COURT OF APPEALS OF THE STATE OF NEW MEXICO

Case Number: A-1-CA-35247

Judge: onathan B. Sutin

Court: COURT OF APPEALS OF THE STATE OF NEW MEXICO

Plaintiff's Attorney: Lee Hunt and Seth Cohen, Stephen Durkovich

Defendant's Attorney: Elizabeth Martinez and Emil J. Kiehne

Description: William “Mack” Vaughan presented at the emergency department of Defendant
11 St. Vincent Hospital, Inc. (the Hospital) in Santa Fe, New Mexico in August 2002
12 with complaints of abdominal pain. He was seen in the emergency department by Dr.
13 Martin Wilt, who was a subcontractor/partner of Northern New Mexico Emergency
14 Medical Services, and who ordered a CT scan. The scan was reviewed by Dr. J.R.
15 Damron, a radiologist and employee of Santa Fe Radiology, who concluded that the
16 most likely diagnosis was a diverticular abscess in the colon, but it was also possible
17 that Vaughan had a neoplasm, which is cancer. Dr. Wilt consulted with Dr. Anna
18 Voltura, a surgeon, to evaluate Vaughan. Dr. Voltura’s working diagnosis was
19 diverticular abscess. She recommended that Vaughan be admitted and placed on IV
2
1 antibiotics. Vaughan refused, saying that he wanted to go home, and upon discharge,
2 he was prescribed antibiotics. Vaughan was instructed to follow up with Dr. Voltura
3 in one week for any problems. Vaughan was advised that he would need surgery in
4 the future, and Dr. Voltura warned Vaughan that his condition was serious and that
5 he could potentially die if it were left untreated.
6 {3} Dr. Damron dictated a CT scan report, and the report was transcribed the next
7 day. The written report contained Dr. Damron’s findings that “[m]ultiple diverticula
8 in the sigmoid colon are present. . . . An abscess associated with a diverticulitis would
9 be a first consideration with neoplasm as the etiology being the second
10 consideration.” Drs. Voltura and Wilt testified that they did not recall seeing or
11 receiving copies of Dr. Damron’s written report. Vaughan left the Hospital without
12 being told that he had a possible neoplasm in his colon.
13 {4} Despite Dr. Voltura’s instructions, Vaughan did not follow up with Dr.
14 Voltura. In September 2002, he visited the Veterans Administration hospital in
15 Albuquerque, New Mexico, complaining of foul-smelling, cloudy, burning urination,
16 but he declined an x-ray. He visited the Veterans Administration hospital again in
17 November 2002 to establish a primary care provider, on which visit a colonoscopy
18 was recommended but apparently not performed.
3
1 {5} In April 2003, Vaughan presented at the Hospital’s emergency department with
2 complaints of brown, foul-smelling, gritty material in his urine and with symptoms
3 similar to those he had in October 2002, including burning with urination. While at
4 the emergency room in April 2003, he was advised to follow up with a urologist, but
5 he did not do so. In May 2003, the Veterans Administration sent Vaughan a letter
6 advising him that additional tests were recommended for his continuing urinary tract
7 infections, including a cystoscopy. No evidence indicates that Vaughan went in for
8 those tests at that time.
9 {6} In August 2003, Vaughan returned to the Hospital’s emergency room,
10 complaining again of painful urination and also complaining of abdominal pain at
11 which time he underwent a cystoscopy that revealed a colovesical fistula. Vaughan
12 was ultimately diagnosed in October 2003 with colon cancer in the sigmoid colon at
13 the location of the abscess. Vaughan died in 2010 of a metastatic lesion, with colon
14 cancer listed as the “[d]isease or injury that initiated events resulting in death[.]”
15 The Lawsuit
16 {7} Years before his death, in January 2006, Vaughan sued the Hospital pursuant
17 to a complaint for medical negligence, averring the Hospital’s negligent failure
18 “through an administrative inadequacy to forward [a] radiology report[,]” indicating
19 the existence of a neoplasm, on to his physician.
4
1 {8} The case was first before this Court in Vaughan v. St. Vincent Hospital, Inc.,
2 No. A-1-CA-30395, 2012 WL 1720346, mem. op. (N.M. Ct. App. Apr. 16, 2012)
3 (non-precedential). In Vaughan, we affirmed the district court’s summary judgment
4 dismissal of Vaughan’s complaint on the ground that he failed to give sufficient
5 notice under Rule 1-008 NMRA of assertion of a claim of apparent agency giving rise
6 to vicarious liability of the Hospital. Id. at *1, *8. After Vaughan passed away in
7 2010, Diego Zamora, as personal representative of Vaughan’s estate, was substituted
8 as the plaintiff. Our Supreme Court reversed the Vaughan decision in Zamora v. St.
9 Vincent Hospital, 2014-NMSC-035, ¶ 1, 335 P.3d 1243, holding that “Vaughan’s
10 complaint adequately notified [the Hospital] that one or more of its employees or
11 agents was negligent[.]”
