November 30, 2010 – Phillip Grassie, as Personal Representative and Executor of the Estate of Walter Grassie v. Roswell Hospital Corporation, d/b/a Eastern New Mexico Medical Center, No. 28,050

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _November 30, 2010

NO. 28,050

PHILLIP GRASSIE, as Personal Representative
and Executor of the Fstate of WALTER GRASSIF,

Plaintiff-A ppellee,
V.

ROSWELL HOSPITAL CORPORATION,
d/b/a EASTERN NEW MEXICO MEDICAL

CENTER,
Defendant- Appellant.

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
Ralph D. Shamas, District Judge

Law Office of Stephen Durkovich
Stephen Durkovich
Santa Fe, NM

Garcia & Vargas, LLC
Ray M. Vargas, I
Santa Fe, NM

for Appellee

Montgomery & Andrews, PA
Stephen S. Hamilton
Jaime R. Kennedy
Santa Fe, NM
Sheehy, Serpe & Ware, P.C.
Richard A. Sheehy
Houston, Tx
for Appellant

OPINION
BUSTAMANTE, Judge.
{1} 	Walter Grassie died less than two hours after he was admitted to the emergency
room at Eastern New Mexico Medical Center (Hospital) in Roswell, New Mexico.
Mr. Grassie’s personal representative sued the Hospital asserting that (1) the
emergency room medical staff was medically negligent; (2) the Hospital was negligent
in allowing the treating physician to practice in its facility; and (3) the Hospital
misrepresented its emergency room services to the public contrary to the New Mexico
Unfair Practices Act (UPA), NMSA 1978, §§ 57-12-1 to -26 (1967, as amended
through 2009). The district court allowed the three theories to be submitted to the
jury. 	The jury awarded $1,986,931 in compensatory damages “[f]or the death of
Walter Grassie” and $9,501.65 under the UPA. The jury also entered two separate
punitive damages awards of $10,000,000 each, one premised on Plaintiff’s medical
malpractice count and the other based on the negligent hiring theory.
{2} 	The Hospital does not appeal the award of compensatory damages insofar as it
is based on medical negligence. The Hospital does challenge the compensatory award
to the extent it is based on the negligent hiring claim. The Hospital generally asserts
that the punitive damages awards are not supported by substantial evidence and are
excessive. More specifically, the Hospital asserts that (1) the punitive award flowing

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from any medical negligence cannot be grounded—as a factual or legal matter—on
the cumulative conduct approach of Clay v. Ferrellgas, Inc., 118 N.M. 266, 881 P.2d
11 (1994); and (2) there is no evidence of a sufficiently culpable state of mind with
regard to the negligent hiring theory to allow the claim to be submitted to the jury.
{3} 	We agree with the Hospital that the claim for negligent hiring should not have
been submitted to the jury, and we reverse as to that portion of the verdict and
judgment. We affirm the remainder of the judgment.
INTRODUCTION
{4} 	The issues in this case revolve around three areas of inquiry—medical
malpractice, negligent hiring, and the UPA matter. 	Because each area involves
different facts and legal rules, we will discuss each separately, providing pertinent
factual and procedural summaries as appropriate.
I. 	MEDICAL MALPRACTICE
{5} 	Viewing the record in the light most favorable in support of the jury verdict,
Mr. Grassie probably died of an aortic dissection, a process in which the inner wall
of the aorta tears, allowing blood to be pushed in between the inner walls and the outer
walls of the vessel. The effect is to very painfully rip apart the walls of the vessel as
blood continues to be pumped into the break. A classic symptom of aortic dissection
is a sudden onset of chest pain radiating to the back as the tear progresses. A “big risk

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factor” for aortic dissection is high blood pressure.
A. 	Emergency Room Treatment
{6} 	On August 19, 2005, Mr. Grassie was driving by himself from Ruidoso to
Roswell when he began feeling pain in his chest. At about 3:40 p.m. the pain became
severe enough that he pulled over and called 911. He also spoke with his wife. The
ambulance reached him at approximately 4:10 p.m. The EMTs found Mr. Grassie
sitting in his vehicle and fully conscious. Mr. Grassie reported chest pain radiating
to his back which he rated as “9 out of 10” in terms of severity. 	The ambulance
patient care record reflects that the first blood pressure reading obtained by the EMTs
upon arrival was 260/120. This blood pressure level is “frighteningly high” or “scary
high,” raising concerns that the patient could suffer a stroke, a heart attack or a rupture
of the lining in the blood vessels.
{7} 	Within one minute of reaching Mr. Grassie, the EMTs gave him aspirin. Within
six minutes of their arrival, the EMTs administered a sublingual nitroglycerin tablet
to Mr. Grassie, followed by a second tablet seven minutes later, and a third five
minutes after that. Mr. Grassie’s blood pressure readings reflect a concomitant drop,
reaching 170/100 by the time Mr. Grassie arrived at the Hospital’s emergency room.
Mr. Grassie was also administered four milligrams of morphine intravenously starting
at 4:30 p.m. When he was triaged by Hospital personnel, Mr. Grassie reported his

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pain level at five out of ten.
{8} 	The ambulance patient care record reflects that the ambulance reached the
emergency room at 4:32 p.m. The first hospital records—reflecting a time of 4:43
p.m.—are the Initial Assessment Form and the Emergency Department Chest Pain
Nursing Assessment. The Initial Assessment Form reflects that Mr. Grassie’s blood
pressure was 216/96 at that point, and his reported pain was still at 5 out of 10. He
was still reporting chest pain radiating to the back. The Initial Assessment Form also
reflects that Mr. Grassie reported having “substernal and crushing” pain radiating to
his jaw, neck, and arm, and “syncope [fainting] or near syncope, dyspnea [shortness
of breath], dyspnea on exertion, orthopnea and nausea or vomiting.”
{9} 	Mr. Grassie was assigned a priority level of “2” or “urgent” rather than
“emergent” under the Hospital triage criteria. A patient assessed as “urgent” was not
required to be seen by a doctor for an hour after arrival in the emergency room. A
patient assessed as “emergent” was required to be seen “[a]s soon as [the doctor] can
get in the room.”
{10} 	The triage nurse assigned Mr. Grassie to the urgent or priority two status
because she decided he was stable at least in part because “[Mr. Grassie] was able to
answer my questions.” 	The triage nurse made the priority “2” assignment even
though she was aware that, while Mr. Grassie’s blood pressure and other symptoms

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had reacted positively to the EMTs treatment, with the passage of only a few minutes
they were again increasing.
{11} 	The triage nurse thought Mr. Grassie was having a heart attack. As such, she
entered “chest pain” into the computer, and the computer printed out a set of forms
appropriate to that diagnosis. The forms are placed on a yellow clipboard with a room
designation. The yellow clipboard alerts doctors and others that the patient has been
designated “urgent.” 	The EMT report may or may not be included on the yellow
clipboard, and the triage nurse could not recall if Mr. Grassie’s EMT report was
attached to his clipboard. The EMT report was not part of the Hospital’s records. The
information from the EMTs did get entered into the triage notes.
{12} 	The standard protocol for a heart attack is a regimen of morphine, nitroglycerin,
oxygen, and aspirin. 	The triage nurse started oxygen under her own authority but
could not administer any other medications without a doctor’s order. Another part of
the standard protocol is a chest x-ray and the triage nurse ordered one at 4:45 p.m.
The chest x-ray was performed at 4:50 p.m. X-rays are digitally transferred to a “pack
system” upon being taken. 	The triage nurse also ordered standard blood work
indicated by the chest pain protocol. All of the diagnostic orders made by the triage
nurse were reflected on the medical record so they would be accessible to the doctor.
{13} 	The triage nurse had worked at the Hospital since 1998. The day Mr. Grassie

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came to the Hospital was the first day the nurse had worked with the treating
doctor—Theodore Collins. She had not had any orientation sessions with him before
he appeared to work that day, and she was not aware of any orientation programs for
doctors and nurses in the emergency room.
{14} 	Neither the triage nurse nor the treating nurse even spoke to Dr. Collins about
starting any medications or about reviewing Mr. Grassie’s x-rays. They felt it was not
their responsibility to do so. And neither of them even brought Mr. Grassie’s blood
pressure readings to Dr. Collins’ attention. The treating nurse stated: “The physician
can look at the monitor as easy as I can, sir.”
{15} 	There are four particularly salient aspects of the treating nurse’s testimony with
regard to Mr. Grassie’s blood pressure readings. 	First, he noted blood pressure
readings for Mr. Grassie at least four times before Mr. Grassie “coded.” There is a
question, however, whether they were charted contemporaneously or after Mr. Grassie
died. If they were not charted contemporaneously, the treating doctor would not have
had the readings history available to him. Second, even though the blood pressure
readings were “scary high” (224/106, 216/99, 218/112, 224/108), the treating nurse
never reported them to the treating physician, Dr. Collins. 	Third, even though the
monitoring equipment was set to issue an audible alarm when readings exceeded 170,
the treating nurse could not recall the alarm ever sounding. The alarm feature could

