Salopek v. Friedman

Citation308 P.3d 139
Decision Date04 June 2013
Docket NumberNo. 30,307.,30,307.
PartiesMichael SALOPEK, Plaintiff–Appellee/Cross–Appellant, v. David J. FRIEDMAN, M.D., Defendant–Appellant/Cross–Appellee.
CourtCourt of Appeals of New Mexico


The Perrin Law Firm, Doug Perrin, Santa Fe, NM, for Appellee.

Kemp Smith LLP, CaraLyn Banks, Las Cruces, NM, for Appellant.


KENNEDY, Chief Judge.

{1} David J. Friedman, M.D. (Defendant) appeals from a $600,000 judgment against him for medical malpractice on three grounds: (1) the district court failed to properly instruct the jury on the scope of Defendant's duty to Michael Salopek (Plaintiff), (2) the district court gave incorrect “eggshell plaintiff damages instructions, and (3) the district court erred in failing to order a new trial or remittitur. Plaintiff cross-appeals, contending that the statutory cap on damages in Section 41–5–6 of the Medical Malpractice Act (Act), NMSA 1978, §§ 41–5–1 to –29 (1976, as amended through 2008), is unconstitutional. We affirm.


{2} Plaintiff has familial adenomatous polyposis (polyposis), which is an inherited disorder characterized by the development of numerous polyps in the colon, which readily leads to colon cancer. Due to this condition, Plaintiff biannually underwent colonoscopies to remove polyps and evaluate the progression of his condition. On February 16, 2005, Plaintiff returned home from a routine colonoscopy with increasingly sharp abdominal pain and a fever. The following day Plaintiff went to the emergency room where he was attended to by Defendant, who, after evaluating the results of a CAT scan, stated that there appeared to be a perforation in Plaintiff's colon. The perforation appeared to have been caused by the colonoscopist puncturing Plaintiff's colon while removing a polyp with hot forceps during his colonoscopy.

{3} On February 17, 2005, to find and mend the perforation in Plaintiff's colon, Defendant performed a laparotomy, an exploratory abdominal surgery. Defendant “anticipated that if found, the perforation[ ] could be closed with a suture[.] Defendant did not locate the perforation at this juncture. Evidence indicated that this failure occurred because Defendant did not pressurize the colon with air during the laparotomy, a procedure which would have revealed the perforation. Testimony at trial established that a well-qualified surgeon, practicing under similar circumstances, would have pressurized the colon to locate the perforation. Eleven days after this failed attempt to locate the perforation, Defendant again operated on Plaintiff to find and fix the perforation. By this time, the perforation had enlarged because the injured colon tissue began to disintegrate. During this second surgery, Defendant used dye to pressurize the colon and locate the perforation. Defendant then removed the part of the colon where the perforation was located and created a colostomy to allow the colon to heal. The colostomy redirected Plaintiff's colon through his abdominal wall, so that stool would drain out of his body through his abdomen and into a colostomy bag that adhered to his skin.

{4} Shortly thereafter, Plaintiff terminated his doctor-patient relationship with Defendant. Plaintiff sought treatment from Dr. William Abbott to perform a take-down of the colostomy, which would reconnect the severed parts of his intestines. Because of Plaintiff's polyposis condition, performing a colostomy take-down that reattached his colon created additional concerns for his health. Due to these additional concerns, Plaintiff chose to have a restorative proctocolectomy that would remove the colon and attach the small intestine to the anus. Plaintiff suffered complications from the restorative proctocolectomy and, ultimately, had to have thirteen surgeries in total. Due to complications, Plaintiff's small intestine was not successfully permanently connected to his anus. As a result, his small intestine was yet again rerouted through his abdominal wall, so that waste could drain from his body through his abdominal wall into an ileostomy bag attached to his abdomen. At the time of trial, Plaintiff was still in this condition and stated that he did not anticipate living without an ileostomy bag in the future.

{5} Plaintiff sued Defendant for malpractice, claiming that Defendant was negligent in failing to use the proper techniques and find the perforation during the initial laparotomy. The jury found Defendant negligent and awarded Plaintiff $1,000,000. The districtcourt reduced the award to $600,000, pursuant to the cap on damages contained in Section 41–5–6 of the Act. These appeals followed.

II. DISCUSSIONA. The District Court Properly Denied Defendant's Motion Regarding Duty

{6} Defendant argues that the district court erred in denying his motion for judgment as a matter of law. Defendant contends that, by denying his motion, the district court “expanded the duty of physicians beyond that recognized under New Mexico law.”

[D]uty ... is for the court alone to define. Before the jury can resolve any factual matter, ... the court must first frame the relevant law. In a negligence action, this means the court must first find an actionable duty of care and then define the nature and scope of that duty.

Provencio v. Wenrich, 2011–NMSC–036, ¶ 16, 150 N.M. 457, 261 P.3d 1089.

{7} It is well established that “a doctor owes a general duty to provide competent care in treating a patient's medical condition.” Id. ¶ 27. The duty of care required of a doctor to a patient is set forth in UJI 13–1101 NMRA, which was applied at trial in this case and states:

In [treating, operating upon, making a diagnosis of, or caring for] a patient, [the doctor] is under the duty to possess and apply the knowledge and to use the skill and care ordinarily used by reasonably well-qualified [doctors] ... practicing under similar circumstances, giving due consideration to the locality involved.