12 {9} More specifically, in Zamora, our Supreme Court stated that “Vaughan’s
13 pleading was sufficiently detailed to put [the Hospital] on notice of a claim of
14 apparent agency or vicarious liability related to the failure to communicate his cancer
15 diagnosis,” id. ¶ 8, and that nothing in our rules or statutes “require[d] a civil
16 complaint to specifically recite reliance on theories of vicarious liability or apparent
17 agency in order to provide fair notice of a cause of action.” Id. ¶ 14. Our Supreme
18 Court concluded its opinion stating that the “complaint adequately notified [the
19 Hospital] that it was liable for the negligence of one or more of its agents” and that
5
1 disputed issues of fact existed “concerning the negligence of [the Hospital’s] agents
2 in failing to communicate [a] cancer diagnosis to Vaughan or his treating doctor.” Id.
3 ¶ 34. Our Supreme Court remanded for trial on the merits. Id.
4 The District Court Proceedings on Remand
5 {10} On remand, and re-captioned with a substituted personal representative, Wanda
6 Collins, Plaintiff changed course as to the nature of the claim—she was no longer
7 claiming or asserting any negligence on the part of any of the physician providers
8 involved, Drs. Wilt, Damron, and Voltura. Plaintiff chose not to pursue vicarious
9 liability against the Hospital, but chose instead to pursue a direct liability claim based
10 solely on negligence of the Hospital stemming from alleged communication,
11 operational, and systemic failures.
12 {11} Plaintiff’s direct liability theory was expressed in different ways at different
13 intervals. But as stated in the district court’s pretrial order, Plaintiff did not contend
14 that Drs. Voltura, Wilt, or Damron were negligent, but only the Hospital was
15 negligent by its failure to deliver the report of Vaughan’s CT scan results to Vaughan,
16 Dr. Wilt, and Dr. Voltura. At trial, Plaintiff contended that she did not allege “that any
17 of the physicians did anything wrong” but that the Hospital was liable based on a
18 number of systemic and communication failures. The Hospital’s defense to Plaintiff’s
19 contention was that Vaughan’s cancer did not progress from August 2002 to October
18 This limitation was based on this Court’s opinion in Grassie v. Roswell 1 19 Hospital Corp., 2011-NMCA-024, ¶¶ 30-32, 150 N.M. 283, 258 P.3d 1075. In 20 Grassie, we held that the cumulative conduct theory, which “provides that an award 6
1 2003, and any delay in treatment was caused by Vaughan’s repeated failures to heed
2 medical advice.
3 {12} Although many of the jury instructions were settled prior to trial, at a mid-trial
4 jury instruction conference, the district court considered whether to give an apparent
5 agency instruction based on UJI 13-1120B NMRA and Houghland v. Grant, 1995
6 NMCA-005, 119 N.M. 422, 891 P.2d 563, that “[a] hospital is responsible for the
7 actions of health care providers who are not hospital employees[.]” According to
8 Plaintiff, it was a “general proposition” that a hospital is “on the hook” because the
9 physician providers are apparent agents, and that the hospital is on the hook for their
10 actions. The court rejected Plaintiff’s position because Plaintiff was not claiming that
11 the providers made “any bad medical decisions.” Plaintiff disagreed, stating that the
12 Hospital was “broadly” responsible for the failures of the apparent agent providers
13 who are part of the failed system, including bad medical decisions not constituting
14 negligence. The district court ultimately determined that it was going to give the
15 apparent agency instruction only if it was limited for the purposes of considering
16 whether to award punitive damages and limited to “consideration of the cumulative
17 conduct of its employees or apparent agent[.]”1
16 of punitive damages against a corporation may be based on the actions of the 17 employees viewed in the aggregate in order to determine whether the employer 18 corporation had the requisite culpable mental state because of the cumulative conduct 19 of the employees[,]” was supported by New Mexico law. Id. ¶ 30 (alterations, internal 20 quotation marks, and citation omitted). On appeal, Plaintiff does not argue that 21 Grassie is incorrect or that it would not apply in this case, but rather that a general 22 apparent agency instruction should have been given. 7
1 {14} In closing arguments, Plaintiff again focused on her theory that the Hospital
2 negligently failed to deliver Dr. Damron’s final report to Vaughan’s treating
3 physicians and to Vaughan. In its closing argument, the Hospital argued that it was
4 not negligent because its system for delivering reports complied with the industry
5 standards, was sufficient, and worked in practice. The Hospital noted the stipulation
6 that Dr. Damron was not negligent, but indicated nevertheless that Dr. Damron was
7 the cause of Vaughan not getting the information about a possible neoplasm. In
8 Plaintiff’s closing rebuttal, Plaintiff again stressed the failure to deliver the report and
9 argued, “[i]t wasn’t Dr. Damron’s job to take that report and walk it down the hall.
10 [The] Hospital set up the system.”
11 {15} After closing arguments, the jury was given the following relevant instructions,
12 beginning with Instruction No. 2:
13 In this case, [Plaintiff] . . . seeks damages from the [Hospital] for 14 damages that [P]laintiff says were caused by the negligence of [the] 15 Hospital.
