Cahn v. Berryman

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'05- 16:46:29 2018.01.10

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2018-NMSC-002

Filing Date: November 20, 2017

Docket No. S-1-SC-35302

SARA CAHN,

Plaintiff-Petitioner,

v.

JOHN D. BERRYMAN, M.D.,

Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Nan G. Nash, District Judge

Law Offices of Felicia C. Weingartner
Felicia C. Weingartner
Albuquerque, NM

Law Office of Cid D. Lopez, LLC
Cid Dagward Lopez
Albuquerque, NM

Carmela D. Starace
Albuquerque, NM

for Petitioner

Butt, Thornton & Baehr, P.C.
Emily A. Franke
Albuquerque, NM

Hinkle Shanor LLP
William P. Slattery
Dana Simmons Hardy
Santa Fe, NM

for Respondent

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 OPINION

NAKAMURA, Chief Justice.

{1} 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.

{2} Petitioner Sara 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.

I. BACKGROUND

{3} 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 excluded.”

{4} 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.

{5} 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.

{6} 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

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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. Berryman.

{7} 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.

{8} 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.

{9} 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. Berryman’s application.

{10} 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.

{11} Cahn petitioned for a writ of certiorari, which we granted, exercising our jurisdiction

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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.

II. DISCUSSION

A. Standard of Review

{12} “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
merits.” Id.

B. Section 41-5-13: the MMA’s Statute of Repose

{13} “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.

{14} 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

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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.

{15} 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.

This 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.

C. The Due Process Exception to the Application of Section 41-5-13

{16} 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.

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{17} 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.

{18} 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.

{19} 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 our conclusion.

{20} We hold that twelve months is a constitutionally reasonable period of time within

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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 time plaintiffs with late-accruing claims receive. To ensure that
our holding is clear, we offer some illustrations of the rule we have articulated.

{21} If a malpractice claim accrues (i.e., the plaintiff discovers that she has suffered
malpractice) twelve months prior to the expiration of the three-year repose period, the
plaintiff shall have the remainder of the repose period (twelve months) to commence suit.
If, however, the claim accrues six months prior to the expiration of the repose period, the
plaintiff will have twelve months from that accrual date to file her claim, i.e., the remainder
of the repose period plus an additional six months after the expiration of the repose period
(a total of twelve months). If the claim accrues on the last day of the repose period, the
plaintiff shall have twelve months from that last day to file suit. These examples are offered
to illustrate that a plaintiff with a late-accruing claim shall have twelve months from
whichever date the late-accruing claim accrues to file suit. But the benefit of additional time
that this due process exception provides inures only to plaintiffs with late-accruing claims,
i.e., claims accruing in the last twelve months of the three-year repose period. Plaintiffs with
claims accruing in the first twenty-four months of the repose period shall not benefit from
this exception to Section 41-5-13 as claims that accrue in that time period are not “late
accruing.” Additionally, Section 41-5-13 extinguishes any claim accruing after the three-
year repose period has expired.

{22} We recognize that our decision to grant plaintiffs with late-accruing medical
malpractice claims a twelve-month period in which to file those claims is inconsistent with
Garcia where we determined that a plaintiff with a late-accruing medical malpractice claim
would receive the benefit of the statute of limitations which would have been applicable had
Section 41-5-13 never been enacted. 1995-NMSC-019, ¶ 37. We now overrule this specific
portion of Garcia. Having established the principles that guide our analysis, we need only
apply them to the facts in Cahn’s case. Before doing so, we respond to the dissent.

{23} The dissent claims that our ruling today is a form of “legislating” that “entangles and
imperils fundamental separation-of-powers jurisprudence” and is inconsistent with
“longstanding” due-process jurisprudence because the twelve-month rule we embrace
applies “in every case regardless [of] the circumstances [presented].” Dissenting Op. ¶¶ 53-
54, 63, 74. Clearly, we disagree.

{24} Our Legislature has not made accommodations for plaintiffs, like Cahn, whose
medical malpractice claims accrue late in Section 41-5-13’s three-year repose period and
who require additional time beyond the three-year period to file claims. Other state
legislatures have provided such accommodations in statute of repose contexts other than
medical malpractice. See, e.g., Ariz. Rev. Stat. Ann. § 12-552(B) (1992) (allowing a one-
year period for the commencement of suit on claims accruing in the final year of an eight-

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year statute of repose); Cal. Civ. Proc. Code § 337.1(b) (West 1967) (allowing a one-year
period for the commencement of suit on claims accruing in the final year of a four-year
statute of repose); Colo. Rev. Stat. Ann. § 13-80-104(2) (West 2001) (allowing a two-year
period for the commencement of suit on claims accruing in the final two years of a six-year
statute of repose). Our Legislature’s inaction is significant. Once we embrace the
conclusion that Cahn is entitled, as a consequence of due process, to some additional period
of time beyond that provided in the MMA to initiate her action against Dr. Berryman, we
cross a Rubicon of sorts. Whatever answer we supply to the question “To how much
additional time, exactly, is Cahn entitled?” we necessarily inject our judgment into a sphere
otherwise controlled by statute and must engage in the type of line drawing that is best
handled in the first instance by the Legislature. See Hartford Ins. Co. v. Cline,
2006-NMSC-033, ¶ 8, 140 N.M. 16, 139 P.3d 176 (“The predominant voice behind the
declaration of public policy of the state must come from the legislature . . . .”). The dissent
contends that we may minimize our intrusion by resorting to “applicable background statute
of limitations.” Dissenting Op. ¶¶ 43-44. While this claim has surface level appeal, it does
not withstand scrutiny.

{25} In an earlier section of this opinion, we noted that our Legislature enacted the MMA
and its statute of repose, in part, to supplant the very background statute of limitations the
dissent insists should control. If this is so, then applying the background statute of
limitations is, if anything, the result most inconsistent with the Legislature’s intentions and
the result most intrusive and susceptible to criticism based on separation of powers
principles. This point seems to have been overlooked by Terry and Garcia. Neither case
provides a meaningful explanation why the background statute of limitations should apply.
Terry merely notes that the judiciary does not “set appropriate limitations periods.” 1982-
NMSC-047, ¶ 17. Our decision to extend to Cahn—and any other plaintiff with a late-
accruing MMA claim—an additional year from the date of accrual is not “setting a
limitations period.” The limitations period, or more accurately the repose period, in the
MMA is three years. Our opinion today does nothing to change this fact. The additional
time we provide plaintiffs with late-accruing claims is a constitutionally mandated exception
to the application of this three-year period.

{26} The assertion that the rule we embrace fails to account for the particular facts of each
case reflects a misunderstanding of the rule. It is necessarily tethered to the facts of each
case and extends the repose period one year beyond the accrual date of the particular late-
accruing claim at issue. The rule mirrors and, thus, is faithful to the structure of the MMA
itself. Like any other MMA claimant, plaintiffs with late-accruing claims must file within
a fixed amount of time. If they fail to do so, their claim is lost. If our Legislature determines
that our rule is not faithful to the MMA or fails to reflect policy it deems most wise, it is free
(as we have already noted) to enact a provision that reflects its judgment about the most
prudent way to accommodate plaintiffs with late-accruing claims.

