       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: _____________

Filing Date: October 21, 2013

Docket No. 31,585

RICHARD QUINTANA and
BLANCA QUINTANA,

       Plaintiffs-Appellants,

v.

STEVEN ACOSTA, M.D., NOR-LEA
HOSPITAL DISTRICT, and
NOR-LEA GENERAL HOSPITAL,

       Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
William Shoobridge, District Judge

Law Offices of Daymon B. Ely
Daymon B. Ely
Albuquerque, NM

Bette Velarde
Albuquerque, NM

for Appellants

Brown & Gay, P.C.
Remo E. Gay
Albuquerque, NM

for Appellee Acosta

Miller Stratvert P.A.
Thomas R. Mack
Albuquerque, NM

for Appellees Nor-Lea Hospital District & Nor-Lea General Hospital

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                                          OPINION

VIGIL, Judge.

{1}      In this medical malpractice case, Defendants moved to exclude the causation opinion
of Plaintiffs’ expert witness on the basis that the expert was unqualified to give his opinion
regarding the efficacy of prophylactic antibiotics and that the testimony was scientific
knowledge, which Plaintiffs were unable to establish as reliable. The district court agreed,
excluded the expert’s causation opinion, and therefore dismissed the case. Concluding that
the district court erred in ruling that the proposed testimony was scientific knowledge, which
requires compliance with Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), and State v. Alberico, 1993-NMSC-047, ¶ 58, 116 N.M. 156, 861 P.2d 192, we
reverse.

I.     BACKGROUND

{2}     Plaintiff Richard Quintana, who is diabetic, stepped on a nail while working in his
yard and suffered a puncture wound to the bottom of his left foot. Plaintiff did not realize
that he had been injured until that night as a result of his diabetes-related peripheral
neuropathy. Peripheral neuropathy causes a loss of sensation in the limbs, such as the feet.
After discovering the injury, Plaintiff went to the Nor-Lea General Hospital Emergency
Department, where he was treated by Defendant Dr. Steven Acosta. The parties dispute the
specifics of Dr. Acosta’s treatment, but they agree that a nurse cleaned the wound with an
antibiotic scrub and that Dr. Acosta administered a tetanus immunization, determined that
prophylactic antibiotics were unnecessary at that time, and instructed Plaintiff to monitor the
wound for signs of infection and to follow up with his primary care physician the next week.
Dr. Acosta later stated that he did not administer prophylactic antibiotics to Plaintiff because
“his wound looked clean,” and there was “no active bleeding, no surrounding erythema,
[and] no other lesions or discharge.”

{3}      Despite the written discharge instructions provided to him stating that he was to
“[f]ollow up with [his primary care physician] [next] week re: antibiotics,” Plaintiff did not
seek a follow-up appointment with his primary care physician. Six days after his visit to the
emergency room, Plaintiff traveled to Mexico, where he experienced a throbbing sensation
and pain in his foot and observed drainage from the puncture wound. Plaintiff was
hospitalized in Mexico, where he received intravenous antibiotics consisting of clindamycin
and ceftriaxone, vancomycin and ceftriaxone, and vancomycin and imipenem. Plaintiff
returned to the United States to receive medical care at the University of New Mexico
Hospital, which culminated in a transmetatarsal amputation of his left foot a month after his
initial injury.

{4}     Plaintiff and his wife, Blanca Quintana, brought a medical malpractice suit against
Dr. Acosta, alleging that Dr. Acosta had “negligently treated [Plaintiff] by . . . failing to
prescribe antibiotics, secure an immediate follow up, convey to the patient the importance

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of his injuries or otherwise act in a reasonable manner for physicians.” Plaintiffs also sued
against the Nor-Lea General Hospital (Hospital) as Dr. Acosta’s employer, and the Nor-Lea
Hospital District (Hospital District) as the owner and operator of Hospital.

A.     Plaintiffs’ Expert Witness

{5}     Plaintiffs retained Dr. Robert P. Wahl, a board-certified emergency medical
physician, as their expert witness. Dr. Wahl presented his conclusions in a report in which
he determined that “the essence of this case distills to the management of a puncture wound
to the foot and an opinion as to whether antibiotics were indicated in the initial treatment of
this patient.” Dr. Wahl noted the following factors:

              1.)     time of the injury: This is not clear from the documentation
       provided; “early in the day” is the phrase used in the emergency department
       note. Timing plays a significant role in the potential for wound infection.
       Wounds untreated for greater than 6 hours have a higher infection rate. Mr.
       Quintana presented to the emergency department at 7:15 pm to be evaluated.
       The potential for his wound to be greater than 6 hours old is present.

