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Romero v. Lovelace Health System, Inc.

Supreme Court of New Mexico

December 5, 2019

MARLINA ROMERO, Plaintiff-Petitioner,
LOVELACE HEALTH SYSTEM, INC., A New Mexico Corporation, Defendant-Respondent, and WOMEN'S SPECIALISTS OF NEW MEXICO, LTD., a New Mexico Corporation, and KRISTINA CHONGSIRIWATANA, M.D., Defendants.


          Kennedy, Hernandez & Associates, P.C. Paul John Kennedy Arne Robert Leonard Jessica Hernandez Albuquerque, NM for Petitioner

          Rodey, Dickason, Sloan, Akin & Robb, P.A. Edward R. Ricco Paul R. Koller Albuquerque, NM for Respondent



         {¶1} Plaintiff filed an application to the New Mexico Medical Review Commission (MRC) alleging that as a result of medical negligence Plaintiff's pregnancy was aborted. The alleged negligence concerns Lovelace Health System, Inc. (Lovelace) in part. Lovelace is not a qualified provider under the Medical Malpractice Act (MMA), NMSA 1978, §§ 41-5-1 to -29 (1976, as amended through 2015). The narrow issue in this case is whether Plaintiff's application to the MRC tolled the running of the three-year limitations period for filing medical malpractice claims against Lovelace. In an unpublished opinion, our Court of Appeals affirmed the order of the district court which dismissed the complaint against Lovelace on the basis that Plaintiff's application to the MRC was not specific enough in making allegations against Lovelace to trigger the MMA's tolling provision on Plaintiff's claims against Lovelace. Romero v. Lovelace Health Sys., Inc., A-1-CA-35177, mem. op. ¶¶ 25, 27, 31 (N.M. Ct. App. Oct. 26, 2017) (nonprecedential). We reverse.


         {¶2} Plaintiff filed a complaint for medical negligence, respondeat superior, and damages, naming Lovelace, Women's Specialists of New Mexico, Ltd. (Women's Specialists), and Kristina Chongsiriwatana, M.D., as defendants. Lovelace filed a motion to dismiss, arguing that Plaintiff's claims against Lovelace were barred by the statute of limitations. Plaintiff responded that her complaint against Lovelace was not barred because prior to filing the complaint she filed an application to the MRC pursuant to the MMA, thereby tolling the statute of limitations. See § 41-5-22 (providing that upon submission of an application to the MRC, "[t]he running of the applicable limitation period in a malpractice claim shall be tolled"). The parties agreed that although Lovelace is not a qualified provider under the MMA, if Lovelace was named in the MRC application, the running of the limitations period was effectively tolled. See Grantland v. Lea Regional Hosp., 1990-NMSC-076, ¶¶ 4, 9, 110 N.M. 378, 796 P.2d 599 (holding that filing a medical malpractice application to the MRC "tolls the statute of limitations period" as to nonqualified health care providers). However, the parties disagreed on whether Lovelace was actually named in the MRC application, Plaintiff contending that it was and Lovelace contending that it was not.

         {¶3} The MRC application was presented to the district court to resolve the dispute. The MRC application is in the form of a letter from Plaintiff's attorneys that is addressed to the MRC. Beneath the caption, "A. Statement of Facts, Including Dates and Circumstances," the MRC application recites that in the fall of 2010 Plaintiff wanted to become pregnant. In June 2011 Plaintiff tested positive for pregnancy on a home pregnancy test that was confirmed in a June 14, 2011, visit to Women's Specialists. During this visit, Plaintiff reported that she was experiencing abdominal and pelvic pain that started around February 27, 2011. As a result, Plaintiff had an ultrasound, which the radiologist reported "showed no evidence of an ectopic or intrauterine pregnancy."

         {¶4} The MRC application adds that on June 17, 2011, Plaintiff arrived at Lovelace Medical Center complaining of a sharp pain in her lower abdomen and left side pelvic region, together with some vaginal spotting. Doctors at Lovelace Medical Center, which Lovelace operates, examined Plaintiff and ordered hormone studies and ultrasounds. The hormone studies were deemed consistent with being three to four weeks pregnant, and the radiology technician told Plaintiff there were signs of pregnancy. However, the Lovelace Medical Center doctor who signed the ultrasound reports said "endovaginal scans demonstrate a small intrauterine fluid filled structure" which was "probably a pseudogestational sac," and he also noted "a cystic structure within the right ovary with a 'ring of fire.'" After discussing these findings, the Lovelace doctors transferred Plaintiff to Lovelace Women's Hospital in an ambulance. Lovelace also operates Lovelace Women's Hospital.

         {¶5} The MRC application continues that at Lovelace Women's Hospital Dr. Chongsiriwatana performed a diagnostic laparoscopy for a presumed ectopic pregnancy and, finding no sign of an ectopic pregnancy, made the postoperative diagnosis of a right ovarian cyst. After the laparoscopy and draining of the cyst, and despite having discovered no visible evidence of an ectopic pregnancy, Dr. Chongsiriwatana treated Plaintiff with methotrexate, which carries a high risk of birth defects. Dr. Chongsiriwatana did not obtain Plaintiff's informed consent before administering methotrexate because Plaintiff was heavily medicated.

