November 04, 2013 – Timothy Andrew Richter, Individually, and as Personal Representative of the Estate of Kathryn Leslie Richter, Kristin Leslie Richter, and David Jeffrey Richter v. Presbyterian Helthcare Services, and Regional Lab Corporation d/b/a Tri-Core Laboratories, Richard Lovato, MD, and Keith Winterhorn, MD, No. 30,926 & 31,004 (Consolidated)

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OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _November 4, 2013

NOS. 30,926 & 31,004 (consolidated)

TIMOTHY ANDREW RICHTER, Individually,

and as Personal Representative of the Estate of
KATHRYN LESLIE RICHTER, KRISTIN

LESLIE RICHTER, and DAVID JEFFREY RICHTER,

Plaintiff-A ppellant,
V.

PRESBYTERIAN HEALTHCARE SERVICES, and
REGIONAL LAB CORPORATION d/b/a TRI-CORE
LABORATORIES, RICHARD LOVATO, M_D., and
KETTH WINTERKORN, MLD.,

Defendants-A ppellees.

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

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

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

for Appellant

Butt, Thornton, & Baehr, P.C.
Emily A. Franke
W. Ann Maggiore
Albuquerque, NM
Keleher & McLeod, P.A.
Charles A. Pharris
Thomas C. Bird
Marian B. Hand
Heather K. Hansen
Albuquerque, NM
Krehbiel Law Office, P.C.
Lorri Krehbiel
Melanie Frassanito
Albuquerque, NM
Allen, Shepherd, Lewis, Syra & Chapman, P.A.
Ben M. Allen
Richard E. Hatch
Sebastian A. Dunlap
Albuquerque, NM
for Appellees

OPINION
BUSTAMANTE, Judge.
{1} 	Appellees Presbyterian Healthcare Services and Regional Lab Corporation each
filed motions for rehearing. Both motions for rehearing are denied. The Opinion filed
in this case on August 26, 2013, is hereby withdrawn and this Opinion is substituted
in its place.
{2} 	Kathryn Richter died in 2005 when she developed a heart arrhythmia during
surgery intended to remove a tumor from her adrenal gland. The heart arrhythmia was
caused by an undiagnosed condition called pheochromocytoma. 	Adding to the
tragedy inherent in such a death, the parties discovered that during the course of a
hospitalization in 2001, Mrs. Richter’s then physicians ordered laboratory tests which
were diagnostic of the condition that caused her death on the operating table. The
tests were never read or acted on by her physicians.
{3} 	Plaintiff, Timothy Richter, as personal representative for his wife, brought a
wrongful death action against Presbyterian Healthcare Services (PHS) and Regional
Lab Corporation d/b/a Tri-Core Laboratories (TriCore), alleging negligent delivery
of Mrs. Richter’s laboratory test results in 2001. 	Plaintiff also brought a medical
malpractice action against the two physicians treating Mrs. Richter at the time of her
death, alleging medical negligence in her treatment. The district court granted some
motions for summary judgment in favor of Plaintiff and some in favor of PHS and

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TriCore, and granted a partial directed verdict in favor of Dr. Winterkorn, one of Mrs.
Richter’s treating physicians.
{4} 	Analysis of the summary judgment rulings requires us to evaluate whether
Plaintiff can assert his claims against PHS and TriCore as matters of “ordinary”
negligence not requiring expert testimony, or whether they of necessity involve
professional negligence which cannot be successfully pursued without experts. We
conclude that certain aspects of Plaintiff’s claims do not require expert testimony. We
thus reverse the summary judgments as to those claims and affirm others.
{5} 	We affirm the partial directed verdict in favor of Dr. Winterkorn primarily
because Plaintiff did not present sufficient expert testimony to avoid it.
{6} 	Plaintiff also appeals the district court’s decision to include Mrs. Richter’s 2001
physicians on the special verdict form as non-party tortfeasors. This decision allowed
the jury to compare the negligence of the 2001 physicians with that of the 2005
physicians even though Plaintiff could not seek damages against the 2001 physicians
because the statute of limitations under the Medical Malpractice Act, NMSA 1978,
§ 41-5-13 (1976), had run. 	Concluding that including the 2001 physicians on the
verdict form is consistent with New Mexico’s approach to comparative negligence,
we affirm this ruling of the district court.

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BACKGROUND
{7} 	We provide a short summary of the facts and procedural posture of the case
here. 	Additional details will be provided as appropriate during discussion of the
issues.
{8} 	Mrs. Richter was admitted to PHS in April 2001 for treatment and testing
related to cardiac symptoms. On April 16, 2001, Dr. Seligman, one of Mrs. Richter’s
physicians, ordered catecholamine and metanephrine testing on her urine to determine
whether she might have an undiagnosed pheochromocytoma. TriCore was responsible
for processing the results of Mrs. Richter’s urine catecholamine and metanephrine
testing (the Lab Results) and delivering the Lab Results to PHS. TriCore also had the
responsibility to deliver the Lab Results to Mrs. Richter’s physicians, although there
is a conflict in the record as to which of her physicians should have received them.
{9} 	Because TriCore did not perform testing of the type requested by Mrs. Richter’s
physician, the sample was shipped to ARUP Laboratories in Utah. The first of the
Lab Results was sent by ARUP to TriCore on Saturday, April 21, 2001, and the
second on Sunday. The first test showed catecholamine levels 150 times higher than
normal. 	ARUP’s interpretation of the result included the notation “[m]assive
elevation of catecholamines . . . associated with . . . drug interferences, life-threatening
illnesses, and neuroendocrine tumors.” 	The second test showed catecholamine
metabolite levels in excess of 100 times normal. 	The interpretation provided by

