Cronin v. Sierra Medical Center

• Decision Date: 19 June 2000
• Docket Number: No. 19,895.,19,895.
• Citation: 10 P.3d 845,129 N.M. 521,2000 NMCA 82
• Parties: Kenneth D. CRONIN and Brigitte Cronin, Husband and Wife, Plaintiffs-Appellants, v. SIERRA MEDICAL CENTER, El Paso Southwestern Cardiovascular Associates, P.A., Kenneth-Eisenburg, M.D., Jerry W. Miller, M.D., Felice L. Bruno, M.D., and Joe Kidd, M.D., Defendants-Appellees, and Ralph Paone, M.D., Mountain Shadows Home Health Care Services, and H.W. Handy, M.D., Defendants.
• Court: Court of Appeals of New Mexico

10 P.3d 845

129 N.M. 521

2000 NMCA 82

Kenneth D. CRONIN and Brigitte Cronin, Husband and Wife, Plaintiffs-Appellants, v. SIERRA MEDICAL CENTER, El Paso Southwestern Cardiovascular Associates, P.A., Kenneth-Eisenburg, M.D., Jerry W. Miller, M.D., Felice L. Bruno, M.D., and Joe Kidd, M.D., Defendants-Appellees, and Ralph Paone, M.D., Mountain Shadows Home Health Care Services, and H.W. Handy, M.D., Defendants.

No. 19,895.

Court of Appeals of New Mexico.

June 19, 2000.

Certiorari Denied September 13, 2000.

Cynthia A. Fry, Albuquerque, NM, Jose R. Coronado, Law Offices of Jose R. Coronado, Las Cruces, NM, for Appellants.

William V. Ballew, III, Paul F. Grajeda, Scott, Hulse, Marshall, Feuille, Finger & Thurmond, P.C., El Paso, TX, Kathleen C. Horan Hatch, Allen & Shepherd, Albuquerque, NM, for Appellees El Paso Southwestern Cardiovascular Associates, P.A., Eisenberg, Bruno, & Kidd.

Larry W. Hicks, R. Duane Frizell, Hicks & Lucky, P.C., El Paso, TX, for Appellee Miller.

Cynthia S. Anderson, R. Shawn Oller, Kemp, Smith, Duncan & Hammond, P.C., El Paso, TX, for Appellee Sierra Medical Center.

Certiorari Denied, No. 26,515, September 13, 2000.

OPINION

PICKARD, Chief Judge.

{1} Kenneth Cronin and Brigitte Cronin (Plaintiffs) filed a medical malpractice lawsuit against Sierra Medical Center, El Paso Southwestern Cardiovascular Associates, P.A., Dr. Kenneth Eisenberg, Dr. Felice Bruno, Dr. Jerry Miller, and Dr. Joe Kidd (Defendants) after Mr. Cronin (Patient) experienced certain health complications arising out of heart bypass surgery. Plaintiffs, who reside in New Mexico, traveled to Texas so that Patient could undergo the surgery. Dr. Eisenberg performed the surgery at Sierra Medical Center (Hospital). The surgery was successful; however, Patient developed a staphylococcus aureus infection in his surgical wound. Dr. Eisenberg asked Dr. Bruno and Dr. Miller to help him treat the staph infection. Both doctors agreed to do so. Dr. Bruno performed mediastinal debridement and sternal rewiring, and Dr. Miller prescribed certain antibiotics. In the course of his antibiotic treatment, Patient experienced vertigo and loss of equilibrium.

{2} Plaintiffs subsequently formed the belief that Patient's health complications were caused by Dr. Miller's failure to adequately monitor the administration of the antibiotic therapy, so they filed suit. In their complaint, Plaintiffs asserted claims of medical negligence, battery, negligent infliction of emotional distress, and loss of consortium. Plaintiffs claimed they were entitled to damages because Defendants knew or should have known that the antibiotics prescribed by Dr. Miller can cause bilateral weakness in the inner ear labyrinthine systems, which results in vertigo and loss of equilibrium, and yet they allowed Patient to take the antibiotics until he sustained severe and permanent damage.

{3} Defendants responded to Plaintiffs' complaint by filing motions to dismiss for lack of personal jurisdiction. In their motions, Defendants claimed the trial court lacked the authority to assert personal jurisdiction over them because (1) they did not transact business in New Mexico, (2) they did not commit a tort in New Mexico, and (3) they lack minimum contacts with New Mexico such that due process considerations would be offended if the trial court were to assert personal jurisdiction over them. The trial court accepted Defendants' arguments and dismissed Plaintiffs' complaint without prejudice. Plaintiffs now appeal.

{4} For the reasons stated more fully below, we agree with the trial court that it lacked personal jurisdiction over El Paso Southwestern Cardiovascular Associates, P.A., Dr. Eisenberg, Dr. Bruno, Dr. Miller, and Dr. Kidd (Non-Hospital Defendants). Plaintiffs did not claim at the trial court level that Non-Hospital Defendants transacted business in New Mexico, so we limit our discussion to whether the trial court could assert jurisdiction over these defendants under the "commission of a tortious act" prong of our analysis. Upon doing so, we conclude that even if Non-Hospital Defendants committed a tort in New Mexico, the trial court still lacked the authority to assert personal jurisdiction over them because they lack minimum contacts with New Mexico and therefore did not commit a tortious act under our long-arm statute. However, we disagree with the trial court that it lacked personal jurisdiction over Hospital because Plaintiffs' causes of action lie within the wake of Hospital's intentional, purposeful, and persistent transaction of business in New Mexico. We therefore affirm in part and reverse in part.

