Romero v. Lovelace Health Sys., Inc.

Office of Director New Mexico
11:26:56 2020.01.14 Compilation
'00'07- Commission

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2020-NMSC-001

Filing Date: December 5, 2019

No. S-1-SC-36764

MARLINA ROMERO,

Plaintiff-Petitioner,

v.

LOVELACE HEALTH SYSTEM, INC.,
A New Mexico Corporation,

Defendant-Respondent,

and

WOMEN’S SPECIALISTS OF NEW MEXICO, LTD.,
a New Mexico Corporation, and
KRISTINA CHONGSIRIWATANA, M.D.,

Defendants.

ORIGINAL PROCEEDING ON CERTIORARI
Nan G. Nash, District Judge

Released for Publication January 21, 2020.

Kennedy, Hernandez & Associates, P.C.
Paul John Kennedy
Arne Robert Leonard
Jessica Hernandez
Albuquerque, NM

for Petitioner

Rodey, Dickason, Sloan, Akin & Robb, P.A.
Edward R. Ricco
Paul R. Koller
Albuquerque, NM

for Respondent
OPINION

VIGIL, Justice.

{1} Plaintiff filed an application to the New Mexico Medical Review Commission
(MRC) alleging that as a result of medical negligence Plaintiff’s pregnancy was aborted.
The alleged negligence concerns Lovelace Health System, Inc. (Lovelace) in part.
Lovelace is not a qualified provider under the Medical Malpractice Act (MMA), NMSA
1978, §§ 41-5-1 to -29 (1976, as amended through 2015). The narrow issue in this case
is whether Plaintiff’s application to the MRC tolled the running of the three-year
limitations period for filing medical malpractice claims against Lovelace. In an
unpublished opinion, our Court of Appeals affirmed the order of the district court which
dismissed the complaint against Lovelace on the basis that Plaintiff’s application to the
MRC was not specific enough in making allegations against Lovelace to trigger the
MMA’s tolling provision on Plaintiff’s claims against Lovelace. Romero v. Lovelace
Health Sys., Inc., A-1-CA-35177, mem. op. ¶¶ 25, 27, 31 (N.M. Ct. App. Oct. 26, 2017)
(nonprecedential). We reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

{2} Plaintiff filed a complaint for medical negligence, respondeat superior, and
damages, naming Lovelace, Women’s Specialists of New Mexico, Ltd. (Women’s
Specialists), and Kristina Chongsiriwatana, M.D., as defendants. Lovelace filed a motion
to dismiss, arguing that Plaintiff’s claims against Lovelace were barred by the statute of
limitations. Plaintiff responded that her complaint against Lovelace was not barred
because prior to filing the complaint she filed an application to the MRC pursuant to the
MMA, thereby tolling the statute of limitations. See § 41-5-22 (providing that upon
submission of an application to the MRC, “[t]he running of the applicable limitation
period in a malpractice claim shall be tolled”). The parties agreed that although
Lovelace is not a qualified provider under the MMA, if Lovelace was named in the MRC
application, the running of the limitations period was effectively tolled. See Grantland v.
Lea Regional Hosp., 1990-NMSC-076, ¶¶ 4, 9, 110 N.M. 378, 796 P.2d 599 (holding
that filing a medical malpractice application to the MRC “tolls the statute of limitations
period” as to nonqualified health care providers). However, the parties disagreed on
whether Lovelace was actually named in the MRC application, Plaintiff contending that it
was and Lovelace contending that it was not.

