October 18, 2022- Celina Hernandez v. Robert Reuter, M.D., No. A-1-CA-38333

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: October 18, 2022
No. A-1-CA-38333
CELINA HERNANDEZ and DAVID HERNANDEZ, Individually, and ARTHUR BUSTOS, as Personal
Representative of the Wrongful Death Estate of CAIN HERNANDEZ,
Plaintiffs-Appellants,
ROBERT REUTER, M.D. and ONLINE RADIOLOGY MEDICAL GROUP, a foreign corporation,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY Abigail Aragon, District Judge
The Spence Law Firm NM, LLC
Dennis K. Wallin
Alisa C. Lauer
Erin M. Marshall
Albuquerque, NM
Fine Law Firm Mark D. Fine Albuquerque, NM
Court of Appeals of New Mexico Filed 10/18/2022 10:48 AM
Mark Reynolds
6 7 8 9 10 11 V. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 for Appellants
1
2 3 4 5

4

Lorenz Law
Alice T. Lorenz
Albuquerque, NM

for Appellees

OPINION	1
YOHALEM, Judge.	2
{1} 	Cain Hernandez died from a heart condition when he was just five days old.	3
His parents, Celina and David Hernandez, and the personal representative of Cain’s	4
wrongful death estate, Arthur Bustos (collectively, Plaintiffs), brought this medical	5
malpractice action against Robert Reuter, M.D., and Online Radiology Medical	6
Group, Dr. Reuter’s practice (collectively, Defendants), for negligence,1 alleging	7
that Dr. Reuter failed to detect Cain’s enlarged heart when he read Cain’s chest x-	8
ray, and failed to make a differential diagnosis of a congenital heart defect. Plaintiffs	9
alleged that, as a result of Dr. Reuter’s negligence, Cain’s treating physicians failed	10
to timely provide lifesaving treatment for Cain’s heart defect.	11
{2} 	The district court granted summary judgment to Dr. Reuter and Online	12
Radiology based on Plaintiffs’ failure to establish causation with expert medical	13
testimony. Concluding that Plaintiffs raised a genuine issue of material fact as to	14
causation requiring resolution at a trial on the merits, we reverse and remand.	15
Factual and Procedural Background	16
{3} 	Cain Hernandez was born on April 9, 2013, at Carlsbad Medical Center	17
(CMC) in Carlsbad, New Mexico, and was discharged from CMC approximately	18
1 Plaintiffs also sued Cain’s treating physicians, Dr. Peter Newell and Dr.
Kwok Sung. The claims against those doctors were resolved and are not at issue in
this appeal.

2
twenty-four hours later. Although not diagnosed prior to his discharge from the	1
hospital, Cain was born with a congenital heart defect.	2
{4} 	Cain’s parents brought him back to CMC four days after his birth, on	3
Saturday, April 13, 2013, at approximately 6:00 p.m. for emergency treatment. Cain	4
was treated in CMC’s emergency department by Dr. Newell, Dr. Sung, and other	5
CMC medical staff. Dr. Newell’s and Dr. Sung’s initial working diagnosis was that	6
Cain was suffering from sepsis.	7
{5} 	CMC contracted with Online Radiology to perform after-hours and weekend	8
remote radiology services. On the night of April 13, between approximately 8:30	9
and 9:30 p.m., several portable x-rays were taken of Cain’s chest and transferred	10
electronically to Dr. Reuter, a radiologist, who interpreted Cain’s chest x-rays. Dr.	11
Reuter’s report made no mention of Cain’s heart, failing to report that it was	12
enlarged. Dr. Reuter also did not offer a differential diagnosis of congenital heart	13
defect.	14
{6} 	Plaintiffs produced an affidavit and deposition testimony from their expert	15
radiologist, Dr. Josef Nisenbaum, who was prepared to testify at trial that Dr.	16
Reuter’s failure to detect and promptly report Cain’s enlarged heart to his treating	17
physicians and to suggest a differential diagnosis of congenital heart defect was a	18
breach of the standard of care. For purposes of their motion for summary judgment,	19
Defendants conceded that there was a disputed issue of material fact as to whether	20

