Cahn v. Berryman, 355 P.3d 58

In May–August 2006 Plaintiff (Sara Cahn) received an ultrasound showing a complex ovarian mass; on August 8, 2006 she saw Dr. Berryman who diagnosed endometriosis and did not disclose the ultrasound findings.
Plaintiff paid a $30 copay to Sandia OB/GYN; an Explanation of Benefits (EOB) identifying the August 8 visit and Dr. Berryman existed but was mailed to an old address and not obtained by Plaintiff.
Plaintiff discovered she likely had a malpractice claim on September 22, 2008 when a different physician reviewed the 2006 ultrasound and informed her; ovarian cancer was subsequently confirmed and she underwent major treatment and surgery.
Plaintiff retained counsel December 2008, served discovery and requested records from multiple Lovelace entities, filed suit April 10, 2009 naming Lovelace and others and a John Doe; the statute of repose (three years from the occurrence) would expire August 8, 2009.
Plaintiff did not learn Dr. Berryman’s identity from insurer EOBs or bank records until July 1, 2010 (after the repose period expired); she amended to add Berryman July 9, 2010.
The district court held the three-year statute of repose, as applied, violated Plaintiff’s substantive due process; on appeal the court of appeals reversed, holding Plaintiff had a constitutionally reasonable ten-and-one-half months to identify and sue Berryman and thus the claim is time-barred.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether application of the 3-year statute of repose (NMSA § 41-5-13) violated due process because Plaintiff had an unreasonably short time after discovery to identify and sue Dr. Berryman	The ten-and-one-half months remaining was unreasonably short given confusing/misfiled medical records, mail forwarding issues, Plaintiff's cancer treatment and recovery, and diligent record requests and counsel retention	Ten-and-one-half months was constitutionally reasonable; Plaintiff had access to identifying information (insurer EOBs, bank records, knowledge of office location) and failed to use available, controllable means to learn the doctor’s identity before repose expired	Reversed district court: ten-and-one-half months was a constitutionally reasonable period; Plaintiff’s claim against Berryman is time-barred under the three-year statute of repose

Terry v. New Mexico State Highway Commission, 98 N.M. 119, 645 P.2d 1375 (1982) (held an unusually short limitations period can violate due process; three months found unreasonable)
Garcia ex rel. Garcia v. La Farge, 119 N.M. 532, 893 P.2d 428 (1995) (statute of repose may violate due process where discovery leaves an unreasonably short time; 85 days held unreasonable)
Cummings v. X-Ray Assocs. of N.M., P.C., 121 N.M. 821, 918 P.2d 1321 (1996) (18 months after discovery was constitutionally reasonable; plaintiff lost claim for lack of diligence)
Tomlinson v. George, 138 N.M. 34, 116 P.3d 105 (2005) (reaffirmed La Farge/Cummings framework; 2 years 8 months held reasonable; courts have limited discretion to relax the repose in exceptional cases)