{3} The MRC application was presented to the district court to resolve the dispute.
The MRC application is in the form of a letter from Plaintiff’s attorneys that is addressed
to the MRC. Beneath the caption, “A. Statement of Facts, Including Dates and
Circumstances,” the MRC application recites that in the fall of 2010 Plaintiff wanted to
become pregnant. In June 2011 Plaintiff tested positive for pregnancy on a home
pregnancy test that was confirmed in a June 14, 2011, visit to Women’s Specialists.
During this visit, Plaintiff reported that she was experiencing abdominal and pelvic pain
that started around February 27, 2011. As a result, Plaintiff had an ultrasound, which
the radiologist reported “showed no evidence of an ectopic or intrauterine pregnancy.”
{4} The MRC application adds that on June 17, 2011, Plaintiff arrived at Lovelace
Medical Center complaining of a sharp pain in her lower abdomen and left side pelvic
region, together with some vaginal spotting. Doctors at Lovelace Medical Center, which
Lovelace operates, examined Plaintiff and ordered hormone studies and ultrasounds.
The hormone studies were deemed consistent with being three to four weeks pregnant,
and the radiology technician told Plaintiff there were signs of pregnancy. However, the
Lovelace Medical Center doctor who signed the ultrasound reports said “endovaginal
scans demonstrate a small intrauterine fluid filled structure” which was “probably a
pseudogestational sac,” and he also noted “a cystic structure within the right ovary with
a ‘ring of fire.’” After discussing these findings, the Lovelace doctors transferred Plaintiff
to Lovelace Women’s Hospital in an ambulance. Lovelace also operates Lovelace
Women’s Hospital.

{5} The MRC application continues that at Lovelace Women’s Hospital Dr.
Chongsiriwatana performed a diagnostic laparoscopy for a presumed ectopic pregnancy
and, finding no sign of an ectopic pregnancy, made the postoperative diagnosis of a
right ovarian cyst. After the laparoscopy and draining of the cyst, and despite having
discovered no visible evidence of an ectopic pregnancy, Dr. Chongsiriwatana treated
Plaintiff with methotrexate, which carries a high risk of birth defects. Dr.
Chongsiriwatana did not obtain Plaintiff’s informed consent before administering
methotrexate because Plaintiff was heavily medicated.

{6} The MRC application concludes by stating that six days later, on June 23, 2011,
when Plaintiff returned to Lovelace Women’s Hospital to see Dr. Chongsiriwatana
because she was still experiencing pain, Dr. Chongsiriwatana ordered hormone tests
and an ultrasound. The ultrasound showed “a saclike structure in the uterus and normal
ovaries.” Upon receiving the ultrasound results, Dr. Chongsiriwatana told Plaintiff, “I’m
sorry. We messed up. You have a normal pregnancy, and because we gave you
methotrexate, you must abort it due to possible birth defects.” Consequentially,
Plaintiff’s planned pregnancy was aborted. Subsequently Plaintiff suffered severe
depression with added adverse effects on her relationships and employment. “[Plaintiff]
and her boyfriend broke up, and [Plaintiff] saw a mental health counselor for several
months.”

{7} Following the foregoing statement of facts in Plaintiff’s application to the MRC is
the caption, “B. Individuals Involved,” and a subheading stating “The names, addresses,
and phone numbers of all providers whose care may be germane to the issues are as
follows[.]” However, the listing provided does not include Lovelace and Women’s
Specialists. Instead, the MRC application lists the actual doctors and other persons who
treated Plaintiff, by name, address, and phone number. Finally, the MRC application
has a third caption, “C. Medical Releases,” with Plaintiff’s medical releases attached.
One of the medical releases is a Lovelace Health System medical release. This single
document authorizes the release of Plaintiff’s health information⸻from Lovelace
Medical Center (Gibson), Lovelace Westside Hospital, Lovelace Medical Center
(Downtown), and Lovelace Women’s Hospital⸻to the MRC.
{8} In ruling on Lovelace’s motion to dismiss, the district court considered Plaintiff’s
application to the MRC as well as letters from the MRC requesting medical records from
Plaintiff’s providers, which the parties attached to their briefs. The district court
converted the motion to dismiss into a motion for summary judgment under Rule 1-
012(C) NMRA (stating that “if . . . matters outside the pleadings are presented to and
not excluded by the court, the motion shall be treated as one for summary judgment and
disposed of as provided in Rule 1-056 NMRA”). The district court ruled that “Lovelace
was not named in the [MRC] application” as required by Section 41-5-15(B)(1), stating
that “there are no dates and circumstances suggesting malpractice, negligence, alleged
acts or respondeat superior on behalf of Lovelace.” The district court therefore
concluded that “the statute of limitations was not tolled as to Lovelace” and dismissed
Plaintiff’s claims against Lovelace.

