MONICA MEZA v. MARGARITA TOPALOVSKI, M.D., and ROBERT L. LOPEZ, M.D.
No. 30,323
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
November 16, 2011
2012-NMCA-002
VANZI, Judge.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY, Jerald A. Valentine, District
Monica Meza
Las Cruces, NM
Pro Se Appellant
Allen, Shepherd, Lewis, Syra & Chapman, P.A.
Ben M. Allen
J. Adam Tate
Albuquerque, NM
for Appellee
OPINION
VANZI, Judge.
{1} Plaintiff Monica Meza appeals the district court‘s grant of summary judgment in favor of Defendant Margarita Topalovski, M.D. (Dr. Topalovski). This case raises an issue of first impression as to whether a plaintiff who wrongly names a health care provider in an application to the New Mexico Medical Review Commission (MRC) is then allowed to use the MRC‘s own rules to amend her complaint and rely on the original filing date for purposes of applying the tolling period to a substitute health care provider. We conclude that filing an application with the MRC as to one provider cannot 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. We affirm the district court‘s ruling in favor of Dr. Topalovski.
BACKGROUND
{2} The relevant facts of this case are not in dispute. After an ultrasound revealed a spot on her left kidney, Meza‘s surgeon recommended surgery to remove the growth. Meza agreed to the surgery and, on December 12, 2005, the surgeon removed the mass of tissue from Meza‘s kidney and sent it to Dr. Topalovski for a “frozen section” evaluation. Dr. Topalovski diagnosed the tissue specimen as cancerous and, based upon that information, Meza‘s entire left kidney was removed. Several weeks later, on February 27, 2006, Meza‘s treating physician informed Meza that the section taken from her kidney was benign.
{3} Meza filed an application for review with the MRC on December 11, 2008, alleging a malpractice claim against Robert L. Lopez, M.D. That application did not allege a malpractice claim against Dr. Topalovski. On March 23, 2009, Meza filed a “modified” or “amended” application for review with the MRC alleging a malpractice claim against Dr. Topalovski. The MRC issued its final decision on July 28, 2009. Meza filed her complaint against Dr. Topalovski in district court shortly thereafter.
{4} Dr. Topalovski moved for summary judgment on the ground that Meza‘s claim was barred by the three-year statute of repose set forth in the New Mexico Medical Malpractice Act (MMA),
{5} Meza raises two issues on appeal: (1) whether her initial application to the MRC against Dr. Lopez tolled the statute of limitations for purposes of adding a claim against Dr. Topalovski where the amended application adding Dr. Topalovski was filed more than three years after the date of the alleged malpractice, and (2) whether the claim against Dr. Topalovski should have been tolled based upon a discovery-based accrual date. Dr. Topalovski argues that the district court properly granted summary judgment on the ground that Meza‘s claim is barred by the MMA‘s three-year statute of repose. We begin with the appropriate standard of review and then address Meza‘s arguments.
Standard of Review
{6} “Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “On appeal from the grant of summary judgment, we ordinarily review the whole record in the light most favorable to the party opposing summary judgment to determine if there is any evidence that places a genuine issue of material fact in dispute.” City of Albuquerque v. BPLW Architects & Eng‘rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M. 717, 213 P.3d 1146. “However, if no material issues of fact are in dispute and an appeal presents only a question of law, we apply de novo review and are not required to view the appeal in the light most favorable to the party opposing summary judgment.” Id.
{7} In response to the motion for summary judgment, Meza adopted virtually all of Dr. Topalovski‘s undisputed facts and did not offer any facts of her own. Among other things, Meza agreed that the alleged act of malpractice occurred on December 12, 2005. Meza disagreed only with Dr. Topalovski‘s characterization of her March 23, 2009 application as a “second application for review,” contending instead that it was an “[a]mended [a]pplication to the original [a]pplication.” Because the disputed portrayal of the March 23, 2009 application does not affect our analysis in this case, we review the legal question presented de novo. See id.
