December 21, 2009 – Michael Ross, as Personal Representative of the Estate of Alvin Moore, deceased v. City of Las Cruces, City of Las Cruces Police Department, State of New Mexico Department of Transporation, Mesilla Valley Hospital, Psychiatric Solutions, Inc., and Georgina C. Herrera, No. 28,619

2 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: December 21, 2009
NO. 28,619

MICHAEL ROSS as Personal Representative
of the Estate of ALVIN MOORE, deceased,

Plaintiff-A ppellant,
V.

THE CITY OF LAS CRUCES, CITY OF

LAS CRUCES POLICE DEPARTMENT,

THE STATE OF NEW MEXICO DEPARTMENT
OF TRANSPORTATION, MESILLA VALLEY
HOSPITAL, PSYCHIATRIC SOLUTIONS, INC.,
and GEORGINA C. HERRERA,

Defendants-A ppellees.

APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
Michael Murphy, District Judge

Law Fimm of Alexander D. Crecca, P.C.
Alexander D. Crecca

Albuquerque, NM

for Appellant

Miller Stratvert, P.A.
Ruth Fuess
Kelsey D. Green

Albuquerque, NM

for Appellees

OPINION
VANZI, Judge.
{1} 	Appellant Michael Ross (Plaintiff), as Personal Representative of the Estate of
Alvin Moore (Moore), filed a complaint for wrongful death against Appellees Mesilla
Valley Hospital (MVH), Psychiatric Solutions, Inc. (PSI), and Georgina C. Herrera,
M.D., (collectively Defendants) after Moore was killed in an auto accident caused by
Carlos Preciado (Preciado). Preciado had recently been discharged from Defendants’
care.
{2} 	Defendants moved for summary judgment, asserting that they did not owe a
duty of care to Moore. The district court granted Defendants’ motion, stating that:
(1) the likelihood of injury to Moore from Defendants’ actions was too remote to
warrant a finding that Defendants had a duty of care to Moore; (2) public policy
considerations, legislative limitations, and the reasoning of this and other jurisdictions
argue against extending such a duty; and (3) the injuries suffered by Moore were not
foreseeable consequences of the breach of any duty Defendants may have had.
Plaintiff appeals that decision. We affirm the district court.
BACKGROUND
{3} 	The following facts are undisputed. On July 25, 2005, Moore was struck and
killed by an automobile driven by Preciado as Moore was attempting to cross a street

2
in downtown Las Cruces. Preciado was driving a vehicle he had recently stolen and
was engaged in a high-speed chase with Las Cruces police officers.
{4} 	At the time of the accident, Preciado was twenty-four years old and had an
extensive history of psychiatric illness. In 2001, Preciado attacked his sister with a
whiskey bottle, after which the court referred him to Memorial Medical Center for a
thirty-day psychiatric evaluation. Memorial Medical Center doctors found Preciado
incompetent to stand trial for the assault because of his psychotic symptoms, and he
was transferred to Las Vegas Medical Center (LVMC) for treatment. 	Preciado
responded well to a combination of anti-psychotic medications at LVMC and was
discharged home. Following his discharge, Preciado was seen on an outpatient basis
by Southwest Counseling Center in Las Cruces. 	When he returned from LVMC,
Preciado was compliant with his medications and was doing well.
{5} 	However, in 2003, Preciado decided he was cured and became non-compliant
with his medications. 	Preciado had been repeatedly charged with crimes and had
numerous encounters with mental health care providers and the police. In January
2005, he was charged in El Paso County, Texas, with obstruction or retaliation under
the Texas Penal Code. Tex. Penal Code Ann. § 36.06 (2003). Preciado initially pled
guilty to the charge but subsequently withdrew his plea and was returned to New
Mexico.
{6} 	Approximately three months after the El Paso incident, on April 22, 2005,

