A-1-CA-35807 | Omnilex

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico

4) NO. A-1-CA-35807

a
3| Filing Date: November 28, 2018 Abn > L

NICHOLAS T. LEGER as PERSONAL

REPRESENTATIVE for the ESTATE OF

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MICHAEL THOEMKE and DANIEL
THOEMKE, individually,

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10] v.

11] NICHOLAS T. LEGER as assignee

12| OF PRESBYTERIAN HEALTHCARE
______13] SERVICES, and JOHN OR JANE DOES eS
14] 1-5,

15 Defendants/Third-Party Plaintiffs-Appellees,

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16] v.

17] RICHARD GERETY, M.D., and

13s] NEW MEXICO HEART INSTILDULE,

19 Third-Party Defendants-Appellants.

20| APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY

21] Gerald E. Baca, District Judge

22| The Vargas Law Firm, LLC

23| Ray M. Vargas, II

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44) CMUUQUCLUUL, INV

Carter & Valle Law Firm
Richard J. Valle

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Criostoir C’Cleireachain
Albuquerque, NM

tor Appellees

Lorenz Law

Alice T. Lorenz
Albuquerque, NM

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Atwood, Malone, Turner & Sabin, P.A.
Lee M. Rogers
Carla Neusch Williams

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Roswell, NM

tor Appellants

OPINION

VANZT, Chief Judge.

i} This interlocutory appeal presents a question of first impression concerning

assignment of claims for compensation covered by the Medical Malpractice Act (the

MMA or the Act}, NMSA 1978, §§ 41-5-1 to -29 (1976, as amended through 2015).

In the litigation below, plaintiffs sued a hospital on claims subject to the MMA

based, in part, on allegations of malpractice by a physician not employed by the

hospital for which plaintiffs claimed the hospital was vicariously liable. After the

hospital filed a third-party complaint for equitable indemnification against the

physician and his employer, in compliance with the MMA’s requirements

concerning pre-filing review and decision by the Medical Review Commission,

plaintiffs successfully moved for orders staying that action and preventing the third-

party defendants from participating in discovery in plaintiffs’ case against the

hospital, arguing (among other things) that plaintifis had chosen not to sue the third-

party defendants and had no interest in the hospital’s indemnification claim.

Nevertheless, one plaintiff acquired the hospital’s indemnification claim by

assignment in settling plaintiffs’ case against the hospital and then moved to lift the

stay and take over as third-party plaintiff on that claim.

191; The question presented is whether the hospital’s assignment of its
20hindemnitication claim to one of the plaintiffs is barred by the MMA’s prohibition

against assignment of “[a] patient’s claim for compensation under the [MMA,]”

Section 41-5-12, or the common law. Applying New Mexico precedents concerning

statutory construction—~-in particular, precedents construing the MMA-——we

conclude that the Legislature intended the MMA’s requirements and restrictions to

apply to all “malpractice claims” covered by the MMA and hold that Section 41-5-

{2 bars assignment of all “malpractice claims” for compensation covered by the

MMA. One of these precedents, Wilschinsky v. Medina, 1989-NMSC-047, 7 26, 108

NUM. 511, 775 P.2d 713, held that “the [Llegislature intended to cover all causes of

action arising in New Mexico that are based on acts of malpractice.” Further,

Christus St. Vincent Regional Medical Center v. Duarte-Afara, 2011-NMCA-112,

“411, 14-20, 267 P.3d 70, made clear that the character of an indemnification claim

under the common law as “separate and distinct from the underlying tort” does not

control determination of whether the MMA’s requirements and restrictions apply.

Our statutory construction analysis is dispositive of this appeal, regardless of now a

claim not covered by the MMA would be treated under the common law. Our

conclusion concerning the assignment issue obviates the need to resolve other issues

discussed by the parties.

BACKGROUND

3} This appeal arises from a complaint asserting claims for wrongful death,

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Representative for the Estate of Michael Thoemke, and Daniel Thoernke,

individually (collectively, Plaintiffs), against Presbyterian Healthcare Services

(PHS) after Michael Thoemke died at Presbyterian Hospital. Although the complaint

did not name Dr. Richard Gerety as a defendant, it included allegations concerning

Dr. Gerety’s conduct in consulting on Michael’s case while “acting within the course

y) and scope of his employment, or acting as the agent or ostensible agent of [PHS.]”

In answering the complaint, PHS admitted that Dr. Gerety consulted on Michael’s

case but denied allegations that Dr. Gerety was PHS’s cardiothoracic surgeon and

that Dr. Gerety acted within “the course and scope of his employment, or act[ed] as

the agent or ostensible agent of [PHS].”