8
1 To establish [the Hospital’s] negligence, [Plaintiff] has the burden 2 of proving that [the Hospital] negligently did not deliver Dr. . . . 3 Damron’s final written report of the August 8 CT examination of . . . 4 Vaughan identifying a pelvic abscess the result of either diverticulosis 5 or a neoplasm to at least one of the following:
6 To . . . Vaughan’s ER physician Dr. . . . Wilt for Dr. Wilt’s 7 use in diagnosing and treating Vaughan, or
8 To . . . Vaughan’s surgeon Dr. . . . Voltura for use in 9 diagnosing and treating . . . Vaughan, or
10 Alternatively, [Plaintiff] has the burden to prove that 11 because of [the Hospital’s] negligence there was a failure 12 to communicate the information contained in Dr. Damron’s 13 final written report about a possible neoplasm to . . . 14 Vaughan for his own use in deciding what kind of care he 15 should obtain to address the possibility that his abscess was 16 the result of a neoplasm or cancer.
17 [Plaintiff] has the burden of proving [the Hospital’s] negligence 18 was a cause of his death, his injuries[,] and damages.
19 The [Hospital] denies . . . [P]laintiff’s allegations regarding 20 negligence. [The Hospital] asserts that it exercised the knowledge, skill, 21 and care of a reasonably well[-]qualified hospital in its care and 22 treatment of . . . Vaughan. [The Hospital] denies that it failed to deliver 23 the August 8, 2002 CT report to Dr. Wilt and further denies that it failed 24 to deliver a copy of the August 8, 2002 CT report to Dr. Voltura. [The 25 Hospital] denies that it was obligated to deliver a copy of the report to 26 Dr. Voltura without express indication from Dr. Damron. [The Hospital] 27 denies that it failed to deliver a copy of the report to . . . Vaughan and 28 states that . . . Vaughan would have received a copy of his records if he 29 had asked for them. [The Hospital] also denies that it created the 30 appearance that Drs. Wilt or Damron were its employees or apparent 31 agents and denies that [it] is responsible for their conduct. [The 32 Hospital] denies . . . [P]laintiff’s claims that it caused or contributed to 33 . . . Vaughan’s death, injuries[,] and damages.
9
1 [The Hospital] affirmatively states that . . . Vaughan was 2 negligent and that his negligence was a cause of his death, injuries[,] and 3 damages. The [Hospital] has the burden of proving that . . . Vaughan 4 failed to exercise a duty of ordinary care and that his negligence caused 5 his injuries and damages. To establish that . . . Vaughan was negligent, 6 [the Hospital] has the burden of proving at least one of the following:
7 a. . . . Vaughan unreasonably declined admission to 8 [the Hospital] for further work-up and treatment on August 9 8, 2002;
10 b. . . . Vaughan unreasonably failed to follow the 11 discharge instructions provided to him by [the] Hospital 12 and Dr. Voltura on August 8, 2002;
13 c. . . . Vaughan unreasonably failed to obtain 14 recommended medical care by his health care providers at 15 the Veteran[s] Administration;
16 d. . . . Vaughan unreasonably failed to obtain 17 recommended medical care by his health[]care providers at 18 [the] Hospital after August 8, 2002.
19 The [Hospital] also has the burden of proving that such 20 negligence by . . . Vaughan was a cause of his death, injuries[,] and 21 damages.
22 The district court also gave a causation instruction, Instruction No. 5, that read:
23 An act or omission is a “cause” of injury if it contributes to 24 bringing about the injury, and if injury would not have occurred without 25 it. It need not be the only explanation for the injury, nor the reason that 26 is nearest in time or place. It is sufficient if it occurs in combination with 27 some other cause to produce the result. To be a “cause[,”] the act or 28 omission, nonetheless, must be reasonably connected as a significant 29 link to the injury.
10
1 {16} The court also gave the following punitive damages instruction, Instruction No.
2 12, as discussed during the mid-trial jury instruction conference, relating to a
3 hospital’s responsibility for non-employee cumulative conduct.
4 For purposes of considering whether to award punitive damages 5 against [the] Hospital, a hospital is responsible for the cumulative 6 conduct of health care providers who are not [H]ospital employees, such 7 as Dr. . . . Wilt and Dr. . . . Damron, if the [H]ospital, through its 8 conduct, created the appearance that it was the provider of these services 9 to the public.
10 {17} Although the application of apparent agency principles had been discussed by
11 the parties prior to jury deliberations, the issues giving rise to this appeal truly began
12 after the jury was instructed. During its deliberations, the jury submitted the following
13 handwritten question, entitled “Jury instruction 14 [and] 17 vs. 19.”
