       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: _______________

Filing Date: July 3, 2013

Docket No. 31,653

EMRE YEDIDAG, M.D.,

       Plaintiff-Appellee,

v.

ROSWELL CLINIC CORP., and
ROSWELL HOSPITAL CORP.,

       Defendants-Appellants.

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
Freddie J. Romero, District Judge

Tucker Law Firm, P.C.
Steven L. Tucker
Santa Fe, NM

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

Bauman, Dow & León
Mark C. Dow
Simone M. Seiler
Albuquerque, NM

for Appellee

Kemp Smith LLP
Ken Slavin
Clara B. Burns
Shelly W. Rivas
El Paso, TX

for Appellants

                                  1
                                         OPINION

VANZI, Judge.

{1}     Plaintiff-Appellee Dr. Emre Yedidag was terminated from his position as a general
surgeon by his employer Defendants-Appellants Roswell Clinic Corporation and Roswell
Hospital Corporation d/b/a Eastern New Mexico Medical Center (collectively, Eastern). Dr.
Yedidag’s termination occurred within days after he participated in an internal hospital
surgical peer review meeting that included review of surgical care provided by one of Dr.
Yedidag’s colleagues at Eastern. Following the peer review meeting, two Eastern employees
who were present at the meeting disclosed to Eastern administrators their belief that Dr.
Yedidag had engaged in unprofessional and aggressive behavior at the peer review meeting.
Dr. Yedidag filed suit against Eastern following his termination, alleging that he was fired
as a result of his participation in the peer review meeting. The jury determined that Eastern
violated the New Mexico Review Organization Immunity Act (the ROIA), NMSA 1978, §§
41-9-1 to -7 (1979, as amended through 2011), and breached an implied promise in Dr.
Yedidag’s employment agreement that he would not face adverse employment consequences
as a result of his participation in the hospital’s peer review process.

{2}     Eastern’s primary argument on appeal is that the district court erred in allowing Dr.
Yedidag to bring a private cause of action under the ROIA. Eastern also raises arguments
regarding the propriety of the implied promise contractual cause of action, the jury’s award
of punitive damages, the jury polling process, the admission of medical evidence at trial, and
the award of attorney fees. As a matter of first impression, we hold that a member of a peer
review organization can bring a private cause of action for an alleged violation of the
ROIA’s confidentiality provision, Section 41-9-5. We also conclude that the district court
did not err with respect to Eastern’s remaining arguments. Accordingly, we affirm the jury
verdict.

BACKGROUND

A.     The ROIA

{3}     Because this appeal raises issues regarding the application of the ROIA in a civil
action, we turn first to provide some background on the ROIA. Enacted by the Legislature
in 1979, the ROIA “establishe[s] a comprehensive scheme of regulation of hospital peer
review proceedings, including the scope of immunity available to members of a review
organization” and the confidentiality of the records of review organizations. Leyba v.
Renger, 114 N.M. 686, 687, 845 P.2d 780, 781 (1992); see also Sw. Cmty. Health Servs. v.
Smith, 107 N.M. 196, 198, 755 P.2d 40, 42 (1988) (recognizing that the “ROIA establishes
a medical peer review process to promote the improvement of health care in New Mexico”).
Under the ROIA, hospital review organizations are limited in membership to “health care
providers and staff, except where otherwise provided for by state or federal law,” and are
tasked with gathering and reviewing information relating to the care and treatment of
patients for eight enumerated purposes. See § 41-9-2(E).
{4}     The ROIA grants qualified immunity to members of review organizations and to
individuals who provide information to review organizations. See § 41-9-4 (providing that
members of review organizations shall not be liable “for damages or other relief in any
action brought by a person or persons whose activities have been or are being scrutinized or
reviewed by a review organization . . . unless the performance of such duty, function or
activity was done with malice toward the person affected thereby”); see also § 41-9-3
(stating that “[n]o person providing information to a review organization shall be subject to
any action for damages or other relief . . . unless such information is false and the person
providing such information knew or had reason to believe such information was false”);
Leyba, 114 N.M. at 687-88, 845 P.2d at 781-82 (holding that the ROIA establishes qualified
immunity).

{5}    Of particular relevance to this case is Section 41-9-5, which deals with the
confidentiality of review organization meetings. Section 41-9-5(A) provides that

       all data and information acquired by a review organization in the exercise of
       its duties and functions shall be held in confidence and shall not be disclosed
       to anyone except to the extent necessary to carry out one or more of the
       purposes of the review organization or in a judicial appeal from the action of
       the review organization. No person described in Section 41-9-4 [of the
       ROIA] shall disclose what transpired at a meeting of a review organization
       except to the extent necessary to carry out one or more of the purposes of the
       review organization, in a judicial appeal from the action of the review
       organization or when subpoenaed by the New Mexico medical board.

(Emphasis added.) As we discuss in later sections of this Opinion, this appeal involves
claims by Dr. Yedidag that Eastern employees allegedly violated Section 41-9-5 by
disclosing what transpired at a peer review meeting and that, as a result of Eastern’s alleged
violation of the ROIA, Dr. Yedidag faced adverse employment consequences and suffered
damages.

B.     Case History

{6}     Dr. Yedidag began working as a general surgeon for Eastern on December 5, 2005,
and was terminated from his position nearly eleven months later on November 17, 2006.
Two days prior to his termination, Dr. Yedidag attended and participated in a meeting of the
Surgical Performance Improvement Committee at Eastern (the peer review meeting).
According to documents in the record before this Court on appeal, the meeting was attended
by five physicians, including Dr. Yedidag and the colleague whose surgical care and
treatment of a patient would eventually be discussed at the peer review meeting. Also
present at the meeting were four members of Eastern’s administration and management staff,
including Sara Williamson and Barbara Harned. During the peer review meeting, Dr.
Yedidag participated in the review of his colleague’s surgical care and treatment of a patient.
Since the physician whose case was under review was also present at the peer review
meeting, Dr. Yedidag questioned the physician regarding the surgical treatment given and
the events that led to the patient’s death. At the conclusion of the meeting, the peer review


                                              2
members requested that the case be sent for external review by a general surgeon.

{7}    Immediately after the peer review meeting ended, members of Eastern’s
administration and management staff who were present at the meeting, including Sara
Williamson, reported to Rich Robinson, Eastern’s CEO, and Michael Kueker, Dr. Yedidag’s
immediate supervisor, that Dr. Yedidag had engaged in unprofessional and aggressive
behavior at the peer review meeting. At trial, Keuker testified that he was told that Dr.
Yedidag had verbally attacked the colleague whose case was under review at the meeting,
and Sara Williamson testified that she told Eastern administrators that Dr. Yedidag had
engaged in extremely disruptive behavior at the peer review meeting.

{8}     The next day, Kueker met with Dr. Yedidag to suspend him from his position. On
November 17, 2006, Dr. Yedidag received a letter from Eastern terminating his employment.
The letter did not mention the events of the peer review meeting and instead stated that Dr.
Yedidag’s termination was pursuant to Paragraphs 10.1(j), 10.1(k), and 10.1(m) of Dr.
Yedidag’s employment agreement with Eastern and was a result of his “continued
unprofessional behavior and language” and “continued disruptive behavior.” These
provisions of the employment agreement provided for immediate termination based upon:

              (j)    [Eastern’s] determination that [Dr. Yedidag’s] continued
       employment would pose an unreasonable risk of harm to patients or others
       or would adversely affect the confidence of the public in the services
       provided by [Eastern];

               (k)   [Eastern’s] determination that [Dr. Yedidag] has engaged in
       gross insubordination or gross dereliction of duty;

       ....

               (m)      conduct by [Dr. Yedidag] which is reasonably considered by
       [Eastern] to be unethical, unprofessional, fraudulent, unlawful, or adverse to
       the interest, reputation or business of [Eastern.]

{9}     On January 24, 2007, Dr. Yedidag filed an eight-count civil complaint against
Eastern seeking monetary damages and other relief as a result of his termination. An
amended complaint later filed by Dr. Yedidag consisted of the following specific causes of
action: fraud in the peer review process; violation of the ROIA’s confidentiality provision;
breach of Dr. Yedidag’s employment agreement with Eastern; breach of the covenant of
good faith and fair dealing; retaliatory discharge; civil conspiracy; and prima facie tort. In
response to Dr. Yedidag’s lawsuit, Eastern took the position throughout the proceedings
below that Dr. Yedidag was terminated for cause pursuant to his employment agreement
with Eastern due to his unprofessional conduct.