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be turned off by the nursing staff. Fourth, the treating nurse did not recall a blood
pressure reading of 280/146 even though the Grassie family testified they saw such
a reading.
{16} 	The treating nurse was charged with administering medications per doctor
orders. 	The Hospital record does not reflect when the order for medication was
entered or given. The treating nurse could not recall when or how he received the
order for medication, and thus the time span from the time the order was received to
the time the nitroglycerin drip was started could range anywhere from forty-three
minutes to twenty minutes.
{17} 	In either event, Mr. Grassie did not receive any medications for a full hour after
his arrival at the emergency room.
{18} 	The treating physician, Dr. Collins, first saw Mr. Grassie at 5:00 p.m. 	The
emergency room Physician Record outlines his examination of Mr. Grassie. 	The
record reflects Mr. Grassie’s chest pain radiating to his back. The pain, rated at seven
out of ten, was worsened by change in position and deep breathing and relieved by
nitroglycerin. 	Dr. Collins noted no nausea, vomiting or shortness of breath—only
sweating. Dr. Collins reviewed the nursing assessments and vital signs record.
{19} 	Dr. Collins was not confident that the reported blood pressure readings from the
automatic cuff were accurate, but he never obtained a manual reading of his own to

8
verify the range. Also, Dr. Collins did not dispute that Mrs. Grassie told him about
the 280/146 blood pressure she had seen on the monitor. 	He did not know if the
reading was accurate, but he did not do anything to verify it before Mr. Grassie died.
{20} 	Dr. Collins did not review the x-ray that had been taken by the time he first saw
Mr. Grassie. 	Dr. Collins never asked to see x-rays and never inquired about their
availability. In fact, the x-ray was not read until two and a half weeks later. When
read, the radiologist suggested further CT testing to “consider dissecting aneurysm”
if the patient had chest pain. Dr. Collins did not order any further testing and circled
“Chest pain – acute pericardial” as his clinical impression. “Acute Aortic Dissection”
and “Acute MI” are not circled, though Dr. Collins testified he kept them in the back
of his mind. 	Dr. Collins stated that seeing the x-ray would not have changed his
treatment.
{21} 	Further, Dr. Collins did not enter any order for medication on the ER Physician
Record. 	The boxes for aspirin, ACE inhibitors, nitrates, beta blockers and
thrombolytics were not checked. Dr. Collins testified he ordered a nitroglycerin drip
after he saw Mr. Grassie and after Mrs. Grassie reported the 280/146 reading, but he
could not recall how he conveyed the order to the nursing staff. The Physician Record
did not reflect any times when medications were ordered. Despite these issues, Dr.
Collins thought that Mr. Grassie’s treatment “ran pretty smoothly.”

9
B. 	Plaintiff’s Expert Testimony
{22} 	Plaintiff’s expert radiologist agreed with the x-ray assessment done two and a
half weeks after Mr. Grassie’s death, in particular the need for a CT scan. CT scans
“can be done rapidly, faster than most radiologists can read them.” 	They are a
“definitive procedure” for diagnosing a possible dissection, which “directs the care
of the patient from that point on.”
{23} 	Plaintiff’s cardiovascular surgery expert opined that Mr. Grassie died of a
ruptured aortic dissection. “[H]e should have had his blood pressure brought to an
acceptable level . . . 100 to . . . 120.” Lowering his blood pressure could have been
done very quickly, perhaps “in seconds.” 	Blood pressure could also be reduced
safely, more gradually—say within twenty minutes. 	He also opined that the
emergency personnel were negligent in not treating the high blood pressure sooner.
In addition, he testified that the x-ray showing “a widened mediastinum in the face of
a guy with hypertension” needed to be addressed “with an immediate CAT scan” if
the hospital can do so. If not, the patient should be transported to a facility that can
do appropriate treatment for a dissection. That assessment and decision should be
made “[a]bout when you see the patient.” Instead, Mr. Grassie “sat around with a real
high blood pressure until his ultimate demise.”
{24} 	Plaintiff’s expert in emergency room medicine testified that aortic dissection

10
should have been the first candidate for a diagnosis, given the report of a sudden onset
of chest pain radiating to the back with high blood pressure. Customary diagnostic
procedures could be and should have been followed to help narrow diagnostic options.
For example, chest x-rays could reveal a collapsed lung (which is also painful) or a
widened mediastinum (which would indicate an aortic dissection). An EKG can help
determine whether the person is having a heart attack. None of the diagnostic tools
available to Dr. Collins were appropriately used.
{25} 	The 	emergency 	room 	expert 	testified 	that: 	It 	was 	negligent 	and
“unconscionable” that the chest x-ray was not reviewed. “That’s just something you
must absolutely do as a physician.” 	There is no evidence from Dr. Collins’
documentation in the Hospital records, that he ever “considered the diagnosis of aortic
dissection.” 	Mr. Grassie never received any of the lifesaving treatment that “we
would have done for him to basically, if this wasn’t aortic dissection, to save his life.
And that treatment is quite simply lowering his blood pressure.” 	It was medically
negligent not to treat Mr. Grassie’s high blood pressure independently of any
diagnosis which might have applied. There were “real issues with communication”
among the emergency room personnel with regard to documentation, reading blood
pressure, and looking at x-rays. There was also an unfortunate culture of not talking
among the Hospital’s staff stifling the flow of information and allowing more

11
mistakes to occur.
{26} 	Finally, asked if not treating a blood pressure of 280/146 constituted conscious
disregard for the patient’s safety, the emergency room expert replied: “I think one of
two things is happening, either Dr. Collins was consciously ignoring that combination
of facts and the blood pressure and choosing not to treat it, or he was incompetent,
slash, negligent and did not know what to do.”
{27} 	Plaintiff presented 	one other expert in emergency room medicine and
procedures. Initially reluctant to “participate because it’s a plaintiff case,” he decided
to get involved because “the case was very powerful.” His testimony is best quoted
rather than paraphrased.
Q: 	Having read the medical records, okay, what are the principle [sic]
facts of your opinion?
A: 	The principle [sic] facts are that the real grade that needs to be
given to the crew at [the Hospital], the ER crew, is an F. It is failure.
Walter Grassie did not need to die August 19th, 2005. As painful as this
is to discuss, it just did not need to happen. Because he had a disease
entity that was easily recognizable, that being aortic dissection, a
condition of hypertension that was easily treatable at [the Hospital].
He had a condition that required teamwork which was absent.
And most basic of all he had—there was a tool that was utilized that
showed what was wrong with him, that being a chest x[-]ray that wasn’t
even looked at. So there was failure to recognize the disease process,
failure to treat the disease process, and failure to do the most basic things
that could have given him time. And in my opinion, could have allowed,
would have allowed most probably for his survival.

12
Q: 	Okay. What are the facts that you feel should have compelled the
physicians at [the Hospital] to recognize what was going on? In other
words, what told them? 	What are the facts that told them what was
going on?
A: 	Just two things. 	And one of those things was the nature of the
pain, the severe sudden onset of the pain that made him slump over in his
vehicle, associated with a blood pressure that was, as was mentioned by
one of the nurses earlier, scary high, truly scary high, 260/140 over 120
rather, associated with that pain. And it’s so classic for aortic dissection.
And then with a chest x[-]ray that proves that it’s there, that’s the
second thing. 	That’s all that was needed to make this diagnosis.
Medicine is nothing but a balancing of possibilities. 	It’s not really
science. 	Some of us like to think it’s science. 	But it’s not. 	It’s just
balancing possibilities. What is the likelihood that something is going
on.
Because of the type of pain he had and because of his chest x[-]
ray, the likelihood that he had an aortic dissection was far and away
evident. And his blood pressure, which of course is obvious, was easily
treatable with medications that are in the [Hospital] ER.
. . . .
Q: 	All right. I will ask the simple question first. But was it negligent
for Dr. Collins not to have read the chest x[-]ray?
A: 	Yes. Yes.
Q: 	Okay. How far out of normal, out of what’s recognized practice,
out of what’s acceptable practice, is it to have an x[-]ray in this type of
a situation where someone has chest pain, okay, chest pain that goes into
their back, they have blood pressures in the ranges that are up there, and
have an x[-]ray that’s not read?
A: 	I’ve never heard of it. I’ve never seen it, never heard of it, never

13
been associated with it. It’s basic. It’s blocking and tackling. The chest
x[-]ray was ordered prompted by the chest pain protocol at [the
Hospital]. 	And that was appropriate. 	But to think of ordering that
because it’s so basic—I mean, it goes back to 1890 when we were able
to get chest x[-]ray. This is not new science. This is not rocket science.
To get it and not look at it is beyond description as far as negligence is
concerned. I mean, it’s almost willful. It was sitting right there on his
computer screen.
Q: 	For a patient who has chest pain that radiates to his back, who has
a blood pressure above 210, 220, 230, 260, you know, up in that number,
280, okay, do you have an opinion about whether or not failing to look
at that chest x[-]ray if you know a chest x[-]ray has been taken if that’s
in conscious disregard of that patient’s safety?
. . . .
A: 	Well, conscious disregard. Let me put it this way: To me, that
may be a legal term. But here is what I would say, what I’m going to say
about that, is that indeed one would have to conscious—well, one would
have to consciously disregard. One would have to ignore the fact that a
chest x[-]ray was ordered and done. One would have to actively not look
at it. It’s just unimaginable. I’m not overemphasizing this.
Q: 	Would it be in disregard of the importance of the chest x[-]ray?
It is not just a chest x[-]ray, this is a critical chest x[-]ray, is it not?
A: 	It’s a critical chest x[-]ray. 	It would be in disregard of the
patient’s safety. It would be in disregard of the most basic teachings that
any third-year medical student knows. You order a test. You look at it.
That’s why you order it. You order it for a reason. And because it gives
you information.
And once you have that information, then you can act on it. You
can figure out what’s going on. And then hopefully you can treat it. In
this situation, it’s my strong opinion that the chest x[-]ray shows the
aneurysm, the dissection. And it’s a treatable condition.

