May 09, 2012 – Bryanna Pearl Baker v. Stephanie Hedstrom, M.D.; Lorrice Gordon v. ABQ Health Partners, L.L.C.; Paul Campos v. Loretta Conder, M.D., Nos. 30,475; 30,491; 30,639

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	May 9, 2012
NO. 30,475
BRYANNA PEARL BAKER,
Plaintiff-Appellant,
v.
STEPHANIE HEDSTROM, M.D.;
SOUTHWEST PERINATOLOGY;
WILLIAM RAMIREZ, M.D.,
LEE C. CARUANA, M.D.; FAMILY
PRACTICE ASSOCIATES, P.C.;
MISBAH ZMILY, M.D.; MISBAH
ZMILY, P.C.; CORDELL HALVERSON, M.D.;
LORENE VALDEZ-BOYLE, M.D.; SAN
MIGUEL HOSPITAL CORP., d/b/a
ALTA VISTA REGIONAL HOSPITAL;
THE BOARD OF REGENTS OF THE
UNIVERSITY OF NEW MEXICO, as Trustees
of the University of New Mexico Health &
Sciences Center; and JOHN DOES # 1-20;
and JANE DOES # 1-20,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
Abigail Aragon, District Judge
consolidated with

NO. 30,491
LORRICE GORDON,
Plaintiff-Appellee,
v.
ABQ HEALTH PARTNERS, L.L.C.,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Alan M. Malott, District Judge
consolidated with
NO. 30,639
PAUL CAMPOS, as Personal Representative
of the Estate of Cheri Wilson, deceased,
Plaintiff-Appellant,
v.
LORETTA CONDER, M.D.;
LORETTA CONDER, M.D., P.C.;
a Corporation, OMKAR TIKU, M.D.;
and OMKAR TIKU, P.C., a Corporation,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Sarah M. Singleton, District Judge

McGinn, Carpenter, Montoya
& Love, P.A.
Tyler J. Atkins
Randy McGinn
Albuquerque, NM
The Kauffman Firm
Cid Lopez
Albuquerque, NM
for Appellant Bryanna Baker
Law Offices of Felicia C. Weingartner, P.C.
Felicia C. Weingartner
Albuquerque, NM
The Kauffman Firm
Cid Lopez
Albuquerque, NM
for Appellee Lorrice Gordon
Garcia & Vargas, LLC
Ray M. Vargas, II
Santa Fe, NM
The Law Office of Stephen Durkovich
Stephen Durkovich
Santa Fe, NM
for Appellant Paul Campos
Hinkle, Hensley, Shanor & Martin, L.L.P.
Dana S. Hardy
William P. Slattery
Santa Fe, NM
for Appellees Loretta Conder, M.D. and Loretta Conder, M.D.,P.C.

Allen Shepherd Lewis Syra & Chapman PA
Edward W. Shepherd
Albuquerque, NM
for Appellees Omkar Tiku, M.D. and Omkar Tiku P.C.
Lorenz Law
Alice T. Lorenz
Albuquerque, NM
for Appellant ABQ Health Partners, L.L.C.
Butt Thornton & Baehr PC
Emily A. Franke
W. Ann Maggiore
Albuquerque, NM
for Appellees Stephanie Hedstrom, M.D. and Southwest Perinatology, P.C.
Lorrie A. Krehbiel
Melanie Frassanito
Albuquerque, NM
for Appellees Lee C. Caruana, M.D. and Family Practice Associates, P.C.
Sharp Law Firm
Lynn S. Sharp
Albuquerque, NM
for Appellant ABQ Health Partners, L.L.C.
Miller Stratvert
Jennifer D. Hall
Albuquerque, NM
for Appellees Misbah Zmily M.D. and Misbah Zmily, P.C.

