July 03, 2013 – Emre Yedidag, M.D. v. Roswell clinic Corp., and Roswell Hospital Corp., No. 31,653

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: July 3, 2013

NO. 31,653

EMRE YEDIDAG, MLD.,
Plaintiff-A ppellee,

V.

ROSWELL CLINIC CORP., and
ROSWELL HOSPITAL CORP.,

Defendants-A ppellants.

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
Freddie J. Romero, District Judge

Tucker Law Firm, P.C.
Steven L. Tucker
Santa Fe, NM

Law Office of Stephen Durkovich
Stephen G. Durkovich
Santa Fe, NM

Bauman, Dow & Leon
Mark C. Dow
Simone M. Seiler

Albuquerque, NM

for Appellee

Kemp Smith LLP
Ken Slavin

Clara B. Bums
Shelly W. Rivas
El Paso, TX

for Appellants

OPINION
VANZI, Judge.
{1} 	Plaintiff-Appellee Dr. Emre Yedidag was terminated from his position as a
general surgeon by his employer Defendants-Appellants Roswell Clinic Corporation
and Roswell Hospital Corporation d/b/a Eastern New Mexico Medical Center
(collectively, Eastern). 	Dr. Yedidag’s termination occurred within days after he
participated in an internal hospital surgical peer review meeting that included review
of surgical care provided by one of Dr. Yedidag’s colleagues at Eastern. Following
the peer review meeting, two Eastern employees who were present at the meeting
disclosed to Eastern administrators their belief that Dr. Yedidag had engaged in
unprofessional and aggressive behavior at the peer review meeting. Dr. Yedidag filed
suit against Eastern following his termination, alleging that he was fired as a result of
his participation in the peer review meeting. 	The jury determined that Eastern
violated the New Mexico Review Organization Immunity Act (the ROIA), NMSA
1978, §§ 41-9-1 to -7 (1979, as amended through 2011), and breached an implied
promise in Dr. Yedidag’s employment agreement that he would not face adverse
employment consequences as a result of his participation in the hospital’s peer review
process.

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{2} 	Eastern’s primary argument on appeal is that the district court erred in allowing
Dr. Yedidag to bring a private cause of action under the ROIA. Eastern also raises
arguments regarding the propriety of the implied promise contractual cause of action,
the jury’s award of punitive damages, the jury polling process, the admission of
medical evidence at trial, and the award of attorney fees. 	As a matter of first
impression, we hold that a member of a peer review organization can bring a private
cause of action for an alleged violation of the ROIA’s confidentiality provision,
Section 41-9-5. We also conclude that the district court did not err with respect to
Eastern’s remaining arguments. Accordingly, we affirm the jury verdict.
BACKGROUND
A. 	The ROIA
{3} 	Because this appeal raises issues regarding the application of the ROIA in a
civil action, we turn first to provide some background on the ROIA. Enacted by the
Legislature in 1979, the ROIA “establishe[s] a comprehensive scheme of regulation
of hospital peer review proceedings, including the scope of immunity available to
members of a review organization” and the confidentiality of the records of review
organizations. Leyba v. Renger, 114 N.M. 686, 687, 845 P.2d 780, 781 (1992); see
also Sw. Cmty. Health Servs. v. Smith, 107 N.M. 196, 198, 755 P.2d 40, 42 (1988)
(recognizing that the “ROIA establishes a medical peer review process to promote the

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improvement of health care in New Mexico”). 	Under the ROIA, hospital review
organizations are limited in membership to “health care providers and staff, except
where otherwise provided for by state or federal law,” and are tasked with gathering
and reviewing information relating to the care and treatment of patients for eight
enumerated purposes. See § 41-9-2(E).
{4} 	The ROIA grants qualified immunity to members of review organizations and
to individuals who provide information to review organizations. 	See § 41-9-4
(providing that members of review organizations shall not be liable “for damages or
other relief in any action brought by a person or persons whose activities have been
or are being scrutinized or reviewed by a review organization . . . unless the
performance of such duty, function or activity was done with malice toward the
person affected thereby”); see also § 41-9-3 (stating that “[n]o person providing
information to a review organization shall be subject to any action for damages or
other relief . . . unless such information is false and the person providing such
information knew or had reason to believe such information was false”); Leyba, 114
N.M. at 687-88, 845 P.2d at 781-82 (holding that the ROIA establishes qualified
immunity).
{5} 	Of particular relevance to this case is Section 41-9-5, which deals with the
confidentiality of review organization meetings. Section 41-9-5(A) provides that

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all data and information acquired by a review organization in the
exercise of its duties and functions shall be held in confidence and shall
not be disclosed to anyone except to the extent necessary to carry out one
or more of the purposes of the review organization or in a judicial appeal
from the action of the review organization. 	No person described in
Section 41-9-4 [of the ROIA] shall disclose what transpired at a meeting
of a review organization except to the extent necessary to carry out one
or more of the purposes of the review organization, in a judicial appeal
from the action of the review organization or when subpoenaed by the
New Mexico medical board.
(Emphasis added.) 	As we discuss in later sections of this Opinion, this appeal
involves claims by Dr. Yedidag that Eastern employees allegedly violated Section 41-
9-5 by disclosing what transpired at a peer review meeting and that, as a result of
Eastern’s alleged violation of the ROIA, Dr. Yedidag faced adverse employment
consequences and suffered damages.
B. 	Case History
{6} 	Dr. Yedidag began working as a general surgeon for Eastern on December 5,
2005, and was terminated from his position nearly eleven months later on November
17, 2006. Two days prior to his termination, Dr. Yedidag attended and participated
in a meeting of the Surgical Performance Improvement Committee at Eastern (the peer
review meeting). According to documents in the record before this Court on appeal,
the meeting was attended by five physicians, including Dr. Yedidag and the colleague
whose surgical care and treatment of a patient would eventually be discussed at the
peer review meeting. Also present at the meeting were four members of Eastern’s

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administration and management staff, including Sara Williamson and Barbara Harned.
During the peer review meeting, Dr. Yedidag participated in the review of his
colleague’s surgical care and treatment of a patient. Since the physician whose case
was under review was also present at the peer review meeting, Dr. Yedidag questioned
the physician regarding the surgical treatment given and the events that led to the
patient’s death. At the conclusion of the meeting, the peer review members requested
that the case be sent for external review by a general surgeon.
{7} 	Immediately after the peer review meeting ended, members of Eastern’s
administration and management staff who were present at the meeting, including Sara
Williamson, reported to Rich Robinson, Eastern’s CEO, and Michael Kueker, Dr.
Yedidag’s immediate supervisor, that Dr. Yedidag had engaged in unprofessional and
aggressive behavior at the peer review meeting. At trial, Keuker testified that he was
told that Dr. Yedidag had verbally attacked the colleague whose case was under
review 	at 	the 	meeting, 	and 	Sara 	Williamson 	testified 	that 	she 	told 	Eastern
administrators that Dr. Yedidag had engaged in extremely disruptive behavior at the
peer review meeting.
{8} 	The next day, Kueker met with Dr. Yedidag to suspend him from his position.
On November 17, 2006, Dr. Yedidag received a letter from Eastern terminating his
employment. The letter did not mention the events of the peer review meeting and

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instead stated that Dr. Yedidag’s termination was pursuant to Paragraphs 10.1(j),
10.1(k), and 10.1(m) of Dr. Yedidag’s employment agreement with Eastern and was
a result of his “continued unprofessional behavior and language” and “continued
disruptive behavior.” These provisions of the employment agreement provided for
immediate termination based upon:
(j) 	[Eastern’s] determination that [Dr. Yedidag’s] continued
employment would pose an unreasonable risk of harm to patients or
others or would adversely affect the confidence of the public in the
services provided by [Eastern];
(k) 	[Eastern’s] determination that [Dr. Yedidag] has engaged
in gross insubordination or gross dereliction of duty;
. . . .
(m) 	conduct by [Dr. Yedidag] which is reasonably considered
by [Eastern] to be unethical, unprofessional, fraudulent, unlawful, or
adverse to the interest, reputation or business of [Eastern.]
{9} 	On January 24, 2007, Dr. Yedidag filed an eight-count civil complaint against
Eastern seeking monetary damages and other relief as a result of his termination. An
amended complaint later filed by Dr. Yedidag consisted of the following specific
causes of action: 	fraud in the peer review process; violation of the ROIA’s
confidentiality provision; breach of Dr. Yedidag’s employment agreement with
Eastern; breach of the covenant of good faith and fair dealing; retaliatory discharge;
civil conspiracy; and prima facie tort. In response to Dr. Yedidag’s lawsuit, Eastern