3
Dr. Reuter misread Cain’s chest x-rays, and whether this misreading was a breach	1
of the standard of care.	2
{7} 	Cain was transferred by ambulance to Sierra Providence East Medical Center	3
in El Paso, Texas, arriving in the early morning of April 14, 2013. At the El Paso	4
hospital, Cain was correctly diagnosed with the heart defect aortic coarctation based	5
on a chest x-ray showing an enlarged heart, followed by an echocardiogram. Cain	6
was promptly treated with prostaglandin, a medication both parties acknowledge is	7
lifesaving for an infant with an aortic coarctation if administered in time. The	8
medication is considered a “life[]saving bridge treatment that stabilizes a patient”	9
until corrective surgery can be performed.	10
{8} 	Cain was again transferred, this time to the Children’s Medical Center in	11
Dallas, Texas, a specialty hospital that could perform the required heart surgery.	12
Cain was pronounced dead two hours after his arrival at that hospital.	13
{9} 	Defendants moved for summary judgment on a single ground—that Plaintiffs’	14
responses to discovery failed to reveal any competent expert testimony establishing	15
a causal connection, to a reasonable degree of medical probability, between Dr.	16
Reuter’s breach of the standard of care and Cain’s injuries. Defendants claimed that	17
the absence of such expert testimony required dismissal. Defendants supported their	18
motion for summary judgment by pointing to alleged inadequacies in Plaintiffs’	19
disclosure of their expert witnesses and in Plaintiffs’ description of their experts’	20

4
anticipated testimony in discovery. Defendants focused on the affidavit of Plaintiffs’	1
expert in radiology, Dr. Nisenbaum, claiming that Dr. Nisenbaum’s affidavit failed	2
to explain how Dr. Reuter’s breach of the standard of care in reading Cain’s chest x-	3
rays proximately caused Cain’s death or his loss of a chance of survival. Defendants’	4
summary judgment motion also quoted portions of the affidavits and depositions of	5
Plaintiffs’ experts in pediatrics and pediatric cardiology, Dr. Deborah Silver and Dr.	6
Doff McElhinney, in which these experts disavowed any intention of testifying to	7
Dr. Reuter’s negligence, or to whether that negligence made a difference in the	8
outcome for Cain.	9
{10} 	Plaintiffs responded by arguing that Defendants failed to establish a prima	10
facie case as to lack of expert causation testimony by, introducing only incomplete	11
and misleading evidence to support their claim, and even if Defendants had	12
established a prima facie case, the affidavits and deposition testimony of Plaintiffs’	13
medical experts included in Plaintiffs’ summary judgment response raised a genuine	14
issue of material fact as to causation. Plaintiffs argued that causation could properly	15
be established through the testimony of multiple witnesses and need not be presented	16
through a single expert.	17
{11} 	Plaintiffs did not claim in the district court and do not claim on appeal that Dr.	18
Nisenbaum’s testimony established the necessary causal link between Dr. Reuter’s	19

5
negligence and Cain’s death. Plaintiffs instead rely on other medical experts and lay	1
testimony to establish a causal chain.	2
{12} 	Plaintiffs began with the breach of the standard of care, which they established	3
through the affidavit of Dr. Nisenbaum. Dr. Nisenbaum’s affidavit stated that the	4
standard of care required a radiologist reading an infant’s chest x-ray to report on	5
the condition of the infant’s heart, and if the heart is enlarged, to suggest a	6
differential diagnosis of a congenital heart defect. Dr. Nisenbaum reported that, in	7
his expert opinion, Dr. Reuter had breached the standard of care by failing to detect	8
Cain’s enlarged heart, failing to make a differential diagnosis of a congenital heart	9
defect, and failing to immediately phone Cain’s treating physicians with his findings.	10
{13} 	Plaintiffs next relied on Dr. Deborah Silver, a pediatrician, referring to her	11
deposition testimony to establish that the failure of Cain’s treating physicians to	12
consider an alternative diagnosis of congenital heart defect delayed treatment with	13
prostaglandin, a medication both parties agreed could prevent an infant’s death by	14
keeping the infant alive until heart surgery can be performed. Dr. Silver testified that	15
time was of the essence in administering prostaglandin: The sooner the better. If	16
administered in time, Dr. Silver explained that “these kids have a very, very high	17
survival rate,” around 95 percent. Dr. Silver also testified that if a differential	18
diagnosis of congenital heart defect is proposed for an infant, “you would consider	19
starting treatment right away because it is lifesaving.”	20

