Cahn v. Berryman

• Decision Date: 30 April 2015
• Docket Number: 33,087.,No. 35,302.,35,302.
• Citation: 355 P.3d 58
• Parties: Sara CAHN, Plaintiff–Appellee, v. John D. BERRYMAN, M.D., Defendant–Appellant.
• Court: Court of Appeals of New Mexico

355 P.3d 58

Sara CAHN, Plaintiff–Appellee

v.John D. BERRYMAN, M.D., Defendant–Appellant.

33,087.

No. 35,302.

Court of Appeals of New Mexico.

April 30, 2015.

Certiorari Granted, July 17, 2015,

Law Offices of Felicia C. Weingartner, P.C., Felicia C. Weingartner, Terry M. Word, P.C., Terry M. Word, Law Office of Cid D. Lopez LLC, Cid D. Lopez, Carmela D. Starace, Albuquerque, NM, for Appellee.

Hinkle, Hensley, Shanor & Martin, LLP, William P. Slattery, Dana S. Hardy, Santa Fe, NM, Butt Thornton & Baehr PC, Emily A. Franke, Albuquerque, NM, for Appellant.

OPINION

VIGIL, Chief Judge.

{1} This is a medical malpractice action against a qualified healthcare provider under the Medical Malpractice Act, NMSA 1978, §§ 41–5–1 to –29 (1976, as amended through 2008). When Plaintiff learned she had a malpractice claim against Defendant, ten and one-half months remained under the Act's three-year statute of repose to sue Defendant. Section 41–5–13. The question posed is whether this was a constitutionally reasonable period of time for Plaintiff to file her lawsuit against Defendant. Because we conclude that, consistent with due process, Plaintiff had a reasonable period of time to sue Defendant, and Defendant was not named until eleven months after the statute of repose expired, Plaintiff's suit against Defendant is barred. The district court having ruled otherwise, we reverse.

BACKGROUND

{2} On May 17, 2006, Plaintiff, Sara Cahn, went to the emergency room of Lovelace Women's Hospital complaining of abdominal and pelvic pain. Plaintiff received a pelvic ultrasound on May 19, 2006, at Lovelace West Mesa Medical Center, and the ultrasound report stated that there was a complex mass on Plaintiff's left ovary and noted that “[a] malignancy need[ed] to be excluded.” Plaintiff was twenty-seven years old.

{3} The one and only time Plaintiff was seen by Defendant, Dr. Berryman, was on August 8, 2006, to review the ultrasound report that Plaintiff hand carried to the appointment and gave to Defendant. Defendant did not disclose to Plaintiff the findings contained in the ultrasound report. Instead, Defendant examined Plaintiff and diagnosed her with endometriosis

and prescribed approximately three months of suppressive therapy (contraceptive patches) to treat her symptoms.

{4} Plaintiff used her debit card to pay the $30 co-payment to Sandia OB/GYN, Defendant's employer, and Plaintiff's insurer, Lovelace Health Plan, mailed her an Explanation of Benefits (EOB) form dated August 23, 2006, which identified Defendant as the doctor Plaintiff saw on August 8, 2006. The EOB form was mailed to an address where Plaintiff no longer lived, but her mail was being forwarded to where she was living.

{5} Plaintiff moved to Wyoming and saw Dr. Mary Girling on September 22, 2008, for continuing abdominal pain. Dr. Girling reviewed the May 19, 2006, ultrasound report, and told Plaintiff of the ultrasound findings. Plaintiff now knew she had a medical malpractice claim against Defendant. Further tests confirmed Plaintiff had ovarian cancer

, and over the next three and one-half months, Plaintiff underwent surgery and treatment in New York and Boston, which included a total hysterectomy to remove her uterus and ovaries. Plaintiff hired counsel in December 2008 to pursue her malpractice claim against Defendant.

{6} Plaintiff did not know Defendant's name. Despite Plaintiff's efforts and those of her attorneys, which we describe in more detail below, Plaintiff first learned of his name after requesting complete copies of her insurer's EOB forms after the statute of repose expired in June or July 2010. In response to the request, an EOB form was produced on July 1, 2010, showing that Defendant, as an employee of Sandia OB/GYN, saw Plaintiff on August 8, 2006. Plaintiff's bank statements, which Plaintiff had not reviewed until the EOB form was produced, revealed the $30 transaction payable to Defendant's employer, Sandia OB/GYN, in August 2006. At all times, Plaintiff had used the checking account and had access to her online bank statements. Plaintiff also gave a deposition on June 3, 2010, after the statute of repose expired, describing where Defendant's office was located, but Plaintiff never went to that location to ascertain Defendant's name. Thus, Plaintiff had ten and one-half months from the date that she discovered she had a malpractice claim against Defendant to learn of his name. However, it was not until eleven months after the three-year statute of repose expired that Plaintiff discovered Defendant's identity. And she discovered it using information which was available to Plaintiff from the time Plaintiff first learned she had a malpractice claim against Defendant.