{10} At trial, the claims that were submitted to the jury pertinent to disposition of this
appeal were: (1) violation of the ROIA, and (2) breach of implied promises in Dr. Yedidag’s
employment agreement with Eastern. With regard to the ROIA claim, the jury was


                                              3
instructed to determine whether Eastern “breach[ed] the confidentiality requirement of [the
ROIA] through its disclosure of Dr. Yedidag’s actions at the . . . peer review . . . meeting by
Sara Williamson to Eastern’s CEO and Eastern’s Physician Practice Coordinator, who were
not members or participants in the . . . peer review [meeting].” As for the implied promises
claims, the jury was instructed to find whether Eastern had breached three implied promises
located within Dr. Yedidag’s employment agreement.

{11} The jury returned a special verdict in favor of Dr. Yedidag, finding that (1) Eastern
violated the ROIA, and (2) Eastern breached its employment agreement with Dr. Yedidag
by breaching an implied promise that there would be no adverse consequences to Dr.
Yedidag’s employment or staff privileges as a consequence of his participation in the peer
review process. The jury further determined that both of the foregoing were a proximate
cause of Dr. Yedidag’s damages, and it awarded Dr. Yedidag $997,814 in compensatory
damages and three million dollars in punitive damages. This appeal followed. We will
relate additional background as necessary to our discussion of each issue raised on appeal.

DISCUSSION

{12} Eastern raises six arguments on appeal. Eastern’s primary argument is that the
district court erred in allowing Dr. Yedidag to bring a private cause of action under the
ROIA. Eastern also raises arguments regarding the propriety of the implied promises
contractual cause of action, the jury’s award of punitive damages, the jury polling process,
the admission of medical evidence at trial, and the award of attorney fees. We address each
argument in turn.

1.     Private Cause of Action Under the ROIA

{13} At the center of this appeal is the issue of whether a private civil cause of action can
arise from violation of Section 41-9-5, the ROIA’s confidentiality provision. Eastern
contends that the district court improperly permitted Dr. Yedidag to bring a cause of action
for damages and other relief against Eastern for an alleged violation of Section 41-9-5. The
parties agree that the ROIA does not expressly provide for a private cause of action arising
from violation of Section 41-9-5. In fact, we note that the only remedy expressly identified
in the ROIA for Section 41-9-5 violation is criminal in nature. See § 41-9-6 (providing that
any unauthorized disclosure of data or information acquired by a review organization or of
what transpired at a review organization meeting is punishable as a petty misdemeanor).
However, the district court determined that a private cause of action can exist under the
ROIA for violation of Section 41-9-5. Our review of the district court’s ruling presents a
matter of first impression for this Court.

{14} The question of whether a statute creates or implies a private cause of action is a
question of law that we review de novo. See Sedillo v. N.M. Dep’t of Pub. Safety, 2007-
NMCA-002, ¶ 7, 140 N.M. 858, 149 P.3d 955. Generally speaking, there are only a handful
of cases in New Mexico that have addressed the creation of a private cause of action for
statutory violations where a statute does not expressly provide for such an action. See, e.g.,
Hovet v. Allstate Ins. Co., 2004-NMSC-010, ¶ 9, 135 N.M. 397, 89 P.3d 69 (determining,


                                              4
based on legislative intent and public policy, that third-party claimants may bring a cause
of action under the Insurance Code for unfair claims practices where the statute at issue
already provided for a general cause of action); Starko, Inc. v. Presbyterian Health Plan,
Inc., 2012-NMCA-053, ¶¶ 28, 33-42, 276 P.3d 252 (recognizing a private cause of action
arising under a statutory provision of the Public Assistance Act), cert. granted, 2012-
NMCERT-003, 293 P.3d 184; Sedillo, 2007-NMCA-002, ¶¶ 1, 8-17 (addressing whether the
Peace Officer’s Employer-Employee Relations Act provides a private cause of action); Nat’l
Trust for Historic Pres. v. City of Albuquerque, 117 N.M. 590, 592-94, 874 P.2d 798, 800-02
(Ct. App. 1994) (recognizing a private cause of action under the New Mexico Prehistoric and
Historic Sites Preservation Act and determining that the plaintiffs had standing to bring such
an action).

{15} In this case, Eastern’s argument involves an examination of three non-exclusive
factors first enunciated by this Court in National Trust for determining whether a private
cause of action can be implied for a statutory violation in the absence of an explicit statutory
directive.1 117 N.M. at 593, 874 P.2d at 801. These factors are as follows: “(1) Was the
statute enacted for the special benefit of a class of which the plaintiff is a member?[;] (2) Is
there any indication of legislative intent, explicit or implicit, to create or deny a private
remedy?[; and] (3) Would a private remedy either frustrate or assist the underlying purpose
of the legislative scheme?” Id. In addition, “[a] state’s public policy, independent of [these]

       1
          Eastern’s briefing refers to the factors identified in National Trust as the same as
those for a cause of action based on negligence per se. At oral argument before this Court,
Eastern again reiterated that the analysis is the same for a private cause of action arising for
a statutory violation in the absence of an explicit statutory directive and a cause of action
based on negligence per se. We disagree.
        Our Supreme Court has stated that “[n]egligence per se . . . is a method of proving
negligence where a cause of action already exists.” Garcia v. Rodey, Dickason, Sloan, Akin
& Robb, P.A., 106 N.M. 757, 763, 750 P.2d 118, 124 (1988). Moreover, our Supreme Court
has enunciated a four-part test for determining whether a negligence per se instruction is
appropriate in a given case: “(1) There must be a statute which prescribes certain actions or
defines a standard of conduct, either explicitly or implicitly, (2) the defendant must violate
the statute, (3) the plaintiff must be in the class of persons sought to be protected by the
statute, and (4) the harm or injury to the plaintiff must generally be of the type the
[L]egislature through the statute sought to prevent.” Heath v. La Mariana Apartments,
2008-NMSC-017, ¶ 7, 143 N.M. 657, 180 P.3d 664 (alteration, internal quotation marks, and
citation omitted). Eastern made no arguments to this Court on appeal based on this four-part
test and instead focused on the three non-exclusive factors set forth in National Trust.
        We observe that Jury Instruction No. 7 was an instruction based on negligence per
se that was submitted to the jury in this case. This instruction was submitted in addition to
Jury Instruction No. 4, which directed the jury to consider whether Eastern had violated
Section 41-9-5 and defined Dr. Yedidag’s burden of proof in establishing this direct
violation. However, as a result of our holding that a private cause of action can arise for
violation of Section 41-9-5, we need not address the interplay between these two instructions
and the relatively limited argument based on negligence per se that was presented by the
parties on appeal.

                                               5
factors, may be determinative in deciding whether to recognize a cause of action.” Id. at
594, 874 P.2d at 802. Before addressing Eastern’s arguments based on these factors as well
as public policy, we turn first to address two preliminary arguments advanced by Eastern.

{16} Eastern initially argues against the recognition of a private cause of action for a
Section 41-9-5 violation due to Dr. Yedidag’s failure during trial proceedings to present any
case precedent that has allowed for a private cause of action under the ROIA in an
employment case. However, neither party has presented this Court with case law, either
from New Mexico or from another jurisdiction, that has previously addressed the precise
issue before the Court: whether a state peer review immunity statute, such as the ROIA,
allows a member of a review organization to bring a private cause of action for damages and
other relief as a result of a violation of the statute’s confidentiality provision. Thus, in the
absence of authority going one way or the other on this issue, we are not compelled by
Eastern’s argument that we should decline to recognize a private cause of action simply
because it is a matter of first impression for this Court.

