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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: ___________

Filing Date: June 4, 2013

Docket No. 30,307

MICHAEL SALOPEK,

Plaintiff-Appellee/Cross-Appellant,

v.

DAVID J. FRIEDMAN, M.D.,

Defendant-Appellant/Cross-Appellee.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY

Jerald A. Valentine, District Judge

The Perrin Law Firm

Doug Perrin

Santa Fe, NM

for Appellee

Kemp Smith LLP

CaraLyn Banks

Las Cruces, NM

for Appellant

OPINION

KENNEDY, Chief Judge.

{1} David J. Friedman, M.D. (Defendant) appeals from a $600,000 judgment against him

for medical malpractice on three grounds: (1) the district court failed to properly instruct the

jury on the scope of Defendant’s duty to Michael Salopek (Plaintiff), (2) the district court

gave incorrect “eggshell plaintiff” damages instructions, and (3) the district court erred in

failing to order a new trial or remittitur. Plaintiff cross-appeals, contending that the statutory

cap on damages in Section 41-5-6 of the Medical Malpractice Act (Act), NMSA 1978, §§

41-5-1 to -29 (1976, as amended through 2008), is unconstitutional. We affirm.
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I. BACKGROUND

{2} Plaintiff has familial adenomatous polyposis (polyposis), which is an inherited

disorder characterized by the development of numerous polyps in the colon, which readily

leads to colon cancer. Due to this condition, Plaintiff biannually underwent colonoscopies

to remove polyps and evaluate the progression of his condition. On February 16, 2005,

Plaintiff returned home from a routine colonoscopy with increasingly sharp abdominal pain

and a fever. The following day Plaintiff went to the emergency room where he was attended

to by Defendant, who, after evaluating the results of a CAT scan, stated that there appeared

to be a perforation in Plaintiff’s colon. The perforation appeared to have been caused by the

colonoscopist puncturing Plaintiff’s colon while removing a polyp with hot forceps during

his colonoscopy.

{3} On February 17, 2005, to find and mend the perforation in Plaintiff’s colon,

Defendant performed a laparotomy, an exploratory abdominal surgery. Defendant

“anticipated that if found, the perforation[] could be closed with a suture[.]” Defendant did

not locate the perforation at this juncture. Evidence indicated that this failure occurred

because Defendant did not pressurize the colon with air during the laparotomy, a procedure

which would have revealed the perforation. Testimony at trial established that a wellqualified surgeon, practicing under similar circumstances, would have pressurized the colon

to locate the perforation. Eleven days after this failed attempt to locate the perforation,

Defendant again operated on Plaintiff to find and fix the perforation. By this time, the

perforation had enlarged because the injured colon tissue began to disintegrate. During this

second surgery, Defendant used dye to pressurize the colon and locate the perforation.

Defendant then removed the part of the colon where the perforation was located and created

a colostomy to allow the colon to heal. The colostomy redirected Plaintiff’s colon through

his abdominal wall, so that stool would drain out of his body through his abdomen and into

a colostomy bag that adhered to his skin.

{4} Shortly thereafter, Plaintiff terminated his doctor-patient relationship with Defendant.

Plaintiff sought treatment from Dr. William Abbott to perform a take-down of the colostomy,

which would reconnect the severed parts of his intestines. Because of Plaintiff’s polyposis

condition, performing a colostomy take-down that reattached his colon created additional

concerns for his health. Due to these additional concerns, Plaintiff chose to have a

restorative proctocolectomy that would remove the colon and attach the small intestine to

the anus. Plaintiff suffered complications from the restorative proctocolectomy and,

ultimately, had to have thirteen surgeries in total. Due to complications, Plaintiff’s small

intestine was not successfully permanently connected to his anus. As a result, his small

intestine was yet again rerouted through his abdominal wall, so that waste could drain from

his body through his abdominal wall into an ileostomy bag attached to his abdomen. At the

time of trial, Plaintiff was still in this condition and stated that he did not anticipate living

without an ileostomy bag in the future.

{5} Plaintiff sued Defendant for malpractice, claiming that Defendant was negligent in
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failing to use the proper techniques and find the perforation during the initial laparotomy.

The jury found Defendant negligent and awarded Plaintiff $1,000,000. The district court

reduced the award to $600,000, pursuant to the cap on damages contained in Section 41-5-6

of the Act. These appeals followed.

II. DISCUSSION

A. The District Court Properly Denied Defendant’s Motion Regarding Duty

{6} Defendant argues that the district court erred in denying his motion for judgment as

a matter of law. Defendant contends that, by denying his motion, the district court

“expanded the duty of physicians beyond that recognized under New Mexico law.”

[D]uty . . . is for the court alone to define. Before the jury can resolve any

factual matter, . . . the court must first frame the relevant law. In a

negligence action, this means the court must first find an actionable duty of

care and then define the nature and scope of that duty.

Provencio v. Wenrich, 2011-NMSC-036, ¶ 16, 150 N.M. 457, 261 P.3d 1089. 

{7} It is well established that “a doctor owes a general duty to provide competent care

in treating a patient’s medical condition.” Id. ¶ 27. The duty of care required of a doctor to

a patient is set forth in UJI 13-1101 NMRA, which was applied at trial in this case and

states:

In [treating, operating upon, making a diagnosis of, or caring for] a

patient, [the doctor] is under the duty to possess and apply the knowledge and

to use the skill and care ordinarily used by reasonably well-qualified

[doctors] . . . practicing under similar circumstances, giving due

consideration to the locality involved.

{8} As Defendant argues, we reference “the specific circumstances actually presented”

to determine whether a duty exists with reference to a foreseeable plaintiff with foreseeable

harm. Romero v. Giant Stop-N-Go of N.M., Inc., 2009-NMCA-059, ¶ 9, 146 N.M. 520, 212

P.3d 408. In the context of duty, “[f]oreseeability is what one might objectively and

reasonably expect, not merely what might conceivably occur.” Johnstone v. City of

Albuquerque, 2006-NMCA-119, ¶ 8, 140 N.M. 596, 145 P.3d 76 (internal quotation marks

and citation omitted); see Chavez v. Desert Eagle Distrib. Co. of N.M., LLC,

2007-NMCA-018, ¶ 17, 141 N.M. 116, 151 P.3d 77 (“The risk must be actual and

perceptible, not speculative.” (internal quotation marks and citation omitted)). Thus, we

frame the question of duty in this case to be whether a well-qualified doctor in New Mexico,

who knows his patient likely has a punctured colon and fails to pressurize his patient’s colon

during a laparotomy, should foresee that he would fail to find the perforation during the

laparotomy and that complications related to a corrective procedure would arise as a result
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of this failure.

{9} Defendant argues that “[t]here is no basis to support the [d]istrict [c]ourt’s decision

that Defendant owed a duty to Plaintiff related to prospective elective procedures given the

circumstances present in this case.” Defendant explains that he “could not objectively and

reasonably expect that his purported failure to find a perforation in Plaintiff’s colon during

surgery . . . [would] result in Plaintiff suffering complications [from a later] elective

procedure.” Defendant concludes that he had “no duty [to Plaintiff for Plaintiff’s later

complications] given his inability to control the subsequent treatment provided to Plaintiff

. . . after the [doctor-patient relationship] was terminated.” Defendant argues that he “was

therefore not liable for Plaintiff’s decision to have the [restorative proctocolectomy]

procedure in November 2005 or the resulting complications from that procedure.”

{10} We disagree with Defendant and conclude that he should have foreseen that Plaintiff

would suffer these particular harms when Defendant failed to pressurize Plaintiff’s colon

during the laparotomy. At trial, expert testimony indicated that Defendant would have

discovered the perforation during the first surgery if he had pressurized the colon. In

addition, evidence demonstrated that if the perforation was located in the first surgery,

Defendant would have been able to mend it with sutures. Because Defendant waited eleven

days, the injured colon tissue began to disintegrate, and the affected part of the colon now

required removal rather than a few stitches. In addition, Defendant knew Plaintiff had preexisting hereditary polyposis and that Plaintiff would require additional surgery to take down

the colostomy that Defendant unnecessarily created. We conclude that removal of a section

of Plaintiff’s colon, a colostomy, and additional surgery were foreseeable harms that Plaintiff

would suffer when Defendant did not pressurize the colon and, thereby, failed to locate the

puncture during the first surgery.