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took the position throughout the proceedings below that Dr. Yedidag was terminated
for 	cause 	pursuant 	to 	his 	employment 	agreement 	with 	Eastern 	due 	to 	his
unprofessional conduct.
{10} 	At trial, the claims that were submitted to the jury pertinent to disposition of
this appeal were: (1) violation of the ROIA, and (2) breach of implied promises in Dr.
Yedidag’s employment agreement with Eastern. With regard to the ROIA claim, the
jury was instructed to determine whether Eastern “breach[ed] the confidentiality
requirement of [the ROIA] through its disclosure of Dr. Yedidag’s actions at the . . .
peer review . . . meeting by Sara Williamson to Eastern’s CEO and Eastern’s
Physician Practice Coordinator, who were not members or participants in the . . . peer
review [meeting].” As for the implied promises claims, the jury was instructed to find
whether Eastern had breached three implied promises located within Dr. Yedidag’s
employment agreement.
{11} 	The jury returned a special verdict in favor of Dr. Yedidag, finding that (1)
Eastern violated the ROIA, and (2) Eastern breached its employment agreement with
Dr. Yedidag by breaching an implied promise that there would be no adverse
consequences to Dr. Yedidag’s employment or staff privileges as a consequence of
his participation in the peer review process. The jury further determined that both of
the foregoing were a proximate cause of Dr. Yedidag’s damages, and it awarded Dr.

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Yedidag $997,814 in compensatory damages and three million dollars in punitive
damages. This appeal followed. We will relate additional background as necessary
to our discussion of each issue raised on appeal.
DISCUSSION
{12} 	Eastern raises six arguments on appeal. Eastern’s primary argument is that the
district court erred in allowing Dr. Yedidag to bring a private cause of action under
the ROIA. 	Eastern also raises arguments regarding the propriety of the implied
promises contractual cause of action, the jury’s award of punitive damages, the jury
polling process, the admission of medical evidence at trial, and the award of attorney
fees. We address each argument in turn.
1. 	Private Cause of Action Under the ROIA
{13} 	At the center of this appeal is the issue of whether a private civil cause of action
can arise from violation of Section 41-9-5, the ROIA’s confidentiality provision.
Eastern contends that the district court improperly permitted Dr. Yedidag to bring a
cause of action for damages and other relief against Eastern for an alleged violation
of Section 41-9-5. The parties agree that the ROIA does not expressly provide for a
private cause of action arising from violation of Section 41-9-5. In fact, we note that
the only remedy expressly identified in the ROIA for Section 41-9-5 violation is
criminal in nature. See § 41-9-6 (providing that any unauthorized disclosure of data

9
or information acquired by a review organization or of what transpired at a review
organization meeting is punishable as a petty misdemeanor). However, the district
court determined that a private cause of action can exist under the ROIA for violation
of Section 41-9-5. Our review of the district court’s ruling presents a matter of first
impression for this Court.
{14} 	The question of whether a statute creates or implies a private cause of action is
a question of law that we review de novo. See Sedillo v. N.M. Dep’t of Pub. Safety,
2007-NMCA-002, ¶ 7, 140 N.M. 858, 149 P.3d 955. Generally speaking, there are
only a handful of cases in New Mexico that have addressed the creation of a private
cause of action for statutory violations where a statute does not expressly provide for
such an action. See, e.g., Hovet v. Allstate Ins. Co., 2004-NMSC-010, ¶ 9, 135 N.M.
397, 89 P.3d 69 (determining, based on legislative intent and public policy, that
third-party claimants may bring a cause of action under the Insurance Code for unfair
claims practices where the statute at issue already provided for a general cause of
action); Starko, Inc. v. Presbyterian Health Plan, Inc., 2012-NMCA-053, ¶¶ 28, 33-
42, 276 P.3d 252 (recognizing a private cause of action arising under a statutory
provision of the Public Assistance Act), cert. granted, 2012-NMCERT-003, 293 P.3d
184; Sedillo, 2007-NMCA-002, ¶¶ 1, 8-17 (addressing whether the Peace Officer’s
Employer-Employee Relations Act provides a private cause of action); Nat’l Trust for

1 Eastern’s briefing refers to the factors identified in National Trust as the same
as those for a cause of action based on negligence per se. At oral argument before this
Court, Eastern again reiterated that the analysis is the same for a private cause of
action arising for a statutory violation in the absence of an explicit statutory directive
and a cause of action based on negligence per se. We disagree.
Our Supreme Court has stated that “[n]egligence per se . . . is a method of
proving negligence where a cause of action already exists.” 	Garcia v. Rodey,
Dickason, Sloan, Akin & Robb, P.A., 106 N.M. 757, 763, 750 P.2d 118, 124 (1988).
Moreover, our Supreme Court has enunciated a four-part test for determining whether
a negligence per se instruction is appropriate in a given case: “(1) There must be a
statute which prescribes certain actions or defines a standard of conduct, either
explicitly or implicitly, (2) the defendant must violate the statute, (3) the plaintiff must
be in the class of persons sought to be protected by the statute, and (4) the harm or
injury to the plaintiff must generally be of the type the [L]egislature through the
statute sought to prevent.” Heath v. La Mariana Apartments, 2008-NMSC-017, ¶ 7,
143 N.M. 657, 180 P.3d 664 (alteration, internal quotation marks, and citation
omitted). Eastern made no arguments to this Court on appeal based on this four-part
test and instead focused on the three non-exclusive factors set forth in National Trust.
We observe that Jury Instruction No. 7 was an instruction based on negligence
per se that was submitted to the jury in this case. This instruction was submitted in
addition to Jury Instruction No. 4, which directed the jury to consider whether Eastern
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Historic Pres. v. City of Albuquerque, 117 N.M. 590, 592-94, 874 P.2d 798, 800-02
(Ct. App. 1994) (recognizing a private cause of action under the New Mexico
Prehistoric and Historic Sites Preservation Act and determining that the plaintiffs had
standing to bring such an action).
{15} 	In this case, Eastern’s argument involves an examination of three non-exclusive
factors first enunciated by this Court in National Trust for determining whether a
private cause of action can be implied for a statutory violation in the absence of an
explicit statutory directive.1 117 N.M. at 593, 874 P.2d at 801. These factors are as

had violated Section 41-9-5 and defined Dr. Yedidag’s burden of proof in establishing
this direct violation. However, as a result of our holding that a private cause of action
can arise for violation of Section 41-9-5, we need not address the interplay between
these two instructions and the relatively limited argument based on negligence per se
that was presented by the parties on appeal.
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follows: “(1) Was the statute enacted for the special benefit of a class of which the
plaintiff is a member?[;] (2) Is there any indication of legislative intent, explicit or
implicit, to create or deny a private remedy?[; and] (3) Would a private remedy either
frustrate or assist the underlying purpose of the legislative scheme?” Id. In addition,
“[a] state’s public policy, independent of [these] factors, may be determinative in
deciding whether to recognize a cause of action.” Id. at 594, 874 P.2d at 802. Before
addressing Eastern’s arguments based on these factors as well as public policy, we
turn first to address two preliminary arguments advanced by Eastern.
{16} 	Eastern initially argues against the recognition of a private cause of action for
a Section 41-9-5 violation due to Dr. Yedidag’s failure during trial proceedings to
present any case precedent that has allowed for a private cause of action under the
ROIA in an employment case. However, neither party has presented this Court with
case law, either from New Mexico or from another jurisdiction, that has previously
addressed the precise issue before the Court: whether a state peer review immunity
statute, such as the ROIA, allows a member of a review organization to bring a private
cause of action for damages and other relief as a result of a violation of the statute’s

