Payne v. Hall, 22,383.

• Decision Date: 01 July 2004
• Docket Number: No. 22,383.,22,383.
• Citation: 98 P.3d 1030,136 N.M. 380
• Parties: Kimberly J. PAYNE, Plaintiff-Appellant/Cross-Appellee, v. Thomas HALL, M.D., and Curtis W. Boyd, M.D., a Professional Corporation, Defendants-Appellees/Cross-Appellants.
• Court: Court of Appeals of New Mexico

98 P.3d 1030

136 N.M. 380

Kimberly J. PAYNE, Plaintiff-Appellant/Cross-Appellee, v. Thomas HALL, M.D., and Curtis W. Boyd, M.D., a Professional Corporation, Defendants-Appellees/Cross-Appellants.

No. 22,383.

Court of Appeals of New Mexico.

July 1, 2004.

Certiorari Granted October 1, 2004.

Clay H. Paulos, Ian D. McKelvy, Sanders, Bruin, Coll & Worley, P.A., Roswell, NM, for Appellant.

Michelle U. Estrada, Michael W. Brennan, Madison, Harbour, Mroz & Brennan, P.A., Albuquerque, NM, for Appellees.

Certiorari Granted, No. 28,832, October 1, 2004.

OPINION

CASTILLO, Judge.

{1} In this case, we decide whether an alleged original tortfeasor may claim that the alleged successive tortfeasor was the sole proximate cause of a plaintiff's injury. Plaintiff Kimberly J. Payne sued Defendants Thomas Hall, M.D., (Dr. Hall) and the medical clinic Curtis W. Boyd, M.D., P.C., (clinic) for negligence in performing an abortion; she claimed that their negligence resulted in injuries enhanced by doctors at the University of New Mexico Hospital (hospital). The jury returned a special verdict of negligence but found that Defendants' negligence was not the proximate cause of Plaintiff's injuries. On appeal, Plaintiff raises five issues: (1) the district court erred in permitting evidence, testimony, and argument of comparative fault; (2) proximate cause should have been imposed as a matter of law once the jury found negligence; (3) the jury was improperly instructed that it could find that the injuries were solely the result of the hospital's negligence; (4) the testimony of one of Defendants' expert witnesses was cumulative and inadmissible; and (5) evidence of Plaintiff's alleged prior intravenous drug use was inadmissible. We affirm.

I. BACKGROUND

{2} Plaintiff's physician referred her to the clinic for an abortion of her eighteen-week-old fetus. Because she was in the second trimester of pregnancy, the clinic scheduled a two-day abortion procedure known as a D & E, a dilation and extraction. On the first day of the procedure, Plaintiff filled out clinic forms, including medical history, and received counseling and an initial health check. She also spoke with Dr. Hall, an employee of the clinic, who would perform the abortion. There were no questions on the medical history form concerning prior intravenous (IV) drug use. The form did ask whether a patient was currently using street drugs; Plaintiff answered no. After the background procedures were completed, Dr. Hall began the dilation portion of the procedure. He inserted a dilator, called a laminaria, into Plaintiff's cervix. The purpose of the laminaria is to expand the cervical canal, which is part of the uterus, so that on the second day of the procedure, the physician can more easily access the uterus with instruments to extract the fetus. Plaintiff had difficulty relaxing and experienced a high level of discomfort with the first day's procedure; Dr. Hall actually stopped before inserting the laminaria and suggested to Plaintiff that if she could not tolerate it, then it would not be advisable to continue. Plaintiff asked Dr. Hall to try again because she wanted the abortion. Dr. Hall did so, and the laminaria was fully inserted. Plaintiff returned to the clinic on December 11, 1997, so that Dr. Hall could perform the extraction, thus completing the abortion procedure.

{3} On the second day, neither the clinic staff nor Dr. Hall was able to start an IV in Plaintiff's arms; Dr. Hall testified that he saw scarring on Plaintiff's arms. Although at trial Plaintiff denied taking illegal drugs intravenously in her arms, Dr. Hall further testified that he questioned Plaintiff about the scarring and that she acknowledged having been an intravenous drug user. After determining that an IV would not be possible, clinic staff unsuccessfully attempted to obtain an anesthesiologist. Dr. Hall discussed with Plaintiff other alternatives to an IV. One option was to continue with the procedure in the clinic by using intramuscular (IM) anesthesia for pain control; another option was to find a doctor to perform the procedure in a hospital. Dr. Hall told Plaintiff of the difficulty of doing the procedure without IV access because of the possibility of bleeding. He also told her he would have to transfer her to the hospital if she had inordinate bleeding or if she was unable to tolerate the procedure without general anesthesia. Plaintiff opted to have the abortion at the clinic.