BACKGROUND

{5} Plaintiffs reside in Las Cruces, New Mexico. In November 1995, they traveled to El Paso, Texas, so that Patient could undergo heart bypass surgery at Hospital. Patient decided to have the surgery performed at Hospital after reading its business advertisements in the local telephone directory, viewing its commercials on television, and hearing it recommended to him by some of his fellow employees who apparently had received medical care there in the past. Dr. Eisenberg performed the surgery at Hospital. After recuperating at Hospital for a few days, Patient was discharged. Plaintiffs returned to Las Cruces, where Patient was scheduled to complete his rehabilitation at home with the assistance of his wife and Mountain Shadows Home Health Care Services (Home Care).

{6} Approximately one month after returning to his home in Las Cruces, Patient complained of chest pain. He returned to El Paso in order to be examined by Dr. Eisenberg. Dr. Eisenberg performed the examination in his office at El Paso Southwestern Cardiovascular Associates, P.A., which is the same professional association that employs Dr. Bruno and Dr. Kidd. The following day, Dr. Eisenberg admitted Patient for hospitalization at Hospital. Patient's surgical wound had become infected, and the purpose of hospitalizing him was to treat his infection.

{7} Dr. Eisenberg asked Dr. Bruno and Dr. Miller to help him treat Patient's staph infection. Both doctors agreed to do so. Dr. Bruno performed mediastinal debridement and sternal rewiring, while Dr. Miller prescribed certain antibiotics to treat the infection. Dr. Miller's antibiotic prescription was utilized for the remainder of Patient's three-week stay at Hospital. Hospital's nurses monitored and administered to Patient throughout his stay at Hospital during this three-week period.

{8} At discharge, Hospital's staff arranged for home health care for Patient so that he could complete his antibiotic therapy in Las Cruces. Hospital and Dr. Miller contacted Home Care, informing it to carry out the orders of Patient's treating physicians, one of whom was Dr. Miller, who ordered the continuation of antibiotic therapy. Pursuant to these orders, Patient received antibiotic therapy at his home in Las Cruces.

{9} Approximately two weeks into his therapy at home, Patient informed Dr. Bruno that he was experiencing vertigo and loss of equilibrium. Dr. Bruno immediately ordered Home Care to discontinue the therapy upon hearing Patient's complaints. Plaintiffs subsequently formed the belief that Patient's vertigo and loss of equilibrium had been caused by Dr. Miller's failure to terminate treatment with the antibiotics, which have a known detrimental effect on the hearing organs (ototoxic effect) when used for too long of a duration, before Patient suffered severe and permanent damage to his inner ears. Plaintiffs filed a medical malpractice lawsuit against Defendants in January 1998.

STANDARD OF REVIEW

{10} The issue presented for our review is whether the trial court had the authority to assert personal jurisdiction over Defendants, none of whom reside in New Mexico. This is a question of law, which we review de novo. See Campos Enters., Inc. v. Edwin K. Williams & Co., 1998-NMCA-131, ¶ 5, 125 N.M. 691, 964 P.2d 855. If, as here, a district court bases its ruling upon the parties' pleadings and affidavits, the applicable standard of review largely mirrors the standard that governs appeals from the award or denial of summary judgment. See Harrell v. Hayes, 1998-NMCA-122, ¶ 11, 125 N.M. 814, 965 P.2d 933

. In this respect, both a district court and this appellate court must construe the pleadings and affidavits in the light most favorable to the complainant. See Doe v. Roman Catholic Diocese of Boise, Inc., 1996-NMCA-057, 121 N.M. 738, 742, 918 P.2d 17, 21. The complainant need only make a prima facie showing that personal jurisdiction exists when a district court does not hold an evidentiary hearing. See Tercero v. Roman Catholic Diocese of Norwich, Conn., 1999-NMCA-052, ¶ 12, 127 N.M. 294, 980 P.2d 77, cert. granted, 127 N.M. 391, 981 P.2d 1209 (1999).

DISCUSSION

{11} Plaintiffs failed to serve process upon Defendants within the territorial limits of New Mexico. Nevertheless, they contend that the trial court had the authority to assert personal jurisdiction over the non-resident Defendants. In order for this contention to hold true, the conduct Plaintiffs complain of must meet a three-part test: (1) Defendants must have done at least one of the acts enumerated in our long-arm statute, (2) Plaintiffs' causes of action must have arisen from the act or acts, and (3) Defendants must have had minimum contacts with New Mexico sufficient to satisfy constitutional due process. See Visarraga v. Gates Rubber Co., 104 N.M. 143, 146, 717 P.2d 596, 599 (Ct.App. 1986)

.

A. Long-Arm Statute and Causes of Action

{12} Plaintiffs claim Defendants' conduct satisfies the requirements of our long-arm statute. See NMSA 1978, § 38-1-16 (1971). Section 38-1-16(A) provides that any party, whether or not a resident of New Mexico, who does one or more of our long-arm statute's enumerated acts submits to the jurisdiction of the courts of this State so long as the complainant's cause of action arises from:

(1) the transaction of any business within this state;

(2)

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