Gerety v. Demers

Decision Date13 December 1978
Docket NumberNo. 11847,11847
Citation92 N.M. 396,1978 NMSC 97,589 P.2d 180
PartiesEdward J. GERETY, M.D., Petitioner, v. Henry C. DEMERS, Respondent.
CourtNew Mexico Supreme Court
Rodey, Dickason, Sloan, Akin & Robb, Bruce D. Hall, Albuquerque, for petitioner

EASLEY, Justice.

In the first trial of this medical-malpractice case plaintiff-appellant, Henry G. Demers, won a $67,000.00 jury verdict against defendant-appellee, Edward J. Gerety, M.D. On Dr. Gerety's appeal to the Court of Appeals the decision was affirmed. Demers v. Gerety, 85 N.M. 641, 515 P.2d 645 (Ct.App.1973). Certiorari was granted to Dr. Gerety by this Court which reversed and returned the case to the Court of Appeals with instructions to address certain issues. Gerety v. Demers, 86 N.M. 141, 520 P.2d 869 (1974). The Court of Appeals remanded the case to the trial court for a new trial. Demers v. Gerety, 87 N.M. 52, 529 P.2d 278 (Ct.App.1974). Demers applied for certiorari on his cross-appeal only. Cert. denied, 87 N.M. 47, 529 P.2d 273 (1974).

The second trial resulted in a verdict for Dr. Gerety and Demers appealed. The Court of Appeals again reversed and remanded the case to the lower court for a third trial. Demers v. Gerety, 17 N.M.St.B.Bull. 2373, March 16, 1978. We granted certiorari; and now on the Sixth appellate proceeding for this case, we affirm in part and reverse in part.


The complexities of the facts, the law and the procedure in this case are incredible. The complaint was filed November 17, 1969, for injuries allegedly caused by the operation on November 13, 1967. The case has been haunting the parties and the judicial system for almost nine years. Generally the issues are:

1. Whether a trial judge who has presided over the first trial of a case may voluntarily recuse himself from presiding in the second trial without stating on the record that he has constitutional, statutory or ethical cause for so doing. 2. Where the time had long since expired under § 21-5-9, N.M.S.A.1953 (Supp.1975) (current version at Interim Supp.1976-77) for disqualifying a judge, whether the second trial judge, who was not even serving as a judge when the issues were joined in 1973, was legally precluded from trying the case by the filing of an affidavit of disqualification after the first judge recused himself and notice was given of the designation of the new judge.

3. Where the Court of Appeals held that a verdict should have been directed in favor of Dr. Gerety in the first trial because there was no expert medical testimony showing causation on the issue of negligent surgery, but the Court of Appeals, nevertheless, reversed and remanded the case for a new trial without specific directions or stated limitations, and then Demers did not apply for certiorari, whether the second trial judge was correct in refusing to admit additional evidence on negligent surgery and was correct in granting Dr. Gerety summary judgment on that issue.

4. Whether Demers' instructions given in the first trial without objections, which were refused in the second trial on the grounds that they did not accurately reflect the dispositive facts adduced in the second trial, are nevertheless the law of the case and should have been submitted in their original form to the second jury.

5. Whether a distinction exists in New Mexico between common law battery, based on unlawful touching because of an operation by a physician without the patient's consent, and malpractice, based on negligence in the care and treatment of a patient.

6. Where the first trial judge erroneously ruled and instructed the jury that the "clear and convincing" test of written contract law as applicable in appraising Demers testimony as to his competency to sign a consent, and where Demers did not apply for certiorari after the Court of Appeals erroneously affirmed the trial court's decision on this issue, whether the application of written contract law became the law of the case and thus controlling on the second trial judge when he appraised and rejected Demers' testimony regarding drug induced incompetency as being insubstantial and refused to submit instructions on the issue to the jury.

7. Assuming that the evidence on motion for summary judgment must be considered without the application of the restrictive presumptions and the "clear and convincing" test of written contract law, erroneously applied by the two lower courts on the incompetency claim of Demers, was the evidence in the record sufficient to create a jury issue as to whether Demers consented to the revision of his ileostomy?

8. Whether in a physician-battery case it is necessary in all cases for the plaintiff to present expert medical witnesses to prove a medical standard against which to test the acts of the physician in diagnosing, treating and informing the patient, as well as to prove a violation of the standard and causation.

