Siebert v. Okun

                                             Office of the Director   New Mexico
                                              15:43:44 2021.05.14     Compilation
                                                            '00'06-   Commission

            IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: March 15, 2021

NO. S-1-SC-37231

SUSAN L. SIEBERT,

      Plaintiff-Appellee,

v.

REBECCA C. OKUN, M.D.,
and WOMEN’S SPECIALISTS
OF NEW MEXICO, LTD.,

      Defendants-Appellants.

CERTIFICATION FROM THE NEW MEXICO COURT OF APPEALS
Victor S. Lopez, District Judge

Released for Publication May 25, 2021.

Hinkle Shanor, LLP
William P. Slattery
Dana Simmons Hardy
Santa Fe, NM

Dickinson Wright, PLLC
Bennett Evan Cooper
Phoenix, AZ

Lorenz Law
Alice Tomlinson Lorenz
Albuquerque, NM

for Appellants

Curtis & Co.
Lisa Curtis
Laura R. Callanan
Albuquerque, NM

The Law Office of Amalia S. Lucero, LLC
Amalia J. Skogen Lucero
Placitas, NM
for Appellee

John W. Anderson, Attorney at Law P.C.
John William Anderson
Albuquerque, NM

Shook, Hardy & Bacon, LLP
Mark A. Behrens
Cary Silverman
Washington, D.C.

for Amici Curiae New Mexico Medical Society and American Medical
Association

Rodey, Dickason, Sloan, Akin & Robb, P.A.
Edward R. Ricco
Albuquerque, NM

for Amicus Curiae New Mexico Hospital Association

University of New Mexico School of Law
Michael B. Browde
David J. Stout
Albuquerque, NM

American Association for Justice
Elsie Sanguinetti, President
Jeffrey White, Senior Associate General Counsel
Washington, DC

for Amici Curiae New Mexico Trial Lawyers Association
and American Association for Justice

                                        OPINION

VIGIL, Justice.

{1}    This case requires us to consider whether the cap on all damages other than
medical care and punitive damages under the Medical Malpractice Act (MMA), NMSA
1978, §§ 41-5-1 to -29 (1976, as amended through 2015), violates the right to trial by
jury guaranteed by Article II, Section 12 of the New Mexico Constitution. Plaintiff Susan
L. Siebert successfully sued her doctor, Rebecca C. Okun, M.D., and Women’s
Specialists of New Mexico, Ltd. (WSNM) for medical malpractice under the MMA.
Following the return of the jury’s verdict, Defendants Dr. Okun and WSNM moved to
reduce the jury award of $2,600,000 to conform with the $600,000 cap on all
nonmedical and nonpunitive damages in MMA actions. See NMSA 1978, § 41-5-6(A)
(1992).
{2}     The district court denied Defendants’ motion, concluding that the MMA
nonmedical, nonpunitive damages cap infringed the state constitutional right to a trial by
jury. In doing so, the district court ruled in direct opposition to the Court of Appeals’
holding in Salopek v. Friedman, 

, 

. In addition, the
district court suggested without deciding that the cap might implicate the equal
protection, substantive due process, and separation of powers provisions of the New
Mexico Constitution. N.M. Const. art. II, § 18; N.M. Const. art. III, § 1.

{3}    We review this case upon acceptance of certification from the Court of Appeals.
Siebert v. Okun, A-1-CA-36067, Order of Certification to the New Mexico Supreme
Court (Sept. 4, 2018); Siebert v. Okun, S-1-SC-37231, Order (Sept. 24, 2018). As we
explain herein, we hold that the MMA nonmedical, nonpunitive damages cap does not
violate Article II, Section 12, and we reverse the district court’s denial of Defendants’
motion to conform the judgment in accordance with the statutory cap. See § 41-5-6(A).

I.     BACKGROUND

{4}   Plaintiff suffered injuries due to perforations in her uterus and intestine after a
hysteroscopy performed by Dr. Okun, an employee of WSNM. Subsequently, Plaintiff
brought suit against Defendants. Because Defendants were “qualified” health care
providers as defined by the MMA, NMSA 1978, § 41-5-5(A) (1992), the provisions of the
MMA applied to Plaintiff’s suit for medical malpractice.

{5}     The MMA statutory scheme is a quid pro quo, whereby qualified health care
providers are afforded certain legal protections only if they take financial action in
anticipation of medical negligence lawsuits. Specifically, a qualified health care provider
under the MMA must pay an annual surcharge into the statutorily-created patient’s
compensation fund and either provide proof of professional liability insurance of at least
$200,000 per occurrence or, for an individual health care provider, have a continuous
deposit of $600,000 with the state superintendent of insurance. NMSA 1978, §§ 41-5-
3(A) (1977), -5(A), -25 (1997). In exchange for these financial contributions and
assurances, the MMA provides qualified health care providers with various benefits.
See generally Baker v. Hedstrom, 

, 

 (reviewing the
benefits provided by the MMA to qualified health care providers). Among those benefits,
the MMA caps nonmedical, nonpunitive damages awards at $600,000 and limits the
qualified health care provider’s personal liability to $200,000. Section 41-5-6; NMSA
1978, § 41-5-7(E) (1992). Any remaining amount of the judgment exceeding the
personal liability cap is paid out of the patient’s compensation fund. Sections 41-5-7(E),
-25(G). Most pertinent to this case is the cap on an award of nonmedical, nonpunitive
damages under Section 41-5-6(A).

{6}     Section 41-5-6(A) 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.” The amount recoverable for a
malpractice claim under the MMA does not include awards for future medical expenses,
but if the jury finds that a successful plaintiff is in need of future medical care, that
plaintiff may receive payment for reasonable future medical expenses as they are
incurred. Sections 41-5-6(C), -7(A)-(B), -(D). Awards for those future medical expenses
are not capped. Section 41-5-7(C). In other words, the jury in an MMA action
determines whether a plaintiff is entitled to future damages but does not award a
specific amount following the trial. The amount awarded for future medical care is
established in subsequent evidentiary hearings. Section 41-5-7.

