Richter v. Presbyterian Healthcare Servs., & Reg'l Lab Corp.

• Decision Date: 02 May 2014
• Docket Number: 31,004.,Nos. 30,926,s. 30,926
• Parties: Timothy Andrew RICHTER, Individually, and as Personal Representative of the Estate of Kathryn Leslie Richter, Kristin Leslie Richter, and David Jeffrey Richter, Plaintiff–Appellant, v. PRESBYTERIAN HEALTHCARE SERVICES, and Regional Lab Corporation d/b/a Tri–Core Laboratories, Richard Lovato, M.D., and Keith Winterkorn, M.D., Defendants–Appellees.
• Court: Court of Appeals of New Mexico

326 P.3d 50

Timothy Andrew RICHTER, Individually, and as Personal Representative of the Estate of Kathryn Leslie Richter, Kristin Leslie Richter, and David Jeffrey Richter, Plaintiff–Appellant,

v.PRESBYTERIAN HEALTHCARE SERVICES, and Regional Lab Corporation d/b/a Tri–Core Laboratories, Richard Lovato, M.D., and Keith Winterkorn, M.D., Defendants–Appellees.

Nos. 30,926, 31,004.

Court of Appeals of New Mexico.

Feb. 26, 2014.

Certiorari Denied, May 2, 2014, No. 34,449.

Stephen G. Durkovich, Law Office of Stephen Durkovich, Santa Fe, NM, MacKenzie Lee Hunt, Hunt Law, P.C., Roswell, NM, for Appellant.

Emily A. Franke, W. Ann Maggiore, Butt, Thornton, & Baehr, P.C., Charles A. Pharris, Thomas C. Bird, Marian B. Hand, Heather K. Hansen, Keleher & McLeod, P.A., Lorri Krehbiel, Melanie Frassanito, Krehbiel Law Office, P.C., Ben M. Allen, Richard E. Hatch, Sebastian A. Dunlap, Allen, Shepherd, Lewis, Syra & Chapman, P.A., Albuquerque, NM, for Appellees.

OPINION

BUSTAMANTE, Judge.

{1} Kathryn Richter died in 2005 when she developed a heart arrhythmia during surgery intended to remove a tumor from her adrenal gland. The heart arrhythmia was caused by an undiagnosed condition called pheochromocytoma. Adding to the tragedy inherent in such a death, the parties discovered that during the course of a hospitalization in 2001, Mrs. Richter's then physicians ordered laboratory tests which were diagnostic of the condition that caused her death on the operating table. The tests were never read or acted on by her physicians.

{2} Plaintiff, Timothy Richter, as personal representative for his wife, brought a wrongful death action against Presbyterian Healthcare Services (PHS) and Regional Lab Corporation d/b/a Tri–Core Laboratories (TriCore), alleging negligent delivery of Mrs. Richter's laboratory test results in 2001. Plaintiff also brought a medical malpractice action against the two physicians treating Mrs. Richter at the time of her death, alleging medical negligence in her treatment. The district court granted some motions for summary judgment in favor of Plaintiff and some in favor of PHS and TriCore, and granted a partial directed verdict in favor of Dr. Winterkorn, one of Mrs. Richter's treating physicians.

{3} Analysis of the summary judgment rulings requires us to evaluate whether Plaintiff can assert his claims against PHS and TriCore as matters of “ordinary” negligence not requiring expert testimony, or whether they of necessity involve professional negligence which cannot be successfully pursued without experts. We conclude that certain aspects of Plaintiff's claims do not require expert testimony. We thus reverse the summary judgments as to those claims and affirm others.¹

{4} We affirm the partial directed verdict in favor of Dr. Winterkorn primarily because Plaintiff did not present sufficient expert testimony to avoid it.

{5} Plaintiff also appeals the district court's decision to include Mrs. Richter's 2001 physicians on the special verdict form as non-party tortfeasors. This decision allowed the jury to compare the negligence of the 2001 physicians with that of the 2005 physicians even though Plaintiff could not seek damages against the 2001 physicians because the statute of limitations under the Medical Malpractice Act, NMSA 1978, § 41–5–13 (1976), had run. Concluding that including the 2001 physicians on the verdict form is consistent with New Mexico's approach to comparative negligence, we affirm this ruling of the district court.

BACKGROUND

{6} We provide a short summary of the facts and procedural posture of the case here. Additional details will be provided as appropriate during discussion of the issues.

{7} Mrs. Richter was admitted to PHS in April 2001 for treatment and testing related to cardiac symptoms. On April 16, 2001, Dr. Seligman, one of Mrs. Richter's physicians, ordered catecholamine and metanephrine testing on her urine to determine whether she might have an undiagnosed pheochromocytoma. TriCore was responsible for processing the results of Mrs. Richter's urine catecholamine and metanephrine testing (the Lab Results) and delivering the Lab Results to PHS. TriCore also had the responsibility to deliver the Lab Results to Mrs. Richter's physicians, although there is a conflict in the record as to which of her physicians should have received them.