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ARUP included the notation “Massive elevations of metanephrine or normetanephrine
. 	. 	. 	associated 	with 	. 	. 	. 	drug 	interferences, 	life-threatening 	illnesses, 	and
. . . neuroendocrine tumors.” These levels were diagnostic of pheochromocytoma.
{10} 	Because TriCore did not operate on weekends, TriCore did not actually process
the Lab Results and transmit them to PHS via the TriCore-PHS PACIS computer
sharing system until 7:27 a.m. on Monday, April 23, 2001. TriCore records indicate
that a hard copy of the Lab Results was printed for courier delivery to PHS at 11:06
a.m. that day. 	The record does not reveal whether the Lab Results were actually
delivered to PHS that day or the next. Mrs. Richter was discharged from PHS at 2
p.m. on April 23, 2001. 	The record is unclear as to whether, at the time of Mrs.
Richter’s discharge, her chart was up-to-date or whether it indicated that her Lab
Results were still pending. It appears from the record that Mrs. Richter’s discharging
physician—Dr. Ignacio Garcia—believed her results were still pending at the time of
her discharge.
{11} 	Approximately four years later, a CT scan ordered by Mrs. Richter’s
gastroenterologist 	disclosed 	a 	mass 	sitting 	atop 	her 	adrenal 	gland. 	Her
gastroenterologist referred Mrs. Richter to Dr. Lovato for surgery to remove the
tumor. Prior to surgery, Dr. Lovato asked Mrs. Richter’s then primary care physician
to perform catecholamine testing—the same test conducted in 2001—to determine if
her adrenal tumor was a pheochromocytoma. Dr. Lovato then scheduled Mrs. Richter

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for an embolectomy, to be conducted by Dr. Winterkorn. Dr. Winterkorn conducted
the embolectomy before Dr. Lovato had received the results of the catecholamine
testing. Mrs. Richter died while under the care of Drs. Lovato and Winterkorn due to
complications that arose when she developed an arrhythmia during the embolectomy
procedure.
{12} 	Plaintiff filed suit against PHS, TriCore, Dr. Lovato, and Dr. Winterkorn.
Plaintiff and TriCore litigated at length in the early stages of the case as to whether
TriCore was a qualified health care provider under the Medical Malpractice Act and
whether TriCore’s services constituted medical care under the Act. The district court
first denied TriCore’s motion to dismiss but granted a stay of the litigation and
ordered Plaintiff to take his claim before the Medical Review Commission “for
purposes of the procedural prerequisite.”
{13} 	Plaintiff subsequently filed three motions for summary judgment on the issue
of whether the Medical Malpractice Act applied to his claims. In the first, he argued
that TriCore was not a qualified health care provider under the Act. This motion was
denied. The second motion asserted that the conduct Plaintiff alleged in his complaint
did not constitute medical care under the Act. 	In the third motion, Plaintiff made
additional arguments for his position that TriCore was not a health care provider under
the Act. The district court heard argument on the second and third motions together.
It ruled that TriCore’s acts in delivering the Lab Results were not medical acts but

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instead were “ministerial” acts subject to ordinary negligence or negligence per se
review and granted the second motion. Given this determination, the district court
decided that the issue of whether TriCore was a health care provider under the Act
was moot and did not rule on the third motion.
{14} 	A few days prior to trial, the district court found that “[t]here [are] no genuine
issues of material fact as to the claims of negligence as against PHS and TriCore,”
granted summary judgment in favor of PHS and TriCore, and dismissed the
complaints against them. At the close of Plaintiff’s case in chief, the district court
granted a partial directed verdict in favor of Dr. Winterkorn on Plaintiff’s medical
negligence claim regarding Dr. Winterkorn’s decision to continue the embolization
procedure after Mrs. Richter developed an arrhythmia. During trial on the remaining
claims against Drs. Lovato and Winterkorn, testimony was presented asserting that
Plaintiff’s 2001 PHS physicians were comparatively negligent. 	For comparative
negligence purposes, the 2001 physicians were identified as non-party tortfeasors on
the jury’s special verdict form. The jury returned a verdict against Dr. Lovato and in
favor of Dr. Winterkorn. 	The jury also found the four 2001 physicians negligent.
Plaintiff timely appealed.
DISCUSSION
{15} 	On appeal we address four major questions. 	The first is whether Plaintiff’s
claims against TriCore and PHS sound in ordinary negligence rather than medical

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malpractice. Second, we address whether the district court properly granted motions
for summary judgment and dismissal in favor of TriCore and PHS. The third issue is
whether the district court improperly limited opinion testimony by a treating physician
about Dr. Winterkorn and properly directed a verdict in favor of Dr. Winterkorn. The
fourth and final issue is whether the district court erred when it permitted the jury to
compare the alleged negligence of non-parties with the negligence of Drs. Lovato and
Winterkorn.
I. 	Plaintiff’s Claims of Ordinary Negligence
{16} 	Before we analyze the summary judgments in favor of TriCore and PHS, we
must address whether Plaintiff’s claims against them can be brought and pursued as
“ordinary” negligence actions not requiring expert testimony. 	This preliminary
discussion is necessary because, even though the district court apparently analyzed the
motions only under an ordinary negligence standard, TriCore and PHS argued below
that Plaintiff’s claims could only be established through expert testimony. On appeal
TriCore requests, pursuant to Rule 12-201(C) NMRA, that we review the district
court’s ruling even though it did not file a cross-appeal on the issue. We agree that
Rule 12-201(C) permits us to do so.
{17} 	PHS also suggests that we overrule the district court’s application of ordinary
negligence standards to it. Although PHS made this argument to the district court, the
district court never ruled specifically on the standard applicable to PHS and PHS

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never invoked a ruling on the issue. Thus, PHS is not on the same footing as TriCore.
As such it is likely that PHS did not preserve the issue sufficiently to rely on Rule 12-
201(C). 	Nevertheless we shall address the issue because it is otherwise properly
before us as to TriCore.
{18} 	Our analysis leads us to conclude that Plaintiff can proceed on some of his
claims relying on an ordinary negligence theory and eschewing expert testimony. But
the range of acts and failures to act he can pursue as an ordinary negligence claim is
narrower than he has attempted thus far. We explain.
{19} 	We start by noting that New Mexico courts have not previously considered the
particular claims brought here. 	Plaintiff does not assert that the testing was
improperly conducted or interpreted. He is concerned solely with the proper delivery
of the Lab Results. None of our prior cases have dealt with a claim of negligence in
the delivery of medical laboratory test results to a patient’s physicians. To that extent
we are presented with a question of first impression. 	The issue provides us an
opportunity to explore the general problem of how to distinguish between issues and
claims which must be proven by expert testimony and those which are susceptible to
proof without expert testimony.
{20} 	Our cases recognize that “[i]t is not mandatory in every case that negligence of
the doctor be proved by expert testimony . . . .” 	Pharmaseal Labs., Inc. v. Goffe,
1977-NMSC-071, ¶ 17, 90 N.M. 753, 568 P.2d 589. This notion can be extrapolated