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Q: 	Is it in conscious disregard of a patient’s safety? 	Was it in
conscious disregard of Walter Grassie’s safety that people—
. . . .
Q: 	—for the people at [the Hospital], this is the emergency room
people, to not treat his blood pressure from the time he came in at 1632
until 1743 a whole hour later?
. . . .
A: 	One would have to ignore that blood pressure in order not to treat
it. One would have to essentially act as if it weren’t present. And in my
opinion, that’s what happened.
This blood pressure, which was scary high from the very
beginning and lasted all the way up until he had his cardiac arrest at
1757, was high enough to scream for treatment even without the chest
pain. 	Even without the chest x[-]ray. 	And so one would have to
purposefully not treat this in order for it to go on for an hour.
Q: 	Is it medically negligent in your opinion? 	Was it medically
negligent for the nurses at [the Hospital] not to bring to Dr. Collins’s
attention the fact that there was an x[-]ray there that hadn’t been read?
A: 	Yes. 	Yes. 	The concept that was discussed this morning about
teamwork is true in the emergency room. And part of the F grade that
I’m giving to the activity in this case is the failure to communicate.
In order to have teamwork—therefore a failure of teamwork. In
order to have teamwork, we, in the ER have to communicate. The nurse
has to be able to tell the doctor, “A family member said that the blood
pressure was 280, or that [the] blood pressure is now 230/110, the chest
x[-]ray has been done.” All of these things are how we function in the
emergency room.
Q: 	Okay. You can’t overlook things; is that right?

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A: 	You can’t overlook things. And you can’t do it all yourself. You
have to do it this way in the emergency room. That’s why it’s such a
neat way to practice medicine. Is you rely on each other. And that was
completely absent in this case.
C. 	Analysis
{28} 	As noted above, the Hospital does not appeal the award of compensatory
damages based on medical negligence. 	In addition, the Hospital insists it is not
asserting a substantial evidence challenge to the punitive damages award. Our only
task is to determine whether the punitive damages award can stand as a matter of law.
We are persuaded that on this record it can.
{29} 	The Hospital advances four arguments: 	(1) Clay v. Ferrellgas has not been
recognized as a viable theory of liability for punitive damages, (2) UJI 13-1827
NMRA should not have been modified and the jury instruction given did not
accurately reflect Clay’s rationale, (3) the punitive damages award fails as a matter of
law because the jury found no proximate cause as to the nurses’ conduct, and (4) the
award is excessive and contrary to due process. We address each in turn.
1. 	The Viability of Clay v. Ferrellgas.
{30} 	The Hospital makes the narrow and technical argument that Clay’s “cumulative
conduct” theory has not been accepted in New Mexico because it has not been
incorporated into the punitive damages uniform jury instructions. 	The cumulative
conduct theory provides that an award of punitive damages against a corporation may

16
be based on “the actions of the employees [viewed] in the aggregate [in order] to
determine whether [the employer corporation] had the requisite culpable mental state
because of the cumulative conduct of the employees.” Id. at 270, 881 P.2d at 15. The
Hospital 	notes 	that 	UJI 	13-1827 	has 	been 	amended 	twice 	since 	Clay 	was
decided—substantially in 1998 and slightly in 2008—and yet the instruction does not
reflect a “cumulative conduct” method of proof against employers. 	The Hospital
deduces from this happenstance that “Direct Liability” and “Vicarious Liability,” as
described in UJI 13-1827, are the only routes available to impose punitive damages
on an employer.
{31} 	We reject the Hospital’s premise. Just because a theory of recovery has not
been incorporated into a uniform instruction does not mean that the theory, which was
previously recognized by our Supreme Court and is binding on this Court, is suddenly
invalid. The UJI itself recognizes this. UJI 1-051(F) NMRA (recognizing that courts
may instruct on a subject, even in the absence of an applicable uniform instruction);
see Payne v. Hall, 2006-NMSC-029, ¶ 37, 39 n.5, 139 N.M. 659, 137 P.3d 599
(noting that “there were no [u]niform [j]ury [i]nstructions on successive tortfeasor
theory” and proposing language for review and adoption by the UJI-Civil committee).
{32} 	Further, Clay has not been overruled or even criticized. 	It was cited with
approval in Chavarria v. Fleetwood Retail Corp., 2006-NMSC-046, ¶ 21, 140 N.M.

17
478, 143 P.3d 717, as a way in which a “corporation may be held liable for punitive
damages for the misconduct of its employees.” We understand full well that the Clay
approach was not applied in Chavarria, but we doubt the Supreme Court would
include a defunct theory of liability in a general statement of available approaches.
More to the point, Clay has been applied in two cases. In Coates v. Wal-Mart Stores,
Inc., 1999-NMSC-013, ¶¶ 47-48, 127 N.M. 47, 976 P.2d 999, the Court relied on
Clay’s cumulative conduct theory to analyze whether the record included substantial
evidence “to support the jury’s verdict of intentional infliction of emotional distress
and to warrant punitive future damage awards.” 	Similarly, in Atler v. Murphy
Enterprises, Inc., 2005-NMCA-006, ¶¶ 16-22, 136 N.M. 701, 104 P.3d 1092 (filed
2004), this Court relied on Clay to support and explain our review of the record and
our affirmance of a punitive damages award against corporate defendants. Clay is a
healthy part of New Mexico’s tort law.
2. 	The Jury Instruction.
{33} 	The jury was given the following instruction concerning punitive damages:
In this case, Phillip Grassie seeks to recover punitive damages
from [Hospital]. You may consider punitive damages only if you find
that Phillip Grassie should recover compensatory damages.
If you find that the conduct of Rich Robinson, the CEO of
[Hospital], was willful, reckless, or wanton, then you may award
punitive damages against it.

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If you find that the combined acts or omissions of Pamela Hayes
Rodriguez, and/or Brian Miller, as employees, and [Dr.] Collins, as the
apparent agent, of [Hospital] amounted to willful, reckless, or wanton
conduct, you may award punitive damages against [Hospital].
Willful conduct is the intentional doing of an act with knowledge
that harm may result.
Reckless conduct is the intentional doing of an act with utter
indifference to the consequences.
Wanton conduct is the doing of an act with utter indifference to or
conscious disregard for a person’s safety.
{34} 	The Hospital makes two arguments with regard to the instruction. 	First, it
argues that the district court erred as a matter of law in revising UJI 13-1827 to
exclude its language describing vicarious liability. The Hospital’s basic theory was
and is that Clay’s “cumulative conduct” approach cannot be used to negate the need
for proof of managerial capacity or ratification in order to impose punitive damages
on employees. 	As we demonstrate above, Clay allows another way to establish
employer liability. As such, the Hospital’s first argument fails.
{35} 	Second, the Hospital argues that the instruction given does not accurately reflect
the Clay rationale. 	The Hospital now argues that the instruction is wrong because
under Clay the “question is not whether the nurses or Dr. Collins engaged in ‘willful,
reckless, or wanton conduct,’ but rather, whether their cumulative actions or inactions
indicated that . . . Hospital had a culpable mental state.”

19
{36} 	We decline to address this argument because the Hospital failed to preserve it
below. We have reviewed the record of all the discussions between counsel and the
district court concerning the punitive damages instruction and we find no argument
by the Hospital that the instruction given did not accurately reflect the Clay theory.
In context, the Hospital’s final objection that the instruction “misstates the law”
clearly refers to the general argument that the vicarious liability grounds were being
omitted. 	And even as to that ground, the objection by itself would have been
insufficient. Budagher v. Amrep Corp., 97 N.M. 116, 119, 637 P.2d 547, 550 (1981)
(noting that “mere assertion that the given instruction is not an accurate statement of
the law is insufficient to alert the mind of the trial judge to the claimed vice of the
instruction”).
{37} 	Nothing the Hospital argued below can fairly be said to have alerted the district
court’s mind to the argument made on appeal. 	This failure to alert the district
court—and opposing counsel—to the objection now being made implicates the core
rationale of our preservation rules. 	As we noted in Hinger v. Parker & Parsley
Petroleum Co., 120 N.M. 430, 440, 902 P.2d 1033, 1043 (Ct. App. 1995):
Fairness underlies the rule of preservation of error. Each party to
a lawsuit has only one opportunity to present its case and challenge the
case of its opponent; that occurs at trial, and not for the first time on
appeal. 	Objections to a theory of recovery and the sufficiency of the
factual allegations underlying it must be brought to the [district] court's
attention. Moreover, the objection on appeal cannot change from that

1This is true even in its motion for a new trial.
20
argued to the [district] court. This is particularly true for challenges to
jury instructions.
(citations omitted). 	The Hospital’s objections below 1 were based only on the
applicability of Clay to the case and not the description of the Clay approach in the
instruction given. As such, the instruction is the law of the case and is not vulnerable
to attack on this new ground. 	Montgomery Ward v. Larragoite, 81 N.M. 383, 386,
467 P.2d 399, 402 (1970); see Atler, 2005-NMCA-006, ¶¶ 6-11.
3. 	The Effect of the Jury Finding of no Proximate Cause as to the Nurses.
{38} 	In response to questions on the special verdict form, the jury found that the
nurses were negligent but also determined that their negligence was not a proximate
cause of Mr. Grassie’s death. The Hospital argues that as a result of the jury’s finding,
the Clay concept of cumulative conduct simply cannot apply because there is only one
tortfeasor, Dr. Collins. 	To apply Clay in this circumstance, the Hospital asserts,
would result in imposing punitive damages on it for the acts of one employee without
any finding of managerial capacity for the doctor or a finding of ratification. The
underlying assumption of this argument is that the nurses’ conduct was not considered
by the jury and cannot be taken into account on appeal in evaluating the Hospital’s
state of mind and the award of punitive damages against it.
{39} 	The Hospital misinterprets Clay. Clay did not alter New Mexico’s general rule

