(dissenting).
I dissent.
A. Allowance of amendment to complaint during trial not error.
Defendant claims the trial court erred in allowing plaintiff to bring in an entirely new, irrelevant, factual basis for support of his allegations of negligence, namely, lack of supervision of Dr. Davenport, a third year resident, who performed an aortogram. An aortogram or arteriogram, is a surgical or radiological procedure that has many risks which may result in a stroke, brain damage and paralysis.
During plaintiff’s examination of Dr. Ole Peloso, who specialized in general and vascular surgery, a doctor who did not know Dr. Davenport, he testified that a third year resident was not as capable as someone who had gone through the training period. The following exchange occurred:
Q. Would that be particularly true if he were not supervised in the procedure?
A. Yes, I think so.
MR. THOMPSON: Object to that, Your Honor. There is no evidence he wasn’t supervised.
THE COURT: Well, I don’t know that there’s any evidence to that. I assume you’re going to tie that up later. And if not, I’ll strike the answer.
MR. THOMPSON: I don’t know how he would tie it up. This seems to be his last witness. It’s again an attempt of Counsel to do a lot of testifying to get a lot of things in this court reporter record which doesn’t appear anywhere else.
THE COURT: Well, if there are no facts to establish the question, I’ll of course, ignore it. [Emphasis added.]
At the close of plaintiff’s case, the trial court denied defendants’ motion to dismiss pursuant to Rule 41(B) of the Rules of Civil Procedure. Plaintiff moved “to amend to include the allegations, specifically that there was negligence, improper supervision or lack of supervision of the resident and medical students in not having a staff physician reasonably well qualified participate in this decision to send him for an arteriogram.” Over defendants’ objection, the trial court granted the motion to amend.
Plaintiff requested the court to find: * * * * * *
13. A third-year radiology resident does not possess the skill and knowledge to perform an arteriogram, and there is no evidence that the resident was supervised during the procedure. [Emphasis added.]
The trial court did not adopt this requested finding. The trial court found that:
* 4c * * * *
7. At no time prior to the performance of the arteriogram did the resident consult with the supervising ar [sic] attending physician. [Emphasis added.]
There is a significant difference between “supervision” and “consultation.” “To supervise” means “to coordinate, direct, and inspect continuously and at first hand the accomplishment of.” “To consult” means “to ask advice of.” In effect, the trial court struck the answer of Dr. Peloso to the questions asked above as the trial court said it would do. The amendment allowed to the complaint had no effect upon the trial court’s decision.
Unquestionably, the trial court had a duty to allow plaintiff to amend his complaint at the close of plaintiff’s case. Rule 15 of the Rules of Civil Procedure. The proper question to have been raised was whether the trial court erred in admitting in evidence the issue of lack of supervision. Even so, the answer was given and defendants did not move to strike the answer. The trial court volunteered to assist defendants in this matter. Otherwise, defendants could not have raised any question of error on this subject matter.
Defendants now seek to escape by claiming prejudice due to the absence of Dr. Dobernick, the supervising physician, during the treatment of plaintiff. In the opening statement, plaintiff stated that Dr. Dobernick never saw the patient. At this point, the court inquired whether Dr. Dobernick would be a witness. Both parties stated that he would not be a witness. During cross-examination of Dr. Peloso, defendants stated: “Dr. Dobernick will testify.” The court said:
Wait a minute. I asked at the beginning of the case whether Dr. Dobernick was going to testify. And I was told by both of you that Dr. Dobernick would not testify, and that’s the only reason I decided to hear this case.
After much argument, the court announced that the matter would be argued in chambers after the witness was excused. At the close of the argument, the court stated:
I’ll let you make an offer of proof as to what his testimony would be ....
During defendants’ case in chief, the court said:
Well, I indicated yesterday if you wanted to make an offer of proof for the record as to what Dr. Dobernick would testify to, that I would allow that.
MR. THOMPSON: I intend to, Your Honor. I’m just trying to ask this witness to identify Dr. Dobernick.
Again the court said:
The issue in question is whether a resident consulted with Dr. Dobernick prior to performing this procedure.
Dr. Pitcher, defendants’ witness, was asked to search the records to find evidence of Dr. Dobernick signing the records and answered, “I don’t see Dr. Dobernick’s signature here.”
Finally, and presumably after Mr. Thompson spoke with Dr. Dobernick, the trial concluded. Mr. Thompson was asked by the court:
Do you have any other evidence?
MR. THOMPSON: No, your honor. I would not make an offer of proof. [All emphasis added.]
It is no longer necessary to cite authority for the established rule that an offer of proof is essential to preserve the error for appeal. No offer of proof was' made because defendants knew that Dr. Dobernick would not support defendants’ position. In reply, defendants state that “[t]here was no time for consultation with Dr. Dobernick during this trial such as would have permitted a meaningful tender of proof of what his testimony would have been.” Nothing appears of record that defendants made any attempt to contact Dr. Dobernick, an employee of defendants. In reply to the cases cited by plaintiff, defendants cite Epstein v. Waas, 28 N.M. 608, 216 P.2d 506 (1923); Houston v. Young, 94 N.M. 308, 610 P.3d 195 (1980), neither of which are applicable to this issue.