14 [Instruction No.] 14=refers to doctors 15 [Instruction No.] 17=refers to physicians 16 [Instruction No.] 19=officers [and] employees
17 Are the physicians/doctors considered employees or officers of St. 18 Vincent Hospital?
19 Instruction No. 14 stated, “The [H]ospital is not liable when following the orders of
20 the doctor unless the [H]ospital knew or in the exercise of ordinary care should have
21 known that the orders of the doctor were in error and failed to call the error to the
22 doctor’s attention.” Instruction No. 17 stated, “Where [there] is more than one
23 medically accepted method of diagnosis and treatment, it is not negligent for a
21 The “Houghland instruction” is Plaintiff’s wording for UJI 13-1120B. See UJI 2 22 13-1120B comm. cmt. (indicating that the instruction’s language is derived from 23 Houghland). 11
1 physician or a hospital to select any of the accepted methods.” Instruction No. 19
2 stated, “[The Hospital] can only act through its officers and employees. Any act or
3 omission of an officer or an employee of a corporation within the scope or course of
4 his employment is the act or omission of the corporation.”
5 {18} After receiving the jury’s question, the following discussion between the court
6 and counsel occurred:
7 [Plaintiff’s counsel]: That’s what [Houghland] was for. In the 8 [court’s Houghland] instruction, though, it was limited to cumulative 2 9 conduct under punitives. So we raised the issue when this was coming 10 up that there could be other instances again where they would question 11 the liability of the hospitals for these people. So under [Houghland] 12 again, I think that they are—that’s the whole purpose of [Houghland].
13 [The Court]: Well, wouldn’t I have to tell them, if you find the 14 physicians or doctors are either employees or apparent agents of [the 15 Hospital], then they are considered employees or officers?
16 [Plaintiff’s counsel]: Yes.
17 [Defendant’s counsel]: Well, first of all, there is a difference 18 between physicians slash doctors and officers, but on this issue, the—
19 [The Court]: I guess it would only be—they could only possibly 20 be considered employees. They are not officers.
21 [Defendant’s counsel]: And you gave the [Houghland] instruction 22 only as to punitive damages, not as to negligence.
12
1 [The Court]: Right.
2 [Defendant’s counsel]: So I think they need to be told that.
3 [The Court]: Okay. All right. Okay. So it seems then I should say 4 that all the parties have stipulated that no doctor was negligent. For 5 purposes of punitive damages, if you consider the doctors to be—if you 6 find the doctors to be employees or the apparent agents of [the] Hospital, 7 then you may consider them employees of [the] Hospital.
8 [Plaintiff’s counsel]: No.
9 [The Court]: Why not?
10 [Plaintiff’s counsel]: Why not? Because of the fact that what 11 [Houghland] says is [Houghland] says that a hospital is responsible for 12 the actions of its apparent agent, and it is not limited to negligent 13 actions, it’s all of their actions.
14 So the way you stated it initially, that’s the way you have to 15 instruct it, Your Honor. It isn’t limited to negligent actions . . . .
16 The court reminded Plaintiff that she had stipulated that the doctors were not
17 negligent and thus could not “rely on the doctor’s negligence to form the basic
18 compensable damage claim.” According to the court, “[t]here has never been a case
19 which says [that a hospital is] responsible for compensatory damages on account of
20 non-negligent acts of . . . physicians who are not [hospital] employees.” Therefore,
21 the court responded to the jury’s question as follows:
22 Only for purposes of considering whether to award punitive damages 23 may you determine whether the doctors/physicians are employees or 24 apparent agents of [the Hospital]. See Instruction 12.
13
1 The following morning, Plaintiff opened with a request that the court give another
2 instruction.
3 Judge, I’m sorry, if we might there is one issue I would like to 4 raise to the [c]ourt briefly. I know it’s a busy morning and all that, but 5 as this case has gone on what we—and in particular what raised this 6 issue was the question yesterday about agency and about employees and 7 those issues. I mean, certainly as we have thought about it our request 8 is the [c]ourt submit a separate answer to that question which is 9 essentially the [13-1120B] instruction on when a hospital is responsible 10 for the conduct of apparent agents.
11 And I know that the [c]ourt did not originally give the instruction 12 as it is in the UJI based on [P]laintiff’s stipulation, and that was the 13 reason that the [c]ourt didn’t do that, and certainly that was understood. 14 But the case has been presented in such a way that [the Hospital has] 15 raised that issue clearly and soundly throughout the trial and certainly 16 throughout closing argument, and clearly that is an issue that the jury is 17 grappling with.
18 So apart from what we said, the issue has been presented to them 19 and I think squarely the appropriate instruction for them is the instruction from [13-1120B] and I think the way it would be presented now is as an 20 answer to the question that was submitted.
21 And so we would like to tender that and request that the . . . 22 [c]ourt give that as an answer to [the jury’s question] or as a 23 supplemental instruction, [h]owever the [c]ourt views that most 24 appropriate.
25 Plaintiff requested that the following written instruction be given to the jury:
26 A hospital is responsible for injuries proximately resulting from the 27 conduct of health care providers who are not [H]ospital employees, such 28 as . . . Dr. Damron and Dr. Wilt, if the [H]ospital, through its conduct, 29 created the appearance that it was the provider of these services to the 30 public.
