BRYANNA PEARL BAKER, Plaintiff-Appellant, v. STEPHANIE HEDSTROM, M.D.; SOUTHWEST PERINATOLOGY; WILLIAM RAMIREZ, M.D., LEE C. CARUANA, M.D.; FAMILY PRACTICE ASSOCIATES, P.C.; MISBAH ZMILY, M.D.; MISBAH ZMILY, P.C.; CORDELL HALVERSON, M.D.; LORENE VALDEZ-BOYLE, M.D.; SAN MIGUEL HOSPITAL CORP., d/b/a ALTA VISTA REGIONAL HOSPITAL; THE BOARD OF REGENTS OF THE UNIVERSITY OF NEW MEXICO, as Trustees of the University of New Mexico Health & Sciences Center; and JOHN DOES # 1-20; and JANE DOES # 1-20, Defendants-Appellees. consolidated with LORRICE GORDON, Plaintiff-Appellee, v. ABQ HEALTH PARTNERS, L.L.C., Defendant-Appellant. consolidated with PAUL CAMPOS, as Personal Representative of the Estate of Cheri Wilson, deceased, Plaintiff-Appellant, v. LORETTA CONDER, M.D.; LORETTA CONDER, M.D., P.C.; a Corporation, OMKAR TIKU, M.D.; and OMKAR TIKU, P.C., a Corporation, Defendants-Appellees.
Docket No. 30,475
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
May 9, 2012
Certiorari Granted, July 20, 2012, No. 33,635
2012-NMCA-073
Abigail Aragon, District Judge; Alan M. Malott, District Judge; Sarah M. Singleton, District Judge
Opinion Number: 2012-NMCA-073
APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
Abigail Aragon, District Judge
consolidated with
Docket No. 30,491
LORRICE GORDON,
Plaintiff-Appellee,
v.
ABQ HEALTH PARTNERS, L.L.C.,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Alan M. Malott, District Judge
consolidated with
Docket No. 30,639
PAUL CAMPOS, as Personal Representative of the Estate of Cheri Wilson, deceased,
Plaintiff-Appellant,
v.
LORETTA CONDER, M.D.; LORETTA CONDER, M.D., P.C.; a Corporation, OMKAR TIKU, M.D.; and OMKAR TIKU, P.C., a Corporation,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Sarah M. Singleton, District Judge
McGinn,
Tyler J. Atkins
Randi McGinn
Albuquerque, NM
The Kauffman Firm
Cid Lopez
Albuquerque, NM
for Appellant Bryanna Baker
Law Offices of Felicia C. Weingartner, P.C.
Felicia C. Weingartner
Albuquerque, NM
The Kauffman Firm
Cid Lopez
Albuquerque, NM
for Appellee Lorrice Gordon
Garcia & Vargas, LLC
Ray M. Vargas, II
Santa Fe, NM
The Law Office of Stephen Durkovich
Stephen Durkovich
Santa Fe, NM
for Appellant Paul Campos
Hinkle, Hensley, Shanor & Martin, L.L.P.
Dana S. Hardy
William P. Slattery
Santa Fe, NM
for Appellees Loretta Conder, M.D. and Loretta Conder, M.D.,P.C.
Allen Shepherd Lewis Syra & Chapman PA
Edward W. Shepherd
Albuquerque, NM
for Appellees Omkar Tiku, M.D. and Omkar Tiku P.C.
Lorenz Law
Alice T. Lorenz
Albuquerque, NM
for Appellant ABQ Health Partners, L.L.C.
Butt Thornton & Baehr PC
Emily A. Franke
W. Ann Maggiore
Albuquerque, NM
for Appellees Stephanie Hedstrom, M.D. and Southwest Perinatology, P.C.
Lorrie A. Krehbiel
Melanie Frassanito
Albuquerque, NM
for Appellees Lee C. Caruana, M.D. and Family Practice Associates, P.C.
