See Domingo v. Doe, 985 F.Supp. 1241, 1244-45 (D.Haw. 1997); Crumley v. Mem'l Hosp., Inc., 509 F.Supp. 531, 535 (E.D.Tenn. 1978); Humana Med. Corp. of Ala. v. Traffanstedt, 597 So.2d 667, 668-69 (Ala. 1992); Fletcher v. S. Peninsula Hosp., 71 P.3d 833, 842 (Alaska 2003); Tucson Med. Ctr., Inc., v. Misevch, 113 Ariz. 34, 545 P.2d 958, 960 (1976); Elam v. College Park Hosp., 132 Cal.App.3d 332, 183 Cal.Rptr. 156, 160 (1982); Kitto v. Gilbert, 39 Colo.App. 374, 570 P.2d 544, 550 (1977); Insinga v. LaBella, 543 So.2d 209, 214 (Fla. 1989); Mitchell County Hosp. Auth. v. Joiner, 229 Ga. 140, 189 S.E.2d 412, 414 (1972); May v. Wood River Twp. Hosp., 257 Ill.App.3d 969, 195 Ill.Dec. 862, 629 N.E.2d 170, 171 (1994); Winona Mem'l Hosp., Ltd. P'ship v. Kuester, 737 N.E.2d 824, 828 (Ind.Ct.App. 2000); Ferguson v. Gonyaw, 64 Mich.App. 685, 236 N.W.2d 543, 550 (1975); Taylor v. Singing River Hosp. Sys., 704 So.2d 75, 78 n. 3 (Miss. 1997); Corleto, 350 A.2d at 537-38; Diaz v. Feil, 118 N.M. 385, 881 P.2d 745, 749 (1994); Sledziewski v. Cioffi, 137 A.D.2d 186, 528 N.Y.S.2d 913, 915 (N.Y.App.Div. 1988); Blanton v. Moses H. Cone Mem'l Hosp., Inc., 319 N.C. 372, 354 S.E.2d 455, 458 (1987); Albain, 553 N.E.2d at 1045; Strubhart v. Perry Mem'l Hosp. Trust Auth., 903 P.2d 263, 276 (Okla. 1995); Welsh v. Bulger, 548 Pa. 504, 698 A.2d 581, 586 (1997); Rodrigues v. Miriam Hosp., 623 A.2d 456, 462-63 (R.I. 1993); Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 545-46 (Tex. 2004); Wheeler v. Cent. Vt. Med. Or. Inc., 155 Vt. 85, 582 A.2d 165, 166 (1989); Pedroza v. Bryant, 101 Wash.2d 226, 677 P.2d 166, 168-70 (1984); Roberts v. Stevens Clinic Hosp., Inc., 176 W.Va. 492, 345 S.E.2d 791, 798 (1986); Johnson v. Misericordia Cmty. Hosp., 99 Wis.2d 708, 301 N.W.2d 156, 164 (1981); Greenwood v. Wierdsma, 741 P.2d 1079, 1088 (Wyo. 1987).See Gridley v. Johnson, 476 S.W.2d 475, 484-85 (Mo. 1972); Benedict v. St. Luke's Hosps., 365 N.W.2d 499, 504 (N.D. 1985); Simmons v. Tourney Reg. Med. Cr., 330 S.C. 115, 498 S.E.2d 408, 4

{7} To prove the nonparties' negligence, Defendant had to show: (1) the nonparties owed the patient a duty recognized by law, (2) the nonparties breached the duty by departing from the proper standard of medical practice recognized in the community, and (3) the acts or omissions complained of proximately caused the patient's death. See id. at 352, 890 P.2d at 805 (the burden of persuasion rests on the party alleging an affirmative defense);Diaz v. Feil, 118 N.M. 385, 388, 881 P.2d 745, 748 (stating requirements for medical malpractice action). Medical malpractice cases usually require expert medical testimony to establish departure from recognized standards in the community.