14
1 This was the first time Plaintiff tendered such an instruction. It was tendered as a UJI
2 13-1120B instruction, substituting “conduct” for “negligence” to set out “when a
3 hospital is responsible for the conduct of apparent agents.”
4 {19} The district court refused Plaintiff’s tendered instruction, stating:
5 You could have tried the case where you took the position that either 6 [Dr.] Damron or the ER doctor was negligent and an apparent agent of 7 the [H]ospital. You chose not to do that. You have decided for strategic 8 reasons that you didn’t want to raise that issue, you didn’t ask for [an 9 1120B] on the whole case at the time we were doing instructions. It’s 10 too late now to change in mid stream when the jury already has the case 11 as you presented it. Your request is denied.
12 The court described the proposed instruction as “too little, too late.”
13 {20} The special verdict form given to the jury asked whether the Hospital was
14 negligent, to which the jury answered, “Yes.” The form further asked, “Was any
15 negligence of [the] Hospital a cause of . . . Vaughn’s injuries and damages[,]” to
16 which the jury answered, “No.” Based on the jury’s lack of causation determination,
17 the district court entered judgment in favor of the Hospital and against Plaintiff. This
18 appeal followed.
19 DISCUSSION
20 {21} Plaintiff asserts that the “appeal raises a single fundamental substantive issue.
21 Is a hospital’s direct liability for the conduct of its apparent agents limited to only
22 their ‘negligent’ conduct?” (Footnote omitted.) Plaintiff argues that (1) she preserved
17 Although we address the merits of Plaintiff’s arguments on appeal, we are 3 18 concerned with counsel’s failure to specifically object to the instructions at the time 19 the instructions were being settled, and with the late proffer of Plaintiff’s modified 20 UJI 13-1120B instruction in response to the jury’s question. That said, because the 21 applicability of apparent-agency principles was discussed generally, we reach the 22 issue. 15
1 her claim of error as to the apparent agency instruction; (2) the district court erred in
2 not giving a broad apparent-agency instruction because all conduct of a hospital’s
3 apparent agents, acting within the scope of their authority, including non-negligent
4 conduct, is attributable to a hospital in determining a hospital’s direct liability; and
5 (3) the record provides evidence that the jury was confused and wrongly concluded
6 that the Hospital did not cause Vaughan’s injuries. The Hospital does not address
7 Plaintiff’s preemptive preservation argument, and because we ultimately hold that the
8 district court did not err and affirm the verdict, we also choose not to address any
9 preservation issues. We therefore focus on whether the district court erred in refusing 3
10 the instruction and whether the instruction led to an erroneous jury verdict.
11 {22} “We review a district court’s refusal to give a proffered instruction de novo to
12 determine whether the instruction correctly stated the law and was supported by the
13 evidence presented at trial.” Holcomb v. Rodriguez, 2016-NMCA-075, ¶ 16, 387 P.3d
14 286 (internal quotation marks and citation omitted). “If instructions, considered as a
15 whole, fairly present the issues and the law applicable thereto, they are sufficient.
16
1 Denial of a requested instruction is not error where the instructions given adequately
2 cover the issue.” Sonntag v. Shaw, 2001-NMSC-015, ¶ 15, 130 N.M. 238, 22 P.3d
3 1188 (internal quotation marks and citation omitted). “A trial court’s refusal to submit
4 a jury instruction is not error if the submission of the instruction would mislead the
5 jury by promoting a misstatement of the law.” State v. Nieto, 2000-NMSC-031, ¶ 17,
6 129 N.M. 688, 12 P.3d 442.
7 {23} Houghland, involving the issue of a hospital’s vicarious liability for the
8 negligent actions in its emergency room, 1995-NMCA-005, ¶¶ 2-3, addresses
9 apparent agency and hospital vicarious liability. Houghland was an interlocutory
10 appeal involving the issue of a hospital’s vicarious liability for the negligent actions
11 in that hospital’s emergency room. The doctor, Dr. Grant, was employed by a separate
12 company that had a contract with the hospital to staff its emergency room. Id. ¶ 4. Dr.
13 Grant had no contract with the hospital. Id. ¶¶ 4, 7. The plaintiff argued that the
14 district court erred in granting summary judgment in favor of the hospital on the issue
15 of vicarious liability, because a genuine issue of material fact existed as to whether
16 Dr. Grant was an agent or apparent agent of that hospital. Id. ¶¶ 6-7. The plaintiff
17 contended that the doctrine of apparent authority applied to establish liability under
18 respondeat superior. Id. ¶ 13. This Court determined that “the district court erred in
19 granting summary judgment in [the hospital’s] favor.” Id. ¶ 25.
17
1 {24} A few years after Houghland was decided, UJI 13-1120B entitled “Hospital
2 Vicarious Liability; Non-Employees” was adopted. It reads:
3 A hospital is responsible for injuries proximately resulting from the 4 negligence of health care providers who are not hospital employees, 5 such as [emergency room physicians, if they are the hospital’s apparent 6 or ostensible agents], if the hospital, through its conduct, created the 7 appearance that it was the provider of these services to the public.
