{ "id": 2773411, "name": "Betty GANDARA, as personal representative of Manuel Gandara, Deceased, and Betty Gandara, Individually and as surviving spouse of the said Deceased, Plaintiff-Appellant and Cross-Appellee, v. John S. WILSON, Defendant-Appellee and Cross-Appellant", "name_abbreviation": "Gandara ex rel. Gandara v. Wilson", "decision_date": "1973-04-20", "docket_number": "No. 1060", "first_page": "161", "last_page": "164", "citations": [ { "type": "official", "cite": "85 N.M. 161" }, { "type": "parallel", "cite": "509 P.2d 1356" } ], "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": "361 U.S. 354", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168703 ], "weight": 3, "year": 1960, "pin_cites": [ { "page": "357, 358" }, { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/us/361/0354-01" ] }, { "cite": "37 A.L.R.3d 420", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 2, "pin_cites": [ { "page": "423" }, { "page": "426" } ], "opinion_index": 0 }, { "cite": "84 N.M. 717", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2766048 ], "weight": 3, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/84/0717-01" ] }, { "cite": "58 N.M. 686", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587671 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/nm/58/0686-01" ] }, { "cite": "94 L.Ed. 653", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1950, "opinion_index": 0 }, { "cite": "339 U.S. 56", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 362582 ], "weight": 2, "year": 1950, "pin_cites": [ { "page": "72" }, { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/us/339/0056-01" ] }, { "cite": "82 N.M. 352", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335557 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0352-01" ] }, { "cite": "83 N.M. 706", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333506 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0706-01" ] }, { "cite": "83 N.M. 749", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5341132 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0749-01" ] }, { "cite": "78 N.M. 406", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5327444 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0406-01" ] }, { "cite": "73 N.M. 445", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5319859 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/nm/73/0445-01" ] }, { "cite": "84 N.M. 50", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2770706 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/84/0050-01" ] }, { "cite": "79 N.M. 636", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2744898 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0636-01" ] }, { "cite": "83 N.M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334147 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/83/0789-01" ] } ], "analysis": { "cardinality": 544, "char_count": 8126, "ocr_confidence": 0.755, "pagerank": { "raw": 1.285767996962464e-07, "percentile": 0.6186646402937005 }, "sha256": "3cb13e9e3d079fbddceeb758639a8fdeab7e72b9e03cda2d605a3827197587ee", "simhash": "1:9d3c7f7006c08915", "word_count": 1319 }, "last_updated": "2023-07-14T15:38:26.265107+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and LOPEZ, JJ., concur." ], "parties": [ "Betty GANDARA, as personal representative of Manuel Gandara, Deceased, and Betty Gandara, Individually and as surviving spouse of the said Deceased, Plaintiff-Appellant and Cross-Appellee, v. John S. WILSON, Defendant-Appellee and Cross-Appellant." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nThis is an appeal by plaintiff from a summary judgment granted defendant in a medical malpractice case. Defendant cross-appealed for failure of the trial court to consider affidavits filed in support of his motion for summary judgment.\nWe affirm.\nThere is no Genuine Issue of Fact Upon Which to Deny Defendant Summary Judgment.\nPlaintiff concedes that defendant made a prima facie showing of an absence of a genuine issue of fact, but she contends that she came forward and demonstrated that a genuine issue of fact did exist requiring a trial. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972).\nThis case is based on a complicated pattern of medical facts which resulted in the death of Manuel Gandara.\nOn July 29, 1967, defendant performed gall bladder surgery on decedent in Silver City. On July 30, 1967, at 7:00 a. m., decedent was discovered in a state of shock by an associate doctor. Decedent was \u201cblood-out\u201d \u2014 looking cadaverous, with no blood pressure. Up to this time, defendant had not been informed of any deteriorating condition. At 7:30 a. m., defendant arrived at the hospital and found that decedent\u2019s blood loss was being replaced. Defendant then took decedent back into surgery and repaired a bleeding artery, and returned decedent to his room.\nUp to this point, plaintiff does not claim medical malpractice. It is following the second surgical procedure that plaintiff contends the negligence occurred.\nPlaintiff contends that defendant was negligent in diagnosis because he failed to make any tests to discover the uremia and kidney failure before Gandara was referred to El Paso for postoperative care, and this negligence was the proximate cause of Gandara\u2019s death, or his additional suffering prior to death.\nTwo problems confront plaintiff.\n(1) Document of \u201cInformal Proceedings Inadmissible.\u201d\nPlaintiff seeks the use of a document entitled, \u201cInformal Proceedings with Reference to Patient Manuel G. Gandara, Involving Dr. E. S. Crossett and Dr. Sterling Martin.\u201d These proceedings occurred at Providence Hospital, El Paso, Texas, on April 25, 1971. At an informal session, defendant\u2019s attorney questioned Drs. Martin and Crossett of El Paso, Texas, in most part, about postoperative procedures after the patient\u2019s admission into the hospital. A Dr. Wilson participated in some minor respect. Plaintiff\u2019s attorney participated in some small part.