Sharp Law Firm
Lynn S. Sharp
Albuquerque, NM
for Appellant ABQ Health Partners, L.L.C.
Miller Stratvert
Jennifer D. Hall
Albuquerque, NM
for Appellees Misbah Zmily M.D. and Misbah Zmily, P.C.
OPINION
CASTILLO, Chief Judge.
{1} In these consolidated cases, we must determine if Defendants are health care providers as defined in the New Mexico Medical Malpractice Act (MMA),
{2} Plaintiffs are individuals or the estate of a deceased individual; all have asserted medical malpractice claims against Defendants and their agents. Defendants are business entities that are neither hospitals nor outpatient health care facilities involved in the treatment of Plaintiffs. Relying on the plain language of
I. BACKGROUND
{3} In this case, we have consolidated three interlocutory appeals from three different
{4} Gordon Case: Plaintiff Lorrice Gordon filed suit alleging permanent injuries from a bowel obstructiоn following an emergency appendectomy that had required a second surgery and a prolonged hospital stay. The case was filed in the Second Judicial District Court against Lovelace Health System, Inc.; the surgeon who performed the appendectomy; and the surgeons‘s employer, ABQ Health Partners, L.L.C. (the LLC), a foreign limited liability company organized under the laws of the State of Delaware. The LLC filed a motion to dismiss or stay, arguing that it had procured insurance under the MMA, that it was entitled to the benefits of the MMA, and that it was entitled to dismissal because Gordon had failed to comply with the procedural requirements of the MMA. Gordon responded that the LLC was not entitled to the benefits of the MMA because it was not a “health care provider.” The district court agreed with Gordon, denied the motion to dismiss, and certified the matter for interlocutory review.
{5} Baker Case: Plaintiff Bryanna Baker filed suit in the Fourth Judicial District Court alleging malpractice related to her pregnancies, heart attack, and resulting permanent heart damage. Defendants included the doctors who treated her and the professional corporations under which those doctors practice medicine. Thereafter, she moved for summary judgment, arguing that the professional corporations named as defendants in her suit could not benefit from the damage limitations in the MMA—despite the fact that they had procured insurance under the MMA—because they are not health care providers. The district court rejected Baker‘s motion, determined that the defendant corporations are health care providers, and certified the ruling for interlocutory review.
{6} Campos Case: Cheri Wilson had her gall bladder removed and died three days after the procedure. Paul Campos, the personal representative of Wilson‘s estate, filed a wrongful death action in the First Judicial District against the doctor who performed the procedure, against Wilson‘s primary care physician whom Wilson had consulted after the procedure, and against the professional corporations under which both doctors practice medicine. The defendant professional corporations had obtained insurance under the MMA and filed motions to dismiss, arguing that Wilson‘s estate failed to comply with the procedural requirements of the MMA. Campos opposed the motion and argued that the corporations are not “health care provider[s]” as that term is defined in the MMA and, thus, were not
entitled to the benefits of the MMA. The district court rejected this argument, granted the motion to dismiss, and certified the matter for interlocutory review. This Court granted the interlocutory appeals of the three cases and, upon the stipulated request of the parties, consolidated them because they all involve a similar question.
II. DISCUSSION
{7} The sole issue before us is whether the definition of “health care provider” as set forth in
{8} We begin our review by establishing our standard of review and then set out the rules of statutory constructiоn that guide our analysis.
A. Standard of Review and Rules of Statutory Construction
{9} This case presents us with a question of statutory interpretation. “The meaning of language used in a statute is a question of law that we review de novo.” United Rentals Nw., Inc. v. Yearout Mech., Inc., 2010-NMSC-030, ¶ 7, 148 N.M. 426, 237 P.3d 728 (internal quotation marks and citation omitted).