               2.)     mechanism/extent of the injury: The mechanism appears to
       be a puncture wound with a nail through footwear (shoe and sock) to the sole
       of the left foot/toe. The patient was unaware of the injury likely due to
       diabetes-related peripheral neuropathy and the potential for deep penetration
       and/or repeated injury (taking more than one step with the nail punctured
       through his shoe) was present. Additionally, wounds to the foot through a
       rubber-soled shoe have an increased rate of infection with Pseudomonas
       species bacteria. . . .

              3.)     environment where the injury occurred: Mr. Quintana was
       gardening at the time of injury. The potential for inoculation of the wound
       with contaminants from the soil is present. . . .

               4.)     factors that contribute to an increased risk of infection in
       wounds: Mr. Quintana is a known diabetic patient, with the anatomic
       location of the wound being in the lower extremity, and a time delay from
       injury to treatment, all of which place Mr. Quintana at increased risk for
       wound infection.

{6}     Dr. Wahl stated that “[g]iven the information provided, assuming this was a puncture
wound to the plantar aspect of the left great or second toe, through footwear, with a delay
of ‘hours’ before treatment, in a diabetic patient who had been working in his garden
(potential for soil contamination), it is my medical opinion that antibiotics should have been
initiated in the initial course of treatment from the emergency department to reduce the
potential for wound infection.” By failing to do so, Dr. Wahl testified, Dr. Acosta violated

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the standard of care. In a subsequent affidavit, Dr. Wahl noted that “the more time
organisms have to ‘set up shop’ in terms of beginning to multiply permits these organisms
to do damage if not treated appropriately.” Thus, Dr. Wahl concluded, “Dr. Acosta’s failure
to prescribe antibiotics and his failure to properly instruct his patient reduced [Plaintiff’s]
chances, as a matter of reasonable medical probability, for a better outcome and specifically
reduce[d] the chances of recovering without having his foot amputated.”

B.     Motion to Exclude Dr. Wahl’s Opinion Testimony

{7}     Dr. Acosta filed a motion to exclude the causation opinion of Dr. Wahl. Dr. Acosta
first challenged Dr. Wahl as unqualified to render an opinion regarding the effect of
prophylactic antibiotics because “Dr. Wahl’s expertise in emergency medicine does not . .
. make him qualified or competent to render an opinion which is uniquely in the purview of
a specialist in infectious disease.” Dr. Acosta further challenged Dr. Wahl’s opinion on the
efficacy of prophylactic antibiotics as unreliable because it “has no support in
science/medicine and should, therefore, be excluded[.]”

{8}     Plaintiffs responded that the motion should be denied because “Dr. Wahl’s opinion
that the administration of prophylactic antibiotics would have resulted in a better outcome
is based on his thirty plus years of experience as an ER doctor in a hospital emergency room
environment, treating thousands of patients,” that “Dr. Wahl’s opinions regarding the use
of antibiotics are part of his differential diagnosis,” and that “[u]se of antibiotics is a
necessary part of a board[-]certified emergency room physician’s duties.”

{9}      The district court granted Dr. Acosta’s motion based on its findings of fact and
conclusions of law in which it concluded as a matter of law that Dr. Wahl was offering
scientific opinions based on scientific knowledge. The district court therefore considered
whether the Daubert-Alberico factors were satisfied as we applied them in Parkhill v.
Alderman-Cave Milling & Grain Co., 2010-NMCA-110, 149 N.M. 140, 245 P.3d 585, cert.
quashed, 2013-NMCERT-005, 302 P.3d 1162, were satisfied. Concluding that the necessary
predicate was not laid for the admission of Dr. Wahl’s opinions as scientific evidence, the
district court ordered that his opinions be excluded. The district court order states that Dr.
Wahl’s opinion testimony is to be excluded from trial because “the opinion is subject to the
Daubert/Alberico/Parkhill analysis and is not reliable or scientifically valid.” In addition,
the district court order states that Dr. Wahl’s opinion is to be excluded “on the basis that it
goes beyond the scope of expertise of the average emergency room physician.”

II.    DISCUSSION

{10} Plaintiffs challenge the district court’s application of the Daubert-Alberico analysis
to the admissibility of Dr. Wahl’s causation opinion. Specifically, Plaintiffs contend that Dr.
Wahl’s causation opinion is not based on scientific knowledge, but on his knowledge,
experience, and training as an emergency room physician and that it is admissible as such.
Dr. Acosta, on the other hand, asserts that the district court correctly concluded that Dr.