OPINION
CASTILLO, Chief Judge.
{1} 	In these consolidated cases, we must determine if Defendants are health care
providers as defined in the New Mexico Medical Malpractice Act (MMA), NMSA
1978, Sections 41-5-1 to -29 (1976, as amended through 2008). The MMA defines
“health care provider” as “a person, corporation, organization, facility[,] or institution
licensed or certified by this state to provide health care or professional services as a
doctor of medicine, hospital, outpatient health care facility, doctor of osteopathy,
chiropractor, podiatrist, nurse anesthetist[,] or physician’s assistant[.]” Section 41-5-
3(A). Health care providers must qualify under the MMA before they are entitled to
its benefits. 	See § 41-5-5; see also Roberts v. Southwest Cmty. Health Servs., 114
N.M. 248, 250, 837 P.2d 442, 444 (1992).
{2} 	Plaintiffs are individuals or the estate of a deceased individual; all have asserted
medical malpractice claims against Defendants and their agents. 	Defendants are
business entities that are neither hospitals nor outpatient health care facilities involved
in the treatment of Plaintiffs. Relying on the plain language of Section 41-5-3(A),
Plaintiffs assert that even though Defendants procured coverage under the MMA, they
may not invoke the protections of the MMA because they are not “health care
provider[s]” as that term is defined in the MMA. Defendants respond that Plaintiffs’

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plain language interpretation is too restrictive and contrary to the Legislature’s
intention that coverage under the MMA be widely available to as many providers of
health care services as possible. Defendants ask us to define the term “health care
provider” broadly and to conclude that they fall within the scope of that definition.
We reject Plaintiffs’ plain language interpretation, agree with Defendants’ legislative
intent arguments, and conclude that Defendants are health care providers.
I. 	BACKGROUND
{3} 	In this case, we have consolidated three interlocutory appeals from three
different judicial districts. Defendants here include several professional corporations
that are incorporated under the New Mexico Professional Corporations Act, NMSA
1978, Sections 53-6-1 through -14 (1963, as amended through 2001), and a foreign
limited liability company registered in Delaware. All obtained insurance coverage and
paid the surcharges necessary to be qualified health care providers under the MMA;
the business entities were properly licensed; and the Superintendent of Insurance has
listed them all and treated them all as qualified health care providers. 	We briefly
review the facts and procedural posture underlying each of the three cases.
{4} 	Gordon Case: Plaintiff Lorrice Gordon filed suit alleging permanent injuries
from a bowel obstruction following an emergency appendectomy that had required a
second surgery and a prolonged hospital stay. 	The case was filed in the Second

3
Judicial District Court against Lovelace Health System, Inc.; the surgeon who
performed the appendectomy; and the surgeons’s employer, ABQ Health Partners,
L.L.C. (the LLC), a foreign limited liability company organized under the laws of the
State of Delaware. 	The LLC filed a motion to dismiss or stay, arguing that it had
procured insurance under the MMA, that it was entitled to the benefits of the MMA,
and that it was entitled to dismissal because Gordon had failed to comply with the
procedural requirements of the MMA. 	Gordon responded that the LLC was not
entitled to the benefits of the MMA because it was not a “health care provider.” The
district court agreed with Gordon, denied the motion to dismiss, and certified the
matter for interlocutory review.
{5} 	Baker Case: Plaintiff Bryanna Baker filed suit in the Fourth Judicial District
Court alleging malpractice related to her pregnancies, heart attack, and resulting
permanent heart damage. Defendants included the doctors who treated her and the
professional corporations under which those doctors practice medicine. Thereafter,
she moved for summary judgment, arguing that the professional corporations named
as defendants in her suit could not benefit from the damage limitations in the
MMA—despite the fact that they had procured insurance under the MMA—because
they are not health care providers. 	The district court rejected Baker’s motion,
determined that the defendant corporations are health care providers, and certified the

