Maestas v. Zager

• Decision Date: 23 January 2007
• Docket Number: No. 28,997.,28,997.
• Citation: 2007 NMSC 003,152 P.3d 141
• Parties: Petra MAESTAS, as personal representative of the Estate of Betty Varela, and on behalf of Joe V., a minor, Plaintiff-Petitioner, v. Philip G. ZAGER, M.D., Dialysis Clinic, Inc., a foreign corporation, Deborah Bowen, Fresenius Medical Care, Inc., a foreign corporation, and John Doe # 1 and # 2, Defendants-Respondents.
• Court: New Mexico Supreme Court

152 P.3d 141

2007 NMSC 003

Petra MAESTAS, as personal representative of the Estate of Betty Varela, and on behalf of Joe V., a minor, Plaintiff-Petitioner, v. Philip G. ZAGER, M.D., Dialysis Clinic, Inc., a foreign corporation, Deborah Bowen, Fresenius Medical Care, Inc., a foreign corporation, and John Doe # 1 and # 2, Defendants-Respondents.

No. 28,997.

Supreme Court of New Mexico.

January 23, 2007.

Benito Sanchez, P.A., Benito Sanchez, Albuquerque, NM, LeeAnn Ortiz Law Office, LeeAnn Ortiz, Albuquerque, NM, for Petitioner.

Felker, Ish, Ritchie & Geer, P.A., Mark L. Ish, Carol J. Ritchie, Santa Fe, NM, for Respondent Zager.

McGinn Carpenter Campbell Montoya & Love, Randi McGinn, Albuquerque, NM, Michael B. Browde, Albuquerque, NM, for Amicus Curiae The New Mexico Trial Lawyers Association.

OPINION

MAES, Justice.

{1} This appeal arises from a medical malpractice claim brought by Petitioner Petra Maestas, personal representative of the decedent, under the Tort Claims Act (TCA), NMSA 1978, §§ 41-4-1 to -27 (1976, as amended through 2006). The trial court granted a summary judgment motion in favor of Respondent Dr. Philip G. Zager after determining that Petitioner's claim was barred by the statute of limitations within the TCA, Section 41-4-15(A) (1977). Petitioner appealed the granting of summary judgment to the Court of Appeals, which affirmed, holding that Section 41-4-15 is an occurrence rule that runs from the act of malpractice. We granted certiorari and address two issues: (1) when does the statute of limitations in the TCA, Section 41-4-15(A), begin to run; i.e., whether it constitutes an occurrence rule that runs from the act of malpractice or a discovery rule that begins to run when a plaintiff has discovered the relevant facts to establish a legal cause of action under the TCA; and (2) whether a genuine issue of material fact exists to preclude summary judgment in favor of Respondent. Because we find Section 41-4-15(A) is a discovery-based statute of limitations that accrues when a plaintiff knows or with reasonable diligence should have known of the injury and its cause, we reverse the Court of Appeals and remand to the district court for further proceedings to determine whether Petitioner exercised reasonable diligence in discovering the cause of the decedent's injury.

BACKGROUND

{2} For the purposes of this appeal, the relevant facts are as follows. See Maestas v. Zager, 2005-NMCA-013, ¶¶ 4-9, 136 N.M. 764, 105 P.3d 317. Petitioner's sister, the decedent, was a patient at the Dialysis Clinic, Inc. The Dialysis Clinic (the Clinic) is a private facility that serves patients from the University of New Mexico School of Medicine (UNMH). Pursuant to a contract between the Clinic and UNMH, UNMH furnishes physicians to the Clinic. The Clinic physicians in this case, including Respondent, were employees of UNMH, a state agency. It is undisputed that Respondent was a state employee and therefore covered by the TCA.

{3} On May 17, 1999, the decedent was undergoing dialysis at the Clinic. During her treatment she began to experience serious difficulty breathing and was transported by EMT paramedics to Presbyterian Hospital, where she died shortly after her arrival. Petitioner was appointed personal representative of the decedent, and in October 1999, she hired counsel and obtained the autopsy report and findings from the Office of the Medical Examiner. Those documents attributed the decedent's death to angioedema (swelling) of the face, throat, and tongue caused by an allergic reaction to the prescription drug Lisinopril. The autopsy report also indicated that the investigation of the Clinic's dialysis equipment and fluids showed "no abnormalities in the tubing, machines, or compositions of the fluid," and the decedent's toxicology report contained nothing of significance. Petitioner also made an initial request for the Clinic's medical records in November or December 1999; however, because the cost of obtaining the records was $500, Petitioner did not follow up on that request until August 2000. Petitioner received the Clinic records in September 2000.

{4} In August 2000, Plaintiff received the reports of the EMT paramedics who transported the decedent from the Clinic to the hospital. It was these records that first evidenced the possibility of wrongdoing. The EMT record stated that an unidentified employee at the Clinic informed one of the EMT paramedics that the decedent may have experienced a reaction to chlorine in her blood due to contamination of the dialysis machine used on the decedent at the Clinic. Based on this information, Petitioner filed the present action against Respondent in March 2002, two years and ten months after the decedent's death.

