1999 -NMSC- 15, Alberts v. Schultz

• Decision Date: 25 February 1999
• Docket Number: No. 24936,24936
• Citation: 126 N.M. 807,1999 NMSC 15,975 P.2d 1279
• Parties: 1999 -NMSC- 15 Dee ALBERTS and Mildred Alberts, husband and wife, Plaintiffs-Appellants, v. Russell C. SCHULTZ, M.D., and Gopal Reddy, M.D., Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 1279

975 P.2d 1279

1999 -NMSC- 15

Dee ALBERTS and Mildred Alberts, husband and wife, Plaintiffs-Appellants, v. Russell C. SCHULTZ, M.D., and Gopal Reddy, M.D., Defendants-Appellees.

No. 24936.

Supreme Court of New Mexico.

Feb. 25, 1999.

Rehearing Denied March 25, 1999.

Toulouse & Associates, P.A., Charlotte Mary Toulouse, John G. Travers, Albuquerque, for Appellants.

Beitler Law Firm, P.A., Rick Beitler, Marcy Baysinger, Albuquerque, Miller, Stratvert & Torgenson, P.A., Alice Tomlinson Lorenz, Robin A. Goble, Deborah A. Solove, Albuquerque, for Appellees.

Carpenter & Chavez, Ltd., William H. Carpenter, Albuquerque, Michael B. Browde, Albuquerque, for Amicus Curiae New Mexico Trial Lawyers Association.

Rodey, Dickason, Sloan, Akin & Robb, P.A., Charles K. Purcell, Albuquerque, for Amicus Curiae New Mexico Medical Society.

OPINION

FRANCHINI, Chief J.

¶1 Dee and Mildred Alberts, husband and wife, brought a medical malpractice action for the amputation of Dee's right leg below the knee. The trial court certified the following question for interlocutory appeal: "Should New Mexico recognize a cause of action for the increased risk of harm to a patient as a result of a physician's negligence, and if so, should this doctrine apply to the facts of this case[?]" Alberts v. Schultz, No. CV 95-008040, slip op. at 2 (N.M.District.Ct. Feb. 17, 1997). We do not believe this theory of recovery--to which we apply the terms "loss of chance" or "lost chance"--should be deemed, as the trial court implies, a new "cause of action." We conclude, however, that it is appropriate for New Mexico to recognize this claim. Nevertheless, after applying the loss-of-chance theory to the facts of this case, we conclude that the Alberts failed to prove causation.

I. FACTS

¶2 Dee had a history of peripheral vascular disease, which is a chronic progressive narrowing of the blood vessels which restricts the flow of blood to a particular area of the body. On July 14, 1992, he went to his primary care physician, Dr. Russell C. Schultz, with symptoms including severe pain in his right foot. He described pain in the absence of any activity or exercise, an affliction known as "rest pain," which is an acknowledged sign of impending gangrene that could lead to the amputation of the affected limb. Dr. Schultz noted that Dee's right foot was a "dusky" color. However, Dr. Schultz did not order an arteriogram, a diagnostic test that assists in evaluating the condition of blood vessels, and he did not conduct a motor sensory examination.

¶3 Dee specifically requested a referral to Dr. Gopal Reddy, a vascular surgeon who had previously examined his condition. Dr. Schultz apparently gave Dee the impression that Dr. Reddy was on vacation and that Dee would have to await his return. The Alberts allege, and Dr. Schultz disputes, that he declined to refer Dee to a specialist other than Dr. Reddy, claiming the paperwork would be excessive.

¶4 It was not until thirteen days later, on July 27, 1992, that Dee saw Dr. Reddy. Upon seeing the condition of Dee's right leg, Dr. Reddy immediately sent him to the hospital. That same day, following an arteriogram, several procedures were performed unsuccessfully. The following day, bypass surgery was attempted. Dee's leg showed no improvement and on August 1, 1992, his right leg was amputated below the knee.

¶5 The Alberts brought a medical malpractice action on September 21, 1995, against Dr. Schultz and Dr. Reddy for negligence resulting in the amputation of Dee's right leg below the knee. They claimed Dr. Schultz did not advise Dee of the true nature of his condition, neglected to perform the appropriate examinations on his leg, and failed to make a timely referral to a specialist. They further asserted that Dr. Reddy had not properly warned Dee about his condition and had failed to perform the appropriate diagnostic tests and treatments. The Alberts argued that the thirteen-day delay before Dr. Reddy's intervention decreased the probability that the leg could be saved.

¶6 The Alberts' case was supported by the testimony of Dr. Max Carlton Hutton, a vascular surgeon. Dr. Hutton, through an affidavit and a deposition, testified that in his opinion Dr. Schultz should have performed motor and sensory exams and should have immediately ordered an arteriogram on Dee when he saw him on July 14, and should not have allowed nearly two weeks to pass before Dee could be seen by a vascular surgeon. Dr. Reddy, according to Dr. Hutton, was negligent in not performing motor and sensory exams, and in not doing a bypass immediately on July 27. Dr. Hutton noted that in cases such as Dee's, even the passage of six hours can make the difference between success and failure.

