Zamora v. St. Vincent Hosp.

• Decision Date: 18 September 2014
• Docket Number: 33,770.
• Citation: 335 P.3d 1243,2014 NMSC 035
• Parties: Diego ZAMORA as Personal Representative of the Estate of William “Mack” Vaughan, Plaintiff–Petitioner, v. ST. VINCENT HOSPITAL, Defendant–Respondent.
• Court: New Mexico Supreme Court

335 P.3d 1243

2014 NMSC 035

Diego ZAMORA as Personal Representative of the Estate of William “Mack” Vaughan, Plaintiff–Petitioner

v.ST. VINCENT HOSPITAL, Defendant–Respondent.

33,770.

Supreme Court of New Mexico.

Sept. 18, 2014.

Tucker Law Firm, P.C., Steven L. Tucker, Law Office of Stephen Durkovich, Stephen G. Durkovich, Santa Fe, NM, for Petitioner.

Hinkle, Hensley, Shanor & Martin, LLP, William P. Slattery, Dana Simmons Hardy, Santa Fe, NM, for Respondent.

OPINION

DANIELS, Justice.

{1} In this medical negligence case, we reaffirm New Mexico's longstanding commitment to the nontechnical fair notice requirements of Rule 1–008 NMRA, “General rules of pleading.” Plaintiff William “Mack” Vaughan alleges that, as the result of a communication failure between a surgeon and a contract radiologist, Defendant St. Vincent Hospital failed to tell Vaughan about his cancer diagnosis

. The district court granted summary judgment for St. Vincent because Vaughan did not specifically plead vicarious liability relating to the radiologist, St. Vincent's apparent agent, and failed to establish a genuine issue of material fact through expert testimony. We reverse and remand, holding that Vaughan's complaint adequately notified St. Vincent that one or more of its employees or agents was negligent and that genuine issues of material fact required resolution at a trial on the merits.

I. FACTUAL AND PROCEDURAL BACKGROUND

{2} In August 2002, Vaughan presented to the emergency room at St. Vincent Hospital in Santa Fe, New Mexico, with symptoms that included abdominal pain. He was examined by emergency department physician Martin Wilt and surgeon Anna Voltura. Radiologist J.R. Damron, a contract employee, performed an abdominal scan on Vaughan and interpreted the results. Damron's initial conclusion was that Vaughan had a diverticular abscess

, and although Damron discussed this diagnosis in person with Voltura, it is unclear whether he and Voltura discussed the possibility of a neoplasm (cancer ). Voltura conveyed the diverticulitis diagnosis to Vaughan and recommended that he be admitted to the hospital for observation. Vaughan refused and was discharged from the emergency room. Voltura also advised Vaughan to follow up with her for a sigmoid colectomy (removal of the left part of the colon), although he never did.

{3} Damron dictated his radiology report, dated the day after Vaughan's visit, to a hospital transcriber. In his report, Damron noted that “[a]n abscess

associated with a diverticulitis would be a first consideration with neoplasm as the etiology being the second consideration. ” (Emphasis added.)

The impression section of Damron's report read, “Pelvic abscess

... approximates 4.5 x 3 cm in size. The results of this study were communicated to Dr. Wilt and Dr. Voltura.” The radiology report does not indicate whether copies were delivered to either Wilt or Voltura. In a sworn statement, Voltura said that she did not receive the report noting the secondary neoplasm diagnosis and that she would have expected to receive it. Voltura stated that had she seen the word “neoplasm ” in the report, she “would have tried to do whatever [she] could to get ahold of the patient.” Vaughan was diagnosed with Stage III colon cancer fourteen months later.

{4} In January 2006, Vaughan filed a complaint against St. Vincent alleging, “As a consequence of the apparent failure by St. Vincent's Hospital through an administrative inadequacy to forward the radiology report on to Dr. Voltura, Mr. Vaughan was treated for a diverticular abscess

with antibiotics, allowing the neoplasm to continue to grow.” St. Vincent sent Vaughan interrogatories requesting, among other things, the identity of any experts he planned to call. Vaughan responded by saying, “No decisions have been made on experts at this time. In any event, expert testimony is probably not required in this case.” In June 2009, St. Vincent filed a motion for summary judgment, attaching the affidavit of emergency medicine physician Mark Kozlowski, who offered his expert opinion that “St. Vincent Hospital complied with the standard of care in its treatment of Mr. Vaugh[a]n.” St. Vincent pointed out that Vaughan had not identified an expert witness to establish the standard of care for communicating a radiologist's diagnosis to physicians and surgeons. St. Vincent also emphasized that Vaughan did not have an expert to establish whether the delay in the cancer diagnosis caused Vaughan's injury. In a supplemental memorandum in support of its motion for summary judgment, St. Vincent argued that Vaughan “was required to assert vicarious liability or apparent agency allegations in his complaint if he intended to recover damages from St. Vincent under that theory.”