{10} “The principal objective in the judicial construction of statutes is to determine and give effect to the intent of the [L]egislature.” Regents of the Univ. of N.M. v. N.M. Fed‘n of Teachers, 1998-NMSC-020, ¶ 28, 125 N.M. 401, 962 P.2d 1236 (internal quotation marks and citation omitted). We rely on rules of construction as aids in determining legislative
intent, State v. Martinez, 92 N.M. 291, 293, 587 P.2d 438, 440 (Ct. App. 1978), and must interpret
{11} “The first guiding principle in statutory construction dictates that we look to the wording of the statute and attеmpt to apply the plain meaning rule, recognizing that [w]hen a statute contains language which is clear and unambiguous, we must give effect to that language and refrain from further statutory interpretation.” United Rentals Nw., Inc., 2010-NMSC-030, ¶ 9 (alteration in original) (internal quotation marks and citation omitted). We may depart from the plain meaning of the language of a statute, however, to “correct a mistake or an absurdity that the Legislature could not have intended[.]” Regents of the Univ. of N.M., 1998-NMSC-020, ¶ 28.
{12} “It is fundamental that statutes will be construed so that their application will be neither absurd nor unreasonable.” Midwest Video v. Campbell, 80 N.M. 116, 119, 452 P.2d 185, 188 (1969). Similarly, “[w]e will not construе a statute to defeat [its] intended purpose.” Padilla v. Montano, 116 N.M. 398, 403, 862 P.2d 1257, 1262 (Ct. App. 1993). “If the language of a statute renders its application absurd or unreasonable, it will be construed according to its obvious spirit or reason.” State v. Ortiz, 78 N.M. 507, 510, 433 P.2d 92, 95 (Ct. App. 1967). This may necessitate “the rejection of words and the substitution of others.” Montoya v. McManus, 68 N.M. 381, 389, 362 P.2d 771, 776 (1961). We may consider “the structure, context, history[,] and background of the statute, as well as the likely policy implications of various constructions.” State v. Burke, 2007-NMCA-093, ¶ 7, 142 N.M. 218, 164 P.3d 99, rev‘d on other grounds by 2008-NMSC-052, 144 N.M. 772, 192 P.3d 767.
1. Plain Meaning
{13} Neither party argues that there is ambiguity in
{14} In support of this interpretation, Plaintiffs point out that corporations cannot be licensed to provide health care or professional services as doctors, physician assistants, chiropractors, podiatrists, nurse anesthetists, or physician‘s assistants. They correctly argue
that only persons can be licensed to provide those health services. See
{15} Plaintiffs assert that there is no dispute that Defendant corporations are not one of the six types of persons nor are they one of the two types of business entities encompassed by the definition of “health care provider.” Thus, according to Plaintiffs, Defendants cannot qualify for coverage under the MMA.
{16} Defendants have not offered a compelling alternative reading of the plain meaning of the text of
{17} Were we to look only at the literal language in
{18} In the consolidated cases before us, a plain meaning interpretation would make little sense in light of the historical circumstances that led to the MMA‘s enactment and the structure of the MMA itself. Burke, 2007-NMCA-093, ¶ 7 (stating that a court may consider the history and background of a statute as well
2. Legislative Purpose and History
{19} We begin with a short history of the events leading to the filing of these cases. The MMA was enacted in 1976 and, since then, a variety of different business entities that are neither hospitals nor outpatient health care facilities have paid for liability coverage under the MMA and have been covered. The question of whether the term “health care provider” as defined in the MMA encompasses business entities other than hospitals and outpatient health care facilities has nеver been specifically addressed by a New Mexico appellate court. Nor had it been addressed by the Insurance Department until 2009 when the then-serving New Mexico Superintendent of Insurance issued a memorandum expressing his view that these types of business entities do not fall within the definition of “health care provider.” Disagreeing with the determination, a doctor and a health insurance company filed a suit against the superintendent for injunctive relief and declaratory judgment. That lawsuit resulted in a temporary restraining order that required the superintendent to rescind his memorandum and to continue permitting business entities other than hospitals and outpatient health care facilities to procure coverage.
