October 21, 2013 – Richard Quintana and Blanca Quintana v. Steven Acosta, M.D., Nor-Lea Hospital District, and Nor-Lea General Hospital, No. 31,585

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: October 21, 2013
NO. 31,585

RICHARD QUINIANA and
BLANCA QUINTANA,

Plaintiffs-A ppellants,
V.
STEVEN ACOSTA, MLD., NOR-LEA

HOSPITAL DISTRICT, and
NOR-LEA GENERAL HOSPITAL,

Defendants-A ppellees.

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

Law Offices of Daymon B. Ely

Daymon B. Ely
Albuquerque, NM

Bette Velarde
Albuquerque, NM

for Appellants

Brown & Gay, P.C.
Remo E. Gay
Albuquerque, NM
for Appellee Acosta
Miller Stratvert P.A.
Thomas R. Mack
Albuquerque, NM
for Appellees Nor-Lea Hospital District & Nor-Lea General Hospital

OPINION
VIGIL, Judge.
{1} 	In this medical malpractice case, Defendants moved to exclude the causation
opinion of Plaintiffs’ expert witness on the basis that the expert was unqualified to
give his opinion regarding the efficacy of prophylactic antibiotics and that the
testimony was scientific knowledge, which Plaintiffs were unable to establish as
reliable. 	The district court agreed, excluded the expert’s causation opinion, and
therefore dismissed the case. Concluding that the district court erred in ruling that the
proposed testimony was scientific knowledge, which requires compliance with
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and State v.
Alberico, 1993-NMSC-047, ¶ 58, 116 N.M. 156, 861 P.2d 192, we reverse.
I. 	BACKGROUND
{2} 	Plaintiff Richard Quintana, who is diabetic, stepped on a nail while working in
his yard and suffered a puncture wound to the bottom of his left foot. Plaintiff did not
realize that he had been injured until that night as a result of his diabetes-related
peripheral neuropathy. Peripheral neuropathy causes a loss of sensation in the limbs,
such as the feet. After discovering the injury, Plaintiff went to the Nor-Lea General
Hospital Emergency Department, where he was treated by Defendant Dr. Steven
Acosta. The parties dispute the specifics of Dr. Acosta’s treatment, but they agree that

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a nurse cleaned the wound with an antibiotic scrub and that Dr. Acosta administered
a tetanus immunization, determined that prophylactic antibiotics were unnecessary at
that time, and instructed Plaintiff to monitor the wound for signs of infection and to
follow up with his primary care physician the next week. Dr. Acosta later stated that
he did not administer prophylactic antibiotics to Plaintiff because “his wound looked
clean,” and there was “no active bleeding, no surrounding erythema, [and] no other
lesions or discharge.”
{3} 	Despite the written discharge instructions provided to him stating that he was
to “[f]ollow up with [his primary care physician] [next] week re: 	antibiotics,”
Plaintiff did not seek a follow-up appointment with his primary care physician. Six
days after his visit to the emergency room, Plaintiff traveled to Mexico, where he
experienced a throbbing sensation and pain in his foot and observed drainage from the
puncture wound. Plaintiff was hospitalized in Mexico, where he received intravenous
antibiotics consisting of clindamycin and ceftriaxone, vancomycin and ceftriaxone,
and vancomycin and imipenem. 	Plaintiff returned to the United States to receive
medical care at the University of New Mexico Hospital, which culminated in a
transmetatarsal amputation of his left foot a month after his initial injury.
{4} 	Plaintiff and his wife, Blanca Quintana, brought a medical malpractice suit
against Dr. Acosta, alleging that Dr. Acosta had “negligently treated [Plaintiff] by . . .

