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Lewis v. Samson9/14/1999
to the second important difference between the Dissent's and our approach. We believe, on the one hand, that our interpretation of Lujan's holding is correct. Likewise, we believe that, based on the facts in Lujan and the facts in this appeal, we are bound by our Supreme Court's holding. The Dissent, on the other hand, in applying its own rationale and the pronouncements of Section 50 of the Restatement, apparently takes issue with Lujan's clear holding, as well as its rationale. Additionally, the Dissent not only attempts to distinguish Lujan factually, but chooses to criticize the basis of its holding. We believe that if Lujan is to be revisited, in light of the Restatement's recent pronouncement under Section 50, it should be our Supreme Court, not our Court, that should do so. We should add, however, that Section 50, as interpreted by the Dissent, is not the law in New Mexico.
{58} The Dissent correctly notes that the fundamental issue is one of apportionment of liability for damages where harm is created by multiple causes. The causes may operate simultaneously (or nearly so) or they may be separated by a significant amount of time. We should note that, in this regard, it is not of any consequence under the facts in this appeal that the alleged medical malpractice took place only minutes or hours after the original tort and that the alleged malpractice in Lujan occurred a month or so later. The divisibility of the alleged injury in both cases is clear. We believe Lujan provides a reasonable approach to the issue in the type of factual scenario we have here-an action for medical malpractice allegedly occurring during treatment of a prior injury. For that reason, as we previously noted, given the similarity of our facts to those in Lujan, we view Lujan as controlling.
{59} To some extent, it appears that the Dissent does not directly question our interpretation or application of Lujan. Rather, it argues that Lujan's approach to the problem of apportionment is incorrect and suggests a completely different, perhaps radical, analysis. It suggests, for example, that the starting point of the analysis should be whether the injury is factually divisible by cause. It thus proposes that the analysis should begin at the end-the injury-then proceed backwards to the injury's constituent causes, if possible. If the injury cannot be divided as a factual matter into its distinctive causative components, the Dissent proposes, it should be treated as indivisible. Indivisibility carries with it the consequence of potentially imposing full liability for the injury on any one of the causative agents. Responsibility can be divided or compared, but it is unclear whether the division is done on the basis of fault and culpability or on some other measure.
{60} New Mexico's comparative negligence system relies on the presumption that fault translates to-or is a reasonable proxy for-causation. It does not concern itself directly with causation, at least with regard to the factual division of an injury . The Dissent's proposal, we submit, has the potential of overturning or altering this presumption and even our negligence system entirely. We see no need to complicate even further our system of tort law to address a problem that has been resolved in a reasonable manner by Lujan.
{61} We also note that the Restatement (Third) does not suggest that Section 50, as interpreted by the Dissent, is the only solution to the problem of apportionment between "ordinary" tortfeasors and medical doctors. See Restatement (Third) section 7, cmt. e, ill 2 (assuming that the torts of automobile drivers and medical doctors cause only a portion of the victim's damages, thus creating divisible injuries). The illust
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