{9} The Court of Appeals memorandum opinion affirmed the district court. Romero,
A-1-CA-35177, mem. op. ¶¶ 27, 30-31. The Court of Appeals held that “if a plaintiff
wishes to utilize the tolling provision in Section 41-5-22 against particular providers,
then he or she must identify the alleged act or acts of malpractice against those
particular providers.” Id. ¶ 25. Concluding that Plaintiff’s MRC application failed to meet
this standard of pleading, the Court of Appeals agreed with the district court that the
tolling provision did not apply and affirmed dismissal of Plaintiff’s claims against
Lovelace. Id. ¶¶ 25, 30-31. We granted Plaintiff’s petition for a writ of certiorari, and we
now reverse.

II. DISCUSSION

{10} Plaintiff argues that the manner in which its MRC application named Lovelace
satisfies the text, structure, and purpose of the MMA and achieves the purpose of tolling
the applicable limitations period. Plaintiff also asserts that the MMA does not impose a
heightened standard of pleading for naming providers in an MRC application, especially
in this case, because the Legislature did not intend for the MMA to protect health care
providers such as Lovelace who choose to opt out of the screening requirements of the
MMA. Lovelace responds that Plaintiff’s MRC application only lists one or another
Lovelace facility where Plaintiff received medical care. Lovelace asserts that an MRC
application serves the same function that a complaint ordinarily serves to satisfy the
statute of limitations. Lovelace argues that to rely on tolling with respect to any provider,
an MRC application must give notice to a provider that a medical malpractice claim is
being asserted against it. Lovelace further contends that because Plaintiff’s application
does not articulate what Lovelace did, either directly or indirectly or through an
employee or agent, to give Lovelace notice of Plaintiff’s claims against it, “the
application did not toll the limitation period against Lovelace.” For the reasons that
follow, we conclude that Plaintiff’s arguments prevail.

A. Standard of Review

{11} New Mexico courts disfavor summary judgment, as it is a drastic remedy to be
used with great caution. Romero v. Philip Morris, Inc., 2010-NMSC-035, ¶ 8, 148 N.M.
713, 242 P.3d 280 (citing Pharmaseal Labs., Inc. v. Goffe, 1977-NMSC-071, ¶ 9, 90
N.M. 753, 568 P.2d 589). “This Court’s review of orders granting or denying summary
judgment is de novo. 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.”
Cahn v. Berryman, 2018-NMSC-002, ¶ 12, 408 P.3d 1012 (internal quotation marks and
citation omitted). “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. (internal
quotation marks and citation omitted). To the extent we must construe the applicable
statutes, our review is de novo. Hovet v. Allstate Ins. Co., 2004-NMSC-010, ¶ 10, 135
N.M. 397, 89 P.3d 69 (“Statutory interpretation is a question of law, which we review de
novo.”).

B. Operation of the MMA

{12} New Mexico reformed its medical malpractice laws in 1976 in response to a
perceived crisis of increasingly unavailable medical malpractice insurance. See Cahn,
2018-NMSC-002, ¶ 13. To achieve its goal of making professional liability insurance
available for health care providers in New Mexico, the Legislature adopted the MMA,
offering certain “benefits.” Roberts v. Sw. Cmty. Health Servs., 1992-NMSC-042, ¶ 13,
114 N.M. 248, 837 P.2d 442. Included in these “benefits” are medical malpractice
coverage, see § 41-5-25, limitations on malpractice awards, see § 41-5-6, limitations on
personal liability for future medical expenses, see § 41-5-7, and mandatory screening of
medical malpractice claims before they can be filed in court, see §§ 41-5-14 to -21. Id.
However, the Legislature conditioned a health care provider’s entitlement to these
“benefits” on “qualifying” for the MMA. Section 41-5-5(C). “[Q]ualified” health care
providers are those who meet certain financial requirements set forth in Section 41-5-5
and are therefore entitled to all the benefits of the MMA. A health care provider who
chooses not to participate is a “non-qualified” health care provider who “shall not have
the benefit of any of the provisions of the [MMA] in the event of a malpractice claim
against it.” Section 41-5-5(C). “Thus, the legislature encouraged health care providers to
become qualified by accepting the burdens of qualification, and offered certain benefits
in return.” Roberts, 1992-NMSC-042, ¶ 13.