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Wahl’s causation opinion is both subject to and unreliable under the Daubert-Alberico
factors. The Hospital and Hospital District similarly argue that “[b]ecause Dr. Wahl’s
testimony involves scientific medical issues related to medical causation, specifically the
cause of [Plaintiff’s] infection, the study of bacteria and the use of medical agents and
treatment to control his infection, the [district court] appropriately and correctly determined
that Dr. Wahl’s opinion testimony must meet scientific evidentiary reliability and validity
standards and the [district court] properly applied the Daubert-Alberico evidentiary
analysis.” For the reasons which follow, we agree with Plaintiffs.

{11} The admission of expert testimony is governed by Rule 11-702 NMRA, which states:
“A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if the expert’s scientific,
technical, or other specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue.” Thus, the admission of expert testimony depends
on three requirements: “(1) that the expert be qualified; (2) that the testimony be of
assistance to the trier of fact; and (3) that the expert’s testimony be about scientific,
technical, or other specialized knowledge with a reliable basis.” State v. Downey, 2008-
NMSC-061, ¶ 25, 145 N.M. 232, 195 P.3d 1244. This case concerns only the first and third
requirements.

{12} In Loper v. JMAR, 2013-NMCA-___, ___ P.3d ___ (No. 31,357, July 3, 2013), we
recently addressed our standard of review on appeal in determining whether the foregoing
requirements have been satisfied. We said:

       The admission of expert testimony lies in the discretion of the trial court. An
       abuse of discretion standard of review, however, is not tantamount to rubber-
       stamping the trial judge’s decision, and we are not prevented from
       conducting a meaningful analysis of the admission of the expert testimony
       to ensure that the trial judge’s decision was in accordance with the Rules of
       Evidence and the evidence in the case. Moreover, when the trial court
       applies a wrong legal standard in determining whether evidence is
       admissible, an abuse of discretion results. Finally, we observe that in light
       of the liberal approach of our rules of evidence to the admission of evidence
       and the heightened qualifications of modern day jurors, any doubt regarding
       the admissibility of expert opinion evidence should be resolved in favor of
       admission, rather than exclusion.

Id. ¶ 18 (internal quotation marks and citations omitted).

{13} The question of whether expert opinion involves scientific knowledge presents a
question of law, which we review de novo. State v. Torres, 1999-NMSC-010, ¶ 28, 127
N.M. 20, 976 P.2d 20; State v. Aleman, 2008-NMCA-137, ¶ 6, 145 N.M. 79, 194 P.3d 110.
When the testimony involves scientific knowledge, a non-exclusive list of factors, which we
refer to as the Daubert-Alberico factors, is considered in determining whether the testimony

                                              5
is reliable and, therefore, admissible. These are:

       (1) whether a theory or technique can be (and has been) tested; (2) whether
       the theory or technique has been subjected to peer review and publication; (3)
       the known potential rate of error in using a particular scientific technique and
       the existence and maintenance of standards controlling the technique’s
       operation; (4) whether the theory or technique has been generally accepted
       in the particular scientific field; and (5) whether the scientific technique is
       based upon well-recognized scientific principle and whether it is capable of
       supporting opinions based upon reasonable probability rather than
       conjecture.

State v. Anderson, 1994-NMSC-089, ¶ 15, 118 N.M. 284, 881 P.2d 29 (internal quotation
marks and citation omitted).

{14} However, the Daubert-Alberico factors apply only when the district court is
evaluating the admissibility of scientific testimony. Torres, 1999-NMSC-010, ¶ 43. When
the expert testimony is non-scientific, but rather, based on the knowledge, training, or
experience of the witness, the Daubert-Alberico factors do not apply. Loper, 2013-NMCA-
___, ¶ 38. Nevertheless, the non-scientific testimony must be reliable to be admissible. Id.
“[W]hen testing the reliability of non-scientific expert testimony, rather than testing an
expert’s scientific methodology as required under Daubert and Alberico, the court must
evaluate a non-scientific expert’s personal knowledge and experience to determine whether
the expert’s conclusions on a given subject may be trusted.” State v. Torrez, 2009-NMSC-
029, ¶ 21, 146 N.M. 331, 210 P.3d 228.

