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FRANK THOMAS,
Plaintiff-Appellant,
v.
CHRISTOPHER FULLER, M.D. and
HIGH COUNTRY MACULA, RETINA,
AND VITREOUS, P.C., a New Mexico
Professional Corporation,
Defendants-Appellees.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, Alan
M. Malott, District Judge
Ken Wagner Law, P.A., Kenneth R. Wagner,
Thomas J. McBride, Albuquerque, NM, for Appellant
Hicks & Llamas, P.C., Larry W. Hicks,
Kimberly Norvell, El Paso, TX, for Appellee Fuller
Butt Thornton & Baehr PC, W. Ann
Maggiore, Albuquerque, NM, for Appellee High Country Macula, Retina and
Vitreous, P.C.
RODERICK T. KENNEDY, Judge. WE CONCUR: M.
MONICA ZAMORA, Judge, J. MILES HANISEE, Judge
AUTHOR: RODERICK T. KENNEDY
{1} Plaintiff Frank
Thomas appeals following the district court’s entry of summary judgment in
favor of Defendants Christopher Fuller, M.D. (Dr. Fuller) and High Country
Macula, Retina and Vitreous, P.C. (collectively, Defendants). [DS 2; RP Vol.
II, 464] This Court issued a notice proposing to reverse on the ground the
district court erred in granting summary judgment in favor of Defendants. [CN
2] Specifically, we proposed to hold that based on the opinion letter and
deposition testimony of Dr. Geiger, Plaintiff’s expert witness, a genuine issue
of material fact exists as to which conduct by Dr. Fuller occurred and whether
it was negligent. [CN 2, 6] Defendants filed a memorandum in opposition, which
we have duly considered. Plaintiff also filed a memorandum in support partially
opposing this Court’s proposed disposition and requesting we address the
remaining issues raised in Plaintiff’s docketing statement. Remaining
unpersuaded, we reverse on the ground the district court erred in granting
summary judgment.
{2} As we stated in our
notice of proposed disposition, “[s]ummary judgment is appropriate where there
are no genuine issues of material fact and the movant is entitled to judgment
as a matter of law.”
Bank of N.Y. Mellon v. Lopes,
2014-NMCA-097,
¶ 6,
336 P.3d 443 (internal quotation marks and citation omitted). [CN 3]
“On appeal from the grant of summary judgment, we ordinarily review the whole
record in the light most favorable to the party opposing summary judgment to
determine if there is any evidence that places a genuine issue of material fact
in dispute.”
City of Albuquerque v. BPLW Architects & Eng’rs, Inc.,
2009-NMCA-081, ¶ 7,
146 N.M. 717,
213 P.3d 1146. [CN 3] “[T]he party
opposing summary judgment has the burden to show at least a reasonable doubt, rather
than a slight doubt, as to the existence of a genuine issue of fact.”
Eisert
v. Archdiocese of Santa Fe,
2009-NMCA-042, ¶ 10,
146 N.M. 179,
207
P.3d 1156 (internal quotation marks and citation omitted).[CN 3]
{3} In our notice
proposing to reverse, this Court noted Dr. Geiger’s opinion letter states Dr.
Fuller’s needle impaled the optic nerve and went through the interior of the
eye, resulting in rapid degeneration of the neurologic structure; Dr. Fuller’s
conduct “falls below the applicable standards of medical care”; and all of Dr.
Geiger’s opinions are “to a reasonable medical probability.” [
See RP
Vol. I, 168; CN 5] We further note Dr. Geiger’s deposition testimony points out
two possible causes of the blindness resulting from occlusion of blood supply
to the macula: injection of anesthetic either (1) into the interior of the eye
or (2) into the optic nerve sheath. [
See RP Vol. I, 159, 176-77, 179]
Dr. Geiger testified at her deposition that, to a reasonable degree of medical
probability, Dr. Fuller penetrated Plaintiff’s eye with the needle. [RP Vol. I,
179] Dr. Geiger based this opinion on three observations: (1) the existence of
“not an insignificant amount” of hemorrhage inside the eye, (2) subretinal
hemorrhage, and (3) the appearance of a scar on the retina that has no other
explanation for being there. [RP Vol. I, 179] Dr. Geiger also testified she was
unable to opine to a reasonable medical probability that Dr. Fuller, in fact,
injected anesthetic into the nerve sheath and that, even if he had, such
injection could occur despite the use of proper technique. [RP Vol. II, 177,
181-82] Dr. Geiger explained she was uncertain as to whether Dr. Fuller
injected into the nerve sheath, because too much time had elapsed before
Plaintiff’s eye was imaged, and confirmation of such an injury requires
immediate imaging. [RP Vol. I, 177, 181-82] Dr. Geiger testified either
injection into the globe or the nerve sheath could have caused the vascular
occlusion resulting in Plaintiff’s blindness, but the facts suggested injection
into the globe was the cause. [RP Vol. I, 177, 179, 181] Dr. Geiger testified
injection into the eye is a risk of the procedure and can occur even with the
use of proper technique and in accordance with the standard of care. [
See
RP Vol. I, 175-76, 182] Dr. Geiger went on to testify she could not say Dr.
Fuller’s injection into the eye was a breach of the standard of care, but
“[m]anagement from that point forward though fell below standard of care.” [RP
Vol. I, 182] Dr. Geiger testified, while nothing could have been done to stop
the damage after Dr. Fuller’s injection into the eye or nerve sheath, the
community standard was to stop the surgery after Dr. Fuller noted the bleeding
inside Plaintiff’s eye. [RP Vol. I, 180, 182, 183] Dr. Geiger went on to
testify, while continuing surgery without investigating the bleeding did not
directly cause further harm, Dr. Fuller’s decision to continue surgery
indirectly caused harm. [RP Vol. I, 183] Dr. Geiger explained immediate imaging
to determine the cause of the bleeding would have incidentally revealed
Plaintiff’s pituitary tumor, which resulted in some permanent visual deficit in
his other eye and which, because of the lack of imaging, was not diagnosed
until some time later. [RP Vol. I, 183]
{4} Dr. Geiger’s
opinion letter and deposition testimony are inconsistent as to which conduct
was in breach of the standard of care and whether the breach was the cause of
Plaintiff’s blindness; we conclude such an inconsistency does not warrant the
granting of summary judgment.
See Griego v. Grieco,
1977-NMCA-018, ¶ 39,
90 N.M. 174,
561 P.2d 36 (“[W]here a conflict arises in statements made by a
witness in an affidavit and deposition on a material fact, summary judgment is
improper.”);
Villalobos v. Bd. of Cty. Comm’rs,
2014-NMCA-044, ¶ 5,
322 P.3d 439 (“Summary judgment is proper where there is no evidence raising a
reasonable doubt that a genuine issue of material fact exists.”). Defendants
argue Dr. Geiger’s opinion letter and deposition testimony are not inconsistent,
because the opinion letter makes only general statements about breach of the
standard of care, and the breach she identified in her deposition testimony was
not the cause of the damage. [MIO 2] Defendants also argue Dr. Geiger’s opinion
letter does not create a genuine issue of material fact, because, Defendants
assert, the letter contains only conclusory statements that are not based on
specific facts. [MIO 8] We disagree. While Dr. Geiger’s deposition testimony
does not state the manner in which Dr. Fuller performed the anesthetic
injection was in breach of the standard of care and instead points to Dr.
Fuller’s continuation of the surgery as a breach, Dr. Geiger’s opinion letter
describes three possible causes of Plaintiff’s blindness resulting from the
anesthetic injection and that such conduct was a breach of the standard of
care. [RP Vol. I, 182, 168] We also note the opinion letter is based on
specific facts, including Dr. Geiger’s clinical findings, angiogram imaging,
and Plaintiff’s medical record, not generalized conclusions as Defendants
suggest. As we noted in our proposed disposition, “[w]e are mindful that
summary judgment is a drastic remedial tool which demands the exercise of
caution in its application, and we review the record in the light most
favorable to support a trial on the merits.”
Woodhull v. Meinel,
2009-NMCA-015, ¶ 7,
145 N.M. 533,
202 P.3d 126 (internal quotation marks
and citation omitted)). Thus, we conclude the opinion letter and deposition
testimony creates a genuine issue of material fact, and summary judgment was
improper.
{5} Plaintiff urges
this Court to also reverse on the ground the district court erred in striking
Dr. Geiger’s errata sheet, supplemental errata sheet, and affidavit for failure
to comply with Rule
1-030 NMRA and because they were “sham affidavits.” [MIS
7-21] Plaintiff requests in the alternative that this Court place those issues
on the general calendar for consideration separate from the reversal of summary
judgment. [Id.] We note the reversal of summary judgment in favor of trial on
the merits provides Plaintiff with the opportunity to present further evidence
in support of his claim, including testimony by Dr. Geiger explaining and
clarifying the inconsistency between her opinion letter and deposition
testimony. Because Plaintiff is free to present further evidence and
explanatory testimony by Dr. Geiger at trial, her errata sheet, supplemental
errata sheet, and affidavit are redundant. Thus, we need not review whether the
district court improperly declined to consider them in granting summary
judgment and decline to place those issues on the general calendar.
{6} For the reasons
stated above and in this Court’s notice of proposed disposition, we reverse
summary judgment in favor of Defendants.
RODERICK T. KENNEDY, Judge