{13} The “benefit” we consider in this case is the mandatory procedure for reviewing
medical malpractice claims. The function of the MRC, created by the MMA, “is to
provide panels to review all malpractice claims against health care providers covered by
the [MMA].” Section 41-5-14(A). All medical malpractice claims against qualified health
care providers must first be screened by a panel of the MRC: “No malpractice action
may be filed in any court against a qualifying health care provider before application is
made to the [MRC] and its decision is rendered.” Section 41-5-15(A). Pertinent to the
case before us here, the application must include “a brief statement of the facts of the
case, naming the persons involved, the dates and the circumstances, so far as they are
known, of the alleged . . . malpractice[.]” Section 41-5-15(B)(1). Upon receipt of the
application, the MRC is required to serve a copy of the application on the health care
providers involved, who are then required to answer the application for review. Section
41-5-16(A), (B). A panel, consisting of members of the state professional society or
association of health care providers and members of the state bar association, is then
appointed to review the case. Section 41-5-17(A)-(D). Following a hearing, the panel
deliberates and decides two questions: “(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). Whatever it decides, “[t]he panel’s decisions shall be without administrative
or judicial authority and shall not be binding on any party.” Section 41-5-20(F).

{14} One of the additional solutions to the problem of “insurance carriers . . .
withdrawing from medical malpractice liability coverage” in New Mexico was to preclude
malpractice claims brought more than three years after the act of malpractice.
Cummings v. X-Ray Assocs. of N.M., P.C., 1996-NMSC-035, ¶ 40, 121 N.M. 821, 918
P.2d 1321. The statute of limitations for claims against a qualified health care provider is
governed by Section 41-5-13 (stating that the claim must be filed “within three years
after the date that the act of malpractice occurred” with an exception for claims of
minors under the full age of six). This occurrence-based statute of repose triggers the
start of the time period for a patient’s right to action when the malpractice occurs and
terminates the period three years later, regardless of whether the injury has manifested
itself. Cummings, 1996-NMSC-035, ¶¶ 50-51; see also Cahn, 2018-NMSC-002, ¶¶ 14-
15. The statute of limitations for claims against a nonqualified health care provider, on
the other hand, is governed by NMSA 1978, Section 37-1-8 (1976) (providing that
actions must be brought “for an injury to the person or reputation of any person, within
three years”). This is discovery-based accrual under which the limitations period “does
not begin to run until the patient discovers, or reasonably should discover, the essential
facts” of the medical malpractice claim. Cummings, 1996-NMSC-035, ¶ 47.

{15} Upon a plaintiff’s submission of an application to the MRC, “the running of the
[three-year] limitation period . . . shall be tolled and shall not commence to run again
until thirty days after the panel’s final decision is entered in the permanent files of the
[MRC] and a copy is served upon the claimant and his attorney by certified mail.”
Section 41-5-22. The MRC is required to review medical malpractice claims against
qualified providers, but there is no requirement that the MRC review claims against
nonqualified providers. See § 41-5-14(A), (C). Nevertheless, we have held that
submission of an application to the MRC pursuant to Section 41-5-15(B) tolls the
running of the applicable limitations period with respect to both qualified and
nonqualified providers. Grantland, 1990-NMSC-076, ¶¶ 4, 9; see Roberts, 1992-NMSC-
042, ¶¶ 1, 14, 16, 19 (concluding that the MMA is consistent with the discovery rule and
with Section 37-1-8 governing commencement of the limitations period for nonqualified
providers). We must therefore determine whether Plaintiff’s application to the MRC
satisfied the requirements of Section 41-5-15(B)(1) concerning Lovelace.

C. Whether Plaintiff’s MRC Application Tolled the Running of the Limitations
Period with Respect to Plaintiff’s Claims against Lovelace
{16} Lovelace and its doctors are certainly familiar with the technical medical
language in Plaintiff’s MRC application. Herein, we describe what some of the medical
terms commonly mean to doctors in this field. A “gestational sac” is a “sac comprising
the extraembryonic membranes that envelop the embryo or fetus,” and
“pseudogestation” is defined as “false pregnancy.” Dorland’s Illustrated Medical
Dictionary 1660, 1542 (32nd ed. 2012). Additionally, a “ring of fire” is indicative of an
ectopic pregnancy. See Edward P. Lin, M.D., et. al., Diagnostic Clues to Ectopic
Pregnancy, 28 Radiographics 1661, 1665, 1669 (2008).

