United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on Plaintiffs' Motion for
Leave to File Amended Complaint (Doc. 46) and Plaintiffs'
Motion to Stay Ruling on Plaintiffs' Motion for Leave to
File Amended Complaint (Doc. 54). These Motions were referred
to me by United States District Judge Martha Vazquez on
January 25, 2018 (Doc. 124). I held a hearing on these
matters on May 16, 2018. For the following reasons, I
recommend denying Plaintiffs' Motion to Stay Ruling on
Plaintiffs' Motion for Leave to File Amended Complaint
and granting in part and denying in part Plaintiffs'
Motion for Leave to File Amended Complaint.
moved to amend the Complaint on May 9, 2017. Doc. 46. Broadly
speaking, the purpose of the amendment is to add claims
against Dr. Elizabeth Baca. Plaintiffs represent that on
April 12, 2017, they received information that Dr. Baca, not
Defendant Dr. Pallister, was Nurse Nancy Rhien's
supervising physician. Doc. 46 at 2. In response to
Plaintiffs' Motion to Amend, Defendants contended, in
part, that the Motion should be denied because Dr. Baca is a
“qualifying health care provider” and Plaintiffs
had not complied with the administrative prerequisites to
assert malpractice claims against her. See NMSA
1978, § 41-5-15(A) (“No malpractice action may be
filed in any court against a qualifying health care provider
before application is made to the medical review commission
and its decision is rendered.”).
recognition of their obligations under Section 41-5-15,
Plaintiffs thereafter moved to stay ruling on the Motion to
Amend in order to give them an opportunity to seek review by
the medical review commission. Doc. 54. Plaintiffs filed the
Motion to Stay on June 7, 2017. Doc. 54. In Defendants'
response to Plaintiffs' Motion to Stay, Defendants
represented that as of June 26, 2017, Defendants had received
no notice as to Plaintiffs having filed an application with
the medical review commission. Doc. 69 at 3.
hearing I held on May 16, 2018, I inquired regarding the
status of Dr. Baca's medical review commission
proceedings. Plaintiffs' counsel initially represented
that he was unsure as to whether Plaintiffs had filed an
application with the medical review commission because his
co-counsel, who was not present, was handling that aspect of
the case. Motion Hearing, 5/16/2018, 10:25-11:25.
Later in the hearing, Plaintiffs' counsel represented
that he received notification from his co-counsel that an
application against Dr. Baca had been filed. Motion
Hearing, 5/16/2018, 26:00. I inquired as to when the
application was filed. Plaintiffs' counsel responded that
he did not know the date but that his co-counsel indicated
that the matter had been set for a hearing, though he did not
know the date of the purported hearing. Motion
Hearing, 5-16-2018, 26:30 - 27:30. In response to this
representation, attorney Brendan O'Reilly, who is
representing Dr. Baca before the medical board, represented
that although Plaintiffs had filed a complaint against Dr.
Baca with the medical board, his office had received no
notification of an application having been filed against Dr.
Baca with the medical review commission, much less that a
hearing was scheduled before the commission. Motion
Hearing, 5/16/2018, 27:48. Mr. O'Reilly indicated
that it was likely that Plaintiffs had mistakenly conflated
their filing of a complaint with the medical board with their
obligations under Section 45-5-15 to file an application with
the medical review commission. Motion Hearing,
5/16/2018, 28:40. Plaintiffs' counsel acknowledged that
Mr. O'Reilly may be correct. Motion Hearing,
the indeterminacy of proceedings against Dr. Baca before the
medical review commission, I recommend denying
Plaintiff's Motion to Stay Ruling on the Motion to Amend.
Although Plaintiffs filed this Motion nearly one year ago, it
appears that they have not yet filed an application against
Dr. Baca with the medical review commission. Granted, this
failure may be due to Plaintiffs' conflation of the
medical board with the medical review commission. Mistaken or
not, I am not inclined to allow Plaintiffs' Motion to
Amend to indefinitely remain on the docket while Plaintiffs
pursue the required administrative proceedings against Dr.