21
that punitive damages are not imposed on an employer for the acts of an employee as
a matter of simple respondeat superior. 	Gillingham v. Reliable Chevrolet, 1998-
NMCA-143, ¶ 20, 126 N.M. 30, 966 P.2d 197, overruled on other grounds by
Fernandez v. Espanola Pub. Sch. Dist., 2005-NMSC-026, 138 N.M. 283, 119 P.3d
163. Rather, there must be proof in some form of the employer’s own culpable state
of mind and conduct. 	Id. 	Prior to Clay, imposition of punitive damages on an
employer—particularly a corporation—required either (1) proof that the employee-
tortfeasor possessed and was exercising managerial capacity, Albuquerque Concrete
Coring Co. v. Pan Am World Services., Inc., 118 N.M. 140, 145-46, 879 P.2d 772,
777-78 (1994); or (2) the employer through other managerial employees ratified,
accepted, or acquiesced in the conduct of the tortfeasor. Chavarria, 2006-NMSC-046,
¶¶ 30-33.
{40} 	Clay provided an alternative method of proving a culpable mental state on the
part of the employer. In Clay, the plaintiffs were injured when propane fumes from
an improperly installed propane tank infiltrated the passenger compartment of a car
and ignited. The testimony revealed that one employee, Candelaria, performed the
improper installation work while the other employee, Schell, released the car without
verifying the actual status of the installation work. 	Neither employee warned the
plaintiffs concerning the dangers potentially posed by the incomplete installation. In

22
addition, there was testimony that this second employee routinely failed to file a State-
required form with the State inspector’s office. The form was required in order to
allow the inspector an opportunity to double check the installer’s work.
{41} 	Clay was submitted to a jury on four alternate theories of liability: two based
on the improper installation and two based on Ferrellgas’s employees’ failure to warn
of the hazards caused by the improper installation. Both Candelaria and Schell were
named in the jury instructions, though only Candelaria was actually joined as a party
defendant. The jury awarded compensatory and punitive damages, and judgment on
the verdict was entered against Ferrellgas and Candelaria jointly and severally.
{42} 	On appeal, this Court reversed the punitive damages award. Clay v. Ferrellgas,
Inc., 114 N.M. 333, 338-39, 838 P.2d 487, 492-93, rev’d by Clay, 118 N.M. at 272,
881 P.2d at 17. 	The Court of Appeals approach was to analyze the acts of each
employee separately. In addition, this Court refused to infer any knowledge by the
employees of each others’ acts or failures to act. Finally, this Court’s opinion held
that the evidence as to the failure to file the State-required form could not be relied on
to support the punitive damages award because the jury had not been instructed on the
failure as a theory of liability. Id.
{43} 	The Supreme Court reversed the Court of Appeals, disagreeing with the manner

2That portion of Clay dealing with the concept that as the risk of danger
increases, the duty of care also increases is not applicable here.
23
in which the trial evidence had been reviewed and marshaled.2 The Supreme Court
noted: 	“The Court of Appeals incorrectly compartmentalized the conduct of the
Ferrellgas employees. 	It should have viewed the actions of the employees in the
aggregate to determine whether Ferrellgas had the requisite culpable mental state
because of the cumulative conduct of the employees.” 118 N.M. at 270, 881 P.2d at
15.
{44} 	The Supreme Court explained the anomalous effect of viewing the employees’
conduct in isolation as follows:
The Court of Appeals exonerated Ferrellgas from paying punitive
damages because neither Candelaria nor Schell knew what the other was
doing. If we follow this analysis, Ferrellgas escapes liability because its
employees failed to communicate with each other. The culpable mental
state of the corporation, however, may be inferred from the very fact that
one employee could be ignorant of the acts or omissions of other
employees with potentially disastrous consequences.
Id. at 271, 881 P.2d at 16 (citation omitted).
{45} 	The question raised by the Hospital’s argument is: What evidence is properly
available to be aggregated by the jury—and thus by this Court—to determine the
presence of a culpable mental state? The answer is provided by the Supreme Court’s
ruling in Clay with regard to the evidence about the failure to file the State-required
forms. The Court held that this evidence could be used to assess corporate mental

24
state even though it had not been presented as a theory of liability. Id. at 272 n.4, 881
P.2d at 17 n.4. 	The jury is not precluded from considering such background or
contextual evidence in its deliberations. 	Such background or contextual evidence
need not be about acts which are a proximate cause of the plaintiff’s damages. And
the background evidence need not constitute a completed tort.
{46} 	Here the jury found that the nurses’ conduct did not constitute a completed tort.
But under Clay, that does not mean that the evidence about what they did and failed
to do cannot be taken into account in assessing the Hospital’s mental state. Once the
medical negligence claim was established, the full panoply of admitted evidence was
available to assess the separate issue of the Hospital’s responsibility as an entity. Id.
{47} 	Again, the Hospital does not argue that the full record is insufficient to merit
a punitive damages award. 	Similarly, we are confident in concluding that there is
substantial evidence supporting a punitive damages award based on medical
negligence. 	A reasonable jury could conclude that the record paints a scenario of
aggravated patient neglect broad enough in its sources to support finding a culpable
mental state on the part of the Hospital.
4. 	The Punitive Damage Award Does Not Violate Due Process.
{48} 	Whether an award of punitive damages is reasonable and comports with
constitutional due process is a question of law which we review de novo. 	Aken v.

25
Plains Elec. Generation & Transmission Coop., Inc., 2002-NMSC-021, ¶ 19, 132
N.M. 402, 49 P.3d 662. As we have noted, however, de novo review in this context
is somewhat limited. To date at least, we have not undertaken to “ourselves determine
the actual award of punitive damages.” Jolley v. Energen Res. Corp., 2008-NMCA-
164, ¶ 31, 145 N.M. 350, 198 P.3d 376. In addition, in the course of our review, any
doubts we may have “concerning the question of what appropriate damages may be
in the abstract, or owing to the coldness of the record, should be resolved in favor of
the jury verdict.” Aken, 2002-NMSC-021, ¶ 19.
{49} 	Following BMW of North America, Inc. v. Gore, 517 U.S. 559, 574 (1996), our
review takes three criteria into account: 	“(1) the degree of reprehensibility of the
defendant’s misconduct[,] (2) the disparity between the harm (or potential harm)
suffered by the plaintiff and the punitive damages award[,] and (3) the difference
between the punitive damages awarded by the jury and the civil penalties authorized
or imposed in comparable cases.” 	Aken, 2002-NMSC-021, ¶ 20. 	Of these,
reprehensibility is the “most important indicium of the reasonableness of a punitive
damages award.” Chavarria, 2006-NMSC-046, ¶ 37 (internal quotation marks and
citation omitted).
A. 	Reprehensibility
{50} 	The commonly considered factors used by courts to measure reprehensibility

26
include whether:
the harm caused was physical as opposed to economic; the tortious
conduct evinced an indifference to or a reckless disregard of the health
or safety of others; the target of the conduct had financial vulnerability;
the conduct involved repeated actions or was an isolated incident; and
the harm was the result of intentional malice, trickery, or deceit, or mere
accident.
State Farm Mut. Auto Ins. Co. v. Campell, 538 U.S. 408, 409. 	The inquiry is
concerned with the social odium which should be attached to the defendant’s conduct.
The applicability of the factors is obviously fact and case dependent. 	See Jolley,
2008-NMCA-164, ¶¶ 32-34 (finding three factors applicable where the defendant had
failed to barricade a natural gas wellhead for an extended time, resulting in the
plaintiff’s decedent hitting it and dying from the resulting explosion); Bogle v. Summit
Inv. Co., 2005-NMCA-024, ¶ 34, 137 N.M. 80, 107 P.3d 520 (finding punitive
damages award appropriate when the defendant acted with “intentional malice” in
depriving another realtor of its commission); Atler, 2005-NMCA-006, ¶ 24 (approving
punitive damages award for the defendant’s failure to meet its contractual obligation
to inspect carnival rides daily).
{51} 	The Hospital makes two arguments with regard to the issue. It halfheartedly
asserts that the historical facts describing the events in the emergency room which
culminated in Mr. Grassie’s death are not serious enough to warrant exemplary
damages. The Hospital also argues that the award here is based on injuries or wrongs

27
assertedly inflicted on nonparties and is thus contrary to Phillip Morris USA v.
Williams, 549 U.S. 346 (2007). We address each in turn.
{52} 	We characterize the Hospital’s first argument as halfhearted for two reasons.
First, the Hospital wholly fails to address the evidence. If the Hospital were making
a pure substantial evidence argument we would reject it out of hand for its clear failure
to comply with Rule 12-213(A)(4) NMRA. Out of an abundance of caution, giving
some credence to the Hospital’s assertion that the argument is one of law, we reject
the argument as such. The Hospital asserts that whatever the facts are, they do not fit
or meet three of the State Farm Mut. Auto Ins. Co. factors. 	The Hospital fails to
acknowledge or discuss the application of the most obvious factor: 	whether the
tortious conduct evinced an indifference to or reckless disregard of the health of
others. We have already noted our view that a reasonable jury could view the events
of August 19, 2005, as an aggravated instance of patient neglect. We agree with that
assessment. The facts are sufficient to support an award of punitive damages.
{53} 	The Hospital’s second argument based on Phillip Morris fails on factual and
legal grounds. Broadly speaking, Phillip Morris prohibits punishing a defendant for
injury it may have inflicted on nonparties to an action. 	The Hospital argues that
Plaintiff’s “indiscriminate attack on Chaves Emergency Group” (Dr. Collins’
employer), and the reference to the Hospital’s parent corporation during closing