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failing to prescribe antibiotics, secure an immediate follow up, convey to the patient
the importance of his injuries or otherwise act in a reasonable manner for physicians.”
Plaintiffs also sued against the Nor-Lea General Hospital (Hospital) as Dr. Acosta’s
employer, and the Nor-Lea Hospital District (Hospital District) as the owner and
operator of Hospital.
A. 	Plaintiffs’ Expert Witness
{5} 	Plaintiffs retained Dr. Robert P. Wahl, a board-certified emergency medical
physician, as their expert witness. Dr. Wahl presented his conclusions in a report in
which he determined that “the essence of this case distills to the management of a
puncture wound to the foot and an opinion as to whether antibiotics were indicated in
the initial treatment of this patient.” Dr. Wahl noted the following factors:
1.) 	time of the injury: This is not clear from the documentation
provided; “early in the day” is the phrase used in the emergency
department note. 	Timing plays a significant role in the potential for
wound infection. 	Wounds untreated for greater than 6 hours have a
higher infection rate. 	Mr. Quintana presented to the emergency
department at 7:15 pm to be evaluated. The potential for his wound to
be greater than 6 hours old is present.
2.) 	mechanism/extent of the injury: The mechanism appears to
be a puncture wound with a nail through footwear (shoe and sock) to the
sole of the left foot/toe. The patient was unaware of the injury likely due
to diabetes-related peripheral neuropathy and the potential for deep
penetration and/or repeated injury (taking more than one step with the
nail punctured through his shoe) was present. Additionally, wounds to
the foot through a rubber-soled shoe have an increased rate of infection
with Pseudomonas species bacteria. . . .

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3.) 	environment where the injury occurred: Mr. Quintana was
gardening at the time of injury. 	The potential for inoculation of the
wound with contaminants from the soil is present. . . .
4.) 	factors that contribute to an increased risk of infection in
wounds: Mr. Quintana is a known diabetic patient, with the anatomic
location of the wound being in the lower extremity, and a time delay
from injury to treatment, all of which place Mr. Quintana at increased
risk for wound infection.
{6} 	Dr. Wahl stated that “[g]iven the information provided, assuming this was a
puncture wound to the plantar aspect of the left great or second toe, through footwear,
with a delay of ‘hours’ before treatment, in a diabetic patient who had been working
in his garden (potential for soil contamination), it is my medical opinion that
antibiotics should have been initiated in the initial course of treatment from the
emergency department to reduce the potential for wound infection.” By failing to do
so, Dr. Wahl testified, Dr. Acosta violated the standard of care. 	In a subsequent
affidavit, Dr. Wahl noted that “the more time organisms have to ‘set up shop’ in terms
of beginning to multiply permits these organisms to do damage if not treated
appropriately.” 	Thus, Dr. Wahl concluded, “Dr. Acosta’s failure to prescribe
antibiotics and his failure to properly instruct his patient reduced [Plaintiff’s] chances,
as a matter of reasonable medical probability, for a better outcome and specifically
reduce[d] the chances of recovering without having his foot amputated.”
B. 	Motion to Exclude Dr. Wahl’s Opinion Testimony

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{7} 	Dr. Acosta filed a motion to exclude the causation opinion of Dr. Wahl. Dr.
Acosta first challenged Dr. Wahl as unqualified to render an opinion regarding the
effect of prophylactic antibiotics because “Dr. Wahl’s expertise in emergency
medicine does not . . . make him qualified or competent to render an opinion which
is uniquely in the purview of a specialist in infectious disease.” Dr. Acosta further
challenged Dr. Wahl’s opinion on the efficacy of prophylactic antibiotics as unreliable
because it “has no support in science/medicine and should, therefore, be excluded[.]”
{8} 	Plaintiffs responded that the motion should be denied because “Dr. Wahl’s
opinion that the administration of prophylactic antibiotics would have resulted in a
better outcome is based on his thirty plus years of experience as an ER doctor in a
hospital emergency room environment, treating thousands of patients,” that “Dr.
Wahl’s opinions regarding the use of antibiotics are part of his differential diagnosis,”
and that “[u]se of antibiotics is a necessary part of a board[-]certified emergency room
physician’s duties.”
{9} 	The district court granted Dr. Acosta’s motion based on its findings of fact and
conclusions of law in which it concluded as a matter of law that Dr. Wahl was offering
scientific opinions based on scientific knowledge. 	The district court therefore
considered whether the Daubert-Alberico factors were satisfied as we applied them
in Parkhill v. Alderman-Cave Milling & Grain Co., 2010-NMCA-110, 149 N.M. 140,