CORRECTION PAGE; Yedidag v. Roswell Clinic Corp. (No. 31,653); VzSZ; filed 7/3/13; page 12:13 (replace “statue” with
“statute”).
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confidentiality provision. Thus, in the absence of authority going one way or the other
on this issue, we are not compelled by Eastern’s argument that we should decline to
recognize a private cause of action simply because it is a matter of first impression for
this Court.
{17} 	Eastern next argues that the creation of a private cause of action under the
ROIA is improper because the ROIA already provides a criminal penalty. 	See §
41-9-6. In support of this argument, Eastern cites to authority from other jurisdictions
that have held that courts will not generally create a private cause of action where a
statute provides a penalty for violation but does not specifically provide for a private
cause of action. See, e.g., Youren v. Tintic Sch. Dist., 2004 UT App 33, ¶ 4, 86 P.3d
771. While we acknowledge that such authority exists in other jurisdictions, these
cases are not controlling, and Eastern does not point to any New Mexico authority that
has adopted this reasoning. In addition, we are aware of New Mexico cases that have
looked beyond the simple question of whether a statutory scheme already includes an
express legal remedy in determining whether to recognize a private cause of action
for a statutory violation. In resolving this question, these cases have examined the
adequacy of the legal remedy already provided by the statute at issue or, alternatively,
whether the legal remedy already provided for would be frustrated by the imposition
of additional remedies through a private cause of action. See Cal. First Bank v. State,

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111 N.M. 64, 74-75, 801 P.2d 646, 656-57 (1990) (determining that the administrative
remedies already provided for by statute were “not of such a comprehensive nature
and scope that they would be frustrated by imposition of tort liability” via a private
cause of action); see also State ex rel. Educ. Assessments Sys., Inc. v. Coop. Educ.
Servs. of N.M., Inc., 115 N.M. 196, 200-02, 848 P.2d 1123, 1127-29 (Ct. App. 1993)
(declining to recognize a private cause of action for disappointed offerors, in part,
based on this Court’s determination that the remedies already provided under the
Procurement Code were adequate to protect the disappointed offerors). 	We are
therefore reluctant to rest our analysis of whether a private cause of action can arise
for violation of Section 41-9-5 solely on the fact that the ROIA already prescribes a
criminal penalty for this violation.
{18} 	We thus turn to consider Eastern’s argument against the recognition of a private
cause of action based on the three non-exclusive factors set forth in National Trust.
As we set forth in greater detail below, weighing of these factors as well as public
policy leads us to conclude that a private cause of action can arise for violation of
Section 41-9-5.
{19} 	We first analyze whether Dr. Yedidag is a member of a class for whose special
benefit the ROIA was enacted. 	See Nat’l Trust, 117 N.M. at 593, 874 P.2d at 801
(stating that the first factor is whether the statute was enacted for the special benefit

2 We clarify that these protections do not flow to the physician that is the target
of the peer review action. Furthermore, although this issue is not before the Court in
this case and we therefore do not decide it, we observe that an overwhelming majority
of cases from other jurisdictions that have addressed the issue have held that the
physician under review cannot bring a private cause of action against professional
review bodies. 	See Scott M. Smith, Construction and Application of Health Care
Quality Improvement Act of 1986, 121 A.L.R. Fed. 255, § 9 (1994) (citing to federal
cases that have held that the Health Care Quality Improvement Act (HCQIA) does not
create a right of action for a physician subject to the peer review process); see also
Hancock v. Blue Cross-Blue Shield of Kan., Inc., 21 F.3d 373, 374 (10th Cir. 1994)
(holding that the HCQIA does not create a right of action for a physician subject to
the peer review process); Tunca v. Painter, 980 N.E.2d 1132, 1137 (Ill. App. Ct.
2012) (holding that the state’s peer review statute did not give a peer reviewed
physician a private right of action).
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of a class of which the plaintiff is a member). In our view, one class of individuals
that the Legislature clearly intended to protect by enacting the ROIA are members of
a review organization—i.e., those individuals that directly participate in the peer
review process. Protection of members of review organizations is achieved in two
primary ways under the ROIA: (1) by providing qualified immunity to members of
review organizations, and (2) by maintaining confidentiality during the peer review
process by limiting discovery of data and information gathered during the peer review
process as well as restricting disclosure of what transpired at meetings.2 See § 41-9-4
(providing that members of review organizations shall not “be liable for damages or
other relief in any action brought by a person or persons whose activities have been
or are being scrutinized or reviewed by a review organization . . . unless the

15
performance of such duty, function or activity was done with malice toward the
person affected thereby”); see also § 41-9-5(A) (providing that no member of a review
organization “shall disclose what transpired at a meeting of a review organization
except to the extent necessary to carry out one or more of the purposes of the review
organization, in a judicial appeal from the action of the review organization or when
subpoenaed by the New Mexico medical board”). Our determination that the ROIA
was enacted, in part, to protect peer review participants is comparable to other cases
that have similarly noted that these statutes were designed to protect those who engage
in the peer review process as participants. See, e.g., Goldsmith v. Harding Hosp., Inc.,
762 F. Supp. 187, 188 (S.D. Ohio 1991) (stating that the chief beneficiaries of the
HCQIA are the professional review bodies that are accorded immunity from liability
for damages); Cooper v. Del. Valley Med. Ctr., 654 A.2d 547, 554 (Pa. 1995)
(reiterating that the legislature’s clear purpose in enacting that state’s peer review
statute was to protect peer review participants). 	Since it is undisputed that Dr.
Yedidag was a member of a review organization as defined in the ROIA, we conclude
that he is a member of a class that the ROIA was enacted to specially benefit.
{20} 	Next, we consider whether there is any indication of legislative intent, either
explicit or implicit in the ROIA, to create or deny a private remedy to Dr. Yedidag.
See Nat’l Trust, 117 N.M. at 593, 874 P.2d at 801. 	As we stated earlier, one

3 Although the criminal penalty is a compelling signal of legislative intent, other
provisions of the ROIA signal that the Legislature did not implicitly intend to
foreclose the possibility of private remedies for other types of ROIA violations.
Because the immunity provided under the ROIA is qualified in nature, a number of
ROIA provisions contemplate legal action that is non-criminal in nature, thereby
serving as one signal that the Legislature intended to allow for other remedies. See
§ 41-9-4 (stating that members of peer review organizations who perform their duties
with malice toward the scrutinized physician can be held liable for “damages or other
relief in any action brought by [the scrutinized physician]”); see also § 41-9-3
(providing that individuals who knowingly provide false information to a review
organization “shall be subject to any action for damages or other relief”).
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indication that the Legislature did not intend to permit private remedies for violation
of Section 41-9-5 is the fact that the ROIA expressly provides a criminal penalty for
violation of this provision. 	See § 41-9-6. 	However, there is no indication in the
language of Section 41-9-6 that the criminal penalty—although mandatory in
nature—was intended to be the exclusive remedy for violation of the ROIA’s
confidentiality provision.3 Without undermining the Legislature’s judgment that the
criminal penalty protects against unauthorized disclosures of what transpired at a
review organization meeting, we are unable to conclude that there is any explicit or
implicit language in the ROIA that the Legislature intended to deny private remedies
for peer review participants who face adverse employment consequences as a direct
result of their participation in the process. 	Eastern also argues that there is no
indication of legislative intent to create a private remedy under the ROIA because the
ROIA was “created to improve health care in New Mexico and as such, it has an

17
aggregate focus, not an individual focus.” See Starko, 2012-NMCA-053, ¶ 35 (relying
on United States Supreme Court case law that evaluates legislative intent to create a
private remedy by examining, among other factors, whether the statute has an
“aggregate, not individual, focus” (internal quotation marks and citation omitted)).
We disagree. The protections afforded under the ROIA to peer review participants are
individual in nature and promote the aggregate integral purpose of the statute—the
improvement of health care in New Mexico and protection of the general public—by
ensuring effective professional peer review through a candid, frank, and critical
evaluative process. 	See Sw. Cmty. Health Servs., 107 N.M. at 198, 755 P.2d at 42
(stating that the ROIA “recognizes that candor and objectivity in the critical
evaluation of medical professionals by medical professionals is necessary for the
efficacy of the review process”).
{21} 	Turning to the third factor, we conclude that a private remedy for a violation of
Section 41-9-5 will not frustrate the underlying purposes of the ROIA. 	See Nat’l
Trust, 117 N.M. at 593, 874 P.2d at 801 (stating that the third factor is an examination
of whether a private remedy will either frustrate or assist the underlying purpose of
the legislative scheme). As we have noted, the overall purpose of the ROIA, which
is to promote the improvement of health care in New Mexico, is furthered through the
protections afforded under the ROIA to members of review organizations. See Sw.