{7}     The jury in this case awarded Plaintiff $2,600,000 in total damages. The
damages award was not disaggregated into various categories of damages. This is
because the district court failed to give the required special interrogatory asking the jury
to state the amount of damages it awarded for past medical care and benefits. UJI 13-
1126 NMRA. In addition, the jury was incorrectly instructed to award damages for
Plaintiff’s future medical care in violation of Section 41-5-7. The jury was not given the
required special interrogatory asking if Plaintiff was in need of future medical care, UJI
13-1125 NMRA. For these reasons, we are not certain how much of the jury’s verdict
was intended to compensate for past medical care and nonmedical injuries, and we do
not know whether any amount of the jury’s award was intended to compensate for
future medical care. However, the jury was instructed that Plaintiff’s medical expenses
totaled $935,916.15. We therefore accept that this amount of the jury’s verdict was
intended to compensate Plaintiff for her existing medical expenses by the time of the
trial. The jury was also instructed that it could award compensation for various
nonmedical injuries, such as pain and suffering, loss of household services, and loss of
enjoyment of life, among other injuries. The jury was not instructed on punitive
damages.

{8}     The district court entered judgment against Defendants for the total amount of
the jury’s verdict. Defendants subsequently moved to amend the judgment to conform to
the damages cap of Section 41-5-6(A). Defendants argued that the total award should
be reduced to $1,535,916.15, representing the stipulated amount of Plaintiff’s existing
medical expenses ($935,916.15) plus $600,000 for Plaintiff’s capped nonmedical
damages. In response, Plaintiff argued that the MMA nonmedical, nonpunitive damages
cap was unconstitutional, specifically violating the right to a jury trial as guaranteed by
Article II, Section 12, the separation of powers provision of Article III, Section 1, and the
equal protection and substantive due process clauses of Article II, Section 18.

{9}     After an evidentiary hearing on the constitutional issues, the district court issued
its memorandum opinion and order, which concluded that Article II, Section 12 was
“clearly implicated and dispositive” and that the MMA nonmedical, nonpunitive damages
cap violated Plaintiff’s right to a jury trial. The district court stated that the constitutional
separation of powers, equal protection, and due process provisions might also be
implicated but declined to decide those issues.

{10} Defendants appealed to the Court of Appeals. Because the Court of Appeals had
already addressed the issues presented by this case in Salopek, 

, it
certified the case to this Court pursuant to NMSA 1978, Section 34-5-14(C) (1972), and
Rule 12-606 NMRA. Siebert, A-1-CA-36067, Order (Sept. 4, 2018).
II.     DISCUSSION

{11} In its certification order, the Court of Appeals identified the following significant
questions of law: (1) whether the district court erred by concluding that the MMA
nonmedical, nonpunitive damages cap violates the right to a trial by jury; (2) whether the
district court erred in suggesting that the MMA nonmedical, nonpunitive damages cap
violates the separation of powers provision; and (3) whether the district court erred in
suggesting that the MMA nonmedical, nonpunitive damages cap violates equal
protection and substantive due process. 

 We accepted certification. Siebert, S-1-SC-
37231, Order (Sept. 24, 2018). With this opinion, we answer the first question posed by
the Court of Appeals—whether the MMA nonmedical, nonpunitive damages cap violates
the state constitutional right to trial by jury. We do not address the remaining certified
questions because the district court merely suggested that the separation of powers,
substantive due process, and equal protection provisions of the New Mexico
Constitution “may also be implicated.” The district court did not definitively rule that the
cap violated any constitutional guarantees aside from the right to trial by jury. For that
reason, analysis of any other constitutional issues is not necessary to the disposition of
the case before us. We therefore decline to answer the second and third questions
posed by the Court of Appeals. See Schlieter v. Carlos, 

, ¶ 13, 

, 

 (“It is an enduring principle of constitutional jurisprudence that
courts will avoid deciding constitutional questions unless required to do so. We have
repeatedly declined to decide constitutional questions unless necessary to the
disposition of the case.”). For the reasons that follow, we hold that the MMA
nonmedical, nonpunitive damages cap does not violate Article II, Section 12.

{12} Constitutional challenges to a statute are reviewed de novo. Bounds v. State ex
rel. D’Antonio, 

, ¶ 11, 

. When reviewing a statute under a
constitutional challenge, a “strong presumption in favor of constitutional validity . . .
attaches to legislative enactments.” Otto v. Buck, 

, ¶ 16, 

,

.

{13} The New Mexico Constitution provides that “[t]he right of trial by jury as it has
heretofore existed shall be secured to all and remain inviolate.” N.M. Const. art. II, § 12.
This right pertains to civil causes of action that were triable by jury at the time the New
Mexico Constitution was adopted and took effect. 1 State ex rel. Bliss v. Greenwood,

, ¶ 15, 

, 

 (“[I]n that class of cases where the




1This case implicates only the state constitutional right to a jury trial in civil cases as the analogous
federal right articulated in the Seventh Amendment applies only to “Court[s] of the United States.” Despite
this distinction, we consider federal precedent relevant to our analysis of the state right to a jury trial in
civil cases. Bd. of Educ. of Carlsbad Mun. Schs. v. Harrell, 

, ¶ 34, 

, 

. This is because both constitutional provisions preserve the right to jury trial as it existed in the
jurisdiction at the time each constitution was adopted. See id. ¶¶ 33-34 (providing that both the Seventh
Amendment to the United States Constitution and Article II, Section 12 of the New Mexico Constitution
“preserve[] the common law right to jury trial and do[] not create a new or broader right” (internal quotation
marks and citation omitted)).
right to a trial by jury existed prior to the Constitution, it cannot be denied by the
legislature.”).

{14} Defendants bring this appeal, arguing that Plaintiff’s right to trial by jury was not
violated for two reasons. First, relying on the Court of Appeals’ holding in Salopek,

, Defendants claim that the jury right does not attach to
medical malpractice cases under the MMA because the MMA is a statutory cause of
action that did not exist at the time the New Mexico Constitution came into effect.
Second, Defendants argue that the MMA nonmedical, nonpunitive damages cap does
not even implicate the right to a jury trial because the cap merely gives legal effect to
the jury’s damages award; the cap does not invade the jury’s role as fact-finder. Put
another way, regardless of whether the right to a jury trial attaches to actions brought
under the MMA, the damages cap does not violate the jury right but instead limits the
scope of a plaintiff’s available legal remedy.