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to most if not all circumstances involving medical treatment. See Wade R. Habeeb,
Annotation, Necessity of Expert Evidence to Support Action Against Hospital for
Injury to or Death of Patient, 40 A.L.R. 3d 515 (1971). The idea is reflected in our
uniform jury instructions describing the duties of hospitals and doctors. 	The first
paragraph of UJI 13-1119A NMRA explicitly refers to an “ordinary care” standard
while the second paragraph describes situations involving the possession and use of
special knowledge and skills which require expert proof. The Use Note to UJI 13-
1119A cautions that the second paragraph “should be omitted in those cases in which
the court determines that expert testimony is not required and negligence can be
determined by resort to common knowledge ordinarily possessed by the average
person.” 	This direction echoes language used in Goffe, 1977-NMSC-071, ¶ 17,
describing when expert testimony is not necessary. See also UJI 13-1101 NMRA cmt.
5 (“The final paragraph is included in brackets to make it clear that expert testimony
is not required if the jury can decide[] the matter based on its common knowledge
without the need for medical or scientific expertise.”).
{21} 	The difficulty with these formulations is that they do not provide much
guidance for trial courts to use in making the assessment. The language is instead
quite circular: expert testimony is required—except when it is not.
{22} 	We have not found any New Mexico authority involving tort claims that
expands on the Goffe language. Our Supreme Court did consider the meaning of the

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phrase “professional services” in the context of deciding whether a doctor’s sexual
assault of a patient in the course of treatment would come within the coverage of a
malpractice insurance policy. 	N.M. Physicians Mut. Liab. Co. v. LaMure, 1993-
NMSC-048, ¶ 12, 116 N.M. 92, 860 P.2d 734. 	We, of course, appreciate the
difference in context between liability insurance coverage and a tort action. But we
believe the Supreme Court’s approach to defining covered “professional services”
offers a path to a workable test for distinguishing medical or professional negligence
claims from ordinary negligence claims.
{23} 	In resolving the coverage issue, the Supreme Court cited approvingly to a
definition found in Marx v. Hartford Accident & Indemnity Co., 157 N.W.2d 870
(Neb. 1968). The Nebraska court defined “professional services” in large part using
a functional test, as follows:
Something more than an act flowing from mere employment or vocation
is essential. The act or service must be such as exacts the use or
application of special learning or attainments of some kind. . . . In
determining whether a particular act is of a professional nature or a
‘professional service’ we must look not to the title or character of the
party performing the act, but to the act itself.
Id. at 871-72. We interpret this as a functional test because it is concerned with the
skills, knowledge, and acts necessarily used to decide on a course of action. If the act
involves the use of specialized knowledge or skill to make a judgment call as to the

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appropriate thing to do or not do, expert testimony will likely be needed to assess the
resultant act or failure to act. If not, expert testimony is not required.
{24} 	This functional inquiry gives content to the idea that “[n]ot all cases involving
health or medical care automatically qualify as medical malpractice claims.” Estate
of French v. Stratford House, 333 S.W.3d 546, 556 (Tenn. 2011). It has been used in
settings including nursing homes, psychiatric facilities, and hospitals. See id. at 556,
559 (holding that negligence in providing basic care for residents which did not
involve the exercise of medical judgment or skill did not constitute an instance of
malpractice and could be proven without expert testimony); 	Joseph v. Univ.
Behavioral LLC, 71 So. 3d 913, 917 (Fla. Dist. Ct. App. 2011) (stating that for a claim
to constitute medical malpractice “[t]he wrongful act must be directly related to the
improper application of medical services and the use of professional judgment or
skill”); Gould v. N.Y. City Health & Hosps. Corp., 490 N.Y.S.2d 87, 89 (N.Y. Sup.
Ct. 1985) (“If a hospital’s employee’s acts require professional skill and judgment,
then the complaint sounds in malpractice for which the hospital may be held liable.
Otherwise, the triers of fact are presented with issues of ordinary negligence.”).
{25} 	Of course, whether a claim involves ordinary negligence or medical malpractice
is a fact-dependent inquiry. See UJI 13-1119A Comm. cmt. (“Distinguishing claims
that need not be established by expert testimony from those that must is a task to be
accomplished by the trial judge on a case[-]by[-]case basis.”); see also Estate of

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French, 333 S.W.3d at 556 (“[W]hether claims should be characterized as ordinary
negligence or medical malpractice claims obviously depends heavily on the facts of
each individual case.”); Joseph, 71 So. 3d at 917 (“A court must, on a case-by-case
basis, look to the allegations in the complaint when determining whether a suit raises
an issue of ordinary negligence or medical malpractice.”).
{26} 	We see no reason why this functional approach should not be applied to
TriCore and PHS. And, in fact, it appears that the district court applied a variant of
this analysis when it ruled that TriCore’s acts or failures to act in delivering the Lab
Results were not medical but, rather, were “ministerial” in nature.
A. 	TriCore
{27} 	We apply the functional approach to TriCore first. Medical testing laboratories
undoubtedly have a general duty to deliver reports generated by them. This statement,
of course, merely begs the more vexing questions of who should receive copies and
the reasonableness of the timing of the delivery. Though it does not involve a testing
laboratory directly, Schindel v. Albany Medical Corp., 625 N.E.2d 114 (Ill. App. Ct.
1993) is illustrative. In Schindel, the plaintiff sought damages for a ruptured fallopian
tube caused by an ectopic pregnancy. 	Id. at 115. 	The clinic did not contact the
plaintiff with the results of the lab report that indicated the pregnancy for a period of
eight days. Id. at 115-16. The plaintiff presented no expert testimony concerning the
significance of the delay. Id. at 118. On appeal the jury verdict in the plaintiff’s favor

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was overturned because of the lack of expert testimony. Id. at 122. The court noted
that “it is the urgency of the danger involved and the likelihood and extent of harm
to the plaintiff which would dictate the extent of [the] defendant’s duty to notify [the]
plaintiff.” Id. at 120. Evaluation of the urgency of the situation required the exercise
of medical judgment and had to be established by expert testimony. See also Sinclair
v. Quest Diagnostics, Inc., No. 000062320S, 2000 WL 573186, at *3 (Conn. Super.
Ct. Apr. 25, 2000) (mem.) (holding that expert testimony was required to establish that
a two week delay in conducting and reporting the results of an amniocentesis was
negligence).
{28} 	On the other end of the scale is Morgan v. Laboratory Corp. of America, 844
N.E.2d 689 (Mass. App. Ct. 2006). 	In Morgan, the plaintiff brought a negligence
claim against a testing laboratory for failing to provide prompt notice to his doctor that
the laboratory’s analysis of his blood sample had revealed life-threatening changes in
the anticoagulation level of his blood. Id. at 695-96. The defendant argued that there
was insufficient evidence of negligence because the plaintiff failed to present expert
testimony that its conduct “breach[ed] the proper standard of care.” Id. at 695. The
court disagreed, stating “Here, the plaintiffs’ actions against [the defendant] concerned
neither an allegation of a missed diagnosis nor the failure to institute policies and
procedures for the reporting of life-threatening results. 	Rather, it was based upon
alleged inadequacies in the actual reporting of indisputably urgent test results.” Id.