6
{14} 	Plaintiffs also attached portions of the deposition of their expert pediatric	1
cardiologist, Dr. McElhinney, who testified that “earlier diagnoses or treatment”	2
would have prevented Cain’s death and that the failure to timely diagnose and treat	3
was, to a reasonable degree of medical probability, the proximate cause of Cain’s	4
death.	5
{15} 	Cain’s 	treating physicians, Dr. Sung and 	Dr. Newell 	(who were then	6
defendants), submitted affidavits in which they admitted that receipt of a radiological	7
report that Cain’s heart was enlarged would have redirected their treatment of Cain.	8
Dr. Sung’s affidavit stated that if he had been told that Cain had an enlarged heart,	9
it “would have caused [him] to place a cardiogenic cause for Cain’s presentation	10
higher on [his] differential diagnosis.” Dr. Newell testified that a correct radiology	11
report “would certainly have impacted the course of my treatment . . ., and possibly	12
would have led to a faster administration of prostaglandin.”	13
{16} 	Plaintiffs relied on Dr. Nisenbaum’s affidavit and deposition for a general	14
explanation of the role of a radiologist and of a radiologist’s report in guiding a	15
patient’s treatment. Dr. Nisenbaum concluded his affidavit by stating that “[Dr.	16
Reuter’s] error of omission may have led to misdirection of clinical care.” This	17
statement was the subject of a motion in limine filed by Defendants to exclude Dr.	18
Nisenbaum’s testimony related to causation. Defendants’ motion alleged that Dr.	19
Nisenbaum was not qualified to testify as to whether Dr. Reuter’s error misdirected	20

7
care, or otherwise was a cause of Cain’s death because he was not a pediatrician and	1
had not reviewed Cain’s medical records. Defendants argued that therefore, Dr.	2
Nisenbaum’s testimony that “missing the findings [in a radiology report] can clearly	3
delay appropriate management of [a patient,]” without tying that opinion to the	4
particular facts of Cain’s treatment, is inadmissible speculation. The district court	5
granted Defendants’ motion, concluding that Dr. Nisenbaum “is not qualified to	6
provide causation evidence with regards to the radiology or the ultimate cause of	7
death.”2
8
2 Plaintiffs do not contend on appeal that Dr. Nisenbaum’s causation testimony
was sufficient to raise a dispute of fact for trial on causation. Indeed, Plaintiffs claim
that they need not rely on Dr. Nisenbaum’s causation testimony at all to successfully
defend against summary judgment—that other medical experts draw the necessary
causal connection. Plaintiffs, nonetheless, argue on appeal that Dr. Nisenbaum’s
causation testimony is relevant, would be helpful to the jury, and is not speculative.
We agree that Dr. Nisenbaum’s testimony informing the fact-finder of the role
played by a radiologist in the treatment of patients and of the potential impact on
treatment of an incorrect radiology report is relevant and admissible, even though it
leaves to pediatric expert witnesses the question of whether Dr. Reuter’s error caused
a delay in Dr. Newell’s and Dr. Sung’s treatment of Cain. Dr. Nisenbaum is qualified
to testify about the role played by a radiology report in treating a patient, such
testimony would assist the trier of fact in understanding the impact of an erroneous
radiology report, and Dr. Nisenbaum’s testimony was founded on many years of
specialized experience. See State v. Yepez, 2021-NMSC-010, ¶ 19, 483 P.3d 576
(holding that to be admissible expert testimony must be offered by a qualified
witness, must assist the fact-finder in deciding matters at issue in the case, and must
be based on reliable specialized knowledge or experience). We leave it to the district
court, with this guidance, to rule on any particularized objections to statements by
Dr. Nisenbaum that may be unduly speculative at trial.

