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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 JENNY GONZALES, 8 Plaintiff-Appellant, 9

v. NO. 30,015 10 CARLOS CADENA, D.P.M., P.C. and 11 JUAN GONZALES, 12 Defendants-Appellees. 13 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 14 Jerald A. Valentine, District Judge 15 Jenny Gonzales 16 Las Cruces, NM 17 for Appellant 18 Sandenaw Law Firm PC 19 Caralyn Banks 20 Las Cruces, NM 21 for Appellees 22

MEMORANDUM OPINION 23 BUSTAMANTE, Judge. 242 Plaintiff appeals pro se from the district court’s order granting summary 1 judgment in favor of Defendants on Plainti ff’s medical malpractice suit. We proposed 2 to affirm in a notice of proposed summary disposition, and Plaintiff has filed a timely 3 memorandum in opposition. Remaining unpersuaded by Plaintiff’s memorandum, we 4 affirm. 5 “Summary judgment is proper if there are no genuine issues of material fact and 6 the movant is entitled to judgm ent as a matter of law.” Roth v. Thompson , 113 N.M. 7 331, 334, 825 P.2d 1241, 1244 (1992). The court must resolve all reasonable 8 inferences in favor of the nonmovant a nd must view the pleadings, affidavits, 9 depositions, answers to interrogatories and ad missions in a light most favorable to a 10 trial on the merits. See Carrillo v. Rostro , 114 N.M. 607, 615, 845 P.2d 130, 138 11 (1992). Although all reasonable inferences are resolved in favor of the nonmovant, 12 once the movant makes a prima facie showing that he is entitled to summary 13 judgment, “the burden shifts to the party opposing the motion to demonstrate the 14 existence of specific evidentiary facts wh ich would require trial on the merits.” Roth , 15 113 N.M. at 334-35, 825 P.2d at 1244-45 (citation omitted). The party opposing 16 summary judgment “cannot rely on the allegations contained in its complaint or upon 17 the argument or contention of counsel to defeat it. Rather, the opponent must come 18 forward and establish with admissible eviden ce that a genuine issue of fact exists.” 193 Ciup v. Chevron U.S.A., Inc. , 1996-NMSC-062, ¶ 7, 122 N.M. 537, 928 P.2d 263 1 (citation omitted). 2 As discussed in our notice of proposed summary disposition, to prevail on her 3 medical malpractice claim, Plaintiff was re quired to establish that “(1) the defendant 4 owed the plaintiff a duty recognized by law; (2) the defendant breached the duty by 5 departing from the proper standard of medi cal practice recognized in the community; 6 and (3) the acts or omissions complainedof proximately caused the plaintiff’s 7 injuries.” Blauwkamp v. Univ. of N.M. Hosp. , 114 N.M. 228, 231, 836 P.2d 1249, 8 1252 (Ct. App. 1992). Generally, an expert is require d to establish both a deviation 9 from the standard of care and causation, a nd a defendant can make a prima facie case 10 for summary judgment by demonstrating th at the plaintiff ca nnot establish the 11 elements of malpractice without such an expert. See id. at 232, 836 P.2d at 1253. 12 Plaintiff’s claim against Defendants is based on Defendants’ allegedly negligent 13 act of spilling chemicals on Plaintiff’s foot while removing an ingrown toenail. [RP 14 16, 40] Plaintiff contends that Defendant s’ actions caused a chemical burn resulting 15 in damages. [RP 16] 16 Defendants moved for summary judgment, attaching an affidavit from Dr. 17 Cadena stating that neither he nor his a ssistant breached the standard of care in 18 treating Plaintiff. [RP 40, 50-57] It appear s that they attached portions of Plaintiff’s 194 medical records showing that the burn occu rred on July 3, 2007, but was treated and 1 resolved by August 15, 2007. [RP 40-48] The medical records indicate that the 2 chemical was necessary in order to kill the r oot of the ingrown nail, and that Plaintiff 3 suffered a chemical burn because her feet are numb due to diabetes and she was 4 unable to feel the chemical on her foot. [R P 40] The records also suggest that the 5 risks of the procedure were explained to Plaintiff and she consented. [RP 42] 6 The district court informed Plaintiff that she needed to show with expert 7 testimony that there was a genuine issue of material fact that Defendants breached the 8 standard of care and that this breach caused Plaintiff’s injuries. [RP 95] Plaintiff’s 9 response to Defendants’ motion for summary judgment outlined the pain and suffering 10 she allegedly experienced due to Defendants’ actions. [RP 112] She attached 11 progress notes from another physician dated February 2008, but those notes indicate 12 that the burn had healed well and that any remaining limitations could resolve with 13 exercise. [RP 114] Plaintiff attached someadditional medical records, but she failed 14 to include any affidavits or other materi als supporting her contention that Defendants 15 breached the applicable standard of care in treating her ingrown toenail. [RP 115-124] 16 Based upon the materials in the record, we proposed to affirm the district 17 court’s order granting summary judgment to Defendants due to Plaintiff’s failure to 18 rebut their prima facie case. [RP 125] We opined that the average jury would know 195 little to nothing about any risks inherent inperforming an ingrown toe nail extraction 1 on someone with diabetes or the standard of care for a podiatrist performing such an 2 extraction. Therefore, expe rt testimony was required. See Lopez v. Southwest Cmty. 3 Health Servs ., 114 N.M. 2, 7, 833 P.2d 1183, 1188 (Ct. App. 1992) (holding that “[i]n 4 a medical malpractice case, because of th e technical and specialized subject matter, 5 expert medical testimony is usually requi red to establish departure from recognized 6 standards in the community”); Schmidt v. St. Joseph’s Hosp. , 105 N.M. 681, 684, 736 7 P.2d 135, 138 (Ct. App. 1987) (“In a malpractice action, expert testimony is generally 8 required to support a claim of negligence.”). 9 In her memorandum in opposition, Plainti ff contends that she suffered due to 10 the burn on her foot. [MIO 2] We also understand her to contend that Dr. Cadena’s 11 affidavit and the medical records are suffici ent to establish a material issue as to 12 whether Defendants violated the appropriate standard of care in treating her. [MIO 13 2] We disagree. As previously discusse d, Dr. Cadena’s affidav it establishes a prima 14 facie case the Defendants did not violate the appropriate standard of care in treating 15 Plaintiff. Plaintiff failed to submit any affidavits or other materials to rebut 16 Defendants’ prima facie case and, specifi cally, she failed to introduce any expert 17 testimony establishing that Defendants violated the standard of care. See Patterson 18 v. Van Wiel , 91 N.M. 100, 106, 570 P.2d 931, 937 (C t. App. 1977) (observing that 196 expert testimony is needed to guide a jury if “[m]embers of an average jury would 1 know little or nothing about th[e] activity”). Because Plaintiff failed to demonstrate 2 that an expert could testify favorably on the question of th e relevant standard of care 3 and whether any failure to meet that st andard of care caused her any compensable 4 harm, she failed to rebut De fendants’ prima facie showi ng and therefore, Defendants 5 were entitled to summary judgment. 6 Conclusion 7 For the foregoing reasons as well as those set forth in our notice of proposed 8 disposition, we affirm the district c ourt’s order granting summary judgment to 9 Defendants’ on Plaintiff’s medical malpractice claim. 10 IT IS SO ORDERED

. 11

12 MICHAEL D. BUSTAMANTE, Judge 13 WE CONCUR: 14

15 RODERICK T. KENNEDY, Judge 16

17 TIMOTHY L. GARCIA, Judge 18