{17} Eastern next argues that the creation of a private cause of action under the ROIA is
improper because the ROIA already provides a criminal penalty. See § 41-9-6. In support
of this argument, Eastern cites to authority from other jurisdictions that have held that courts
will not generally create a private cause of action where a statue provides a penalty for
violation but does not specifically provide for a private cause of action. See, e.g., Youren
v. Tintic Sch. Dist., 2004 UT App 33, ¶ 4, 86 P.3d 771. While we acknowledge that such
authority exists in other jurisdictions, these cases are not controlling, and Eastern does not
point to any New Mexico authority that has adopted this reasoning. In addition, we are
aware of New Mexico cases that have looked beyond the simple question of whether a
statutory scheme already includes an express legal remedy in determining whether to
recognize a private cause of action for a statutory violation. In resolving this question, these
cases have examined the adequacy of the legal remedy already provided by the statute at
issue or, alternatively, whether the legal remedy already provided for would be frustrated by
the imposition of additional remedies through a private cause of action. See Cal. First Bank
v. State, 111 N.M. 64, 74-75, 801 P.2d 646, 656-57 (1990) (determining that the
administrative remedies already provided for by statute were “not of such a comprehensive
nature and scope that they would be frustrated by imposition of tort liability” via a private
cause of action); see also State ex rel. Educ. Assessments Sys., Inc. v. Coop. Educ. Servs. of
N.M., Inc., 115 N.M. 196, 200-02, 848 P.2d 1123, 1127-29 (Ct. App. 1993) (declining to
recognize a private cause of action for disappointed offerors, in part, based on this Court’s
determination that the remedies already provided under the Procurement Code were adequate
to protect the disappointed offerors). We are therefore reluctant to rest our analysis of
whether a private cause of action can arise for violation of Section 41-9-5 solely on the fact
that the ROIA already prescribes a criminal penalty for this violation.

{18} We thus turn to consider Eastern’s argument against the recognition of a private
cause of action based on the three non-exclusive factors set forth in National Trust. As we
set forth in greater detail below, weighing of these factors as well as public policy leads us
to conclude that a private cause of action can arise for violation of Section 41-9-5.



                                               6
{19} We first analyze whether Dr. Yedidag is a member of a class for whose special
benefit the ROIA was enacted. See Nat’l Trust, 117 N.M. at 593, 874 P.2d at 801 (stating
that the first factor is whether the statute was enacted for the special benefit of a class of
which the plaintiff is a member). In our view, one class of individuals that the Legislature
clearly intended to protect by enacting the ROIA are members of a review
organization—i.e., those individuals that directly participate in the peer review process.
Protection of members of review organizations is achieved in two primary ways under the
ROIA: (1) by providing qualified immunity to members of review organizations, and (2) by
maintaining confidentiality during the peer review process by limiting discovery of data and
information gathered during the peer review process as well as restricting disclosure of what
transpired at meetings.2 See § 41-9-4 (providing that members of review organizations shall
not “be liable for damages or other relief in any action brought by a person or persons whose
activities have been or are being scrutinized or reviewed by a review organization . . . unless
the performance of such duty, function or activity was done with malice toward the person
affected thereby”); see also § 41-9-5(A) (providing that no member of a review organization
“shall disclose what transpired at a meeting of a review organization except to the extent
necessary to carry out one or more of the purposes of the review organization, in a judicial
appeal from the action of the review organization or when subpoenaed by the New Mexico
medical board”). Our determination that the ROIA was enacted, in part, to protect peer
review participants is comparable to other cases that have similarly noted that these statutes
were designed to protect those who engage in the peer review process as participants. See,
e.g., Goldsmith v. Harding Hosp., Inc., 762 F. Supp. 187, 188 (S.D. Ohio 1991) (stating that
the chief beneficiaries of the HCQIA are the professional review bodies that are accorded
immunity from liability for damages); Cooper v. Del. Valley Med. Ctr., 654 A.2d 547, 554
(Pa. 1995) (reiterating that the legislature’s clear purpose in enacting that state’s peer review
statute was to protect peer review participants). Since it is undisputed that Dr. Yedidag was
a member of a review organization as defined in the ROIA, we conclude that he is a member
of a class that the ROIA was enacted to specially benefit.

{20} Next, we consider whether there is any indication of legislative intent, either explicit
or implicit in the ROIA, to create or deny a private remedy to Dr. Yedidag. See Nat’l Trust,
117 N.M. at 593, 874 P.2d at 801. As we stated earlier, one indication that the Legislature

        2
         We clarify that these protections do not flow to the physician that is the target of the
peer review action. Furthermore, although this issue is not before the Court in this case and
we therefore do not decide it, we observe that an overwhelming majority of cases from other
jurisdictions that have addressed the issue have held that the physician under review cannot
bring a private cause of action against professional review bodies. See Scott M. Smith,
Construction and Application of Health Care Quality Improvement Act of 1986, 121 A.L.R.
Fed. 255, § 9 (1994) (citing to federal cases that have held that the Health Care Quality
Improvement Act (HCQIA) does not create a right of action for a physician subject to the
peer review process); see also Hancock v. Blue Cross-Blue Shield of Kan., Inc., 21 F.3d 373,
374 (10th Cir. 1994) (holding that the HCQIA does not create a right of action for a
physician subject to the peer review process); Tunca v. Painter, 980 N.E.2d 1132, 1137 (Ill.
App. Ct. 2012) (holding that the state’s peer review statute did not give a peer reviewed
physician a private right of action).

                                               7
did not intend to permit private remedies for violation of Section 41-9-5 is the fact that the
ROIA expressly provides a criminal penalty for violation of this provision. See § 41-9-6.
However, there is no indication in the language of Section 41-9-6 that the criminal
penalty—although mandatory in nature—was intended to be the exclusive remedy for
violation of the ROIA’s confidentiality provision.3 Without undermining the Legislature’s
judgment that the criminal penalty protects against unauthorized disclosures of what
transpired at a review organization meeting, we are unable to conclude that there is any
explicit or implicit language in the ROIA that the Legislature intended to deny private
remedies for peer review participants who face adverse employment consequences as a
direct result of their participation in the process. Eastern also argues that there is no
indication of legislative intent to create a private remedy under the ROIA because the ROIA
was “created to improve health care in New Mexico and as such, it has an aggregate focus,
not an individual focus.” See Starko, 2012-NMCA-053, ¶ 35 (relying on United States
Supreme Court case law that evaluates legislative intent to create a private remedy by
examining, among other factors, whether the statute has an “aggregate, not individual, focus”
(internal quotation marks and citation omitted)). We disagree. The protections afforded
under the ROIA to peer review participants are individual in nature and promote the
aggregate integral purpose of the statute—the improvement of health care in New Mexico
and protection of the general public—by ensuring effective professional peer review through
a candid, frank, and critical evaluative process. See Sw. Cmty. Health Servs., 107 N.M. at
198, 755 P.2d at 42 (stating that the ROIA “recognizes that candor and objectivity in the
critical evaluation of medical professionals by medical professionals is necessary for the
efficacy of the review process”).

{21} Turning to the third factor, we conclude that a private remedy for a violation of
Section 41-9-5 will not frustrate the underlying purposes of the ROIA. See Nat’l Trust, 117
N.M. at 593, 874 P.2d at 801 (stating that the third factor is an examination of whether a
private remedy will either frustrate or assist the underlying purpose of the legislative
scheme). As we have noted, the overall purpose of the ROIA, which is to promote the
improvement of health care in New Mexico, is furthered through the protections afforded
under the ROIA to members of review organizations. See Sw. Cmty. Health Servs., 107
N.M. at 198, 755 P.2d at 42; see also Leyba, 114 N.M. at 689, 845 P.2d at 783 (emphasizing
that the ROIA “reflects a reasoned balance between the competing needs of the public for
frank and accurate review of a physician’s qualifications and the needs of physicians being

       3
          Although the criminal penalty is a compelling signal of legislative intent, other
provisions of the ROIA signal that the Legislature did not implicitly intend to
foreclose the possibility of private remedies for other types of ROIA violations. Because the
immunity provided under the ROIA is qualified in nature, a number of ROIA provisions
contemplate legal action that is non-criminal in nature, thereby serving as one signal that the
Legislature intended to allow for other remedies. See § 41-9-4 (stating that members of peer
review organizations who perform their duties with malice toward the scrutinized physician
can be held liable for “damages or other relief in any action brought by [the scrutinized
physician]”); see also § 41-9-3 (providing that individuals who knowingly provide false
information to a review organization “shall be subject to any action for damages or other
relief”).

