CourtListener 4444816•Cahn v. Berryman
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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 Opinion Number:
3 Filing Date: November 20, 2017
4 NO. S-1-SC-35302
5 SARA CAHN,
6 Plaintiff-Petitioner,
7 v.
8 JOHN D. BERRYMAN, M.D.,
9 Defendant-Respondent.
10 ORIGINAL PROCEEDING ON CERTIORARI
11 Nan G. Nash, District Judge
12 Law Offices of Felicia C. Weingartner
13 Felicia C. Weingartner
14 Albuquerque, NM
15 Law Office of Cid D. Lopez, LLC
16 Cid Dagward Lopez
17 Albuquerque, NM
18 Carmela D. Starace
19 Albuquerque, NM
20 for Petitioner
21 Butt, Thornton & Baehr, P.C.
22 Emily A. Franke
23 Albuquerque, NM
1 Hinkle Shanor LLP
2 William P. Slattery
3 Dana Simmons Hardy
4 Santa Fe, NM
5
6 for Respondent
1 OPINION
2 NAKAMURA, Justice.
3 {1} The Medical Malpractice Act (MMA), NMSA 1978, §§ 41-5-1 to -29 (1976,
4 as amended through 2015) forecloses any cause of action that does not accrue within
5 three years of the act of malpractice. See § 41-5-13. In this case, we clarify the
6 contours of the due process exception to this limitation and hold that plaintiffs with
7 late-accruing medical malpractice claims, i.e., claims accruing in the last twelve
8 months of the three-year repose period, shall have twelve months from the time of
9 accrual to commence suit.
10 {2} Petitioner Sarah Cahn invoked the due process exception but did not file her
11 late-accruing medical malpractice claim against Respondent John D. Berryman, M.D.,
12 within twelve months. Twenty-one months elapsed between the accrual date of
13 Cahn’s claim against Dr. Berryman and the date she filed suit against him. Thus, her
14 claim is barred by Section 41-5-13. We affirm the Court of Appeals and write to
15 clarify the legal principles upon which our decision is based.
16 I. BACKGROUND
17 {3} In 2006, Cahn sought treatment for pelvic pain at Lovelace Women’s Hospital
18 in Albuquerque. In May 2006, Cahn received a pelvic ultrasound. The ultrasound
1 report indicated that there was a complex mass on Cahn’s left ovary and noted that
2 “[a] malignancy need[ed] to be excluded.”
3 {4} On August 8, 2006, Cahn consulted Dr. Berryman. This was Dr. Berryman’s
4 only appointment with Cahn. At that time, Dr. Berryman worked for Sandia
5 OB/GYN Associates, P.C., in an office located in the Lovelace Women’s Hospital
6 medical complex. Dr. Berryman reviewed the ultrasound report, but did not schedule
7 a biopsy. Rather, he examined Cahn, diagnosed her as having endometriosis, and
8 provided her with medication for that condition intending that she return to his office
9 for a follow-up visit. Contrary to Dr. Berryman’s intention, Cahn never returned for
10 follow-up care.
11 {5} On September 22, 2008, while seeing an OB/GYN in Wyoming for her
12 continuing pelvic pain, Cahn learned that Dr. Berryman had failed to inform her of
13 the mass on her left ovary. Further tests revealed that Cahn had ovarian cancer, and
14 on October 15, 2008, she underwent a hysterectomy in New York.
15 {6} After surgery, Cahn set out to sue Lovelace Health System, Inc., (LHS) and her
16 doctors. She could not, however, remember Dr. Berryman’s name or precisely when
17 he treated her. Cahn took steps to discover Dr. Berryman’s name and the date of her
18 consultation with him. She submitted record requests to various Lovelace health care
19 provider entities and other medical providers in Albuquerque, called one Lovelace
2
1 entity, and requested explanation of benefits forms from her health insurer. But the
2 documents and information she received in response did not identify Dr. Berryman.
3 After Cahn retained counsel, additional record requests were submitted by counsel
4 on Cahn’s behalf to various Lovelace entities, but the records received in response
5 to those requests similarly did not reflect the consultation with Dr. Berryman.
6 {7} On April 10, 2009, Cahn filed a complaint alleging medical malpractice against
7 LHS and several other defendants. Dr. Berryman was not a named defendant. On
8 July 1, 2010, LHS produced records in response to Cahn’s requests for production
9 showing that Cahn received care from Dr. Berryman on August 8, 2006. On July 9,
10 2010, exactly one week after receiving these records, Cahn filed an amended
11 complaint in which she named Dr. Berryman as a defendant and asserted a medical
12 malpractice claim against him. Before proceeding further, we pause to emphasize the
13 dispositive facts which can be discerned from the foregoing.
14 {8} The act of malpractice that Cahn alleges Dr. Berryman committed occurred on
15 August 8, 2006. Cahn’s malpractice claim accrued on September 22, 2008, the date
16 she discovered that Dr. Berryman did not alert her to the findings indicated by the
17 May 2006 ultrasound report. See Roberts v. Sw. Cmty. Health Servs., 1992-NMSC-
18 042, ¶ 27, 114 N.M. 248, 837 P.2d 442 (“[T]he cause of action accrues when the
19 plaintiff knows or with reasonable diligence should have known of the injury and its
3
1 cause.”). Cahn’s claim accrued ten and one-half months before August 8, 2009, when
2 the three-year repose period of Section 41-5-13 was set to expire. Cahn sued Dr.
3 Berryman on July 9, 2010, three years and eleven months after Dr. Berryman’s act of
4 malpractice occurred and one year and nine and one-half months (more than twenty-
5 one months) after Cahn’s claim accrued. A pictorial representation of these events
6 is included at the end of this opinion as Appendix A.
7 {9} In the Second Judicial District Court, Dr. Berryman moved for summary
8 judgment arguing that Section 41-5-13 barred Cahn’s malpractice claim. The court
9 denied Dr. Berryman’s motion concluding that application of the statutory bar would
10 violate Cahn’s right to due process as guaranteed by the United States and New
11 Mexico Constitutions. The district court later denied Dr. Berryman’s motion for
12 reconsideration on the question of the applicability of Section 41-5-13. Dr. Berryman
13 then requested that the court certify the statute-of-repose issue for interlocutory
14 appeal. The court entered an order certifying the issue, but the Court of Appeals
15 denied Dr. Berryman’s application.
16 {10} The district court then set the case for a jury trial, but Cahn and Dr. Berryman
17 entered into a stipulated conditional directed verdict and final judgment, stating that
18 Dr. Berryman was liable to Cahn for medical negligence in the amount of $700,000
19 but preserving for appeal the issue of whether Section 41-5-13 barred Cahn’s
4
1 malpractice claim. The Court of Appeals, in a divided opinion, concluded that
2 Section 41-5-13 did bar Cahn’s claim and reversed the district court, which had
3 “ruled otherwise.” Cahn v. Berryman, 2015-NMCA-078, ¶ 1, 355 P.3d 58, cert.
4 granted, 2015-NMCERT-007.
5 {11} Cahn petitioned for a writ of certiorari, which we granted, exercising our
6 jurisdiction under Article VI, Section 3 of the New Mexico Constitution and NMSA
7 1978, Section 34-5-14(B) (1972). We issued the writ to consider whether the
8 application of Section 41-5-13 to bar Cahn’s malpractice claim violated her right to
9 due process.
10 II. DISCUSSION
11 A. Standard of Review
12 {12} “This Court’s review of orders granting or denying summary judgment is de
13 novo.” Zamora v. St. Vincent Hosp., 2014-NMSC-035, ¶ 9, 335 P.3d 1243.
14 “Summary judgment is appropriate in the absence of any genuine issues of material
15 fact and where the movant is entitled to judgment as a matter of law.” Id. “In
16 reviewing an order on summary judgment, we examine the whole record on review,
17 considering the facts in a light most favorable to the nonmoving party and drawing
18 all reasonable inferences in support of a trial on the merits.” Id.
5
1 B. Section 41-5-13: the MMA’s Statute of Repose
2 {13} “Like many other states, New Mexico reformed its medical malpractice laws
3 in 1976 in response to a much discussed medical malpractice crisis.” Cummings v.
4 X-Ray Assocs. of N.M., P.C., 1996-NMSC-035, ¶ 40, 121 N.M. 821, 918 P.2d 1321.
5 Surveying that crisis, the Court of Appeals observed that
6 [t]he insurance crisis that prompted the enactment of the MMA arose out
7 of a nationwide perception that medical malpractice insurance was
8 increasingly becoming unavailable. The specific event that triggered
9 concern in New Mexico was the announced withdrawal in 1975 of the
10 Travelers’ Insurance Company as the underwriter of the New Mexico
11 Medical Society’s professional liability program. Travelers’ withdrawal
12 jeopardized health care providers’ protection against liability claims and,
13 in turn, compromised the legal remedies available to health care
14 consumers injured by the negligence of health care providers.
15 Baker v. Hedstrom, 2012-NMCA-073, ¶ 22, 284 P.3d 400 (citing Ruth L. Kovnat,
16 Medical Malpractice Legislation in New Mexico, 7 N.M. L. Rev. 5, 7 (1976-77)),
17 aff’d on other grounds, 2013-NMSC-043, 309 P.3d 1047. The insurance crisis
18 prompted concerns about the departure of medical providers from New Mexico as
19 well as the availability of recovery for New Mexicans who suffer injuries resulting
20 from medical malpractice. See id.
21 {14} The MMA sought to address this crisis by ensuring that professional liability
22 insurance was available to health care providers in New Mexico. Section 41-5-2.
23 The Legislature “concluded that the potential for a malpractice suit being filed long
6
1 after the act of malpractice was one of the reasons that insurance carriers were
2 withdrawing from medical malpractice liability coverage.” Cummings, 1996-NMSC-
3 035, ¶ 40. To address this problem, the Legislature enacted Section 41-5-13 and
4 precluded “almost all malpractice claims from being brought more than three years
5 after the act of malpractice.” Cummings, 1996-NMSC-035, ¶¶ 39-40.