{15} We address each argument in turn and conclude that the MMA nonmedical,
nonpunitive damages cap does not violate the right to trial by jury. While we agree with
the outcome in Salopek, in which the Court of Appeals held that the cap did not violate
Article II, Section 12, we must overrule its conclusion that the constitutional jury right
does not attach to MMA causes of action. To the contrary, we hold that the
constitutional right to trial by jury applies in cases brought under the MMA. Though the
constitutional jury right applies in MMA cases, we further hold that the damages cap of
Section 41-5-6(A) does not violate the right to trial by jury because the cap does not
invade the province of the jury. Rather, this statutory damages cap merely gives legal
consequence to the jury’s determination of the amount of the verdict.

A.      The Constitutional Right to Trial by Jury Attaches to Causes of Action
        Brought Under the MMA

{16} To determine whether the right to trial by jury extends to a specific cause of
action, we assess the general nature of the claim to determine whether the specific
cause of action would have been tried to a jury prior to the effective date of the New
Mexico Constitution. In identifying the general cause of action at issue, 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” the New Mexico
Constitution was adopted and took effect. See Greenwood, 

, ¶ 15. We
have explained that to determine whether the cause of action at issue lies within the
class of cases to which the jury right applied, “the relevant question is whether the more
generally described cause of action, such as breach of contract or breach of fiduciary
duty, was triable to a jury.” 2 Lisanti v. Alamo Title Ins. of Tex., 

,



2The Lisanti rule is substantively similar to the analysis used by federal courts to determine which cases
trigger the jury right under the Seventh Amendment. In Granfinanciera, SA v. Nordberg, the United States
Supreme Court explained that the right to a jury trial in civil cases “applies to actions brought to enforce
statutory rights that are analogous to common-law causes of action ordinarily decided in English law
courts” at the time the United States Constitution was adopted. 

 (1989).


, 

 (emphasis added). It is “the cause of action, not its specific
manifestation, [that is] dispositive.” 

 ¶ 14 (citing Harrell, 

).

{17} When assessing the general cause of action, we must also consider whether the
requested relief is legal or equitable in nature. See Harrell, 

, ¶¶ 35-37;
see also Granfinanciera, 

 (“‘Suits at common law’ . . . refer[s] to ‘suits in
which legal rights were to be ascertained and determined, in contradistinction to those
where equitable rights alone were recognized, and equitable remedies were
administered.’” (citations omitted)). If the sought relief is solely equitable in nature, the
right to jury trial does not attach. See 

 We need not linger on this consideration
because Plaintiff seeks a legal remedy in the form of monetary damages for negligence.
The critical inquiry in this case is two-fold: (a) whether causes of action brought under
the MMA can be “more generally described” as causes of action in common-law
medical negligence, see Lisanti, 

, and (b) whether claims of
common-law medical negligence were triable to a jury at the time the New Mexico
Constitution was adopted and took effect. We begin our analysis with an examination of
the Court of Appeals’ opinion in Salopek, the principal case upon which Defendants rely
in bringing this appeal.

1.     A claim under the MMA can be more generally described as a cause of
       action in common-law medical negligence

{18} In Salopek, the Court of Appeals concluded that the MMA created a new
statutory cause of action that was distinct from a claim of common-law medical
negligence. 

, ¶ 58. In that case, the plaintiff sued his doctor for medical
malpractice under the MMA. Id. ¶ 5. The jury found that the doctor was negligent in
failing to pressurize the plaintiff’s colon in order to locate a perforation and awarded the
plaintiff $1,000,000 in damages. Id. ¶¶ 3, 5. The district court reduced the damages
award to $600,000 pursuant to the damages cap of Section 41-5-6(A). Id. ¶ 5. On
appeal, the plaintiff argued, among other things, that the cap on damages violated his
constitutional right to trial by jury under Article II, Section 12. Id. ¶¶ 49, 51. The Court of
Appeals disagreed and held that the constitutional jury right did not attach in the
plaintiff’s case because an action for medical malpractice under the MMA was “an
entirely new statutory cause of action that was not recognized under the common law.”
Id. ¶ 50.

{19} In support of this conclusion, the Court of Appeals described four ways in which it
considered a claim under the MMA distinct from a common-law claim of medical
negligence. Id. ¶¶ 53-58. First, under the MMA, a plaintiff must submit his or her claim to
the statutorily-created medical review commission, which assesses the plaintiff’s
likelihood of success and, upon determining that the acts complained of “might
constitute malpractice,” provides the plaintiff assistance in obtaining “a physician
qualified in the field of medicine involved” to serve as a consultant and expert witness at
trial. Id. ¶ 54; NMSA 1978, §§ 41-5-14, -15, -20, -23 (1976). No such review of the case
and conditional provision of an expert is afforded the plaintiff in a common-law medical
negligence claim. Salopek, 

, ¶ 54.
{20} Second, the MMA provides a statute of repose requiring a plaintiff to bring a
claim within three years of the act of malpractice, NMSA 1978, § 41-5-13 (1976), as
opposed to the statute of limitations for common-law medical negligence claims which
permits claims to be brought “within three years from the time that the patient discovers,
or with reasonable diligence should have discovered, that a claim exists.” Salopek,

.

{21} Third, the MMA caps the defendant health care provider’s personal liability at
$200,000 for “all medical care and related benefit payments,” § 41-5-7(E), and the MMA
also created the patient’s compensation fund to cover any amount that exceeds the
personal liability cap. Salopek, 

; §§ 41-5-6(D), -25. No such cap
or compensation fund exists at common law, so a defendant in a common-law medical
negligence case “is liable for all actual damages proximately caused.” Salopek, 2013-
NMCA-087, ¶ 56.

{22} Finally, under the MMA, a successful plaintiff found to be in need of future
medical care is not awarded future medical damages at trial but is instead compensated
for continuing medical care as those expenses are incurred, § 41-5-7(B), (D), and the
district court maintains continuing jurisdiction to enforce payment to the plaintiff, NMSA
1978, §§ 41-5-9, -10 (1976). Salopek, 

, ¶ 57. In contrast, a successful
plaintiff in a common-law medical negligence claim may recover only once for future
medical care if the jury accounts for those expenses within its damages award. Id.; see
UJI 13-1804 NMRA. In other words, under a traditional common-law medical negligence
lawsuit, there is no determination of future medical expenses beyond the jury’s award of
damages at trial.

