Cahn v. Berryman

• Decision Date: 20 November 2017
• Docket Number: NO. S-1-SC-35302,S-1-SC-35302
• Citation: 408 P.3d 1012
• Parties: Sara CAHN, Plaintiff-Petitioner, v. John D. BERRYMAN, M.D., Defendant-Respondent.
• Court: New Mexico Supreme Court

408 P.3d 1012

Sara CAHN, Plaintiff-Petitioner,

v.John D. BERRYMAN, M.D., Defendant-Respondent.

NO. S-1-SC-35302

Supreme Court of New Mexico.

Filing Date: November 20, 2017

Law Offices of Felicia C. Weingartner, Felicia C. Weingartner, Albuquerque, NM, Law Office of Cid D. Lopez, LLC, Cid Dagward Lopez, Albuquerque, NM, Carmela D. Starace, Albuquerque, NM, for Petitioner.

Butt, Thornton & Baehr, P.C., Emily A. Franke, Albuquerque, NM, Hinkle Shanor LLP, William P. Slattery, Dana Simmons Hardy, Santa Fe, NM, for Respondent.

NAKAMURA, Chief Justice.

{1} The Medical Malpractice Act (MMA), NMSA 1978, §§ 41-5-1 to -29 (1976, as amended through 2015) forecloses any cause of action that does not accrue within three years of the act of malpractice. See § 41-5-13. In this case, we clarify the contours of the due process exception to this limitation and hold that plaintiffs with late-accruing medical malpractice claims, i.e., claims accruing in the last twelve months of the three-year repose period, shall have twelve months from the time of accrual to commence suit.

{2} Petitioner Sara Cahn invoked the due process exception but did not file her late-accruing medical malpractice claim against Respondent John D. Berryman, M.D., within twelve months. Twenty-one months elapsed between the accrual date of Cahn's claim against Dr. Berryman and the date she filed suit against him. Thus, her claim is barred by Section 41-5-13. We affirm the Court of Appeals and write to clarify the legal principles upon which our decision is based.

I. BACKGROUND

{3} In 2006, Cahn sought treatment for pelvic pain at Lovelace Women's Hospital in Albuquerque. In May 2006, Cahn received a pelvic ultrasound. The ultrasound report indicated that there was a complex mass on Cahn's left ovary and noted that "[a] malignancy need[ed] to be excluded."

{4} On August 8, 2006, Cahn consulted Dr. Berryman. This was Dr. Berryman's only appointment with Cahn. At that time, Dr. Berryman worked for Sandia OB/GYN Associates, P.C., in an office located in the Lovelace Women's Hospital medical complex. Dr. Berryman reviewed the ultrasound report, but did not schedule a biopsy. Rather, he examined Cahn, diagnosed her as having endometriosis

, and provided her with medication for that condition intending that she return to his office for a follow-up visit. Contrary to Dr. Berryman's intention, Cahn never returned for follow-up care.

{5} On September 22, 2008, while seeing an OB/GYN in Wyoming for her continuing pelvic pain, Cahn learned that Dr. Berryman had failed to inform her of the mass on her left ovary. Further tests revealed that Cahn had ovarian cancer

, and on October 15, 2008, she underwent a hysterectomy in New York.

{6} After surgery, Cahn set out to sue Lovelace Health System, Inc., (LHS) and her doctors. She could not, however, remember Dr. Berryman's name or precisely when he treated her. Cahn took steps to discover Dr. Berryman's name and the date of her consultation with him. She submitted record requests to various Lovelace health care provider entities and other medical providers in Albuquerque, called one Lovelace entity, and requested explanation of benefits forms from her health insurer. But the documents and information she received in response did not identify Dr. Berryman. After Cahn retained counsel, additional record requests were submitted by counsel on Cahn's behalf to various Lovelace entities, but the records received in response to those requests similarly did not reflect the consultation with Dr. Berryman.

{7} On April 10, 2009, Cahn filed a complaint alleging medical malpractice against LHS and several other defendants. Dr. Berryman was not a named defendant. On July 1, 2010, LHS produced records in response to Cahn's requests for production showing that Cahn received care from Dr. Berryman on August 8, 2006. On July 9, 2010, exactly one week after receiving these records, Cahn filed an amended complaint in which she named Dr. Berryman as a defendant and asserted a medical malpractice claim against him. Before proceeding further, we pause to emphasize the dispositive facts which can be discerned from the foregoing.

{8} The act of malpractice that Cahn alleges Dr. Berryman committed occurred on August 8, 2006. Cahn's malpractice claim accrued on September 22, 2008, the date she discovered that Dr. Berryman did not alert her to the findings indicated by the May 2006 ultrasound report. See Roberts v. Sw. Cmty. Health Servs. , 1992-NMSC-042, ¶ 27, 114 N.M. 248, 837 P.2d 442 ("[T]he cause of action accrues when the plaintiff knows or with reasonable diligence should have known of the injury and its cause."). Cahn's claim accrued ten and one-half months before August 8, 2009, when the three-year repose period of Section 41-5-13 was set to expire. Cahn sued Dr. Berryman on July 9, 2010, three years and eleven months after Dr. Berryman's act of malpractice occurred and one year and nine and one-half months (more than twenty-one months) after Cahn's claim accrued. A pictorial representation of these events is included at the end of this opinion as Appendix A.

