SARA CAHN, Plaintiff-Petitioner, v. JOHN D. BERRYMAN, M.D., Defendant-Respondent.
No. S-1-SC-35302
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
November 20, 2017
2018-NMSC-002
Nan G. Nash, District Judge
ORIGINAL PROCEEDING ON CERTIORARI
Law Offices of Felicia C. Weingartner
Felicia C. Weingartner
Albuquerque, NM
Law Office of Cid D. Lopez, LLC
Cid Dagward Lopez
Albuquerque, NM
Carmela D. Starace
Albuquerque, NM
for Petitioner
Butt, Thornton & Baehr, P.C.
Emily A. Franke
Albuquerque, NM
Hinkle Shanor LLP
William P. Slattery
Dana Simmons Hardy
Santa Fe, NM
for Respondent
NAKAMURA, Chief Justice.
{1} The Medical Malpractice Act (MMA),
{2} Petitioner Sara Cahn invoked the due process exception but did not file her late-accruing medical malpractice claim against Respondent John D. Berryman, M.D., within twelve months. Twenty-one months elapsed between the accrual date of Cahn‘s claim against Dr. Berryman and the date she filed suit against him. Thus, her claim is barred by
I. BACKGROUND
{3} In 2006, Cahn sought treatment for pelvic pain at Lovelace Women‘s Hospital in Albuquerque. In May 2006, Cahn received a pelvic ultrasound. The ultrasound report indicated that there was a complex mass on Cahn‘s left ovary and noted that “[a] malignancy need[ed] to be excluded.”
{4} On August 8, 2006, Cahn consulted Dr. Berryman. This was Dr. Berryman‘s only appointment with Cahn. At that time, Dr. Berryman worked for Sandia OB/GYN Associates, P.C., in an office located in the Lovelace Women‘s Hospital medical complex. Dr. Berryman reviewed the ultrasound report, but did not schedule a biopsy. Rather, he examined Cahn, 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. Contrary to Dr. Berryman‘s intention, Cahn never returned for follow-up care.
{5} On September 22, 2008, while seeing an OB/GYN in Wyoming for her continuing pelvic pain, Cahn learned that Dr. Berryman had failed to inform her of the mass on her left ovary. Further tests revealed that Cahn had ovarian cancer, and on October 15, 2008, she underwent a hysterectomy in New York.
{7} On April 10, 2009, Cahn filed a complaint alleging medical malpractice against LHS and several other defendants. Dr. Berryman was not a named defendant. On July 1, 2010, LHS produced records in response to Cahn‘s requests for production showing that Cahn received care from Dr. Berryman on August 8, 2006. On July 9, 2010, exactly one week after receiving these records, Cahn filed an amended complaint in which she named Dr. Berryman as a defendant and asserted a medical malpractice claim against him. Before proceeding further, we pause to emphasize the dispositive facts which can be discerned from the foregoing.
{8} The act of malpractice that Cahn alleges Dr. Berryman committed occurred on August 8, 2006. Cahn‘s malpractice claim accrued on September 22, 2008, the date she discovered that Dr. Berryman did not alert her to the findings indicated by the May 2006 ultrasound report. See Roberts v. Sw. Cmty. Health Servs., 1992-NMSC-042, ¶ 27, 114 N.M. 248, 837 P.2d 442 (“[T]he cause of action accrues when the plaintiff knows or with reasonable diligence should have known of the injury and its cause.“). Cahn‘s claim accrued ten and one-half months before August 8, 2009, when the three-year repose period of
{9} In the Second Judicial District Court, Dr. Berryman moved for summary judgment arguing that
{10} The district court then set the case for a jury trial, but Cahn and Dr. Berryman entered into a stipulated conditional directed verdict and final judgment, stating that Dr. Berryman was liable to Cahn for medical negligence in the amount of $700,000 but preserving for appeal the issue of whether
{11} Cahn petitioned for a writ of certiorari, which we granted, exercising our jurisdiction under Article VI, Section 3 of the New Mexico Constitution and
II. DISCUSSION
A. Standard of Review
{12} “This Court‘s review of orders granting or denying summary judgment is de novo.” Zamora v. St. Vincent Hosp., 2014-NMSC-035, ¶ 9, 335 P.3d 1243. “Summary
B. Section 41-5-13: the MMA‘s Statute of Repose
{13} “Like many other states, New Mexico reformed its medical malpractice laws in 1976 in response to a much discussed medical malpractice crisis.” Cummings v. X-Ray Assocs. of N.M., P.C., 1996-NMSC-035, ¶ 40, 121 N.M. 821, 918 P.2d 1321. Surveying that crisis, the Court of Appeals observed that
[t]he insurance crisis that prompted the enactment of the MMA arose out of a nationwide perception that medical malpractice insurance was increasingly becoming unavailable. 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. 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.
Baker v. Hedstrom, 2012-NMCA-073, ¶ 22, 284 P.3d 400 (citing Ruth L. Kovnat, Medical Malpractice Legislation in New Mexico, 7 N.M. L. Rev. 5, 7 (1976-77)), aff‘d on other grounds, 2013-NMSC-043, 309 P.3d 1047. The insurance crisis prompted concerns about the departure of medical providers from New Mexico as well as the availability of recovery for New Mexicans who suffer injuries resulting from medical malpractice. See id.
{14} The MMA sought to address this crisis by ensuring that professional liability insurance was available to health care providers in New Mexico.
{15}
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.
