May 09, 2011 – Christus St. Vincent Regional Medical Center v. Ramon Duarte-Afara, M.D. and Mark Wade Dickinson, M.D., No. 30,343

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:

Filing Date: _ May 9, 2011

NO. 30,343

CHRISTUS SIP. VINCENT REGIONAL
MEDICAL CENTER,

Third-Party Plaintiff-A ppellee,
V.

RAMON DUARTE-AFARA, M_D., and
MARK WADE DICKINSON, M_D.,

Third-Party Defendants-A ppellants.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Barbara J. Vigil, District Judge

Hinkle, Hensley, Shanor & Martin, L.L.P.
William P. Slattery

David B. Lawrenz,

Santa Fe, NM

for Appellee

Allen, Shepherd, Lewis, Syra & Chapman, P.A.
E.W. Shepherd
J. Adam Tate

Albuquerque, NM

for Appellant Duarte-Afara, M.D.

Butt, Thornton & Baehr, P.C.
W. Ann Maggiore
Emily A. Franke
Albuquerque, NM
for Appellant Dickinson, M.D.

OPINION
CASTILLO, Chief Judge.
{1} 	The primary issue before us is whether the claim of Christus St. Vincent
Regional Medical Center (Medical Center) for equitable indemnification is a
malpractice claim governed by the Medical Malpractice Act (MMA), NMSA 1978,
§§ 41-5-1 to -29 (1976, as amended through 2008), and subject to the three-year
statute of repose provided by Section 41-5-13 of the MMA. We hold that Medical
Center’s claim is governed by the MMA and subject to Section 41-5-13. 	We also
consider whether due process and equal protection concerns preclude application of
Section 41-5-13 and conclude that they do not. Accordingly, we reverse.
BACKGROUND
{2} 	On December 6, 2004, Lillian Martinez (Martinez) received a hysterectomy at
Medical Center. Several days later, on December 9 and 10, she developed respiratory
problems and ultimately suffered brain damage. On December 4, 2007, almost three
years later, Martinez filed a complaint against Medical Center under the MMA
alleging medical malpractice. 	Specifically, Martinez alleged that Medical Center
failed to adequately monitor her after surgery, administered inappropriate and/or
excessive medications, failed to timely and properly diagnose and treat her respiratory
problems, and failed to timely diagnose and treat her while she was experiencing a

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significant life-threatening medical emergency.
{3} 	Martinez filed an application for panel review with the New Mexico Medical
Review Commission on March 6, 2008, asking the commission to, in part, review the
conduct of Dr. Duarte-Afara and Dr. Dickinson (Doctors), the physicians who treated
her at Medical Center and Appellants in this case. 	On March 12, 2008, Martinez
amended her December 4, 2004 complaint against Medical Center to include Doctors.
{4} 	In response to Martinez’s amended complaint, Doctors filed motions for
summary judgment in June 2008 asserting that Martinez’s claims against them were
barred by the three-year time period set forth in Section 41-5-13 of the MMA. 	Id.
(stating that “[n]o claim for malpractice arising out of an act of malpractice . . . may
be brought against a health care provider unless filed within three years after the date
that the act of malpractice occurred”). 	The district court agreed with Doctors and
dismissed Martinez’s claims against Doctors with prejudice.
{5} 	On December 22, 2008, Medical Center filed a third-party complaint for
indemnification 	against 	Dr. 	Duarte-Afara 	in 	which 	Medical 	Center 	sought
indemnification in the amount, if any, for which it may be found vicariously liable for
Dr. Duarte-Afara’s malpractice. 	On March 19, 2009, Medical Center amended its
third-party complaint to include an indemnification claim against Dr. Dickinson.
{6} 	In response to Medical Center’s amended third-party complaint, Doctors filed