{23} In light of these distinctions and the aim of the Legislature to create a statutory
scheme for medical malpractice that would benefit patients as well as appease
insurance providers, the Court of Appeals held that the MMA was sufficiently distinct
from common-law medical negligence so as to constitute an entirely new statutory
cause of action to which the constitutional jury right did not attach. Salopek, 2013-
NMCA-087, ¶ 58 (“[W]here the Legislature 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.” (brackets omitted) (internal quotation marks and citation omitted)).

{24} We disagree with the Court of Appeals’ analysis and conclusion that an MMA
claim is a cause of action that is distinct from common-law medical negligence. In
reaching its conclusion, the Salopek Court relied on procedural distinctions between
MMA and non-MMA medical negligence cases. Id. ¶¶ 53-58. These procedural
distinctions evidence only the Legislature’s intent to alter the way in which a medical
negligence claim is brought against a qualified health care provider. Id. ¶¶ 52-53, 58.
While procedural requirements dictate how a claim may be asserted, they do not affect
the general substantive nature of a cause of action. Thus, heavy reliance solely on the
procedural differences between MMA and non-MMA claims runs counter to the
principles we pronounced in Lisanti. Consistent with our precedent, in order to
determine whether an MMA claim can be “more generally described” as a claim of
medical negligence at common law, we must examine the core substantive elements of
each type of claim. See Lisanti, 

.

{25} The substantive elements of a medical malpractice claim under the MMA and the
substantive elements of a medical negligence claim at common law are
indistinguishable. This is reflected in our jury instructions. The same jury instructions are
used for MMA and non-MMA cases alike to explain “the basic elements of a medical
negligence (malpractice) action.” Rule Set 13 (“Uniform Jury Instructions—Civil”), Ch.
11 (“Medical Negligence”) Intro. NMRA. These elements include duty, breach of that
duty “by departing from the proper standard of medical practice recognized in the
community[,]” and proximate causation of the plaintiff’s injuries. Diaz v. Feil, 1994-
NMCA-108, ¶ 5, 

, 

; see UJI 13-1101 (duty and breach of
duty), -1116A (causation for failure to warn of potential injury arising from treatment of
conditions), -1116B NMRA (causation for failure to warn of potential injury resulting from
untreatment of conditions). Under both types of claims, the jury is asked to assess
damages. See Rule Set 13, Ch. 18 (“Damages”) Intro. NMRA (“Instructions on damages
follow as a matter of course in all cases wherein an issue is submitted to a jury on the
recovery of damages.”).

{26} There are only two slight statutory differences affecting how the jury is instructed
in MMA cases and cases of common-law medical negligence, neither of which pertain
to the elements a plaintiff must prove in these types of cases. We consider these
differences procedural rather than substantive. First, in an MMA case, the jury is not
informed of the statutory damages cap. See § 41-5-6(A) (“[T]he jury shall not be given
any instructions dealing with th[e] limitation [on damages.]”). Second, if the jury finds a
health care provider negligent in an MMA case, it must then answer whether the plaintiff
is in need of future medical care and benefits as a result of the injury. See § 41-5-7(A).
However, the jury in an MMA case is not permitted to determine “the value of future
medical care and related benefits, and evidence relating to the value of future medical
care shall not be admissible.” Id. Uniform Jury Instructions 13-1125 and -1126 provide
special interrogatories for MMA juries in accordance with these requirements. See UJI
13-1125 (“If your verdict is for the plaintiff, do you find that plaintiff is in need of future
medical care and related benefits?”); UJI 13-1126 (“What do you find was the value or
cost of past medical care and related benefits received by the plaintiff?”). Other than
these differing procedural instructions, the same jury instructions are used for medical
malpractice claims under the MMA and medical negligence claims at common law.

{27} The procedural differences between MMA and non-MMA claims demonstrate
that the Legislature intended to change how the courts facilitate and administer
remedies when a plaintiff brings a medical malpractice action against a qualified health
care provider under the MMA. See Inc. Cnty. of Los Alamos v. Johnson, 1989-NMSC-
045, ¶ 4, 

, 

 (“We . . . presume that the legislature intends to
change existing law when it enacts a new statute.”). However, in passing the MMA, the
Legislature did not change the essential substantive elements that a plaintiff must prove
in order to hold any health care provider liable for medical negligence. Put differently,
with respect to the required elements a plaintiff must prove in order to succeed in either
an MMA claim for medical malpractice or a common-law claim for medical negligence,
the core substance of the causes of action is the same. The identical substantive jury
instructions for both MMA and non-MMA cases belie any argument to the contrary.

{28} In applying our approach in Lisanti, we conclude that a claim under the MMA is
“more generally described” as a cause of action in medical negligence. See 2002-
NMSC-032, ¶ 13. Our conclusion satisfies the first of our two-part inquiry to determine
whether the constitutional jury right attaches to Plaintiff’s claim under the MMA. We turn
now to the second question whether common-law medical negligence claims were tried
by a jury when the New Mexico Constitution took effect.

2.    Medical negligence claims were triable by jury prior to the adoption and
      effective date of the New Mexico Constitution

{29} Having concluded that claims under the MMA are essentially claims of medical
negligence, we now examine whether medical negligence claims would have been tried
by juries in New Mexico at the time the New Mexico Constitution was adopted on
January 21, 1911, to become effective on January 6, 1912, when New Mexico was
admitted into the union. See N.M. Const. art. XXII, § 1 (“This constitution shall take
effect and be in full force immediately upon the admission of New Mexico into the union
as a state.”); Proclamation of President Taft, 

 (1912). The district court
determined in its March 23, 2018, order that the constitutional jury right attached to
causes of action under the MMA because juries heard medical negligence cases at
American common law prior to the adoption of the New Mexico Constitution. Based on
the following historical analysis, we agree.

