Lopez v. Reddy

• Decision Date: 30 March 2005
• Docket Number: No. 24,420.,24,420.
• Citation: 137 N.M. 554,113 P.3d 377
• Parties: Marilyn and George LOPEZ, Plaintiffs-Appellants, v. Gopal REDDY, M.D., Defendant-Appellee.
• Court: Court of Appeals of New Mexico

113 P.3d 377

137 N.M. 554

Marilyn and George LOPEZ, Plaintiffs-Appellants, v. Gopal REDDY, M.D., Defendant-Appellee.

No. 24,420.

Court of Appeals of New Mexico.

March 30, 2005.

Kenneth R. Wagner, Thomas J. McBride, Wagner, McBride, Ford & Associates, P.A., Albuquerque, NM, for Appellants.

Robin A. Goble, Alice Tomlinson Lorenz, Miller Stratvert P.A., Albuquerque, NM, for Appellee.

OPINION

CASTILLO, Judge.

{1} In this case, we review whether the trial court abused its discretion in deciding that a medical expert, without expertise in surgical techniques, was not qualified to testify regarding the standard of care required for the surgical removal of tissue identified for biopsy. Plaintiffs appeal from the trial court's order excluding the testimony of their expert medical witness and granting summary judgment to Defendant in this medical malpractice case. We affirm the trial court's ruling.

I. BACKGROUND

{2} Plaintiff and her husband (Plaintiffs) filed a medical negligence suit against Defendant, who performed a biopsy of Plaintiff's breast; the alleged negligence was his failure to remove all of the tissue identified by the radiologist as suspicious and subject to biopsy. The issue is whether the failure to remove all of the identified tissue was malpractice.

A. Negligence Claim

{3} In September 1998, Plaintiff was experiencing a problem associated with her right breast. She was referred for a mammogram by her primary-care physician. Based on the results of the mammogram, additional tests were performed, which identified suspicious tissue in the breast. Plaintiff consulted with Defendant, a general and vascular surgeon, who recommended surgery. On October 27, 1998, radiology tests identified the location of the suspicious tissue, and Defendant performed the surgery. In March 1999, Plaintiff developed the same symptom and returned for additional imaging studies. In comparing Plaintiff's imaging studies performed before surgery to those done after surgery, the radiologist stated that "it was clear that the same filling defect and the same mass I had seen prior to surgery [were] still there." The radiologist also informed Plaintiff that it was "possible that the lesion was missed." Plaintiff then consulted Dr. Sylvia Ramos, who performed surgery on Plaintiff and used a different technique for identifying the tissue that needed to be removed. Additional pertinent facts are set out in our discussion of the issues.

B. Procedural History

{4} Plaintiffs filed suit against Defendant with five claims: battery, medical negligence, breach of contract, negligent misrepresentation, and loss of consortium. By the date specified in the pretrial scheduling order, Plaintiffs had not identified an expert witness to testify on their behalf, and Defendant subsequently filed a motion for summary judgment. In response, Plaintiffs requested additional time to obtain new counsel to represent them and moved for a continuance.

{5} At Plaintiffs' continuance hearing, they identified Dr. Barry Singer as their medical expert witness and submitted an affidavit from Dr. Singer, which is not in the record. At that time, Defendant withdrew his motion for summary judgment. Following the deposition of Dr. Singer, Defendant filed a motion with two parts: first, Defendant moved to exclude Dr. Singer's testimony; and second, Defendant moved for summary judgment. Defendant argued that Dr. Singer was not qualified to provide testimony on the relevant standard of care and causation under Rule 11-702 NMRA; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); and State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993). With Dr. Singer's testimony excluded, Defendant asserted that Plaintiffs were unable to establish the essential elements of their claims and that Defendant was therefore entitled to judgment as a matter of law. Plaintiff responded with a memorandum in opposition and another affidavit from Dr. Singer.

{6} At the motion hearing, the trial court placed the burden on Defendant to produce an affidavit from a surgeon asserting that only a surgeon could address the issues in this matter and that Dr. Singer, a non-surgeon, would therefore not be qualified to testify as to the standard of care. The court denied Defendant's motion because he had not produced such an affidavit.

{7} Subsequently, Defendant submitted a motion for reconsideration with a supporting affidavit from his expert, Dr. Leo Gordon, which stated that the applicable standard of care involved surgical technique and that Plaintiffs' expert was not qualified in this area. Plaintiffs responded with an additional affidavit from Dr. Singer. After reviewing the affidavits and other material, the trial court concluded that Dr. Singer was not qualified to provide testimony on the decisions that were made during the surgical procedure in this case. Accordingly, the trial court granted Defendant's motion and dismissed the case with prejudice. Plaintiffs now appeal.

