In a written opinion issued by the Supreme Court of the State of New Mexico (“New Mexico Supreme Court”) on September 18, 2014, the New Mexico Supreme Court reinstated a medical malpractice case that had ended in summary judgment being entered in favor of the defendant hospital because the medical malpractice plaintiff had failed to specifically plead the vicarious liability of the defendant hospital for the alleged failure of a contract radiologist to communicate a possible cancer diagnosis to the emergency room physician, leading to a fourteen-month delay in diagnosing the patient’s colon cancer.
The Alleged Underlying Facts
A New Mexico man went to the defendant hospital’s emergency room in August 2002, complaining of symptoms that included abdominal pain. He was examined by an emergency room physician as well as a surgeon. A radiologist, who was not an employee of the hospital but had a contract to provide radiology services at the hospital, performed an abdominal scan on the man which the radiologist initially interpreted as showing that the man had a diverticular abscess, which he discussed in person with the surgeon. However, it was unclear whether the radiologist and surgeon discussed the possibility of cancer at that time.
The surgeon discussed the diverticular abscess diagnosis with the patient and recommended to him that he be admitted to the hospital for observation, and further advised him to follow up with her for a sigmoid colectomy; however, the man declined admission, was discharged to home, and did not follow up with the surgeon.
The radiologist dictated his report regarding the man’s abdominal scan the following day in which he stated his findings: “[a]n abscess associated with a diverticulitis would be a first consideration with neoplasm [cancer] as the etiology being the second … Pelvic abscess … approximately 4.5 x 3 cm in size. The results of this study were communicated to [the emergency room physician] and [the surgeon].” The surgeon subsequently stated that she never saw the radiologist’s report and that had she received the report referencing a possible neoplasm, she would have taken all steps necessary to contact the patient.
Fourteen months after he was seen in the defendant hospital’s emergency room and the abdominal scan was completed, the man was diagnosed with Stage III colon cancer.
In January 2006, the man filed his New Mexico medical malpractice case against the hospital, alleging, “As a consequence of the apparent failure by [the defendant hospital] through an administrative inadequacy to forward the radiology report on to [the surgeon], [the plaintiff] was treated for a diverticular abscess with antibiotics, allowing the neoplasm to continue to grow.”
In June 2009, the defendant hospital filed a motion for summary judgment in which it alleged that the hospital complied with the standard of care in its treatment of the plaintiff and that the plaintiff had failed to identify an expert witness to establish the standard of care for communicating a radiologist’s diagnosis to physicians and surgeons. The hospital later supplemented its motion for summary judgment, alleging that the plaintiff “was required to assert vicarious liability or apparent agency allegations in his complaint if he intended to recover damages from [the defendant hospital] under that theory.”
The trial court entered summary judgment for the defendant hospital, finding that the plaintiff’s complaint did not provide the defendant hospital with notice that the contract radiologist was negligent and that the defendant hospital was vicariously liable for the radiologist’s negligence, among other deficiencies by the plaintiff. The plaintiff appealed to New Mexico’s Court of Appeals, which affirmed the trial court’s granting summary judgment to the hospital.
The plaintiff then appealed to the New Mexico Supreme Court, which held that the plaintiff’s pleading was sufficiently detailed to put the defendant hospital on notice of a claim of apparent agency or vicarious liability related to the failure to communicate his cancer diagnosis (“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 … There is nothing in either our Rules of Civil Procedure or the New Mexico Statutes that requires a civil complaint to specifically recite reliance on theories of vicarious liability or apparent agency in order to provide fair notice of a cause of action”), and that the affidavits supporting the plaintiff’s claims raise several genuine questions of material fact regarding the defendant hospital’s negligence.
The New Mexico Supreme Court further stated, “Communication between medical personnel is not a matter that requires expert knowledge to understand the standard of care involved. A party may be able to establish that a departure from the standard of ordinary care occurs when a clerical error affects the timeliness or accuracy of a diagnosis … A professional setting such as a hospital might tailor communications to fit specific needs, but the fact that communication must occur is within the realm of common knowledge. A reasonable patient understands that the radiologist who processes X-rays needs to communicate the results to the treating physician. Basic human communication, even between doctors, is not so far from common knowledge that it requires an expert’s testimony.”
Source Diego Zamora as Personal Representative of the Estate of William “Mack Vaughan v. St. Vincent Hospital, Docket No. 33,770.
If you may have been seriously injured as a result of medical negligence in New Mexico or in another U.S. state, you should promptly find a New Mexico medical malpractice attorney or find a medical malpractice attorney in your state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.
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