September 9, 2019- Alejandro and Maria Lerma v. BCA Medical Associates, No. A-1-CA-36393

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 ALEJANDRO and MARIA LERMA,
3 Individually and as Personal
4 Representative of the ESTATE OF
5 	SERGIO LERMA, Deceased, and as
6 Parents and Next Friends of EDUARDO
7 LERMA, ALEJANDRO LERMA, JR.,
8 and RUBY LERMA, all Minors,
9 	Plaintiffs-Appellants,
10 v. 	No. A-1-CA-36393
11 	BCA MEDICAL ASSOCIATES, a
12 Professional Association; WILLIAM G.
13 	LIAKOS, JR., M.D.; LORI D. ZINK,
14 M.D.; and MARGARITA MACIAS,
15 	M.D.,
16 	Defendants-Appel lees,
17 	and
18 	ROSWELL HOSPITAL CORPORATION
19 	d/b/a EASTERN NEW MEXICO MEDICAL
20 	CENTER; ONLINE RADIOLOGY MEDICAL
21 	GROUP, INC., a Foreign Corporation; and
22 	JOHNNY BLIZNAK, M.D.,
23 	De fendants.
24 	APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
25 	William G. W. Shoobridge, District Judge
Court of Appeals of New Mexico
Filed 9/9/2019 11:54 AM

1 Marion J. Craig III Attorney at Law, LLC
2 Marion J. Craig III
3 Roswell, NM
4 Adam D. Rafkin P.C.
5 Adam Daniel Rafkin
6 Ruidoso, NM
7 Andrew M. Gross, M.D ., J.D ., P.C.
8 Andrew M. Gross
9 Dallas, TX
10 	for Appellants
11 	Atwood, Malone, Turner & Sabin, P.A.
12 	Lee M. Rogers
13 	Carla Neusch Williams
14 Roswell, NM
15 	Lorenz Law
16 	Alice T. Lorenz
17 	Albuquerque, NM
18 	for Appellees BCA Medical Associates, P.A. and Margarita Macias, M.D.
19 	MEMORANDUM OPINION
20 	M. ZAMORA, Chief Judge.
21 	{l} 	Following a five-day trial, the jury returned verdicts in favor of Defendants
22 	BCA 	Medical 	Associates, 	Dr. 	William 	G. 	Liakos, Dr. 	Lori 	D. 	Zink, 	and Dr.
23 	Margarita Macias, and judgment was entered accordingly. Plaintiffs raise three
24 issues on appeal in support of a new trial. First, they assert that the district court
25 	abused its discretion by allowing hearsay statements regarding the standard of care
26 into evidence. Second, Plaintiffs contend that the district court abused its discretion
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1 by rejecting their tendered jury instructions on duty to inform, arguing that the issue
2 	was tried by implicit consent. Third, Plaintiffs argue that the district court erred by
3 granting summary judgment for Defendants on the loss of consortium claim brought
4 	on behalf of Sergio's twin brother. Unpersuaded, we affirm.
5 BACKGROUND
6 {2} 	Sergio 	was 	brought 	to 	BCA 	Medical 	Associates, a 	pediatric 	healthcare
7 provider 	in 	Roswell, 	New 	Mexico, 	complaining 	of an 	ear 	infection. 	Despite
8 momentary improvements 	in his 	condition, 	Sergio 	was 	brought back to 	BCA
9 vomiting and running a fever. When his condition did not improve, he was admitted
10 	to Eastern New Mexico Medical Center (ENMMC).
11 	{3} 	After spending the night in the hospital, Sergio was found unresponsive. Dr.
12 	Macias conducted an examination of Sergio and ordered CT scans of his head and
13 	abdomen. Dr. Macias believed that the likely cause of Sergio's condition could be
14 from bleeding on the brain or an infectious process like meningitis. Despite her
15 	concern that she was dealing with meningitis, Dr. Macias decided to withhold
16 antibiotics until she could perform a lumbar puncture- 	a procedure to extract a
17 	sample of a patient's spinal fluid, also called a spinal tap.
18 	{4} 	The CT scan of Sergio's head indicated the possibility of fluid on the brain, a
19 condition ENMMC was not equipped to treat. Radiologist Dr. Johnny Blizak warned
20 	Dr. Macias that a lumbar puncture was not recommended until the fluid could be
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1 drained and the pressure in the cranium could be relieved. Dr. Macias decided not to
2 perform a lumbar puncture based on the report of the heightened increase of cranial
3 pressure and arranged for Sergio to be transferred to University of New Mexico
4 Hospital (UNMH). At UNMH, doctors drained the fluid from Sergio's skull and then
5 performed a lumbar puncture. Following the lumbar puncture, doctors administered
6 antibiotics and Sergio's condition began to improve. Shortly thereafter, Sergio's
7 condition again began to deteriorate and he died.
8 	{5} 	Plaintiffs brought suit for wrongful death arising from the alleged negligence
9 	of BCA Medical Associates, ENMMC, the attending physicians, Dr. Liakos, Dr.