D. Cahn Filed Her Late-Accruing Claim Against Dr. Berryman More Than Twelve
Months After It Accrued

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{27} Cahn’s claim against Dr. Berryman accrued late. At the time her claim accrued, ten
and one-half months remained before the expiration of the repose period. Cahn filed suit
against Dr. Berryman after the expiration of the repose period. One year and nine and one-
half months—more than twenty-one months—elapsed between the date Cahn’s claim against
Dr. Berryman accrued and the date she filed the amended complaint in which he was named
as a defendant. Thus, at the time Cahn commenced suit against Dr. Berryman, more than
twelve months had elapsed from the date that Cahn’s claim accrued. Cahn has not argued
that Dr. Berryman’s identity was fraudulently concealed from her. See Tomlinson, 2005-
NMSC-020, ¶ 2 (recognizing that the statutory period of repose may be tolled when “the
plaintiff does not discover the alleged malpractice within the statutory period as a result of
the defendant’s fraudulent concealment.”). Accordingly, Cahn’s claim against Dr. Berryman
is barred by Section 41-5-13.

III. CONCLUSION

{28} Due process does not preclude application of Section 41-5-13 to bar Cahn’s claim
against Dr. Berryman. We affirm the Court of Appeals and remand to the district court for
the entry of final judgment or any further proceedings the court deems necessary.

{29} IT IS SO ORDERED.

____________________________________
JUDITH K. NAKAMURA, Chief Justice

WE CONCUR:

____________________________________
CHARLES W. DANIELS, Justice

____________________________________
BARBARA J. VIGIL, Justice

EDWARD L. CHÁVEZ, Justice, specially concurring

PETRA JIMENEZ MAES, Justice, dissenting

CHÁVEZ, Justice (concurring in result).

{30} I concur in the result reached by the majority of the Court. However, I cannot join
in the holding that “plaintiffs with late-accruing medical malpractice claims . . . shall have
twelve months from the time of accrual to commence suit.” Maj. op. ¶ 1. I am not
persuaded by either the majority or the dissenting opinion that this Court should adopt a
specific time period within which a plaintiff must file a lawsuit when due process
considerations are at issue. The polestar question in a due process analysis is whether

9
reasonable time remains after a cause of action accrues within which a plaintiff, exercising
due diligence, can file his or her claim before it is time-barred under a statute of repose. If
the answer is yes, then the claim must be filed within the statute of repose. If the answer is
no, then the claim must be filed within a reasonable time after the statute of repose has
expired. When reasonableness is the essence of a substantive due process claim, due process
abhors the expediency of thoughtlessness. By necessity the due process analysis has always
been a fact-based analysis which takes into account more than the date that the plaintiff’s
claim accrues. Twelve months from when an action accrues under the Medical Malpractice
Act (MMA), NMSA 1978, §§ 41-5-1 to -29 (1976, as amended through 2015) may prove
to be a reasonable amount of time within which a plaintiff, exercising due diligence, can file
his or her claim. But whether the amount of time is reasonable depends on the complexity
of the case circumstances–not just when the cause of action accrued. For example, the
complicated medical provider relationships that exist today, and the difficulty in identifying
which doctor provided what treatment, or interpreted what lab results, radiographs, or so on,
may make twelve months constitutionally inadequate. Nevertheless, because I conclude that
Cahn had a reasonable time to bring her cause of action before the statute of repose expired,
I concur in the result reached by the majority.

{31} I also do not agree with the dissenting opinion’s suggestion that Garcia ex rel.
Garcia v. LaFarge, 1995-NMSC-019, 119 N.M. 532, 893 P.2d 428, essentially requires a
three-year accrual statute of limitations in MMA cases when the cause of action accrues
within the statute of repose. See dissenting op. ¶¶ 48, 53. In Garcia, this Court found that
eighty-five days before the statute of repose would run was too short a period of time for the
Garcias, who were the plaintiffs, to bring a lawsuit against the defendant. Id. ¶ 37. Because
the Legislature had not specified a reasonable period of time within which to bring claims
that accrue shortly before the running of the statute of repose, in Garcia this Court imposed
the three-year accrual statute of limitation of NMSA 1978, Section 37-1-8 (Repl. Pamp.
1990). 1995-NMSC-019, ¶ 37. The Garcia Court held that as it applied to the Garcias,
Section 41-5-13 violated due process—the Court did not hold that the statute of repose was
unconstitutional on its face. 1995-NMSC-019, ¶¶ 36-37. Nor did the Garcia Court hold that
Section 37-1-8 would be the controlling statute of limitation for MMA cases. 1995-NMSC-
019, ¶ 37. Had it done so, I would vote to overrule Garcia simply on the basis of separation
of powers.

{32} In addition, the procedural history in Garcia is remarkably different from the instant
case. In Garcia, the latest act of malpractice occurred on February 8, 1989. 1995-NMSC-
019, ¶ 1. The plaintiffs had until February 8, 1992 to file a lawsuit. The cause of action
arose out of a cardiac arrest that occurred on November 16, 1991, leaving the plaintiffs only
eighty-five days to file suit under the statute of repose. Id. ¶¶ 1, 6, 13. On February 24,
1992, the Garcias filed an application with the Medical Review Commission. Id. ¶ 1. Under
the provisions of Section 41-5-15(A), “[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.” The statute of repose is tolled “until thirty days
after the panel’s final decision is entered in the permanent files of the commission and a

10
copy is served upon the claimant and his attorney by certified mail.” Section 41-5-22; see
also Grantland v. Lea Reg’l Hosp., 1990-NMSC-076, ¶ 9, 110 N.M. 378, 796 P.2d 599
(holding that the statute of repose is tolled regardless of the outcome of the case). The
Garcias filed their claim against the correct doctor 109 days from when it accrued, or stated
differently, just sixteen days after the running of the limitation period in the statute of repose.

{33} Filing an application with the Commission as to one provider does not toll the
limitations period as to another provider who was not named in the original application and
for whom the statutory period in which to file a cause of action has passed. See Meza v.
Topalovski, 2012-NMCA-002, ¶ 8, 268 P.3d 1284. I make this latter point because Cahn
filed a claim with the Commission, but she did not name Berryman, which deprived her of
the tolling provision as to him.

{34} Regarding the question of whether reasonable time remained after a cause of action
accrued within which Cahn, exercising due diligence, could have filed her claim before the
running of the statute of repose, the following analysis persuades me that the answer is yes.
Cahn received a pelvic ultrasound at West Mesa Medical Center on May 19, 2006. On
August 8, 2006, she met with Dr. Berryman and provided him a copy of the written
ultrasound report. Berryman neither referenced the findings indicated by the ultrasound
report nor scheduled a biopsy. Instead, Berryman examined Cahn, diagnosed her as having
endometriosis, prescribed medication for that condition, and advised Cahn to return to his
office for a follow-up visit. She did not return for a follow-up visit.

{35} Ultimately, as reflected in both the majority and the dissenting opinions, Cahn knew
of her injury and its cause1 on September 22, 2008. However, she could not remember the
name of the doctor who caused or contributed to her injury, or when he examined her. We
know that Cahn had until August 8, 2009 to discover the identity of the doctor and sue him.
By December 2008, Cahn had retained counsel to pursue her malpractice claim. Before
retaining counsel, as early as October 27, 2008, while recovering from major surgery, Cahn
herself began investigating to determine the identity of the doctor whom she believed had
committed the act of malpractice. Did Cahn have health insurance at the time? If so, who
did her insurer pay for the evaluation? Did she have a co-payment or a deductible she had
to pay? If she did, how did she pay it, and is there a record of who she paid?

