PROCEEDING ON CERTIORARI Nan G. Nash, District Judge
Offices of Felicia C. Weingartner Felicia C. Weingartner Law
Office of Cid D. Lopez, LLC Cid Dagward Lopez Carmela D.
Starace for Petitioner
Shanor LLP William P. Slattery Dana Simmons Hardy for
K. NAKAMURA, CHIEF JUSTICE.
The Medical Malpractice Act (MMA), NMSA 1978, §§
41-5-1 to -29 (1976, as amended through 2015) forecloses any
cause of action that does not accrue within three years of
the act of malpractice. See § 41-5-13. In this
case, we clarify the contours of the due process exception to
this limitation and hold that plaintiffs with late-accruing
medical malpractice claims, i.e., claims accruing in the last
twelve months of the three-year repose period, shall have
twelve months from the time of accrual to commence suit.
Petitioner Sarah Cahn invoked the due process exception but
did not file her late-accruing medical malpractice claim
against Respondent John D. Berryman, M.D., within twelve
months. Twenty-one months elapsed between the accrual date of
Cahn's claim against Dr. Berryman and the date she filed
suit against him. Thus, her claim is barred by Section
41-5-13. We affirm the Court of Appeals and write to clarify
the legal principles upon which our decision is based.
In 2006, Cahn sought treatment for pelvic pain at Lovelace
Women's Hospital in Albuquerque. In May 2006, Cahn
received a pelvic ultrasound. The ultrasound report indicated
that there was a complex mass on Cahn's left ovary and
noted that "[a] malignancy need[ed] to be
On August 8, 2006, Cahn consulted Dr. Berryman. This was Dr.
Berryman's only appointment with Cahn. At that time, Dr.
Berryman worked for Sandia OB/GYN Associates, P.C., in an
office located in the Lovelace Women's Hospital medical
complex. Dr. Berryman reviewed the ultrasound report, but did
not schedule a biopsy. Rather, he examined Cahn, diagnosed
her as having endometriosis, and provided her with medication
for that condition intending that she return to his office
for a follow-up visit. Contrary to Dr. Berryman's
intention, Cahn never returned for follow-up care.
On September 22, 2008, while seeing an OB/GYN in Wyoming for
her continuing pelvic pain, Cahn learned that Dr. Berryman
had failed to inform her of the mass on her left ovary.
Further tests revealed that Cahn had ovarian cancer, and on
October 15, 2008, she underwent a hysterectomy in New York.
After surgery, Cahn set out to sue Lovelace Health System,
Inc., (LHS) and her doctors. She could not, however, remember
Dr. Berryman's name or precisely when he treated her.
Cahn took steps to discover Dr. Berryman's name and the
date of her consultation with him. She submitted record
requests to various Lovelace health care provider entities
and other medical providers in Albuquerque, called one
Lovelace entity, and requested explanation of benefits forms
from her health insurer. But the documents and information
she received in response did not identify Dr. Berryman. After
Cahn retained counsel, additional record requests were
submitted by counsel on Cahn's behalf to various Lovelace
entities, but the records received in response to those
requests similarly did not reflect the consultation with Dr.
On April 10, 2009, Cahn filed a complaint alleging medical
malpractice against LHS and several other defendants. Dr.
Berryman was not a named defendant. On July 1, 2010, LHS
produced records in response to Cahn's requests for
production showing that Cahn received care from Dr. Berryman
on August 8, 2006. On July 9, 2010, exactly one week after
receiving these records, Cahn filed an amended complaint in
which she named Dr. Berryman as a defendant and asserted a
medical malpractice claim against him. Before proceeding
further, we pause to emphasize the dispositive facts which
can be discerned from the foregoing.
The act of malpractice that Cahn alleges Dr. Berryman
committed occurred on August 8, 2006. Cahn's malpractice
claim accrued on September 22, 2008, the date she discovered
that Dr. Berryman did not alert her to the findings indicated
by the May 2006 ultrasound report. See Roberts v. Sw.
Cmty. Health Servs., 1992-NMSC-042, ¶ 27, 114 N.M.
248, 837 P.2d 442 ("[T]he cause of action accrues when
the plaintiff knows or with reasonable diligence should have
known of the injury and its cause."). Cahn's claim
accrued ten and one-half months before August 8, 2009, when
the three-year repose period of Section 41-5-13 was set to
expire. Cahn sued Dr. Berryman on July 9, 2010, three years
and eleven months after Dr. Berryman's act of malpractice
occurred and one year and nine and one-half months (more than
twenty-one months) after Cahn's claim accrued. A
pictorial representation of these events is included at the
end of this opinion as Appendix A.
In the Second Judicial District Court, Dr. Berryman moved for
summary judgment arguing that Section 41-5-13 barred
Cahn's malpractice claim. The court denied Dr.
Berryman's motion concluding that application of the
statutory bar would violate Cahn's right to due process
as guaranteed by the United States and New Mexico
Constitutions. The district court later denied Dr.
Berryman's motion for reconsideration on the question of
the applicability of Section 41-5-13. Dr. Berryman then
requested that the court certify the statute-of-repose issue
for interlocutory appeal. The court entered an order
certifying the issue, but the Court of Appeals denied Dr.