10 	Zink, and Dr. Macias, the radiologist, Dr. Johnny Blizak, and his employer Online
11 	Radiology Inc. 1 Plaintiffs also brought derivative loss of consortium claims in their
12 own right and on behalf of Sergio's sibling s.
13 	{6} 	The jury returned a verdict in favor of Defendant s, finding no negligence on
14 	the part of Dr. Liakos and Dr. Macias, and finding negligence on the part of Dr. Zink,
15 	but no causation. The di strict court entered judgment consistent with the jury's
16 verdict, dismissing all claims against BCA Medical Associates, Dr. Liakos, Dr.
17 	Macias, and Dr. Zink with prejudice. This appeal followed.
1Prior to trial, Plaintiffs reached settlements with ENMMC, Dr. Blizak, and
Online Radiology, Inc.
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1 {7} 	Because this is a memorandum opinion and the parties are familiar with the
2 	facts and procedural history of the case, we reserve further discussion of pertinent
3 	facts to our discussion section.
4 DISCUSSION
5 I. 	Dr. Macias's Alleged Hearsay and Standard of Care Testimony
6 {8} 	Plaintiffs 	called 	Dr. 	Macias 	to 	testify 	in 	their 	case 	in 	chief. 	On 	cross-
7 	examination by her own counsel, Dr. Macias explained that she was trained to obtain
8 a spinal fluid sample before administering antibiotics to a meningitis patient and that
9 administering antibiotics prior to obtaining a spinal fluid sample might interfere with
10 	the 	results 	and 	diagnosis 	because the 	antibiotics 	could 	clear out 	some 	of the
11 	organisms that were growing in the fluid.
12 	{9} 	Dr. Macias testified that her training in the Philippines and in Chicago during
13 	her 	residency 	programs 	taught 	her 	to 	obtain 	a 	sample 	before 	administering
14 antibiotics. The following exchange then occurred:
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[Defense counsel]: And 	do 	you 	remember 	specifically 	ever
getting training about that in a specific instance where you are treating
a specific patient?
[Dr. Macias]: 	Yes.
[Defense counsel]: Tell us about that.
[Dr. Macias]: 	His name was Dr. Roy. He was the chief of
pediatrics then. Every morning whenever we had admissions, we would
discuss every patient admitted. And he would thoroughly scold us ifwe
had given antibiotics before.
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[Plaintiffs' counsel]: 	Objection. Hearsay.
[Di strict court]: 	Sustained.
3 Plaintiffs asked to approach the bench and the following di scussion took place:
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[Defense counsel]: What she wa s trained is not offered for the
truth of the matter asserted. It ' s offered to show the jury what she wa s
trained[,] no different than if she had studied in a textbook or had had
been advised in a classroom setting. But this is how she was taught.
And there is no way to get that in other than what her teacher taught
her.
[Plaintiffs' counsel]: There is no way to get it in because its
hearsay. ... But if it was in a textbook, of course then it's an exception
under the hearsay rule. But this is being offered to show the jury this is
how she was told to do it and that' s the right way to do it. And we can 't
examine that person of course.
[Defense counsel]: I mean, if he were commenting on what she
did in this particular case, that would be a problem. But the question is,
" How were you trained? What were you told?"
[District court]: Okay.
[Defense counsel]: It ' s not offered for the truth. If he ' s right or if
he ' s wrong is not the question. The question is what were you trained?
[District court]: Okay.
22 	The bench conference concluded, and the district court then instructed the jury as
23 	follows:
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Ladies and gentlemen, I'm going to allow the answer to come in for the
limited purpose of identifying how the doctor was trained not for the
truth of the matter asserted and not for the standard of care but simply
as a statement of how she was trained.
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1 Plaintiffs did not move for a mistrial.
2 {10} 	Defense counsel then elicited testimony from Dr. Macias about a specific
3 incident during her residency in which she performed a lumbar puncture on a child
4 	and 	then 	administered 	antibiotics 	after 	a junior resident 	was 	unsuccessful 	in
5 performing the lumbar puncture. Dr. Macias testified that the following morning the
6 junior resident discussed the difficulty of the procedure on the child during "the usual
7 report 	for 	those 	on-call" 	at 	which 	time 	Plaintiffs 	objected, asserting 	that 	the
8 testimony was hearsay and went beyond the district court 's ruling. The district court
9 sustained the objection. The following exchange then occurred:
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[Defense counsel]: Okay. Just tell us the end of the report then.
[Dr. 	Macias]: 	The 	end 	was 	he was very, very pleased and
relieved that I had done as I was trained.
[Defense counsel]: Who was pleased? Dr. Roy ?
[Dr. Macias]: Dr. Roy.
16 Plaintiffs did not object.
17 	{11} 	Following the jury ' s verdicts, Plaintiffs moved for a new trial, arguing among
18 	other things, that Dr. 	Macias's testimony regarding her training from Dr. Roy
19 constituted the "use of an undisclosed expert to establish the standard of care." The
20 	district court denied the motion.
