 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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 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
 1 CASTILLO, Judge.

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

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

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

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

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

 7 We have duly considered the parties’ memoranda. As we are not persuaded by

 8 Plaintiffs’ arguments in support of affirmance, we reverse.

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

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

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

12 hospitalists. [DS 15] “Summary judgment is appropriate where there are no genuine

13 issues of material fact and the movant is entitled to judgment as a matter of law.” Self

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

15 questions of whether there are no genuine issues of material fact and whether the

16 movant is entitled to judgment as a matter of law are legal questions that we review

17 de novo. Id. In doing so, however, “[w]e are mindful that summary judgment is a

18 drastic remedial tool which demands the exercise of caution in its application, and we

19 review the record in the light most favorable to support a trial on the merits.”

                                              2
 1 Woodhull v. Meinel, 2009-NMCA-015, ¶ 7, 145 N.M. 533, 202 P.3d 126 (filed 2008)

 2 (internal quotation marks and citation omitted), cert. denied, 2009-NMCERT-001, 145

 3 N.M. 655, 203 P.3d 870. It is only when reasonable minds could not differ as to an

 4 issue of material fact that summary judgment is proper. Id. In New Mexico, summary

 5 judgment is viewed with disfavor because a trial on the merits is preferred. See

 6 Romero v. Philip Morris, Inc., 2010-NMSC-035, ¶ 8, __ N.M. __, __ P.3d __.

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

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

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

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

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

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

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

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

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

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

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

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

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


                                                3
 1 employees was erroneous because it was based on an inappropriate legal standard.

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

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

 4 hospitalists are professionals. [MIO 14-19] Plaintiffs rely primarily on our Supreme

 5 Court’s decision in Celaya v. Hall, 2004-NMSC-005, 135 N.M. 115, 85 P.3d 239, for

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

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

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

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

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

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

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

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

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

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

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

17 § 220(1) (1958), which is a right to control test, in that it defines an employee, as

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

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


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

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

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

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

 5 § 220(2). Because Celaya applied these factors pursuant to the Restatement as part

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

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

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

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

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

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

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

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

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

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

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

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

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

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


                                               5
 1 employees, such that the issue could properly be decided as a matter of law. See

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

 3 728 (indicating that when material facts are not in dispute an issue properly may be

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

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

 6 1991) (“Even if the basic material facts are undisputed, if equally logical, but

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

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

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

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

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

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

13 provided their services. [RP 308, 466] We conclude that, based on these facts, a

14 reasonable juror could find that the hospitalists were not employees of Defendant.

15 Therefore, to the degree that the district court’s order is construed to mean that the

16 hospitalists were Defendant’s employees as a matter of law, the ruling was erroneous.

17        In Plaintiffs’ memorandum in opposition, Plaintiffs argue that the fact that the

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

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


                                              6
 1 [MIO 12-13] However, Plaintiffs provide no authority that would support this

 2 assertion, and we therefore assume that no such authority exists. See In re Adoption

 3 of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984). As our Supreme Court

 4 stated in Celaya, the totality of the circumstances of the relationship is to be

 5 considered in determining whether an employment relationship exists.                See

 6 2004-NMSC-005, ¶ 15. The fact that the hospitalists were provided to Defendant

 7 through a staffing agency that hired and paid them is a relevant part of the totality of

 8 the circumstances.

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

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

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

12 conduct, we also conclude that the district court erred in making this determination as

13 a matter of law. This Court addressed a similar issue in Houghland. There, the

14 plaintiff sought to hold a hospital liable for the acts of one of its emergency room

15 doctors, who was provided to the hospital through a contract with a staffing agency.

16 119 N.M. at 423-24, 891 P.2d at 564-65. We considered the theory of the doctor’s

17 “apparent authority” as a basis for imposing liability on the hospital, emphasizing that

18 “[w]e focus on whether to impose liability on [the hospital] for the actions of [the

19 doctor] rather than on the strict legal relationship between [the hospital] and [the


                                              7
 1 doctor].” Id. at 426, 891 P.2d at 567. Under a theory of agency by apparent authority,

 2 we “allowed the imposition of liability on hospitals for injuries to patients caused by

 3 emergency room doctors who ostensibly were agents of the hospital although

 4 employed by separate corporations.” Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


                                                8
 1 Because the district court in Houghland had granted summary judgment in the

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

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

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

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

 6 its agents, including evidence that Defendant advertises that it offers a hospitalist

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

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

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

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

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

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

13 Defendant. [RP 160-63] In response to Plaintiffs’ motion, Defendant put forth

14 evidence that Defendant made use of consent forms that specifically state that

15 physicians on Defendant’s staff are not employees or agents of the hospital, but are

16 independent contractors. [RP 307]

17        In our notice of proposed summary disposition, we proposed to hold that the

18 evidence of the forms stating that staff physicians are not Defendant’s agents was

19 sufficient to create a dispute about the issue of material fact of whether Defendant’s


                                               9
 1 representations to the public created an impression that the hospitalists were its agents.