This provision operates as a statute of repose. Tomlinson v. George, 2005-NMSC-020, ¶ 8, 138 N.M. 34, 116 P.3d 105. Statutes of repose reflect a legislative policy to extinguish, after the passage of a period of time, all liability for claims not filed by the end of the repose period irrespective of whether the claims have already accrued or have yet to accrue. See id. 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.” Garcia ex rel. Garcia v. LaFarge, 1995-NMSC-019, ¶ 14, 119 N.M. 532, 893 P.2d 428; see also Restatement (Second) of Torts § 899(g) (Am. Law Inst. 1979) (“[S]tatutes [of repose] set a designated event for the statutory period to start running and then provide that at the expiration of the period any cause of action is barred . . . .“). ”
C. The Due Process Exception to the Application of Section 41-5-13
{16} The Due Process Clauses of the United States and New Mexico Constitutions,
{17} When a medical malpractice claim accrues late within the repose period and the plaintiff requires additional time beyond that period to commence suit, to what amount of time is the plaintiff entitled as a consequence of due process before
{18} In Garcia, the plaintiff‘s malpractice claim accrued eighty-five days before the expiration of the MMA‘s three-year repose period, and we held that eighty-five days is a constitutionally insufficient amount of time for the plaintiff to commence suit. See 1995-NMSC-019, ¶¶ 37-38. In Cummings, by contrast, the plaintiff‘s claim accrued eighteen months before the expiration of the repose period, and we determined that eighteen months was a constitutionally reasonable amount of time. See 1996-NMSC-035, ¶¶ 57-59. And in Tomlinson, the plaintiff‘s claim accrued thirty-two months before the expiration of the repose period, and we determined that this was most certainly a constitutionally reasonable amount of time. See 2005-NMSC-020, ¶¶ 3, 23. Expanding our inquiry beyond the MMA context, we glean additional insight into the answer to the issue before us.
{19} New Mexico appellate courts have upheld as consistent with due process the application of statutory bars that create limitations periods of one year. See Terry, 1982-NMSC-047, ¶ 17 (“We have upheld limitations periods as short as one year when justified by specific considerations.“); Martinez v. Pub. Emps. Ret. Ass‘n of N.M., 2012-NMCA-096, ¶¶ 15, 40-41, 286 P.3d 613 (observing that the one-year deadline set forth in
{20} We hold 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. Our holding should not, however, 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. To ensure that our holding is clear, we offer some illustrations of the rule we have articulated.
{21} 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. 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
{22} We recognize that our decision to grant plaintiffs with late-accruing medical malpractice claims a twelve-month period in which to file those claims is inconsistent with Garcia where we determined that a plaintiff with a late-accruing medical malpractice claim would receive the benefit of the statute of limitations which would have been applicable had
{23} The dissent claims that our ruling today is a form of “legislating” that “entangles and imperils fundamental separation-of-powers jurisprudence” and is inconsistent with “longstanding” due-process jurisprudence because the twelve-month rule we embrace applies “in every case regardless [of] the circumstances [presented].” Dissenting Op. ¶¶ 53-54, 63, 74. Clearly, we disagree.
{24} Our Legislature has not made accommodations for plaintiffs, like Cahn, whose medical malpractice claims accrue late in
{25} In an earlier section of this opinion, we noted that our Legislature enacted the MMA and its statute of repose, in part, to supplant the very background statute of limitations the dissent insists should control. If this is so, then applying the background statute of limitations is, if anything, the result most inconsistent with the Legislature‘s intentions and the result most intrusive and susceptible to criticism based on separation of powers principles. This point seems to have been overlooked by Terry and Garcia. Neither case provides a meaningful explanation why the background statute of limitations should apply. Terry merely notes that the judiciary does not “set appropriate limitations periods.” 1982-NMSC-047, ¶ 17. Our decision to extend to Cahn—and any other plaintiff with a late-accruing MMA claim—an additional year from the date of accrual is not “setting a limitations period.” The limitations period, or more accurately the repose period, in the MMA is three years. Our opinion today does nothing to change this fact. The additional time we provide plaintiffs with late-accruing claims is a constitutionally mandated exception to the application of this three-year period.
{26} The assertion that the rule we embrace fails to account for the particular facts of each case reflects a misunderstanding of the rule. It is necessarily tethered to the facts of each case and extends the repose period one year beyond the accrual date of the particular late-accruing claim at issue. The rule mirrors and, thus, is faithful to the structure of the MMA itself. Like any other MMA claimant, plaintiffs with late-accruing claims must file within a fixed amount of time. If they fail to do so, their claim is lost. If our Legislature determines that our rule is not faithful to the MMA or fails to reflect policy it deems most wise, it is free (as we have already noted) to enact a provision that reflects its judgment about the most prudent way to accommodate plaintiffs with late-accruing claims.
D. Cahn Filed Her Late-Accruing Claim Against Dr. Berryman More Than Twelve Months After It Accrued
{27} Cahn‘s claim against Dr. Berryman accrued late. At the time her claim accrued, ten and one-half months remained before the expiration of the repose period. Cahn filed suit against Dr. Berryman after the expiration of the repose period. One year and nine and one-half months—more than twenty-one months—elapsed between the date Cahn‘s claim against Dr. Berryman accrued and the date she filed the amended complaint in which he was named as a defendant. Thus, at the time Cahn commenced suit against Dr. Berryman, more than twelve months had elapsed from the date that Cahn‘s claim accrued. Cahn has not argued that Dr. Berryman‘s identity was fraudulently concealed from her. See Tomlinson, 2005-NMSC-020, ¶ 2 (recognizing that the statutory period of repose may be tolled when “the plaintiff does not discover the alleged malpractice within the statutory period as a result of the defendant‘s fraudulent concealment.“). Accordingly, Cahn‘s claim against Dr. Berryman is barred by
{28} Due process does not preclude application of
{29} IT IS SO ORDERED.
