(concurring in part, dissenting in part).
1. I agree with the majority’s discussion on express warranty. I agree, also, with the result reached on implied warranty because of stare decisis, but not by reason of any rationale which purports to support the rule that professional services contracts are not subject to an implied warranty of a particular result. As a firm rule of law, I see no reason why a professional, be he doctor or lawyer or architect, should be exempt from the doctrine of implied contract arising from a course of conduct if facts exist showing such a course of conduct as would trigger the doctrine. See U.J.I. Civ. 8.3 (Repl.Pamp.1980); Trujillo v. Chavez, 76 N.M. 703, 417 P.2d 893 (1966). In my opinion, it is one thing to say that in a specific case the evidence does not support a finding of such an implied warranty; quite another thing to say that we will not recognize such a cause of action against a professional. If the rule regarding professionals to which I object is correct, obviously I have been wrong for many years in my apprehension of what is meant by “equal protection of the law,” “equal justice under the law,” and “uniform application of the law.”
2. The majority says that the negligence issue was properly withdrawn from the jury because expert medical evidence was required to show negligence on “questions of subpectoral v. subcutaneous placement, the shape and volume of the prosthesis, saline v. gel, the effect on the prosthesis caused by various muscle and skin elasticities.”
The only attack made by plaintiff was whether the defendant exercised the degree of skill and care to be expected in defendant’s selection of the size of the various prostheses inserted, and the places of insertion. She did not challenge his technical medical abilities or his medical procedures. In the perhaps more commonly understood vernacular a la Al Capp, she asserts that, “as any fool can plainly see,” a breast implant should be relatively the same size and in the same location as its counterpart when done by one who holds himself out as a specialist in that field of medicine.
None of us would have any difficulty in agreeing that a roofer who undertakes to repair a leaky roof can be held liable for negligent repairs if the house is flooded during the next rain. Cochrell v. Hiatt, 97 N.M. 256, 638 P.2d 1101 (Ct.App.1981). “Where a person is employed in work of skill, the employer buys both his labor and his judgment; he ought not to undertake the work if he cannot succeed, and he should know whether it will or not.” Andriola v. Milligan, 52 N.M. 65, 191 P.2d 716 (1948).
The law of medical malpractice correctly makes a distinction between results obtainable when one’s skill is being applied to the human body with all of its individualistic peculiarities, and when applied to an inanimate property. But if a dentist were to replace a tooth by attaching it to the roof of the patient’s mouth, no one would suggest that a layman is incapable of determining that a tooth does not belong on the roof of the mouth. In my view, it should be equally ascertainable to a layman that a surgeon does not place a breast implant almost under the arm, or inches above or below the line of the remaining breast, nor does he balance a grapefruit on one side with a lemon or a deflated balloon on the other. The rule that negligence of a physician through his departure from the standards of practice must be established by medical testimony is sound only when soundly applied. Olson v. Weitz, 37 Wash.2d 70, 221 P.2d 537 (1950).
It is well settled that a cause of action in contract is separate from malpractice, and that both actions may arise out of the same transaction; but they are not mutually exclusive. Noel v. Proud, 189 Kan. 6, 367 P.2d 61 (1961); Stewart v. Rudner, 349 Mich. 459, 84 N.W.2d 816 (1957); Robins v. Finestone, 308 N.Y. 543, 127 N.E.2d 330 (1955); Colvin v. Smith, 276 App.Div. 9, 92 N.Y.S.2d 794 (1949). I am concerned that courts have long indulged in a highly technical but rationally indefensible protection of professional conduct. I do not think it an impossible step nor an illogical progression to reason that one who expressly holds himself out as capable of achieving a specific result — and the majority opinion approves the theory in this case of express warranty— may be found by a jury to have improperly performed “the duties imposed on him by reason of the professional services undertaken.” Noel v. Proud, supra, at 367 P.2d 66. Noel instructs that such “improper performance” of services, whether undertaken “under a contractual relationship with the patient arising out of either an express or implied contract of employment or the obligation imposed by law under a consensual relationship, whereby the patient is injured in body and health for which he seeks damages, is malpractice.” Id. at 66. Stewart v. Rudner, supra, elucidates that mental anguish and distress are included in the types of injury for which a patient may seek redress in a case claiming improper performance by the physician. One who warrants that he has the skill to “get it right” must, it seems to me, have removed himself from the standards of “ordinary” skill, competence, care and treatment by which his performance normally would be judged, so that medical evidence of the usual standards in the community is no longer relevant. At that point, he subjects himself to a determination by laymen, at least as to size and placement of a breast implant, whether he “got it right.” Cf. Eis v. Chesnut, 96 N.M. 45, 627 P.2d 1244 (Ct.App.1981).
The law of medical malpractice stated in the majority opinion, Le., that the complaints raised by plaintiff are technical questions peculiarly within the knowledge of doctors, differing from my perception of the law or what it should be, I respectfully dissent on that issue.
3. Although plaintiffs next issue is tied to a point on appeal attacking the directed verdict, the majority opinion does not address her claim that she was not permitted to show bias on the part of the expert medical witness. The argument was made that the doctor testifying to defendant’s adherence to the community medical standards was a health care provider as defined in the Medical Malpractice Act, §§ 41-5-1, et seq., NMSA 1978 (1981 Repl.Pamp.). Under the Act, health care providers are subject to assessment for a surcharge if the Patient Compensation Fund is called upon to pay a portion of a malpractice judgment not covered by the defendant doctor’s personal insurance. The Fund is replenished by annual surcharges against all participating doctors. Plaintiff sought to question the expert to show a personal basis for his providing evidence favorable to defendant so that his own exposure to a surcharge would be minimized. The trial court, concerned “about the insurance issue,” refused to permit the questions.
Although it has been said that evidence of the existence of insurance may be grounds for a mistrial if calculated to influence the verdict of the jury, Falkner v. Martin, 74 N.M. 159, 391 P.2d 660 (1964), later cases have recognized that N.M.R. Evid. 411, N.M.S.A.1978, expressly permits evidence of insurance when offered for some other purpose than that one is insured against liability. See e.g., Martinez v. Teague, 96 N.M. 446, 631 P.2d 1314 (Ct.App.1981); Selgado v. Commercial Warehouse Co., 86 N.M. 633, 526 P.2d 430 (Ct.App.1974). In MacTyres, Inc. v. Vigil, 92 N.M. 446, 589 P.2d 1037 (1979), where the trial court refused to allow mention of insurance in a witness’s testimony, our supreme court held that “[t]he right to impeach a witness is basic to a fair trial,” and the witness’s credibility could have been seriously affected had the jury been aware of some facts related to the insurance issue. The jury verdict was reversed. So it is in this case; the trial court should have allowed plaintiff to question the witness regarding his monetary interest in the outcome of the case, which attached by reason of the possibility that he would be required to contribute to the Patient Compensation Fund.
I would reverse for trial by jury on the malpractice issue as well as for the reason stated by the majority.