{ "id": 12168223, "name": "PETER WIRTH, ESQ., as Personal Representative of the ESTATE OF INEZ MARTINEZ, Plaintiff-Appellee, v. SUN HEALTHCARE GROUP, INC., SUNBRIDGE HEALTHCARE, LLC, PEAK MEDICAL, LLC, and PEAK MEDICAL ASSISTED LIVING, LLC d/b/a THE VILLAGE AT NORTHRISE, Defendants-Appellants", "name_abbreviation": "Wirth v. Sun Healthcare Group, Inc.", "decision_date": "2016-09-15", "docket_number": "Docket No. 34,269", "first_page": "791", "last_page": "802", "citations": [ { "type": "official", "cite": "2017-NMCA-007" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "117 N.M. 434", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552588 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/117/0434-01" ] }, { "cite": "1994-NMSC-038", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0 }, { "cite": "365 P.3d 20", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2016-NMCA-011", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 12166805 ], "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm-app/9/0242-01" ] }, { "cite": "3 F.3d 1357", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10517922 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "1362" }, { "page": "1362-64" } ], "opinion_index": 0, "case_paths": [ "/f3d/3/1357-01" ] }, { "cite": "29 U.S.C. \u00a7 206", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2016, "pin_cites": [ { "page": "(d)(1)" } ], "opinion_index": 0 }, { "cite": "72 F. 447", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6728207 ], "year": 1896, "pin_cites": [ { "page": "455", "parenthetical": "\"It is a doctrine as old as the Bible itself, and the common law of the land follows it, that a man cannot serve two masters atthe same time[.]\"" } ], "opinion_index": 0, "case_paths": [ "/f/72/0447-01" ] }, { "cite": "254 A.2d 260", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8073816 ], "year": 1969, "pin_cites": [ { "page": "263" } ], "opinion_index": 0, "case_paths": [ "/a2d/254/0260-01" ] }, { "cite": "895 S.W.2d 132", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9998093 ], "year": 1995, "pin_cites": [ { "page": "135", "parenthetical": "\"[I]t is inappropriate for a court to imply a joint venture where ... it is evident that there is a different business form involved.\"" } ], "opinion_index": 0, "case_paths": [ "/sw2d/895/0132-01" ] }, { "cite": "2014 WL 3530613", "category": "reporters:specialty_west", "reporter": "WL", "year": 2014, "pin_cites": [ { "page": "*5", "parenthetical": "\"[I]f the capture of upstream profits constitutes a joint venture, then nearly all formally organized . . . parent/holding companies would be considered part of a joint venturef.]\"" } ], "opinion_index": 0 }, { "cite": "524 U.S. 51", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11181373 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "61-62" }, { "parenthetical": "omission, internal quotation marks, and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/us/524/0051-01" ] }, { "cite": "11 J. Corp. L. 573", "category": "journals:journal", "reporter": "J. Corp. L.", "year": 1986, "pin_cites": [ { "page": "623", "parenthetical": "\"Within the corporate group, the parent as sole shareholder is almost invariably engaged in the managerial functions of establishing policy, determining budget, providing administrative support, and participating in the decision[]malcing of the subsidiary corporation.\"" } ], "opinion_index": 0 }, { "cite": "2014 WL 890613", "category": "reporters:specialty_west", "reporter": "WL", "year": 2014, "pin_cites": [ { "parenthetical": "non-precedential" } ], "opinion_index": 0 }, { "cite": "479 S.E.2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 70130 ], "year": 1997, "pin_cites": [ { "page": "753" } ], "opinion_index": 0, "case_paths": [ "/ga/267/0419-01" ] }, { "cite": "144 N.E.2d 415", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1957, "pin_cites": [ { "page": "418" } ], "opinion_index": 0 }, { "cite": "106 N.M. 169", "category": "reporters:state", 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"raw": 4.03580807328026e-08, "percentile": 0.24684508633514926 }, "sha256": "91b3f34b027633b5bb3742adff912769d476b0139adca08f33da3095bb8abe88", "simhash": "1:1c266f56ee9d862a", "word_count": 5818 }, "last_updated": "2023-07-14T21:58:07.326433+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Francis J. Mathew, District Judge", "LINDA M. VANZI, Judge", "M. MONICA ZAMORA, Judge", "J. MILES HANISEE, Judge" ], "parties": [ "PETER WIRTH, ESQ., as Personal Representative of the ESTATE OF INEZ MARTINEZ, Plaintiff-Appellee, v. SUN HEALTHCARE GROUP, INC., SUNBRIDGE HEALTHCARE, LLC, PEAK MEDICAL, LLC, and PEAK MEDICAL ASSISTED LIVING, LLC d/b/a THE VILLAGE AT NORTHRISE, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nVANZI, Judge.\n{1} The decedent in this wrongful death lawsuit was Inez Martinez, a resident at the Village atNorthrise (VNR), which is a skilled nursing facility. The only remaining Defendants are Peak Medical Assisted Living, LLC (PM AL) \u2014 doing business as VNR \u2014 and three upstream entities in its ownership chain, which Plaintiff (as personal representative for Martinez) has alleged are joint venturers and co-employers of the staff at VNR. At the close of a six-day jury trial, the district court directed verdicts for Plaintiff on theories of negligent operation of a facility and negligence per se. The jury then found that at least one of those theories of negligence caused Martinez\u2019s death.