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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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 242 CASTILLO, Judge. 1 Defendant appeals from a judgment entered in favor of Plaintiffs after a jury 2 trial. In this Court’s notice of proposed summary disposition, we proposed to reverse 3 based on the district court’s erroneous grant of partial summary judgment prior to trial 4 on two issues of material fact. Defendant has filed a memorandum in support of our 5 proposed summary disposition and Plainti ffs have filed a memorandum in opposition. 6 We have duly considered the parties’ memoranda. As we are not persuaded by 7 Plaintiffs’ arguments in support of affirmance, we reverse. 8 Summary Judgment on the Issue of Defendant’s Vicarious Liability 9 Defendant contends that the district c ourt erred in granting Plaintiffs’ motion 10 for partial summary judgment on the issue of Defendant’s liability for the acts of the 11 hospitalists. [DS 15] “Summary judgment is appropriate where there are no genuine 12 issues of material fact and the movant is entitled to judgment as a matter of law.” Self 13 v. United Parcel Serv., Inc. , 1998-NMSC-046, ¶ 6, 126 N.M . 396, 970 P.2d 582. The 14 questions of whether there are no genuine i ssues of material fact and whether the 15 movant is entitled to judgment as a matter of law are legal questions that we review 16 de novo. Id. In doing so, however, “[w]e are mi ndful that summary judgment is a 17 drastic remedial tool which demands the exercise of caution in its application, and we 18 review the record in the light most favorable to support a trial on the merits.” 193 Woodhull v. Meinel , 2009-NMCA-015, ¶ 7, 145 N.M . 533, 202 P.3d 126 (filed 2008) 1 (internal quotation marks and citation omitted), cert. denied , 2009-NMCERT-001, 145 2 N.M. 655, 203 P.3d 870. It is only when reasonable minds could not differ as to an 3 issue of material fact that summary judgment is proper. Id. In New Mexico, summary 4 judgment is viewed with disfavor becausea trial on the merits is preferred. See 5 Romero v. Philip Morris, Inc., 2010-NMSC-035, ¶ 8, __ N.M. __, __ P.3d __. 6 In this Court’s notice of proposedsummary disposition, we relied on 7 Houghland v. Grant , 119 N.M. 422, 429, 891 P.2d 563, 570 (Ct. App. 1995), because 8 it is a factually analogous case involving the question of a hospital’s vicarious liability 9 for emergency room doctors who were provided to the hospital by a staffing agency. 10 We proposed to hold that, to the degree the di strict court held that the hospitalists were 11 employees of the hospital as a matter of law, summary judgment on that issue was 12 inappropriate because a reasonable juror coul d conclude that the hospitalists were not 13 employees of Defendant. We also proposed to hold that, to the degree that the district 14 court held that the hospitalists were Defendant’s ostensibleagents as a matter of law, 15 summary judgment on the issue was also in appropriate because a reasonable juror 16 could find that Defendant did not hold out the hospitalists as its agents. 17 In Plaintiffs’ memorandum in opposition, Plaintiffs argue that this Court’s 18 conclusion that a reasonable juror could find that the hospitalists were not Defendant’s 194 employees was erroneous because it was ba sed on an inappropriate legal standard. 1 Plaintiffs assert that the “right to control” test is not the proper test to be applied to 2 determine whether the hospitalists were the employees of Defendant because the 3 hospitalists are professionals. [MIO 14-19] Plaintiffs rely primarily on our Supreme 4 Court’s decision in Celaya v. Hall , 2004-NMSC-005, 135 N.M. 115, 85 P.3d 239, for 5 their assertion that the right to control te st does not apply to professionals. However, 6 Celayadid not reject the right to control test , and in fact made use of the test to 7 determine whether the clergyman in thatcase was an employee of the sheriff’s 8 department. See id. ¶ 20 (“Applying all the [relevant] factors . . . to [the d]efendant’s 9 job, and in light of the totality of the ci rcumstances, we concludethat at the time of 10 the incident [the d]efendant undoubtedly was an employee of the [d]epartment. 