{20} In both the 2010 and 2011 legislative sessions, proposed legislation designed to address the definition of “health care provider” was introduced. The 2010 legislation died during the session, while the 2011 legislation passed both houses but was vetoed by the Governor.
{21} The asserted purpose of the MMA is “to promote the health and welfare of the people of New Mexico by making available professional liability insurance for health care providers in New Mexico.”
{22} “The [MMA] was enacted by the [L]egislature in order to meet an insurance crisis [and] to promote health care in New Mexico by providing a framework for tort liability with which the insurance industry could operate.” Wilschinsky v. Medina, 108 N.M. 511, 516, 775 P.2d 713, 718 (1989). The insurance crisis that prompted the enactment of the MMA arose out of a nationwide perception that medical malpractice insuranсe was increasingly becoming unavailable. Ruth L. Kovnat, Medical Malpractice Legislation in New Mexico, 7 N.M. L. Rev. 5, 7 (1976-77). The specific event that triggered concern in New Mexico was the announced withdrawal in 1975 of the Travelers’ Insurance Company as the underwriter of the New Mexico Medical Society‘s professional liability program. Id. Travelers’ withdrawal jeopardized health care providers’ protection against liability claims and, in turn, compromised the legal remedies available to health care consumers injured by the negligence of health care providers. Id. at 7-8. Travelers’ reason for withdrawing was “simply that there was no profit in writing medical liability insurance and that they would prefer to be out of the business altogether.” Id. at 8.
{23} The MMA addressed the crisis by making malpractice insurance available and by providing incentives in the form of benefits to ensure widespread participation. Cummings, 1996-NMSC-035, ¶ 29; Roberts, 114 N.M. at 249-50, 837 P.2d at 443-44. The benefits of participation in the MMA are significant and numerous. See generally Lester ex rel. Mavrogenis v. Hall, 1998-NMSC-047, ¶ 11, 126 N.M. 404, 970 P.2d 590. In order to assure
New Mexicans’ access to medical care, the Legislature limited the liability of health care providers by enacting damage caps, a shorter three-year statute of limitations, and a mandatory evaluation process conducted by a medical review commission. Id. In short, the MMA restricted and limited plaintiffs’ rights under the common law. See Wilschinsky, 108 N.M. at 516, 775 P.2d at 718.
{24} We now turn to some of the specific provisions.
{25} Thеse specific burdens—the minimum insurance requirement and the levying of surcharges—along with the creation and existence of the patient‘s compensation fund are significant and central aspects of the MMA. Our Supreme Court has previously observed that, by establishing minimum levels of insurance and by levying a surcharge to sustain the patient‘s compensation fund, the MMA “achieves the legislative purposes of assuring that health care providers are adequately insured so that patients may be reasonably compensated for their malpractice injuries.” Id. This is but another way of saying that these provisions go a long way toward fulfilling the asserted purpose of the MMA.
{26} From 1976 to 2009, the New Mexico Department of Insurance permitted physician owned corporations or organizations to obtain insurance coverage and thus become qualified health care providers. For this thirty-three-year period, there was no action by the Legislature indicating that this interpretation of the statute was incorrect. See In re Sleeper, 107 N.M. 494, 498, 760 P.2d 787, 791 (Ct. App. 1988) (“[T]he more long-standing the state engineer‘s interpretation of construction of the statutes without amеndment by the [L]egislature, the more likely that the state engineer‘s interpretation reflects the [L]egislature‘s intent.“); but see Brown v. Gardner, 513 U.S. 115, 121 (1994) (stating that legislative silence lacks persuasive significance).
