Sutherlin v. Fenenga, s. 10510

Citation111 N.M. 767, 810 P.2d 353, 1991 NMCA 11
Case DateJanuary 24, 1991
CourtCourt of Appeals of New Mexico
[111 N.M. 770] Dines & McCary, P.C., Albuquerque, amicus curiae--NM Dep't of Ins


Defendant Dr. Adriana Fenenga appeals from a judgment entered in a wrongful death and medical malpractice action following a jury trial awarding plaintiff Jack C. Sutherlin, Jr., the personal representative of the estate of his minor son, Mark Sutherlin, deceased, compensatory and punitive damages. Plaintiff also pursues a cross-appeal challenging the trial court's reduction of compensatory damages in accordance with the statutory limitation imposed by NMSA 1978, Section 41-5-6 (Repl.Pamp.1986).

We first discuss six issues summarily. We then discuss (1) whether the trial court erred in refusing to give defendant's tendered instruction on sudden emergency; and (2) whether questions and references to insurance by plaintiff's counsel during voir dire constituted reversible error. Because we determine that the judgment should be vacated and the cause remanded for a new trial, we do not address other issues raised by defendant or plaintiff's claims raised on the cross-appeal that the trial court erred in reducing the award of compensatory and punitive damages, or plaintiff's challenge to the constitutionality of Section 41-5-6 limiting the amount of compensatory and punitive damage awards.


Decedent Mark Sutherlin, age 16, injured his right knee in a sports accident. On December 17, 1981, he was admitted to Memorial General Hospital in Las Cruces to undergo surgery to repair his knee. He was operated on the next day. Defendant, Dr. Fenenga, was the anesthesiologist for the operation.

Plaintiff presented evidence indicating that the anesthesia machine used by defendant malfunctioned during decedent's operation. A post-operative examination of the machine indicated that an extra disk in the machine had blocked the expiratory valve and prevented air from escaping Mark's body. The pressure ruptured Mark's left lung, permitting air to escape into his chest cavity, causing subcutaneous emphysema and pneumothorax. As a result of his injuries, decedent died the following day. Plaintiff presented evidence that the same anesthesia machine used during decedent's operation had also malfunctioned previously, during another operation.

Plaintiff's complaint alleged, among other things, that decedent's death was caused by defendant's failure to properly check the machine before the operation, to properly monitor the patient during the operation, and to take prompt and proper action after she became aware of the machine's malfunction. Defendant denied any negligence on her part. She asserted at trial, among other things, that the anesthesia machine was negligently manufactured, that the manufacturer failed to provide adequate warnings and instructions, that the hospital and its staff failed to properly maintain the machine, and that she responded appropriately when confronted with a sudden emergency.

At the conclusion of the trial the jury returned a special verdict awarding plaintiff $1,200,000 in compensatory damages and $2,000,000 in punitive damages. In entering its final judgment, the trial court reduced the compensatory damage award to $500,000 to conform to the limit imposed in Section 41-5-6 of the Medical Malpractice Act.

(A) Allowance of Punitive Damage Claim

Defendant contends that the trial court erred in allowing the issue of punitive damages to be submitted to the jury. She contends that there was no evidence of a causal connection between her alleged negligent acts and decedent's death. See Cartee v. Lesley, 290 S.C. 333, 350 S.E.2d 388 (1986); Biswell v. Duncan, 742 P.2d 80 (Utah App.1987). She also contends that there was no evidence that her mental state was sufficiently culpable to permit punitive damages.

A trial court's decision to submit an instruction on a party's theory of the case or claim to the jury will not be reversed unless it appears that the matter in dispute cannot be sustained by the evidence. See Thompson Drilling, Inc. v. Romig, 105 N.M. 701, 736 P.2d 979 (1987); State ex rel. Goodmans Office Furniture, Inc. v. Page & Wirtz Constr. Co., 102 N.M. 22, 690 P.2d 1016 (1984).

