 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
 5   not include the filing date.
 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 LILLIAN and JOSE MARTINEZ,

 8          Plaintiffs-Appellees,

 9 v.                                                                                    NO. 30,455

10 ST. VINCENT HOSPITAL, a New Mexico
11 non-profit corporation,

12          Defendant-Appellant.

13 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
14 Barbara J. Vigil, District Judge

15 Katherine W. Hall PC
16 Katherine W. Hall
17 Santa Fe, NM

18 for Appellees

19   Hinkle, Hensley, Shanor & Martin, L.L.P.
20   William P. Slattery
21   Dana S. Hardy
22   Santa Fe, NM

23 for Appellant

24                                 MEMORANDUM OPINION

25 CASTILLO, Chief Judge.
     Corr Page Martinez v. St. Vincent Hosp., No. 30,455 (CcBuFy) Filed April 27, 2011. Page 2, lines 3-4. Date of
     previously filed opinion changed from December 14, 2010 to November 30, 2010.

 1           After the memorandum opinion was filed in this case, Plaintiffs filed a motion

 2 for rehearing. We have duly considered Plaintiffs’ motion and now agree that

 3 Plaintiffs were entitled to summary judgment on the issue of ostensible or apparent

 4 authority. We remain confident that our conclusions as to the other issues were

 5 correct. We grant Plaintiffs’ motion in part, withdraw the opinion filed on November

 6 30, 2010, and substitute the following opinion therefor.

 7           Defendant appeals from a judgment entered in favor of Plaintiffs after a jury

 8 trial. In this Court’s notice of proposed summary disposition, we proposed to reverse

 9 based on the district court’s erroneous grant of partial summary judgment prior to trial

10 on two issues of material fact. Defendant has filed a memorandum in support of our

11 proposed summary disposition and Plaintiffs have filed a memorandum in opposition.

12 Summary Judgment on the Issue of Defendant’s Vicarious Liability

13           Defendant contends that the district court erred in granting Plaintiffs’ motion

14 for partial summary judgment on the issue of Defendant’s liability for the acts of the

15 hospitalists. “Summary judgment is appropriate where there are no genuine issues of

16 material fact and the movant is entitled to judgment as a matter of law.” Self v. United

17 Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. The questions

18 of whether there are no genuine issues of material fact and whether the movant is

19 entitled to judgment as a matter of law are legal questions that we review de novo. Id.


                                                             2
 1 In doing so, however, “[w]e are mindful that summary judgment is a drastic remedial

 2 tool which demands the exercise of caution in its application, and we review the

 3 record in the light most favorable to support a trial on the merits.” Woodhull v.

 4 Meinel, 2009-NMCA-015, ¶ 7, 145 N.M. 533, 202 P.3d 126 (internal quotation marks

 5 and citation omitted), cert. denied, 2009-NMCERT-001, 145 N.M. 655, 203 P.3d 870.

 6 It is only when reasonable minds could not differ as to an issue of material fact that

 7 summary judgment is proper. Id. In New Mexico, summary judgment is viewed with

 8 disfavor because a trial on the merits is preferred. See Romero v. Philip Morris, Inc.,

 9 2010-NMSC-035, ¶ 8, __ N.M. __, __ P.3d __.

10        In this Court’s notice of proposed summary disposition, we relied on

11 Houghland v. Grant, 119 N.M. 422, 429, 891 P.2d 563, 570 (Ct. App. 1995), because

12 it is a factually analogous case involving the question of a hospital’s vicarious liability

13 for emergency room doctors who were provided to the hospital by a staffing agency.

14 We proposed to hold that, to the degree the district court held that the hospitalists were

15 employees of the hospital as a matter of law, summary judgment on that issue was

16 inappropriate because a reasonable juror could conclude that the hospitalists were not

17 employees of Defendant. We also proposed to hold that, to the degree that the district

18 court held that the hospitalists were Defendant’s ostensible agents as a matter of law,

19 summary judgment on the issue was also inappropriate because a reasonable juror


                                                3
 1 could find that Defendant did not hold out the hospitalists as its agents.

 2        In Plaintiffs’ memorandum in opposition, Plaintiffs argue that this Court’s

 3 conclusion that a reasonable juror could find that the hospitalists were not Defendant’s

 4 employees was erroneous because it was based on an inappropriate legal standard.

