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Bush v. Thomas9/19/1994
ircumstances of the case before it." ), cert. denied, 114 N.M. 82, 835 P.2d 80(1992). On appeal, the court resolves all contradictions in the evidence in favor of the party resisting the motion. Id. However, if the facts bearing on the issue of proximate cause are not in dispute and the reasonable inferences to be drawn from the facts are plain and consistent, the issue becomes one of law. See .
Even without Defendant's medical records, Plaintiff was able to present considerable evidence that Defendant's treatment of Decedent was negligent, and in fact the jury explicitly found that Defendant's treatment rose to the level of negligence. However, faced with conflicting evidence on the cause of Decedent's death, the jury concluded that Defendant's negligent treatment was not a proximate cause of Decedent's death. Plaintiff has not appealed this finding. Consequently, we are bound by that finding on appeal, see SCRA 1986, 12-213(A)(3) (Cum. Supp. 1994), which ultimately forms the basis for our Disposition.
Plaintiff contends that the medical records would have helped her establish that Defendant's treatment was a proximate cause of Decedent's death because the evidence in those records might have contradicted Defendant's testimony. There was no evidence, however, indicating that the records would have shed any light on the cause of Decedent's death. The only issue on which the records would have been of use was on the question of whether Defendant's treatment of Decedent fell below the required standard of care. Because the jury, in its verdict form, expressly concluded that Defendant's treatment of Decedent did indeed rise to the level of negligence, clearly the lack of the records did not hinder Plaintiff's attempt to persuade the jury on this issue. Instead, it was on the basis of the conflicting and independent evidence and testimony concerning the actual cause of death that Plaintiff's underlying malpractice claim failed. This testimony on causation was separate and apart from any evidence that could have been produced from the missing medical records. It necessarily follows that Plaintiff failed to prove that the destruction or loss of the records significantly impaired her ability to prove her medical malpractice claim. See Continental Ins. Co., 576 So. 2d at 315. We thus reverse the trial court's denial of Defendant's motion for judgment notwithstanding the verdict.
Conclusion
We hold that, even assuming that New Mexico would recognize the tort of negligent spoliation of evidence, Plaintiff did not prove that the loss or destruction of the evidence impaired her ability to prove her underlying cause of action. Thus, Plaintiff failed to prove an essential element of the tort. Consequently, this is not an appropriate case to address the issue of whether or not the tort should be recognized in New Mexico. We therefore reverse the trial court's judgment and remand for the entry of judgment for Defendant. No costs are awarded on appeal.
IT IS SO ORDERED.
RUDY S. APODACA, Judge
WE CONCUR:
BENNY E. FLORES, Judge
RICHARD C. BOSSON, Judge
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