Grassie v. Roswell Hosp. Corp..

• Decision Date: 16 February 2011
• Docket Number: No. 28,050.,28,050.
• Parties: Phillip GRASSIE, as Personal Representative and Executor of the Estate of Walter Grassie, Plaintiff–Appellee,v.ROSWELL HOSPITAL CORPORATION, d/b/a Eastern New Mexico Medical Center, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

150 N.M. 283

258 P.3d 1075

2011 -NMCA- 024

Phillip GRASSIE, as Personal Representative and Executor of the Estate of Walter Grassie, Plaintiff–Appellee,

v.ROSWELL HOSPITAL CORPORATION, d/b/a Eastern New Mexico Medical Center, Defendant–Appellant.

No. 28,050.

Court of Appeals of New Mexico.

Nov. 30, 2010.Certiorari Denied, Feb. 16, 2011, Nos. 32,825/32,826.

Law Office of Stephen Durkovich, Stephen Durkovich, Garcia & Vargas, LLC, Ray M. Vargas, II, Santa Fe, NM, for Appellee.Montgomery & Andrews, PA, Stephen S. Hamilton, Jaime R. Kennedy, Santa Fe, NM, Sheehy, Serpe & Ware, P.C., Richard A. Sheehy, Houston, TX, for Appellant.

OPINION

BUSTAMANTE, Judge.

{1} Walter Grassie died less than two hours after he was admitted to the emergency room at Eastern New Mexico Medical Center (Hospital) in Roswell, New Mexico. Mr. Grassie's personal representative sued the Hospital asserting that (1) the emergency room medical staff was medically negligent; (2) the Hospital was negligent in allowing the treating physician to practice in its facility; and (3) the Hospital misrepresented its emergency room services to the public contrary to the New Mexico Unfair Practices Act (UPA), NMSA 1978, §§ 57–12–1 to –26 (1967, as amended through 2009). The district court allowed the three theories to be submitted to the jury. The jury awarded $1,986,931 in compensatory damages “[f]or the death of Walter Grassie” and $9,501.65 under the UPA. The jury also entered two separate punitive damages awards of $10,000,000 each, one premised on Plaintiff's medical malpractice count and the other based on the negligent hiring theory.

{2} The Hospital does not appeal the award of compensatory damages insofar as it is based on medical negligence. The Hospital does challenge the compensatory award to the extent it is based on the negligent hiring claim. The Hospital generally asserts that the punitive damages awards are not supported by substantial evidence and are excessive. More specifically, the Hospital asserts that (1) the punitive award flowing from any medical negligence cannot be grounded—as a factual or legal matter—on the cumulative conduct approach of Clay v. Ferrellgas, Inc., 118 N.M. 266, 881 P.2d 11 (1994); and (2) there is no evidence of a sufficiently culpable state of mind with regard to the negligent hiring theory to allow the claim to be submitted to the jury.

{3} We agree with the Hospital that the claim for negligent hiring should not have been submitted to the jury, and we reverse as to that portion of the verdict and judgment. We affirm the remainder of the judgment.

INTRODUCTION

{4} The issues in this case revolve around three areas of inquiry—medical malpractice, negligent hiring, and the UPA matter. Because each area involves different facts and legal rules, we will discuss each separately, providing pertinent factual and procedural summaries as appropriate.

I. MEDICAL MALPRACTICE

{5} Viewing the record in the light most favorable in support of the jury verdict, Mr. Grassie probably died of an aortic dissection, a process in which the inner wall of the aorta tears, allowing blood to be pushed in between the inner walls and the outer walls of the vessel. The effect is to very painfully rip apart the walls of the vessel as blood continues to be pumped into the break. A classic symptom of aortic dissection is a sudden onset of chest pain radiating to the back as the tear progresses. A “big risk factor” for aortic dissection is high blood pressure.

A. Emergency Room Treatment

{6} On August 19, 2005, Mr. Grassie was driving by himself from Ruidoso to Roswell when he began feeling pain in his chest. At about 3:40 p.m. the pain became severe enough that he pulled over and called 911. He also spoke with his wife. The ambulance reached him at approximately 4:10 p.m. The EMTs found Mr. Grassie sitting in his vehicle and fully conscious. Mr. Grassie reported chest pain radiating to his back which he rated as “9 out of 10” in terms of severity. The ambulance patient care record reflects that the first blood pressure reading obtained by the EMTs upon arrival was 260/120. This blood pressure level is “frighteningly high” or “scary high,” raising concerns that the patient could suffer a stroke, a heart attack or a rupture of the lining in the blood vessels.