{36} These questions might seem obvious in retrospect, but Cahn herself knew to ask the
questions. In late 2008 Cahn contacted her health insurer, Lovelace Health Plan, and
requested her explanation of benefits (EOB) forms for May, June, and July 2006. The
doctor’s identity was obviously not in the records that Cahn received because she saw Dr.

1
See Maestas v. Zager, 2007-NMSC-003, ¶ 19, 141 N.M. 154, 152 P.3d 141
(describing the discovery rule as when a plaintiff knows or with reasonable diligence should
have known of the injury and its cause, although the rule does not require that the plaintiff
discover that the defendant’s actions constitute medical malpractice).

11
Berryman in August, 2006. It is not clear why Cahn requested EOBs for only three months.
Had she requested all of the EOB forms for 2006 she would have received an EOB dated
August 23, 2006, which identified Berryman as the doctor who treated her on August 8,
2006. Lovelace Health Plan had mailed this EOB to Cahn shortly after she received
Berryman’s medical services. Cahn’s credit union bank statement in August 2006 listed
Cahn’s $30 co-payment to Sandia OB/GYN, where Berryman worked in August 2006.

{37} This procedural history persuades me that Berryman’s identity was reasonably
ascertainable within the time remaining on the statute of repose. There is no evidence that
Berryman was concealing, much less fraudulently concealing, his identity. I would not find
a due process violation in this case because the time was not unreasonably short for Cahn
and her attorneys to identify Berryman in time to file a lawsuit within three years from the
occurrence of the malpractice.

{38} The harshness of the result will be troubling to some, but not to others. Law is
adversarial and morally ambiguous because both sides must make irreconcilable moral
arguments, and only one side wins. Regarding statutes of limitation or of repose, I am
reminded of what this Court stated in Cummings v. X-Ray Associates of New Mexico, P.C.,
1996-NMSC-035, ¶ 37, 121 N.M. 821, 918 P.2d 1321 (quoting Chase Securities Corp. v.
Donaldson, 325 U.S. 304, 314 (1945) (alterations in original) (footnote omitted):

There is no statute of limitations that does not prevent some identifiable class
from litigating its cause of action. Such a class is always characterized by
the fact that its members failed to timely pursue their claim. Whether this
failure is through careless negligence or innocent lack of information is
generally irrelevant to the constitutionality of the time limit.

[Statutes of limitation] are by definition arbitrary, and their
operation does not discriminate between the just and the
unjust claim, or the voidable and unavoidable delay. They
have come into the law not through the judicial process but
through legislation. They represent a public policy about the
privilege to litigate. Their shelter has never been regarded as
what now is called a ‘fundamental’ right or what used to be
called a ‘natural’ right of the individual. [The individual]
may, of course, have the protection of the policy while it
exists, but the history of pleas of limitation shows them to be
good only by legislative grace and to be subject to a relatively
large degree of legislative control.

{39} For example, had Mr. Garcia in the Garcia v. LaFarge case suffered his heart attack
eighty-six days later, on February 9, 1992, his cause of action would have been time-barred,
even though his cause of action had not accrued before then. See Tomlinson v. George,
2005-NMSC-020, ¶ 8, 138 N.M. 34, 116 P.3d 105 (“[A] statute of repose terminates the right

12
to any action after a specific time has elapsed, even though no injury has yet manifested
itself.” (alteration in original) (internal quotation marks and citation omitted)). This Court
has upheld the constitutionality of the MMA statute of repose when the cause of action
accrues after the statute of repose has expired against both an equal protection and a due
process challenge. Cummings, 1996-NMSC-035, ¶¶ 22-42. Upholding the constitutionality
of the MMA statute of repose in instances when the cause of action accrued after the statute
of repose has expired necessarily requires upholding its constitutionality in the present case,
where Cahn had reasonable time to bring her cause of action before the statute of repose
expired.

{40} I respectfully concur in the result reached by the majority.

_____________________________________
EDWARD L. CHÁVEZ, Justice

MAES, Justice (dissenting).

{41} Because I believe the teachings of our prior cases, the relevant statutory structure,
the nature of the due process guarantee, and other fundamental constitutional considerations
counsel against adoption of the twelve-month rule the majority creates today, I respectfully
dissent.

I. The Terry–Garcia Analysis

{42} The principles of our prior cases suggest we need not create a new rule here. For
causes of action accruing within the statutory period—as Cahn’s did here—our cases have
made clear the statutory repose function is typically irrelevant; instead, we must answer two
precise due process-oriented questions regarding the remaining effective limitations period
for the cause after accrual. See Terry v. N.M. State Highway Comm’n, 1982-NMSC-047, ¶¶
10, 17, 98 N.M. 119, 645 P.2d 1375 (examining ten-year repose period for construction
defect suits). First, because “[t]he constitutionality of statutes of limitation has hinged on
the reasonableness of the time provided to pursue a remedy,” id. ¶ 14, we have investigated
whether and when the potentially remaining effective period for filing a complaint may be
so “abbreviated” as to be constitutionally unreasonable. Id. ¶ 16. And where the potential
period for filing is unreasonably abbreviated, we noted in Terry, we must address a second
critical question of what the appropriate limitations period for the claim may be in the
absence of a specific legislative prescription in the repose provision or related provisions.
Id. ¶ 17.

{43} Investigating the second question in Terry, we emphasized that “it is not a judicial
function to set appropriate limitations periods.” Id. Instead of creating our own applicable
period, we briefly surveyed other legislatively-drawn periods. Id. A period as short as a
single year for certain causes of action, we observed, might survive constitutional scrutiny,
when “justified by specific considerations.” Id. But where “the Legislature has not specified

13
a shorter reasonable period of limitations” for the specific kind of action before us, we
added, our task is “to apply the period provided by the applicable” background statutes of
limitations. Id. And thus the Terry result was straightforward: because the construction-
defect repose provision at issue in Terry gave no specific limitations guidance and because
the Terry plaintiffs’ claims were actions for wrongful death and personal injury, we simply
applied the legislatively-prescribed periods for wrongful death and personal injury causes
of action, much as other courts had done at the time. Id.; see Gaines v. Preterm-Cleveland,
Inc., 514 N.E.2d 709, 716 (Ohio 1987) (applying background malpractice limitation period
in place of constitutionally problematic medical malpractice provision); McMacken v. State,
320 N.W.2d 131, 139 (S.D. 1982) (applying background personal injury limitation period
in place of constitutionally problematic construction defect provision), overruled on other
grounds by Daugaard v. Baltic Co-op. Bldg. Supply Ass’n, 349 N.W.2d 419 (S.D. 1984);
Hunter v. School Dist. of Gale-Ettrick-Trempealeau, 293 N.W.2d 515, 522 (Wis. 1980)
(affirming court of appeals decision applying background limitation period in place of more
specific period with constitutionally problematic application).

{44} In Terry, because both statutory background provisions established limitations
periods of three years from the time of accrual and the plaintiffs’ claims had accrued
approximately three months before expiration of the ten-year repose period for construction
defect claims, application to the plaintiffs’ claims added two years and nine months to the
effective limitations period remaining under the construction-defect provision. 1982-NMSC-
047, ¶¶ 9, 17. Application of those background statutory provisions had the effect of giving
the Terry plaintiffs adequate time to file and the additional effect of treating similarly all
prospective plaintiffs for whom actions accrue before the end of the period of repose. While
neither effect merited mention in Terry, I suggest the result should guide our analysis today
and in the future.