21 	{12} 	On 	appeal , 	Plaintiffs 	argue 	the 	district 	comi 	abused 	its 	discretion 	by
22 permitting Dr. Macias to present hearsay testimony that the chief of pediatrics, Dr.
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1 Roy, "would have scolded [Dr. Macias] for administering antibiotics under the same
2 circumstances as in this case." This, in tum they argue, amounted to impermissible
3 standard of care evidence from Dr. Macias, who was never disclosed as an expert,
4 as to how a pediatrician is to treat a suspected case of meningitis. Plaintiffs further
5 contend that the testimony in which Dr. Roy was "very, very pleased and relieved"
6 that Dr. Macias had done as she was trained when she withheld the antibiotics until
7 a lumbar puncture could be performed was impermissible hearsay. Plaintiffs also
8 argue that Dr. 	Macias was judicially estopped from 	offering standard of care
9 testimony through Dr. Roy because she previously had stated that she could not be
10 	required in her deposition to provide standard of care testimony.
11 	A. 	Standard of Review 2
12 	{13} 	We review the admission of evidence for an abuse of discretion. Tartaglia v.
13 	Hodges, 	2000-NMCA-080, 1 27, 	129 N.M. 	497, 	10 P.3d 	176. 	"A dmission or
14 exclusion of evidence is a matter within the discretion of the [district] court and the
15 	court's determination wi ll not be disturbed on appeal in the absence of a clear abuse
2 Plaintiffs attached the denial of their motion for a new trial to their notice of
appeal but explicitly state in their reply brief: "[Plaintiffs] never claimed the [district]
court 	somehow 	committed 	error 	by 	denying 	the 	[m]otion 	for 	[n]ew 	[t]rial."
Accordingly, this section of the opinion only reviews the evidentiary ruling at trial
even though the ultimate requested relief is for a new trial which applies the same
standard of review. See State v. Mann, 2002-NMSC-001 , 1 17 , 131 N.M. 459, 39
P.3d 124 ("[The appellate courts] will not overturn a [district] court 's denial of a
motion for a new trial unless the trial court abused its discretion.").
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1 of that discretion." Coates v. 	Wal-Mart Stores, Inc. , 1999-NMSC-O 13, ,r 36, 127
2 N.M. 47, 976 P.2d 999 (internal quotation marks and citation omitted). "An abuse
3 of discretion occurs when the ruling is clearly against the logic and effect of the facts
4 and circumstances of the case." Id. (internal quotation marks and citation omitted).
5 "[A]n abuse of discretion will be found only ifwe can characterize the district court's
6 ruling as clearly untenable or not justified by reason." Kilgore v. Fuji Heavy Indus. ,
7 2009-NMCA-078, ,r 39, 146 N.M. 698,213 P.3d 1127 (internal quotation marks and
8 citation omitted). "We do not find an abuse of discretion unless the court's ruling
9 exceeds the bounds of all reason or is arbitrary, fanciful or unreasonable." Id.
10 (internal quotation marks and citation omitted). "If evidence is erroneously admitted
11 	or excluded, the complaining party must show prejudice to obtain a reversal." Id.
12 	B. 	The District Court Did Not Abuse Its Discretion
13 	{14} 	"Hearsay" is a "statement that ( 1) the declarant does not make while testifying
14 at the current trial or hearing, and (2) a paiiy offers in evidence to prove the truth of
15 	the matter asserted in the statement." Rule 11-80 I (C) NMRA. "The professional
16 	standard of care generally must be established by expert testimony. " Oakey v. May
17 Maple Pharmacy, Inc., 2017-NMCA-054, ,r 25, 399 P .3 d 939; see UJI 13-1101
18 	(instructing that the only way to decide whether a health care provider met the
19 professional standard is from expert witnesses).
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1 {15} 	We assume without deciding that Dr. Macias's testimony that Dr. Roy would
2 scold her was improper, but conclude that any error is not reversible because the
3 curative instruction ameliorated any potential prejudice. "There is a presumption
4 that the jury understood and complied with the court's instructions." See Jolley v.
5 Energen Res. Corp. , 2008-NMCA-164, ,-r 28 , 145 N.M. 350, 198 P.3d 376 (internal
6 quotation marks and citation omitted). As noted earlier, the district court sustained
7 Plaintiffs' objection to the testimony and instructed the jury not to consider it for the
8 truth of the matter or standard of care evidence. We presume the jury followed,
9 understood, and complied with the court 's instructions to rely on Dr. Macias's
10 	statements for the limited purpose of how she was trained. See Vigil v. Miners Colfax
11 	Med. 	Ctr. , 1994-NMCA-054, ,-r 22, 117 N.M. 665 , 875 P.2d 1096 ("There is a
12 presumption that the jury understood and complied with the court's instructions." ).