9. Where the issue of informed consent is raised in malpractice cases, whether it is mandatory that the claim of lack of informed consent be proved by testimony of expert medical witnesses as to the standard of care demanded, as to whether there has been a violation of that standard and as to whether the physician's acts or failure to act were the proximate cause of the patient's injuries.

10. If the strict rule mandating expert medical evidence in informed consent cases is relaxed, as it applies to proving the three issues above enumerated, whether an objective standard, based on the knowledge or skill of an Ordinary patient or physician is to be used, or a subjective standard, based on the particular knowledge or skill of the parties involved.

The facts and the law pertaining of each of the above issues will be discussed in the order given.

Need to State Reasons for Recusal

After the first remand, District Judge Gerald D. Fowlie, who presided at the first trial, recused himself without stating for the record that he had a statutory, ethical or constitutional cause for disqualification. There was no evidence showing the reason for his disqualification. Judge Stowers was designated, after which nothing happened in the case for approximately twenty months. Judge Stowers recused himself, giving no reason therefor. Judge Maurice Sanchez was assigned to the case, at which time Demers filed an affidavit of disqualification which Judge Sanchez refused to honor. On appeal Demers claimed that it was error for Judge Fowlie to recuse himself and for Judge Sanchez to sit.

The Court of Appeals held that a district judge has a duty to enter an order stating that he has valid reasons for recusing himself, that to remain mute on this point constitutes an abuse of discretion and that refusing to hear the case without a compelling reason constitutes neglect of duty. That court reversed and ordered that Judge Fowlie sit for the third trial.

There are no constitutional or statutory provisions which specifically set forth the authority or the procedure for a judge to voluntarily recuse or disqualify himself. N.M.Const. art. 6, § 18 provides that a judge is disqualified when a party to the suit is related to him by affinity or consanguinity within the degree of first cousin, when he has been counsel in the suit or has presided over the trial as judge in an inferior court, or where he has an interest in the case. The New Mexico Code of Judicial Conduct provides that a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including instances where "he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding". Canon 3(C)(1)(a) (§ 16-11-3(C)(1)(a), N.M.S.A.1953 (Supp.1975)). Section 21-5-8, N.M.S.A.1953 (Repl.1970) provides that a judge may be disqualified by a party by the filing of an affidavit alleging that the judge cannot preside with impartiality.

In Doe v. State, 91 N.M. 51, 570 P.2d 589 (1977) this Court was called upon to interpret art. 6, § 15 of the New Mexico Constitution which states that if any judge shall be "disqualified" from hearing any cause the parties may select some member of the bar to act as judge pro tempore. We held that the term "disqualified" encompasses voluntary recusal. We further held that when a judge believes he will not be able to remain impartial he should use his discretion and remove himself from the case in order to avoid any hint of impropriety. We quoted with approval from State v. Allen Superior Court No. 3, 246 Ind. 366, 206 N.E.2d 139, 143 (1965) in which that court stated that the reasons for the judge to disqualify himself may be personal and that he need not state them.

We hold with the well-established principle that a judge has a duty to perform the judicial role mandated by the statutes, and he has no right to disqualify himself unless there is a compelling constitutional, statutory or ethical cause for so doing. E. g., Rosen v. Sugarman, 357 F.2d 794, 797-98 (2d Cir. 1966); Duplan Corporation v. Deering Milliken, Inc., 400 F.Supp. 497, 526-27 (D.S.C.1975); Arizona Conference Corp. v. Barry, 72 Ariz. 74, 231 P.2d 426, 428 (1951); Williams & Mauseth Ins. Brokers, Inc. v. Chapple,11 Wash.App. 623, 524 P.2d 431, 434 (1974). Recusal should be used only for the most compelling reasons. Nelson v. Fitzgerald, 403 P.2d 677 (Alaska 1965). A judge "has a duty to Sit where Not disqualified which is equally as strong as the duty to Not sit where Disqualified." Laird v. Tatum, 409 U.S. 824, 837, 93 S.Ct. 7, 15, 34 L.Ed.2d 50 (1972).

We approve of this statement by Justice Rehnquist in Laird, and hold that, except in those cases where a judge's impartiality might be reasonably questioned, he must exercise his judicial function. See United States v. Haldeman, 181 U.S.App.D.C. 254, footnote 360 at 362, 559 F.2d 31, footnote 360 at 139 (1976) (interpreting the latest version of the federal...

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