{17} Stripped of technical medical language, Plaintiff’s MRC application is very
detailed and specific in describing what happened. On June 17, 2011, Plaintiff, who was
pregnant, went to Lovelace Medical Center with sharp pain in her lower abdomen and
left pelvic area, together with vaginal spotting. Hormone studies confirmed Plaintiff’s
pregnancy, but after reading an ultrasound, the Lovelace doctors erroneously concluded
that the sac seen in Plaintiff’s uterine cavity was a “false pregnancy” and that Plaintiff
had an ectopic pregnancy on the right ovary. Based on these erroneous findings, the
doctors sent the Plaintiff to Lovelace Women’s Hospital in an ambulance for treatment.
At Lovelace Women’s Hospital, Dr. Chongsiriwatana performed a diagnostic
laparoscopy for the presumed ectopic pregnancy on the right ovary. Finding no ectopic
pregnancy on the right ovary, Dr. Chongsiriwatana diagnosed the presence of a right
ovarian cyst and treated Plaintiff with methotrexate without obtaining Plaintiff’s informed
consent. The methotrexate was administered notwithstanding its association with a high
risk of birth defects, without first obtaining ultrasounds or other tests to determine
whether Plaintiff was in fact pregnant. Plaintiff returned to Lovelace Women’s Hospital
six days later because she was still experiencing pain. Belatedly, Dr. Chongsiriwatana
ordered hormone tests and an ultrasound, and the ultrasound showed that Plaintiff had
a normal pregnancy. Because Plaintiff was treated with methotrexate, Plaintiff’s
pregnancy was aborted.

{18} The scenario clearly described in Plaintiff’s MRC application represents what
Plaintiff contends is medical malpractice on the part of Lovelace and its doctors.
“‘Pseudogestational sac’ refers to fluid (blood or secretions) in the uterine cavity that is
occasionally seen in a woman with ectopic pregnancy.” Peter M. Doubilet & Carol B.
Benson, First, Do No Harm . . . to Early Pregnancies, 29 J. Ultrasound Med. 685, 687
(2010). “Administering an embryotoxic agent to, or evacuating the uterus of, a woman
with an IUP [a normal intrauterine pregnancy]⸻which could occur if a gestational sac
is erroneously called a pseudogestational sac⸻is a serious error, whereas delaying
treatment in a woman with ectopic pregnancy⸻which could occur if a
pseudogestational sac is erroneously called a gestational sac⸻will often have little
effect on outcome if the patient is medically stable.” Id. at 685, 688 (emphasis added).

{19} Consistent with Section 41-5-15(B)(1), Plaintiff’s application to the MRC clearly
“nam[es]” Lovelace, and the application recites “a brief statement of the facts”
describing “the dates and the circumstances, so far as they are known, of the alleged
act or acts of malpractice[.]” While the MRC application does not describe specific acts
of malpractice directly committed by Lovelace, the application does describe clearly and
specifically the acts and omissions of named employees and physicians working in
Lovelace hospitals. This is sufficient as a matter of law.

{20} In Zamora v. St. Vincent Hospital, 2014-NMSC-035, ¶ 1, 335 P.3d 1243, a
medical negligence case, the plaintiff alleged that as a result of a communication failure
between a surgeon and a contract radiologist, St. Vincent Hospital failed to tell the
plaintiff about his cancer diagnosis. The contract radiologist was not named as a
defendant, and the plaintiff did not specifically plead vicarious liability. Id. ¶¶ 1, 4. The
district court granted St. Vincent summary judgment on the basis that the complaint did
not provide notice that the contract radiologist was negligent and that St. Vincent was
vicariously liable for his negligence. Id. ¶ 6. Although we agreed that the complaint was
“rudimentary,” we reversed because the complaint highlighted the relevant key facts
and actors, emphasizing the negligent breakdown in communication for which St.
Vincent was ultimately responsible. Id. ¶ 14. “Because St. Vincent was adequately
apprised of the nature of [the plaintiff’s] claim against it that someone in St. Vincent’s
sphere of responsibility failed to communicate vital medical information from a radiology
report, it was immaterial that the complaint failed to specify which particular agents were
negligent or which theory of agency resulted in liability on the part of St. Vincent.” Id. ¶
15. While the complaint failed to name a theory of vicarious liability, “the reality is that
New Mexico’s pleading standards require no more detail than [the plaintiff] provided.” Id.
¶ 14.