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Cmty. Health Servs., 107 N.M. at 198, 755 P.2d at 42; see also Leyba, 114 N.M. at
689, 845 P.2d at 783 (emphasizing that the ROIA “reflects a reasoned balance
between the competing needs of the public for frank and accurate review of a
physician’s qualifications and the needs of physicians being credentialed for a fair and
impartial review process”). Specifically, the confidentiality provision of the ROIA,
and chiefly Section 41-9-5, serve to ensure an effective peer review process by
promoting participation in the process by physicians and other medical professionals.
This provision offers security to members that, assuming they are acting to carry out
one or more of the purposes of the review organization, they will not suffer personal
or professional harm as a result of their participation in, or based on the data and
information shared in the process or the communications made during the process.
If members of review organizations are subject to adverse employment consequences
as a result of their participation in the peer review process, there will be a chilling
effect on future participation by medical professionals in the process. Such a result
is clearly contrary to what the Legislature intended when it enacted the ROIA.
Allowing a private remedy for a violation of Section 41-9-5 would not frustrate the
underlying purposes of the ROIA.
{22} 	In arguing that the ROIA should not be interpreted under the National Trust
factors to provide for a private right of action, the dissent expresses concern regarding

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the reach of our holding. In particular, the dissent raises doubt that the Legislature
intended to absolutely immunize from discipline all conduct by a member of a review
organization during the peer review process and goes on further to point to a number
of hypothetical scenarios during a peer review meeting that it maintains should not be
protected from disclosure. However, as the dissent acknowledges, the language of
Section 41-9-5(A) prohibits the disclosure of what transpired at a meeting of a review
organization “except to the extent necessary to carry out one or more of the purposes
of a review organization.” Thus, the disclosure provision is not absolute in nature,
and our holding assumes that a member of a review organization was acting to carry
out one or more purposes of the review organization.
{23} 	Based on the foregoing, we conclude that a private cause of action can arise for
violation of Section 41-9-5 and, therefore, the district court did not err in submitting
this cause of action to the jury.
2. 	Breach of Implied Promise
{24} 	Eastern argues that the district court erred in allowing Dr. Yedidag to submit
a claim to the jury that Eastern violated Dr. Yedidag’s employment agreement by
breaching an implied promise within the agreement that Dr. Yedidag would not suffer
adverse employment consequences as a result of his participation in the peer review
process. 	The jury determined that Eastern breached this implied promise. 	As we

20
understand its argument, Eastern contends that the claim should not have been
submitted to the jury because Dr. Yedidag’s employment agreement controlled the
manner and methods by which he could be terminated, and the implied promise
improperly contradicted the express terms of the agreement.
{25} 	We are not persuaded. 	Eastern appears to argue that the implied promise
contradicts the express termination provisions in the employment agreement because
it precluded Eastern from considering Dr. Yedidag’s conduct during the peer review
meeting as a basis for termination. 	Eastern states that implied promises cannot
contradict the express terms of a contract; however, we are not convinced that the
implied promise that Eastern takes issue with actually contradicts the express terms
of Dr. Yedidag’s employment agreement. The jury found that Eastern breached an
implied promise that Dr. Yedidag would not suffer adverse consequences to his
employment or staff privileges as a result of his participation in the peer review
process. 	There is nothing in the language in this particular implied promise, as
submitted to the jury on the special verdict form, that the implied promise was meant
to encompass conduct in addition to Dr. Yedidag’s participation in the peer review
process. The district court did not prevent Eastern from arguing throughout trial that
it terminated Dr. Yedidag as a result of what Eastern considered to be unprofessional
conduct during the peer review process. There is no dispute that Eastern was able to

21
present evidence and argument at trial as to its interpretation of the employment
agreement as well as its view of the implied promise raised by Dr. Yedidag as a basis
for termination. We conclude that there was no error.
3. 	Award of Punitive Damages
{26} 	Eastern challenges the jury’s award of punitive damages on two grounds,
arguing that (1) there was insufficient evidence to support the award, and (2) the
award violates due process.
{27} 	We first consider Eastern’s argument that the punitive damages award was not
supported by sufficient evidence. Punitive damages are awarded for the purposes of
punishing wrongdoing and deterring both the wrongdoer and others from the
commission of similar offenses. Madrid v. Marquez, 2001-NMCA-087, ¶ 4, 131 N.M.
132, 33 P.3d 683. In order to support an award, there must be some evidence of a
culpable mental state on the part of Eastern. In this case, the jury was instructed that
it could award punitive damages against Eastern if it found that “the conduct of Rich
Robinson, Sara Williamson, Michael Keuker, or Barbara Harned was malicious,
willful, reckless, wanton, fraudulent or in bad faith[.]” On appeal, Eastern contends
that the punitive damages award was not supported by sufficient evidence because
Eastern terminated Dr. Yedidag after consulting with legal counsel and because the
law was unsettled as to whether the ROIA protected Dr. Yedidag from facing adverse

22
employment consequences as a result of the peer review process. Eastern argues that
this case is similar to Lujan v. Pendaries Properties, Inc., 96 N.M. 771, 775, 635 P.2d
580, 584 (1981), a case where the Supreme Court reversed an award of punitive
damages because the defendant had acted on the advice of counsel and because he had
taken a legal position that was not without some justification. However, our review
of Lujan indicates that this was not the sole basis for the Supreme Court’s decision to
vacate the punitive damages award. Significantly, the Court there also considered the
other evidence cited in support of the district court’s award of punitive damages and
found that this evidence was insufficient to show that the defendant had acted with a
culpable mental state. Id. Thus, we disagree with Eastern that Lujan stands for the
proposition that an award for punitive damages may be vacated solely because the
defendant acted based on the advice of counsel. 	Rather, it is one fact that may be
considered, amongst others, in determining whether there was sufficient evidence to
support an award of punitive damages.
{28} 	Aside from citing to testimony from an Eastern administrator that he terminated
Dr. Yedidag after consulting with legal counsel, Eastern fails to show why the jury
could not have reasonably inferred from the other evidence presented at trial that
Eastern acted maliciously, willfully, recklessly, wantonly, fraudulently, or in bad faith.
As a result of Eastern’s failure to sufficiently develop its argument and present the

23
facts necessary for our review of its sufficiency challenge, we do not consider its
argument any further. 	See Martinez v. Sw. Landfills, Inc., 115 N.M. 181, 186, 848
P.2d 1108, 1113 (Ct. App. 1993) (stating that the appellate court will not consider an
insufficiency of evidence argument without presentation of the evidence as a whole
or based only on facts that tend to support the argument).
{29} 	We next consider Eastern’s argument that the punitive damages award violates
due process. Whether an award of punitive damages comports with constitutional due
process is a question of law that we review de novo. Aken v. Plains Elec. Generation
& Transmission Coop., Inc., 2002-NMSC-021, ¶ 19, 132 N.M. 401, 49 P.3d 662.
Following BMW of North America, Inc. v. Gore, 517 U.S. 559, 575 (1996), our review
takes three criteria into account: 	“[(1)] the degree of reprehensibility of the
defendant’s misconduct[, (2)] the disparity between the harm (or potential harm)
suffered by the plaintiff and the punitive damages award[,] and [(3)] the difference
between the punitive damages awarded by the jury and the civil penalties authorized
or imposed in comparable cases.” Aken, 2002-NMSC-021, ¶ 20. Eastern makes no
argument as to the first and third BMW of North America factors and instead makes
a cursory argument as to the second factor. It contends that the amount of the punitive
damages award was so unrelated to the injury as to “plainly manifest passion and
prejudice rather than reason or justice[,]” Aken, 2002-NMSC-021, ¶ 23 (internal

24
quotation marks and citation omitted), because: (1) the award was not based on a bad
faith breach of Dr. Yedidag’s employment agreement, and (2) the award was based
on the ROIA claim that does not exist. We disagree. As we have already determined,
the ROIA claim was validly submitted to the jury and therefore could have served as
a basis for the award of punitive damages. And although the jury found that Eastern
did not violate a duty of good faith and fair dealing implied in Dr. Yedidag’s
employment agreement, Eastern fails to explain why the jury nevertheless could not
have found that Eastern acted in bad faith. Nor does Eastern explain why the jury’s
award of punitive damages could not have been based on malicious, willful, or
reckless conduct as those terms were defined in the jury instruction on punitive
damages. 	Finally, like its approach to the other arguments it raised on appeal,
Eastern’s briefing failed to otherwise undertake any traditional analysis of the second
BMW of North America 	factor that would permit meaningful review of the
constitutional muster of the punitive damages award. 	See 517 U.S. at 560. 	We
therefore conclude that there is no basis to reverse the award of punitive damages on
constitutional due process grounds.
4. 	Jury Polling
{30} 	Eastern argues that the district court committed reversible error by sending the
jury back to the jury room for further deliberations on the proximate cause question

25
tied to Dr. Yedidag’s breach of contract claim as a result of the colloquy between the
district court and the jury during the course of polling. 	Eastern contends that the
district court’s actions were coercive and constituted impermissible “verdict-urging.”
{31} 	To provide context, we first provide the relevant portion of the special verdict
form as well as the colloquy between the district court and the jury during polling.
With regard to Dr. Yedidag’s breach of contract claim, the special verdict read as
follows:
3. 	Did Eastern breach its employment contract with Dr. Yedidag?
_____ YES _____ NO
3A. 	If you have answered Yes to this Question, please indicate by a
check in the appropriate blank the violation found.
_____ 	Eastern breached its implied promise that there
would be no adverse consequences to Dr. Yedidag’s
employment or staff privileges as a consequence of
his participation in the peer review process.
_____ 	Eastern violated its duty of good faith and fair
dealing . . . .
_____ 	Eastern’s discharge of Dr. Yedidag for being a
disruptive employee did not conform . . . .
3B. 	Also put Yes in each appropriate blank if you found that any
violation checked above if that violation was a proximate cause of Dr.
Yedidag’s damages.
After the jury concluded its deliberations and returned to the courtroom with its
verdict, the district court proceeded to review the completed special verdict form.

