Chamberland v. Roswell Osteopathic Clinic

• Decision Date: 21 June 2001
• Docket Number: No. 20,701.,20,701.
• Parties: Johnny CHAMBERLAND and Laquita Chamberland, Individually and as Husband and Wife, Plaintiffs-Appellants, v. ROSWELL OSTEOPATHIC CLINIC, INC., Manual Fachado, D.O., and Patrick Kelley, D.O., jointly and severally, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

27 P.3d 1019

130 N.M. 532

Johnny CHAMBERLAND and Laquita Chamberland, Individually and as Husband and Wife, Plaintiffs-Appellants, v. ROSWELL OSTEOPATHIC CLINIC, INC., Manual Fachado, D.O., and Patrick Kelley, D.O., jointly and severally, Defendants-Appellees.

No. 20,701.

Court of Appeals of New Mexico.

June 21, 2001.

Certiorari Denied August 9, 2001.

Kevin J. Hanratty, Hanratty Law Firm, Artesia, NM, L. Christopher Breard, Breard Law Firm, Ltd., Gulfport, MS, for Appellants.

Alice Tomlinson Lorenz, Gregory W. Chase, Miller, Stratvert & Torgerson, P.A., Albuquerque, NM, for Appellees.

Certiorari Denied, No. 27,030, August 9, 2001.

OPINION

BOSSON, Chief Judge.

{1} In this appeal we discuss the elements of independent intervening cause as an affirmative defense and the evidence necessary to justify a jury instruction on it, particularly in light of the limited role our Supreme Court has assigned to independent intervening cause after Torres v. El Paso Elec. Co., 1999-NMSC-029, 127 N.M. 729, 987 P.2d 386. We also discuss the appropriate remedy when the independent intervening cause instruction is given in error. We hold that the jury in this case should not have been instructed on independent intervening cause, and we reverse the defense verdict and remand for a new trial.

BACKGROUND

{2} After experiencing abdominal pain for a day, Plaintiff Johnny Chamberland (Johnny) went to the Roswell Osteopathic Clinic (Clinic) on Saturday, October 21, 1995, to see a doctor. Johnny was seen by Dr. Kelley who physically examined him and had a blood test and urinalysis performed. The lab results revealed that Johnny's blood had an elevated white blood cell count indicating the presence of an acute infection. The urinalysis revealed the presence of blood and protein, abnormal conditions for males. Because Johnny did not have any of the classic symptoms of appendicitis, such as tenderness in the abdomen, guarding, decreased bowel sounds, nausea or vomiting, Dr. Kelley concluded that Johnny had a urinary tract infection. He prescribed antibiotics and painkillers to treat the infection, and sent Johnny home. However, Dr. Kelley felt that Johnny needed to be observed closely, and asked him to return to the Clinic to have his blood and urine tested again. A repeat visit with Dr. Kelley followed three days later.

{3} After continuing to experience persistent discomfort, Johnny returned to the Clinic on the following Saturday and was seen by Dr. Fachado. Dr. Fachado had another urinalysis and blood test performed. Although the urinalysis was "[c]ompletely normal," Johnny's white blood cell count was higher than ever. Dr. Fachado's examination revealed that Johnny's prostate gland was inflamed, and he diagnosed Johnny's condition as prostatitis. Dr. Fachado changed Johnny's prescription to an antibiotic specifically for prostatitis.

{4} Over the next few days Johnny was seen by four other doctors unaffiliated with the Clinic. None of them observed the classic symptoms of appendicitis. Ultimately, Dr. Fachado referred Johnny to Dr. Kiker, a urologist, for a more comprehensive diagnosis. The classic symptoms of appendicitis were observed on October 31, 1995, ten days after Johnny's initial visit to the Clinic, and Johnny was then referred to a surgeon for removal of his appendix. That surgery revealed that Johnny's appendix had already ruptured, creating a large abscess. The abscess was so big that the surgeon opted not to remove what remained of the appendix, choosing instead only to drain the pus. The surgeon drained over 400 cc's of pus from the abscess in Johnny's abdomen.

{5} Johnny and his wife, Laquita, sued Drs. Kelley and Fachado alleging a failure to examine, diagnose, and treat Johnny in a manner conforming to reasonable medical standards. They sued the Clinic alleging inadequate record keeping pertaining to Dr. Kelley's examinations and observations. The Chamberlands alleged that the negligence of all three Defendants caused Johnny's appendicitis to go untreated, which, in turn, caused him to suffer the abscess and other injuries and economic consequences that ultimately resulted.