28
argument, show that the punitive damages award here was based on injuries inflicted
on others. On their record, we simply disagree. The murky testimony concerning the
status of Dr. Collins’ employer was relevant to the issues surrounding his hiring and
his status as an apparent agent or employee of the Hospital. In any event, there was
no testimony that Chaves Emergency Group itself committed any torts against or
harmed anyone else. We fail to see how this testimony contributed to the punitive
damages award or runs afoul of Phillip Morris.
{54} 	Similarly, we fail to see how remarks made during closing argument about the
Hospital’s parent corporation run afoul of Phillip Morris. 	The vast majority of
Plaintiff’s 60-page closing argument dealt with the events of the day. The rhetorical
flourish the Hospital relies on does not include any reference to injuries done to
others. 	It does remind the jury of the larger corporate context it is dealing with in
setting the amount of any award it might choose to make. That larger context would
be relevant to consideration of the deterrent effect an award might have. 	Further,
concerns about the public safety aspects of a defendant’s conduct have not been
precluded by Phillip Morris, 549 U.S. at 350 (noting there is no constitutional
violation in using punitive damages to punish and deter conduct). See Grefer v. Alpha
Technical, 2002-CA-1237, 	p. 7 (La. App. 4 Cir. 8/8/07); 965 So. 2d 511, 517
(holding that jury instruction allowing punitive damages “to compel the defendant to

29
have ‘proper regard for the rights of the public’” was proper under Phillip Morris).
{55} 	Finally, we must assume that the jury properly followed its instruction. Our UJI
13-1827 specifically warns the jury that any amount it awards “must be reasonably
related 	to 	the 	injury 	and 	to 	any 	damages 	given 	as 	compensation 	and 	not
disproportionate to the circumstances.”
B. 	Proportionality of the Award
{56} 	The second criterion under BMW of North America, Inc. considers the
relationship between the damage actually suffered by the plaintiff and the size of the
punitive damages award. Aken, 2002-NMSC-021, ¶ 23. The compensatory award
and the punitive damages award must bear a rational relationship to each. The United
States Supreme Court has refused to date to impose a bright line ratio that a punitive
damages award cannot exceed. State Farm Mut. Auto. Ins. Co., 538 U.S. at 425. It
has noted, however that “[s]ingle-digit multipliers are more likely to comport with due
process” while acknowledging that single-digit multipliers might not be appropriate
in egregious cases. 	Id. at 410. Whether an award of punitive damages is “grossly
excessive” in comparison to the damages suffered by the plaintiff is—within these
imprecise boundaries—dependent on the circumstances of each case. Id. at 409.
{57} 	In this case, the ratio is just slightly greater than 10 to 1; the compensatory
award tied to medical negligence is $993,465 and the punitive damages award is

30
$10,000,000. 	This award is thus on the outer edge of the range that could be
considered perhaps presumptively acceptable. 	But it is not so large as to raise
concerns of constitutional dimension. The testimony detailing the medical negligence
that resulted in Mr. Grassie’s painful death is a compelling narrative. 	The New
Mexico Supreme Court affirmed a ratio of 7.4 to 1 in an insurance bad faith context
involving improper premiums charges. Allsup’s Convenience Stores, Inc. v. N. River
Ins. Co., 1999-NMSC-006, ¶ 49, 127 N.M. 1, 976 P.2d 1. This Court approved a 6.76
to 1 ratio in a wrongful death case. 	Jolly, 2008-NMCA-164, ¶ 38. 	We see no
constitutional defect created by the slightly higher ratio found in this case.
C. 	Comparable Penalties
{58} 	The third criterion under 	BMW of North America, Inc. 	requires us to
“[c]ompar[e] the punitive damages award and the civil or criminal penalties that could
be imposed for comparable misconduct.” 	Aken, 2002-NMSC-021, ¶ 25 (first
alteration in original) (internal quotation marks and citation omitted). New Mexico
has noted that this criteria “has been criticized as ineffective and very difficult to
employ.” 	Id. 	First, there is the problem of identifying “substantial legislative
judgments concerning appropriate sanctions for the conduct at issue.” 	Id. (internal
quotation marks and citation omitted). 	Second, there is the danger that a civil
penalty—even for comparable conduct—may be too low to have a reasonable

31
deterrent effect. Id. As a result, New Mexico and other courts have not applied this
factor vigorously. Id. ¶ 26; Buell-Wilson v. Ford Motor Co., 73 Cal. Rptr. 3d 277, 321
(Cal. Ct. App. 2008), review granted and superseded by 80 Cal. Rptr. 3d 27 (2008);
cert. denied, 130 S. Ct. 742 (2009).
{59} 	The Hospital argues that the legislative sanctions for violations of the
Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. §
1395dd (2003), which mandates that hospitals give appropriate medical screenings
and that hospitals stabilize patients before discharge or transfer, provides the best
guidance for the appropriate measure of punitive damages. EMTALA provides for
a civil penalty up to $50,000 for violations. 42 U.S.C. § 1395dd(d)(1)(A).
{60} 	We disagree. 	EMTALA was designed as a means to encourage equitable
screening for emergency medical conditions and to discourage “patient-dumping” by
hospitals—the practice in which hospitals inappropriately move usually uninsured
patients to other facilities. Ward v. Presbyterian Healthcare Servs., 72 F. Supp. 2d
1285, 1291 (D.N.M. 1999); Godwin v. Mem’l Med. Ctr., 2001-NMCA-033, ¶ 81, 130
N.M. 434, 25 P.3d 273. 	It was not designed or intended to address potential tort
liability of any kind to admitted patients who suffer injuries as a result of medical
negligence. 	The “appropriate medical screening” required by EMTALA is not
evaluated in terms of its medical efficacy, but rather whether it is performed equitably

32
as compared with other patients. See Scott v. Dauterive Hosp. Corp., 02-1364, p. 19
(La. App. 3 Cir. 4/23/03); 851 So. 2d 1152, 1166 (internal quotation marks and
citation omitted).
{61} 	In addition, the penalty provided by EMTALA is simply too low to serve as a
deterrent. 	It is obvious that adding a five percent “penalty” on top of the
compensatory award in this case would have a de minimis effect. It would not even
be as much as the yearly interest accruing on the compensatory award during this
appeal. As such, it is not helpful to the analysis or resolution of the case.
II. 	NEGLIGENT HIRING
{62} 	The “theory-of-the-case” instruction given to the jury included the assertion that
the Hospital “was negligent in allowing [Dr.] Collins to work in its emergency room.”
Characterizing the claim as a matter of negligent credentialing, the Hospital’s primary
argument here is that the claim should not have been submitted to the jury at all
because Plaintiff failed to present any expert evidence concerning the standard of care
applicable to the Hospital’s decision-making process. 	Plaintiff argues that expert
testimony was not needed because the claim was for ordinary negligence, not
negligent credentialing. We conclude that in the context of this case, expert testimony
was required to guide the jury concerning the applicable standard of care and its
breach. Given that Plaintiff did not submit such evidence, the claim should not have

33
been submitted to the jury and we reverse the compensatory and punitive awards
incident to the negligent hiring claim.
A. 	Facts and Proceedings
{63} 	Count IV of the first amended complaint is entitled “Negligent Hiring and
Negligent Management of the Emergency Room Department.” 	Among other
allegations, the first amended complaint asserted that Dr. Collins “was not qualified
to work in an emergency room and, had [the Hospital] made any inquiry on its own,
it would have known that.” At trial, Plaintiffs honed the argument to two basic points:
1. 	Rich Robinson, as chief executive officer of the Hospital, was
negligent when he accepted Dr. Collins to work in the Hospital
emergency room even though (a) the contract under which he was
accepted required that doctors providing services “[s]hall be
certified by the AMA/AOA recognized Board in the specialty
indicated or eligible for certification by such Board by virtue of
having successfully completed all educational and residency
requirements required to [sic] it for the Board examinations.”
2. 	Mr. Robinson failed to adequately investigate Dr. Collins’
employment; in particular his early release from his term as an Air
Force doctor and the non-renewal of his privileges at other
hospitals in the past.
{64} 	The contract Plaintiff relies on is the Emergency Services Agreement the
Hospital entered into with Chaves Emergency Group (Chaves) to provide “Emergency
Medical Services” to the Hospital. Broadly speaking, the Agreement describes the
terms under which Chaves would provide doctors to staff the Hospital’s emergency

34
room. Plaintiff focuses on two provisions of the Agreement: Section 1.1.3.1, which
requires that any doctor proposed by Chaves “[m]ust be accepted by the Facility’s
Chief Executive Officer”—Mr. Robinson; and (2) Section 1.1.3.3, substantially
quoted above in paragraph 63. 	Plaintiff’s theory at trial and here is that these
provisions of the Agreement set the standard of care for Mr. Robinson’s action in
allowing Dr. Collins to work in the Hospital’s emergency room.
{65} 	It is undisputed that Dr. Collins was not board certified in emergency medicine
by either the AMA or the AOA. 	He was board certified in family practice by the
AOA. He was also certified in emergency medicine by the American Association of
Physician Specialists in 1995. Mr. Robinson himself did not have any information
about Dr. Collins’ prior work history before he accepted him to work pursuant to the
Agreement with Chaves. Mr. Robinson relied on the recommendation he received
from the Hospital’s medical staff to grant Dr. Collins “Locum Tenens” privileges
starting August 19, 2005. “Locum Tenens” is the term used to describe full, though
temporary, privileges to practice at the Hospital. The decision of the medical staff was
based on a full application from Dr. Collins, including licensing, confirmation of
privileges at other hospitals, and a data bank query used to identify any malpractice
claims—nationwide—against him.
{66} 	At the time he applied for privileges at the Hospital, Dr. Collins had never had