JUDITH K. NAKAMURA, Chief Justice
WE CONCUR:
CHARLES W. DANIELS, Justice
BARBARA J. VIGIL, Justice
EDWARD L. CHÁVEZ, Justice, specially concurring
PETRA JIMENEZ MAES, Justice, dissenting
CHÁVEZ, Justice (concurring in result).
{30} I concur in the result reached by the majority of the Court. However, I cannot join in the holding that “plaintiffs with late-accruing medical malpractice claims . . . shall have twelve months from the time of accrual to commence suit.” Maj. op. ¶ 1. I am not persuaded by either the majority or the dissenting opinion that this Court should adopt a specific time period within which a plaintiff must file a lawsuit when due process considerations are at issue. The polestar question in a due process analysis is whether reasonable time remains after a cause of action accrues within which a plaintiff, exercising due diligence, can file his or her claim before it is time-barred under a statute of repose. If the answer is yes, then the claim must be filed within the statute of repose. If the answer is no, then the claim must be filed within a reasonable time after the statute of repose has expired. When reasonableness is the essence of a substantive due process claim, due process abhors the expediency of thoughtlessness. By necessity the due process analysis has always been a fact-based analysis which takes into account more than the date that the plaintiff‘s claim accrues. Twelve months from when an action accrues under the Medical Malpractice Act (MMA),
{31} I also do not agree with the dissenting opinion‘s suggestion that Garcia ex rel. Garcia v. LaFarge, 1995-NMSC-019, 119 N.M. 532, 893 P.2d 428, essentially requires a three-year accrual statute of limitations in MMA cases when the cause of action accrues within the statute of repose. See dissenting op. ¶¶ 48, 53. In Garcia, this Court found that eighty-five days before the statute of repose would run was too short a period of time for the Garcias, who were the plaintiffs, to bring a lawsuit against the defendant. Id. ¶ 37. Because the Legislature had not specified a reasonable period of time within which to bring claims that accrue shortly before the running of the statute of repose, in Garcia this Court imposed the three-year accrual statute of limitation of
{32} In addition, the procedural history in Garcia is remarkably different from the instant case. In Garcia, the latest act of malpractice occurred on February 8, 1989. 1995-NMSC-019, ¶ 1. The plaintiffs had until February 8, 1992 to
{33} Filing an application with the Commission as to one provider does not toll the limitations period as to another provider who was not named in the original application and for whom the statutory period in which to file a cause of action has passed. See Meza v. Topalovski, 2012-NMCA-002, ¶ 8, 268 P.3d 1284. I make this latter point because Cahn filed a claim with the Commission, but she did not name Berryman, which deprived her of the tolling provision as to him.
{34} Regarding the question of whether reasonable time remained after a cause of action accrued within which Cahn, exercising due diligence, could have filed her claim before the running of the statute of repose, the following analysis persuades me that the answer is yes. Cahn received a pelvic ultrasound at West Mesa Medical Center on May 19, 2006. On August 8, 2006, she met with Dr. Berryman and provided him a copy of the written ultrasound report. Berryman neither referenced the findings indicated by the ultrasound report nor scheduled a biopsy. Instead, Berryman examined Cahn, diagnosed her as having endometriosis, prescribed medication for that condition, and advised Cahn to return to his office for a follow-up visit. She did not return for a follow-up visit.
{35} Ultimately, as reflected in both the majority and the dissenting opinions, Cahn knew of her injury and its cause1 on September 22, 2008. However, she could not remember the name of the doctor who caused or contributed to her injury, or when he examined her. We know that Cahn had until August 8, 2009 to discover the identity of the doctor and sue him. By December 2008, Cahn had retained counsel to pursue her malpractice claim. Before retaining counsel, as early as October 27, 2008, while recovering from major surgery, Cahn herself began investigating to determine the identity of the doctor whom she believed had committed the act of malpractice. Did Cahn have health insurance at the time? If so, who did her insurer pay for the evaluation? Did she have a co-payment or a deductible she had to pay? If she did, how did she pay it, and is there a record of who she paid?
{36} These questions might seem obvious in retrospect, but Cahn herself knew to ask the questions. In late 2008 Cahn contacted her health insurer, Lovelace Health Plan, and requested her explanation of benefits (EOB) forms for May, June, and July 2006. The doctor‘s identity was obviously not in the records that Cahn received because she saw Dr. Berryman in August, 2006. It is not clear why Cahn requested EOBs for only three months. Had she requested all of the EOB forms for 2006 she would have received an EOB dated August 23, 2006, which identified Berryman as the doctor who treated her on August 8, 2006. Lovelace Health Plan had mailed this EOB to Cahn shortly after she received Berryman‘s medical services. Cahn‘s credit union bank statement in August 2006 listed Cahn‘s $30 co-payment to Sandia OB/GYN, where Berryman worked in August 2006.
{38} The harshness of the result will be troubling to some, but not to others. Law is adversarial and morally ambiguous because both sides must make irreconcilable moral arguments, and only one side wins. Regarding statutes of limitation or of repose, I am reminded of what this Court stated in Cummings v. X-Ray Associates of New Mexico, P.C., 1996-NMSC-035, ¶ 37, 121 N.M. 821, 918 P.2d 1321 (quoting Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314 (1945) (alterations in original) (footnote omitted):
There is no statute of limitations that does not prevent some identifiable class from litigating its cause of action. Such a class is always characterized by the fact that its members failed to timely pursue their claim. Whether this failure is through careless negligence or innocent lack of information is generally irrelevant to the constitutionality of the time limit.
