Blauwkamp v. University of New Mexico Hosp.

• Decision Date: 28 April 1992
• Docket Number: No. 11979,11979
• Citation: 1992 NMCA 48,836 P.2d 1249,114 N.M. 228
• Parties: Roland BLAUWKAMP, Sharon Blauwkamp, Individually and as Next Friend of Bria Blauwkamp, a Minor, Plaintiffs-Appellants, v. UNIVERSITY OF NEW MEXICO HOSPITAL, Eilene Lujan, M.D., Dr. John Does 1-3 and the Family Practice Center of the University of New Mexico Hospital, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 1249

836 P.2d 1249

114 N.M. 228

Roland BLAUWKAMP, Sharon Blauwkamp, Individually and as Next Friend of Bria Blauwkamp, a Minor Plaintiffs-Appellants, v. UNIVERSITY OF NEW MEXICO HOSPITAL, Eilene Lujan, M.D., Dr John Does 1-3 and the Family Practice Center of the University of New Mexico Hospital Defendants-Appellees.

No. 11979.

Court of Appeals of New Mexico.

April 28, 1992.

Certiorari Denied June 24, 1992.

[114 N.M. 229] Louis Marjon, Clark Varnell, and Nancy L. Garner, Albuquerque, for plaintiffs-appellants.

Carl J. Butkus, Civerolo, Hansen & Wolf, P.A., Albuquerque, for defendants-appellees.

OPINION

DONNELLY, Judge.

The previous opinion of the court, filed on March 27, 1992, is withdrawn and the following is substituted.

Plaintiffs appeal from an order granting Defendants' motion for summary judgment and dismissing their complaint alleging medical malpractice. The sole issue on appeal is whether the trial court erred in granting Defendants' motion for summary judgment. We reverse and remand.

FACTS

On May 9, 1988, Plaintiff Sharon Blauwkamp, acting individually and on behalf of her daughter, Bria, filed a complaint alleging negligence on the part of Defendants during her pregnancy and the birth of her minor child on June 24, 1981. Plaintiff alleged the child suffered severe brain damage resulting from Defendants' negligent provision of prenatal care, and their negligent acts and omissions at the time of the child's birth. Thereafter, on November 2, 1988, Plaintiff moved for voluntary dismissal of the complaint, without prejudice, asserting that she desired to obtain co-counsel and she had not yet obtained an expert medical witness to support her malpractice claims. The motion was granted on November 15, 1988. Less than a month later, on December 12, 1988, Sharon joined by her husband, Roland Blauwkamp, filed a new complaint on behalf of themselves, individually, and on behalf of their daughter, against Defendants, setting forth similar claims to those contained in the first action.

On August 11, 1989, Defendants filed a "Motion to Dismiss or, in the Alternative, for Summary Judgment" alleging, among other things, that Plaintiffs' allegations of malpractice could not be supported by expert medical testimony. Defendants' motion was accompanied by several attachments, including a copy of the original complaint, a copy of the transcript of the November 15, 1988 hearing on the motion for voluntary dismissal of their initial complaint, the order of dismissal without prejudice entered in the first lawsuit, and a copy of "Interrogatories # 1" served in the second action. The interrogatories sought information regarding the names of any expert witnesses Plaintiffs expected to call at trial, the subject matter upon which the experts would testify, the substance of the facts and opinions to which they would testify, and a summary of the grounds for each opinion. Although Plaintiffs failed to timely respond to the interrogatories, asserting that they were never received, none of the parties have argued on appeal that the basis for the court's order of dismissal was premised on Plaintiffs' failure to comply with discovery.

Defendants' motion for summary judgment was not supported by any affidavits or depositions of medical experts setting forth their opinions negating Plaintiffs' claims of medical malpractice. However, before requesting summary judgment, Defendants answered the complaint, denying both negligence and proximate cause and raising affirmative defenses, including a defense asserting that if Plaintiffs' representations to the court at the time they voluntarily dismissed their initial complaint "have not been complied with, dismissal [of the second suit] should be awarded for failure to comply with [those] conditions."

Plaintiffs responded to the motion and offered affidavits of two physicians, Dr. Stanley M. Warner and Dr. Alexander D. Kovacs. A copy of Dr. Kovacs' notarized affidavit was not filed until October 20, 1989, one day after the trial court mailed a letter to counsel notifying them that Defendants' motion for summary judgment would be granted. The affidavit of Dr. Warner set forth his opinion, stating, among other things, that acts and omissions of Defendants fell below the required standard of medical care.