8 UJI 13-1120B (bracketed material out of committee commentary). The committee
9 commentary relating to UJI 13-1120B reads:
10 A hospital is liable for the negligence of independent contractors who 11 provide patient care in the hospital, such as emergency room physicians, 12 if they are the hospital’s apparent or ostensible agents. See Houghland[, 13 1995-NMCA-005, ¶¶ 22-24] (discussing factors from which jury could 14 conclude that hospital created reasonable belief that emergency room 15 physician was hospital’s employee or agent including the use of non16 employee doctors to further the hospital’s business of providing services 17 directly to the public and the choice of the doctor being controlled by 18 the hospital and not the patient.) Although Houghland arose in the 19 context of a full service emergency room, the instruction could be 20 applicable to other services provided by the hospital.
21 {25} On appeal, Plaintiff’s point is that the district court erred in failing to present
22 the theory of her case to the jury through a modified UJI 13-1120B that was offered
23 by Plaintiff during jury deliberations, which would have changed “negligence” to
24 “conduct.”
25 {26} Plaintiff asserts that her tendered instruction was necessary because the court
26 allowed the Hospital to argue to the jury that Dr. Damron’s failure to expressly “cc”
18
1 his radiology report to Dr. Voltura was the cause of Vaughan’s death. Plaintiff further
2 argues that UJI 13-1120B as it reads “is simply incorrect” because the “[negligence]
3 limitation” does not exist in the law. Plaintiff not only rejects any provider negligence
4 limitation in the instruction itself, she also rejects as incorrect the committee
5 commentary that, under Houghland, “[a] hospital is liable for the negligence of
6 independent contractors who provide patient care in the hospital, such as emergency
7 room physicians, if they are the hospital’s apparent or ostensible agents.” UJI 13
8 1120B comm. cmt.
9 {27} In support of this position, Plaintiff relies on Zamora’s “law of the case,”
10 quoting the statement in Zamora that “[u]nder Houghland, a malpractice claim arising
11 from care in a hospital emergency room implicates the hospital in the actions of any
12 employees or agents—known or unknown to the plaintiff—who took part in that
13 care.” Zamora, 2014-NMSC-035, ¶ 18. Plaintiff weaves into the analysis an
14 “attribution” argument through theories of apparent authority and agency that she
15 contends made Dr. Damron’s conduct attributable to the Hospital. Plaintiff first draws
16 on UJI 13-408 NMRA, which Plaintiff did not request be given to the jury, and which
17 reads:
18 The defendant . . . may, if there has been no actual employment, with 19 right to control, nonetheless be liable for the acts or omissions of [an 20 apparent employee.]
19
1 Plaintiff argues that this instruction “demonstrates that a principal’s responsibility for
2 apparent agency includes non-negligent conduct because it does not limit a
3 principal’s liability to the negligent conduct of its apparent agents.” Plaintiff then
4 draws on the Restatement (Third) Agency as supporting UJI 13-408. According to
5 Plaintiff, “[w]hen the principal is an organization that can act only through its agents,
6 the result is that ‘[a]n organization’s tortious conduct consists of conduct by agents
7 of the organization that is attributable to it.’ ” (Quoting Restatement (Third) of
8 Agency § 7.03 cmt. c (2006).) “[A]n organization would breach its duty of reasonable
9 care through the action or inaction of its employees and other agents, including the
10 prescription and enforcement by managerial agents of directives and guidelines to be
11 followed by other agents.” Restatement, supra. Based on these authorities, Plaintiff
12 argues that
13 [Dr.] Damron, while acting as an apparent agent of [the Hospital], might 14 not have been personally negligent in the manner in which he dictated 15 his report, yet his uninstructed conduct in not expressly noting for the 16 transcriptionist specifically who the report was to be delivered to was 17 nevertheless the immediate cause of Vaughan’s death—conduct New 18 Mexico law attributes to [the Hospital].
19 Further, Plaintiff argues that the attribution of an apparent agent’s conduct to the
20 principal is an integral part of New Mexico law as evidenced by holdings in cases
21 addressing apparent agency outside of the medical negligence arena. See, e.g., Tabet
22 v. Campbell, 1984-NMSC-059, ¶ 9, 101 N.M. 334, 681 P.2d 1111 (addressing a tax
20
1 collection issue and holding that “[a] principal is bound by the actions taken under
2 the apparent authority of its agent if the agent is in a position which would lead a
3 reasonably prudent person to believe that the agent possessed such apparent
4 authority”); Fryar v. Emp’rs Ins. of Wausau, 1980-NMSC-026, ¶ 6, 94 N.M. 77, 607
5 P.2d 615 (addressing a broker’s modification to an insurance contract); Ronald A.
6 Coco, Inc. v. St. Paul’s Methodist Church of Las Cruces, N.M., Inc., 1967-NMSC
7 138, ¶¶ 1, 4, 78 N.M. 97, 428 P.2d 636 (addressing an action to foreclose a
8 materialman’s lien).