\n{2} Since the jury also found that Defendants were joint venturers and co-employers, the court entered judgment against all four entities, jointly and severally. The court then awarded interest under NMSA 1978, Section 56-8-4(B) (2004), which allows a discretionary award of prejudgment interest of up to 10 percent from the date the complaint is served when a defendant fails to make a reasonable and timely settlement offer. This appeal challenges the underlying directed verdicts, the submission of the joint venture and co-employment issues to the jury, and the assessment ofprejudgment interest. We affirm with respect to PMAL, which is liable for the negligent acts or omissions of its employees. But we set aside the judgment against the other defendants and remand for a corresponding reassessment of prejudgment interest.\nBACKGROUND\n{3} OnApril 15,2010,InezMartinez,age82, was admitted to VNR where she was to recuperate from pacemaker implantation surgery for an anticipated stay of twenty days. She was discharged on May 5, 2010, by order of her attending physician, Dr. Guadencio Pavia, who was credentialed to see patients at the facility. Martinez died shortly thereafter as a result of sepsis caused by a wound infection (staph) at her incision.\n{4} Dr. Pavia never examined Martinez\u2019s incision during her stay at VNR, and it was later revealed at trial that attending physicians were not required to come to the facility to see their patients. To be sure, Martinez did see physicians on two occasions: first on April 23, when her cardiologist found that her incision was healing well, and again on May 3, when she met with Dr. Pavia at his office and was cleared for discharge. But by all accounts, Dr. Pavia ordered Martinez\u2019s discharge without even removing her bandage, making that off-site meeting effectively useless for diagnosing a wound infection, even if early symptoms would have been manifest on May 3.\n{5} On May 4, after the off-site meeting but prior to discharge, a nurse at VNR noted \u201cscabbed pus\u201d around Martinez\u2019s incision. The nursing staff applied antibiotic ointment, covered the incision with sterile gauze, and notified Dr. Pavia by fax of what had been observed and what had been done. Dr. Pavia signed the fax, presumably indicating that he read it; but he did not modify his discharge order, he left no instruction for the nursing staff, and \u2014 in accordance with his normal practice \u2014 he did not come to the facility to see his patient.\n{6} The next day, Martinez complained of a \u201c[mjoderate, severe pain\u201d that was progressing from the site of her pacemaker to her left shoulder. This time without notifying Dr. Pavia, staff administered two doses of narcotic pain medication and discharged Martinez from the facility pursuant to Dr. Pavia\u2019s May 3 order.\n{7} Once home, Martinez\u2019s condition rapidly deteriorated. She was hospitalized with a wound infection that had become septic. She received aggressive treatment, but her symptoms worsened: she developed stress ulcers, hypoxemia, liver damage, and kidney failure. Martinez died at the hospital \u2014 thirty-one days after her admission to VNR.\n{8} The administrator at VNR, who was employed by PMAL, should have required attending physicians, including Dr. Pavia, to come to the facility to see their patients. Experts for both sides agreed that the failure to do so fell below the standard of care applicable to a skilled nursing facility. But the evidence conflicted as to whether signs of a wound infection were apparent on May 4 and 5, raising a question whether the result would have been any different had Martinez been examined by her physician before discharge.\n{9} Thus, based on the experts\u2019 opinions, Plaintiff moved for directed verdict on a theory of negligent operation of the facility with the understanding that the jury would still have to determine whether the failure to require Dr. Pavia to visit Martinez at the facility caused her death. Plaintiff also moved for directed verdict on a closely related theory of negligence per se, arguing that the facility had violated both a federal and a state regulation.\n{10} The federal regulation, 42 C.F.R. \u00a7 483.75(h) (2014), is part ofa complex scheme of conditions that nursing homes must meet to participate in medicare and medicaid programs. See 42 C.F.R. \u00a7 483.1 (b) (2015). Its somewhat cryptic language requires a nursing home to either employ a qualified professional to furnish a specific service to residents or to\nhave that service furnished ... by a person or agency outside the facility under an arrangement... [that] must specify in writing that the facility assumes responsibility for . . . [ojbtaining services that meet professional standards and principles that apply to professionals providing services in such a facility[.]\n42 C.F.R. \u00a7 483.75(h)(1), (2)(i).