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“Moreover, . . . the reporting responsibility lay with [the defendant’s] administrator,
whose job functions required no special training or skill comparable to that of a
physician or other licensed professional.” 	Id. 	The court held that because of the
specific allegations in the complaint, “[t]he jury were thus capable of determining,
without the assistance of an expert, whether or not [the defendant’s] conduct was
reasonable under the circumstances.” Id. at 695-96.
{29} 	We draw from these cases two principles. First, challenges to the timing of the
delivery of laboratory reports will normally require expert testimony, except when the
required timing is set by a known standard such as internal policy, contract, or
governmental regulation. Second, expert testimony will not be required if the asserted
negligence is based on a standard of reasonable care which does not require
professional interpretation. 	For example, when—as is the circumstance in this
case—there is an established routine procedure regarding the delivery of reports to
certain doctors, any asserted negligence in failing to deliver the reports to the specific
doctors would be based on a breach of the standard of reasonable care because no
professional interpretation would be needed regarding the requirement that the reports
be delivered to the ultimate recipients.
{30} 	This summary has obvious consequences in this case. 	Many of Plaintiff’s
points or instances of asserted negligence involve the timing of delivery of the Lab
Reports. Timing challenges almost by definition require an assessment of urgency,

1In saying this we are not forgetting an undecided motion for summary
judgment on joint venture which the district court deemed moot after it granted
summary judgment in favor of PHS and TriCore. We, of course, venture no opinion
as to the merits of the motion or its effects on the potential liability of TriCore and
PHS if granted.
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and that assessment requires expert testimony. Similarly, Plaintiff’s points about the
efficiency and design of the delivery system, to the extent they are prompted by
timeliness concerns, require expert testimony. 	Thus, expert testimony would be
required where Plaintiff’s claims addressed the timeliness or urgency of the delivery
of the Lab Reports, including any timeliness claims that involve the efficiency and
design of TriCore’s delivery system.
B. 	PHS
{31} 	We turn now to the claims against PHS. As we noted above, they are different
from those against TriCore. 1 Plaintiff cites no case determining that hospitals in
general have a duty to deliver laboratory reports to their patients’ physicians—at least
not the kind of duty laboratories such as TriCore have. 	Our research has revealed
authority that hospitals have no duty to “personally notify every patient’s treating
physician of every test result, even when [the] patient has been discharged.” Edwards
v. Brandywine Hosp., 652 A.2d 1382, 1387 (Pa. Super. Ct. 1995)
{32} 	But hospitals do have a clearly established duty to maintain their patients’
medical charts in good order, and that duty includes posting completed lab tests as

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received. The court in Johnson v. Hillcrest Health Center, Inc., 2003 OK 16, 70 P.3d
811, aptly described the function and importance of the patient chart.
The obvious purpose of the charting requirement is to provide a record
to assist the physician in properly treating the patient. Physicians depend
on the reliability and trustworthiness of the chart. As far as a hospital is
concerned, there is no more important record than the chart for indicating
the diagnosis, the condition, and the treatment required for patients. In
our view, no degree of knowledge or skill is required other than that
possessed by the average person to conclude that the applicable standard
of care required the hospital to include completed lab tests and lab
reports in the patient’s chart to aid the doctor in diagnosing and treating
the patient—regardless of whether lab tests are made available on the
computer.
Id. ¶ 15 (footnote omitted).
{33} 	We agree with the Johnson court’s conclusion that assessing a hospital’s
compliance with its charting duty does not require expert testimony. Thus this portion
of Plaintiff’s claims against PHS can be brought as an ordinary negligence claim. In
this context timeliness in the form of maintaining the chart does not implicate the kind
of urgency that would require the exercise of professional judgment.
II. 	Summary Judgment in Favor of Tricore and PHS Reversed in Part
{34} 	PHS and TriCore both filed motions for summary judgment in response to
Plaintiff’s complaint. Their motions for summary judgment asserted that no breach
of duty had occurred, that Plaintiff’s claim must be addressed as medical negligence
rather than ordinary negligence, and that Plaintiff had failed to present a qualified
expert to testify regarding the proper duty of care required for medical negligence.

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The district court granted the motions for summary judgment, finding that Plaintiff
“failed to make a showing of any breach by either [PHS] or TriCore of its duty of care
in reporting lab results.” 	We review de novo a district court’s grant of summary
judgment, construing the evidence most favorably to the non-moving party. 	City of
Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M.
717, 213 P.3d 1146; Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 5, 137
N.M. 339, 110 P.3d 1076. 	“Summary judgment is appropriate where there are no
genuine issues of material fact and the movant is entitled to judgment as a matter of
law.” Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d
582. “If the facts are undisputed and only a legal interpretation of the facts remains,
summary judgment is the appropriate remedy.” Bd. of County Comm’rs v. Risk Mgmt.
Div., 1995-NMSC-046, ¶ 4, 120 N.M. 178, 899 P.2d 1132. 	“Summary judgment
should not be granted when material issues of fact remain or when the facts are
insufficiently developed for determination of the central issues involved.” Vieira v.
Estate of Cantu, 1997-NMCA-042, ¶ 17, 123 N.M. 342, 940 P.2d 190.
{35} 	Our discussion above concerning the type of claims Plaintiff can pursue without
relying on expert testimony simplifies our task in considering the propriety of the
summary judgments. We address TriCore first.
A. 	TriCore