{45} In early cases examining the effect of NMSA 1978, Section 41-5-13 (1976), we had
no trouble with, and no objection to, application of the basic Terry principles. See, e.g.,
Garcia ex rel. Garcia v. La Farge, 1995-NMSC-019, ¶¶ 34-37, 119 N.M. 532, 893 P.2d 428;
Crumpton v. Humana, Inc., 1983-NMSC-034, ¶ 5, 99 N.M. 562, 661 P.2d 54. In Crumpton,
for example, where a cause of action had accrued on the date of alleged malpractice and the
plaintiff filed suit more than three years after the date, we marshaled both Section 41-5-13
and the general personal injury limitations period in support of a conclusion the plaintiff’s
suit was time-barred. See Crumpton, 1983-NMSC-034, ¶ 5. The statutes read in tandem,
we concluded, “clearly indicate that the statute of limitations” for purposes of these causes
of action “commences running from the date of injury or the date of the alleged
malpractice.” Id. (emphasis in original). The most probable reason for application of the
general personal injury limitations period was clear: we were reluctant to impose our own
background rule in the event Section 41-5-13 could not provide the rule for decision under
the circumstances.

{46} We revisited the question of the applicable limitations period under Section 41-5-13
again in Garcia, where we explicitly adopted and applied the two-step Terry inquiry for

14
claims arising under the Medical Malpractice Act (MMA), NMSA 1978, § 41-5-1 to -29
(1976, as amended through 2015). See Garcia, 1995-NMSC-019, ¶¶ 29-37. We observed
that Section 41-5-13 incorporates functions of both repose and limitation, much like the
construction-defect provision at issue in Terry. Garcia, 1995-NMSC-019, ¶ 14. We
reiterated that, for purposes of the limitation function, the constitutionality of the provision
would turn on the reasonableness of the time provided for pursuit of existing causes of
action. Id. ¶ 34. Any constitutionally-appropriate limitations period, we noted, “ ‘must
proceed on the idea that the party has full opportunity afforded him to try his right in the
courts.’ ” Id. ¶ 33 (quoting Wilson v. Iseminger, 185 U.S. 55, 62 (1902)).

{47} Faced with a plaintiff in Garcia whose claim accrued eighty-five days before the
three-year period expired, we observed, much as we had in Terry, that a statutory provision
allowing “an unreasonably short period of time within which to bring an accrued cause of
action violates the Due Process Clause of the New Mexico Constitution.” Garcia, 1995-
NMSC-019, ¶ 36. That the remaining effective limitations period for various potential
claims arising under Section 41-5-13 was unreasonably short was unquestioned because the
potentially effective period would have been unreasonably abbreviated for any “claim
accruing near the end of the limitations period.” Garcia, 1995-NMSC-019, ¶ 36.

{48} Having concluded application of the remaining limitations period under Section 41-
5-13 was constitutionally problematic, we turned to the second Terry inquiry of what
limitations period should appropriately govern the plaintiff’s claims. Garcia, 1995-NMSC-
019, ¶ 37. In answering that question, we relied on Terry exclusively, noting, as we had in
Terry, that while a court “may determine that the limitations period selected is unreasonably
short,” “it is generally a matter for the legislature to establish limitations periods.” Garcia,
1995-NMSC-019, ¶ 37. And because the Legislature had not offered some other specific
limitation period in the MMA, we concluded, much as we had in Terry, that the background
three-year rule for personal injury actions, running from the date of accrual, would govern
the plaintiff’s claims and, as in Terry, would have the effects of adding significant time to
the limitation period remaining under the repose provision (approximately two years and
nine months) and treating similarly all claimants for whom causes of action accrue prior to
the end of the repose period. Garcia, 1995-NMSC-019, ¶ 37.

{49} Our Cummings case came just a year after Garcia, and in Cummings we again
explained Section 41-5-13 incorporates functions of both repose and limitation. Cummings
v. X-Ray Assocs. of N.M., P.C., 1996-NMSC-035, ¶¶ 47-48, 121 N.M. 821, 918 P.2d 1321.
And in lieu of explicitly invoking the two-step Terry–Garcia analysis, we explained that the
Cummings plaintiff could not benefit from our standard due process-based limitations
analysis because she had failed to “exercise diligence when she first learned she had been
misinformed about the mass in her lung” by the defendant. Cummings, 1996-NMSC-035,
¶ 57. Our analysis emphasized a lack of diligence. But diligence aside, Cummings can be
simply understood as yet another application of the two-step Terry–Garcia analysis. Section
41-5-13, we concluded, left various potential claimants an unreasonably abbreviated period
of time within which to pursue causes of action, and thus Terry and Garcia required that we

15
look to the relevant background rule. Cf. id. ¶ 55 (quoting Garcia, 1995-NMSC-019, ¶ 26).
The Cummings action was an action for personal injury, and thus the three-year personal
injury period applied. See Garcia, 1995-NMSC-019, ¶ 37. And that was dispositive:
because the Cummings action had accrued on February 23, 1990, the three-year legislative
background rule supplied by the Terry–Garcia analysis would have given the plaintiff until
February 23, 1993, to file. But having waited to sue the defendant until December 7, 1993,
the plaintiff was too late, at nearly ten months beyond expiration of the background rule.
Cummings, 1996-NMSC-035, ¶ 57.

{50} Despite the straightforward teachings of Terry, Garcia, and Cummings, and despite
decades of legislative acquiescence to those decisions, we got off track in Tomlinson v.
George, 2005-NMSC-020, 138 N.M. 34, 116 P.3d 105. Cf. Basic Inc. v. Levinson, 485 U.S.
224, 230-31 (1988) (observing “[j]udicial interpretation and application, legislative
acquiescence, and the passage of time have removed any doubt” regarding future application
of past interpretive decisions). We avoided legislating in these earlier three cases, and a
legislatively-prescribed background rule supplied the appropriate rule for decision in each
case. Glossing over that history, we pronounced in Tomlinson that Cummings had concluded
“that one and one-half years is a constitutionally reasonable period of time within which to
file a claim.” Tomlinson, 2005-NMSC-020, ¶ 23. But of course, we put it very differently
in Cummings stating that:

At that time there was still about a year and a half before the statute of repose
on her malpractice claim expired. Nevertheless, she sat on her rights and did
not file any claim for more than two years, on July 27, 1992. By that time,
almost four years had passed since the 1988 act of malpractice. She did not
sue X-Ray Associates until December 7, 1993, more than five years after the
act. Cummings lost her medical malpractice claim through her own lack of
diligence.

Cummings, 1996-NMSC-035, ¶ 57 (emphasis added). Why that one and one-half year
period received the transposition it did in Tomlinson was and remains unexamined.
Regardless, it is sufficient for our purposes today to note we refused to impose our own
limitation period in Terry, and in Garcia, and in Cummings, because the statutory
background rule had supplied the rule for decision instead. But in Tomlinson, we undid the
analyses of those cases and crafted our own rule, concluding “two years and eight months
is a constitutionally reasonable period of time within which to file” a claim. 2005-NMSC-
020, ¶ 24.

{51} Faithful application of the Terry–Garcia analysis would have required the opposite
result. The Tomlinson plaintiff’s claim was again one for personal injury, and the three-year
personal injury limitation period should have governed, much as it had in Terry, 1982-
NMSC-047, ¶ 17, in Garcia, 1995-NMSC-019, ¶ 37, and in Crumpton, 1983-NMSC-034,
¶ 5. And application of the legislatively-prescribed three-year period suggests the Tomlinson
plaintiff was timely: the claim accrued on December 24, 1996, and she filed an application

16
with the statutorily-created medical review commission, which tolls the running of the
limitation period, on December 13, 1999. 2005-NMSC-020, ¶¶ 4-5; see NMSA 1978, § 37-
1-8 (1976).

