Maestas v. Zager

• Decision Date: 30 November 2004
• Docket Number: No. 24,220.,24,220.
• Citation: 136 N.M. 764,105 P.3d 317
• Parties: Petra MAESTAS, as personal representative of the Estate of Betty Varela, and on behalf of Joe Varela, a minor, Plaintiff-Appellant, v. Philip G. ZAGER, M.D., Defendant-Appellee, and Dialysis Clinic, Inc., a foreign corporation, Deborah Bowen, Fresenius Medical Care, Inc., a foreign corporation, and John Doe # 1 and # 2, Defendants.
• Court: Court of Appeals of New Mexico

105 P.3d 317

136 N.M. 764

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

No. 24,220.

Court of Appeals of New Mexico.

November 30, 2004.

Certiorari Granted January 10, 2005.

Benito Sanchez, Benito Sanchez, P.A., Albuquerque, NM, for Appellant.

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

Certiorari Granted, No. 28,997, January 10, 2005.

OPINION

SUTIN, Judge.

{1} We are presented with another circumstance in which we must determine when a statutory limitations period begins to run in a medical malpractice case. The district court applied NMSA 1978, § 41-4-15(A) (1977), contained in the Tort Claims Act, NMSA 1978, §§ 41-4-1 to -29 (1976, as amended through 2004). In the application of Section 41-4-15(A), Plaintiff sought to apply the discovery rule. Defendant fought against application of the discovery rule. The district court determined that, even though Plaintiff was unaware of the record, the statute began to run at the point when an EMT/paramedic record was created that mentioned a subject that, if investigated further would, as later determined, have led to a possible cause of death.

{2} The issue requires us to interpret Section 41-4-15(A) by analyzing its language and any legislative intent behind its enactment. In addition, we must discuss medical malpractice cases that interpret not only Section 41-4-15(A), but also other statutes that have been applied to medical malpractice claims. Those other statutes are the general personal injury statute of limitations, NMSA 1978, § 37-1-8 (1976); the Medical Malpractice Act statute of repose, NMSA 1978, § 41-5-13 (1976); and the Tort Claims Act claims notice statute, Section 41-4-16.

{3} Once pieced together, the jurisprudential puzzle of judicial tolling decisions does not show a definitive path to follow for the result in the case before us. However, a path must be chosen. Historically, Sections 41-4-15(A) and 41-5-13 were enacted while the "time of the negligent act" rule was in force in medical malpractice cases. See Roybal v. White, 72 N.M. 285, 287, 383 P.2d 250, 252 (1963)

(applying the "time of the negligent act" rule), overruled by Roberts v. Southwest Cmty. Health Servs., 114 N.M. 248, 837 P.2d 442 (1992). This fact, along with the similarity in language between these two statutory provisions and the change in the judicial tolling landscape by Cummings v. X-Ray Associates of N.M., P.C., 1996-NMSC-035, 121 N.M. 821, 918 P.2d 1321, leads us to conclude that Section 41-4-15(A) is an occurrence rule and that the discovery rule is not to be applied. Thus, we affirm the district court's summary judgment against Plaintiff. We therefore need not address Plaintiff's second issue of whether her diligence in discovering the alleged cause of the injury is a question of fact precluding summary judgment.

BACKGROUND

{4} Defendant Philip G. Zager, M.D., worked as the director of the Dialysis Clinic, Inc., a private kidney dialysis facility located in Albuquerque, New Mexico (the clinic), pursuant to a contract between the University of New Mexico and the clinic. He was a public employee employed by the University of New Mexico Hospital, a governmental entity.

{5} On May 17, 1999, while undergoing kidney dialysis at the clinic, Betty Varela (decedent) began having severe problems breathing. She was taken off the dialysis equipment and transported by ambulance with EMT/paramedics to Presbyterian Hospital (the hospital), where she died shortly after arrival. After learning that decedent had a medical problem, Plaintiff, the decedent's sister, went to the clinic and then to the hospital. Plaintiff made inquiries at the clinic and at the hospital regarding decedent's condition. At some point, she was informed by personnel at the office of the medical investigator (OMI) that decedent died of an allergic reaction to a prescription drug she was taking. Plaintiff hired an attorney and in early October 1999 obtained copies of the autopsy report and the OMI's report of findings.

