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Lewis v. Samson9/14/1999
he patient's damages are divisible, who should bear liability for the aggravation of the original injury? In Lujan the Supreme Court said that Healthsouth should ultimately be solely liable for the entire enhanced injury. See 120 N.M. at 426, 902 P.2d at 1029. The court held that even if the original tortfeasor could be liable for harm caused by foreseeably negligent medical treatment, the original tortfeasor "can shift through indemnification the responsibility for an enhanced injury " to the medical care provider. Id. at 427, 902 P.2d at 1030.
{93} This is an interesting result. Ordinarily, under the doctrine of comparative responsibility the factfinder compares the responsibility of all who proximately cause an injury . See § 41-3A-1(D). Since the original tortfeasor's act is a proximate cause of the aggravation arising from the foreseeable malpractice, one could assume that the original tortfeasor's responsibility should be compared with that of the health care provider and liability apportioned accordingly, just as with other concurrent tortfeasors. After all, with respect to the aggravation the original tortfeasor and the health care provider are concurrent tortfeasors because each was a proximate cause of the aggravation. This is the approach taken by the Restatement. See Restatement, supra, § 50(a); supra, cmt. d; supra, Reporters' Note to cmt. d. (Contrary to the assertion by the majority, see ante, 61, this is the only approach recognized by the Restatement. The majority's reliance on Restatement, supra, § 7 ill. 2, is misplaced. The illustration recognizes the possibility of divisible injuries, but it says absolutely nothing about whether the original tortfeasor shares in liability for aggravation of an injury caused by medical negligence.)
{94} It would make sense to relieve the original tortfeasor of any responsibility for the aggravation if the malpractice could be treated as an independent intervening cause. (The facts in Lujan might have supported such an analysis because the malpractice consisted of improperly manipulating the leg, refracturing the original fracture, more than a month after the motor vehicle accident. See Lujan, 120 N.M. at 423-24, 902 P.2d at 1026-27.) Yet even if the intervening-cause doctrine has continuing validity, but cf. Torres v. El Paso Electric Co., 1999-NMSC-029, ___ N.M. ___, ___ P.2d ___ (No. 24,300, filed June 30, 1999), it would not enable the original tortfeasor to escape liability for the aggravation if the purported intervening cause was reasonably foreseeable, as may well be the case with medical malpractice.
{95} In any event, Lujan did not adopt an intervening-cause rationale. Rather, it relied on indemnification principles. Indemnification "`may . . . arise without agreement, and by operation of law to prevent a result which is regarded as unjust or unsatisfactory.'" In re Consolidated Vista Hills Retaining Wall Litigation, 119 N.M. 542, 546, 893 P.2d 438, 442 (1995) (quoting W. Page Keeton, et al., Prosser & Keeton on the Law of Torts § 51, at 341 (5th ed. 1984)).
{96} In applying indemnification principles to a successive tortfeasor, Lujan relied on five decisions from other jurisdictions. See Lujan, 120 N.M. at 427, 902 P.2d at 1030. Not only does that authority appear to be inconsistent with the Restatement, but it has been distinguished by at least one court on the ground that most of the cases arose before the adoption of comparative responsibility or contribution among tortfeasors. See Kemper Nat'l v. Smith, 615 A.2d 372, 378-79 (Pa. Super. Ct. 1992); see also Lujan, 120 N.M. at 427, 902 P.2d at 1030 (citing cases from Arizona and Kansas that rejected indemnification). Also, two
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