The recent case of Salopek v. Friedman from the New Mexico Court of Appeals addressed a host of very important issues in a New Mexico medical malpractice case and personal injury law more generally.
Procedurally, the jury awarded the plaintiff $1,000,000 on his claim for medical negligence. By virtue of the cap on damages under the New Mexico Medical Malpractice Act, the award was reduced to $600,000 by the Court.
The Defendant appealed on a number of grounds. Of import to this discussion are the first two. First, he argued that the court erred in its jury instruction on duty. Second, he argued the court issued an incorrect jury instruction on damages the “eggshell plaintiff” rule.
The plaintiff appealed on a number of grounds related to the caps on damages under the New Mexico Medical Malpractice Act. In short, the Court upheld the caps. This is a sore topic yet a discussion for another day.
Each of the grounds for appeal by both the defendant and the plaintiff raise numerous interesting and rather complex issues surrounding medical malpractice, personal injury law, damages, and the right to a jury trial.
The facts are rather complex. However, for purposes of this discussion, they can be boiled down to the following. The injured patient (plaintiff) went in for a colonoscopy. A genetic trait predisposed him to cancer requiring biannual colonoscopies. During the procedure, the doctor (defendant) perforated his colon. Upon discovery of the perforation, the doctor went in to locate and repair the perforation.
Further damage was caused because the perforation had grown due to the delay. As a result, the perforation could not be repaired. The patient was required to undergo a number of additional surgeries as a result of the original perforation and subsequent failure to repair it. He suffered serious and permanent physical injuries as a result.
Of note, it was not disputed on appeal that the original failure constituted negligence. Instead, the doctor appealed on other grounds related to the damages that were awarded. More interesting still, the doctor appealed the damages even though they were reduced by the court pursuant to the New Mexico Malpractice Act. Again, a sore topic.
We will address only the base issues in the case here. Each merits a follow up discussion as the case hits on very important issues.
Duty of Care
The doctor argued that the court should have ruled as a matter of law on the issue of the doctor‘s duty toward the patient. Specially, the doctor argued correctly that there is no duty to protect against unforeseeable consequences. However, the court disagreed that the complications from the initial medical negligence were unforeseeable.
The court ruled that the additional surgeries as well as ensuing complications, which were partly the result of genetic predispositions, were foreseeable. Therefore, the doctor did in fact have a duty to the patient to protect against these outcomes.
That duty was not severed by the subsequent doctor-patient relationships. In fact, those relationships were the result of the original negligent act necessitating remediation of the initial and ensuing injuries set into motion by that negligence.
Part of the doctor‘s argument on duty suggested that the subsequent procedures were elective in nature. The court did not buy this rather ludicrous argument which suggested that because there were several surgical options available to the patient, the one chosen was elective.
The patient, with the guidance of his new surgeon, decided on the safest surgical course of action to repair the damage caused by the original negligence. This decision was complicated by the patient‘s genetic predisposition which raised risk factors associated with each option.
The court rightly recognized that choosing between several surgical options to remediate the initial damages does not make the ultimate course of action elective.
Damages and the Eggshell Plaintiff
The doctor also tried to escape liability for the damages based upon the patient‘s predispositions. This argument failed under the eggshell plaintiff rule.
The court rightly noted that the entire basis for the eggshell plaintiff rule was that the defendant be held liable for all damages caused or set into motion even though the injured plaintiff is unusually susceptible to harm because of his underlying condition.
The court stated the rule as follows:
“This means that the wrongdoer is liable for the proximate results of that injury, although the consequences are more serious than they would have been, had the injured person been in perfect health”
The doctor basically argued that he be held responsible only for the direct damage that he caused and not any aggravated damages resulting from the underlying condition.
The court shot this down since in would in effect negate the entire longstanding eggshell plaintiff rule. No such apportionment is required under the law and such an apportionment would completely defet and nullify the eggshell plaintiff rule.
This discussion only scratches the surface of the opinion. However, these issues are very important in medical malpractice cases (and other personal injury cases). In medical malpractice, patients often come with underlying conditions. They may have a host of illnesses or other predispositions that call for additional care.
It would be a rather callous outcome to say that a doctor is free to behave negligently in these cases because of vulnerabilities of the patient. Worse yet, in this particular case and others like it, it would be pretty outrageous to allow a doctor to escape liability for all subsequent harm resulting from the chain of events set into motion by his or her original negligence simply by virtue of the fact that the patient has been handed off to another doctor by necessity as a result of that very negligence.
The decision was the right one in most respects. Where it is disappointing and where it will likely face additional appeals if New Mexico follows the path of many other states, is the New Mexico Medical Malpractice Act‘s cap on damages. This is a discussion for another day.
Preexisitng Conditions & Eggshell Plaintiff in New Mexico Personal Injury Claim
Walking on Eggshells in New Mexico Personal Injury Cases
Caps on Medical Malpractice Damages Do Not Lower Insurance Premiums or Healthcare Costs