September 17, 2014 – Deborah Brown, Individually and on behalf of her minor children, H.B. and B.S. v. Robert Kellogg, M.D., Robert Olsen, M.D., and Presbyterian Healthcare Services d/b/a Kaseman Presbyterian Hospital, No. 32,988

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: September 17, 2014
NO. 32,988
DEBORAH BROWN, Individually and
on Behalf of Her Minor Children, H.B
and B.S.,
Plaintiff-Appellant,
v.
ROBERT KELLOGG, M.D.,
ROBERT OLSEN, M.D., and
PRESBYTERIAN HEALTHCARE
SERVICES d/b/a KASEMAN
PRESBYTERIAN HOSPITAL,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Valerie A. Huling, District Judge
Law Offices of James P. Lyle, P.C.
James P. Lyle
Albuquerque, NM
for Appellant

Rodey, Dickason, Sloan, Akin & Robb, P.A.
Jeffrey M. Croasdell
Shannon M. Sherrell
Edward Ricco
Albuquerque, NM
for Appellees

OPINION
GARCIA, Judge.
{1} 	Plaintiff, Deborah Brown, appeals from the district court’s grant of summary
judgment in favor of Defendants, Robert Kellogg, M.D., Robert Olsen, M.D., and
Presbyterian Healthcare Services d/b/a Kaseman Presbyterian Hospital. Plaintiff
contends the district court erred in failing to recognize that Defendants had a legal
duty to order that Plaintiff’s husband, Jeremy Brown, undergo a fitness for duty
evaluation before releasing him to return to work as a police officer. We agree with
the district court that Defendants did not have a legal duty to order a fitness for duty
evaluation. We affirm.
BACKGROUND
{2} 	Jeremy Brown was a detective with the Pueblo of Laguna Police Department.
On May 17, 2007, Brown presented himself to the emergency room with thoughts of
suicide stemming from the breakup of his marriage. Brown was found to exhibit “[n]o
current . . . psychosis” and was discharged after a few hours. Brown returned to the
emergency room on May 21, 2007, and was admitted to the hospital “in order to
evaluate [his] dangerousness in view of expressed suicidal ideation and to evaluate for
depression.”

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{3} 	On May 23, 2007, Brown was discharged from the hospital with a diagnosis of
depression and adjustment reaction with anxiety and depression. The follow-up plan
provided for individual therapy and for Brown to contact a psychologist at work.
Brown received medical authorization from his doctors to return to work without
restriction on May 26, 2007. A fitness for duty examination was not performed on
Brown before he received authorization to return to work. On June 8, 2007, Brown
used his service weapon to shoot Plaintiff and kill himself. Plaintiff suffered
permanent brain injuries as a result of the shooting and lost custody of her minor
children.
{4} 	Plaintiff, individually and on behalf of her minor children, filed a complaint
against Defendants on May 14, 2010, asserting a claim for medical malpractice.
Defendants filed a motion to dismiss that was denied by the district court. Defendants
next filed a motion for summary judgment, arguing that they did not owe a duty to
Plaintiff as a matter of law. Following a hearing, the district court granted Defendants’
motion and entered summary judgment in favor of Defendants. Plaintiff appeals from
this order granting summary judgment.

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DISCUSSION
{5} 	We review the district court’s grant of summary judgment de novo. See
Farmington Police Officers Ass’n v. City of Farmington, 2006-NMCA-077, ¶ 13, 139
N.M. 750, 137 P.3d 1204. Summary judgment should be granted “if the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” Rule 1-056(C) NMRA.
{6} 	“To prove medical malpractice, a plaintiff must show that (1) the defendant
owed the plaintiff a duty recognized by law; (2) the defendant breached the duty by
departing from the proper standard of medical practice recognized in the community;
and (3) the acts or omissions complained of proximately caused the plaintiff’s
injuries.” Diaz v. Feil, 1994-NMCA-108, ¶ 5, 118 N.M. 385, 881 P.2d 745. The
district court concluded that Defendants did not owe a duty to Plaintiff as a matter of
law. Plaintiff contends the district court erred in failing to recognize that Defendants
had a duty to order a fitness for duty evaluation for Brown before authorizing him to
return to work as a police officer with access to a service weapon.
{7} 	In Wilschinsky v. Medina, our Supreme Court explained that “[t]he finding of
a duty involves the court in a careful balancing.” 1989-NMSC-047, ¶ 7, 108 N.M.

