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Lewis v. Samson9/14/1999
{1} Marta C. Lewis (Plaintiff) appeals from a judgment after a jury verdict in favor of Dr. Norberto R. Samson and Dr. Raymond F. Ortiz (Defendants). As personal representative of the estate of Martin C. Lewis (the patient), Plaintiff's son, Plaintiff filed a medical malpractice suit against Defendants alleging wrongful death of the patient. The patient died while in the care of Defendants for treatment of multiple stab wounds suffered at the hands of Moses Griego, a nonparty (the assailant). Plaintiff raises four issues on appeal, claiming that the trial court (1) abused its discretion by excluding the testimony of several witnesses, (2) improperly injected the issues of the comparative fault and negligence per se of the assailant in a case essentially limited to successive tortfeasor liability, (3) should have conducted an evidentiary hearing on Plaintiff's motion for a change of venue, and (4) improperly excluded a letter from a certain physician that summarized the patient's treatment.
{2} We hold that the trial court abused its discretion in declining to reopen discovery to allow amendment of Plaintiff's witness list to add an additional witness several months before trial. We therefore reverse and remand for a new trial. Because we are remanding for a new trial on Plaintiff's first issue, we address the successive tortfeasor liability issue and the venue issue since they may reoccur at a second trial. Because of our Disposition, we need not address Plaintiff's remaining issue on exclusion of the physician's letter and other witnesses.
{3} Regarding the nature of the tort liability under the facts of this appeal, we hold that the trial court erred in not determining as a matter of law before trial that Defendants were successive, and not concurrent, tortfeasors. In that regard, we also hold that the court erred in failing to ensure that trial counsel limited their argument and the evidence to that theory of liability. Finally, on the venue issue, we conclude that the trial court was not required to conduct an evidentiary hearing and did not err in denying Plaintiff's motion for a change of venue.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Underlying Facts
{4} In February 1994, at approximately two o'clock in the morning, the patient was taken to the emergency room at Dan C. Trigg Memorial Hospital (Memorial Hospital) in Tucumcari, New Mexico, suffering from eight stab wounds primarily to the chest. He incurred the wounds in a fight with the assailant, who was later convicted of second-degree murder under NMSA 1978, ยง 30-2-1 (1994), as a result of the stabbing incident. Defendant Ortiz, an internist at Memorial Hospital, first treated the patient. Dr. Ortiz then called in Defendant Samson, a local general surgeon. Initially, Defendants treated the patient with transfusions of blood, sutured the wounds, and then inserted chest tubes. During this treatment, Dr. Ortiz telephoned University of New Mexico Hospital (UNM Hospital) to request an emergency transfer for a thoracotomy or for other assistance as deemed necessary by that hospital.
{5} The substance of Dr. Ortiz' first request was strongly disputed at trial. The doctor claimed that he first requested assistance from UNM Hospital for the patient during a 3:06 a.m. phone call. Plaintiff, however, claimed the doctor first requested assistance from UNM Hospital during a 3:57 a.m. phone call. Dr. Hanosh, a specialist in thoracic surgery at UNM Hospital, responded telephonically on behalf of that hospital at approximately 4:20 a.m., according to his private phone records. He informed Dr. Ortiz that the patient would not survive the trip to UNM Hospital; Dr. Ortiz replied that Dr. Sa
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