Mаx OTERO, Plaintiff-Appellee, Plaintiff-Appellant, v. Raymond L. ZOUHAR, Defendant-Appellant, and Albuquerque Anesthesia Services, Ltd., and Louise Layne, Defendants-Appellees.
No. 15457.
Supreme Court of New Mexico.
Feb. 28, 1985.
Rehearing Denied April 1, 1985.
697 P.2d 482
William G. Wardle, Bruce D. Black, Campbell, Byrd & Black, P.A., Santa Fe, for defendant-appellant.
OPINION
WALTERS, Justice.
We granted plaintiff‘s petition for certiorari to the Court of Appeals to review the interaction of case law, the New Mexico Rules of Civil Procedure, and the Medical
Health care providers licensed to practice in New Mexico are separated by the Medical Malpractice Act into two classes, “qualified” and “non-qualified.” To be classified as “qualified,” a health care provider must establish financial responsibility by filing proof of $100,000 in insurance coverage or by depositing that amount with the state superintendent of insurance.
Medical malpractice suits are subject to a three-year statute of limitations; the statute begins to run on the date of the act of malpractice.
Of the three defendants named in this suit, there was no dispute that one, Dr. Zouhar, was and is a qualified health provider. The remaining two are also qualified, although Otero was advised at the time he filed suit that they were not.
Four days before the three-year limitation would have run, plaintiff filed a complaint in district court, naming both the qualified and presumably nonqualified defendants. Three days later he mailed an application for review by the commission of his claim against the qualified provider and, shortly thereafter, moved the district court to stay proceedings until the commission had acted on that claim.
We discuss the procedural morass involving the three defendants separately.
A. Defendant Zouhar
Defendant Zouhar is a qualified health care prоvider as to whom the Act requires plaintiff to submit an application for review to the medical review commission. On the last day before the running of the statute of limitations, plaintiff mailed an application which apparently was received by the commission three days after the statute had run. Defendant argues that the application was not “submitted” until it was received and, as receipt occurred after the limitations period had expired, he asserts that plaintiff‘s claim was barred. Plaintiff, on the other hand, contends that his act of mailing constituted “submission.”
The Act is silent regarding the procedure required to “submit” an application.
In Saiz v. Barham, 100 N.M. 596, 673 P.2d 1329 (Ct.App.), cert. denied, 100 N.M. 689, 675 P.2d 421 (1983), the Court of Appeals held that the medical review commission‘s act of mailing its decision to the plaintiff triggered the commencement of the thirty-day period after which the statute of limitations begins to run again, even though plaintiff had not received the decision until ten days after it had been mailed by the commission.
In the instant casе, we think it significant that even though the commission maintains an office at which applications may be submitted in person, because there is only one office for the entire state, plaintiffs are encouraged to use the mails. It seems reasonable, therefore, to apply to a plaintiff the same rule that has been applied to the commission—that the act of placing either an application, or a decision, in the mail constitutes the triggering event. Saiz. We thus hold that the date of mailing the application constitutes submission. Consequently, the application was timely made.
Recognizing the requirement to join necessary and indispensable parties in a single suit or risk dismissal if they could not later be jоined,
Relying on Perez v. Brubaker, 99 N.M. 529, 660 P.2d 619 (Ct.App.1983), defendant Zouhar contends that the statutory commission review is a jurisdictional prerequisite to filing suit in the district court. In Perez, the trial court granted defendant‘s motion for summary judgment when plaintiff filed his complaint before applying to the commission, dismissing the suit with prejudice. The Court of Appeals reversed the dismissal with prejudice, holding that the district court “only had authority to determine if it had the power to act on the merits.” Id. at 531, 660 P.2d at 621.
Upon the authority of Perez, defendant Zouhar is correct, and he was entitled to dismissal of the suit without prejudice. The submission of plaintiff‘s application to the commission before the statute expired would then have tolled the limitation period until after the commission had rendered its decision several months later, and suit then could have been re-filed within 30 days following the decision.
Nonetheless, although according to Perez the district court should have granted dismissal without prejudice on defendant Zouhar‘s motion, its ordеr granting a stay of proceedings on the complaint that was filed prior to the time the commission had considered the matter acted to allow review and also to preserve the complaint and to obviate the necessity of plaintiff‘s refiling the complaint or obtaining an order to reinstate it within 30 days following the commission‘s decision. Were we now to require dismissal оf the complaint, long past the 30 days within which a new complaint could have been filed, we would be holding the plaintiff responsible for the trial court‘s error and denying plaintiff the opportunity to make a timely filing after the commission had acted. We see no justice in strictly applying the Act now to void the complaint filed and thus circumvent the tolling provision of the Act that would havе applied to save plaintiff‘s cause of action if the trial court‘s ruling and the time consumed in appellate proceedings had not intervened. Such “Catch-22‘s” are procedural anomalies that do not deserve perpetuation. Cf. Swallows v. City of Albuquerque, 61 N.M. 265, 298 P.2d 945 (1956) (period during pendency of appeal of suit ultimately determined on appeal to have been prematurely filеd held not to toll statute of limitations). Plaintiffs should not be denied their day in court because of incorrect rulings and attendant delays incurred by appellate procedures.
In Jiron v. Mahlab, 99 N.M. 425, 659 P.2d 311 (1983), this Court approved plaintiff‘s filing his complaint in the district court before applying for review by the medical review commission. Because unbending adherence to the timing requirements of the Act would likely have eliminated plaintiff‘s right of action there, we held that such strict application of the Act would unconstitutionally infringe on plaintiff‘s right of access to the courts.
