Leger v. Leger

Decision Date28 November 2018
Docket NumberNO. A-1-CA-35807,A-1-CA-35807
Citation444 P.3d 1036
Parties Nicholas T. LEGER as Personal Representative for the Estate of Michael Thoemke and Daniel Thoemke, Individually, Plaintiffs, v. Nicholas T. LEGER as Assignee of Presbyterian Healthcare Services, and John or Jane Does 1-5, Defendants/Third-Party Plaintiffs-Appellees, v. Richard Gerety, M.D., and New Mexico Heart Institute, Third-Party Defendants-Appellants.
CourtCourt of Appeals of New Mexico

VANZI, Chief Judge.

{1} This interlocutory appeal presents a question of first impression concerning assignment of claims for compensation covered by the Medical Malpractice Act (the MMA or the Act), NMSA 1978, §§ 41-5-1 to -29 (1976, as amended through 2015). In the litigation below, plaintiffs sued a hospital on claims subject to the MMA based, in part, on allegations of malpractice by a physician not employed by the hospital for which plaintiffs claimed the hospital was vicariously liable. After the hospital filed a third-party complaint for equitable indemnification against the physician and his employer, in compliance with the MMA’s requirements concerning pre-filing review and decision by the Medical Review Commission, plaintiffs successfully moved for orders staying that action and preventing the third-party defendants from participating in discovery in plaintiffs' case against the hospital, arguing (among other things) that plaintiffs had chosen not to sue the third-party defendants and had no interest in the hospital’s indemnification claim. Nevertheless, one plaintiff acquired the hospital’s indemnification claim by assignment in settling plaintiffs' case against the hospital and then moved to lift the stay and take over as third-party plaintiff on that claim.

{2} The question presented is whether the hospital’s assignment of its indemnification claim to one of the plaintiffs is barred by the MMA’s prohibition against assignment of "[a] patient’s claim for compensation under the [MMA,]" Section 41-5-12, or the common law. Applying New Mexico precedents concerning statutory construction—in particular, precedents construing the MMA—we conclude that the Legislature intended the MMA’s requirements and restrictions to apply to all "malpractice claims" covered by the MMA and hold that Section 41-5-12 bars assignment of all "malpractice claims" for compensation covered by the MMA. One of these precedents, Wilschinsky v. Medina , 1989-NMSC-047, ¶ 26, 108 N.M. 511, 775 P.2d 713, held that "the [L]egislature intended to cover all causes of action arising in New Mexico that are based on acts of malpractice." Further, Christus St. Vincent Regional Medical Center v. Duarte-Afara , 2011-NMCA-112, ¶¶ 1, 14-20, 267 P.3d 70, made clear that the character of an indemnification claim under the common law as "separate and distinct from the underlying tort" does not control determination of whether the MMA’s requirements and restrictions apply. Our statutory construction analysis is dispositive of this appeal, regardless of how a claim not covered by the MMA would be treated under the common law. Our conclusion concerning the assignment issue obviates the need to resolve other issues discussed by the parties.


{3} This appeal arises from a complaint asserting claims for wrongful death, negligence, and medical malpractice filed by Nicholas T. Leger, as Personal Representative for the Estate of Michael Thoemke, and Daniel Thoemke, individually (collectively, Plaintiffs), against Presbyterian Healthcare Services (PHS) after Michael Thoemke died at Presbyterian Hospital. Although the complaint did not name Dr. Richard Gerety as a defendant, it included allegations concerning Dr. Gerety’s conduct in consulting on Michael’s case while "acting within the course and scope of his employment, or acting as the agent or ostensible agent of [PHS.]" In answering the complaint, PHS admitted that Dr. Gerety consulted on Michael’s case but denied allegations that Dr. Gerety was PHS’s cardiothoracic surgeon and that Dr. Gerety acted within "the course and scope of his employment, or act[ed] as the agent or ostensible agent of [PHS]."

{4} After obtaining review and decision by the Medical Review Commission (as required for malpractice claims against a health care provider covered by the MMA, see §§ 41-5-5, -14, -15(A) ) and the district court’s leave to file, PHS filed a third-party complaint against Dr. Gerety and his employer, New Mexico Heart Institute (NMHI) (collectively, Appellants), stating, "[I]n the event that Dr. Gerety is found negligent in [this] suit, and in the event that PHS is found to be vicariously liable for the conduct of Dr. Gerety, then PHS is entitled to indemnification from [Appellants] for all fees, expenses, judgments, settlements and any and all other damages reasonably related to the alleged conduct of Dr. Gerety." In answering the third-party complaint, Appellants denied that Dr. Gerety was negligent and that PHS "is vicariously liable for the alleged acts and omissions of Dr. Gerety" and alleged affirmative defenses.