4} After obtaining review and decision by the Medical Review Commission (as

i required for malpractice claims against a health care provider covered by the MMA,

see §§ 41-5-5, -14, -15(4)) and the district court’s leave to file, PHS filed a third-

party complaint against Dr. Gerety and his employer, New Mexico Heart Institute

(NMHI) (collectively, Appellants), stating, “[I]n the event that Dr. Gerety is found

|| negligent in [this] suit, and in the event that PHS is found to be vicariously liable for

7) the conduct of Dr. Gerety, then PHS is entitled to indemnification from [Appellants]

for all fees, expenses, judgments, settlements and any and all other damages

reasonably related to the alleged conduct of Dr. Gerety.” In answering the third-party

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complaint, Appellants denied that Dr. Gerety was negligent and that PHS “ts

vicariously Liable for the alleged acts and omissions of Dr. Gerety” and alleged

affirmative defenses.

4s} Plaintiffs moved to sever or bifurcate and stay the third-party complaint,

arguing (arnong other things) that PHS’s suit “is contingent upon a jury first finding

that PHS is hable for the death of Michael Thoemke, and that PHS’s lability is

based, in whole or in part, upon the acts or omissions of [Appellants]”; “Plaintiffs

have no interest in the outcome of PHS’[s] common law indemnification claims”;

“Plaintiffs should not be dragged into a dispute that does not involve them, and that

is not yet perfected or ripe”; “[njothing in the law requires Plaintiffs to sue those

third parties and Plaintiffs here have chosen not to”; “Plaintiffs have no standing or
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interest in any post-judgment indermnification claims brought by PHS against third

parties”; and the indemnification claim would not accrue unless Plaintiffs obtained

a judgement against PHS. Plaintiffs also moved for a protective order from discovery

propounded by Appellants, arguing again that Plaintiffs did not sue Appellants and

“have no interest or stake” in the third-party action, and that PHS’s indemnification

claim had not accrued. The district court granted both motions, and denied PHS’s

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later motion to reconsider the order granting severance and stay.

46} Plaintiffs ultimately settled their claims against PHS, and the district court

dismissed those claims with prejudice. As part of that settlement, PHS assigned to

—

| Nicolas T. Leger, as Personal Representative of the Wrongful Death Estate of

Michael Thoemke:

Any and all rights, claims, and causes of action of [PHS] against

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[Appellants] arising out of claims for indemnification, contribution, or

tees, defense costs relating to claims of medical negligence against

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[Appellants], and payment of any amounts, including payments made
in settlement to... Plaintiffs in the matter known as Leger, et al. v.
Presbyterian Healthcare Services, ... including the claims brought by

[PHS] against [Appellants] in the May 21, 2013 [t]hird-[plarty
{clomplaint for indemnification filed therein.

(7 Following the settlement, Leger moved to lift the stay of PHS’s third-party

complaint and for leave to file an amended third-party complaint, stating, “Now that

the underlying case is fully resolved, and the [t]hird [plarty claims assigned to Leger,

the time has come for the stay of the [t]hird [party [a]ction to be lifted and that

action to proceed to trial.”

is} Inseparate responses, Appellants did not oppose the request to lift the stay but

opposed the motion to amend (with NMHI adopting Dr. Gerety’s arguments while

asserting additional arguments). As relevant here, Dr. Gerety argued that the

indemnification claim is “a claim for compensation under the

IMMA]? and a

“medical malpractice claim” that is “covered by all of the regulatory aspects of the

[MMA],” and that Section 41-5-12 (prohibiting assignment of “[a] patient’s claim

for compensation under the [MMA]”’) should not be interpreted “to prohibit

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governed by the MMA, consistent with legislative intent as interpreted by New

Mexico case law. He also argued that the common-law prohibition against

assignment of personal injury claims prohibits assignment; Leger cannot recover

more than the maximum permitted by Section 41-5-6, and allowing Leger to recover

on the indemnification claim would increase costs to the healthcare system; Leger’s

recovery on the indemnification claim is barred by public policy against double

recovery; and having chosen not to present a claim to the Medical Review

Commission (presentation requirement), not to sue Dr. Gerety, and to obtain an order

severing and staying the third-party action, Leger should not be allowed to prosecute

the claim after the expiration of the MMA’s statute of repose (Section 4]-5-13}.