The Original Filing Date in an Application to the MRC Does Not Toll the Statute of Limitations for an Untimely Application Against a Previously Unnamed Health Care Provider
{8}
{9} Before turning to
{11} Meza argues that because the MRC‘s rules allow a claimant to add or delete parties, the statute of limitations is tolled under
{12} Meza urges this Court to apply
{13} Meza appears to contend that Dr. Lopez fraudulently failed to disclose Dr. Topalovski‘s role in this matter and that she did not name Dr. Topalovski in her original application to the MRC because she had no way of learning of that doctor‘s involvement until the hearing before the MRC was underway. As authority for this proposition, Meza cites Keithley v. St. Joseph‘s Hospital, 102 N.M. 565, 698 P.2d 435 (Ct. App. 1984). We are not persuaded that our holding in Keithley is applicable to the facts of this case.
{14} In Keithley, this Court held that “the statute of limitations may be tolled where a physician has knowledge of facts relating to medical malpractice and fails to disclose such
{15} Moreover, contrary to our holding in Keithley, Meza has not established that “she did not have the means to discover the fraud.” See id. at 570, 698 P.2d at 440 (“A plaintiff who alleges that the statute has been tolled by fraud, either active or passive, must establish that she did not have the means to discover the fraud.“). Although Meza‘s counsel stated at the hearing on Dr. Topalovski‘s motion for summary judgment that it had been “a real struggle on the part of the client and the attorney to determine who, in fact, were the proper parties,” Meza did not claim or show below, nor does she claim on appeal, that she could not, through reasonable diligence, have discovered the fraud. See id. (explaining that in order to toll the statute of limitations, “it must appear that the fraud not only was not discovered, but could not have been discovered with reasonable diligence” (emphasis omitted) (internal quotation marks and citation omitted)). Therefore, our holding in Keithley does not apply to the facts of this case.
{16} We briefly address Meza‘s argument that Dr. Topalovski waived her statute of repose defense because she did not raise the defense in her answer to Meza‘s application to the MRC or at the hearing. Dr. Topalovski does not dispute that she did not include a statute of repose defense in her answer to Meza‘s application or at the hearing. However, she contends that she was not required to do so, and we agree. The MRC‘s rules explicitly provide that although counsel is encouraged to provide a meaningful response to the application, “a recitation of affirmative defenses is not required by the [MRC.]” Because she was not required to raise the three-year statute of repose issue before the MRC, Dr. Topalovski did not waive this defense.
{17} We are aware of the reality that the alleged misdiagnosis in this case resulted in the unnecessary and complete removal of Meza‘s left kidney. But we are constrained by the time limits imposed by the Legislature on the commencement of actions for medical malpractice, and we are not at liberty to create an exception to the plain language of that statutory provision. In this case, Meza‘s cause of action accrued on December 12, 2005, and she filed her application against Dr. Topalovski on March 23, 2009, several months after the three-year limitations period expired. Meza cannot now rely on
The Discovery Rule Does Not Apply Under the Circumstances of This Case
{18} Meza alternatively argues that she did not name Dr. Topalovski in her December 11, 2008 application because the “initial pathology reports were unclear who performed the initial frozen section analysis.” She contends that the standard that this Court should employ in determining the time period by which she had to file her claim against Dr. Topalovski is the discovery date. Under this standard, the time period for Meza to file her application with the MRC would have been in January or February 2009 when Meza first received medical reports alerting her to Dr. Topalovski‘s involvement. For the reasons that follow, the discovery rule does not apply under the circumstances of this case.
{19} Our Supreme Court has interpreted
CONCLUSION
{20} We affirm the district court‘s order granting summary judgment in favor of Dr. Topalovski.
{21} IT IS SO ORDERED.
LINDA M. VANZI, Judge
WE CONCUR:
JONATHAN B. SUTIN, Judge
RODERICK T. KENNEDY, Judge
Topic Index for Meza v. Topalovski, No. 30,323
| AL | ADMINISTRATIVE LAW AND PROCEDURE |
| AL-AA | Administrative Appeal |
| AL-AL | Administrative Law, General |
| AL-LI | Legislative Intent |
| AL-TM | Timeliness |
| AE | APPEAL AND ERROR |
| AE-SR | Standard of Review |
| CP | CIVIL PROCEDURE |
| CP-JC | Joinder of Claims |
| CP-JP | Joinder of Parties |
| CP-SL | Statute of Limitations |
| CP-SJ | Summary Judgment |
| ST | STATUTES |
| ST-LI | Legislative Intent |
| TR | TORTS |
| TR-FR | Fraud |
| TR-MM | Medical Malpractice |