                                              8
credentialed for a fair and impartial review process”). Specifically, the confidentiality
provision of the ROIA, and chiefly Section 41-9-5, serve to ensure an effective peer review
process by promoting participation in the process by physicians and other medical
professionals. This provision offers security to members that, assuming they are acting to
carry out one or more of the purposes of the review organization, they will not suffer
personal or professional harm as a result of their participation in, or based on the data and
information shared in the process or the communications made during the process. If
members of review organizations are subject to adverse employment consequences as a
result of their participation in the peer review process, there will be a chilling effect on future
participation by medical professionals in the process. Such a result is clearly contrary to
what the Legislature intended when it enacted the ROIA. Allowing a private remedy for a
violation of Section 41-9-5 would not frustrate the underlying purposes of the ROIA.

{22} In arguing that the ROIA should not be interpreted under the National Trust factors
to provide for a private right of action, the dissent expresses concern regarding the reach of
our holding. In particular, the dissent raises doubt that the Legislature intended to absolutely
immunize from discipline all conduct by a member of a review organization during the peer
review process and goes on further to point to a number of hypothetical scenarios during a
peer review meeting that it maintains should not be protected from disclosure. However, as
the dissent acknowledges, the language of Section 41-9-5(A) prohibits the disclosure of what
transpired at a meeting of a review organization “except to the extent necessary to carry out
one or more of the purposes of a review organization.” Thus, the disclosure provision is not
absolute in nature, and our holding assumes that a member of a review organization was
acting to carry out one or more purposes of the review organization.

{23} Based on the foregoing, we conclude that a private cause of action can arise for
violation of Section 41-9-5 and, therefore, the district court did not err in submitting this
cause of action to the jury.

2.      Breach of Implied Promise

{24} Eastern argues that the district court erred in allowing Dr. Yedidag to submit a claim
to the jury that Eastern violated Dr. Yedidag’s employment agreement by breaching an
implied promise within the agreement that Dr. Yedidag would not suffer adverse
employment consequences as a result of his participation in the peer review process. The
jury determined that Eastern breached this implied promise. As we understand its argument,
Eastern contends that the claim should not have been submitted to the jury because Dr.
Yedidag’s employment agreement controlled the manner and methods by which he could be
terminated, and the implied promise improperly contradicted the express terms of the
agreement.

{25} We are not persuaded. Eastern appears to argue that the implied promise contradicts
the express termination provisions in the employment agreement because it precluded
Eastern from considering Dr. Yedidag’s conduct during the peer review meeting as a basis
for termination. Eastern states that implied promises cannot contradict the express terms of
a contract; however, we are not convinced that the implied promise that Eastern takes issue


                                                9
with actually contradicts the express terms of Dr. Yedidag’s employment agreement. The
jury found that Eastern breached an implied promise that Dr. Yedidag would not suffer
adverse consequences to his employment or staff privileges as a result of his participation
in the peer review process. There is nothing in the language in this particular implied
promise, as submitted to the jury on the special verdict form, that the implied promise was
meant to encompass conduct in addition to Dr. Yedidag’s participation in the peer review
process. The district court did not prevent Eastern from arguing throughout trial that it
terminated Dr. Yedidag as a result of what Eastern considered to be unprofessional conduct
during the peer review process. There is no dispute that Eastern was able to present
evidence and argument at trial as to its interpretation of the employment agreement as well
as its view of the implied promise raised by Dr. Yedidag as a basis for termination. We
conclude that there was no error.

3.     Award of Punitive Damages

{26} Eastern challenges the jury’s award of punitive damages on two grounds, arguing that
(1) there was insufficient evidence to support the award, and (2) the award violates due
process.

{27} We first consider Eastern’s argument that the punitive damages award was not
supported by sufficient evidence. Punitive damages are awarded for the purposes of
punishing wrongdoing and deterring both the wrongdoer and others from the commission
of similar offenses. Madrid v. Marquez, 2001-NMCA-087, ¶ 4, 131 N.M. 132, 33 P.3d 683.
In order to support an award, there must be some evidence of a culpable mental state on the
part of Eastern. In this case, the jury was instructed that it could award punitive damages
against Eastern if it found that “the conduct of Rich Robinson, Sara Williamson, Michael
Keuker, or Barbara Harned was malicious, willful, reckless, wanton, fraudulent or in bad
faith[.]” On appeal, Eastern contends that the punitive damages award was not supported
by sufficient evidence because Eastern terminated Dr. Yedidag after consulting with legal
counsel and because the law was unsettled as to whether the ROIA protected Dr. Yedidag
from facing adverse employment consequences as a result of the peer review process.
Eastern argues that this case is similar to Lujan v. Pendaries Properties, Inc., 96 N.M. 771,
775, 635 P.2d 580, 584 (1981), a case where the Supreme Court reversed an award of
punitive damages because the defendant had acted on the advice of counsel and because he
had taken a legal position that was not without some justification. However, our review of
Lujan indicates that this was not the sole basis for the Supreme Court’s decision to vacate
the punitive damages award. Significantly, the Court there also considered the other
evidence cited in support of the district court’s award of punitive damages and found that
this evidence was insufficient to show that the defendant had acted with a culpable mental
state. Id. Thus, we disagree with Eastern that Lujan stands for the proposition that an award
for punitive damages may be vacated solely because the defendant acted based on the advice
of counsel. Rather, it is one fact that may be considered, amongst others, in determining
whether there was sufficient evidence to support an award of punitive damages.

{28} Aside from citing to testimony from an Eastern administrator that he terminated Dr.
Yedidag after consulting with legal counsel, Eastern fails to show why the jury could not


                                            10
have reasonably inferred from the other evidence presented at trial that Eastern acted
maliciously, willfully, recklessly, wantonly, fraudulently, or in bad faith. As a result of
Eastern’s failure to sufficiently develop its argument and present the facts necessary for our
review of its sufficiency challenge, we do not consider its argument any further. See
Martinez v. Sw. Landfills, Inc., 115 N.M. 181, 186, 848 P.2d 1108, 1113 (Ct. App. 1993)
(stating that the appellate court will not consider an insufficiency of evidence argument
without presentation of the evidence as a whole or based only on facts that tend to support
the argument).

{29} We next consider Eastern’s argument that the punitive damages award violates due
process. Whether an award of punitive damages comports with constitutional due process
is a question of law that we review de novo. Aken v. Plains Elec. Generation &
Transmission Coop., Inc., 2002-NMSC-021, ¶ 19, 132 N.M. 401, 49 P.3d 662. Following
BMW of North America, Inc. v. Gore, 517 U.S. 559, 575 (1996), our review takes three
criteria into account: “[(1)] the degree of reprehensibility of the defendant’s misconduct[,
(2)] the disparity between the harm (or potential harm) suffered by the plaintiff and the
punitive damages award[,] and [(3)] the difference between the punitive damages awarded
by the jury and the civil penalties authorized or imposed in comparable cases.” Aken,
2002-NMSC-021, ¶ 20. Eastern makes no argument as to the first and third BMW of North
America factors and instead makes a cursory argument as to the second factor. It contends
that the amount of the punitive damages award was so unrelated to the injury as to “plainly
manifest passion and prejudice rather than reason or justice[,]” Aken, 2002-NMSC-021, ¶
23 (internal quotation marks and citation omitted), because: (1) the award was not based on
a bad faith breach of Dr. Yedidag’s employment agreement, and (2) the award was based on
the ROIA claim that does not exist. We disagree. As we have already determined, the ROIA
claim was validly submitted to the jury and therefore could have served as a basis for the
award of punitive damages. And although the jury found that Eastern did not violate a duty
of good faith and fair dealing implied in Dr. Yedidag’s employment agreement, Eastern fails
to explain why the jury nevertheless could not have found that Eastern acted in bad faith.
Nor does Eastern explain why the jury’s award of punitive damages could not have been
based on malicious, willful, or reckless conduct as those terms were defined in the jury
instruction on punitive damages. Finally, like its approach to the other arguments it raised
on appeal, Eastern’s briefing failed to otherwise undertake any traditional analysis of the
second BMW of North America factor that would permit meaningful review of the
constitutional muster of the punitive damages award. See 517 U.S. at 560. We therefore
conclude that there is no basis to reverse the award of punitive damages on constitutional
due process grounds.

4.     Jury Polling

{30} Eastern argues that the district court committed reversible error by sending the jury
back to the jury room for further deliberations on the proximate cause question tied to Dr.
Yedidag’s breach of contract claim as a result of the colloquy between the district court and
the jury during the course of polling. Eastern contends that the district court’s actions were
coercive and constituted impermissible “verdict-urging.”