2TriCore also argued in its Answer Brief that the district court erred in not
granting its motion to dismiss based on the statute of limitations under the Medical
Malpractice Act. Because we hold that the claims based on the Act were properly
dismissed, we need not address the issue of the statute of limitations.
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{36} 	The great majority of TriCore’s “Statement of Uncontroverted Facts” concerns
matters of timing. Some address the lack of any internal standards for the timing of
delivery (nos. 7-10) while others address the idea that nothing about the Lab Results
themselves imposed any need for action outside TriCore’s routine practice (nos. 11-
17). In accordance with our discussion above, the matters involving relative urgency
require expert testimony. Because Plaintiff presented none, summary judgment was
appropriate as to those claims. 	With regard to TriCore’s compliance with internal
standards of promptness, we agree that Plaintiff did not demonstrate a question of fact
and summary judgment was appropriate as to these claims also. 2
{37} 	The issue as to which of Mrs. Richter’s physicians should have received a copy
of the Lab Results requires a different result. TriCore noted in its motion for summary
judgment that one of Plaintiff’s claims was that “TriCore was obligated to notify
Plaintiff’s physicians of abnormal test results personally.” 	TriCore’s motion for
summary judgment thereafter simply ignores the issue of who should have received
the Lab Results. It could be argued that TriCore did not even make out a prima facie
case for summary judgment on this issue. We need not rely on that rubric to resolve

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the issue, however. 	Plaintiff demonstrated an issue of material fact by citing
testimony from PHS’s vice president for operations and TriCore’s medical director
that as a matter of routine procedure, the Lab Results should have been delivered to
the ordering physician and the treating physicians. The ordering physician was Dr.
Seligman. It is undisputed that he did not receive a copy of the Lab Results at any
time from 2001 until after Mrs. Richter’s death. 	Dr. Seligman described the Lab
Results as indicating significant abnormalities requiring further evaluation. He also
characterized the Lab Results as reflecting “critical values.” TriCore’s medical
director did not know why the ordering and treating physicians did not receive a copy
of the Lab Results.
{38} 	This record is sufficient for us to determine that summary judgment was
improper with regard to TriCore’s delivery of the Lab Results to all the physicians
who should have received them. No expert testimony is needed to prove this claim.
See Morgan, 844 N.E.2d at 695. And, as is the norm with ordinary negligence cases,
issues as to breach and causation are within the realm of the jury to decide. Lessard
v. Coronado Paint & Decorating Ctr., Inc., 2007-NMCA-122, ¶ 27, 142 N.M. 583,
168 P.3d 155. 	TriCore’s negligence regarding the delivery of the Lab Results to
physicians who should have received them must now be addressed by the district court
on remand. See Flores v. Baca, 1994-NMSC-021, ¶ 25, 117 N.M. 306, 871 P.2d 962
(recognizing a limited remand for trial of the unresolved claims and the application

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of res judicata to the other claims previously resolved by the jury); HealthONE v.
Rodriguez ex rel. Rodriguez, 50 P.3d 879, 890-91 (Colo. 2002) (en banc) (addressing
alignment and damage issues on remand for a new trial against a dismissed party
because the other defendant will have non-party status on remand and remain subject
to the previous jury award).
B. 	PHS
{39} 	We turn now to PHS. 	PHS’s motion for summary judgment relied on four
basic points: (1) In the absence of results reflecting critical values under the Clinical
Laboratory Improvement Amendments (CLIA), 42 C.F.R. § 493.1291(g) (2012), it
had no duty to give any notice to Mrs. Richter’s physicians; (2) PHS fulfilled
whatever duty it had by making the test results available to the physicians by
computer access on the morning of April 23, 2001, and by placing the chart copy in
the patient’s chart when it was delivered by TriCore Laboratory; (3) its Rule 11-
406(A) NMRA evidence of its habitual handling of lab results created a presumption
that it followed that habit in this case; and (4) Mrs. Richter’s physicians had their own
duty to follow up on the test results.
{40} 	PHS’s argument concerning its duty under CLIA is well taken. Plaintiff does
not argue at this point that the Lab Results met the CLIA standard for critical values
and its attendant need for immediate delivery of results. To the extent the summary
judgment was based on this ground, it was proper.

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

22
The “pending” notation was a message to everyone that tests had been ordered but
results not yet received. PHS did not make an actual showing or present evidence that
receipt of the Lab Results on PHS’s computers resulted in a change of the “pending”
signal in the system.
{43} 	Whether the computer continued reflecting that the Lab Results were “pending”
and whether the system should have been designed to reflect a “received” signal upon
transfer of results from TriCore does not require expert testimony. 	And they are
questions of material of fact making summary judgment improper with regard to
PHS’s duty to reasonably maintain its patient charts.
{44} 	Similarly, there are questions of fact raised by the record which undermine
PHS’s Rule 11-406(A) habit evidence. 	“Courts may accept Rule 406 [(habit)]
evidence at the summary judgment stage as providing an inference that a routine
practice was actually carried out. 	Hancock v. Am. Tel. & Tel. Co., 701 F.3d 1248,
1261-62 (10th Cir. 2012), cert. denied, 133 S. Ct. 2009 (2013). PHS’s habit evidence
permits an inference that it followed its ordinary practices in handling Mrs. Richter’s
Lab Results, which “would have resulted in delivery of a hard copy of the results to
the nursing station . . . on April 23rd or 24th of 2001, where a nurse or a ward clerk
would file the results in [Mrs.] Richter’s patient chart.” But even if we accept that the
habit evidence created this inference, Plaintiff provided evidence to rebut it. Plaintiff
asserted below that “[t]he hard copy of Mrs. Richter’s Lab Results actually found in

23
her archived chart [is dated] May 1, 2001, more than a week after her discharge.”
Plaintiff also pointed to PHS’s admission that it “cannot ascertain from the available
records when the test results were communicated.” 	In addition, although not
addressed in the Response to Motion for Rehearing, Plaintiff stated in his Reply Brief
that none of Mrs. Richter’s treating physicians had ever “seen Mrs. Richter’s test
results at any time until after her death in 2005[.]” We view these facts in the light
most favorable to trial. Woodhull v. Meinel, 2009-NMCA-015, ¶ 7, 145 N.M. 533,
202 P.3d 126. Thus, even if PHS’s habit evidence permitted an inference in its favor,
Plaintiff provided facts sufficient to create a genuine issue of fact as to whether the
Lab Results were actually received and filed at the nurses’ station before Mrs. Richter
was discharged. Thus, judgment as to whether PHS properly handled the hard copy
of the results was improper.
{45} 	In its Motion for Rehearing PHS argues that reliance on Johnson v. Hillcrest
Health Care Center, Inc., 2003 OK 16, 70 P.3d 811, is improper because “[Plaintiff’s]
case never rested on any claim or evidence showing that PHS failed to file the test
results properly after delivery of the paper copy by Tri-Core’s courier to [Mrs.]
Richter’s nursing station” and that “[Plaintiff’s] case against PHS alleged improper
delivery management practices, not inadequate filing once [L]ab [R]esults were
delivered.” 	This argument hinges on an overly narrow interpretation of the term
“charting requirement” to include only the actual filing of results. As used in Johnson