35
a malpractice action filed against him, and he held or had held privileges at hospitals
in Artesia, Carlsbad, Clovis, and Ruidoso. Privileges at these other facilities had been
granted to him using the same process used by the Hospital. Dr. Collins has practiced
medicine since 1983, and for the vast majority of the time in emergency rooms.
{67} 	Plaintiff’s counsel questioned Dr. Collins about his history with regard to his
service as a physician with the Air Force and the circumstances which led to his being
asked not to return to work at two hospitals. Dr. Collins described the discharge as
a “mutual situation” brought on by his failure to recognize and follow military
protocol with regard to calling in too many specialists to help in the emergency room.
In 1988 or so, Dr. Collins received an honorable discharge after serving only one year
of a four-year enlistment. Plaintiff did not call any witnesses to counter Dr. Collins’
explanation. With regard to the hospitals, Dr. Collins agreed with Plaintiff’s counsel
that he was asked to leave one hospital in Illinois because of a “problem with doing
an IV stick.” Dr. Collins did not dispute Plaintiff’s counsel’s assertion that he was
also asked to leave a hospital in Missouri because of undefined “trouble with the
nurses.” The record does not reveal a time frame for Dr. Collins’ departure from the
latter facilities nor does it reveal any more detail about the incidents.
B. 	Expert Testimony Was Required In This Case
{68} 	Plaintiff’s core argument on appeal is that expert testimony was not necessary

36
because “[Plaintiff] made no negligent credentialing claim” as defined in UJI 13-
1119B NMRA. Plaintiff characterizes his theory as simple or ordinary negligence
flowing from Mr. Robinson’s failure to enforce the Hospital’s contract with Chaves
to the letter and his failure to adequately delve into Dr. Collins’ work history.
Consistent with this assertion, Plaintiff’s answer brief does not cite to or rely on the
foundational cases in New Mexico recognizing the “theory of hospital liability
generally known as corporate negligence, which arises when the hospital has failed
to take reasonable steps to determine the qualifications or competency of a practitioner
to whom it has granted clinical privileges.” UJI 13-1119B, committee cmt.; Eckhardt
v. Charter Hosp. of Albuquerque, Inc., 1998-NMCA-017, ¶ 41, 124 N.M. 549, 953
P.2d 722 (filed 1997); Diaz v. Feil, 118 N.M. 385, 389-90, 881 P.2d 745, 749-50 (Ct.
App. 1994).
{69} 	Plaintiff emphasizes that the jury instruction given on his claims was based on
UJI 13-1119A NMRA, which deals with a hospital’s duty of ordinary care to its
patients. Plaintiff further notes that the Hospital did not request that UJI 13-1119B
be given to the jury. 	UJI 13-1119B describes the duty hospitals have to “exercise
reasonable diligence in obtaining and acting upon information concerning the
competence of [applicants to] its staff.” 	The Hospital does not dispute it failed to
request that UJI 13-1119B be given. As such, the Hospital did not preserve error as

37
to the giving of UJI 13-1119A, and the instruction is the law of the case. Andrus v.
Gas Co. of N.M., 110 N.M. 593, 597, 798 P.2d 194, 198 (Ct. App. 1990).
{70} 	Contrary to Plaintiff’s argument, however, the fact that UJI 13-1119A was
given does not by itself resolve the question as to what type of evidence is necessary
to prove the claim. In saying this, we are fully aware that the Use Note for UJI 13-
1119A indicates that the “first paragraph” of the instruction—the one given to the
jury—“relates to conduct which can be evaluated by the jury without the aid of expert
testimony.” We, of course, do not disagree that the Use Note accurately reflects the
overall design of the instruction. 	But we are not—and the district court was
not—considering or applying the instruction in a vacuum.
{71} 	Plaintiff’s claim is that the Hospital, through Mr. Robinson, was negligent in
allowing Dr. Collins to work as a doctor in its emergency room. The essence of the
claim involves negligence in granting staff privileges to a doctor. The essence of the
claim must inform the inquiry as to the applicable standard of care and the nature of
the evidence necessary to elucidate the standard of care and its breach. Proof may or
may not require expert testimony depending on the circumstances of a particular case,
but use of UJI 13-1119A to instruct the jury should not by itself foreclose the inquiry.
The instruction does not transform the basic nature of the claim being made. Plaintiff
cannot escape the implications inherent to his claim of negligence in hiring a doctor.

38
{72} 	New Mexico, as noted above, has adopted the concept of direct liability on the
part of hospitals for negligence in granting staff privileges to doctors. Feil, 118 N.M.
at 390, 881 P.2d at 750. Feil generally discussed what would be required to make a
prima facie showing, but did not address the specifics of the type of evidence that
would be required or suffice to prove such a claim. 	Id. 	Eckhardt similarly did not
address the type of evidentiary showing that might be required.
{73} 	The 	Committee 	Commentary 	to 	both 	UJI 	13-1119A 	and 	13-1119B
acknowledges the difficulty. “While there is a single standard of ordinary care . . . the
type of testimony required to establish a breach . . . differs depending on the kind of
conduct that is alleged to constitute a breach. . . . Where the issue is not within the
common knowledge of jurors . . . expert testimony is required.” 	UJI 13-1119A
committee cmt. The Committee Commentary to UJI 13-1119B echoes these concerns
and provides some limited guidance by way of hypothetical examples.
Consistent with the approach taken in UJI 13-1119A, the [district] court
should determine the need for expert testimony based on the kind of
conduct that is alleged to constitute a breach of the duty. For instance,
a case in which the hospital entirely failed to inquire about, or utterly
ignored, the existence of prior malpractice judgments against the
physician presents a situation that could likely be evaluated by a lay jury
under ordinary negligence standards. Cf. Eckhardt, 1998-NMCA-017,
¶ 43. . . . On the other hand, a case in which the hospital relied on the
medical judgments of physicians on its credentials committee, who
recommended granting an application for clinical privileges after

39
reviewing 	materials 	in 	the 	applicant’s 	file, 	might 	require 	expert
testimony on the question whether the committee reasonably should have
known of deficiencies in the applicant’s competency based on the
materials reviewed.
UJI 13-1119B committee cmt.
{74} 	Comparing these hypotheticals to this case leads us to conclude that we are
not—and the jury below was not—dealing with a simple factual scenario that is within
the ken of lay persons. 	The record does not reflect the kind of utter failure to
investigate noted in the commentary. Dr. Collins filed a complete application seeking
privileges, including all the material required by the Hospital’s by-laws. The medical
staff reviewed the application and checked a national database for past malpractice
actions against Dr. Collins. The record does not reveal any malpractice claims against
Dr. Collins prior to this case. 	The application reflected that Dr. Collins held staff
privileges at three other eastern New Mexico hospitals; that he had been practicing
medicine for about twenty years, and he was board certified in family practice by the
AOA and board certified in emergency medicine by the AAPS.
{75} 	After this review, the medical staff recommended to Mr. Robinson that Dr.
Collins be granted staff privileges. Mr. Robinson relied on the recommendation in
making his decision to accept Dr. Collins as a physician at the Hospital.
{76} 	Plaintiff does not acknowledge, much less discuss, any of the facts just
recounted in his answer brief. 	Plaintiff’s approach to the case makes these facts

40
irrelevant. 	Under Plaintiff’s approach, the Agreement with Chaves and Mr.
Robinson’s failure to enforce it overshadows all other facts and considerations. Under
Plaintiff’s theory, the Agreement by itself defines the standard of conduct applicable
to the case, and Mr. Robinson’s failure to enforce it provides all the evidence of
breach necessary to carry his burden of proof.
{77} 	We disagree. First, we doubt that the Agreement by itself can or should be used
to set the definitive standard of conduct against which the Hospital’s action must be
measured. See Titchnell v. United States, 681 F.2d 165, 173 (3rd Cir. 1982) (“Mere
failure to act in accordance with one’s own internal procedures, however, will not
automatically thereby render a health care facility negligent.”); FFE Transp. Servs.,
Inc. v. Fulgham, 154 S.W.3d 84, 92 (Tex. 2004) (noting that self-imposed or internal
policies by themselves do not determine the governing standard of care); Pedroza v.
Bryant, 677 P.2d 166, 170-71 (Wash. 1984) (en banc) (noting that the accreditation
standards of the Joint Commission on Accreditation of Hospitals and the hospitals’
own by-laws could serve as sources of the standard of care applicable to the hiring of
doctors); Sapp v. W. T. Grant Co., 341 P.2d 826, 828 (Cal. Dist. Ct. App. 1959)
(noting that internal operating rules of a railway company would be used as evidence
bearing on the standard of care appropriate for truck crossings); Bryan v. S. Pac. Co.,
286 P.2d 761, 765 (Ariz. 1955) (noting that internal rules have probative value in