6 {15} Section 41-5-13 provides as follows:
7 No claim for malpractice arising out of an act of malpractice which
8 occurred subsequent to the effective date of the [MMA] may be brought
9 against a health care provider unless filed within three years after the
10 date that the act of malpractice occurred except that a minor under the
11 full age of six years shall have until his ninth birthday in which to file.
12 This subsection . . . applies to all persons regardless of minority or other
13 legal disability.
14 This provision operates as a statute of repose. Tomlinson v. George,
15 2005-NMSC-020, ¶ 8, 138 N.M. 34, 116 P.3d 105. Statutes of repose reflect a
16 legislative policy to extinguish, after the passage of a period of time, all liability for
17 claims not filed by the end of the repose period irrespective of whether the claims
18 have already accrued or have yet to accrue. See id. Statutes of repose begin to run
19 when a statutorily designated event occurs, “without regard to when the underlying
20 cause of action accrues and without regard to the discovery of injury or damages.”
21 Garcia ex rel. Garcia v. LaFarge, 1995-NMSC-019, ¶ 14, 119 N.M. 532, 893 P.2d
22 428; see also Restatement (Second) of Torts § 899(g) (Am. Law Inst. 1979)
7
1 (“[S]tatutes [of repose] set a designated event for the statutory period to start running
2 and then provide that at the expiration of the period any cause of action is
3 barred . . . .”). “Section 41-5-13’s statutorily determined triggering event is . . . the
4 act of medical malpractice and does not entail whether the injury has been
5 discovered.” Tomlinson, 2005-NMSC-020, ¶ 9 (internal quotation marks and citation
6 omitted). This Court has concluded that “the three-year time limit of Section 41-5-13
7 establishes a reasonable termination point for medical malpractice claims.”
8 Cummings, 1996-NMSC-035, ¶ 39.
9 C. The Due Process Exception to the Application of Section 41-5-13
10 {16} The Due Process Clauses of the United States and New Mexico Constitutions,
11 U.S. Const. amend. XIV, § 1; N.M. Const., art. II, § 18, provide the basis for an
12 exception to the application of the MMA’s statute of repose. Garcia, 1995-NMSC-
13 019, ¶¶ 35-36 (citing Terry v. N.M. State Highway Comm’n, 1982-NMSC-047, 98
14 N.M. 119, 645 P.2d 1375). Once a cause of action accrues, it is subject to the
15 protections of due process. See Garcia, 1995-NMSC-019, ¶¶ 33-36 (citing Wilson
16 v. Iseminger, 185 U.S. 55, 62 (1902)); see also Terry, 1982-NMSC-047, ¶¶ 9-17.
17 Hence, Garcia held that due process requires that the plaintiff have a reasonable
18 amount of time in which to commence suit after any late-accruing medical
19 malpractice claim has accrued. See 1995-NMSC-019, ¶¶ 35-36. This due process
8
1 exception is implicated, however, only if a plaintiff’s claim accrues late within the
2 three-year repose period. See Tomlinson, 2005-NMSC-020, ¶ 23. Due process does
3 not prevent Section 41-5-13 from cutting off claims that are discovered after the
4 three-year repose period has run. Id.
5 {17} When a medical malpractice claim accrues late within the repose period and the
6 plaintiff requires additional time beyond that period to commence suit, to what
7 amount of time is the plaintiff entitled as a consequence of due process before Section
8 41-5-13 extinguishes the claim? Three cases have touched directly upon this
9 question.
10 {18} In Garcia, the plaintiff’s malpractice claim accrued eighty-five days before the
11 expiration of the MMA’s three year repose period, and we held that eighty-five days
12 is a constitutionally insufficient amount of time for the plaintiff to commence suit.
13 See 1995-NMSC-019, ¶¶ 37-38. In Cummings, by contrast, the plaintiff’s claim
14 accrued eighteen months before the expiration of the repose period, and we
15 determined that eighteen months was a constitutionally reasonable amount of time.
16 See 1996-NMSC-035, ¶¶ 57-59. And in Tomlinson, the plaintiff’s claim accrued
17 thirty-two months before the expiration of the repose period, and we determined that
18 this was most certainly a constitutionally reasonable amount of time. See 2005-
9
1 NMSC-020, ¶¶ 3, 23. Expanding our inquiry beyond the MMA context, we glean
2 additional insight into the answer to the issue before us.
3 {19} New Mexico appellate courts have upheld as consistent with due process the
4 application of statutory bars that create limitations periods of one year. See Terry,
5 1982-NMSC-047, ¶ 17 (“We have upheld limitations periods as short as one year
6 when justified by specific considerations.”); Martinez v. Pub. Emps. Ret. Ass’n of
7 N.M., 2012-NMCA-096, ¶¶ 15, 40-41, 286 P.3d 613 (observing that the one-year
8 deadline set forth in NMSA 1978, Section 10-11-14.5(A) (1997) “functions like a
9 statute of repose” and upholding the application of that statutory provision as
10 consistent with due process). Other jurisdictions have done the same. See, e.g.,
11 Canadian N. Ry. Co. v. Eggen, 252 U.S. 553, 562-63 (1920) (concluding that a one-
12 year statute of limitations for a personal injury tort action was “reasonably sufficient
13 to enable an ordinarily diligent man to institute proceedings for . . . [the] protection
14 [of his rights]” (emphasis added)). The Supreme Court of Ohio, when considering
15 an analogous due process exception to a medical malpractice statute of repose, said
16 that “[a] reasonable time in which to bring a medical malpractice action was
17 defined . . . as one year after the discovery of the malpractice.” Gaines v. Preterm-
18 Cleveland, Inc., 514 N.E.2d 709, 716 (Ohio 1987) (emphasis added) (internal
19 quotation marks and citation omitted). Limitations periods of less than a year have
10
1 also been upheld as consistent with due process. See Ferguson v. N.M. State
2 Highway Comm’n, 1982-NMCA-180, ¶¶ 12, 14-15, 99 N.M. 194, 656 P.2d 244
3 (holding that the ninety-day notice requirement of NMSA 1978, § 41-4-16(A) (1977,
4 as amended 2013) within the Tort Claims Act does not deny due process because it
5 is not unreasonably short); Littlewolf v. Hodel, 681 F. Supp. 929, 939-40 (D.D.C.
6 1988) (collecting cases upholding “statutes of limitations barring suit within similarly
7 short periods of time [i.e., 180 days]”); Robin Miller, Validity of Medical Malpractice
8 Statutes of Repose, 5 A.L.R.6th 133, § 18 (2005 & Supp. to the present) (collecting
9 cases from jurisdictions that have adjudicated constitutional challenges to analogous
10 medical malpractice statutes of repose). From these various authorities, we draw our
11 conclusion.
12 {20} We hold that twelve months is a constitutionally reasonable period of time
13 within which to file an accrued claim regardless of whether the claim accrues twelve
14 months or one day before the expiration of the three-year repose period. Our holding
15 should not, however, be interpreted to mean that twelve months is the minimum time
16 period that will satisfy due process. Our decision today does not preclude our
17 Legislature from shortening—or lengthening—the additional time plaintiffs with late-
18 accruing claims receive. To ensure that our holding is clear, we offer some
19 illustrations of the rule we have articulated.
11
1 {21} If a malpractice claim accrues (i.e., the plaintiff discovers that she has suffered
2 malpractice) twelve months prior to the expiration of the three-year repose period, the
3 plaintiff shall have the remainder of the repose period (twelve months) to commence
4 suit. If, however, the claim accrues six months prior to the expiration of the repose
5 period, the plaintiff will have twelve months from that accrual date to file her claim,
6 i.e., the remainder of the repose period plus an additional six months after the
7 expiration of the repose period (a total of twelve months). If the claim accrues on the
8 last day of the repose period, the plaintiff shall have twelve months from that last day
9 to file suit. These examples are offered to illustrate that a plaintiff with a late-
10 accruing claim shall have twelve months from whichever date the late-accruing claim
11 accrues to file suit. But the benefit of additional time that this due process exception
12 provides inures only to plaintiffs with late-accruing claims, i.e., claims accruing in the
13 last twelve months of the three-year repose period. Plaintiffs with claims accruing
14 in the first twenty-four months of the repose period shall not benefit from this
15 exception to Section 41-5-13 as claims that accrue in that time period are not “late
16 accruing.” Additionally, Section 41-5-13 extinguishes any claim accruing after the
17 three-year repose period has expired.
18 {22} We recognize that our decision to grant plaintiffs with late-accruing medical
19 malpractice claims a twelve-month period in which to file those claims is inconsistent
12
1 with Garcia where we determined that a plaintiff with a late-accruing medical
2 malpractice claim would receive the benefit of the statute of limitations which would
3 have been applicable had Section 41-5-13 never been enacted. 1995-NMSC-019,
4 ¶ 37. We now overrule this specific portion of Garcia. Having established the
5 principles that guide our analysis, we need only apply them to the facts in Cahn’s
6 case. Before doing so, we respond to the dissent.
7 {23} The dissent claims that our ruling today is a form of “legislating” that
8 “entangles and imperils fundamental separation-of-powers jurisprudence” and is
9 inconsistent with “longstanding” due-process jurisprudence because the twelve-
10 month rule we embrace applies “in every case regardless [of] the circumstances
11 [presented].” Dissenting Op. ¶¶ 53-54, 63, 74. Clearly, we disagree.
