Lewis v. Samson

• Decision Date: 14 September 1999
• Docket Number: No. 19,281.,19,281.
• Parties: Marta LEWIS, as Personal Representative of the Estate of Martin C. Lewis, deceased, Plaintiff-Appellant, v. Norberto R. SAMSON, Jr., M.D. and Raymond F. Ortiz, M.D., Defendants-Appellees.
• Court: Court of Appeals of New Mexico

992 P.2d 282

128 N.M. 269

Marta LEWIS, as Personal Representative of the Estate of Martin C. Lewis, deceased, Plaintiff-Appellant, v. Norberto R. SAMSON, Jr., M.D. and Raymond F. Ortiz, M.D., Defendants-Appellees.

No. 19,281.

Court of Appeals of New Mexico.

September 14, 1999.

Certiorari Granted November 19, 1999.

JoAnne Holland, The Holland Law Office, Albuquerque, Clark Varnell, Eaves, Bardacke & Baugh, P.A., Albuquerque, for Appellant.

William P. Slattery, David B. Lawrenz, Hinkle, Cox, Eaton, Coffield & Hensley, L.L.P., Santa Fe, for Appellee Norberto R. Samson, Jr., M.D.

Lorri Krehbiel, Madison, Harbour, Mroz & Brennan, P.A., Albuquerque, for Appellee Raymond F. Ortiz, M.D.

Certiorari Granted, No. 25,990, November 19, 1999.

OPINION

APODACA, Judge.

{1} Marta C. Lewis (Plaintiff) appeals from a judgment after a jury verdict in favor of Dr. Norberto R. Samson and Dr. Raymond F. Ortiz (Defendants). As personal representative of the estate of Martin C. Lewis (the patient), Plaintiff's son, Plaintiff filed a medical malpractice suit against Defendants alleging wrongful death of the patient. The patient died while in the care of Defendants for treatment of multiple stab wounds suffered at the hands of Moses Griego, a nonparty (the assailant). Plaintiff raises four issues on appeal, claiming that the trial court (1) abused its discretion by excluding the testimony of several witnesses, (2) improperly injected the issues of the comparative fault and negligence per se of the assailant in a case essentially limited to successive tortfeasor liability, (3) should have conducted an evidentiary hearing on Plaintiff's motion for a change of venue, and (4) improperly excluded a letter from a certain physician that summarized the patient's treatment.

{2} We hold that the trial court abused its discretion in declining to reopen discovery to allow amendment of Plaintiff's witness list to add an additional witness several months before trial. We therefore reverse and remand for a new trial. Because we are remanding for a new trial on Plaintiff's first issue, we address the successive tortfeasor liability issue and the venue issue since they may reoccur at a second trial. Because of our disposition, we need not address Plaintiff's remaining issue on exclusion of the physician's letter and other witnesses.

{3} Regarding the nature of the tort liability under the facts of this appeal, we hold that the trial court erred in not determining as a matter of law before trial that Defendants were successive, and not concurrent, tortfeasors. In that regard, we also hold that the court erred in failing to ensure that trial counsel limited their argument and the evidence to that theory of liability. Finally, on the venue issue, we conclude that the trial court was not required to conduct an evidentiary hearing and did not err in denying Plaintiff's motion for a change of venue.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Underlying Facts

{4} In February 1994, at approximately two o'clock in the morning, the patient was taken to the emergency room at Dan C. Trigg Memorial Hospital (Memorial Hospital) in Tucumcari, New Mexico, suffering from eight stab wounds primarily to the chest. He incurred the wounds in a fight with the assailant, who was later convicted of second-degree murder under NMSA 1978, § 30-2-1 (1994), as a result of the stabbing incident. Defendant Ortiz, an internist at Memorial Hospital, first treated the patient. Dr. Ortiz then called in Defendant Samson, a local general surgeon. Initially, Defendants treated the patient with transfusions of blood, sutured the wounds, and then inserted chest tubes. During this treatment, Dr. Ortiz telephoned University of New Mexico Hospital (UNM Hospital) to request an emergency transfer for a thoracotomy or for other assistance as deemed necessary by that hospital.

{5} The substance of Dr. Ortiz' first request was strongly disputed at trial. The doctor claimed that he first requested assistance from UNM Hospital for the patient during a 3:06 a.m. phone call. Plaintiff, however, claimed the doctor first requested assistance from UNM Hospital during a 3:57 a.m. phone call. Dr. Hanosh, a specialist in thoracic surgery at UNM Hospital, responded telephonically on behalf of that hospital at approximately 4:20 a.m., according to his private phone records. He informed Dr. Ortiz that the patient would not survive the trip to UNM Hospital; Dr. Ortiz replied that Dr. Samson was unwilling to perform the thoracotomy.

