Baer v. Regents of University of California

• Decision Date: 08 September 1994
• Docket Number: No. 14774,14774
• Citation: 884 P.2d 841,1994 NMCA 124,118 N.M. 685
• Parties: , 95 Ed. Law Rep. 730 Jo BAER, Personal Representative of the Estate of Helmut W. Baer, Deceased, Plaintiff-Appellant, v. REGENTS OF the UNIVERSITY OF CALIFORNIA and Jerry Williams, M.D., Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 841

884 P.2d 841

118 N.M. 685, 95 Ed. Law Rep. 730

Jo BAER, Personal Representative of the Estate of Helmut W Baer, Deceased, Plaintiff-Appellant, v. REGENTS OF the UNIVERSITY OF CALIFORNIA and Jerry Williams M.D., Defendants-Appellees.

No. 14774.

Court of Appeals of New Mexico.

Sept. 8, 1994.

[118 N.M. 686] Ray Tabet, Ray Tabet Law Offices, Albuquerque, for plaintiff-appellant.

Bradford C. Berge, David B. Lawrenz, Campbell, Carr, Berge & Sheridan, P.A., Santa Fe, for defendants-appellees.

OPINION

ALARID, Judge.

This appeal concerns a claim for wrongful death as a result of medical malpractice. The district court granted summary judgment in favor of Defendants, and Plaintiff appeals. The dispositive issue is whether a legally recognizable duty exists between a health care provider and an examinee in situations in which employees are required to undergo physical examinations as a condition of obtaining or retaining employment. For the reasons explained below, we hold such a duty does exist. We therefore reverse the summary judgment granted Defendant Regents of the University of California (Regents) as employer of James Pederson (Pederson), the physician's assistant who examined Plaintiff's decedent. However, we affirm the summary judgment granted Defendant Dr. Williams because Plaintiff's cause of action against him is barred by the statute of limitations.

BACKGROUND AND FACTS

Plaintiff's husband, decedent Helmut W. Baer, was a physicist who worked at Los Alamos National Laboratory from 1978 until his death in 1991. Regents conduct business in New Mexico and operate the Los Alamos National Laboratory (LANL) under contract with the Department of Energy. Dr. Williams was at all times material to this cause of action a physician employed by LANL. As part of the regular employment practice at LANL, Mr. Baer was required to undergo periodic physical examinations.

During his 1985 examination, chest x-rays revealed an abnormality in the right lung. Dr. Williams discussed the x-ray findings with Mr. Baer and indicated that the abnormal result should be pursued through his private physician. Mr. Baer's private physician conducted follow-up examinations, supplementary testing, and referred results to a third physician for additional interpretation. A little over one year later, subsequent to a December 1986 follow-up examination, Mr. Baer's private physician interpreted the lesion as benign, but recommended that it continue to be tracked in one year's time.

Apparently Mr. Baer failed to follow this recommendation because he was next examined at LANL by Dr. Williams in March 1988 as part of his regular employment. At that time, additional chest x-rays were taken and Dr. Williams once again recommended that Mr. Baer return to his private physician "for one more follow-up visit at which time comparison can be made between his current and previous x-ray studies." Mr. Baer did not, however, follow up with his private physician and was next examined at LANL during the course of his regular employment by Pederson, in July 1989.

During this examination, no chest x-rays were taken, and conflicting evidence makes uncertain whether Pederson was aware of Mr. Baer's chest condition. In any event, he was not x-rayed, and in July 1990 Mr. Baer was diagnosed by his private physician as having large cell carcinoma. He died in October 1991 after receiving medical treatment. Thereafter, in February 1992, Plaintiff initiated this lawsuit as the personal representative of the estate of Mr. Baer. Her complaint alleged, among other things, that Mr. Baer's private physician, as well as Dr. Williams "and other medical personnel at LANL" departed from the standard of knowledge, skill, and care in failing to diagnose a nodule in the lungs of Mr. Baer as being cancerous.

After Mr. Baer's private physician was granted summary judgment, the remaining defendants responded to Plaintiff's complaint by also moving for summary judgment on the basis that the action was time-barred and that no physician-patient relationship existed between Mr. Baer and Dr. Williams or any of the other medical personnel at LANL. The district court initially denied that motion, but later granted it following the filing of a motion for reconsideration. In the memorandum opinion announcing its decision, the district court held that the motion for summary judgment was proper because (1) Plaintiff's complaint had been filed more than three years after the time Dr. Williams last examined Mr. Baer; and (2) no physician-patient relationship existed between Mr. Baer and Dr. Williams or LANL. Plaintiff appeals that decision to this Court.