26
With regard to the above questions, the district court stated that the jury had answered
“Yes” to Question 3 and had placed a check mark in the blank for the first violation
listed under Question 3A. The court then stated that in response to Question 3B, the
jury had not placed a “Yes” next to the check mark. The following specific exchange
occurred between the court and the jury foreperson regarding Question 3B:
THE COURT: 	[Question] 3B indicated [to] put [Y]es in each
appropriate 	blank 	if 	you 	found 	that 	any
violation checked above . . . was a proximate
cause of Dr. Yedidag’s damages[. 	T]here is
no [Y]es next to the subsection.
THE FOREPERSON: 	Did we forget something?
THE COURT: 	Do you want to go back in—
THE FOREPERSON: 	I think the way we have it is the way we
wanted it.
The court then continued to read the jury’s answers on the remainder of the special
verdict form. Thus, the initial answers on the special verdict form indicated that the
jury did not find that Eastern’s violation of the implied promise was a proximate cause
of Dr. Yedidag’s damages.
{32} 	At Eastern’s request, the district court then proceeded to poll the jury, during
which the following colloquy occurred regarding Question 3B:
THE COURT: 	[T]he next question was also put [Y]es in each
appropriate blank if you found that any violation
checked above, if that violation was a proximate

27
cause of Dr. Yedidag’s damages. With regard to the
one [violation] that you checked, there is no [Y]es
next to it, was that your decision?
THE CLERK: 	[Juror] 74?
[JUROR 74]: 	Yes, I guess. I’m lost again.
THE COURT: 	Maybe what we should do is have the jury go back in
to consider that one question. 	And, ladies and
gentleman, you have found—at least five of you
have checked off this bottom one. You need to next
answer if you feel that was a proximate cause of
damages[,] you need to write [Y]es next to it[;] if
you don’t, leave it—don’t put yes next to it. Okay.
So we’ll send the jury back in. . . .
. . . .
[Eastern]: 	Before we did do that, . . . could [we] object to
sending them back[?] . . . .
THE COURT: 	Let me just state that the jury was requested to be
polled. We were polling the jury, the jury expressed
confusion with regard to that question. I have asked
them and I believe instructed them correctly as to if
they intended [Y]es[,] they needed to put it, if they
didn’t, they didn’t. They’re simply going to clarify
for purposes of polling so the objection is overruled.
When the jury returned from the jury room, the special verdict form included a “Yes”
in answer to Question 3B next to the checked violation of an implied promise. The
district court re-polled the jury on Question 3B, and all six jurors indicated their assent
to the answer to Question 3B.

28
{33} 	Eastern argues on appeal that the district court improperly overruled its
objection. We disagree. The district court did not err in permitting the jury to return
to the jury room for further deliberations with regard to Question 3B. As this Court
stated in Sanchez v. Martinez, 99 N.M. 66, 73, 653 P.2d 897, 904 (Ct. App. 1982),
“[f]undamental justice requires that a verdict returned by a jury be certain as to its
import, and be free from ambiguity or inconsistency.” “The object of a poll is to give
each juror an opportunity, before the verdict is recorded, to declare in open court his
assent to the verdict which the foreman has returned and thus to enable the court and
the parties to ascertain for a certainty that each of the jurors approves of the verdict
as returned.” 	State v. Holloway, 106 N.M. 161, 164, 740 P.2d 711, 714 (Ct. App.
1987) (internal quotation marks and citation omitted); see 75B Am. Jur. 2d Trial
§ 1523 (observing that “[t]he jury poll is the primary device for uncovering the doubt
or confusion of individual jurors”). Here, the response given by Juror 74 during the
polling of Question3B indicated that the juror was uncertain or confused as to his/her
answer to that question. 	Under these circumstances, it was not improper for the
district court to send the jury back for further deliberations. See Holloway, 106 N.M.
at 165, 740 P.2d at 715 (indicating that “[t]he trial court . . . has discretion respecting
the proper remedial measures which should be taken when polling reveals that a
juror’s verdict is uncertain or qualified[,] . . . [including] directing the jury to retire to

29
continue its deliberations”); see also Rule 1-038(F) NMRA (providing that in civil
cases, “[e]ither party may require the jury to be polled, which is done by the court or
clerk, asking each juror if it is the juror’s verdict; if upon such inquiry or polling, more
than one of the jurors disagree thereto, the jury must be sent out again” for further
deliberations).
{34} 	Eastern also contends that the district court’s statements to the jury during
polling were coercive and that the court urged the jury during polling to change its
answer to Question 3B. Our review of the polling indicates that the district court’s
statements to the jury regarding Question 3B were neutral in form and substance. To
the extent that Eastern takes issue with the fact that the jury changed the special
verdict form and answered “Yes” to Question 3B during the additional deliberations,
the general rule is that there is no final verdict until the jury has been discharged. See
Hurst v. Citadel, Ltd., 111 N.M. 566, 570, 807 P.2d 750, 754 (Ct. App. 1991).
Because the jury was not discharged in this case until after further deliberations were
completed, the jury was permitted to change the form and substance of its verdict to
coincide with its intention during the course of those additional deliberations. We
conclude that there is no basis for reversal on this issue.
5. 	Admission of Medical Evidence

30
{35} 	Eastern summarily argues that the district court erred in admitting evidence in
the form of medical records and physician testimony concerning the medical case that
was the subject matter of the peer review meeting. 	We review the admission of
evidence for an abuse of discretion. See Nelson v. Homier Distrib. Co., 2009-NMCA-
125, ¶ 29, 147 N.M. 318, 222 P.3d 690. 	“An abuse of discretion occurs when the
ruling is clearly against the logic and effect of the facts and circumstances of the
case.” Wilde v. Westland Dev. Co., 2010-NMCA-085, ¶ 30, 148 N.M. 627, 241 P.3d
628 (internal quotation marks and citation omitted).
{36} 	Eastern’s argument is limited in length and scope; in the span of a few
sentences, Eastern broadly argues that the evidence was improperly admitted because
it was unduly prejudicial and that it “likely influenced the jury.” Although Eastern
provides record citations for the evidence it alleges was improperly admitted, Eastern
fails to give a detailed description of the evidence and fails to explain, with
appropriate supporting authority, why the district court’s relevancy determinations
regarding the evidence were incorrect. Eastern’s undeveloped argument precludes
meaningful appellate review of its relevancy argument. 	See Headley v. Morgan
Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (stating that this
Court “will not review unclear arguments, or guess at what [a party’s] arguments
might be”).

