Juarez v. Nelson

• Decision Date: 03 December 2002
• Docket Number: No. 21,618.,21,618.
• Citation: 2003 NMCA 11,133 N.M. 168,61 P.3d 877
• Parties: Luis B. JUAREZ, as Personal Representative under the Wrongful Death Act of Rodolfo Ledezma, Dolores G. Ledezma, surviving widow, Individually, Luis B. Juarez, as next friend for Rudy Ledezma, II, a minor child, Plaintiffs-Appellants, v. Kirk L. NELSON, D.O., and Presbyterian Healthcare Services, a Corporation, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

61 P.3d 877

133 N.M. 168

2003 NMCA 11

Luis B. JUAREZ, as Personal Representative under the Wrongful Death Act of Rodolfo Ledezma, Dolores G. Ledezma, surviving widow, Individually, Luis B. Juarez, as next friend for Rudy Ledezma, II, a minor child, Plaintiffs-Appellants, v. Kirk L. NELSON, D.O., and Presbyterian Healthcare Services, a Corporation, Defendants-Appellees.

No. 21,618.

Court of Appeals of New Mexico.

December 3, 2002.

Kevin J. Hanratty, Hanratty Law Firm, Artesia, NM, for Appellants.

Remo E. Gay, Butkus, Gay & Jahner, P.C., Albuquerque, NM, for Appellee, Kirk L. Nelson, D.O.

W. Mark Mowery, Edward Ricco, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM, for Appellee, Presbyterian Healthcare Services.

OPINION

ALARID, Judge.

{1} This matter comes before the Court upon the unopposed motion for rehearing of Appellee Presbyterian Health Services. We grant the motion for rehearing and substitute the following opinion in place of our opinion filed 10-21-02.

{2} In this appeal we address the issue of whether the "continuous treatment doctrine" is compatible with the statute of repose of the Medical Malpractice Act. We hold that it is not. We also address the issue of whether the running of the statute of repose was tolled by fraudulent concealment. We conclude that the district court properly granted summary judgment against Plaintiffs on the issue of fraudulent concealment. Lastly, we address the question of whether a vicarious liability malpractice claim against an employer that is not a qualified health care provider must be dismissed when the claim against the employee is barred by the statute of repose of the Medical Malpractice Act. We hold that the statute of repose of the Medical Malpractice Act, as a benefit of the act, is not available to an employer that is not itself a qualified health care provider.

BACKGROUND

{3} Rodolfo Ledezma died on May 28, 1995. At the time of his death, Mr. Ledezma was a patient of Defendant, Kirk L. Nelson, D.O., who started treating Mr. Ledezma for a heart condition in January 1995. Mr. Ledezma's last office visit with Dr. Nelson occurred on February 28, 1995. Mr. Ledezma was to have seen Dr. Nelson on June 1, 1995, for a scheduled ninety-day review. However, on May 28, 1995, Dr. Nelson was called to the emergency room of Plains Regional Medical Center after Mr. Ledezma had been brought in suffering from an apparent heart attack. Dr. Nelson and emergency room personnel were unable to resuscitate Mr. Ledezma, and Mr. Ledezma was pronounced dead. In a "Death Summary" dictated by Dr. Nelson on May 28, 1995, Dr. Nelson stated the cause of death as "[c]ardiovascular collapse, most likely secondary to a massive pulmonary embolus" and "[h]istory of hypertension." An autopsy performed by the medical examiner confirmed that Mr. Ledezma died from a heart attack.

{4} On May 27, 1998, Luis B. Juarez, as next friend of Mr. Ledezma's minor son, Rudy Ledezma II, and as personal representative under the wrongful death act; Dolores G. Ledezma, as surviving spouse; Melissa Lynn Ledezma-Crowe, Teresa Ann Ledezma, and Rebecca L. Ledezma, as surviving children (Plaintiffs), filed a "Complaint to Recover Wrongful Death Damages Due to Medical Negligence" naming as Defendants Dr. Nelson and Dr. Nelson's employer, Presbyterian Healthcare Services (PHS). Plaintiffs alleged that Dr. Nelson and PHS were negligent in diagnosing and treating Mr. Ledezma's heart condition. Plaintiffs did not allege that Dr. Nelson or PHS provided Mr. Ledezma with substandard care in the emergency room on May 28, 1995.

