Kucel v. NEW MEXICO MEDICAL REVIEW COM'N.

• Decision Date: 24 January 2000
• Docket Number: No. 19336.,19336.
• Citation: 997 P.2d 823,128 N.M. 691
• Parties: Kimberly KUCEL, Petitioner-Appellant, v. NEW MEXICO MEDICAL REVIEW COMMISSION and Michael Rueckhaus, Director of the Medical Review Commission, Respondents-Appellees.
• Court: Court of Appeals of New Mexico

997 P.2d 823

128 N.M. 691

Kimberly KUCEL, Petitioner-Appellant, v. NEW MEXICO MEDICAL REVIEW COMMISSION and Michael Rueckhaus, Director of the Medical Review Commission, Respondents-Appellees.

No. 19336.

Court of Appeals of New Mexico.

January 24, 2000.

Certiorari Denied March 14, 2000.

Mary Lynn Bogle, Dean B. Cross, Ernest Carroll, Losee, Carson, Haas & Carroll, P.A., Artesia, for Petitioner-Appellant.

J.E. Casados, Gallagher, Casados & Mann, P.C., Albuquerque, for Respondents-Appellees.

Certiorari Denied, No. 26,198, March 14, 2000.

OPINION

SUTIN, J.

{1} In this appeal we decide whether the Director of the New Mexico Medical Review Commission has discretion under the Medical Malpractice Act, NMSA 1978, §§ 41-5-1 through -29 (1976, as amended through 1997), to redact some of an applicant's, here Petitioner Kimberly Kucel's, legal claims and factual allegations before submitting her application to a panel for review. We hold that the Act does not give the Director that discretion. We therefore conclude that the district court erred by ruling that the Director had implicit discretion to remove issues from Petitioner's application. We also conclude that the Director should not have redacted any of Petitioner's averments or legal contentions from her application. We vacate the district court's order and reverse and remand for entry of an order requiring the Director to submit Petitioner's complete application to a panel.

BACKGROUND

{2} Under the Act, "[n]o malpractice action may be filed in any court against a qualifying health care provider before application is made to the medical review commission and its decision is rendered." Section 41-5-15(A). The application must state "the facts of the case, nam[e] the persons involved, [and] the dates and the circumstances, so far as they are known, of the alleged act or acts of malpractice." Section 41-5-15(B)(1). Once the application is received, the Director serves a copy of the application on the health care provider involved, see § 41-5-16(A), and transmits the application to the health care provider's professional society, association, or licensing board, see § 41-5-17(A). Three specialists in the health care provider's field and three lawyers from the state bar association are then chosen to serve on a confidential panel that will review the application. See § 41-5-17(B). After holding a hearing on the application, the volunteer panel decides "whether there is substantial evidence that the acts complained of occurred and that they constitute malpractice[,] and . . . whether there is a reasonable medical probability that the patient was injured thereby." Section 41-5-20(A).

{3} In accordance with this procedure, Petitioner filed a written application with the Commission claiming, among other things, that her doctor committed medical malpractice by negligently failing to recognize, to properly diagnose, and to properly treat the transference and countertransference phenomena that developed during her medical and psychiatric treatment.

{4} Petitioner was initially referred to the doctor in March 1993 for treatment of hematuria. After a hysterectomy later that year, the doctor treated Petitioner for persistent diarrhea and weight loss. By mid-June 1994, Petitioner had lost a significant amount of weight. The doctor then began providing Petitioner with physical and psychological or psychiatric treatment for anorexia nervosa. The doctor billed Petitioner's insurance company for psychiatric services. Although the record is not entirely clear on this point, it appears that Petitioner's treatment by the doctor lasted into July 1994 and that the doctor continued to contact Petitioner into the fall of that year.

{5} The transference and countertransference phenomena have been described as:

[t]he process whereby the patient displaces on to the therapist feelings, attitudes and attributes which properly belong to a significant attachment figure of the past, usually a parent, and responds to the therapist accordingly. . . . A further phenomenon that may occur is countertransference, when the therapist transfers his own problems to the patient.

St. Paul Fire & Marine Ins. Co. v. Love, 459 N.W.2d 698, 700 (Minn.1990) (citation and quotation omitted). Petitioner enumerated specific acts, including sexual acts, and omissions by the doctor as evidence from which the panel members might conclude that the doctor was negligent in failing to diagnose and treat the transference and countertransference phenomena that existed between patient and doctor.