24
and in this Court’s Opinion, “charting” includes both delivery and filing of results in
the chart. 	See id. 2003 OK 16, ¶ 9 (stating that the plaintiff there argued that the
hospital “alleged failure to post the lab tests and the lab report to [the plaintiff’s]
husband’s chart and/or call them to the doctor’s attention before [the plaintiff’s
husband] was discharged” was negligent” (emphasis added)); Majority Opinion ¶ 32
(stating, “hospitals do have a clearly established duty to maintain their patients’
medical charts in good order, and that duty includes posting completed lab tests as
received”). 	Similarly, as PHS acknowledges elsewhere in its motion, Plaintiff
alleged—with support in the record—that the results were neither delivered nor filed.
In addition, PHS appears to acknowledge that “charting” involves both delivery and
filing by repeatedly arguing that its habit evidence demonstrated that it did both. This
argument is therefore unavailing.
{46} 	Finally, we reject PHS’s fourth argument—that the physicians’ duty to follow
up on ordered lab tests acts to shield it from liability entirely. 	We agree that the
physicians had a duty to follow up. But any failure on their part to comply with their
independent duty cannot absolve PHS of its failure to comply with its duties. At most
the negligence of the physicians is subject to a comparative analysis. See Martinez
v. First Nat’l Bank of Santa Fe, 1987-NMCA-114, ¶ 12, 107 N.M. 268, 755 P.2d 606.
{47} 	We conclude that summary judgment in favor of PHS was proper to the extent
that it was granted based on an absence of duty to report under CLIA. 	However,

25
summary judgment as to the use of the computer system to report results was
improper because there were genuine issues of material fact on how that system
functioned or should have functioned. Finally, PHS was not relieved of its duty to
Mrs. Richter simply because the ordering physicians had a duty to follow up on the
Lab Results. Further proceedings regarding PHS’s negligence must also be addressed
by the district court on remand. See Flores, 1994-NMSC-021, ¶ 25; HealthONE, 50
P.3d at 890-91.
III. 	Rulings Related to Dr. Winterkorn
{48} 	Plaintiff articulated three theories of malpractice against Dr. Winterkorn. Two
claims involving presurgery decisions were submitted to the jury. The district court
granted Dr. Winterkorn’s motion for directed verdict on the third theory—that Dr.
Winterkorn was negligent in continuing with the surgery after Mrs. Richter developed
an arrhythmia during the surgery.
{49} 	Plaintiff asserts that the district court improperly prevented “Dr. Lovato from
testifying as to Dr. Winterkorn’s negligence.” We disagree with Plaintiff’s argument
concerning Dr. Lovato’s testimony because we see no abuse of discretion in the
ruling. 	As a separate matter, Plaintiff argues that a directed verdict was improper
because (1) Dr. Winterkorn committed medical negligence when he continued with
the embolization procedure after Mrs. Richter had developed arrhythmia and that his
explanation for why he continued betrays such a basic misunderstanding of the

26
procedure that it constitutes—and here we paraphrase—negligence per se, allowing
jury review; and (2) Dr. Winterkorn’s promise to stop the procedure if Mrs. Richter
developed an arrhythmia was sufficient to allow the claim to be heard by the jury. We
disagree with Plaintiff’s arguments concerning the directed verdict because they do
not address the fact that Plaintiff simply did not present enough admissible evidence
to avoid dismissal.
A. 	Exclusion of Dr. Lovato’s Opinion Testimony Was Not an Abuse of
Discretion
{50} 	Plaintiff called Dr. Lovato as an adverse witness. Among other topics, Plaintiff
“questioned Dr. Lovato about his and Dr. Winterkorn’s decision to proceed with Mrs.
Richter’s embolization not knowing her catecholamine test results and despite ‘panic-
value’ potassium levels, which posed a likely chance of death if any surgical
procedures were undertaken on her that day.” After a series of questions exploring
who made the decision to proceed with surgery that morning, Plaintiff asked a
question meant to elicit an opinion from Dr. Lovato as to which acts of Dr.
Winterkorn were negligent. The following colloquy occurred:
[Plaintiff]: 	Isn’t it true that Mrs. Richter died, not because of her
pheochromocytoma, but because of the treatment
that was given her on the 26th, by Dr. Winterkorn?
[Defendant]: 	Objection, your Honor. Calls for expert testimony.
[Plaintiff]: 	I believe he’s the treating physician.

27
[Court]: 	Approach. If you’re asking a treating physician to
render an ultimate conclusion on another treating
physician, I think I ruled that I was not going to
allow treating physicians to testify as to that. Only
the expert physician can testify—or the physicians
who have been designated as experts. I think that’s
what my ruling was.
[Plaintiff]: 	That’s what you’re saying now. 	That wasn’t the
ruling before. It was the ruling with Dr. Gurule, and
only with respect to Dr. Gurule.
[Court]: 	Then I will extend that ruling. This is also a treating
physician; He’s one of the [D]efendants on trial and
you’re 	asking 	him 	to 	testify 	to 	the 	ultimate
conclusion that—of the [P]laintiff.
Plaintiff argues that limiting his ability to elicit opinions from one of the treating
physicians against another tilted the field unfairly in Dr. Winterkorn’s favor. Plaintiff
bases this argument partly on the circumstance that later in the trial Dr. Winterkorn
was asked to opine—without objection from anyone—on the negligence of other
defendant doctors, including Dr. Lovato.
{51} 	Plaintiff makes only one argument that raises a colorable challenge to the
district court’s ruling. Plaintiff essentially argues that, in a case such as this, treating
physicians should be allowed to provide opinions on the ultimate issues of
professional negligence by others because they are almost by definition experts.
Plaintiff argues that treating physicians should not be required to be disclosed or listed
with “ordinary ‘retained’ experts” in pretrial witness disclosure documents. Instead,