 5 Plaintiffs assert that the “right to control” test is not the proper test to be applied to

 6 determine whether the hospitalists were the employees of Defendant because the

 7 hospitalists are professionals. Plaintiffs rely primarily on our Supreme Court’s

 8 decision in Celaya v. Hall, 2004-NMSC-005, 135 N.M. 115, 85 P.3d 239, for their

 9 assertion that the right to control test does not apply to professionals. However,

10 Celaya did not reject the right to control test, and in fact made use of the test to

11 determine whether the clergyman in that case was an employee of the sheriff’s

12 department. See id. ¶ 20 (“Applying all the [relevant] factors . . . to [the d]efendant’s

13 job, and in light of the totality of the circumstances, we conclude that at the time of

14 the incident [the d]efendant undoubtedly was an employee of the [d]epartment.

15 Considered in context, the [d]epartment exercised sufficient control over [the

16 d]efendant’s activities in a manner consistent with the status of employee.” (emphasis

17 added)). Rather than rejecting the right to control test, Celaya simply pointed out that

18 it is a more nuanced and multi-factored analysis than had been applied by this Court

19 on direct appeal. Celaya specifically relied on the Restatement (Second) of Agency


                                               4
 1 § 220(1) (1958), which is a right to control test, in that it defines an employee, as

 2 opposed to an independent contractor, as “a person employed to perform services in

 3 the affairs of another and who with respect to the physical conduct in the performance

 4 of the services is subject to the other’s control or right to control.” The Restatement

 5 provides that in order to determine whether one acting for another is an employee or

 6 an independent contractor, a number of factors should be considered, only one of

 7 which relates directly to the extent of control over the details of the work. Id.

 8 § 220(2). Because Celaya applied these factors pursuant to the Restatement as part

 9 of the Restatement’s right to control test, we are not persuaded that the right to control

10 test is inappropriate for professionals. Rather, Celaya simply indicates that the degree

11 and nature of control over an employee will vary depending on the type of work being

12 performed and that a whole range of factors must be examined, not just whether the

13 employer has the right to control the particular details of the work itself.

14        Generally, “[w]hether the employer exercises sufficient control to be held liable

15 for the acts of the employee is a question of fact that must be submitted to the jury.”

16 Keith v. ManorCare, Inc., 2009-NMCA-119, ¶ 19, 147 N.M. 209, 218 P.3d 1257, cert.

17 granted, 2009-NMCERT-010, 147 N.M. 452, 224 P.3d 1257; see also Reynolds v.

18 Swigert, 102 N.M. 504, 508, 697 P.2d 504, 508 (Ct. App. 1984) (stating that whether

19 the physician was an employee or an independent contractor of a hospital is a question


                                               5
 1 of fact). Although for the most part the facts about the relationship between the

 2 hospitalists and Defendant were not disputed by the parties, we do not believe that the

 3 facts led inevitably to the conclusion that the hospitalists were Defendant’s

 4 employees, such that the issue could properly be decided as a matter of law. See

 5 Ovecka v. Burlington N. S.F. Ry. Co., 2008-NMCA-140, ¶ 9, 145 N.M. 113, 194 P.3d

 6 728 (indicating that when material facts are not in dispute an issue properly may be

 7 decided as a matter of law “when . . . the undisputed facts lend themselves to only one

 8 conclusion”); Marquez v. Gomez, 116 N.M. 626, 631, 866 P.2d 354, 359 (Ct. App.

 9 1991) (“Even if the basic material facts are undisputed, if equally logical, but

10 conflicting, reasonable inferences can be drawn from these facts, an award of

11 summary judgment is improper.”). Here, there was evidence presented that the

12 hospitalists were hired by a staffing agency, had a contract with the staffing agency,

13 were paid by the staffing agency, and had their schedules set by the staffing agency,

14 and that the contract between the staffing agency and Defendant provided that

15 Defendant could not exercise any control over the manner in which the hospitalists

16 provided their services. We conclude that, based on these facts, a reasonable juror

17 could find that the hospitalists were not employees of Defendant. Therefore, to the

18 degree that the district court’s order is construed to mean that the hospitalists were

19 Defendant’s employees as a matter of law, the ruling was erroneous.


                                              6
 1        In Plaintiffs’ memorandum in opposition, Plaintiffs argue that the fact that the

 2 hospitalists were supplied to Defendant through a contract with a staffing agency is

 3 immaterial to the question of whether the hospitalists were Defendant’s employees.

 4 However, Plaintiffs provide no authority that would support this assertion, and we

 5 therefore assume that no such authority exists. See In re Adoption of Doe, 100 N.M.

 6 764, 765, 676 P.2d 1329, 1330 (1984). As our Supreme Court stated in Celaya, the

 7 totality of the circumstances of the relationship is to be considered in determining

 8 whether an employment relationship exists. See 2004-NMSC-005, ¶ 15. The fact that

 9 the hospitalists were provided to Defendant through a staffing agency that hired and

10 paid them is a relevant part of the totality of the circumstances.