He further argues that the Court should apply “the common-law doctrine of hospital corporate negligence” under which a hospital that “employs or contracts with health-care providers still ‘owes an independent duty of care to patients at the hospital.'” ECF No. 65 at 14 at 15-16 (quoting Diaz v. Feil, 881 P.2d 745, 749 (N.M. Ct. App. 1994)). In this regard, he appears to argue that Otero County can be held liable for negligently hiring MTC to run OCPF's medical facility because Otero County was on notice of MTC's “deficient performance in the past ....” ECF No

Instead, every relevant appellate decision the Court has encountered was decided either at summary judgment (where no expert was offered to rebut a prima facie showing by the defendant) or at trial (where the proffered expert testimony failed to meet the plaintiff's burden of proof). See, e.g., Holley v. Evangelical Lutheran Good Samaritan Soc., 588 F. App'x 792, 794 (10th Cir. 2014) (unpublished) (Plaintiff failed to offer expert testimony of causation at summary judgment.); Richter v. Presbyterian Healthcare Services, 2014-NMCA-056, ¶ 57, 326 P.3d 50, 64 (Affirming directed verdict to doctor after plaintiff failed to elicit expert testimony supporting the standard of care at trial.), cert. denied 326 P.3d 1111 (May 2, 2014); Gonzales, 2010 WL 3997235, at *2 (Plaintiff failed to proffer an expert at summary judgment to show defending podiatrist breached the applicable standard of care or caused her injuries.); Diaz v. Feil, 1994-NMCA-108, ¶ 6, 118 N.M. 385, 388, 881 P.2d 745, 748 (Reversing summary judgment granted to a medical provider premised on a bare denial of proximate cause because the provider failed to establish prima facie entitlement to summary judgment.); Blauwkamp v. Univ. of New Mexico Hosp., 1992-NMCA-048, ¶ 19, 114 N.M. 228, 233, 836 P.2d 1249, 1254 ("Defendants in effect asked for summary judgment because Plaintiffs lacked an expert witness."); Schmidt v. St. Joseph's Hosp., 1987-NMCA-046, ¶ 8, 105 N.M. 681, 683, 736 P.2d 135, 137 (Plaintiff failed to produce medical expert to rebut defendants' prima facie showing at summary judgment that they adhered to the recognized standards of medical practice and that their actions were not the proximate cause of the plaintiff's injuries.); Cervantes v. Forbis, 1964-NMSC-022, ¶ 12, 73 N.M. 445, 448, 389 P.2d 210, 213, holding modified by Pharmaseal Laboratories, Inc. v. Goffe, 1977-NMSC-071, ¶ 12, 90 N.M. 753, 568 P.2d 589 (Plaintiff offered no expert testimony to establish negligence at summary judgme

See Eckhardt v. Charter Hosp. of Albuquerque, Inc., 1998-NMCA-017, ¶ 44, 953 P.2d 722, 733 (affirming jury verdict against hospital on negligent selection and supervision claim). In Diaz v. Feil, 118 N.M. 385, 881 P.2d 745 (Ct.App. 1994), the New Mexico Court of Appeals

The Hospital, Dr. Bryant, and Dr. Schlicht each owed a duty of care directly to the UTC. See, Diaz v. Feil, 118 N.M. 385, 389, 881 P.2d 745, 749 (Ct. App. 1994) ("[I]t is beyond question in New Mexico that a hospital owes an independent duty of care to patients at the hospital.") (citations omitted);Salopek v. Friedman, 308 P.3d 139, 144, 2013-NMCA-087, ¶ 7 (N.M. Ct. App. 2013) ("It is well established that a doctor owes a general duty to provide competent care in treating a patient's medical condition.") (citation and internal quotation marks omitted); Lester ex rel. Mavrogenis v. Hall, 126 N.M. 404, 409, 970 P.2d 590, 595 (1998) (stating that the general rule is that physicians owe a duty to their patients, but not to third parties). The Hospital's duty is based on the doctrine of corporate liability, which recognizes a hospital's direct, non-delegable duty of care to its patients.