                                             11
{31} To provide context, we first provide the relevant portion of the special verdict form
as well as the colloquy between the district court and the jury during polling. With regard
to Dr. Yedidag’s breach of contract claim, the special verdict read as follows:

       3.    Did Eastern breach its employment contract with Dr. Yedidag?
       _____ YES _____ NO

       3A.     If you have answered Yes to this Question, please indicate by a check
       in the appropriate blank the violation found.

               _____ Eastern breached its implied promise that there would be no
                     adverse consequences to Dr. Yedidag’s employment or staff
                     privileges as a consequence of his participation in the peer
                     review process.

               _____ Eastern violated its duty of good faith and fair dealing . . . .

               _____ Eastern’s discharge of Dr. Yedidag for being a disruptive
                     employee did not conform . . . .

       3B.   Also put Yes in each appropriate blank if you found that any violation
       checked above if that violation was a proximate cause of Dr. Yedidag’s
       damages.

After the jury concluded its deliberations and returned to the courtroom with its verdict, the
district court proceeded to review the completed special verdict form. With regard to the
above questions, the district court stated that the jury had answered “Yes” to Question 3 and
had placed a check mark in the blank for the first violation listed under Question 3A. The
court then stated that in response to Question 3B, the jury had not placed a “Yes” next to the
check mark. The following specific exchange occurred between the court and the jury
foreperson regarding Question 3B:

       THE COURT:                      [Question] 3B indicated [to] put [Y]es in each
                                       appropriate blank if you found that any
                                       violation checked above . . . was a proximate
                                       cause of Dr. Yedidag’s damages[. T]here is
                                       no [Y]es next to the subsection.

       THE FOREPERSON:                 Did we forget something?

       THE COURT:                      Do you want to go back in—

       THE FOREPERSON:                 I think the way we have it is the way we
                                       wanted it.

The court then continued to read the jury’s answers on the remainder of the special verdict


                                             12
form. Thus, the initial answers on the special verdict form indicated that the jury did not find
that Eastern’s violation of the implied promise was a proximate cause of Dr. Yedidag’s
damages.

{32} At Eastern’s request, the district court then proceeded to poll the jury, during which
the following colloquy occurred regarding Question 3B:

       THE COURT:              [T]he next question was also put [Y]es in each
                               appropriate blank if you found that any violation
                               checked above, if that violation was a proximate
                               cause of Dr. Yedidag’s damages. With regard to the
                               one [violation] that you checked, there is no [Y]es
                               next to it, was that your decision?

       THE CLERK: [Juror] 74?

       [JUROR 74]: Yes, I guess. I’m lost again.

       THE COURT:              Maybe what we should do is have the jury go back in
                               to consider that one question. And, ladies and
                               gentleman, you have found—at least five of you have
                               checked off this bottom one. You need to next
                               answer if you feel that was a proximate cause of
                               damages[,] you need to write [Y]es next to it[;] if you
                               don’t, leave it—don’t put yes next to it. Okay. So
                               we’ll send the jury back in. . . .

                               ....

       [Eastern]:              Before we did do that, . . . could [we] object to
                               sending them back[?] . . . .

       THE COURT:              Let me just state that the jury was requested to be
                               polled. We were polling the jury, the jury expressed
                               confusion with regard to that question. I have asked
                               them and I believe instructed them correctly as to if
                               they intended [Y]es[,] they needed to put it, if they
                               didn’t, they didn’t. They’re simply going to clarify
                               for purposes of polling so the objection is overruled.

When the jury returned from the jury room, the special verdict form included a “Yes” in
answer to Question 3B next to the checked violation of an implied promise. The district
court re-polled the jury on Question 3B, and all six jurors indicated their assent to the answer
to Question 3B.

{33}   Eastern argues on appeal that the district court improperly overruled its objection.


                                              13
We disagree. The district court did not err in permitting the jury to return to the jury room
for further deliberations with regard to Question 3B. As this Court stated in Sanchez v.
Martinez, 99 N.M. 66, 73, 653 P.2d 897, 904 (Ct. App. 1982), “[f]undamental justice
requires that a verdict returned by a jury be certain as to its import, and be free from
ambiguity or inconsistency.” “The object of a poll is to give each juror an opportunity,
before the verdict is recorded, to declare in open court his assent to the verdict which the
foreman has returned and thus to enable the court and the parties to ascertain for a certainty
that each of the jurors approves of the verdict as returned.” State v. Holloway, 106 N.M.
161, 164, 740 P.2d 711, 714 (Ct. App. 1987) (internal quotation marks and citation omitted);
see 75B Am. Jur. 2d Trial § 1523 (observing that “[t]he jury poll is the primary device for
uncovering the doubt or confusion of individual jurors”). Here, the response given by Juror
74 during the polling of Question3B indicated that the juror was uncertain or confused as to
his/her answer to that question. Under these circumstances, it was not improper for the
district court to send the jury back for further deliberations. See Holloway, 106 N.M. at 165,
740 P.2d at 715 (indicating that “[t]he trial court . . . has discretion respecting the proper
remedial measures which should be taken when polling reveals that a juror’s verdict is
uncertain or qualified[,] . . . [including] directing the jury to retire to continue its
deliberations”); see also Rule 1-038(F) NMRA (providing that in civil cases, “[e]ither party
may require the jury to be polled, which is done by the court or clerk, asking each juror if
it is the juror’s verdict; if upon such inquiry or polling, more than one of the jurors disagree
thereto, the jury must be sent out again” for further deliberations).

{34} Eastern also contends that the district court’s statements to the jury during polling
were coercive and that the court urged the jury during polling to change its answer to
Question 3B. Our review of the polling indicates that the district court’s statements to the
jury regarding Question 3B were neutral in form and substance. To the extent that Eastern
takes issue with the fact that the jury changed the special verdict form and answered “Yes”
to Question 3B during the additional deliberations, the general rule is that there is no final
verdict until the jury has been discharged. See Hurst v. Citadel, Ltd., 111 N.M. 566, 570,
807 P.2d 750, 754 (Ct. App. 1991). Because the jury was not discharged in this case until
after further deliberations were completed, the jury was permitted to change the form and
substance of its verdict to coincide with its intention during the course of those additional
deliberations. We conclude that there is no basis for reversal on this issue.

5.     Admission of Medical Evidence

{35} Eastern summarily argues that the district court erred in admitting evidence in the
form of medical records and physician testimony concerning the medical case that was the
subject matter of the peer review meeting. We review the admission of evidence for an
abuse of discretion. See Nelson v. Homier Distrib. Co., 2009-NMCA-125, ¶ 29, 147 N.M.
318, 222 P.3d 690. “An abuse of discretion occurs when the ruling is clearly against the
logic and effect of the facts and circumstances of the case.” Wilde v. Westland Dev. Co.,
2010-NMCA-085, ¶ 30, 148 N.M. 627, 241 P.3d 628 (internal quotation marks and citation
omitted).

{36}   Eastern’s argument is limited in length and scope; in the span of a few sentences,


                                              14
Eastern broadly argues that the evidence was improperly admitted because it was unduly
prejudicial and that it “likely influenced the jury.” Although Eastern provides record
citations for the evidence it alleges was improperly admitted, Eastern fails to give a detailed
description of the evidence and fails to explain, with appropriate supporting authority, why
the district court’s relevancy determinations regarding the evidence were incorrect.
Eastern’s undeveloped argument precludes meaningful appellate review of its relevancy
argument. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110
P.3d 1076 (stating that this Court “will not review unclear arguments, or guess at what [a
party’s] arguments might be”).

{37} To the extent that Eastern contends the evidence was unduly prejudicial, we are again
unpersuaded due to Eastern’s failure to adequately develop this argument. Eastern provides
no explanation as to why the evidence was unduly prejudicial and fails to cite to any
supporting authority. We also observe that Eastern’s briefing ignores the fact that the district
court issued, at Eastern’s request, a limiting instruction to the jury regarding the use of the
medical evidence at trial. We assume that the jury followed the court’s instruction absent
evidence to the contrary. See Norwest Bank N.M., N.A. v. Chrysler Corp., 1999-NMCA-070,
¶ 40, 127 N.M. 397, 981 P.2d 1215 (recognizing that the jury is presumed to follow the
court’s instruction). Eastern did not object to the content of the limiting instruction when
it was given at trial, and on appeal, Eastern makes no argument as to why the limiting
instruction was not adequate to overcome the prejudice that it contends allegedly resulted
from the admission of the evidence. Thus, we affirm the district court’s ruling regarding the
admission of the medical evidence.