41
establishing negligence, but that violation of internal rules would not constitute
negligence per se). 	The Agreement is evidence of a standard the Hospital set for
itself. 	But a failure to follow it may or may not be negligent when viewed in the
context of the entire screening process actually undertaken.
{78} 	Second, consistent with the general concerns evident in all negligent hiring
cases, Feil clearly contemplated review and consideration of the entire procedure used
by hospitals to screen physicians. The basic inquiry in all negligent hiring cases is
whether the employer knew or should have known of circumstances in the employee’s
background which create an unreasonable risk of injury to the persons with whom the
employee could be reasonably expected to interact. 	Spencer v. Health Force, Inc.,
2005-NMSC-002, ¶ 10, 137 N.M. 64, 107 P.3d 504. Lack of board certification in
emergency medicine would likely be relevant in a case involving an emergency room
physician, but it could not properly be the sole inquiry if there is broader testimony
about a doctor’s experience and background which a hospital reviewed in evaluating
a prospective physician for privileges. 	Applying Plaintiff’s position literally here
would lead to the anomalous result that the Hospital would have been negligent and
liable if it had hired one of Plaintiff’s own expert witnesses. {79} 	Third, we fail
to see how a lay person could have the special knowledge necessary to evaluate the
weight and effect of Mr. Robinson’s acceptance of Dr. Collins (even though he was

42
not AMA or AOA board certified in emergency medicine) in view of all of the
evidence noted above. We conclude that expert testimony was necessary to explain
the credentialing process to jurors and establish the standard of care to be applied. In
this case, that explanation would perforce address the Agreement with Chaves, placing
it in the context of the entire range of evidence detailing what the Hospital and Mr.
Robinson did know, and should have known, before offering Dr. Collins staff
privileges. Without expert guidance, a lay person could not knowledgeably decide if
Mr. Robinson’s decision was negligent or not.
{80} 	Comparing our analysis to similar cases from other jurisdictions, we find we
are in the mainstream. 	A recent American Law Report Annotation on the subject
observed that “[a]ll courts that have looked at the question have concluded that expert
testimony is necessary to establish the standard of care owed by a hospital, or whether
the hospital has been negligent.” 	Benjamin J. Vernia, Annotation, Tort Claim for
Negligent Credentialing of Physicians, 98 ALR 5th 533, 553 (2002). 	Our own
canvass of the law confirms the assertion. Without attempting to be encyclopedic, the
following cases are a representative sample. Welsh v. Bulger, 698 A.2d 581, 585 (Pa.
1997) (holding that, “unless a hospital’s negligence is obvious, a plaintiff must
produce expert testimony to establish that the hospital deviated from an accepted
standard of care and that the deviation was a substantial factor in causing the harm to

43
the plaintiff”); Johnson v. Misericordia Cmty. Hosp., 301 N.W.2d 156, 172 (Wis.
1981) (holding that “since the procedures ordinarily employed by hospitals in
evaluating applications for staff privileges are not within the realm of the ordinary
experience of mankind, we agree . . . that expert testimony was required to prove the
same”); Frigo v. Silver Cross Hosp. & Med. Ctr., 876 N.E.2d 697, 724 (Ill. App. Ct.
2007) (holding that expert testimony is required to prove the applicable standard of
care concerning granting staff privileges and whether the standard was violated); Neff
v. Johnson Mem. Hosp., 889 A.2d 921, 928 (Conn. App. Ct. 2006) (holding that the
“parameters of a hospital’s judgment in credentialing its medical staff is not within the
grasp of ordinary jurors. To the contrary, a hospital’s decision whether to grant staff
privileges to a physician is a specialized activity, executed by senior members of the
hospital’s staff, such as the chief executive officer and the department chief”); Mills
v. Angel, 995 S.W.2d 262, 275 (Tex. App. 1995) (holding that “[e]xpert testimony is
required to establish liability in the area of credentialing, because the procedures
ordinarily used by a hospital in evaluating applications for staff privileges are not
within the realm of the ordinary experience of jurors”); Jordan v. Long Beach Cmty.
Hosp., 248 Cal. Rptr. 651, 664 (Cal. Ct. App. 1988) (withdrawn from publication)
(holding that “[w]here, as here, the question turns on where and whether the physician
received a proper medical education, or his success rate on certain tests, expert

44
testimony is required to assist the jury in making its determination as to the medical
matters involved”).
{81} 	Because Plaintiff did not present expert testimony to establish the standard of
care under the circumstances of this case, we reverse the compensatory damages
award based on the claim of negligent hiring. Without the compensatory award, there
can be no award of punitive damages, and we therefore reverse the punitive damages
award based on this claim as well.
III. 	THE UNFAIR PRACTICES CLAIM
{82} 	The jury found that the Hospital willfully engaged in unfair or deceptive trade
practices and awarded $9,501.65 in damages. The claim was based on New Mexico’s
Unfair Practices Act. 	Sections 57-12-1 to -26. 	“Generally speaking, the UPA is
designed to provide a remedy against misleading identification and false or deceptive
advertising.” Lohman v. Daimler-Chrysler Corp., 2007-NMCA-100, ¶ 22, 142 N.M.
437, 166 P.3d 1091. In addition, “[t]he UPA . . . imposes a duty to disclose material
facts reasonably necessary to prevent any statements from being misleading.” Id. ¶ 40
(second alteration in original) (internal quotation marks and citation omitted).
{83} 	The Hospital argues that the UPA claim should not have been submitted to the
jury at all. 	This presents a question of law which we review de novo. 	McNeill v.
Burlington Res. Oil & Gas Co., 2008-NMSC-022, ¶ 36, 143 N.M. 740, 182 P.3d 121

45
(we review de novo the district court’s decision on a motion for a directed verdict);
Sunwest Bank v. Garrett, 113 N.M. 112, 115, 823 P.2d 912, 915 (1992) (“A directed
verdict is appropriate only when there are no true issues of fact to be presented to a
jury.”).
{84} 	The Hospital makes two separate arguments: 	(1) an assertion—likely
mislabeled—that the practice of medicine and the operation of hospitals are exempt
from the UPA, and (2) that the advertising relied upon by Plaintiff was mere puffery
and thus not actionable as a matter of law. We decline to address the second because
it was not preserved. Woolwine v. Furr’s Inc., 106 N.M. 492, 496, 745 P.2d 717, 721
(Ct. App. 1987). The Hospital’s argument below was that the materials Plaintiff relied
on were too vague to be unlawful. Vagueness is distinct enough from the concept of
puffery to require an argument based on its particular features. Verizon Directories
Corp. v. Yellow Book USA, Inc., 309 F. Supp. 2d 401, 405 (E.D.N.Y. 2004) (mem. &
order) (“Puffery is a somewhat amorphous concept . . . defined alternately as ‘an
exaggeration or overstatement expressed in broad, vague, and commendatory
language’ . . . and as an ‘exaggerated, blustering, and boasting statement upon which
no reasonable buyer would rely.’” (citation omitted)).
{85} 	The Hospital’s first argument is more nuanced. Contrary to its general claim
of exemption from the UPA, the Hospital concedes that “it is generally recognized

46
that physicians and health care providers are subject to statutes prohibiting unfair trade
practices.” There is a limit to the reach of such statutes over health care and other
professionals. The case law across the country holds that unfair practice statutes only
apply to the entrepreneurial, commercial, or business aspect of a physician’s practice,
including advertising, solicitation of business, and billing practices. Ikuno v. Yip, 912
F.2d 306, 312 (9th Cir. 1990) (applying Washington law that consumer protection law
can be applied to legal and medical professionals “when the actions at issue are
chiefly concerned with ‘entrepreneurial’ aspects of practice”); Darviris v. Petros, 812
N.E.2d 1188, 1193 (Mass. 2004) (holding that violation of informed consent statute
and medical negligence could not form basis for claim under consumer protection
statute); Quimby v. Fine, 724 P.2d 403, 406 (Wash. Ct. App. 1986) (upholding denial
of summary judgment requested by doctor and noting that medical negligence claims
could not form basis of Consumer Protection Act claim, but that claim alleging lack
of informed consent could be asserted under CPA depending on factual showing).
{86} 	Quimby is particularly instructive. The court there held that the claim under the
consumer protection statutes premised on the same facts as the medical negligence
claim could not go forward because it related to the actual competence of the medical
practitioner defendant. 	The Quimby court distinguished the claims under the
consumer protection statutes relating to problems of informed consent by noting that

47
lack of informed consent is not limited to a breach of professional standards. “Instead,
a lack of informed consent claim can be based on dishonest and unfair practices used
to promote the entrepreneurial aspects of a doctor’s practice, such as when the doctor
promotes an operation or service to increase profits and the volume of patients, then
fails to adequately advise the patient of risks or alternative procedures.” 	Id. 	The
inquiry thus hinges on whether the medical negligence and UPA claims are
coterminous or indistinguishable; that is, whether they rely on the same facts and rely
on a judgment as to the “actual competence of the medical practitioner” for resolution.
Id. If they do, a UPA claim is not appropriate. If they do not, a UPA claim may be
viable, depending of course on the facts.
{87} 	We review the district court’s denial of a directed verdict by resolving conflicts
in the evidence and including all reasonable interpretations of the evidence in favor
of the party resisting the directed verdict. Sunwest Bank, 113 N.M. at 115, 823 P.2d
at 915. 	Plaintiff’s presentation focused on the Hospital’s billboard and internet
advertising, in particular its description of “[o]ur team of trained physicians, nurses
and technicians” and the Hospital’s “ER+ goal” to provide 24-hours-a-day, seven-
days-a-week access to “qualified physicians.” Plaintiff argued that the impression left
by these materials was that the Hospital was in charge of its emergency room.
Plaintiff then contrasted that impression with the testimony from Dr. Collins that even