31
{37} 	To the extent that Eastern contends the evidence was unduly prejudicial, we are
again unpersuaded due to Eastern’s failure to adequately develop this argument.
Eastern provides no explanation as to why the evidence was unduly prejudicial and
fails to cite to any supporting authority. 	We also observe that Eastern’s briefing
ignores the fact that the district court issued, at Eastern’s request, a limiting instruction
to the jury regarding the use of the medical evidence at trial. We assume that the jury
followed the court’s instruction absent evidence to the contrary. See Norwest Bank
N.M., N.A. v. Chrysler Corp., 1999-NMCA-070, ¶ 40, 127 N.M. 397, 981 P.2d 1215
(recognizing that the jury is presumed to follow the court’s instruction). Eastern did
not object to the content of the limiting instruction when it was given at trial, and on
appeal, Eastern makes no argument as to why the limiting instruction was not
adequate to overcome the prejudice that it contends allegedly resulted from the
admission of the evidence. Thus, we affirm the district court’s ruling regarding the
admission of the medical evidence.
6. 	Attorney Fees
{38} 	Eastern’s final argument on appeal challenges the district court’s award of
attorney fees to Dr. Yedidag. We review an award of attorney fees for an abuse of
discretion. See N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-028, ¶ 6, 127
N.M. 654, 986 P.2d 450. However, we review the application of the law to the facts

32
de novo. 	Id. ¶ 7. New Mexico follows the American rule regarding attorney fees,
which is that, absent statutory authority, court rule, or contractual provision, litigants
are responsible for their own attorney fees. Id. ¶ 9. In this case, the award of attorney
fees was based on a contractual provision in Dr. Yedidag’s employment agreement
with Eastern, which provided that “[i]n the event that either party resorts to legal
action to enforce the terms and provisions of this [a]greement, the prevailing party
shall be entitled to recover the costs of such action so incurred, including, without
limitation, reasonable attorney[] fees and applicable court costs.”
{39} 	On appeal, Eastern contends that the award of attorney fees based on this
provision was erroneous because the jury found that Eastern breached an implied
promise in the employment agreement, which Eastern argues is a legally invalid claim.
Eastern reiterates its earlier argument that the implied promise contractual claim
cannot legally exist because it contradicts the express written termination provisions
of the employment agreement. However, we have already rejected Eastern’s argument
that the implied promise claim was legally invalid. 	See Opinion at ¶ 24. 	Since
Eastern offers no additional rationale as to why the award of attorney fees was
improper, we have no other basis upon which to consider this argument further. We
therefore affirm the award of attorney fees.
CONCLUSION

33
{40} 	We hold that a member of a review organization can bring a private cause of
action arising from an alleged violation of Section 41-9-5 of the ROIA. We affirm the
jury verdict.
{41} 	IT IS SO ORDERED.
_______________________________
LINDA M. VANZI, Judge
I CONCUR:
_________________________________
M. MONICA ZAMORA, Judge

34
JONATHAN B. SUTIN, Judge (dissenting)
SUTIN, Judge (dissenting).
{42} 	I respectfully dissent. Dr. Yedidag’s private right of action and implied promise
claims should have been dismissed.
{43} 	Paragraph 	2 	of 	the 	employment 	agreement 	entitled 	“Establishment 	of
Professional Relationship” required Dr. Yedidag to “render professional medical
services and such reasonable administrative and management services as may be
delegated to [him] . . . in accordance with all of the terms and conditions of [the
a]greement.” Dr. Yedidag was also required to “devote full time and attention, with
[his] best endeavors and skill for the interest, benefit[,] and best advantage of
[Eastern].” 	Paragraph 5.1(d) of the employment agreement imposed upon Dr.
Yedidag the duties of “providing professional medical services and conducting
professional duties in accordance with applicable law and with the current medical
standards in the community[.]” 	Paragraph 10.1 of the Agreement sets out fifteen
separate 	events 	the 	occurrence 	of 	which 	permitted 	Eastern 	to 	terminate 	the
employment agreement. Among the events were:
(j) 	[Eastern’s] determination that [Dr. Yedidag’s] continued
employment would pose an unreasonable risk of harm to patients or
others or would adversely affect the confidence of the public in the
services provided by [Eastern];
(k) 	[Eastern’s] determination that [Dr. Yedidag] has engaged
in gross insubordination or gross dereliction of duty;
. . .

35
(m) 	conduct by [Dr. Yedidag] which is reasonably considered
by [Eastern] to be unethical, unprofessional, . . . or adverse to the
interest, reputation[,] or business of [Eastern.]
The employment agreement and thus Dr. Yedidag’s employment were terminated
pursuant to Paragraphs 10.1(j), (k), and (m) of the agreement.
{44} 	Eastern’s termination letter addressed to Dr. Yedidag stated:
As you recall, at a meeting on August 3, 2006, you were advised
that the behaviors you exhibit with employees, Hospital administration,
and other members of the Hospital’s [m]edical [s]taff must cease,
including, but not limited to, your continued unprofessional behavior and
language. 	We outlined these issues in a letter to you dated August 4,
2006. In the meeting, and again in the letter, we cautioned that failure
to 	comply 	would 	result 	in 	immediate 	suspension 	and 	possible
termination of the employment agreement. Your continued disruptive
behavior violates the provisions set forth above, indicates you cannot or
will 	not 	conform 	your 	behavior, 	and 	leads 	us 	to 	conclude 	that
termination of your employment is the only practical remedy.
Paragraph 10.2 of the employment agreement states that “if either party fails to
perform or commits a material breach of any provision in this [a]greement . . . then the
other party thereafter may immediately terminate this [a]greement[.]” Paragraph 10.3
extends to the parties “any other rights and remedies that the parties may have at law
or in equity.” Paragraph 20 entitles the prevailing party in an action to enforce the
employment agreement to reasonable attorney fees.
{45} 	Several aspects of Dr. Yedidag’s case and briefs show that this case was
nothing more than a breach of employment contract case. He could have sued on the

36
basis that insufficient grounds existed to support termination of the agreement. 	In
such an action, he could have attempted, for example, to show that the termination
was based on specious or clearly insubstantial grounds or that relying on the peer
review conduct was purely pretextual or a ruse or hidden agenda to complete a
decision already made to terminate, perhaps even with malicious motive.
{46} 	Noteworthy in that regard is Dr. Yedidag’s answer brief statement: “Eastern’s
discharge of Dr. Yedidag for unprofessional conduct was in violation of the express
terms of its agreement with [him], whether or not that agreement also implied that he
could not be discharged for peer review participation.” 	(Emphasis added.) 	Dr.
Yedidag argues that “[the] breach empower[ed] others than Dr. Ali . . . to use the peer
review meetings to harm” Dr. Yedidag. (Emphasis added.) In an entire section of his
answer brief, Dr. Yedidag takes the position that the discharge violated not only
alleged implied terms, but also the express terms of the employment agreement. Dr.
Yedidag also takes the position that the implied promise he asserts constitutes an
exception to the express provision of Paragraph 10.1(m) of the employment
agreement, which provides that grounds for termination include unprofessional
conduct or conduct adverse to the interest, reputation, or business of Eastern. And Dr.
Yedidag consistently implies that Eastern’s motives were improper, including that it
had a financial stake in the outcome of a review committee proceeding. 	These

37
comments indicate that Dr. Yedidag’s claim presented to the jury could and should
have been that Eastern breached the agreement because Eastern lacked a justifiable
basis on which to terminate the agreement under Paragraph 10.1 of the agreement.
{47} 	Thus, the action that should have been pursued by Dr. Yedidag but was not
pursued was a common law action based on breach of the agreement for failure to
justifiably or lawfully terminate the agreement under Paragraph 10.1. New Mexico
cases reflect actions for breach of an employment agreement. 	See, e.g., Garcia v.
Middle Rio Grande Conservancy Dist., 1996-NMSC-029, ¶¶ 1, 19, 21, 121 N.M. 728,
918 P.2d 7 (reversing summary judgment in favor of an employer and remanding the
case to allow the employee to pursue his breach of employment contract claim based
on the existence of a written employment contract); Danzer v. Prof’l Insurors, Inc.,
101 N.M. 178, 180, 679 P.2d 1276, 1278 (1984) (reviewing a challenge to the amount
of damages awarded to an employee for an employer’s breach of their employment
agreement); cf. UJI 13-2306 NMRA (stating that if the employer agreed that the
employee could be discharged only for cause, the employer could discharge the
employee without violating the agreement if the employer in fact had a sufficient
cause to justify the discharge of the employee and that belief was reasonable). And
cases reflect actions for wrongful discharge, alleging an implied contract based in part
on an employee handbook. 	See, e.g., Hudson v. Vill. Inn Pancake House of