{6} Nevertheless, the Director refused to transmit Petitioner's application to a panel. In a letter to Petitioner, the Director wrote that he believed the doctor's intentional sexual conduct could not be considered medical malpractice and that transference and countertransference were not medically recognized phenomena. In another letter, the Director further explained that:

[t]he [Medical Malpractice] Act . . . was specifically not designed to have six professionals evaluate issues of alleged intentional torts including sexual misconduct. . . . It does not make good sense that the legislature would establish a tribunal of six volunteer professionals (rather than just six anybodys) to merely determine whether a certain professional had, or tried to have, sexual relations with a patient.

{7} The same letter went on to say that even though the Commission "would [not] be lacking volunteer panelists, I am reluctant to impose upon a panel to undertake this very questionable burden" of inquiring into an issue of intentional sexual conduct, rather than professional negligence, "unless some judge compels me to do so." After receiving this letter, Petitioner filed a petition for an alternative writ of mandamus with the district court to compel the Director to transmit her application to a panel. The district court issued the alternative writ, which ordered the Director to show cause why a peremptory writ should not be issued. After the Director answered and a hearing was held, the district court issued a "Decision" with findings of fact and conclusions of law. Ten days later, on November 24, 1997, the district court entered an order that decided that "a Partial Alternative Writ of Mandamus compelling the Director . . . to set a panel hearing on only those issues of medical negligence readily apparent in the Petition . . . should issue." The order also found that "the Director . . . is implicitly invested with discretion as to the selection of those issues to be submitted and considered by the panel and is thus entitled to redact from the Petition any issues of claimed intentional sexual misconduct." Petitioner did not appeal the decision or order.

{8} The Director redacted all factual allegations and legal claims relating to transference and countertransference and transmitted Petitioner's application to the Commission. The redacted material included Petitioner's allegations that: the doctor called her on numerous occasions and thereby encouraged her dependence on him; the doctor told her that he was physically attracted to her; the doctor was unwilling to discontinue counseling Petitioner even after he had developed an inappropriate attraction for her; the doctor revealed information about his personal life, beliefs, and ideas about beauty during a private meal with Petitioner at a restaurant; the doctor told Petitioner that he would like to see her socially; the doctor initially refused to refer Petitioner for hospitalization, but complied with her request for hospitalization only after she threatened to obtain another doctor; the doctor kissed her on at least two occasions; the doctor engaged in oral sex with Petitioner on one occasion and attempted to engage in intercourse with her on that same occasion; the doctor repeatedly told Petitioner that he was the only physician who could care for and heal her; the doctor failed to refer Petitioner for treatment by appropriate mental health and health professionals even after he diagnosed her with a life threatening eating disorder; the doctor attempted to limit Petitioner's contact with other physicians, therapists, and psychiatrists; and Petitioner told others that the doctor was the only person with the skills necessary to cure her. Appendix A to this opinion quotes those portions of Petitioner's application that the Director redacted prior to transmitting her application to a panel.

{9} After the Director sent Petitioner's redacted application to a panel, Petitioner moved the district court for an order to show cause why the Director should not be held in contempt of court for failing to comply with the November 24, 1997, order. According to Petitioner, by redacting those portions of the application concerning the doctor's negligence in recognizing, diagnosing, and treating the transference and countertransference, the Director went beyond what the order allowed in that the Director redacted more than "issues of claimed intentional sexual misconduct," as stated in the November 24, 1997, order. On February 24, 1998, the district court denied Petitioner's motion for an order to show cause. On March 2, 1998, Petitioner appealed from the February 24, 1998, order denying her motion for an order to show cause. Petitioner emphasized below and on appeal that the doctor's sexual conduct is not the professional negligence for which she seeks redress; rather, the doctor's negligence was his failure to diagnose and treat the transference and countertransference that developed during her treatment.

DISCUSSION

{10} First, we address Respondents' attempt to dispose of this appeal on the grounds that Petitioner had no right to appeal from the denial of the motion for an order to show cause, and that, if this Court intends to hear the merits of the appeal, we should limit the scope of our review to the issue of whether the Director abused his discretion, and not review the issue of...