{11} After the colostomy, Plaintiff had several options, including a take-down of the

colostomy and reattaching of the colon, or a restorative proctocolectomy (removing the

colon and attaching the small intestine to the anus). The heart of Defendant’s argument is

that the restorative proctocolectomy was an elective procedure unrelated to the colostomy

and that he could not expect complications to occur during the restorative proctocolectomy

due to Plaintiff’s anatomy. We disagree and conclude that the restorative proctocolectomy

was related to the colostomy, in that it was among several reasonable options presented to

Plaintiff to reverse the colostomy and restore Plaintiff’s bowels to a more normal function.

Plaintiff’s expert, a physician and surgeon, testified that it was foreseeable that a restorative

proctocolectomy would be an option for Plaintiff following a colostomy because of his

polyposis condition. If Defendant had pressurized the colon during the first surgery and

discovered the perforation, Plaintiff would not have been prematurely presented with the

decision of whether to have a proctocolectomy.

{12} Both Plaintiff and Dr. Abbott appeared to believe that the colostomy take-down

would not have been a good solution, given that Plaintiff’s polyposis condition would

require that he have a colonoscopy every six months, and he had already suffered a
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punctured colon from a colonoscopy, which caused Plaintiff grave apprehension about ever

having another one. A corrective procedure, as well as complications from that surgery,

which are not the result of another doctor’s negligence, were foreseeable outcomes of a

colostomy for Plaintiff. Furthermore, Plaintiff was not required to choose a colostomy takedown and reattachment of the colon over the proctocolectomy simply because it might have

had the potential to limit Defendant’s liability.

{13} We conclude that simply by operating on Plaintiff, Defendant had a duty to act as a

reasonably well-qualified doctor during the surgery. Evidence established that a reasonably

well-qualified doctor would have pressurized the colon to locate the perforation. A

reasonably well-qualified doctor would objectively and reasonably expect that his failure to

do so would result in a patient with polyposis undergoing a colostomy and, subsequently,

a restorative proctocolectomy. This doctor would also expect the patient to experience any

of the array of possible complications associated with these procedures.

{14} In addition, we are unpersuaded by Defendant’s argument that we should conclude

that there is no duty because this case is like Estate of Haar v. Ulwelling, 2007-NMCA-032,

141 N.M. 252, 154 P.3d 67. In Estate of Haar, this Court held that the defendant psychiatrist

did not owe a duty of care to a potentially suicidal patient after the patient terminated the

doctor-patient relationship with the defendant and started a new doctor-patient relationship

with another physician. Id. ¶¶ 25-29. Defendant’s reliance on this case is misplaced. In

Estate of Haar, the alleged negligent acts, which included the doctor’s failure to

“affirmatively monitor [the patient’s] medication, enhance [the patient’s] compliance with

treatment, and schedule follow-up appointments[,]” all occurred after the patient terminated

the relationship with the doctor. Id. ¶ 25. There, we concluded that after the patient made

it clear that he no longer wanted a doctor-patient relationship with the defendant, “it is

unreasonable to place upon [the d]efendant a requirement that he have imposed his views

or treatment recommendations on [the patient] or [the patient’s new treating physicians] for

the purpose of guarding against [the patient’s] suicide.” Id. ¶ 28. Our decision in Estate of

Haar was clearly premised upon the fact that the alleged negligent act occurred after the

doctor-patient relationship ended. Estate of Haar is inapplicable here because, in this case,

the negligent act occurred prior to the termination of the doctor-patient relationship.

{15} We conclude that Defendant had a duty to act as a reasonably well-qualified doctor

toward Plaintiff during the surgery, to use all of the proper procedures, and to protect

Plaintiff against unnecessary complications. All injuries that followed were objectively and

reasonably foreseeable. We thus affirm the district court’s denial of Defendant’s motion for

judgment as a matter of law.

B. The Jury Instruction About Damages Was Proper

{16} “We review jury instructions de novo to determine whether they correctly state the

law and are supported by the evidence introduced at trial.” Benavidez v. City of Gallup,

2007-NMSC-026, ¶ 19, 141 N.M. 808, 161 P.3d 853 (internal quotation marks and citations
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omitted). “A party is entitled to instructions on all of his or her correct legal theories of the

case if there is evidence in the record to support the theories.” Id. “It is not error to deny

requested instructions when the instructions given adequately cover the law to be applied.”

Kirk Co. v. Ashcraft, 101 N.M. 462, 466, 684 P.2d 1127, 1131 (1984). “A civil case will not

be reversed due to error in jury instructions unless the result is fundamentally unjust.”

McNeill v. Burlington Res. Oil & Gas Co., 2007-NMCA-024, ¶ 19, 141 N.M. 212, 153 P.3d

46, aff’d, 2008-NMSC-022, 143 N.M. 740, 182 P.3d 121.

{17} At trial, Plaintiff submitted UJI 13-1802 NMRA to the district court, seeking

recovery of damages under two theories that Defendant’s actions (1) aggravated Plaintiff’s

pre-existing condition; or (2) injured Plaintiff, who may have been unusually susceptible to

injury. The district court concluded that Defendant’s actions did not aggravate Plaintiff’s

pre-existing condition and, consequently, denied the instruction on aggravation of a preexisting condition. Yet, the district court concluded that the latter instruction, also known

as, the “eggshell plaintiff” instruction, was supported by evidence and the theory of

Plaintiff’s case and, thus, presented it to the jury. See UJI 13-1802 cmt. (describing the jury

instruction as the “eggshell plaintiff” instruction). The instruction stated:

Whether any of these elements of damages have been proved by the

evidence is for you to determine. However, damages are to be measured

without regard to the fact Plaintiff may have been unusually susceptible to

injury or likely to be harmed. . . . Defendant is said to “take the Plaintiff as

he finds him,” meaning that . . . Defendant, if liable, is responsible for all

elements of damages caused by . . . Defendant’s conduct even if some of . .

. Plaintiff’s injury arose because . . . Plaintiff was unusually susceptible to

being injured.

{18} Defendant makes two arguments in contending that the district court erred in

permitting the eggshell plaintiff instruction to be submitted to the jury. First, Defendant

contends that Plaintiff does not fit the requirements of an “eggshell plaintiff.” Defendant

argues that either the entire UJI 13-1802 should have been given, or no instruction should

have been given on the matter at all. In making this argument, Defendant states that

“[s]pecifically, the evidence presented at trial established that Plaintiff’s injuries, i.e., pain

and suffering, loss of enjoyment of life etc., resulted from the effect of his anatomical

abnormality (deep narrow pelvis) on Dr. Abbott’s ability to successful[ly] perform the

elective procedure on November 15, 2005 to treat Plaintiff’s inherited disorder.”

{19} Second, Defendant argues in the alternative that error occurred in submitting the

instruction without “a reference to Defendant only being liable for the worsening of

Plaintiff’s cond[ition] and not for elements of damages attributed to Plaintiff’s . . .

polyposis.” Referring to UJI 13-1802, Defendant asserts: 

While the jury instruction on [damages for an] “eggshell” plaintiff describes

the extent of the damages that can be imposed on a defendant, the instruction
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does not relieve a plaintiff of the burden of establishing that the underlying

condition was exacerbated by the negligence of the defendant . . . as opposed

to the underlying condition.

Defendant contends that the court’s failure to do this permitted the jury to impose liability

on him for damages that he did not cause.

{20} We disagree with Defendant and conclude that the jury was properly instructed about

Plaintiff’s status as an “eggshell plaintiff.” The jury instruction defines the “eggshell

plaintiff” as a person “unusually susceptible to injury or likely to be harmed.” UJI 13-1802.

The defendant must “take the plaintiff as he finds [him]” and, therefore, “is responsible for

all elements of damages caused by the defendant’s conduct even if some of the plaintiff’s

injury arose because the plaintiff was unusually susceptible to being injured.” Id. This

means that “the wrongdoer is liable for the proximate results of that injury, although the

consequences are more serious than they would have been, had the injured person been in

perfect health.” Rowe v. Munye, 702 N.W.2d 729, 741 (Minn. 2005) (internal quotation

marks and citation omitted). “The eggshell plaintiff rule . . . applies only when the pain or

disability arguably caused by another condition arises after the injury caused by the

defendant’s fault has lighted up or exacerbated the prior condition.” Sleeth v. Louvar, 659

N.W.2d 210, 212 (Iowa 2003); see Avery v. Ward, 934 S.W.2d 516, 520 (Ark. 1996) (“[A]n

‘eggshell plaintiff’ . . . is[] one who was susceptible to enhanced injury by virtue of an

existing condition.”); Iazzetta v. Nevas, 939 A.2d 617, 619 (Conn. App. Ct. 2008)

(explaining the meaning of an “eggshell plaintiff”).