11 Considered in context, the [d]epartment exercised sufficient control over [ the 12 d] efendant’s activities in a manner consis tent with the status of employee .” (emphasis 13 added)). Rather than rejecting the right to control test, Celayasimply pointed out that 14 it is a more nuanced and multi -factored analysis than had been applied by this Court 15 on direct appeal. Celayaspecifically relied on the Restatement (Second) of Agency 16 § 220(1) (1958), which is a right to control test, in that it defi nes an employee, as 17 opposed to an independent contractor, as “a person employed to perform services in 18 the affairs of another and w ho with respect to the physi cal conduct in the performance 195 of the services is subject to the other’s control or right to control.” The Restatement 1 provides that in order to determine whether one acting for another is an employee or 2 an independent contractor, a number of factors should be considered, only one of 3 which relates directly to the extent of control over the details of the work. Id. 4 § 220(2). Because Celayaapplied these factors pursuan t to the Restatement as part 5 of the Restatement’s right to control test, weare not persuaded that the right to control 6 test is inappropriate fo r professionals. Rather, Celayasimply indicates that the degree 7 and nature of control over an employee will vary depending on the type of work being 8 performed and that a whole range of factor s must be examined, not just whether the 9 employer has the right to control the particular details of the work itself. 10 Generally, “[w]hether the employer exercise s sufficient control to be held liable 11 for the acts of the employee is a question of fact that must be submitted to the jury.” 12 Keith v. ManorCare, Inc. , 2009-NMCA-119, ¶ 19, 147 N.M. 209, 218 P.3d 1257, cert. 13 granted , 2009-NMCERT-010, 147 N.M. 452, 224 P.3d 1257; see also Reynolds v. 14 Swigert , 102 N.M. 504, 508, 697 P.2d 504, 508 (Ct. App. 1984) (stating that whether 15 the physician was an employee or an independe nt contractor of a hospital is a question 16 of fact). Although for the most part th e facts about the relationship between the 17 hospitalists and Defendant were not disputed by the parties, we do not believe that the 18 facts led inevitably to the conclusion that the hospitalists were Defendant’s 196 employees, such that the issue could pr operly be decided as a matter of law. See 1 Ovecka v. Burlington N. S.F. Ry. Co. , 2008-NMCA-140, ¶ 9, 145 N.M. 113, 194 P.3d 2 728 (indicating that when material facts are not in dispute an issue properly may be 3 decided as a matter of law “when . . . the undisputed facts lend themselves to only one 4 conclusion”); Marquez v. Gomez , 116 N.M. 626, 631, 866 P.2d 354, 359 (Ct. App. 5 1991) (“Even if the basic material fact s are undisputed, if equally logical, but 6 conflicting, reasonable inferences can bedrawn from these facts, an award of 7 summary judgment is improper.”). Here, there was evidence presented that the 8 hospitalists were hired by a staffing agency, had a contract with the staffing agency, 9 were paid by the staffing agency, and had their schedules set by the staffing agency, 10 and that the contract between the staffing agency and Defe ndant provided that 11 Defendant could not exercise any contro l over the manner in which the hospitalists 12 provided their services. [RP 308, 466] Weconclude that, based on these facts, a 13 reasonable juror could find that the hospitalists were not employees of Defendant. 14 Therefore, to the degree that the district c ourt’s order is construed to mean that the 15 hospitalists were Defendant’s employees as a matter of law, the ruling was erroneous. 16 In Plaintiffs’ memorandum in opposition, Plai ntiffs argue that the fact that the 17 hospitalists were supplied to Defendant through a contract with a staffing agency is 18 immaterial to the question of whether th e hospitalists were Defendant’s employees. 197 [MIO 12-13] However, Plaintiffs provi de no authority that would support this 1 assertion, and we therefore assumethat no such authority exists. See In re Adoption 2 of Doe , 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984). As our Supreme Court 3 stated in Celaya , the totality of the circumstances of the relationship is to be 4 considered in determining whether an employment relationship exists. See 5 2004-NMSC-005, ¶ 15. The fact that the hospitalists were pr ovided to Defendant 6 through a staffing agency that hired and paid them is a relevant part of the totality of 7 the circumstances. 8 To the degree that the district court’s or der could be construed to mean that the 9 hospitalists, although not employees of Defe ndant, were its agents under a theory of 10 ostensible authority, such that Defendant could be held vicariously liable for their 11 conduct, we also conclude that the districtcourt erred in making this determination as 12 a matter of law. This Court addressed a similar issue in Houghland . There, the 13 plaintiff sought to hold a hospital liable for the acts of one of its emergency room 14 doctors, who was provided to the hospital through a contract with a staffing agency. 