11        To the degree that the district court’s order could be construed to mean that the

12 hospitalists, although not employees of Defendant, were its agents under a theory of

13 ostensible authority, such that Defendant could be held vicariously liable for their

14 conduct, we conclude that the district court did not err. This Court addressed a similar

15 issue in Houghland. There, the plaintiff sought to hold a hospital liable for the acts

16 of one of its emergency room doctors, who was provided to the hospital through a

17 contract with a staffing agency. 119 N.M. at 423-24, 891 P.2d at 564-65. We

18 considered the theory of the doctor’s “apparent authority” as a basis for imposing

19 liability on the hospital, emphasizing that “[w]e focus on whether to impose liability


                                              7
 1 on [the hospital] for the actions of [the doctor] rather than on the strict legal

 2 relationship between [the hospital] and [the doctor].” Id. at 426, 891 P.2d at 567.

 3 Under a theory of agency by apparent authority, we “allowed the imposition of

 4 liability on hospitals for injuries to patients caused by emergency room doctors who

 5 ostensibly were agents of the hospital although employed by separate corporations.”

 6 Id.

 7        In determining whether the emergency room doctors were the apparent agents

 8 of the hospital, we looked to “whether [the hospital], through what it represented or

 9 failed to represent to the public, may have created the impression that [the doctor] was

10 an agent of [the hospital].” Id. at 427, 891 P.2d at 568. We stated that the primary

11 reason a reasonable juror could conclude that the emergency room doctor was the

12 apparent agent of the hospital was that the hospital operated a full-service emergency

13 room facility in such a manner that when a doctor provided care in the hospital’s

14 emergency room, the appearance was that it was the hospital providing that care. Id.

15 We contrasted emergency room doctors, who a reasonable jury might determine were

16 the apparent agents of a hospital, with other doctors who simply have staff privileges,

17 because unlike those doctors, the hospital was using the emergency room doctors “to

18 further its own business of providing emergency medical services directly to the

19 public, with the choice of a doctor being controlled by the hospital and not the patient,


                                               8
 1 as contrasted to doctors with staff privileges using the hospital to further their separate

 2 medical practices with their own individual patients.” Id. at 429, 891 P.2d at 570.

 3 Because the district court in Houghland had granted summary judgment in the

 4 hospital’s favor, determining as a matter of law that the hospital could not be held

 5 liable for the acts of the emergency room doctors, we reversed.

 6        In this case, Plaintiffs put forth evidence that would permit a reasonable juror

 7 to conclude that Defendant’s actions created the appearance that the hospitalists were

 8 its agents. This included evidence Defendant advertises that it offers a hospitalist

 9 service to patients and refers to the hospitalists as “our hospitalist team,” the

10 hospitalist program is funded by Defendant, the hospitalists wear a badge with

11 Defendant’s name on it and submit all paperwork on Defendant’s forms, patients do

12 not have a choice about which hospitalist will manage their care, and patients see the

13 hospitalists only while in the hospital and are not the patients of the hospitalists’ own

14 clinical practice since the hospitalists have no practice outside of their work for

15 Defendant. Having made a prima facie showing that they were entitled to summary

16 judgment on the issue of apparent authority, the burden fell on Defendant to come

17 forward and show that a genuine issue of material fact existed. See Oschwald v.

18 Christie, 95 N.M. 251, 253, 620 P.2d 1276, 1278 (1980).

19        In response to Plaintiffs’ motion, Defendant put forth evidence that Defendant


                                                9
 1 made use of consent forms that specifically state that physicians on Defendant’s staff

 2 are not employees or agents of the hospital, but are independent contractors. In our

 3 notice of proposed summary disposition, we proposed to hold that this evidence was

 4 sufficient to create a genuine dispute about the issue of material fact of whether

 5 Defendant’s representations to the public created an impression that the hospitalists

 6 were its agents under a theory of ostensible or apparent authority. Having reviewed

 7 those forms anew, we now conclude that they are insufficient to justify our proposed

 8 disposition.

 9        A number of the forms date back to the 1990s and are entirely unrelated to the

10 care that gave rise to the harms Ms. Martinez suffered. These forms are immaterial.

11 Defendant directs us to an additional form signed by Ms. Martinez in May 2004, but

12 this was seven months prior to the admission date and treatment period during which

13 Ms. Martinez was harmed. In our view, the May 2004 form, like the forms from the

14 1990s, is immaterial and does not bear on whether the hospitalists who treated Ms.

15 Martinez in December 2004 were or were not Defendant’s agents under a theory of

16 apparent authority. We conclude that the consent forms cited by Defendant do not

17 create a genuine issue of material fact as to the issue of apparent authority. As such,

18 we affirm the district court to the extent it concluded that the hospitalists, although not

19 employees of Defendant, were its agents under a theory of ostensible authority.


