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Lewis v. Samson9/14/1999
r, so that his anticipated lifetime earnings, adjusted to present value, would drop from $500,000 to $100,000. As a result, Griego would be liable for $400,000 in lost future earnings. In addition to economic damages, Griego would be liable for non-economic damages, such as pain and suffering.
{85} Second, Plaintiff could recover for the aggravation of the patient's injuries caused by Defendants. The liability of Defendants for their malpractice would be for "`injuries over and above those which otherwise would have been sustained.'" Lujan, 120 N.M. at 426, 902 P.2d at 1029 (quoting Duran v. General Motors Corp., 101 N.M. 742, 688 P.2d 779 (Ct. App. 1993). In other words, one would calculate the damages for the patient's death and subtract from that the damages that would have resulted had there been no medical malpractice. Thus, for example, Defendants could be liable for the patient's $500,000 in lost future earnings, less the $400,000 earnings loss caused by the stabbing alone, for a net of $100,000 in lost-earnings damages. The economic damages owed by Defendants could be reduced still further, if, as one might expect, the medical expenses for the patient arising from the stabbing would have been greater if he had lived than they turned out to be in fact. (Later in the opinion I will discuss whether Griego should share liability with Defendants for the aggravation of the injuries.)
{86} As far as I can tell, the above Discussion of how damages would be apportioned between the original injury and the aggravation is unexceptional. I am aware of no authority, including the majority opinion, to the contrary. My difference with the majority is not in how to apportion damages between the initial injury and the aggravation when evidence permits the jury to make the apportionment. My disagreement relates to (1) what evidence is necessary before the jury is entitled to apportion damages between the initial injury and the aggravation, (2) what happens if such evidence is lacking, and (3) if such evidence is present, who shares in the liability for the aggravation.
{87} As I understand Restatement, supra, ยง 50, there was insufficient evidence to establish a fully divisible injury in this case. To be sure, there is a difference between life and death, and an expert in this case testified that the patient would not have died if given proper medical care (although the jury did not have to believe the expert). But loss of life in itself (aside from the resulting lost earnings or lost pleasures of life) is at most only one element of damages. As for other elements of damages, death need not increase, and may even diminish, them. Consider loss of future earnings. One who survives an injury may have no ability to earn income in the future, so alleged fatal malpractice may not increase that element of damages whatsoever. Some other losses suffered by a survivor-such as pain and suffering and future medical expenses-are not suffered by one who dies. For that reason, juries often find that damages for wrongful death are less than those for seriously disabling the victim. To put the matter crudely, tortfeasors may find it cheaper to kill than to maim.
{88} Because there was no evidence regarding what damages the patient would have suffered had he lived, the jury could not divide any of the elements of damages in this case, with the possible exception of loss of life in itself, if that is an element of damages. (Of course, on remand the evidence may well suffice to make some or all elements of damages divisible.) Damages that cannot be divided must be treated as indivisible. As pointed out in the Reporters' Note to Section 50 of the Restatement, some damages in a case may be divisib
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