{8} Because TriCore did not perform testing of the type requested by Mrs. Richter's physician, the sample was shipped to ARUP Laboratories in Utah. The first of the Lab Results was sent by ARUP to TriCore on Saturday, April 21, 2001, and the second on Sunday. The first test showed catecholamine levels 150 times higher than normal. ARUP's interpretation of the result included the notation “[m]assive elevation of catecholamines ... associated with ... drug interferences, life-threatening illnesses, and neuroendocrine tumors.” The second test showed catecholamine metabolite levels in excess of 100 times normal. The interpretation provided by ARUP included the notation “Massive elevations of metanephrine or normetanephrine ... associated with ... drug interferences, life-threatening illnesses, and ... neuroendocrine tumors.” These levels were diagnostic of pheochromocytoma.

{9} Because TriCore did not operate on weekends, TriCore did not actually process the Lab Results and transmit them to PHS via the TriCore–PHS PACIS computer sharing system until 7:27 a.m. on Monday, April 23, 2001. TriCore records indicate that a hard copy of the Lab Results was printed for courier delivery to PHS at 11:06 a.m. that day. The record does not reveal whether the Lab Results were actually delivered to PHS that day or the next. Mrs. Richter was discharged from PHS at 2 p.m. on April 23, 2001. The record is unclear as to whether, at the time of Mrs. Richter's discharge, her chart was up-to-date or whether it indicated that her Lab Results were still pending. It appears from the record that Mrs. Richter's discharging physician—Dr. Ignacio Garcia—believed her results were still pending at the time of her discharge.

{10} Approximately four years later, a CT scan ordered by Mrs. Richter's gastroenterologist disclosed a mass sitting atop her adrenal gland. Her gastroenterologist referred Mrs. Richter to Dr. Lovato for surgery to remove the tumor. Prior to surgery, Dr. Lovato asked Mrs. Richter's then primary care physician to perform catecholamine testing—the same test conducted in 2001—to determine if her adrenal tumor was a pheochromocytoma. Dr. Lovato then scheduled Mrs. Richter for an embolectomy, to be conducted by Dr. Winterkorn. Dr. Winterkorn conducted the embolectomy before Dr. Lovato had received the results of the catecholamine testing. Mrs. Richter died while under the care of Drs. Lovato and Winterkorn due to complications that arose when she developed an arrhythmia during the embolectomy procedure.

{11} Plaintiff filed suit against PHS, TriCore, Dr. Lovato, and Dr. Winterkorn. Plaintiff and TriCore litigated at length in the early stages of the case as to whether TriCore was a qualified health care provider under the Medical Malpractice Act and whether TriCore's services constituted medical care under the Act. The district court first denied TriCore's motion to dismiss but granted a stay of the litigation and ordered Plaintiff to take his claim before the Medical Review Commission “for purposes of the procedural prerequisite.”

{12} Plaintiff subsequently filed three motions for summary judgment on the issue of whether the Medical Malpractice Act applied to his claims. In the first, he argued that TriCore was not a qualified health care provider under the Act. This motion was denied. The second motion asserted that the conduct Plaintiff alleged in his complaint did not constitute medical care under the Act. In the third motion, Plaintiff made additional arguments for his position that TriCore was not a health care provider under the Act. The district court heard argument on the second and third motions together. It ruled that TriCore's acts in delivering the Lab Results were not medical acts but instead were “ministerial” acts subject to ordinary negligence or negligence per se review and granted the second motion. Given this determination, the district court decided that the issue of whether TriCore was a health care provider under the Act was moot and did not rule on the third motion.

{13} A few days prior to trial, the district court found that “[t]here [are] no genuine issues of material fact as to the claims of negligence as against PHS and TriCore,” granted summary judgment in favor of PHS and TriCore, and dismissed the complaints against them. At the close of Plaintiff's case in chief, the district court granted a partial directed verdict in favor of Dr. Winterkorn on Plaintiff's medical negligence claim regarding Dr. Winterkorn's decision to continue the embolization procedure after Mrs. Richter developed an arrhythmia. During trial on the remaining claims against Drs. Lovato and Winterkorn, testimony was presented asserting that Plaintiff's 2001 PHS physicians were comparatively negligent. For comparative negligence purposes, the 2001 physicians were identified as non-party tortfeasors on the jury's special verdict form. The jury returned a verdict against Dr. Lovato and in favor of Dr. Winterkorn. The jury also found the four 2001 physicians negligent. Plaintiff timely appealed.

DISCUSSION

{14} On appeal we address four major questions. The first is whether Plaintiff's claims against TriCore and PHS sound in ordinary negligence rather than medical malpractice.Second, we address whether the district court properly granted motions for summary judgment and dismissal in favor of TriCore and PHS. The third issue is whether the district court improperly limited opinion testimony by a treating physician about Dr. Winterkorn and properly directed a verdict in favor of Dr. Winterkorn. The fourth and final issue is whether the district court erred...