6.      Attorney Fees

{38} Eastern’s final argument on appeal challenges the district court’s award of attorney
fees to Dr. Yedidag. We review an award of attorney fees for an abuse of discretion. See
N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-028, ¶ 6, 127 N.M. 654, 986 P.2d
450. However, we review the application of the law to the facts de novo. Id. ¶ 7. New
Mexico follows the American rule regarding attorney fees, which is that, absent statutory
authority, court rule, or contractual provision, litigants are responsible for their own attorney
fees. Id. ¶ 9. In this case, the award of attorney fees was based on a contractual provision
in Dr. Yedidag’s employment agreement with Eastern, which provided that “[i]n the event
that either party resorts to legal action to enforce the terms and provisions of this
[a]greement, the prevailing party shall be entitled to recover the costs of such action so
incurred, including, without limitation, reasonable attorney[] fees and applicable court
costs.”

{39} On appeal, Eastern contends that the award of attorney fees based on this provision
was erroneous because the jury found that Eastern breached an implied promise in the
employment agreement, which Eastern argues is a legally invalid claim. Eastern reiterates
its earlier argument that the implied promise contractual claim cannot legally exist because
it contradicts the express written termination provisions of the employment agreement.
However, we have already rejected Eastern’s argument that the implied promise claim was
legally invalid. See Opinion at ¶ 24. Since Eastern offers no additional rationale as to why


                                              15
the award of attorney fees was improper, we have no other basis upon which to consider this
argument further. We therefore affirm the award of attorney fees.

CONCLUSION

{40} We hold that a member of a review organization can bring a private cause of action
arising from an alleged violation of Section 41-9-5 of the ROIA. We affirm the jury verdict.

{41}   IT IS SO ORDERED.

                                             ____________________________________
                                             LINDA M. VANZI, Judge

I CONCUR:

____________________________________
M. MONICA ZAMORA, Judge

JONATHAN B. SUTIN, Judge (dissenting)

SUTIN, Judge (dissenting).

{42} I respectfully dissent. Dr. Yedidag’s private right of action and implied promise
claims should have been dismissed.

{43} Paragraph 2 of the employment agreement entitled “Establishment of Professional
Relationship” required Dr. Yedidag to “render professional medical services and such
reasonable administrative and management services as may be delegated to [him] . . . in
accordance with all of the terms and conditions of [the a]greement.” Dr. Yedidag was also
required to “devote full time and attention, with [his] best endeavors and skill for the
interest, benefit[,] and best advantage of [Eastern].” Paragraph 5.1(d) of the employment
agreement imposed upon Dr. Yedidag the duties of “providing professional medical services
and conducting professional duties in accordance with applicable law and with the current
medical standards in the community[.]” Paragraph 10.1 of the Agreement sets out fifteen
separate events the occurrence of which permitted Eastern to terminate the employment
agreement. Among the events were:

              (j)    [Eastern’s] determination that [Dr. Yedidag’s] continued
       employment would pose an unreasonable risk of harm to patients or others
       or would adversely affect the confidence of the public in the services
       provided by [Eastern];

               (k)   [Eastern’s] determination that [Dr. Yedidag] has engaged in
       gross insubordination or gross dereliction of duty;

               ...


                                            16
               (m)     conduct by [Dr. Yedidag] which is reasonably considered by
       [Eastern] to be unethical, unprofessional, . . . or adverse to the interest,
       reputation[,] or business of [Eastern.]

The employment agreement and thus Dr. Yedidag’s employment were terminated pursuant
to Paragraphs 10.1(j), (k), and (m) of the agreement.

{44}   Eastern’s termination letter addressed to Dr. Yedidag stated:

               As you recall, at a meeting on August 3, 2006, you were advised that
       the behaviors you exhibit with employees, Hospital administration, and other
       members of the Hospital’s [m]edical [s]taff must cease, including, but not
       limited to, your continued unprofessional behavior and language. We
       outlined these issues in a letter to you dated August 4, 2006. In the meeting,
       and again in the letter, we cautioned that failure to comply would result in
       immediate suspension and possible termination of the employment
       agreement. Your continued disruptive behavior violates the provisions set
       forth above, indicates you cannot or will not conform your behavior, and
       leads us to conclude that termination of your employment is the only
       practical remedy.

Paragraph 10.2 of the employment agreement states that “if either party fails to perform or
commits a material breach of any provision in this [a]greement . . . then the other party
thereafter may immediately terminate this [a]greement[.]” Paragraph 10.3 extends to the
parties “any other rights and remedies that the parties may have at law or in equity.”
Paragraph 20 entitles the prevailing party in an action to enforce the employment agreement
to reasonable attorney fees.

{45} Several aspects of Dr. Yedidag’s case and briefs show that this case was nothing
more than a breach of employment contract case. He could have sued on the basis that
insufficient grounds existed to support termination of the agreement. In such an action, he
could have attempted, for example, to show that the termination was based on specious or
clearly insubstantial grounds or that relying on the peer review conduct was purely
pretextual or a ruse or hidden agenda to complete a decision already made to terminate,
perhaps even with malicious motive.

{46} Noteworthy in that regard is Dr. Yedidag’s answer brief statement: “Eastern’s
discharge of Dr. Yedidag for unprofessional conduct was in violation of the express terms
of its agreement with [him], whether or not that agreement also implied that he could not be
discharged for peer review participation.” (Emphasis added.) Dr. Yedidag argues that “[the]
breach empower[ed] others than Dr. Ali . . . to use the peer review meetings to harm” Dr.
Yedidag. (Emphasis added.) In an entire section of his answer brief, Dr. Yedidag takes the
position that the discharge violated not only alleged implied terms, but also the express terms
of the employment agreement. Dr. Yedidag also takes the position that the implied promise
he asserts constitutes an exception to the express provision of Paragraph 10.1(m) of the
employment agreement, which provides that grounds for termination include unprofessional


                                             17
conduct or conduct adverse to the interest, reputation, or business of Eastern. And Dr.
Yedidag consistently implies that Eastern’s motives were improper, including that it had a
financial stake in the outcome of a review committee proceeding. These comments indicate
that Dr. Yedidag’s claim presented to the jury could and should have been that Eastern
breached the agreement because Eastern lacked a justifiable basis on which to terminate the
agreement under Paragraph 10.1 of the agreement.

{47} Thus, the action that should have been pursued by Dr. Yedidag but was not pursued
was a common law action based on breach of the agreement for failure to justifiably or
lawfully terminate the agreement under Paragraph 10.1. New Mexico cases reflect actions
for breach of an employment agreement. See, e.g., Garcia v. Middle Rio Grande
Conservancy Dist., 1996-NMSC-029, ¶¶ 1, 19, 21, 121 N.M. 728, 918 P.2d 7 (reversing
summary judgment in favor of an employer and remanding the case to allow the employee
to pursue his breach of employment contract claim based on the existence of a written
employment contract); Danzer v. Prof’l Insurors, Inc., 101 N.M. 178, 180, 679 P.2d 1276,
1278 (1984) (reviewing a challenge to the amount of damages awarded to an employee for
an employer’s breach of their employment agreement); cf. UJI 13-2306 NMRA (stating that
if the employer agreed that the employee could be discharged only for cause, the employer
could discharge the employee without violating the agreement if the employer in fact had
a sufficient cause to justify the discharge of the employee and that belief was reasonable).
And cases reflect actions for wrongful discharge, alleging an implied contract based in part
on an employee handbook. See, e.g., Hudson v. Vill. Inn Pancake House of Albuquerque,
Inc., 2001-NMCA-104, ¶ 4, 131 N.M. 308, 35 P.3d 313; cf. UJI 13-2302 NMRA (discussing
that wrongful discharge can be considered when an employee claims an implied agreement
that he or she could be discharged only for cause). Perhaps Dr. Yedidag should not have
dropped his claim for retaliatory discharge. See UJI 13-2304 NMRA (containing the
instruction for retaliatory discharge). Notably, Dr. Yedidag did seek recovery for common
law breach of contract on the limited basis of Eastern’s alleged failure to follow “the
procedural requirements guaranteed under the medical staff by-laws to being designated a
disruptive employee” by not providing for any appeal process as to such designation. The
jury expressly rejected that claim.