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a motion to dismiss, arguing that Medical Center’s indemnification claim was also
barred by Section 41-5-13. 	Medical Center countered that Section 41-5-13 is not
controlling, claimed that the four-year statute of limitations provided in NMSA 1978,
Section 37-1-4 (1929) governed their amended third-party complaint, and asserted that
its indemnification claim could proceed. The district court agreed with Doctors and
granted their motion to dismiss.
{7} 	In March 2010, the district court granted Medical Center’s motion to reconsider
the court’s dismissal of its claims against the Doctors. 	The court determined that
“[b]ecause this matter is a claim for indemnification rather than malpractice . . .
Section 41-5-13 . . . is inapplicable[,]” and further determined that “[t]he statutory
time limit for the third-party claims for indemnification in this matter does not begin
to run until the claim of indemnity accrues, which is at the time of payment of the
underlying claim, judgment, or settlement, and not from the time that the underlying
damage occurred to [Martinez].” 	We accepted Doctors’ request for interlocutory
review on the issue of the applicability of the MMA and Section 41-5-13 to Medical
Center’s indemnification claim against Doctors.
DISCUSSION
{8} 	On 	appeal, 	Doctors 	argue, 	as 	they 	did 	below, 	that 	Medical 	Center’s
indemnification claim is governed by the MMA and subject to Section 41-5-13.

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Because, as explained below, we agree with this argument, we also address Medical
Center’s contention that application of Section 41-5-13 would deprive them of their
due process and equal protections rights.
Applicability of the MMA and Section 41-5-13
{9} 	To address Medical Center’s indemnification claim, we must construe Section
41-5-13 as it applies to the facts of this case. We review such matters de novo. Bd.
of Comm’rs of Rio Arriba Cnty. v. Greacen, 2000-NMSC-016, ¶ 4, 129 N.M. 177, 3
P.3d 672 (“This is primarily a matter of statutory construction and thereby concerns
a pure question of law, subject to de novo review.”); Ponder v. State Farm Mut. Auto.
Ins. Co., 2000-NMSC-033, ¶ 7, 129 N.M. 698, 12 P.3d 960 (“We review de novo the
[district] court’s 	application 	of 	the 	law 	to 	the 	facts 	in 	arriving 	at 	its 	legal
conclusions.”). 	“This Court’s primary goal when interpreting statutes is to further
legislative intent.” Jordan v. Allstate Ins. Co., 2010-NMSC-051, ¶ 15, 149 N.M. 162,
245 P.3d 1214. To determine legislative intent, “we look to the language used and
consider the statute’s history and background.” Key v. Chrysler Motors Corp., 121
N.M. 764, 768-69, 918 P.2d 350, 354-55 (1996). We begin by examining the history
and purpose behind the MMA and Section 41-5-13.
{10} 	The MMA was enacted in response to a perceived malpractice insurance crisis
in New Mexico. Roberts v. Sw. Cmty. Health Servs., 114 N.M. 248, 251-52, 837 P.2d

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442, 445-46 (1992). Through the MMA, the Legislature made professional liability
insurance available to health care providers but conditioned availability to that
insurance on a quid pro quo: health care providers could receive the benefits of the
MMA only if they became qualified health care providers under the MMA and
accepted the burdens of doing so. Id.; see also Cummings v. X-Ray Assocs. of N.M.,
P.C., 1996-NMSC-035, ¶¶ 27-29, 121 N.M. 821, 918 P.2d 1321 (discussing the
benefits and burdens of participation in the MMA).
{11} 	Section 41-5-13 is one benefit health care providers receive in accepting the
burdens of the MMA. 	See Cummings, 1996-NMSC-035, ¶ 29 (describing the
Legislature’s decision to enact Section 41-5-13 as one of the “[t]he most notable”
benefits under the MMA); Roberts, 114 N.M. at 252-53, 837 P.2d at 446-47
(identifying Section 41-5-13 as one of the benefits inuring to qualified health care
providers under the MMA). This provision provides the following:
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 section applies to all persons regardless of minority or other
legal disability.
Section 41-5-13 (alteration omitted).
{12} 	Section 	41-5-13 	addressed 	one 	of 	the 	reasons 	insurance 	carriers 	were