{30} There does not appear to have been a reported appellate opinion concerning a
claim of medical negligence prior to the effective date of the New Mexico Constitution.
See Jerrald J. Roehl, The Law of Medical Malpractice in New Mexico, 

, 294 n.6 (1973). In fact, medical negligence as a cause of action does not appear in
the state appellate record until 1954. Id.; Los Alamos Med. Ctr., Inc. v. Coe, 1954-
NMSC-090, 

, 

. Broadening the scope of our review of state
case law to include causes of action that are similar to medical negligence, we find that
cases of personal injury tort were tried by juries in the Territory of New Mexico prior to
statehood. See, e.g., Schmidt v. Sw. Brewery & Ice Co., 

, ¶¶ 8-9, 

, 

. In 1876, the New Mexico Territorial Legislature adopted “the
common law as recognized in the United States of America,” NMSA 1978, § 38-1-3
(1876), so we turn to review the common law of other American jurisdictions, as well as
that of England.

{31} The first reported case of medical negligence occurred in England in 1374.
Roehl, supra, at 294 n.2. Medical negligence claims were tried by juries in the United
States as early as 1794. See Cross v. Guthery, 

, 91 (Conn. 1794). A survey of
these historical pieces leads us to conclude that, even though there is not an appellate
record of a medical negligence case that was tried by a jury in New Mexico prior to the
middle of the twentieth century, causes of action arising in medical negligence would
have been triable by a jury under the common law of New Mexico at the time the New
Mexico Constitution took effect.
{32} Based on these historical examples and our conclusion that causes of action
under the MMA can be more generally described as causes of action in medical
negligence, we hold that the constitutional right to trial by jury attaches to causes of
action brought under the MMA. To the extent that the Court of Appeals’ opinion in
Salopek differs from this conclusion, that opinion is hereby overruled. Though we
overrule Salopek on the grounds noted herein, we must address the district court’s
failure to apply Salopek in its consideration of Defendants’ motion to reduce the
judgment from the full jury award in this case.

3.     The district court erred by declining to apply binding precedent

{33} In denying Defendants’ motion to conform the amount of the jury verdict with the
MMA nonmedical, nonpunitive damages cap, the district court concluded that the
Legislature did not create a wholly new statutory cause of action with the enactment of
the MMA. While we agree with this conclusion in substance, the district court erred by
failing to apply the Court of Appeals’ holding in Salopek that the MMA nonmedical,
nonpunitive damages cap did not violate Plaintiff’s state constitutional right to a jury trial.
See Salopek, 

. “The general rule is that a court lower in rank than
the court which made the decision invoked as a precedent cannot deviate therefrom
and decide contrary to that precedent, irrespective of whether it considers the rule laid
down therein as correct or incorrect.” Alexander v. Delgado, 

, ¶ 9, 

, 

 (internal quotation marks and citation omitted). In this instance,
the district court was bound by the Court of Appeals’ opinion in Salopek.

B.     The MMA Nonmedical, Nonpunitive Damages Cap Does Not Invade the
       Province of the Jury

{34} Though we hold that the constitutional right to trial by jury attaches to causes of
action brought under the MMA, we must now address Defendants’ argument that the
damages cap of Section 41-5-6(A) does not infringe the right to trial by jury because the
cap merely “restricts the scope” of the remedy available to Plaintiff. According to
Defendants, the MMA nonmedical, nonpunitive damages cap does not interfere with the
jury’s duty to decide the “true issues of fact.” See Sanchez v. Gomez, 

,
¶ 8, 

, 

. Rather, the damages cap applies only after the jury has
completed its role as fact-finder.

{35} Plaintiff responds that the determination of the full amount of damages awarded
a given plaintiff is “within the exclusive province of the jury,” relying on Hood v.
Fulkerson, 

, ¶ 10, 

, 

. Plaintiff contends that
“capping damages amounts to a partial abrogation of the jury-trial right.” In light of the
“inviolate” nature of the constitutional jury right, Amici, New Mexico Trial Lawyers
Association and American Association for Justice, assert that outside the context of
judicial remittitur, any limit on the jury-found damages award violates the right to trial by
jury.

{36} Plaintiff’s reliance on Hood is not dispositive of the question before us: whether
the constitutional right to trial by jury invalidates the MMA’s nonmedical, nonpunitive
damages cap and guarantees Plaintiff full recovery of the jury’s verdict. In Hood, we
concluded that the district court erred when it altered the amount of the jury’s verdict in
a negligence action based on the district court’s understanding that the jury may have
been confused. See 

, ¶¶ 2-4, 10. We explained that “if the court felt the
jury verdict was not clear or correct, it should have instructed the jury to amend the
verdict to clearly state the wishes of the jury.” Id. ¶ 11. For the district court to alter the
amount of the jury’s verdict was impermissible. Id. ¶¶ 10-11. Though we stated that
determining the “proper amount for damages” was in the “exclusive province of the
jury,” the holding of Hood does not answer the question whether a jury-found damages
award is immune from subsequent reduction pursuant to a statutory damages cap. See
id. ¶ 10.

{37} We agree with the Court of Appeals’ framing of this analysis: “[T]he ‘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.’” Salopek,

 (quoting Learmonth v. Sears, Roebuck & Co., 

(5th Cir. 2013)). However, because the Salopek Court determined that the constitutional
jury right did not apply to MMA claims, see id. ¶ 50, it did not engage the second part of
the inquiry: What does the constitutional right to trial by jury encompass?

{38} To answer this question, we start with the language of Article II, Section 12 and
conduct a historical review of the jury trial right as it existed in the United States prior to
the adoption and effective date of the New Mexico Constitution. We then delineate the
role of the jury based on New Mexico precedent and statutory history, as well as the
United States Supreme Court’s interpretation of the jury’s function. Finally, we examine
several out-of-state cases where courts were asked, as we are today, whether statutory
damages caps violate their respective constitutional provisions guaranteeing the right to
trial by jury. Following this analysis, we conclude that the MMA nonmedical, nonpunitive
damages cap merely gives legal consequence to the jury’s finding on damages and
therefore does not infringe the guarantee of Article II, Section 12.

{39} As we have previously stated, Article II, Section 12 provides that “[t]he right of
trial by jury as it has heretofore existed shall be secured to all and remain inviolate.” To
interpret this constitutional provision, we must determine (a) the proper definition of the
term “inviolate” and (b) the scope of the right to trial by jury in civil actions at the time the
New Mexico Constitution took effect.