                                               10
 1 Summary Judgment on the Issue of Causation

 2        Defendant contends that the district court erred in granting summary judgment

 3 on the issue of whether Dr. Pardue’s negligence was a cause of Ms. Martinez’s

 4 injuries in this case. Under New Mexico law, an act is a cause of an injury if it

 5 contributes to bringing about the injury, and the injury would not have occurred

 6 without it. See UJI 13-305 NMRA. The act need not be the only explanation for the

 7 injury, nor the reason that is nearest in time or place. Id. It is sufficient if the act

 8 occurs in combination with some other cause to produce the result. Id. However, to

 9 be a cause, the act must be reasonably connected as a “significant link” to the injury.

10 Id.

11        Viewing the evidence in the light most favorable to support a trial on the merits,

12 the evidence did not warrant a conclusion as a matter of law that Dr. Pardue’s

13 negligence was not a cause of the injury to Ms. Martinez, since a reasonable juror

14 could find that Ms. Martinez’s injury from the Ativan overdose would not have

15 occurred if Dr. Pardue had not negligently stated that Ms. Martinez was, at the time

16 of her hospitalization, taking a lot of Ativan for anxiety. See UJI 13-305. The

17 evidence submitted by the parties from which a reasonable juror could reach this

18 determination included Dr. Dickinson’s order that Ms. Martinez be given Ativan

19 under the ETOH protocol “for benzo withdrawal” from which a reasonable juror could


                                              11
 1 conclude that Dr. Dickinson ordered the protocol because he believed that Ms.

 2 Martinez was withdrawing from Ativan, as well as Dr. Dickinson’s deposition

 3 testimony that the misinformation he received from Dr. Pardue’s preoperative history

 4 notes was one factor in his decision to order the protocol. Indeed, Plaintiffs own

 5 expert summarized the foregoing succinctly.

 6               So, I believe that the amount of Ativan that was given in terms of
 7        the protocol was likely—was—that decision of what those dosages
 8        would be was likely informed by the fact that there was a belief that the
 9        patient actually did have a benzodiazepine—had used benzodiazepines
10        in the past, and I believe that the amount of Ativan that was given to her
11        is directly—directly has caused many of the events that followed that
12        were the cause of the issues that we’re discussing, of her anoxic brain
13        injury.
14               So, in that way, I believe that the lack of reconciling her previous
15        medications at the time of admission did relate to the cause of the
16        damages.

17 Although the nurse who actually administered the protocol testified that he did not

18 know what Dr. Dickinson’s order meant to him at the time, the order itself stated that

19 it was for withdrawal from benzodiazepines, and there was medical evidence from

20 which a reasonable juror could conclude that a larger dose of Ativan might be

21 administered to someone who was believed to have used Ativan in the past.

22 Therefore, viewing the evidence in the light most favorable to a trial on the merits of

23 the issue, we hold that the district court erred in determining as a matter of law that

24 Dr. Pardue’s negligence was not a cause of Ms. Martinez’s injury. Although the


                                              12
 1 evidence indicated that Dr. Pardue’s negligence was not the only cause of Ms.

 2 Martinez’s injury, a reasonable juror could find that Dr. Pardue’s negligence, along

 3 with the subsequent negligence of others, combined to cause the injury to Ms.

 4 Martinez. See id.

 5        In Plaintiffs’ memorandum in opposition, Plaintiffs assert that a juror’s

 6 conclusion that Dr. Pardue’s mistake was a cause of the harm to Ms. Martinez would

 7 be founded on improper speculation, rather than facts. Plaintiffs base this argument,

 8 in part, on the evidence about the possible remedy for an Ativan overdose. We are not

 9 persuaded. A jury is permitted to draw reasonable inferences from the facts, and the

10 facts, as outlined above, provide an adequate basis for a conclusion that Dr. Pardue’s

11 negligence was one of the causes of the harm at issue in this case, even if the evidence

12 about the remedy is not considered.

13        Therefore, for the reasons stated in this opinion, we reverse the district court’s

14 determination that Dr. Pardue’s negligence was not a cause of Ms. Martinez’s injury.

15 We also reverse the determination that the hospitalists were Defendant’s employees

16 as a matter of law. We affirm, however, the determination that the hospitalists,

17 although not employees of Defendant, were its agents under a theory of ostensible

18 authority.




                                              13
1      IT IS SO ORDERED.


2                               ___________________________________
3                               CELIA FOY CASTILLO, Chief Judge

4 WE CONCUR:



5 __________________________________
6 MICHAEL D. BUSTAMANTE, Judge




7 __________________________________
8 CYNTHIA A. FRY, Judge




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