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withdrawing from medical malpractice: 	the potential for malpractice liability
coverage suits being filed long after the act of malpractice. Cummings, 1996-NMSC-
035, ¶ 40. Our Supreme Court has previously concluded that the plain language of
Section 41-5-13 demonstrates that the Legislature intended the “occurrence rule” to
govern claims controlled by the MMA. Cummings, 1996-NMSC-035, ¶¶ 47-48. The
occurrence rule fixes the accrual date in which a patient must file a claim for medical
malpractice at the time of the act or occurrence of medical malpractice even if the
patient is oblivious of any harm. See id. ¶ 47. As such, Section 41-5-13 will function,
under certain circumstances, as a statute of repose. See Cummings, 1996-NMSC-035,
¶¶ 48-50 (describing the circumstances under which Section 41-5-13 may function
either as a statute of limitations or as a statute of repose and explaining that “a statute
of repose terminates the right to any action after a specific time has elapsed, even
though no injury has yet manifested itself”). Having established the general principles
that guide our analysis, we turn now to the more specific question of whether Medical
Center’s indemnification claim is governed by the MMA and thus subject to Section
41-5-13.
{13} 	The MMA comprehensively defines what constitutes a “malpractice claim.”
See § 41-5-3(C).
“[M]alpractice claim” includes any cause of action arising in this state
against a health care provider for medical treatment, lack of medical

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treatment or other claimed departure from accepted standards of health
care which proximately results in injury to the patient, whether the
patient’s claim or cause of action sounds in tort or contract, and includes
but is not limited to actions based on battery or wrongful death;
“malpractice claim” does not include a cause of action arising out of the
driving, flying or nonmedical acts involved in the operation, use or
maintenance of a vehicular or aircraft ambulance[.]
Id. Our Supreme Court has observed that the breadth of this language indicates that
“[t]he [L]egislature foresaw and intended broad application of the concept of a
‘malpractice claim.’” Wilschinsky v. Medina, 108 N.M. 511, 517, 775 P.2d 713, 719
(1989). The question we must answer is whether an equitable indemnification claim
falls within the ambit of this broadly defined concept. To answer that question we
must examine the nature of a claim for indemnification.
{14} 	New 	Mexico 	recognizes 	“both 	traditional 	and 	proportional 	equitable
indemnification.” 	N.M. Pub. Schs. Ins. Auth. v. Arthur J. Gallagher & Co., 2008-
NMSC-067, ¶ 23, 145 N.M. 316, 198 P.3d 342. “Traditional indemnification grants
the person who has been held liable for another’s wrongdoing an all-or-nothing right
of recovery from a third party, such as the primary wrongdoer.” Id. “[P]roportional
indemnification allows a defendant to seek partial recovery from another for his or her
fault.” 	Id. 	Medical Center has not specified which of these two theories of
indemnification it has invoked. Nevertheless, our Supreme Court has explained that,
under either theory, “to state a claim for equitable indemnification, the indemnitor

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must be at least partly liable to the original plaintiff for his or her injuries.” Id. ¶ 28
(emphasis omitted). In other words, “[a] properly pled indemnity claim must allege
that the defendant [or indemnitor] caused some direct harm to a third party and that
the plaintiff or [indemnitee] discharged the resulting liability from this harm.” Id. ¶
30. This doctrinal point is, in our view, determinative.
{15} 	As discussed above, the Legislature intended that the term “malpractice claim”
be construed broadly. Wilschinsky, 108 N.M. at 517, 775 P.2d at 719. Indeed, a claim
may be construed as a malpractice claim within the meaning of the MMA if “the
gravamen of the third-party action is predicated upon the allegation of professional
negligence by a practicing physician.” 	Id. at 517-18, 775 P.2d at 719-20 (internal
quotation marks and citation omitted). We discern from Gallagher that the gravamen
of Medical Center’s equitable indemnification claim is predicated upon the allegation
that Doctors negligently caused, and were partly liable for, Martinez’s injuries. As
such, we hold that Medical Center’s equitable indemnification claim is a malpractice
claim as that term is used in the MMA and is, therefore, subject to Section 41-5-13.
{16} 	We reach this conclusion, in part, so as to carry out the policy goals the
Legislature intended by enacting the MMA and Section 41-5-13. See C. de Baca v.
Baca, 73 N.M. 387, 392, 388 P.2d 392, 396 (1964) (“It accordingly devolves upon us
to interpret the statute so as to accomplish the ends sought by the [L]egislature.”). In