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ruling for interlocutory review.
{6} 	Campos Case: Cheri Wilson had her gall bladder removed and died three days
after the procedure. Paul Campos, the personal representative of Wilson’s estate, filed
a wrongful death action in the First Judicial District against the doctor who performed
the procedure, against Wilson’s primary care physician whom Wilson had consulted
after the procedure, and against the professional corporations under which both
doctors practice medicine. 	The defendant professional corporations had obtained
insurance under the MMA and filed motions to dismiss, arguing that Wilson’s estate
failed to comply with the procedural requirements of the MMA. Campos opposed the
motion and argued that the corporations are not “health care provider[s]” as that term
is defined in the MMA and, thus, were not entitled to the benefits of the MMA. The
district court rejected this argument, granted the motion to dismiss, and certified the
matter for interlocutory review. This Court granted the interlocutory appeals of the
three cases and, upon the stipulated request of the parties, consolidated them because
they all involve a similar question.
II. 	DISCUSSION
{7} 	The sole issue before us is whether the definition of “health care provider” as
set forth in Section 41-5-3(A) of the MMA includes Defendant professional
corporations and the foreign limited liability company. 	Relying on Cummings v.

5
X-Ray Associates of New Mexico, P.C., 1996-NMSC-035, 121 N.M. 821, 918 P.2d
1321, and Otero v. Zouhar, 102 N.M. 482, 697 P.2d 482 (1985), overruled on other
grounds by Grantland v. Lea Reg’l Hosp., Inc., 110 N.M. 378, 796 P.2d 599 (1990),
Defendants assert that no New Mexico appellate court has ever found that a
corporation or limited liability company was precluded from being a qualified “health
care provider” under the MMA. While this may be the case, it does not answer our
question. In Cummings, our Supreme Court held that the MMA’s three-year statutory
limit was constitutional and that it barred plaintiff’s suit against the defendant
corporation. 	Otero, on the other hand, was a case in which the Superintendent of
Insurance incorrectly informed plaintiff that defendant limited liability corporation
was not a qualified health care provider. 	Otero, 102 N.M. at 486, 697 P.2d at 486.
Consequently, plaintiff’s application for review of his claims was not filed before the
statute of limitations had run. 	Id. Our Supreme Court concluded that plaintiff was
entitled to rely on the representations of the superintendent and, because the
superintendent conveyed incorrect information, the Court reinstated plaintiff’s claims
against defendant. Id. at 487. To the extent that Defendants argue that our Supreme
Court affirmatively decided that the corporate entities in Cummings and Otero were
health care providers, their reliance on those cases is misplaced. Neither Cummings
or Otero addressed the specific question before us today. Accordingly, the question

6
presented by the parties in the case before us has not yet been considered by New
Mexico appellate courts, and it is therefore one of first impression.
{8} 	We begin our review by establishing our standard of review and then set out the
rules of statutory construction that guide our analysis.
A. 	Standard of Review and Rules of Statutory Construction
{9} 	This case presents us with a question of statutory interpretation. “The meaning
of language used in a statute is a question of law that we review de novo.” 	United
Rentals Nw., Inc. v. Yearout Mech., Inc., 2010-NMSC-030, ¶ 7, 148 N.M. 426, 237
P.3d 728 (internal quotation marks and citation omitted).
{10} 	“The principal objective in the judicial construction of statutes is to determine
and give effect to the intent of the [L]egislature.” Regents of the Univ. of N.M. v. N.M.
Fed’n of Teachers, 1998-NMSC-020, ¶ 28, 125 N.M. 401, 962 P.2d 1236 (internal
quotation marks and citation omitted). 	We rely on rules of construction as aids in
determining legislative intent, State v. Martinez, 92 N.M. 291, 293, 587 P.2d 438, 440
(Ct. App. 1978), and must interpret Section 41-5-3(A) “as the Legislature understood
it at the time it was enacted.” Montoya v. City of Albuquerque, 82 N.M. 90, 94, 476
P.2d 60, 64 (1970).
{11} 	“The first guiding principle in statutory construction dictates that we look to the
wording of the statute and attempt to apply the plain meaning rule, recognizing that