15 119 N.M. at 423-24, 891 P.2d at 564-65. We considered the theory of the doctor’s 16 “apparent authority” as a basis for imposi ng liability on the hospital, emphasizing that 17 “[w]e focus on whether to impose liability on [the hospital] for the actions of [the 18 doctor] rather than on the strict legal re lationship between [the hospital] and [the 198 doctor].” Id. at 426, 891 P.2d at 567. Under a theo ry of agency by apparent authority, 1 we “allowed the imposition of liability on hosp itals for injuries to patients caused by 2 emergency room doctors who ostensibly were agents of the hospital although 3 employed by separate corporations.” Id. 4 In determining whether the emergency room doctors were the apparent agents 5 of the hospital, we looked to “whether [the hospital], through what it represented or 6 failed to represent to the pub lic, may have created the impression that [the doctor] was 7 an agent of [the hospital].” Id. at 427, 891 P.2d at 568. We stated that the primary 8 reason a reasonable juror could conclude that the emergency room doctor was the 9 apparent agent of the hospital was that th e hospital operated a full-service emergency 10 room facility in such a manner that whena doctor provided care in the hospital’s 11 emergency room, the appearan ce was that it was the hosp ital providing that care. Id. 12 We contrasted emergency room doctors, w ho a reasonable jury might determine were 13 the apparent agents of a hosp ital, with other doctors who simply have staff privileges, 14 because unlike those doctors, the hospital was using the emergency room doctors “to 15 further its own business of providing emerge ncy medical services directly to the 16 public, with the choice of a doctor being c ontrolled by the hospital and not the patient, 17 as contrasted to doctors withstaff privileges using the hosp ital to further their separate 18 medical practices with their own individual patients.” Id. at 429, 891 P.2d at 570. 199 Because the district court in Houghland had granted summary judgment in the 1 hospital’s favor, determining as a matter of law that the hospital could not be held 2 liable for the acts of the emergency room doctors, we reversed. 3 In this case, Plaintiffs put forth evid ence that would permit a reasonable juror 4 to conclude that Defendant’s actions created the appearance thatthe hospitalists were 5 its agents, including evidence that Defendant advertises that it offers a hospitalist 6 service to patients and refers to the hos pitalists as “our hospitalist team,” the 7 hospitalist program is funded by Defendant , the hospitalists wear a badge with 8 Defendant’s name on it and submit all paperwork on Defe ndant’s forms, patients do 9 not have a choice about which hospitalist w ill manage their care, and patients see the 10 hospitalists only while in the hospital and are not the patients of the hospitalists’ own 11 clinical practice since the hospitalists have no practice outside of their work for 12 Defendant. [RP 160-63] In response to Plaintiffs’ motion, Defendant put forth 13 evidence that Defendant madeuse of consent forms th at specifically state that 14 physicians on Defendant’s staff are not employ ees or agents of the hospital, but are 15 independent contractors. [RP 307] 16 In our notice of proposed summary disposition, we proposed to hold that the 17 evidence of the forms stating that staff physicians are not Defendant’s agents was 18 sufficient to create a dispute about the issu e of material fact of whether Defendant’s 1910 representations to the public created an impression that the hospitalists were its agents. 1 As Defendant states in its memorandum in support, courts in other jurisdictions have 2 held that such forms may prevent a hosp ital from being held liable under a theory of 3 apparent agency for the acts of physicians working in the hospital. [MIS 8] 4 Defendant, in its opposition to summary judgment, pointed out that Ms. Martinez had 5 signed consents with the language regardi ng the independent contractor status of 6 physicians—the earliest was in 1990, and th e last was signed when she was admitted 7 for an EKG in May 2004, seven months beforeher surgery. Plaintiffs argued, and we 8 agree, that the particular consent form s offered by Defendant were not signed by 9 Plaintiffs at the time of Lillian Martinez’s admission to the hospital in this case in 10 December 2004. [RP 371] While the consent forms signed in the 1990s may be viewed 11 as not timely enough to consider , we believe that the cons ent form signed in May 2004 is 12 sufficiently current to create a question of f act as to the issue of apparent authority. 