8
{17} 	The 	district 	court, 	after 	granting 	Defendants’ 	motion 	to 	exclude 	Dr.	1
Nisenbaum’s statement that “[Dr. Reuter’s] error of omission may have led to	2
misdirection of clinical care,” concluded that the court was required, apparently	3
because of that exclusion, to grant Defendants’ motion for summary judgment with	4
regard to “the lack of expert testimony on causation.” The district court’s written	5
order gave no further explanation for the court’s decision granting summary	6
judgment.	7
{18} 	Plaintiffs appeal.	8
DISCUSSION	9
{19} 	In reviewing an appeal from an order granting summary judgment, we are	10
required to determine if material disputed issues of fact require a trial on the merits.	11
We do not attempt to resolve these issues of fact; our role is to determine if such	12
issues exist. See Pharmaseal Labs., Inc. v. Goffe, 1977-NMSC-071, ¶ 10, 90 N.M.	13
753, 568 P.2d 589; accord Gonzalez v. Gonzalez, 1985-NMCA-071, ¶ 29, 103 N.M.	14
157, 703 P.2d 934 (“Summary judgment is not used to decide an issue of fact, but to	15
determine if one exists.”). In making this determination, we give the nonmoving	16
party the benefit of all reasonable doubts, drawing all inferences from the evidence	17
in favor of a trial on the merits. Blauwkamp v. Univ. of N.M. Hosp., 1992-NMCA-	18
048, ¶ 10, 114 N.M. 228, 836 P.2d 1249.	19

9
{20} 	We conduct our review by looking first “to whether [the] defendants made a	1
prima facie case that no genuine issue of material fact existed and, if so, whether	2
[the] plaintiffs rebutted the prima facie case.” Id. ¶ 9 (alteration, internal quotation	3
marks, and citation omitted).	4
I. 	Defendants Made a Prima Facie Case for Summary Judgment	5
{21} 	Plaintiffs contend first that Defendants failed to meet their initial burden of	6
stating a prima facie case for summary judgment. A defendant seeking summary	7
judgment in a medical malpractice action can establish a prima facie case by	8
negating at least one of the essential elements of the plaintiff’s claim. Id. ¶ 14. In a	9
medical malpractice action, there are three essential elements that a plaintiff must	10
establish to avoid summary judgment: “(1) the defendant owed the plaintiff a duty	11
recognized by law; (2) the defendant breached the duty by departing from the proper	12
standard of medical practice . . .; and (3) the acts or omissions complained of	13
proximately caused the plaintiff’s injuries.” Id. ¶ 13. In this case, Defendants’	14
motion for summary judgment focused solely on the third element, the element of	15
causation, and sought to establish that Plaintiffs had not presented expert medical	16
testimony that to a reasonable degree of medical probability, Dr. Reuter’s negligence	17
was a proximate cause of Cain’s death or loss of a chance of survival.	18
{22} 	Plaintiffs argue on appeal that Defendants failed to establish a prima facie case	19
for summary judgment because they provided only incomplete and misleading	20

10
citations to portions of Plaintiffs’ evidence and Plaintiffs’ responses to discovery.	1
Plaintiffs suggest that Defendants’ list of undisputed facts is similar to a showing we	2
deemed insufficient in Diaz v. Feil, 1994-NMCA-108, ¶ 6, 118 N.M. 385, 881 P.2d	3
745. In Diaz, the defendant’s motion for summary judgment claimed only that “any	4
act or omission on the part of [the] . . . [h]ospital was not the proximate cause of [the	5
p]laintiff’s injuries.” Id. ¶ 4. This Court held that the defendant’s declaration was	6
insufficient to establish a prima facie showing because it lacked “a factual basis	7
negating the existence of proximate cause.” Id. ¶ 6.	8
{23} 	There is no question here, however, that Defendants’ showing was more than	9
a bare assertion that causation was lacking. Defendants relied on Plaintiffs’ answers	10
to discovery, on the affidavit of Dr. Nisenbaum, and on selected statements from the	11
affidavits and depositions of Plaintiffs’ medical experts to suggest that Plaintiffs did	12
not have any expert medical evidence of causation. Plaintiffs’ argument that	13
Defendants have presented an inaccurate, incomplete, and misleading summary of	14
the affidavits and depositions of Plaintiffs’ experts is appropriate rebuttal; Plaintiffs’	15
argument does not negate the existence of Defendants’ prima facie case. Under	16
Blauwkamp, a plaintiff’s admissions in discovery or statements by a plaintiff’s	17
experts that they lack certain evidence or are unable to express an opinion are	18
sufficient to establish a prima facie case for summary judgment. See 1992-NMCA-	19
048, ¶¶ 15-16 (holding that a moving party is not required “to support its motion	20

