Salopek v. Friedman
2013 NMCA 087
N.M.2013Background
- Plaintiff suffers familial adenomatous polyposis requiring biannual colonoscopies; a colon perforation occurred during Plaintiff’s 2005 colonoscopy in which Defendant allegedly failed to locate the perforation during the first laparotomy.
- Defendant performed a second surgery with dye to locate the perforation and removed the affected colon portion, creating a colostomy.
- Plaintiff later underwent restorative proctocolectomy and other surgeries due to complications, ending with permanent ileostomy and ongoing disabilities.
- Plaintiff sued for medical malpractice; the jury found negligence and awarded $1,000,000, which the district court reduced to $600,000 under the Act’s cap.
- Defendant challenged duty, damages instruction (eggshell plaintiff), remittitur/new trial, and cross-appeal challenged the constitutionality of the cap; the court affirmed all challenged rulings.
- The case involves a statutory malpractice regime under New Mexico’s Medical Malpractice Act, including cap on damages and procedures before filing in court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty scope in negligent handling of perforation | Plaintiff argues Defendant owed a duty for the initial and related procedures. | Defendant contends no duty extended to post-surgery outcomes. | Court held duty existed; reasonably well-qualified doctor must pressurize colon to locate perforation. |
| Eggshell plaintiff damages instruction | Eggshell instruction appropriate due to Plaintiff’s preexisting conditions. | Eggshell instruction improper or misapplied. | Eggshell instruction proper; Plaintiff’s preexisting conditions amplified damages but did not negate liability. |
| Remittitur/new trial on verdict | Remittitur/new trial should reduce or erase verdict due to issues. | No abuse of discretion; verdict not clearly improper. | No abuse; trial court properly refused remittitur or new trial; verdict upheld under standard. |
| Cap on damages constitutional validity | Cap violates right to jury trial, separation of powers, equal protection, due process. | Cap constitutional; rational basis under economic regulation. | Cap constitutional; rational-basis review applied; no constitutional violation. |
Key Cases Cited
- Estate of Haar v. Ulwelling, 141 N.M. 252, 154 P.3d 67 (2007-NMCA-032) (duty after termination of doctor-patient relationship distinguished from pre-relationship acts)
- Provencio v. Wenrich, 150 N.M. 457, 261 P.3d 1089 (2011-NMSC-036) (duty framing; foreseeability of harm standard in medical negligence)
- Benavidez v. City of Gallup, 141 N.M. 808, 161 P.3d 853 (2007-NMSC-026) (de novo review of jury instructions; should cover correct law if supported by record)
- Wachocki v. Bernalillo County Sheriff’s Department, 147 N.M. 720, 228 P.3d 504 (2010-NMCA-021) (cap on damages does not violate separation of powers; similar to current analysis)
- Trujillo v. City of Albuquerque (Trujillo III), 125 N.M. 721, 965 P.2d 305 (1998-NMSC-031) (equal protection rational basis applied to cap as economic legislation)