A-1-CA-35247 | Omnilex

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Court of Appeals of New Mexico

12/20/2017
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2:11:41 PM
of the Clerk

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Ab sd aad

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rk Reynolds

Opinion Number:

Filing Date: December 20, 2017

NO. A-1-CA-35247

WANDA COLLINS, as Personal

Representative of the ESTATE OF
WILLIAM “MACK” VAUGHAN,

intitt- nt
|__Plaintiff-Appella oy, Jant,

ST. VINCENT HOSPITAL, INC.,

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

Sarah M. Singleton, District Judge

Stephen Durkovich

E a J

Sanin Ga KINA
walla PC, INIVI

Hunt & Marshall

17
18

Lee R. Hunt
Santa Fe, NM

19
20
21

Cohen and Zedalis, LLC
Seth T. Cohen
Santa Fe, NM

for Appellant

Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Emil J. Kiehne

Elizabeth A. Martinez

Albuquerque, NM

for Appellee

SON

OPINION
SUTIN, Judge.

i The simple question in this unnecessarily complicated and convoluted direct
liability action is whether the jury’s determination that a hospital’s negligence was not

a cause of the death in question must be reversed based on district court instruction-

related error. We hold that the court did not err

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the court’s judgment dismissing Plaintiff's claim.

BACKGROUND
Pertinent Medical History

St. Vincent Hospital, Inc. (the Hospital) in Santa Fe, New Mexico in August 2002 with
complaints ofabdominal pain. He was seen in the emergency departrnent by Dr. Martin
Wilt, who was a subcontractor/partner of Northern New Mexico Emergency Medical
Services, and who ordered a CT scan. The scan was reviewed by Dr. J.R. Damron, a
radiologist and employee of Santa Fe Radiology, who concluded that the most likely
diagnosis was a diverticular abscess in the colon, but it was also possible that Vaughan
had a neoplasm, which is cancer. Dr. Wilt consulted with Dr. Anna Voltura, a surgeon,
to evaluate Vaughan. Dr. Voltura’s working diagnosis was diverticular abscess. She

recommended that Vaughan be admitted and placed on [V antibiotics. Vaughan

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refused, saying that he wanted to go home, and upon discharge, he was prescribed
antibiotics. Vaughan was instructed to follow up with Dr. Voltura in one week for any

problems. Vaughan was advised that he would need surgery in the future, and Dr.

an that his condition was serious and that he could potentially

the sigmoid colon are present... . An abscess associated with a diverticulitis would be

a first consideration with neoplasm as the etiology being the second consideration.”

Darron’s written report. Vaughan left the Hospital without being told that he had a
possible neoplasm in his colon.

{45 Despite Dr. Voltura’s instructions, Vaughan did not follow up with Dr. Voltura.
In September 2002, he visited the Veterans Administration hospital in Albuquerque,
New Mexico, complaining of foul-smelling, cloudy, burning urination, but he declined
an x-ray. He visited the Veterans Administration hospital again in November 2002 to
establish a primary care provider, on which visit a colonoscopy was recommended but

apparently not performed.

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5} In April 2003, Vaughan presented at the Hospital’s emergency department with
complaints of brown, foul-smelling, gritty material in his urine and with symptoms
similar to those he had in October 2002, including burning with urination. While at the
not do so. In May 2003, the Veterans Administration sent Vaughan a letter advising

him that additional tests were recommended for his continuing urinary tract infections,

including a cystoscopy. No evidence indicates that Vaughan went in for those tests at
that time.

time he underwent a cystoscopy that revealed a colovesical fistula. Vaughan was
ultimately diagnosed in October 2003 with colon cancer in the sigmoid colon at the
location of the abscess. Vaughan died in 2010 of a metastatic lesion, with colon cancer
listed as the “[d]isease or injury that initiated events resulting in death{.]”

The Lawsuit

Years before his death, in January 2006, Vaughan sued the Hospital pursuant to

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a complaint for medical negligence, averring the Hospital’s negligent failure “through
an administrative inadequacy to forward [a] radiology report[,[” indicating the existence

of a neoplasm, on to his physician.