13 	"It has long been the rule in this jurisdiction that unless it is clear that prejudice
14 resulted because of evidence erroneously admitted, striking or instructing the jury to
15 	disregard it will cure the error and avoid reversal." Apodaca v. Miller, 1968-NMSC-
16 086, ,-r 21, 79 N.M. 	160, 441 	P.2d 200. To the extent Plaintiffs argue that this
17 	improper testimony was the only evidence that Dr. Macias met the standard of care
18 	and was therefore prejudicial, we disagree. Defendant's expert witness, Dr. Handal,
19 	testified to essentially two different avenues for the standard of care. First, he
20 testified that, although he believed that antibiotics should have been given before
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1 Sergio left Roswell , he did not believe that starting antibiotics at that time would
2 have changed the overall outcome of Sergio 's health. However, Dr. Handal also
3 testified that he would not have done as Dr. Macias did in this case by waiting five
4 and a half hours to administer antibiotics when meningitis is suspected. Plaintiffs
5 expert also testified on the standard of care that if the lumbar puncture can be
6 performed within a reasonable period of time "then it [is] okay to hold antibiotics[.]"
7 The question of credibility of witnesses is for the jury to decide, and this Court does
8 not reweigh the evidence or reassess credibility on appeal. See Las Cruces Prof'!
9 Fire Fighters v. City ofLas Cruces, 1997-NMCA-044, ,r 12 , 123 N.M. 329, 940 P.2d
10 	177 (stating that "we will not reweigh the evidence nor substitute our judgment for
11 	that of the fact[-]finder") ; see also State v. Salas, 1999-NMCA-099, ,r 13, 127 N.M.
12 	686, 986 P.2d 482 (recognizing that it is for the fact-finder to resolve any conflict in
13 	the testimony of the witnesses and to determine where the weight and credibility lie);
14 see, e.g., Wood v. Citizens Standard Life Ins. Co. , 1971-NMSC-Ol l , ,r,r 16 , 19 , 82
15 	N .M. 271 , 480 P .2d 	161 	(holding that the trier of facts determines weight and
16 credibility even where the conflicting testimony was gi ven by qualified medical
17 	experts). Based on the curative instruction given and the minimally prejudicial effect
18 	of the statements in light of the evidence already before the jury, we conclude that
19 the district court properly exercised its discretion. See Jolley, 2008-NMCA-l 64,
20 ,r 27 ("The trial judge is in a much better position [than we are on appeal] to know
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1 whether a miscarriage of justice has taken place and his opinion is entitled to great
2 weight in the absence of a clearly erroneous decision." (alteration 	in original)
3 (internal quotation marks and citation omitted)).
4 	{16} 	Plaintiffs argue that this case is analogous to State v. Armijo, 2014-NMCA-
5 013 , 316 P.3d 902, where the prosecution in a criminal case intentionally elicited
6 inadmissible testimony. In Armijo, the testifying officer, who was not qualified as
7 an expert, testified to his assessment of the defendant' s breath alcohol content
8 results. Id. ,r,r 5-7. This Court explained that generally, the prompt admonition from
9 the district court to the jury to disregard and not consider the inadmissible evidence
10 	would sufficiently cure any prejudicial effect; however, the general rule does not
11 	apply where inadmissible testimony is intentionally elicited by the prosecution. Id.
12 ,r 9. We held that because the state drew repeated objections to questions that were
13 	"intended to elicit [the officer's] unqualified and inadmissible opinion" about the
14 defendant' s blood 	alcohol 	content, the 	curative 	instruction 	was 	not presumed
15 	effectiv e. Id. ,r 12.
16 {17} 	Here, 	Plaintiffs 	contend 	that 	defense 	counsel 	intentionally 	elicited 	the
17 	testimony about Dr. Roy's purported teachings and statements, and thus the curative
18 	instruction, like Armijo, also cannot be presumed effective. Plaintiffs have provided
19 	no evidence to support their contention that the testimony was intentionally elicited,
20 other than their conclusory statements, and we will not scour the record to determine
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1 whether any such support exists. See Muse v. Muse , 2009-NMCA-003, ,r 42, 145
2 N.M. 451 , 200 P.3d 104 ("We are not obligated to search the record on a party' s
3 behalf to locate support for propositions a party advances or representations of
4 couns el as to what occurred in the proceedings."); id. ,r 51 ("The mere assertions and
5 arguments of counsel are not evidence." ).
6 	{18} 	We also do not find Armijo persuasive. In their reply, Plaintiffs state that
7 "[Plaintiffs] have shown that [Dr. Macias], through her counsel, intentionally raised
8 the issue during his examination of Dr. Macias and pursued it. "That is all that Armijo
9 appears to require, as Armijo focuses on which party elicited the testimony. If the
10 opposing party intentionally elicited the hearsay testimony ... then the presumption
11 	that a curative instruction is sufficient no longer applies." It would be a big leap for
12 	us to conclude that it was intentional where Plaintiffs do not cite any evidence to
13 	support the intentionality.