1.     Interpretation of “inviolate”

{40} The Court of Appeals has stated that the constitution’s requirement that the right
to jury trial shall “remain inviolate” means that the right is “protected absolutely” where it
applies. Salopek, 

, ¶ 51 (internal quotation marks and citation omitted).
Similarly, Black’s Law Dictionary defines “inviolate” as “[f]ree from violation; not broken,
infringed, or impaired.” Inviolate, Black’s Law Dictionary (11th ed. 2019). Some state
courts have interpreted “inviolate” to mean “not disturbed or limited” and have used this
definition to strike down statutory damages caps. Hilburn v. Enerpipe Ltd., 

 (Kan. 2019) (internal quotation marks and citation omitted); see Sofie
v. Fibreboard Corp., 

, 721-22, 728 (Wash. 1989) (“Applied to the right to
trial by jury, this [constitutional] language indicates that the right must remain the
essential component of our legal system that it has always been. For such a right to
remain inviolate, it must not diminish over time and must be protected from all assaults
to its essential guarantees.”). Other courts have interpreted “inviolate” to mean “freedom
from . . . partial destruction or substantial impairment” but have emphasized that an
“inviolate” right is not “immun[e] from all regulation.” Humphrey v. Eakley, 

,
1098 (N.J. 1905); see Commonwealth v. Fugmann, 

 (Pa. 1938)
(concluding that “‘inviolate’ . . . does not import rigidity of regulation in the manner of
impaneling a jury”).

{41} Our Court of Appeals adopted this broader interpretation in concluding that the
procedural requirements to make a timely jury demand under a precursor to Rule 1-038
NMRA were “reasonable rules” that were not precluded by Article II, Section 12. Carlile
v. Continental Oil Co., 

, ¶¶ 7-9, 

, 

(“[R]easonable regulatory provisions, although different in form and substance from
those in effect at the adoption of the Constitution, do not abridge, limit or modify the
right which is to remain inviolate.” (internal quotation marks and citation omitted)). The
common thread through all these interpretations is that an inviolate right is one that
must remain intact and unbroken. We conclude that an inviolate right is not beyond the
reach of regulation, so long as that regulation does not substantially impair the core
essence of the right. We now consider how the framers of our constitution understood
the right to trial by jury so we may determine how the core essence of that right must be
protected and applied today.

2.     Historical analysis of the right to jury trial

{42} The role of the jury has evolved significantly since the first jury trials were held in
colonial America. From the late-seventeenth century through the American Revolution,
juries in some of the colonies wielded broad authority over both legal and factual issues.
See Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated
History, 

, 592-93 (1993); Morton J. Horwitz, The Transformation of
American Law, 1780-1860 142-43 (1977). For this reason, the colonists were
“preoccupied with safeguarding the jury right, relying upon the jury to restrain
government.” Landsman, supra, at 593. For example, in Massachusetts, juries “were
the chief assessors of legal claims and the primary enforcers of legal rights for their
communities.” Id. at 592. Jury trials were conducted before three judges, who were
empowered to instruct the jury on their “divergent view[s] of the law.” Id. In these cases,
counsel was allowed to argue legal questions to the jury during closing arguments. Id.
By returning a verdict that both interpreted the law and applied that law to the facts of
the case, “the jury had broad control over legal as well as factual issues and was
therefore the ultimate authority in the courtroom process.” Id. at 593; cf. Horwitz, supra,
at 143 (“[T]he practice of Connecticut judges was simply to submit both law and facts to
the jury, without expressing any opinion or giving them any direction on how to find their
verdict.”).
{43} By way of contrast, in New York, the jury was theoretically bound to apply the
instructed law to the facts of the case. Landsman, supra, at 593. However, the practice
of jury nullification, where in some circumstances jurors reviewed and rejected the
instructed law, gave the jury tremendous power to subvert the British legal system and
wrest control from British judges. See id. In a prominent 1734 seditious libel case, the
jury was instructed to convict the defendant journalist, John Peter Zenger, if it found that
he had in fact printed accusations of corruption and misfeasance against the Governor
of New York, William Cosby. Id. The evidence was clear that the accusations were
printed by Zenger, but Zenger’s counsel argued that the jury could contravene the
judge’s legal instructions and acquit Zenger if it found that Zenger’s accusations were
true. Id. The jury’s ultimate acquittal of Zenger sent a message that “judges do not
necessarily have absolute control over questions they designate as ‘legal,’” and fortified
the colonists’ defense of the right to trial by jury as a means of popular control of the
justice system. Id.

{44} Following the Revolution, the jury lost much of the prominence it had once
enjoyed and ceased being the primary method of asserting democratic control over
local government. Id. at 597-98. Juries were no longer required as a check on biased
British judges, and the emergence of democratically elected state legislatures meant
that “the right to jury review or nullification of laws was less important amidst legitimately
established democratic laws.” Id. at 598. Accordingly, the United States Constitution did
not include any reference to civil juries. Id. However, this exclusion garnered significant
protest led by the Antifederalists who feared an “unconstrained federal judiciary.” Id. at
599-600. That protest resulted in the drafting of the Seventh Amendment, preserving
the right to a jury in civil cases where the value in controversy exceeded twenty dollars.
Id. at 600; U.S. Const. amend. VII.

{45} In the decades that followed, the power of the jury to shape the law through jury
nullification was greatly diminished. The nineteenth century saw a wave of judicial
reform intended to vest more power in judges to determine the legal outcome in tort
cases. See Landsman, supra, at 605; Horwitz, supra, at 143-44. One vehicle for this
reform was the rise of the doctrine of contributory negligence, which was recognized in
the Territory of New Mexico as early as 1884, Alexander v. Tennessee & Los Cerrillos
Gold & Silver Mining Co., 

, ¶ 19, 

, 

, and was not
abandoned in our jurisprudence until 1981, Scott v. Rizzo, 

, ¶¶ 4-5, 

, 

 (replacing the doctrine of contributory negligence with the
doctrine of comparative fault) superseded in part by statute, NMSA 1978, § 41-3A-1
(1987). See Landsman, supra, at 606. Under the doctrine of contributory negligence, a
plaintiff was completely barred from recovery if it could be shown that the plaintiff’s own
negligence contributed to his or her injury. See Scott, 

, ¶ 11 (explaining
the holding of Butterfield v. Forrester, 11 East 60, 103 Eng. Rep. 926 (K.B. 1809), which
is widely considered the progenitor of the doctrine of contributory negligence). In cases
where the facts supported a plaintiff’s contributory negligence, “the judge could dismiss
a case as a matter of law, without ever submitting the matter to the jury.” Landsman,
supra, at 606. Alternatively, the judge could instruct the jury that the plaintiff could not
recover any damages if the plaintiff acted negligently and “brought an injury on
himself[.]” Alexander, 

, ¶¶ 36-37 (internal quotation marks and citation
omitted). In this respect, the doctrine of contributory negligence operated to curtail the
jury’s power to award damages in tort cases. See Landsman, supra, at 606.