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{8} The case was first before this Court in Vaughan vy. St. Vincent Hospital, Inc., No.
A-1-CA-30395, 2012 WL 1720346, mem. op. (N.M. Ct. App. Apr. 16, 2012) (non-
precedential). In Vaughan, we affirmed the district court’s summary judgment dismissal
of Vaughan’s complaint on the ground that he failed to give sufficient notice under Rule
1-008 NMRA of assertion of a claim of apparent agency giving rise to vicarious
liability of the Hospital. /d. at *1, *8. After Vaughan passed away in 2010, Diego

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Our Supreme Court reversed the Vaughan decision in Zamora v. St. Vincent Hospital,

2014-NMSC-035, 4 1, 335 P.3d 1243, holding that “Vaughan’s complaint adequately

3 More specifically, in Zamora, our Supreme Court stated that “Vaughan’s
pleading was sufficiently detailed to put [the Hospital] on notice ofa claim of apparent
agency or vicarious liability related tot
id. 4 8, and that nothing in our rules or statutes “require[d] a civil complaint to
specifically recite reliance on theories of vicarious liability or apparent agency in order
to provide fair notice of a cause of action.” /d, 7 14. Our Supreme Court concluded its
opinion stating that the “complaint adequately notified [the Hospital] that it was liable
for the negligence of one or more of its agents” and that disputed issues of fact existed

“concerning the negligence of [the Hospital’s] agents in failing to communicate [a]

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cancer diagnosis to Vaughan or his treating doctor.” Jd. € 34. Our Supreme Court
remanded for trial on the merits. [a

The District Court Proceedings on Remand

gio} Onremand, and re-captioned with a substituted personal representative, Wanda

Collins, Plaintiff changed course as to the nature of the claim—-she was no longer

claiming or asserting any negligence on the part of any of the physician providers

liability against the Hospital, but chose instead to pursue a direct hability claim based

solely on negligence of the Hospital stemming from alleged communication,

fi; - Plaintiffs direct liability theory was expressed in different ways at different
intervals, But as stated in the district court’s pretrial order, Plaintiff did not contend that
Drs. Voltura, Wilt, or Damron were negligent, but only the Hospital was negligent by
its failure to deliver the report of Vaughan’s CT scan results to Vaughan, Dr. Wilt, and
Dr. Voltura. At trial, Plaintiff contended that she did not allege “that any of the
physicians did anything wrong” but that the Hospital was liable based on a number of

systemic and communication failures. The Hospital’s defense to Plaintiff's contention

was that Vaughan’s cancer did not progress from August 2002 to October 2003, and

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any delay in treatment was caused by Vaughan’s repeated failures to heed medical
advice.

412} Although many of the jury instructions were settled prior to trial, at a mid-trial
jury instruction conference, the district court considered whether to give an apparent

agency instruction based on UJI 13-1120B NMRA and Houghland v. Grant, 1995-

NMCA-005, 119 N.M. 422, 891 P.2d 563, that “[a] hospital is responsible for the

Plaintiff, it was a “general proposition” that a hospital is “on the hook” because the

physician providers are apparent agents, and that the hospital is on the hook for their

the providers made “any bad medical decisions.” Plaintiff disagreed, stating that the
Hospital was “broadly” responsible for the failures of the apparent agent providers who
are part of the failed system, including bad medical decisions not constituting
negligence. The district court ultimately determined that it was going to give the
apparent agency instruction only if it was limited for the purposes of considering
whether to award punitive damages and limited to “consideration of the cumulative

conduct of its employees or apparent agent{.|

' This limitation was based on this Court’s opinion in Grassie v. Roswell

Hospital Corp., 2011-NMCA-024, 4] 30-32, 150 N.M. 283, 258 P.3d 1075. In
Grassie, we held that the cumulative conduct theory, which “provides that an award

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414} In closing arguments, Plaintiff again focused on her theory that the Hospital
negligently failed to deliver Dr. Damron’s final report to Vaughan’s treating physicians
and to Vaughan. In its closing argument, the Hospital argued that it was not negligent

because its system for delivering reports complied witt » indus

sufficient, and worked in practice. The Hospital noted the stipulation that Dr. Damron

was not negligent, but indicated nevertheless that Dr. Damron was the cause of

rebuttal, Plaintiffagain stressed the failure to deliver the report and argued, “[ilt wasn’t