{6} Dr. Hanosh arrived at Memorial Hospital at approximately 6:11 a.m. and immediately performed a thoracotomy. By Dr. Hanosh's arrival, the patient had suffered a cardiac arrest. He was pronounced dead at 6:17 a.m. Additional facts will be discussed as relevant to our discussion of the issues.

B. Relevant Trial Court Proceedings

1. Pretrial Proceedings

{7} Initially, Plaintiff filed this case in the District Court of Bernalillo County in October 1995, naming UNM Hospital as an additional defendant. By stipulation of the parties, Plaintiff refiled the case in the District Court of Quay County after Plaintiff moved to dismiss UNM Hospital as a defendant. At a pretrial conference in February 1997, the court set July 14, 1997, as the trial date. The court did not set a discovery deadline at that time.

{8} Also in February 1997, Plaintiff responded to Defendants' request for a list of witnesses by designating "any and all personnel from [Memorial Hospital]," subject to a final witness list. By letter dated March 14, 1997, counsel for Dr. Ortiz requested Plaintiff to supplement her witness list. Plaintiff did not immediately respond. Instead, in May 1997, Plaintiff served a witness list on each Defendant. On June 11, 1997, about a month before the trial date, Plaintiff informed Defendants of her intention to add Penny Griner, an employee of UNM Hospital, to the witness list. Plaintiff intended for Ms. Griner to testify regarding UNM Hospital's procedures for responding to telephone calls. Plaintiff stated at that time that Ms. Griner would be unavailable until the week of June 16. On June 13, Defendants moved to exclude Ms. Griner as a witness on grounds of late disclosure. As of that date, the court had not set any discovery deadlines nor entered a pretrial order. At no time did Defendants depose Ms. Griner.

{9} The court held a pretrial conference on June 17, 1997. At the hearing, counsel argued the relevance of the assailant's conviction and his comparative fault to the issues in this case. The trial court postponed its decision on Defendants' motion to exclude Ms. Griner until June 30, 1997. The court entered a pretrial order the next day, June 18, 1997, which identified the parties' respective witness lists, and set a deadline of June 27, 1997, for all depositions and all other discovery.

{10} At a hearing on June 30, 1997, the court granted Defendants' motion to exclude Ms. Griner as a witness. Plaintiff's counsel unsuccessfully argued that her failure to designate Ms. Griner was an "oversight" based on her previous belief that Defendants would depose Drs. Hanosh and Burton of UNM Hospital, who could discredit Defendants' version of the facts as well as Ms. Griner could. Indeed, at the February 17 pretrial conference, Dr. Ortiz indicated an intent to depose these two doctors.

{11} On July 14, the parties were ready to begin the trial, but they were unable to impanel twelve impartial jurors due to Defendants' close ties in the community. The trial court rescheduled trial for January 1998. On July 24, 1997, after trial was rescheduled, Plaintiff filed three motions.

{12} In her first motion, Plaintiff sought to preclude Defendants from arguing the comparative fault of the assailant at trial on the ground that Defendants were successive tortfeasors, not concurrent tortfeasors. In September 1997, the trial court denied the motion, stating that the motion presented evidentiary issues best resolved by proper jury instruction.

{13} Plaintiff's second motion sought to reopen discovery and to designate additional witnesses. As noted in her brief in support of her motion, these witnesses included Ms. Griner, Sharon Faison, R.N., and "a witness from Amarillo to prove Amarillo accepts patients from New Mexico." Plaintiff identified Ms. Faison as one who would testify on the availability of "rib spreaders" at Memorial Hospital. In a response dated August 11, 1997, Dr. Ortiz opposed this motion on the grounds that Plaintiff failed to demonstrate "manifest injustice" and that Plaintiff had ample prior opportunity for discovery. At a hearing in September 1997, Plaintiff stated that she desired to call Dr. Hanosh as a witness also. The trial court denied Plaintiff's second motion.

{14} Finally, Plaintiff's third motion sought a change of venue. At a hearing on September 2, the court considered several affidavits filed by Plaintiff, including the affidavit of a jury consultant. Plaintiff requested a specific "evidentiary" hearing. The court denied her motion for an evidentiary hearing and also denied the request for a change of venue.

2. Trial Proceedings

{15} The case was tried in mid-January 1998. Before the trial began, Plaintiff reiterated her objection to Defendants' presentation of a comparative-fault case. Once again, the trial court rejected Plaintiff's argument, this time expressly ruling that Defendants could present evidence of comparative fault and the negligence per se of the assailant. In doing so, it admonished Defendants not to dwell extensively on the details of the criminal matter involving the assailant.

{16} During Defendants' opening statements, they both emphasized the assailant's guilt and generally presented a comparative-fault defense to the jury. The first point of Dr. Ortiz' counsel's opening was the details of the fight leading to the "brutal stabbing." She contended that it would be an injustice to blame Defendants for the assailant's...