{21} In this case, Plaintiff had dormant conditions that made him more susceptible to

injuries caused by Defendant’s failure to find the perforation during the first surgery.

Namely, Plaintiff’s polyposis condition complicated his recovery from the colostomy

because the polyposis necessitated a restorative proctocolectomy in order to undo the

colostomy created by Defendant. Plaintiff’s anatomical abnormalities made him more

susceptible to complications with regard to the restorative proctocolectomy. The pain and

disablement that occurred as a result of the restorative proctocolectomy can fairly be viewed

as a proximate result of Defendant’s failure to find the perforation during the first surgery.

The consequences of Defendant’s negligence are certainly more serious than they would

have been with someone who did not possess these conditions. Yet, the additive effect of

Plaintiff’s condition does not lessen Defendant’s liability for his conduct, as the jury was

instructed under UJI 13-1802.

{22} To the extent that Defendant argues that the eggshell plaintiff instruction cannot be

given without the aggravation instruction, we conclude that aggravation and eggshell

instructions are two different theories of liability and can be given separately or together, in

the alternative, as long as each is supported by a factual basis. See Sleeth, 659 N.W.2d at

212-16 (determining whether the trial court properly advised on a theory of aggravation of

the plaintiff’s pre-existing condition as well as the eggshell plaintiff theory); Waits v. United

Fire & Cas. Co., 572 N.W.2d 565, 578 (Iowa 1997) (stating that both instructions can be
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given because the trial court determined that a factual basis supported each). The Iowa

Supreme Court explained:

Whether the eggshell plaintiff rule applies or the aggravation rule applies

depends in the first instance on when the pain or disability for which

compensation is sought arose. Where the prior condition resulted in pain or

disability before the second injury, the tortfeasor is liable only for the

additional pain and disability arising after the second injury. With respect to

any pain or disability arising after the second injury, the tortfeasor is fully

responsible, even though that pain and disability is greater than the injured

person would have suffered in the absence of the prior condition.

Id. at 577-78.

{23} The case before us exemplifies a situation where the eggshell plaintiff instruction,

but not the aggravation instruction, is applicable. Plaintiff had pre-existing

conditions—polyposis and a deep, narrow pelvis. The specific pain and disability for which

Plaintiff sought redress here did not exist before Defendant’s negligent action, despite the

fact that Plaintiff had these conditions. Only after Defendant injured Plaintiff, did Plaintiff

have to endure a proctocolectomy and complications from that surgery. No pre-existing

conditions were aggravated, but Plaintiff’s pre-existing conditions amplified the effect of

Defendant’s actions. The pain and disability occurred after Defendant’s actions and not

before.

{24} At the heart of Defendant’s second argument is the contention that the jury should

distinguish the damages caused by him from the damages caused by Plaintiff’s underlying

conditions. Yet, UJI 13-1802 makes it clear that, although the condition may contribute to

the injury, as long as Defendant’s conduct can be said to have proximately caused the injury,

he will be held liable for the resulting injuries. The eggshell plaintiff theory of liability

prevents the defendant from escaping liability when his conduct precipitates a more severe

injury than a person of normal health would typically suffer. See Gasiorowski v. Hose, 897

P.2d 678, 680 (Ariz. Ct. App. 1994) (holding that the “‘eggshell plaintiff’ instruction [states]

that an accident victim’s predisposing susceptibility does not relieve a negligent actor of

responsibility for whatever injuries his negligence precipitates”); Hoffman v. Schafer, 815

P.2d 971, 972-73 (Colo. App. 1991) (stating that, under the eggshell plaintiff rule, “the jury

[is] not to refuse to award or to reduce the amount of damages it awarded [the] plaintiff

because of ‘any physical frailties of the plaintiff that may have made her more susceptible

to injury, disability, or impairment’”); City of Jackson v. Estate of Stewart ex rel. Womack,

2003-CA-01413-SCT, 908 So. 2d 703, 715 (Miss. 2005) (“It simply provides that plaintiffs

who are far more susceptible to a particular harm than the average person may nonetheless

recover their full damages without reduction.”). Here, there is evidence indicating that both

Defendant’s conduct and the underlying condition resulted in the injuries and not one or the

other exclusively. Thus, this case fits the requirements of the eggshell plaintiff theory, and

we do not apportion damages by attempting to distinguish between how much injury the
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condition caused, and how much injury Defendant caused, as the injury would not have

occurred without his negligence.

{25} In support of his argument, Defendant states that this Court has held that “a defendant

was only liable for the damages the defendant caused, regardless of the plaintiff’s physical

conditioning or lack thereof.” See Thomas v. Henson, 102 N.M. 417, 424, 696 P.2d 1010,

1017 (Ct. App. 1984), aff’d in part, rev’d in part on other grounds by 102 N.M. 326, 695

P.2d 476 (1984). Defendant misapplies our holding in Thomas. In Thomas, passengers, who

were injured in an automobile accident, sued the defendant driver. Id. at 419, 696 P.2d at

1012. The passengers were not wearing their seat belts, and the defendant argued that their

damages should be reduced because of their failure to wear seat belts. Id. at 419-20, 696

P.2d 1012-13. There, we held that, “as part of the continuing duty to exercise reasonable

care for his or her own safety, an occupant of an automobile has a duty to fasten an available

seat belt or similar safety restraint device unless the circumstances dictate otherwise.” Id.

at 424, 696 P.2d at 1017. We concluded that such damages arising out of the plaintiff’s

failure to wear a seat belt “may not be recovered from a defendant because such damages

resulted from [the] plaintiff’s conduct.” Id. We emphasized that “a defendant will still take

the victim as he finds him and be liable for the damages the defendant causes. Where,

however, damages are caused by the plaintiff’s failure to care for his own safety (not his

physical condition), [the] plaintiff may not recover those damages.” Id. Thomas does not

support Defendant’s argument that he is not liable for Plaintiff’s resulting injuries. Rather,

it reiterates our rationale for affirming the district court. Defendant must take Plaintiff as he

found him with his hereditary condition and anatomical abnormalities. Unlike the plaintiffs

in Thomas, no evidence in this case indicates that Plaintiff failed to care for his own safety,

or that the pre-existing condition caused his damages. As explained above, the jury

determined that the damages resulted from Defendant’s negligent act.

{26} Furthermore, to the extent that Defendant argues that the proctocolectomy was an

elective procedure, we agree that Plaintiff can only recover for the injuries caused by

Defendant. At trial, the district court properly instructed the jury that the injuries must be

caused by Defendant’s negligence and not by another source. These instructions fully

inform the jury that Defendant can only be liable for the injuries he actually caused Plaintiff.

We read jury instructions as a whole and, when they fairly present the issues and the

applicable law in light of the evidence presented at trial, they are sufficient. Diversey Corp.

v. Chem-Source Corp., 1998-NMCA-112, ¶ 16, 125 N.M. 748, 965 P.2d 332. The jury

instructions given sufficiently allowed the jury to differentiate between the harm caused by

Defendant, and the harm caused by any other sources.

{27} In arguing that the proctocolectomy was an elective procedure, Defendant seems to

indicate that this was an unnecessary procedure chosen by Plaintiff unrelated to the

colostomy. As explained above, Plaintiff had to make a choice of how to deal with the

colostomy, and the evidence shows that a proctocolectomy was a reasonable choice given

the options facing him. To the extent that Defendant argues the proctocolectomy would have

inevitably occurred due to Plaintiff’s polyposis, we remind Defendant that the only reason
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why Plaintiff underwent such a drastic surgery when he did was because of Defendant’s

negligent conduct. “A tortfeasor is liable for damages suffered by an ‘eggshell’ plaintiff

which are a natural consequence of the accident, even though the plaintiff may inevitably

suffer similar injuries from a pre-existing condition unrelated to the accident.” Sumpter v.

City of Moulton, 519 N.W.2d 427, 434 (Iowa Ct. App. 1994). Even if Plaintiff may have

needed the procedure in the future, he had to undergo the procedure prematurely because of

Defendant’s negligent act. Furthermore, it remains uncertain whether Plaintiff would have

needed the restorative proctocolectomy due to the progression of his polyposis in the future

as that set of events never came to fruition.