(93 Leger’s reply to Dr. Gerety’s response argued (among other things) that

assignment is not barred because the assignment transferred “an interest in property

and is common in commercial enterprises”; the indemnification claim, “while

subject to provisions of the [MMA], is separate and distinct from the original claims

of personal injury/bodily injury”; and the indemnification claim is not a “patient’s”

claim for compensation falling within the MMA's anti-assignment provision

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because PHS does not meet the MMA’s definition of “patient” as “a natural person”

under Section 41-5-3(E). Leger also argued that there would be no double recovery

because the assignment gave Leger “the property rights to any recovery PHS is
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the MMA?’s presentation requirement nor the MMA/’s statute of repose barred

Leger’s prosecution of the indemnification claim because PHS had satisfied both

requirements and the proposed amendments to the third-party complaint were non-

substantive changes that relate back to the original PHS filing.

aa} After the district court granted his motion, Leger, “as [alssignee of [PHS],”

filed an amended third-party complaint, asserting that PHS is entitled to

indemnification if Dr. Gerety is found negligent and PHS is found vicariously liable

for Dr. Gerety’s conduct, and that “PHS has paid out sums due to its vicarious

liability for Dr. Gerety’s actions and omissions and is therefore entitled to

indemnification.”

ii} Appellants moved to dismiss Leger’s amended third-party complaint, arguing

MMA’s anti-assignment provision and common-law prohibition against assignment

of personal injury claims and, even assuring a lawful assignment, the claim was

barred by Leger’s failure to comply with the MMA’s presentation requirement and

statute of repase. In opposing the motion, Leger reiterated his prior arguments that

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the assignment is not barred by the common law because the assignment did not

transter a personal injury claim but “an interest in an equitable/monetary claim and

is common in commercial enterprises” or prohibited by the MMA, and that the

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MIVCA’s presentation requirement and statute of repose had been satisfied by PIs.

42} Appellants also moved for summary judgment on the ground that Leger could

not meet the requirements necessary to prevail on an indemnification claim, in part,

because the settlement agreement with PHS did not discharge the lability of

Appellants and so did not “buy peace” for them. In opposing that motion, Leger

repeatedly stated that PHS intended “to discharge all tortfeasor liability to original

Plaintiffs,” including “for the actions of [Appellants,]” and that the “[rielease

discharges liability for the underl[yling tort concerning all agents (past, present,

actual, ostensible and borrowed).” Leger stated further:

9 Because PHS paid amounts to cover 100% of the underlying lability
10 claim, original Plaintiffs could no longer maintain suit against
ia [Appellants] in the underlying case. To do so would violate the
12 principle against double recovery. See Sunnvland Farms, Inc. v.
13 Central New Mexico Elec. Co-op, Inc.[,| 2013-NMSC-O17, [§ 47,] 301
14 P.3d 387 ("in general, plaintiffs may not collect more than the
[S damages awarded to them, or, put another way, they may not receive
16 compensation twice for the sare injury].7]}. As such, when PHS
17 settled the case for the entire value of the case, by operation of law,
18 original Plaintiffs were precluded from bringing suit against other
19 Defendants in the underlying tort claim ... [and] once the original,
2 underlying Plaintiffs could no longer maintain suit against
24 [Appellants], [Leger and PHS were] entitled to seek indemnification.
22 ... [Bly operation of law, there is no more recovery available from
23 [Appellants] to the original, underlying Plaintiff[s]. As a result of the
24 extinguishment of [Appellants’] liability to the original, underlying
25 Plamtitfs["] claims, [Leger and PHS are] now able to go forward with
26 the indernnification claims.
27| Leger also stated that “[ Appellants’ } lability to the original, underlying Plamtiffs in

the underlying case was discharged by operation of law” because Plaintiffs had not

—

brought “direct claims against [Appellants]” within the statute of repose. The reply

2] arguments of Appellants included the following:
3 [t]he [clourt should not validate the assignment or allow Leger to
4 circumvent the [MMA] by choosing not to sue Dr. Gerety, convincing
5 the [clourt and Dr. Gerety that he had no interest in the indemnity action
6 and excluding Dr. Gerety from participating in the underlying case,
7 then extracting from PHS an[] assignment of its indemnity claim, allin
8 order to collect 100% of his damages from PHS and then recover the
9 same damages from Dr. Gerety.... To allow patients to obtain 100%
10 of their damages from one healthcare provider, and then demand an
im assignment of that provider's indemnity claim against another provider,
12 in order to allow the patient to obtain more than 100% of his damages,
13 would frustrate the purpose of the Act and simply add to the overall
14 cost of delivering health care as plaintiffs ‘double dip’ their claims.
15] 3; The district court denied Appellants’ motions in a letter decision. In denying

the motion for summary judgment just discussed, the court stated that “[P]laintiffs,

[Pilaintitfs had against PHS, [Appellants] and, thereby “bought peace’ for

[Appellants] as to all of the underlying claims brought by [P]laintiffs against PHS,

Dr. Gerety and NMHI[.]” The court also stated that Leger’s prosecution of the

indemnification claim “will not violate the prohibition against double recovery as

[Plaintiffs have fully recovered what they could for their claims” and the damages

they seek to recover from Appellants through the assignment are “not for the

underlying claims brought by original [P}laintiffs, but for indemnification as a result

si of the damages PHS paid to [Pllaintiffs for the negligence of [Appellants], which

claim{s are] separate and distinct from the claims made by [P]laintiff[s} in the

underlying cause of action[.]”

