This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 LILLIAN and JOSE MARTINEZ, 7 Plaintiffs-Appellees, 8

v. NO. 30,455 9 ST. VINCENT HOSPITAL, a New Mexico 10 non-profit corporation, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 13 Barbara J. Vigil, District Judge 14 Katherine W. Hall PC 15 Katherine W. Hall 16 Santa Fe, NM 17 for Appellees 18 Hinkle, Hensley, Shanor & Martin, L.L.P. 19 William P. Slattery 20 Dana S. Hardy 21 Santa Fe, NM 22 for Appellant 23 MEMORANDUM OPINION 24 CASTILLO, Chief Judge. 25Corr Page Martinez v. St. Vincent Hosp., No. 30,455 (CcBuFy) Filed April 27, 2011. Page 2, lines 3-4. Date of previously filed opinion changed from December 14, 2010 to November 30, 2010.

2 After the memorandum opinion was filed in this case, Plaintiffs filed a motion 1 for rehearing. We have duly considered Plaintiffs’ motion and now agree that 2 Plaintiffs were entitled to summary judgmen t on the issue of ostensible or apparent 3 authority. We remain confident that our conclusions as to the other issues were 4 correct. We grant Plaintiffs’ motion in part, withdraw the opinion filed on November 5 30, 2010, and substitute the following opinion therefor. 6 Defendant appeals from a judgment entered in favor of Plaintiffs after a jury 7 trial. In this Court’s notice of proposed summary disposition, we proposed to reverse 8 based on the district court’s erroneous grant of partial summary judgment prior to trial 9 on two issues of material fact. Defendant has filed a memorandum in support of our 10 proposed summary disposition and Plainti ffs have filed a memorandum in opposition. 11 Summary Judgment on the Issue of Defendant’s Vicarious Liability 12 Defendant contends th at the district court erred in granting Plaintiffs’ motion 13 for partial summary judgment on the issue of Defendant’s liability for the acts of the 14 hospitalists. “Summary judgment is appropriate where there are no genuine issues of 15 material fact and the movant is entitle d to judgment as a matter of law.” Self v. United 16 Parcel Serv., Inc. , 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. The questions 17 of whether there are no genuine issues of material fact and whether the movant is 18 entitled to judgment as a matter of law are le gal questions that wereview de novo. Id. 193 In doing so, however, “[w]e are mindful thatsummary judgment is a drastic remedial 1 tool which demands the exercise of caution in its application, and we review the 2 record in the light most favorable to support a trial on the merits.” Woodhull v. 3 Meinel , 2009-NMCA-015, ¶ 7, 145 N.M. 533, 202 P.3d 126 (internal quotation marks 4 and citation omitted), cert. denied , 2009-NMCERT-001, 145 N.M. 655, 203 P.3d 870. 5 It is only when reasonable minds could not di ffer as to an issue of material fact that 6 summary judgment is proper. Id. In New Mexico, summary judgment is viewed with 7 disfavor because a trial on the merits is preferred. See Romero v. Philip Morris, Inc., 8 2010-NMSC-035, ¶ 8, __ N.M. __, __ P.3d __. 9 In this Court’s notice of proposedsummary disposition, we relied on 10 Houghland v. Grant , 119 N.M. 422, 429, 891 P.2d 563, 570 (Ct. App. 1995), because 11 it is a factually analogous case involving the question of a hospital’s vicarious liability 12 for emergency room doctors who were provi ded to the hospital by a staffing agency. 13 We proposed to hold that, to the degree the di strict court held that the hospitalists were 14 employees of the hospital as a matter of law, summary judgment on that issue was 15 inappropriate because a reasonable juror coul d conclude that the hospitalists were not 16 employees of Defendant. We also proposed to hold that, to the degree that the district 17 court held that the hospitalists were Defendant’s ostensibleagents as a matter of law, 18 summary judgment on the issue was also in appropriate because a reasonable juror 194 could find that Defendant did not hold out the hospitalists as its agents. 1 In Plaintiffs’ memorandum in opposition, Plaintiffs argue that this Court’s 2 conclusion that a reasonable juror could find that the hospitalists were not Defendant’s 3 employees was erroneous because it was ba sed on an inappropriate legal standard. 4 Plaintiffs assert that the “right to control” test is not the proper test to be applied to 5 determine whether the hospitalists were the employees of Defendant because the 6 hospitalists are professionals. Plaintiffs rely primarily on our Supreme Court’s 7 decision in Celaya v. Hall , 2004-NMSC-005, 135 N.M. 115, 85 P.3d 239, for their 8 assertion that the right to control test does not apply to professionals. However, 9 Celayadid not reject the right to control test , and in fact made use of the test to 10 determine whether the clergyman in thatcase was an employ ee of the sheriff’s 11 department. See id. ¶ 20 (“Applying all the [relevant] factors . . . to [the d]efendant’s 12 job, and in light of the totality of the ci rcumstances, we conclude that at the time of 13 the incident [the d]efendant undoubtedly was an employee of the [d]epartment. 