38
Albuquerque, Inc., 2001-NMCA-104, ¶ 4, 131 N.M. 308, 35 P.3d 313; cf. UJI 13-
2302 NMRA (discussing that wrongful discharge can be considered when an
employee claims an implied agreement that he or she could be discharged only for
cause). Perhaps Dr. Yedidag should not have dropped his claim for retaliatory
discharge. 	See UJI 13-2304 NMRA (containing the instruction for retaliatory
discharge). 	Notably, Dr. Yedidag did seek recovery for common law breach of
contract on the limited basis of Eastern’s alleged failure to follow “the procedural
requirements guaranteed under the medical staff by-laws to being designated a
disruptive employee” by not providing for any appeal process as to such designation.
The jury expressly rejected that claim.
{48} 	It appears that Dr. Yedidag consciously chose to take the private right of action
and implied promise approaches so as not to have to litigate the factual basis for
Eastern’s termination of the employment agreement under the express termination
provision in Paragraph 10.1. 	As indicated earlier in this dissenting opinion,
approximately three months before the peer review process took place, Eastern had
advised Dr. Yedidag that the behaviors he exhibited with hospital employees,
administration, and other members of the medical staff “must cease, including but not
limited to, [his] continued unprofessional behavior and language.” Dr. Yedidag was
also “cautioned that failure to comply would result in immediate suspension and

39
possible termination[.]” 	After the peer review meeting involving Dr. Ali, Eastern
terminated the agreement with Dr. Yedidag.
No Implied Statutory Right to Sue or Implied Promise Exists
{49} 	“The ROIA establishes a medical peer review process to promote the
improvement of health care in New Mexico. Further, it recognizes that candor and
objectivity in the critical evaluation of medical professionals by medical professionals
is necessary for the efficacy of the review process.” 	Sw. Cmty. Health Servs., 107
N.M. at 198, 755 P.2d at 42. To effectuate that process, the ROIA provides immunity
from damages for the medical professionals who participate as members of a peer
review committee so that they are not discouraged from “participating in effective
professional peer review.” Summers v. Ardent Health Servs., L.L.C., 2011-NMSC-
017, ¶ 13, 150 N.M. 123, 257 P.3d 943 (internal quotation marks and citation omitted)
(discussing the policy of utilizing professional peer review actions to assure quality
health care under ROIA and the Health Care Quality Improvement Act, 42 U.S.C. §§
11101 - 11152 (1986)); see NMSA 1978, §§ 41-9-3, -4 (1979).
{50} 	Section 41-9-3 limits the liability of persons providing information to the
review organization, and under Section 41-9-4 liability of members of the review
organization is limited. For our purposes here, a “review organization” is defined as
“an organization whose membership is limited to health care providers and staff . . .

40
and which is established by a health care provider which is a hospital . . . to gather and
review information relating to the care and treatment of patients for [various]
purposes[.]” Section 41-9-2(E). Among the eight enumerated purposes of the peer
review process are “(1) evaluating and improving the quality of health care services
rendered in the area or by a health care provider; (2) reducing morbidity or mortality;
. . . [and] (8) determining whether a health care provider shall be granted authority to
provide health care services using the health care provider’s facilities or whether a
health care provider’s privileges should be limited, suspended[,] or revoked.” Section
41-9-2(E)(1), (2), (8).
{51} 	Dr. Yedidag characterizes the circumstances of the termination of the
employment agreement as follows: 	“Dr. Yedidag was discharged for persistently
questioning Dr. . . . Ali . . . during a peer review meeting about a botched surgical
procedure in which Dr. Ali missed one of two tumors he had attempted to remove
[from a patient’s] colon” and about a second surgical procedure performed by Dr. Ali
that resulted in the patient’s death. I refer generally to the particular subject of the
peer review process as a “target” of the process. In this case, the obvious target of the
peer review meeting was Dr. Ali.
{52} 	Section 41-9-4 would be the immunity focus were Dr. Ali to have sued Dr.
Yedidag. 	The doctor-member’s involvement in the peer review process and the

41
target’s activities are what Section 41-9-4 addresses in terms of limitation of the
doctor-member’s liability. It is noteworthy that the doctor-member has only qualified,
not absolute, immunity. Leyba, 114 N.M. at 687, 845 P.2d at 781.
{53} 	Here, however, we have Dr. Yedidag suing his employer for violating Section
41-9-5 of the ROIA. Section 41-9-5(A) states that “all data and information acquired
by a review organization in the exercise of its duties and functions shall be held in
confidence and shall not be disclosed to anyone except to the extent necessary to carry
out one or more of the purposes of the review organization[.]” It further prohibits
those persons who are protected in Section 41-9-4 from “disclos[ing] what transpired
at [the] meeting . . . except to the extent necessary to carry out one or more of the
purposes of the review organization[.]” Section 41-9-5(A). I read the confidentiality
and disclosure provisions in Section 41-9-5 to exist primarily to protect a target
because the target is precluded under Section 41-9-4 from suing those protected under
Section 41-9-5. The protection consists of the threat of criminal prosecution under
Section 41-9-6 against any person who improperly discloses data or information
acquired in the process that could harm the target.
{54} 	I acknowledge that Section 41-9-5 appears to be broad enough to cover the
improper disclosure of data and information acquired by the review organization that
have the potential of harming persons other than the target. Nevertheless, no New

42
Mexico case has addressed that question, and Dr. Yedidag’s attempt to support the
breadth of the disclosure provision with any case law fails. 	Dr. Yedidag cites one
case, Fox v. Kramer, 994 P.2d 343 (Cal. 2000), for the proposition that he is protected.
Fox does not assist Dr. Yedidag in any regard.
{55} 	Fox involved discovery in a civil malpractice action of a health department
expert who reviewed confidential hospital peer review materials. Id. at 345, 348. The
malpractice action had been filed by an injured patient against the target of the peer
review process. 	Id. at 345-46. 	The California Supreme Court, in discussing the
pertinent statute, stated that one of its purposes was “to protect physicians who
participate in peer review from the burden of discovery and court appearances in
malpractice actions against their peers; such purpose is inapplicable when a physician
is willing to testify voluntarily.” 	Id. at 348. 	Fox simply protects a physician who
participates in peer review from discovery and involuntary testimony in a malpractice
action against the target of a peer review process. 	Fox in no way protects the
participating physician from disciplinary action by a hospital-employer based on
information received by the hospital of that physician’s improper, unprofessional
conduct during the process.
{56} 	The ROIA should not be interpreted under the National Trust factors to provide
for a private right of action for violation of the disclosure provision. See Nat’l Trust,

43
117 N.M. at 593, 874 P.2d at 801. 	Assuming that Section 41-9-5 was intended to
protect a class that includes a doctor-member of a peer review board for some
purposes, the class being protected in the statute should not be read to include a doctor
at risk for being disciplined by the hospital for unprofessional conduct. No part of the
statute governs personnel matters, including discipline for unprofessional conduct.
If the Legislature intended the statute to relate to personnel matters, it would have said
so. Nothing in the statute evidences a legislative intent, expressly or implicitly, to
create in the doctor-member of a peer review board a private right of action or remedy
based on Eastern’s disciplinary action taken under the express provisions of the
employment agreement. If the Legislature intended to create such right or remedy, it
would have said so. The Legislature instead provided for criminal sanction.
{57} 	Further, the term “transpired” as it is used in Section 41-9-5 cannot be read to
prohibit the disclosure of contractually prohibited unprofessional conduct of doctor-
members of a peer review board during a meeting. In addition, to the extent that the
Legislature intended to prohibit the disclosure of anything beyond data and
information, it cannot have intended “transpired” to provide absolute immunity from
discipline for unprofessional conduct of a participating doctor-member, who, as an
employee of the hospital, could be fired for such conduct under an employment
agreement. Yet absolute immunity from discipline is what the district court created.