{5} Plaintiffs moved to sever or bifurcate and stay the third-party complaint, arguing (among other things) that PHS’s suit "is contingent upon a jury first finding that PHS is liable for the death of Michael Thoemke, and that PHS’s liability is based, in whole or in part, upon the acts or omissions of [Appellants]"; "Plaintiffs have no interest in the outcome of PHS'[s] common law indemnification claims"; "Plaintiffs should not be dragged into a dispute that does not involve them, and that is not yet perfected or ripe"; "[n]othing in the law requires Plaintiffs to sue those third parties and Plaintiffs here have chosen not to"; "Plaintiffs have no standing or interest in any post-judgment indemnification claims brought by PHS against third parties"; and the indemnification claim would not accrue unless Plaintiffs obtained a judgment against PHS. Plaintiffs also moved for a protective order from discovery propounded by Appellants, arguing again that Plaintiffs did not sue Appellants and "have no interest or stake" in the third-party action, and that PHS’s indemnification claim had not accrued. The district court granted both motions, and denied PHS’s later motion to reconsider the order granting severance and stay.

{6} Plaintiffs ultimately settled their claims against PHS, and the district court dismissed those claims with prejudice. As part of that settlement, PHS assigned to Nicolas T. Leger, as Personal Representative of the Wrongful Death Estate of Michael Thoemke:

Any and all rights, claims, and causes of action of [PHS] against [Appellants] arising out of claims for indemnification, contribution, or any other rights or claims arising out of [PHS’s] payment of defense fees, defense costs relating to claims of medical negligence against [Appellants], and payment of any amounts, including payments made in settlement to ... Plaintiffs in the matter known as Leger, et al. v. Presbyterian Healthcare Services , ... including the claims brought by [PHS] against [Appellants] in the May 21, 2013 [t]hird-[p]arty [c]omplaint for indemnification filed therein.

{7} Following the settlement, Leger moved to lift the stay of PHS’s third-party complaint and for leave to file an amended third-party complaint, stating, "Now that the underlying case is fully resolved, and the [t]hird [p]arty claims assigned to Leger, the time has come for the stay of the [t]hird [p]arty [a]ction to be lifted and that action to proceed to trial."

{8} In separate responses, Appellants did not oppose the request to lift the stay but opposed the motion to amend (with NMHI adopting Dr. Gerety’s arguments while asserting additional arguments). As relevant here, Dr. Gerety argued that the indemnification claim is "a claim for compensation under the [MMA]" and a "medical malpractice claim" that is "covered by all of the regulatory aspects of the [MMA]," and that Section 41-5-12 (prohibiting assignment of "[a] patient’s claim for compensation under the [MMA]") should not be interpreted "to prohibit assignments only by patients" but to prohibit assignment of malpractice claims governed by the MMA, consistent with legislative intent as interpreted by New Mexico case law. He also argued that the common-law prohibition against assignment of personal injury claims prohibits assignment; Leger cannot recover more than the maximum permitted by Section 41-5-6, and allowing Leger to recover on the indemnification claim would increase costs to the healthcare system; Leger’s recovery on the indemnification claim is barred by public policy against double recovery; and having chosen not to present a claim to the Medical Review Commission (presentation requirement), not to sue Dr. Gerety, and to obtain an order severing and staying the third-party action, Leger should not be allowed to prosecute the claim after the expiration of the MMA’s statute of repose (Section 41-5-13).

{9} Leger’s reply to Dr. Gerety’s response argued (among other things) that assignment is not barred because the assignment transferred "an interest in property and is common in commercial enterprises"; the indemnification claim, "while subject to provisions of the [MMA], is separate and distinct from the original claims of personal injury/bodily injury"; and the indemnification claim is not a "patient’s" claim for compensation falling within the MMA’s anti-assignment provision because PHS does not meet the MMA’s definition of "patient" as "a natural person" under Section 41-5-3(E). Leger also argued that there would be no double recovery because the assignment gave Leger "the property rights to any recovery PHS is entitled to" and "PHS has not obtained any recovery in this matter" and that neither the MMA’s presentation requirement nor the MMA’s statute of repose barred Leger’s prosecution of the indemnification claim because PHS had satisfied both...

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2 cases
  • Leger v. Leger
    • United States
    • New Mexico Supreme Court
    • December 2, 2021
    ...opinion, the Court of Appeals reversed the district court and held that the third-party indemnity claim was not assignable. Leger v. Gerety , 2019-NMCA-033, ¶ 56, 444 P.3d 1036. The Court of Appeals’ majority first held that the MMA was ambiguous as to whether nonpatients’ claims are assign......
  • Murphy v. United States
    • United States
    • U.S. District Court — District of New Mexico
    • February 12, 2021
    ...assignment of any right to contribution would be based on Defendant's medical malpractice. See Leger v. Leger, 2019-NMCA-033, ¶ 40, 444 P.3d 1036, 1048, cert. granted Apr. 8, 2019 (emphasis added) (citations omitted) ("[T]he Legislature intended the [Act's] requirements and restrictions to ......

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