{21} Similar circumstances arose in Baer v. Regents of Univ. of Cal., 1994-NMCA-
124, ¶¶ 1, 2, 118 N.M. 685, 884 P.2d 841, where the plaintiff’s employer, the operator of
Los Alamos National Laboratory (LANL), required its employees to undergo physical
examinations in order to remain employed. Plaintiff’s estate brought a medical
malpractice action against LANL, the physician employed by LANL, “‘and other medical
personnel at LANL’” alleging negligence “in failing to diagnose a nodule in the lungs of
[the plaintiff] as being cancerous.” Id. ¶ 5. Of the LANL medical personnel who
examined the plaintiff, the last to do so was the physician’s assistant. Id. ¶¶ 1, 4. The
physician’s assistant did not take x-rays, notwithstanding that prior x-rays showed lesion
in the plaintiff’s right lung. Id. ¶¶ 3, 5. After the claim against the LANL physician was
dismissed because the limitations period had expired, the only claim that remained was
against the physician’s assistant as an employee of LANL. Id. ¶¶ 9, 10. Ultimately, the
question was whether LANL could be held liable under the doctrine of respondeat
superior when the complaint did not name the physician’s assistant as a defendant. Id.
¶ 18. Our Court of Appeals concluded that LANL could be held liable because the
complaint clearly stated that “‘medical personnel at LANL’” committed the alleged
negligence. This was sufficient, the Court concluded, because it gave adequate notice
that one of the plaintiff’s theories of the case against LANL was vicarious liability, “and
we know of no authority for the proposition that, in order to prove agency, the agent
must be joined as a party to the action.” Id. ¶ 20.

{22} Lovelace contends that an MRC application “serves the function a complaint
ordinarily would serve with respect to satisfying the statute of limitations.” In this regard,
Lovelace continues, “an application to the MRC must do what a complaint ordinarily
would do: provide the defendant with timely notice of a claim within the limitations
period, so that the defendant is not unfairly prejudiced by the passage of time in
mounting its defense.” Assuming without deciding that a nonqualified provider is entitled
to such notice in an MRC application, we hold that the application submitted by Plaintiff
in this case provided that notice in accordance with Zamora and Baer. The MRC
application is detailed and specific in describing what doctors and employees did and
did not do in treating Plaintiff at the identified Lovelace hospitals. These facts alone
raise the issue of the vicarious liability of Lovelace. See UJI 13-1120A NMRA (setting
forth the elements of vicarious liability of a hospital for the negligence of hospital
employees); UJI 13-1120B NMRA (setting forth the elements of vicarious liability of a
hospital for the negligence of health care providers who, while not hospital employees,
are the hospital’s apparent or ostensible agents). Because a corporation such as
Lovelace acts through its officers, agents, and employees, we disagree with the Court of
Appeals that Plaintiff’s MRC application fails to provide sufficient notice of her claims
against Lovelace. In addition, the facts may support claims of negligence against
Lovelace for its own conduct. See Trujillo v. Puro, 1984-NMCA-050, ¶ 8, 101 N.M. 408,
683 P.2d 963 (holding that it is “not necessary that each of plaintiff’s counts, nor each of
his allegations, be presented to the [MRC]”); see also UJI 13-1119A NMRA (setting
forth the duty of a hospital in providing patient care).

III. CONCLUSION

{23} We reverse the Court of Appeals, and we remand the case to the district court for
further proceedings consistent with this opinion.

{24} IT IS SO ORDERED.