12 {24} Our Legislature has not made accommodations for plaintiffs, like Cahn, whose
13 medical malpractice claims accrue late in Section 41-5-13’s three-year repose period
14 and who require additional time beyond the three-year period to file claims. Other
15 state legislatures have provided such accommodations in statute of repose contexts
16 other than medical malpractice. See, e.g., Ariz. Rev. Stat. Ann. § 12-552(B) (1992)
17 (allowing a one-year period for the commencement of suit on claims accruing in the
18 final year of an eight-year statute of repose); Cal. Civ. Proc. Code § 337.1(b) (West
19 1967) (allowing a one-year period for the commencement of suit on claims accruing
13
1 in the final year of a four-year statute of repose); Colo. Rev. Stat. Ann. § 13-80-
2 104(2) (West 2001) (allowing a two-year period for the commencement of suit on
3 claims accruing in the final two years of a six-year statute of repose). Our
4 Legislature’s inaction is significant. Once we embrace the conclusion that Cahn is
5 entitled, as a consequence of due process, to some additional period of time beyond
6 that provided in the MAA to initiate her action against Dr. Berryman, we cross a
7 Rubicon of sorts. Whatever answer we supply to the question “To how much
8 additional time, exactly, is Cahn entitled?” we necessarily inject our judgment into
9 a sphere otherwise controlled by statute and must engage in the type of line drawing
10 that is best handled in the first instance by the Legislature. See Hartford Ins. Co. v.
11 Cline, 2006-NMSC-033, ¶ 8, 140 N.M. 16, 139 P.3d 176 (“The predominant voice
12 behind the declaration of public policy of the state must come from the
13 legislature . . . .”). The dissent contends that we may minimize our intrusion by
14 resorting to “applicable background statute of limitations.” Dissenting Op. ¶¶ 43-44.
15 While this claim has surface level appeal, it does not withstand scrutiny.
16 {25} In an earlier section of this opinion, we noted that our Legislature enacted the
17 MMA and its statute of repose, in part, to supplant the very background statute of
18 limitations the dissent insists should control. If this is so, then applying the
19 background statute of limitations is, if anything, the result most inconsistent with the
14
1 Legislature’s intentions and the result most intrusive and susceptible to criticism
2 based on separation of powers principles. This point seems to have been overlooked
3 by Terry and Garcia. Neither case provides a meaningful explanation why the
4 background statute of limitations should apply. Terry merely notes that the judiciary
5 does not “set appropriate limitations periods.” 1982-NMSC-047, ¶ 17. Our decision
6 to extend to Cahn—and any other plaintiff with a late-accruing MMA claim—an
7 additional year from the date of accrual is not “setting a limitations period.” The
8 limitations period, or more accurately the repose period, in the MMA is three years.
9 Our opinion today does nothing to change this fact. The additional time we provide
10 plaintiffs with late-accruing claims is a constitutionally mandated exception to the
11 application of this three-year period.
12 {26} The assertion that the rule we embrace fails to account for the particular facts
13 of each case reflects a misunderstanding of the rule. It is necessarily tethered to the
14 facts of each case and extends the repose period one year beyond the accrual date of
15 the particular late-accruing claim at issue. The rule mirrors and, thus, is faithful to
16 the structure of the MMA itself. Like any other MMA claimant, plaintiffs with late-
17 accruing claims must file within a fixed amount of time. If they fail to do so, their
18 claim is lost. If our Legislature determines that our rule is not faithful to the MMA
19 or fails to reflect policy it deems most wise, it is free (as we have already noted) to
15
1 enact a provision that reflects its judgment about the most prudent way to
2 accommodate plaintiffs with late-accruing claims.
3 D. Cahn Filed Her Late-Accruing Claim Against Dr. Berryman More Than
4 Twelve Months After It Accrued
5 {27} Cahn’s claim against Dr. Berryman accrued late. At the time her claim
6 accrued, ten and one-half months remained before the expiration of the repose period.
7 Cahn filed suit against Dr. Berryman after the expiration of the repose period. One
8 year and nine and one-half months—more than twenty-one months—elapsed between
9 the date Cahn’s claim against Dr. Berryman accrued and the date she filed the
10 amended complaint in which he was named as a defendant. Thus, at the time Cahn
11 commenced suit against Dr. Berryman, more than twelve months had elapsed from
12 the date that Cahn’s claim accrued. Cahn has not argued that Dr. Berryman’s identity
13 was fraudulently concealed from her. See Tomlinson, 2005-NMSC-020, ¶ 2
14 (recognizing that the statutory period of repose may be tolled when “the plaintiff does
15 not discover the alleged malpractice within the statutory period as a result of the
16 defendant’s fraudulent concealment.”). Accordingly, Cahn’s claim against Dr.
17 Berryman is barred by Section 41-5-13.
18 III. CONCLUSION
19 {28} Due process does not preclude application of Section 41-5-13 to bar Cahn’s
20 claim against Dr. Berryman. We affirm the Court of Appeals and remand to the
16
1 district court for the entry of final judgment or any further proceedings the court
2 deems necessary.
3 {29} IT IS SO ORDERED.
4 ___________________________________
5 JUDITH K. NAKAMURA, Chief Justice
6 WE CONCUR:
7 ____________________________________
8 CHARLES W. DANIELS, Justice
9 ____________________________________
10 BARBARA J. VIGIL, Justice
11 EDWARD L. CHÁVEZ, Justice, specially concurring
12 PETRA JIMENEZ MAES, Justice, dissenting
17
1 CHÁVEZ, Justice (concurring in result).
2 {30} I concur in the result reached by the majority of the Court. However, I cannot
3 join in the holding that “plaintiffs with late-accruing medical malpractice claims . . .
4 shall have twelve months from the time of accrual to commence suit.” Maj. op. ¶ 1.
5 I am not persuaded by either the majority or the dissenting opinion that this Court
6 should adopt a specific time period within which a plaintiff must file a lawsuit when
7 due process considerations are at issue. The polestar question in a due process
8 analysis is whether reasonable time remains after a cause of action accrues within
9 which a plaintiff, exercising due diligence, can file his or her claim before it is time-
10 barred under a statute of repose. If the answer is yes, then the claim must be filed
11 within the statute of repose. If the answer is no, then the claim must be filed within
12 a reasonable time after the statute of repose has expired. When reasonableness is the
13 essence of a substantive due process claim, due process abhors the expediency of
14 thoughtlessness. By necessity the due process analysis has always been a fact-based
15 analysis which takes into account more than the date that the plaintiff’s claim accrues.
16 Twelve months from when an action accrues under the Medical Malpractice Act
17 (MMA), NMSA 1978, §§ 41-5-1 to -29 (1976, as amended through 2015) may prove
18 to be a reasonable amount of time within which a plaintiff, exercising due diligence,
19 can file his or her claim. But whether the amount of time is reasonable depends on
18
1 the complexity of the case circumstances–not just when the cause of action accrued.
2 For example, the complicated medical provider relationships that exist today, and the
3 difficulty in identifying which doctor provided what treatment, or interpreted what
4 lab results, radiographs, or so on, may make twelve months constitutionally
5 inadequate. Nevertheless, because I conclude that Cahn had a reasonable time to
6 bring her cause of action before the statute of repose expired, I concur in the result
7 reached by the majority.
8 {31} I also do not agree with the dissenting opinion’s suggestion that Garcia ex rel.
9 Garcia v. LaFarge, 1995-NMSC-019, 119 N.M. 532, 893 P.2d 428, essentially
10 requires a three-year accrual statute of limitations in MMA cases when the cause of
11 action accrues within the statute of repose. See dissenting op. ¶¶ 48, 53. In Garcia,
12 this Court found that eighty-five days before the statute of repose would run was too
13 short a period of time for the Garcias, who were the plaintiffs, to bring a lawsuit
14 against the defendant. Id. ¶ 37. Because the Legislature had not specified a
15 reasonable period of time within which to bring claims that accrue shortly before the
16 running of the statute of repose, in Garcia this Court imposed the three-year accrual
17 statute of limitation of NMSA 1978, Section 37-1-8 (Repl. Pamp. 1990). 1995-
18 NMSC-019, ¶ 37. The Garcia Court held that as it applied to the Garcias, Section
19 41-5-13 violated due process—the Court did not hold that the statute of repose was
19
1 unconstitutional on its face. 1995-NMSC-019, ¶¶ 36-37. Nor did the Garcia Court
2 hold that Section 37-1-8 would be the controlling statute of limitation for MMA
3 cases. 1995-NMSC-019, ¶ 37. Had it done so, I would vote to overrule Garcia
4 simply on the basis of separation of powers.
5 {32} In addition, the procedural history in Garcia is remarkably different from the
6 instant case. In Garcia, the latest act of malpractice occurred on February 8, 1989.
7 1995-NMSC-019, ¶ 1. The plaintiffs had until February 8, 1992 to file a lawsuit. The
8 cause of action arose out of a cardiac arrest that occurred on November 16, 1991,
9 leaving the plaintiffs only eighty-five days to file suit under the statute of repose. Id.
10 ¶¶ 1, 6, 13. On February 24, 1992, the Garcias filed an application with the Medical
11 Review Commission. Id. ¶ 1. Under the provisions of Section 41-5-15(A), “[n]o
12 malpractice action may be filed in any court against a qualifying health care provider
13 before application is made to the medical review commission and its decision is
14 rendered.” The statute of repose is tolled “until thirty days after the panel’s final
15 decision is entered in the permanent files of the commission and a copy is served
16 upon the claimant and his attorney by certified mail.” Section 41-5-22; see also
17 Grantland v. Lea Reg’l Hosp., 1990-NMSC-076, ¶ 9, 110 N.M. 378, 796 P.2d 599
18 (holding that the statute of repose is tolled regardless of the outcome of the case).
19 The Garcias filed their claim against the correct doctor 109 days from when it
20
1 accrued, or stated differently, just sixteen days after the running of the limitation
2 period in the statute of repose.