3
Preciado was charged in Las Cruces Municipal Court with misdemeanor assault on
a family member. On that date, Preciado was at his parents’ store, talking to himself,
stating that he was the Lone Ranger, and stating that no one could touch him.
Preciado suddenly started swinging his fists at his mother and, when she attempted to
run away from him, Preciado tackled her, knocking her to the ground and shattering
her front teeth. At a competency hearing in Las Cruces District Court on July 8, 2005,
the City of Las Cruces stipulated to the dismissal of charges against Preciado based
on his incompetency to stand trial. On that basis, the district court entered an order
to remand the case back to municipal court for dismissal of the charges. 	At the
hearing, the State intervened to seek an evaluation of Preciado regarding whether he
should be civilly committed and informed the court that it had “secured a bed for . .
. Preciado” at MVH. 	An order to transport was entered, directing the Doña Ana
County Detention Center Transport officers to transport Preciado to MVH.
{7} 	That afternoon, Preciado checked into MVH with an admitting diagnosis of
psychotic disorder. 	The evaluation at MVH was performed by Dr. Herrera who
understood that Preciado “was referred to [MVH] for evaluation and treatment.”
Preciado was in MVH’s care for five days and, on July 13, 2005, he was discharged.
The discharge summary states that he was medication-compliant and “[n]eat, clean,
alert, and oriented in all spheres.” 	Dr. Herrera scheduled an outpatient follow-up
appointment for Preciado with Southwest Counseling Center for the day following his

4
release from MVH. Twelve days after his discharge, the accident occurred.
{8} 	Plaintiff argues on appeal that the district court erred in granting Defendants’
motion for summary judgment because Defendants owed Moore a duty of care as a
matter of law, and the risk of harm to persons like him was foreseeable as a matter of
law. More specifically, Plaintiff argues that Defendants owed Moore a statutory duty
of reasonable care in evaluating and discharging Preciado and that Defendants owed
Moore a common law duty of care to control Preciado because there was a “special
relationship” between Defendants and Preciado.
DISCUSSION
Standard of Review
{9} 	“Summary judgment is properly granted where there is no genuine issue of
material fact and where the moving party is entitled to judgment as a matter of law.”
Johnstone v. City of Albuquerque, 2006-NMCA-119, ¶ 5, 140 N.M. 596, 145 P.3d 76.
“An appeal from the grant of a motion for summary judgment presents a question of
law and is reviewed de novo.” Montgomery v. Lomos Altos, Inc., 2007-NMSC-002,
¶ 16, 141 N.M. 21, 150 P.3d 971 (filed 2006). 	“When the moving party makes a
prima facie showing that summary judgment is proper, the party opposing summary
judgment has the burden to show specific evidentiary facts in the form of admissible
evidence that require a trial on the merits.” Estate of Eric S. Haar v. Ulwelling, 2007-
NMCA-032, ¶ 10, 141 N.M. 252, 154 P.3d 67. “Mere argument or bare contention

5
offered by the opposing party that a material issue of fact exists cannot override the
moving party’s prima facie showing.” Id.
Duty
{10} 	The elements of a negligence claim are (1) the existence of a duty running from
the defendant to the plaintiff; (2) a breach of that duty based on a reasonable care
standard; and (3) the breach of duty is both the proximate and in-fact cause of the
plaintiff’s damages. Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 6, 134 N.M. 43,
73 P.3d 181. Whether the defendant owes a duty to the plaintiff is a question of law
to be determined by the court. Id. A duty of care can be based on either a statutory
or common law duty. 	Spencer v. Health Force, Inc., 2005-NMSC-002, ¶ 11, 137
N.M. 64, 107 P.3d 504. Using these principles as the foundation for our analysis, we
address each of Plaintiff’s arguments in turn.
Statutory Duty of Medical Professionals to Third Persons
{11} 	Plaintiff first argues that Defendants had a statutory duty of care to Moore
under NMSA 1978, Section 43-1-1 (1999), of the Mental Health and Developmental
Disabilities Act. Plaintiff argues that this statute was the authority under which the
court ordered Preciado to be transported to MVH for evaluation and that under this
statute, Defendant had a duty to return Preciado to the facilities of the court after the
evaluation. 	We disagree. 	As a preliminary matter, we observe that the order of
transport 	does 	not 	state 	the 	statutory 	authority 	under 	which 	it 	was 	issued.