14 	{19} 	This case is a civil matter in which Plaintiffs contend the defense counsel
15 	elicited the testimony. Plaintiffs have not cited any authority extending this holding
16 outside the context of criminal law and to circumstances where civ il defense counsel
17 	elicited the purportedly impermissible testimony. See Curry v. Great Nw. Ins. Co. ,
18 	2014-NMCA-031 , ,r 28,320 P.3d 482 ("Where a party cites no authority to support
19 an argument, we may assume no such authority exists."); Corona v. Corona, 2014-
20 NMCA-071 , ,r 28,329 P.3d 701 ("This Court has no duty to review an argument that
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1 is not adequately developed."); see also Dominguez v. Stat e, 2015-NMSC-O 14 , ~ 16 ,
2 348 P.3d 183 (recognizing "the general rule is that cases are not authority for
3 propositions not considered" 	(alteration, internal quotation 	mark s, 	and 	citation
4 omitted)). Therefore, because the district court instructed the jury not to consider Dr.
5 Macias ' s testimony that Dr. Roy would scold her for the truth of the matter or for
6 standard of care evidence, and no exception to our presumption that the limiting
7 instruction cures the prejudice applie s, we cannot say that this error is reversible.
8 	{20 } 	Because Plaintiffs did not object at trial that Dr. Macias ' s testimony regarding
9 Dr. Roy being "very, very pleased and relieved" when Dr. Macias during her
10 	residency withheld the antibiotics until a lumbar puncture could be performed was
11 	also improper hearsay, this argument was not preserved. See Gonzales v. Sha w,
12 	2018-NMCA-059, ~ 14 , 428 P.3d 280 ("In order to preserve an is sue for review, a
13 	party must have made a timely and specific objection that apprised the district court
14 	of the nature of the claimed error and that allows the district court to make an
15 	intelligent ruling thereon. " (internal quotation marks and citation omitted)); see also
16 State v. Pacheco, 2007-NMSC-009, ~~ 7-8, 141 N.M. 340, 155 P.3d 745 (concluding
17 a defendant did not preserve an issue when he failed to object but raised the issue in
18 	a motion for a new trial). Appellate courts may review unpreserved evidentiary
19 	issues for plain error. State v. Montoya, 2015-NMSC-O 10 , ~ 46, 345 P.3d 1056.
20 However, Plaintiffs do not ask us to review for plain error. See State v. Gutierrez,
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1 2003-NMCA-077, 19 , 133 N.M. 797, 70 P.3d 787 (explaining that we "normally
2 refuse to step into" fundamental error or plain error review "when not invited by the
3 appellant to do so").
4 	{21} 	Finally, Plaintiffs contend that Dr. Macias was judicially estopped from
5 testifying about her training from D r. Roy because Dr. Macias refused to discuss the
6 standard of care in depositions. However, Plaintiffs have not directed us to, and our
7 review has not revealed, where in the record they preserved this argument for
8 appellate review. "[O]n appeal, the party must specifically point out where, in the
9 record, the party invoked the court 's ruling on the issue. Absent that citation to the
10 record or any obvious preservation, we will not consider the issue." Crutchfield v.
11 	N.M. Dep 't of Ta xation & Revenu e, 2005-NMCA-022, 114 , 137 N.M. 26, 106 P.3d
12 	1273 ; see Rule 12-32l(A) NMRA ("To preserve an issue for review, it must appear
13 	that a ruling or decision by the trial court was fairly invoked."); Vill. of Angel Fire
14 	v. Bd. of Cty. Comm 'rs of Colfax Cty., 2010-NMCA-038 , 115 , 148 N.M. 804, 242
15 	P.3d 371 ("In order to properly preserve an issue, it must appear that the party fairly
16 	invoked a ruling of the district court on the same grounds argued in the appellate
17 court." 	(emphasis 	added) 	(alterations, 	internal 	quotation 	marks, 	and 	citation
18 	omitted)). We conclude that the district court did not abuse its discretion by allowing
19 	Dr. Macias ' s testimony with a curative instruction.
20 II. 	Jury Instructions
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1 {22} 	After the evidence was presented, Plaintiffs requested the district court submit
2 to the jury, instructions adding a claim of a doctor's duty to inform. See UJI 13-
3 	l 104B NMRA; UJI 13-l 104C NMRA; UJI 13-l l 16B NMRA. The district court
4 refused the instructions. Plaintiffs argue that the district court abused its discretion
5 by refusing to give their requested jury instructions. They concede that they did not
6 plead the issue of duty to inform in their complaint, but contend that it was tried by
7 implicit consent of the parties.
8 A. 	Standard of Review
9 	{23} 	We review the denial of a proffered instruction de novo. See Collins v. St.
10 	Vincent Hosp., Inc., 2018-NMCA-027, ,r 21, 415 P.3d 1012. "If a legal theory is
11 	supported by the evidence, a party is entitled to have the jury instructed on that
12 theory." Akins v. 	United Steelworkers of Am., 2009-NMCA-051 , ,r 42, 146 N.M.
