December 22, 2015 – Ruth E. Dills v. New Mexico Hearth Institute, P.A., No. 33,725

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:

Filing Date: _December 23, 2015

NO. 33,725
RUTHE. DILLS,
Plaintiff-A ppellant,
V.
NEW MEXICO HEART INSIITUTE, P.A.,
Defendant-A ppellee.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Sarah M. Singleton, District Judge

The Davis Law Firm, LLC
Ben Davis

Albuquerque, NM

Davis, Gilchrist & Lee, P.C.
Bryan J. Davis
Albuquerque, NM

for Appellant

Keleher & McLeod, P.A.
Thomas C. Bird
Kathleen M. Wilson
Mary Behm
Cassandra R. Malone
Albuquerque, NM
for Appellee

OPINION
WECHSLER, Judge.
{1} 	The opinion filed in this case on November 23, 2015 is hereby withdrawn and
the following substituted therefor. Plaintiff’s motion for rehearing is denied.
{2} 	In this medical malpractice case, we consider the propriety of the district court’s
jury instruction concerning the obligation of a doctor to inform a patient of treatment
alternatives. We hold that, under the facts of this case, the district court did not err by
instructing the jury that a “doctor has no duty to discuss alternatives to and risks of
treatment which the doctor can reasonably expect to be known to the patient.”
Accordingly, we affirm.
BACKGROUND
{3} 	Plaintiff Ruth E. Dills had a history of tachybrady syndrome for which she
received a pacemaker, with implanted leads, in 1996. She received a new pacemaker,
manufactured by Medtronics, in 2006. Plaintiff went to the emergency department of
the Heart Hospital in Albuquerque, New Mexico on February 10, 2009 with a
fractured lead placement. The following day, she met with Dr. Kathleen Blake at the
New Mexico Heart Institute who recommended that Plaintiff have her pacemaker
leads extracted and the generator replaced. Dr. Blake explained to Plaintiff the risks
and benefits of the lead extraction procedure. On February 20, 2009, Plaintiff met with

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Dr. Luis Constantin who was to perform the procedure that day with Dr. Blake’s
assistance. For reasons unrelated to this case, the procedure was rescheduled and
performed on March 4, 2009. Plaintiff was discharged on March 6, 2009. She returned
to the Heart Hospital emergency department three days later and was diagnosed with
tricuspid valve regurgitation, atrial fibrillation, and right-sided congestive heart
failure. She was admitted to the hospital in May 2009 and various procedures were
performed, including open heart surgery to repair the torn tricuspid valve and other
repairs to correct heart defects caused by her underlying heart disease process.
{4} 	Plaintiff brought this action against Defendant, which operates the Heart
Hospital, alleging the medical malpractice of Defendant’s doctors and agents, Dr.
Blake and Dr. Constantin. Plaintiff originally named Dr. Blake and Dr. Constantin as
defendants, but, for reasons not related to this appeal, the claims against Dr.
Constantin were dismissed, and Dr. Blake was granted summary judgment with
respect to the claims against her.
{5} 	The gravamen of Plaintiff’s action, as relevant to this appeal, was that she was
not informed of alternative procedures to the lead extraction procedure and that the
lead extraction procedure was not indicated under the circumstances. In this regard,
Plaintiff maintained, among other things, that when she went to the Heart Hospital
emergency 	department 	on 	February 	10, 	2009, 	checking 	by 	the 	Medtronics

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representative only indicated that one of the two pacemaker leads was malfunctioning
and leaking current, not that the leads needed to be changed, and that checking the
pacemaker again on the following day also did not confirm the need for lead
replacement. Plaintiff further maintained that Dr. Blake did not inform Plaintiff of
alternative courses of action, including “reprogramming the pacemaker to unipolar
mode and capping and abandoning the existing leads and implanting new ones” and
that Dr. Constantin also “did not provide Plaintiff with information regarding
alternatives to [pacemaker] lead extraction.” Plaintiff contended, among other things,
that Dr. Constantin damaged a leaflet on her tricuspid valve during the lead extraction
procedure and that she developed severe pain from the pacemaker pocket Dr.
Constantin made to implant an antibiotic pouch.
{6} 	At trial, two issues were presented to the jury: whether Dr. Constantin failed to
offer and inform Plaintiff of alternatives to pacemaker lead extraction and whether Dr.
Constantin performed a medical procedure, the lead extraction, that was not
reasonably necessary for Plaintiff’s condition. The jury returned a verdict for
Defendant. Plaintiff appealed from the district court’s judgment. On appeal, this Court
decided Plaintiff’s appeal in part by memorandum opinion on the summary calendar
and assigned to the general calendar the single issue of whether the district court
correctly instructed the jury concerning the law of informed consent.