Dr. Warner's affidavit also recited that the failure of UNM Hospital, through its agents and employees, to perform a timely cesarean section and respond to an emergency situation was a proximate cause of the serious injuries to Bria Blauwkamp. His affidavit further stated that the treatment rendered to Sharon Blauwkamp by the Family Practice Center and Eilene Lujan, M.D., departed from the standard of care in that:

A. According to Dr. Lujan's office notes of the prenatal visits, on July 24, 1981, Sharon Blauwkamp was 2 1/2 to 3 weeks overdue. It is well known in the literature that the placenta can begin deteriorating after term (40 weeks gestation), and that the risk of perinatal and neonatal morbidity increases with the passage of each week past term gestation. It is my opinion that since Sharon Blauwkamp was a high risk pregnancy, she should have had appropriate antenatal testing. Once she had reached term, it is my opinion that her prenatal visits should have increased to at least twice weekly. In addition, more aggressive antenatal monitoring could have been done besides the non-stress test.

B. It is my opinion that Sharon Blauwkamp was far in excess of her due date, perhaps as much as 4 to 6 weeks overdue and that an obstetrical consultation should have been obtained in the two weeks or so preceding Bria Blauwkamp's birth. It is my opinion that the failure to monitor Sharon Blauwkamp more closely antenatally was a proximate cause of Bria Blauwkamp's serious injuries, and that this failure by the Family Practice Center constituted a departure from the applicable standard of care.

Following a hearing, the trial court granted Defendants' motion for summary judgment, indicating, inter alia, that Dr. Warner's affidavit was insufficient to rebut Defendants' motion for summary judgment and did "not meet the standards of a medical expert as * * * required by New Mexico law."

STANDARD OF REVIEW

In reviewing an appeal from an order granting summary judgment, our purpose is not to rule on issues of fact, but to determine if material disputed issues of fact exist. Pharmaseal Lab., Inc. v. Goffe, 90 N.M. 753, 568 P.2d 589 (1977); Trujillo v. Puro, 101 N.M. 408, 683 P.2d 963 (Ct.App.1984). In conducting our review we look to "whether defendants made a prima facie case that no genuine issue of material fact existed and, if so, whether plaintiff[s] rebutted the prima facie case." DiMatteo v. County of Dona Ana, 109 N.M. 374, 379, 785 P.2d 285, 290 (Ct.App.1989).

Summary judgment is a drastic remedial tool which demands the exercise of caution in its application. Eavenson v. Lewis Means, Inc., 105 N.M. 161, 730 P.2d 464 (1986); Pharmaseal Lab., Inc. v. Goffe. It is not a substitute for trial where material disputed factual issues are shown to exist. Ponce v. Butts, 104 N.M. 280, 720 P.2d 315 (Ct.App.1986). Where an appeal is taken from an order granting summary judgment, the reviewing court will assess the record in the light most favorable to support a trial on the merits. Eavenson v. Lewis Means, Inc.; North v. Public Serv. Co., 97 N.M. 406, 640 P.2d 512 (Ct.App.1982).

DID DEFENDANTS MAKE A PRIMA FACIE SHOWING?

Plaintiffs argue on appeal that the trial court should not have assessed the sufficiency of their experts' affidavits because Defendants failed to meet their initial burden establishing a prima facie right to summary judgment, and failed to support their motion with documentary or other admissible evidence indicating Plaintiffs' inability to establish the essential elements of their claims.

Defendants' motion for summary judgment was predicated in part on Plaintiffs' statements at the hearing on their motion to voluntarily dismiss their first action, that they did not have an expert witness to corroborate their claim of medical malpractice and needed to obtain additional counsel to assist in prosecuting their claims. Although Defendants filed answers to Plaintiffs' complaint denying any negligence on their part, they did not accompany their motion for summary judgment with an affidavit or other sworn testimony of a medical expert affirmatively stating that Defendants had rendered the required standard of care to the child and her mother or asserting that any injuries suffered by Plaintiffs were not proximately caused by Defendants. On the face of such record, were Defendants required to submit the affidavit of an expert medical witness negating negligence on their part in order to make a prima facie showing of entitlement to relief? In answering this question, we first examine the elements underlying a claim of medical malpractice.

In order to prove medical malpractice, a plaintiff has the burden of showing that (1) the defendant owed the plaintiff a duty recognized by law; (2) the defendant breached the duty by departing from the proper standard of medical practice recognized in the community; and (3) the acts or omissions complained of proximately caused the plaintiff's injuries. See SCRA 1986, 13-1101 (Repl.1991); see also Cervantes v. Forbis, 73 N.M. 445, 389 P.2d 210 (1964); Schmidt v. St. Joseph's Hosp., 105 N.M. 681, 736 P.2d 135 (Ct.App.1987); Smith v. Klebanoff, 84 N.M. 50, 499 P.2d 368 (Ct.App.1972).

A defendant seeking summary judgment in a medical malpractice action bears the initial burden of negating at least one of the essential elements upon which the plaintiff's claims are grounded. Perez v. Las Vegas Med. Ctr., 107 Nev. 1, 805 P.2d 589 (1991). We agree with the court below that Defendants satisfied this initial burden. In order to satisfy the threshold requirement of making a prima facie showing of entitlement to summary judgment, SCRA...