{52} Two obvious objections to that outcome in Tomlinson would have arisen; both,
however, had been asked and answered in our prior cases. Filing outside the three-year
window provided by Section 41-5-13 seems at odds with the basic statutory language—but
as we noted in Terry and again in Garcia, “considerations of fairness implicit in the Due
Process Clauses of the United States and New Mexico Constitutions dictate that when the
legislature enacts a limitations period it must allow a reasonable time within which existing
or accruing causes of action may be brought.” Garcia, 1995-NMSC-019, ¶ 36; accord
Terry, 1982-NMSC-047, ¶¶ 14-15. And two years and eight months may have seemed a
generously long period for pursuit of the claim, but the statute itself allows three years for
early accruing claims; the background period for personal injury actions allows three years;
we had applied the background period before without objection from the Legislature; and
as we have repeatedly explained, “it is not a judicial function to set appropriate limitations
periods.” Terry, 1982-NMSC-047, ¶ 17; see Garcia, 1995-NMSC-019, ¶ 37; accord
Feldhake v. City of Santa Fe, 1956-NMSC-079, ¶ 33, 61 N.M. 348, 300 P.2d 934, (“The
courts cannot legislate . . . .”).

{53} We could reject, narrow, or find another justification for Tomlinson, but my concern
here is that the majority’s recap of the case law puts this history aside to Cahn’s great
detriment, and this new twelve-month rule entangles and imperils fundamental separation-of-
powers jurisprudence. See, e.g., De Graftenreid v. Strong, 1922-NMSC-031, ¶ 8, 28 N.M.
91, 206 P. 694 (“Courts cannot read into an act something that is not within the manifest
intention of the Legislature, as gathered from the statute itself. To do so would be to
legislate . . . .”). Despite the Tomlinson pronouncement regarding Cummings, we have
never in this context held, or even concluded, that “eighteen months is a constitutionally
reasonable period” for requiring the filing of a claim. Instead, we have asked whether
Section 41-5-13 provides an unreasonably abbreviated limitation period for various potential
claims and, answering that question in the affirmative, we have moved on to the question of
what limitation period should govern for claims accruing before Section 41-5-13 repose
applies. The answer was clear in Garcia, as it was in Crumpton—the legislatively-supplied
personal injury limitation period governs those claims where Section 41-5-13 cannot—and
it provided the rule of decision for Cummings. The answer is just as clear here, and Cahn
should benefit from it. Her claim accrued on September 22, 2008, within the Section 41-5-
13 period; given the background personal injury provision of three years, she had until
September 22, 2011, to file; and she filed against Berryman on July 9, 2010, well within the
three-year deadline imposed by the background provision.

{54} The twelve-month rule the majority adopts raises two concerns. First, in order to
create this new rule, the majority overrules Garcia but does so sua sponte. Majority Op. ¶
22. Because no party requested that Garcia be overruled and we did not request briefing,
we are overturning precedent without the benefit of stare decisis. Trujillo v. City of

17
Albuquerque, 1998-NMSC-031, ¶¶ 33-36 (“Stare decisis is the judicial obligation to follow
precedent, and it lies at the very core of the judicial process of interpreting and announcing
law” and “[p]articular questions must be considered before overturning precedent.”); see
State v. Riley, 2010-NMSC-005, ¶ 40, 147 N.M. 557, 226 P.3d 656, (Chávez, J., specially
concurring, Bosson, J., concurring in part and dissenting in part, Daniels, J., specially
concurring) (explaining stare decisis prevents this Court from overruling precedent where
the parties have not briefed and specifically argued the relevant factors to be considered
before overturning our precedent). Secondly, creation of a new rule constitutes the kind of
legislation we said we could not craft in Terry and Garcia. Thus I would not adopt it here.
I would also decline to apply the rule retroactively, because we cannot know how Cahn’s
pursuit of her claim would have transpired had she known she had more time available as
she encountered expiration of the initial limitations period. Instead, I would apply the
Terry–Garcia analysis as we have applied it in the past; and having done that, I would
reverse the Court of Appeals decision and reinstate the conditional verdict of the district
court.

II. The Statutory Architecture

{55} Even were we hesitant to apply the legislatively-supplied three-year background rule
despite the applications in Terry and Garcia and the ensuing decades of legislative
acquiescence, I believe the MMA is designed to obviate the problem that plagued Cahn here.
The statutory structure, in other words, suggests claims arising in the posture Cahn’s did here
need not be subject to the Section 41-5-13 repose.

{56} The MMA made various changes to the way our courts process medical negligence
claims; among those changes was the addition of the Section 41-5-13 repose provision we
have given much attention today. The MMA also established a “medical review
commission,” the function of which “is to provide panels to review all malpractice claims
against health care providers covered by the [MMA].” Section 41-5-14(A). After the
requisite review, the panel is tasked with deciding “(1) whether there is substantial evidence
that the acts complained of occurred and that they constitute malpractice; and (2) whether
there is a reasonable medical probability that the patient was injured thereby.” Section 41-5-
20(A)(1)-(2).

{57} This review is required for any claims made against qualifying providers like
Berryman; the MMA directs 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. And the review is substantive.
An application by a claimant must contain (1) facts, names, dates, and circumstances, “so
far as they are known,” and (2) a statement authorizing “access to all medical and hospital
records and information pertaining to the matter.” Id. Health care providers involved have
reciprocal obligations—they must “answer the application for review,” and they must
“submit a statement authorizing” the reviewing panel “to obtain access to all medical and
hospital records and information pertaining to the matter.” Section 41-5-16(B). Eventually,

18
the panel must hold a hearing on the matter; and post-hearing, should the panel conclude it
still lacks relevant information for purposes of making the determinations required by
statute, the panel “may request that additional facts, records, witnesses or other information
be obtained.” Section 41-5-19(D). Recognizing the burden this review imposes on the
claimant and recognizing the time any review of substance might require, our Legislature
built into the MMA a tolling provision which directs that “[t]he running of the applicable
limitation period” for these professional negligence claims is tolled while the panel gathers
information, reviews, and deliberates. Section 41-5-22.

{58} The provisions governing this review process are instructive in several ways. The
flexibility of the phrase “applicable limitation period” of Section 41-5-22 in the tolling
provision and the absence of specific reference to the limitation period of Section 41-5-13
are telling. The Legislature surely knew how to incorporate related provisions by reference,
and did so elsewhere in the MMA. See, e.g., Section 41-5-5(A)(2) (making reference to
specific provisions in Section 41-5-25). The omission of any mention of Section 41-5-13
in the general language of Section 41-5-22 suggests the Legislature may well have
understood multiple limitations periods might govern claims brought under the MMA. And
the existence of the tolling provision itself reflects a legislative judgment that Section 41-5-
13 is not a standard repose provision—repose periods are typically “fixed” and not to “be
delayed by estoppel or tolling.” 4 Charles Alan Wright, Arthur A. Miller & Adam N.
Steinman, Federal Practice and Procedure § 1056 (4th ed. 2015); see also CTS Corp. v.
Waldburger, 134 S. Ct. 2175, 2183 (2014).