The district court then set the case for a jury trial, but
Cahn and Dr. Berryman entered into a stipulated conditional
directed verdict and final judgment, stating that Dr.
Berryman was liable to Cahn for medical negligence in the
amount of $700, 000 but preserving for appeal the issue of
whether Section 41-5-13 barred Cahn's malpractice claim.
The Court of Appeals, in a divided opinion, concluded that
Section 41-5-13 did bar Cahn's claim and reversed the
district court, which had "ruled otherwise."
Cahn v. Berryman, 2015-NMCA-078, ¶ 1, 355 P.3d
58, cert. granted, 2015-NMCERT-007.
Cahn petitioned for a writ of certiorari, which we granted,
exercising our jurisdiction under Article VI, Section 3 of
the New Mexico Constitution and NMSA 1978, Section 34-5-14(B)
(1972). We issued the writ to consider whether the
application of Section 41-5-13 to bar Cahn's malpractice
claim violated her right to due process.
Standard of Review
"This Court's review of orders granting or denying
summary judgment is de novo." Zamora v. St. Vincent
Hosp., 2014-NMSC-035, ¶ 9, 335 P.3d 1243.
"Summary judgment is appropriate in the absence of any
genuine issues of material fact and where the movant is
entitled to judgment as a matter of law." Id.
"In reviewing an order on summary judgment, we examine
the whole record on review, considering the facts in a light
most favorable to the nonmoving party and drawing all
reasonable inferences in support of a trial on the
Section 41-5-13: the MMA's Statute of
"Like many other states, New Mexico reformed its medical
malpractice laws in 1976 in response to a much discussed
medical malpractice crisis." Cummings v.
X-Ray Assocs. of N.M., P.C., 1996-NMSC-035, ¶
40, 121 N.M. 821, 918 P.2d 1321. Surveying that crisis, the
Court of Appeals observed that
[t]he insurance crisis that prompted the enactment of the MMA
arose out of a nationwide perception that medical malpractice
insurance was increasingly becoming unavailable. The specific
event that triggered concern in New Mexico was the announced
withdrawal in 1975 of the Travelers' Insurance Company as
the underwriter of the New Mexico Medical Society's
professional liability program. Travelers' withdrawal
jeopardized health care providers' protection against
liability claims and, in turn, compromised the legal remedies
available to health care consumers injured by the negligence
of health care providers.
Baker v. Hedstrom, 2012-NMCA-073, ¶ 22, 284
P.3d 400 (citing Ruth L. Kovnat, Medical Malpractice
Legislation in New Mexico, 7 N.M. L. Rev. 5, 7
(1976-77)), aff'd on other grounds,
2013-NMSC-043, 309 P.3d 1047. The insurance crisis prompted
concerns about the departure of medical providers from New
Mexico as well as the availability of recovery for New
Mexicans who suffer injuries resulting from medical
malpractice. See id.
The MMA sought to address this crisis by ensuring that
professional liability insurance was available to health care
providers in New Mexico. Section 41-5-2. The Legislature
"concluded that the potential for a malpractice suit
being filed long after the act of malpractice was one of the
reasons that insurance carriers were withdrawing from medical
malpractice liability coverage." Cummings,
1996-NMSC-035, ¶ 40. To address this problem, the
Legislature enacted Section 41-5-13 and precluded
"almost all malpractice claims from being brought more
than three years after the act of malpractice."
Cummings, 1996-NMSC-035, ¶¶ 39-40.
Section 41-5-13 provides as follows:
No claim for malpractice arising out of an act of malpractice
which occurred subsequent to the effective date of the [MMA]
may be brought against a health care provider unless filed
within three years after the date that the act of malpractice
occurred except that a minor under the full age of six years
shall have until his ninth birthday in which to file. This
subsection . . . applies to all persons regardless of
minority or other legal disability.
provision operates as a statute of repose. Tomlinson v.
George, 2005-NMSC-020, ¶ 8, 138 N.M. 34, 116 P.3d
105. Statutes of repose reflect a legislative policy to
extinguish, after the passage of a period of time, all
liability for claims not filed by the end of the repose
period irrespective of whether the claims have already
accrued or have yet to accrue. See id. Statutes of
repose begin to run when a statutorily designated event
occurs, "without regard to when the underlying cause of
action accrues and without regard to the discovery of injury
or damages." Garcia ex rel. Garcia v. LaFarge,
1995-NMSC-019, ¶ 14, 119 N.M. 532, 893 P.2d 428; see
also Restatement (Second) of Torts § 899(g) (Am.
Law Inst. 1979) ("[S]tatutes [of repose] set a
designated event for the statutory period to start running
and then provide that at the expiration of the period any
cause of action is barred . . . ."). "Section
41-5-13's statutorily determined triggering event is . .
. the act of medical malpractice and does not entail whether
the injury has been discovered." Tomlinson,
2005-NMSC-020, ¶ 9 (internal quotation marks and
citation omitted). This Court has concluded that "the
three-year time limit of Section 41-5-13 establishes a
reasonable termination point for medical malpractice
claims." Cummings, 1996-NMSC-035, ¶ 39.