{6} The autopsy report explained that decedent died of angioedema (swelling) of the face, throat, and tongue due to an idiosyncratic drug reaction to lisinopril. The OMI's report of findings stated the same conclusion as to the cause of death. Lisinopril is a prescription drug decedent was taking and to which decedent had previously experienced a reaction in 1998. The autopsy report also indicated that Defendant's investigation of the clinic's dialysis equipment and fluids showed "no abnormalities in the tubing, machines, or composition of the fluid." Attached to the autopsy report was a toxicology report. The autopsy report found nothing of significance in the toxicology report.

{7} In October 1999, Plaintiff requested the clinic's medical records relating to decedent. For reasons unexplained in the briefs, Plaintiff did not get the records until September 14, 2000. In August 2000, Plaintiff requested copies of the records of the EMT/paramedics who transported decedent to the hospital. These records indicated that a staff member of the clinic told one of the paramedics that decedent was possibly suffering from an allergic reaction to chlorine in her blood. Another paramedic's report indicated he was told there was chlorine in the decedent's blood.

{8} Plaintiff filed the present action on March 25, 2002, against Defendant, the clinic, and others. In July 2002, through discovery, Plaintiff obtained the OMI's investigation log indicating there had been an investigation on allegations that a chlorine-based solution had been used to clean the dialysis equipment before decedent used it, but that an examination of the equipment showed no contamination. The log also indicated that there was no hemolysis in decedent's blood to indicate chlorine contamination.

{9} Decedent died on May 17, 1999. Section 41-4-15(A) is a two-year statute. Two years from May 17, 1999, was May 17, 2001. Plaintiff first learned of the possibility of chlorine being a cause of death in August 2000, but did not file the action until March 2002. Plaintiff's action was filed some ten months after two years had elapsed from the date of death. However, it was filed within two years of the date Plaintiff asserts she first should have discovered, using reasonable diligence, that chlorine might have been a causative factor. The district court granted summary judgment in favor of Defendant, holding that Section 41-4-15(A) barred Plaintiff's claim. On appeal, Plaintiff asserts that the district court erred in declining to apply the discovery rule and thus, denying her claim.

DISCUSSION

{10} Section 41-4-15(A) reads:

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, except that a minor under the full age of seven years shall have until his ninth birthday in which to file. This subsection applies to all persons regardless of minority or other legal disability.

{11} Plaintiff relies primarily on Roberts in which neither the Tort Claims Act nor the Medical Malpractice Act applied. Roberts adopted the discovery rule in applying Section 37-1-8 to a medical malpractice claim. Roberts, 114 N.M. at 250, 254, 256, 837 P.2d at 444, 448, 450. Plaintiff argues that the Roberts discovery rule applies to all medical malpractice claims not falling under the Medical Malpractice Act, and thus the discovery rule applies to Defendant. Plaintiff also argues that cases arising under the Tort Claims Act support her contention that the discovery rule applies in the application of Section 41-4-15(A) to medical malpractice claims.

{12} Defendant argues that Roberts does not apply because Roberts was decided under Section 37-1-8, while the Tort Claims Act limitations statute, Section 41-4-15(A) controls this case. Defendant asserts that, pursuant to cases arising under the Tort Claims Act, Section 41-4-15(A) begins to run "when the act heralding the possible tort inflicts a damage which is physically objective and ascertainable," or "when the plaintiff begins to experience symptoms, not on a subsequent date when the cause of the symptoms is discovered." (Internal quotation marks and citation omitted.) Defendant argues that because decedent's death manifested and was ascertainable on May 17, 1999, the statute ran two years from that date. Defendant further argues that to apply Roberts would be contrary to the plain language of Section 41-4-15(A) that the statute begins to run at "the date of occurrence resulting in loss, injury or death." In order to place the parties' arguments in context, we briefly here distinguish between the discovery rule and the occurrence rule and then give a synopsis of Roberts and the Tort Claims Act cases predating Roberts. Later in this opinion we will discuss these cases in more detail to determine if they warrant application of the discovery rule to Section 41-4-15(A).

The Distinction Between the Discovery Rule and the Occurrence Rule

{13} The Court in Cummings stated that "[t]wo basic standards determine the beginning of the time period in which a patient must file a claim for medical malpractice. One is sometimes called the `discovery rule[,]' ... [and] [t]he other standard is sometimes called the `occurrence rule.'" 1996-NMSC-035, ¶ 47, 121 N.M. 821, 918 P.2d 1321. While the discovery rule focuses on the date the injury was discovered, the occurrence rule "fixes the accrual date at the time of the act of medical malpractice even though the patient may be oblivious of any harm." Id.

{14} The Cummings Court interpreted the limitations...