3 {33} Filing an application with the Commission as to one provider does not toll the
4 limitations period as to another provider who was not named in the original
5 application and for whom the statutory period in which to file a cause of action has
6 passed. See Meza v. Topalovski, 2012-NMCA-002, ¶ 8, 268 P.3d 1284. I make this
7 latter point because Cahn filed a claim with the Commission, but she did not name
8 Berryman, which deprived her of the tolling provision as to him.
9 {34} Regarding the question of whether reasonable time remained after a cause of
10 action accrued within which Cahn, exercising due diligence, could have filed her
11 claim before the running of the statute of repose, the following analysis persuades me
12 that the answer is yes. Cahn received a pelvic ultrasound at West Mesa Medical
13 Center on May 19, 2006. On August 8, 2006, she met with Dr. Berryman and
14 provided him a copy of the written ultrasound report. Berryman neither referenced
15 the findings indicated by the ultrasound report nor scheduled a biopsy. Instead,
16 Berryman examined Cahn, diagnosed her as having endometriosis, prescribed
17 medication for that condition, and advised Cahn to return to his office for a follow-up
18 visit. She did not return for a follow-up visit.
21
1 {35} Ultimately, as reflected in both the majority and the dissenting opinions, Cahn
2 knew of her injury and its cause1 on September 22, 2008. However, she could not
3 remember the name of the doctor who caused or contributed to her injury, or when
4 he examined her. We know that Cahn had until August 8, 2009 to discover the
5 identity of the doctor and sue him. By December 2008, Cahn had retained counsel
6 to pursue her malpractice claim. Before retaining counsel, as early as October 27,
7 2008, while recovering from major surgery, Cahn herself began investigating to
8 determine the identity of the doctor whom she believed had committed the act of
9 malpractice. Did Cahn have health insurance at the time? If so, who did her insurer
10 pay for the evaluation? Did she have a co-payment or a deductible she had to pay?
11 If she did, how did she pay it, and is there a record of who she paid?
12 {36} These questions might seem obvious in retrospect, but Cahn herself knew to
13 ask the questions. In late 2008 Cahn contacted her health insurer, Lovelace Health
14 Plan, and requested her explanation of benefits (EOB) forms for May, June, and July
15 2006. The doctor’s identity was obviously not in the records that Cahn received
16 because she saw Dr. Berryman in August, 2006. It is not clear why Cahn only
17 1
See Maestas v. Zager, 2007-NMSC-003, ¶ 19, 141 N.M. 154, 152 P.3d 141
18 (describing the discovery rule as when a plaintiff knows or with reasonable diligence
19 should have known of the injury and its cause, although the rule does not require that
20 the plaintiff discover that the defendant’s actions constitute medical malpractice).
22
1 requested EOBs for only three months. Had she requested all of the EOB forms for
2 2006 she would have received an EOB dated August 23, 2006, which identified
3 Berryman as the doctor who treated her on August 8, 2006. Lovelace Health Plan had
4 mailed this EOB to Cahn shortly after she received Berryman’s medical services.
5 Cahn’s credit union bank statement in August 2006 listed Cahn’s $30 co-payment to
6 Sandia OB/GYN, where Berryman worked in August 2006.
7 {37} This procedural history persuades me that Berryman’s identity was reasonably
8 ascertainable within the time remaining on the statute of repose. There is no evidence
9 that Berryman was concealing, much less fraudulently concealing, his identity. I
10 would not find a due process violation in this case because the time was not
11 unreasonably short for Cahn and her attorneys to identify Berryman in time to file a
12 lawsuit within three years from the occurrence of the malpractice.
13 {38} The harshness of the result will be troubling to some, but not to others. Law
14 is adversarial and morally ambiguous because both sides must make irreconcilable
15 moral arguments, and only one side wins. Regarding statutes of limitation or of
16 repose, I am reminded of what this Court stated in Cummings v. X-Ray Associates of
17 New Mexico, P.C., 1996-NMSC-035, ¶ 37, 121 N.M. 821, 918 P.2d 1321 (quoting
18 Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314 (1945) (alterations in
19 original) (footnote omitted):
23
1 There is no statute of limitations that does not prevent some identifiable
2 class from litigating its cause of action. Such a class is always
3 characterized by the fact that its members failed to timely pursue their
4 claim. Whether this failure is through careless negligence or innocent
5 lack of information is generally irrelevant to the constitutionality of the
6 time limit.
7 [Statutes of limitation] are by definition arbitrary, and their
8 operation does not discriminate between the just and the
9 unjust claim, or the voidable and unavoidable delay. They
10 have come into the law not through the judicial process but
11 through legislation. They represent a public policy about
12 the privilege to litigate. Their shelter has never been
13 regarded as what now is called a ‘fundamental’ right or
14 what used to be called a ‘natural’ right of the individual.
15 [The individual] may, of course, have the protection of the
16 policy while it exists, but the history of pleas of limitation
17 shows them to be good only by legislative grace and to be
18 subject to a relatively large degree of legislative control.
19 {39} For example, had Mr. Garcia in the Garcia v. LaFarge case suffered his heart
20 attack eighty-six days later, on February 9, 1992, his cause of action would have been
21 time-barred, even though his cause of action had not accrued before then. See
22 Tomlinson v. George, 2005-NMSC-020, ¶ 8, 138 N.M. 34, 116 P.3d 105 (“[A] statute
23 of repose terminates the right to any action after a specific time has elapsed, even
24 though no injury has yet manifested itself.” (alteration in original) (internal quotation
25 marks and citation omitted)). This Court has upheld the constitutionality of the MMA
26 statute of repose when the cause of action accrues after the statute of repose has
27 expired against both an equal protection and a due process challenge. Cummings,
24
1 1996-NMSC-035, ¶¶ 22-42. Upholding the constitutionality of the MMA statute of
2 repose in instances when the cause of action accrued after the statute of repose has
3 expired necessarily requires upholding its constitutionality in the present case, where
4 Cahn had reasonable time to bring her cause of action before the statute of repose
5 expired.
6 {40} I respectfully concur in the result reached by the majority.
7 _____________________________
8 EDWARD L. CHÁVEZ, Justice
25
1 MAES, Justice (dissenting).
2 {41} Because I believe the teachings of our prior cases, the relevant statutory
3 structure, the nature of the due process guarantee, and other fundamental
4 constitutional considerations counsel against adoption of the twelve-month rule the
5 majority creates today, I respectfully dissent.
6 I. The Terry–Garcia Analysis
7 {42} The principles of our prior cases suggest we need not create a new rule here.
8 For causes of action accruing within the statutory period—as Cahn’s did here—our
9 cases have made clear the statutory repose function is typically irrelevant; instead, we
10 must answer two precise due process-oriented questions regarding the remaining
11 effective limitations period for the cause after accrual. See Terry v. N.M. State
12 Highway Comm’n, 1982-NMSC-047, ¶¶ 10, 17, 98 N.M. 119, 645 P.2d 1375
13 (examining ten-year repose period for construction defect suits). First, because “[t]he
14 constitutionality of statutes of limitation has hinged on the reasonableness of the time
15 provided to pursue a remedy,” id. ¶ 14, we have investigated whether and when the
16 potentially remaining effective period for filing a complaint may be so “abbreviated”
17 as to be constitutionally unreasonable. Id. ¶ 16. And where the potential period for
18 filing is unreasonably abbreviated, we noted in Terry, we must address a second
19 critical question of what the appropriate limitations period for the claim may be in the
26
1 absence of a specific legislative prescription in the repose provision or related
2 provisions. Id. ¶ 17.
3 {43} Investigating the second question in Terry, we emphasized that “it is not a
4 judicial function to set appropriate limitations periods.” Id. Instead of creating our
5 own applicable period, we briefly surveyed other legislatively-drawn periods. Id. A
6 period as short as a single year for certain causes of action, we observed, might
7 survive constitutional scrutiny, when “justified by specific considerations.” Id. But
8 where “the Legislature has not specified a shorter reasonable period of limitations”
9 for the specific kind of action before us, we added, our task is “to apply the period
10 provided by the applicable” background statutes of limitations. Id. And thus the
11 Terry result was straightforward: because the construction-defect repose provision
12 at issue in Terry gave no specific limitations guidance and because the Terry
13 plaintiffs’ claims were actions for wrongful death and personal injury, we simply
14 applied the legislatively-prescribed periods for wrongful death and personal injury
15 causes of action, much as other courts had done at the time. Id.; see Gaines v.
16 Preterm-Cleveland, Inc., 514 N.E.2d 709, 716 (Ohio 1987) (applying background
17 malpractice limitation period in place of constitutionally problematic medical
18 malpractice provision); McMacken v. State, 320 N.W.2d 131, 139 (S.D. 1982)
19 (applying background personal injury limitation period in place of constitutionally
27
1 problematic construction defect provision), overruled on other grounds by Daugaard
2 v. Baltic Co-op. Bldg. Supply Ass’n, 349 N.W.2d 419 (S.D. 1984); Hunter v. School
3 Dist. of Gale-Ettrick-Trempealeau, 293 N.W.2d 515, 522 (Wis. 1980) (affirming
4 court of appeals decision applying background limitation period in place of more
5 specific period with constitutionally problematic application).
6 {44} In Terry, because both statutory background provisions established limitations
7 periods of three years from the time of accrual and the plaintiffs’ claims had accrued
8 approximately three months before expiration of the ten-year repose period for
9 construction defect claims, application to the plaintiffs’ claims added two years and
10 nine months to the effective limitations period remaining under the construction-
11 defect provision. 1982-NMSC-047, ¶¶ 9, 17. Application of those background
12 statutory provisions had the effect of giving the Terry plaintiffs adequate time to file
13 and the additional effect of treating similarly all prospective plaintiffs for whom
14 actions accrue before the end of the period of repose. While neither effect merited
15 mention in Terry, I suggest the result should guide our analysis today and in the
16 future.
17 {45} In early cases examining the effect of NMSA 1978, Section 41-5-13 (1976),
18 we had no trouble with, and no objection to, application of the basic Terry principles.