{9} In the Second Judicial District Court, Dr. Berryman moved for summary judgment arguing that Section 41-5-13 barred Cahn's malpractice claim. The court denied Dr. Berryman's motion concluding that application of the statutory bar would violate Cahn's right to due process as guaranteed by the United States and New Mexico Constitutions. The district court later denied Dr. Berryman's motion for reconsideration on the question of the applicability of Section 41-5-13. Dr. Berryman then requested that the court certify the statute-of-repose issue for interlocutory appeal. The court entered an order certifying the issue, but the Court of Appeals denied Dr. Berryman's application.

{10} The district court then set the case for a jury trial, but Cahn and Dr. Berryman entered into a stipulated conditional directed verdict and final judgment, stating that Dr. Berryman was liable to Cahn for medical negligence in the amount of $700,000 but preserving for appeal the issue of whether Section 41-5-13 barred Cahn's malpractice claim. The Court of Appeals, in a divided opinion, concluded that Section 41-5-13 did bar Cahn's claim and reversed the district court, which had "ruled otherwise." Cahn v. Berryman , 2015-NMCA-078, ¶ 1, 355 P.3d 58, cert. granted , 2015-NMCERT-007, 368 P.3d 2.

{11} Cahn petitioned for a writ of certiorari, which we granted, exercising our jurisdiction under Article VI, Section 3 of the New Mexico Constitution and NMSA 1978, Section 34-5-14(B) (1972). We issued the writ to consider whether the application of Section 41-5-13 to bar Cahn's malpractice claim violated her right to due process.

II. DISCUSSION

A. Standard of Review

{12} "This Court's review of orders granting or denying summary judgment is de novo." Zamora v. St. Vincent Hosp. , 2014-NMSC-035, ¶ 9, 335 P.3d 1243. "Summary judgment is appropriate in the absence of any genuine issues of material fact and where the movant is entitled to judgment as a matter of law." Id. "In reviewing an order on summary judgment, we examine the whole record on review, considering the facts in a light most favorable to the nonmoving party and drawing all reasonable inferences in support of a trial on the merits." Id.

B. Section 41-5-13: the MMA's Statute of Repose

{13} "Like many other states, New Mexico reformed its medical malpractice laws in 1976 in response to a much discussed medical malpractice crisis." Cummings v. X-Ray Assocs. of N.M., P.C. , 1996-NMSC-035, ¶ 40, 121 N.M. 821, 918 P.2d 1321. Surveying that crisis, the Court of Appeals observed that

[t]he insurance crisis that prompted the enactment of the MMA arose out of a nationwide perception that medical malpractice insurance was increasingly becoming unavailable. The specific event that triggered concern in New Mexico was the announced withdrawal in 1975 of the Travelers' Insurance Company as the underwriter of the New Mexico Medical Society's professional liability program. Travelers' withdrawal jeopardized health care providers' protection against liability claims and, in turn, compromised the legal remedies available to health care consumers injured by the negligence of health care providers.

Baker v. Hedstrom , 2012-NMCA-073, ¶ 22, 284 P.3d 400 (citing Ruth L. Kovnat, Medical Malpractice Legislation in New Mexico , 7 N.M. L. Rev. 5, 7 (1976-77)), aff'd on other grounds , 2013-NMSC-043, 309 P.3d 1047. The insurance crisis prompted concerns about the departure of medical providers from New Mexico as well as the availability of recovery for New Mexicans who suffer injuries resulting from medical malpractice. See id.

{14} The MMA sought to address this crisis by ensuring that professional liability insurance was available to health care providers in New Mexico. Section 41-5-2. The Legislature "concluded that the potential for a malpractice suit being filed long after the act of malpractice was one of the reasons that insurance carriers were withdrawing from medical malpractice liability coverage." Cummings , 1996-NMSC-035, ¶ 40, 121 N.M. 821, 918 P.2d 1321. To address this problem, the Legislature enacted Section 41-5-13 and precluded "almost all malpractice claims from being brought more than three years after the act of malpractice." Cummings , 1996-NMSC-035, ¶¶ 39-40, 121 N.M. 821, 918 P.2d 1321.

{15} Section 41-5-13 provides as follows:

No claim for malpractice arising out of an act of malpractice which occurred subsequent to the effective date of the [MMA] may be brought against a health care provider unless filed within three years after the date that the act of malpractice occurred except that a minor under the full age of six years shall have until his ninth birthday in which to file. This subsection ... applies to all persons regardless of minority or other legal disability.

This provision operates as a statute of repose. Tomlinson v. George , 2005-NMSC-020, ¶ 8, 138 N.M. 34, 116 P.3d 105....