9 {28} Plaintiff also relies on the Restatement (Second) of Agency Section 213 (1958)
10 that reads in part:
11 A person conducting an activity through servants or other agents is 12 subject to liability for harm resulting from his conduct if he is negligent 13 . . . :
14 (a) in giving improper or ambiguous orders or in failing to 15 make proper regulations[.]
16 {29} Plaintiff concludes her apparent authority/attribution arguments asserting that
17 the district court “fail[ed] to perceive the difference between vicarious and direct
18 liability” and thereby “failed to comprehend that [Dr.] Damron’s conduct, whether or
19 not rising to the level of negligence, was nonetheless attributable to [the Hospital] for
20 [the] purpose of determining whether [the Hospital’s] direct negligence in failing to
21
1 supervise or control [Dr.] Damron’s dictating convention was a cause of Vaughan’s
2 death.” And Plaintiff states,
3 The bottom line is this. New Mexico law is that an apparent agent’s 4 actions, such as [Dr.] Damron, in carrying out the principal’s duties, 5 without limitation are deemed to be the acts of [the Hospital]. [The 6 Hospital] insists that [Dr.] Damron’s acts were the cause of Vaughan’s 7 death. The law of logic and the law of agency combine to close the 8 syllogism: Because [the Hospital] conceded that [Dr.] Damron’s acts 9 were the cause of Vaughan’s death, and because [Dr.] Damron’s actions 10 in [the Hospital’s] ER system are in legal contemplation the acts of [the 11 Hospital], [the Hospital] was the cause of Vaughan’s death.
12 {30} We are not persuaded by any of Plaintiff’s arguments that her proffered
13 instruction was appropriate in this case. Plaintiff’s main point is that an overall
14 broader apparent agency instruction, without limitation, was needed. Plaintiff relies
15 on Houghland and Zamora. Houghland does not assist Plaintiff. Houghland was a
16 vicarious liability case that evaluated the appropriateness of summary judgment on
17 the issue of a hospital’s vicarious liability for an apparent agent-doctor’s alleged
18 negligence. 1995-NMCA-005, ¶ 2. In Houghland, in contrast to the case here, there
19 was no stipulation by the parties that the doctor, whose conduct was at issue, was not
20 negligent. Because the issue in Houghland was apparent agency for a vicarious
21 liability claim based on the doctor’s negligence, it has no application here where the
22 issue is apparent agency liability for non-negligent conduct. See Fernandez v.
23 Farmers Ins. Co. of Ariz., 1993-NMSC-035, ¶ 15, 115 N.M. 622, 857 P.2d 22
22
1 (“[C]ases are not authority for propositions not considered.” (internal quotation marks
2 and citation omitted)).
3 {31} We are also not persuaded by Plaintiff’s interpretation of Zamora. Although
4 Zamora states that under Houghland “a malpractice claim arising from care in a
5 hospital emergency room implicates the hospital in the actions of any employees or
6 agents—known or unknown to the plaintiff—who took part in [the] care[,]” we
7 remind Plaintiff that the issue being addressed in Zamora was whether there was
8 sufficient information in the complaint to notify the hospital “that one or more of its
9 employees or agents was negligent[.]” 2014-NMSC-035, ¶¶ 1, 18. Thus, as in
10 Houghland, the Court in Zamora was considering the viability of a vicarious liability
11 claim based on the doctor’s negligence, not a direct liability claim based on apparent
12 agency principles and based on the non-negligent conduct of the apparent agent. The
13 passage in Zamora cited by Plaintiff is impermissibly taken out of context. Zamora
14 is not in any sense about the issue Plaintiff raises. The passage does not, as Plaintiff
15 exaggerates, state clearly or plainly that “negligence” is to be replaced by “conduct.”
16 {32} We also reject Plaintiff’s attempt to expand a hospital’s medical negligence
17 liability through tying in UJI 13-408, the Restatement (Third) of Agency Section 7.03
18 principal’s responsibility for an apparent agent’s conduct, and the case law on
19 apparent agency in non-medical negligence contexts. Those provisions are nowhere
23
1 in New Mexico law given or intended to be given transformative powers to create
2 new law and liability in the body of medical malpractice, much less as to direct
3 hospital liability for the non-negligent acts of a non-employee. This case was not tried
4 on Plaintiff’s apparent agency and attribution theory, and the authorities Plaintiff
5 now, for the first time, cites and argues for support of her late-developed theory, were
6 never brought to the attention of the district court either by way of offered
7 instructions or argument against the court’s instructions. We agree with the district
8 court’s assessment that “[t]here has never been a case which says [that a hospital is]
9 responsible for compensatory damages on account of non-negligent acts of the
10 physicians who are not [that hospital’s] employees[,]” and any expansion of law and
11 liability as desired by Plaintiff must come, if at all, from a public policy-based
12 decision of our Supreme Court.