{5} In response to the summary judgment motion, Vaughan argued that Kozlowski's opinion was flawed because he had not been informed of Voltura's sworn statement that she would have proceeded differently if she had received Damron's transcribed radiology report. Vaughan filed his own motion for summary judgment in October 2009, including an affidavit from John Bagwell, Vaughan's treating oncologist in 2003, stating that the fourteen-month delay in treatment had a significant negative impact on Vaughan's chances of survival. Vaughan also filed an amended summary judgment motion, relying on an affidavit from radiologist Donald Wolfel. “It is absolutely the standard of care that a radiologist reading a diagnostic film communicate the results of his diagnostic impression to the physicians known to be managing the care of the patient,” Wolfel stated in his affidavit, “particularly so when the observed condition is considered urgent or potentially cancerous.”

{6} The district court entered summary judgment for St. Vincent, finding that (1) Vaughan's complaint did not provide St. Vincent with notice that Damron, a contract employee, was negligent and that St. Vincent was vicariously liable for Damron's negligence, (2) Vaughan's claim required expert testimony, which he did not provide, to establish the standard of care, and (3) Vaughan's discovery responses also failed to provide St. Vincent with sufficient notice and failed to identify an expert witness to support his claim.

{7} Vaughan appealed, and the Court of Appeals affirmed the district court's ruling for summary judgment. See Vaughan v. St. Vincent Hospital, No. 30,395, mem. op. at 2, 2012 WL 1720346 (N.M.Ct.App. Apr. 16, 2012) (nonprecedential). The Court of Appeals held that under Rule 1–008, Vaughan gave St. Vincent insufficient notice of its vicarious liability for any negligence by Damron, Vaughan, No. 30,395, mem. op. at 2, 19, and that Vaughan failed to establish evidence supporting any breach of duty by St. Vincent under any standard of care—be it ordinary or medical negligence, id. at 2, 21–22. We granted certiorari to address those rulings. See 2012–NMCERT–010, 297 P.3d 332.

II. DISCUSSION

{8} Vaughan argues that summary judgment was improperly granted because his pleading was sufficient under Rule 1–008 to put St. Vincent on notice of any direct or vicarious liability and because his affidavits raised genuine issues of material fact as to St. Vincent's negligence. St. Vincent disagrees, contending that because Vaughan failed to provide St. Vincent with notice of any potential vicarious liability for Damron and failed to establish a genuine issue of material fact regarding his claim, summary judgment was appropriate. We agree with Vaughan. Vaughan's pleading was sufficiently detailed to put St. Vincent on notice of a claim of apparent agency or vicarious liability related to the failure to communicate his cancer diagnosis

, and the affidavits supporting Vaughan's claims raise several genuine questions of material fact regarding St. Vincent's negligence. Vaughan provided expert testimony regarding St. Vincent's duty and breach of duty, Vaughan's injury, and St. Vincent's role in causing that injury, and we do not need to rely on a distinction between ordinary and medical negligence.

{9} This Court's review of orders granting or denying summary judgment is de novo. United Nuclear Corp. v. Allstate Ins. Co., 2012–NMSC–032, ¶ 9, 285 P.3d 644. Summary judgment is appropriate in the absence of any genuine issues of material fact and where the movant is entitled to judgment as a matter of law. Montgomery v. Lomos Altos, Inc., 2007–NMSC–002, ¶ 16, 141 N.M. 21, 150 P.3d 971 ; Rule 1–056(C) NMRA. In reviewing an order on summary judgment, we examine the whole record on review, considering the facts in a light most favorable to the nonmoving party and drawing all reasonable inferences in support of a trial on the merits. Handmaker v. Henney, 1999–NMSC–043, ¶ 18, 128 N.M. 328, 992 P.2d 879. “New Mexico courts, unlike federal courts, view summary judgment with disfavor, preferring a trial on the merits.” Romero v. Philip Morris Inc., 2010–NMSC–035, ¶ 8, 148 N.M. 713, 242 P.3d 280. The district court's determination that the testimony provided by Vaughan did not satisfy the requirement for expert testimony is a conclusion of law and is also subject to de novo review. See State v. Torres, 1999–NMSC–010, ¶¶ 27–28, 127 N.M. 20, 976 P.2d 20 (“[W]hether the trial court applied the correct evidentiary rule or standard [concerning expert testimony] is subject to de novo review on appeal.”).

A. Vaughan's Complaint Provided St. Vincent with Sufficient Notice That It Was Vicariously Liable for the Actions of Its Employees and Agents

{10} Throughout the past seventy-five years, this Court has maintained our state's notice pleading requirements, emphasizing our policy of avoiding insistence on hypertechnical form and exacting language. See Malone v. Swift Fresh Meats Co., 1978–NMSC–007, ¶ 10, 91 N.M. 359, 574 P.2d 283 (“[T]he principal function of pleadings is to give fair notice of the claim asserted.”). Nationally, the preference for nontechnical fair notice pleading received strong support with the adoption of the ...