{28} In conclusion, the district court properly advised the jury on the eggshell plaintiff

rule. Defendant must take Plaintiff as he found him with his hereditary condition and

anatomical abnormalities and is liable in full for all injuries he proximately caused.

C. The District Court Did Not Err When It Refused to Reduce the Amount of the

Jury Verdict or Grant a New Trial 

{29} When the jury returned a $1,000,000 judgment against Defendant, he moved for a

new trial or remittitur. The district court denied the motion. Defendant contends that the

district court erred by refusing to grant either remedy. “The applicable standard in reviewing

the denial of a motion for a new trial or remittitur is abuse of discretion.” Sandoval v. Baker

Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 13, 146 N.M. 853, 215 P.3d 791. “An

abuse of discretion occurs when a ruling is clearly contrary to the logical conclusions

demanded by the facts and circumstances of the case.” Sims v. Sims, 1996-NMSC-078, ¶ 65,

122 N.M. 618, 930 P.2d 153. “When there exist reasons both supporting and detracting from

a trial court decision, there is no abuse of discretion.” State v. Moreland, 2008-NMSC-031,

¶ 9, 144 N.M. 192, 185 P.3d 363 (internal quotation marks and citation omitted). “Where

the court’s discretion is fact-based, we must look at the facts relied on by the trial court as

a basis for the exercise of its discretion, to determine if these facts are supported by

substantial evidence.” Apodaca v. AAA Gas Co., 2003-NMCA-085, ¶ 60, 134 N.M. 77, 73

P.3d 215 (internal quotation marks and citation omitted).

{30} “In determining whether a jury verdict is excessive, we do not reweigh the evidence

but determine whether the verdict is excessive as a matter of law. The jury’s verdict is

presumed to be correct.” Ennis v. Kmart Corp., 2001-NMCA-068, ¶ 27, 131 N.M. 32, 33

P.3d 32. To rebut this presumption, either of the following tests must be met: “(1) whether

the evidence, viewed in the light most favorable to [the] plaintiff, substantially supports the

award[;] and (2) whether there is an indication of passion, prejudice, partiality, sympathy,

undue influence[,] or a mistaken measure of damages on the part of the fact finder.”

Sandoval, 2009-NMCA-095, ¶ 16 (internal quotation marks and citation omitted); Baxter

v. Gannaway, 113 N.M. 45, 48, 822 P.2d 1128, 1131 (Ct. App. 1991) (“In the absence of an

unmistakable indication of passion or prejudice, a reviewing court will not set aside a jury’s

award of damages unless the amount of the verdict in light of the evidence indicates the jury

was influenced by prejudice, passion, or other improper considerations.”). We will not
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disturb the verdict simply because “a jury’s award is possibly larger than the court would

have given.” Richardson v. Rutherford, 109 N.M. 495, 503, 787 P.2d 414, 422 (1990)

(internal quotation marks and citation omitted). “Only in extreme cases will an award of

damages be found excessive.” Sandoval, 2009-NMCA-095, ¶ 19. In this case, Defendant

argues that both insufficient evidence and improper jury considerations indicate that the jury

verdict was excessive.

1. Evidence Substantially Supports the Award

{31} In addressing this prong of the test, “[t]he proper approach is to examine [the

p]laintiff’s evidence related to damages and determine whether that evidence could justify

the amount of the verdict, or determine whether the verdict amount was grossly out of

proportion to the evidence of [the p]laintiff’s pain and suffering.” Id. ¶ 22. After examining

the evidence, we determine whether any “disproportionality [between the evidence and the

verdict] shocks our conscience.” Id. (footnote omitted). “A jury’s damages award will be

upheld unless it appears that the amount awarded is so grossly out of proportion to the injury

received as to shock the conscience.” Id. ¶ 20 (internal quotation marks and citations

omitted).

{32} Defendant first argues that there was not sufficient evidence to justify the amount of

the award. Defendant’s argument again centers around causation, as he contends that

“Plaintiff’s injury was a result of his dormant medical condition and the procedure

performed on November 2005 for the treatment of his inherited disease.” Defendant states

that “[a]ny future pain and suffering incurred by Plaintiff resulted either from the November

2005 procedure or the progression of his inherited disease.” Defendant concludes that

“[g]iven the evidence regarding the cause of Plaintiff’s injury, the lack of substantial

evidence regarding damages, and the application of incorrect substantive law (duty and jury

instruction) by the [d]istrict [c]ourt, the [d]istrict [c]ourt abused its discretion in not granting

a remittitur or new [t]rial.”

{33} At trial, the jury was instructed that, if it decided in favor of Plaintiff on the question

of liability, it must then determine what amount of money would reasonably and fairly

compensate Plaintiff for any of the following elements of damages:

1. Reasonable value of medical care treatment and services received

which the parties have stipulated cannot exceed $165,000[];

2. Nature, extent[,] and duration of injury;

3. The pain and suffering, including, but not limited to[,] physical

disfigurement, loss of enjoyment of life, between the time of the

injury and present; and

4. Future pain and suffering. 
12

{34} We conclude that, based upon the injury suffered by Plaintiff, there was sufficient

evidence to support the verdict amount based on these factors. Plaintiff testified in extensive

detail about the physical and emotional ramifications of his injury. While recovering after

the first unsuccessful surgery, Plaintiff characterized the pain as “intense” and described

himself as a “very frustrated [and] very hurting human being.” Plaintiff could not walk well,

was in constant pain, and had fevers. Shortly before the second surgery, Plaintiff thought

that he “was losing [his] life.” Immediately following the second surgery, Plaintiff had

complications with his lungs that caused him great discomfort. Over the course of the

twenty days that he was in the hospital for the two surgeries and recovery, Plaintiff lost fifty

pounds.

{35} Moreover, after the second surgery, Plaintiff woke up in severe pain with a

colostomy bag over an open wound through which waste would exit his body. Plaintiff

stated that living with the colostomy bag changed his life, explaining that “[i]t is a whole

different process of using the restroom. It poses a whole series of things you must now

guard. It is quite a big change.” Plaintiff explained that the colostomy bag affected how he

went out in public, slept, and lived. Plaintiff testified that he no longer had any control of

his bowel movements and that this would result in accidents with his colostomy bag filling

up and breaking during the day. He explained that sleeping became very difficult, as he

would “average about two and a half hours of straight sleep and then . . . get up to change

the [colostomy] bag.” He described instances of how the colostomy bag would accidentally

get caught on something and rip, spilling feces wherever he might be at the time. As a result

of the colostomy bag, Plaintiff’s return to work on his family farm was limited. Following

the surgery, he could not travel because he had issues with the colostomy bag leaking.

Plaintiff still deals with these problems today, as his bowels were never restored to normal

function due to complications with the restorative proctocolectomy.

{36} Plaintiff testified about how the colostomy affected his relationship with his wife and

his teenage daughter, who was just starting high school around the time of the surgeries. The

colostomy impacted Plaintiff’s sexual relationship with his wife. Plaintiff stated that he has

felt “so obligated to his wife for helping [him].” Due to the colostomy and his weakness

from the surgery, Plaintiff had trouble taking an active role in his daughter’s life, and he

could not support her at her athletic events the way he used to.

{37} In order to take down the colostomy, Plaintiff underwent surgery from another doctor

that removed the colon and attached the small intestine to the anus. This attempted

proctocolectomy resulted in serious complications because scar tissue developed around his

rectum and impeded the passage of waste through Plaintiff’s body. He described the

experience as “really septic[, a]nd it’s like if you’re having . . . your worst flu that you’re

living with every day. . . . It was very uncomfortable.” Plaintiff testified that when waste

was capable of passing, “it was real urgent, and I had accidents all the time.” Accidents

became common in bed, and he had great difficulty running to the restroom. He felt

humiliated by the experience and going out in public or traveling was very difficult for him,

as he would need to use the restroom at least twenty times per day. Plaintiff concluded that
13

it “was a real low point in [his] life. . . . [He] was very weak, and the pains of it were

horrendous of blockage and gas, and . . . constant . . . internal problem[s].”

{38} After the proctocolectomy, Plaintiff suffered from an abscess as a complication of

the surgery, which required doctors to insert a tube into his side to drain it. Plaintiff stated

that “it was very painful having that tube stuck out of [his] abscess. And [he] was not

allowed to eat. [He] had to eat through an IV.” As a result, he rapidly lost weight during

the three months with the tube.