{59} More important still are the MMA’s information-seeking provisions. The basic
purposes underlying creation of the commission and review suggest the information-seeking
provisions were designed to preclude the problem that arose here. The legislative objective
in creating these screening panels was, ostensibly, to expedite resolution of claims, with
associated goals of reducing the overall costs of processing these claims and promoting
judicial efficiency. See Jean A. Macchiaroli, Medical Malpractice Screening Panels:
Proposed Model Legislation to Cure Judicial Ills, 58 Geo. Wash. L. Rev. 181, 186, 240
(1990) (“[A]ll state legislatures that have created screening panels have done so for
essentially identical reasons.”). These panels, in other words, were created to screen,
streamline, and filter claims for the parties and the courts. Efficiency across both levels of
review—panel and court—was a prominent goal. And these objectives suggest the timeline
regarding identification of Berryman here was (1) exceptional, and (2) not likely the kind
of timeline our Legislature intended to proscribe in establishing the Section 41-5-13 repose.
Once Cahn had timely filed with respect to Lovelace and some of the other providers here,
the screening mechanism should typically have identified any individuals involved—the
statutory provisions mandate that both parties authorize access to all relevant information,
and the panel has an ongoing obligation to seek any information necessary for making its
determinations. In most cases, the year-long search for Berryman in discovery should then
have been unnecessary; had the panel encountered the same identification difficulty, a case
for estoppel or fraudulent concealment might have loomed large. And regardless whether
those cases could be made, nothing in the statutory provisions suggests the claimant should

19
suffer when the providers and panel fail to satisfy their own identification obligations—the
Section 41-5-13 repose is tolled for as long as the screening process takes.

{60} One objection to reliance on the statutory scheme for guidance may be that with the
exception of Berryman, none of the other providers were covered providers here. The record
does not clearly reveal the status of the other providers for us; were it the case they were all
uncovered providers, no screening would have been required until Berryman was identified,
and Cahn would not have benefitted from the information-producing apparatus of review.
But it would be at odds with the goals of both the MMA and review to suggest the scheme
is intended to encourage affiliations between entities avoiding the burdens of qualification
under the MMA and contracting providers who gain its protections, while at the same time
encouraging the basic relational disorganization, dysfunction, and opacity giving rise to the
identification problem here. The point, we have said, is to “encourage more physicians to
carry” insurance—not to encourage strategic and opaquely drawn relationships with those
not carrying insurance. Garcia, 1995-NMSC-019, ¶ 24.

{61} Instead, the basic legislative preference for filtering, and for developing the
information relevant to, as many of these claims as possible in review suggests a legislative
understanding that the identification problem and protracted discovery that occurred here
should rarely, if ever, arise for qualified providers like Berryman. When those problems do
arise and the identification problem is relevant to resolution of the claim, repose is typically
tolled. Nothing in the MMA suggests the result should be different for qualified providers
when they affiliate with non-qualified providers. Cf. Grantland v. Lea Reg’l Hosp., Inc.,
1990-NMSC-076, ¶ 8, 110 N.M. 378, 796 P.2d 599 (“If we require claimants to file in
district court at the peril of losing their case before the classification of the health care
provider is known, then every claim will be filed in district court as a safety precaution, and
the purpose behind the [MMA] . . . will be defeated.”).

{62} Based on that architecture and based on the stipulation here of absence of any cost
concerns arising from potential frivolity, staleness, questions of causation, or difficulties in
establishing misdiagnosis based on negligence, I do not believe we should conclude the
Section 41-5-13 repose was designed to apply to the circumstances as they arose here.
Compare Cummings, 1996-NMSC-035, ¶ 38 (justifying application of repose on grounds
that “[c]laims could arise long after memories have faded, parties become unavailable, and
evidence is lost”).

III. Due Process and Circumstance-Specific Reasonableness

{63} And most importantly, this new twelve-month rule that is to be applied in every case
regardless the circumstances (with potential carve-outs for other exceptional scenarios like
fraudulent concealment, which Cahn does not press on appeal here), is inconsistent with the
longstanding case law establishing that due process protection requires circumstance-specific
investigation before we may extinguish a vested right. See, e.g., Terry v. Anderson, 95 U.S.
628, 633 (1877) (considering “all the circumstances”); Wilson v. Iseminger, 185 U.S. at 63

20
(1902) (“[W]hat is reasonable in a particular case depends upon its particular facts.”); Terry,
1982-NMSC-047, ¶ 16 (examining potential application of limitations periods “under these
facts”); cf. Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 428 (1965) (“This policy of repose,
designed to protect defendants, is frequently outweighed, however, where the interests of
justice require vindication of the plaintiff’s rights.”).

{64} Any cause of action that has accrued as Sara Cahn’s has here is a “species of property
protected by the Fourteenth Amendment’s Due Process Clause.” Logan v. Zimmerman
Brush Co., 455 U.S. 422, 428 (1982). Due process protection, the United States Supreme
Court has often explained, generally requires that any deprivation of life, liberty, or property
be preceded by notice and an opportunity to be heard in a manner appropriate for “the nature
of the case.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (citation
omitted). In the context of limitations periods, we have explained “that statutes of limitation
may be passed where formerly there were none, and existing limitation periods may be
reduced while the time is still running,” but due process requires that a “reasonable time” be
“left for the institution of an action before it is time-barred.” Terry, 1982-NMSC-047, ¶ 14;
accord Sohn v. Waterson, 84 U.S. 596, 599 (1873) (“[I]f an action accrued more than the
limited time before the statute was passed a literal interpretation of the statute would have
the effect of absolutely barring such action . . . . It will be presumed that such was not the
intent of the legislature. Such an intent would be unconstitutional.”). And we have extended
application of that rule, imposing it as “an appropriate general restriction on the Legislature’s
right to statutorily limit actions”—a right our Legislature has attempted to exercise in
Section 41-5-13. Terry, 1982-NMSC-047, ¶ 15.

{65} “Reasonable time” in this context has always had an intentionally flexible meaning.
The reasonableness determination, the United States Supreme Court long ago observed, must
account for “all the circumstances” of a particular case. Terry v. Anderson, 95 U.S. at 633.
Reasonableness in any given case, in other words, depends “upon its particular facts.” Id.;
see also Terry, 1982-NMSC-047, ¶ 16 (“We hold that such an abbreviated period is
unreasonable.”). It has no “fixed content,” and we must evaluate it “as the particular
situation demands.” U.S. West Commc’ns v. N.M. State Corp. Comm’n (In re 1997 Earnings
of U S West Commc’ns, Inc.), 1999-NMSC-016, ¶ 25, 127 N.M. 254, 980 P.2d 37 (citation
omitted); accord Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 246 (1944) (“What is due
process in a procedure affecting property interests must be determined by taking into account
the purposes of the procedure and its effect upon the rights asserted and all other
circumstances which may render the proceeding appropriate to the nature of the case.”).