{27} Plaintiffs have a different view of the purpose of the MMA. They focus on the manner in which health care was rendered at the time the MMA was enacted and assert that, at that time, medical services in New Mexico were primarily rendered by individual doctors and by locally owned hospitals. Thus, Plaintiff‘s claim that the Legislature intended only those doctors and those entities to be eligible to qualify as “health care providers.” Other business or corporate entities, Plaintiffs claim, “were not of concern” and, thus, were purposefully excluded from qualifying. In support of this view, Plaintiffs direct us to the affidavit of Terry M. Word, an attorney who served on the “New Mexico Medical Society/New Mexico Bar Association Committee” and “the informal Medical Society/Bar Association Liaison Committee” both of which, Plaintiffs claim, “provided guidance and policy assistance to the New Mexico Legislature on the [MMA].” Word‘s view of the
history and purpose of the MMA is identical to Plaintiffs’ position.
{28} We are unpersuaded by Plaintiffs’ legislative history and intent arguments and the authority they cite in support of those arguments. Further, the Word affidavit has no bearing here as, generally, not even statements of legislators are considered competent evidence in determining legislative intent. Cf. Gallegos, 117 N.M. at 355-56, 871 P.2d at 1361-62 (“Statements of legislators, after the passage of the legislation, however, are generally not considered competent evidence to determine the intent of the legislative body enacting a measure.” (internal quotation marks and citation omitted)). Word only provided policy assistance to the Legislature and therefore was at least one step removed from the legislative process.
{29} More critically, we are unable to reconcile Plaintiffs’ position that the Legislature intended only a specific pool of health care providers to be eligible for coverage under the MMA with the asserted purpose of the MMA: to protect the health of New Mexicans by solving the problem of the unavailability of medical malpractice insurance. As noted above, the Legislature went so far as to provide significant incentives to ensure widespread participation in the MMA. Plaintiffs’ view that the MMA was intended to be restrictive does not make sense in light of case law that supports the conclusion that our Legislature intended the MMA to be broadly applicable. Cummings, 1996-NMSC-035, ¶ 29 (stating that the Legislature “provided a number of incentives to assure participation
{30} Plaintiffs attempt to bolster their legislative intent argument by relying on the canon of statutory construction known as expressio unius est exclusio alterius—the inclusion of one thing implies the exсlusion of another. See generally Fernandez v. Española Pub. Sch. Dist., 2005-NMSC-026, ¶ 6, 138 N.M. 283, 119 P.3d 163 (discussing the expressio unius est exclusio alterius canon of construction). They contend that, because the definition of “health care provider” includes several specific entities, the Legislature must have intended that all other entities not specifically listed were to be excluded from the definition of “health care provider.” We disagree.
{31} We are persuaded that the Legislature intended, for sound and identifiable policy reasons, that the term “health care provider” be as broadly construed as possible. We have rejected Plaintiffs’ view rеgarding legislative intent. We also reject Plaintiffs’ expresio unius est exclusio alterius argument as inconsistent with what we believe our Legislature intended regarding the scope of the definition of “health care provider.” As stated above, our principal objective is to construe
{32} Finally, we observe that Plaintiffs’ interpretation would, as Defendants argue, give rise to significant constitutional issues grounded in contract, due process, and equal protection. Our case law requires that we construe statutes to avoid such issues. Lovelace Med. Ctr. v. Mendez, 111 N.M. 336, 340, 805 P.2d 603, 607 (1991) (“It is, of course, a well-established principle of statutory constructiоn that statutes should be construed, if possible, to avoid constitutional questions.“).
{33} In sum, we determine that a plain meaning construction of
B. Remaining Arguments
{34} The parties have presented a number of other arguments that we find unpersuasive. We deal with them summarily.
{35} Defendants direct us to two Attorney General opinions, one issued in 1977, the other in 1987, that they claim are pertinent to the issue before us. This is not the case. The 1977 opinion examines the plain language of the MMA and advises that “[a] corporation licensed to provide professional services as specified in [
{36} The 1987 opinion addresses whether “a corporation, organized and controlled by non-physicians, [may] provide medical services to the general public through employed physicians[.]” The Attorney General concludеd yes with some qualification. The question answered by the 1987 opinion and the question before us are totally different; consequently, we fail to see how the resolution of this question answered in the opinion bears on the scope of the definition of “health care provider.” For this reason, we conclude that the 1987 opinion is not helpful.