\n{11} The state regulation, 7.9.2.37(A), (C)(1) NMAC, requires that a physical examination be conducted within forty-eight hours on persons admitted to nursing homes, except those admitted for short-term care. Although it was undisputed at trial that Martinez was expected to stay at VNR for twenty days, and that no physician examined her within forty-eight hours of her admission, there was no testimony about the meaning of the short-term care exception. \u201cShort-term care\u201d is not defined in the regulations, and the parties have not cited any authority defining the term, nor pointed to any case interpreting it.\n{12} The district court ultimately granted the directed verdict motions. Because causation was still at issue, the directed verdicts did not determine liability. They only resulted in a jury instruction that Defendants had been held negligent as a matter of law in all three respects, and that the jury could return a verdict for Plaintiff if it found that any such negligence was a cause of Martinez\u2019s death. Accompanying that instruction was a verdict form that accordingly asked, \u201cDo you believe that any of these acts of negligence by . . . Defendants were a cause of injury and damage [to] Martinez?\u201d Without any further specification, the jury marked \u201c[y]es.\u201d\n{13} Defendants twice moved for a directed verdict on Plaintiffs theories of joint venture and co-employment. The district court denied Defendants\u2019 motions, and the jury found that all Defendants were joint venturers and co-employers of the staff at VNR. Upon finding causation, the jury returned a verdict for Plaintiff awarding compensatory damages of $2.5 million. The court then agreed with P laintiff that D efendants \u2019only settlement offer of $250,000 was unreasonable. It awarded prejudgment interest at 8 percent per annum in the total amount of $334,246.57.\n{14} Defendants now make several arguments, some of which were not made below. To the extent their arguments were not preserved, they invoke the doctrine of fundamental error, which they recognize applies in civil cases in only \u201cthe most extraordinary and limited circumstances.\u201d See Estate of Gutierrez ex rel. Jaramillo v. Meteor Monument, L.L.C., 2012-NMSC-004, \u00b6 33, 274 P.3d 97. They assert, first, that directing a verdict on the negligent operation theory was error because expert opinions \u2014 even when unanimous \u2014 are not binding on the jury. That is, since our case law allows juries to reject expert testimony, see, e.g., State v. Moore, 1938-NMSC-007, \u00b6 73, 42 N.M. 135, 76 P.2d 19, the directed verdict on the negligent operation claim must have been improperly based on the district court\u2019s decision to accept the testimony, and not the jury\u2019s.\n{15} Defendants also argue that it was error to direct verdicts based on the federal and state regulations because the federal regulation does not set forth a specific standard of conduct distinct from the medical negligence standard of care, see Heath v. La Mariana Apartments, 2008-NMSC-017, \u00b6 9, 143 N.M. 657, 180 P.3d 664, and the state regulation, by its terms, does not apply to short-term care. Since the verdict form does not reveal which theory the jury found to be causative, Defendants argue that a new trial is required if any directed verdict was improperly granted. See Bachicha v. Lewis, 1987-NMCA-053, \u00b6 16, 105 N.M. 726, 737 P.2d 85 (\u201c[Wjhere we cannot tell whether the jury based its verdict upon an improperly submitted issue, the proper procedure is to reverse and remand for a new trial on all issues.\u201d).\n{16} With respect to joint and several liability, D efendants contend that the evidence showed nothing more than the degree of control normally incident to a chain of ownership in a legitimate corporate structure. In a parent-subsidiary relationship, \u201c[t]he parent has control over the subsidiary ... by its ownership of a majority or all of the stock thereinf,]\u201d and it can generally be held vicariously liable for the subsidiary\u2019s acts only by piercing the corporate veil. Scott v. AZL Res., Inc., 1988-NMSC-028, \u00b6 6, 107 N.M. 118, 753 P.2d 897. Defendants argue that it was improper to circumvent veil-piercing by submitting questions of joint venture and co-employment to the jury. In the event their other arguments are unsuccessful, Defendants argue that the district court should not have awarded prejudgment interest at a \u201chighly punitive\u201d rate of 8 percent.\n{17} We review de novo the grant or denial of a motion for directed verdict. McNeill v. Burlington Res. Oil & Gas Co., 2008-NMSC-022, \u00b6 36, 143 N.M. 740, 182 P.3d 121. We review an award ofprejudgment interest for an abuse of discretion. Behrens v. Gateway Court, LLC, 2013-NMCA-097, \u00b6 25, 311 P.3d 822, cert, quashed, 2014-NMCERT-010, 339 P.3d 426.\nDISCUSSION\nThe Negligent Operation Claim\n{18} A directed verdict is proper when \u201cthe facts and inferences are so strongly and overwhelmingly in favor of the moving party that the judge believes that reasonable people could not arrive at a contrary result [and] . . . when there are no true issues of fact to be presented to a jury[.]\u201d Rist v. Design Ctr. at Floor Concepts, 2013-NMCA-109, \u00b6 7, 314 P.3d 681 (internal quotation marks and citations omitted). That standard applies notwithstanding the rule \u2014 cited by Defendants for the first time on appeal \u2014 that \u201c[t]he judgments of experts . . . , even when unanimous and uncontroverted, are not necessarily conclusive on the jury, but may be disregarded by it.