14} In denying the motion to dismiss discussed above, the court stated that “the

indemnity claims in this matter are assignable because they are not personal injury

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claims,” but claims “separate and distinct from the underlying tort” and that the

MMA?’s presentation requirement and statute of repose were satisfied by PHS. In a

separate order, the district court certified for interlocutory review the “issues of

whether... the common law and/or [Section] 41-5-12 ... prohibits the assignment
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of an indemnity claim against a qualified healthcare provider.” Appellants filed an

application for interlocutory review, which this Court granted.

DISCUSSION

A. Principles of Statutory Construction

i Statutory construction is a question of law that we review de novo. Baker v.

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Hedstrom, 2013-NMSC-043, © 10, 309 P.3d 1047. “When construing statutes, our

guiding principle is to determine and give effect to legislative intent.” /d 4 11

(internal quotation marks and citation omitted); see State ex rel. Helman v. Gallegos,

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(25, LIT NM. 346, 871 P2d 1352 (| We believe it to be the

high duty and responsibility of the judicial branch of government to facilitate and

promote the [Llegislature’s accomplishment of its purpose—especially when such

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action Hivolrves correcting an apparent iegisiative mistake. }) See also in re Porias,

2002-NMSC-01 1, 9 5, 132 N.M. 171, 45 P.3d 891 (Statutes are to be read in a way

that facilitates their operation and the achievement of their goals.” (internal quotation

marks and citation omitted)); D'Avignon v. Graham, 1991-NMCA-125, 9 11, 113

N.M. 129, 823 P.2d 929 (explaining that “the cardinal rule of statutory construction

is to determine legislative intent” and that New Mexico courts “have rejected

formalistic and mechanistic interpretation of statutory language”).

16} In performing this duty, we must consider the provisions at issue “in the

context of the statute as a whole, including the purposes and consequences of the

Act.” Baker, 2013-NMSC-043, 4 15; see Srate v. Rivera, 2004-NMSC-001, 7 13,

134 N.M. 768, 82 P.3d 939 (stating that courts must analyze a “statute’s function

within a comprehensive legislative scheme” and may not consider subsections “in a

vacuum” (internal quotation marks and citation omitted)); Key v. Chrysler Motors

Corp., 1996-NMSC-038, © 14, 121 N.M. 764, 918 P.2d 350 (“TA]Ll parts ofa statute

must be read together to ascertain legislative mtent. We are to read the statute im its

entirety and construe each part in connection with every other part to produce a

harmonious whole.” (citation omitted)).

an “Rules of statutory construction dictate that when a statute’s language is clear

and unambiguous and it conveys a clear and definite meaning, the statute must be

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given its plain and ordinary meaning.” Key, 1996-NMSC-038, © 13. Our Supreme

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plain meaning rule” because “[i]ts beguiling simplicity may mask a host of reasons

why 4 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.” Helman, 1994-NMSC-023, 4 23; see Baker, 2013~-NMSC-

043, 4 15 (citing Helman for these “wise words of caution in applying the plain

meaning rule”).

(18) Helman discussed at length the “plain meaning” and “rejection-of-literal-

language” approaches to statutory construction, explaining that “the two approaches,

correctly understood, can be viewed as complementary, not contradictory.” 1994-

NMS(C-023, 4 1-3, 18-26. The Court affirmed that “if the meaning of a statute is

truly clear-—not vague, uncertain, ambiguous, or otherwise doubtful——it is of course

the responsibility of the judiciary to apply the statute as written.” Jd. 4 22. “But where

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the language of the legislative act is doubtful or an adherence to the literal use of

words would lead to injustice, absurdity or contradiction, the statute will be

construed according to its obvious spirit or reason, even though this requires the

rejection of words or the substitution of others.” Jd 4 3 (internal quotation marks

and citations omitted). The Court explained:

In such a case, it can rarely be said that the legislation is indeed free

from all ambiguity and is crystal clear in its meaning. While... one
part of the statute may appear absolutely clear and certain to the point
of mathematical precision, lurking in another part of the enactment, or

even in the same section, or in the history and background of the
legislation, or in an apparent conflict between the statutory wording and

1 the overall legislative intent, there may be one or more provisions

2 giving rise to genuine uncertainty as to what the [legislature was

3 trying to accomplish. In such a case, it is part of the essence of judicial

4 responsibility to search for and effectuate the legislative intent—the

5 purpose or object-—underlying the statute.