{46} At the same time, legislative restrictions began mandating that juries apply the
legal instructions provided by the judge. Horwitz, supra, at 142-43 (“By 1810, it was
clear that the instructions of the court, originally advisory, had become mandatory and
therefore juries no longer possessed the power to determine the law.”). These
procedural reforms worked to further limit the jury’s function to solely that of fact-finder.
See id.; Landsman, supra, at 605.

{47} The twentieth century saw a crystallization of the jury’s singular function to
resolve issues of fact. The United States Supreme Court declared that the purpose of
the jury in civil cases was “to assure a fair and equitable resolution of factual issues,”
Colgrove v. Battin, 

 (1973), and clarified that the finding of damages is
one of the factual issues within the ambit of the jury, see Dimick v. Schiedt, 

 (1935). In Feltner v. Columbia Pictures Television, Inc., the United States
Supreme Court reviewed the historical role of juries in determining damages awards,
concluding that it was commonplace for the jury to award damages in civil cases at
common law prior to the adoption of the United States Constitution. See 

 (1998) (“[T]he common law rule as it existed at the time of the adoption of the
Constitution was that in cases where the amount of damages was uncertain, their
assessment was a matter so peculiarly within the province of the jury that the Court
should not alter it.” (brackets omitted) (internal quotation marks and citation omitted)).

{48} In Feltner, the plaintiff sued for copyright infringement under the Copyright Act of
1976. 

. In lieu of actual damages, the plaintiff sought statutory damages under
the Copyright Act, which were capped at $20,000 per instance of infringement. 

 The
district court denied the defendant’s demand for a jury trial on statutory damages,
instead ruling that statutory damages would be determined at a bench trial. 

.
The defendant asserted that a bench trial on damages violated his right to a jury under
the Seventh Amendment. See 

. The United States Supreme Court agreed,
holding that “if a party so demands, a jury must determine the actual amount of statutory
damages under [the Copyright Act] in order to preserve the substance of the common-law right of trial by jury.” 

 (internal quotation marks and citation omitted).
Feltner stands for the proposition that the right to a trial by jury includes the right to have
the jury—not the judge—find the amount of damages. New Mexico history conforms
with the Feltner Court’s determination that juries found the amount of damages at
common law prior to the adoption of both the United States and New Mexico
Constitutions.

{49} During the territorial period, juries in New Mexico heard civil tort cases and
determined the amount of damages in those cases. See, e.g., Schmidt, 1910-NMSC-
001, ¶¶ 8-9 (upholding the jury’s verdict on damages in a case of employer liability for
personal injury). The territorial laws in effect at the time of the adoption of the New
Mexico Constitution instructed that “after hearing the evidence, the jury shall be kept
together . . . until they agree upon a verdict . . . , and when the jurors shall agree upon a
verdict, they shall deliver the same to the justice, who is required to give judgment
thereon and to award execution as hereinafter directed.” Section 3267, C.L. 1897. This
territorial statute serves to illustrate Defendants’ argument that a jury verdict is a
resolution of fact that only becomes a legal requirement to compensate the plaintiff once
the court enters judgment on the verdict.

{50} Our historical analysis of the evolving role of the jury reveals that though the jury
may once have exercised an ability to shape the legal as well as factual resolutions in a
civil case, by the time the New Mexico Constitution took effect in 1912, the jury’s role
was limited to that of fact-finder. Based on this analysis, we conclude that the right to
trial by jury is satisfied when evidence is presented to a jury, which then deliberates and
returns a verdict based on its factual findings. The legal consequence of that verdict is a
matter of law, which the Legislature has the authority to shape. See Jones v. Murdoch,

, 

, 

 (“We have long recognized that the
Legislature may exercise its plenary power to alter the common law.”).

{51} In passing the damages cap of Section 41-5-6(A), the Legislature restricted the
scope of the available legal remedy for injury resulting from the medical malpractice of a
qualified health care provider. However, nothing in Section 41-5-6 abridges Plaintiff’s
right to present evidence before a jury for “a fair and equitable resolution” of the facts of
the case. See Colgrove, 

. Therefore we hold that the MMA nonmedical,
nonpunitive damages cap of Section 41-5-6(A) does not violate Plaintiff’s right to a jury
trial under Article II, Section 12.

{52} The great weight of persuasive authority on the question whether statutory
damages caps violate the constitutional jury right supports our conclusion in this case.
In Wachocki v. Bernalillo Cnty. Sheriff’s Dep’t, the Court of Appeals rejected the
plaintiffs’ argument that the cap on damages under the Tort Claims Act infringed the
right to trial by jury. See 

, 

, 

, cert.
quashed, 

, 

, 

. Though the case was
decided on other grounds, the Court of Appeals stated that it failed to see how “the right
to a jury incorporate[s] a right to maximum recovery.” Id. ¶ 45. We agree.