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511, 775 P.2d 713. In determining whether to recognize a duty, the court “must take
into account the likelihood of injury, the magnitude of the burden of guarding against
it and the consequences of placing that burden upon the defendant.” Id. (internal
quotation marks and citation omitted). Our Supreme Court has recently clarified that
“foreseeability is not a factor for courts to consider when determining the existence
of a duty . . . [because it] is a fact-intensive inquiry relevant only to breach of duty and
legal 	cause 	considerations.” 	Rodriguez 	v. 	Del 	Sol 	Shopping 	Ctr. 	Assoc.,
2014-NMSC-014, ¶ 1, 326 P.3d 465. “Instead, courts must articulate specific policy
reasons, unrelated to foreseeability considerations, when deciding whether a defendant
does or does not have a duty or that an existing duty should be limited.” Id. ¶ 25. We
thus undertake an analysis of the policy considerations and interests involved without
regard to whether the injury sustained by Plaintiff was foreseeable. Unfortunately, the
district court addressed the issue of whether Defendants owed Plaintiff a duty to
require Brown to undergo a fitness for duty evaluation prior to the issuance of the
Supreme Court’s ruling in Rodriguez. As a result, neither party developed a significant
record addressing the policy-based considerations to be weighed by the district court.
This Court’s analysis of Defendant’s duty to Plaintiff is reflective of the limited record
that was developed in the district court.

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{8} 	Our courts have recognized three sources of duty for medical professionals to
third parties. See Wilschinsky, 1989-NMSC-047, ¶ 8. In the first instance, a doctor or
institution can potentially be liable for injury caused by patients with known
“dangerous propensities” if the doctor exerts control over the patient. See id.; see e.g.,
Kelly v. Bd. of Trustees of Hillcrest Gen. Hosp. Inc., 1974-NMCA-139, ¶¶ 5-7, 87
N.M. 112, 529 P.3d 1233 (holding summary judgment was improperly entered in
favor of the defendant because the defendant failed to make a prima facie showing that
it did not have actual knowledge of patient’s “dangerous propensities”); see also Stake
v. Woman’s Div. of Christian Serv., 1963-NMSC-221, ¶¶ 4-5, 73 N.M. 303, 387 P.2d
871 (recognizing the potential duty to warn of patient’s “dangerous propensities”
when the defendant has actual knowledge of such propensities). In the second
instance, a doctor who is aware of specific threats to the life of an individual can
potentially be liable for failing to disclose those threats to the authorities or to the
person threatened. See Wilschinsky, 1989-NMSC-047, ¶ 9 (discussing Tarasoff v.
Regents of Univ. of Cal., 551 P.2d 334 (Cal. 1976)). In the third instance, a doctor
who administers powerful drugs in his office that result in impairment to a patient can
potentially be liable to those injured by the impaired patient. Wilschinsky, 1989-
NMSC-047, ¶¶ 11, 28.

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{9} 	Plaintiff does not suggest that the duty it seeks to impose on Defendants falls
within any of the three categories identified in Wilschinsky. Instead, Plaintiff argues
that 	under 	Wilschinsky, 	a 	duty 	exists 	based 	upon 	a 	factual 	analysis 	of 	1)
foreseeability—a likelihood of injury to the plaintiff, and 2) the burden placed upon
a defendant—the magnitude of the burden on a defendant and the consequences of
doing so. See id ¶ 9. Plaintiff bases her argument on a consideration of “the uniquely
dangerous perspective posed by law enforcement officers who are trained in all
aspects of lethal force, combined with the well known need among mental [healthcare]
professionals 	to 	order 	a 	fitness 	for 	duty 	evaluation 	under 	these 	[factual]
circumstances.” Effectively, Plaintiff argues that this Court should impose a new,
more focused duty to order a fitness for duty evaluation on independent healthcare
professionals who treat individuals with access to firearms as part of their workplace
environment. Plaintiff cites to neither New Mexico nor outside authority that would
impose such a duty on independent healthcare professionals. The only fitness for duty
examination requirement identified and recognized under existing law would apply