11
with affidavits of medical experts or other sworn testimony affirmatively disproving	1
[the p]laintiff’s claims” and may make out a prima facie case by relying on	2
admissions that they lack certain expert evidence (emphasis added)). Accordingly,	3
the burden shifted to Plaintiffs upon the filing of Defendants’ summary judgment	4
motion to rebut Defendants’ statement of undisputed facts with “specific evidentiary	5
facts which would require trial on the merits.” Romero v. Philip Morris, Inc., 2010-	6
NMSC-035, ¶ 10, 148 N.M. 713, 242 P.3d 280 (internal quotation marks and citation	7
omitted).	8
{24} 	Having concluded that Defendants’ motion for summary judgment presented	9
a prima facie case, we next address whether Plaintiffs carried their burden of	10
presenting sufficient admissible evidence to raise a genuine issue of fact as to	11
causation.	12
II. 	Plaintiffs’ Affidavits and Depositions in Response Raise Genuine Issues	13
of Material Fact as to Whether Dr. Reuter’s Negligence Was a Proximate	14
Cause of Cain’s Death	15
{25} 	Plaintiffs responded to the Defendants’ motion for summary judgment with	16
an extensive list of specific evidentiary facts, supported by the affidavits and	17
deposition testimony of their expert witnesses. Plaintiffs argue that their experts’	18
testimony, together with factual testimony by Cain’s treating physicians, is together	19
sufficient to establish each element of a causal chain originating with Dr. Reuter’s	20
failure to detect Cain’s enlarged heart, make a differential diagnosis of congenital	21

12
heart defect, and communicate that diagnosis to Cain’s treating physicians. This	1
breach of the standard of care by Dr. Reuter, Plaintiffs maintain, led to a delay in	2
administering the correct treatment, which in turn contributed to and was a	3
proximate cause of Cain’s death or loss of a chance of survival. Plaintiffs’ summary	4
judgment response relied on the testimony of (1) Dr. Nisenbaum, a radiologist, to	5
establish a breach of duty; (2) Dr. McElhinney, a pediatric cardiologist, and Dr.	6
Silver, a pediatrician, to establish that the proximate cause of Cain’s death, to a	7
reasonable degree of medical probability, was the failure to timely diagnose and treat	8
Cain’s congenital heart defect; (3) Dr. Nisenbaum, Dr. Reuter, and Dr. Maxwell,	9
radiologists, to establish that a radiologist’s report and differential diagnosis guides	10
treatment; (4) Dr. Sung and Dr. Newell, Cain’s treating physicians, to establish that	11
had they received a correct differential diagnosis from Dr. Reuter, it would, in fact,	12
have impacted their treatment of Cain and caused them to place congenital heart	13
defect higher on their list of differential diagnoses, and possibly would have	14
expedited lifesaving treatment;3 Dr. Roberto Canales, Cain’s treating physician in	15
3 Defendants argue that Dr. Sung’s and Dr. Newell’s affidavits are problematic
and should have been excluded by the district court. Defendants argue specifically
that Dr. Sung’s affidavit is a sham and Dr. Newell’s affidavit was untimely. We are
not persuaded by these arguments. The district court determined that Defendants’
motions to exclude Dr. Newell’s and Dr. Sung’s affidavits were moot and did not
rule on their merits. Nevertheless, in reviewing the district court’s summary
judgment ruling, we must evaluate the “admissible evidence” offered by Plaintiffs
to rebut Defendants’ prima facie case. See Blauwkamp, 1992-NMCA-048, ¶ 18. For
that reason, we may consider the affidavits in our evaluation of the propriety of