Dr. Damron’s job to take that report and walk it down the hall. [The] Hospital set up

{18} After closing arguments, the jury was given the following relevant instructions,
beginning with Instruction No. 2:
In this case, [Plaintiff]... seeks damages from the [Hospital] for

damages that [Pjlaintiff says were caused by the negligence of [the]
Hospital.

of punitive damages against a corporation may be based on the actions of the
employees viewed in the aggregate in order to determine whether the employer
corporation had the requisite culpable mental state because of the cumulative conduct
of the employees], |” was supported by New Mexico law. /d. {30 (alterations, internal
quotation marks, and citation omitted). On appeal, Plaintiff does not argue that Grassie
is incorrect or that it would not apply in this case, but rather that a general apparent
agency instruction should have been given.

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To establish [the Hospital’s] negligence, [Plaintiff] has the burden
of proving that [the Hospital] negligently did not deliver Dr. ... Damron’s
final written report of the August 8 CT examination of . .. Vaughan
identifying a pelvic abscess the result of either diverticulosis or a
neoplasm to at least one of the following:

To... Vaughan’s ER leis Dr... . Wilt for Dr. Wilt’s
use in diagnosing and treating Vaughan, or
To Vauguan's Surgeon Dr . Voltura for use in

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Plant) ha 8 the burden of proving [the Hospital’s] negligence

US deat his injuries[,| and damages.

The [Hospital] denies . . . [P]laintiffs allegations regarding
negligence. {The Hospital] asserts that it exercised the knowledge, skill,
and care of a reasonably well[-]qualified hospital in its care and treatment
of... Vaughan. [The Hospital] denies that it failed to deliver the August
8, 2002 CT report to Dr. Wilt and further denies that it failed to deliver
a copy of the August 8, 2002 CT report to Dr. Voltura. [The Hospital]
denies that it was obligated to deliver a copy of the report to Dr. Voltura
without express indication from Dr. Damron. |The Hospital] denies that
it failed to deliver a copy of the report to... Vaughan and states that . .
Vaughan would have received a copy of his records if he had asked for
them. [The Hospital] also denies that it created the appearance that Drs.
Wilt or Damron were its employees or apparent agents and denies that [it]
is responsible for their conduct. [The Hospital] denies .. . [Pllaintiff's

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claims that it caused or contributed to... Vaughan’s death, injuries[,] and
damages.

[The Hospital] affirmatively states that... Vaughan was negligent
and that his neghgence was a cause of his death, injuries[,] and damages.
The [Hospital] has the burden of proving that... Vaughan failed to
exercise a duty of ordinary care and that his negligence caused his injuries
and damages. To establish that... Vaughan was negligent, [the Hospital]
has the burden of proving at least one of the following:

a. ... Vaughan unreasonably declined admission to [the
Hospital| for further work-up and treatment on August 8,

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recommended medical care by his health care provider

the Veteran[s| Administration;

d. . . . Waughan unreasonably failed to obtain

recoramended medical care by his health[]care providers at

[the] Hospital after August 8, 2002.

The [Hospital] also has the burden of proving that such negligence
by... Vaughan was a cause of his death, injuries{,] and damages.

The district court also gave a causation instruction, Instruction No. 5, that read:

An act or omission is a “cause” of injury if it contributes to
bringing about the injury, and if injury would not have occurred without
it. It need not be the only explanation for the injury, nor the reason that is
nearest in time or place. [t is sufficient if it occurs in combination with
some other cause to produce the result. To be a “cause[,”] the act or

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omission, nonetheless, must be reasonably connected as a significant link
to the injury.

fe} The court also gave the following punitive damages instruction, Instruction No.
=, a8 discussed during the mid-trial jury instruction conference, relating fo a hospital’s

responsibility for non-employee cumulative conduct.