6
Nevertheless, we turn to the language of the statute to evaluate Plaintiff’s argument.
{12} 	Section 43-1-1(A) states that “[w]henever a district court finds it necessary to
obtain an evaluation of the mental condition of a defendant in a criminal case, the
court shall order an evaluation from a qualified professional” and the court shall enter
“an appropriate transport order which also provides for the return of the defendant to
the local facilities of the court.”
{13} 	The plain language of this statute places the burden on the court to request that
a defendant in a criminal case be returned to the facilities of the court. The transport
order in this case did not contain such a request. 	Additionally, Section 43-1-1
addresses the procedure a court should follow to obtain an evaluation of the mental
condition of a defendant in a criminal case; however, Preciado was not transported to
MVH in connection with a criminal matter.
{14} 	The district court issued the transport order at a hearing to address Preciado’s
competency to stand trial on a charge of misdemeanor assault. 	As we have noted
above, the parties stipulated that Preciado was not competent to stand trial, and the
misdemeanor assault matter was remanded back to the municipal court for dismissal
of the charges. There is no indication in the record that there were any unresolved
criminal charges outstanding against Preciado at the close of the competency hearing.
Further, contrary to Plaintiff’s representations, there was no finding by the district
court that Preciado was “a danger to himself or to others.”

7
{15} 	During the competency hearing, the attorney for the State informed the court
that the State had decided to pursue an involuntary civil commitment of Preciado. To
that end, the State secured a bed for Preciado at MVH and arranged for an evaluation
by Dr. Herrera to determine whether Preciado met the criteria for civil commitment.
The State told the court that if Preciado was found to meet the commitment criteria,
the treating physician, Dr. Herrera, would prepare a physician’s affidavit for
commitment, and the State would institute commitment proceedings.
{16} 	The State had prepared an order for transport ordering the Doña Ana County
Detention Center to transport Preciado to MVH. The district court judge signed the
transport order at the close of the hearing. Based on these facts, it is clear that the
transport order was issued in connection with an evaluation for civil commitment, not
criminal proceedings; therefore, the transport order was not issued pursuant to Section
43-1-1(A).
{17} 	In compliance with the transport order, Dr. Herrera completed the evaluation
of Preciado prior to his release. There is no indication in the record that Dr. Herrera
found that Preciado met the criteria for continued commitment, and the State did not
pursue a civil commitment of Preciado. Because there was no further order from the
court and the transport order did not specify that Preciado should be returned to the
local facilities of the court, MVH did not have a statutory duty to Moore either to
detain Preciado beyond the time required for the evaluation or to return Preciado to

8
the local court facilities.
{18} 	Plaintiff also argues that under the Full Faith and Credit Clause, MVH was
required to hold Preciado “pursuant to an [o]rder of the 243rd Judicial District Court,
El Paso County, Texas.” We decline to address this issue because Plaintiff fails to
point to any evidence in the record that such an order exists. Plaintiff also fails to
indicate where this issue was argued and ruled upon by the court below. “We will not
search the record for facts, arguments, and rulings in order to support generalized
arguments.” 	Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104
(filed 2008). Where a party fails to cite any portion of the record to support its factual
allegations, the Court need not consider its argument on appeal. 	See Santa Fe
Exploration Co. v. Oil Conservation Comm’n, 114 N.M. 103, 108, 835 P.2d 819, 824
(1992). 	“We will not review unclear arguments, or guess at what [a party’s]
arguments might be.” Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137
N.M. 339, 110 P.3d 1076.
Common Law Duty of Medical Professionals to Third Persons
{19} 	Plaintiff next argues that Defendants owed a common-law duty to Moore to
control Preciado because Defendants had a “special relationship” with Preciado.
Again, we disagree.
{20} 	The general rule regarding duty, recognized in New Mexico, is that “an
individual has no duty to protect another from harm.” Estate of Eric S. Haar, 2007-

