Lerma v. BCA Med. Assocs.
| Decision Date | 09 September 2019 |
| Docket Number | No. A-1-CA-36393,A-1-CA-36393 |
| Parties | ALEJANDRO and MARIA LERMA, Individually and as Personal Representative of the ESTATE OF SERGIO LERMA, Deceased, and as Parents and Next Friends of EDUARDO LERMA, ALEJANDRO LERMA, JR., and RUBY LERMA, all Minors, Plaintiffs-Appellants, v. BCA MEDICAL ASSOCIATES, a Professional Association; WILLIAM G. LIAKOS, JR., M.D.; LORI D. ZINK, M.D.; and MARGARITA MACIAS, M.D., Defendants-Appellees, and ROSWELL HOSPITAL CORPORATION d/b/a EASTERN NEW MEXICO MEDICAL CENTER; ONLINE RADIOLOGY MEDICAL GROUP, INC., a Foreign Corporation; and JOHNNY BLIZNAK, M.D., Defendants. |
| Court | Court of Appeals of New Mexico |
This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.
APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
Marion J. Craig III Attorney at Law, LLC
Marion J. Craig III
Roswell, NM
Adam D. Rafkin P.C.
Adam Daniel Rafkin
Ruidoso, NM
Andrew M. Gross, M.D., J.D., P.C.
Andrew M. Gross
Dallas, TX
for Appellants
Atwood, Malone, Turner & Sabin, P.A.
Lee M. Rogers
Carla Neusch Williams
Roswell, NM
Lorenz Law
Alice T. Lorenz
for Appellees BCA Medical Associates, P.A. and Margarita Macias, M.D.
{1} Following a five-day trial, the jury returned verdicts in favor of Defendants BCA Medical Associates, Dr. William G. Liakos, Dr. Lori D. Zink, and Dr. Margarita Macias, and judgment was entered accordingly. Plaintiffs raise three issues on appeal in support of a new trial. First, they assert that the district court abused its discretion by allowing hearsay statements regarding the standard of care into evidence. Second, Plaintiffs contend that the district court abused its discretion by rejecting their tendered jury instructions on duty to inform, arguing that the issue was tried by implicit consent. Third, Plaintiffs argue that the district court erred by granting summary judgment for Defendants on the loss of consortium claim brought on behalf of Sergio's twin brother. Unpersuaded, we affirm.
{2} Sergio was brought to BCA Medical Associates, a pediatric healthcare provider in Roswell, New Mexico, complaining of an ear infection. Despite momentary improvements in his condition, Sergio was brought back to BCA vomiting and running a fever. When his condition did not improve, he was admitted to Eastern New Mexico Medical Center (ENMMC).
{3} After spending the night in the hospital, Sergio was found unresponsive. Dr. Macias conducted an examination of Sergio and ordered CT scans of his head andabdomen. Dr. Macias believed that the likely cause of Sergio's condition could be from bleeding on the brain or an infectious process like meningitis. Despite her concern that she was dealing with meningitis, Dr. Macias decided to withhold antibiotics until she could perform a lumbar puncture—a procedure to extract a sample of a patient's spinal fluid, also called a spinal tap.
{4} The CT scan of Sergio's head indicated the possibility of fluid on the brain, a condition ENMMC was not equipped to treat. Radiologist Dr. Johnny Blizak warned Dr. Macias that a lumbar puncture was not recommended until the fluid could be drained and the pressure in the cranium could be relieved. Dr. Macias decided not to perform a lumbar puncture based on the report of the heightened increase of cranial pressure and arranged for Sergio to be transferred to University of New Mexico Hospital (UNMH). At UNMH, doctors drained the fluid from Sergio's skull and then performed a lumbar puncture. Following the lumbar puncture, doctors administered antibiotics and Sergio's condition began to improve. Shortly thereafter, Sergio's condition again began to deteriorate and he died.
{5} Plaintiffs brought suit for wrongful death arising from the alleged negligence of BCA Medical Associates, ENMMC, the attending physicians, Dr. Liakos, Dr. Zink, and Dr. Macias, the radiologist, Dr. Johnny Blizak, and his employer Online Radiology Inc.1 Plaintiffs also brought derivative loss of consortium claims in their own right and on behalf of Sergio's siblings.
{6} The jury returned a verdict in favor of Defendants, finding no negligence on the part of Dr. Liakos and Dr. Macias, and finding negligence on the part of Dr. Zink, but no causation. The district court entered judgment consistent with the jury's verdict, dismissing all claims against BCA Medical Associates, Dr. Liakos, Dr. Macias, and Dr. Zink with prejudice. This appeal followed.
{7} Because this is a memorandum opinion and the parties are familiar with the facts and procedural history of the case, we reserve further discussion of pertinent facts to our discussion section.
{8} Plaintiffs called Dr. Macias to testify in their case in chief. On cross-examination by her own counsel, Dr. Macias explained that she was trained to obtain a spinal fluid sample before administering antibiotics to a meningitis patient and that administering antibiotics prior to obtaining a spinal fluid sample might interfere with the results and diagnosis because the antibiotics could clear out some of the organisms that were growing in the fluid.
{9} Dr. Macias testified that her training in the Philippines and in Chicago during her residency programs taught her to obtain a sample before administering antibiotics. The following exchange then occurred:
Plaintiffs asked to approach the bench and the following discussion took place:
The bench conference concluded, and the district court then instructed the jury as follows:
Ladies and gentlemen, I'm going to allow the answer to come in for the limited purpose of identifying how the doctor was trained not for the truth of the matter asserted and not for the standard of care but simply as a statement of how she was trained.
Plaintiffs did not move for a mistrial.
{10} Defense counsel then elicited testimony from Dr. Macias about a specific incident during her residency in which she performed a lumbar puncture on a child and then administered antibiotics after a junior resident was unsuccessful in performing the lumbar puncture. Dr. Macias testified that the following morning the junior resident discussed the difficulty of the procedure on the child during "the usual report for those on-call" at which time Plaintiffs objected, asserting that the testimony was hearsay and went beyond the district court's ruling. The district court sustained the objection. The following exchange then occurred:
Plaintiffs did not object.
{11} Following the jury's verdicts, Plaintiffs moved for a new trial, arguing among other things, that Dr. Macias's testimony regarding her training from Dr. Roy constituted the "use of an undisclosed expert to establish the standard of care." The district court denied the motion.
{12} On appeal, Plaintiffs argue the district court abused its discretion by permitting Dr. Macias to present hearsay testimony that the chief of pediatrics, Dr. Roy, "would have scolded [Dr. Macias] for administering antibiotics under the same circumstances as in this case." This, in turn they argue, amounted to impermissible standard of care evidence from Dr. Macias, who was never disclosed as an expert, as to how a pediatrician is to treat a suspected case of meningitis. Plaintiffs further contend that the testimony in which Dr. Roy was "very, very pleased and relieved" that Dr. Macias had done as she was trained when she withheld the antibiotics until a lumbar puncture could be performed was impermissible hearsay. Plaintiffs also argue that Dr. Macias was judicially estopped from offering standard of care testimony through Dr. Roy becauseshe previously had stated that she could not be required in her deposition to provide standard of care testimony.
{13} We review the admission of evidence for an abuse of discretion. Tartaglia v. Hodges, 2000-NMCA-080, ¶ 27, 129 N.M. 497, 10 P.3d 176. "Admission or exclusion of evidence...
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