         {¶6} The MRC application concludes by stating that six days later, on June 23, 2011, when Plaintiff returned to Lovelace Women's Hospital to see Dr. Chongsiriwatana because she was still experiencing pain, Dr. Chongsiriwatana ordered hormone tests and an ultrasound. The ultrasound showed "a saclike structure in the uterus and normal ovaries." Upon receiving the ultrasound results, Dr. Chongsiriwatana told Plaintiff, "I'm sorry. We messed up. You have a normal pregnancy, and because we gave you methotrexate, you must abort it due to possible birth defects." Consequentially, Plaintiff's planned pregnancy was aborted. Subsequently Plaintiff suffered severe depression with added adverse effects on her relationships and employment. "[Plaintiff] and her boyfriend broke up, and [Plaintiff] saw a mental health counselor for several months."

         {¶7} Following the foregoing statement of facts in Plaintiff's application to the MRC is the caption, "B. Individuals Involved," and a subheading stating "The names, addresses, and phone numbers of all providers whose care may be germane to the issues are as follows[.]" However, the listing provided does not include Lovelace and Women's Specialists. Instead, the MRC application lists the actual doctors and other persons who treated Plaintiff, by name, address, and phone number. Finally, the MRC application has a third caption, "C. Medical Releases," with Plaintiff's medical releases attached. One of the medical releases is a Lovelace Health System medical release. This single document authorizes the release of Plaintiff's health information⸻from Lovelace Medical Center (Gibson), Lovelace Westside Hospital, Lovelace Medical Center (Downtown), and Lovelace Women's Hospital⸻to the MRC.

         {¶8} In ruling on Lovelace's motion to dismiss, the district court considered Plaintiff's application to the MRC as well as letters from the MRC requesting medical records from Plaintiff's providers, which the parties attached to their briefs. The district court converted the motion to dismiss into a motion for summary judgment under Rule 1-012(C) NMRA (stating that "if . . . matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 1-056 NMRA"). The district court ruled that "Lovelace was not named in the [MRC] application" as required by Section 41-5-15(B)(1), stating that "there are no dates and circumstances suggesting malpractice, negligence, alleged acts or respondeat superior on behalf of Lovelace." The district court therefore concluded that "the statute of limitations was not tolled as to Lovelace" and dismissed Plaintiff's claims against Lovelace.

         {¶9} The Court of Appeals memorandum opinion affirmed the district court. Romero, A-1-CA-35177, mem. op. ¶¶ 27, 30-31. The Court of Appeals held that "if a plaintiff wishes to utilize the tolling provision in Section 41-5-22 against particular providers, then he or she must identify the alleged act or acts of malpractice against those particular providers." Id. ¶ 25. Concluding that Plaintiff's MRC application failed to meet this standard of pleading, the Court of Appeals agreed with the district court that the tolling provision did not apply and affirmed dismissal of Plaintiff's claims against Lovelace. Id. ¶¶ 25, 30-31. We granted Plaintiff's petition for a writ of certiorari, and we now reverse.


         {¶10} Plaintiff argues that the manner in which its MRC application named Lovelace satisfies the text, structure, and purpose of the MMA and achieves the purpose of tolling the applicable limitations period. Plaintiff also asserts that the MMA does not impose a heightened standard of pleading for naming providers in an MRC application, especially in this case, because the Legislature did not intend for the MMA to protect health care providers such as Lovelace who choose to opt out of the screening requirements of the MMA. Lovelace responds that Plaintiff's MRC application only lists one or another Lovelace facility where Plaintiff received medical care. Lovelace asserts that an MRC application serves the same function that a complaint ordinarily serves to satisfy the statute of limitations. Lovelace argues that to rely on tolling with respect to any provider, an MRC application must give notice to a provider that a medical malpractice claim is being asserted against it. Lovelace further contends that because Plaintiff's application does not articulate what Lovelace did, either directly or indirectly or through an employee or agent, to give Lovelace notice of Plaintiff's claims against it, "the application did not toll the limitation period against Lovelace." For the reasons that follow, we conclude that Plaintiff's arguments prevail.

         A. Standard of Review

         {¶11} New Mexico courts disfavor summary judgment, as it is a drastic remedy to be used with great caution. Romero v. Philip Morris, Inc., 2010-NMSC-035, ¶ 8, 148 N.M. 713, 242 P.3d 280 (citing Pharmaseal Labs., Inc. v. Goffe, 1977-NMSC-071, ¶ 9, 90 N.M. 753, 568 P.2d 589). "This Court's review of orders granting or denying summary judgment is de novo. 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." Cahn v. Berryman, 2018-NMSC-002, ¶ 12, 408 P.3d 1012 (internal quotation marks and citation omitted). "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 merits." Id. (internal quotation marks and citation omitted). To the extent we ...

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