\u201d State v. Alberico, 1993-NMSC-047, \u00b6 36, 116 N.M. 156, 861 P.2d 192 (internal quotation marks and citation omitted); see Moore, 1938-NMSC-007, \u00b6 73 (\u201cWe cannot supplant the conclusions of experts, though unanimous ..., for the conclusion of the jury\u2019s verdict.\u201d).\n{19} These principles are not at odds. That the jury can reject unanimous expert testimony does not mean that it would be reasonable in every case to do so. Where there is some basis for disregarding the testimony \u2014 for instance, where eyewitness (lay) testimony conflicts with the opinions of psychiatrists and psychologists that a criminal defendant was insane when he committed an offense \u2014 it is plainly improper for a court to weigh the evidence and direct a verdict favoring the experts\u2019 opinions. See State v. Dorsey, 1979-NMSC-097, \u00b6\u00b6 10-12, 93 N.M. 607, 603 P.2d 717; see also Moore, 1938-NMSC-007, \u00b6 55 (\u201cAgainst the opinion of the doctors, we have testimony showing that the defendant knew what he was doing and why he was doing it.\u201d).\n{20} But absent any true issues of fact, \u201c[u]ncontradicted evidence, which is not subject to reasonable doubts, may not be arbitrarily disregarded.\u201d Samora v. Bradford, 1970-NMCA-004, \u00b6 16, 81 N.M. 205, 465 P.2d 88. That is the rule even when the movant bears the burden of persuasion at trial. See 1 Clifford S. Fishman & Anne T. McKenna, Jones on Evidence \u00a7 3:43 (7th ed. 2016) (\u201cAlthough the presumption that uncontradicted [expert] testimony is to be credited can, of course, be trumped by any negative impression that the trier of fact may have on a witness\u2019 demeanor, [the trier of fact] cannot act arbitrarily.\u201d (omission, internal quotation marks, and citation omitted)).\n{21} It is undisputed that Defendants did not require Dr. Pavia, or any physician, to visit Martinez at VNR within forty-eight hours of her admission, after nurses noted \u201cscabbed pus\u201d at her pacemaker site on May 4, or after she was treated with two doses of narcotic medication for pain at her incision immediately prior to discharge. Indeed, in accordance with the facility\u2019s general policy, Dr. Pavia was never required to visit Martinez at VNR. Experts for both sides agreed that this conduct fell below the standard of care. Their testimony was not incredible (the adverse witnesses corroborated one another on the issue); it was not shaken by cross-examination; and it could not have been contradicted by any lay testimony. Sewell v. Wilson, 1982-NMCA-017 \u00b6 23, 97 N.M. 523, 641 P.2d 1070 (\u201cExpert testimony ... is required if the alleged negligence is in an area peculiarly within the knowledge of physicians.\u201d).\n{22} The district court properly granted a directed verdict with respect to the negligent operation claim, not because there is an inflexible rule that expert testimony can never be disregarded by the jury, but because under these facts, it would have been patently unreasonable for the jury to concoct from nothing its own competing professional standard of care. \u201cThe basis for a directed verdict, therefore, [was] the absence of an issue for the jury to resolve.\u201d Melnick v. State Farm Mut. Auto. Ins. Co., 1988-NMSC-012, \u00b6 11, 106 N.M. 726, 749 P.2d 1105.\nThe Negligence Per Se Claims\n{23} Negligence per se requires, among other things, \u201ca statute which prescribes certain actions or defines a standard of conduct, either explicitly or implicitly}.]\u201d Heath, 2008-NMSC-017, \u00b6 7 (internal quotation marks and citation omitted). The duty must be defined \u201cwith specificity,\u201d id. \u00b6 9, and it must be \u201cdistinguishable from the ordinary standard of care.\u201d Thompson v. Potter, 2012-NMCA-014, \u00b6 32, 268 P.3d 57.\n{24} It would be redundant, for example, to instruct the jury on negligence per se based on a regulation imposing an obligation on owners to update or retrofit their property when an existing condition is \u201cdangerous to life.\u201d Heath, 2008-NMSC-017, \u00b6\u00b6 18-19. \u201c[T]he statutory term [\u2018dangerous to life\u2019] adds little if anything to the common law standard of ordinary care because, if property owners have to exercise ordinary care, then obviously they would have to respond to a life-threatening condition.\u201d Id. \u00b6 19. For the same reason, negligence per se is inappropriate for violation of laws that prohibit drivers from following \u201cmore closely than is reasonable and prudent\u201d or that make it a crime to \u201cnegligently\u201d graze livestock on a fenced highway. Id. \u00b6\u00b6 20-21 (emphasis, internal quotation marks, and citation omitted) (overruling cases that held the opposite). In all of these examples, the quoted terms effectively restate the ordinary standard of care.\n{25} Similarly, the federal regulation at issue requires only that nursing homes furnishing outside services must enter written agreements with their service providers assuming responsibility for ensuring that the providers meet applicable \u201cprofessional standards.