
tortfeasors in negligence cases. See Seeds v. Lucero, 2005-NMCA-067, ¶ 23, 137 N.M. 589,
113 P.3d 859 (recognizing “the burdens imposed in comparative negligence cases where the
parties must deal with evidence of the negligence of non-party tortfeasors”). Comparative
negligence requires a determination of the percentage of negligence of each plaintiff,
defendant, beneficiary, and non-party that caused the plaintiff’s total damage. The sum of
the percentages must equal 100. See UJI 13-2219 NMRA (requiring that the jury “[c]ompare
the negligence, if any, of [plaintiff(s)] [beneficiary(ies)] [and] [defendant(s)] [and] [non-
parties] and determine a percentage for each”). The Use Note for UJI 13-2219 states: “This
instruction is to be used only in cases where there is an issue of apportionment of negligence
among defendants or non-parties.” Id. The Use Note for UJI 13-2218 NMRA is also
authoritative where it states: “This instruction is to be used only in cases where there is no
apportionment of negligence among defendants or non-parties.”

{64} Christus St. Vincent Regional Medical Center v. Duarte-Afara, 2011-NMCA-112,
267 P.3d 70, does not change our analysis. In Christus St. Vincent Regional Medical Center
we held that the hospital could not pursue an indemnification claim against doctors when the
Medical Malpractice Act statute of limitations had expired for the underlying tort. Id. ¶ 32.
Our decision was based in large part on the practical idea that the doctors should not be

                                              19
made to face monetary obligations for acts which could no longer be the subject of actions
against them. Id. ¶ 16. The situation here is different. The 2001 physicians who were
named as non-party tortfeasors did not face the possibility of having to pay anything. Thus
the rationale of Christus St. Vincent Regional Medical Center does not fit.

V.     Proceedings on Remand

{65} Given our decision to reverse in part we must consider how the matter should
proceed on remand. New Mexico case law provides a ready answer to only one of the
myriad of possibilities. In Buffett v. Vargas, 1996-NMSC-012, ¶ 29, 121 N.M. 507, 914
P.2d 1004, our Supreme Court noted that “a party exonerated at [a prior] trial should not
automatically be subjected to a new trial whenever there has been an error at trial with regard
to the liability of someone else.” The Court then adopted a test from an Idaho case which
focused on “whether there is a clear showing that the issues in the case are so distinct and
separable that a party may be excluded without prejudice.” Watson v. Navistar Int’l Transp.
Corp, 121 Idaho 643, 669, 827 P.2d 656, 682 (Idaho 1992).

{66} As to the physicians involved in the 2005 treatment and surgery for Mrs. Richter, the
jury determined both the liability and amount of damages to be awarded against Dr. Lovato
as well as rendering a determination that Dr. Winterkorn was not negligent. We have found
no specific error in the jury verdict or other rulings that Plaintiff has argued regarding the
2005 treatment and surgery by Dr. Lovato and Dr. Winterkorn. Dr. Winterkorn thus stands
exonerated through the first trial. Applying Watson and Buffett, we see no basis to require
that he be part of the trials to come. The asserted negligence of TriCore and PHS occurred
four years before Dr. Winterkorn had any contact with Mrs. Richter and there is no
suggestion that he could or should have known of her 2001 test results. As such, Dr.
Winterkorn’s conduct is separate and distinct enough from TriCore’s and PHS’s that the trial
court’s error as to them cannot be deemed to effect or infect the jury’s finding as to him. Dr.
Winterkorn may be excluded from the succeeding trial without prejudice to other parties.

{67} Much of the same analysis can be applied to Dr. Lovato. That is, there is no
indication that he could or should be charged with knowledge of Mrs. Richter’s 2001 test
results or TriCore’s and PHS’s 2001 conduct. However, the fact remains that Dr. Lovato
was found to be negligent by the jury. This alone makes it problematic to apply the
Watson/Buffett test given that it is usually used in connection with parties who have been
found not negligent. Buffett, 1996-NMSC-012, ¶¶ 27, 29, 31. In addition, as we have noted
above, basic principles of comparative negligence dictate that all persons contributing to an
injury be included in the apportionment of fault. As such, the comparative fault of Dr.
Lovato must still be part of the trial on remand.

