Zavala v. El Paso County Hospital District

• Decision Date: 25 September 2007
• Docket Number: No. 25,971.,25,971.
• Citation: 2007 NMCA 149,172 P.3d 173
• Parties: Lisa Marie ZAVALA and Robert Zavala, as Personal Representatives of the Estate of their deceased daughter, Nicole Rosemarie Zavala, Plaintiffs-Appellants, v. EL PASO COUNTY HOSPITAL DISTRICT, dba R.E. Thomason General Hospital; Arturo A. Hernandez, M.D.; and Gilbert Handal, M.D., Defendants-Appellees.
• Court: Court of Appeals of New Mexico

172 P.3d 173

2007 NMCA 149

Lisa Marie ZAVALA and Robert Zavala, as Personal Representatives of the Estate of their deceased daughter, Nicole Rosemarie Zavala, Plaintiffs-Appellants, v. EL PASO COUNTY HOSPITAL DISTRICT, dba R.E. Thomason General Hospital; Arturo A. Hernandez, M.D.; and Gilbert Handal, M.D., Defendants-Appellees.

No. 25,971.

Court of Appeals of New Mexico.

September 25, 2007.

Cassutt, Hays & Friedman, P.A., John P. Hays, Santa Fe, NM, for Appellants.

Holt Babington Mynatt P.C., Matthew P. Holt, Las Cruces, NM, for Appellee El Paso County Hospital District.

Kemp Smith LLP, Ken Slavin, J. Scott Mann, El Paso, TX, for Appellees Arturo A. Hernandez, M.D., and Gilbert Handal, M.D.

OPINION

WECHSLER, Judge.

{1} This case involves a medical malpractice and wrongful death lawsuit filed by Plaintiffs on behalf of their daughter. Plaintiffs appeal the dismissal of their lawsuit. The lawsuit was filed against Thomas Packard, a New Mexico doctor, and Memorial Medical Center, Inc., a New Mexico hospital (New Mexico Defendants), as well as two Texas doctors, Arturo A. Hernandez and Gilbert Handal (Doctors), and R.E. Thomason General Hospital, a Texas hospital (Hospital). The district court dismissed the claims against both Hospital and Doctors and stayed the proceedings against New Mexico Defendants. We affirm the district court's determination that it lacked personal jurisdiction over Doctors. We reverse the district court's implied conclusion that it had personal jurisdiction over Hospital. Because the district court lacked personal jurisdiction, we do not address Hospital's arguments that Texas law applies to the case and that Hospital is immune from suit, and we remand to the district court for entry of an order dismissing the suit against Hospital and Doctors without prejudice.

BACKGROUND

{2} Plaintiffs' six-year-old daughter, Nicole, was diagnosed with strep throat on January 16, 2002. Despite treatment with antibiotics, her condition worsened. On February 1, 2002, Plaintiffs took Nicole to Memorial Medical Center in Las Cruces. On that same day, the physician treating Nicole requested that Nicole be transferred to Hospital in El Paso, Texas, and Plaintiff Lisa Zavala, Nicole's mother, signed a form stating that Nicole's medical condition and the risks and benefits of transfer had been explained to her, that she desired that Nicole be transferred, and that she chose that her daughter be transferred to another facility. The name of Hospital was listed on the transfer form. Nicole was transferred to Hospital; she died the next day, February 2, 2002.

{3} Plaintiffs filed a complaint for medical malpractice and wrongful death against New Mexico Defendants on March 28, 2003. On January 28, 2005, Plaintiffs filed an amended complaint adding Hospital and Doctors. Plaintiffs claimed that, when the lawsuit was originally filed, they had no medical records from Hospital, but when they finally were able to depose one of the nurses at Hospital, the nurse's testimony "strongly incriminated" Hospital and Doctors. Plaintiffs alleged that, although medical personnel knew or should have known that Nicole needed to be intubated, she was instead given a sedative, which "depressed her respiratory condition to the point of causing her arrest and subsequent death."

{4} Hospital and Doctors did not file an answer to the amended complaint. Instead, they filed separate motions to dismiss the amended complaint. Doctors argued that dismissal was appropriate based on lack of personal jurisdiction. Hospital claimed that the district court lacked personal jurisdiction over it, that it had not been given proper notice, and that it was immune from suit under the Texas Tort Claims Act, Tex. Civ. Prac. & Rem.Code Ann. §§ 101.001-101.109 (Vernon 2005), and immunity had not been waived. After hearing argument from the parties, the district court found that Doctors did not have sufficient contacts with New Mexico and granted their motion to dismiss. The district court did not directly address the issue of personal jurisdiction over Hospital. Instead, it impliedly found that it had jurisdiction, as evidenced by its finding that Texas law applied to the claims against Hospital and that Hospital was therefore immune from suit. The district court stayed the proceedings as to the remaining New Mexico Defendants. Plaintiffs appealed the district court's decisions.