For purposes of considering whether to award punitive damages
against [the] Hospital, a hospital is responsible for the curmiative conduct
of health care providers who are no

. Wilt and Dr Damron. if th

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created the appearance that it was the pr rovider of these services to the
public.

after the jury was instructed. During its deliberations, the jury submitted the following
handwritten question, entitled “Jury instruction 14 [and] 17 vs. 19.”
[Instruction No.] 14=refers to doctors
[Instruction No.] 17=refers to physicians
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[Instruction No. “officers [and] eraployees

Are the physicians/doctors considered employees ar officers of St.
Vincent Hospital?

Instruction No. 14 stated, “The [H]jospital is not liable when following the orders of the

doctor unless the ([Hjospital knew or in the exercise of ordinary care should have

3iknown that the orders of the doctor were in error and failed to call the error to the

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doctor’s attention.” Instruction No. 17 stated, “Where [there] is more than one
medically accepted method of diagnosis and treatment, it is not negligent for a
physician or a hospital to select any of the accepted methods.” Instruction No. 19

stated, “{The Hospital] can only act through its officers ¢

Any act a

omission of an officer or an employee of a corporation within the scope or course of

his employment is the act or omission of the corporation.”

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and counsel occurred:

{Plaintiff's counsel]: That's what [Houghiand| was for. In the
[court’s Houghland]| instruction,’ though, it was limited to cumulative
conduct under punitives. 50 we raised the issue when this was comi igs up
that there could be other instances again where they would question the
need of the hespiel for these peop’ So under [Houghland] again, |

hink that they are-—- that’s the whole purpose of [Houghiand].

[The Court]: Well, wouldn’t I have to tell them, if you find the
physicians or doctors are either employees or apparent agents of [the
Hospital], then they are considered employees or officers?

[Plaintiff's counsel]: Yes

{Defendant’s counsel]: Well, first of all, there is a difference

between physicians slash doctors and officers, but on this issue, the-—

* The “Houghland instruction” is Plaintiffs wording for UIL 13-1120B. See UJI
13-1120B comm. cmt. (indicating that the instruction’s language is derived from
Houghland).

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[The Court]: [ guess it would only be---they could only possibly be
considered employees. They are not officers.

[Defendant’s counsel]: And you gave the [Houghland] instruction
only as to punitive damages, not as to negligence
[The Court]: Right.

[Defendant’s counsel]: So I think they need to be told that,

{The Court]: Okay. All right. Okay. So it seems then [ should say
that all the parties have stipulated that no doctor was S negligent. For

purposes of nimitiy

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find the doctors to be employees or the apparent agents of {the] Hospital,
then you may consider them employees of [the] Hospital.

{PlaintifP's counsel]: No

[Houghland| | Says is [Houghland| | says that a hospital is responsible for
the actions of its apparent agent, and it is not limited to negligent actions,
it’s all of their actions.

So the way you stated it initially, that’s the way you have to
instruct it, Your Honor. It isn’t limited to negligent actions ....

The court reminded Plaintiff that she had stipulated that the doctors were not negligent
and thus could not “rely on the doctor’s negligence to form the basic compensable
damage claim.” According to the court, “[t]here has never been a case which says [that

a hospital is] responsible for compensatory damages on account of non-negligent acts

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. physicians who are not [hospital] employees.” Therefore, the court responded

to the jury’s question as follows:

Only for purposes of considering whether to award punitive damages may
you determine whether the doctors/physicians are employees or apparent

agents of ft ith e Hosp ital], See Instruction 12.

The following morning, Plaintiff opened with a request that the court give another

instruction,

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issues. | mean, certainly as we have thought about it our request is the
[clourt submit a separate answer to that question which is essentially the
fi3-] 11i20B] instruction on when a hospital i
of apparent agents.

And I know that the [cjourt did not originally give the instructior
as it is in the UJI based on [Plaintiff's stipulation, and that was the
reason that the [clourt didn’t do that, and certainly that was understood.
But the case has been presented in such a way that [the Hospital has]
raised that issue clearly and soundly throughout the trial and certainly
throughout closing argument, and clearly that is an issue that the jury is
grappling with.

So apart from what we said, the issue has been presented to them
and | think squarely the appropriate instruction for them is the instruction
from [13-1120B] and I think the way it would be presented now is as an
answer to the question that was submitted.