13
El Paso, Texas, who testified that his reading of Cain’s chest x-ray at Providence	1
Memorial Hospital led to prompt treatment; and (6) the logical inference a jury is	2
able to draw that a delay in administering treatment was likely to result when crucial	3
diagnostic information was not timely communicated to Cain’s treating physicians.	4
{26} 	Defendants do not dispute the existence of this testimony in the summary	5
judgment record; they argue instead that having several experts and fact witnesses	6
testify to a chain of causation based on each expert’s specific expertise is not	7
sufficient to meet the requirement for expert medical testimony that to a reasonable	8
degree of medical probability, Dr. Reuter’s breach of the standard of care was a	9
proximate cause of Cain’s death. In other words, Defendants argue that a single	10
expert must opine as to both breach of the standard of care and causation. Although	11
the district court did not offer a full explanation of its ruling, its statement tying the	12
exclusion of Dr. Nisenbaum’s causation testimony directly to the court’s grant of	13
summary 	judgment 	appears 	to 	indicate 	that 	the 	district 	court 	agreed 	with	14
summary judgment here. Upon close review, we see no conflict between Dr. Sung’s
testimony that he was initially confident in his diagnosis of sepsis and his later
statement that, had he received a radiology report stating that Cain had an enlarged
heart, that report would have affected his diagnosis and treatment. See Rivera v.
Trujillo, 1999-NMCA-129, ¶¶ 8-12, 128 N.M. 106, 990 P.2d 219 (defining a “sham”
affidavit as one that directly contradicts unambiguous admissions previously made).
As to Defendants’ claim that Dr. Newell’s affidavit was untimely filed, Defendants
overlook the district court’s grant of permission for the parties to file supplemental
motions, responses, or replies after Dr. Nisenbaum was deposed. Dr. Newell’s
affidavit was thus timely filed during the permissible period for supplemental
evidence.

14
Defendants’ argument that anything other than a statement by a single medical	1
expert that Dr. Reuter breached the standard of care and that his negligence was the	2
proximate cause of the Plaintiffs’ injury to a reasonable degree of medical	3
probability is insufficient to defeat summary judgment. We do not agree.	4
{27} 	Defendants 	overlook 	two 	well-settled 	principles 	governing 	summary	5
judgment in New Mexico: first, in reviewing an order granting summary judgment,	6
“we examine the whole record,” Zamora v. St. Vincent Hosp., 2014-NMSC-035, ¶ 9,	7
335 P.3d 1243, and second, in doing so we view “the facts in the light most favorable	8
to the party opposing summary judgment and draw all reasonable inferences in	9
support of a trial on the merits.” Ridlington v. Contreras, 2022-NMSC-002, ¶ 13,	10
501 P.3d 444 (internal quotation marks and citation omitted).	11
{28} 	The principle that in evaluating whether summary judgment was appropriately	12
granted, we consider all of the evidence in the record and draw all reasonable	13
inferences in support of trial on the merits, requires us to reject Defendants’ claim	14
that a single witness must testify that to a reasonable degree of medical probability,	15
Dr. Reuter’s negligence was a cause of Cain’s death. A party responding to a motion	16
for summary judgment can put facts in dispute through multiple witnesses whose	17
testimony must be viewed together, with inferences drawn in the responding party’s	18
favor to form a complete picture. There is nothing unique about causation in a	19

15
medical malpractice case that requires a summary statement of all elements of	1
negligence by a single witness.	2
{29} 	Our Supreme Court’s opinion in 	Zamora, a medical malpractice case,	3
provides an example of our Supreme Court’s reliance on both factual testimony and	4
the testimony of multiple medical experts to reverse a grant of summary judgment	5
by the district court. 2014-NMSC-035, ¶¶ 4, 6-7. Our Supreme Court’s decision in	6
Zamora addresses whether, in the absence of a single expert witness attesting to both	7
breach of the standard of care and causation, the patient’s evidence was nonetheless	8
sufficient to create a genuine dispute of fact for trial as to whether a delay by a	9
radiologist in communicating a differential diagnosis of cancer contributed to the	10
patient’s loss of a better chance of survival. See id. ¶¶ 21, 23. As is the case here, the	11
patient in 	Zamora 	relied on affidavits from a series of experts and treating	12
physicians. See id. ¶ 23. A treating physician testified that she would have acted	13
differently with more information, just as Dr. Newell and Dr. Sung testified by	14
affidavit in this case that they would have acted differently. A medical expert witness	15
opined that delay in diagnosis and treatment of cancer would decrease the patient’s	16
chance for survival, just as Dr. Silver and Dr. McElhinney testified in this case as to	17
Cain’s chances of survival, and a radiologist testified about how a diagnosis is	18
generally communicated from a radiologist to a treating doctor, much like Dr.	19
Nisenbaum’s testimony in this case. Id. Our Supreme Court in Zamora held that not	20