{68} The scope of the trial on remand remains to be determined. Having never been tried,
TriCore’s and PHS’s liability—if any—must be determined in accordance with this Opinion.
And, of course, the comparative fault of all parties other than Dr. Winterkorn must be tried
and determined. The most vexing issue—and the issue of most interest to the parties—is the

                                              20
question of damages. TriCore and PHS argue that the damages verdict in the first trial
should be deemed res judicata as to the issue. Plaintiff argues that a trial involving two
entirely new parties requires that damages should not be treated as res judicata. Dr. Lovato
argues essentially that whatever the outcome of a new trial, he should not be forced to face
new or increased liability.

{69} We have found limited New Mexico case law that addressed the damage issue, and
this authority neither addresses nor provides guidance in resolving a medical negligence case
such as this one. See Flores v. Baca, 1994-NMSC-021, ¶ 25, 117 N.M. 306, 871 P.2d 962
(recognizing the application of res judicata to plaintiff’s compensatory damage award when
the issue of punitive damages will be tried for the first time upon remand due to an error in
awarding a directed verdict on punitive damages at the first trial); Sanchez v. J. Barron Rice,
Inc., 1967-NMSC-077, ¶¶ 37-38, 77 N.M. 717, 427 P.2d 240 (limiting retrial to one claim
of negligence against one defendant and affirming the jury verdict in favor of the remaining
defendants as severable claims that need not be retried); Cherry v. Stockton, 1965-NMSC-
114, ¶¶ 7-8, 75 N.M. 488, 406 P.2d 358 (limiting retrial to the issue of liability of the second
defendant under the theory of a master and servant relationship after the jury verdict
regarding damages was not appealed). Each of the parties’ positions have something to
commend them and none is obviously “right.” We conclude that the Colorado Supreme
Court’s decision in HealthONE v. Rodriguez ex rel. Rodriguez, 50 P.3d 879, 890-91 (Colo.
2002) (en banc) provides the most workable and reasonable approach to problems of remand
in cases such as this, and we adopt it.

{70} The Plaintiff in HealthONE sued his treating physician, the hospital where he
received his treatment, and another, non-treating doctor who plaintiff asserted created the
circumstances that led to his injuries. The trial court granted summary judgment in favor of
the non-treating doctor and the matter proceeded to trial against the treating physician and
the hospital. On appeal the summary judgment was reversed. Accommodating the interests
of all the parties, the Colorado Court ordered that on remand: (1) the treating physician and
the hospital would be treated as having settled the case before retrial—thus preserving their
liability intact, and (2) the non-treating doctor would go to trial but the prior damages verdict
would not be imposed on him—thus preserving his desire for a new trial on all issues
applicable to him. This approach preserved the parties’ position after the first trial but
allowed a full trial where none had been had before.

{71} The Colorado Court’s approach presents a neutral basis upon which to premise trial
on remand in cases such as this because it preserves what occurred at the first trial but allows
a full new trial as to issues not tried before.

{72} Applying the procedure here, the verdict form should include all of the nonparty
physicians as before, plus Dr. Lovato, TriCore and PHS. The jury will determine
comparative negligence as well as damages anew. Regardless of the outcome at trial, Dr.
Lovato’s liability for any damages shall remain the same as was determined by the first jury
and he shall be treated as if Plaintiff’s claim against him was settled prior to retrial.

                                               21
TriCore’s and PHS’s liability—if any—will be decided by the jury without regard to the
damages found previously.

CONCLUSION

{73} For the foregoing reasons, we affirm in part and reverse in part the judgment of the
district court. We remand for further proceedings against TriCore and PHS consistent with
this Opinion.

{74}   IT IS SO ORDERED.

                                            ___________________________________
                                            MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:


____________________________________
TIMOTHY L. GARCIA, Judge

____________________________________
CELIA FOY CASTILLO, (Judge Pro Tem)

Topic Index for Richter v. Presbyterian Healthcare Servs., Nos. 30,926/31,004

APPEAL AND ERROR
Remand
Standard of Review

CIVIL PROCEDURE
Directed Verdict
Expert Witnesses
Summary Judgment

EVIDENCE
Expert Witness

JUDGES
Abuse of Discretion

NEGLIGENCE
Comparative Negligence
Negligence, General
Standard of Care

                                           22
Wrongful Death

TORTS
Medical Malpractice
Wrongful Death




                      23