7
[w]hen a statute contains language which is clear and unambiguous, we must give
effect to that language and refrain from further statutory interpretation.” 	United
Rentals Nw., Inc., 2010-NMSC-030, ¶ 9 (alteration in original) (internal quotation
marks and citation omitted). We may depart from the plain meaning of the language
of a statute, however, to “correct a mistake or an absurdity that the Legislature could
not have intended[.]” Regents of the Univ. of N.M., 1998-NMSC-020, ¶ 28.
{12} 	“It is fundamental that statutes will be construed so that their application will
be neither absurd nor unreasonable.” Midwest Video v. Campbell, 80 N.M. 116, 119,
452 P.2d 185, 188 (1969). Similarly, “[w]e will not construe a statute to defeat [its]
intended purpose.” Padilla v. Montano, 116 N.M. 398, 403, 862 P.2d 1257, 1262 (Ct.
App. 1993). 	“If the language of a statute renders its application absurd or
unreasonable, it will be construed according to its obvious spirit or reason.” State v.
Ortiz, 78 N.M. 507, 510, 433 P.2d 92, 95 (Ct. App. 1967). This may necessitate “the
rejection of words and the substitution of others.” 	Montoya v. McManus, 68 N.M.
381, 389, 362 P.2d 771, 776 (1961). 	We may consider “the structure, context,
history[,] and background of the statute, as well as the likely policy implications of
various constructions.” 	State v. Burke, 2007-NMCA-093, ¶ 7, 142 N.M. 218, 164
P.3d 99, rev’d on other grounds by 2008-NMSC-052, 144 N.M. 772, 192 P.3d 767.
1. 	Plain Meaning

8
{13} 	Neither party argues that there is ambiguity in Section 41-5-3(A). 	As
previously mentioned, Section 41-5-3(A) defines “health care provider” as “a person,
corporation, organization, facility[,] or institution licensed or certified by this state to
provide health care or professional services as a doctor of medicine, hospital,
outpatient health care facility, doctor of osteopathy, chiropractor, podiatrist, nurse
anesthetist[,] or physician’s assistant[.]” Plaintiffs emphasize the terms “licensed or
certified” and the term “as” and claim that the plain meaning of Section 41-5-3(A)
encompasses two distinct and discrete groups: persons licensed as (1) doctors, (2)
doctors of osteopathy, (3) chiropractors, (4) podiatrists, (5) nurse anesthetists, and (6)
physician assistants and corporations, organizations, facilities, or institutions licensed
or certified as (1) hospitals or (2) outpatient health care facilities. 	According to
Plaintiffs, the definition of “health care provider” encompasses these six persons and
two types of business entities and nothing more.
{14} 	In support of this interpretation, Plaintiffs point out that corporations cannot be
licensed to provide health care or professional services as doctors, physician
assistants, chiropractors, podiatrists, nurse anesthetists, or physician’s assistants. They
correctly argue that only persons can be licensed to provide those health services. See
NMSA 1978, § 61-6-11 (2005) (governing medical licensure); NMSA 1978, § 61-10-
3 (1975) (governing licensure in the field of osteopathy); NMSA 1978, § 61-4-6

9
(2008) (governing licensure in the chiropractic field); NMSA 1978, § 61-8-3 (1998)
(governing licensure in the field of podiatry); NMSA 1978, § 61-6-10.3 (2003)
(governing licensure of anesthetist assistants); NMSA 1978, § 61-6-7 (2003)
(governing licensure of physician assistants).
{15} 	Plaintiffs assert that there is no dispute that Defendant corporations are not one
of the six types of persons nor are they one of the two types of business entities
encompassed by the definition of “health care provider.” 	Thus, according to
Plaintiffs, Defendants cannot qualify for coverage under the MMA.
{16} 	Defendants have not offered a compelling alternative reading of the plain
meaning of the text of Section 41-5-3(A). They merely rely on the fact that the words
“corporation[s]” and “organization[s]” appear in the definition of “health care
provider” and claim that everyone who addressed Section 41-5-3(A) read it as
allowing business entities to qualify. This approach ignores the terms emphasized by
Plaintiffs. Moreover, Defendants appear to concede that the grammar and punctuation
of Section 41-5-3(A), if read literally, would exclude them from qualifying as a
“health care provider.”
{17} 	Were we to look only at the literal language in Section 41-5-3(A) and nothing
else, we would agree with Plaintiffs’ interpretation of the term “health care provider”
and further that Defendants do not fall within the definition of that term. But our task