{48} It appears that Dr. Yedidag consciously chose to take the private right of action and
implied promise approaches so as not to have to litigate the factual basis for Eastern’s
termination of the employment agreement under the express termination provision in
Paragraph 10.1. As indicated earlier in this dissenting opinion, approximately three months
before the peer review process took place, Eastern had advised Dr. Yedidag that the
behaviors he exhibited with hospital employees, administration, and other members of the
medical staff “must cease, including but not limited to, [his] continued unprofessional
behavior and language.” Dr. Yedidag was also “cautioned that failure to comply would
result in immediate suspension and possible termination[.]” After the peer review meeting
involving Dr. Ali, Eastern terminated the agreement with Dr. Yedidag.

No Implied Statutory Right to Sue or Implied Promise Exists

{49}   “The ROIA establishes a medical peer review process to promote the improvement


                                            18
of health care in New Mexico. Further, it recognizes that candor and objectivity in the
critical evaluation of medical professionals by medical professionals is necessary for the
efficacy of the review process.” Sw. Cmty. Health Servs., 107 N.M. at 198, 755 P.2d at 42.
To effectuate that process, the ROIA provides immunity from damages for the medical
professionals who participate as members of a peer review committee so that they are not
discouraged from “participating in effective professional peer review.” Summers v. Ardent
Health Servs., L.L.C., 2011-NMSC-017, ¶ 13, 150 N.M. 123, 257 P.3d 943 (internal
quotation marks and citation omitted) (discussing the policy of utilizing professional peer
review actions to assure quality health care under ROIA and the Health Care Quality
Improvement Act, 42 U.S.C. §§ 11101 - 11152 (1986)); see NMSA 1978, §§ 41-9-3, -4
(1979).

{50} Section 41-9-3 limits the liability of persons providing information to the review
organization, and under Section 41-9-4 liability of members of the review organization is
limited. For our purposes here, a “review organization” is defined as “an organization whose
membership is limited to health care providers and staff . . . and which is established by a
health care provider which is a hospital . . . to gather and review information relating to the
care and treatment of patients for [various] purposes[.]” Section 41-9-2(E). Among the
eight enumerated purposes of the peer review process are “(1) evaluating and improving the
quality of health care services rendered in the area or by a health care provider; (2) reducing
morbidity or mortality; . . . [and] (8) determining whether a health care provider shall be
granted authority to provide health care services using the health care provider’s facilities
or whether a health care provider’s privileges should be limited, suspended[,] or revoked.”
Section 41-9-2(E)(1), (2), (8).

{51} Dr. Yedidag characterizes the circumstances of the termination of the employment
agreement as follows: “Dr. Yedidag was discharged for persistently questioning Dr. . . . Ali
. . . during a peer review meeting about a botched surgical procedure in which Dr. Ali missed
one of two tumors he had attempted to remove [from a patient’s] colon” and about a second
surgical procedure performed by Dr. Ali that resulted in the patient’s death. I refer generally
to the particular subject of the peer review process as a “target” of the process. In this case,
the obvious target of the peer review meeting was Dr. Ali.

{52} Section 41-9-4 would be the immunity focus were Dr. Ali to have sued Dr. Yedidag.
The doctor-member’s involvement in the peer review process and the target’s activities are
what Section 41-9-4 addresses in terms of limitation of the doctor-member’s liability. It is
noteworthy that the doctor-member has only qualified, not absolute, immunity. Leyba, 114
N.M. at 687, 845 P.2d at 781.

{53} Here, however, we have Dr. Yedidag suing his employer for violating Section 41-9-5
of the ROIA. Section 41-9-5(A) states that “all data and information acquired by a review
organization in the exercise of its duties and functions shall be held in confidence and shall
not be disclosed to anyone except to the extent necessary to carry out one or more of the
purposes of the review organization[.]” It further prohibits those persons who are protected
in Section 41-9-4 from “disclos[ing] what transpired at [the] meeting . . . except to the extent
necessary to carry out one or more of the purposes of the review organization[.]” Section


                                              19
41-9-5(A). I read the confidentiality and disclosure provisions in Section 41-9-5 to exist
primarily to protect a target because the target is precluded under Section 41-9-4 from suing
those protected under Section 41-9-5. The protection consists of the threat of criminal
prosecution under Section 41-9-6 against any person who improperly discloses data or
information acquired in the process that could harm the target.

{54} I acknowledge that Section 41-9-5 appears to be broad enough to cover the improper
disclosure of data and information acquired by the review organization that have the
potential of harming persons other than the target. Nevertheless, no New Mexico case has
addressed that question, and Dr. Yedidag’s attempt to support the breadth of the disclosure
provision with any case law fails. Dr. Yedidag cites one case, Fox v. Kramer, 994 P.2d 343
(Cal. 2000), for the proposition that he is protected. Fox does not assist Dr. Yedidag in any
regard.

{55} Fox involved discovery in a civil malpractice action of a health department expert
who reviewed confidential hospital peer review materials. Id. at 345, 348. The malpractice
action had been filed by an injured patient against the target of the peer review process. Id.
at 345-46. The California Supreme Court, in discussing the pertinent statute, stated that one
of its purposes was “to protect physicians who participate in peer review from the burden
of discovery and court appearances in malpractice actions against their peers; such purpose
is inapplicable when a physician is willing to testify voluntarily.” Id. at 348. Fox simply
protects a physician who participates in peer review from discovery and involuntary
testimony in a malpractice action against the target of a peer review process. Fox in no way
protects the participating physician from disciplinary action by a hospital-employer based
on information received by the hospital of that physician’s improper, unprofessional conduct
during the process.

{56} The ROIA should not be interpreted under the National Trust factors to provide for
a private right of action for violation of the disclosure provision. See Nat’l Trust, 117 N.M.
at 593, 874 P.2d at 801. Assuming that Section 41-9-5 was intended to protect a class that
includes a doctor-member of a peer review board for some purposes, the class being
protected in the statute should not be read to include a doctor at risk for being disciplined by
the hospital for unprofessional conduct. No part of the statute governs personnel matters,
including discipline for unprofessional conduct. If the Legislature intended the statute to
relate to personnel matters, it would have said so. Nothing in the statute evidences a
legislative intent, expressly or implicitly, to create in the doctor-member of a peer review
board a private right of action or remedy based on Eastern’s disciplinary action taken under
the express provisions of the employment agreement. If the Legislature intended to create
such right or remedy, it would have said so. The Legislature instead provided for criminal
sanction.

{57} Further, the term “transpired” as it is used in Section 41-9-5 cannot be read to
prohibit the disclosure of contractually prohibited unprofessional conduct of doctor-members
of a peer review board during a meeting. In addition, to the extent that the Legislature
intended to prohibit the disclosure of anything beyond data and information, it cannot have
intended “transpired” to provide absolute immunity from discipline for unprofessional


                                              20
conduct of a participating doctor-member, who, as an employee of the hospital, could be
fired for such conduct under an employment agreement. Yet absolute immunity from
discipline is what the district court created. By interpreting “transpired” as covering
anything Dr. Yedidag said or did, the district court established as a matter of law absolute
immunity for him from termination under the employment agreement or, for that matter,
from any sort of further disciplinary warnings for any conduct during the process. Oddly,
under the district court’s interpretation, Dr. Yedidag has absolute immunity from such
adverse employment action (which, hereafter, for simplicity, I refer to as “discipline”), but
only qualified immunity from suit by the target.

{58} “Transpired” must be interpreted in the context of the statute as a whole. Nothing
in the context of the entire statute reasonably or rationally permits an interpretation of that
term to mean unprofessional conduct of a doctor for which the doctor could and should be
disciplined were the conduct to have occurred outside of the meeting. One can easily think
of conduct that in no way could reasonably or justifiably be considered protected such that
disclosure of it solely for discipline purposes would be subject to criminal prosecution.