{53} Turning to out-of-state cases, 3 the Oregon Supreme Court in Horton v. Oregon
Health & Sci. Univ. conducted a thorough historical analysis of the right to jury trial. 376


3Of the thirty jurisdictions to consider whether a statutory cap on damages violates the constitutional right
to trial by jury, twenty-four have upheld such caps, reasoning that a statutory limit on recovery is a matter
of law within the purview of the state legislature. Sixteen of these jurisdictions analyzed constitutional
provisions of an “inviolate” right to trial by jury. See Evans ex rel. Kutch v. State, 

(Alaska 2002) (deciding in an equally divided opinion that the damages cap does not infringe the jury
right); Chan v. Curran, 

 (Cal. Ct. App. 2015) (concluding that the damages cap
does not infringe the “inviolate” jury right); Univ. of Miami v. Echarte, 

 (Fla. 1993)
(deciding without discussion that damages cap does not “violate the right to trial by jury,” which the state
constitution declares “inviolate”); Kirkland v. Blaine Cnty. Med. Ctr., 

 (Idaho 2000)
(same); Johnson v. St. Vincent Hosp., Inc., 

 (Ind. 1980) (same), overruled on
other grounds by In re Stephens, 

 (Ind. 2007); Murphy v. Edmonds, 

,
106 & n.3, 118 (Md. 1992) (concluding that the damages cap does not infringe on the jury right that must
be “inviolably preserved” as stated in Article 23 of the Maryland Declaration of Rights); English v. New
England Med. Ctr., 

 (Mass. 1989) (concluding that the damages cap for charitable
P.3d 998, 1036-40 (Or. 2016). That court concluded that the history of the jury right in
England and America revealed that the constitutional provision of an “inviolate” right to
jury trial does not “limit[] the legislature’s authority to define, as a matter of law, the
substantive elements of a cause of action or the extent to which damages will be
available in that action.” Id. at 1036, 1040.

{54} The Virginia Supreme Court concluded similarly, holding that the statutory
damages cap in medical malpractice actions does not violate Virginia’s constitutional
provision that a “trial by jury is preferable to any other, and ought to be held sacred.”
Pulliam v. Coast Emergency Servs. of Richmond, Inc., 

 (Va.
1999) (quoting Va. Const. art. I, § 11). That court reasoned that “[i]f it is permissible for
a legislature to enact a statute of limitations completely barring recovery in a particular
cause of action without impinging upon the right of trial by jury, it should be permissible
for the legislature to impose a limitation upon the amount of recovery as well.” Id. at
314. Following this logic, since we have upheld the New Mexico Legislature’s authority
to foreclose a medical malpractice action three years after the alleged act of malpractice
under the MMA’s statute of repose, Cummings v. X-Ray Assocs. of N.M., P.C., 1996-
NMSC-035, ¶¶ 1, 39-42, 

, 

; § 41-5-13, we must also
conclude that the Legislature may impose a damages cap in such actions. Both



institutions in medical malpractice actions does not violate the jury right); Phillips v. Mirac, Inc., 

 (Mich. 2004) (concluding that the damages cap does not infringe the “inviolate” jury
right); Gourley ex rel. Gourley v. Neb. Methodist Health Sys., Inc., 

 (Neb. 2003) (per
curiam) (concluding that the damages cap does not infringe the “inviolate” jury right); Tam v. Eighth Jud.
Dist. Ct., 

, 238 (Nev. 2015) (same); Larimore Pub. Sch. Dist. No. 44 v. Aamodt, 

, 

 (concluding that the tort damages cap does not infringe the
“inviolate” jury right); Arbino v. Johnson & Johnson, 

, 

, 

 (concluding that the general tort damages cap does not infringe the “inviolate” jury
right); Horton, 376 P.3d at 1036, 1044 (concluding that the damages cap does not infringe the “inviolate”
jury right); Zauflik v. Pennsbury Sch. Dist., 

 (Pa. 2014) (same); McClay v. Airport
Mgmt. Servs., LLC, 

, 690-93 (Tenn. 2020) (same); Judd v. Drezga, 

,

 (concluding that the cap on “quality of life” damages does not infringe the “inviolate” jury
right); Etheridge v. Med. Ctr. Hosps., 

 (Va. 1989) (concluding that the statutory
limit on recovery “effects no impingement upon the right to a jury trial”); MacDonald v. City Hosp., Inc.,

 (W. Va. 2011) (concluding that the legislative limit on claims for pain and
suffering has no impact on the constitutional right to trial by jury); Maurin v. Hall, 

,

, 

 (concluding that the damages cap does not infringe the “inviolate” jury
right), overruled on other grounds by Bartholomew v. Wis. Patients Comp. Fund & Compcare Health
Servs. Ins. Corp., 

, 

, 

; see also Davis v. Omitowoju,

 (3d Cir. 1989) (concluding that the Seventh Amendment does not preclude the
damages cap); Boyd v. Bulala, 

 (4th Cir. 1989) (same); Smith v. Botsford Gen.
Hosp., 

 (6th Cir. 2005) (same); Learmonth, 

 (concluding that the
damages cap does not infringe Mississippi’s “inviolate” jury right); Schmidt v. Ramsey, 

 (8th Cir. 2017) (concluding that Nebraska’s statutory damages cap does not violate the Seventh
Amendment); but see Moore v. Mobile Infirmary Ass’n, 

 (Ala. 1991) (concluding
that the damages cap infringes the “inviolate” jury right); Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt,

 (Ga. 2010) (same); Hilburn, 

 (same); Watts v. Lester E. Cox
Med. Ctrs., 

 (Mo. banc 2012) (same); Knowles v. United States, 

, 

 (same), superseded by statute on other grounds as stated in Millea v.
Erickson, 

, ¶ 13, 

; Sofie, 771 P.2d at 721-22 (same).
restrictions are aimed at curtailing the legal remedy available to redress a plaintiff’s
injury and are consistent with the constitutional jury right.

{55} Finally, in Learmonth, a case cited by the Court of Appeals in Salopek, the Fifth
Circuit concluded that a statutory noneconomic damages cap did not violate
Mississippi’s “inviolate” constitutional jury right. Learmonth, 

; Miss.
Const. art. III, § 31. Because the jury was unaware of the damages cap, the Learmonth
Court reasoned that the statute did “not invade the jury’s factfinding process.” Id. at 260.
Section 41-5-6(A) likewise provides that the jury shall not be informed of the damages
cap, so we are further affirmed that the MMA nonmedical, nonpunitive damages cap
does not invade the jury’s role as fact-finder.

III.   CONCLUSION

{56} For the foregoing reasons, we hold that the MMA nonmedical, nonpunitive
damages cap does not violate the constitutional right to trial by jury of Article II, Section
12. We remand this case to the district court for further proceedings consistent with this
opinion.

{57}   IT IS SO ORDERED.

BARBARA J. VIGIL, Justice

WE CONCUR:

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice

JUDITH K. NAKAMURA, Justice, Retired
Sitting by designation

CONRAD F. PEREA, Judge
Sitting by designation