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effect, Medical Center’s equitable indemnification claim exposes Doctors to the
identical liability to which they were subject under Martinez’s claims. 	Martinez’s
claims were properly dismissed as untimely. To permit Medical Center’s claim to
proceed where Martinez’s claim could not, would, in our view, elevate form over
substance and frustrate the underlying concerns which motivated our Legislature to
enact the MMA and Section 41-5-13—that is, relieving insurers and health care
providers from the uncertainty posed by stale malpractice claims. Cummings, 1996-
NMSC-035, ¶ 40.
{17} 	We 	are 	unpersuaded 	by 	Medical 	Center’s 	varying 	arguments 	that 	its
indemnification claim is not governed by the MMA. 	Citing Budget Rent-A-Car
Systems, Inc. v. Bridgestone Firestone N. Am. Tire, LLC, 2009-NMCA-013, ¶ 21, 145
N.M. 623, 203 P.3d 154, Medical Center first argues that the limitation period for an
indemnification claim begins to run “at the time of payment of the underlying claim,
payment of a judgment, or payment of a settlement.” Medical Center further contends
that “a third-party plaintiff’s cause of action for indemnification or contribution is
distinct from the tort claim asserted by the plaintiff against the defendant in the
underlying suit.” 	Medical Center cites a variety of out-of- state authority for this
proposition, see State ex rel. General Electric Co. v. Gaertner, 666 S.W.2d 764, 766
(Mo. 1984) (en banc); State Farm Mut. Auto. Ins. Co. v. Schara, 201 N.W.2d 758, 759

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(Wis. 1972); Duncan v. Beres, 166 N.W.2d 678, 687 (Mich. Ct. App. 1968), which
we have duly considered.
{18} 	These cases all point to the well-settled proposition that a cause of action for
indemnification is separate and distinct from the underlying tort. 	See Maurice T.
Brunner, 	When Statute of Limitations Commences to Run Against Claim for
Contribution or Indemnity Based on Tort, 57 A.L.R.3d 867, § 4[a] (1974) (“The cause
of action for indemnity of one whose liability for a tort is secondary or constructive,
against one whose liability for the tort is primary, is separate and distinct from the
injured person’s cause of action for the tort, and is generally recognized not to be a
mere species of subrogation to the tort cause of action. It is inchoate until judgment
is rendered or the claim is settled.” (footnotes omitted)). We do not dispute this point
of law. However, this point does not undermine our confidence in the conclusion that
Medical Center’s indemnification claim does fall within the ambit of the term
“malpractice claim” as that term is used in the MMA. 	As discussed above, the
controlling inquiry in determining whether a claim constitutes a “malpractice claim”
under the MMA is merely whether the gravamen of the claim is predicated upon the
allegation of professional negligence. We have concluded that this is the case. As
such, Medical Center’s claim is governed by the MMA and is subject to Section 41-5-
13.