[Statutes of limitation] are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the voidable and unavoidable delay. They have come into the law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate. Their shelter has never been regarded as what now is called a “fundamental” right or what used to be called a “natural” right of the individual. [The individual] may, of course, have the protection of the policy while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control.
{39} For example, had Mr. Garcia in the Garcia v. LaFarge case suffered his heart attack eighty-six days later, on February 9, 1992, his cause of action would have been time-barred, even though his cause of action had not accrued before then. See Tomlinson v. George, 2005-NMSC-020, ¶ 8, 138 N.M. 34, 116 P.3d 105 (“[A] statute of repose terminates the right to any action after a specific time has elapsed, even though no injury has yet manifested itself.” (alteration in original) (internal quotation marks and citation omitted)). This Court has upheld the constitutionality of the MMA statute of repose when the cause of action accrues after the statute of repose has expired against both an equal protection and a due process challenge. Cummings, 1996-NMSC-035, ¶¶ 22-42. Upholding the constitutionality of the MMA statute of repose in instances when the cause of action accrued after the statute of repose has expired necessarily requires upholding its constitutionality in the present case, where Cahn had reasonable time to bring her cause of action before the statute of repose expired.
{40} I respectfully concur in the result reached by the majority.
EDWARD L. CHÁVEZ, Justice
MAES, Justice (dissenting).
{41} Because I believe the teachings of our prior cases, the relevant statutory structure, the nature of the due process guarantee, and other fundamental constitutional considerations counsel against adoption of the twelve-month rule the majority creates today, I respectfully dissent.
I. The Terry–Garcia Analysis
{42} The principles of our prior cases suggest we need not create a new rule here. For causes of action accruing within the statutory period—as Cahn‘s did here—our cases have made clear the statutory repose function is typically irrelevant; instead, we must answer two precise due process-oriented questions regarding the remaining effective limitations period for the cause after accrual. See Terry v. N.M. State Highway Comm‘n, 1982-NMSC-047, ¶¶ 10, 17, 98 N.M. 119, 645 P.2d 1375 (examining ten-year repose period for construction defect suits). First, because
{43} Investigating the second question in Terry, we emphasized that “it is not a judicial function to set appropriate limitations periods.” Id. Instead of creating our own applicable period, we briefly surveyed other legislatively-drawn periods. Id. A period as short as a single year for certain causes of action, we observed, might survive constitutional scrutiny, when “justified by specific considerations.” Id. But where “the Legislature has not specified a shorter reasonable period of limitations” for the specific kind of action before us, we added, our task is “to apply the period provided by the applicable” background statutes of limitations. Id. And thus the Terry result was straightforward: because the construction-defect repose provision at issue in Terry gave no specific limitations guidance and because the Terry plaintiffs’ claims were actions for wrongful death and personal injury, we simply applied the legislatively-prescribed periods for wrongful death and personal injury causes of action, much as other courts had done at the time. Id.; see Gaines v. Preterm-Cleveland, Inc., 514 N.E.2d 709, 716 (Ohio 1987) (applying background malpractice limitation period in place of constitutionally problematic medical malpractice provision); McMacken v. State, 320 N.W.2d 131, 139 (S.D. 1982) (applying background personal injury limitation period in place of constitutionally problematic construction defect provision), overruled on other grounds by Daugaard v. Baltic Co-op. Bldg. Supply Ass‘n, 349 N.W.2d 419 (S.D. 1984); Hunter v. School Dist. of Gale-Ettrick-Trempealeau, 293 N.W.2d 515, 522 (Wis. 1980) (affirming court of appeals decision applying background limitation period in place of more specific period with constitutionally problematic application).
{44} In Terry, because both statutory background provisions established limitations periods of three years from the time of accrual and the plaintiffs’ claims had accrued approximately three months before expiration of the ten-year repose period for construction defect claims, application to the plaintiffs’ claims added two years and nine months to the effective limitations period remaining under the construction-defect provision. 1982-NMSC-047, ¶¶ 9, 17. Application of those background statutory provisions had the effect of giving the Terry plaintiffs adequate time to file and the additional effect of treating similarly all prospective plaintiffs for whom actions accrue before the end of the period of repose. While neither effect merited mention in Terry, I suggest the result should guide our analysis today and in the future.
{45} In early cases examining the effect of
{47} Faced with a plaintiff in Garcia whose claim accrued eighty-five days before the three-year period expired, we observed, much as we had in Terry, that a statutory provision allowing “an unreasonably short period of time within which to bring an accrued cause of action violates the Due Process Clause of the New Mexico Constitution.” Garcia, 1995-NMSC-019, ¶ 36. That the remaining effective limitations period for various potential claims arising under
{48} Having concluded application of the remaining limitations period under
{49} Our Cummings case came just a year after Garcia, and in Cummings we again explained
{50} Despite the straightforward teachings of Terry, Garcia, and Cummings, and despite decades of legislative acquiescence to those decisions, we got off track in Tomlinson v. George, 2005-NMSC-020, 138 N.M. 34, 116 P.3d 105. Cf. Basic Inc. v. Levinson, 485 U.S. 224, 230-31 (1988) (observing “[j]udicial interpretation and application, legislative acquiescence, and the passage of time have removed any doubt” regarding future application of past interpretive decisions). We avoided legislating in these earlier three cases, and a legislatively-prescribed background rule supplied the appropriate rule for decision in each case. Glossing over that history, we pronounced in Tomlinson that Cummings had concluded “that one and one-half years is a constitutionally reasonable period of time within which to file a claim.” Tomlinson, 2005-NMSC-020, ¶ 23. But of course, we put it very differently in Cummings stating that:
At that time there was still about a year and a half before the statute of repose on her malpractice claim expired. Nevertheless, she sat on her rights and did not file any claim for more than two years, on July 27, 1992. By that time, almost four years had passed since the 1988 act of malpractice. She did not sue X-Ray Associates until December 7, 1993, more than five years after the act. Cummings lost her medical malpractice claim through her own lack of diligence.