{7} These facts notwithstanding, Plaintiff asserts that her diligence in attempting to learn of Defendant's name “was thwarted by a confusing medical record system that prevented her from identifying a doctor that for all practical purposes appeared to be a Lovelace provider[,]” and Plaintiff admits that “her inadvertent mistake was assuming that she was looking for a Lovelace doctor.” Plaintiff's confusion was understandable.

{8} At the pertinent time, Lovelace Health System, Inc. (Lovelace), which was previously called Lovelace Sandia Health System, was a licensed healthcare provider composed of several hospitals and medical centers, and Plaintiff was insured by Lovelace Health Plan. Plaintiff originally went to the emergency room at Lovelace Women's Hospital, which was part of Lovelace, and the pelvic ultrasound was performed at Lovelace West Mesa Medical Center, which was also part of Lovelace. Plaintiff's original appointment to discuss the ultrasound report was with a doctor at Lovelace Women's Hospital, but it was cancelled, and when Plaintiff called Lovelace Women's Hospital to reschedule the appointment, Lovelace Women's Hospital provided her with Defendant's name. Defendant saw Plaintiff in an office located in the Lovelace Women's Hospital Building. Defendant, however, was not a Lovelace doctor. He was employed by Sandia OB/GYN, a separate entity owned and operated by Dr. Carl Conners, in the Lovelace Women's Hospital building.

{9} Plaintiff attempted to collect her medical records from Lovelace to identify the doctors that treated her. She undertook these efforts from September through November 2008, while undergoing treatment and recovery from the cancer

. Plaintiff sent eight letters requesting her records from Lovelace Women's Health, Lovelace Westside Hospital, and Lovelace Women's Health/ABQ Health Partners. Believing she visited the doctor only one or two months after the ultrasound, Plaintiff requested Lovelace Health Plan EOB records for May, June, and July 2006, but not August 2006. None of the records reflected Plaintiff's August 8, 2006, visit or the name of the doctor that examined her.

{10} Plaintiff also called Lovelace Women's Hospital and talked to an employee about the missing record. The Lovelace employee reviewed Plaintiff's records and confirmed there was no record of the August 8, 2006, visit. Plaintiff also described Dr. Berryman, and the employee volunteered that it might be another doctor. The Lovelace employee checked that doctor's records, but there was no record of Plaintiff's visit.

{11} Plaintiff's counsel, retained in December 2008, also proceeded to collect Plaintiff's medical records from Lovelace entities. Plaintiff's counsel sent requests to Lovelace Westside OB/GYN, Lovelace Women's Hospital, Lovelace Westside Hospital, and Lovelace Sandia Health System physician billing and business office in December 2008 and January 2009. Plaintiff's counsel also contacted contractors that have records and billing information directly related to Lovelace. Plaintiff's counsel requested medical charts and itemized billings from May 17, 2006, until February 4, 2011. None of the documents received included Plaintiff's August 8, 2006, visit with Dr. Berryman.

{12} Plaintiff filed her complaint on April 10, 2009, naming Lovelace, five doctors employed by Lovelace, and “John Doe” as defendants. “John Doe” was identified as “a physician who [may have] provided care to [Plaintiff] whose identity cannot be ascertained at this time[.]” Fourteen months later in June 2010, Plaintiff subsequently filed a discovery request for all her EOB records from Lovelace Health Plan. Those records, which Plaintiff received on July 1, 2010, disclosed Defendant's name, and Plaintiff filed an amended complaint on July 9, 2010, naming Defendant and Sandia OB/GYN as Defendants. Defendant did not know of the litigation until July 16, 2010, when he was served.

{13} Defendant moved for summary judgment, arguing that the three-year statute of repose expired on August 8, 2009, barring Plaintiff's claim. The district court denied the motion, ruling that the three-year time bar “violates Plaintiff's substantive due process rights under the United States Constitution and New Mexico Constitution[.]” Following additional discovery, Defendant filed a motion to reconsider, which the district court denied.

{14} The parties then entered into a stipulated conditional directed verdict, which was approved by the district court. Therein, the parties agreed and stipulated that if the three-year statute of repose bars Plaintiff's claims against Defendant, she cannot recover, but if Plaintiff's claims are not time-barred, Defendant is liable to Plaintiff on her claims of medical malpractice. The parties further stipulated and agreed to entry of a directed verdict against Defendant in the amount of $700,000, plus interest, subject to Defendant's right to appeal the district court order that the three-year statute of repose violates Plaintiff's right to substantive due process. The district court filed the stipulated judgment, and Defendant appeals. See Kysar v. BP Am. Prod. Co., 2012–NMCA–036, ¶ 17, 273 P.3d 867 (concluding that an appeal will lie from a stipulated conditional judgment when specific conditions are satisfied...