\u201d42 C.F.R. \u00a7 483.75(h)(1), (2)(i). In the words of Plaintiff\u2019s expert \u2014 a doctor of internal medicine and geriatrics:\n[T]hat\u2019s basically a way of saying that the facility has to make sure that if you\u2019re, for instance, a physical therapist from the outside, you maintain the standards that physical therapists are supposed to maintain. And, therefore, in this case, the administrator, the director of nursing, the other members of the governing body, including the corporate representative, are to make certain that the facility, meaning, in this case, the administrator, assures that people providing care are meeting their own standards. In other words, a doctor is meeting the doctor standard of care.\nAlong these lines, Plaintiff argued to the district court that the federal regulation created a mechanism to hold the facility responsible in tort for Dr. Pavia\u2019s breach of professional standards by failing to visit Martinez at VNR. That is a dubious interpretation of a regulation that only sets forth conditions for participation in medicare and medicaid programs. See 42 C.F.R. \u00a7 483.1(b). But the district court, apparently persuaded, directed a verdict in favor of Plaintiff, which ultimately resulted in the following jury instruction:\nThe Court has determined as a matter of law that Defendants violated 42 C.F.R. [\u00a7 483.75(h)] that requires the facility itself to assume responsibility for obtaining services that meet professional standards and principles that apply to professionals providing services in such a facility.\nYou are instructed that such conduct... constituted negligence as a matter of law.\nYou need now determine whether [this or any other admitted liability] contributed to cause damage to . . . Martinez.\nThis instruction should never have been given because it derived liability from the undefined standard of care applicable in any medical negligence case. See Heath, 2008-NMSC-017, \u00b6\u00b6 8-9. Worse still, by directing to the jury that Defendants failed to ensure that Dr. Pavia met \u201cprofessional standards,\u201d the court actually determined the medical negligence standard of care as a matter of law, which is a matter normally left to the jury. See UJI 13-1101 NMRA.\n{26} \u201cBut an unnecessary instruction does not necessarily create reversible error.\u201d Abeita v. N. Rio Arriba Elec. Coop., 1997-NMCA-097, \u00b6 23, 124 N.M. 97, 946 P.2d 1108. In this case, the standard of care was never in doubt. We have already held that the district court properly granted judgment as a matter of law on the negligent operation claim. The result of the district court\u2019s error of instructing the jury a second time that Defendant\u2019s failure to ensure Dr. Pavia met professional regulatory standards constituted negligence as a matter of law, and then asking the jury to determine whether that conduct caused Martinez\u2019s death, was nothing more than a redundant jury instruction that could not have impacted the verdict. That is not a basis for a new trial. See id.\n{27} As mentioned earlier, Defendants have cited the following language from one of our cases in support of their argument that a new trial is required: \u201c[W]here we cannot tell whether the jury based its verdict upon an improperly submitted issue, the proper procedure is to reverse and remand for a new trial on all issues.\u201d Bachicha, 1987-NMCA-053, \u00b6 16. That language, however, does not remove technically erroneous jirry instructions from the ambit of harmless error. See Kennedy v. Dexter Consol. Sch., 2000-NMSC-025, \u00b6\u00b6 29-30, 129 N.M. 436, 10 P.3d 115; see also Rule 1-061 NMRA (\u201cThe court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.\u201d). There is no presumption of prejudice where a single claim is severed by the jury instructions into two separate theories of liability \u2014 one erroneous and the other not. See Kennedy, 2000-NMSC-025, \u00b6 30 (\u201c[T]he erroneous [jury] instruction was merely another way to complain of the same act that formed the basis of the claimed illegal search.\u201d); First Nat'l Bank in Albuquerque v. Sanchez, 1991-NMSC-065, \u00b6 14, 112 N.M. 317, 815 P.2d 613 (\u201c[Although stated as a separate theory of liability, the claim of duress seems merely to have been another way to complain of the same act that formed the basis for the claimed breach of contract.\u201d).\n{28} That is all that happened here. It would be a mistake of this Court to nullify the result of a six-day jury trial because a negligence per se instruction erroneously restated the uncontroverted medical negligence standard of care, which was not met by any account.\n{29} Nor was it reversible error to direct a verdict on the state regulation. There is a dispute on appeal whether Defendants have preserved their argument that Martinez\u2019s expected stay of twenty days at VNR constituted \u201cshort-term care,\u201d which is expressly excepted from the forty-eight-hour examination requirement of 7.9.2.37(C)(1) NMAC. Although Defendants did argue that \u201cNew Mexico requirements say[ forty-eight] hours but not if it\u2019s a short-term stay[,]\u201d the district court asked Defendants to develop that argument by directing it to any testimony about the definition of a \u201cshort-term\u201d stay because it did not \u201crecall any testimony about . . . what the definition of short-term was.