The trial court determined that defendant's failure to promptly advise the other doctors that she suspected an air embolism was sufficient to support a claim for punitive damages. Defendant contests this ruling, arguing that she believed at the time of the operation that an air embolism was untreatable. She argues that any failure to disclose her suspicion did not, as a matter of law, rise to the level of "reckless indifference" necessary to support a finding of gross negligence. In New Mexico, proof of gross negligence resulting in injury is a valid basis to support an award of punitive damages. Valdez v. Warner, 106 N.M. 305, 742 P.2d 517 (Ct.App.1987). In the context of medical malpractice, gross negligence must rise to the level of "reckless indifference." Gonzales v. Sansoy, 103 N.M. 127, 703 P.2d 904 (Ct.App.1984).

In the present case, there was evidence from which the jury could have determined that defendant was grossly negligent in failing to promptly advise other physicians of the nature of the emergency, failing to properly check the machine prior to decedent's operation, or failing to properly monitor the patient during the operation. Moreover, there was sufficient evidence from which the jury could reasonably determine that a causal connection existed between decedent's death and defendant's alleged failure to properly monitor the patient and advise the other doctors of the patient's condition during the operation. This evidence was sufficient to support the trial court's ruling permitting the issue of punitive damages to be submitted to the jury.

(B) Abandonment Instruction

Plaintiff submitted a proposed jury instruction pursuant to SCRA 1986, UJI Civ. 13-1801, concerning his claim that defendant abandoned the patient at a time when he was in need of prompt medical attention. Defendant objected to the giving of an abandonment instruction, arguing that it injected a false issue. Defendant also argued that the instruction was unsupported by the evidence. See State v. Atchison, Topeka and Santa Fe Ry. Co., 76 N.M. 587, 417 P.2d 68 (1966).

The court's instruction provided in part that in order to establish "the claim of negligence * * * plaintiff has the burden of proving at least one of the following contentions: * * * Dr. Fenenga, having discovered that her patient, decedent, was in serious threat of injury, or that he had already been injured, failed to take appropriate steps to save her patient and instead abandoned him." A second instruction stated: "A doctor's duty to a patient who is in need of care continues until the doctor has withdrawn from the case. A doctor cannot abandon the patient who is in need of continuing care. A doctor can withdraw by giving the patient reasonable notice under the circumstances." See UJI Civ. 13-1115.

Defendant contends that the evidence fails to show that she intended to abandon her patient and instead that it only gives rise to an inference that she failed to meet the required standard of care. Estate of Smith v. Lerner, 387 N.W.2d 576 (Iowa 1986); Dicke v. Graves, 9 Kan.App.2d 1, 668 P.2d 189 (1983); see Annotation, Liability of Physician Who Abandons Case, 57 A.L.R.2d 432 (1958). Defendant also argues that abandonment cannot exist under UJI Civ. 13-1801 when the patient is left in the care of an adequate attendant. Lee v. Dewbre, 362 S.W.2d 900 (Tex.Civ.App.1962); Meeks v. Coan, 165 Ga.App. 731, 302 S.E.2d 418 (1983). Whether abandonment has occurred is generally a question of fact to be determined by the jury under the circumstances of each case. See O'Neill v. Montefiore Hosp., 11 A.D.2d 132, 202 N.Y.S.2d 436 (1960).

Our review of the record, including defendant's testimony on cross-examination indicates that shortly after accompanying decedent to the recovery room, defendant left him in order to administer anesthesia in another operation. Defendant first testified that she remained "continuously" with decedent in order to assist in rendering treatment and that she "felt it was my responsibility" to remain with him "to make certain that he received the proper care." When confronted with hospital records, however, she admitted she had not stayed with the patient.

Under these facts, the issue of defendant's alleged abandonment was a fact question for the jury to decide, and the trial court properly submitted the instruction. The jury could conclude from defendant's own testimony that it was her responsibility to remain with her patient and that her act of leaving the recovery room shortly after the operation constituted abandonment.

(C) Failure of Court to Instruct on UJI Civ. 13-2008

The trial court gave an instruction in accordance with SCRA 1986, UJI Civ. 13-1801, but failed to give an instruction based on SCRA...

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