316 P.3d 907
N.M. Ct. App.2013Background
- On November 11–12, 2008, Dr. Delgado wrote and called in a prescription for Simvastatin (Zocor) for patient Jose R. Chavez; Chavez filled the prescription on December 3, 2008 and was hospitalized December 8, 2008 with drug-induced rhabdomyolysis; he died February 21, 2010.
- Plaintiffs filed a malpractice and wrongful-death complaint against Dr. Delgado on December 1, 2011, alleging negligent prescription of the medication.
- Dr. Delgado moved for summary judgment asserting the three-year statute of repose in the New Mexico Medical Malpractice Act, § 41-5-13, barred the suit.
- The district court denied summary judgment, concluding the statute of repose did not begin to run until the patient was injured or until the end of the ingestion period.
- On interlocutory appeal, the Court of Appeals considered whether the MMA’s three-year repose runs from the date the medication was prescribed, from the date of injury, or from the end of the ingestion period.
- The Court of Appeals reversed, holding the repose period begins on the discrete act of prescribing the medication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does § 41-5-13’s three-year repose begin in a negligent-prescription case? | The repose should run from the date the patient was injured or from the last day the patient ingested the drug. | The repose runs from the prescriber’s discrete act (date prescription written or called in). | The court held the repose begins on the provider’s discrete act of prescribing (date written or called in), not on patient ingestion or injury. |
Key Cases Cited
- Tomlinson v. George, 138 N.M. 34, 116 P.3d 105 (N.M. 2005) (recognizes MMA’s repose and applies occurrence-based triggering for § 41-5-13)
- Cummings v. X-Ray Assocs. of N.M., P.C., 121 N.M. 821, 918 P.2d 1321 (N.M. 1996) (establishes that § 41-5-13 is a statute of repose triggered by the act of malpractice, not injury discovery)
- Garcia ex rel. Garcia v. La Farge, 119 N.M. 532, 893 P.2d 428 (N.M. 1995) (rejects accrual/discovery-based interpretation for repose statute)
- Jaramillo v. Heaton, 136 N.M. 498, 100 P.3d 204 (N.M. Ct. App. 2004) (explains purpose of repose is to limit prospective liability after a fixed period)