10
does not end here. We must exercise caution in applying the plain meaning rule.
“Its beguiling simplicity may mask a host of reasons why a statute, apparently clear
and unambiguous on its face, may for one reason or another give rise to legitimate
(i.e., nonfrivolous) differences of opinion concerning the statute’s meaning.” 	State
ex rel. Helman v. Gallegos, 117 N.M. 346, 353, 871 P.2d 1352, 1359 (1994). We
examine the overall structure of the statute and its function in the comprehensive
legislative scheme. Accordingly, we decline to engage in a literal reading because,
in our view, such an interpretation would conflict with the overall legislative purpose
underlying the MMA. See Eldridge v. Circle K Corp., 1997-NMCA-022, ¶ 29, 123
N.M. 145, 934 P.2d 1074 (“[O]ur task is not to apply language literally when it would
lead to counterproductive, inconsistent, and absurd results; we must harmonize the
statutory language to achieve the overall legislative purpose.”). “[W]e also consider
the history and background of the statute.” State v. Rivera, 2004-NMSC-001, ¶ 13,
134 N.M. 768, 82 P.3d 939.
{18} 	In the consolidated cases before us, a plain meaning interpretation would make
little sense in light of the historical circumstances that led to the MMA’s enactment
and the structure of the MMA itself. Burke, 2007-NMCA-093, ¶ 7 (stating that a court
may consider the history and background of a statute as well as its structure when
called upon to construe it). We explain.

11
2. 	Legislative Purpose and History
{19} 	We begin with a short history of the events leading to the filing of these cases.
The MMA was enacted in 1976 and, since then, a variety of different business entities
that are neither hospitals nor outpatient health care facilities have paid for liability
coverage under the MMA and have been covered. The question of whether the term
“health care provider” as defined in the MMA encompasses business entities other
than hospitals and outpatient health care facilities has never been specifically
addressed by a New Mexico appellate court. 	Nor had it been addressed by the
Insurance Department until 2009 when the then-serving New Mexico Superintendent
of Insurance issued a memorandum expressing his view that these types of business
entities do not fall within the definition of “health care provider.” Disagreeing with
the determination, a doctor and a health insurance company filed a suit against the
superintendent for injunctive relief and declaratory judgment. That lawsuit resulted
in a temporary restraining order that required the superintendent to rescind his
memorandum and to continue permitting business entities other than hospitals and
outpatient health care facilities to procure coverage.
{20} 	In both the 2010 and 2011 legislative sessions, proposed legislation designed
to address the definition of “health care provider” was introduced. 	The 2010
legislation died during the session, while the 2011 legislation passed both houses but

12
was vetoed by the Governor.
{21} 	The asserted purpose of the MMA is “to promote the health and welfare of the
people of New Mexico by making available professional liability insurance for health
care providers in New Mexico.” 	Section 41-5-2. 	This asserted purpose and the
historical circumstances leading to the enactment of the MMA have been examined
in detail.
{22} 	“The [MMA] was enacted by the [L]egislature in order to meet an insurance
crisis [and] to promote health care in New Mexico by providing a framework for tort
liability with which the insurance industry could operate.” Wilschinsky v. Medina,
108 N.M. 511, 516, 775 P.2d 713, 718 (1989). The insurance crisis that prompted the
enactment of the MMA arose out of a nationwide perception that medical malpractice
insurance was increasingly becoming unavailable. 	Ruth L. Kovnat, 	Medical
Malpractice Legislation in New Mexico, 7 N.M. L. Rev. 5, 7 (1976-77). 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. Id. 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. Id. at 7-8. Travelers’ reason for withdrawing was “simply that there was

