Cummings v. X-Ray Associates of New Mexico, P.C., X-RAY

• Docket Nº: X-RAY
• Citation: 1996 NMSC 35, 918 P.2d 1321, 121 N.M. 821
• Case Date: May 31, 1996
• Court: Supreme Court of New Mexico

Page 1321

918 P.2d 1321 121 N.M. 821 Andrea CUMMINGS, Plaintiff-Appellant,
v.
X-RAY ASSOCIATES OF NEW MEXICO, P.C., Defendant-Appellee. No. 22246. Supreme Court of New Mexico. May 31, 1996.
Rehearing Denied June 20, 1996.

Page 1325

[121 N.M. 825] Durkovich & Martinez, Kevin Martinez, Albuquerque, NM, for Appellant.

Miller, Stratvert, Torgerson & Schlenker, P.A., Gregory Chase, Alice Tomlinson Lorenz, Ruth O. Pregenzer, Albuquerque, NM, for Appellee.

OPINION

FRANCHINI, Justice.

1. This case concerns the proper interpretation of Section 41-5-13 from the Medical Malpractice Act, NMSA 1978, §§ 41-5-1 to -29 (Repl.Pamp.1989 & Cum.Supp.1995), which requires a claim for medical malpractice be "filed within three years after the date that the act of malpractice occurred." Andrea Cummings filed a malpractice claim against X-Ray Associates for failing to properly diagnose a cancerous mass in her lung. We conclude that the limitation period in Section 41-5-13 is constitutional and that Cummings' malpractice claim is barred by the statutory three-year limit.

I. FACTS

2. In 1986 Cummings was hired as a nurse by Heights General Hospital [hereinafter

Page 1326

[121 N.M. 826] Hospital]. She was required by the Hospital to undergo a pre-employment physical, which included a chest x-ray performed by X-Ray Associates. The radiology report, dated February 17, 1986, showed a mass in her left lung. The radiologists at X-Ray Associates interpreted the mass as a probable "arteriovenous malformation" known as an AVM. A pulmonary AVM is an "abnormal passageway between an artery and vein that occurs in the blood vessels of the lungs." Applied Medical Informatics, Inc., Medical HouseCall on the Net, http://www.ami-med.com/mhc/top/001090.htm (Internet 1996). Cummings was told that the AVM was akin to an internal birthmark and was harmless.

3. Cummings had a follow up CT-scan at the Hospital the following June which revealed the lung mass as well as a mass on her right kidney that had not been detected by the radiologists at X-Ray Associates. In a report dated June 16, 1986, the lung mass in the CT-scan was described as a probable AVM.

4. About two years later, on August 10, 1988, Cummings had routine pre-operative chest x-ray prior to undergoing surgery for a hysterectomy. The x-ray apparently was performed once again by X-Ray Associates. As before, the x-ray revealed the mass in her lung, and the radiologist sought to have this x-ray compared with prior x-rays. Unfortunately, the previous x-ray reports had been misfiled by the Hospital. The radiologist evidently accepted Cummings' word that the mass was an AVM.

5. About a year and a half later, on January 17, 1990, Cummings underwent kidney and gallbladder surgery. The pre- and post-operation medical reports indicated that the masses on her lung and kidney needed further investigation.

6. On February 23, 1990, a medical report was issued finding that the masses on her lung and kidney were cancer. This was Cummings' first indication that the AVM diagnosis was completely erroneous. The cancer was surgically removed along with the left upper lobe of her lung and her right kidney on March 6, 1990. Subsequent testing and examination suggested that the cancer had not spread to other parts of her body, a phenomenon known as metastasis. Her physician stated, however, he could give her no guarantees that the cancer had not metastasized.

7. Further examinations over the next two years revealed no metastasis until a medical report dated January 8, 1992, revealed the discovery of tissue abnormalities. About January 24, Cummings' physicians determined that the lung cancer had metastasized. The spread of the cancer portended an extremely bleak prognosis for Cummings.

8. About six months later, on July 13 and July 27, 1992, Cummings filed malpractice claims against the Hospital and its various corporate affiliates for the injuries she suffered as a result of the metastases of the lung cancer. X-Ray Associates was first brought into the lawsuit on November 9, 1992, by a third party complaint filed by one of the Hospital's affiliates. Another year passed before Cummings filed her own separate complaint for malpractice against X-Ray Associates, on December 7, 1993. At a hearing on April 18, 1994, the district court ruled that Cummings' complaint against X-Ray Associates was barred by the three-year "statute of limitations" in Section 41-5-13. An order dismissing Cummings' complaint against X-Ray Associates was issued April 25.