Baca. Further, when asked about prejudice, Plaintiffs stated
that there would be little prejudice in the event they were
required to refile the Motion to Amend once they had complied
with the statutory prerequisites of the Medical Malpractice
Act. Accordingly, the Motion to Stay should be denied.
to the Motion to Amend, I further recommend granting in part
and denying in part this Motion. In briefing, Plaintiffs
proposed dismissing their claim for negligent infliction of
emotional distress. Doc. 46 at 2-3. Defendants did not object
to the withdrawal of this claim. Doc. 48 at 10. Accordingly,
if it remains Plaintiffs' intention to withdraw this
claim, I recommend permitting Plaintiffs to amend the
Complaint to dismiss this claim.
regard to the remaining amendments, however, I recommend that
Plaintiffs' Motion be denied without prejudice to the
extent that it seeks to assert claims against Dr. Baca at
this time. As noted above, the statute is clear that
“[n]o malpractice action may be filed in any court
against a qualifying health care provider before application
is made to the medical review commission and its decision is
rendered.” Section 41-5-15. At the hearing, Plaintiffs
contended that there existed some “ambiguity” in
regard these statutory prerequisites despite the
statute's language. The Court understands Plaintiffs to
be contending that substantial compliance with the statutory
prerequisites may be sufficient to permit a plaintiff to file
suit despite no decision by the medical review commission
being rendered. The Court does not have before it, however,
any record of compliance with the statutory prerequisites. As
a result, I recommend finding that the appropriate procedure
at this point is to deny Plaintiffs' Motion without
present case is substantially similar to the facts in
Belser v. O'Cleireachain, 2005-NMCA-073, 114
P.3d 303. In Belser, the plaintiff filed a complaint
against a doctor before filing an application with the
medical review commission. Id. at ¶ 1. Instead
of immediately moving to dismiss, however, the defendant
stipulated to a stay of proceedings until thirty days after
the medical review commission issued its decision.
Id. at ¶ 2. Approximately four months later,
the defendant moved to lift the stay and dismiss the case
because the plaintiff had apparently not taken in any action
before the medical review commission. Id. The
district court ultimately lifted the stay and dismissed the
complaint without prejudice due to the plaintiff's
failure to take any action before the medical review
commission for over eight months. On appeal, the New Mexico
Court of Appeals affirmed the district court's decision.
In so doing, the court recognized that although filing an
application with the medical review commission is not a
jurisdictional prerequisite to filing suit, it remains a
“mandatory procedural threshold.” Id. at
¶¶ 6-7 (citing Rupp v. Hurley,
2002-NMCA-023, 41 P.3d 914). The court further noted that in
such circumstances a dismissal without prejudice is the
appropriate remedy. Id. at ¶ 9. In sum, the
court concluded that the district court appropriately
exercised its discretion to dismiss the complaint without
prejudice due to the plaintiffs delay in initiating
proceedings before the medical review commission.
similar reasons, I recommend denying Plaintiffs' Motion
in regard to claims against Dr. Baca. Plaintiffs have had
ample time to properly initiate proceedings before the
medical review commission. Having failed to do so, the
appropriate procedure is to deny Plaintiffs' Motion
without prejudice. Assuming Plaintiffs file with medical
review commission, once it issues its decision, Plaintiff may
refile their Motion to Amend, if they so choose.
 The medical review commission is the
entity responsible for reviewing malpractice claims against
health care providers covered by the Medical Malpractice Act.
See NMSA 1978, § 41-5-14. Accordingly, it is
the entity to which a potential plaintiff must submit an
application in order to assert a medical practice claim
against a qualifying health care provider. NMSA 1978, §
41-5-15. Conversely, the purposes of the medical board are to
“issue licenses to qualified physicians,
…discipline incompetent or ...