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Lewis v. Samson9/14/1999
le while others are not.
If the plaintiff's physical injuries are separate, such as a broken leg and a broken arm, some of the damages may be divisible, but some may be indivisible. For example, if the plaintiff could work with either a broken arm or a broken leg, but not with both, the broken arm and the broken leg each was a "but for" cause of the inability to work, and any lost wages are indivisible.
Restatement, supra, at 477. For the indivisible damages in this case, the responsibility of Defendants would properly be compared to that of Griego for purposes of assessing liability.
{89} I do not read Lujan as requiring us to hold that the patient's damages in this case were divisible. It is essential to keep in mind what the issue was in Lujan. The victim had been injured in a motor vehicle collision and then allegedly was further injured by the medical malpractice of defendant Healthsouth. The plaintiff settled with the other driver in the collision. When the plaintiff then sued Healthsouth, Healthsouth contended that it was released by the prior settlement. To decide whether Healthsouth was released, Lujan found it necessary to discuss how liability should be assigned when a health care provider's malpractice causes a successive injury . Nowhere in Lujan does the opinion indicate that it is resolving a dispute regarding whether Healthsouth caused an aggravation of a prior injury, whether there was a divisible injury, or whether the tortfeasors were successive tortfeasors. Those aspects of the case were taken as given. The appellate briefs of both parties asserted that the case involved successive tortfeasors.
{90} Hence, I cannot agree with the majority that Lujan required the district court in this case to hold as a matter of law that the alleged malpractice caused a divisible injury , an aggravation of the original injury. On the contrary, the evidence was insufficient to satisfy the Lujan requirement that the claimant "demonstrate the degree of enhancement, and . . . offer proof of what injuries, if any, would have resulted [in any event]." Lujan, 120 N.M. at 426, 902 P.2d at 1029 (internal quotation marks and citation omitted); see Restatement, supra, § 50. Moreover, even when there is sufficient evidence, the matter should still ordinarily be left to the jury. See Restatement, supra, § 50, cmt. l at 464 ("When there is conflicting evidence about these causal relationships or damages, a determination of whether the damages are divisible depends on findings about these facts. That may require special interrogatories.") The trial Judge has sufficient power to ensure that the jury's decision is not improperly influenced by inflammatory evidence regarding the stabbing.
{91} Adopting the Restatement approach, and assuming that Plaintiff in this case did not prove the divisibility of damages, then there was nothing improper in Defendants' efforts to compare the responsibility of the assailant Griego with the alleged responsibility of Defendants themselves, so Plaintiff's motion in limine was properly denied. Indeed, there may well be future cases in which a plaintiff will want an injury considered as indivisible so that the jury will compare the responsibility of a doctor who is accused of malpractice with the responsibility of the tortfeasor who caused the condition treated by the doctor. To be sure, in this case Griego would likely be assigned a large share of responsibility, so indivisibility of the damages would be against Plaintiff's interests. But we should not change the rule of law from case to case in order to prefer one class of litigants over another.
{92} One issue remains. Assuming that the evidence persuades the jury that t
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