13 	237,208 P.3d 457. However, "[a]n instruction is proper only if [the] plaintiff pleads
14 the theory or it is tried by express or implied consent." Rice v. Gideon, 1974-NMCA-
15 	050, ,r 3, 86 N.M. 560, 525 P.2d 920. "A civil case will not be reversed due to error
16 	in jury instructions unless the result is fundamentally unjust." Salopek v. Friedman,
17 	2013-NMCA-087, 	,r 	16, 	308 	P.3d 	139 (internal 	quotation 	marks 	and citation
18 	omitted).
19 B.
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The District Court Did Not Err by Refusing Plaintiffs' Tendered Jury
Instructions
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1 {24} 	"When issues not raised by the pleadings are tried by express or implied
2 consent of the parties, they shall be treated in all respects as if they had been raised
3 in the pleadings." Rule l-015(B) NMRA. "Implied consent usually is found where
4 one party raises an issue material to the other party's case, or where evidence is
5 introduced without objection. 	However, 	consent cannot be 	implied where the
6 evidence introduced is relevant to some other issue and the parties do not squarely
7 recognize it as an issue in the trial." Rice, 1974-NMCA-050, il 4 (citation omitted);
8 see Apodaca v. AAA Gas Co., 2003-NMCA-085, il 73 , 134 N.M. 77, 73 P.3d 215
9 ("Implied consent to a new theory is generally absent when the evidence is relevant
10 to other pleaded issues.").
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To find Dr. Macias negligent, the jury was instructed as follows:
In this case Plaintiffs seek compensation from Dr. Macias for
damages Plaintiffs say were caused by negligence.
To establish negligence on the part of Defendant Macias, the
Plaintiffs have the burden of proving each of the foll9wing[:]
1. 	Defendant Macias had a duty to act within the standard of
care in caring for Sergio Lerma;
2. 	The 	standard 	of care 	required that Defendant Macias
consider meningitis as a cause of Sergio' s illness, and/or perform a
lumbar puncture or spinal tap to determine if he had meningitis, and/or
provide 	medication 	to 	Sergio 	for 	his 	meningitis, 	and/or 	advise
University of New Mexico Hospital physicians, who had agreed to
accept a transfer of Sergio, that Sergio likely had meningitis;
3. 	Defendant Macias committed breach of that duty; and
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4. 	That as a result of Defendant Macias's negligence, Sergio	1
2 	suffered harm.
3 Further, the jury was instructed: "An act or omission is a 'cause' of injury if it
4 contributes to bringing about the injury, and if the injury would not have occurred
5 without it."
6 	{26} 	During trial, 	Plaintiffs 	questioned 	Dr . Macias 	on whether she informed
7 Sergio ' s parents of her diagnosis and treatment of Sergio. In his closing statement,
8 counsel 	for 	Plaintiffs 	focused 	on 	Dr. 	Macias ' s alleged 	failure 	to 	tell 	the 	air
9 ambulance crew or the doctors at UNMH of the possibility of meningitis. Plaintiffs
10 argued that Dr. Macias's failure to inform Sergio ' s parents that she suspected
11 	meningitis and failure to administer antibiotics earlier amounted to "unforgivable"
12 	negligence.
13 	{27} 	The record 	further reveals that outside the jurors' 	presence, Defendants
14 objected to presenting the jurors portions of the videotaped testimony of Defendant's
15 	expert 	witness, Dr. 	Handal, 	in 	which 	Plaintiffs 	questioned 	Dr. 	Handal 	about
16 	infonned consent. Defendants argued because Plaintiffs had not pled informed
17 	consent, the testimony was irrelevant. Plaintiffs responded that Defendants did not
18 	object to their examination of Dr. Macias on whether she should have told the
19 parents, what she did not tell the parents, and whether she wished she had told the
20 parents about the possibility of meningitis and, as such, the subject was at issue. The
18

1 district court responded that it was inclined to allow the testimony but that it did not
2 mean it would allow an instruction on informed consent. Plaintiffs replied:
3
4
5
6
7
Well, we have jury instructions. There [are] a few in dispute. Some
which involve that. Not as a separate cause of action, but it simply
instructs the jury what the law is for instance just as it would with
respect to what duty a specialist has. Obviously not something that's in
front of the court now.
8 (Emphasis 	added.) The district 	court overruled Defendants objection, 	and 	Dr.