16
every element of a medical malpractice claim requires expert testimony and that	1
some evidence, like whether a radiologist’s delay in informing a patient’s treating	2
doctor of a possible cancer diagnosis amounts to negligence, could be understood	3
without an expert opinion. Id. ¶ 26 (holding that expert testimony is required only	4
where the fact-finder is called upon to decide medical issues that are not in the realm	5
of ordinary understanding). Considering all of the evidence, both fact and expert	6
testimony together, our Supreme Court held that the affidavits and depositions raised	7
a genuine issue of material fact for trial as to both breach of the standard of care and	8
causation. Id. ¶¶ 23-25.	9
{30} 	Applying these principles of law, Plaintiffs’ evidence demonstrates genuine	10
issues of material fact as to whether Dr. Reuter’s reading of Cain’s chest x-ray was	11
a breach of the standard of care, and whether Dr. Reuter’s breach of the standard of	12
care proximately caused Cain’s injuries. See Blauwkamp, 1992-NMCA-048, ¶ 13.	13
Plaintiffs’ response was supported by the opinions of Dr. Nisenbaum as to the	14
standard of care and its breach; the opinions of Dr. McElhinney and Dr. Silver that	15
any amount of delay in giving prostaglandin, a lifesaving treatment, reduced Cain’s	16
chance of survival; the admissions of Cain’s treating physicians, Dr. Newell and Dr.	17
Sung, that their treatment of Cain would have been affected by the timely receipt of	18
a radiologist’s report informing them that Cain’s heart was enlarged; and finally, the	19
factual testimony describing the extended length of time before Cain was transported	20

17
to an El Paso hospital, where he was correctly diagnosed and treated. This factual	1
and expert testimony taken together is sufficient to show a genuine issue of fact for	2
trial as to each element necessary to establish Dr. Reuter’s negligence, including	3
causation.	4
{31} 	Summary judgment 	is 	not 	favored 	in New Mexico 	courts: 	“Summary	5
judgment is not appropriate where there is the slightest doubt as to the existence of	6
an issue of material fact.” Callaway v. N.M. Dep’t of Corr., 1994-NMCA-049, ¶ 7,	7
117 N.M. 637, 875 P.2d 393. The combined evidence in the summary judgment	8
record creates more than a slight doubt as to the existence of a dispute of fact about	9
whether Dr. Reuter’s breach of the standard of care was a proximate cause of Cain’s	10
death or loss of a chance of survival. Summary judgment therefore was not properly	11
granted.	12
III. 	Defendants’ Additional “Undisputed Facts” Do Not Change the Result	13
{32} 	Finally, Plaintiffs note that Defendants’ briefing refers to several additional	14
“undisputed facts” not included in their motion for summary judgment. Defendants	15
appear to argue on appeal an alternative ground for summary judgment not relied on	16
by the district court. We may consider a ground for affirming not relied on by the	17
district court so long as that argument does not “require us to look beyond the factual	18
allegations raised and considered in the district court and it would not be unfair to	19
the appellant.” TexasFile LLC v. Bd. of Cnty. Comm’rs of Cnty. of Lea, 2019-	20