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245 P.3d 585, cert. quashed, 2013-NMCERT-005, 302 P.3d 1162, were satisfied.
Concluding that the necessary predicate was not laid for the admission of Dr. Wahl’s
opinions as scientific evidence, the district court ordered that his opinions be
excluded. The district court order states that Dr. Wahl’s opinion testimony is to be
excluded from trial because “the opinion is subject to the Daubert/Alberico/Parkhill
analysis and is not reliable or scientifically valid.” In addition, the district court order
states that Dr. Wahl’s opinion is to be excluded “on the basis that it goes beyond the
scope of expertise of the average emergency room physician.”
II. 	DISCUSSION
{10} 	Plaintiffs challenge the district court’s application of the Daubert-Alberico
analysis to the admissibility of Dr. Wahl’s causation opinion. Specifically, Plaintiffs
contend that Dr. Wahl’s causation opinion is not based on scientific knowledge, but
on his knowledge, experience, and training as an emergency room physician and that
it is admissible as such. Dr. Acosta, on the other hand, asserts that the district court
correctly concluded that Dr. Wahl’s causation opinion is both subject to and unreliable
under the Daubert-Alberico factors. 	The Hospital and Hospital District similarly
argue that “[b]ecause Dr. Wahl’s testimony involves scientific medical issues related
to medical causation, specifically the cause of [Plaintiff’s] infection, the study of
bacteria and the use of medical agents and treatment to control his infection, the

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[district court] appropriately and correctly determined that Dr. Wahl’s opinion
testimony must meet scientific evidentiary reliability and validity standards and the
[district court] properly applied the Daubert-Alberico evidentiary analysis.” For the
reasons which follow, we agree with Plaintiffs.
{11} 	The admission of expert testimony is governed by Rule 11-702 NMRA, which
states: 	“A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if the expert’s
scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue.” 	Thus, the admission of
expert testimony depends on three requirements: “(1) that the expert be qualified; (2)
that the testimony be of assistance to the trier of fact; and (3) that the expert’s
testimony be about scientific, technical, or other specialized knowledge with a reliable
basis.” State v. Downey, 2008-NMSC-061, ¶ 25, 145 N.M. 232, 195 P.3d 1244. This
case concerns only the first and third requirements.
{12} 	In Loper v. JMAR, 2013-NMCA-___, ___ P.3d ___ (No. 31,357, July 3, 2013),
we recently addressed our standard of review on appeal in determining whether the
foregoing requirements have been satisfied. We said:
The admission of expert testimony lies in the discretion of the trial court.
An abuse of discretion standard of review, however, is not tantamount
to rubber-stamping the trial judge’s decision, and we are not prevented
from conducting a meaningful analysis of the admission of the expert