9 Handel's recorded testimony was played for the jury.
10 	{28} 	Under Plaintiffs' theory of the case, Dr. Macias's alleged failure to inform
11 	Sergio's parents, the air ambulance crew, and the doctors at UNMH that she
12 	suspected 	meningitis 	could 	have 	been 	relevant 	to 	the jury's 	deliberations 	on
13 	negligence. Moreover, Plaintiffs admitted that the testimony regarding Dr. Handal 's
14 expert testimony about informed consent would not serve as a basis as a separate
15 	cause of action of duty to inform. "[C]onsent cannot be implied where the evidence
16 introduced is relevant to some other issue and the parties do not squarely recognize
17 	it as an issue in the trial." Rice, 1974-NMCA-050, il 4. As such, we reject Plaintiffs'
18 	contention that a claim of failure to inform was tried by consent of the parties and
19 conclude that the district court did not abuse its discretion by refusing Plaintiffs'
20 	tendered jury instructions on duty to inform. See Gonzales v. Surgidev Corp., 1995-
21 	NMSC-036, il 20, 120 N.M. 133 , 899 P.2d 576 (holding that the district court did
19

1 not abuse its discretion when the evidence identified was relevant to both a pled and
2 	an unpled issue and the district court refused to instruct on the unpled issue).
3 	III. 	Loss of Consortium
4 	{29} 	Plaintiffs ' loss of consortium claim was derivative of their negligence claims,
5 without which the loss of consortium action is without basis. See Fitzjerrell v. City
6 	of Gallup ex rel. Gallup Police Dep 't, 2003-NMCA-125, ,I 12, 134 N.M. 492, 79
7 P.3d 836 ("Loss of consortium is thus derivative of other injuries and not an injury
8 	in and of itself."). Because we affirm the district court on Plaintiffs' first two claims
9 	of error, we do not address their loss of consortium argument, as we cannot remand
10 the claim to the district court for further proceedings without a primary claim of
11 	injury onto which it can attach.
12 	CONCLUSION
13 	{30} 	For the aforementioned reasons, we affirm.
14 {31} 	IT IS SO ORDERED.
15
16
17 	I CONCUR:
18 	(fr,6.,..- ~
19 	KRIS1NAB0G~' Judge
20

1 MEDINA, J., specially concurring.
2 	{32} 	I concur in the result affirming the district court's rejection of Plaintiffs ' duty
3 to inform jury instruction on the grounds that duty to inform was not tried by implicit
4 	consent. I also agree that the district court properly granted Defendant's summary
5 judgment motion on Plaintiffs' loss of consortium claim. Finally, I concur in the
6 majority's conclusion that Plaintiffs failed to preserve a claim of judicial estoppel
7 and that Dr. Macias 's testimony that Dr. Roy was "very, very pleased and relieved"
8 when she withheld antibiotics until after a lumbar puncture was performed, during
9 her residency, was improper hearsay. 	However, 	I disagree with the majority's
10 decision to assume without deciding that Dr. Macias's testimony that Dr. Roy
11 	"would have scolded 	[her]" was improper, presumably on the grounds that it
12 constituted impe1missible hearsay regarding the proper standard of care. Despite the
13 	majority's ultimate conclusion that the presumed improper statement was harmless,
14 in my view this statement was not hearsay or otherwise improper.
15 	{33} 	We review the admission of evidence for an abuse of discretion. Tartaglia,
16 2000-NMCA-080, ,r 27. "Admission or exclusion of evidence is a matter within the
17 	discretion of the [district] court and the court 's determination will not be disturbed
18 	on appeal in the absence of a clear abuse of that discretion." Coates, 1999-NMSC-
l 9 013 , ,r 36 (internal quotation marks and citation omitted). "An abuse of discretion
20 	occurs when the ruling is clearly against the logic and effect of the facts and
21

1 circumstances of the cas e. " Id. (internal quotation marks and citation omitted). "[A]n
2 abuse of di scretion will be found only if we can characterize the district court' s
3 ruling as clearly untenable or not ju stified by reason." Kilg ore, 2009-NMCA-078,
4 ,r 39 (internal quotation marks and citation omitted). "We do not find an abuse of
5 discretion unless the court' s ruling exceeds the bounds of a ll reason or is arbitrary,
6 fanciful or unreasonable." Id. (internal quotation marks and citation omitted). " If
7 evidence is erroneously admitted or excluded, the complaining party must show
8 prejudice to obtain a reversal." Id.
9 	{34} 	"Hearsay" is a "statement that ( 1) the declarant does not make while testifying
10 at the current trial or hearing, and (2) a party offers in evidence to prove the truth of
11 	the matter asserted in the statement." Rule 11-801 (C); see State v. Mc Claugherty,
12 	2003-NMSC-006, ,r 17 , 133 N.M. 459, 64 P.3d 486 ("A hearsay statement consists
13 	of an out-of-court statement offered to prove the truth of the matter asserted."),
14 ov erruled on other grounds by State v. Tollardo , 2012-NMSC-008, ,r 37 n.6, 275
15 	P.3d 110. "The purpose of the rule is to protect against the danger that a stateme nt
16 	of a declarant is unreliable because it is not given under oath by a witness who is
17 present at trial and subject to cross-examination." McClaugh erty, 2003-NMSC-006,
18 ,r 17 (emphasis added).