6) fd. | 23.

7 293 The Court cautioned further, quoting from Judge Learned Hand “words which
8 we believe provide the proper orientation that a court should bring to resolution of a

dispute which tums on the purportedly plain meaning of a statute[:]”

10 There is no surer way to misread any document than to read it literally;

il in every interpretation we must pass between Scylla and Charybdis. ...

12 As nearly aS we can, We must put ourselves in the place of those who

13 uttered the words, and try to divine how they would have dealt with the

14 unforeseen situation; and, although their words are by far the most

[5 decisive evidence of what they would have done, they are by no means

16 final.

17} fd. { 26 (internal quotation marks and citation omitted). Concluding that the statute
{8} at issue was ambiguous, despite “clarity and precision” in some aspects, Helmaz
[9] followed the “rejection-ol-literal-language” approach to resolve the statutory
20} construction issue presented. /d. 4" 3, 27-29; see also Ortiz v. Overland Express,

21) 2010-NMSC-021, 921, 148 N.M. 405, 237 P.3d 707 (acting pursuant to the judicial
22) “duty to effectuate legislative intent” to correct the Legislature’s “apparent

oversight” in having removed definitions; explaining that “[our Supreme] Court has

consistently recognized that it is appropriate for the [}Judiciary to look beyond the

plain meaning of the statute’s language to effectuate legislative intent when the

statute is ambiguous”).

B. The MMA

720} The MMA’s stated purpose 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. As has been widely recognized, the

MMA was enacted to address a perceived medical malpractice crisis in New Mexico

by “providing a framework for tort liability with which the insurance industry could

operate[,]” one that “restrict[s] and limit[s] plaintiffs’ rights under the common law”

through “several procedural measures and by establishing a limitation on full

recovery for malpractice injury[.)” Wilschinsky, 1989-NMSC-047, 4 21; see Cahn v.

Berryman, 2018-NMSC-002, 7 13, 408 P.3d 1012 (discussing concerns prompting

the MMA’s enactment); Baker, 2013-NMSC-043, 7 16 (same); see also Roberts v.

Sw. Cmty. Health Servs., 1992-NMSC-042, © 15, 114 NIM. 248, 837 Pod 442

15) CTT ]he Act established new procedural and substantive restrictions on malpractice
16) liability.” (internal quotation marks omitted)). As our Supreme Court explained in
(7) Baker:

18 To give effect to the purpose of the MMA, the Legislature created a

19 balanced scheme to encourage health care providers to opt into the Act

20 by conferring certain benefits to them, which it then balanced with the

24 benefits it provided to their patients. The Legislature made professional

22 liability insurance available to health care providers but conditioned

23 availability to that insurance on a quid pro quo: health care providers

could receive the benefits of the MMA only if they became qualified
health care providers under the MMA and accepted the burdens of

doing so.

2013-NMSC-043, 4 17 (alteration, internal quotation marks, and citation omitted).

guy To be “qualified” under the MMA, a “health care provider,” as defined by

Section 41-5-3(A), must comply with the requirements of Section 41-5-5, including

by establishing “financial responsibility” and paying a surcharge into the “patient’s

compensation fund” as described in Section 41-35-25, A health care provider who

does not comply with the qualification requirements of Section 41-5-5 “shall not

have the benefit of any of the provisions of the [MMAl].” Section 41-5-5(C).

a2} The MMA expressly limits the aggregate amount recoverable “by all persons

for or arising from any injury or death to a patient as a result of malpractice” to

$600,000 “per occurrence,” exclusive of punitive damages and medical care and

related benefits. Section 41-5-6(A), It also provides that “[alny amount due from a

judgment or settlernent in excess of” the $200,000 statutory limit on a healthcare

provider’s personal liability “shall be paid from the patient’s compensation fund,”

Section 41-5-6(D), and that “the fund shall only be expended for the purposes of and

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to the extent provided in the [MMA,}” Section 41-5-25(A).

C. The MMA Does Not Clearly and Unambiguously Limit the Scope of the

Prohibition Against Assignment of Claims for Compensation

m3} Section 41-5-12, provides that “{a] patient’s claim for compensation under the

[MMA] is not assignable.” The MMA does not define “patient’s claim for

compensation” or “patient’s claim.” It does define “malpractice claim” (with

we)

exceptions not relevant here) to

include[] any cause of action arising in this state against a health care

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provider for medical treatment, lack of medical treatment or other
claimed departure from accepted standards of health care which
proximately results in injury to the patient, whether the patient’s claim

a2 |

or cause of action sounds in tort or contract, and includes but is not
limited to actions based on battery or wrongful death{.]

