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Cronin v. Sierra Medical Center6/19/2000
who apparently had received medical care at Hospital in the past.
We agree with Plaintiffs that the evidence they produced at the trial court level supports their contention that Hospital intentionally initiated commercial activities in New Mexico for the purpose of realizing pecuniary gain. See Kathrein v. Parkview Meadows, Inc., 102 N.M. 75, 76, 691 P.2d 462, 463 (1984) (finding that defendant's advertisements in yellow pages, coupled with a letter to the plaintiff, constituted the transaction of business); Frazer v. McGowan, 502 A.2d 905, 909-10 (Conn. 1986) (ruling that Connecticut had jurisdiction over nonresident hospital that placed ads in yellow pages of Connecticut telephone directories). This determination is further compelled by the fact that Patient was not the first New Mexico resident to receive medical care at Hospital on account of its commercial activities within this State. See Roberts v. Piper Aircraft Corp., 100 N.M. 363, 367-68, 670 P.2d 974, 978-79 (Ct. App. 1983) (ruling that nonresident defendant who solicited business by advertising in a trade journal that is circulated in New Mexico and who previously had performed work for other New Mexico residents availed itself of the privilege of conducting business in New Mexico); Moore v. Graves, 99 N.M. 129, 132-33, 654 P.2d 582, 585-86 (Ct. App. 1982) (same).
Plaintiffs also contend that their causes of action arise from Hospital's transaction of business in New Mexico. This contention is based on Plaintiffs' allegation that, but for Hospital's solicitations, Patient would not have sought treatment at Hospital nor would he have endured certain health complications arising from Dr. Miller's prescription and Defendants' negligent failure to monitor the administration of potentially ototoxic antibiotics. Again, we agree with Plaintiffs. See Kathrein, 102 N.M. at 77, 691 P.2d at 464 (finding that complainant would not have visited her husband at out-of-state alcohol treatment center, where she allegedly suffered emotional and psychological damages, if not for nonresident defendant's efforts to encourage her to make that visit); Winward v. Holly Creek Mills, Inc., 83 N.M. 469, 472, 493 P.2d 954, 957 (1972) (ruling that a cause of action arises out of a defendant's transaction of business for purposes of our long-arm statute when the cause of action lies "within the wake of defendant's commercial activity").
2. Tort
Plaintiffs contend that Defendants committed a tortious act in New Mexico. This contention is based on Plaintiffs' theory that, although Defendants' negligent conduct may have occurred in Texas, a tort is not complete until there is injury . See Peralta v. Martinez, 90 N.M. 391, 393, 564 P.2d 194, 196 (Ct. App. 1977). Plaintiffs assert that Patient did not sustain a cognizable injury until he began to experience vertigo and loss of equilibrium. Inasmuch as Patient experienced these health problems in New Mexico, and not in Texas, Plaintiffs assert that the allegedly tortious act occurred in New Mexico. See Roberts, 100 N.M. at 366, 670 P.2d at 977 (ruling that when negligent acts occur outside New Mexico which cause injury within New Mexico, a "tortious act" has been committed within this State); Beh v. Ostergard, 657 F. Supp. 173, 175-76 (D.N.M. 1987) (ruling that a "tortious act" occurred in New Mexico when complainant allegedly developed certain health complications in New Mexico from the negligent implantation of an intrauterine contraceptive device in California, because a tort is not complete until a complainant endures a cognizable injury).
Defendants argue that we should reject Plaintiffs' continuing tort theory because it is "based largely
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