13
no profit in writing medical liability insurance and that they would prefer to be out of
the business altogether.” Id. at 8.
{23} 	The MMA addressed the crisis by making malpractice insurance available and
by providing incentives in the form of benefits to ensure widespread participation.
Cummings, 1996-NMSC-035, ¶ 29; Roberts, 114 N.M. at 249-50, 837 P.2d at 443-44.
The benefits of participation in the MMA are significant and numerous. See generally
Lester ex rel. Mavrogenis v. Hall, 1998-NMSC-047, ¶ 11, 126 N.M. 404, 970 P.2d
590. In order to assure New Mexicans’ access to medical care, the Legislature limited
the liability of health care providers by enacting damage caps, a shorter three-year
statute of limitations, and a mandatory evaluation process conducted by a medical
review commission. 	Id. 	In short, the MMA restricted and limited plaintiffs’ rights
under the common law. See Wilschinsky, 108 N.M. at 516, 775 P.2d at 718.
{24} 	We now turn to some of the specific provisions. 	Section 41-5-5(C) of the
MMA limits the benefits of the MMA to those health care providers willing to accept
the burdens of qualification. The burdens of qualification include, but are not limited
to, proof by health care providers of insurance coverage of $200,000 per occurrence
and surcharges to maintain the patients’ compensation fund. 	Cummings, 1996-
NMSC-035, ¶ 28. Any judgment or settlement that awards an amount greater than
$200,000 is paid by the fund. Id.

14
{25} 	These specific burdens—the minimum insurance requirement and the levying
of surcharges—along with the creation and existence of the patient’s compensation
fund are significant and central aspects of the MMA. 	Our Supreme Court has
previously observed that, by establishing minimum levels of insurance and by levying
a surcharge to sustain the patient’s compensation fund, the MMA “achieves the
legislative purposes of assuring that health care providers are adequately insured so
that patients may be reasonably compensated for their malpractice injuries.” Id. This
is but another way of saying that these provisions go a long way toward fulfilling the
asserted purpose of the MMA.
{26} 	From 1976 to 2009, the New Mexico Department of Insurance permitted
physician-owned corporations or organizations to obtain insurance coverage and thus
become qualified health care providers. For this thirty-three-year period, there was
no action by the Legislature indicating that this interpretation of the statute was
incorrect. See In re Sleeper, 107 N.M. 494, 498, 760 P.2d 787, 791 (Ct. App. 1988)
(“[T]he more long-standing the state engineer’s interpretation of construction of the
statutes without amendment by the [L]egislature, the more likely that the state
engineer’s interpretation reflects the [L]egislature’s intent.”); but see Brown v.
Gardner, 513 U.S. 115, 121 (1994) (stating that legislative silence lacks persuasive
significance).

15
{27} 	Plaintiffs have a different view of the purpose of the MMA. They focus on the
manner in which health care was rendered at the time the MMA was enacted and
assert that, at that time, medical services in New Mexico were primarily rendered by
individual doctors and by locally owned hospitals. Thus, Plaintiff’s claim that the
Legislature intended only those doctors and those entities to be eligible to qualify as
“health care providers.” Other business or corporate entities, Plaintiffs claim, “were
not of concern” and, thus, were purposefully excluded from qualifying. In support of
this view, Plaintiffs direct us to the affidavit of Terry M. Word, an attorney who
served 	on 	the 	“New 	Mexico 	Medical 	Society/New 	Mexico 	Bar 	Association
Committee” and “the informal Medical Society/Bar Association Liaison Committee”
both of which, Plaintiffs claim, “provided guidance and policy assistance to the New
Mexico Legislature on the [MMA].” Word’s view of the history and purpose of the
MMA is identical to Plaintiffs’ position.
{28} 	We are unpersuaded by Plaintiffs’ legislative history and intent arguments and
the authority they cite in support of those arguments. Further, the Word affidavit has
no bearing here as, generally, not even statements of legislators are considered
competent evidence in determining legislative intent. Cf. Gallegos, 117 N.M. at 355-
56, 871 P.2d at 1361-62 (“Statements of legislators, after the passage of the
legislation, however, are generally not considered competent evidence to determine