14 Considered in contex t, the [d]epartment exercised sufficient control over [ the 15 d] efendant’s activities in a manner consis tent with the status of employee .” (emphasis 16 added)). Rather than rejecting the right to control test, Celayasimply pointed out that 17 it is a more nuanced and multi -factored analysis than had been applied by this Court 18 on direct appeal. Celayaspecifically relied on the Restatement (Second) of Agency 195 § 220(1) (1958), which is a righ t to control test, in thatit defines an employee, as 1 opposed to an independent contractor, as “a person employed to perform services in 2 the affairs of another and who with respect to the physical conduct in the performance 3 of the services is subject to the other’s control or right to control.” The Restatement 4 provides that in order to determine whether one acting for another is an employee or 5 an independent contractor, a number of factors should be considered, only one of 6 which relates directly to the extent of control over the details of the work. Id. 7 § 220(2). Because Celayaapplied these factors pursuant to the Restatement as part 8 of the Restatement’s right to control test, weare not persuaded that the right to control 9 test is inappropriate fo r professionals. Rather, Celayasimply indicates that the degree 10 and nature of control over an employee will vary depending on the type of work being 11 performed and that a whole range of factor s must be examined, not just whether the 12 employer has the right to control the particular details of the work itself. 13 Generally, “[w]hether the employer exercises sufficient control to be held liable 14 for the acts of the employee is a question of fact that must be submitted to the jury.” 15 Keith v. ManorCare, Inc. , 2009-NMCA-119, ¶ 19, 147 N.M. 209, 218 P.3d 1257, cert. 16 granted , 2009-NMCERT-010, 147 N.M. 452, 224 P.3d 1257; see also Reynolds v. 17 Swigert , 102 N.M. 504, 508, 697 P.2d 504, 508 (Ct. App. 1984) (stating that whether 18 the physician was an employee or an independe nt contractor of a hospital is a question 196 of fact). Although for the most part th e facts about the relationship between the 1 hospitalists and Defendant were not disputed by the parties, we do not believe that the 2 facts led inevitably to the conclusion that the hospitalists were Defendant’s 3 employees, such that the issue could pr operly be decided as a matter of law. See 4 Ovecka v. Burlington N. S.F. Ry. Co. , 2008-NMCA-140, ¶ 9, 145 N.M. 113, 194 P.3d 5 728 (indicating that when material facts are not in dispute an issue properly may be 6 decided as a matter of law “when . . . the undisputed facts lend themselves to only one 7 conclusion”); Marquez v. Gomez , 116 N.M. 626, 631, 866 P. 2d 354, 359 (Ct. App. 8 1991) (“Even if the basic material facts are undisputed, if equally logical, but 9 conflicting, reasonable inferences can bedrawn from these facts, an award of 10 summary judgment is improper.”). Here, there was evidence presented that the 11 hospitalists were hired by a staffing agency, had a contract with the staffing agency, 12 were paid by the staffing agency, and had their schedules set by the staffing agency, 13 and that the contract between the staffing agency and Defendant provided that 14 Defendant could not exercise any control over the manner in which the hospitalists 15 provided their services. We conclude that , based on these facts, a reasonable juror 16 could find that the hospitalists were not employees of Defendant. Therefore, to the 17 degree that the district court’s order is c onstrued to mean that the hospitalists were 18 Defendant’s employees as a matter of law, the ruling was erroneous. 197 In Plaintiffs’ memorandum in opposition, Plai ntiffs argue that the fact that the 1 hospitalists were supplied to Defendant through a contract with a staffing agency is 2 immaterial to the question of whether th e hospitalists were Defendant’s employees. 3 However, Plaintiffs provide no authority that would support this assertion, and we 4 therefore assume that no such authority exists. See In re Adoption of Doe , 100 N.M. 5 764, 765, 676 P.2d 1329, 1330 (1984). As our Supreme Court stated in Celaya , the 6 totality of the circumstances of the relations hip is to be considered in determining 7 whether an employment relationship exists. See 2004-NMSC-005, ¶ 15. The fact that 8 the hospitalists were provide d to Defendant through a staffing agency that hired and 9 paid them is a relevant part of the totality of the circumstances. 10 To the degree that the district court’s or der could be construed to mean that the 11 hospitalists, although not employees of Defe ndant, were its agents under a theory of 12 ostensible authority, such that Defendant could be held vicariously liable for their 13 conduct, we conclude that the district court did not err. This C ourt addressed a similar 14 issue in Houghland . There, the plaintiff sought to hold a hospital liable for the acts 15 of one of its emergency room doctors, who was provided to the hospital through a 16 contract with a staffing agency. 