Gallegos By and Through Gallegos v. Southwest Community Health Services
| Decision Date | 08 March 1994 |
| Docket Number | OB-GYN,No. 13919,13919 |
| Citation | 872 P.2d 899,117 N.M. 481,1994 NMCA 37 |
| Parties | Laura Candice GALLEGOS, a minor, By and Through her parents and legal guardians, Aurora GALLEGOS and Eugene Gallegos, Plaintiff-Appellant/Cross-Appellee, v. SOUTHWEST COMMUNITY HEALTH SERVICES, d/b/a Presbyterian Hospital Center, Defendant-Appellant, and C. Colbert Bollinger, M.D.,Associates, Ltd., Samuel Smith, M.D., Crosby Eaton, M.D., Frederick Cohn, M.D., Milton Godinez, M.D., Kusum Prabhakar, M.D., and Anesthesia Medical Consultants, f/k/a Albuquerque Anesthesia Services, Inc., Defendants-Appellees/Cross-Appellants. |
| Court | Court of Appeals of New Mexico |
Plaintiff appeals from a judgment entered in favor of Defendants after a jury trial of Plaintiff's medical malpractice suit. In the direct appeal, Plaintiff argues that the trial court: (1) abused its discretion in granting twenty peremptory challenges to all Defendants; (2) erred in denying Plaintiff additional peremptory challenges, and that SCRA 1986, 1-038(E) (Repl.1992) violates her right to equal protection of the laws; and (3) erred in not granting a new trial based on juror misconduct. In the cross-appeal, three of the four groups of Defendants argue that the trial court abused its discretion in denying their motions for an award of costs. Defendant Southwest Community Health Services is not involved in the cross-appeal.
We hold that the trial court did not abuse its discretion in granting twenty peremptory challenges to Defendants and in refusing to grant a new trial based on juror misconduct. We also hold that SCRA 1-038(E) does not authorize the granting of additional peremptory challenges to equalize the total number of such challenges granted to all plaintiffs and all defendants, and that the rule is not unconstitutional. Finally, we hold that the trial court's denial of Defendants' motions for costs was not an abuse of discretion. We thus affirm the trial court on all issues raised on both the appeal and cross-appeal.
Laura Candice Gallegos (Plaintiff or Laura) was born on February 26, 1981. It became apparent shortly after her birth that she was not a normal baby. At time of trial, Laura was ten years old and functioning at the level of a one- to three-month-old child. Laura, by and through her parents, Eugene and Aurora Gallegos, sued the nine individuals or entities that provided medical care during Mrs. Gallegos' pregnancy and Laura's delivery: C. Colbert Bollinger, M.D., Mrs. Gallegos's primary obstetrician, and his practice association, OB-GYN Associates, Ltd. (collectively referred to as Dr. Bollinger); Southwest Community Health Services, doing business as Presbyterian Hospital Center (the Hospital), the hospital that conducted some prenatal tests and in which Mrs. Gallegos delivered Laura; Samuel Smith, M.D., Crosby Eaton, M.D., Frederick Cohn, M.D., and Milton Godinez, M.D. (collectively referred to as the Prenatal Defendants), the obstetricians who worked for OB-GYN Associates and who saw Mrs. Gallegos occasionally during her pregnancy; and Dr. Kusum Prabhakar, the anesthesiologist who saw Mrs. Gallegos briefly during her delivery, and her practice association, Anesthesia Medical Consultants, formally known as Albuquerque Anesthesia Services, Inc. (collectively referred to as Dr. Prabhakar). For ease of reference, we will refer in this opinion to the four groups of defendants as Dr. Bollinger, the Hospital, the Prenatal Defendants, and Dr. Prabhakar.
Discovery and pretrial practice in this case took several years; the trial consumed seven weeks. The jury returned with a verdict in favor of all Defendants. Plaintiff filed a motion for a new trial, which was denied. Defendants filed a motion for an award of costs totaling $127,112.94 against Plaintiff. The trial court found the costs to be reasonable and necessary, but ordered all parties to bear their own costs. Additional facts will be discussed as relevant.