13 {33} Even were we to assume that a direct liability medical negligence claim against
14 a hospital based on the conduct of an apparent agent might be viable under some
15 circumstances in New Mexico law, we nevertheless agree with the district court’s
16 decision not to give the instruction in this case because such an instruction was not
17 supported by the case presented. The case presented to the jury couched liability in
18 terms of system failures, not based on Dr. Damron’s alleged failures. Plaintiff argued
19 at trial that the Hospital was at fault for failing to deliver the report and argued “[i]t
24
1 wasn’t Dr. Damron’s job to take that report and walk it down the hall.” Plaintiff’s
2 case was tried based on her strategy of admitting that Dr. Damron was not negligent.
3 Given this approach by Plaintiff at trial, the district court did not err in refusing to
4 give the instruction. State ex rel. State Highway Dep’t v. Strosnider, 1987-NMCA
5 136, ¶ 14, 106 N.M. 608, 747 P.2d 254 (“A party is entitled to have the jury instructed
6 upon all correct legal theories of his case when the instruction comes within the ambit
7 of the pleadings and there is evidence to support it. A proffered instruction, however,
8 must be in accord with the evidence and constitute a correct statement of the law.”
9 (citations omitted)).
10 {34} Plaintiff nevertheless argues the record indicates that, as a result of the refusal
11 to give the instruction, the jury was confused about causation and erroneously
12 concluded that the conduct of Dr. Damron was the sole cause of Vaughan’s death.
13 Plaintiff looks to the lack of an instruction on apparent agency in Instruction Nos. 2,
14 12, and 19, coupled with alleged confusion expressed in the jury question. Plaintiff’s
15 causation position hangs on her assertion that the “court allowed [the Hospital] to
16 assert that [Dr.] Damron was the sole ‘cause’ of Vaughan’s injuries and death[.]” And
17 Plaintiff complains that the court “then forbade the jury from finding that the
18 [H]ospital was responsible for [Dr.] Damron’s immediate actions in doing so[.]”
19 Thus, according to Plaintiff, forbidding the jury from considering Dr. Damron as the
25
1 Hospital’s apparent agent compelled the jury to reach a “no causation” verdict, and
2 as the “last word” on apparent agency given to the jury during its deliberations,
3 affected the jury’s ultimate decision and “functionally amounted to the grant of a
4 directed verdict for [the Hospital].”
5 {35} Plaintiff essentially hangs her hat on what she believes was “[t]he powerfully
6 persuasive impact of [the] supplementary instruction” given by the district court in
7 response to the jury’s question that led the jury to an allegedly erroneous conclusion.
8 In support of her position, Plaintiff cites Arroyo v. Jones, 685 F.2d 35, 39 (2d Cir.
9 1982), that stated:
10 A supplemental charge must be viewed in a special light. It will enjoy 11 special prominence in the minds of the jurors for several reasons. First, 12 it will have been the most recent, or among the most recent, bit of 13 instruction they will have heard, and will thus be freshest in their minds. 14 Moreover, it will have been isolated from the other instructions they 15 have heard, thus bringing it into the foreground of their thoughts. 16 Because supplemental instructions are generally brief and are given 17 during a break in the jury’s deliberations, they will be received by the 18 jurors with heightened alertness rather than with the normal 19 attentiveness which may well flag from time to time during a lengthy 20 initial charge. And most importantly, the supplemental charge will 21 normally be accorded special emphasis by the jury because it will 22 generally have been given in response to a question from the jury.
23 {36} We are not persuaded. Neither the jury’s question, nor the refusal to give
24 Plaintiff’s tendered instruction, nor the court’s instruction given in answer to the
25 question, can reasonably be considered a persuasive directive to the jury to find that
26
1 the Hospital’s negligence did not cause Vaughan’s death. As stated throughout this
2 opinion, the theory of Plaintiff’s case was based on the Hospital’s direct negligence
3 from administrative failure as causing Vaughan’s death. Plaintiff had and took every
4 opportunity to argue to the jury that it was the Hospital’s systemic failure that
5 affected Dr. Damron’s actions or failures to act with respect to his report. There exists
6 substantial evidence in the record from which the jury could have reasonably
7 concluded that Vaughan’s death was fully caused by conduct other than the
8 Hospital’s administrative failure to have the protocols Plaintiff argued were
9 necessary.
10 {37} This case was fully and fairly tried by skilled, competent counsel, based on
11 their claims, defenses, and trial strategies. Again, Plaintiff had every opportunity to
12 argue the Hospital’s negligent failure to establish protocols for Dr. Damron, as well
13 as every opportunity to attempt to build a case or argument that the Hospital’s
14 negligence was a cause of Vaughan’s death. We will not attempt to second-guess the
15 jury’s view of the evidence as to causation and will not attempt to speculate on the
16 effect on the jury of the court’s supplemental instruction.

Outcome: We affirm the jury’s verdict of lack of causation and the district court’s
19 judgment entered on the verdict in favor of the Hospital.

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