Section 41-5-3(C). And it defines “patient” as “a natural person who received or

should have received health care from a licensed health care provider, under a

contract, express or implied[.]” Section 41-5-3(6}.

a4} Leger contends that “the Act clearly and unambiguously sought to limit its

prohibition against assignment of claims to claims of a ‘patient,’ as that term is

defined in the Act.” Leger’s textual argument is that the indemnification claim he

seeks to prosecute is PHS’s claim, and because PHS 1s “a corporation and hospital”

and not a “natural person,” PHS is not a “patient” and, therefore, the indemnification

claim is not a “patient’s claim.” Even if the definition of “patient” is clear and

unambiguous, that does not resolve the question of the Legislature’s intent

concerning application of Section 41-5-12’s prohibition against assignment,

especially given the absence of any definition of “[a] patient’s claim” or “claim for

compensation” separate from the definition of “malpractice claim,” and the use of

these terms in the context of the statute as a whole.

25} Appellants contend that “patient’s claim” and “malpractice claim” are used

interchangeably in Section 41-5-3(C) (.e., the provision defining “malpractice

claim” as “includ[ing} any cause of action... which proximately results in injury

to the patient, whether the patient’s claim or cause of action sounds in tort or

contract”), and that this reflects the Legislature’s intent in Section 41-5-12 to treat

“satient’s claim” as the equivalent of “malpractice claim.” Precedents discussed

below, interpreting the MMA as governing a claim brought by a non-patient and a

hospital’s indemnification claim against a physician, notwithstanding the absence of

statutory text specifically stating that such claims are subject to the MMA, arguably

weaken Appellants’ equivalence argument. Nevertheless, the phrase “whether the

patient’s claim or cause of action sounds in tort or contract” in Section 41-5-3(C)

does suggest equivalence, and language used throughout the MMA reflects a

statutory scheme addressing the liability of health care providers on claims arising

in the first instance from “injury to the patient” resulting from medical malpractice

(Section 41-5-3(C)), and contemplating litigation commenced by a “patient” or a

representative of the patient against a “health care provider.”!

' See § 41-5-4 (“A patient or his representative having a malpractice claim for
bodily injury or death may file a complaint in any court of law having requisite

jurisdiction and demand right of trial by jury... . This section shall not prevent a
patient or his representative from alleging a requisite jurisdictional amount in a
malpractice claim filed in a court requiring such an allegation.”); $ 41-5-13

(discussing a “claim for malpractice arising out of an act of malpractice”); § 41-5-
7(A) (“In all malpractice claims where liability is established, the jury shall be given

26} Although the text and context of the statute as a whole provides support for

the proposition that the Legislature intended equivalence in the terms “patient’s

claim” and “malpractice claim,” we conclude that the statute is ambiguous, and the

question of the Legislature’s intent concerning application of Section 41-5-12’s

prohibition against assignment cannot be answered based on the MMA’s “literal

language.” In cases construing the MMA, our Supreme Court has recognized that

a special interrogatory asking if the patient is in need of future medical care and
related benefits... . In actions upon malpractice claims tried to the court, where

Liat ess ge fara the pavete facie ee ll paehirle« reacitatan thar th. reat mp4
ARAUGRY PS GAP, Ce GU AES San ieee a Pecia ror mat ime patrent iS wal
is not in need of future medical care and related benefits.”}; § 41-5-7(B) (discussing
a patient’s future medical care and related benefits “once a judgment is entered in
a_rnatiantand ha:

four of a wa Hen tt CR od cettlament is vyanohad hatsy: APO gn ans (aN rt o
ACL VAR RPE et pPerur eo 0 MAL CR DRO RR ER ERR EER Be LL: acned CR YY RRR ek Perererit CARSRE EEN sea Care

provider”); § 41-5-10(A) (entitling health care providers to have
examination of the patient); § 41-5 -14(A) (creating medical review commission “to

3
3
ae a
<<
ws
fo)
pat)
~—

neat der yy extn ty re n gbyy ali aan a lara fara rors) elaine acainet hea "2 i+ Uy we nArONic ern erwyared
ge CW Sty PCR De A RR SV ant Le ere Hpran Mad Ae DNs ne et AAR LD Thea E woh heaith ck Ww per RPV DOB Ee OW he kt
by the [MMA]"); § 41-5-L1CA) (providing for apportionment of the amount “each

atient” where the

defendant i is 0 obligated to pay” on a “judgment in favor of the
«

rdvance “exceeds the lability ofthe defendant or the

nsprer makine
oF

kh EAPO ALL SS

‘No malpractice action may be filed in any court against a

qualifying health provider be fore application is made to the medical review

=
e

commission and it

Ado IA

Neck “sion is rendered”) § 41.5.2] (No rule shall be adopted
CeECISIC na he) 4 we snah be adopted...