19 See, e.g., Garcia ex rel. Garcia v. La Farge, 1995-NMSC-019, ¶¶ 34-37, 119 N.M.
28
1 532, 893 P.2d 428; Crumpton v. Humana, Inc., 1983-NMSC-034, ¶ 5, 99 N.M. 562,
2 661 P.2d 54. In Crumpton, for example, where a cause of action had accrued on the
3 date of alleged malpractice and the plaintiff filed suit more than three years after the
4 date, we marshaled both Section 41-5-13 and the general personal injury limitations
5 period in support of a conclusion the plaintiff’s suit was time-barred. See Crumpton,
6 1983-NMSC-034, ¶ 5. The statutes read in tandem, we concluded, “clearly indicate
7 that the statute of limitations” for purposes of these causes of action “commences
8 running from the date of injury or the date of the alleged malpractice.” Id. (emphasis
9 in original). The most probable reason for application of the general personal injury
10 limitations period was clear: we were reluctant to impose our own background rule
11 in the event Section 41-5-13 could not provide the rule for decision under the
12 circumstances.
13 {46} We revisited the question of the applicable limitations period under Section 41-
14 5-13 again in Garcia, where we explicitly adopted and applied the two-step Terry
15 inquiry for claims arising under the Medical Malpractice Act (MMA), NMSA 1978,
16 § 41-5-1 to -29 (1976, as amended through 2015). See Garcia, 1995-NMSC-019, ¶¶
17 29-37. We observed that Section 41-5-13 incorporates functions of both repose and
18 limitation, much like the construction-defect provision at issue in Terry. Garcia,
19 1995-NMSC-019, ¶ 14. We reiterated that, for purposes of the limitation function,
29
1 the constitutionality of the provision would turn on the reasonableness of the time
2 provided for pursuit of existing causes of action. Id. ¶ 34. Any constitutionally-
3 appropriate limitations period, we noted, “ ‘must proceed on the idea that the party
4 has full opportunity afforded him to try his right in the courts.’ ” Id. ¶ 33 (quoting
5 Wilson v. Iseminger, 185 U.S. 55, 62 (1902)).
6 {47} Faced with a plaintiff in Garcia whose claim accrued eighty-five days before
7 the three-year period expired, we observed, much as we had in Terry, that a statutory
8 provision allowing “an unreasonably short period of time within which to bring an
9 accrued cause of action violates the Due Process Clause of the New Mexico
10 Constitution.” Garcia, 1995-NMSC-019, ¶ 36. That the remaining effective
11 limitations period for various potential claims arising under Section 41-5-13 was
12 unreasonably short was unquestioned because the potentially effective period would
13 have been unreasonably abbreviated for any “claim accruing near the end of the
14 limitations period.” Garcia, 1995-NMSC-019, ¶ 36.
15 {48} Having concluded application of the remaining limitations period under
16 Section 41-5-13 was constitutionally problematic, we turned to the second Terry
17 inquiry of what limitations period should appropriately govern the plaintiff’s claims.
18 Garcia, 1995-NMSC-019, ¶ 37. In answering that question, we relied on Terry
19 exclusively, noting, as we had in Terry, that while a court “may determine that the
30
1 limitations period selected is unreasonably short,” “it is generally a matter for the
2 legislature to establish limitations periods.” Garcia, 1995-NMSC-019, ¶ 37. And
3 because the Legislature had not offered some other specific limitation period in the
4 MMA, we concluded, much as we had in Terry, that the background three-year rule
5 for personal injury actions, running from the date of accrual, would govern the
6 plaintiff’s claims and, as in Terry, would have the effects of adding significant time
7 to the limitation period remaining under the repose provision (approximately two
8 years and ninth months) and treating similarly all claimants for whom causes of
9 action accrue prior to the end of the repose period. Garcia, 1995-NMSC-019, ¶ 37.
10 {49} Our Cummings case came just a year after Garcia, and in Cummings we again
11 explained Section 41-5-13 incorporates functions of both repose and limitation.
12 Cummings v. X-Ray Assocs. of N.M., P.C., 1996-NMSC-035, ¶¶ 47-48, 121 N.M. 821,
13 918 P.2d 1321. And in lieu of explicitly invoking the two-step Terry–Garcia
14 analysis, we explained that the Cummings plaintiff could not benefit from our
15 standard due process-based limitations analysis because she had failed to “exercise
16 diligence when she first learned she had been misinformed about the mass in her
17 lung” by the defendant. Cummings, 1996-NMSC-035, ¶ 57. Our analysis
18 emphasized a lack of diligence. But diligence aside, Cummings can be simply
19 understood as yet another application of the two-step Terry–Garcia analysis. Section
31
1 41-5-13, we concluded, left various potential claimants an unreasonably abbreviated
2 period of time within which to pursue causes of action, and thus Terry and Garcia
3 required that we look to the relevant background rule. Cf. id. ¶ 55 (quoting Garcia,
4 1995-NMSC-019, ¶ 26). The Cummings action was an action for personal injury, and
5 thus the three-year personal injury period applied. See Garcia, 1995-NMSC-019, ¶
6 37. And that was dispositive: because the Cummings action had accrued on February
7 23, 1990, the three-year legislative background rule supplied by the Terry–Garcia
8 analysis would have given the plaintiff until February 23, 1993, to file. But having
9 waited to sue the defendant until December 7, 1993, the plaintiff was too late, at
10 nearly ten months beyond expiration of the background rule. Cummings, 1996-
11 NMSC-035, ¶ 57.
12 {50} Despite the straightforward teachings of Terry, Garcia, and Cummings, and
13 despite decades of legislative acquiescence to those decisions, we got off track in
14 Tomlinson v. George, 2005-NMSC-020, 138 N.M. 34, 116 P.3d 105. Cf. Basic Inc.
15 v. Levinson, 485 U.S. 224, 230-31 (1988) (observing “[j]udicial interpretation and
16 application, legislative acquiescence, and the passage of time have removed any
17 doubt” regarding future application of past interpretive decisions). We avoided
18 legislating in these earlier three cases, and a legislatively-prescribed background rule
19 supplied the appropriate rule for decision in each case. Glossing over that history, we
32
1 pronounced in Tomlinson that Cummings had concluded “that one and one-half years
2 is a constitutionally reasonable period of time within which to file a claim.”
3 Tomlinson, 2005-NMSC-020, ¶ 23. But of course, we put it very differently in
4 Cummings stating that:
5 At that time there was still about a year and a half before the statute of
6 repose on her malpractice claim expired. Nevertheless, she sat on her
7 rights and did not file any claim for more than two years, on July 27,
8 1992. By that time, almost four years had passed since the 1988 act of
9 malpractice. She did not sue X-Ray Associates until December 7, 1993,
10 more than five years after the act. Cummings lost her medical
11 malpractice claim through her own lack of diligence.
12 Cummings, 1996-NMSC-035, ¶ 57 (emphasis added). Why that one and one-half
13 year period received the transposition it did in Tomlinson was and remains
14 unexamined. Regardless, it is sufficient for our purposes today to note we refused to
15 impose our own limitation period in Terry, and in Garcia, and in Cummings, because
16 the statutory background rule had supplied the rule for decision instead. But in
17 Tomlinson, we undid the analyses of those cases and crafted our own rule, concluding
18 “two years and eight months is a constitutionally reasonable period of time within
19 which to file” a claim. 2005-NMSC-020, ¶ 24.
20 {51} Faithful application of the Terry–Garcia analysis would have required the
21 opposite result. The Tomlinson plaintiff’s claim was again one for personal injury,
22 and the three-year personal injury limitation period should have governed, much as
33
1 it had in Terry, 1982-NMSC-047, ¶ 17, in Garcia, 1995-NMSC-019, ¶ 37, and in
2 Crumpton, 1983-NMSC-034, ¶ 5. And application of the legislatively-prescribed
3 three-year period suggests the Tomlinson plaintiff was timely: the claim accrued on
4 December 24, 1996, and she filed an application with the statutorily-created medical
5 review commission, which tolls the running of the limitation period, on December 13,
6 1999. 2005-NMSC-020, ¶¶ 4-5; see NMSA 1978, § 37-1-8 (1976).
7 {52} Two obvious objections to that outcome in Tomlinson would have arisen; both,
8 however, had been asked and answered in our prior cases. Filing outside the three-
9 year window provided by Section 41-5-13 seems at odds with the basic statutory
10 language—but as we noted in Terry and again in Garcia, “considerations of fairness
11 implicit in the Due Process Clauses of the United States and New Mexico
12 Constitutions dictate that when the legislature enacts a limitations period it must
13 allow a reasonable time within which existing or accruing causes of action may be
14 brought.” Garcia, 1995-NMSC-019, ¶ 36; accord Terry, 1982-NMSC-047, ¶¶ 14-15.
15 And two years and eight months may have seemed a generously long period for
16 pursuit of the claim, but the statute itself allows three years for early accruing claims;
17 the background period for personal injury actions allows three years; we had applied
18 the background period before without objection from the Legislature; and as we have
19 repeatedly explained, “it is not a judicial function to set appropriate limitations
34
1 periods.” Terry, 1982-NMSC-047, ¶ 17; see Garcia, 1995-NMSC-019, ¶ 37; accord
2 Feldhake v. City of Santa Fe, 1956-NMSC-079, ¶ 33, 61 N.M. 348, 300 P.2d 934,
3 (“The courts cannot legislate . . . .”).
4 {53} We could reject, narrow, or find another justification for Tomlinson, but my
5 concern here is that the majority’s recap of the case law puts this history aside to
6 Cahn’s great detriment, and this new twelve-month rule entangles and imperils
7 fundamental separation-of-powers jurisprudence. See, e.g., De Graftenreid v. Strong,
8 1922-NMSC-031, ¶ 8, 28 N.M. 91, 206 P. 694 (“Courts cannot read into an act
9 something that is not within the manifest intention of the Legislature, as gathered
10 from the statute itself. To do so would be to legislate . . . .”). Despite the Tomlinson
11 pronouncement regarding Cummings, we have never in this context held, or even
12 concluded, that “eighteen months is a constitutionally reasonable period” for
13 requiring the filing of a claim. Instead, we have asked whether Section 41-5-13
14 provides an unreasonably abbreviated limitation period for various potential claims
15 and, answering that question in the affirmative, we have moved on to the question of
16 what limitation period should govern for claims accruing before Section 41-5-13
17 repose applies. The answer was clear in Garcia, as it was in Crumpton—the
18 legislatively-supplied personal injury limitation period governs those claims where
19 Section 41-5-13 cannot—and it provided the rule of decision for Cummings. The
35
1 answer is just as clear here, and Cahn should benefit from it. Her claim accrued on
2 September 22, 2008, within the Section 41-5-13 period; given the background
3 personal injury provision of three years, she had until September 22, 2011, to file; and
4 she filed against Berryman on July 9, 2010, well within the three-year deadline
5 imposed by the background provision.