{8} As Defendant argues, we reference “the specific circumstances actually presented” to determine whether a duty exists with reference to a foreseeable plaintiff with foreseeable harm. Romero v. Giant Stop–N–Go of N.M., Inc., 2009–NMCA–059, ¶ 9, 146 N.M. 520, 212 P.3d 408. In the context of duty, [f]oreseeability is what one might objectively and reasonably expect, not merely what might conceivably occur.” Johnstone v. City of Albuquerque, 2006–NMCA–119, ¶ 8, 140 N.M. 596, 145 P.3d 76 (internal quotation marks and citation omitted); see Chavez v. Desert Eagle Distrib. Co. of N.M., LLC, 2007–NMCA–018, ¶ 17, 141 N.M. 116, 151 P.3d 77 (“The risk must be actual and perceptible, not speculative.” (internal quotation marks and citation omitted)). Thus, we frame the question of duty in this case to be whether a well-qualified doctor in New Mexico, who knows his patient likely has a punctured colon and fails to pressurize his patient's colon during a laparotomy, should foresee that he would fail to find the perforation during the laparotomy and that complications related to a corrective procedure would arise as a result of this failure.

{9} Defendant argues that [t]here is no basis to support the [d]istrict [c]ourt's decision that Defendant owed a duty to Plaintiff related to prospective elective procedures given the circumstances present in this case.” Defendant explains that he “could not objectively and reasonably expect that his purported failure to find a perforation in Plaintiff's colon during surgery ... [would] result in Plaintiff suffering complications [from a later] elective procedure.” Defendant concludes that he had “no duty [to Plaintiff for Plaintiff's later complications] given his inability to control the subsequent treatment provided to Plaintiff ... after the [doctor-patient relationship] was terminated.” Defendant argues that he “was therefore not liable for Plaintiff's decision to have the [restorative proctocolectomy] procedure in November 2005 or the resulting complications from that procedure.”

{10} We disagree with Defendant and conclude that he should have foreseen that Plaintiff would suffer these particular harms when Defendant failed to pressurize Plaintiff's colon during the laparotomy. At trial, expert testimony indicated that Defendant would have discovered the perforation during the first surgery if he had pressurized the colon. In addition, evidence demonstrated that if the perforation was located in the first surgery, Defendant would have been able to mend it with sutures. Because Defendant waited eleven days, the injured colon tissue began to disintegrate, and the affected part of the colon now required removal rather than a few stitches. In addition, Defendant knew Plaintiff had preexisting hereditary polyposis and that Plaintiff would require additional surgery to take down the colostomy that Defendant unnecessarily created. We conclude that removal of a section of Plaintiff's colon, a colostomy, and additional surgery were foreseeable harms that Plaintiff would suffer when Defendant did not pressurize the colon and, thereby, failed to locate the puncture during the first surgery.

{11} After the colostomy, Plaintiff had several options, including a take-down of the colostomy and reattaching of the colon, or a restorative proctocolectomy (removing the colon and attaching the small intestine to the anus). The heart of Defendant's argument is that the restorative proctocolectomy was an elective procedure unrelated to the colostomy and that he could not expect complications to occur during the restorative proctocolectomy due to Plaintiff's anatomy. We disagree and conclude that the restorative proctocolectomy was related to the colostomy, in that it was among several reasonable options presented to Plaintiff to reverse the colostomy and restore Plaintiff's bowels to a more normal function. Plaintiff's expert, a physician and surgeon, testified that it was foreseeable that a restorative proctocolectomy would be an option for Plaintiff following a colostomy...

To continue reading

Request your trial
18 cases
  • Velasquez v. Regents of N. N.M. Coll.
    • United States
    • Court of Appeals of New Mexico
    • September 28, 2020
    ...¶ 12, 420 P.3d 586 (same), cert. granted , 2018-NMCERT-006 (No. S-1-SC-36918, June 4, 2018); Salopek v. Friedman , 2013-NMCA-087, ¶ 30, 308 P.3d 139 (same); Wachocki v. Bernalillo Cty. Sheriff's Dep't , 2010-NMCA-021, ¶ 48, 147 N.M. 720, 228 P.3d 504 (same), separate holding aff'd , 2011-NM......
  • Estate of Saenz v. Ranack Constructors, Inc.
    • United States
    • Court of Appeals of New Mexico
    • August 18, 2015
    ...v. Dexter Consol. Sch., 2000–NMSC–025, ¶ 26, 129 N.M. 436, 10 P.3d 115. Our review is de novo. Salopek v. Friedman, 2013–NMCA–087, ¶ 16, 308 P.3d 139. And while we will resolve doubts in favor of the party claiming prejudice where an instruction is inconsistent with the UJI, Kennedy, 2000–N......
  • Leger v. Leger
    • United States
    • Court of Appeals of New Mexico
    • November 28, 2018
    ...and by establishing a limitation on full recovery for malpractice injury"); see also Salopek v. Friedman , 2013-NMCA-087, ¶¶ 50-58, 308 P.3d 139 (discussing some differences between medical malpractice claims under the MMA and under the common law). It is also at odds with the conclusion of......
  • Molinar v. Larry Reetz Constr., Ltd.
    • United States
    • Court of Appeals of New Mexico
    • August 17, 2017
    ...and holding that compensation is based on "the combined effect of both impairments"). Cf. Salopek v. Friedman , 2013-NMCA-087, ¶¶ 17-22, 308 P.3d 139 (explaining the differences between "aggravation" and "eggshell" theories of liability in tort law). The latter type of injury is the constru......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT