GONZALES V. SANSOY, 1984-NMSC-098, 102
N.M. 136, 692 P.2d 522 (S. Ct. 1984)
GILBERT GONZALES, Petitioner,
vs.
ORHAN M. SANSOY, M.D., Respondent.
SUPREME COURT OF NEW MEXICO
1984-NMSC-098, 102 N.M. 136, 692 P.2d 522
ORIGINAL PROCEEDING ON CERTIORARI,
Samuel Z. Montoya, Judge Pro Tempore
Eugenio S. Mathis, Las Vegas, New Mexico,
Patrick A. Casey, Nancy Augustus, Santa Fe, New Mexico, For Petitioner.
Rodey, Dickason, Sloan, Akin & Robb,
Bruce Hall, Modrall, Sperling, Roehl, Harris & Sisk, John Thal,
Albuquerque, New Mexico, For Respondent.
Federici, C.J., wrote the opinion. WE
CONCUR: DAN SOSA, JR., Senior Justice, HARRY E. STOWERS, Jr., Justice. MARY C.
WALTERS, Justice, (Specially Concurring). WILLIAM RIORDAN, Justice, (Dissenting
Without Opinion)
{1} This medical malpractice
action, originally filed in the District Court of San Miguel County, is before
us on writ of certiorari. The issue on appeal is directed to the sufficiency of
expert testimony on the question of proximate cause.
{2} The case was tried to a
jury which returned a verdict in favor of plaintiff-petitioner, Gilbert
Gonzales (Gonzales), finding defendant-respondent, Dr. Orhan M. Sansoy (Sansoy)
81% negligent and Gonzales 19% negligent. Sansoy appealed the trial court's
judgment and the order denying his motions for judgment n.o.v., for a new
trial, and for remittitur, to the Court of Appeals. The Court of Appeals
reversed the jury verdict and the judgment entered upon
{*137}
it, holding that proximate cause was lacking. We reverse the Court of
Appeals.
{3} Gonzales experienced
acute abdominal pains on Sunday, September 17, 1978, and was treated in the
Northeastern Regional Hospital emergency room by Sansoy. Sansoy, suspecting
that Gonzales was suffering from a recurrence of a peptic ulcer, treated him
for the pain and told him to come to the office the following day. The next
day, September 18, Gonzales went to Sansoy's office and was given a
prescription for ulcer treatment and told he should be better in three to four
days. Gonzales continued to be ill for the next three days, but on the fourth
day, Thursday, September 21, he felt relieved. On Friday, however, he felt ill
again and by Saturday he was in great pain. He was admitted to the hospital
that afternoon and was operated on that same night. During surgery it was
discovered that he had a ruptured appendix.
{4} Gonzales brought this
action alleging that Sansoy had been negligent in failing to diagnose the
appendicitis earlier. The Court of Appeals found that Gonzales' expert witness,
Dr. Sklar, had omitted to testify that Gonzales had diagnosable appendicitis on
September 17th and 18th, the two days Sansoy examined Gonzales prior to the day
of his operation and that Dr. Sklar had not given the basis for his opinion.
The Court of Appeals held that proximate cause was, therefore, not shown.
{5} Appellate reversal of
jury verdicts must be done cautiously and only under a strict standard of
review in order to safeguard a litigant's constitutional right to a jury trial.
See N.M. Const. art. II, § 12. For this reason a standard of review was
designed to resolve all doubts in favor of the jury verdict. This standard of
review was clearly stated in
Mascarenas v. Gonzales, 83 N.M. 749,
497
P.2d 751 (Ct. App.1972), also a medical malpractice action. The court said:
The presumptions are in favor of verdicts and the facts are
to be viewed in the aspect most favorable to the prevailing party. We will
indulge all reasonable inferences in support of the verdicts, disregarding all
inferences or evidence to the contrary. It is for the jury, not us, to weigh
the testimony, determine the credibility of witnesses, reconcile inconsistent
or contradictory statements of a witness, and say where the truth lies.
Id. at 751, 497 P.2d at 753.
{6} Review of the record,
therefore, should be limited to determining whether there was substantial
evidence for the jury to conclude that proximate cause existed. The record
discloses substantial evidence before the jury sufficient to support a verdict
for Gonzales.
{7} The record shows that
although Dr. Sklar did not specifically use the dates September 17 and 18 in
his testimony, many of his statements about Gonzales' condition were given in
response to questions concerning those dates. When the testimony is considered
in its entirety, it is clear that Dr. Sklar was asserting that Gonzales had
diagnosable appendicitis at the times of the earlier examinations on September
17 and 18. It is not necessary for an expert witness who testifies that there
was a negligent failure to diagnose appendicitis also to state that the
appendicitis was then present and diagnosable.
{8} The testimony of Sansoy's
expert conflicts with Dr. Sklar's opinion. All such conflicts in testimony
should be resolved in favor of upholding the verdict.
Wood v. Citizens
Standard Life Insurance Company, 82 N.M. 271,
480 P.2d 161 (1971). The
appellate court must not reweigh the evidence.
Id.
{9} In addition to Dr.
Sklar's testimony, there was other evidence before the jury from which it could
have found that Gonzales had appendicitis at the time of the September 17th and
18th medical examinations by Sansoy. Gonzales testified that abdominal pains he
felt on the 17th were in his lower right abdomen; that the pain differed from
the peptic ulcer pain he had experienced in 1973; and, that the pain spread
throughout his right side during the night of the 17th. He testified that the
{*138} following day he could barely walk.
These facts, along with Dr. Sklar's testimony, provide substantial evidence to
support the jury's verdict.
{10} In its opinion, the
Court of Appeals states that Dr. Sklar did not adequately explain the basis for
his opinion. An expert's opinion will not be considered incompetent or lacking
in factual basis if he gives an explanation as to how he arrived at it.
Harrison
v. ICX, Illinois-California Express, Inc., 98 N.M. 247,
647 P.2d 880 (Ct.
App.),
cert. denied, 98 N.M. 336,
648 P.2d 794 (1982). The record
indicates that Dr. Sklar based his opinion on his review of Gonzales' medical
history, the hospital records, the surgeon's report, Sansoy's office notes,
Sansoy's answers to interrogatories and depositions, and on statements of
Gonzales. In addition, under New Mexico Rules of Evidence an expert is not
required to disclose the underlying facts or data upon which his opinion is
based unless requested by the judge or unless interrogated on
cross-examination. NMSA 1978, Evid.R. 705 (Repl. Pamp.1983). At trial, Sansoy's
attorney objected to the factual basis upon which Dr. Sklar relied for his
opinion. This objection was overruled by the judge. Sansoy's attorney later had
ample opportunity in cross-examination of Dr. Sklar to point out to the jury
any weaknesses in Dr. Sklar's opinion.
{11} The trial court was
correct in submitting the issue of proximate cause to the jury. The Court of
Appeals is reversed. The cause is remanded to the Court of Appeals for further
proceedings consistent with this opinion and for a determination of the other
issues appealed to that court.
WE CONCUR: DAN SOSA, JR., Senior Justice, HARRY E. STOWERS,
Jr., Justice
MARY C. WALTERS, Justice, (Specially Concurring)
WILLIAM RIORDAN, Justice, (Dissenting Without Opinion)
WALTERS, Justice (Specially Concurring)
{13} I specially concur in
this opinion, for the purpose of emphasizing my agreement with Chief Justice
Federici's treatment of the evidence produced on the issue of proximate cause
and the jury verdict on the question of liability, and my disagreement with the
Court's recent quashing of certiorari in the case of
Duran v. General Motors
Corporation, 22 SBB 1231 (November 17, 1983).
Duran raised the
identical issue on proximate cause and sought the same relief we grant this
plaintiff in today's case. The majority of this Court last month refused to
review the Court of Appeals' reversal of the jury's verdict obtained by
plaintiff in
Duran where, on similar expert evidence, the Court of
Appeals held that proximate cause had not been shown and that the jury should
not have considered defendant's liability. While agreeing with the disposition
of the instant case, I must express my opposition to selective reviews which
permit unequal treatment of plaintiffs' petitions for certiorari and
inconsistent results on identical claims of error.