Cummings, 1996-NMSC-035, ¶ 57 (emphasis added). Why that one and one-half year period received the transposition it did in Tomlinson was and remains unexamined. Regardless, it is sufficient for our purposes today to note we refused to impose our own limitation period in Terry, and in Garcia, and in Cummings, because the statutory background rule had supplied the rule for decision instead. But in Tomlinson, we undid the analyses of those cases and crafted our own rule, concluding “two years and eight months is a constitutionally reasonable period of time within which to file” a claim. 2005-NMSC-020, ¶ 24.
{51} Faithful application of the Terry–Garcia analysis would have required the opposite result. The Tomlinson plaintiff‘s claim was again one for personal injury, and the three-year personal injury limitation period should have governed, much as it had in Terry, 1982-NMSC-047, ¶ 17, in Garcia, 1995-NMSC-019, ¶ 37, and in Crumpton, 1983-NMSC-034, ¶ 5. And application of the legislatively-prescribed three-year period suggests the Tomlinson plaintiff was timely: the claim accrued on December 24, 1996, and she filed an application with the statutorily-created medical review commission, which tolls the running of the limitation period, on December 13, 1999. 2005-NMSC-020, ¶¶ 4-5; see
{52} Two obvious objections to that outcome in Tomlinson would have arisen; both, however, had been asked and answered in our prior cases. Filing outside the three-year window provided by
{53} We could reject, narrow, or find another justification for Tomlinson, but my concern here is that the majority‘s recap of the case law puts this history aside to Cahn‘s great detriment, and this new twelve-month rule entangles and imperils fundamental separation-of-powers jurisprudence. See, e.g., De Graftenreid v. Strong, 1922-NMSC-031, ¶ 8, 28 N.M. 91, 206 P. 694 (“Courts cannot read into an act something that is not within the manifest intention of the Legislature, as gathered from the statute itself. To do so would be to legislate . . . .“). Despite the Tomlinson pronouncement regarding Cummings, we have never in this context held, or even concluded, that “eighteen months is a constitutionally reasonable period” for requiring the filing of a claim. Instead, we have asked whether
{54} The twelve-month rule the majority adopts raises two concerns. First, in order to create this new rule, the majority overrules Garcia but does so sua sponte. Majority Op. ¶ 22. Because no party requested that Garcia be overruled and we did not request briefing, we are overturning precedent without the benefit of stare decisis. Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶¶ 33-36 (“Stare decisis is the judicial obligation to follow precedent, and it lies at the very core of the judicial process of interpreting and announcing law” and “[p]articular questions must be considered before overturning precedent.“); see State v. Riley, 2010-NMSC-005, ¶ 40, 147 N.M. 557, 226 P.3d 656, (Chávez, J., specially concurring, Bosson, J., concurring in part and dissenting in part, Daniels, J., specially concurring) (explaining stare decisis prevents this Court from overturning precedent where the parties have not briefed and specifically argued the relevant factors to be considered before overturning our precedent). Secondly, creation of a new rule constitutes the kind of legislation we said we could not craft in Terry and Garcia. Thus I would not adopt it here. I would also decline to apply the rule retroactively, because we cannot know how Cahn‘s pursuit of her claim would have transpired had she known she had more time available as she encountered expiration of the initial limitations period. Instead, I would apply the Terry–Garcia analysis as we have applied it in the past; and having done that, I would reverse the Court of Appeals decision and reinstate the conditional verdict of the district court.
II. The Statutory Architecture
{55} Even were we hesitant to apply the legislatively-supplied three-year background rule despite the applications in Terry and Garcia and the ensuing decades of legislative acquiescence, I believe the MMA is designed to obviate the problem that plagued Cahn here. The statutory structure, in other words, suggests claims arising in the posture Cahn‘s did here need not be subject to the
{56} The MMA made various changes to the way our courts process medical negligence claims; among those changes was the addition of the
{57} This review is required for any claims made against qualifying providers like Berryman; the MMA directs that “[n]o malpractice action may be filed in any court against a qualifying health care provider before application is made to the medical review commission and its decision is rendered.”