And so we would like to tender that and request that the .. . [cjourt
give that as an answer to [the jury’s question] or as a supplemental
instruction, [hjowever the [c]ourt views that most appropriate.

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Plaintiff requested that the following written instruction be given to the jury:

A hospital is responsible for injuries proximately resulting from the
conduct of health care providers who are not [H]ospital employees, such

. Dr. Damron and Dr. Wilt, if the [H]ospital, through its conduct,
created the appearance that it was the provider of these services to the
public.

This was the first time Plaintiff tendered such an instruction. [t was tendered as a UJI

13-1120B instruction, substituting “conduct” for “negligence” to set out “when a

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hospital is responsible for the conduct of apparent agents.”

a9} The district court refused Plaintiff's tendered instruction, stating:

You could have tried the case where you took the position that either

[Dr.] Darnron or the ER doctor was negligent and an apparent agent of the
fHiosnital. You chose nic

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reasons that you didn’t want to raise that issue, you didn’t ask for [an
1120B] on the whole case at the time we were © de oing instructions. It’s too

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4203 The special verdict form given to the jury asked whether the Hospital was
negligent, to which the jury answered, “Yes.” The form further asked, “Was any
neghgence of [the] Hospital a cause of... Vaughn's injuries and damagesj[,]” to which
the jury answered, “No.” Based on the jury’s lack of causation determination, the
district court entered judgment in favor of the Hospital and against Plaintiff. This appeal

tollowed.

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DISCUSSION
yi; Plaintiff asserts that the “appeal raises a single fundamental substantive issue.
Is a hospital’s direct liability for the conduct of its apparent agents limited to only their

negligent’ conduct?” (Footnote omitted.) Plaintiff argues that (1) she preserved her

claim of error as to the apparent agency instruction; (2) the district court erred in not

giving a broad apparent-agency instruction because all conduct of a hospital’s apparent

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attributable to a hospital in determining a hospital’s direct liability; and (3) the record
provides evidence that the jury was confused and wrongly concluded that the Hospital
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preservation argument, and because we ultimately hold that the district court did not

err and affirm the verdict, we also choose not to address any preservation issues.? We

whether the instruction led to an erroneous jury verdict.
22} “We review a district court’s refusal to give a proffered instruction de novo to

determine whether the instruction correctly stated the law and was supported by the

> Although we address the merits of Plaintiff's arguments on appeal, we are
concerned with counsel’s failure to specifically object to the instructions at the time the
instructions were being settled, and with the late proffer of Plaintiff's modified UJI 13-
1120B instruction in response to the jury’s question. That said, because the
applicability ofapparent-agency principles was discussed generally, we reach the issue.

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evidence presented at trial.” Holcomb v. Rodriguez, 2016-NMCA-075, 4 16, 387 P.3d
286 (internal quotation marks and citation omitted). “If instructions, considered as a
whole, fairly present the issues and the law applicable thereto, they are sufficient.
Denial of a requested instruction is not error where the instructions given adequately
cover the issue.” Sonntag v. Shaw, 2001-NMSC-O1L5, € 15, 130 N.M. 238, 22 P.3d

1188 Gnternal quotation marks and citation omitted). “A trial court’s refusal to submit

by promoting a misstatement of the law.” State v. Nieto, 2000-NMSC-031, 9.17, 129

NLM. 688, 12 P.3d 442.

actions in its emergency room, 1995-NMCA-005, {7 2-3, addresses apparent agency
and hospital vicarious lability. Houghland was an interlocutory appeal involving the
issue ©
emergency room. The doctor, Dr. Grant, was employed by a separate company that had
a contract with the hospital to staff its emergency room. /d. ¥ 4. Dr. Grant had no
contract with the hospital. /d. "J 4, 7. The plaintitf argued that the district court erred
in granting summary judgment in favor of the hospital on the issue of vicarious liability,

because a genuine issue of material fact existed as to whether Dr. Grant was an agent

or apparent agent of that hospital. /d. €j 6-7. The plaintiff contended that the doctrine

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of apparent authority applied to establish liability under respondeat superior. fd. #13.
This Court determined that “the district court erred in granting summary judgment in
[the hospital’s] favor.” fd. 7 25.
(243 A few years after Houghland was decided, UJI 13-1120B entitled “Hospital
Vicarious Liability; Non-Employees” was adopted. It reads:

A hospital is responsible for injuries proximately resulting from the

negligence of health care providers who are not hospital employees, such
as [emergency room physicians. if they are the hospital’ S apparent or

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ostensible agents], if the hospital, through its conduct, created the
appearance that it was the provider of these services to the public.