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{19} 	Medical Center devotes considerable attention to two Missouri cases, Rowland
v. Skaggs Companies, Inc., 666 S.W.2d 770 (Mo. 1984) (en banc), and Aherron v. St.
John’s Mercy Medical Center, 713 S.W.2d 498 (Mo. 1986) (en banc), and argues that
the reasoning and conclusions in these cases should apply here. In these cases, the
Missouri Supreme Court addressed whether the two-year statute of limitations
governing medical malpractice claims in Missouri applied to claims for contribution
or indemnification. Rowland, 666 S.W.2d at 772; Aherron, 713 S.W.2d at 499-500.
In Rowland, the court observed that the language of the statute of limitations at issue
revealed “an unequivocal legislative intent to make only a specified class of suits
brought against health care providers subject to” the two-year statute of limitations,
and concluded that their legislature did not include suits for contribution in that
limited class. 666 S.W.2d at 772. Aherron relied almost exclusively on Rowland to
reach the same conclusion as to claims for indemnification. Aherron, 713 S.W.2d at
499-500. 	We distinguish these cases from New Mexico law based on policy
considerations. Our Legislature intended to define the term “malpractice claim” in the
MMA broadly. Wilschinsky, 108 N.M. at 517, 775 P.2d at 719. Thus, New Mexico
law is based on the converse of the policy concerns articulated and acted upon in
Rowland and Aherron.
{20} 	In 	conclusion, 	we 	hold 	that 	Medical 	Center’s 	claim 	for 	equitable

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indemnification is governed by the MMA and subject to Section 41-5-13. Because
Medical Center’s claim was filed outside the three-year limitations period, Section 41-
5-13, if applied, would bar Medical Center’s amended third-party complaint. 	We
proceed to address Medical Center’s argument that application of Section 41-5-13 is
impermissible as its application would violate Medical Center’s due process and equal
protection rights.
Due Process and Equal Protection
{21} 	Medical Center asserts that, given the timing of Martinez’s claim, it had only
six days to file its equitable indemnification claim in order to comply with Section 41-
5-13 and that this is an unreasonably short period of time. Citing due process and
equal protection concerns, Medical Center argues that application of Section 41-5-13
is impermissible. We review constitutional arguments de novo. Gomez v. Chavarria,
2009-NMCA-035, ¶ 6, 146 N.M. 46, 206 P.3d 157, cert. quashed, 2009-NMCERT-
012, 147 N.M. 601, 227 P.3d 91. We begin with due process.
{22} 	“[T]he [L]egislature may, consistent with due process, impose a statutory time
deadline for commencing an accrued action where no limit existed before, and may,
consistent with due process, shorten the time period within which existing claims may
be brought as long as a reasonable time is provided for commencing suit.” Garcia ex
rel. Garcia v. La Farge, 119 N.M. 532, 541, 893 P.2d 428, 437 (1995) (citations

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omitted). Thus, “considerations of fairness implicit in the Due Process Clauses of the
United States and New Mexico Constitutions dictate that when the [L]egislature
enacts a limitations period it must allow a reasonable time within which existing or
accruing causes of action may be brought.” Id. Our Supreme Court has applied these
principles in the context of the MMA and has, on three separate occasions, specifically
inquired whether application of Section 41-5-13 would violate due process. 	We
review those cases below.
{23} 	In La Farge, a young boy suffered a fainting spell and was treated by a heart
specialist. 119 N.M. at 534-35, 893 P.2d at 430-31. The specialist misdiagnosed the
boy’s symptoms, but this was not discovered until a subsequent fainting episode. Id.
at 535, 893 P.2d at 431. 	The subsequent episode occurred only eighty-five days
before the expiration of the limitations period in Section 41-5-13. 	La Farge, 119
N.M. at 542, 893 P.2d at 438. The boy filed a malpractice claim approximately seven
months after the Section 41-5-13 date had run. La Farge, 119 N.M. at 535, 893 P.2d
at 431. Although filed outside the allowable window, our Supreme Court concluded
that the boy’s due process rights would be violated if Section 41-5-13 was applied to
preclude his claim. La Farge, 119 N.M. at 542, 893 P.2d at 438. The Court focused
on the fact that the boy learned of the malpractice only eighty-five days before the
Section 41-5-13 expiration date. 	La Farge, 119 N.M. at 542, 893 P.2d at 438.