\u201d Defendants did not direct the court to any such testimony, and there is none in the record.\n{30} Regardless of whether Defendants\u2019 argument was preserved, we are as puzzled as the district court because the regulations shed no light on the exception, and the parties have not cited a single authority to assist us in interpreting it. We have the same basic question that the court asked below: What is a short-term stay? It is Defendants\u2019 burden as appellants to \u201cclearly demonstrate] that the trial court committed error.\u201d Allen v. Amoco Prod. Co., 1992-NMCA-054, \u00b6 17, 114 N.M. 18, 833 P.2d 1199. They have not done so.\n{31} But even accepting that the state regulation did not apply, there is still no prejudice to Defendants. A potentially erroneous finding of causation based on violation of the forty-eight-hour requirement would mean that the jury also (appropriately) found causation based on the broader allegation that the facility was negligently operated. Together, the federal and state regulation were part of a single claim that the facility failed to adhere to the normal practice of requiring attending physicians to visit their patients on-site, within forty-eight hours or ever. Subsumed within that theory, the negligence per se instructions and the directed verdicts that led to them were superfluous. See Kennedy, 2000-NMSC-025, \u00b6\u00b6 29-30; Sanchez, 1991-NMSC-065, \u00b6 14.\nJoint and Several Liability\n{32} We next turn to Defendants\u2019 argument that Plaintiff needed to pierce the corporate veil to hold them jointly and severally liable. Plaintiff \u2014 who has made no attempt to pierce the veil \u2014 responds that veil-piercing was not required because (1) there was sufficient evidence of a joint venture between all Defendants, and (2) all Defendants also exercised enough control over PMAL\u2019s employees to establish a \u201cco-employment\u201d relationship with the negligent staff at VNR. Plaintiff also says that the jury expressly determined that each Defendant was directly liable for Martinez\u2019s wrongful death, but we must reject that contention outright because it is impossible to tell from the special verdict form which Defendants the jury found to be negligent and also because multiple wrongdoers cannot be held jointly and severally liable in New Mexico. NMSA 1978, \u00a7 41-3A-1(A) (1987); see Valdez v. R-Way, LLC, 2010-NMCA-068, \u00b6\u00b6 6-7, 148 N.M. 477, 237 P.3d 1289 (distinguishing vicarious liability, which is faultless). That leaves either joint venture or co-employment as the only potential bases for upholding the verdict.\n{33} \u201cA joint venture is formed when the parties agree to combine theirmoney, property or time for conducting a particular business venture and agree to share jointly in profits and losses, with the right of mutual control over the business enterprise or over the property.\u201d Quirico v. Lopez, 1987-NMSC-070, \u00b6 9, 106 N.M. 169, 740 P.2d 1153. Perhaps the most workable rule is that joint venturers can never conduct their enterprise through the instrumentality of a corporation as the two forms of business are mutually exclusive and governed by different bodies of law. Weisman v. Awnair Corp. of Am., 144 N.E.2d 415, 418 (N.Y. 1957). But that is not the rule everywhere, see, e.g., Kissun v. Humana, Inc., 479 S.E.2d 751, 753 (Ga. 1997), and it is at least conceivable that a parent may share a business venture with its subsidiary. This Court has said as much in a memorandum opinion. Wrongful Death Estate of Archuleta v. THI of N.M., LLC, No. 31,950, 2014 WL 890613, mem. op. \u00b6 48 (N.M. Ct. App. Jan. 9, 2014) (non-precedential).\n{34} Defendants formed a chain of ownership: PMAL, which was the licensed operator of VNR (and the undisputed employer of the facility\u2019s staff), was a wholly owned subsidiary of Peak Medical, LLC (Peak Medical), which was wholly owned by SunBridge Healthcare, LLC (SunBridge), which was itself wholly owned by Sun Healthcare Group, Inc. (Sun). There was some apparent overlap in corporate officials within the group, and entities up the chain promulgated general policies and provided assistance at VNR for employee conduct, patient care, and regulatory compliance. The most extensive meddling seemed to result from administrative and advisory assistance agreements that PMAL entered into with Sun and SunBridge, pursuant to which the parent entities charged fees from the facility\u2019s operating income to draft policies and procedures for VNR, pay its vendors, and manage its account.\n{35} There is nothing particularly unusual about that, at least in the abstract. See Phillip I. Blumberg, Limited Liability & Corporate Groups, 11 J. Corp. L. 573, 623 (1986) (\u201cWithin the corporate group, the parent as sole shareholder is almost invariably engaged in the managerial functions of establishing policy, determining budget, providing administrative support, and participating in the decision[]malcing of the subsidiary corporation.\u201d). Stock ownership, as a matter of course, allows a parent to choose its subsidiary\u2019s board of directors, make bylaws, and vote on general matters of corporate governance put forth by the board. See United States v. Bestfoods, 524 U.S. 51, 61-62 (1998). \u201cThus it is hornbook law that the exercise of the control which stock ownership gives to the stockholders will not create liability beyond the assets of the subsidiary.