UJE 13-1120B (bracketed material out of committee commentary). The committee

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commentary relating to UJ] 13-1120B reads

A hospital | is liable for the negligence of independent contractors who
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if they are the hospital’s apparent or ostensible agents. See Houghiand|,

[995-NMCA-005, €4] 22-24] (discussing factors from which jury could
conclude that hospital created reasonable belief that er mergency room
physician was hospital’s employee or agent including the use of non-
employee doctors to further the hospital’s business of providing services
directly to the public and the choice of the doctor being controlled by the
hospital and not the patient.) Although Hough/and arose in the context of
a full service emergency room, the instruction could be applicable to other

services provided by the hospital.

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a8} Onappeal, Plaintiffs point is that the district court erred in failing to present the

theory of her case to the jury through a modified UJT 13-11208 that was offered by

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Plaintiff during jury deliberations, which would have changed “negligence” to
“conduct.”

26} Plaintiff asserts that her tendered instruction was necessary because the court
allowed the Hospital to argue to the jury that Dr. Damron’s failure to expressly “cc”
his radiology report to Dr, Voltura was the cause of Vaughan’s death. Plaintiff further
argues that UJI 13-1120B as it reads “is simply incorrect” because the “[negligence]

limitation” does not exist in th

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limitation in the instruction itself, she also rejects as incorrect the committee

commentary that, under Houghiand, “[a] hospital is liable for the negligence of

room physicians, if they are the hospital’s apparent or ostensible agents.” UJE 13-

1120B comm. cmt.

the statement in Zamora that “[ulnder Houghland, a malpractice claim arising from
care in a hospital emergency room implicates the hospital in the actions of any
employees or agenis——-known or unknown to the plaintiff—who took part in that care.”
Zamora, 2014-NMSC-035, 4 18. Plaintiff weaves into the analysis an “attribution”

argument through theories of apparent authority and agency that she contends made Dr.

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Damron’s conduct attributable to the Hospital. Plaintiff first draws on UJT 13-408
NMRA, which Plaintiff did not request be given to the jury, and which reads:
The defendant ... may, if there has been no actual employment, with
right to control, nonetheless be liable for the acts or omissions of [an
apparent employee. |
Plaintiff argues that this instruction “demonstrates that a principal’s responsibility for
apparent agency includes non-negligent conduct because it does not limit a principal’s
liability to the negligent conduct of its apparent agents.” Plaintiff then draws on the

Restatement (Third) Agency as supporting UTI 13-408. According to Plaintiff, “[wJhen

the principal is an organization that can act only through its agents, the result is that

that is attributable to it.’ ” (Quoting Restatement (Third) of Agency § 7.03 cmt. c

(2006).) “[A |n organization would breach its duty ofreasonable care through the action

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enforcement by managerial agents of directives and guidelines to be followed by other
agents.” Restatement, supra. Based on these authorities, Plaintiff argues that

[Dr.] Damron, while acting as an apparent agent of [the Hospital], might
not have been personally negligent in the manner in which he dictated his
report, yet his uninstructed conduct in not expressly noting for the
transcriptionist specifically who the report was to be delivered to was
nevertheless the immediate cause of Vaughan’s death—-conduct New
Mexico law attributes to [the Hospital].

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Further, Plaintiff argues that the attribution of an apparent agent’s conduct to the
principal is an integral part of New Mexico law as evidenced by holdings in cases
addressing apparent agency outside of the medical negligence arena. See, e.g., Tabet
v. Campbell, 1984-NMSC-059, € 9, 101 N.M. 334, 681 P.2d 1111 (addressing a tax
collection issue and holding that “[a] principal is bound by the actions taken under the
apparent authority of its agent if the agent is in a position which would lead a
reasonably prudent person to believe that the agent possessed such apparent

authority”); Fryar v. Emp 'rs Ins. of Wausau, 1980-NMSC-026, 4 6, 94. N.M. 77, 607

P.2d 615 (addressing a broker’s modification to an insurance contract); Ronald A.