{37} Defendants also direct us to legislation proposed during the 2011 New Mexico legislative session that would have amended the definition of “health care provider” to include business entities other than hospitals or outpatient health care facilities.
was enacted. See Montoya, 82 N.M. at 94, 476 P.2d at 64 (observing that we must discern legislative intent at the time of enactment). The legislative amendments are also immaterial.
{38} Defendants rely on the rule of stаtutory construction known as administrative gloss. This canon was discussed by our Supreme Court in High Ridge Hinkle Joint Venture v. City of Albuquerque, 1998-NMSC-050, ¶ 9, 126 N.M. 413, 970 P.2d 599, which Defendants cite. There, our Supreme Court described the doctrine as follows: “[a]n administrative gloss is placed on an ambiguous clause of a zoning ordinance when those responsible for its implementation interpret the clause in a consistent manner and apply it to similarly situated applicants over a period of years without legislative interference.” Id. (internal quotation marks and citation omitted). In Smith v. Bd. of Cnty. Comm‘r, 2005-NMSC-012, ¶ 32, 137 N.M. 280, 110 P.3d 496, our Supreme Court explained that adherence to the doctrine precludes a “kind of result-oriented reinterpretation of zoning rules.” Our research reveals that the canon of administrative gloss is applicable only where the provision giving rise to the dispute is ambiguous. See Nash Family Inv. Props. v. Town of Hudson, 660 A.2d 1102, 1108 (N.H. 1995) (“Assuming [the administrative gloss] doctrine applies . . . the plaintiffs’ point must fail because they allege no ambiguity in the relevant ordinances.“). The parties have not argued that
{39} Both parties cite to opinions from other jurisdictions where courts were required to interpret their state statute that is equivalent to thе MMA and address issues similar to those raised here. Defendants cite to Campbell v. MacGregor Med. Ass‘n, 966 S.W.2d 538 (Tex. Ct. App. 1997), rev‘d in part on other grounds by MacGregor Med. Ass‘n v. Campbell, 985 S.W.2d 38 (Tex. 1998), while Plaintiffs direct us to Turner v. Sheldon D. Wexler, D.P.M., P.C., 418 S.E.2d 886 (Va. 1992). These cases are, in our view, of minimal significance because the conclusions reached by the Texas and Virginia courts are based on the unique language and interpretation of their respective statutes. This appeal requires us to examine the language of the MMA, the purposes and historical circumstances giving rise to the enactment of the MMA, the structure of the MMA, and to apply the rules of statutory construction as adopted in New Mexico.
III. CONCLUSION
{40} “When we find, as we do here, a clash between the intent of the [L]egislature and its own definitional section, we seek to harmonize the two.” Wilschinsky, 108 N.M. at 517, 775 P.2d at 719. We decline to read the definition of “health care provider” literally. This would restrict eligibility for coverage under the MMA in a manner our Legislature could not have intended. The purpose of the MMA, the historical circumstances leading to its enactment, and the structure of the MMA persuade us that the Legislature intended to include Defendants in the definition of “health care provider” and, thus, to allow them to qualify for coverage under the MMA. Thus, we reverse the district court‘s denial of Defendant‘s motion to dismiss in Gordon, and we affirm the orders of the district courts in Baker and Campos.
{41} IT IS SO ORDERED.
CELIA FOY CASTILLO, Chief Judge
WE CONCUR:
RODERICK T. KENNEDY, Judge
LINDA M. VANZI, Judge
Topic Index for Baker v. Hedstrom, Docket Nos. 30,475/30,491/30,639
APPEAL AND ERROR
Interlocutory Appeal
Standard of Review
STATUTES
Interpretation
Legislative Intent
Rules of Construction
TORTS
Medical Malpractice