{6} At trial, the Chamberlands produced expert medical testimony that Johnny likely had appendicitis before he initially visited the Clinic, and his appendix had probably ruptured on the day he arrived there. According to this medical expert, the abscess drained by the surgeon was the direct result of Johnny's ruptured appendix, and it could have been avoided with timely surgery. As it turned out, Johnny did not present earlier with classic appendicitis symptoms because his appendix was retrocecal, meaning that the appendix was pointing towards his back, not his front, as is usually the case.

{7} Notwithstanding the positioning of Johnny's appendix and the absence of classic symptoms, the medical expert testified that if the Clinic's doctors had properly taken Johnny's medical history and performed a physical examination in a manner consistent with reasonable medical standards, Johnny's appendicitis would have been timely diagnosed and removed. The ruptured appendix caused Johnny numerous secondary infections including sepsis and adult respiratory distress, and at least two ileostomys, resulting in pain and suffering plus over $150,000 in medical bills.

{8} Defendants produced expert medical testimony that they were not negligent in examining, diagnosing, and treating Johnny. Specifically, Defendants produced evidence that the appendicitis was not reasonably detectable at the times they examined Johnny and made entries in the medical records because the classic symptoms were absent. According to Defendants' evidence, a reasonably skilled and careful physician could not have determined that Johnny needed surgery until October 31, 1995, when Johnny first exhibited classic appendicitis symptoms.

{9} After all the evidence was presented to the jury, the trial court sent the jury home and heard lengthy legal argument on the jury instructions. Over the Chamberlands' objection, defense counsel requested and received a jury instruction on independent intervening cause.

{10} Soon after the jury had been charged and its deliberations were underway, the jury foreman sent out a note requesting a "[d]efinition of the word `proximate,' either from Black's Law Dictionary or Webster's New Collegiate Dictionary." After the trial court consulted with counsel, the jury was told to refer to the court's instructions to resolve the question. Approximately one-half hour later the jury returned the special verdict form. The jury answered "Yes" to the first question on the special verdict form, "Was any Defendant medically negligent?" In response to the next question, "Was any medical negligence of a Defendant a proximate cause of Johnny Chamberland's injuries and damages?" the jury answered "No."

DISCUSSION

{11} On appeal, the Chamberlands argue that the trial court committed reversible error when it instructed the jury on the issue of independent intervening cause because neither Defendants' evidence nor their legal theory supported the instruction. The Chamberlands rely extensively on Torres, 1999-NMSC-029, 127 N.M. 729, 987 P.2d 386, a Supreme Court opinion issued just twelve days after the trial in this case, that dramatically limits the application of the independent intervening cause instruction under New Mexico tort law. We review jury instructions de novo "to determine whether they correctly state the law and are supported by the evidence introduced at trial." Gonzales v. N.M. Dep't of Health, 2000-NMSC-029, ¶ 28, 129 N.M. 586, 11 P.3d 550.

{12} At trial, Defendants urged the independent intervening cause instruction on the court over the Chamberlands' objection. Defendants argued that while Johnny was in their care, he only showed the symptoms of a urinary tract infection,¹ not appendicitis. According to Defendants, Johnny's symptoms did not shift to appendicitis until days after Dr. Fachado last saw Johnny and referred him to a specialist. Because the appendicitis was not symptomatic until after Defendants had completed their examinations, Defendants argued that the appendicitis was an intervening cause of Johnny's injuries that arose independently of the care provided by Defendants.

{13} The Chamberlands voiced their disagreement to the court. As they saw it, Defendants were merely arguing lack of causation, not an independent intervening cause, which entitled Defendants to the basic instruction on proximate cause, UJI 13-305 NMRA 2001, unadorned by any reference to independent intervening cause and without a separate instruction on that issue. The Chamberlands failed to persuade the trial court, and the court gave the additional instruction that frames the issue now before us on appeal.

{14} The Uniform Jury Instructions define independent intervening cause as follows: "An independent intervening cause interrupts and turns aside a course of events and produces that which was not foreseeable as a result of an earlier act or omission." UJI 13-306 NMRA 2001; see also Thompson v. Anderman, 59 N.M. 400, 411-12, 285 P.2d 507, 514 (1955). When supported by evidence, the theory of an independent intervening cause initially appears in the proximate cause instruction, as a cause "which in a natural and continuous sequence [unbroken by an independent intervening cause] produces the injury, and without which the injury would not have occurred." UJI 13-305 (providing for the optional, bracketed language in cases supporting independent intervening cause). The inclusion of independent intervening cause in UJI 13-305 and its accompanying definition in UJI 13-306 "are intended to clarify the meaning of proximate cause in cases in which there is evidence from which reasonable minds could differ in deciding whether an unforeseeable cause has broken the chain of causation." Torres, 1999-NMSC-029, ¶ 17, 127 N.M. 729, 987 P.2d 386.

{15} In Torres, our ...