\nThe document does not disclose that the witnesses were duly sworn, nor that they read the document. They did not sign it, nor did they waive signature. There was no stipulation that the document could be used as evidence in the summary judgment proceedings, or in this court. Under these circumstances, the document does not fall within the category necessary to show whether there is a genuine issue as to any material fact. Section 21\u20141\u20141 (56) (c) and (e), N.M.S.A.1953 (Repl.Vol. 4); Martin v. Board of Education of City of Albuquerque, 79 N.M. 636, 447 P.2d 516 (1968); Smith v. Klebanoff, 84 N.M. 50, 499 P.2d 368 (Ct.App.1972).\n(2)No Genuine Issue of Fact Established by Plaintiff.\nPlaintiff did not come forward and demonstrate that a genuine issue of fact exists by expert testimony that defendant \u201cdeparted from the recognized standards of medical practice in the community, or must have neglected to do something required by those standards.\u201d Without this issue of fact, a physician or surgeon cannot be held liable for malpractice. Cervantes v. Forbis, 73 N.M. 445, 448, 389 P.2d 210 (1964). This is settled law in this state. Crouch v. Most, 78 N.M. 406, 432 P.2d 250 (1967); Smith v. Klebanoff, supra; Mascarenas v. Gonzales, 83 N.M. 749, 497 P.2d 751 (Ct.App.1972); Sanders v. Smith, 83 N.M. 706, 496 P.2d 1102 (Ct.App.1972); Williams v. Vandenhoven, 82 N.M. 352, 482 P.2d 55 (1971).\nPlaintiff conceded that defendant made a prima facie showing that there was no genuine issue of fact. This is an admission that defendant met his burden; that defendant established he did not depart from the recognized standards of medical practice in Silver City, New Mexico, and that he did not neglect to do something required by those standards.\nPlaintiff established by expert testimony that the failure to make tests was a departure from the standard of care required of a Dipl\u00f3mate of the American Board of Surgery, and that defendant was a Dipl\u00f3mate. The expert who testified was a resident of El Paso, Texas.\nDoes this opinion meet the test in Cervantes? A review of New Mexico opinions and U.J.I., leads us to repeat the admonition of Justice Frankfurter in his dissent in United States v. Rabinowitz, 339 U.S. 56, 72, 70 S.Ct. 430, 438, 94 L.Ed. 653 (1950):\nOf course on this field of law, as in others, opinions sometimes use language not with fastidious precision.\nIn Los Alamos Medical Center v. Coe, 58 N.M. 686, 275 P.2d 175 (1954), an Albuquerque physician testified in a Los Ala-mos County malpractice suit. The court said [p. 692, 275 P.2d p. 179]:\nThe mere fact that he may have had no particular experience in the immediate vicinity of Los Alamos in the use of morphine, does not render his testimony inadmissible. The standard of care and skill required of physicians in administering morphine unquestionably is the same. [Emphasis added]\nUniform Jury Instructions- were adopted and approved by the Supreme Court. Under the doctrine of malpractice, Chapter 8, no instruction appears in the language of Cervantes. Departure from recognized standards of medical practice in the community, as a condition of liability for malpractice was not mentioned. Cervantes was not relied upon. Under 'U.J.I. 8.1, Duty of Doctor, the doctor was placed under a duty to exercise skill and care, \u201c * * * giving due consideration to the locality involved. A failure to do so would be a form of negligence that is called malpractice.\u201d\nIf the language in Cervantes were not quoted in later decisions, we would be inclined to indicate that Cervantes had been overruled. It has not been overruled, and we have no authority to do so. Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973). In order to clarify the doctrine of medical malpractice in New Mexico, the Supreme Court should review Cervantes in the light of U.J.I. 8.1.\nWe must hold the plaintiff failed to come forward with \u201c * * * testimony of a medical expert who is qualified to express an opinion concerning the specific standard of care that prevails in the jurisdiction.\u201d Annot. 37 A.L.R.3d 420, 423. 61 Am.Jur.2d, Physicians, Surgeons, and other Healers, \u00a7 116. 70 C.J.S. Physicians and Surgeons \u00a7 43 (Supp.1972), where Cervantes is the only New Mexico case cited.\nIn Davis v. Virginian R. Co., 361 U.S. 354, 357, 358, 80 S.Ct. 387, 389, 4 L.Ed.2d 366 (1960), the court said:\nProof of malpractice, in effect, requires two evidentiary steps: evidence as to the recognized standard of the medical community in the particular kind of case, and a showing that the physician in question negligently departed from this standard in his treatment of plaintiff. [A physician testified the treatment was not proper.] This offer of proof was fatally deficient. No foundation was laid as to the recognized medical standard for the treatment of such a fracture.\nA review of authorities cited supra, show :\nThis rule, which is commonly referred to as the \u201cstrict locality rule,\u201d is a view of long standing that has been increasingly modified and liberalized in modern times. [37 A.L.R.3d 420, 426].\nIn light of Alexander v. Delgado, supra, we must decline the invitation to modernize the rule in Cervantes.\nAffirmed.\nIt is so ordered.\nHENDLEY and LOPEZ, JJ., concur.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "Stanley C. Sager, Menig, Sager & Cur-ran, Albuquerque, for plaintiff-appellant and cross-appellee.", "James R. Toulouse, Mary C. Walters, Albuquerque, for defendant-appellee and cross-appellant." ], "corrections": "", "head_matter": "509 P.2d 1356\nBetty GANDARA, as personal representative of Manuel Gandara, Deceased, and Betty Gandara, Individually and as surviving spouse of the said Deceased, Plaintiff-Appellant and Cross-Appellee, v. John S. WILSON, Defendant-Appellee and Cross-Appellant.\nNo. 1060.\nCourt of Appeals of New Mexico.\nApril 20, 1973.\nStanley C. Sager, Menig, Sager & Cur-ran, Albuquerque, for plaintiff-appellant and cross-appellee.\nJames R. Toulouse, Mary C. Walters, Albuquerque, for defendant-appellee and cross-appellant." }, "file_name": "0161-01", "first_page_order": 223, "last_page_order": 226 }