Wirth v. Sun Healthcare Grp., Inc.

• Citation: 389 P.3d 295
• Decision Date: 15 September 2016
• Docket Number: NO. 34,269,34,269
• Parties: Peter WIRTH, Esq., as Personal Representative of the Estate of Inez Martinez, Plaintiff–Appellee, v. SUN HEALTHCARE GROUP, INC., Sunbridge Healthcare, LLC, Peak Medical, LLC, and Peak Medical Assisted Living, LLC d/b/a the Village at Northrise, Defendants–Appellants.
• Court: Court of Appeals of New Mexico

389 P.3d 295

Peter WIRTH, Esq., as Personal Representative of the Estate of Inez Martinez, Plaintiff–Appellee,

v.SUN HEALTHCARE GROUP, INC., Sunbridge Healthcare, LLC, Peak Medical, LLC, and Peak Medical Assisted Living, LLC d/b/a the Village at Northrise, Defendants–Appellants.

NO. 34,269

Court of Appeals of New Mexico.

Filing Date: September 15, 2016

Curtis & Lucero, Lisa K. Curtis, Amalia S. Lucero, Albuquerque, NM, Tucker Law Firm P.C., Steven L. Tucker, Santa Fe, NM, for Appellee.

Quintairos, Prieto, Wood & Boyer, P.A., Frank Alvarez, Kristin McLaughlin, Dallas, TX, Rodey, Dickason, Sloan, Akin & Robb, P.A., Edward Ricco, Jocelyn Drennan, Albuquerque, NM, for Appellants.

OPINION

VANZI, Judge.

{1} The decedent in this wrongful death lawsuit was Inez Martinez, a resident at the Village at Northrise (VNR), which is a skilled nursing facility. The only remaining Defendants are Peak Medical Assisted Living, LLC (PMAL)—doing business as VNR—and three upstream entities in its ownership chain, which Plaintiff (as personal representative for Martinez) has alleged are joint venturers and co-employers of the staff at VNR. At the close of a six-day jury trial, the district court directed verdicts for Plaintiff on theories of negligent operation of a facility and negligence per se. The jury then found that at least one of those theories of negligence caused Martinez's death.

{2} Since the jury also found that Defendants were joint venturers and co-employers, the court entered judgment against all four entities, jointly and severally. The court then awarded interest under NMSA 1978, Section 56–8–4(B) (2004), which allows a discretionary award of prejudgment interest of up to 10 percent from the date the complaint is served when a defendant fails to make a reasonable and timely settlement offer. This appeal challenges the underlying directed verdicts, the submission of the joint venture and co-employment issues to the jury, and the assessment of prejudgment interest. We affirm with respect to PMAL, which is liable for the negligent acts or omissions of its employees. But we set aside the judgment against the other defendants and remand for a corresponding reassessment of prejudgment interest.

BACKGROUND

{3} On April 15, 2010, Inez Martinez, age 82, was admitted to VNR where she was to recuperate from pacemaker implantation surgery for an anticipated stay of twenty days. She was discharged on May 5, 2010, by order of her attending physician, Dr. Guadencio Pavia, who was credentialed to see patients at the facility. Martinez died shortly thereafter as a result of sepsis caused by a wound

infection (staph) at her incision.

{4} Dr. Pavia never examined Martinez's incision during her stay at VNR, and it was later revealed at trial that attending physicians were not required to come to the facility to see their patients. To be sure, Martinez did see physicians on two occasions: first on April 23, when her cardiologist found that her incision was healing well, and again on May 3, when she met with Dr. Pavia at his office and was cleared for discharge. But by all accounts, Dr. Pavia ordered Martinez's discharge without even removing her bandage, making that off-site meeting effectively useless for diagnosing a wound

infection, even if early symptoms would have been manifest on May 3.

{5} On May 4, after the off-site meeting but prior to discharge, a nurse at VNR noted "scabbed pus" around Martinez's incision. The nursing staff applied antibiotic ointment, covered the incision with sterile gauze, and notified Dr. Pavia by fax of what had been observed and what had been done. Dr. Pavia signed the fax, presumably indicating that he read it; but he did not modify his discharge order, he left no instruction for the nursing staff, and—in accordance with his normal practice—he did not come to the facility to see his patient.

{6} The next day, Martinez complained of a "[m]oderate, severe pain" that was progressing from the site of her pacemaker to her left shoulder. This time without notifying Dr. Pavia, staff administered two doses of narcotic pain medication and discharged Martinez from the facility pursuant to Dr. Pavia's May 3 order.

{7} Once home, Martinez's condition rapidly deteriorated. She was hospitalized with a wound

infection that had become septic. She received aggressive treatment, but her symptoms worsened: she developed stress ulcers, hypoxemia, liver damage, and kidney failure. Martinez died at the hospital—thirty-one days after her admission to VNR.