{4} After IM anesthesia was administered, Dr. Hall proceeded to remove the laminaria with Sopher forceps. At this point, Plaintiff apparently had a hard time staying still, was in a significant amount of distress, began experiencing a lot of pain, and was screaming and moving her legs and body off the table. Dr. Hall stopped the procedure and asked Plaintiff if she could tolerate continuing if given more pain medication. After Plaintiff indicated that she wanted to go on with the procedure, a nurse administered an additional dose of medication.

{5} Plaintiff testified that after the second dose of medication, the procedure was not quite as painful; but she said she still had pain, which toward the end "became extreme .... just like somebody had stabbed you." At various times during the second day's procedure, Plaintiff requested that Dr. Hall stop. Although the parties dispute the extent of his compliance with her requests, Dr. Hall testified that he stopped each time and asked Plaintiff if she wanted to continue before he proceeded.

{6} After the second dose of medication took effect, Dr. Hall began the process of dilating the cervix and, when the cervix was large enough, inserted the Sopher forceps in an unsuccessful attempt to rupture the membranes. Following his attempt to rupture the membranes, he inserted a suction cannula to extract the fetus. The cannula, a plastic tube, is attached to a machine operating like a vacuum cleaner; the machine provides the suction for the extraction. Plaintiff again asked him to stop. At this point, Dr. Hall determined that he was unable to complete the procedure and contacted Shauna Jamison, M.D., (Dr. Jamison) at the hospital to determine if she would be willing to continue the abortion. She was willing, and Plaintiff was transported to the hospital. At trial, the parties disputed whether or not Dr. Hall perforated Plaintiff's uterus or whether any other unintended physical injuries occurred at the clinic and necessitated the transfer. According to Dr. Hall, Plaintiff's inability to tolerate the procedure caused the transfer. In his operative report, Dr. Hall wrote that Plaintiff was "having extreme pain with beginning extraction" and that he "strongly suspect[s] possible perforation." Plaintiff contends that the suspected perforation necessitated the transfer.

{7} Plaintiff arrived at the emergency room and was examined by Jackie Johnson-Maybach, M.D., (Dr. Maybach), a second-year gynecology resident. Dr. Maybach reported that Plaintiff appeared stable and had normal vital signs and no obvious evidence of a perforation. An hour and a half later, Plaintiff was taken to the operating room and placed under general anesthesia. Prior to taking Plaintiff to the operating room, Dr. Jamison contacted Dr. Hall to determine what had actually transpired during the procedure at the clinic. In response to her questions, Dr. Hall told Dr. Jamison that he had not ruptured the membrane and had not obtained any tissue or removed any fetal parts. There was a dispute as to Dr. Hall's response to the question of whether he had perforated the uterus. Dr. Jamison insists he said no; Dr. Hall insists he said, "I [don't] think so, but I could not be sure."

{8} Once Plaintiff was anesthetized, Dr. Maybach attempted to complete the abortion under the supervision of Dr. Jamison. Dr. Maybach placed Sopher forceps through Plaintiff's cervix and twice unsuccessfully tried to rupture the membranes. Dr. Jamison then took the forceps, went into the uterus, and pulled out a lower extremity of the fetus; she then let Dr. Maybach continue with the procedure. There was testimony that Dr. Maybach previously performed only two or three prior abortions, none of which was complicated. Dr. Jamison, aware of this fact, let Dr. Maybach proceed "because she wanted to do the procedure and I wanted to guide her and give her more experience in that." Dr. Jamison also testified that had she suspected Dr. Hall had perforated the uterus, she would not have permitted Dr. Maybach to "go into the uterus." Dr. Maybach went back into the uterus with the suction cannula; a whitish tissue passed through the tubing. The pathologist later determined that the tissue was Plaintiff's right ureter. The ureters are the tubes that drain the kidneys down to the bladder. Dr. Maybach next inserted the forceps to grasp tissue; when she took the forceps out, Plaintiff's right ovary was in them. At that point, the two doctors terminated the abortion procedure and prepared Plaintiff for abdominal surgery.

{9} Upon opening Plaintiff's abdomen, the doctors found that Plaintiff's uterus was perforated and that the fetus was partially into the abdominal cavity through the wall of the uterus; Dr. Jamison, with the assistance of Dr. Maybach, extracted the fetus and proceeded to do a hysterectomy. Dr. Jamison testified that the large perforation in the uterus required the hysterectomy. Following the removal of the uterus, Dr. Jamison looked for but was unable to locate the right ureter. Unaware that it had actually been removed earlier through the suction cannula, Dr. Jamison called urology for assistance to find it. As indicated above, it was eventually found by the pathologist. As a result of the avulsed ureter, Plaintiff lost a kidney.

{10} After Plaintiff filed her complaint, Dr. Hall and the clinic (Defendants) filed a third-party complaint seeking indemnification from the hospital. The third-party claim was dismissed for failure to...