9. Cummings appealed, and the Court of Appeals certified her case to this Court. We address two issues: First, is the three-year time limit of Section 41-5-13 constitutional; and second, if it is, does that statute bar Cummings' complaint against X-Ray Associates? We answer both issues affirmatively. The trial court's order dismissing Cummings' complaint is therefore affirmed.

II. STATUTE IN QUESTION

10. The Medical Malpractice Act limits to three years the time in which a malpractice claim may be filed:

Page 1327

[121 N.M. 827] No claim for malpractice arising out of an act of malpractice which occurred subsequent to the effective date of the Medical Malpractice Act 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 vor [sic] other legal disability.

Section 41-5-13 (emphasis added).

11. X-Ray Associates argues that the most recent of its alleged acts of malpractice occurred on August 10, 1988, the last time it examined Cummings. It asserts that the plain meaning of the statutory language dictates that Cummings should have filed her claim within three years of that date, by August 10, 1991. However, she filed no claim for malpractice until almost four years after the 1988 x-rays, in July 1992. Moreover, she did not personally sue X-Ray Associates until December 1993, more than five years after the 1988 examination. Additionally, X-Ray Associates suggests that Cummings knew she had been misdiagnosed within a year-and-a-half of the 1988 examination, because she learned in February 1990 that the mass in her lung was cancer. She therefore knew of her injury before the three-year limit of Section 41-5-13 had expired, and yet failed to take advantage of the opportunity to file a malpractice claim.

12. Cummings asserts that her cause of action for medical malpractice did not accrue until January 24, 1992, the date she learned the cancer had metastasized. Thus, she argues that her complaint against X-Ray Associates on December 7, 1993, was filed within the three-year limit of Section 41-5-13.

13. Cummings urges a broad interpretation of the phrase "the date that the act of malpractice occurred" from Section 41-5-13. She defines an "occurrence" as a continuum beginning with the act of malpractice and ending with the resulting injury. She argues that the "occurrence," so defined, is the unit of harm for which the Act authorizes recovery.

14. She bolsters this concept of "occurrence" by attempting to draw an identity between an "act of malpractice" in the above-quoted phrase from Section 41-5-13, and a "malpractice claim" defined in Section 41-5-3(C): " 'malpractice claim ' includes any cause of action arising in this state against a health care provider for medical treatment, lack of medical treatment or other claimed departure from accepted standards of health care which proximately results in injury to the patient...." Section 41-5-3(C) (emphasis added). She claims that this statutory language means that a single "occurrence" for which a patient may raise a "malpractice claim" includes both the negligent act and the proximately resulting injury. She argues that until there has been a complete "occurrence," there can be no "malpractice claim."

15. In Cummings' view, the negligent act in this case was the misdiagnoses of the lung mass as an AVM in 1986 and 1988. The resulting injury was the metastasis of the cancer. Because there was no medically detectable metastasis until January 24, 1992, Cummings argues she suffered no injury until that date. In Cummings' view, the "occurrence" lasted from the first misinterpretation of the x-ray through the discovery of metastasis; she thus had no cause of action until 1992.

16. She further claims she suffered no injury when her doctors first discovered the cancer in 1990, because the cancer was already present in her system before the misdiagnosis in 1986. She acknowledges that X-Ray Associates did not cause her cancer. Rather, she argues that its actions allowed the cancer to metastasize, an injury that did not appear until 1992.

III. THE MEDICAL MALPRACTICE STATUTE OF REPOSE IS CONSTITUTIONAL

17. Cummings argues that Section 41-5-13 is unconstitutional if its plain meaning

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[121 N.M. 828] must be construed so as to bar a medical malpractice claim before it accrues. She alleges that this statutory time limit creates an unreasonable classification in violation of the constitutional right to equal protection, and that it violates the constitutional due process right of access to the courts. See U.S. Const. amends. V & XIV, § 1; N.M. Const. art. II, § 18 (Repl.Pamp.1992).

A. Standard of Review

18. In Marrujo v. New Mexico State Highway Transportation Department, 118 N.M. 753, 756-58, 887 P.2d 747, 750-52 (1994), we explained the traditional three-tiered standard of review adopted by most U.S. courts in assessing facial constitutional challenges: "strict scrutiny; intermediate scrutiny (also known as substantial, heightened, or high review); and minimal scrutiny (also known as the rational[-]basis test)." Id. at 757, 887 P.2d at 751. Cummings urges that we evaluate this statute under a strict-scrutiny standard of constitutional review.

Strict scrutiny applies...