1In his reply brief, Plaintiff did not address Dr. Constantin’s deposition
testimony discussed by Defendant in its answer brief or Dr. Constantin’s testimony
as part of Defendant’s case at trial. See Delta Automatic Sys. Inc. v. Bingham, 1999-
NMCA-029, ¶ 31, 126 N.M. 717, 974 P.2d 1174 (treating the failure of reply brief to
respond to an issue specifically addressed in answer brief as a concession); Anderson
v. Jenkins Constr. Co., 1971-NMCA-119, ¶ 3, 83 N.M. 47, 487 P.2d 1352 (accepting
statements made in answer brief as true when they were not controverted or disputed
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FACTUAL BASIS UNDERLYING THE JURY INSTRUCTION
{7} 	While Plaintiff contended that neither Dr. Blake nor Dr. Constantin informed
her of treatment alternatives to lead replacement, Defendant offered the testimony of
the doctors at trial in support of its position that Plaintiff had been informed of
treatment alternatives. Because Plaintiff did not originally designate trial transcripts
for review on appeal, Defendant provided with its answer brief a transcript of the
testimony of Dr. Blake in which she discussed her receipt of Plaintiff’s informed
consent. See Rule 12-211(E) NMRA (“Each appellant shall be responsible for the
timely preparation and filing of the transcript of proceedings.”). Defendant also
referred to portions of Dr. Constantin’s deposition that Plaintiff discussed in her brief
in chief on appeal. By way of motion, Plaintiff was permitted to supplement the record
on appeal at the time of her reply brief with transcripts of Plaintiff’s trial testimony
and the trial testimony of Dr. Constantin that was presented as part of Plaintiff’s case.
Plaintiff did not, however, supplement the record with Dr. Constantin’s trial testimony
when he was called as a witness during Defendant’s case. 1

in reply brief).
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{8} 	Dr. Blake testified that she did not have an independent recollection of her
conversation about informed consent with Plaintiff that had occurred seven years
earlier. She testified, however, that she had obtained informed consent for a medical
procedure from patients approximately 8,000 to 10,000 times and that she followed
the same typical format to do so. She testified that she would routinely “talk about
what the problem is and what the alternatives are for treating that problem and what
the risks are for those alternatives, [and] what the benefits are.” She would have given
Plaintiff three treatment options: (1) not to have taken any action and leaving the
pacemaker programmed as it was, (2) surgically replacing the pacemaker ventricular
lead, and (3) surgically extracting both leads and replacing them with new ones.
{9} 	Dr. Blake’s summary in her notes reflects that she discussed with Plaintiff “the
need for lead extraction” and advised “that both leads be removed because we may
otherwise be back in a short time from now to deal with an old worn-out lead.” The
notes further state, “all questions answered, good understanding confirmed, and she
agrees to proceed next week with me and Dr. Constantin.” Dr. Blake also testified that
when she concluded her discussion with Plaintiff, she believed that she had “a full and
thorough informed consent discussion with her.” She did not expect that Dr.
Constantin “would then redo or do again another full informed consent discussion”

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because Plaintiff was Dr. Blake’s patient, with whom she had established a long-term
relationship, and Dr. Blake was making the recommendation. In his deposition, Dr.
Constantin testified that when he offered to discuss the procedure with Plaintiff, at
which time he also intended to discuss alternatives, Plaintiff “indicated that she had
already had a discussion with Dr. Blake and that she was very comfortable . . . with
the fact that I was doing the procedure on the recommendation of Dr. Blake.”
PROPRIETY OF THE JURY INSTRUCTION
{10} 	Our Supreme Court in Gerety v. Demers, 1978-NMSC-097, 92 N.M. 396, 589
P.2d 180, discussed in detail the law on informed consent in medical malpractice
lawsuits. The Court explained that when a cause of action is in negligence—as
opposed to battery—the physician has the obligation to obtain the patient’s informed
consent and also to communicate to a patient information concerning “the inherent
and potential hazards of the proposed treatment, the alternatives to that treatment, if
any, and the results likely if the patient remains untreated.” Id. ¶ 65 (quoting
Canterbury v. Spence, 464 F.2d 772, 787-88 (D.C. Cir. 1972)). Our jury instructions
concerning informed consent and duty to inform are consistent with Gerety. Relevant
here, the duty to inform instruction, UJI 13-1104B NMRA, states:
In treating [his] [her] patient, a doctor is under the duty to
communicate to the patient [, or to the patient’s representative when the
patient is a minor or is incapacitated,] that information which a

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reasonably prudent patient under similar circumstances would need to
know about:
1. 	the patient’s condition; [and]
2. 	the alternatives for treatment; [and]
3. 	the inherent and potential hazards of the proposed
treatment; [and]
4. 	the likely result if the condition remains untreated.
The duty to inform does not require a doctor to discuss with [his]
[her] patient every risk of proposed treatment no matter how small or
remote. [A doctor has no duty to discuss risks which the doctor can
reasonably expect to be obvious or known to the patient.]
UJI 13-1104B (alterations in original).
{11} 	The Use Note to UJI 13-1104B further instructs that the bracketed sentence in
the second paragraph “should not be used unless the jury could find that the
information which the patient contends was not disclosed is information which the
patient already knew or is a matter of common understanding.”
{12} 	The district court in this case modified the above instruction to read as follows:
In treating his patient, Dr. Constantin[] is under the duty to
communicate to [Plaintiff] that information which a reasonably prudent
patient under similar circumstances would need to know about:
1. 	the alternatives for treatment; and
2. 	the likely result if the lead condition remained untreated.