{15} Dr. Wahl’s opinion is directed to whether Dr. Acosta’s failure to administer
prophylactic antibiotics in the emergency room reduced Plaintiff’s chance for a better
outcome. Our Supreme Court recognizes such a claim. In Alberts v. Schultz, 1999-NMSC-
015, 126 N.M. 807, 975 P.2d 1279, our Supreme Court stated that a claim for a loss of
chance is “predicated upon the negligent denial by a healthcare provider of the most
effective therapy for a patient’s presenting medical problem,” which may consist of “the
failure to timely provide the proper treatment.” Id. ¶ 11. “The injury is the lost opportunity
of a better result, not the harm caused by the presenting problem.” Id. ¶ 21. Such a claim,
like any other medical malpractice claim, requires proof by expert testimony of duty, breach,
loss or damage, and proximate cause. Id. ¶ 17. Specifically addressing proof of proximate
cause in a loss-of-chance claim, our Supreme Court noted two differing standards of proof:
the “reasonable degree of medical certainty” standard, and the “reasonable degree of medical
probability” standard and emphasized that “the standard in New Mexico is proof to a
reasonable degree of medical probability.” Id. ¶ 29.

{16} We begin with the first question of whether Dr. Wahl is qualified to render an
opinion that Dr. Acosta’s failure to prescribe prophylactic antibiotics resulted in a loss of a
chance of a better recovery by Plaintiff. Here, the experts on both sides agree that at issue

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in this case is Dr. Acosta’s management of Plaintiff’s foot injury and whether antibiotics
were indicated in his initial treatment. Dr. Acosta concedes that Dr. Wahl is qualified to
testify as to the standard of care required of an emergency room physician in the treatment
of a patient like Plaintiff. We agree. Dr. Wahl holds a medical degree from Wayne State
University and is licensed to practice in Michigan; he is board-certified in emergency
medicine and has practiced emergency medicine for nearly thirty years; he has taught clinical
instruction in emergency medicine at his alma mater for twenty-four years; he has a number
of published works on various emergency medicine topics in peer-reviewed publications and
books; and he has been a guest speaker at a number of emergency medicine meetings and
seminars.

{17} We next address Plaintiffs’ contention that the district court erred in concluding that
the admissibility of Dr. Wahl’s causation opinion in this case must be analyzed under the
Daubert-Alberico factors because it is based on scientific knowledge. Again, whether expert
testimony involves scientific knowledge presents a question of law, which we review de
novo. Torres, 1999-NMSC-010, ¶ 28. In its findings and conclusions, the district court
determined that “Dr. Wahl’s testimony regarding antibiotic treatment is a determination of
the external cause of the infection or disease itself and is scientific, as is the medicine and
bacteriology that underlies it, and it is therefore subject to [the Daubert-Alberico] analysis,
and must therefore be reliable under the appropriate evidentiary standards of [Daubert-
Alberico].” After applying a Daubert-Alberico analysis, the district court concluded that
“[t]he causation opinion of Plaintiffs’ expert witness, Robert P. Wahl, M.D., is excluded
from trial on the basis that the opinion is subject to the [Daubert-Alberico] analysis and is
not reliable or scientifically valid as to assist the [trier] of fact pursuant to that analysis.”

{18} We disagree. Dr. Wahl’s causation opinion does not constitute scientific knowledge
and therefore is not subject to a Daubert-Alberico analysis. The parties’ dispute does not
concern the specifics of the external cause of the subsequent infection. Rather, they disagree
as to whether the proper course of treatment included administering prophylactic antibiotics
and, if Dr. Acosta’s failure to do so, reduced Plaintiff’s chances for a better outcome. Dr.
Wahl did not testify that administration of prophylactic antibiotics to Plaintiff would have
prevented his subsequent infection. Dr. Wahl was asked during his deposition, “Are you
able to say that had this patient been treated as you recommended he should have been[,] he
would have avoided the complications he had?” Dr. Wahl responded, “No, you can’t say
that. . . . But you would have given him every reasonable opportunity and chance to limit
the potential for complication.” Given the concession that Dr. Wahl is qualified to testify
about the standard of care, we agree with Plaintiffs that this “includes Dr. Wahl’s opinion
that Dr. Acosta fell below the standard of care in not prescribing antibiotics—an opinion
which by necessity involves an analysis of the efficacy of antibiotics in diabetic patients.”
Instead of constituting scientific knowledge, we conclude that Dr. Wahl’s causation opinion
is based on his specialized knowledge regarding the treatment of patients like Plaintiff that
is based on his training and experience as an emergency room physician.

III.    CONCLUSION

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{19}   The order of the district court is reversed.

{20}   IT IS SO ORDERED.

                                              ____________________________________
                                              MICHAEL E. VIGIL, Judge

WE CONCUR:

_________________________________
JAMES J. WECHSLER, Judge

_________________________________
TIMOTHY L. GARCIA, Judge




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