\u201d Id. (omission, internal quotation marks, and citation omitted); see Restatement (Second) of Agency \u00a7 14M (1958) (\u201cA corporation does not become an agent of another corporation merely because a majority of its voting shares is held by the other.\u201d). Likewise in New Mexico, limited liability is the rule and not the exception, see Scott, 1988-NMSC-028, \u00b6 6, and evidence sufficient to satisfy the elements of joint venture or co-employment within a parent-subsidiary relationship had better be eccentric to the norms of corporate behavior, lest we risk unwittingly eliminating the doctrine of limited liability via the mundane application of ordinary agency principles.\n{36} One ofthe elements of ajoint venture is an agreement to share profits and losses. Quirico, 1987-NMSC-070, \u00b6 9. It is not clear what evidence supports the existence of such an agreement in this case. Plaintiffs brief seems to point to the capture of profits on each Defendant\u2019s income statement upstream. That is, of course, entirely ordinary. Hanback v. GGNSC Southaven, LLC, No. 3:13-CV-00288-MPM-SAA, 2014 WL 3530613 at *5 (N.D. Miss. July 15, 2014) (\u201c[I]f the capture of upstream profits constitutes a joint venture, then nearly all formally organized . . . parent/holding companies would be considered part of a joint venturef.]\u201d). And Sun and SunBridge profited from activities at the facility by charging PMAL a fee for administrative assistance. But the administrative assistance agreements could not have established a joint venture; they expressly disclaimed any right of mutual control.\n{37} Even if we were to somehow infer a profit-sharing agreement from other evidence, such as VNR\u2019s policy manuals and codes of conduct, which are printed with Sun\u2019s and Sunbridge\u2019s logos, there is certainly no evidence of any agreement to share losses. It is said that the \u201cabsence of an express agreement to share losses is not fatal to a determination that the transaction was a joint venture\u201d and that \u201cmutual liability for losses will be implied from an agreement to share profits.\u201d Quirico, 1987-NMSC-070, \u00b6 9. While that is fine as a general matter, it is a poor fit for this case where the upstream Defendants have plainly manifested their intention to avoid loss-sharing by structuring their businesses to limit losses to the extent of their investments downstream. See Rosenfeld v. Brooks, 895 S.W.2d 132, 135 (Mo. Ct. App. 1995) (\u201c[I]t is inappropriate for a court to imply a joint venture where ... it is evident that there is a different business form involved.\u201d).\n{38} Plaintiff\u2019s brief says that the \u201ccritical evidence\u201d of a joint venture is that \u201ceach entity owned 100 [percent] of the operations\u201d at VNR. That is the same thing Plaintiff told the jury in closing argument:\nNow, the joint venture section ofthis verdict form is very important. . . . Now, when you look at [the joint venture question], I would tell you to think the easy way, and that is the licensure application. And that is 100 percent of 100 percent is 100 percent. And that is that all four corporations own, manage, control, share 100 percent. And so a check mark for every one of those tells us that you believe those four are in [a] joint venture together.\nThis was derived from PMAL\u2019s application to operate the facility that disclosed its chain of ownership \u2014 as required \u2014 to the Department of Health. As a matter of law, that document cannot establish a joint venture, or else we would expose to liability every corporate parent of every entity that correctly attaches its ownership information when it fills out a nursing facility licensure application. In fact, only PMAL was authorized by the Department of Health to operate the facility.\n{39} The chain of ownership itself is almost certainly what the jury relied upon when it found that all four Defendants were joint venturers. How else can we explain the determination of Peak Medical\u2019s liability, for which there was no evidence whatsoever of any right to exercise control over the facility? In the absence of any real evidence of a joint venture, the jury did exactly what Plaintiff asked it to do: It inferred a right of mutual control and a profit/loss-sharing agreement from evidence tending to show a series of ordinary corporate relationships; Peak Medical was swept up with the others.\n{40} Ultimately, the sine qua non of a joint venture is an agreement. Sheppard v. Carey, 254 A.2d 260, 263 (Del. Ch. 1969). Becairse there was not sufficient evidence to prove one \u2014 even by inference \u2014 Defendants\u2019motion for directed verdict should have been granted.\n{41} With respect to co-employment, we cannot locate any case anywhere (and Plaintiff has not cited one) that has held that, absent veil-piercing, a parent corporation can be vicariously liable in tort as a simultaneous co-employer of its subsidiary\u2019s employees. See Atwood v. Chicago, R.I. & P. Ry. Co., 72 F. 447, 455 (C.C.W.D. Mo. 1896) (\u201cIt is a doctrine as old as the Bible itself, and the common law of the land follows it, that a man cannot serve two masters atthe same time[.]