2Rule 1-051(D) NMRA requires the use of an applicable uniform jury
instruction “unless under the facts or circumstances of the particular case the
published UJI Civil is erroneous or otherwise improper, and the trial court so finds
and states of record its reasons.” Plaintiff does not argue that the district court did not
follow Rule 1-051(D). Because we do not have a complete trial transcript on appeal,
we cannot determine the manner in which the district court addressed Rule 1-051(D)
or even whether it considered it necessary to do so. It is not an issue in this appeal.
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A doctor has no duty to discuss alternatives to and risks of
treatment which the doctor can reasonably expect to be known to the
patient.
On appeal, Plaintiff contends that the district court erred as a matter of law in giving
the modified instruction because the bracketed sentence only applies to the “inherent
and potential hazards of the proposed treatment” as stated in UJI 13-1104B(3) and not
to the “alternatives for treatment” set forth in UJI 13-1104B(2).
{13} 	We review de novo the district court’s instruction to the jury. See Benavidez v.
City of Gallup, 2007-NMSC-026, ¶ 19, 141 N.M. 808, 161 P.3d 853 (“We review jury
instructions de novo to determine whether they correctly state the law and are
supported by the evidence introduced at trial.” (internal quotation marks and citation
omitted)).2
{14} 	We do not read Gerety or UJI 13-1104B in the limited manner Plaintiff urges.
To the contrary, the language of Gerety, adopted from Canterbury, indicates a
flexibility that depends on a rule of reason and the particular circumstances.

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The scope of the standard is not subjective as to either the
physician or the patient; it remains objective with due regard for the
patient’s 	informational 	needs 	and 	with 	suitable 	leeway 	for 	the
physician’s situation.
. . . .
There is no bright line separating the significant from the
insignificant; the answer in any case must abide a rule of reason. Some
dangers—infection, for example—are inherent in any operation; there is
no obligation to communicate those of which persons of average
sophistication are aware. Even more clearly, the physician bears no
responsibility 	for 	discussion 	of 	hazards 	the 	patient 	has 	already
discovered, or those having no apparent materiality to patients’ decision
on therapy. . . . Whenever non-disclosure of particular risk information
is open to debate by reasonable-minded men, the issue is for the finder
of the facts.
Gerety, 1978-NMSC-097, ¶ 65 (internal quotation marks and citation omitted).
{15} 	Under Defendant’s theory of this case, Plaintiff’s approach would require, as
a matter of law, that a doctor provide information to a patient that the patient not only
already had been provided but that the patient indicated that she did not wish to
receive. The doctor would have this burden, according to Plaintiff, because the
information related to alternative treatment rather than the risks of a procedure.
Plaintiff finds rationale in such a distinction because alternatives to treatment are not
likely known to the general public. However, the knowledge of the general public is
not the issue; it is whether the doctor can reasonably expect that the information is

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either obvious to or known by the patient. See UJI 13-1104B. There is no clear
distinction between alternative treatment and treatment risks in this regard.
{16} 	A party is entitled to a jury instruction on the party’s theory of the case if it is
supported by the evidence. Benavidez, 2007-NMSC-026, ¶ 19. From the limited
record of the trial that we have before us in this appeal, it appears that Defendant
presented evidence that Dr. Blake provided informed consent to Plaintiff that included
alternatives to treatment. Under Plaintiff’s position, the jury would not address
whether 	Dr. 	Constantin, 	on 	behalf 	of 	Defendant, 	acted 	reasonably 	in 	his
communication with Plaintiff. This reading of exceptions to disclosure discussed in
Gerety is overly restrictive. Rather, we read Gerety as embracing an approach based
on reasonableness and the particular circumstances of the doctor-patient relationship.
The district court did not err by instructing the jury in this manner.
CONCLUSION
{17} 	The district court did not err in its jury instruction concerning Dr. Constantin’s
duty to discuss alternatives to treatment with Plaintiff. We affirm the district court’s
judgment on the jury verdict in favor of Defendant.
{18} 	IT IS SO ORDERED.
________________________________
JAMES J. WECHSLER, Judge

WE CONCUR:

LINDA M. VANZI, Judge

M. MONICA ZAMORA, Judge

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