{66} In the context of the MMA, we have often observed that the due process guarantee
requires us to account for all case-specific circumstances; and based on those circumstances,
the guarantee may compel us to conclude the MMA’s provisions must yield. See, e.g., Jiron
v. Mahlab, 1983-NMSC-022, ¶ 12, 99 N.M. 425, 659 P.2d 311 (“[W]here the requirement
of first going before the Medical Review Commission causes undue delay prejudicing a
plaintiff by the loss of witnesses or parties, the plaintiff is unconstitutionally deprived of his
right of access to the courts.”). Due process therefore, ensures that “claimants who make a

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good-faith attempt to comply with the [MMA]” are “not [to] be deprived of their day in court
by placing form above substance.” Grantland, 1990-NMSC-076, ¶ 6; see Otero v. Zouhar,
1985-NMSC-021, ¶ 22, 102 N.M. 482, 697 P.2d 482, overruled by Grantland,
1990-NMSC-076 (concluding claimant had failed to comply with strict requirements of Act
but had done “what might reasonably be expected of a person of ordinary prudence, acting
under similar circumstances, who desired to comply with the law” (internal quotation marks
and citations omitted)). And thus for purposes of evaluating the MMA’s limitation function,
we have explained that “protecting the defendant is a laudatory goal,” but any period
imposed “should reflect a policy decision regarding what constitutes an adequate period of
time for a person of ordinary diligence to pursue his claim.” Roberts v. Sw. Cmty. Health
Servs., 1992-NMSC-042, ¶ 26, 114 N.M. 248, 837 P.2d 442 (internal quotation marks
omitted).

{67} Our due process reasonableness determination in the limitations context, in other
words, has always necessarily incorporated an examination of the claimant’s diligence in
pursuing a claim. See Cummings, 1996-NMSC-035, ¶ 57 (“Cummings lost her medical
malpractice claim through her own lack of diligence.”). The concept is neither novel nor
antiquated—the diligence inquiry has long featured in due process reasonableness
determinations and still does. See, e.g., Herron v. Anigbo, 897 N.E.2d 444, 449 (Ind. 2008)
(“[T]he plaintiff must file before the statute of limitations has run if possible in the exercise
of due diligence.”); Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 703 (Tex. 2014) (“[A]n
open courts challenge is a due process complaint and requires the party to use due
diligence.”); accord Canadian N. Ry. Co. v. Eggen, 252 U.S. 553, 562 (1920) (explaining
“power is in the courts . . . to determine the adequacy and reasonableness” of access to
courts, and concluding constitutional problem is avoided when claimant “is given free access
to them for a length of time reasonably sufficient to enable an ordinarily diligent man to
institute proceedings for their protection”). And even in Tomlinson, on which the majority
relies today for support for elimination of the case-specific diligence inquiry, we recognized
that we accept claims conflicting with the MMA’s provisions “in cases involving peculiar
facts . . . and when a good faith effort has been made to comply with the Act.” 2005-NMSC-
020, ¶ 22 (internal quotation marks omitted). For this reason, I disagree with the majority
that injecting our judgment to decide how much additional time to grant claimants with late
accruing action is to adopt statute of time limitations from other jurisdictions. Majority Op.
¶ 24. And I would answer the question “How much additional time, exactly, is Cahn
entitled?” by looking at the specific facts in Cahn’s case.

{68} Resolution of the traditional diligence inquiry given Cahn’s facts is straightforward.
By September 2008, two years after Cahn had been misdiagnosed by Berryman, she had
relocated to Jackson, Wyoming, and she was still none the wiser. On September 19, 2008,
she underwent an annual pap smear and discussed her chronic pelvic pain with a new
Wyoming doctor. A copy of her original radiology report was sent to the new physician’s
office, and she was promptly scheduled for a CT scan on September 22, 2008, three days
after her initial visit. Her new scan revealed “extensive abnormality in the pelvis,” which
was characterized as “highly suspicious for an ovarian malignancy.” In the next few weeks,

22
she traveled from Wyoming to New York’s Memorial Sloan-Kettering Cancer Center for
confirmation of the diagnosis and underwent extensive surgery soon after. Her diagnosis
was “metastatic serous borderline tumor of the ovary,” and because the tumor had been
incorrectly diagnosed at initial discovery, the cancer had progressed from stage I to stage
IIIC, substantially decreasing her chances of remedy. On October 15, 2008, she underwent
a total abdominal hysterectomy, a bilateral salpingo-oophorectomy, a pelvic and para-aortic
node dissection omentectomy, and she was fitted with an intraperitoneal catheter. She
remained in New York under the care of her parents for approximately eight months.

{69} Quickly recognizing she had been misdiagnosed, Cahn went to work—as she
recuperated in New York—to uncover the identity of Berryman, who had made the error two
years earlier. Within twelve days of that massive corrective surgery on October 15, she was
sending records requests. Between October 27, 2008, and November 3, 2008, she sent at
least eight requests for information to Lovelace Women’s Hospital, Lovelace Westside
Hospital, and ABQ Health Partners, in pursuit of Berryman’s name. None of the records she
received in response made note of her August 2006 visit or Berryman’s identity.

{70} In the next month, sensing she might have a viable malpractice claim, she
retained—again from New York—Albuquerque counsel to assist with development of what
at that point could only have appeared a complex case. She indicated to her Albuquerque
attorneys she thought she remembered the date of the relevant 2006 appointment with
Berryman, but she could not remember his name. Cahn’s attorneys investigated the records
she had already received in response to her initial requests, and they sought to supplement
the information over the next two months with new requests to all three participating
facilities for Cahn’s “complete medical chart” and any applicable itemized billing statements
covering the period from May 17, 2006, through the time of the requests. All told, Cahn and
her attorneys sent the provider entities at least sixteen distinct records requests. Eventually,
as a result of her investigation, Cahn discovered she had been assigned three separate
medical records numbers in the Lovelace Sandia Health System, which was highly unusual
for Lovelace patients; nonetheless, Berryman remained unnamed.

{71} Due at least in part to that unorthodox recordkeeping, Berryman’s identity remained
a mystery to Cahn and her counsel despite several months of active investigation.
Recognizing the Section 41-5-13 limitation period was nearing an end, Cahn, on April 10,
2009, timely filed a district court action, naming the various provider identities she had been
able to uncover and adding a placeholder physician John Doe defendant until Berryman
could be identified. Cahn’s attorneys actively continued to seek Berryman’s identity in the
district court proceeding—but discovery, experience shows, is rarely quick or clean. Finally,
discovery responses received on July 1, 2010 revealed Berryman’s name. Days later, on July
6, 2010, Cahn, noting the long and protracted “concerted efforts” she had made to uncover
Berryman’s identity, sought to amend her complaint to add Berryman in place of the Doe
defendant. The district court, finding Cahn’s contentions “well taken,” granted her leave,
and on July 9, 2010 Cahn filed her amended complaint naming Dr. Berryman. Berryman
then moved for summary judgment on the ground Cahn’s amended complaint was untimely

23
under Section 41-5-13. But the district court, having reviewed this extensive history of
Cahn’s case, explained our due process case law compelled a conclusion that the Section 41-
5-13 period could not bar her claims, and denied the motion.

{72} That record is sufficient to establish Cahn’s diligence, and it is thus sufficient to
allow us to conclude, as the district court did, that any period shorter than the twenty-one
months that elapsed between accrual and filing with respect to Berryman would have been
unreasonably abbreviated under the circumstances. This was not a case where Cahn “sat on
her rights” and failed to “file any claim for more than two years.” Cummings, 1996-NMSC-
035, ¶ 57. And it was clearly not a case where she “knew of her cause of action and had over
two years and eight months during the statutory period in which to file her claim.”
Tomlinson, 2005-NMSC-020, ¶ 28. Because it is important to compare the majority rule
to Cahn’s timeline, I also include a pictorial representation at the end of my dissent as
appendix B.