9
NMCA-032, ¶ 23 (internal quotation marks and citation omitted). In order to impose
a duty on a defendant, a relationship must exist that legally obligates the defendant to
protect the plaintiff’s interest. Id. ¶ 15. In addition to that legal obligation, where a
duty is based on a special relationship, the defendant must have “the right or ability
to control another’s conduct.” Id. ¶ 23 (internal quotation marks and citation omitted).
{21} 	More specific to the duty owed by health care providers to third parties, our
Supreme Court has stated that the general rule in New Mexico is that “a physician
owes a duty to his or her patient, and not to third party non-patients.” Lester ex rel.
Mavrogenis v. Hall, 1998-NMSC-047, ¶ 25, 126 N.M. 404, 970 P.2d 590.
{22} 	The determination as to whether a duty exists requires an analysis of both
foreseeability and policy. See id. ¶ 9. “Foreseeability is what one might objectively
and reasonably expect, not merely what might conceivably occur.” Johnstone, 2006-
NMCA-119, ¶ 8 (internal quotation marks and citation omitted). Even if a plaintiff
is a foreseeable party to the defendant’s actions, this does not end the inquiry for the
imposition of duty. 	Lester, 1998-NMSC-047, ¶ 9. 	The court must still determine
whether the public policy of New Mexico supports an imposition of that duty. Id.
{23} 	In the following discussion, we analyze Defendants’ common law duty to
Moore in terms of both foreseeability and public policy.
Foreseeability

10
{24} 	Our Supreme Court has interpreted the issue of foreseeability and a health care
provider’s duty to non-patient third parties in two New Mexico cases. 	The Court
addressed this as an issue of first impression in Wilschinsky v. Medina, 108 N.M. 511,
513, 775 P.2d 713, 715 (1989). 	The specific issue in that case was whether a
practicing physician in New Mexico owed a duty to third parties who foreseeably may
be harmed by the physician’s negligent treatment of a patient. Id.
{25} 	In Wilschinsky, a doctor injected his patient with a strong narcotic while the
patient was in the doctor’s office. 	Id. at 512, 775 P.2d at 714. 	The narcotic was
known to have side effects that would impact the patient’s ability to operate an
automobile. Id. at 513, 775 P.2d at 715. The doctor permitted the patient to leave the
office a short time after receiving the injection. 	Id. at 512, 775 P.2d at 714. While
driving an automobile, approximately seventy minutes after receiving the injection,
the patient was involved in a serious automobile accident that resulted in injury to a
third party. Id. To facilitate its analysis, the Court articulated a general framework
that may be used by courts to determine the existence of a duty in cases involving
defendant physicians and third party non-patients. 	Lester, 1998-NMSC-047, ¶ 5.
Under the Wilschinsky framework, the determination of a duty requires careful
balancing of the “likelihood of injury, the magnitude of the burden of guarding against
it[,] and the consequences of placing that burden upon the defendant.” Wilschinsky,
108 N.M. at 513, 775 P.2d at 715 (internal quotation marks and citaiton omitted).

11
{26} 	Applying this framework to the facts in Wilschinsky, the Court found that the
likelihood of an automobile accident immediately following the injection of a narcotic
was high. 	Id. at 515, 775 P.2d at 717. 	The burden of guarding against that
foreseeable danger was not unreasonable based on the standards of normal medical
procedures with which the doctor was already required to comply. Id. 	Finally, the
Court found that the consequences of the additional burden on the doctor’s treatment
decisions would not be significant if the scope of the doctor’s duty is limited to
conducting himself within the professional standards of acceptable medical practice.
Id.
{27} 	Based on its analysis, the Court created a very narrow exception to the general
rule that a physician does not owe a duty to third party non-patients. The Court found
that physicians owe a duty to the limited group of third parties who are “persons
injured by patients driving automobiles from a doctor’s office when the patient has
just been injected with drugs known to affect the judgment and driving ability.” Id.
The Court specifically stated that the holding should not be construed to “create a
general duty to the public” and the duty “is not to the entire public for any injuries
suffered for which an argument of causation can be made.” Id.
{28} 	The Supreme Court next considered this issue in Lester, 1998-NMSC-047,
where the Court declined to expand the narrow exception defined in Wilschinsky. In
Lester, a third party was injured by a driver whose ability to drive was impaired