119 N.M. at 423-24, 891 P.2d at 564-65. We 17 considered the theory of the doctor’s “apparent authority” as a basis for imposing 18 liability on the hospital, emphasizing that “[w]e focus on whether to impose liability 198 on [the hospital] for the actions of [the doctor] rather than on the strict legal 1 relationship between [the hospi tal] and [the doctor].” Id. at 426, 891 P.2d at 567. 2 Under a theory of agency by apparentauthority, we “allowed the imposition of 3 liability on hospitals for injuries to patie nts caused by emergency room doctors who 4 ostensibly were agents of the hospital although employed by separate corporations.” 5 Id. 6 In determining whether the emergency room doctors were the apparent agents 7 of the hospital, we looked to “whether [the hospital], through what it represented or 8 failed to represent to the pub lic, may have created the impression that [the doctor] was 9 an agent of [the hospital].” Id. at 427, 891 P.2d at 568. We stated that the primary 10 reason a reasonable juror could conclude that the emergency room doctor was the 11 apparent agent of the hospital was that th e hospital operated a fu ll-service emergency 12 room facility in such a manner that whena doctor provided care in the hospital’s 13 emergency room, the appearance was that it was the hospital providing that care. Id. 14 We contrasted emergency room doctors, w ho a reasonable jury might determine were 15 the apparent agents of a hospital, with other doctors who simply have staff privileges, 16 because unlike those doctors, the hospital wa s using the emergenc y room doctors “to 17 further its own business of providing emerge ncy medical services directly to the 18 public, with the choice of a doctor being c ontrolled by the hospital and not the patient, 199 as contrasted to doctors with staff privilege s using the hospital to further their separate 1 medical practices with thei r own individual patients.” Id. at 429, 891 P.2d at 570. 2 Because the district court in Houghland had granted summary judgment in the 3 hospital’s favor, determining as a matter of law that the hospital could not be held 4 liable for the acts of the emergency room doctors, we reversed. 5 In this case, Plaintiffs put forth evid ence that would permit a reasonable juror 6 to conclude that Defendant’s actions created the appearance thatthe hospitalists were 7 its agents. This included evidence Defendant advertises that it offers a hospitalist 8 service to patients and refers to the hos pitalists as “our hospitalist team,” the 9 hospitalist program is funded by Defendant, the hospitalists wear a badge with 10 Defendant’s name on it and submit all paperwork on Defe ndant’s forms, patients do 11 not have a choice about whic h hospitalist will manage thei r care, and patients see the 12 hospitalists only while in the hospital and are not the patients of the hospitalists’ own 13 clinical practice since the hospitalists have no practice outside of their work for 14 Defendant. Having made a prima facie s howing that they were entitled to summary 15 judgment on the issue of apparent authority, the burden fell on Defendant to come 16 forward and show that a genuine i ssue of material fact existed. See Oschwald v. 17 Christie , 95 N.M. 251, 253, 620 P.2d 1276, 1278 (1980). 18 In response to Plaintiffs’ motion, Defe ndant put forth evidence that Defendant 1910 made use of consent forms that specificallystate that physicians on Defendant’s staff 1 are not employees or agents of the hospital, but are independent contractors. In our 2 notice of proposed summary disposition, we proposed to hold that this evidence was 3 sufficient to create a genuine dispute about the issue of materialfact of whether 4 Defendant’s representations to the public created an impression that the hospitalists 5 were its agents under a theory of ostensib le or apparent authority. Having reviewed 6 those forms anew, we now conclude that th ey are insufficient to justify our proposed 7 disposition. 8 A number of the forms date back to th e 1990s and are entirely unrelated to the 9 care that gave rise to the harms Ms. Martinez suffered. These forms are immaterial. 10 Defendant directs us to an additional fo rm signed by Ms. Martinez in May 2004, but 11 this was seven months prior to the admi ssion date and treatment period during which 12 Ms. Martinez was harmed. In our view, the May 2004 form, like the forms from the 13 1990s, is immaterial and does not bear on whether the hospitalists who treated Ms. 14 Martinez in December 2004 were or were not Defendant’s agents under a theory of 15 apparent authority. We conclude that the consent forms c ited by Defendant do not 16 create a genuine issue of materi al fact as to the issue of apparent authority. As such, 17 we affirm the district court to the extentit concluded that the hospitalists, although not 18 employees of Defendant, were its agents under a theory of ostensible authority. 