Plaintiff characterizes his theory as simple or ordinary negligence flowing from Mr. Robinson's failure to enforce the Hospital's contract with Chaves to the letter and his failure to adequately delve into Dr. Collins' work history. Consistent with this assertion, Plaintiff's answer brief does not cite to or rely on the foundational cases in New Mexico recognizing the "theory of hospital liability generally known as corporate negligence, which arises when the hospital has failed to take reasonable steps to determine the qualifications or competency of a practitioner to whom it has granted clinical privileges." UJI 13-1119B, committee cmt.; Eckhardt v. Charter Hosp. of Albuquerque, Inc., 1998-NMCA-017, ¶ 41, 124 N.M. 549, 953 P.2d 722 (filed 1997); Diaz v. Feil, 118 N.M. 385, 389-90, 881 P.2d 745, 749-50 (Ct. App. 1994). {69} Plaintiff emphasizes that the jury instruction given on his claims was based on UJI 13-1119A NMRA, which deals with a hospital's duty of ordinary care to its patients.

These instructions are consistent with New Mexico law which recognizes that the doctrine of corporate negligence may impose liability on a hospital for the negligent granting of staff privileges or the negligent supervision of treatment. See Diaz v. Feil, 118 N.M. 385, 389, 881 P.2d 745, 749 (Ct.App. 1994). 42.

edical professional is almost always required, and thus failure to proffer expert testimony at summary judgment or trial is almost always fatal to a medical malpractice claim. See, e.g., Holley v. Evangelical Lutheran Good Samaritan Soc., 588 Fed.Appx. 792, 794 (10th Cir. 2014) (unpublished) (Plaintiff failed to offer expert testimony of causation at summary judgment.); Richter v. Presbyterian Healthcare Services, 2014-NMCA-056, ¶ 57, 326 P.3d 50, 64 (affirming directed verdict to doctor after plaintiff failed to elicit expert testimony supporting the standard of care at trial), cert. denied 326 P.3d 1111 (May 2, 2014); Gonzales v. Carlos Cadena, D.P.M., P.C., 2010 WL 3997235 (N.M. Ct. App. Feb. 19, 2010), at *2 (Plaintiff failed to proffer an expert at summary judgment to show defending podiatrist breached the applicable standard of care or caused her injuries.); Diaz v. Feil, 1994-NMCA-108, ¶ 6, 118 N.M. 385, 388, 881 P.2d 745, 748 (reversing summary judgment granted to a medical provider premised on a bare denial of proximate cause because the provider failed to establish prima facie entitlement to summary judgment); Blauwkamp v. Univ. of New Mexico Hosp., 1992-NMCA-048, ¶ 19, 114 N.M. 228, 233, 836 P.2d 1249, 1254 (“Defendants in effect asked for summary judgment because Plaintiffs lacked an expert witness.”);

from a competent medical professional is required, and failure to proffer expert testimony at summary judgment or trial is almost always fatal to a medical malpractice claim. See, e.g., Holley v. Evangelical Lutheran Good Samaritan Soc., 588 Fed.Appx. 792, 794 (10th Cir. 2014) (unpublished) (Plaintiff failed to offer expert testimony of causation at summary judgment.); Richter v. Presbyterian Healthcare Services, 2014-NMCA-056, ¶ 57, 326 P.3d 50, 64 (affirming directed verdict to doctor after plaintiff failed to elicit expert testimony supporting the standard of care at trial), cert. denied 326 P.3d 1111 (May 2, 2014); Gonzales v. Carlos Cadena, D.P.M., P.C., 2010 WL 3997235 (N.M. Ct. App. Feb. 19, 2010), at *2 (Plaintiff failed to proffer an expert at summary judgment to show defending podiatrist breached the applicable standard of care or caused her injuries.); Diaz v. Feil, 1994-NMCA-108, ¶ 6, 118 N.M. 385, 388, 881 P.2d 745, 748 (reversing summary judgment granted to a medical provider premised on a bare denial of proximate cause because the provider failed to establish prima facie entitlement to summary judgment); Blauwkamp v. Univ. of New Mexico Hosp., 1992-NMCA-048, ¶ 19, 114 N.M. 228, 233, 836 P.2d 1249, 1254 (“Defendants in effect asked for summary judgment because Plaintiffs lacked an expert witness