{5} After the briefing of this case in this Court, our Supreme Court issued an opinion in Sam v. Estate of Sam, 2006-NMSC-022, 139 N.M. 474, 134 P.3d 761, reversing the opinion of this Court. In that case, our Supreme Court discussed issues of comity and the statute of limitations under our Tort Claims Act, NMSA 1978, §§ 41-4-1 to -27 (1976, as amended through 2006), with respect to a foreign governmental entity's immunity. At the Hospital's request, we allowed supplemental briefing addressing the issues discussed by the Supreme Court in Sam. Hospital argues that Plaintiffs' claims are barred by the statute of limitations under either the New Mexico Tort Claims Act or the Texas Tort Claims Act.

{6} We begin by addressing Plaintiffs' argument that the district court's rulings on personal jurisdiction were premature because they did not have sufficient time for discovery. We then address the merits of Plaintiffs' arguments that the district court had jurisdiction over Hospital and Doctors. Because we conclude that the district court did not have jurisdiction, we do not address the other issues raised on appeal.

PLAINTIFFS' REQUEST FOR ADDITIONAL DISCOVERY

{7} Plaintiffs argue that the district court's decisions on jurisdiction were premature because Plaintiffs were not permitted to conduct sufficient discovery. With respect to Doctors, they claim only that they were unable to determine whether Dr. Hernandez is registered as a New Mexico Medicaid provider. Plaintiffs have not made any argument that discovery would have provided additional jurisdictional facts about Hospital. We review Plaintiffs' claim under an abuse of discretion standard. See Roberts v. Piper Aircraft Corp., 100 N.M. 363, 368, 670 P.2d 974, 979 (Ct.App.1983).

{8} Doctors filed their motion to dismiss on February 24, 2005. Hospital filed its motion to dismiss on March 2, 2005. The district court granted both motions at the hearing on May 18, 2005. Although an order entered May 5, 2005 stayed discovery, it explicitly excluded discovery pertaining to jurisdiction. Plaintiffs therefore had several months to conduct discovery related to jurisdiction.

{9} In their response to the motions to dismiss, Plaintiffs claimed that they would require discovery before an "ultimate determination" of the jurisdiction issue, stating that "[i]f the Court has any doubt on the issue of personal jurisdiction, it should allow Plaintiffs sufficient time to engage in discovery to determine jurisdictional facts before ruling on the motion." In the hearing on the motions to dismiss, Plaintiffs stated, "[I]f we need additional information, I'm happy to take additional depositions." Plaintiffs did not ask the district court to continue the matter, file motions to allow further discovery, or provide specific details as to their need to discover other than Dr. Hernandez's status as a Medicaid provider. Cf. Butler v. Deutsche Morgan Grenfell, Inc., 2006-NMCA-084, ¶¶ 32-33, 140 N.M. 111, 140 P.3d 532 (rejecting the plaintiff's argument that additional discovery should be permitted as "nothing more than a bare assertion that if he were allowed to pursue discovery, he might find something to support his contention that he could not have discovered his claims through the exercise of reasonable diligence within the limitations period"). Plaintiffs cannot appear at a hearing, present their evidence, and then argue that they should have been permitted additional discovery simply because the district court ruled against them. See Ciup v. Chevron U.S.A., Inc., 1996-NMSC-062, ¶ 22, 122 N.M. 537, 928 P.2d 263 (stating that a party waives the right to appeal discovery issues by "not indicating to the trial court that its resolution of the [issue in question] should be deferred until the court [has] resolved any discovery issues"); Roberts, 100 N.M. at 369, 670 P.2d at 980 (stating that the district court did not abuse its discretion in refusing to allow more time for discovery when the plaintiffs "had not sought discovery . . . although they knew that proof of jurisdiction would be necessary at the hearing"). Furthermore, as we discuss below, the evidence Plaintiffs sought to discover would not have been sufficient to allow the exercise of personal jurisdiction.

PERSONAL JURISDICTION

{10} Both Hospital and Doctors assert that the district court lacked personal jurisdiction over them. Because neither Hospital nor Doctors were served in New Mexico, the question is whether the district court had jurisdiction under our long-arm statute, NMSA 1978, § 38-1-16 (1971). Although our long-arm statute enumerates acts that may subject non-resident defendants to personal jurisdiction in New Mexico, the necessity of a technical determination of whether a defendant committed such an act has been removed. See Santa Fe Techs., Inc. v. Argus Networks, Inc., 2002-NMCA-030, ¶ 13, 131 N.M. 772, 42 P.3d 1221; see also Alto Eldorado P'ship v. Amrep Corp., 2005-NMCA-131, ¶ 30, 138 N.M. 607, 124 P.3d 585. Therefore, for purposes of personal jurisdiction, we do not focus on whether the acts of Hospital and Doctors "technically fall within the purview of the first prong of the long-arm statute," but on whether Hospital and Doctors had the requisite minimum contacts with New Mexico to satisfy due process. See Alto Eldorado P'ship, 2005-NMCA-131, ¶ 30, 138 N.M. 607, 124 P.3d 585.

{11} Due process is satisfied when a defendant has engaged in acts within the state that indicate that the defendant reasonably anticipated being brought into a New Mexico court. Id. ¶ 31....