The Supreme Court of the State of New Mexico (“New Mexico Supreme Court”) held in its November 20, 2017 opinion that while the New Mexico Medical Malpractice Act (“MMA”), NMSA 1978, §§ 41-5-1 to -29 (1976, 4 as amended through 2015) forecloses any cause of action that does not accrue within three years of the act of malpractice, the contours of the due process exception to this limitation requires that plaintiffs with late-accruing medical malpractice claims, i.e., claims accruing in the last twelve months of the three-year repose period, have twelve months from the time of accrual to commence suit.
The New Mexico medical malpractice plaintiff sought treatment for pelvic pain in 2006, and had a pelvic ultrasound in May 2006. The ultrasound report indicated that there was a complex mass on the plaintiff’s left ovary and stated that “[a] malignancy need[ed] to be excluded.”
On August 8, 2006, the plaintiff consulted with the defendant physician in New Mexico, who reviewed the ultrasound report but did not schedule a biopsy. The defendant examined the plaintiff and diagnosed her as having endometriosis and provided her with medication for that condition, intending that she return to his office for a follow-up visit. However, the plaintiff never returned for follow-up care with the defendant physician.
On September 22, 2008, while seeing an OB/GYN in Wyoming for her continuing pelvic pain, the plaintiff learned that the defendant physician had failed to inform her of the mass on her left ovary. Further tests revealed that the plaintiff had ovarian cancer, and on October 15, 2008, she underwent a hysterectomy in New York.
After her hysterectomy, the plaintiff was determined to sue her physicians for medical negligence; she could not, however, remember the defendant physician’s name or precisely when he had treated her. The plaintiff took steps to discover the defendant physician’s name and the date of her consultation with him by submitting medical records requests to various medical providers in New Mexico and requested explanation of benefits forms from her health insurer. Nonetheless, the documents and information the plaintiff received in response did not identify the defendant physician.
After the plaintiff hired a medical malpractice lawyer, additional record requests were submitted by her New Mexico medical malpractice lawyer to various health care entities, but the records received in response to those requests did not reflect the consultation with the defendant physician.
On April 10, 2009, the plaintiff filed her New Mexico medical malpractice complaint against various defendants, but did not name the defendant physician. On July 1, 2010, one of the named medical malpractice defendants produced records in response to the plaintiff’s requests for production, showing that the plaintiff received medical care from the defendant physician on August 8, 2006. On July 9, 2010, the plaintiff filed an amended medical malpractice complaint in which she named the defendant physician as a defendant and asserted a medical malpractice claim against him.
The New Mexico Supreme Court emphasized, based on the above facts, that the act of medical malpractice that the plaintiff alleges the defendant physician committed occurred on August 8, 2006, and the plaintiff’s medical malpractice claim accrued on September 22, 2008, the date she discovered that the defendant physician did not alert her to the findings indicated by the May 2006 ultrasound report (the cause of action accrues when the plaintiff knows or with reasonable diligence should have known of the injury and its cause). The plaintiff’s New Mexico medical malpractice claim accrued ten and one-half months before August 8, 2009, when the three-year repose period of Section 41-5-13 was set to expire. The plaintiff sued the defendant physician on July 9, 2010, three years and eleven months after the defendant’s act of medical negligence occurred and one year and nine and one-half months after the plaintiff’s claim accrued.
The issue before the New Mexico Supreme Court was whether the application of Section 41-5-13 to bar the plaintiff’s medical malpractice claim violated her right to due process.
Section 41-5-13 provides: “No claim for malpractice arising out of an act of malpractice which occurred subsequent to the effective date of the [MMA] may be brought against a health care provider unless filed within three years after the date that the act of malpractice occurred except that a minor under the full age of six years shall have until his ninth birthday in which to file. This subsection . . . applies to all persons regardless of minority or other legal disability.”
The New Mexico Supreme Court stated that Section 41-5-13 operates as a statute of repose: statutes of repose begin to run when a statutorily designated event occurs, without regard to when the underlying cause of action accrues and without regard to the discovery of injury or damages. Section 41-5-13’s statutorily determined triggering event is the act of medical malpractice and does not entail whether the injury has been discovered.
The Due Process Exception to the Application of Section 41-5-13
The New Mexico Supreme Court stated that the Due Process Clauses of the United States and New Mexico Constitutions, 11 U.S. Const. amend. XIV, § 1; N.M. Const., art. II, § 18, provide the basis for an exception to the application of the MMA’s statute of repose: once a cause of action accrues, it is subject to the protections of due process, and due process requires that the plaintiff have a reasonable amount of time in which to commence suit after any late-accruing medical malpractice claim has accrued. However, this due process exception is implicated only if a plaintiff’s claim accrues late within the three-year repose period.
Therefore, the New Mexico Supreme Court had to decide what amount of time the plaintiff is entitled to as a consequence of due process before Section 8 41-5-13 extinguishes the claim when a medical malpractice claim accrues late within the repose period and the plaintiff requires additional time beyond that period to commence suit.
The New Mexico Supreme Court held that twelve months is a constitutionally reasonable period of time within which to file an accrued claim regardless of whether the claim accrues twelve months or one day before the expiration of the three-year repose period. The New Mexico Supreme Court warned, however, that “[o]ur holding should not … be interpreted to mean that twelve months is the minimum time period that will satisfy due process. Our decision today does not preclude our Legislature from shortening—or lengthening—the additional time plaintiffs with late-accruing claims receive.”
The New Mexico Supreme Court gave the following examples: If a malpractice claim accrues (i.e., the plaintiff discovers that she has suffered malpractice) twelve months prior to the expiration of the three-year repose period, the plaintiff shall have the remainder of the repose period (twelve months) to commence suit. If, however, the claim accrues six months prior to the expiration of the repose period, the plaintiff will have twelve months from that accrual date to file her claim, i.e., the remainder of the repose period plus an additional six months after the expiration of the repose period (a total of twelve months). If the claim accrues on the last day of the repose period, the plaintiff shall have twelve months from that last day to file suit.
The New Mexico Supreme Court stated that these examples are offered to illustrate that a plaintiff with a late-accruing claim shall have twelve months from whichever date the late-accruing claim accrues to file suit. But the benefit of additional time that this due process exception provides inures only to plaintiffs with late-accruing claims, i.e., claims accruing in the last twelve months of the three-year repose period. Plaintiffs with claims accruing in the first twenty-four months of the repose period shall not benefit from this exception to Section 41-5-13 as claims that accrue in that time period are not “late accruing.” The New Mexico Supreme Court stated that the additional time provided plaintiffs with late-accruing claims is a constitutionally mandated exception to the application of the three-year period. Additionally, Section 41-5-13 extinguishes any claim accruing after the three-year repose period has expired.
In the present case, the plaintiff commenced her medical malpractice lawsuit against the defendant physician more than twelve months from the date that her claim accrued. Accordingly, the New Mexico Supreme Court held that the plaintiff’s medical negligence claim against the defendant physician was barred by Section 41-5-13.
Source Cahn v. Berryman, No. S-1-SC-35302.
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