1 Plaintiff cites to a portion of the Office of Personnel Management regulations
setting forth the circumstances under which a federal agency has discretion to order
a psychiatric examination. See 5 C.F.R. § 339.301(e)(1) (2014). However these
regulations involve the federal agency as an employer, do not address the specific
situation involving independent healthcare professionals presented in the present case,
and do not place a duty on any healthcare professional to order or compel a fitness for
duty evaluation upon a patient.
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to certain federal law enforcement agencies.1 Even under the federal regulation
referenced by Plaintiff, it is the discretionary function of the federal agency, as
employer, to consider imposing a psychiatric evaluation on a federal employee. Id.
Plaintiff does not even assert that such a duty is imposed upon Brown’s employer in
this case. In addition, Plaintiff does not dispute that a fitness for duty evaluation is not
imposed on public agencies in New Mexico and is not required by independent
healthcare professionals pursuant to existing law. Finally, Plaintiff’s fact-based
analysis of foreseeability is inconsistent with the policy-based analysis required under
Rodriguez. 2014-NMSC-014, ¶¶ 1, 25.
{10} 	Based upon the record presented in this case, there appear to be good policy
reasons for rejecting the imposition of a fitness for duty legal obligation on
independent healthcare professionals who treat individuals with access to firearms as
part of their workplace environment. It appears from the testimony of Plaintiff’s own
expert, Peter DiVasto, a fitness for duty evaluation is a complex evaluation that “takes

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about two weeks to complete.” DiVasto also testified that he has never been in a
situation where a hospital has ordered a fitness for duty evaluation. It is unclear who
would conduct the evaluation, who would pay for the evaluation, and how the
outcome of the evaluation would affect a patient’s medical care and workplace
limitations. It is also unclear what negative effects a fitness for duty evaluation
requirement on independent healthcare professionals would have on law enforcement
personnel and their desire to seek medical assistance.
{11} 	We do not believe it is appropriate for this Court to impose an entirely new and
novel legal duty upon healthcare professionals without an extensive development of
the policy considerations in the record for review. A balancing of the various policy
interests presented in this case does not clearly support the imposition of such a new
duty. These are the types of policy considerations that should be publicly addressed
as part of the legislative process if a fitness for duty evaluation is to be imposed as a
new duty upon healthcare professionals. We find the following Supreme Court
language to be particularly instructive:
Policy determines duty. With deference always to constitutional
principles, it is the particular domain of the [L]egislature, as the voice of
the people, to make public policy. Elected executive officials and
executive agencies also make policy, to a lesser extent, as authorized by
the constitution or the [L]egislature. The judiciary, however, is not as

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directly and politically responsible to the people as are the legislative and
executive branches of government.
Torres v. State, 1995-NMSC-025, ¶ 10, 119 N.M. 609, 894 P.2d 386.
{12} 	DiVasto testified at his deposition that he believed Defendants’ responsibility
was to provide Brown with an outpatient appointment upon discharge, and Defendants
satisfied that responsibility. Brown’s follow-up plan also required him to contact a
psychologist at work. The Legislature and our courts have not imposed any additional
duty upon healthcare professionals regarding their patients with jobs that involve
carrying firearms as part of their workplace functions. In addition, this Court is not
aware of any other jurisdiction that has recognized a duty on the part of a healthcare
professional to order a fitness for duty evaluation under similar circumstances. See 5
C.F.R. § 339.301(e)(1). The duty imposed upon federal law enforcement agencies
would be evaluated under a different and distinct set of policy considerations focusing
upon employment and workplace considerations. The relationship between a
healthcare professional and a patient is uniquely different, necessitating policy
considerations that focus on the medical circumstances present. We agree with the
district court that Defendants did not have a legal duty to order Brown to undergo a
fitness for duty evaluation before releasing him from the hospital and later authorizing

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him to return to the workplace as a police officer pursuant to the specific requirements
set forth in his medical follow-up plan.
CONCLUSION
{13} 	For the foregoing reasons, we affirm the district court’s grant of summary
judgment in favor of Defendants.
{14} 	IT IS SO ORDERED.
__________________________________
TIMOTHY L. GARCIA, Judge
WE CONCUR:
___________________________________
RODERICK T. KENNEDY, Chief Judge
___________________________________
JAMES J. WECHSLER, Judge