{5} Respondent filed a motion for summary judgment based on the assertion that Petitioner's claim was barred by TCA Section 41-4-15(A), which requires the filing of a claim "within two years after the date of occurrence resulting in loss, injury or death." (Emphasis added.) The district court granted Respondent's motion for summary judgment, finding that the TCA statute of limitations commenced to run on May 17, 1999, because the decedent's injury was manifest when she died and the EMT record was available on that date. See Maestas, 2005-NMCA-013, ¶ 9, 136 N.M. 764, 105 P.3d 317.

{6} Petitioner appealed the decision of the district court to the Court of Appeals. In their briefing to the Court of Appeals, Petitioner and Respondent agreed that under the settled law of New Mexico, a cause of action brought under Section 41-4-15(A) accrues only after the injury "manifests itself and is ascertainable." However, the parties differed on whether ascertainability required some indication that the injury may have resulted from some negligence by the government actor involved. Petitioner claimed that the statute does not begin to run until a plaintiff has some information relating the death to the conduct of the defendants, while Respondent argued that, for purposes of Section 41-4-15(A), an injury is ascertainable when it is certain that there is an injury. In its opinion, the Court affirmed the district court's grant of summary judgment in favor of Respondent, concluding that Section 41-4-15(A) is an "`occurrence rule,'" Maestas, 2005-NMCA-013, ¶¶ 3, 55, 136 N.M. 764, 105 P.3d 317, that "`fixes the accrual date at the time of the act of medical malpractice even though the patient may be oblivious of any harm.'" Id. ¶ 13 (quoting Cummings v. X-Ray Assocs. of N.M., P.C., 1996-NMSC-035, ¶ 47, 121 N.M. 821, 918 P.2d 1321).

{7} In his special concurrence in Maestas, Judge Bustamante agreed with the majority that "the Tort Claims Act statute of limitations expired as a matter of law before Plaintiff filed her claim." Id. ¶ 57 (Bustamante, J., specially concurring in part and dissenting in part). However, Judge Bustamante characterized the majority's determination that Section 41-4-15(A) is an occurrence rule accruing from the time of the act of malpractice as "an erroneous and radical reconstruction of the [TCA] statute of limitations." Id. ¶ 61. Instead, Judge Bustamante described Section 41-4-15(A) as a discovery rule and stated that in medical malpractice cases brought under the TCA, "[t]he inquiry ... involves whether the plaintiff knew, or with reasonable diligence should have known, of the injury and its cause within the time frame of the applicable statute." Id. ¶ 59 (citing Roberts v. Sw. Cmty. Health Servs., 114 N.M. 248, 257, 837 P.2d 442, 451 (1992)). He concluded that in cases of obvious injury, it is unnecessary to consider Plaintiff's knowledge of the cause of injury. Id. ¶ 60. Thus, "[g]iven the obvious injury" in this case, the statute of limitations started running on the date of the decedent's death and expired before Petitioner filed her claim. Id. ¶ 59. In light of the conflict between the majority's analysis and Judge Bustamante's special concurrence, we granted Petitioner's petition for writ of certiorari in order to clarify when a cause of action brought under TCA Section 41-4-15(A) accrues.

DISCUSSION

Standard of Review

{8} This case requires us to decide when the limitations period for an action for medical malpractice commences under the TCA. Because this case presents an issue of statutory interpretation and requires a determination of whether summary judgment was proper, our review is de novo. See Rutherford v. Chaves County, 2003-NMSC-010, ¶ 8, 133 N.M. 756, 69 P.3d 1199.

Discovery vs. Occurrence

{9} In construing a statute, this Court will not depart from the plain language of the statute "unless it is necessary to resolve an ambiguity, correct a mistake or an absurdity that the Legislature could not have intended, or to deal with an irreconcilable conflict among statutory provisions." Cobb v. State Canvassing Board, 2006-NMSC-034, ¶ 34, 140 N.M. 77, 140 P.3d 498 (quoted authority omitted). "A statute is ambiguous when it can be understood by reasonably well-informed persons in two or more different senses." State v. Elmquist, 114 N.M. 551, 552, 844 P.2d 131, 132 (Ct.App.1992).

{10} The language of the statute in issue is ambiguous. Section 41-4-15(A) states: "Actions against a governmental entity or a public employee for torts shall be forever barred, unless such action is commenced within two years after the date of occurrence resulting in loss, injury or death ...." (Emphasis added.) The ambiguity within Section 41-4-15(A) stems from the fact that it encompasses two potentially disparate time frames (the date of the occurrence of the act of malpractice and the date of the resulting loss, injury, or death), without clarifying how to reconcile the two. Another way of framing this ambiguity is whether the statute of limitations under the TCA constitutes an occurrence rule running from the act of malpractice or a discovery rule that accrues when a plaintiff has discovered the relevant facts to establish a legal cause...