1911 Summary Judgment on the Issue of Causation 1 Defendant contends that the district court erred in granting summary judgment 2 on the issue of whether Dr. Pardue’s ne gligence was a cause of Ms. Martinez’s 3 injuries in this case. Under New Mexico law, an act is a cause of an injury if it 4 contributes to bringing about the injury, and the injury would not have occurred 5 without it. See UJI 13-305 NMRA. The act need not be the only explanation for the 6 injury, nor the reason that is nearest in time or place. Id. It is sufficient if the act 7 occurs in combination with some other cause to produce the result. Id . However, to 8 be a cause, the act must be reasonably connect ed as a “significant link” to the injury. 9 Id. 10 Viewing the evidence in the light most favorable to support a trial on the merits, 11 the evidence did not warrant a conclusion as a matter of law that Dr. Pardue’s 12 negligence was not a cause of the injury to Ms. Martinez, since a reasonable juror 13 could find that Ms. Martinez’s injury from the Ativan overdose would not have 14 occurred if Dr. Pardue had not negligently stated that Ms. Martinez was, at the time 15 of her hospitalization, taking a lot of Ativan for anxiety. See UJI 13-305. The 16 evidence submitted by the parties from whic h a reasonable juror could reach this 17 determination included Dr. Dickinson’s order that Ms. Martinez be given Ativan 18 under the ETOH protocol “for benzo withdr awal” from which a reasonable juror could 1912 conclude that Dr. Dickinson ordered the protocol because he believed that Ms. 1 Martinez was withdrawing from Ativan, as well as Dr. Dickinson’s deposition 2 testimony that the misinformation he receive d from Dr. Pardue’s preoperative history 3 notes was one factor in his decision to order the protocol. Indeed, Plaintiffs own 4 expert summarized the foregoing succinctly. 5 So, I believe that the amount of A tivan that was given in terms of 6 the protocol was likely—was—that decision of what those dosages 7 would be was likely informed by the f act that there was a belief that the 8 patient actually did have a benz odiazepine—had used benzodiazepines 9 in the past, and I believe that the am ount of Ativan that was given to her 10 is directly—directly has caused many of the events that followed that 11 were the cause of the i ssues that we’re discussi ng, of her anoxic brain 12 injury. 13 So, in that way, I believe that the lack of reconciling her previous 14 medications at the time of admission did relate to the cause of the 15 damages. 16 Although the nurse who actually administered the protocol testified that he did not 17 know what Dr. Dickinson’s order meant to hi m at the time, the order itself stated that 18 it was for withdrawal from benzodiazepines , and there was medical evidence from 19 which a reasonable juror coul d conclude that a larger dose of Ativan might be 20 administered to someone who was believe d to have used Ativan in the past. 21 Therefore, viewing the eviden ce in the light most favorableto a trial on the merits of 22 the issue, we hold that the district court erred in determining as a matter of law that 23 Dr. Pardue’s negligence was not a cause of Ms. Martinez’s injury. Although the 2413 evidence indicated that Dr. Pardue’s ne gligence was not the only cause of Ms. 1 Martinez’s injury, a reasonable juror could find that Dr. Pardue’s negligence, along 2 with the subsequent negligence of others , combined to cause the injury to Ms. 3 Martinez. See id. 4 In Plaintiffs’ memorandum in opposition, Plaintiffs assert that a juror’s 5 conclusion that Dr. Pardue’s mistake was a cause of the harm to Ms. Martinez would 6 be founded on improper speculation, rather thanfacts. Plaintiffs base this argument, 7 in part, on the evidence about the possible remedy for an A tivan overdose. We are not 8 persuaded. A jury is permitted to draw reasonable inferences from the facts, and the 9 facts, as outlined above, provide an adequate basis for a conclusion that Dr. Pardue’s 10 negligence was one of the causes of the harm atissue in this case, even if the evidence 11 about the remedy is not considered. 12 Therefore, for the reasons stated in this opinion, we reverse the district court’s 13 determination that Dr. Pardue’s negligence was not a cause of Ms. Martinez’s injury. 14 We also reverse the determination that the hospitalists were Defendant’s employees 15 as a matter of law. We affirm, however, the determination that the hospitalists, 16 although not employees of Defendant, were its agents under a theory of ostensible 17 authority. 1814 IT IS SO ORDERED. 1

___________________________________ 2 CELIA FOY CASTILLO, Chief Judge 3 WE CONCUR: 4

__________________________________ 5 MICHAEL D. BUSTAMANTE, Judge 6

__________________________________ 7 CYNTHIA A. FRY, Judge 8