28
Plaintiff asserts, “treating physicians are usually listed elsewhere with the attending
notification that they will be asked questions about or will [testify] about the matters
at issue in the case.”
{52} 	Consistent with this approach, Plaintiff listed the treating physicians separately
from the witnesses and in a footnote to the witness list stated:
The witnesses set forth in this designation are all treating physicians.
Mr. Richter has no control over these witnesses. They do have opinions
about Mrs. Richter’s care arising from their treatment of Mrs. Richter
and their knowledge of the circumstances of such treatment. Mr. Richter
will be asking for their opinions on these issues as well as how lab
results are communicated to a patient’s physician.
Plaintiff included a more limited observation to the same effect in his notice of expert
witness availability.
{53} 	One difficulty for Plaintiff on appeal is that he did not mention these matters
to the district court during the argument following the objection to his question
seeking an opinion from Dr. Lovato. Plaintiff’s failure to raise the argument at this
juncture leads us to conclude that the argument was likely not preserved. Woolwine
v. Furr’s, Inc., 1987-NMCA-133, ¶ 20, 106 N.M. 492, 745 P.2d 717.
{54} 	Further, Plaintiff was at that point on explicit notice of the district court’s
approach to the scope of opinion testimony she would allow from treating physicians
who had not been identified as “expert” witnesses. In response to a motion in limine
filed by Dr. Lovato, the district court had earlier ruled that Plaintiff would not be

29
allowed to elicit testimony from co-defendant Dr. Gurule as to the “standard of care
and breach thereof by Drs. Lovato or Winterkorn.” The district court’s ruling relied
on the fact that Dr. Gurule had not been identified as an “expert” witness by Plaintiff
or any other party. The district court recognized that Dr. Gurule’s “lay” testimony
would be based on his specialized knowledge as a physician and percipient witness.
Thus, the district court’s order permitted Dr. Gurule to be questioned about: (1) “his
knowledge of [Mrs.] Richter”; (2) “her condition as he observed it”; (3) “her cause of
death”; (4) “her underlying cardiac condition”; and (5) “the etiology of that
condition.” 	The rationale of the order concerning Dr. Gurule applied directly to
Plaintiff’s questioning of Dr. Lovato. In sum, we find no abuse of discretion in the
district court’s ruling limiting Dr. Lovato’s testimony.
{55} 	Finally, we do not see how the limit on Dr. Lovato’s opinion testimony—even
if erroneous—could require reversal. Dr. Lovato could only have opined concerning
Dr. Winterkorn’s presurgery decision. Dr. Lovato himself explained that he could not
speak to what Dr. Winterkorn should or should not have done during the surgery. Dr.
Lovato was allowed to testify fully as to his version of the presurgery events,
including that it was Dr. Winterkorn’s decision to start the surgery in the face of Mrs.
Richter’s potassium levels and the lack of results on the catecholamine testing.
{56} 	The presurgery theories of malpractice against Dr. Winterkorn were submitted
to the jury. The jury instruction read:

30
4. 	Dr. Winterkorn was medically negligent in proceeding with the
embolization 	procedure 	without 	knowing 	that 	the
pheochromocytoma test results were negative.
5. 	Dr. Winterkorn was medically negligent in failing to do a proper
pre-procedure cardiologic work up.
6. 	Dr. 	Winterkorn 	was 	medically 	negligent 	in 	prescribing an
inadequate potassium supplement upon learning of Mrs. Richter’s
critical value potassium level of 2.3.
7. 	Dr. Winterkorn was medically negligent in not cancelling the
embolization procedure for the 2.3 potassium level.
8. 	Dr. Winterkorn was medically negligent in failing to recheck Mrs.
Richter’s potassium level before proceeding with the embolization
procedure.
The jury found in favor of Dr. Winterkorn on all theories. The jury clearly accepted
Dr. Winterkorn’s version of the presurgery events over Dr. Lovato’s. We fail to see
how Dr. Lovato’s additional testimony in the form of an opinion about presurgery
decisions would have made any impact on the final result of the jury’s deliberations.
After all, Dr. Lovato was not an uninterested witness. His personal fault and liability
was at stake. As such, even if the district court had erred, it would be harmless. See
Rule 1-061 NMRA.
B. 	Directed Verdict Was Not Improper
{57} 	We review de novo the district court’s decision on a motion for a directed
verdict. McNeill v. Burlington Res. Oil & Gas Co., 2008-NMSC-022, ¶ 36, 143 N.M.
740, 182 P.3d 121. We will uphold a district court’s grant of directed verdict only if

31
it is clear that “the facts and inferences are so strongly and overwhelmingly in favor
of the moving party that the judge believes that reasonable people could not arrive at
a contrary result.” Melnick v. State Farm Mut. Auto. Ins. Co., 1988-NMSC-012, ¶ 11,
106 N.M. 726, 749 P.2d 1105. We review a district court’s evidentiary rulings for an
abuse of discretion. State v. Harrison, 2000-NMSC-022, ¶ 18, 129 N.M. 328, 7 P.3d
478. In order to find an abuse of discretion, this Court must conclude that the district
court’s decision to admit or exclude testimony “was obviously erroneous, arbitrary,
or unwarranted.” Id.
1. 	Plaintiff Failed to Present Expert Testimony on the Standard of Care
{58} 	Plaintiff asserts that Dr. Winterkorn committed medical negligence when he
continued with the embolization procedure after Mrs. Richter had developed
arrhythmia. Plaintiff was required to present expert testimony regarding the standard
of care applicable to Dr. Winterkorn and whether his conduct fell below that standard.
See UJI 13-1102 NMRA; Lopez v. Sw. Cmty. Health Servs., 1992-NMCA-040, ¶ 13,
114 N.M. 2, 833 P.2d 1183 (“In a medical malpractice case, because of the technical
and specialized subject matter, expert medical testimony is usually required to
establish departure from recognized standards in the community.”); Mascarenas v.
Gonzales, 1972-NMCA-062, ¶ 6, 83 N.M. 749, 497 P.2d 751 (“Should the condition
be such that knowledge about it is peculiarly within the knowledge of medical men,
then a court should not allow a jury to conjecture or speculate about the matter.”

