Hernandez v. Reuter
| Decision Date | 18 October 2022 |
| Docket Number | A-1-CA-38333 |
| Parties | CELINA HERNANDEZ and DAVID HERNANDEZ, Individually, and ARTHUR BUSTOS, as Personal Representative of the Wrongful Death Estate of CAIN HERNANDEZ, Plaintiffs-Appellants, v. ROBERT REUTER, M.D. and ONLINE RADIOLOGY MEDICAL GROUP, a foreign corporation, Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY Abigail Aragon District Judge
The Spence Law Firm NM, LLC Dennis K. Wallin Alisa C. Lauer Erin M. Marshall Albuquerque, NM
Fine Law Firm Mark D. Fine Albuquerque, NM for Appellants
Lorenz Law Alice T. Lorenz Albuquerque, NM for Appellees
{¶1} Cain Hernandez died from a heart condition when he was just five days old. His parents, Celina and David Hernandez, and the personal representative of Cain's wrongful death estate, Arthur Bustos (collectively, Plaintiffs), brought this medical malpractice action against Robert Reuter, M.D. and Online Radiology Medical Group, Dr. Reuter's practice (collectively, Defendants), for negligence,[1] alleging that Dr Reuter failed to detect Cain's enlarged heart when he read Cain's chest x-ray, and failed to make a differential diagnosis of a congenital heart defect. Plaintiffs alleged that, as a result of Dr. Reuter's negligence, Cain's treating physicians failed to timely provide lifesaving treatment for Cain's heart defect.
{¶2} The district court granted summary judgment to Dr. Reuter and Online Radiology based on Plaintiffs' failure to establish causation with expert medical testimony. Concluding that Plaintiffs raised a genuine issue of material fact as to causation requiring resolution at a trial on the merits, we reverse and remand.
{¶3} Cain Hernandez was born on April 9, 2013, at Carlsbad Medical Center (CMC) in Carlsbad, New Mexico, and was discharged from CMC approximately twenty-four hours later. Although not diagnosed prior to his discharge from the hospital, Cain was born with a congenital heart defect.
{¶4} Cain's parents brought him back to CMC four days after his birth, on Saturday, April 13, 2013, at approximately 6:00 p.m. for emergency treatment. Cain was treated in CMC's emergency department by Dr. Newell, Dr. Sung, and other CMC medical staff. Dr. Newell's and Dr. Sung's initial working diagnosis was that Cain was suffering from sepsis.
{¶5} CMC contracted with Online Radiology to perform after-hours and weekend remote radiology services. On the night of April 13, between approximately 8:30 and 9:30 p.m., several portable x-rays were taken of Cain's chest and transferred electronically to Dr. Reuter, a radiologist, who interpreted Cain's chest x-rays. Dr. Reuter's report made no mention of Cain's heart, failing to report that it was enlarged. Dr. Reuter also did not offer a differential diagnosis of congenital heart defect.
{¶6} Plaintiffs produced an affidavit and deposition testimony from their expert radiologist, Dr. Josef Nisenbaum, who was prepared to testify at trial that Dr. Reuter's failure to detect and promptly report Cain's enlarged heart to his treating physicians and to suggest a differential diagnosis of congenital heart defect was a breach of the standard of care. For purposes of their motion for summary judgment Defendants conceded that there was a disputed issue of material fact as to whether Dr. Reuter misread Cain's chest x-rays, and whether this misreading was a breach of the standard of care.
{¶7} Cain was transferred by ambulance to Sierra Providence East Medical Center in El Paso, Texas, arriving in the early morning of April 14, 2013. At the El Paso hospital, Cain was correctly diagnosed with the heart defect aortic coarctation based on a chest x-ray showing an enlarged heart, followed by an echocardiogram. Cain was promptly treated with prostaglandin, a medication both parties acknowledge is lifesaving for an infant with an aortic coarctation if administered in time. The medication is considered a "life[]saving bridge treatment that stabilizes a patient" until corrective surgery can be performed.
{¶8} Cain was again transferred, this time to the Children's Medical Center in Dallas, Texas, a specialty hospital that could perform the required heart surgery. Cain was pronounced dead two hours after his arrival at that hospital.
