Miller v. N.M. Heart Inst., PA

• Decision Date: 23 August 2019
• Docket Number: No. A-1-CA-37289,No. A-1-CA-36734,No. A-1-CA-37304,A-1-CA-36734,A-1-CA-37289,A-1-CA-37304
• Parties: CHARLES MILLER and CATHIE MILLER, Plaintiffs-Appellants, v. NEW MEXICO HEART INSTITUTE, PA, and PRESBYTERIAN HEALTHCARE SERVICES, Defendants-Appellees. CHARLES MILLER and CATHIE MILLER, Plaintiffs-Appellees, v. NEW MEXICO HEART INSTITUTE, PA, Defendant-Appellant, and PRESBYTERIAN HEALTHCARE SERVICES, Defendant. CHARLES MILLER and CATHIE MILLER, Plaintiffs-Appellees, v. NEW MEXICO HEART INSTITUTE, PA, Defendant, and PRESBYTERIAN HEALTHCARE SERVICES, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

CHARLES MILLER and CATHIE MILLER, Plaintiffs-Appellants, v. NEW MEXICO HEART INSTITUTE, PA,and PRESBYTERIAN HEALTHCARE SERVICES, Defendants-Appellees.

CHARLES MILLER and CATHIE MILLER, Plaintiffs-Appellees, v. NEW MEXICO HEART INSTITUTE, PA, Defendant-Appellant,andPRESBYTERIAN HEALTHCARE SERVICES, Defendant.

CHARLES MILLER and CATHIE MILLER, Plaintiffs-Appellees, v. NEW MEXICO HEART INSTITUTE, PA, Defendant,andPRESBYTERIAN HEALTHCARE SERVICES, Defendant-Appellant.

No. A-1-CA-36734

No. A-1-CA-37289

No. A-1-CA-37304

COURT OF APPEALS OF THE STATE OF NEW MEXICO

August 23, 2019

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 Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions.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.

APPEALS FROM THE DISTRICT COURT OF TAOS COUNTY

Sarah C. Backus, District Judge

Law Office of James H. Wood, PC

James H. Wood

Theresa V. Hacsi

Thomas G. Wood

Albuquerque, NM

for Charles Miller and Cathie Miller

Hinkle Shanor LLP

Dana S. Hardy

Jeremy Ian Martin

Santa Fe, NM

Kathleen M. Wilson

Hari-Amrit Khalsa

Albuquerque, NM

for New Mexico Heart Institute, PA

The Melendres Law Firm, PC

Walter J. Melendres

Santa Fe, NM

Leonard Law Office, LLC

Keitha A. Leonard

Tesuque, NM

for Presbyterian Healthcare Services

MEMORANDUM OPINION

VANZI, Judge.

{1} After he suffered an infection after open-heart surgery, Plaintiff Charles Miller, together with Plaintiff Cathie Miller, his wife, (collectively, Plaintiffs) brought a medical malpractice action against Presbyterian Healthcare Services (PHS) and New Mexico Heart Institute (NMHI), the surgeon's employer (collectively, Defendants). Plaintiffs alleged that the surgeon was negligent in managing his diabetes before surgery and that he failed to delay surgery because both he and Defendants had a financial interest in the surgery. At the completion of Plaintiffs' case, the district court directed a verdict in favor of PHS and, after trial, a jury found in favor of NMHI. The district court first granted Defendants' request for costs, then, on Plaintiffs' motion, reconsidered and denied the requests. All three parties appealed, and we consolidated the appeals for review. We affirm.

Background

{2} The parties agree on the following essential facts leading to suit. In 2013, an NMHI cardiologist diagnosed Miller with aortic stenosis, otherwise known as narrowing of the aortic valve. The treatment for aortic stenosis is replacement of the aortic valve through open-heart surgery. Miller is also diabetic. Diabetes is diagnosed when a patient's fasting glucose levels exceed the normal range, which is between 60 to 100 mg/dl. High glucose levels increase the risk of infection after surgery.

{3} NMHI scheduled Miller to meet with Dr. Richard Gerety, a surgeon employed by NMHI, on January 31, 2013, with surgery to follow the next day (February 1, 2013) at PHS's hospital in Albuquerque. At the initial meeting, Dr. Gerety assessed Miller for surgery and, knowing Miller was a diabetic, ordered a blood test. The blood test showed Miller's glucose level was 268 mg/dl. Dr. Gerety performed surgery on Miller the next day, as had been scheduled. After the surgery, Dr. Gerety asked an endocrinologist to assess Miller. The endocrinologist noted that Miller's "diabetes has been poorly controlled with a HgbA1c of 8.63 during this admission."

{4} PHS discharged Miller in stable condition and he returned to his home in Taos. In early March, however, Miller was flown by helicopter back to Presbyterian Hospital in Albuquerque, where he was re-admitted for severe sepsis due to an infection in his surgical wound. Miller remained in the hospital for 67 days: he received multiple blood transfusions, was intubated for eleven days, had four surgeries, was on a ventilator, and had parts of his breastbone removed because of necrosis.