12
because he had improperly taken a medication prescribed by his doctor. 1998-NMSC-
047, ¶ 2. The accident occurred five days after the patient had last seen the doctor.
Id.
{29} 	Applying the Wilschinsky balancing test, the Lester Court determined that the
likelihood of injury in this case was “not foreseeable to the degree required in order
to warrant a duty.” Lester, 1998-NMSC-047, ¶ 6. The Court stated that the likelihood
was considerably more remote in this case than in Wilschinsky due to the significantly
longer time since the patient last had contact with the doctor (seventy minutes in
Wilschinsky as compared with five days in the Lester case). Lester, 1998-NMSC-047,
¶ 6; Wilschinsky, 108 N.M. at 512, 775 P.2d at 714. The Court also determined that
the magnitude of the burden was too high. Lester, 1998-NMSC-047 ¶ 7. The Court
found that where medication is taken outside of the doctor’s control, a duty running
from the doctor to a third party non-patient is unreasonably burdensome because
preventative measures are more difficult to impose and reliance on professional
judgment is more remote. Id. Finally, the Court found that requiring a doctor to guard
against injury to third parties from patients taking prescription medications had the
potential consequence of creating a “serious chilling effect on the use of prescription
medication in medical care.” Id. ¶ 8. The Court found that this potential consequence
mitigated against the imposition of such a duty. Id. Quoting Wilschinsky, the Court
stated that “doctors should not be asked to weigh notions of liability in their already

13
complex universe of patient care.” Lester, 1998-NMSC-047, ¶ 8 (internal quotation
marks and citation omitted).
{30} 	In reaching its holding, the Court noted that the Wilschinsky Court had narrowly
drawn its holding in order to “emphasize that courts should consider with great
caution whether the facts of particular cases are appropriate for recognizing
physicians’ duties to third parties.” Lester, 1998-NMSC-047, ¶ 3.
{31} 	More recently, the Tenth Circuit Court of Appeals in Weitz v. Lovelace Health
System, Inc., 214 F.3d 1175 (10th Cir. 2000), applied New Mexico law to address the
specific issue of “whether a health care provider can owe a duty to third parties arising
from control where the individual is being treated on an outpatient basis.” Id. at 1182.
{32} 	In Weitz, a man who had been receiving outpatient counseling services from a
health care provider shot and killed his wife and daughter, and then took his own life.
Id. at 1176. 	The murder-suicide happened approximately three weeks after the
patient’s last encounter with the health care provider. 	Id. at 1177. 	The court
concluded that “[t]he strong weight of authority suggests that New Mexico would not
find such a duty exists under these circumstances.” Id. at 1182. The court noted that
the relationship between a psychiatric outpatient and their health care provider is less
involved than that of an inpatient because the outpatient status “affords the health care
provider only limited opportunity to supervise the patient.” 	Id. 	As a result of the
limited interaction between provider and patient, the court held that “imposing a duty

14
to control in the outpatient context would require providers to exercise a degree of
care and oversight that would be practically unworkable.” Id.
{33} 	Applying the Wilschinsky balancing test to the facts in the current case, we find
that, under the first prong of the test, the likelihood of injury to Moore based on
Defendants’ actions was not foreseeable to the extent necessary to create a duty on the
part of Defendants. 	Unlike 	Wilschinsky, where the accident occurred within
approximately an hour of the patient’s interaction with the doctor, it had been twelve
days since Preciado had been in contact with Defendants. Additionally, it does not
appear from the record that Preciado had an ongoing patient-provider relationship
with Defendants at the time of the accident. 	Preciado had been discharged from
Defendants’ care, and an outpatient follow-up appointment had been scheduled with
a separate agency, Southwest Counseling Center. The record does not indicate that
any further contact between Preciado and Defendants was scheduled or planned.
Given these circumstances, the foreseeability of Moore’s injuries as a result of
Defendants’ actions was considerably more remote than even the circumstances in
Lester, which our Supreme Court found to be insufficient to sustain a finding of duty.
{34} 	Under the second prong of the test, we determine that the magnitude of the
burden that would be created by imposing a duty on Defendants under these
circumstances would be too high. Patients who have been discharged from care are
even farther beyond the scope of a health care providers’ control than are patients seen