The Due Process Exception to the Application of
The Due Process Clauses of the United States and New Mexico
Constitutions, U.S. Const. amend. XIV, § 1; N.M. Const.,
art. II, § 18, provide the basis for an exception to the
application of the MMA's statute of repose.
Garcia, 1995-NMSC-019, ¶¶ 35-36 (citing
Terry v. N.M. State Highway Comm'n,
1982-NMSC-047, 98 N.M. 119, 645 P.2d 1375). Once a cause of
action accrues, it is subject to the protections of due
process. See Garcia, 1995-NMSC-019, ¶¶
33-36 (citing Wilson v. Iseminger, 185 U.S. 55, 62
(1902)); see also Terry, 1982-NMSC-047, ¶¶
9-17. Hence, Garcia held that due process requires
that the plaintiff have a reasonable amount of time in which
to commence suit after any late-accruing medical malpractice
claim has accrued. See 1995-NMSC-019, ¶¶
35-36. This due process exception is implicated,
however, only if a plaintiff's claim accrues late within
the three-year repose period. See Tomlinson,
2005-NMSC-020, ¶ 23. Due process does not prevent
Section 41-5-13 from cutting off claims that are discovered
after the three-year repose period has run. Id.
When a medical malpractice claim accrues late within the
repose period and the plaintiff requires additional time
beyond that period to commence suit, to what amount of time
is the plaintiff entitled as a consequence of due process
before Section 41-5-13 extinguishes the claim? Three cases
have touched directly upon this question.
In Garcia, the plaintiff's malpractice claim
accrued eighty-five days before the expiration of the
MMA's three year repose period, and we held that
eighty-five days is a constitutionally insufficient amount of
time for the plaintiff to commence suit. See
1995-NMSC-019, ¶¶ 37-38. In Cummings, by
contrast, the plaintiff's claim accrued eighteen months
before the expiration of the repose period, and we determined
that eighteen months was a constitutionally reasonable amount
of time. See 1996-NMSC-035, ¶¶ 57-59. And
in Tomlinson, the plaintiff's claim accrued
thirty-two months before the expiration of the repose period,
and we determined that this was most certainly a
constitutionally reasonable amount of time. See
2005- NMSC-020, ¶¶ 3, 23. Expanding our inquiry
beyond the MMA context, we glean additional insight into the
answer to the issue before us.
New Mexico appellate courts have upheld as consistent with
due process the application of statutory bars that create
limitations periods of one year. See Terry,
1982-NMSC-047, ¶ 17 ("We have upheld limitations
periods as short as one year when justified by specific
considerations."); Martinez v. Pub. Emps. Ret.
Ass'n of N.M., 2012-NMCA-096, ¶¶ 15,
40-41, 286 P.3d 613 (observing that the one-year deadline set
forth in NMSA 1978, Section 10-11-14.5(A) (1997)
"functions like a statute of repose" and upholding
the application of that statutory provision as consistent
with due process). Other jurisdictions have done the same.
See, e.g., Canadian N. Ry. Co. v. Eggen,
252 U.S. 553, 562-63 (1920) (concluding that a one-year
statute of limitations for a personal injury tort action was
"reasonably sufficient to enable an ordinarily
diligent man to institute proceedings for . . . [the]
protection [of his rights]" (emphasis added)). The
Supreme Court of Ohio, when considering an analogous due
process exception to a medical malpractice statute of repose,
said that "[a] reasonable time in which to bring a
medical malpractice action was defined . . . as one
year after the discovery of the malpractice."
Gaines v. Preterm-Cleveland, Inc., 514 N.E.2d 709,
716 (Ohio 1987) (emphasis added) (internal quotation marks
and citation omitted). Limitations periods of less than a
year have also been upheld as consistent with due process.
See Ferguson v. N.M. State Highway Comm'n,
1982-NMCA-180, ¶¶ 12, 14-15, 99 N.M. 194, 656 P.2d
244 (holding that the ninety-day notice requirement of NMSA
1978, § 41-4-16(A) (1977, as amended 2013) within the
Tort Claims Act does not deny due process because it is not
unreasonably short); Littlewolf v. Hodel, 681
F.Supp. 929, 939-40 (D.D.C. 1988) (collecting cases upholding
"statutes of limitations barring suit within similarly
short periods of time [i.e., 180 days]"); Robin Miller,
Validity of Medical Malpractice Statutes of Repose,
5 A.L.R.6th 133, § 18 (2005 & Supp. to the present)
(collecting cases from jurisdictions that have adjudicated
constitutional challenges to analogous medical malpractice
statutes of repose). From these various authorities, we draw
We hold that twelve months is a constitutionally reasonable
period of time within which to file an accrued claim
regardless of whether the claim accrues twelve months or one
day before the expiration of the three-year repose period.
Our holding should not, however, be interpreted to mean that
twelve months is the minimum time period that will
satisfy due process. Our decision today does not preclude our
Legislature from shortening-or lengthening-the additional