(dissenting).
I respectfully dissent. I agree with the court of appeals that the hospital’s motion to dismiss should be granted on the basis that the filing of the complaint after the statute of limitations period expired barred recovery.
Section 41-5-13 of the Medical Malpractice Act, NMSA 1978, Sections 41-5-1 through -28 (Repl.Pamp.1989 & Cum.Supp. 1990), is controlling as to whether any medical malpractice action has been timely filed. Armijo v. Tandysh, 98 N.M. 181, 646 P.2d 1245 (Ct.App.1981), cert. denied, 459 U.S. 1016, 103 S.Ct. 377, 74 L.Ed.2d 510 (1982). The three-year limitations period under Section 41-5-13 begins to run from the date of the alleged act of malpractice, but, upon submission of the case to the medical review panel, the limitations period is tolled and shall not commence to run again until thirty days after the panel’s final decision is entered and the claimant is notified. See § 41-5-22. However, in Otero v. Zouhar, 102 N.M. 482, 697 P.2d 482 (1985), this court, while reaffirming its exclusive constitutional power to regulate all pleading, practice and procedure affecting the judicial branch, held:
Submission of an application to the medical review commission tolls the statute of limitations, as to that particular “qualified’’ defendant, until 30 days after the commission has entered its decision, § 41-1-22, but it has no effect on tolling the statute of limitations applicable to any “non-qualified” health provider * * *.
Id. at 484, 697 P.2d at 484 (emphasis added).
The facts in the present case are distinguishable from those presented in Otero v. Zouhar. There the patient initially contacted the superintendent of insurance regarding the status of the health care providers he intended to sue, but received inaccurate information about their status. He was advised at the time he filed suit in district court that two of the providers were non-qualifying when in fact they were qualified. There was no dispute that the third provider was qualified. The patient was faced with the dilemma of observing the joinder requirement and filing suit against all three providers before the limitations period expired in order to preserve his cause of action against the non-qualified parties, and, at the same time, violating the mandate in Section 41-5-15(A), which prohibits the filing of a malpractice action against a qualified provider before submitting an application for medical review.
This court excused the untimely filing of the complaint and ruled that the patient was entitled to rely upon the information from the superintendent of insurance. The court also ruled that, while the district court’s dismissal with prejudice procedurally was infirm, its ruling to stay the proceedings until the commission had considered the matter acted to allow review, preserve the complaint, and obviate the necessity of refiling or obtaining an order to reinstate the complaint following the commission’s decision. The concern recognized in Otero v. Zouhar was that “[p]laintiffs should not be denied their day in court because of incorrect rulings [by the trial court] and attendant delays incurred by appellate procedures.” 102 N.M. at 485, 697 P.2d at 485. The court suggested that each case should be decided on the individual circumstances so as not to “improperly elevate procedural considerations over plaintiff’s constitutional right to petition for redress of grievance.” Id. at 486, 697 P.2d at 486. The present case displays none of these concerns nor prejudice to the Grantlands as the result of some procedural anomaly. See Jiron v. Mahlab, 99 N.M. 425, 659 P.2d 311 (1983) (where requirement of Act causes undue delay prejudicing plaintiff, right of access to courts is unconstitutionally deprived).
Section 41-5-5 establishes qualifications to be covered under the Act and provides that non-qualifying health care providers shall not benefit from any provision of the Act in the event of malpractice claims against them. Section 41-5-15(A) specifies 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.” (Emphasis added.) Both provisions suggest to a potential plaintiff that an initial inquiry is necessary to ascertain the status of the health care provider involved. These provisions along with the relevant case law place a potential plaintiff on notice that the manner in which to commence an action may differ depending upon the status of the health care provider. It is incumbent upon a potential plaintiff to determine the status of a health care provider against whom they intend to allege a medical malpractice claim. This determination can be accomplished without diminishing the risk of compromise to one’s constitutional right of access to the courts.
The Grantlands allege that medical malpractice was committed during the period from mid-June to the end of July 1983. An application for medical review was filed on May 14, 1986, and a complaint was filed in district court on September 12, 1986. The record indicates that the Grantlands were notified by the commission of its decision in October 1986.
Unlike the plaintiff in Otero v. Zouhar, the Grantlands did not contact the superintendent of insurance regarding the status of the hospital. Instead they chose to file an application with the medical review commission very near the expiration of the limitations period. In the event the Grant-lands were uncertain about the proper course of action, they could have filed their application with the commission and also filed a complaint in district court to protect their claim without compromising the limitations period and winding up in a procedural Catch 22 position. See Jiron v. Mahlab, 99 N.M. 425, 659 P.2d 311 (supreme court approved plaintiff’s filing his complaint in district court before applying for review by medical review commission because unbending adherence to timing requirements would likely have eliminated his right of action). This type of “safety precaution” necessarily would not defeat a primary purpose of the Act to prevent non-meritorious claims from being filed nor open the flood gates to “premature and frivolous medical malpractice claims.”
Accordingly, I would not overrule any part of Otero v. Zouhar, and would quash the writ of certiorari as improvidently granted.