44
By interpreting “transpired” as covering anything Dr. Yedidag said or did, the district
court established as a matter of law absolute immunity for him from termination under
the employment agreement or, for that matter, from any sort of further disciplinary
warnings for any conduct during the process. 	Oddly, under the district court’s
interpretation, Dr. Yedidag has absolute immunity from such adverse employment
action (which, hereafter, for simplicity, I refer to as “discipline”), but only qualified
immunity from suit by the target.
{58} 	“Transpired” must be interpreted in the context of the statute as a whole.
Nothing in the context of the entire statute reasonably or rationally permits an
interpretation of that term to mean unprofessional conduct of a doctor for which the
doctor could and should be disciplined were the conduct to have occurred outside of
the meeting. 	One can easily think of conduct that in no way could reasonably or
justifiably be considered protected such that disclosure of it solely for discipline
purposes would be subject to criminal prosecution.
{59} 	For example, one has to seriously doubt that the Legislature intended to grant
immunity to Dr. Yedidag from discipline were he to have persistently examined Dr.
Ali with brow-beating nastiness, venomous profanity, or ethnic slurs. 	What if Dr.
Yedidag examined a target stating that the target was a *&@**!!$ quack and a no-
good ignorant liar that killed the patient and deserved to go to jail or have his knees

45
broken or worse, even were that stated as his opinion? One has to seriously doubt that
the Legislature intended to absolutely immunize from discipline a doctor-member’s
drugged or inebriated state, or words or conduct that come within the proscriptions
against discrimination based on race, religion, sex, ethnicity, etc. 	And one must
seriously doubt that the Legislature would intend that sort of conduct to fit within the
idea of the acquisition of data and information to carry out the purposes of the review
organization.
{60} 	It goes without saying that Eastern has an obligation to protect the public as
well as its own staff from doctors who engage in unprofessional conduct. 	This
obligation should supercede any notion that the hospital should refrain from discipline
so as not to “chill” a doctor’s participation in the peer review process where the
conduct in question is unacceptable and subject to discipline. The peer review process
cannot be so sacrosanct as to forbid discipline for unprofessional conduct. The district
court’s ruling meant that nothing a doctor-member does or says during a meeting, no
matter what, can be disclosed for discipline purposes. Under that ruling, no discipline
could occur even if the conduct was such that it would adversely affect medical care
and constitute just and good cause for discipline. 	Respectfully, the ruling simply
makes little sense. It expands the law beyond good reason.

46
{61} 	Along the same line, the disclosure of Dr. Yedidag’s conduct to Eastern for
disciplinary purposes comes within the Section 41-9-5(A) exception of disclosures
“necessary to carry out one or more of the purposes of the review organization[.]”
The disclosure of Dr. Yedidag’s conduct can be viewed as coming within the purpose
of the review organization relating to the care and treatment of patients for at least one
or more of the eight purposes expressly enumerated in Section 41-9-2(E).
{62} 	Further, absolute immunity from discipline through a private or implied right
of action frustrates an underlying purpose of the ROIA, in that the peer review process
is to enhance the provision of good, professional medical care. 	To absolutely
immunize a doctor-member’s unprofessional conduct precludes the hospital from
assuring that doctors who engage in such conduct are disciplined. It is unreasonable
to assume that either the Legislature under the ROIA or Eastern under the employment
relationship intended to create or promise by implication a circumstance in which
Eastern would forego its responsibility to the public and its own staff to discipline a
wayward doctor in exchange for requiring the doctor as part of his or her employment
to participate in the peer review process.
{63} 	I see nothing in the ROIA that permits a divination that the Legislature intended
to permit a doctor to sue the hospital for violating the disclosure clause when the
“disclosure” was behavior during a peer review process that constitutes an express

47
basis of termination under an employment agreement. 	Nor do I see any basis on
which to create an implied promise that Eastern would refrain from any disciplinary
action growing out of a member’s conduct in a peer review meeting. Dr. Yedidag
cites no case that supports his position that he should have absolute or, for that matter,
even a qualified immunity, from discipline. His citations to Summers and Southwest
Community Health Systems provide nothing more than general statements as to the
goal and purpose of peer review legislation.
{64} 	If permitting discipline tends to chill the peer review process, then rather than
the court creating, as it does here, a claim for a ROIA violation or an implied promise,
permitting absolute immunity from discipline, the court should leave it to the
Legislature to make clear what the more important policy to implement is for the
overall policy goal of enhancing medical care.
{65} 	Eastern presents cases from other jurisdictions indicating that courts will not
create a private right of action when the statutes provide criminal penalties for
violations but do not specifically provide for a private right of action. Dr. Yedidag
cites no case to the contrary. 	In fact, he cites no case that has held that a doctor-
member of a peer review committee has a private right of action under a peer review
statute to sue his or her hospital-employer for a violation of a confidentiality clause
in the statute. At most, if a violation of the ROIA has allegedly occurred, the violation

48
should be used, if at all, only as evidence to support a claim for breach of the
employment agreement.
{66} 	It is noteworthy that the jury expressly rejected Dr. Yedidag’s claim asserting
breach of the implied-in-law covenant of good faith and fair dealing. Even were the
implied covenant of good faith and fair dealing an issue, that covenant “cannot be
used to overcome or negate an express term contained within a contract.” Sanders v.
FedEx Ground Package Sys., Inc., 2008-NMSC-040, ¶ 8, 144 N.M. 449, 188 P.3d
1200. Nor can the covenant be construed to imply “new, independent rights or duties
not agreed upon by the parties.” 	A.I. Transp. v. Imperial Premium Fin., Inc., 862
F. Supp. 345, 348 (D. Utah 1994) (internal quotation marks and citation omitted).
{67} 	In addition, and more important, nothing in the employment agreement or the
evidence supports any implied-in-fact covenant that can be based on the parties’
intentions. See Davis v. Devon Energy Corp., 2009-NMSC-048, ¶ 33, 147 N.M. 157,
218 P.3d 75 (“[I]f a covenant or promise does not operate to impose a duty as a matter
of law, any implied obligation must arise from the parties’ intentions.”). “[I]mplied
covenants are not favored in law, especially when a written agreement between the
parties is apparently complete.” Cont’l Potash, Inc. v. Freeport-McMoran, Inc., 115
N.M. 690, 704, 858 P.2d 66, 80 (1993). 	Such a covenant cannot co-exist with or
override express provisions of the parties’ agreement. Davis, 2009-NMSC-048, ¶ 29;

49
Cont’l Potash, 115 N.M. at 704, 858 P.2d at 80; Winrock Inn Co. v. Prudential Ins.
Co. of Am., 1996-NMCA-113, ¶ 18, 122 N.M. 562, 928 P.2d 947.
{68} 	Finally, the manner in which this case was presented to the jury through the
instructions was virtually and effectively a direction to reach a verdict of violation of
the statute, leaving only the causation and damages issues for jury consideration. In
my view, this was further error requiring reversal.
{69} 	Instruction No. 4 reads, in pertinent part, that Dr. Yedidag sought damages that
he claims were caused by Eastern’s breach of the confidentiality requirement in the
ROIA and that to establish a violation, Dr. Yedidag had to prove that “[h]is words or
actions . . . were protected from disclosure[.]” Instruction No. 7 quoted the ROIA’s
disclosure provision and then stated: 	“Transpired means anything that occurred,
happened, or took place.” The instruction then stated, “[i]f you find from the evidence
that Eastern’s employees violated [the] statute then Eastern’s conduct constitutes
negligence as a matter of law.” 	No instruction defined or explained negligence or
negligence per se. 	The fact of “disclosure” was not an issue. 	The court was
instructing the jury that Dr. Yedidag’s words or actions necessarily transpired during
the meeting and were protected from disclosure and that Eastern violated the statute.
{70} 	The special verdict form then asked whether Eastern violated the ROIA and, if
so, whether the violation caused Dr. Yedidag’s damages. The special verdict form

50
states that if the answers are “yes” to these questions, the jury should proceed to award
damages in accordance with the damage instruction given by the court. Nothing in
the special verdict form mentions negligence or disclosure.
{71} 	The aggregate of the instructions and the special verdict form tells the jury
under no uncertain terms that any and all of Dr. Yedidag’s words or actions at the peer
review meeting were protected under the ROIA from disclosure and, upon the
disclosure by Eastern’s employees of any of his words or actions, Eastern violated the
ROIA. The jury had little choice but to answer “yes” on the special verdict form to
the question whether Eastern violated the ROIA and then move on to causation.
{72} 	When asked in oral argument whether some action or conduct by a doctor-
member might be disclosable and acted on by a hospital, Dr. Yedidag’s counsel’s
answer was, essentially, that that is not this case. But when pushed further, counsel
conceded that some forms of action or conduct could be outside of the non-disclosure
bar. 	The concern in this case, as it went to the jury, is not whether Dr. Yedidag’s
particular manner of questioning was the type of conduct that would fall within or
outside of the non-disclosure bar. The concern is that the jury was instructed that, as
a matter of law, any disclosure of a member’s action or conduct constituted a violation
of the statute simply because the action or conduct transpired during the review
process. The syllogism is:

51
The ROIA was violated if conduct that transpired during the process was
disclosed.
Conduct that transpired during the process was disclosed.
Therefor, the ROIA was violated.
This meant Eastern must be liable. 	The jury was given no choice but to find a
violation. And it was instructed that it could award damages upon the violation.
{73} 	For all of the reasons discussed in this dissent, I would reverse the jury verdict.
__________________________________
JONATHAN B. SUTIN, Judge