{7} Within one minute of reaching Mr. Grassie, the EMTs gave him aspirin. Within six minutes of their arrival, the EMTs administered a sublingual nitroglycerin tablet to Mr. Grassie, followed by a second tablet seven minutes later, and a third five minutes after that. Mr. Grassie's blood pressure readings reflect a concomitant drop, reaching 170/100 by the time Mr. Grassie arrived at the Hospital's emergency room. Mr. Grassie was also administered four milligrams of morphine intravenously starting at 4:30 p.m. When he was triaged by Hospital personnel, Mr. Grassie reported his pain level at five out of ten.

{8} The ambulance patient care record reflects that the ambulance reached the emergency room at 4:32 p.m. The first hospital records—reflecting a time of 4:43 p.m.—are the Initial Assessment Form and the Emergency Department Chest Pain Nursing Assessment. The Initial Assessment Form reflects that Mr. Grassie's blood pressure was 216/96 at that point, and his reported pain was still at 5 out of 10. He was still reporting chest pain radiating to the back. The Initial Assessment Form also reflects that Mr. Grassie reported having “substernal and crushing” pain radiating to his jaw, neck, and arm, and “syncope [fainting] or near syncope, dyspnea [shortness of breath], dyspnea on exertion, orthopnea and nausea or vomiting.”

{9} Mr. Grassie was assigned a priority level of “2” or “urgent” rather than “emergent” under the Hospital triage criteria. A patient assessed as “urgent” was not required to be seen by a doctor for an hour after arrival in the emergency room. A patient assessed as “emergent” was required to be seen “[a]s soon as [the doctor] can get in the room.”

{10} The triage nurse assigned Mr. Grassie to the urgent or priority two status because she decided he was stable at least in part because “[Mr. Grassie] was able to answer my questions.” The triage nurse made the priority “2” assignment even though she was aware that, while Mr. Grassie's blood pressure and other symptoms had reacted positively to the EMTs treatment, with the passage of only a few minutes they were again increasing.

{11} The triage nurse thought Mr. Grassie was having a heart attack. As such, she entered “chest pain” into the computer, and the computer printed out a set of forms appropriate to that diagnosis. The forms are placed on a yellow clipboard with a room designation. The yellow clipboard alerts doctors and others that the patient has been designated “urgent.” The EMT report may or may not be included on the yellow clipboard, and the triage nurse could not recall if Mr. Grassie's EMT report was attached to his clipboard. The EMT report was not part of the Hospital's records. The information from the EMTs did get entered into the triage notes.

{12} The standard protocol for a heart attack is a regimen of morphine, nitroglycerin, oxygen, and aspirin. The triage nurse started oxygen under her own authority but could not administer any other medications without a doctor's order. Another part of the standard protocol is a chest x-ray and the triage nurse ordered one at 4:45 p.m. The chest x-ray was performed at 4:50 p.m. X–rays are digitally transferred to a “pack system” upon being taken. The triage nurse also ordered standard blood work indicated by the chest pain protocol. All of the diagnostic orders made by the triage nurse were reflected on the medical record so they would be accessible to the doctor.

{13} The triage nurse had worked at the Hospital since 1998. The day Mr. Grassie came to the Hospital was the first day the nurse had worked with the treating doctor—Theodore Collins. She had not had any orientation sessions with him before he appeared to work that day, and she was not aware of any orientation programs for doctors and nurses in the emergency room.

{14} Neither the triage nurse nor the treating nurse even spoke to Dr. Collins about starting any medications or about reviewing Mr. Grassie's x-rays. They felt it was not their responsibility to do so. And neither of them even brought Mr. Grassie's blood pressure readings to Dr. Collins' attention. The treating nurse stated: “The physician can look at the monitor as easy as I can, sir.”

{15} There are four particularly salient aspects of the treating nurse's testimony with regard to Mr. Grassie's blood pressure readings. First, he noted blood pressure readings for Mr. Grassie at least four times before Mr. Grassie “coded.” There is a question, however, whether they were charted contemporaneously or after Mr. Grassie died. If they were not charted contemporaneously, the treating doctor would not have had the readings history available to him. Second, even though the blood pressure readings were “scary high” (224/106, 216/99, 218/112, 224/108), the treating nurse never reported them to the treating physician, Dr. Collins. Third, even though the monitoring equipment was set to issue an audible alarm when readings exceeded 170, the treating nurse could not recall the alarm ever sounding. The alarm feature could be turned off by the nursing staff. Fourth, the treating nurse did not recall a blood pressure reading of 280/146 even though the Grassie family testified they saw such a reading.

{16} The treating nurse was charged with administering medications per doctor orders. The Hospital record does not reflect when the order for medication was entered or given. The treating nurse could not recall when or how he received the order for medication, and thus the time span from the time the order was received to the time the nitroglycerin drip was started could range anywhere from forty-three minutes to twenty minutes.

{17} In either...