32
(internal quotation marks and citation omitted)). To establish the standard of care for
Dr. 	Winterkorn’s 	conduct, 	Plaintiff 	offered 	testimony 	from 	Dr. 	Sibbit, 	an
interventional radiology expert. 	However, Dr. Sibbit explained that there was no
standard 	practice 	that 	an 	interventional 	radiologist 	would 	use 	regarding 	the
embolization of a patient’s arteries and stopping the procedure when a patient begins
to develop arrhythmia. He testified that there is not enough data or information to
identify the standard practice or methodology for addressing the complication in the
embolization procedure that occurred in this case. As a result, Dr. Sibbitt could not
indicate whether Dr. Winterkorn was negligent regarding the arrhythmia that
developed during Mrs. Richter’s embolization procedure.
{59} 	Plaintiff argues that testimony from Dr. Eigelberger, a general surgeon, also
established the standard of care applicable to Dr. Winterkorn’s procedure. However,
the district court found, and Plaintiff does not challenge, that Plaintiff failed to lay the
foundation for Dr. Eigelberger to opine as to whether Dr. Winterkorn’s conduct was
negligent. See Giovannini v. Turrietta, 1966-NMSC-103, ¶ 4, 76 N.M. 344, 414 P.2d
855 (“The [district] court’s findings, not properly attacked, are conclusive on
appeal.”). Consequently, Dr. Eigelberger never provided an expert opinion regarding
the proper standard of care or whether Dr. Winterkorn was negligent in addressing the
complication that developed during Mrs. Richter’s embolization procedure. Plaintiff’s
own expert, Dr. Sibbit, opined that a general surgeon such as Dr. Eigelberger would

33
not be qualified to offer an opinion on the standard of care applicable to an
interventional radiologist in circumstances like those in this case. 	As a result, Dr.
Eigelberger’s testimony does not assist Plaintiff in overcoming the motion for a partial
directed verdict.
{60} 	As an alternative, Plaintiff argues at length about facts in the record that might
support an inference that common sense and basic anatomy would require Dr.
Winterkorn to stop the procedure immediately after Mrs. Richter developed an
arrhythmia. However, these factual arguments do not constitute the kind of expert
testimony required to set the standard of care for Dr. Winterkorn’s conduct, because
“arguments of counsel are not evidence.” Muse v. Muse, 2009-NMCA-003, ¶ 51, 145
N.M. 451, 200 P.3d 104; see UJI 13-1102; Cano v. Smith’s Food King, 1989-NMCA-
080, ¶ 5 , 109 N.M. 50, 781 P.2d 322 (holding that medical causation ordinarily must
be supported by expert medical testimony).
2. 	A Physician’s Promise Does Not Establish the Standard of Care
{61} 	Finally, Plaintiff asserts that Dr. Winterkorn was negligent because he had
broken an earlier promise to stop the embolization procedure at the first signs of an
arrhythmia. 	Plaintiff fails to provide any authority to support a theory of medical
negligence based solely upon statements by the operating physician that he intended
to stop the medical procedure if certain complications arose. 	See State v. Godoy,
2012-NMCA-084, ¶ 5, 284 P.3d 410 (“Where a party cites no authority to support an

34
argument, we may assume no such authority exists.”). As a result, this Court will not
speculate or presume that Dr. Winterkorn’s statement was a proper basis to establish
medical negligence. See Cervantes v. Forbis, 1964-NMSC-022, ¶ 15, 73 N.M. 445,
389 P.2d 210 (refusing to speculate in the absence of proof as to whether the
defendant’s doctor should have used an X-ray to place an intramedullary pin). We
need not address the theory any further.
{62} 	Plaintiff presented no expert testimony that Dr. Winterkorn breached any
standard of care by continuing the embolization procedure when Mrs. Richter
developed an arrhythmia. 	As such, Plaintiff failed to present a viable medical
negligence issue against Dr. Winterkorn for the jury’s consideration. It was not error
for the district court to grant a partial directed verdict in favor of Dr. Winterkorn and
we affirm.
IV. 	Comparative Negligence Principles Require the District Court to Consider
the Comparative Negligence of Non-Parties.
{63} 	We now address Plaintiff’s argument that the district court violated the three-
year Medical Malpractice Act statute of limitations when it permitted the jury to
compare the alleged negligence of Mrs. Richter’s 2001 physicians, who were non-
parties in this case, with the negligence of Drs. Winterkorn and Lovato. Plaintiff’s
argument asks this Court, in effect, to allow comparative negligence to apply
exclusively against the parties actually brought to court, regardless of the fault of other

35
non-parties. Plaintiff has failed to provide this Court with any authority supporting
this novel policy argument regarding the application of comparative negligence in
New Mexico. 	See State v. Garcia, 2005-NMCA-065, ¶ 7, 137 N.M. 583, 113 P.3d
406 (recognizing that an appellate court will not consider an issue if no authority is
cited in support of the argument).
{64} 	In fact, the district court cannot ignore the comparative liability of non-party
tortfeasors in negligence cases. 	See Seeds v. Lucero, 2005-NMCA-067, ¶ 23, 137
N.M. 589, 113 P.3d 859 (recognizing “the burdens imposed in comparative negligence
cases where the parties must deal with evidence of the negligence of non-party
tortfeasors”). Comparative negligence requires a determination of the percentage of
negligence of each plaintiff, defendant, beneficiary, and non-party that caused the
plaintiff’s total damage. The sum of the percentages must equal 100. 	See UJI 13-
2219 	NMRA 	(requiring 	that 	the 	jury 	“[c]ompare 	the 	negligence, 	if 	any, 	of
[plaintiff(s)] [beneficiary(ies)] [and] [defendant(s)] [and] [non-parties] and determine
a percentage for each”). The Use Note for UJI 13-2219 states: “This instruction is
to be used only in cases where there is an issue of apportionment of negligence among
defendants or non-parties.” 	Id. 	The Use Note for UJI 13-2218 NMRA is also
authoritative where it states: “This instruction is to be used only in cases where there
is no apportionment of negligence among defendants or non-parties.”

36
{65} 	Christus St. Vincent Regional Medical Center v. Duarte-Afara, 2011-NMCA-
112, 267 P.3d 70, does not change our analysis. 	In Christus St. Vincent Regional
Medical Center we held that the hospital could not pursue an indemnification claim
against doctors when the Medical Malpractice Act statute of limitations had expired
for the underlying tort. Id. ¶ 32. Our decision was based in large part on the practical
idea that the doctors should not be made to face monetary obligations for acts which
could no longer be the subject of actions against them. Id. ¶ 16. The situation here
is different. The 2001 physicians who were named as non-party tortfeasors did not
face the possibility of having to pay anything. 	Thus the rationale of Christus St.
Vincent Regional Medical Center does not fit.
CONCLUSION
{66} 	For the foregoing reasons, we affirm in part and reverse in part the judgment
of the district court. 	We remand for further proceedings against TriCore and PHS
consistent with this Opinion.
{67} 	IT IS SO ORDERED.
___________________________________
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
_________________________________
TIMOTHY L GARCIA, Judge

CELIA FOY CASTILLO, Quudge Pro Tem)

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