18
NMCA-038, ¶ 10, 446 P.3d 1173. Since, in this case, the parties have addressed	1
Defendants’ additional “undisputed facts” in supplemental briefing in the district	2
court and in their briefs on appeal, we see no unfairness to appellant in proceeding	3
to address Defendants’ argument.	4
{33} 	Defendants argue that, assuming Plaintiffs have successfully established a	5
dispute of fact as to whether Dr. Reuter’s negligence delayed the diagnosis of Cain’s	6
congenital heart defect, Plaintiffs failed to establish that any delay in Cain’s	7
diagnosis delayed the provision of appropriate treatment. Defendants point to	8
evidence in the summary judgment record that shows that (1) CMC had no	9
echocardiogram equipment, which Defendants argue was essential to confirm a	10
differential 	diagnosis 	of 	a 	congenital 	heart 	defect 	before 	treatment 	with	11
prostaglandin could begin; (2) CMC had no prostaglandin on hand and so prompt	12
treatment could not have been provided; and (3) Cain’s transfer to a hospital that had	13
prostaglandin on hand could not have happened any more quickly than the more than	14
five hours it took to transport him to El Paso.	15
{34} 	We do not agree that any of Defendants’ three assertions are undisputed. All	16
three are rebutted by evidence sufficient to create a dispute of fact for trial. We note	17
that Plaintiffs do not have the burden of establishing with absolute certainty that a	18
timely differential diagnosis would have saved Cain’s life. See Alberts v. Schultz,	19
1999-NMSC-015, ¶ 30, 126 N.M. 807, 975 P.2d 1279 (holding that a plaintiff does	20

19
not have the burden of demonstrating absolute certainty of causation “because the	1
physician’s malpractice has made it impossible to know how the patient would have	2
fared in the absence of any negligence,” and that the defendant “should not be able	3
to avoid liability on the ground that it is uncertain what that outcome would have	4
been” (internal quotation marks and citation omitted)). At the summary judgment	5
stage of a proceeding, a plaintiff need only introduce evidence into the summary	6
judgment record sufficient to create a dispute of fact for trial. Rule 1-056(E) NMRA	7
(stating that the party opposing the motion for summary judgment must show “by	8
affidavits or . . . otherwise . . . that there is a genuine issue for trial”).	9
{35} 	In response to Defendants’ claim that a confirming echocardiogram was	10
required before prostaglandin treatment could be administered, Plaintiffs point to the	11
deposition testimony of their pediatric expert, Dr. Silver, which explicitly disputes	12
this contention. In Dr. Silver’s opinion, prostaglandin should be administered right	13
away if a doctor thinks there is “even a remote chance” of a congenital heart defect	14
in a newborn without waiting to confirm the diagnosis with further testing.	15
{36} 	Defendants’ claim that CMC had no prostaglandin on hand and, therefore, it	16
could not have been administered more quickly than the more than five hours it took	17
to transport Cain to El Paso is placed in dispute by the testimony of Dr. Sung’s expert	18
transport nurse, who testified that whenever her transport crew picked up a newborn,	19
they brought prostaglandin with them.	20

20
{37} 	Finally, there was no evidence supporting Defendants’ claim that Cain was	1
transported as quickly as possible, or that there were no other alternatives to waiting	2
for an ambulance if Cain’s transport had been viewed as an emergency. Defendants’	3
mere assertion, without citation to admissible evidence, is not sufficient to establish	4
a prima facie case for purposes of summary judgment. See Freeman v. Fairchild,	5
2018-NMSC-023, ¶ 16, 416 P.3d 264 (defining a prima facie case as one supported	6
by sufficient evidence “to raise a presumption of fact or establish the fact in question	7
unless rebutted” (internal quotation marks and citation omitted)).	8
{38} 	Defendants 	additional 	“undisputed 	facts” 	therefore 	do 	not 	provide 	an	9
alternative ground for a grant of summary judgment.	10
CONCLUSION	11
{39} 	For the reasons described above, we reverse the district court’s order granting	12
summary judgment in favor of Dr. Reuter and Online Radiology. We remand for	13
proceedings consistent with this opinion.	14
{40} 	IT IS SO ORDERED.	15
_________________________	16
JANE B. YOHALEM, Judge	17

WE CONCUR:
Megan P Duffy
MEGAN P. DUFFY, Judge
Katherine a. Wraz
KATHERINE A. WRAY, Judge
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