{39} Because of the complications of the proctocolectomy, Plaintiff returned to having an

ileostomy bag, so that waste could drain out through his abdominal wall into a bag attached

to a stoma. Plaintiff stated that the bag was permanent and that he continued to live with the

same set of problems he described with the colostomy bag. Although now he is more

familiar with it, he still must take precautions to prevent injury to his stoma and to prevent

bag breakage and leaks. He continues to have problems sleeping, as he must wake up in the

middle of the night several times to change his bag. Plaintiff testified that he no longer can

water ski, is limited when it comes to hunting or fishing, and has been forced to make many

life changes. Plaintiff summarized his colostomy and surgical experience with Defendant

as “traumatic,” indicating that it had a lasting effect on him. He explained that “I go on

vacations, and after four or five days I want to be home. I mean, I just can’t explain what

[twenty] days of . . . fighting for your life in the hospital, going through those processes that

I went through. It’s very horrifying. The recovery time was very horrifying.”

{40} The foregoing evidence provides a clear picture of the nature, extent, and duration

of Plaintiff’s injury, his present and future pain and suffering, his physical disfigurement,

and his loss of enjoyment of life. We hold that there is no disproportionality between the

evidence in the verdict that would shock our conscience. We conclude that, in combination

with his $165,000 in medical expenses, the evidence of this severe, disturbing, and farreaching injury substantially supports the jury’s $1,000,000 verdict.

{41} To the extent that Defendant argues that he did not cause the injury, pain, suffering,

disfigurement, or loss of enjoyment of life because they were a product of complications

caused by Plaintiff’s polyposis and abnormally shaped pelvis, we have already addressed

causation. We reiterate that the evidence substantially supports the jury’s finding that

Defendant caused Plaintiff’s initial injury and the resulting damage. To the extent that

Defendant asserts that the “objective evidence” did not support Plaintiff’s assertions that he

lost weight or suffered a great deal of pain, Defendant fails to provide citations to the record

for this proposition. Thus, we do not address this argument. See Santa Fe Exploration Co.

v. Oil Conservation Comm’n, 114 N.M. 103, 108, 835 P.2d 819, 824 (1992) (holding that

where a party fails to cite any portion of the record to support its factual allegation, the Court

need not consider its argument on appeal). We hold that substantial evidence ultimately

supports the verdict.

2. There is No Indication of Passion, Prejudice, Partiality, Sympathy, Undue
14

Influence, or a Mistaken Measure of Damages on the Part of the Fact Finder

{42} Second, Defendant contends that the timing surrounding the return of a verdict by

the jury, coupled with the amount of the judgment, created a suspicion and impression of

juror misconduct and thus tainted the verdict. In this case, jury deliberations began on

August 28, 2009, at 8:30 a.m. At 12:45 p.m., the jury advised the district court that they

were deadlocked six to six. The district court called the jury into open court and reiterated

to the jury that they are the judges of the facts and must deliberate with each other only after

impartial consideration of the evidence. At 4:55 p.m., the jury advised the court that they

were still deadlocked seven to five. The district court then told the jury to “keep us

advised.” At 6:52 p.m., the jury advised that it was still deadlocked seven to five, although

one juror was considering moving. In response, the district court noted that there was no

question posed that the court could answer. At 8:35 p.m., the jury sent the following note

to the judge:

After reviewing the information on the case[,] we are no closer to

reaching the required number of [ten] people to agree. Currently[,] the count

stands at [seven to five] and we have been deliberating for [twelve] hours[.]

At what point[,] do we stop attempting to reach a verdict that [ten] of us can

agree[?] The people are tired, hungry[,] and f[r]ustrated[.] We have only

changed one vote during the [twelve] hours.

The district court and the parties then agreed that the jury should be brought back into the

courtroom, a mistrial declared, and the jury sent home. Shortly thereafter, the bailiff

knocked on the jury room door in order to bring them back to open court, and the jury

advised the bailiff that there had been a change and that they were coming to an agreement.

When the court relayed this news to the parties, Defendant moved for the court to declare

a mistrial and requested that the bailiff question the jury as to what caused the change. The

court denied the motion. Sometime around 9:20 p.m., the jury returned to the courtroom and

rendered a verdict against Defendant in the amount of $1,000,000.

{43} Defendant’s argument with regard to passion, prejudice, partiality, sympathy, undue

influence, or a mistaken measure of damages on the part of the fact finder can be broken into

two contentions. First, Defendant argues that the above-stated facts indicate that the jury did

not have sufficient time to reach a verdict and consider a verdict amount and, thus, the

verdict was unreliable. Second, Defendant contends that the timing supports a conclusion

that there was a quotient verdict. We address each in turn.

{44} Citing Skinner v. Total Petroleum, Inc., 859 F.2d 1439 (10th Cir. 1988) (per curiam),

superceded by statute as stated in Guillory-Wuerz v. Brady, 785 F. Supp. 889 (D. Colo.

1992), Defendant argues that this time line, “particularly beginning with the note the [c]ourt

received at 8:35 p.m. . . . that the jury felt they had an agreement, was sufficient for the

[d]istrict [c]ourt to arrive at a conclusion of impropriety, and grant a new trial.” In Skinner,

the plaintiff sued his employer for wrongful termination and was awarded $3,945.48 by the
15

jury. Id. at 1441-42. The plaintiff moved for a new trial because this amount was only a

small fraction of the damages claimed by the plaintiff. Id. at 1442. The district court denied

the motion, “yet thereafter awarded [the plaintiff] over $40,000[] as compensation for

backpay and lost benefits.” Id. at 1445. The Tenth Circuit Court of Appeals, in holding that

the district court abused its discretion in failing to grant the plaintiff’s motion for a new trial,

evaluated whether the jury verdict was “the result of jury compromise[.]” Id. The court

stated that “a damages award that is grossly inadequate, a close question of liability, and an

odd chronology of jury deliberations are all indicia of a compromise verdict.” Id. at

1445-46. The court concluded that the $3,945.48 represented only a small fraction of the

damages asserted by the plaintiff and that there was no evidence in the record as to why the

jury chose to calculate the damages the way it did. Id. at 1446. The court reasoned the

pattern of jury deliberations was suspect because the jury told the court it could not reach

a unanimous decision shortly before its lunch break and, within two hours after the lunch

break, the jury returned its verdict. Id. The court held that “[t]his, coupled with the fact that

the district court, by awarding substantially greater damages in its Title VII judgment, thus

implicitly concluding that the jury’s backpay award was inadequate, supports our conclusion

that the district court’s denial of [the plaintiff’s] motion for new trial was an abuse of

discretion.” Id. In concluding that all three indicia were present in the case, the Tenth

Circuit reversed. Id.

{45} First, Skinner is not binding on this Court and, more importantly, is not on point or

persuasive because it engages in a juror compromise analysis not relevant to the case at bar.

The reversal of the jury award in Skinner is based upon several factors, only one of which

is the chronology of events associated with the jury verdict. Unlike Skinner, we are not

evaluating the jury verdict in this case for a compromise verdict. No evidence supports a

conclusion that the jury verdict was suspect. However, Defendant’s argument is otherwise

deficient. As explained above, unlike the evidence in Skinner, substantial evidence supports

the verdict amount in this case. Moreover, the district court did not adjust the verdict for any

other reason than to comply with the statutory cap on medical malpractice damages as it

indicated in its order. We conclude that juror passion, prejudice, partiality, sympathy, undue

influence, or a mistaken measure of damages has not been established by Defendant.

{46} Second, Defendant contends that the period of time between the jury’s note and the

interval in which they thought they had an agreement was insufficient “to reach a verdict and

then subsequently consider the verdict amount.” Defendant states:

The timing supports a conclusion that the jury only had time to add

the amount indicated by the individual jurist, divide by eleven, and round up.

. . . [W]hen there is no time for each juror to take the opportunity to approve

of, to reject, or to discuss the results, as was the case here, the verdict falls

within the definition of a prohibited quotient verdict.