{5} In December 1999 Dr. Nelson filed a motion for summary judgment asserting that the complaint had not been filed within the time allowed by NMSA 1978, § 41-5-13 (1976). Dr. Nelson relied on his status as a qualified heath care provider and upon the undisputed fact that he had not seen Mr. Ledezma between February 28, 1995, the date of the last office visit, and May 28, 1995, the date Mr. Ledezma arrived in the emergency room suffering from a heart attack. In response to Dr. Nelson's motion, Plaintiffs argued that undisputed evidence that Dr. Nelson had scheduled a June 1, 1995, return visit supported tolling of the limitations period under "continuing treatment" and "continuing tort" theories. Plaintiffs also argued that the limitations period should be tolled by Dr. Nelson's allegedly fraudulent concealment of certain medical records of Mr. Ledezma's that were not produced until discovery in the present case, and by Dr. Nelson's failure to inform the Ledezmas that he had been in private practice for only six months, and that he had failed the board examination in internal medicine. PHS filed a motion for summary judgment in which it argued that to the extent Plaintiffs' claims against PHS were based on PHS's vicarious liability for Dr. Nelson's malpractice, PHS was entitled to assert the limitations defense available to its employee, Dr. Nelson. The district court ruled that Plaintiffs had failed to demonstrate a genuine issue of material fact as to circumstances that would avoid application of Section 41-5-13 to their claims. The district court entered summary judgment in favor of Dr. Nelson as to "all matters in dispute" between Plaintiffs and Dr. Nelson. The district court granted partial summary judgment in favor of PHS, ruling that any claims against PHS based on the actions of Dr. Nelson were barred by Section 41-5-13. The district court certified the order granting partial summary judgment to PHS as final pursuant to Rule 1-054(B)(1).

DISCUSSION

1. Dr. Nelson

a. Continuous Treatment Doctrine

{6} Plaintiffs argue that the running of the three-year period of Section 41-5-13 was tolled by the "continuous treatment doctrine." The question of whether the continuous treatment doctrine is compatible with Section 41-5-13 presents a question of statutory interpretation, which we review de novo: "[w]hen summary judgment depends entirely on the interpretation of a statute, ... we will review the trial court's construction of the statute de novo." Wilson v. Denver, 1998-NMSC-016, ¶ 13, 125 N.M. 308, 961 P.2d 153 (citations omitted).

{7} In Ealy v. Sheppeck, 100 N.M. 250, 669 P.2d 259 (Ct.App.1983), we considered the continuous treatment doctrine as a matter of first impression in New Mexico. Examining cases from other jurisdictions, we found dispositive the requirement that for the continuous treatment doctrine to apply the defendant physician must have provided "continuous medical service." Id. at 251, 669 P.2d at 260 (citing with approval Davis v. City of New York, 38 N.Y.2d 257, 379 N.Y.S.2d 721, 342 N.E.2d 516 (1975)). We held on the particular facts of Ealy that the plaintiff had not made out a case that the defendant, a radiologist consulted by the patient's treating physician, had provided continuous treatment to the patient. Id. Our research indicates that Ealy is something of a dead end: we could find no later cases relying on Ealy as authority for the proposition that New Mexico recognizes the applicability of the continuous treatment doctrine to qualified health care providers.

{8} In Ealy, we applied the continuous treatment doctrine without addressing the logically antecedent question of whether the continuous treatment doctrine is compatible with Section 41-5-13. Here, in contrast to Ealy, Plaintiffs came forward with evidence that Dr. Nelson examined Mr. Ledezma in January and February 1995, adopted a treatment plan, prescribed medicine pursuant to that plan and scheduled a ninety-day periodic review for June 1, 1995. This evidence was sufficient to demonstrate a genuine issue of fact as to Dr. Nelson's provision of "continuous medical services" to the date of Mr. Ledezma's death and to materially distinguish the present case from Ealy. We therefore take the present opportunity to address the relationship of the continuous treatment doctrine to Section 41-5-13.

{9} 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 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....

Section 41-5-13 applies to wrongful death actions predicated on medical malpractice. Armijo v. Tandysh, 98 N.M. 181, 183, 646 P.2d 1245, 1247 (Ct.App.1981), overruled on other grounds by Roberts v. Southwest Cmty. Health Servs., 114 N.M. 248, 254, 837 P.2d 442, 448 (1992).

{10} Section 41-5-13 was enacted "in response to a perceived medical malpractice insurance crisis in New Mexico." Roberts, 114 N.M. at 251, 837 P.2d at 445. In enacting Section 41-5-13, the Legislature rejected a discovery-based approach to accrual; and instead, by codifying a date-of-the-negligent-act rule, "specifically chose to insulate qualified health care providers from the much greater liability exposure that would flow from a discovery-based accrual date." Id. at 252, 837 P.2d at 446.

The New Mexico legislature apparently 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. The legislature's solution ... was to preclude almost all malpractice claims from being brought more than three years after the act of malpractice.

Cummings v. X-Ray Assocs. of N.M., 1996-NMSC-035, ¶ 40, 121 N.M. 821, 918 P.2d 1321 (1996). Under Section 41-5-13, the three-year period within which a malpractice action must be brought begins "to run from the time of the occurrence of the act giving rise to the cause of action." Kern v. St. Joseph's Hosp., Inc., 102 N.M. 452, 455, 697 P.2d 135, 138 (1985).

{11} The continuous treatment doctrine operates in the following manner:

[I]f the treatment by the doctor is a continuing course and the patient's illness, injury or condition is of

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