It is undisputed that the hospital employed the nurses who performed the transfusion. Plaintiff has not alleged that the hospital employed Dr. Dumitriu. Based on facts similar to those pled in this case, this court has determined previously that the hospital had no duty to obtain Johnson's informed consent before transfusing her. See Cooper v. Curry, 92 N.M. 417, 420, 589 P.2d 201, 204 (Ct.App. 1978). In Cooper, we held that a hospital had no duty to obtain a patient's informed consent to a surgical procedure ordered by a non-employee physician.
See Tr. at 10:8-11 (Court). Memorial Medical, Proctor, Pitts, Reveles, and Branch asserted that the Supreme Court of New Mexico has not overruled Johnson v. Sears, Roebuck & Co., 1992-NMCA-039, 113 N.M. 736, 832 P.2d 797, or Cooper v. Curry, 1978-NMCA-104, 92 N.M. 417, 589 P.2d 201, and that "both of those cases remain good law." Tr. at 10:17 (Morrow).
In order to form a joint venture under New Mexico law, "there must be a community of interest in the performance of a common purpose, a joint proprietary interest in the subject matter, a mutual right to control, a right to share in the profits, and a duty to share in any losses which may be sustained." Cooper v. Curry, 589 P.2d 201, 205 (N.M. Ct. App. 1978); see also N.M.R. Ann. Unif. Jury Instructions § 13-410 (stating jury instructions for formation of a joint venture). Based on the Third Amended Complaint's allegations, a factfinder could reasonably find a community of interest between ENMRSH and the Spencer Foundation.
In re Groff, 898 F.2d 1475, 1476-77 (10th Cir. 1990). In Cooper v. Curry, 92 N.M. 417, 589 P.2d 201 (Ct.App. 1978), the New Mexico Court of Appeals held that a joint venture or enterprise includes the following elements: (i) a community of interest to perform a common purpose; (ii) a joint proprietary interest in the subject matter; (iii) a mutual right to control; (iv) a right to share in the profits; and (v) a duty to share in the losses. See id., at 421, 589 P.2d at 205.
Requiring a physician to comply with a hospital's policies and procedures does not per se indicate that the hospital has sufficient control over the physician to indicate an employer-employee relationship. See Cooper v. Curry, 92 N.M. 417, 419-20, 589 P.2d 201, 203-04 (Ct.App. 1978), cert. quashed, 92 N.M. 353, 588 P.2d 554 (1979). By requiring compliance with its policies and procedures, a hospital may be merely contributing to the maintenance of professional standards, not controlling the physician.
See Boise City Farmers Coop. v. Layton, 83 N.M. 248, 490 P.2d 965 (1971). Cooper v. Curry, 92 N.M. 417, 589 P.2d 201 (Ct.App. 1978), holds, "As a general rule, in order to constitute a joint adventure there must be a community of interest in the performance of a common purpose, a joint proprietary interest in the subject matter, a mutual right to control, a right to share in the profits, and a duty to share in any losses which may be sustained."
A hospital may be held vicariously liable if an employee physician fails to obtain consent. See Cooper v. Curry, 92 N.M. 417, 589 P.2d 201, 204 (Ct. App. 1978). However, there is no evidence Dr. Graham was an employee of Sacred Heart, only that he had staff privileges.
Nor does the revolving credit loan made by Fine Line to Allen (to be repaid by a "percentage of business") raise a fact issue as to joint venture or partnership. Cooper v. Curry, 92 N.M. 417, 589 P.2d 201 (Ct.App. 1978), in discussing the nature of a joint venture, quoted with approval from another case that: "As a general rule, in order to constitute a joint adventure there must be a community of interest in the performance of a common purpose, a joint proprietary interest in the subject matter, a mutual right to control, a right to share in the profits, and a duty to share in any losses which may be sustained."
” Cooper v. Curry, 1978-NMCA-1-4, ¶ 22, 92 N.M. 417 (quotation omitted). Plaintiff's allegations fall short of showing non-conclusory facts that plausibly indicate that Russell Stover, Ryan, and Stone Truck had a joint proprietary interest in the transportation supply chain or a right to share in profits.
[I]n order to constitute a joint adventure there must be a community of interest in the performance of a common purpose, a joint proprietary interest in the subject matter, a mutual right to control, a right to share in the profits, and a duty to share in any losses which may be sustained. Response at 23 (quoting Cooper v. Curry, 92 N.M. 417, 421, 589 P.2d 201, 205 (Ct.App. 1978)) (brackets added by Response); Memorandum at 7-8 (citing Cooper v. Curry). While the Court has some reservations about the cause of action, there is evidence supporting the elements that the parties have described to the Court, precluding summary judgment. The same evidence underlying the civil-conspiracy claim is evidence of a common purpose between USAA and the Dealerships.