MICHAEL E. VIGIL, Justice

WE CONCUR:

BARBARA J. VIGIL, Justice

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice

NAKAMURA, Chief Justice (dissenting)

{25} To benefit from the tolling provisions of the MMA one must comply with the
legislature’s unambiguous requirement that an application be filed “naming” those
involved in the alleged malpractice. Section 41-5-15(B)(1). In recognition of this
requirement, Romero submitted an application with the heading “individuals involved”
followed by a subheading “names . . . of all providers whose care may be germane to
the issues.” Lovelace is not identified, compelling the district court and a unanimous
Court of Appeals’ panel to correctly conclude that Lovelace was not named. Because
the district court’s decision to dismiss Lovelace should be affirmed, I respectfully
dissent.

{26} The Majority contends that there is a way to read Romero’s application as
“naming” Lovelace. Our Legislature could not have intended the MRC or this Court to
have to engage in creative reading exercises to identify who, precisely, victims of
malpractice intend to sue when they submit applications to the MRC.

{27} “When facts relevant to a statute of limitations issue are not in dispute, the
standard of review is whether the district court correctly applied the law to the
undisputed facts.” Haas Enters., Inc. v. Davis, 2003-NMCA-143, ¶ 9, 134 N.M. 675, 82
P.3d 42 (citing Inv. Co. of the Sw. v. Reese, 1994-NMSC-051, ¶ 11, 117 N.M. 655 875
P.2d 1086). The facts here, as noted above, are not disputed: Romero failed to name
Lovelace in her application as required by Section 41-5-15(B)(1). 1 Having failed to do
so, Romero cannot avail herself of the tolling provision in Section 41-5-22 with respect
to Lovelace.

{28} There can be no doubt that the Legislature imposed the naming requirement in
part to ensure that defendants have notice claimants intend to pursue malpractice
actions against them. But other provisions in the MMA make clear that the naming
provision has added significance when a claimant intends to pursue vicarious liability
claims.

{29} Where the MRC receives an application asserting vicarious liability, it is required
to notify certain, specific entities of the existence of the claim. Section 41-5-16(C). The
full text of this provision reads as follows:

In instances where applications are received employing the theory
of respondeat superior or some other derivative theory of recovery, the
director shall forward such applications to the state professional societies,
associations or licensing boards of both the individual health care provider
whose alleged malpractice caused the application to be filed, and the
health care provider named a respondent as employer, master or
principal.

Id. The MRC is also required to modify the complexion of the review panel when an
application includes vicarious liability claims. Section 41-5-17(E). The full text of this
requirement is as follows:

In those cases where the theory of respondeat superior or some
other derivative theory of recovery is employed, two of the panel members
shall be chosen from the individual health care provider’s profession and
one panel member shall be chosen from the profession of the health care
provider named a respondent employer, master or principal.

1Neither this requirement, nor why the benefits of the MMA extend to Defendant’s suing nonqualified providers,
is challenged by the parties.
Id.

{30} Statutes must be construed “so that no word and no part thereof is rendered
surplusage or superfluous.” Stang v. Hertz Corp., 1970-NMSC-048, ¶ 13, 81 N.M. 348,
467 P.2d 14. The provisions above must inform this Court’s understanding of what it
means to “name” the source of an act of alleged malpractice.

{31} The reading of the naming provision that most sensibly accounts for the above
provisions is the plain-meaning one: when a plaintiff intends to assert a claim of
vicarious liability, he or she must alert the MRC to this fact in clear and express terms.
The Court of Appeals’ interpretation of Section 41-5-15(B)(1) comports with this plain-
meaning construction.

{32} Romero’s repeated insistence that requiring her to do what the plain meaning of
Section 41-5-15(B)(1) requires imposes upon her “a heightened application standard” is
not to be given any credit. Requiring a plaintiff to state in an application to the MRC that
they intend to sue a particular health care provider on vicarious liability grounds
imposes no “heightened” burden of any kind. She demonstrated quite ably her ability to
assert a vicarious liability claim against Lovelace when, only five months after she
submitted her application to the MRC, she filed her complaint doing so. The words
“respondeat superior” appears in the title of her complaint. Lovelace is a named party.
Count III is identified as a “Respondeat Superior” claim against Lovelace.

{33} No equivalently clear statement appears in Romero’s application to the MRC.
Why this is we do not know. We do know, however, that the MRC itself did not
understand that Romero meant to name Lovelace and assert vicarious liability claims
against it. This is evident given that the MRC’s letter to Lovelace indicated that
Romero’s claims “do[] not involve you[.]”

