dissenting.
I respectfully dissent from the majority opinion. The majority expand the scope of a physician’s duty to third parties and thus significantly enlarge a physician’s potential liability. In assessing the consequences of their holding, the majority conclude that “the burden on the doctor’s treatment decisions is negligible.” In fact, one can readily assume just the opposite: the burdens already imposed on treatment decisions by physicians have driven many from the practice of medicine, and the majority opinion will further exacerbate the existing medical liability crisis. Along this same line of reasoning, the majority note that we live in a “risk-allocative” society. While this may be true, consideration of such issues is a task best left to the legislature rather than to the judiciary. There are no data before us from which this Court can appropriately determine “risk-allocative” issues.
The majority assume that there are facts before us. This is not so. There has been no fact finding by the trial court. We do not know what the facts are or will be. The majority opinion, therefore, is little more than an advisory opinion decided in a factual vacuum in contravention of our longstanding rule that appellate decisions be fact specific.
The majority’s assumption that the “recent growth” of new and unforeseen practices by physicians somehow justifies the destruction of patient-client liability constraints finds no support in the facts before us, or in any facts of which we could properly take judicial notice. From time immemorial, patients have been treated in their homes or in the offices of physicians and clinics of physicians. There is no factual basis upon which this court can extend tort liability of physicians to include third parties.
We have declined to burden attorneys with tort liability to third parties. Garcia v. Rodey, Dickason, Sloan, Akin & Robb, P.A., 106 N.M. 757, 750 P.2d 118 (1988). This Court in Garcia v. Rodey was not prepared to extend the legal duty of an attorney to non-client thirty parties who may be injured by the services or advice of the attorney to this client. I am not prepared to extend the liability burden of physicians which the majority opinion would impose.
While I agree with the majority that the limits imposed on a physician’s liability are appropriately set by the Medical Malpractice Act, I believe this issue is not ripe for our resolution. The question of liability limits is not before us by certification, and the issue has not been addressed by the parties in any manner.
My disagreement with the majority opinion notwithstanding, I further conclude that the instant case is not properly before us. Three legal questions were certified to this Court for our response, but the certification request entered by the U.S. District Court was not accompanied by a sufficient factual predicate in the form of findings or stipulated facts. And for this reason I would decline to accept certification.
In New Mexico, the process of certification from federal courts is governed by SCRA 1986, 12-607, which implements NMSA 1978, Section 34-2-8 (Repl.Pamp. 1981). SCRA 12-607 requires a certification request to include “either a statement by the certifying court of the facts relevant to the question certified, showing the nature of the controversy in which the questions arose, or a stipulation of such facts by the parties, which has been approved by the certifying court.” SCRA 12-607(C)(3). The certification request before us does not include a stipulation of the facts, nor does the certifying court provide sufficient non-disputed facts relevant to the questions of law certified to us. It is essential that the material facts have been either agreed upon or determined by the certifying court before we attempt to form an authoritative statement of New Mexico law on the issues. I strongly disfavor giving an advisory opinion unless it is fact intensive.
I find considerable support for my conclusion. “Certification would be a pointless exercise unless the state court’s answers are regarded as an authoritative and binding statement of state law.” 17A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4248 at 179 (2d ed. 1988). Without sufficient, nondisputed facts we cannot authoritatively answer the questions of law before us. I would not go as far in this regard as the Supreme Court of Wyoming which has said it will not answer a certified question of state law “until there is nothing left for the [federal] court to do but apply our answer to the question and enter judgment consistent with the answer or answers.” In re Certified Question from the District Court, 549 P.2d 1310, 1311 (Wyo.1976). Instead, I would look to the Supreme Court of Maine, which was one of the first state courts to adopt certification procedures more than twenty-five years ago. In 1966, the Maine court held:
If we are to participate and yet not render purely advisory opinions, we think it will be incumbent upon us to respond to questions only when it is Apparent from the certification itself that all material facts have been either agreed upon or found by the court and that the case is in such posture in all respects that our decision as to the applicable Maine law will in truth and in fact be “determinative of the cause” as the statute conferring jurisdiction upon us requires.
In re Richards, 223 A.2d 827, 833 (Me.1966). See also R. Field, V. McKusick & L. Wroth, Maine Civil Practice § 76B Commentary (1967 Supp.).
The absence of sufficient nondisputed facts occurs most often in certifications from federal district courts. Certification requests from federal appellate courts will normally include findings of facts. The burden to provide sufficient nondisputed facts rests with the district courts:
Due regard for the interests of the states in conserving their judicial resources requires that the district courts be careful in their use of certification procedures. This is particularly true in cases in which the unclear legal issue is identified in advance of trial and there are factual disputes to be resolved. (Emphasis added)
1A J. Moore, W. Taggart, A. Vestal, J. Wicker & B. Ringle, Moore’s Federal Practice § 0.203[5] Pt. 2 at 2162 (2d ed. 1989). Whether a certification request provides sufficient nondisputed facts must of necessity be determined on a case-by-case basis. An example of an effective certification request from a district court to this Court can be seen in Hamilton Test Systems, Inc. v. City of Albuquerque, 103 N.M. 226, 704 P.2d 1102 (1985), which provided stipulated facts. This Court should not make common law in a vacuum. It is, therefore, imperative that we preserve the procedural parameters for certification we have set forth in SCRA 1986, 12-607.
Absent a certification request providing sufficient, nondisputed facts, I do not believe we should contemplate rendering an opinion in the instent case. I dissent.