Leger v. Leger, S-1-SC-37450

Case DateDecember 02, 2021
CourtSupreme Court of New Mexico


NICHOLAS T. LEGER as assignee of PRESBYTERIAN HEALTHCARE SERVICES, and JOHN OR JANE DOES 1-5, Defendants/Third-Party Plaintiffs-Petitioner,

RICHARD GERETY, M.D., and NEW MEXICO HEART INSTITUTE, Third-Party Defendants-Respondents.

No. S-1-SC-37450

Supreme Court of New Mexico

December 2, 2021



The Vargas Law Firm, LLC Ray M. Vargas, II Albuquerque, NM

Carter & Valle Law Firm, P.C. Richard J. Valle Criostoir O'Cleireachain Albuquerque, NM for Petitioners

Atwood, Malone, Turner & Sabin, P.A. Lee M. Rogers Jr. Carla Neusch Williams Roswell, NM

Lorenz Law Alice Tomlinson Lorenz Albuquerque, NM for Respondents




{¶1} This opinion addresses the assignability of an indemnity claim under New Mexico's Medical Malpractice Act (MMA), NMSA 1978, §§ 41-5-1 to -29 (1976, as amended through 2021).[1] The question before us is whether the nonassignability


provision of the MMA, § 41-5-12, which states that "[a] patient's claim for compensation under the [MMA] is not assignable," prohibits the assignment of a hospital's third-party indemnity claim against a qualified healthcare provider.

{¶2} By way of brief procedural background, the decedent's personal representative, Petitioner Nicholas Leger, sued Presbyterian Healthcare Services (Presbyterian) for medical malpractice. Presbyterian then sued Respondents Dr. Richard Gerety and New Mexico Heart Institute for indemnification. Presbyterian ultimately settled the medical malpractice lawsuit with Petitioner and, as part of the settlement, assigned its indemnification claim to Petitioner. This appeal followed.

{¶3} Petitioner asks us to adhere to the plain meaning of the MMA and hold that only patients' malpractice claims are unassignable and that all other types of malpractice claims are assignable. Respondents argue that we should look deeper into the legislative intent of the statute and hold that all malpractice claims, including third-party indemnity claims, are unassignable.

{¶4} We conclude that because the plain language of the statute is unambiguous and abiding by it does not lead to an absurd result or unreasonable classification, Section 41-5-12 does not bar assignment of a third-party indemnity claim. Accordingly, we reverse the Court of Appeals and affirm the district court's determination that assignment of this indemnity claim is allowable under the MMA.



{¶5} We begin by setting forth the material facts of this case and the legal framework of both the MMA and common law indemnity before turning to the procedural posture of this appeal.

A. Factual Background

{¶6} Because we granted certiorari to review this issue after the Court of Appeals reversed on interlocutory appeal, no jury has yet determined the facts or assigned liability to the parties. Our recitation of the facts is therefore taken from allegations in the record.

{¶7} In December 2010, Michael Thoemke, age seventeen, presented to Presbyterian's High Resort Urgent Care facility in Rio Rancho with flu-like symptoms and difficulty breathing. Based on his presenting symptoms, Michael was transferred to Presbyterian's Rio Rancho Emergency Room and, approximately nine hours later, to Presbyterian Hospital in downtown Albuquerque, where he was admitted.

{¶8} Upon admission to Presbyterian Hospital, Michael was diagnosed by an employee physician of Presbyterian with pneumonia and pleural effusions, a condition characterized by the escape of fluid into the pleural space around the lungs. See Dorland's Illustrated Medical Dictionary 589, 1438-39 (33d ed. 2020). Over the course of approximately one day, Michael was in the care of several physicians at


When Michael's condition failed to improve with treatment, his treating physician phoned Respondent Gerety, the cardiothoracic surgeon on call, to consult on the case. Following this consultation, Respondent Gerety examined Michael in the hospital, reviewed his computerized tomography (CT) scan, and determined that surgical drainage of the fluid around Michael's lungs was indicated. Immediately after Michael was intubated for the procedure, he suffered a "cardiopulmonary compromise" and his heartbeat arrested. Efforts to revive him were unsuccessful, and Michael died on the operating table.