{¶9} Defendants moved for summary judgment on a single ground-that Plaintiffs' responses to discovery failed to reveal any competent expert testimony establishing a causal connection, to a reasonable degree of medical probability, between Dr. Reuter's breach of the standard of care and Cain's injuries. Defendants claimed that the absence of such expert testimony required dismissal. Defendants supported their motion for summary judgment by pointing to alleged inadequacies in Plaintiffs' disclosure of their expert witnesses and in Plaintiffs' description of their experts' anticipated testimony in discovery. Defendants focused on the affidavit of Plaintiffs' expert in radiology, Dr. Nisenbaum, claiming that Dr. Nisenbaum's affidavit failed to explain how Dr. Reuter's breach of the standard of care in reading Cain's chest x-rays proximately caused Cain's death or his loss of a chance of survival. Defendants' summary judgment motion also quoted portions of the affidavits and depositions of Plaintiffs' experts in pediatrics and pediatric cardiology, Dr. Deborah Silver and Dr. Doff McElhinney, in which these experts disavowed any intention of testifying to Dr. Reuter's negligence, or to whether that negligence made a difference in the outcome for Cain.
{¶10} Plaintiffs responded by arguing that Defendants failed to establish a prima facie case as to lack of expert causation testimony by, introducing only incomplete and misleading evidence to support their claim, and even if Defendants had established a prima facie case, the affidavits and deposition testimony of Plaintiffs' medical experts included in Plaintiffs' summary judgment response raised a genuine issue of material fact as to causation. Plaintiffs argued that causation could properly be established through the testimony of multiple witnesses and need not be presented through a single expert.
{¶11} Plaintiffs did not claim in the district court and do not claim on appeal that Dr. Nisenbaum's testimony established the necessary causal link between Dr. Reuter's negligence and Cain's death. Plaintiffs instead rely on other medical experts and lay testimony to establish a causal chain.
{¶12} Plaintiffs began with the breach of the standard of care, which they established through the affidavit of Dr. Nisenbaum. Dr. Nisenbaum's affidavit stated that the standard of care required a radiologist reading an infant's chest x-ray to report on the condition of the infant's heart, and if the heart is enlarged, to suggest a differential diagnosis of a congenital heart defect. Dr. Nisenbaum reported that, in his expert opinion, Dr. Reuter had breached the standard of care by failing to detect Cain's enlarged heart, failing to make a differential diagnosis of a congenital heart defect, and failing to immediately phone Cain's treating physicians with his findings.
{¶13} Plaintiffs next relied on Dr. Deborah Silver, a pediatrician, referring to her deposition testimony to establish that the failure of Cain's treating physicians to consider an alternative diagnosis of congenital heart defect delayed treatment with prostaglandin, a medication both parties agreed could prevent an infant's death by keeping the infant alive until heart surgery can be performed. Dr. Silver testified that time was of the essence in administering prostaglandin: The sooner the better. If administered in time, Dr. Silver explained that "these kids have a very, very high survival rate," around 95 percent. Dr. Silver also testified that if a differential diagnosis of congenital heart defect is proposed for an infant, "you would consider starting treatment right away because it is lifesaving."
{¶14} Plaintiffs also attached portions of the deposition of their expert pediatric cardiologist, Dr. McElhinney, who testified that "earlier diagnoses or treatment" would have prevented Cain's death and that the failure to timely diagnose and treat was, to a reasonable degree of medical probability, the proximate cause of Cain's death.
{¶15} Cain's treating physicians, Dr. Sung and Dr. Newell (who were then defendants), submitted affidavits in which they admitted that receipt of a radiological report that Cain's heart was enlarged would have redirected their treatment of Cain. Dr. Sung's affidavit stated that if he had been told that Cain had an enlarged heart, it "would have caused [him] to place a cardiogenic cause for Cain's presentation higher on [his] differential diagnosis." Dr. Newell testified that a correct radiology report "would certainly have impacted the course of my treatment . . ., and possibly would have led to a faster administration of prostaglandin."
{¶16} Plaintiffs relied on Dr. Nisenbaum's affidavit and deposition for a general explanation of the role of a radiologist and of a radiologist's report in guiding a patient's treatment. Dr. Nisenbaum concluded his affidavit by stating that "[Dr. Reuter's] error of omission may have led to misdirection of clinical care." This statement was the subject of a motion in limine filed by Defendants to exclude Dr. Nisenbaum's testimony related to causation. Defendants' motion alleged that Dr Nisenbaum was not qualified to testify as to whether Dr. Reuter's error misdirected care, or otherwise was a cause of Cain's death because he was not a pediatrician and had not reviewed Cain's medical records. Defendants argued that therefore, Dr. Nisenbaum's testimony that "missing the findings [in...
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