{58} The provisions governing this review process are instructive in several ways. The flexibility of the phrase “applicable limitation period” of
{59} More important still are the MMA‘s information-seeking provisions. The basic purposes underlying creation of the commission and review suggest the information-seeking provisions were designed to preclude the problem that arose here. The legislative objective in creating these screening panels was, ostensibly, to expedite resolution of claims, with associated goals of reducing the overall costs of processing these claims and promoting judicial efficiency. See Jean A. Macchiaroli, Medical Malpractice Screening Panels: Proposed Model Legislation to Cure Judicial Ills, 58 Geo. Wash. L. Rev. 181, 186, 240 (1990) (“[A]ll state legislatures that have created screening panels have done so for essentially identical reasons.“). These panels, in other words, were created to screen, streamline, and filter claims for the parties and the courts. Efficiency across both levels of review—panel and court—was a prominent goal. And these objectives suggest the timeline regarding identification of Berryman here was (1) exceptional, and (2) not likely the kind of timeline our Legislature intended to proscribe in establishing the
{60} One objection to reliance on the statutory scheme for guidance may be that with the exception of Berryman, none of the other providers were covered providers here. The record does not clearly reveal the status of the other providers for us; were it the case they were all uncovered providers, no screening would have been required until Berryman was identified, and Cahn would not have benefitted from the information-producing apparatus of review. But it would be at odds with the goals of both the MMA and review to suggest the scheme is intended to encourage affiliations between entities avoiding the burdens of qualification under the MMA and contracting providers who gain its protections, while at the same time encouraging the basic relational disorganization, dysfunction, and opacity giving rise to the identification problem here. The point, we have said, is to “encourage more physicians to carry” insurance—not to encourage strategic and opaquely drawn relationships with those not carrying insurance. Garcia, 1995-NMSC-019, ¶ 24.
{61} Instead, the basic legislative preference for filtering, and for developing the information relevant to, as many of these claims as possible in review suggests a legislative understanding that the identification problem and protracted discovery that occurred here should rarely, if ever, arise for qualified providers like Berryman. When those problems do arise and the identification problem is relevant to resolution of the claim, repose is typically tolled. Nothing in the MMA suggests the result should be different for qualified providers when they affiliate with non-qualified providers. Cf. Grantland v. Lea Reg‘l Hosp., Inc., 1990-NMSC-076, ¶ 8, 110 N.M. 378, 796 P.2d 599 (“If we require claimants to file in district court at the peril of losing their case before the classification of the health care provider is known, then every claim will be filed in district court as a safety precaution, and the purpose behind the [MMA] . . . will be defeated.“).
{62} Based on that architecture and based on the stipulation here of absence of any cost concerns arising from potential frivolity, staleness, questions of causation, or difficulties in establishing misdiagnosis based on negligence, I do not believe we should conclude the
III. Due Process and Circumstance-Specific Reasonableness
{63} And most importantly, this new twelve-month rule that is to be applied in every case regardless the circumstances (with potential carve-outs for other exceptional scenarios like fraudulent concealment, which Cahn does not press on appeal here), is inconsistent with the longstanding case law establishing that due process protection requires circumstance-specific investigation before we may extinguish a vested right. See, e.g., Terry v. Anderson, 95 U.S. 628, 633 (1877) (considering “all the circumstances“); Wilson v. Iseminger, 185 U.S. at 63 (1902) (“[W]hat is reasonable in a particular case depends upon its particular facts.“); Terry, 1982-NMSC-047, ¶ 16 (examining potential application of limitations periods “under these facts“); cf. Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 428 (1965) (“This policy of repose, designed to protect defendants, is frequently outweighed, however, where the interests of justice require vindication of the plaintiff‘s rights.“).
{64} Any cause of action that has accrued as Sara Cahn‘s has here is a “species of property protected by the Fourteenth Amendment‘s Due Process Clause.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982). Due process protection, the United States Supreme Court has often explained, generally requires that any deprivation of life, liberty, or property be preceded by notice and an opportunity to be heard in a manner appropriate for “the nature of the case.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (citation omitted). In the context of limitations periods, we have explained “that statutes of limitation may be passed where formerly there were none, and existing limitation periods may be reduced while the time is still running,” but due process requires that a “reasonable time” be “left for the institution of an action before it is time-barred.” Terry, 1982-NMSC-047, ¶ 14; accord Sohn v. Waterson, 84 U.S. 596, 599 (1873) (“[I]f an action accrued more than the limited time before the statute was passed a literal interpretation of the statute would have the effect of absolutely barring such action . . . . It will be presumed that such was not the intent of the legislature. Such an intent would be unconstitutional.“). And we have extended application of that rule, imposing it as “an appropriate general restriction on the Legislature‘s right to statutorily limit actions“—a right our Legislature has attempted to exercise in
{65} “Reasonable time” in this context has always had an intentionally flexible meaning. The reasonableness determination, the United States Supreme Court long ago observed, must account for “all the circumstances” of a particular case. Terry v. Anderson, 95 U.S. at 633. Reasonableness in any given case, in other words, depends “upon its particular facts.” Id.; see also Terry, 1982-NMSC-047, ¶ 16 (“We hold that such an abbreviated period is unreasonable.“). It has no “fixed content,” and we must evaluate it “as the particular situation demands.” U.S. West Commc‘ns v. N.M. State Corp. Comm‘n (In re 1997 Earnings of U S West Commc‘ns, Inc.), 1999-NMSC-016, ¶ 25, 127 N.M. 254, 980 P.2d 37 (citation omitted); accord Anderson Nat‘l Bank v. Luckett, 321 U.S. 233, 246 (1944) (“What is due process in a procedure affecting property interests must be determined by taking into account the purposes of the procedure and its effect upon the rights asserted and all other circumstances which may render the proceeding appropriate to the nature of the case.“).
