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Lewis v. Samson9/14/1999
s, Plaintiff could not offer the testimony of Ms. Griner, or possibly Dr. Hanosh, to refute Dr. Ortiz' version of the 3:06 a.m. call.
{19} Plaintiff also attempted to discredit Dr. Ortiz by introducing the medical records of Dr. Hanosh. In a letter report from Dr. Hanosh to Memorial Hospital, there was no indication Dr. Hanosh thought himself or UNM Hospital responsible for any delays in his departure for Tucumcari. Additionally, Dr. Hanosh suggested he believed that, had he arrived in Tucumcari sooner, the patient might have survived. The trial court precluded this letter report for lack of foundation, despite Plaintiff's protestations that it was admissible under either the business records or "medical records" exceptions.
{20} The parties also disputed whether Defendants could have performed thoracic surgery without waiting for Dr. Hanosh to arrive from UNM Hospital and whether Defendants tardily inserted the chest tubes. Defendants argued that they lacked the proper equipment for a thoracotomy. Dr. Samson's expert witness, Dr. Carl Lagerstrom, stated during trial that he would have done "the things that [he has] learned to do that knows are effective in treating people and saving their lives." Plaintiff's expert witness, Dr. Michael Bartlett, an expert in emergency medicine, testified that he believed Defendants were capable of performing a thoracotomy with the equipment available to them. Dr. Bartlett also testified that Defendants inexcusably delayed both the blood transfusions and the insertion of the chest tubes and also should have immediately transferred the patient to UNM Hospital. He testified that, with proper medical intervention, the patient's chances of survival "were well in excess of 50%." Additionally, in response to the question whether the patient had a better than ninety percent chance of survival, the doctor said he thought that there was.
{21} Before closing arguments, Plaintiff and Defendants both submitted jury instructions on comparative fault. Plaintiff failed to request a jury instruction on either apportionment of the patient's injuries based on proximate cause or on possible enhancement of his injury arising from Defendants' negligence. Plaintiff objected to Defendants' instruction on negligence per se. The jury was eventually instructed on the assailant's and Defendants' comparative fault and negligence per se.
{22} During closing arguments, counsel for Dr. Ortiz stated that, as a matter of proximate cause, the assailant alone was responsible for the patient's death. Dr. Samson's counsel emphasized the assailant's wrongdoing to a greater degree, twice characterizing the case as "cowardly, back-stabbing murder," that the assailant had already been found responsible for the patient's death beyond a reasonable doubt, and that Justice had been served when the assailant was convicted and sentenced for second-degree murder. He again read from the autopsy report, citing its finding that "homicide" was the cause of death.
{23} Essentially, then, both Defendants contended during closing arguments that the assailant's criminal liability for the stabbing absolved Defendants of any civil liability for their alleged subsequent malpractice. The jury returned a verdict for Defendants, finding that neither of them was negligent.
II. DISCUSSION
A. The Trial Court's Refusal to Reopen Discovery Several Months Before Trial for the Limited Purpose of Allowing Additional Witnesses Was an Abuse of Discretion
{24} Plaintiff first argues that the trial court abused its discretion in excluding Ms. Griner's testimony prior to the first trial setting in July 1997. Because we reverse the trial court for its
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