19 	{35} 	Plaintiffs 	called 	Dr. 	Macias 	to 	testify 	in 	their 	case 	in 	chief. 	Despite
20 protestation to the contrary, Plaintiffs elicited numerous statements from Dr. Macias
22

1 regarding her professional training, including whether she was trained to diagnose
2 and treat meningitis during her residency in the Philippines and later during her
3 residency in the United States. Plaintiffs also asked Dr. Macias to agree that she
4 	could have given Sergio two types of antibiotics, Rocephin and Vancomycin, when
5 she heard from the Radiologist, to which she responded: "I could have. But that's
6 not how my training- 	how I was trained to do-or trained to progress."
7 	{36} 	On cross-examination, Dr. Macias explained that she was trained to obtain a
8 spinal fluid sample before administering antibiotics to a meningitis patient and that
9 administering antibiotics prior to obtaining a spinal fluid sample might interfere with
10 	the results 	and 	diagnosis 	because the 	antibiotics could 	clear out some 	of the
11 	organisms that were growing in the fluid. Dr. Macias also testified that she believed
12 	Sergio would be transferred to UNMH in a very reasonable time and believed
13 	UNMH would perform a lumbar puncture and then administer antibiotics to Sergio.
14 	{37} 	Dr. Macias testified that she received her training to obtain a sample before
15 	administering antibiotics in both the Philippines and in Chicago during her residency
16 programs. Plaintiffs did not object to this testimony. Dr. Macias testified that Dr.
17 	Roy, the chief of pediatrics during her residency program, would admonish residents
18 	if they had given antibiotics to a meningitis patient prior to conducting a lumbar
19 puncture. Plaintiffs objected on hearsay grounds. The district court sustained the
23

1 objection. Plaintiffs did not move to strike the testimony and instead asked to
2 approach the bench and the following colloquy took place:
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20 	{38}
[Defense counsel]: What she was trained is not offered for the
truth of the matter asserted. It's offered to show the jury what she was
trained no different than if she had studied in a textbook or had had
been advised in a classroom setting. But this is how she was taught.
And there is no way to get that in other than what her teacher taught
her.
[Plaintiffs' counsel]: 	There is no way to get it in because its
hearsay. I mean, not being cute aside. But if it was in a textbook, of
course then it's an exception under the hearsay rule. But this is being
offered to show the jury this is how she was told to do it and that 's the
right way to do it. And we can 't examine that person of course.
[Defense counsel]: I mean, if he were commenting on what she
did in this particular case, that would be a problem. But the question is ,
"How were you trained? What were you told?"
[District Court ]: 	Okay.
[Defense counsel]: It 's not offered for the truth. If he's right or if
he's wrong is not the question. The question is what were you trained?
The district court allowed the statement into evidence and instructed the jury
21 	as follows:
22 	Ladies and gentlemen, I'm going to allow the answer to come in for the
23 	limited purpose of identifying how the doctor was trained not for the
24 	truth of the matter asserted and not for the standard of care but simply
25 	as a statement of how she was trained.
26 	{39} 	Based on the foregoing, I do not conclude or presume that Dr. Macias's
27 	testimony that Dr . Roy would admonish residents if they had given antibiotics to a
28 	meningitis patient prior to 	conducting a 	lumbar puncture was 	an 	out-of-court
29 	statement offered for the truth of the matter asserted or that the testimony was offered
24

1 as evidence regarding the standard of care for cases of suspected meningitis. Rather,
2 Dr. Macias's testimony was offered to inform the jury how Dr. Macias was trained
3 to diagnose and treat meningitis. Therefore, Dr. Macias's testimony was not hearsay.
4 See Rule 11-801 (C).
5 	{40} 	Moreover, Plaintiffs 	raised 	the 	subject 	of Dr. 	Macias's 	training 	m 	the
6 diagnosis and treatment 	of meningitis during direct examination. 	In so doing,
7 Plaintiffs opened the door to cross-examination on the matter. See Jaramillo v.
8 Fisher Controls Co., 1985-NMCA-008, ,r 50, 102 N.M. 614, 698 P.2d 887 (stating
9 that 	" [c]ross-examination 	extends 	to 	matters 	that 	may 	modify, 	supplement,
10 	contradict, rebut[,] or make clearer the facts testified to in chief by the witness on
11 	direct examination"). Therefore, Defendants were within their rights to examine Dr.
12 Macias on the same subject during cross-examination. See id.; see also Rule 11-
13 	611 (B) NMRA ("Cross-examination should not go beyond the subject matter of the
14 direct examination[.]"). "T he scope and extent of cross-examination is a matter
15 	within the discretion of the [district] court." Empire W 	Cos., Inc. v. Albuquerque
16 	Testing Labs., Inc., 1990-NMSC-096, ,r 7, 110 N.M. 790, 800 P.2d 725. "The right
17 to cross-examine is valuable and may not be restricted so as . . . to preclude
18 	elucidation of the testimony." Id. ,r 8.
19
20
25
ELINE R. MEDINA, Judge