{¶9} Petitioner sued Presbyterian for wrongful death, negligence, and medical malpractice on behalf of Michael's estate. Michael's father, Daniel Thoemke, was Petitioner's co-plaintiff. The essence of the complaint was that three physicians either employed by or acting as the agents of Presbyterian, including Respondent Gerety, breached their duty of care to Michael, causing his death. Specifically, the complaint alleged that each of the doctors failed to identify the true cause of Michael's clinical symptoms, which the complaint alleged was pericardial effusion (the accumulation of blood around the heart), and that this failure led to Michael suffering a fatal "cardiac tamponade" when he was intubated and anesthetized for surgery. Importantly, Petitioner did not name any of the doctors identified in the complaint as parties to the suit, choosing to sue only Presbyterian.

{¶10} In its answer to Petitioner's complaint, Presbyterian denied that any of its


acted within the course and scope of his employment or as an agent of Presbyterian. While the tort action was pending, Presbyterian also moved the district court for permission to file a third-party claim for equitable indemnification against Respondents Gerety and New Mexico Heart Institute, Gerety's employer. The district court granted the motion. In its claim for indemnification, Presbyterian asserted that, if it were found liable for negligence as a consequence of Respondent Gerety's actions, Presbyterian was entitled to indemnification from Respondents.

{¶11} Petitioner then moved to bifurcate the proceeding, seeking to stay the indemnity suit, and for a protective order against discovery propounded by Respondents. Presbyterian opposed both motions. Respondents did not unconditionally oppose the request for a stay but did oppose the motion for a protective order. The district court granted the stay and entered a protective order.

{¶12} Eventually, Presbyterian and Petitioner settled their claims through a confidential agreement. In it, Petitioner dismissed the tort action and released Presbyterian and its agents and employees from any and all claims arising from their treatment of Michael Thoemke in exchange for an undisclosed sum of money and an assignment of Presbyterian's indemnity claim against Respondents. Petitioner then moved to lift the stay of the indemnity proceeding and to amend the third-party complaint. Respondents did not oppose the motion to lift the stay but opposed the motion to amend on the grounds that, inter alia, Section 41-5-12 bars assignment of


all malpractice claims, including indemnity claims. Whether this assignment was allowable is the issue we now address on certiorari.

B. Legal Background

{¶13} At the time Petitioner filed his first complaint, Presbyterian was not a qualified health care provider under the MMA. See § 41-5-5(A) (1992). As a result, Presbyterian was not entitled to the protection or benefit of the MMA in the underlying malpractice action. See § 41-5-5(C) ("A health care provider not qualifying under this section shall not have the benefit of any of the provisions of the [MMA] in the event of a malpractice claim against it."). However, Respondents were qualified health care providers, as defined in Section 41-5-5(A). Accordingly, the assigned indemnity claim against Respondent implicates both the MMA and common law indemnity principles. We address the legal framework of each cause of action below.

1. Medical Malpractice Act

{¶14} The MMA was enacted in 1976 in response to "a perceived insurance crisis," after the underwriter of the New Mexico Medical Society's professional liability program announced that it would be leaving the state. Baker v. Hedstrom, 2013-NMSC-043, ¶ 16, 309 P.3d 1047 (internal quotation marks and citation omitted); see generally Ruth L. Kovnat, Medical Malpractice Legislation in New Mexico, 7 N.M. L. Rev. 5, 7-8 (1976) (discussing the insurance crisis in terms of the withdrawal of


program). Such a departure would have negatively affected the availability of professional liability coverage for "90% of medical practitioners and health care institutions" in New Mexico. Kovnat, supra, 8 n.11. The Legislature's solution to this problem was to create a balanced statutory scheme for the litigation of medical malpractice cases, one that benefited both health care providers and patients. See Baker, 2013-NMSC-043, ¶¶ 17-19 (reviewing the benefits provided by the MMA to qualified health care providers and to patients). As described in the statute, the MMA's purpose "is to promote the health and welfare of the people of New Mexico by making available professional liability insurance for health care providers in New Mexico." Section 41-5-2 (1976).

{¶15} To achieve this purpose, the MMA changed certain aspects of the traditional, common law, medical negligence cause of action. See generally Siebert v. Okun, 2021-NMSC-016, ¶¶ 18-22, 485 P.3d 1265 (explaining the procedural differences between claims of medical negligence and claims of medical malpractice under the MMA). For example, as a benefit to would-be defendants, the MMA capped per-occurrence, nonmedical, nonpunitive damages awards at $600, 000 and limited a qualified health care provider's personal liability to $200, 000. See id.; § 41-5-6(A), (D) (1992). As a benefit to plaintiffs, the MMA created a patient compensation fund, supported by the...

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