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testimony to ensure that the trial judge’s decision was in accordance with
the Rules of Evidence and the evidence in the case. Moreover, when the
trial court applies a wrong legal standard in determining whether
evidence is admissible, an abuse of discretion results. 	Finally, we
observe that in light of the liberal approach of our rules of evidence to
the admission of evidence and the heightened qualifications of modern
day jurors, any doubt regarding the admissibility of expert opinion
evidence should be resolved in favor of admission, rather than exclusion.
Id. ¶ 18 (internal quotation marks and citations omitted).
{13} 	The question of whether expert opinion involves scientific knowledge presents
a question of law, which we review de novo. State v. Torres, 1999-NMSC-010, ¶ 28,
127 N.M. 20, 976 P.2d 20; State v. Aleman, 2008-NMCA-137, ¶ 6, 145 N.M. 79, 194
P.3d 110. When the testimony involves scientific knowledge, a non-exclusive list of
factors, which we refer to as the 	Daubert-Alberico 	factors, is considered in
determining whether the testimony is reliable and, therefore, admissible. These are:
(1) whether a theory or technique can be (and has been) tested; (2)
whether the theory or technique has been subjected to peer review and
publication; (3) the known potential rate of error in using a particular
scientific technique and the existence and maintenance of standards
controlling 	the 	technique’s 	operation; 	(4) 	whether 	the 	theory 	or
technique has been generally accepted in the particular scientific field;
and (5) whether the scientific technique is based upon well-recognized
scientific principle and whether it is capable of supporting opinions
based upon reasonable probability rather than conjecture.
State v. Anderson, 1994-NMSC-089, ¶ 15, 118 N.M. 284, 881 P.2d 29 (internal
quotation marks and citation omitted).

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{14} 	However, the Daubert-Alberico factors apply only when the district court is
evaluating the admissibility of scientific testimony. Torres, 1999-NMSC-010, ¶ 43.
When the expert testimony is non-scientific, but rather, based on the knowledge,
training, or experience of the witness, the Daubert-Alberico factors do not apply.
Loper, 2013-NMCA-___, ¶ 38. Nevertheless, the non-scientific testimony must be
reliable to be admissible. Id. “[W]hen testing the reliability of non-scientific expert
testimony, rather than testing an expert’s scientific methodology as required under
Daubert and Alberico, the court must evaluate a non-scientific expert’s personal
knowledge and experience to determine whether the expert’s conclusions on a given
subject may be trusted.” State v. Torrez, 2009-NMSC-029, ¶ 21, 146 N.M. 331, 210
P.3d 228.
{15} 	Dr. Wahl’s opinion is directed to whether Dr. Acosta’s failure to administer
prophylactic antibiotics in the emergency room reduced Plaintiff’s chance for a better
outcome. Our Supreme Court recognizes such a claim. In Alberts v. Schultz, 1999-
NMSC-015, 126 N.M. 807, 975 P.2d 1279, our Supreme Court stated that a claim for
a loss of chance is “predicated upon the negligent denial by a healthcare provider of
the most effective therapy for a patient’s presenting medical problem,” which may
consist of “the failure to timely provide the proper treatment.” Id. ¶ 11. “The injury
is the lost opportunity of a better result, not the harm caused by the presenting

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problem.” Id. ¶ 21. Such a claim, like any other medical malpractice claim, requires
proof by expert testimony of duty, breach, loss or damage, and proximate cause. Id.
¶ 17. Specifically addressing proof of proximate cause in a loss-of-chance claim, our
Supreme Court noted two differing standards of proof: the “reasonable degree of
medical certainty” standard, and the “reasonable degree of medical probability”
standard and emphasized that “the standard in New Mexico is proof to a reasonable
degree of medical probability.” Id. ¶ 29.
{16} 	We begin with the first question of whether Dr. Wahl is qualified to render an
opinion that Dr. Acosta’s failure to prescribe prophylactic antibiotics resulted in a loss
of a chance of a better recovery by Plaintiff. Here, the experts on both sides agree that
at issue in this case is Dr. Acosta’s management of Plaintiff’s foot injury and whether
antibiotics were indicated in his initial treatment. Dr. Acosta concedes that Dr. Wahl
is qualified to testify as to the standard of care required of an emergency room
physician in the treatment of a patient like Plaintiff. 	We agree. 	Dr. Wahl holds a
medical degree from Wayne State University and is licensed to practice in Michigan;
he is board-certified in emergency medicine and has practiced emergency medicine
for nearly thirty years; he has taught clinical instruction in emergency medicine at his
alma mater for twenty-four years; he has a number of published works on various

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

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

WE CONCUR:

JAMES J. WECHSLER, Judge

TIMOTHY L. GARCIA, Judge

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MICHAEL E. VIGIL, Judge