which requires a party to make a monetary payment as a condition to bringing a
malpractice claim before the medical review panel.”); § 41-5-22 (discussing “[t}he

running of the applicable lumitation period ina malpractice claim”); § 41-5-23 (tn
any malpractice claim where the panel has determined that the acts complained of
were or reasonably might constitute malpractice and that the patient was or may have

been injured by the act, the panel, its members, the director and the professional
association concerned will cooperate fully with the patient in retaiming a physician
qualified in the field of medicine involved, who will consult with, assist in trial

preparation and testify on behalf ofthe patient, upon his payment ofa reasonable fee
to the same effect as ifthe physician had been engaged originally by the patient.”).

the Legislature has, at times, been “simply imprecise with its language” and refused

to “parse the Legislature's words in... a literal and mechanical manner” or to “rest

fits] conclusions upon the plain meaning of the language if the intention of the

Legislature suggests a meaning different from that suggested by the literal language

of the law.” Baker, 2013-NMSC-043, 9 30 (alteration, internal quotation marks, and

citation omitted). We turn now to the analysis employed in precedents interpreting

the MMA “in the context of the statute as a whole, including the purposes and

consequences of the Act.” fd. © 15.

D. The Analysis Employed in Precedents Construing the MMA Requires the

10
i]

Conclusion That Leger’s Indemnification Claim Is Subject to AILMMA
Restrictions, Including the Prohibition Against Assignment

an In Wilschinsky, our Supreme Court applied statutory-construction principles

to the MMA, including consideration of legislative intent and policy implications,

see 1989-NMSC-047, 4 21-26, where “the [L]legislature did not directly address

potential recovery by third parties,” id © 22; “[njo language in the [MMA]

specifically addresses the issue of third-party recovery for an act of malpractice[,|”

id. © 20; and “the activity at issue falls neither within the articulated ambit of the

Statutory definition, nor within the ambit of the exclusion{[,]” ia. 7 24. In reaching its

conclusion that “the [Llegislature intended to cover all causes of action arising in

New Mexico that are based on acts of malpractice[,]” our Supreme Court explained

i] that “[wihen we find, as we do here, a clash between the intent of the [Legislature
21 and its own definitional section, we seek to harmonize the two.” fa. © 26.

‘<9

28} Wilschinsky addressed the question whether the MMA applies to “claims

based on malpractice asserted by non-patients against a physician who is qualified

under the [MMA.?° Jd. @ 1. In analyzing the definition of “malpractice claim” in the

context of the MMA as a whole and the policy implications flowing from its

interpretation, our Supreme Court noted several factors impacting the analysis,

including the following: (a) “the nonmedical nature of the articulated exclusion in

paragraph C [of Section 41-5-3] is at least some evidence the [Legislature foresaw

and intended broad application of the concept of a ‘malpractice claim’ ”; (b) “af we

recognize a third-party cause of action for the [plaintiffs] and it is not covered by the

Act, a third party would be placed in a better position to achieve full recovery from

an act of malpractice than would the patient malpracticed upon”; and (c) “the clear

intent of the [LL jegisiature, as articulated in Section 41-)>-2, was to Make malpractice

insurance available to health care providers.” Wilschinsky, 1989-NMSC-047, 4 25,

Finding “compelling” the “underlying logic” of a Florida case reasoning that “the

—
~

gravamen of the third-party action is predicated upon the allegation of professional

negligence by a practicing physician|,|”? id. | 27 (internal quotation marks and

citation omitted), our Supreme Court held that the third-party cause of action at issue

—

“falls within the purpose of the [MMA] and should be pursued according to its

guidelines[,]” id. 4 28.

29} In Duarte-Afara this Court followed Wilschinsky’s instruction that “a claim

may be construed as a malpractice claim within the meaning of the MMA if ‘the

gravamen of the third-party action is predicated upon the allegation of professional

negligence by a practicing physician’” in determining that “the gravarnen of [the

miedical [c]enter’s equitable indemnification claim is predicated upon the allegation

that [djoctors negligently caused, and were partly liable for, [the patient’s] injuries”

and held that the medical center’s equitable indemnification claim against doctors

“is a malpractice claim as that term is used in the MMA” and is subject to the MMA’s

statute of repose. Duarte-dfara, 2011-NMCA-112, 9 15. “We reached] this

conclusion in part, so as to carry out the policy goals the Legislature intended by

enacting the MMA and [its statute of repose,]” reasoning that, “[ijn effect, the

[mjedical [clenter’s equitable indemnification claim exposes [doctors to the

identical liability to which they were subject under [the patient]’s claims[,}” which

“were properly dismissed as untimely.” fd § 16. Permitting the equitable

[aa

indemnification claim to proceed where the patient’s claim could not would “elevate

form over substance and frustrate the underlying concerns which motivated our

Legislature to enact the MMA and [its statute of repose provision].” Jd.