{8} The administrator at VNR, who was employed by PMAL, should have required attending physicians, including Dr. Pavia, to come to the facility to see their patients. Experts for both sides agreed that the failure to do so fell below the standard of care applicable to a skilled nursing facility. But the evidence conflicted as to whether signs of a wound

infection were apparent on May 4 and 5, raising a question whether the result would have been any different had Martinez been examined by her physician before discharge.

{9} Thus, based on the experts' opinions, Plaintiff moved for directed verdict on a theory of negligent operation of the facility with the understanding that the jury would still have to determine whether the failure to require Dr. Pavia to visit Martinez at the facility caused her death. Plaintiff also moved for directed verdict on a closely related theory of negligence per se, arguing that the facility had violated both a federal and a state regulation.

{10} The federal regulation, 42 C.F.R. § 483.75(h) (2014), is part of a complex scheme of conditions that nursing homes must meet to participate in medicare and medicaid programs. See 42 C.F.R. § 483.1(b) (2015). Its somewhat cryptic language requires a nursing home to either employ a qualified professional to furnish a specific service to residents or to

have that service furnished ... by a person or agency outside the facility under an arrangement ... [that] must specify in writing that the facility assumes responsibility for ... [o]btaining services that meet professional standards and principles that apply to professionals providing services in such a facility[.]

42 C.F.R. § 483.75(h)(1), (2)(i).

{11} The state regulation, 7.9.2.37(A), (C)(1) NMAC, requires that a physical examination be conducted within forty-eight hours on persons admitted to nursing homes, except those admitted for short-term care. Although it was undisputed at trial that Martinez was expected to stay at VNR for twenty days, and that no physician examined her within forty-eight hours of her admission, there was no testimony about the meaning of the short-term care exception. "Short-term care" is not defined in the regulations, and the parties have not cited any authority defining the term, nor pointed to any case interpreting it.

{12} The district court ultimately granted the directed verdict motions. Because causation was still at issue, the directed verdicts did not determine liability. They only resulted in a jury instruction that Defendants had been held negligent as a matter of law in all three respects, and that the jury could return a verdict for Plaintiff if it found that any such negligence was a cause of Martinez's death. Accompanying that instruction was a verdict form that accordingly asked, "Do you believe that any of these acts of negligence by ... Defendants were a cause of injury and damage [to] Martinez?" Without any further specification, the jury marked "[y]es."

{13} Defendants twice moved for a directed verdict on Plaintiff's theories of joint venture and co-employment. The district court denied Defendants' motions, and the jury found that all Defendants were joint venturers and co-employers of the staff at VNR. Upon finding causation, the jury returned a verdict for Plaintiff awarding compensatory damages of $2.5 million. The court then agreed with Plaintiff that Defendants' only settlement offer of $250,000 was unreasonable. It awarded prejudgment interest at 8 percent per annum in the total amount of $334,246.57.

{14} Defendants now make several arguments, some of which were not made below. To the extent their arguments were not preserved, they invoke the doctrine of fundamental error, which they recognize applies in civil cases in only "the most extraordinary and limited circumstances." See Estate of Gutierrez ex rel. Jaramillo v. Meteor Monument, L.L.C. , 2012–NMSC–004, ¶ 33, ––– N.M. ––––, 274 P.3d 97. They assert, first, that directing a verdict on the negligent operation theory was error because expert opinions—even when unanimous—are not binding on the jury. That is, since our case law allows juries to reject expert testimony, see, e.g. , S tate v. Moore , 1938–NMSC–007, ¶ 73, 42 N.M. 135, 76 P.2d 19, the directed verdict on the negligent operation claim must have been improperly based on the district court's decision to accept the testimony, and not the jury's.

{15} Defendants also argue that it was error to direct verdicts based on the federal and state regulations because the federal regulation does not set forth a specific standard of conduct distinct from the medical negligence standard of care, see Heath v. La Mariana Apartments , 2008–NMSC–017, ¶ 9, 143 N.M. 657, 180 P.3d 664, and the state regulation, by its terms, does not apply to short-term care. Since the verdict form does not reveal which theory the jury found to be causative, Defendants argue that a new trial is required if any directed verdict was improperly granted. See Bachicha v. Lewis , 1987–NMCA–053, ¶ 16, 105 N.M. 726, 737 P.2d 85 ("[W]here we cannot tell whether the jury based its verdict upon an improperly submitted issue, the proper procedure is to reverse and remand for a new trial on all issues.").

{16} With respect to joint and several liability, Defendants contend that the evidence showed nothing more than the degree of control normally incident to a chain of ownership in a legitimate corporate structure. In a parent-subsidiary relationship, "[t]...