13 In Plaintiffs’ memorandum in opposition, Pl aintiffs argue that the consent form 14 does not raise a question of material factabout the hospitalists’ apparent agency 15 because the form refers to other staff physicians who have th eir own patients with 16 whom they already have a physician-patient relationship outside of the context of the 17 patient’s current hospitalization. [MIO 25] We do not believe that the form is as 18 unambiguous as Plaintiffs claim. While a ju ry might ultimately agree with Plaintiffs’ 1911 interpretation, there is nothing in the language of the form its elf that indicates that the 1 physicians referred to are only those w ho have formed their physician-patient 2 relationships prior to the patient’s current hospitalization. Instead, we believe the 3 form could be read to refer to any physic ian working in the hos pital, since once a 4 physician begins to treat someone, that person becomes their patient. Accordingly, 5 the form could be read to inform patients w ho are treated at the hos pital that all of the 6 hospital’s physicians are independent contract ors. Therefore, we conclude that a 7 reasonable juror could determine that Defe ndant did not hold out the hospitalists as 8 its agents and that the district court erre d in granting summary judgment on this issue. 9 Summary Judgment on the Issue of Causation 10 Defendant contends that the district court erred in granting summary judgment 11 on the issue of whether Dr. Pardue’s ne gligence was a cause of Ms. Martinez’s 12 injuries in this case. [DS 20] Under New Mexico law, an act is a cause of an injury 13 if it contributes to bringing about the inju ry, and the injury would not have occurred 14 without it. See UJI 13-305 NMRA. The act need not be the only explanation for the 15 injury, nor the reason that is nearest in time or place. Id. It is sufficient if the act 16 occurs in combination with some other cause to produce the result. Id . However, to 17 be a cause, the act must be reasonably connect ed as a “significant link” to the injury. 18 Id. 1912 Viewing the evidence in the light most favorable to support a trial on the merits, 1 the evidence did not warrant a conclusion as a matter of law that Dr. Pardue’s 2 negligence was not a cause of the injury to Ms. Martinez, since a reasonable juror 3 could find that Ms. Martinez’s injury from the Ativan overdose would not have 4 occurred if Dr. Pardue had not negligently stated that Ms. Martinez was, at the time 5 of her hospitalization, taking a lot of Ativan for anxiety. See UJI 13-305. The 6 evidence submitted by the parties from whic h a reasonable juror could reach this 7 determination included Dr. Dickinson’s order that Ms. Martinez be given Ativan 8 under the ETOH protocol “for benzo withdrawal,” from which a reasonable juror 9 could conclude that Dr. Dickinson ordered the protocol because he believed that Ms. 10 Martinez was withdrawing from Ativan, as well as Dr. Dickinson’s deposition 11 testimony that the misinformation he receive d from Dr. Pardue’s preoperative history 12 notes was one factor in his decision to order the protocol. [RP 1122, 1216] Although 13 the nurse who actually administered the prot ocol testified that he did not know what 14 Dr. Dickinson’s order meant to him at the time, the order itself stated that it was for 15 withdrawal from benzodiazepines, and th ere was medical evidence from which a 16 reasonable juror could conclude that a largerdose of Ativan might be administered to 17 someone who was believed to have used A tivan in the past. [RP 1222] Therefore, 18 viewing the evidence in the li ght most favorable to a trial on the merits of the issue, 1913 we hold that the district court erred in determining as a matter of law that Dr. Pardue’s 1 negligence was not a cause of Ms. Martin ez’s injury. Although the evidence indicated 2 that Dr. Pardue’s negligence was not th e only cause of Ms. Martinez’s injury, a 3 reasonable juror could find that Dr. Pardue ’s negligence, along with the subsequent 4 negligence of others, combined to cau se the injury to Ms. Martinez. See id. 5 In Plaintiffs’ memorandum in opposition, Plaintiffs assert that a juror’s 6 conclusion that Dr. Pardue’s mistake was a cause of the harm to Ms. Martinez would 7 be founded on improper speculation, rather thanfacts. [MIO 28-33] Plaintiffs base 8 this argument, in part, on the eviden ce about the possible remedy for an Ativan 9 overdose. [MIO 31-32] We are not persuaded. A jury is permitted to draw 10 reasonable inferences from the facts, and the facts, as outlined above, provide an 11 adequate basis for a conclusi on that Dr. Pardue’s neglig ence was one of the causes of 12 the harm at issue in this cas e, even if the evidence about the remedy is not considered. 13 Therefore, for the reasons stated in this opinion and in our notice of proposed 14 summary disposition, we reverse. 15 IT IS SO ORDERED. 16

___________________________________ 17 CELIA FOY CASTILLO, Judge 18 WE CONCUR: 1914 __________________________________ 1 CYNTHIA A. FRY, Chief Judge 2

__________________________________ 3 MICHAEL D. BUSTAMANTE, Judge 4