Defendants state:
If this Court permits this amendment to stand, it will result in turmoil in the trial court level in the future, as attorneys will offer like amendments during trail and deprive other parties an opportunity to prepare a defense.
Quite the contrary, Rule 15 was adopted to preserve the rights set forth. “Quotation of the rule, a statement of its purpose and effect, and the citation of authority are unnecessary to support . . . [plaintiff’s] motion and the order granting the motion.” Citizens Bank v. C & H Const. & Paving Co., Inc., 89 N.M. 360, 364-5, 552 P.2d 796 (Ct.App.1976).
Defendants suffered no prejudice in the ruling of the court.
B. The trial court properly managed the use of witnesses.
Defendants state:
Mismanagement of the witnesses by the lower court begins with allowing Dr. Sonia Hollinger to testify over BCMC’s objection.
On September 20, 1979, in answer to defendants’ request for names of expert witnesses, plaintiff did not list Dr. Hollinger. On May 1, 1980, at a hearing held three days before trial, plaintiff handed defendants a letter which stated:
Therefore, yesterday I referred Mr. Camp to Dr. Sonia Hollinger, the neurologist, for an updated evaluation of his condition. Mr. Camp will be examined by Dr. Hollinger who will review the medical records tomorrow. This is to advise you that I will possibly call Dr. Hollinger as a witness. [Emphasis added.]
In effect what plaintiff related to defendants was that on Thursday, May 1, 1980, plaintiff had been referred to Dr. Hollinger; that on Friday, May 2, 1980, Dr. Hollinger will examine plaintiff and the medical records. Trial was set for Monday, May 5, 1980. The time available for an interview or deposition was Saturday, May 6, or Sunday, May 7, 1980. The court authorized the taking of the deposition on Saturday, May 6, but defendants said that it was impossible for reasons stated. Plaintiff suggested that Dr. Hollinger would be available to interview, but defendants said they would not act on five minutes notice.
After extensive argument, plaintiff announced what Dr. Hollinger’s testimony would be. The trial court then granted plaintiff the right to use the expert testimony. Defendants now claim it suffered extreme prejudice because it lost the right to pre-trial discovery.
The trial court did not deny defendants the right to pre-trial discovery. Defendants decided not to take the deposition. The reason appears to be “THREE DAYS BEFORE TRIAL,” as emphasized by defendants. Rule 30(B)(3) provides that:-
The court may for cause shown enlarge or shorten the time for taking the deposition.
It should be noted that there is no requirement of notice. The requirement was omitted to take care of the situation in which notice to take a deposition is so short that the five-day notice of motion required by Rule 6(d) cannot be given. 4A Moore’s Federal Practice, p. 30-84 (1981). Plaintiff discovered before trial that two of the doctors listed as witnesses had left the hospital and he had no doctor that practiced in neurology. Therefore, it was requested that plaintiff be examined by Dr. Hollinger, a neurologist. This was good cause shown. But it amply points to danger that exists when plaintiff waited almost the full limitation period in which to file this case. This practice can be as burdensome to a plaintiff as it is to a defendant. It should be avoided under normal circumstances. It should be available under extraordinary circumstances. However, the statutory period represents the public policy of this State and cannot be condemned.
It appears that defendants made no effort to interview Dr. Hollinger or to take her deposition.
In Ramm Industries Co. v. Chapman Performance Products, Inc., 18 F.R.Serv.2d 1531 (Ill.1974), plaintiff sought a postponement of depositions. The court held that four days notice was reasonable under the circumstances. The court said:
■ It is clear to this court that the taking of the deposition ... is necessary and proper to the speedy resolution of the instant litigation. Delay does not appear to be justified.
In the instant case, the court exercised judicial discretion in allowing the deposition to be taken, rather than to delay the trial months hence. It is important to note that this ease was tried before the court. To show an abuse of discretion, defendants would have to show that Dr. Hollinger’s testimony affected the decision of the court. The parties agreed that Dr. Hollinger would not testify as to any negligence of defendants. During her examination, defendants made objections that the testimony went beyond the agreement. The court stated that it would ignore all such testimony. Even though we agree that plaintiff mistakenly went beyond the agreement, we assume that the trial court ignored the answers. We may also assume, unless shown to the contrary, that questions and answers were the same as those of other doctors who testified.
No reasonable approach to this perplexing problem can impute to the trial court that it acted beyond the bounds of reason. No prejudice to defendants was shown, nor can it be shown. That which might be considered error when the trier of the fact is a jury does not necessarily constitute error when the trier of the fact is a judge. The personality of the judge is the pivotal factor. “Efforts to eliminate the personality of the judge are doomed to failure. The correct course is to recognize the necessary existence of this personal element and to act accordingly.” Frank, Law and the Modern Mind, p. 138 (1936).
Defendants close this point with the observation that it was unfair to allow Dr. Hollinger to testify, yet deny Dr. Dobernick the right to testify for defendants. The precise answer is that defendants did not offer proof of Dr. Dobernick’s knowledge of the patient’s condition or whether actual supervision was exercised by Dr. Dobernick. We may assume, unless shown to the contrary, that Dr. Dobernick did not supervise the aortogram made by the third year student. For this failure, the liability of defendants was established per se.
The trial court properly managed the use of witnesses Drs. Hollinger and Dobernick.
The majority opinion did not decide the other issues raised. I refrain from doing so.