{66} In the context of the MMA, we have often observed that the due process guarantee requires us to account for all case-specific circumstances; and based on those circumstances, the guarantee may compel us to conclude the MMA‘s provisions must yield. See, e.g., Jiron v. Mahlab, 1983-NMSC-022, ¶ 12, 99 N.M. 425, 659 P.2d 311 (“[W]here the requirement of first going before the Medical Review Commission causes undue delay prejudicing a plaintiff by the loss of witnesses or parties, the plaintiff is unconstitutionally deprived of his right of access to the courts.“). Due process therefore, ensures that “claimants who make a good-faith attempt to comply with the [MMA]” are “not [to] be deprived of their day in court by placing form above substance.” Grantland, 1990-NMSC-076, ¶ 6; see Otero v. Zouhar, 1985-NMSC-021, ¶ 22, 102 N.M. 482, 697 P.2d 482, overruled by Grantland, 1990-NMSC-076 (concluding claimant had failed to comply with strict requirements of Act but had done “what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law” (internal quotation marks and citations omitted)). And thus for purposes of evaluating the MMA‘s limitation function, we have explained that “protecting the defendant is a laudatory goal,” but any period imposed “should reflect a policy decision regarding what constitutes an adequate period of time for a person of ordinary diligence to pursue his claim.” Roberts v. Sw. Cmty. Health Servs., 1992-NMSC-042, ¶ 26, 114 N.M. 248, 837 P.2d 442 (internal quotation marks omitted).
{67} Our due process reasonableness determination in the limitations context, in other words, has always necessarily incorporated an examination of the claimant‘s diligence in pursuing a claim. See Cummings, 1996-NMSC-035, ¶ 57 (“Cummings lost her medical malpractice claim through her own lack of diligence.“). The concept is neither novel nor antiquated—the diligence inquiry has long featured in due process reasonableness determinations and still does. See, e.g., Herron v. Anigbo, 897 N.E.2d 444, 449 (Ind. 2008) (“[T]he plaintiff must file before the statute of limitations has run if possible in the exercise of due diligence.“); Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 703 (Tex. 2014) (“[A]n open courts challenge is a due process complaint and requires the party to use due diligence.“); accord Canadian N. Ry. Co. v. Eggen, 252 U.S. 553, 562 (1920) (explaining “power is in the courts . . . to determine the adequacy and reasonableness” of access to courts, and concluding constitutional problem is avoided when claimant “is given free access to them for a length of time reasonably sufficient to enable an ordinarily diligent man to institute proceedings for their protection“). And even in Tomlinson, on which the majority relies today for support for elimination of the case-specific diligence inquiry, we recognized that we accept claims conflicting with the MMA‘s provisions “in cases involving peculiar facts . . . and when a good faith effort has been made to comply with the Act.” 2005-NMSC-020, ¶ 22 (internal quotation marks omitted). For this reason, I disagree with the majority that injecting our judgment to decide how much additional time to grant claimants with late accruing action is to adopt statute of time limitations from other jurisdictions. Majority Op. ¶ 24. And I would answer the question “How much additional time, exactly, is Cahn entitled?” by looking at the specific facts in Cahn‘s case.
{68} Resolution of the traditional diligence inquiry given Cahn‘s facts is straightforward. By September 2008, two years after Cahn had been misdiagnosed by Berryman, she had relocated to Jackson, Wyoming, and she was still none the wiser. On September 19, 2008, she underwent an annual pap smear and discussed her chronic pelvic pain with a new Wyoming doctor. A copy of her original radiology report was sent to the new physician‘s office, and she was promptly scheduled for a CT scan on September 22, 2008, three days after her initial visit. Her new scan revealed “extensive abnormality in the pelvis,” which was characterized as “highly suspicious for an ovarian malignancy.” In the next few weeks, she traveled from Wyoming to New York‘s Memorial Sloan-Kettering Cancer Center for confirmation of the diagnosis and underwent extensive surgery soon after. Her diagnosis was “metastatic serous borderline tumor of the ovary,” and because the tumor had been incorrectly diagnosed at initial discovery, the cancer had progressed from stage I to stage IIIC, substantially decreasing her chances of remedy. On October 15, 2008, she underwent a total abdominal hysterectomy, a bilateral salpingo-oophorectomy, a pelvic and para-aortic node dissection omentectomy, and she was fitted with an intraperitoneal catheter. She remained in New York under the care of her parents for approximately eight months.
{69} Quickly recognizing she had been misdiagnosed, Cahn went to work—as she recuperated in New York—to uncover the identity of Berryman, who had made the error two years earlier. Within twelve days of that massive corrective surgery on October 15, she was sending records requests. Between October 27, 2008, and November 3, 2008, she sent at least eight requests for information to Lovelace Women‘s Hospital, Lovelace Westside Hospital, and ABQ Health Partners, in pursuit of Berryman‘s name. None of the records she received in response made note of her August 2006 visit or Berryman‘s identity.
{70} In the next month, sensing she might have a viable malpractice claim, she retained—again from New York—Albuquerque counsel to assist with development of what at that point could only have appeared a complex case. She indicated to her Albuquerque attorneys she thought she remembered the date of the relevant 2006 appointment with Berryman, but she could not remember his name. Cahn‘s attorneys investigated the records she had already received in response to her initial requests, and they sought to supplement the information over the next two months with new requests to all three participating facilities for Cahn‘s “complete medical
{71} Due at least in part to that unorthodox recordkeeping, Berryman‘s identity remained a mystery to Cahn and her counsel despite several months of active investigation. Recognizing the
{72} That record is sufficient to establish Cahn‘s diligence, and it is thus sufficient to allow us to conclude, as the district court did, that any period shorter than the twenty-one months that elapsed between accrual and filing with respect to Berryman would have been unreasonably abbreviated under the circumstances. This was not a case where Cahn “sat on her rights” and failed to “file any claim for more than two years.” Cummings, 1996-NMSC-035, ¶ 57. And it was clearly not a case where she “knew of her cause of action and had over two years and eight months during the statutory period in which to file her claim.” Tomlinson, 2005-NMSC-020, ¶ 28. Because it is important to compare the majority rule to Cahn‘s timeline, I also include a pictorial representation at the end of my dissent as appendix B.