{5} Plaintiffs filed a medical malpractice complaint against Defendants alleging that Dr. Gerety negligently failed to consider and control Miller's glucose level or to otherwise manage Miller's diabetes before surgery, and that his failure to do so or delay surgery resulted in Miller's infection. They also alleged that Defendants "placed money or profits over patient care and patient safety" and breached their duty to avoid unreasonable risks to their patients by "failing to maintain policies, practices, and protocols to [(1)] effectively safeguard patients against the risk of infection [and (2)] monitor and follow-up with high-risk patients like . . . Miller[.]" Plaintiffs also asserted that Defendants negligently "allow[ed] and encourag[ed] Dr. Gerety to operate on . . . Miller when he did." One important premise of Plaintiffs' suit is that Dr. Gerety should have postponed Miller's heart surgery until his diabetes was better controlled but did not do so because he, as well as Defendants, had a financial interest in the surgery going forward on February 1, 2013. This position was based largely on PHS's assignment to NMHI of certain blocks of time in its surgery suites and on testimony that a failure to use the assigned "block time" may result in a reduction of future block time. The parties disputed whether Miller's surgery occurred during an assigned block time at all and whether Dr. Gerety and Defendants were motivated by their financial interests to proceed to surgery in spite of Miller's glucose level.

{6} The parties engaged in vigorous motions practice and discovery, the rulings on which give rise to most of Plaintiffs' arguments on appeal. The district court granted summary judgment on several issues and dismissed PHS by directed verdict. The jury heard the remaining claims against NMHI in a six-day trial, after which it found in favor of NMHI. After trial, Defendants moved for an award of their costs and the district court granted their motions. However, after a motion for reconsideration by Plaintiffs, the district court reversed its earlier ruling.

{7} All three parties appealed. Plaintiffs argue that the district court erred in its rulings before and during trial as well as on summary judgment and directed verdicts. Defendants argue that the district court erroneously reversed its ruling as to costs. We consolidated all three appeals for review. The facts relevant to each of the parties' arguments are included in our discussion.

Discussion

I. Plaintiffs' Appeal

{8} We begin by addressing Plaintiffs' appeal. Plaintiffs argue that the district court erred in its rulings as to discovery motions, jury selection, summary judgment, and certain evidence at trial, and in its grant of directed verdicts at the close of Plaintiffs' case. They also assert that, even if these errors do not rise to reversible error, they constitute cumulative error when considered together. We consider each group of arguments in turn.

A. Discovery Rulings

{9} "Although the rules favor the allowance of liberal pretrial discovery, the trial court is vested with discretion in determining whether to limit discovery." DeTevis v. Aragon, 1986-NMCA-105, ¶ 10, 104 N.M. 793, 727 P.2d 558 (citation omitted). Hence, we review the district court's discovery rulings only for an abuse of that broad discretion. N.M. State Inv. Council v. Weinstein, 2016-NMCA-069, ¶ 41, 382 P.3d 923. Plaintiffs assert that the district court improperly (1) denied their motions to compel discovery, (2) interpreted and applied the Review Organization Immunity Act (ROIA), §§ 41-9-1 to -7 (1979, as amended through 2011), and (3) granted a motion for protective order as to a Rule 1-030(B)(6) NMRA deposition.

{10} First, Plaintiffs argue that the district court "abused its discretion when it denied Plaintiffs' motions to compel" discovery as to Defendants' "financial motives." Plaintiffs' characterization of the district court's ruling is misleading. In fact, the district court granted Plaintiffs' motions to compel in large part and ordered Defendants to supplement their responses to Plaintiffs' interrogatories pertaining to their finances. Given the district court's ruling, we interpret Plaintiffs' argument to focus on the district court's rulings as to two specific interrogatories highlighted in Plaintiffs' brief. In spite of the district court's order compelling supplemental answers as to the cost of maintaining and staffing an operating room, the costs associated with cancelled surgeries, and the revenue obtained from Dr. Gerety's surgeries, Plaintiffs argue that the district court erred by failing to compel Defendants "to identify persons with knowledge of the block times arrangement or related finances." However, Plaintiffs do not explain how the denial of this request adversely affected them in light of the other discovery they obtained and, therefore, present no argument for review. "We decline to review such an undeveloped argument." Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076.

{11} Second, Plaintiffs argue that the district court erroneously denied their motion to compel discovery of four incident reports prepared by PHS's risk management department. In response to Plaintiffs' request for documents related to any investigation into Miller's surgery and subsequent infection, PHS identified four potentially responsive documents, but also stated that the ROIA protected the documents from disclosure. The district court reviewed the reports in camera and denied Plaintiffs' motion to compel, stating,

[A]ll of the documents reviewed in camera were generated solely for peer review. Further, the [c]ourt FINDS that none of the documents are critical or relevant to Plaintiff[s'] case. The [c]ourt also reviewed[] in camera[] items identified by Defendant as being immune from disclosure on the ground of work-product. The [c]ourt has reviewed the identified documents in camera and FINDS that the identified documents are identified as

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