15
on an outpatient basis. As the Court in Lester noted, patients operating outside of a
health care provider’s control make it more difficult for a health care provider to
impose preventative measures, and reliance on the professional judgment of the health
care provider is more remote. Lester, 1998-NMSC-047, ¶ 7. For these reasons, we
agree with the court in Weitz that imposing a duty to control in this context is
unworkable. 214 F.3d at 1182.
{35} 	Finally, 	under 	the 	third 	prong 	of 	the 	test, 	we 	find 	that 	under 	these
circumstances, the potential consequences of imposing a duty to third parties on health
care providers is significant. Extending a duty from Defendants to Moore may cause
doctors to be more inclined to commit patients more frequently and for longer periods
than are necessary in order to avoid possible liability for the patient’s future actions.
This potential consequence mitigates against the extension of such a duty.
{36} 	In summary, we find that the injury to Moore was not foreseeable to the degree
required to warrant a finding that Defendants owed a duty to Moore regarding the
treatment and discharge of Preciado. Additionally, based on the facts in this case, we
find that Defendants did not have a “special relationship” with Preciado or the right
or ability to control his conduct at the time of the accident. 	For these reasons,
Defendants did not have a duty to Moore to control Preciado.
{37} 	As we noted above, foreseeability is the first prong of the inquiry into whether
a duty exists. Public policy considerations must also be weighed. We next turn to that

16
discussion.
Public Policy
{38} 	Our Supreme Court has stated that it is the domain of the Legislature to make
public policy. Lester, 1998-NMSC-047, ¶ 10. Courts should make policy in order to
determine duty only when the Legislature has not spoken. Id. Therefore, whether the
public policy of New Mexico supports a duty that runs from Defendants to Moore is
determined by “reference to existing statutes, rules of court, judicial precedent, and
other principles comprising the law.” Id. ¶ 9 (internal quotation marks and citation
omitted).
{39} 	In Lester, the Court noted that the Legislature has spoken with regard to
limiting health care providers’ liability. Id. ¶ 11. The Legislature has determined that
health care provider liability must be limited in order to assure New Mexicans’ access
to medical care. 	Id. 	This determination is evidenced by the limits the Legislature
placed on health care providers’ liability through enactment of the Medical
Malpractice Act (the Act) embodied in NMSA 1978, Sections 41-5-1 to -29 (1976, as
amended through 2008). Lester, 1998-NMSC-047, ¶ 11. The Legislature’s intention
to limit health care providers’ liability is demonstrated by provisions of the Act that
impose damage caps, a shorter statute of limitations, and required evaluation and
decision by the medical review commission. Id.
{40} 	In Lester, the Court stated that although courts have the authority to recognize

17
a duty, this authority must be exercised sparingly, especially where “the Legislature
has spoken in a manner inconsistent with the expansion of tort liability for health care
providers.” Id. The Court concluded that because the Legislature had chosen to limit
the liability of health care providers in the Act, expansion of health care provider
liability to third parties should be left to the Legislature. Id.
{41} 	In light of New Mexico’s public policy as stated by the Legislature and our
Supreme Court, we do not find the facts of the present case to warrant an expansion
of health care provider duties to third parties.
CONCLUSION
{42} 	For the reasons set forth above, we affirm the district court’s order granting
summary judgment in favor of the Defendants.
{43} 	IT IS SO ORDERED.
________________________________
LINDA M. VANZI, Judge
WE CONCUR:
_______________________________
CYNTHIA A. FRY, Chief Judge
_______________________________

CELIA FOY CASTILLO, Judge
18