In a recent opinion, the New Mexico Supreme Court addressed the nuances of the New Mexico Medical Malpractice Act (MMA). The opinion stems from a plaintiff’s lawsuit against an OB/GYN who allegedly failed to diagnose a large malignant mass on the plaintiff’s left ovary.
The Facts of the Case
In 2006, the plaintiff was experiencing pain near her pelvic region and sought treatment from the defendant hospital in New Mexico. The plaintiff consulted with a doctor who was affiliated with the hospital. The doctor reviewed the hospital’s report, and, without scheduling a biopsy, he diagnosed the plaintiff with endometriosis. Neither the doctor nor the plaintiff followed up with the other after this initial meeting.
The plaintiff continued to suffer with the pelvic pain for about two more years when she finally consulted with another doctor in Wyoming. At this time, the plaintiff became aware that the defendant doctor did not inform her of a mass on her ovary. Unfortunately, additional tests showed the presence of ovarian cancer, which required a hysterectomy.
Following this discovery, the plaintiff filed a New Mexico medical malpractice lawsuit against the health system and her doctor. However, she could not remember her exact date of treatment or the doctor who treated her. She was eventually able to acquire some of the information, but the records still did not indicate her consultation with the defendant. She continued to pursue the lawsuit until almost a year later, when the paperwork indicating the consultation was found.
The Pertinent Rules in New Mexico
New Mexico’s Medical Malpractice Act (MMA) makes it so that an injured individual cannot bring a medical malpractice lawsuit against an individual or entity if the claim does not accrue within three years of the act. However, there is a very important exception to this act that explains that a person whose claim accrues within the last 12 months of the repose period still has 12 months from the time of the accrual to bring a lawsuit.
In the case above, the alleged malpractice was committed on August 8, 2006, so any claim after August 8, 2008 is considered to be a late-accruing claim. The accrual date in this situation was on September 22, 2008, which is when the plaintiff discovered the alleged malpractice, and when her due process exception began. This is important because her three-year time frame to commence the lawsuit was on August 8, 2009. In this instance, the plaintiff’s 12-month due process exception ended on September 22, 2009, but the plaintiff did not amend the complaint until July 9, 2010, making her claim barred by the statute of repose.
New Mexico Statute of Repose for Medical Malpractice Cases
In 1976, most states participated in an overhaul and reform of their medical malpractice rules. The MMA ensured that medical professionals had the opportunity to procure liability insurance to ensure that medical providers continued to practice and that patients had a route of recovery. Additionally, the New Mexico Legislature enacted a specific section that basically precluded almost all malpractice lawsuits from being commenced after three years of the act.
As with most aspects of the law, there is an exception to the statute. In this case, the Due Process Clauses of the United States and New Mexico Constitutions allow plaintiffs to have a reasonable amount of time to bring a lawsuit after a late-accruing claim has occurred. After consulting with many jurisdictions, the Court has agreed that 12 months is a reasonable period of time to file a claim after a late-accruing claim has commenced.
Conclusion
Unfortunately for the plaintiff in this case, her claim was still time-barred against the doctor. Here, the plaintiff initially filed a claim about 10 months prior to the end of the statute of limitations, and she filed the amended claim against the doctor about 21 months after the accrual date — which is longer than the due process exception allows.
Have You or a Loved One Been Injured by a Medical Professional in New Mexico?
If you or a loved one has been injured by a medical professional in New Mexico, you should strongly consider immediately contacting one of the dedicated New Mexico medical malpractice attorneys at the Fine Law Firm. It is important that you have a dedicated attorney to assist you in preparing your claim and ensuring that you meet all of the necessary procedural requirements. If you are successful, you may be entitled to monetary compensation to cover the damages you incurred as a result of the medical malpractice you experienced. Contact one of the attorneys at the Fine Law Firm today at 800-640-6590 to schedule your free initial consultation.
More Blog Posts:
State Supreme Court Holds in Favor of Carnival After Fatal Injury, New Mexico Personal Injury Lawyer Blog, November 29, 2017.
New Mexico’s Expert Requirement in Medical Malpractice Cases, New Mexico Personal Injury Lawyer Blog, November 13, 2017.