{34} Likewise, the district court and all three Court of Appeals judges involved in the
opinion below did not think Romero’s application named Lovelace or made clear her
intentions to assert a vicarious liability claim against Lovelace. In fact, the Court of
Appeals unanimously concluded that “there is nothing that clearly states [Romero]
believed Lovelace was negligent or that Dr. Chongsiriwatana was an employee or agent
of Lovelace.” Romero, A-1-CA-35177, mem. op. ¶ 23. And even the Majority opinion
acknowledges that Romero’s “MRC application does not describe specific acts of
malpractice directly committed by Lovelace[.]” Maj. Op. ¶ 19.

{35} The Majority’s answer to the fact that Romero’s complaint does not expressly
name Lovelace or assert a vicarious liability claim against it is that our rules of civil
procedure and notice-pleading standards did not require Romero to do this. They
reason that Romero’s general averments about Lovelace’s involvement in her care were
sufficient to satisfy the naming provision and alert both the MRC and Lovelace to the
vicarious liability claims she intended to pursue. I cannot agree. The principles upon
which this conclusion rests are inapplicable.
{36} This Court is constitutionally empowered to promulgate rules of practice and
procedure. Ammerman v. Hubbard Broad., Inc., 1976-NMSC-031, ¶ 10, 89 N.M. 307,
551 P.2d 1354; State ex rel. Anaya v. McBride, 1975-NMSC-032, ¶ 10, 88 N.M. 244,
539 P.2d 1006. Yet, when the Legislature confers a benefit upon litigants, it can specify
the circumstances that must be met to invoke that benefit. See AFSCME v. Bd. of Cty.
Comm’rs of Bernalillo Cty., 2016-NMSC-017, ¶ 14, 373 P.3d 989. Statutes of limitations
are creatures of legislative making and a permissible and constitutional exercise of
legislative power. See Cummings, 1996-NMSC-035, ¶ 37. Accordingly, the
Legislature’s prerogatives—to the extent we can discern them—must factor into how we
are to think about what constitutes compliance with Section 41-5-15(B)(1), not the
principles and policies underlying notice pleading.

{37} Rule 1-008 NMRA and Section 41-5-15(B)(1) have little in common. Rule 1-008
includes no special procedures that must be followed when a claimant asserts vicarious
liability. As already noted, unless the plaintiff names the parties he or she intends to
assert vicarious liability claims against in the application to the MRC, the MRC will have
no reason to do what the Legislature expected of them. The two provisions are self-
evidently different and those differences must be regarded and given meaning. These
thoughts make obvious why Zamora and Baer are not dispositive here.

{38} Zamora focused on Rule 1-008, the policy concerns and principles underlying
notice pleading, and the inferences that can be permissibly drawn about pleading and
practice in New Mexico given our early adoption of the “simplified notice pleading
standard.” Zamora, 2014-NMSC-035, ¶¶ 10-20. The statement in Zamora that civil
complaints need not “recite reliance on theories of vicarious liability” does not resolve
the issue here. Id. ¶ 14.

{39} Baer offered generalized pronouncements about pleading standards and
vicarious liability claims, pronouncements quite similar to those found in Zamora. Baer,
1994-NMCA-124, ¶ 20. Like Zamora, Baer does nothing to illuminate what our
Legislature’s intentions were when it enacted Section 41-5-15(B)(1).

{40} Expecting Romero to comply with the plain language of Section 41-5-15(B)(1) in
no way ensnares her in some procedural “booby trap.” Nor is it permissible to describe
the expectation that she comply with the plain language of the provision as holding her
to some unfair “technicality” or “putting form over substance.” The Legislature decided
that to receive the tolling provided by Section 41-5-22, Romero had to comply with
Section 41-5-15(B)(1). To comply with Section 41-5-15(B)(1), Romero had to “name”
Lovelace as having committed an act of malpractice. She did not. To the extent this
error foreclosed an avenue of relief or a remedy, Romero has other remedies to right
that wrong. She has no remedy in words she did not follow.

{41} For these reasons, I respectfully dissent.

JUDITH K. NAKAMURA, Chief Justice