The method of addition and division of the jurors’ individual verdicts, “by itself, is not

improper and does not brand the result as a quotient verdict.” Bd. of Comm’rs of Doña Ana
1

We note that Defendant argues that less time passed between the note and

consensus. Defendant contends that the jury indicated it had an agreement at 8:52 p.m. and,

thus, the total amount of time that had passed was seventeen minutes. We disagree. At 8:52

p.m., the jury indicated that they were coming to an agreement, not that there was an

agreement and a verdict amount decided upon. We therefore examine Defendant’s

contentions about the improper verdict amount based upon the time when the jury actually

gave their verdict at 9:20 p.m.

16

Cnty. v. Gardner, 57 N.M. 478, 490, 260 P.2d 682, 689 (1953), superseded by statute as

stated in Yates Petroleum Corp. v. Kennedy, 108 N.M. 564, 568, 775 P.2d 1281, 1285

(1989). Rather, a quotient verdict occurs when the jurors agree in advance “to accept

one-twelfth of the aggregate amount of their several estimates as their verdict, without

subsequent reconsideration.” Gardner, 57 N.M. at 490, 260 P.2d at 689. In essence,

Defendant contends that we can infer there was an agreement to average each juror’s

individual verdict without subsequent consideration based upon the fact that only forty-five

minutes lapsed from the jury’s note, indicating that it was deadlocked until the time it gave

its verdict.1

{47} We disagree and will not make this inference. “Absent express evidence of such a

prior agreement, the presumption of the law is that the jury behaved properly.” Id. at 493,

260 P.2d at 691. Defendant cites no express evidence demonstrating that there was any

impermissible agreement. Tentative inferences of a quotient verdict made by Defendant are

insufficient proof to overturn a jury verdict award. Defendant’s failure to provide express

evidence of an agreement is fatal to his argument.

{48} We therefore cannot conclude that the verdict, which was supported by substantial

evidence, was tainted by passion, prejudice, partiality, sympathy, undue influence, or a

mistaken measure of damages on the part of the fact finder. We affirm the jury’s verdict.

D. The Cap on Medical Malpractice Damages is Constitutional

{49} Plaintiff preserved four constitutional challenges to the cap on damages in the Act.

Specifically, he contends that the cap infringes on the right to a jury trial and is in violation

of the separation of powers doctrine under the New Mexico Constitution. In addition, he

contends that the cap violates equal protection and substantive due process under both the

New Mexico and United States Constitutions. We begin by reiterating the long-standing

presumption that acts of the Legislature are constitutional and that challenges must establish

unconstitutionality beyond all reasonable doubt. City of Albuquerque v. Jones, 87 N.M. 486,

488, 535 P.2d 1337, 1339 (1975); ACLU of N.M. v. City of Albuquerque, 2006-NMCA-078,

¶ 10, 139 N.M. 761, 137 P.3d 1215. We address each argument in turn.

1. The Cap Does Not Violate the Right to a Trial by Jury
17

{50} The Act expressly provides that “[e]xcept for punitive damages and medical care and

related benefits, the aggregate dollar amount recoverable by all persons for or arising from

any injury or death to a patient as a result of malpractice shall not exceed six hundred

thousand dollars ($600,000) per occurrence.” Section 41-5-6(A). Plaintiff contends this cap

violates his constitutional right to have a jury determine his damages under the New Mexico

Constitution. We disagree. When the Legislature adopted the Act almost thirty-seven years

ago in 1976, it created an entirely new statutory cause of action that was not recognized

under the common law. Thus, we conclude that the Act’s cap on damages does not violate

the constitutional right to a jury trial protected by the New Mexico Constitution.

{51} Article II, Section 12 of the New Mexico Constitution provides “[t]he right to trial

by jury as it has heretofore existed shall be secured to all and remain inviolate.” In State ex

rel. Bliss v. Greenwood, 63 N.M. 156, 161, 315 P.2d 223, 226 (1957), our Supreme Court

explained that through Article II, Section 12,

the Constitution continues the right to jury trial in that class of cases in which it

existed either at common law or by statute at the time of the adoption of the

Constitution . . . . And, as we view the matter, the phrase as it has heretofore existed

refers to the right to jury trial as it existed in the Territory of New Mexico at the time

immediately preceding the adoption of the Constitution.

Greenwood, 63 N.M. at 161, 315 P.2d at 226 (internal quotation marks and citations

omitted). In making a determination about whether the right to trial by jury exists in a

specific context, we engage in two related inquiries. First, “we must consider whether such

an action fits within that ‘class of cases’ in which the right [to a jury trial] existed either at

common law or by statute at the time of the adoption of our constitution.” State ex rel.

Human Servs. Dep’t v. Aguirre, 110 N.M. 528, 529-30, 797 P.2d 317, 318-19; see Lisanti

v. Alamo Title Ins. of Tex., 2002-NMSC-032, ¶¶ 13-15, 132 N.M. 750, 55 P.3d 962. If we

do not answer this question affirmatively, there is no right to a jury trial, and our inquiry

ends. State ex rel. Children, Youth & Families Dep’t v. B.J., 1997-NMCA-021, ¶ 6, 123

N.M. 99, 934 P.2d 293. As noted by the court in Learmonth v. Sears, Roebuck & Co., 710

F.3d 249 (5th Cir. 2013), the “inviolate” guarantee of a jury trial “simply means that the jury

right is protected absolutely in cases where it applies; the term does not establish what that

right encompasses.” Id. at 263. A second related inquiry is “whether the type of case calls

for equitable or legal relief.” B.J., 1997-NMCA-021, ¶ 9; see Aguirre, 110 N.M. at 530, 797

P.2d at 319. Where the relief sought is essentially equitable, there is no right to a jury trial.

Bd. of Educ. of Carlsbad Mun. Sch. v. Harrell, 118 N.M. 470, 482, 882 P.2d 511, 523

(1994). Since we conclude that the Act creates a statutory cause of action that did not exist

at common law, we do not engage in the second inquiry. See id. at 481-82, 882 P.2d at 522-

23.

{52} The historical circumstances leading to passage of the Act are well documented.

Ruth L. Kovnat, Medical Malpractice Legislation in New Mexico, 7 N.M. L. Rev. 5, 7-8

(1976-77), states that the Act was enacted
18

in response to a widely-held perception that a medical malpractice crisis

existed in the state. New Mexico was not alone in this perception. In 1975

and 1976, [forty-five] states enacted some form of legislation to relieve the

malpractice dilemma. The event which immediately triggered public concern

in this state was the announced withdrawal, in 1975, of the Travelers

Insurance Companies as the underwriter of the New Mexico Medical

Society’s professional liability program. The Company’s withdrawal from

the insurance market threatened providers of health care in New Mexico with

a lack of protection against liability claims. Of at least equal importance, the

withdrawal jeopardized the remedy of a patient suffering because of the

negligent acts of such a health care provider even though his right to a

remedy could be established employing ordinary negligence principles.

(Footnotes omitted). Thus, the stated purpose of the Act “is to promote the health and

welfare of the people of New Mexico by making available professional liability insurance

for health care providers in New Mexico.” Section 41-5-2. Against this backdrop, our

Supreme Court has declared that the Act “was enacted by the [L]egislature in order to meet

an insurance crisis, to promote health care in New Mexico by providing a framework for tort

liability with which the insurance industry could operate.” Wilchinsky v. Medina, 108 N.M.

511, 516, 775 P.2d 713, 718 (1989); see Baker v. Hedstrom, 2012-NMCA-073, ¶¶ 22-23,

284 P.3d 400, cert. granted, 2012-NMCERT-007, 295 P.3d 600 (recognizing why the Act

was adopted); Roberts v. Sw. Cmty. Health Servs., 114 N.M. 248, 251, 837 P.2d 442, 445

(1992) (same).

{53} To achieve its purposes, the Act adopted by the Legislature creates a new statutory

cause of action, which did not exist when the Constitution was adopted and is not recognized

under the common law. The Act creates a “malpractice claim” against a “health care

provider.” A “malpractice claim” is 

any cause of action arising in this state against a health care provider for

medical treatment, lack of medical treatment[,] or other claimed departure

from accepted standards of health care which proximately results in injury to

the patient, whether the patient’s claim or cause of action sounds in tort or

contract, and includes but is not limited to actions based on battery or

wrongful death[.]