138, Uf 1, 4, 78 N.M. 97, 428 P.2d 636 (addressing an action to foreclose a

materiaiman’s lien).

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29; Plaintiff concludes her apparent authority/attribution arguments asserting that the
district court “failfed] to perceive the difference between vicarious and direct liability”
and thereby “failed to comprehend that [Dr.] Damron’s conduct, whether or not rising
to the level of negligence, was nonetheless attributable to [the Hospital] for [the]
purpose of determining whether [the Hospital’s] direct negligence in failing to supervise
or control [Dr.] Damron’s dictating convention was a cause of Vaughan’s death.” And

Plaintiff states,

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Hospital asists that [Dr.] Damron’s acts were the cause of Vaughan’s

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syllogism: Because [the Hospital] conceded that [Dr.] Damron’s acts
were the cause of vauenan s death, and because [Dr.] Damron’s actions
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instruction was appropriate in this case. Plaintiff's main point is that an overall broader
apparent agency instruction, without limitation, was needed. Plaintiff relies on

Houghland and Zamora. Houghiand does not assist Plaintiff. Houghland was a
vicarious liability case that evaluated the appropriateness of summary judgment on the
issue of a hospital’s vicarious liability for an apparent agent-doctor’s alleged

negligence. 1995-NMCA-005, 4 2. In Houghland, in contrast to the case here, there

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was no stipulation by the parties that the doctor, whose conduct was at issue, was not
negligent. Because the issue in Houghland was apparent agency for a vicarious liability
claim based on the doctor’s negligence, it has no application here where the issue is
apparent agency liability for non-negligent conduct. See Fernandez v. Farmers Ins. Co,
of Ariz., 1993-NMSC-035, 9 15, [15 N.M. 622, 857 P.2d 22 (“[Clases are not
authority for propositions not considered.” (internal quotation marks and citation
omitted)).

31) We are also not persuaded by Plaintiffs interpretation of Zamora. Although

Zamora states that under Houghland “a malpractice claim arising from care in a

agents-—known or unknown to the plaintiff—who took part in [the] care[,}” we remind
Plaintiff that the issue being addressed in Zamora was whether there was sufficient

information in the complaint to notify the hospital
or agents was negligent[.]” 2014-NMSC-035, 98 1, 18. Thus, as in Houghland, the
Court in Zamora was considering the viability of a vicarious liability claim based on
the doctor's negligence, not a direct liability claim based on apparent agency principles

and based on the non-negligent conduct of the apparent agent. The passage in Zamora

cited by Plaintiff is impermissibly taken out of context. Zamora is not in any sense

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about the issue Plaintiff raises. The passage does not, as Plaintiff exaggerates, state
clearly or plainly that “negligence” is to be replaced by “conduct.”

32; We also reject Plaintiffs attempt to expand a hospital’s medical negligence
liabiluy through tying in UJT 13-408, the Restatement (Third) of Agency Section 7.03
principal’s responsibility for an apparent agent’s conduct, and the case law on apparent
agency in non-medical negligence contexts. Those provisions are nowhere in New
Mexico law given or intended to be given transformative powers to create new law and

liability in the body of medical malpractice, much less as to direct hospital liability for

the non-negligent acts of a non-employee. This case was not tried on Plaintiff's

time, cites and argues for support of her late-developed theory, were never brought to

the attention of the district court either by way of offered instructions or argument

“[tfhere has never been a case which says [that a hospital is] responsible for
compensatory damages on account of non-negligent acts of the physicians who are not
that hospital’s] employees[,]” and any expansion of law and liability as desired by
Plaintiffmust come, ifat all, from a public policy-based decision of our Supreme Court.