¶7 Dr. Hutton's testimony was based on the presumption Dee's leg could have been saved if specific arteries in his leg were suitable candidates for bypass surgery. However, in his testimony, he could not establish this presumption with certainty because the medical records were incomplete regarding the specific arteries in question. Dr. Hutton testified that "[t]he only thing we know is that at least by the point that Dr. Schultz saw the patient, we had crossed the line in non-limb-threatening ischemia to potentially limb-threatening ischemia." Ischemia is the lack of blood flow through vessels. However, Dr. Hutton could not pinpoint a time when the ischemia became irreversible, nor could he pinpoint a time when earlier intervention would have changed the outcome. In Dr. Hutton's opinion "the probability that Mr. Alberts' leg could have been saved decreased significantly," because of the inaction of both physicians. Nevertheless, Dr. Hutton testified that he could not state to a reasonable degree of medical probability that immediate use of the motor and sensory exams, the arteriogram, and the bypass would have increased the chances of saving Dee's leg.

¶8 The trial court granted partial summary judgment in favor of the defendants, because the Alberts could not establish to a reasonable degree of medical probability that the physicians' conduct proximately caused the amputation of Dee's leg. It denied the defendants' motions for summary judgment regarding the Alberts' claims for pain and suffering. However, the trial court found that there was an issue of fact about whether the allegedly negligent conduct of either or both defendants may have increased the risk that Dee's leg would have to be amputated. The trial court certified that issue for interlocutory appeal. As phrased by the trial court, this issue poses two questions: (1) whether New Mexico should recognize a patient's claim that, in the treatment of a medical condition, a health giver's negligence has resulted in the loss of a chance for a better result; and (2) if New Mexico does recognize loss of chance, whether the Alberts could recover under such claim. The Court of Appeals certified the case to us, having determined that it involves issues of substantial public interest. See NMSA 1978, § 34-5-14(C)(2) (1972). The New Mexico Trial Lawyers Association and the New Mexico Medical Society sought, and were permitted by this Court, to participate as amici curiae.

¶9 Prior to our publication of this opinion, the Court of Appeals, on its own initiative, issued Baer v. Regents of the Univ. of Cal., --- N.M. ----, 972 P.2d 9 (App.1998), in which it expressly adopted the lost-chance concept that we were asked to evaluate in this opinion. Because we find the Court of Appeals' thoughtful analysis in Baer to be persuasive, we now affirm the adoption of the lost-chance theory in New Mexico. In response to the second part of the question certified, the facts of the case at bar do not support a lost-chance claim.

II. LOSS OF CHANCE

¶10 As just mentioned, our Court of Appeals recently discussed in detail the lost-chance theory in Baer. In that case, the Court persuasively sets forth the equitable reasons for adopting this theory as well as its historical background. Id. at ---- - ----, 972 P.2d at 11-15. In this opinion, for the benefit of the bench and bar, we will take the opportunity to set forth more explicitly the parameters, elements, and standards of proof for this claim.

¶11 Generally, the fact pattern in a lost-chance claim begins when a patient comes to a health giver with a particular medical complaint. We will refer to "[t]he illness, disorder, discomfort, pain, fear, etc. that is the main reason for the patient's seeking medical help" as the "presenting problem." See 5 J.E. Schmidt, Att'ys' Dictionary of Med. (MB), at P-426 (1998). The problem may be a sudden injury or illness, or it may be a malady that the patient has suffered over a long period of time. See, e.g., Delaney v. Cade, 255 Kan. 199, 873 P.2d 175, 177-83 (1994) (sudden injury; answering certified question in the affirmative, approving loss-of-chance claim for victim who claimed she suffered permanent paralysis after automobile accident, because of delay in transferring her to a facility that was equipped to properly treat her injuries); Wendland v. Sparks, 574 N.W.2d 327, 328-33 (Iowa 1998) (long term illness; even though patient had only 10% chance of leaving hospital, permitting loss-of-chance claim for patient being treated for several ailments including cancer of the plasma cells, and who suffered cardiorespiratory arrest while in hospital and was not revived by physician). A claim for loss of chance is predicated upon the negligent denial by a healthcare provider of the most effective therapy for a patient's presenting medical problem. The negligence may be found in such misconduct as an incorrect diagnosis, the application of inappropriate treatments, or the failure to timely provide the proper treatment. See, e.g., Boryla v. Pash, 960 P.2d 123, 127 (Colo.1998) (incorrect diagnosis permitted further growth of tumor); Martin v. East Jefferson Gen. Hosp., 582 So.2d 1272, 1278 (La.1991) (improper treatment destroyed...