Section 41-5-3(C) (1977). In turn, a “health care provider” is

a person, corporation, organization, facility[,] or institution licensed or

certified by this state to provide health care or professional services as a

doctor of medicine, hospital, outpatient health care facility, doctor of

osteopathy, chiropractor, podiatrist, nurse anesthetist[,] or physician’s

assistant[.]
19

Section 41-5-3(A). Construing this language, we have previously concluded that potential

defendants under the Act include individuals and entities with which the plaintiff may not

have a physician-patient relationship. Baer v. Regents of Univ. of Cal., 118 N.M. 685, 689,

884 P.2d 841, 845 (Ct. App. 1994) (“[T]he statute’s broad definition of potential defendants

provides significant evidence of the [L]egislature’s intent to impose liability beyond the

context of a physician-patient relationship.”).

{54} Before this statutory cause of action can be filed in court, a plaintiff must first present

the claim to the medical review commission created by Section 41-5-14 to be reviewed.

Section 41-5-15. The administrative duties of the medical review commission are handled

by its director, who is an attorney “appointed by and serving at the pleasure of the [C]hief

[J]ustice of the New Mexico [S]upreme [C]ourt.” Section 41-5-14(E). Following a hearing

conducted before a panel of the medical review commission under procedures statutorily

prescribed in Section 41-5-19, the panel determines whether there is substantial evidence

that malpractice occurred and whether there is a reasonable medical probability that the

patient was injured thereby. Section 41-5-20. If a decision is made in favor of the plaintiff,

the panel, its members, the director of the medical review commission, and the professional

association concerned must assist in retaining a physician qualified in the field of medicine

involved “who will consult with, assist in trial preparation[,] and testify on behalf of the

patient[.]” Section 41-5-23. There is no similar statutory precondition to bringing a

common law action, and the common law has no requirement for a plaintiff to be provided

assistance in securing a medical expert.

{55} In addition to the foregoing, the Act provides its own statute of limitations for

bringing a “malpractice claim.” A “malpractice claim” against a “health care provider” must

be filed “within three years after the date that the act of malpractice occurred,” the only

exception being a minor under the full age of six years who has until his ninth birthday in

which to file. Section 41-5-13. On the other hand, a common law medical malpractice claim

may be brought within three years from the time that the patient discovers, or with

reasonable diligence should have discovered, that a claim exists. See Roberts, 114 N.M. at

252-53, 837 P.2d at 446-47 (concluding that the Legislature intended to insulate a “health

care provider” under the Act from the much greater liability exposure that flows from the

discovery-based accrual date which applies to medical providers not covered by the Act).

{56} In a common law medical malpractice claim, a doctor or entity found to be negligent

is liable for all actual damages proximately caused by the negligence. See Collins ex rel.

Collins v. Perrine, 108 N.M. 714, 719-720, 778 P.2d 912, 917-918 (Ct. App. 1989)

(concluding that an attorney sued for mishandling a medical malpractice claim could have

secured an award of $1,500,000 for medical expenses, lost wages, the nature, extent, and

duration of the injury, including disfigurement, pain and suffering, loss of enjoyment of life,

and shortened life opportunity). However, under the Act, “[a] health care provider’s

personal liability is limited to two hundred thousand dollars ($200,000) for monetary

damages and medical care and related benefits[,]” and any amount due the plaintiff in excess

of this amount “shall be paid from the patient’s compensation fund[.]” Section 41-5-6(D);
20

see NMSA 1978, Section 41-5-25 (1997) (creating the patient’s compensation fund to be

managed and administered by the superintendent of insurance from surcharges levied on

qualified health care providers by the superintendent of insurance).

{57} In a common law medical malpractice claim, a successful plaintiff is entitled to

recover the present cash value of all “medical care, treatment[,] and services reasonably

certain to be received in the future.” UJI 13-1804. In contrast, under the Act, a successful

plaintiff who is found to be in need of future medical care “and continuing as long as

medical or surgical attention is reasonably necessary . . . shall be furnished with all medical

care and related benefits directly or indirectly made necessary by the health care provider’s

malpractice[.]” Section 41-5-7(B). Payment “shall be made as expenses are incurred.”

Section 41-5-7(D). Further, when future medical care is awarded, the district court has

continuing jurisdiction to enforce and modify the expenses of that care. Sections 41-5-9, -

10.

{58} When we consider why the Act was adopted, and how the Act as a whole

accomplishes its purposes, we are confident in concluding that the Act created a new

statutory cause of action not recognized under the common law. It is settled that “where the

[L]egislature creates a right of action pursuant to a special statutory proceeding, there is no

right to a jury trial under our constitution unless the statute so provides.” Smith v. First

Alamogordo Bancorp., Inc., 114 N.M. 340, 343, 838 P.2d 494, 497 (Ct. App. 1992). Thus,

the statutory cap limiting damage awards for anything other than punitive damages, medical

care, and related benefits from exceeding $600,000 does not infringe or violate Plaintiff’s

constitutional right to a jury trial under Article II, Section 12 of the New Mexico

Constitution.

2. The Cap Does Not Violate Separation of Powers

{59} Plaintiff argues that the damages cap violates the separation of powers clause in the

New Mexico Constitution because it usurps the judiciary’s self-regulation and creates an

unappealable remittitur. The separation of powers clause states:

The powers of the government of this state are divided into three

distinct departments, the legislative, executive[,] and judicial, and no person

or collection of persons charged with the exercise of powers properly

belonging to one of these departments, shall exercise any powers properly

belonging to either of the others, except [where constitutionally excepted].

N.M. Const. art. III, § 1. “[T]he separation of powers doctrine precludes the [L]egislature

from stepping into the judiciary’s exclusive domain of prescribing the rules of judicial

practice and procedure and similarly precludes the judiciary from overturning or

contradicting a constitutional legislative declaration of substantive law.” In re Daniel H.,

2003-NMCA-063, ¶ 17, 133 N.M. 630, 68 P.3d 176. In arguing that the damages cap

constitutes a form of legislative remittitur, Plaintiff asserts that through the cap on damages,
21

the Legislature infringes on the “rules of judicial practice and procedure.” Id.

{60} In order for a trial court to grant a remittitur, “the exercise of such discretion must

be supported by express reasons, and those reasons must establish the presence of passion,

prejudice, partiality, sympathy, undue influence[,] or some corrupt cause or motive.”

Allsup’s Convenience Stores, Inc. v. N. River Ins. Co., 1999-NMSC-006, ¶ 19, 127 N.M. 1,

976 P.2d 1 (internal quotation marks and citations omitted). Because in a remittitur the court

changes the jury’s verdict, “under current practice[,] it has been held that the court must offer

the plaintiff the alternative of undergoing a new trial.” Id. ¶ 14.

{61} In Wachocki v. Bernalillo County Sheriff’s Department, we evaluated a challenge

based on separation of powers and legislative remittitur to the TCA cap on damages.

2010-NMCA-021, 147 N.M. 720, 228 P.3d 504, ¶ 49. We determined that the cap, “as a

limit on damages for a cause of action created by statute,” does not affect the judicial

branch’s ability to administer its own rules and procedures. Id. We agree with Wachocki’s

reasoning that a statutory cap does not violate the separation of powers doctrine. While

Allsup’s established that it is unconstitutional for a court to change the jury’s verdict without

offering a new trial, there is a distinction between a judge requiring litigants to accept a

reduction of the jury’s verdict and a statute mandating that all litigants must accept a

legislatively reduced verdict. The cap is applied across the board to all litigants and requires

no determination of the proportionality of a particular jury’s response to a particular party.

The cap, therefore, does not violate the doctrine of separation of powers.

3. The Cap Does Not Violate Equal Protection

{62} Plaintiff argues that the damages cap violates his right to equal protection under the

Fifth Amendment of the United States Constitution made applicable to the states through the

Fourteenth Amendment as well as Article 2, Section 18 of the New Mexico Constitution.

We agree with Defendant that Plaintiff failed to identify a need to diverge from federal

precedent based upon any properly raised assertion of broader protections contained within

the state constitution and, thus, only examine the federal equal protection provision. See

ACLU of N.M., 2006-NMCA-078, ¶ 18.

{63} The Fourteenth Amendment of the United States Constitution provides that states

shall not “deny to any person within its jurisdiction the equal protection of the laws.” U.S.

Const. amend. XIV, § 1. Plaintiff argues that the damages cap creates different classes of

patients depending on whether they may be fully compensated, that the use of intermediate

scrutiny is appropriate under New Mexico case law, and that the Act has not successfully

controlled the costs of malpractice insurance and therefore fails to provide an appropriate

reason for treating injured persons differently. We disagree, apply rational basis review, and

conclude that there is no equal protection violation.