{33} Even were we to assume that a direct liability medical negligence claim against

a hospital based on the conduct of an apparent agent might be viable under some

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circumstances in New Mexico law, we nevertheless agree with the district court’s
decision not to give the instruction in this case because such an instruction was not
supported by the case presented. The case presented to the jury couched liability in
terms of system failures, not based on Dr. Damron’s alleged failures. Plaintiff argued
at trial that the Hospital was at fault for failing to deliver the report and argued “[il}t
wasn’t Dr. Damron’s job to take that report and walk it down the hall.” Plaintiff's case
was tried based on her strategy of admitting that Dr. Damron was not negligent. Given
this approach by Plaintiff at trial, the district court did not err in refusing to give the

instruction. State ex rel. State Highway Dep't v. Strosnider, 1987-NMCA-136, 4 14,

106 NM. 608, 747 P.2d 254 (“A party is entitled to have the jury instructed upon all
correct legal theories of his case when the instruction comes within the ambit of the

pleadings and there is evidence to support it. A proffered instruction, however, must

omitted)).

34} Plaintiff nevertheless argues the record indicates that, as a result of the refusal
to give the instruction, the jury was confused about causation and erroneously
concluded that the conduct of Dr. Damron was the sole cause of Vaughan’s death.
Plaintifflooks to the lack ofan instruction on apparent agency in Instruction Nos. 2, 12,

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and 19, coupled with alleged confusion expressed in the jury question. Plaintiff's

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causation position hangs on her assertion that the “court allowed [the Hospital] to
assert that [Dr.] Damron was the sole ‘cause’ of Vaughan’s injuries and death]. And
Plaintiff complains that the court “then forbade the jury from finding that the [H]Jospital
was responsible for [Dr.] Damron’s immediate actions in doing sof?” Thus, according
to Plaintiff, forbidding the jury from considering Dr. Damron as the Hospital’s apparent

agent compelled the jury to reach a “no causation” verdict, and as the “last word” on

decision and “functionally amounted to the grant of a directed verdict for [the

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a8} Plaintiff essentially hangs her hat on what she believes was “[t]he powerfully

persuasive impact of [the] supplementary instruction” given by the district court in

response to the fury’s question that led the jury to an allegedly erroneous conclusion.

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A supplemental charge must be viewed in a special light. ht will enjoy
special prominence in the minds of the jurors for several reasons. First,
will have been the most recent, or among the most recent, bit of
instruction they will have heard, and will thus be freshest in their minds.
Moreover, it will have been isolated from the other instructions they have
heard, thus bringing it into the foreground of their thoughts. Because
supplernental instructions are generally brief and are given during a break
in the jury’s deliberations, they will be received by the jurors with
heightened alertness rather than with the normal attentiveness which may

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well Nag from time to ime during a lengthy initial charge. And most
mnportantly, the supplemental charge will normally be accorded special
emphasis by the jury because it will generally have been given in response
to a question from the jury.
36) We are not persuaded. Neither the jury’s question, nor the refusal to give
Plaintiff's tendered instruction, aor the court's instruction given in answer to the
question, can reasonably be considered a persuasive directive to the jury to find that the

Hospital’s negligence did not cause Vaughan’s death. As stated throughout this

opinion, the theory of Plaintiff's case was based on the Hospital’s direct negligence

opportunity to argue to the jury that it was the Hospital’s systemic failure that affected

Dr. Damron’s actions or failures to act with respect to his report. There exists

that Vaughan’s death was fully caused by conduct other than the Hospital’s

administrative failure to have the protocols Plaintiff argued were necessary.

, based on their

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clauns, defenses, and trial strategies. Again, Plaintiffhad every opportunity to argue the
Hospital’s negligent failure to establish protocols for Dr. Damron, as well as every

opportunity to attempt to build a case or argument that the Hospital’s negligence was

a cause of Vaughan’s death. We will not attempt to second-guess the jury’s view ofthe

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{vevidence as to causation and will not attempt to speculate on the effect on the jury of

the court’s supplemental instruction.

3} CONCLUSION

41138} Weaffirm the jury’s verdict of lack of causation and the district court’s judgment
Sientered on the verdict in favor of the Hospital.

6139) ITIS SO ORDERED.

SI WE CONCUR:

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HENRY M. BOHNHOFPE, Judge

December 20, 2017- Wanda Collins v. St. Vincent Hospital, Inc., No. A-1-CA-35247

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