 2 As Defendant states in its memorandum in support, courts in other jurisdictions have

 3 held that such forms may prevent a hospital from being held liable under a theory of

 4 apparent agency for the acts of physicians working in the hospital. [MIS 8]

 5 Defendant, in its opposition to summary judgment, pointed out that Ms. Martinez had

 6 signed consents with the language regarding the independent contractor status of

 7 physicians—the earliest was in 1990, and the last was signed when she was admitted

 8 for an EKG in May 2004, seven months before her surgery. Plaintiffs argued, and we

 9 agree, that the particular consent forms offered by Defendant were not signed by

10 Plaintiffs at the time of Lillian Martinez’s admission to the hospital in this case in

11 December 2004. [RP 371] While the consent forms signed in the 1990s may be viewed

12 as not timely enough to consider, we believe that the consent form signed in May 2004 is

13 sufficiently current to create a question of fact as to the issue of apparent authority.

14         In Plaintiffs’ memorandum in opposition, Plaintiffs argue that the consent form

15 does not raise a question of material fact about the hospitalists’ apparent agency

16 because the form refers to other staff physicians who have their own patients with

17 whom they already have a physician-patient relationship outside of the context of the

18 patient’s current hospitalization. [MIO 25] We do not believe that the form is as

19 unambiguous as Plaintiffs claim. While a jury might ultimately agree with Plaintiffs’


                                                10
 1 interpretation, there is nothing in the language of the form itself that indicates that the

 2 physicians referred to are only those who have formed their physician-patient

 3 relationships prior to the patient’s current hospitalization. Instead, we believe the

 4 form could be read to refer to any physician working in the hospital, since once a

 5 physician begins to treat someone, that person becomes their patient. Accordingly,

 6 the form could be read to inform patients who are treated at the hospital that all of the

 7 hospital’s physicians are independent contractors. Therefore, we conclude that a

 8 reasonable juror could determine that Defendant did not hold out the hospitalists as

 9 its agents and that the district court erred in granting summary judgment on this issue.

10 Summary Judgment on the Issue of Causation

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

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

13 injuries in this case. [DS 20] Under New Mexico law, an act is a cause of an injury

14 if it contributes to bringing about the injury, and the injury would not have occurred

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

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

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

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

19 Id.


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

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

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

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

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

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

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

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

 9 under the ETOH protocol “for benzo withdrawal,” from which a reasonable juror

10 could conclude that Dr. Dickinson ordered the protocol because he believed that Ms.

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

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

13 notes was one factor in his decision to order the protocol. [RP 1122, 1216] Although

14 the nurse who actually administered the protocol testified that he did not know what

15 Dr. Dickinson’s order meant to him at the time, the order itself stated that it was for

16 withdrawal from benzodiazepines, and there was medical evidence from which a

17 reasonable juror could conclude that a larger dose of Ativan might be administered to

18 someone who was believed to have used Ativan in the past. [RP 1222] Therefore,

19 viewing the evidence in the light most favorable to a trial on the merits of the issue,


                                              12
 1 we hold that the district court erred in determining as a matter of law that Dr. Pardue’s

 2 negligence was not a cause of Ms. Martinez’s injury. Although the evidence indicated

 3 that Dr. Pardue’s negligence was not the only cause of Ms. Martinez’s injury, a

 4 reasonable juror could find that Dr. Pardue’s negligence, along with the subsequent

 5 negligence of others, combined to cause the injury to Ms. Martinez. See id.

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

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

 8 be founded on improper speculation, rather than facts. [MIO 28-33] Plaintiffs base

 9 this argument, in part, on the evidence about the possible remedy for an Ativan

10 overdose. [MIO 31-32] We are not persuaded. A jury is permitted to draw

11 reasonable inferences from the facts, and the facts, as outlined above, provide an

12 adequate basis for a conclusion that Dr. Pardue’s negligence was one of the causes of

13 the harm at issue in this case, even if the evidence about the remedy is not considered.

14        Therefore, for the reasons stated in this opinion and in our notice of proposed

15 summary disposition, we reverse.

16        IT IS SO ORDERED.

17                                          ___________________________________
18                                          CELIA FOY CASTILLO, Judge

19 WE CONCUR:



                                              13
1 __________________________________
2 CYNTHIA A. FRY, Chief Judge




3 __________________________________
4 MICHAEL D. BUSTAMANTE, Judge




                                  14
