Thompson v. Potter
268 P.3d 57
N.M. Ct. App.2011Background
- Ms. Bennett, with early dementia, was admitted to Casa Arena Blanca; doctor prescribed Ativan daily and prn for agitation.
- In January 2005, a Casa Arena nurse mis-transcribed a telephonic order, discontinuing the daily Ativan dose instead of the prn dose.
- From Jan 10 to Jan 17, 2005, Bennett missed scheduled Ativan doses, culminating in a grand mal seizure, fall, hip fracture, and death.
- Plaintiff, husband and personal representative, sued NCS Healthcare of Albuquerque (NCS) and Doyle Potter for breach of contract, negligence, and negligence per se.
- District court initially denied, then granted summary judgment for Defendants; Plaintiff appeals and Court affirms.
- Contract analysis centers on whether Bennett was a third-party beneficiary of NCS-Casa Arena contracts that include explicit third-party exclusion clauses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are residents third-party beneficiaries of the contracts? | Bennett benefits from contract performance; implied intent to benefit residents exists. | Contracts exclude third-party rights, explicit language forecloses beneficiary status. | Bennett has no third-party beneficiary rights. |
| Can extrinsic evidence create ambiguity about third-party beneficiary status? | Extrinsic evidence should be considered to reveal beneficiary intent. | Contracts unambiguous; extrinsic evidence not needed or admissible to create ambiguity. | Contracts are unambiguous; no basis to consider extrinsic evidence. |
| Did Defendants owe a duty to Bennett in common law negligence? | Defendants breached duties owed to Bennett. | No duty established; monthly reviews and regulatory duties do not create liability here. | No material fact issue; no duty under common law and standard negligence. |
| Does voluntary assumption of duty create liability for a consulting pharmacist here? | Recommendations to discontinue Ativan created a duty to Bennet. | No evidence that recommendation increased risk or was transmitted/acted upon; doctrine not applicable. | Voluntary assumption of duty not established; no duty created. |
| Are the negligence per se claims viable under statutes/regulations? | Regulations impose specific duties on consultant pharmacists and training; violations support negligence per se. | Regulations are too general; only a specific monthly review duty is clear; no violation shown; training issue not proven. | Negligence per se claims fail; regulations are not sufficiently specific to create liability here. |
Key Cases Cited
- Cobos v. Doña Ana Cnty. Hous. Auth., 126 N.M. 418, 970 P.2d 1143 (1998) (express exclusion of third-party rights defeats beneficiary status)
- Tabet Lumber Co. v. Romero, 117 N.M. 429, 872 P.2d 847 (1994) (interlocutory reconsideration of summary judgment allowed)
- Cordova v. City of Albuquerque, 86 N.M. 697, 526 P.2d 1290 (Ct. App. 1974) (standard for reviewing summary judgment on appeal)
- Flores v. Baca, 117 N.M. 306, 871 P.2d 962 (1994) (contract liability and third-party beneficiary principles instructive)
- Nearburg v. Yates Petroleum Corp., 123 N.M. 526, 943 P.2d 560 (1997) (public policy to give effect to parties' intent; not rewriting contracts)
- Heath v. La Mariana Apartments, 143 N.M. 657, 180 P.3d 664 (2008) (negligence per se requires a statute with a specific duty)
- Abeita v. N. Rio Arriba Elec. Coop., 124 N.M. 97, 946 P.2d 1108 (1997) (undefined duties do not support negligence per se)
- Estate of Haar v. Ulwelling, NA (2007) (special relationships require custody/control and direct ability to affect conduct)