\u201d). The novelty of the issue was evident in a lengthy argument below about the wording of our respondeat superior uniform jury instructions, which are naturally directed atthe relationship between an employee and a single employer. See UJI 13-403 NMRA; UJI 13-407 NMRA.\n{42} Joint employment theories (with specially formulated multifactor tests) have sometimes arisen from the particular definitions in federal employment and labor statutes, see, e.g., 42 U.S.C. \u00a7 2000e-2 (2014); 29 U.S.C. \u00a7 206(d)(1) (2016), but even those cases take heed of limited liability and apply \u201ca strong presumption that a parent company is not the employer of its subsidiary\u2019s employees}.]\u201dFrank v. U.S. West, Inc., 3 F.3d 1357, 1362 (10th Cir. 1993). Frank, for example, held that the \u201cextraordinary circumstances\u201d that would establish a joint employment relationship between parent and subsidiary did not exist, though the parent owned all of its subsidiary\u2019s stock, shared a manager in common with its subsidiary, supervised employees of its subsidiary, provided services to its subsidiary, and established general policies governing the overall enterprise. Id. at 1362-64.\n{43} In this case, co-employment liability was based only on an instruction that asked the jury to apply the \u201cright of control\u201d test that we use to distinguish employees from independent contractors. See UJI 13-403 (\u201cAn employer is one who has another perform certain work and who has the right to control the manner in which the details of the work are to be done, even though the right of control may not be exercised.\u201d). That effectively eschewed any finding of domination or instrumentality that is normally required to hold a shareholder vicariously liable for the torts of corporate employees. See Morrissey v. Krystopowicz, 2016-NMCA-011, \u00b6 13, 365 P.3d 20. We conclude that there is no viable claim of co-employment liability, at least not in this context, and that judgment as a matter of law should have been granted on that issue as well. To the extent the evidence revealed questionable corporate practices on the part of Sun or SunBridge, Plaintiff was free to seek the equitable relief of veil-piercing, which is a firmly established exception to the general rule that \u201c[shareholders can ... commit limited capital to the corporation with the assurance that they will have no personal liability for the corporation\u2019s debt.\u201d Scott, 1988-NMSC-028, \u00b66.\n{44} Our conclusion does not reach PMAL. \u201cA corporation can act only through its officers and employees, and any act or omission of an officer or employee of a corporation, within the scope or course of his or her employment, is an act or omission of the corporation.\u201d Bourgeous v. Horizon Healthcare Corp., 1994-NMSC-038, \u00b6 11, 117 N.M. 434, 872 P.2d 852. There is no dispute that PMAL employed the negligent staff at VNR.\nCONCLUSION\n{45} We affirm the entry of judgment against PMAL and reverse with respect to all other Defendants. Since we have reversed aspects of the judgment and since the district court relied, in part, on its view of the complexity of the issues in the case, we think it prudent to remand for the district court to reassess its award of prejudgment interest.\n{46} IT IS SO ORDERED.\nLINDA M. VANZI, Judge\nWE CONCUR:\nM. MONICA ZAMORA, Judge\nJ. MILES HANISEE, Judge\n\u201cQuestion No. 1: Do you believe that any of these acts of negligence by any... Defendants were a cause of injury and damage to ... Martinez?\u201d (Emphasis added.)\nSec, for example, the agreement between PMAL and Sun:\nThe Subsidiaries shall remain solely responsible for, and the Administrative Assistance shall not include, the management and operation of the Subsidiaries, including clinical matters, supervision of staff, and the adoption of policies and procedures. Nothing herein shall delegate the control of or ultimate responsibilities of the Subsidiaries to Sun.", "type": "majority", "author": "VANZI, Judge." } ], "attorneys": [ "Curtis & Lucero Lisa K. Curtis Amalia S. Lucero Albuquerque, NM Tucker Law Firm P.C. Steven L. Tucker Santa Fe, NM for Appellee", "Quintairos, Prieto, Wood & Boyer, P.A. Frank Alvarez Kristin McLaughlin Dallas, TX Rodey, Dickason, Sloan, Akin & Robb, P.A. Edward Ricco Jocelyn Drennan Albuquerque, NM for Appellants" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2017-NMCA-007\nFiling Date: September 15, 2016\nDocket No. 34,269\nPETER WIRTH, ESQ., as Personal Representative of the ESTATE OF INEZ MARTINEZ, Plaintiff-Appellee, v. SUN HEALTHCARE GROUP, INC., SUNBRIDGE HEALTHCARE, LLC, PEAK MEDICAL, LLC, and PEAK MEDICAL ASSISTED LIVING, LLC d/b/a THE VILLAGE AT NORTHRISE, Defendants-Appellants.\nFrancis J. Mathew, District Judge\nCurtis & Lucero Lisa K. Curtis Amalia S. Lucero Albuquerque, NM Tucker Law Firm P.C. Steven L. Tucker Santa Fe, NM for Appellee\nQuintairos, Prieto, Wood & Boyer, P.A. Frank Alvarez Kristin McLaughlin Dallas, TX Rodey, Dickason, Sloan, Akin & Robb, P.A. Edward Ricco Jocelyn Drennan Albuquerque, NM for Appellants" }, "file_name": "0791-01", "first_page_order": 807, "last_page_order": 818 }