408 P.3d 1012
N.M.2017Background
- In May–August 2006 Cahn had an ultrasound showing a suspicious left-ovary mass and saw Dr. Berryman on August 8, 2006; he did not biopsy or inform her of the mass and she never returned.
- Cahn learned she had ovarian cancer on September 22, 2008 and that Berryman had failed to disclose the ultrasound findings; she underwent surgery October 15, 2008.
- Cahn could not recall the treating physician’s name and undertook records requests; she filed a malpractice complaint in April 2009 naming several defendants but not Berryman.
- Lovelace produced records on July 1, 2010 identifying Berryman; Cahn amended her complaint to add him on July 9, 2010—over 21 months after accrual and nearly four years after the 2006 act.
- The district court denied Berryman’s summary judgment (statute-of-repose defense) on due-process grounds; the Court of Appeals reversed. The New Mexico Supreme Court granted certiorari to decide whether applying NMSA 1978 § 41-5-13 (three-year statute of repose) violated due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the MMA three-year repose (§ 41-5-13) can bar a malpractice claim that accrues within the last 12 months of the repose period | Cahn: due process requires a reasonable post‑accrual period to sue when claim accrues late; she was entitled to additional time and her suit should proceed | Berryman: statute of repose bars any suit filed more than three years after the act of malpractice, regardless of late accrual within that period | The Court held the repose may bar claims unless due process requires a limited exception for late‑accruing claims (claims accruing in final 12 months) |
| If due process requires additional time for late‑accruing claims, how much time is constitutionally reasonable? | Cahn: (implicitly) rely on case‑specific reasonableness and existing background limitations | Berryman: no additional time beyond statute of repose is required | The Court adopted a bright‑line rule: plaintiffs whose claims accrue in the last 12 months of the repose get 12 months from accrual to file (overruling part of Garcia) |
| Whether Cahn met that 12‑month period for accrual to filing | Cahn: she diligently sought to identify the physician; delays were due to records opacity | Berryman: Cahn filed more than 12 months after accrual; claim is time‑barred | Held: Cahn filed >21 months after accrual; her claim is barred by § 41-5-13 |
| Whether fraudulent concealment or tolling applies to extend repose | Cahn: did not assert fraudulent concealment as to Berryman on appeal | Berryman: no concealment; repose stands | Court noted fraudulent concealment could toll repose but Cahn did not make that argument; no tolling applied |
Key Cases Cited
- Garcia ex rel. Garcia v. LaFarge, 119 N.M. 532, 893 P.2d 428 (N.M. 1995) (recognized due‑process exception to repose for late‑accruing claims and applied background limitation when remaining time was unreasonably short)
- Cummings v. X‑Ray Assocs. of N.M., P.C., 121 N.M. 821, 918 P.2d 1321 (N.M. 1996) (upheld MMA repose in many applications; considered diligence in due‑process analysis)
- Tomlinson v. George, 138 N.M. 34, 116 P.3d 105 (N.M. 2005) (addressed late‑accrual/due‑process question and reasonableness of remaining time)
- Terry v. N.M. State Highway Comm’n, 98 N.M. 119, 645 P.2d 1375 (N.M. 1982) (articulated two‑step due‑process approach: assess whether remaining time is unreasonably short and, if so, what limitation should apply)
- Crumpton v. Humana, Inc., 99 N.M. 562, 661 P.2d 54 (N.M. 1983) (applied background personal‑injury limitation alongside MMA provisions)
- Logan v. Zimmerman Brush Co., 455 U.S. 422 (U.S. 1982) (accrued causes of action are property interests protected by Fourteenth Amendment due process)
- Gaines v. Preterm‑Cleveland, Inc., 514 N.E.2d 709 (Ohio 1987) (one‑year post‑discovery period deemed reasonable for late‑accruing malpractice claims in analogous context)