Before trial, Dr. Prabhakar filed a motion asking that she be allowed five peremptory challenges during jury selection. The trial court heard argument on Dr. Prabhakar's motion and all the other Defendants who had not yet filed such a motion were allowed to be heard. Plaintiff argued that Defendants' interests were not sufficiently diverse to justify the granting of additional peremptory challenges to them. Plaintiff alternatively argued that, if the trial court gave each of the four Defendants five peremptory challenges, principles of equal protection as guaranteed by the New Mexico and federal constitutions required the trial court to give Plaintiff twenty peremptory challenges as well. Ultimately, the trial court ordered that each of the four groups of Defendants be given five peremptory challenges, for a total of twenty peremptory challenges allocated to all Defendants, and denied Plaintiff's motion for an equal number of challenges. On appeal, Plaintiff argues against both of these rulings. These arguments will be addressed separately.
The number of peremptory challenges allocated to the parties on each side of a lawsuit is governed by SCRA 1-038(E). For civil cases tried by a twelve-person jury, SCRA 1-038(E) provides that "each party may challenge five jurors peremptorily." When there are multiple parties on one or both sides of the lawsuit, the rule requires that the number of peremptory challenges allocated to that side be exercised by the parties jointly. However, SCRA 1-038(E) also provides that, if the interests of multiple parties on the same side of the lawsuit are "diverse," the trial court shall allow each party on that side of the lawsuit five peremptory challenges. Because the decision necessarily must be made before the beginning of trial, the trial court's decision is based on the pleadings in the case and the assertions of the parties. Carraro v. Wells Fargo Mortgage & Equity, 106 N.M. 442, 445, 744 P.2d 915, 918 (Ct.App.), cert. denied, 106 N.M. 439, 744 P.2d 912 (1987).
In determining whether additional challenges will be allowed, the trial court may consider " '(1) whether the parties employed the same attorneys; (2) whether separate answers were filed; (3) whether the [parties'] interests were antagonistic; and, (4) in a negligence claim, whether different independent acts of negligence are alleged in a suit governed by comparative negligence.' " Gallegos v. Citizens Ins. Agency, 108 N.M. 722, 734, 779 P.2d 99, 111 (1989) (quoting Carraro, 106 N.M. at 445, 744 P.2d at 918). On the question of whether the interests of multiple defendants are diverse, the trial court should consider the extent to which the alleged diversity of interest will affect the choice of individual jurors when considered in light of the common interests of the defendants as against the interests of the plaintiff or plaintiffs in the selection of jurors. Id. The decision to allocate additional challenges to multiple parties on the same side of a lawsuit is within the trial court's discretion and is reviewed on appeal only for an abuse of discretion. Id.
In this appeal, there were nine separate defendants who essentially have been treated throughout trial and on appeal as four defendants. These four groups of Defendants filed different answers and were represented by different attorneys throughout the proceedings. Although all four Defendants were alleged to have breached the standard of care, different specific acts of commission or omission were alleged against each Defendant. For example, Plaintiff alleged that Dr. Bollinger breached the standard of care by not properly performing a version procedure, by not timely arriving at the Hospital for the delivery, and by not performing a Caesarian section. The Hospital was alleged to have breached the standard of care by failing to call another doctor when Dr. Bollinger did not arrive promptly at the Hospital. Plaintiff alleged that Dr. Bollinger and the Prenatal Defendants breached the standard of care because they did not order early ultrasound testing to ascertain Mrs. Gallegos' due date, because they did not deliver Laura when Mrs. Gallegos was forty-two weeks pregnant, and because they failed to properly coordinate their care of Mrs. Gallegos. Dr. Bollinger, the Prenatal Defendants, and the Hospital were alleged to have breached the standard of care by not properly interpreting a non-stress test. Dr. Bollinger and the Hospital were alleged to have breached the standard of care by failing to ensure that there was continuous fetal heart monitoring during delivery. Dr. Bollinger and Dr. Prabhakar were alleged to have breached the standard of care by failing to have a backup anesthesiologist available when Dr. Prabhakar was called away during the delivery. In addition, Dr. Prabhakar was alleged to have breached the standard of care by leaving Mrs. Gallegos during the delivery. We believe this recitation of Plaintiff's claims demonstrates Defendants' diverse and potentially conflicting interests. We thus hold the trial court did not abuse its discretion in giving each Defendant five...
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