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Eighty-five days, the Court determined, was an unreasonably short period of time
within which the boy could exercise his rights. Id. Accordingly, the Court concluded
that Section 41-5-13 was inapplicable and instead applied the accrual based statute of
limitations in NMSA 1978, Section 37-1-8 (1976). La Farge, 119 N.M. at 542, 893
P.2d at 438. As the boy had filed suit within three years of the date of accrual—the
date the boy discovered the malpractice—his claim could proceed. Id.
{24} 	In Cummings, 1996-NMSC-035, ¶¶ 2, 6, a patient received x-rays, and the
medical provider identified certain abnormalities, but then failed to properly diagnose
those abnormalities. 	The patient later discovered that the abnormalities were
cancerous masses. Id. The date of malpractice was identified as August 1988 and the
date the patient discovered the malpractice as February 1990, roughly one and one-
half years before the Section 41-5-13 limitation period expired in August 1991.
Cummings, 1996-NMSC-035, ¶ 57. The patient filed her malpractice claim in July
1992, approximately eleven months after the Section 41-5-13 expiration date.
Cummings, 1996-NMSC-035, ¶ 57. 	Our Supreme Court declined to extend the
conclusion in La Farge to the patient’s case and determined that her claim was barred
by Section 41-5-13. Cummings, 1996-NMSC-035, ¶¶ 57-58. The Court reasoned that
the patient knew of the malpractice a year and a half before the Section 41-5-13
expiration date, but failed to file her claim. Cummings, 1996-NMSC-035, ¶¶ 57-58.

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Accordingly, the patient could not complain that her due process rights were violated
by the preclusive effect of Section 41-5-13. Cummings, 1996-NMSC-035, ¶¶ 57-58.
She had more than adequate time to take action, but failed to do so. Id.
{25} 	Finally, in Tomlinson v. George, 2005-NMSC-020, ¶ 4, 138 N.M. 34, 116 P.3d
105, a patient had wrist surgery in August 1996 that was ineffective and, when the
patient saw another specialist only a few months later, was informed that the initial
surgeon had been negligent. The patient filed a claim for malpractice in March 2000,
roughly 	seven 	months 	after 	the 	Section 	41-5-13 	limitations 	period 	expired.
Tomlinson, 2005-NMSC-020, ¶¶ 5, 10. Again, our Supreme Court declined to apply
the result reached in La Farge. Tomlinson, 2005-NMSC-020, ¶¶ 23-24. The Court
observed that the patient learned of the malpractice only a few months after it
occurred, but failed to act on this information for most of the Section 41-5-13 period.
Tomlinson, 2005-NMSC-020, ¶¶ 23-24. As in Cummings, the Court concluded that
the patient’s due process rights were not violated by the preclusive effect of Section
41-5-13. Tomlinson, 2005-NMSC-020, ¶¶ 23-24.
{26} 	Because we have concluded that Medical Center’s equitable indemnification
claim is a “malpractice claim” under the MMA and subject to Section 41-5-13, we
apply the due process analysis developed in the cases above. We do so despite the
fact that the issue in those cases was the due process rights of patients/plaintiffs

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whereas here we are concerned with the rights of a third-party. Conceptually, these
seem like different matters and would, perhaps, implicate a different analysis. The
parties do not address that issue.
{27} 	La Farge, Cummings, and Tomlinson make clear that the due process analysis
in the Section 41-5-13 context requires us to identify three dates: (1) the occurrence
date, i.e., the date the malpractice occurred; (2) the discovery date, i.e., the date the
existence of the malpractice is discovered; and (3) the Section 41-5-13 expiration date.
Here, the occurrence date and the Section 41-5-13 expiration date are clear and there
is no dispute between the parties as to these dates. The malpractice at issue in this
case—Martinez’s injuries—occurred on December 9-10, 2004, and thus the three-year
limitations period expired on December 10, 2007.
{28} 	The parties disagree about the date of discovery. Medical Center claims that
the discovery date is December 4, 2007, the date Martinez filed her complaint against
Doctors, which was six days before the Section 41-5-13 expiration date. 	Doctors
counter that the discovery date is either December 9 or 10, 2004, the date the
malpractice committed against Martinez occurred, or December 11, 2007, the date
Martinez’s complaint was served on counsel for Medical Center. As explained below,
we agree with Doctors that the date of discovery is December 11, 2007, the date
Medical Center received service or, alternatively, at some point thereafter.