{73} Even Berryman concedes the timeline here may be attributable largely to Lovelace;
in that case, he asks only that he not be “deprived” of a “substantive right” based on
Lovelace’s wrongdoing. Whether that argument should prevail may be a question worth
revisiting—regardless, it should have no bearing on the diligence determination. See, e.g.,
Campbell v. Holt, 115 U.S. 620, 629 (1885) (“We can see no right which the promisor has
in the law which permits him to plead lapse of time instead of payment . . . .”). And I note
that the majority declines, as do I, as did the district court, to reach the conclusion Cahn “lost
her medical malpractice claim through her own lack of diligence.” Cummings, 1996-NMSC-
035, ¶ 57.

{74} So why legislate a new statute of repose of one year? Especially as Justice Chávez
states in his special concurrence, “difficulty in identifying which doctor provided what
treatment” and he cannot agree that in all cases twelve months will be constitutionally
adequate. I submit that this is exactly that case and would hold that the ten and one-half
months left before the statute of repose expired was not a reasonable time for Cahn to bring
her cause of action. Accordingly, I would not apply the majority’s rule here, and I would
not apply it as an unflinching rule in any case where, as here, the United States and New
Mexico Constitutions require that we consider a case’s particular facts.

IV. Other Constitutional Concerns

{75} In addition to the due process concerns it raises, the twelve-month rule gives rise to
a host of additional constitutional questions. See, e.g., Restatement (Second) of Torts § 899
cmt. g (Am. Law Inst. 1979) (“The statutory period in [statutes of repose] is usually longer
than that for the regular statute of limitations, but, depending upon the designated event
starting the running of the statute, it may have run before a cause of action came fully into
existence. This may well raise constitutional problems.”). We have addressed some of the
constitutional questions before, and we have generally concluded (1) the repose provision
is subject to rational-basis review, and (2) the provision was a reasonable response to the

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“perceived medical malpractice crisis” of the 1970s. Cummings, 1996-NMSC-035, ¶ 40
(emphasis in original).

{76} Justice Chávez’s special concurrence highlights those constitutional conclusions we
made in Cummings and suggests those conclusions must govern the outcome here. But
several considerations leave me unconvinced. First, we came to those conclusions at a time
when our Garcia analysis allowed us to address potentially unconstitutional applications
case by case, and that opportunity for remediation has vanished with the advent of today’s
rule.

{77} Second, the due process challenge at issue in Cummings was one of “fundamental
right of access to the courts.” Cummings, 1996-NMSC-035, ¶ 33. Our analysis of that claim
was straightforward: we explained that “[a] plaintiff has no expectancy of a cause of action
that has been legitimately denied by the legislature before it accrues.” Id. And analyzing
a cause of action accruing after the statutory period has expired, we added that “where there
is no cause of action, a plaintiff cannot claim they have been denied access to the courts.”
Id. In other words, we concluded, “no right has accrued,” and thus there was no need to
further examine the challenge. Id. But here, as I have explained, the posture is quite
different—everybody agrees Cahn’s cause of action had accrued before repose set in, and
nobody disputes that a cause of action that has accrued constitutes a species of property
entitled to due process protection not given significant attention in Cummings. See Logan
v. Zimmerman Brush Co., 455 U.S. at 428 (1982); accord Cummings, 1996-NMSC-035, ¶
33 (“Since no right has accrued, it is moot to question whether there has been a denial of a
fundamental right to vindicate that right in court.”). That basic due process difference
suggests the constitutional analysis may be quite different for plaintiffs whose claims accrue
before the statutory period has run than for those whose claims accrue later—but that
question is clearly not before us today.

{78} Third and finally, Cummings featured only limited analysis regarding the specific
variant of equal protection challenge that might allow the plaintiff with the latent injury (and
thus a late-accruing claim) to prevail, and it is not clear why we addressed that equal
protection question in the first instance, given our conclusion the injury had not been latent.
See Cummings, 1996-NMSC-035, ¶ 57 (explaining “there was still about a year and a half
before the statute of repose” expired after plaintiff had discovered injury). Had the facts
been different and actually given rise to the equal protection claim, perhaps our conclusion
would have been different, and perhaps that would have rendered moot any concerns that our
due process case law requires a different analysis for a plaintiff whose claim accrues before
the statutory period expires. As at least one commentator has observed, “every court that
has spoken with any clarity on the issue has ultimately concluded that victims of
misdiagnosis of diseases with long latency periods” may well be subject to, and benefit from,
a different analysis. See Peter Zablotsky, From a Whimper to a Bang: The Trend Toward
Finding Occurrence Based Statutes of Limitations Governing Negligent Misdiagnosis of
Diseases With Long Latency Periods Unconstitutional, 103 Dick. L. Rev. 455, 495 (1999).
Those courts have frequently found unconstitutional deprivation for the plaintiff in the long

25
latency scenario, on equal protection grounds, on due process grounds, and on related state
constitutional grounds. Id. But as I have noted, those questions are not before us today, and
we need not address them here.

{79} Instead, I note more generally that numerous courts have found constitutional
challenges compelling in the medical malpractice context, and it may be that future
application of today’s rule requires us to revisit some of these arguments and their
applications. See generally Zablotsky, 103 Dick. L. Rev. 455; see also, e.g., McCollum v.
Sisters of Charity of Nazareth Health Corp., 799 S.W.2d 15, 19 (Ky. 1990) (“While there
may be certain salutary effects from limiting to five years the period in which suits can be
brought, these cannot outweigh a plaintiff’s constitutional right to have his or her day in
court.”); Lee v. Gaufin, 867 P.2d 572, 587 (Utah 1993) (“[T]he dominant causes of increased
health-care costs were factors other than increased malpractice insurance premiums.”);
DeYoung v. Providence Med. Ctr., 960 P.2d 919, 924 (Wash. 1998) (en banc) (“Plaintiff next
contends that the classification of medical malpractice claims which are subject to the
eight-year statute of repose does not bear a rational relationship to the purpose of the statute.
We agree.”); cf. Pickett v. Brown, 462 U.S. 1, 18 (1983) (concluding two-year limitations
period was “not substantially related to the legitimate state interest in preventing the
litigation of stale or fraudulent claims”).

{80} But our case law suggests the better course is to steer clear of these constitutional
shoals—“we must construe a statute . . . so as to avoid not only the conclusion that it is
unconstitutional, but also grave doubts upon that score.” State v. Pangaea Cinema, LLC,
2013-NMSC-044, ¶ 23, 310 P.3d 604 (internal quotation marks and citation omitted).
Because Terry and Garcia have given us a longstanding rule for decision here that obviates
at least some of the relevant constitutional concerns, I cannot conclude we have good reason
to adopt the majority rule today and embark on a new and uncharted constitutional collision
course.

V. Conclusion

{81} It may be simple to impose rigid time restrictions for claims that accrue within the
three-year statute of repose to eliminate the legal wrangling that is present with the
complexity of these types of cases. But it is inconsistent with the spirit of due process to
take this simple route. We must consider time, place, circumstances, and many other factors
in the pursuit of fundamental fairness, despite how nebulous the concept may be. A fact-
based approach would provide the fairness the Due Process Clause seeks to protect, while
also changing the focus of the legal analysis to whether a plaintiff was sufficiently diligent.
Accordingly, I would not apply the majority’s rule here, and I would not apply it as an
unflinching rule in any case where, as here, the United States and New Mexico Constitutions
require that we consider a case’s particular facts. I respectfully dissent.

____________________________________
PETRA JIMENEZ MAES, Justice

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 Appendi
xB

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