6 {54} The twelve-month rule the majority adopts raises two concerns. First, in order
7 to create this new rule, the majority overrules Garcia but does so sua sponte.
8 Majority Op. ¶ 22. Because no party requested that Garcia be overruled and we did
9 not request briefing, we are overturning precedent without the benefit of stare decisis.
10 Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶¶ 33-36 (“Stare decisis is the
11 judicial obligation to follow precedent, and it lies at the very core of the judicial
12 process of interpreting and announcing law” and “[p]articular questions must be
13 considered before overturning precedent.”); see State v. Riley, 2010-NMSC-005, ¶
14 40, 147 N.M. 557, 226 P.3d 656, (Chávez, J., specially concurring, Bosson, J.,
15 concurring in part and dissenting in part, Daniels, J., specially concurring) (explaining
16 stare decisis prevents this Court from overruling precedent where the parties have not
17 briefed and specifically argue the relevant factors to be considered before overturning
18 our precedent). Secondly, creation of a new rule constitutes the kind of legislation
19 we said we could not craft in Terry and Garcia. Thus I would not adopt it here. I
36
1 would also decline to apply the rule retroactively, because we cannot know how
2 Cahn’s pursuit of her claim would have transpired had she known she had more time
3 available as she encountered expiration of the initial limitations period. Instead, I
4 would apply the Terry–Garcia analysis as we have applied it in the past; and having
5 done that, I would reverse the court of appeals decision and reinstate the conditional
6 verdict of the district court.
7 II. The Statutory Architecture
8 {55} Even were we hesitant to apply the legislatively-supplied three-year
9 background rule despite the applications in Terry and Garcia and the ensuing decades
10 of legislative acquiescence, I believe the MMA is designed to obviate the problem
11 that plagued Cahn here. The statutory structure, in other words, suggests claims
12 arising in the posture Cahn’s did here need not be subject to the Section 41-5-13
13 repose.
14 {56} The MMA made various changes to the way our courts process medical
15 negligence claims; among those changes was the addition of the Section 41-5-13
16 repose provision we have given much attention today. The MMA also established a
17 “medical review commission,” the function of which “is to provide panels to review
18 all malpractice claims against health care providers covered by the [MMA].” Section
19 41-5-14(A). After the requisite review, the panel is tasked with deciding “(1) whether
37
1 there is substantial evidence that the acts complained of occurred and that they
2 constitute malpractice; and (2) whether there is a reasonable medical probability that
3 the patient was injured thereby.” Section 41-5-20(A)(1)-(2).
4 {57} This review is required for any claims made against qualifying providers like
5 Berryman; the MMA directs that “[n]o malpractice action may be filed in any court
6 against a qualifying health care provider before application is made to the medical
7 review commission and its decision is rendered.” Section 41-5-15. And the review
8 is substantive. An application by a claimant must contain (1) facts, names, dates, and
9 circumstances, “so far as they are known,” and (2) a statement authorizing “access to
10 all medical and hospital records and information pertaining to the matter.” Id. Health
11 care providers involved have reciprocal obligations—they must “answer the
12 application for review,” and they must “submit a statement authorizing” the reviewing
13 panel “to obtain access to all medical and hospital records and information pertaining
14 to the matter.” Section 41-5-16(B). Eventually, the panel must hold a hearing on the
15 matter; and post-hearing, should the panel conclude it still lacks relevant information
16 for purposes of making the determinations required by statute, the panel “may request
17 that additional facts, records, witnesses or other information be obtained.” Section
18 41-5-19(D). Recognizing the burden this review imposes on the claimant and
19 recognizing the time any review of substance might require, our Legislature built into
38
1 the MMA a tolling provision which directs that “[t]he running of the applicable
2 limitation period” for these professional negligence claims is tolled while the panel
3 gathers information, reviews, and deliberates. Section 41-5-22.
4 {58} The provisions governing this review process are instructive in several ways.
5 The flexibility of the phrase “applicable limitation period” of Section 41-5-22 in the
6 tolling provision and the absence of specific reference to the limitation period of
7 Section 41-5-13 are telling. The Legislature surely knew how to incorporate related
8 provisions by reference, and did so elsewhere in the MMA. See, e.g., Section 41-5-
9 5(A)(2) (making reference to specific provisions in Section 41-5-25). The omission
10 of any mention of Section 41-5-13 in the general language of Section 41-5-22
11 suggests the Legislature may well have understood multiple limitations periods might
12 govern claims brought under the MMA. And the existence of the tolling provision
13 itself reflects a legislative judgment that Section 41-5-13 is not a standard repose
14 provision—repose periods are typically “fixed” and not to “be delayed by estoppel
15 or tolling.” 4 Charles Alan Wright, Arthur A. Miller & Adam N. Steinman, Federal
16 Practice and Procedure § 1056 (4th ed. 2015); see also CTS Corp. v. Waldburger,
17 134 S. Ct. 2175, 2183 (2014).
18 {59} More important still are the MMA’s information-seeking provisions. The basic
19 purposes underlying creation of the commission and review suggest the information-
39
1 seeking provisions were designed to preclude the problem that arose here. The
2 legislative objective in creating these screening panels was, ostensibly, to expedite
3 resolution of claims, with associated goals of reducing the overall costs of processing
4 these claims and promoting judicial efficiency. See Jean A. Macchiaroli, Medical
5 Malpractice Screening Panels: Proposed Model Legislation to Cure Judicial Ills, 58
6 Geo. Wash. L. Rev. 181, 186, 240 (1990) (“[A]ll state legislatures that have created
7 screening panels have done so for essentially identical reasons.”). These panels, in
8 other words, were created to screen, streamline, and filter claims for the parties and
9 the courts. Efficiency across both levels of review—panel and court—was a
10 prominent goal. And these objectives suggest the timeline regarding identification
11 of Berryman here was (1) exceptional, and (2) not likely the kind of timeline our
12 Legislature intended to proscribe in establishing the Section 41-5-13 repose. Once
13 Cahn had timely filed with respect to Lovelace and some of the other providers here,
14 the screening mechanism should typically have identified any individuals
15 involved—the statutory provisions mandate that both parties authorize access to all
16 relevant information, and the panel has an ongoing obligation to seek any information
17 necessary for making its determinations. In most cases, the year-long search for
18 Berryman in discovery should then have been unnecessary; had the panel encountered
19 the same identification difficulty, a case for estoppel or fraudulent concealment might
40
1 have loomed large. And regardless whether those cases could be made, nothing in
2 the statutory provisions suggests the claimant should suffer when the providers and
3 panel fail to satisfy their own identification obligations—the Section 41-5-13 repose
4 is tolled for as long as the screening process takes.
5 {60} One objection to reliance on the statutory scheme for guidance may be that
6 with the exception of Berryman, none of the other providers were covered providers
7 here. The record does not clearly reveal the status of the other providers for us; were
8 it the case they were all uncovered providers, no screening would have been required
9 until Berryman was identified, and Cahn would not have benefitted from the
10 information-producing apparatus of review. But it would be at odds with the goals
11 of both the MMA and review to suggest the scheme is intended to encourage
12 affiliations between entities avoiding the burdens of qualification under the MMA
13 and contracting providers who gain its protections, while at the same time
14 encouraging the basic relational disorganization, dysfunction, and opacity giving rise
15 to the identification problem here. The point, we have said, is to “encourage more
16 physicians to carry” insurance—not to encourage strategic and opaquely drawn
17 relationships with those not carrying insurance. Garcia, 1995-NMSC-019, ¶ 24.
18 {61} Instead, the basic legislative preference for filtering, and for developing the
19 information relevant to, as many of these claims as possible in review suggests a
41
1 legislative understanding that the identification problem and protracted discovery that
2 occurred here should rarely, if ever, arise for qualified providers like Berryman.
3 When those problems do arise and the identification problem is relevant to resolution
4 of the claim, repose is typically tolled. Nothing in the MMA suggests the result
5 should be different for qualified providers when they affiliate with non-qualified
6 providers. Cf. Grantland v. Lea Reg’l Hosp., Inc., 1990-NMSC-076, ¶ 8, 110 N.M.
7 378, 796 P.2d 599 (“If we require claimants to file in district court at the peril of
8 losing their case before the classification of the health care provider is known, then
9 every claim will be filed in district court as a safety precaution, and the purpose
10 behind the [MMA] . . . will be defeated.”).
11 {62} Based on that architecture and based on the stipulation here of absence of any
12 cost concerns arising from potential frivolity, staleness, questions of causation, or
13 difficulties in establishing misdiagnosis based on negligence, I do not believe we
14 should conclude the Section 41-5-13 repose was designed to apply to the
15 circumstances as they arose here. Compare Cummings, 1996-NMSC-035, ¶ 38
16 (justifying application of repose on grounds that “[c]laims could arise long after
17 memories have faded, parties become unavailable, and evidence is lost”).