DISCUSSION

Standard of Review

Summary judgment is proper if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Koenig v. Perez, 104 N.M. 664, 665, 726 P.2d 341, 342 (1986). The initial burden is on the movant to make a prima facie showing of the absence of any genuine material factual issues. Romero v. Ole Tires, Inc., 101 N.M. 759, 761, 688 P.2d 1263, 1265 (Ct.App.1984). Upon the movant making a prima facie showing, the burden shifts to the party opposing the motion to demonstrate the existence of specific evidentiary facts which would require a trial on the merits. Dow v. Chilili Coop. Ass'n, 105 N.M 52, 54, 728 P.2d 462, 464 (1986). "On review, we consider the whole record for evidence that puts a material fact at issue." Roth v. Thompson, 113 N.M. 331, 335, 825 P.2d 1241, 1245 (1992). All reasonable inferences that may be drawn from the matters presented to the court must be resolved in favor of the party opposing the motion. Gonzalez v. Gonzalez, 103 N.M. 157, 164, 703 P.2d 934, 941 (Ct.App.1985).

The Medical Malpractice Act Statute of Limitations

As an initial matter, we consider the impact of the Medical Malpractice Act statute of limitations on this appeal. See NMSA 1978, Sec. 41-5-13 (Repl.Pamp.1989). As explained in Roberts v. Southwest Community Health Services, 114 N.M. 248, 250, 837 P.2d 442, 444 (1992), "the statute of limitations begins to run on the date that the malpractice occurred and expires three years from that date." Plaintiff concedes that Dr. Williams last examined Mr. Baer in March 1988, more than three years before the filing of the complaint. Nonetheless, Plaintiff argues that her complaint against Dr. Williams is not time-barred because Dr. Williams had a continuing duty to provide follow-up care which extended the statute of limitations period. As support, Plaintiff lists expert witness testimony and evidence contained in an affidavit.

However, Plaintiff recognizes that Dr. Williams was not Mr. Baer's private physician. Thus, the duty Plaintiff asserts Dr. Williams breached is created as a result of Dr. Williams' position as an employee of LANL. Therefore, Plaintiff's cause of action is ultimately against Regents as the employer or master, and not against Dr. Williams. Given the Medical Malpractice Act's statute of limitations period, we have little trouble setting aside Plaintiff's continuous duty argument and affirming the district court's summary judgment in favor of Dr. Williams. Dr. Williams' last examination of Mr. Baer was well outside of, and therefore, was barred by, the statute of limitations. Except for the recognized tolling exceptions to the statute of limitations rule, we decline to extend the aberrations in the period of time in which to file medical malpractice causes of action. See Sec. 41-5-13 ("a minor under the full age of six years shall have until his ninth birthday in which to file"); NMSA 1978, Sec. 41-5-22 (Repl.Pamp.1989) (the running of the statute of limitations shall be tolled upon submission of the case to the medical review commission); see also Keithley v. St. Joseph's Hosp., 102 N.M. 565, 569, 698 P.2d 435, 439 (Ct.App.1984) ("the statute of limitations may be tolled where a physician has knowledge of facts relating to medical malpractice and fails to disclose such facts"), certs. quashed, 102 N.M. 565, 698 P.2d 435 (1985).

Plaintiff's remaining claim is, therefore, against Pederson as an employee of LANL. As all parties concede, Pederson's July 1989 examination of Mr. Baer occurred within the period of time allowed for by the statute of limitations in relation to the filing of the complaint. It is the legal consequences of this remaining issue which we must now consider and which controls the outcome of this action. On appeal, the issue can be phrased as: Did Pederson owe Mr. Baer a duty recognized by law when performing the periodic physical examination on behalf of Regents?

Question of Duty

It is well established in New Mexico that:

In order to prove medical malpractice, a plaintiff has the burden of showing that (1) the defendant owed the plaintiff a duty recognized by law; (2) the defendant breached the duty by departing from the proper standard of medical practice recognized in the community; and (3) the acts or omissions complained of proximately caused the plaintiff's injuries.

Blauwkamp v. University of N.M. Hosp., 114 N.M. 228, 231, 836 P.2d 1249, 1252 (Ct.App.), cert. denied, 114 N.M. 82, 835 P.2d 80 (1992); see SCRA 1986, 13-1101 (Repl.1991); see also Schmidt v. St. Joseph's Hosp., 105 N.M. 681, 683, 736 P.2d 135, 137 (Ct.App.1987); Smith v. Klebanoff, 84 N.M. 50, 53-54, 499 P.2d 368, 371-72 (Ct.App.), cert. denied, 84 N.M. 37, 499 P.2d 355 (1972). "A defendant seeking summary judgment in a medical malpractice action bears the initial burden of negating at least one of the essential elements upon which the plaintiff's claims are grounded." Blauwkamp, 114 N.M. at 231, 836 P.2d at 1252.

Defendants explain that the lack of a physician-patient relationship requires affirming the district court's granting of summary judgment in favor of Regents. However, to be more precise, the essence of Defendants' argument is actually whether periodic examinations conducted and paid for by an...