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{29} 	“The key consideration under the discovery rule is the factual, not the legal,
basis for the cause of action. The action accrues when the plaintiff knows or should
know the relevant facts, whether or not the plaintiff also knows that these facts are
enough to establish a legal cause of action.” Coslett v. Third St. Grocery, 117 N.M.
727, 735, 876 P.2d 656, 664 (Ct. App. 1994) (internal quotation marks and citation
omitted). Medical Center concedes that it did not have knowledge that Martinez had
suffered an injury until the date her complaint was filed—December 4, 2007. 	We
accept this statement as an admission on Medical Center’s part that it did not have
knowledge that Martinez suffered injuries prior to Martinez’s decision to file suit. We
do not, however, accept the legal conclusion implicit in Medical Center’s concession,
i.e., that Medical Center knew Martinez filed suit merely because Martinez filed a
complaint in district court. 	Medical Center could only discover that Martinez had
filed a claim upon receiving service of process. Medical Center received service on
December 11, 2007, one day after the three-year limitation period provided by Section
41-5-13 expired. Accordingly, we conclude that the earliest possible discovery date
is 	December 	11, 	2007. 	We 	observe 	that 	Medical 	Center 	did 	not 	file 	its
indemnification claim against Doctors until December 2008. This suggests that the
discovery date could be well after December 11, 2007. 	We need not, however,
conclusively decide the issue.

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{30} 	As described above, Section 41-5-13 is a statute of repose and terminates the
right to any action after a specific time has elapsed. Cummings, 1996-NMSC-035, ¶
50. 	Our Supreme Court has clearly stated that the due process analysis first
established in La Farge, and further developed in Cummings and Tomlinson, applies
“only to claims discovered within the statutory period; if a claim is discovered after
the statute has run, Section 41-5-13 is an explicit bar.” Tomlinson, 2005-NMSC-020,
¶ 23. 	The discovery date in the present matter was one day beyond the end of the
three-year limitations period provided by Section 41-5-13. 	As such, we hold that
Section 41-5-13 bars Medical Center’s claim and further conclude that the preclusive
effect of Section 41-5-13 does no harm to Medical Center’s due process rights. We
conclude this opinion by briefly addressing Medical Center’s equal protection
arguments.
{31} 	At the end of Medical Center’s discussion of the due process issue, Medical
Center contends that its equal protection rights would also be violated if we conclude
that Section 41-5-13 applies. This claim appears to be premised on two points. First,
Medical Center contends that, if its claim for indemnification is dismissed as
untimely, it will be solely responsible for the Martinez liabilities. Medical Center then
argues that “the New Mexico [L]egislature did not include third[-]party claims,
including indemnity claims, in the [MMA’s] definition of ‘malpractice claim.’” It is

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not clear to us how this implicates equal protection and it is well settled that we do not
review unclear arguments. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045,
¶ 15, 137 N.M. 339, 110 P.3d 1076. Moreover, this claim seems merely a variation
of Medical Center’s contention that indemnification claims are not governed by the
MMA or subject to Section 41-5-13. We rejected this claim above.
CONCLUSION
{32} 	The district court’s determination that Medical Center’s amended third-party
complaint and the claim for indemnification therein was not governed by the MMA
and not subject to Section 41-5-13 is reversed. We reach the opposite conclusion and
reject Medical Center’s contention that doing so violates its due process and equal
protection rights. 	We remand this matter to the district court with instructions to
dismiss Medical Center’s amended third-party complaint and for proceedings not
inconsistent with this opinion.
{33} 	IT IS SO ORDERED.
__________________________________
CELIA FOY CASTILLO, Chief Judge
WE CONCUR:

MICHAEL D. BUSTAMANTE, Judge

MICHAEL E. VIGIL, Judge

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