16
the intent of the legislative body enacting a measure.” (internal quotation marks and
citation omitted)). 	Word only provided policy assistance to the Legislature and
therefore was at least one step removed from the legislative process.
{29} 	More critically, we are unable to reconcile Plaintiffs’ position that the
Legislature intended only a specific pool of health care providers to be eligible for
coverage under the MMA with the asserted purpose of the MMA: 	to protect the
health of New Mexicans by solving the problem of the unavailability of medical
malpractice insurance. 	As noted above, the Legislature went so far as to provide
significant incentives to ensure widespread participation in the MMA. Plaintiffs’ view
that the MMA was intended to be restrictive does not make sense in light of case law
that supports the conclusion that our Legislature intended the MMA to be broadly
applicable. Cummings, 1996-NMSC-035, ¶ 29 (stating that the Legislature “provided
a number of incentives to assure participation by health care providers in the burdens
of qualification under the [MMA]”).
{30} 	Plaintiffs attempt to bolster their legislative intent argument by relying on the
canon of statutory construction known as expressio unius est exclusio alterius—the
inclusion of one thing implies the exclusion of another. See generally Fernandez v.
Española Pub. Sch. Dist., 2005-NMSC-026, ¶ 6, 138 N.M. 283, 119 P.3d 163
(discussing the expressio unius est exclusio alterius canon of construction). 	They

17
contend that, because the definition of “health care provider” includes several specific
entities, the Legislature must have intended that all other entities not specifically listed
were to be excluded from the definition of “health care provider.” We disagree.
{31} 	We are persuaded that the Legislature intended, for sound and identifiable
policy reasons, that the term “health care provider” be as broadly construed as
possible. 	We have rejected Plaintiffs’ view regarding legislative intent. 	We also
reject Plaintiffs’ expresio unius est exclusio alterius argument as inconsistent with
what we believe our Legislature intended regarding the scope of the definition of
“health care provider.” As stated above, our principal objective is to construe Section
41-5-3(A) so as to “give effect to the intent of the [L]egislature.” Regents of the Univ.
of N.M., 1998-NMSC-020, ¶ 28 (internal quotation marks and citation omitted).
{32} 	Finally, we observe that Plaintiffs’ interpretation would, as Defendants argue,
give rise to significant constitutional issues grounded in contract, due process, and
equal protection. Our case law requires that we construe statutes to avoid such issues.
Lovelace Med. Ctr. v. Mendez, 111 N.M. 336, 340, 805 P.2d 603, 607 (1991) (“It is,
of course, a well-established principle of statutory construction that statutes should be
construed, if possible, to avoid constitutional questions.”).
{33} 	In sum, we determine that a plain meaning construction of Section 41-5-3(A)
is inappropriate. We agree with Defendants’ interpretation of what our Legislature

18
intended as to the scope of the definition of “health care provider.” We now address
the remaining arguments on appeal.
B. 	Remaining Arguments
{34} 	The parties have presented a number of other arguments that we find
unpersuasive. We deal with them summarily.
{35} 	Defendants direct us to two Attorney General opinions, one issued in 1977, the
other in 1987, that they claim are pertinent to the issue before us. This is not the case.
The 1977 opinion examines the plain language of the MMA and advises that “[a]
corporation licensed to provide professional services as specified in [Section 41-5-
3(A)] is a health care provider.” While we agree that this may have been the general
understanding at the time, we observe that the opinion ignores the term “as” in
reaching its conclusion. Our plain meaning reading of Section 41-5-3(A) would allow
only two types of business entities to qualify as health care providers: those licensed
to provide health care or professional services as (1) hospitals or (2) outpatient health
care facilities. But this is immaterial because we have held that the plain meaning of
the statute is not what the Legislature intended and that each of the Defendant
business corporations is indeed a “health care provider” as contemplated by the MMA.
{36} 	The 1987 opinion addresses whether “a corporation, organized and controlled
by non-physicians, [may] provide medical services to the general public through