Similarly in this case, because of a mistaken ruling by the trial court and an appellate decision rendered long after timely refiling would have been possible, we hold that, as in Jiron, strict adherence to the procedurеs required by the Act, without regard to the circumstances creating the procedural bind within which plaintiff now
Additionally, we once again affirm our exclusive constitutional power under
Consequently, with respect to defendant Zouhar the procedural provisions of the Medical Malpractice Act, to thе extent of denying plaintiff access to the courts, shall not control. Zouhar has not been prejudiced; action was stayed while the complaint against him was reviewed by the medical commission and he is in no worse position than he would have been in had the complaint been filed after the commission acted. By staying proceedings pending the commission‘s decision, the paramount intent of the statute (in addition to making liability insurance available to health care providers), i.e., to prevent filing of non-meritorious malpractice lawsuits (see Kovnat, Medical Malpractice Legislation, 7 N.M.L.R. 5, 31 (1976-77)), was served in this case regardless of the premature filing of the complaint. See Vaughn v. United Nuclear Corp., 98 N.M. 481, 485, 487, 650 P.2d 3, 7, 9 (Ct.App.1982), and cases therein cited. The Court of Appeals is reversed with respect to plaintiff‘s claim made against defendant Zouhar.
B. Defendants Albuquerque Anesthesia Services, Ltd. and Louise Layne
Shortly before plaintiff‘s complaint was filed and in response to an inquiry made of the state superintendent of insurance, plaintiff was informed that neither Albuquerque Anesthesia Services, Ltd. (Anesthesia Services) nor Louise Layne were qualified health care providers. As it turned out, the records of the superintendent‘s office were incomplete and in disorder and both defendants were, indeed, qualified health care providers. Consequently, an application for review of plaintiff‘s claim against those defendants was not filed before the statute of limitations ran, but was filed with the commission as soon as it was shown that plaintiff had received incorrect information from thе superintendent of insurance.
The Court of Appeals held that plaintiff had an obligation to seek information elsewhere regarding the status of those defendants, and that misinformation supplied by the office of the state superintendent of insurance would not excuse plaintiff‘s failure to file his claim with the commission before filing his complaint in district court.
The Act imposes upon a health care provider the obligation to submit specified proof of financial responsibility to the state superintendent of insurance, upon the doing of which that person or entity becomes a “qualified” provider to whom the screening provisions of the Act apply.
Contending that plaintiff‘s justification of “excuse” is really a claim of “estoppel,” defеndants argue that they cannot be bound by the representations of a third party—the superintendent of insurance. What is overlooked is the principal-agent relationship essentially created by the statutory requirement that certain providers deposit insurance funds or a policy with the superintendent of insurance to assure themselves of the special proteсtion of a preliminary hearing, thereby accepting the superintendent as their agent for the limited purpose of providing notice of their conversion to the qualified status. It is immaterial that the agency relationship is implicit rather than express; to the extent that a third party deals with an agent (the superintendent of insurance), the agent‘s scope of authority includes thаt which has apparently been delegated to him. 3 Am. Jur.2d, Agency, § 73, at 475 (1962). The legislature delegated the office of the superintendent as the agency through which health care providers would record their entitlement to the benefits of the Medical Malpractice Act. When the superintendent acted to provide information on behalf of and for the benefit of the health cаre providers, he was acting as the statutorily-named agent of the providers, notwithstanding that he was not so called. Chevron Oil Co. v. Sutton, 85 N.M. 679, 515 P.2d 1283 (1973).
Even though the misinformation was supplied by the superintendent‘s office and not by the defendants themselves, as between innocent parties, one of whom must suffer some loss, the loss must fall upon the one whose agent created the climate for the loss. See Raulie v. Jackson-Horne Grocery, 48 N.M. 556, 154 P.2d 231 (1944).
Plaintiff wаs entitled to rely on the representations of the superintendent. Consequently, reinstatement of plaintiff‘s claims against defendants Anesthesia Services and Layne should be made—because those claims also have been reviewed by the medical panel—for the same reasons that we have applied to the claim against Zouhar.
We reverse the decisiоns of the trial court and Court of Appeals to the extent necessary to permit the claims against Zouhar, Layne and Albuquerque Anesthesia Services, Ltd., to proceed to trial. We affirm the Court of Appeals on plaintiff‘s standing to raise other constitutional issues in this appeal.
IT IS SO ORDERED.
SOSA, Senior Justice, and LOUIS E. DePAULI, District Judge, concur.
RIORDAN, J., specially concurs in the result.
STOWERS, J., dissents.
I dissent.
The majority opinion circumvents the plain mеaning and effect of Sections
In Jiron v. Mahlab, 99 N.M. 425, 659 P.2d 311 (1983), this Court approved an exception to the requirement of Section
Moreover, there is no foundation for the opinion‘s establishment of a principal-agent relationship between the superintendent of insurance (superintendent) and health care providers. To the extent that the superintendent is an agent, he is an agent whose principal is the Legislature, and whose power is delegated by the Legislature. See Ledgering v. State, 63 Wash.2d 94, 385 P.2d 522 (1963). “An agent is defined аs a person authorized by another to act on his behalf and under his control.” Western Electric Co. v. New Mexico Bureau of Revenue, 90 N.M. 164, 167, 561 P.2d 26, 29 (Ct.App.1976). In this case, there are no facts or circumstances indicating that the health care providers or the Legislature authorized the superintendent to act on the behalf of or under the control of the health care providers. See Id. The superintendent is not an agent under Sections
The superintendent is a public officer. The authority and duties of public officers are bestowed and defined by the Legislature and the New Mexico Constitution. See Pollack v. Montoya, 55 N.M. 390, 234 P.2d 336 (1951). Contrary to the opinion, Section
I would affirm the Court of Appeals.