42
1 III. Due Process and Circumstance-Specific Reasonableness
2 {63} And most importantly, this new twelve-month rule that is to be applied in
3 every case regardless the circumstances (with potential carve-outs for other
4 exceptional scenarios like fraudulent concealment, which Cahn does not press on
5 appeal here), is inconsistent with the longstanding case law establishing that due
6 process protection requires circumstance-specific investigation before we may
7 extinguish a vested right. See, e.g., Terry v. Anderson, 95 U.S. 628, 633 (1877)
8 (considering “all the circumstances”); Wilson v. Iseminger, 185 U.S. at 63 (1902)
9 (“[W]hat is reasonable in a particular case depends upon its particular facts.”); Terry,
10 1982-NMSC-047, ¶ 16 (examining potential application of limitations periods “under
11 these facts”); cf. Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 428 (1965) (“This
12 policy of repose, designed to protect defendants, is frequently outweighed, however,
13 where the interests of justice require vindication of the plaintiff’s rights.”).
14 {64} Any cause of action that has accrued as Sarah Cahn’s has here is a “species of
15 property protected by the Fourteenth Amendment’s Due Process Clause.” Logan v.
16 Zimmerman Brush Co., 455 U.S. 422, 428 (1982). Due process protection, the United
17 States Supreme Court has often explained, generally requires that any deprivation of
18 life, liberty, or property be preceded by notice and an opportunity to be heard in a
19 manner appropriate for “the nature of the case.” Cleveland Bd. of Educ. v.
43
1 Loudermill, 470 U.S. 532, 542 (1985) (citation omitted). In the context of limitations
2 periods, we have explained “that statutes of limitation may be passed where formerly
3 there were none, and existing limitation periods may be reduced while the time is still
4 running,” but due process requires that a “reasonable time” be “left for the institution
5 of an action before it is time-barred.” Terry, 1982-NMSC-047, ¶ 14; accord Sohn v.
6 Waterson, 84 U.S. 596, 599 (1873) (“[I]f an action accrued more than the limited time
7 before the statute was passed a literal interpretation of the statute would have the
8 effect of absolutely barring such action . . . . It will be presumed that such was not
9 the intent of the legislature. Such an intent would be unconstitutional.”). And we
10 have extended application of that rule, imposing it as “an appropriate general
11 restriction on the Legislature’s right to statutorily limit actions”—a right our
12 Legislature has attempted to exercise in Section 41-5-13. Terry, 1982-NMSC-047,
13 ¶ 15.
14 {65} “Reasonable time” in this context has always had an intentionally flexible
15 meaning. The reasonableness determination, the United States Supreme Court long
16 ago observed, must account for “all the circumstances” of a particular case. Terry v.
17 Anderson, 95 U.S. at 633. Reasonableness in any given case, in other words, depends
18 “upon its particular facts.” Id.; see also Terry, 1982-NMSC-047, ¶ 16 (“We hold that
19 such an abbreviated period is unreasonable.”). It has no “fixed content,” and we must
44
1 evaluate it “as the particular situation demands.” U.S. West Commc’ns v. N.M. State
2 Corp. Comm’n (In re 1997 Earnings of U S West Commc’ns, Inc.), 1999-NMSC-016,
3 ¶ 25, 127 N.M. 254, 980 P.2d 37 (citation omitted); accord Anderson Nat. Bank v.
4 Luckett, 321 U.S. 233, 246 (1944) (“What is due process in a procedure affecting
5 property interests must be determined by taking into account the purposes of the
6 procedure and its effect upon the rights asserted and all other circumstances which
7 may render the proceeding appropriate to the nature of the case.”).
8 {66} In the context of the MMA, we have often observed that the due process
9 guarantee requires us to account for all case-specific circumstances; and based on
10 those circumstances, the guarantee may compel us to conclude the MMA’s provisions
11 must yield. See, e.g., Jiron v. Mahlab, 1983-NMSC-022, ¶ 12, 99 N.M. 425, 659 P.2d
12 311 (“[W]here the requirement of first going before the Medical Review Commission
13 causes undue delay prejudicing a plaintiff by the loss of witnesses or parties, the
14 plaintiff is unconstitutionally deprived of his right of access to the courts.”). Due
15 process therefore, ensures that “claimants who make a good-faith attempt to comply
16 with the [MMA]” are “not [to] be deprived of their day in court by placing form
17 above substance.” Grantland, 1990-NMSC-076, ¶ 6; see Otero v. Zouhar, 1985-
18 NMSC-021, ¶ 22, 102 N.M. 482, 697 P.2d 482, overruled by Grantland,
19 1990-NMSC-076 (concluding claimant had failed to comply with strict requirements
45
1 of Act but had done “what might reasonably be expected of a person of ordinary
2 prudence, acting under similar circumstances, who desired to comply with the law”
3 (internal quotation marks and citations omitted)). And thus for purposes of
4 evaluating the MMA’s limitation function, we have explained that “protecting the
5 defendant is a laudatory goal,” but any period imposed “should reflect a policy
6 decision regarding what constitutes an adequate period of time for a person of
7 ordinary diligence to pursue his claim.” Roberts v. Sw. Cmty. Health Servs.,
8 1992-NMSC-042, ¶ 26, 114 N.M. 248, 837 P.2d 442 (internal quotation marks
9 omitted).
10 {67} Our due process reasonableness determination in the limitations context, in
11 other words, has always necessarily incorporated an examination of the claimant’s
12 diligence in pursuing a claim. See Cummings, 1996-NMSC-035, ¶ 57 (“Cummings
13 lost her medical malpractice claim through her own lack of diligence.”). The concept
14 is neither novel nor antiquated—the diligence inquiry has long featured in due
15 process reasonableness determinations and still does. See, e.g., Herron v. Anigbo,
16 897 N.E.2d 444, 449 (Ind. 2008) (“[T]he plaintiff must file before the statute of
17 limitations has run if possible in the exercise of due diligence.”); Tenet Hosps. Ltd.
18 v. Rivera, 445 S.W.3d 698, 703 (Tex. 2014) (“[A]n open courts challenge is a due
19 process complaint and requires the party to use due diligence.”); accord Canadian N.
46
1 Ry. Co. v. Eggen, 252 U.S. 553, 562 (1920) (explaining “power is in the courts . . .
2 to determine the adequacy and reasonableness” of access to courts, and concluding
3 constitutional problem is avoided when claimant “is given free access to them for a
4 length of time reasonably sufficient to enable an ordinarily diligent man to institute
5 proceedings for their protection”). And even in Tomlinson, on which the majority
6 relies today for support for elimination of the case-specific diligence inquiry, we
7 recognized that we accept claims conflicting with the MMA’s provisions “in cases
8 involving peculiar facts . . . and when a good faith effort has been made to comply
9 with the Act.” 2005-NMSC-020, ¶ 22 (internal quotation marks omitted). For this
10 reason, I disagree with the majority that injecting our judgment to decide how much
11 additional time to grant claimants with late accruing action is to adopt statute of time
12 limitations from other jurisdictions. Majority Op ¶¶ 24- 24. And I would answer the
13 question “How much additional time, exactly, is Cahn entitled?” by looking at the
14 specific facts in Cahn’s case.
15 {68} Resolution of the traditional diligence inquiry given Cahn’s facts is
16 straightforward. By September 2008, two years after Cahn had been misdiagnosed
17 by Berryman, she had relocated to Jackson, Wyoming, and she was still none the
18 wiser. On September 19, 2008, she underwent an annual pap smear and discussed her
19 chronic pelvic pain with a new Wyoming doctor. A copy of her original radiology
47
1 report was sent to the new physician’s office, and she was promptly scheduled for a
2 CT scan on September 22, 2008, three days after her initial visit. Her new scan
3 revealed “extensive abnormality in the pelvis,” which was characterized as “highly
4 suspicious for an ovarian malignancy.” In the next few weeks, she traveled from
5 Wyoming to New York’s Memorial Sloan-Kettering Cancer Center for confirmation
6 of the diagnosis and underwent extensive surgery soon after. Her diagnosis was
7 “metastatic serous borderline tumor of the ovary,” and because the tumor had been
8 incorrectly diagnosed at initial discovery, the cancer had progressed from stage I to
9 stage IIIC, substantially decreasing her chances of remedy. On October 15, 2008, she
10 underwent a total abdominal hysterectomy, a bilateral salpingo-oophorectomy, a
11 pelvic and para-aortic node dissection omentectomy, and she was fitted with an
12 intraperitoneal catheter. She remained in New York under the care of her parents for
13 approximately eight months.
14 {69} Quickly recognizing she had been misdiagnosed, Cahn went to work—as she
15 recuperated in New York—to uncover the identity of Berryman, who had made the
16 error two years earlier. Within twelve days of that massive corrective surgery on
17 October 15, she was sending records requests. Between October 27, 2008, and
18 November 3, 2008, she sent at least eight requests for information to Lovelace
19 Women’s Hospital, Lovelace Westside Hospital, and ABQ Health Partners, in pursuit
48
1 of Berryman’s name. None of the records she received in response made note of her
2 August 2006 visit or Berryman’s identity.
3 {70} In the next month, sensing she might have a viable malpractice claim, she
4 retained—again from New York—Albuquerque counsel to assist with development
5 of what at that point could only have appeared a complex case. She indicated to her
6 Albuquerque attorneys she thought she remembered the date of the relevant 2006
7 appointment with Berryman, but she could not remember his name. Cahn’s attorneys
8 investigated the records she had already received in response to her initial requests,
9 and they sought to supplement the information over the next two months with new
10 requests to all three participating facilities for Cahn’s “complete medical chart” and
11 any applicable itemized billing statements covering the period from May 17, 2006,
12 through the time of the requests. All told, Cahn and her attorneys sent the provider
13 entities at least sixteen distinct records requests. Eventually, as a result of her
14 investigation, Cahn discovered she had been assigned three separate medical records
15 numbers in the Lovelace Sandia Health System, which was highly unusual for
16 Lovelace patients; nonetheless, Berryman remained unnamed.
17 {71} Due at least in part to that unorthodox recordkeeping, Berryman’s identity
18 remained a mystery to Cahn and her counsel despite several months of active
19 investigation. Recognizing the Section 41-5-13 limitation period was nearing an end,
49
1 Cahn, on April 10, 2009, timely filed a district court action, naming the various
2 provider identities she had been able to uncover and adding a placeholder physician
3 John Doe defendant until Berryman could be identified. Cahn’s attorneys actively
4 continued to seek Berryman’s identity in the district court proceeding—but discovery,
5 experience shows, is rarely quick or clean. Finally, discovery responses received on
6 July 1, 2010 revealed Berryman’s name. Days later, on July 6, 2010, Cahn, noting
7 the long and protracted “concerted efforts” she had made to uncover Berryman’s
8 identity, sought to amend her complaint to add Berryman in place of the Doe
9 defendant. The district court, finding Cahn’s contentions “well taken,” granted her
10 leave, and on July 9, 2010 Cahn filed her amended complaint naming Dr. Berryman.