{64} The Act is an economic regulation that requires rational basis review under Duke

Power Co. v. Carolina Environmental Study Grp., Inc., 438 U.S. 59, 83 (1978) (stating that
22

“[t]he liability-limitation provision thus emerges as a classic example of an economic

regulation—a legislative effort to structure and accommodate the burdens and benefits of

economic life” and requiring that the law be irrational to be overturned (internal quotation

marks and citation omitted)); Wachocki, 2010-NMCA-021, ¶ 41 (“The interests at stake in

a challenge of the TCA cap are of an economic or financial nature, and this Court is

unconvinced that equal protection rights are affected so substantially that intermediate

scrutiny is warranted.” (alteration, internal quotation marks, and citation omitted)); Trujillo

v. City of Albuquerque, 1998-NMSC-031, ¶ 28, 125 N.M. 721, 965 P.2d 305 (Trujillo III)

(determining that the cap in the TCA is economic legislation under the Duke Power

definition and therefore receives rational basis review); Marrujo v. N.M. State Highway

Transp. Dep’t, 118 N.M. 753, 757-58, 887 P.2d 747, 751-52 (1994) (“The rational basis

standard of review is triggered by all other interests: those that are not fundamental rights,

suspect classifications, important individual interests, and sensitive classifications. This

level of scrutiny applies in economic and social legislation, classifications based on property

use, and business and personal activities that do not involve fundamental rights.”). Other

jurisdictions have reasoned similarly for medical malpractice caps when faced with an equal

protection challenge. See Hoffman v. United States, 767 F.2d 1431, 1437 (9th Cir. 1985);

Evans ex rel. Kutch v. State, 56 P.3d 1046, 1055 (Alaska 2002); Miller v. Johnson, 289 P.3d

1098, 1120 (Kan. 2012); Oliver v. Magnolia Clinic, 85 So. 3d 39, 44 (La. 2012); Robinson

v. Charleston Area Med. Ctr., Inc., 414 S.E.2d 877, 888 (W.Va. 1991).

{65} Plaintiff argues that a heightened standard should be used because the cap creates a

classification that does not treat similarly-situated people equally. However, the Supreme

Court in Trujillo III stated that the cap in the TCA did not receive heightened scrutiny

because “the interests at stake . . . are of an economic or financial nature,” and that it was not

convinced that equal protection rights were affected by the damages cap. 1998-NMSC-031,

¶ 26. The Supreme Court stated that “[t]he intermediate scrutiny standard is used to assess

legislative classifications infringing important but not fundamental rights, and involving

sensitive but not suspect classes. For example, classifications based on gender and

illegitimacy traditionally have been measured under intermediate scrutiny.” Id. ¶ 15

(internal quotation marks and citations omitted).

{66} Our Supreme Court has previously found that the Act creates “a mere administrative

categorization. It is a class defined by economic and bureaucratic distinctions that are far

removed from racial, religious, or other fundamental categories.” Cummings v. X-Ray

Assocs. of N.M., P.C., 1996-NMSC-035, ¶ 25, 121 N.M. 821, 918 P.2d 1321 (applying the

rational basis test “to legislation directed toward business, social, and financial activities”

such as the Act). The Act distinguishes merely between patients whose injuries are fully

compensable and those who are prevented from receiving their full award by the cap. The

distinction is based on the severity of their injury and not any factor that implicates a

classification such as gender or illegitimacy. See Trujillo III, 1998-NMSC-031, ¶ 15.

Therefore, applying the rational basis test is appropriate. 

{67} Under the rational basis standard, “the burden is on the opponent of the legislation
23

to prove that the law lacks a reasonable relationship to a legitimate governmental purpose.”

Marrujo, 118 N.M. at 757-58, 887 P.2d at 751-52 (citing Trujillo v. City of Albuquerque,

110 N.M. 621, 628, 798 P.2d 571, 578 (1990) (Trujillo I), and Richardson, 107 N.M. at 693,

763 P.2d at 1158). The Supreme Court in Marrujo noted that this is a high burden for the

party contesting the legislation. 118 N.M. at 758, 887 P.2d at 752 (“[T]hey must

demonstrate that the challenged legislation is clearly arbitrary and unreasonable, not just that

it is possibly so.”). In the light of any facts supporting the reasoning for the legislation, the

court will uphold the statute. Id.

{68} Plaintiff argues that the purposes of the Act are laudable, but that they have not been

accomplished and, therefore, the cap is not rationally related to the Legislature’s stated

purpose. That purpose is “to promote the health and welfare of the people of New Mexico

by making available professional liability insurance for health care providers.” Section 41-

5-2. The Supreme Court has stated that the Act as a whole “achieves the legislative purposes

of assuring that health care providers are adequately insured so that patients may be

reasonably compensated for their malpractice injuries.” Cummings, 1996-NMSC-035, ¶ 28.

The Act was passed in response to an insurance crisis that “arose out of a nationwide

perception that medical malpractice insurance was increasingly becoming unavailable.”

Baker, 2012-NMCA-073, ¶ 22. In response to the crisis, the Legislature limited heath care

providers’ liability through enacting damage caps, shortening the statute of limitations and

mandating an evaluation process by a medical review commission while protecting victims

of malpractice with ongoing coverage of their medical expenses. See id. ¶¶ 24-25. The

Legislature hoped that the limitations on liability would provide an incentive for insurance

companies to continue to provide malpractice insurance.

{69} To show that the Act’s purposes have not been achieved, Plaintiff relies solely on the

affidavit of Donald Letherer, which states that the cap has not controlled the costs of

malpractice insurance and cites supporting statistics. However, this does not meet the

difficult burden a challenger has to show that the legislation is arbitrary and unreasonable

under Marrujo. 118 N.M. at 757-58, 887 P.2d at 751-52. The cap on damages is not an

arbitrary response to the malpractice insurance issues. We hold that the Act is rationally

related to its stated goals and that, therefore, the Act does not violate the equal protection

clause of the United States Constitution.

4. The Cap Does Not Violate Due Process and Fundamental Fairness

{70} Plaintiff finally argues that, under his substantive due process rights, the cap violates

a doctrine of fundamental fairness. Although he does not define what he means by

“fundamental fairness,” he relies on Garcia ex rel. Garcia v. La Farge, 119 N.M. 532, 541,

893 P.2d 428, 437 (1995), which held that “considerations of fairness implicit in the Due

Process Clauses of the United States and New Mexico Constitutions dictate that[,] when the

[L]egislature enacts a limitations period[,] it must allow a reasonable time within which

existing or accruing causes of action may be brought.” Garcia was a challenge to the

constitutionality of the statute of limitations in the Act. Because the injury in
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Garcia—cardiac arrest of the Garcias’ son—occurred only three months before his parents

ran out of time to sue the doctors who had failed to diagnose his condition, our Supreme

Court held that the Act’s statute of limitations created an unreasonably short period of time

within which the Garcias could bring their suit and that it violated due process. 119 N.M.

at 542, 893 P.2d at 438.

{71} However, Garcia, as a substantive due process case, relies on an analysis of the

fairness of legislative classification. Id. at 537, 893 P.2d at 433. This is the same analysis

that we performed above under Plaintiff’s equal protection argument, and “[s]ince no clear

due process argument is raised, we will simply restate the idea that analysis under the equal

protection clause of the fourteenth amendment is identical to that used under the due process

clauses.” Marrujo, 118 N.M. at 760, 887 P.2d at 754 (alterations, internal quotation marks,

and citations omitted); Duke Power, 438 U.S. at 93 (noting that “equal protection arguments

largely track and duplicate those made in support of the due process claim”). Because

Plaintiff fails to distinguish a separate basis for his substantive due process argument, we

consider it to be included in our equal protection argument and find that the cap does not

violate due process.

III. CONCLUSION 

{72} For the reasons stated above, we affirm the district court’s decisions with relation to

Defendant’s duty to Plaintiff, issuance of jury instructions, and refusal to grant further

remittitur or grant Defendant a new trial. We also affirm the district court’s order reducing

the $1,000,000 verdict because the damages cap contained in the Act is constitutional.

{73} IT IS SO ORDERED.

____________________________________

RODERICK T. KENNEDY, Chief Judge

WE CONCUR:

____________________________________

MICHAEL E. VIGIL, Judge

____________________________________

J. MILES HANISEE, Judge