48
though he was an independent contractor, no one could direct how he dealt with
patients as to his treatment or clinical judgment. This testimony raises a sufficient
question of fact about whether the Hospital’s representations were misleading and
whether it had an obligation to disclose facts—such as the status of the ER
doctors—in order to allay the potential for misunderstanding. 	Resolution of the
question whether the advertising materials were materially misleading does not rely
on the actions of the medical personnel on the day Mr. Grassie died. Thus, the UPA
issues are separate enough from the questions of the actual medical competence of the
doctors and nurses to allow the UPA claims to proceed. 	We find no error in the
district court’s refusal to grant a directed verdict as to the UPA claims.
IV. 	DENIAL OF LEAVE TO FILE A THIRD-PARTY COMPLAINT
{88} 	The Hospital argues that the district court abused its discretion in twice denying
its motion for leave to file a third-party complaint against Chaves. We review such
decisions under an abuse of discretion standard. “An abuse of discretion occurs when
a ruling is clearly contrary to the logical conclusions demanded by the facts and
circumstances of the case.” 	Sims v. Sims, 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930
P.2d 153. To merit reversal of a discretionary ruling—in particular one dealing with
the district court’s management of its own docket—the ruling must be “clearly
untenable or not justified by reason.” State v. Apodaca, 118 N.M. 762, 770, 887 P.2d

49
756, 764 (1994) (internal quotation marks and citation omitted); Kerman v. Swafford,
101 N.M. 241, 245, 680 P.2d 622, 626 (Ct. App. 1984).
{89} 	The Hospital filed its first motion on January 31, 2007, one month after Plaintiff
filed his first amended complaint. The Hospital asserted that it wished “to protect its
rights to indemnification and contribution” from Chaves. The Hospital later expanded
its reasoning to include the potential for inconsistent results in any later separate
litigation between it and Chaves.
{90} 	The matter was not heard by the district court until April 2, 2007. During the
argument it was noted that trial was then set for June 26, 2007. Trial was actually held
in mid-July 2007. 	After a forty-eight minute argument in which counsel for both
parties had a full opportunity to air their positions, the district court ruled as follows:
The Court: 	I’m going to deny the motion. Two bases: One is, at this
stage in this litigation I think the joinder would cause a
substantial delay in these proceedings. 	Second is that I
can’t imagine that the [H]ospital wasn’t clearly aware that
there was the issue of indemnity, the issue of the negligence
of these physicians early on in these proceedings so that if
they wanted to bring the Chaves Group into this suit, they
could have done that in a timely way. Motion be denied.
{91} 	On appeal the Hospital does not reprise any of the arguments made below.
Here, the Hospital asserts that the absence of Chaves in the courtroom allowed
Plaintiff to make assertions and arguments about Chaves which “resulted in a verdict

50
tainted by passion and prejudice.”
{92} 	We discern no abuse of discretion in the district court’s decision. The district
court’s concern about the trial schedule is reasonable. Further, we do not perceive that
Chaves’ absence from the courtroom caused any prejudice of any kind, much less
reversible prejudice. As noted above, the evidence of aggravated medical negligence
was strong. Our own detailed review of the trial assures us that the Hospital was able
to and did respond to all of Plaintiff’s assertions concerning Chaves. If the quality of
the response fell short from the Hospital’s standpoint, it seems likely it was the result
of the Hospital’s own litigation strategy at trial.
V. 	CONCLUSION
{93} 	We affirm the compensatory and punitive damages award flowing from
Plaintiff’s theory of medical negligence. We also affirm the award premised on the
UPA. 	We reverse the compensatory and punitive damages award premised on
Plaintiff’s negligent hiring theory. 	We affirm the district court’s denial of the
Hospital’s motion to join Chaves. Each party will bear their own costs on appeal.
{94} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

CYNTHIA A. FRY, Chief Judge

TIMOTHY L. GARCIA, Judge (Specially concurring).

o1

52
GARCIA, Judge (specially concurring).
{95} 	I write to specially concur in this decision because of the need to amend UJI 13-
1827. 	In addition, the factual circumstances in this case support a review and
clarification of the Supreme Court’s decision in Clay.
{96} 	In this case, 	the punitive damage instruction—instruction 	number twenty-
six—failed to meet one of the specific elements in Clay that required the jury to find
a culpable mental state on the part of the Hospital in order to award punitive damages.
Clay, 118 N.M. at 269, 881 P.2d at 14 (recognizing that “[t]o be liable for punitive
damages, a wrongdoer must have some culpable mental state, . . . and the wrongdoer’s
conduct must rise to a willful, wanton, malicious, reckless, oppressive, or fraudulent
level” (citations omitted)). 	It is undisputed that only one of these elements was
included when UJI 13-1827 was modified and given to the jury. 	I 	agree with the
Hospital’s argument that the proper language from Clay was excluded from punitive
damage instruction number twenty-six. Despite the significance of this mistake, we
have determined that the punitive damage instruction given in this case must stand due
to the Hospital’s failure to properly preserve its argument in the district court. The
Hospital failed to propose proper language for instruction twenty-six and failed to
make any specific argument regarding the accuracy of the proposed Clay instruction
offered by Plaintiff. As a result of our determination regarding the preservation issue,

53
it is important to reemphasize the defect in punitive damage jury instruction number
twenty-six and seek guidance for our district courts. 	UJI 13-1827 has not been
amended to address the cumulative conduct theory recognized in Clay for over
seventeen years. It appears that an appropriate amendment to UJI 13-1827 is needed
to avoid a reoccurrence of the jury instruction problem that arose in this case.
{97} 	In addition, this case highlights a potential flaw in the application of the
cumulative conduct theory where all but one of the alleged employee-tortfeasors was
exonerated from liability for Plaintiff’s injuries. 	In this case, the jury specifically
found that the nurses’ actions were not a cause of Mr. Grassie’s injuries or death. As
a result of this finding, Dr. Collins was determined to be the only alleged employee-
tortfeasor who caused Mr. Grassie’s injuries and death. 	Therefore, Plaintiff’s
recovery of compensatory damages was limited to the actions of Dr. Collins. 	See
Lewis v. Samson, 2001-NMSC-035, ¶¶ 34-35, 131 N.M. 317, 35 P.3d 972 (explaining
that in order to recover, a plaintiff still must establish that the second tortfeasor’s
negligence 	proximately 	caused 	some 	harm, 	even 	where 	damages 	are 	not
apportionable). The significance of this jury finding in favor of the nurses is critical
in this case because Plaintiff chose to abandon its claim of punitive damages arising
under the theories of direct liability or vicarious liability. These additional theories
of liability were excluded from instruction number twenty-six that was given to the

54
jury. As a result, the actions of just one employee were the only legal basis for the
recovery of actual compensatory damages, but the factual basis for a recovery of
punitive damages was expanded to include the actions of additional employees,
including the nurses, under the cumulative conduct theory.
{98} 	Punitive damages have never been upheld in New Mexico under a cumulative
conduct theory where liability was limited to the actions of a single employee-
tortfeasor. 	See Clay, 118 N.M. at 271-72, 881 P.2d at 16-17 (recognizing that the
cumulative acts and failure of communication between two negligent employees,
Candelaria and Schell, along with the cavalier attitude of their employer were a
sufficient basis to establish the culpable mental state of the employer and impose
punitive damages); see also Chavarria, 2006-NMSC-046, ¶¶ 21-34 (recognizing the
applicability of the cumulative acts theory for the recovery of punitive damages
resulting from the fraudulent actions of two employees, Pike and Lancaster, but
ultimately addressing only the theories of managerial capacity and corporate
ratification). 	In Clay, the Supreme Court also ratified the plaintiffs’ position that
allowed the jury to consider the employer’s failure to file “Form 6” as evidence of a
cavalier attitude toward safety. Clay, 118 N.M. at 272 n.4, 881 P.2d at 17 n.4. As a
result, this additional evidence was used to help establish the employer’s culpable
mental state. Id.

55
{99} 	Based upon footnote 4 in Clay, we now recognize that the jury can properly
consider the exonerated acts of the nurses as part of the Plaintiff’s cumulative conduct
theory for two purposes: (1) to expand the overall employee-tortfeasor actions to be
considered in the punitive damages analysis to include more than just the acts of Dr.
Collins; and (2) to allow the consideration of actions by exonerated employee-
tortfeasors as further evidence of punitive damages and a culpable mental state of their
employer. Although this determination could be considered an expanded application
of Clay, it is also consistent with the broad language used by the Supreme Court when
it adopted the cumulative conduct approach set forth in Horton v. Union Light, Heat
& Power Co., 690 S.W.2d 382 (Ky. 1985). Clay, 118 N.M. at 270-71, 881 P.2d at 15-
16 (concluding that “[t]he culpable mental state of the corporation 	. . . may be
inferred from the very fact that one employee could be ignorant of the acts or
omissions of other employees with potentially disastrous consequences”). 	If the
exonerated actions of the Hospital’s nurses should be ignored for the purposes of
determining punitive damages under the cumulative conduct theory, the Supreme
Court needs to clarify the broad language utilized in Clay. 	See Aguilera v. Palm
Harbor Homes, Inc., 2002-NMSC-029, ¶ 6, 132 N.M. 715, 54 P.3d 993 (explaining
that the Court of Appeals is bound by Supreme Court precedent).
{100} 	Therefore, I specially concur herein and suggest that the Supreme Court address

56
UJI 13-1827 and add the necessary language to directly deal with the cumulative
conduct theory established in Clay. 	In addition, I suggest that the Supreme Court
clarify the application of its Clay decision under the factual circumstance where the
jury limits the causation for a plaintiff’s injuries and compensatory liability to the
actions of a single employee-tortfeasor.
___________________________________
TIMOTHY L. GARCIA, Judge