19
employed 	physicians[.]” 	The 	Attorney 	General 	concluded 	yes 	with 	some
qualification. The question answered by the 1987 opinion and the question before us
are totally different; consequently, we fail to see how the resolution of this question
answered in the opinion bears on the scope of the definition of “health care provider.”
For this reason, we conclude that the 1987 opinion is not helpful.
{37} 	Defendants also direct us to legislation proposed during the 2011 New Mexico
legislative session that would have amended the definition of “health care provider”
to include business entities other than hospitals or outpatient health care facilities. See
H.B. 267, 2011 Leg., 50th Sess. (N.M. 2011); S.B. 333 2011 Leg., 50th Sess. (N.M.
2011). 	These bills passed both the Senate and the House but were vetoed by the
Governor. Defendants argue that this legislation is indicative of legislative intent. We
disagree. The amendments are not law, Regents of the Univ. of N.M., 1998-NMSC-
020, ¶ 32 (declining to consider statutory provisions that were never enacted when
attempting to discern legislative intent), and do not give us any indication of what the
[L]egislature intended at the time the MMA was enacted. See Montoya, 82 N.M. at
94, 476 P.2d at 64 (observing that we must discern legislative intent at the time of
enactment). The legislative amendments are also immaterial.
{38} 	Defendants rely on the rule of statutory construction known as administrative
gloss. This canon was discussed by our Supreme Court in High Ridge Hinkle Joint

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Venture v. City of Albuquerque, 1998-NMSC-050, ¶ 9, 126 N.M. 413, 970 P.2d 599,
which Defendants cite. There, our Supreme Court described the doctrine as follows:
“[a]n administrative gloss is placed on an ambiguous clause of a zoning ordinance
when those responsible for its implementation interpret the clause in a consistent
manner and apply it to similarly situated applicants over a period of years without
legislative interference.” Id. (internal quotation marks and citation omitted). In Smith
v. Board of County Commissioners, 2005-NMSC-012, ¶ 32, 137 N.M. 280, 110 P.3d
496, our Supreme Court explained that adherence to the doctrine precludes a “kind of
result-oriented reinterpretation of zoning rules.” Our research reveals that the canon
of administrative gloss is applicable only where the provision giving rise to the
dispute is ambiguous. 	See Nash Family Inv. Props. v. Town of Hudson, 660 A.2d
1102, 1108 (N.H. 1995) (“Assuming [the administrative gloss] doctrine applies . . .
the plaintiffs’ point must fail because they allege no ambiguity in the relevant
ordinances.”). 	The parties have not argued that Section 41-5-3(A) is ambiguous.
Thus, the doctrine of administrative gloss is inapplicable here.
{39} 	Both parties cite to opinions from other jurisdictions where courts were required
to interpret their state statute that is equivalent to the MMA and address issues similar
to those raised here. Defendants cite to Campbell v. MacGregor Medical Ass’n, 966
S.W.2d 538 (Tex. Ct. App. 1997), rev’d in part on other grounds by MacGregor

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Medical Ass’n v. Campbell, 985 S.W.2d 38 (Tex. 1998), while Plaintiffs direct us to
Turner v. Sheldon D. Wexler, D.P.M., P.C., 418 S.E.2d 886 (Va. 1992). These cases
are, in our view, of minimal significance because the conclusions reached by the
Texas and Virginia courts are based on the unique language and interpretation of their
respective statutes. This appeal requires us to examine the language of the MMA, the
purposes and historical circumstances giving rise to the enactment of the MMA, the
structure of the MMA, and to apply the rules of statutory construction as adopted in
New Mexico.
III. 	CONCLUSION
{40} 	“When we find, as we do here, a clash between the intent of the [L]egislature
and its own definitional section, we seek to harmonize the two.” 	Wilschinsky, 108
N.M. at 517, 775 P.2d at 719. 	We decline to read the definition of “health care
provider” literally. This would restrict eligibility for coverage under the MMA in a
manner our Legislature could not have intended. 	The purpose of the MMA, the
historical circumstances leading to its enactment, and the structure of the MMA
persuade us that the Legislature intended to include Defendants in the definition of
“health care provider” and, thus, to allow them to qualify for coverage under the
MMA. Thus, we reverse the district court’s denial of Defendant’s motion to dismiss
in Gordon, and we affirm the orders of the district courts in Baker and Campos.

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{41} 	IT IS SO ORDERED.
__________________________________
CELIA FOY CASTILLO, Chief Judge
WE CONCUR:
__________________________________
RODERICK T. KENNEDY, Judge
__________________________________
LINDA M. VANZI, Judge