{73} Even Berryman concedes the timeline here may be attributable largely to Lovelace; in that case, he asks only that he not be “deprived” of a “substantive right” based on Lovelace‘s wrongdoing. Whether that argument should prevail may be a question worth revisiting—regardless, it should have no bearing on the diligence determination. See, e.g., Campbell v. Holt, 115 U.S. 620, 629 (1885) (“We can see no right which the promisor has in the law which permits him to plead lapse of time instead of payment . . . .“). And I note that the majority declines, as do I, as did the district court, to reach the conclusion Cahn “lost her medical malpractice claim through her own lack of diligence.” Cummings, 1996-NMSC-035, ¶ 57.
{74} So why legislate a new statute of repose of one year? Especially as Justice Chávez states in his special concurrence, “difficulty in identifying which doctor provided what treatment” and he cannot agree that in all cases twelve months will be constitutionally adequate. I submit that this is exactly that case and would hold that the ten and one-half months left before the statute of repose expired was not a reasonable time for Cahn to bring her cause of action. Accordingly, I would not apply the majority‘s rule here, and I would not apply it as an unflinching rule in any case where, as here, the United States and New Mexico Constitutions require that we consider a case‘s particular facts.
IV. Other Constitutional Concerns
{75} In addition to the due process concerns it raises, the twelve-month rule gives
{76} Justice Chávez‘s special concurrence highlights those constitutional conclusions we made in Cummings and suggests those conclusions must govern the outcome here. But several considerations leave me unconvinced. First, we came to those conclusions at a time when our Garcia analysis allowed us to address potentially unconstitutional applications case by case, and that opportunity for remediation has vanished with the advent of today‘s rule.
{77} Second, the due process challenge at issue in Cummings was one of “fundamental right of access to the courts.” Cummings, 1996-NMSC-035, ¶ 33. Our analysis of that claim was straightforward: we explained that “[a] plaintiff has no expectancy of a cause of action that has been legitimately denied by the legislature before it accrues.” Id. And analyzing a cause of action accruing after the statutory period has expired, we added that “where there is no cause of action, a plaintiff cannot claim they have been denied access to the courts.” Id. In other words, we concluded, “no right has accrued,” and thus there was no need to further examine the challenge. Id. But here, as I have explained, the posture is quite different—everybody agrees Cahn‘s cause of action had accrued before repose set in, and nobody disputes that a cause of action that has accrued constitutes a species of property entitled to due process protection not given significant attention in Cummings. See Logan v. Zimmerman Brush Co., 455 U.S. at 428 (1982); accord Cummings, 1996-NMSC-035, ¶ 33 (“Since no right has accrued, it is moot to question whether there has been a denial of a fundamental right to vindicate that right in court.“). That basic due process difference suggests the constitutional analysis may be quite different for plaintiffs whose claims accrue before the statutory period has run than for those whose claims accrue later—but that question is clearly not before us today.
{78} Third and finally, Cummings featured only limited analysis regarding the specific variant of equal protection challenge that might allow the plaintiff with the latent injury (and thus a late-accruing claim) to prevail, and it is not clear why we addressed that equal protection question in the first instance, given our conclusion the injury had not been latent. See Cummings, 1996-NMSC-035, ¶ 57 (explaining “there was still about a year and a half before the statute of repose” expired after plaintiff had discovered injury). Had the facts been different and actually given rise to the equal protection claim, perhaps our conclusion would have been different, and perhaps that would have rendered moot any concerns that our due process case law requires a different analysis for a plaintiff whose claim accrues before the statutory period expires. As at least one commentator has observed, “every court that has spoken with any clarity on the issue has ultimately concluded that victims of misdiagnosis of diseases with long latency periods” may well be subject to, and benefit from, a different analysis. See Peter Zablotsky, From a Whimper to a Bang: The Trend Toward Finding Occurrence Based Statutes of Limitations Governing Negligent Misdiagnosis of Diseases With Long Latency Periods Unconstitutional, 103 Dick. L. Rev. 455, 495 (1999). Those courts have frequently found unconstitutional deprivation for the plaintiff in the long latency scenario, on equal protection grounds, on due process grounds, and on related state constitutional grounds. Id. But as I have noted, those questions are not before us today, and we need not address them here.
{80} But our case law suggests the better course is to steer clear of these constitutional shoals—“we must construe a statute . . . so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.” State v. Pangaea Cinema, LLC, 2013-NMSC-044, ¶ 23, 310 P.3d 604 (internal quotation marks and citation omitted). Because Terry and Garcia have given us a longstanding rule for decision here that obviates at least some of the relevant constitutional concerns, I cannot conclude we have good reason to adopt the majority rule today and embark on a new and uncharted constitutional collision course.
V. Conclusion
{81} It may be simple to impose rigid time restrictions for claims that accrue within the three-year statute of repose to eliminate the legal wrangling that is present with the complexity of these types of cases. But it is inconsistent with the spirit of due process to take this simple route. We must consider time, place, circumstances, and many other factors in the pursuit of fundamental fairness, despite how nebulous the concept may be. A fact-based approach would provide the fairness the Due Process Clause seeks to protect, while also changing the focus of the legal analysis to whether a plaintiff was sufficiently diligent. Accordingly, I would not apply the majority‘s rule here, and I would not apply it as an unflinching rule in any case where, as here, the United States and New Mexico Constitutions require that we consider a case‘s particular facts. I respectfully dissent.
PETRA JIMENEZ MAES, Justice