dissenting.
I dissent.
NMSA 1978, Sections 41-5-14(D) and -15(A) (Repl.Pamp.1982), establish the mandatory requirement that a medical malpractice case must be submitted to and reviewed by a panel provided by the medical review commission prior to filing the case in any court. The language of the statute is plain, clear and unambiguous, and must be given effect. Keller v. City of Albuquerque, 85 N.M. 134, 509 P.2d 1329 (1973). The plain meaning of the statute cannot be ignored to avoid a harsh result. See Noriega v. City of Albuquerque, 86 N.M. 294, 523 P.2d 29 (Ct.App.), cert. denied, 86 N.M. 281, 523 P.2d 16 (1974).
The majority opinion circumvents the plain meaning and effect of Sections 41-5-14(D) and -15(A). If the intent of the opinion is to nullify these statutory sections, then it should say so and allow the Legislature to remedy the problem with appropriate legislative action. It is not the duty of this Court to substitute its judgment for that of the Legislature. Village of Deming v. Hosdreg Co., 62 N.M. 18, 303 P.2d 920 (1956).
In Jiron v. Mahlab, 99 N.M. 425, 659 P.2d 311 (1983), this Court approved an exception to the requirement of Section 41-5-15(A), based on the constitutional grounds of right of access to the courts, where the plaintiff would be prejudiced by the court’s inability to acquire personal jurisdiction over the defendant because the defendant was leaving the State. This Court's decision in Jirón was based on circumstances beyond the plaintiff's control; such circumstances do not exist in this case. There is no basis for the opinion’s nullification of the statutory requirement.
Moreover, there is no foundation for the opinion’s establishment of a principal-agent relationship between the superintendent of insurance (superintendent) and health care providers. To the extent that the superintendent is an agent, he is an agent whose principal is the Legislature, and whose power is delegated by the Legislature. See Ledgering v. State, 63 Wash.2d 94, 385 P.2d 522 (1963). “An agent is defined as a person authorized by another to act on his behalf and under his control.” Western Electric Co. v. New Mexico Bureau of Revenue, 90 N.M. 164, 167, 561 P.2d 26, 29 (Ct.App.1976). In this case, there are no facts or circumstances indicating that the health care providers or the Legislature authorized the superintendent to act on the behalf of or under the control of the health care providers. See Id. The superintendent is not an agent under Sections 41-5-14(D) and -15(A), and his authority and duty under those sections is not derived from or limited by such an agency relationship.
The superintendent is a public officer. The authority and duties of public officers are bestowed and defined by the Legislature and the New Mexico Constitution. See Pollack v. Montoya, 55 N.M. 390, 234 P.2d 336 (1951). Contrary to the opinion, Section 41-5-5 does not create a requirement that the superintendent maintain a list of qualified health care providers for the purpose of notice to a plaintiff of the qualified status of a health care provider. That section.only requires the superintendent to accept proof of qualification and payment of surcharge from a health care provider seeking qualified status. Further, Sections 41-5-14(F) and -25 state that the superintendent’s authority and duty under the Medical Malpractice Act, NMSA 1978, Sections 41-5-1 to -28 (Repl.Pamp.1982), is that of custodian of the patient’s compensation fund. As such, the opinion’s inferred agency duty to maintain a list of qualified health care providers is not logical or properly drawn. “There is no apparent authority in a public officer whose duties are prescribed by law as there would be in the case of an agent for a private party.” Baker v. Deschutes County, 10 Or.App. 236, 240, 498 P.2d 803, 805 (1972) (citations omitted). Persons dealing with public officers are bound, at their peril, to know the extent and limits of the officer’s power, and no right is acquired except that based upon authorized acts of such officers. Bigler v. Graham County, 128 Ariz. 474, 626 P.2d 1106 (App.1981). No statutory duty requires the superintendent to give notice of a health care provider’s qualified status.
The simple fact is that Otero could have complied with the requirements of the Medical Malpractice Act, within the time limitation available to him, but he failed to do so. The opinion rewrites the Act and revives the claim that Otero allowed to lapse.
I would affirm the Court of Appeals.