II. DISCUSSION

{8} Plaintiffs appeal on the ground that the trial court erred in holding that Dr. Singer was not qualified to testify and that summary judgment was therefore improper. In support of their argument, Plaintiffs assert that contrary to existing New Mexico law, the trial court held Dr. Singer to a higher standard by applying the Daubert and Alberico evidentiary standard to his testimony. Specifically, Plaintiffs maintain the following: (1) Dr. Singer was qualified to testify in this matter, (2) Defendant's evidence was insufficient to disqualify Dr. Singer, and (3) the public policy effect of the trial court's decision would act as a disincentive for patients to file malpractice suits against doctors. We address these arguments in turn.

A. Admissibility of Expert Testimony

{9} The testimony of a medical expert is generally required when a physician's standard of care is being challenged in a medical negligence case. Lopez v. Southwest Cmty. Health Servs., 114 N.M. 2, 7, 833 P.2d 1183, 1188 (Ct.App.1992) (holding that "[i]n a medical malpractice case, because of the technical and specialized subject matter, expert medical testimony is usually required to establish departure from recognized standards in the community"). The trial court in this case concluded that expert testimony was necessary, and neither party disagrees with that determination. Thus, the exclusion of Dr. Singer's testimony, as Plaintiffs' only medical expert, precludes Plaintiffs' cause of action.

{10} Admission or exclusion of a medical expert's testimony is governed by Rule 11-702, which is as follows:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

Rule 11-702 "makes witness qualifications a question for the trial court." Baerwald v. Flores, 1997-NMCA-002, ¶ 8, 122 N.M. 679, 930 P.2d 816. Plaintiffs argue that the trial court could only have reached its decision to exclude Dr. Singer's testimony by requiring him to possess specialized qualifications, in addition to his medical license, and that this requirement is contrary to New Mexico law. Plaintiffs assert that this heightened standard was a result of the trial court's incorrect application of the Daubert and Alberico standard to this case. While we agree that Alberico must be utilized in certain cases where there is a Rule 11-702 question, the trial court in this instance correctly applied Rule 11-702 without employing the Alberico analysis. We explain below.

{11} In 1993, the United States Supreme Court adopted new standards related to the validity and reliability of scientific testimony. Daubert, 509 U.S. at 594-95, 113 S.Ct. 2786. The New Mexico Supreme Court immediately adopted a similar approach in Alberico. 116 N.M. at 158, 166-68, 861 P.2d at 194, 202-04. Alberico clarified that Rule 11-702 establishes three prerequisites for admission of expert testimony: (1) the expert must be qualified, (2) the scientific evidence must assist the trier of fact, and (3) the expert may only testify to "scientific, technical or other specialized knowledge." Id. at 166, 861 P.2d at 202 (internal quotation marks and citation omitted). In Alberico, the experts' qualifications were not at issue; therefore, Alberico only addressed the second and third elements of Rule 11-702, dealing with scientific evidence. Alberico, 116 N.M. at 166, 861 P.2d at 202. The Alberico case established "evidentiary reliability as the hallmark for the admissibility of scientific knowledge," and outlined factors to consider when evaluating such testimony. State v. Torres, 1999-NMSC-010, ¶¶ 24-26, 29, 127 N.M. 20, 976 P.2d 20.

{12} Subsequently, a number of New Mexico cases have addressed the application of the Alberico standard when the reliability of scientific methods was at issue. See, e.g., State v. Stills, 1998-NMSC-009, ¶¶ 24-27, 125 N.M. 66, 957 P.2d 51

(explaining the third element for a specific method of DNA analysis); State v. Anderson, 118 N.M. 284, 291-92, 296-301, 881 P.2d 29, 36-37, 41-46 (1994) (addressing the second and third elements as related to DNA evidence). The reliability of scientific methods, however, was not at issue in this case. Here, the question before the trial court was whether Dr. Singer was qualified to testify on the given subject matter. Alberico does not address this element of Rule 11-702; accordingly, whether the trial court erred in applying Alberico evidentiary standards to this medical negligence case is not an issue that is necessary for this Court to reach in rendering a decision. Additionally, while Defendant argued below and on appeal that the Alberico standard for admissibility of expert testimony applies to Dr. Singer's testimony, there is no evidence in the record...