{59} For example, one has to seriously doubt that the Legislature intended to grant
immunity to Dr. Yedidag from discipline were he to have persistently examined Dr. Ali with
brow-beating nastiness, venomous profanity, or ethnic slurs. What if Dr. Yedidag examined
a target stating that the target was a *&@**!!$ quack and a no-good ignorant liar that killed
the patient and deserved to go to jail or have his knees broken or worse, even were that
stated as his opinion? One has to seriously doubt that the Legislature intended to absolutely
immunize from discipline a doctor-member’s drugged or inebriated state, or words or
conduct that come within the proscriptions against discrimination based on race, religion,
sex, ethnicity, etc. And one must seriously doubt that the Legislature would intend that sort
of conduct to fit within the idea of the acquisition of data and information to carry out the
purposes of the review organization.

{60} It goes without saying that Eastern has an obligation to protect the public as well as
its own staff from doctors who engage in unprofessional conduct. This obligation should
supercede any notion that the hospital should refrain from discipline so as not to “chill” a
doctor’s participation in the peer review process where the conduct in question is
unacceptable and subject to discipline. The peer review process cannot be so sacrosanct as
to forbid discipline for unprofessional conduct. The district court’s ruling meant that nothing
a doctor-member does or says during a meeting, no matter what, can be disclosed for
discipline purposes. Under that ruling, no discipline could occur even if the conduct was
such that it would adversely affect medical care and constitute just and good cause for
discipline. Respectfully, the ruling simply makes little sense. It expands the law beyond
good reason.

{61} Along the same line, the disclosure of Dr. Yedidag’s conduct to Eastern for
disciplinary purposes comes within the Section 41-9-5(A) exception of disclosures
“necessary to carry out one or more of the purposes of the review organization[.]” The
disclosure of Dr. Yedidag’s conduct can be viewed as coming within the purpose of the
review organization relating to the care and treatment of patients for at least one or more of


                                             21
the eight purposes expressly enumerated in Section 41-9-2(E).

{62} Further, absolute immunity from discipline through a private or implied right of
action frustrates an underlying purpose of the ROIA, in that the peer review process is to
enhance the provision of good, professional medical care. To absolutely immunize a doctor-
member’s unprofessional conduct precludes the hospital from assuring that doctors who
engage in such conduct are disciplined. It is unreasonable to assume that either the
Legislature under the ROIA or Eastern under the employment relationship intended to create
or promise by implication a circumstance in which Eastern would forego its responsibility
to the public and its own staff to discipline a wayward doctor in exchange for requiring the
doctor as part of his or her employment to participate in the peer review process.

{63} I see nothing in the ROIA that permits a divination that the Legislature intended to
permit a doctor to sue the hospital for violating the disclosure clause when the “disclosure”
was behavior during a peer review process that constitutes an express basis of termination
under an employment agreement. Nor do I see any basis on which to create an implied
promise that Eastern would refrain from any disciplinary action growing out of a member’s
conduct in a peer review meeting. Dr. Yedidag cites no case that supports his position that
he should have absolute or, for that matter, even a qualified immunity, from discipline. His
citations to Summers and Southwest Community Health Systems provide nothing more than
general statements as to the goal and purpose of peer review legislation.

{64} If permitting discipline tends to chill the peer review process, then rather than the
court creating, as it does here, a claim for a ROIA violation or an implied promise,
permitting absolute immunity from discipline, the court should leave it to the Legislature to
make clear what the more important policy to implement is for the overall policy goal of
enhancing medical care.

{65} Eastern presents cases from other jurisdictions indicating that courts will not create
a private right of action when the statutes provide criminal penalties for violations but do not
specifically provide for a private right of action. Dr. Yedidag cites no case to the contrary.
In fact, he cites no case that has held that a doctor-member of a peer review committee has
a private right of action under a peer review statute to sue his or her hospital-employer for
a violation of a confidentiality clause in the statute. At most, if a violation of the ROIA has
allegedly occurred, the violation should be used, if at all, only as evidence to support a claim
for breach of the employment agreement.

{66} It is noteworthy that the jury expressly rejected Dr. Yedidag’s claim asserting breach
of the implied-in-law covenant of good faith and fair dealing. Even were the implied
covenant of good faith and fair dealing an issue, that covenant “cannot be used to overcome
or negate an express term contained within a contract.” Sanders v. FedEx Ground Package
Sys., Inc., 2008-NMSC-040, ¶ 8, 144 N.M. 449, 188 P.3d 1200. Nor can the covenant be
construed to imply “new, independent rights or duties not agreed upon by the parties.” A.I.
Transp. v. Imperial Premium Fin., Inc., 862 F. Supp. 345, 348 (D. Utah 1994) (internal
quotation marks and citation omitted).



                                              22
{67} In addition, and more important, nothing in the employment agreement or the
evidence supports any implied-in-fact covenant that can be based on the parties’ intentions.
See Davis v. Devon Energy Corp., 2009-NMSC-048, ¶ 33, 147 N.M. 157, 218 P.3d 75 (“[I]f
a covenant or promise does not operate to impose a duty as a matter of law, any implied
obligation must arise from the parties’ intentions.”). “[I]mplied covenants are not favored
in law, especially when a written agreement between the parties is apparently complete.”
Cont’l Potash, Inc. v. Freeport-McMoran, Inc., 115 N.M. 690, 704, 858 P.2d 66, 80 (1993).
Such a covenant cannot co-exist with or override express provisions of the parties’
agreement. Davis, 2009-NMSC-048, ¶ 29; Cont’l Potash, 115 N.M. at 704, 858 P.2d at 80;
Winrock Inn Co. v. Prudential Ins. Co. of Am., 1996-NMCA-113, ¶ 18, 122 N.M. 562, 928
P.2d 947.

{68} Finally, the manner in which this case was presented to the jury through the
instructions was virtually and effectively a direction to reach a verdict of violation of the
statute, leaving only the causation and damages issues for jury consideration. In my view,
this was further error requiring reversal.

{69} Instruction No. 4 reads, in pertinent part, that Dr. Yedidag sought damages that he
claims were caused by Eastern’s breach of the confidentiality requirement in the ROIA and
that to establish a violation, Dr. Yedidag had to prove that “[h]is words or actions . . . were
protected from disclosure[.]” Instruction No. 7 quoted the ROIA’s disclosure provision and
then stated: “Transpired means anything that occurred, happened, or took place.” The
instruction then stated, “[i]f you find from the evidence that Eastern’s employees violated
[the] statute then Eastern’s conduct constitutes negligence as a matter of law.” No
instruction defined or explained negligence or negligence per se. The fact of “disclosure”
was not an issue. The court was instructing the jury that Dr. Yedidag’s words or actions
necessarily transpired during the meeting and were protected from disclosure and that
Eastern violated the statute.

{70} The special verdict form then asked whether Eastern violated the ROIA and, if so,
whether the violation caused Dr. Yedidag’s damages. The special verdict form states that
if the answers are “yes” to these questions, the jury should proceed to award damages in
accordance with the damage instruction given by the court. Nothing in the special verdict
form mentions negligence or disclosure.

{71} The aggregate of the instructions and the special verdict form tells the jury under no
uncertain terms that any and all of Dr. Yedidag’s words or actions at the peer review meeting
were protected under the ROIA from disclosure and, upon the disclosure by Eastern’s
employees of any of his words or actions, Eastern violated the ROIA. The jury had little
choice but to answer “yes” on the special verdict form to the question whether Eastern
violated the ROIA and then move on to causation.

{72} When asked in oral argument whether some action or conduct by a doctor-member
might be disclosable and acted on by a hospital, Dr. Yedidag’s counsel’s answer was,
essentially, that that is not this case. But when pushed further, counsel conceded that some
forms of action or conduct could be outside of the non-disclosure bar. The concern in this


                                             23
case, as it went to the jury, is not whether Dr. Yedidag’s particular manner of questioning
was the type of conduct that would fall within or outside of the non-disclosure bar. The
concern is that the jury was instructed that, as a matter of law, any disclosure of a member’s
action or conduct constituted a violation of the statute simply because the action or conduct
transpired during the review process. The syllogism is:

       The ROIA was violated if conduct that transpired during the process was
       disclosed.

       Conduct that transpired during the process was disclosed.

       Therefor, the ROIA was violated.

This meant Eastern must be liable. The jury was given no choice but to find a violation.
And it was instructed that it could award damages upon the violation.

{73}   For all of the reasons discussed in this dissent, I would reverse the jury verdict.

                                              _____________________________________
                                              JONATHAN B. SUTIN, Judge




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