11 Berryman then moved for summary judgment on the ground Cahn’s amended
12 complaint was untimely under Section 41-5-13. But the district court, having
13 reviewed this extensive history of Cahn’s case, explained our due process case law
14 compelled a conclusion that the Section 41-5-13 period could not bar her claims, and
15 denied the motion.
16 {72} That record is sufficient to establish Cahn’s diligence, and it is thus sufficient
17 to allow us to conclude, as the district court did, that any period shorter than the
18 twenty-one months that elapsed between accrual and filing with respect to Berryman
19 would have been unreasonably abbreviated under the circumstances. This was not
50
1 a case where Cahn “sat on her rights” and failed to “file any claim for more than two
2 years.” Cummings, 1996-NMSC-035, ¶ 57. And it was clearly not a case where she
3 “knew of her cause of action and had over two years and eight months during the
4 statutory period in which to file her claim.” Tomlinson, 2005-NMSC-020, ¶ 28.
5 Because it is important to compare the majority rule to Cahn’s timeline, I also
6 include a pictorial representation at the end of my dissent as appendix B.
7 {73} Even Berryman concedes the timeline here may be attributable largely to
8 Lovelace; in that case, he asks only that he not be “deprived” of a “substantive right”
9 based on Lovelace’s wrongdoing. Whether that argument should prevail may be a
10 question worth revisiting—regardless, it should have no bearing on the diligence
11 determination. See, e.g., Campbell v. Holt, 115 U.S. 620, 629 (1885) (“We can see
12 no right which the promisor has in the law which permits him to plead lapse of time
13 instead of payment . . . .”). And I note that the majority declines, as do I, as did the
14 district court, to reach the conclusion Cahn “lost her medical malpractice claim
15 through her own lack of diligence.” Cummings, 1996-NMSC-035, ¶ 57.
16 {74} So why legislate a new statute of repose of one year? Especially as Justice
17 Chávez states in his special concurrence, “difficulty in identifying which doctor
18 provided treatment” . . . he “cannot agree that in all cases twelve months will be
19 constitutionally adequate.” I submit that this is exactly that case and would hold that
51
1 the ten and one-half months left before the statute of repose expired, was not a
2 reasonable time for Cahn to bring her cause of action. Accordingly, I would not
3 apply the majority’s rule here, and I would not apply it as an unflinching rule in any
4 case where, as here, the United States and New Mexico Constitutions require that we
5 consider a case’s particular facts.
6 IV. Other Constitutional Concerns
7 {75} In addition to the due process concerns it raises, the twelve-month rule gives
8 rise to a host of additional constitutional questions. See, e.g., Restatement (Second)
9 of Torts § 899 cmt. g (Am. Law Inst. 1979) (“The statutory period in [statutes of
10 repose] is usually longer than that for the regular statute of limitations, but, depending
11 upon the designated event starting the running of the statute, it may have run before
12 a cause of action came fully into existence. This may well raise constitutional
13 problems.”). We have addressed some of the constitutional questions before, and we
14 have generally concluded (1) the repose provision is subject to rational-basis review,
15 and (2) the provision was a reasonable response to the “perceived medical
16 malpractice crisis” of the 1970s. Cummings, 1996-NMSC-035, ¶ 40 (emphasis in
17 original).
18 {76} Justice Chávez’s special concurrence highlights those constitutional
19 conclusions we made in Cummings and suggests those conclusions must govern the
52
1 outcome here. But several considerations leave me unconvinced. First, we came to
2 those conclusions at a time when our Garcia analysis allowed us to address
3 potentially unconstitutional applications case by case, and that opportunity for
4 remediation has vanished with the advent of today’s rule.
5 {77} Second, the due process challenge at issue in Cummings was one of
6 “fundamental right of access to the courts.” Cummings, 1996-NMSC-035, ¶ 33. Our
7 analysis of that claim was straightforward: we explained that “[a] plaintiff has no
8 expectancy of a cause of action that has been legitimately denied by the legislature
9 before it accrues.” Id. And analyzing a cause of action accruing after the statutory
10 period has expired, we added that “where there is no cause of action, a plaintiff
11 cannot claim they have been denied access to the courts.” Id. In other words, we
12 concluded, “no right has accrued,” and thus there was no need to further examine the
13 challenge. Id. But here, as I have explained, the posture is quite
14 different—everybody agrees Cahn’s cause of action had accrued before repose set in,
15 and nobody disputes that a cause of action that has accrued constitutes a species of
16 property entitled to due process protection not given significant attention in
17 Cummings. See Logan v. Zimmerman Brush Co., 455 U.S. at 428 (1982); accord
18 Cummings, 1996-NMSC-035, ¶ 33 (“Since no right has accrued, it is moot to question
19 whether there has been a denial of a fundamental right to vindicate that right in
53
1 court.”). That basic due process difference suggests the constitutional analysis may
2 be quite different for plaintiffs whose claims accrue before the statutory period has
3 run than for those whose claims accrue later—but that question is clearly not before
4 us today.
5 {78} Third and finally, Cummings featured only limited analysis regarding the
6 specific variant of equal protection challenge that might allow the plaintiff with the
7 latent injury (and thus a late-accruing claim) to prevail, and it is not clear why we
8 addressed that equal protection question in the first instance, given our conclusion the
9 injury had not been latent. See Cummings, 1996-NMSC-035, ¶ 57 (explaining “there
10 was still about a year and a half before the statute of repose” expired after plaintiff
11 had discovered injury). Had the facts been different and actually given rise to the
12 equal protection claim, perhaps our conclusion would have been different, and
13 perhaps that would have rendered moot any concerns that our due process case law
14 requires a different analysis for a plaintiff whose claim accrues before the statutory
15 period expires. As at least one commentator has observed, “every court that has
16 spoken with any clarity on the issue has ultimately concluded that victims of
17 misdiagnosis of diseases with long latency periods” may well be subject to, and
18 benefit from, a different analysis. See Peter Zablotsky, From a Whimper to a Bang:
19 The Trend Toward Finding Occurrence Based Statutes of Limitations Governing
54
1 Negligent Misdiagnosis of Diseases With Long Latency Periods Unconstitutional,
2 103 Dick. L. Rev. 455, 495 (1999). Those courts have frequently found
3 unconstitutional deprivation for the plaintiff in the long latency scenario, on equal
4 protection grounds, on due process grounds, and on related state constitutional
5 grounds. Id. But as I have noted, those questions are not before us today, and we
6 need not address them here.
7 {79} Instead, I note more generally that numerous courts have found constitutional
8 challenges compelling in the medical malpractice context, and it may be that future
9 application of today’s rule requires us to revisit some of these arguments and their
10 applications. See generally Zablotsky, 103 Dick. L. Rev. 455; see also, e.g.,
11 McCollum v. Sisters of Charity of Nazareth Health Corp., 799 S.W.2d 15, 19 (Ky.
12 1990) (“While there may be certain salutary effects from limiting to five years the
13 period in which suits can be brought, these cannot outweigh a plaintiff’s
14 constitutional right to have his or her day in court.”); Lee v. Gaufin, 867 P.2d 572,
15 587 (Utah 1993) (“[T]he dominant causes of increased health-care costs were factors
16 other than increased malpractice insurance premiums.”); DeYoung v. Providence
17 Med. Ctr., 960 P.2d 919, 924 (Wash. 1998) (en banc) (“Plaintiff next contends that
18 the classification of medical malpractice claims which are subject to the eight-year
19 statute of repose does not bear a rational relationship to the purpose of the statute.
55
1 We agree.”); cf. Pickett v. Brown, 462 U.S. 1, 18 (1983) (concluding two-year
2 limitations period was “not substantially related to the legitimate state interest in
3 preventing the litigation of stale or fraudulent claims”).
4 {80} But our case law suggests the better course is to steer clear of these
5 constitutional shoals—“we must construe a statute . . . so as to avoid not only the
6 conclusion that it is unconstitutional, but also grave doubts upon that score.” State
7 v. Pangaea Cinema, LLC, 2013-NMSC-044, ¶ 23, 310 P.3d 604 (internal quotation
8 marks and citation omitted). Because Terry and Garcia have given us a longstanding
9 rule for decision here that obviates at least some of the relevant constitutional
10 concerns, I cannot conclude we have good reason to adopt the majority rule today and
11 embark on a new and uncharted constitutional collision course.
12 V. Conclusion
13 {81} It may be simple to impose rigid time restrictions for claims that accrue within
14 the three-year statute of repose to eliminate the legal wrangling that is present with
15 the complexity of these types of cases. But it is inconsistent with the spirit of due
16 process to take this simple route. We must consider time, place, circumstances, and
17 many other factors in the pursuit of fundamental fairness, despite how nebulous the
18 concept may be. A fact-based approach would provide the fairness the Due Process
19 Clause seeks to protect, while also changing the focus of the legal analysis to whether
56
1 a plaintiff was sufficiently diligent. Accordingly, I would not apply the majority’s
2 rule here, and I would not apply it as an unflinching rule in any case where, as here,
3 the United States and New Mexico Constitutions require that we consider a case’s
4 particular facts. I respectfully dissent.
5 ___________________________________
6 PETRA JIMENEZ MAES, Justice
57
58
Appendix B
59
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