30} Duarte-Ajara recognized that an indemnification claim must allege that the

defendant caused “direct harm to a third party,” the liability for which harm was

discharged by the party seeking indemnification, and that “a cause of action for

indemnification is separate and distinct from the underlying tort.” Jd 4 14, 18.

Nevertheless, Duarte-dfara held that “the controlling inquiry in determining

whether a claim constitutes a ‘malpractice claim’ under the MMA is merely whether

the gravamen of the claim is predicated upon the allegation of professional

negligence.” fd. 7 18.

ai) In Baker, our Suprerne Court interpreted the MMA’s definition of “health care

provider,” which the plaintiffs contended did not include the business organizations

under which the defendant doctors operated, “in the context of the statute as a whole,

including the purposes and consequences of the Act.” 2013-NMSC-043, 4 14-15.

The Court concluded that “several provisions in the Act indicate that the Legislature

intended professional medical organizations ... to be covered by the Act,” rejecting

the plaintiffs’ argument that the business organizations at issue “are not entitled to

qualify as ‘health care providers’ under the MMA” because they “do not fit into any”

—_
~—]

included by the Legislature in any other part of the MMAJ[.]” Baker, 2013-NMSC-

043, 99 1, 14, 31.

323 Among other points made in the analysis, Baker stated that, “[ijn light of the

Act’s purpose, we can discern no reason why the Legislature would intend to cover

individual medical professionals under the Act while excluding the business

organizations that they operate under to provide health care” and that nothing in the

MMA indicated legislative intent “to impair or eliminate the ability of physicians to

practice under the umbrella of a professional entity.” fd 4 21 Gnternal quotation

marks and citation omitted). The Court also rejected the plaintiffs’ interpretation on

the ground that it “conflicts with both the Legislature’s stated purpose and its goal

to assure that providers of health care are adequately covered in New Mexicof[,]|”

stating that the Court would not “construe a statute to defeat its intended purpose.”

fd. (alteration, internal quotation marks, and citation omitted).

ate
ted
ne

33} In the years that have passed since these decisions issued, interpreting as

within the MMA claims that fall outside the MMA’s scope under a plain-language

construction, the Legislature has taken no action to correct them.

34} Appellants argue that the analysis employed in these and other decisions

construing the MMA support their position that Section 41-5-12 must be interpreted

as
~~

to prohibit assignment of all “malpractice claims” subject to the MMA, not just those

claims assigned by a “patient.” Leger attempts to distinguish these cases by

characterizing them as having “read language and limitations into the Act that are

93 6 1,

y . ns —enduyy tery ph —tgy 4} A mgf]2 66 Tom 4 Say ce tad Af hye ft SS elatyse
not expressty stated in tne Act} “supplementiing} the Act where the Legisiature

was silent{,]}” while characterizing an interpretation of the anti-assignment provision

that includes in its prohibition an indemnification claim based on medical

maloractice as an attempt “to remove express provisions in the Act.” He contends

that “the relief sought by Appellants here would require this Court to engage in

inappropriate judicial surgery to excise a key, defined term inserted by the

Legislature into [Slection 41-5-12.” We disagree with these characterizations. Even

assuming that Leger’s inclusion-versus-excision characterization were accurate, it

makes no difference to the analysis. As discussed, we must perform our “high duty

and responsibility ... to facilitate and promote the [Ljegislature’s accomplishment

of its purpose-—-especially when such action involves correcting an apparent

legislative mistake[,]” Helman, 1994-NMSC-023, 4 25, “even though this requires

the rejection of words or the substitution of others[,}” id § 3 Gnternal quotation

marks and citation omitted).

35} Leger also argues that the indemnification claim falls outside Section 41-5-

12’s prohibition on assignment because it is not, and is separate and distinct from, a

personal injury claim under the common law, and the Legislature enacted Section

41-5-12 to codify a general common-law rule prohibiting assignment of personal

injury claims. We do not agree.

oy fy

(36) Precedents interpreting the MMA establish that neither the MMA’s literal

language nor the character and treatment of a claim under the common law is

dispositive of whether a claim is subject to the MMA’s restrictions and limitations.

ifthe MMA’s literal language controlled, Wilschinsky would not have held that the

MMA’s restrictions and limitations apply to a non-patient’s claim for mjury

resulting from medical malpractice, given statutory text defining “malpractice

claim” as a cause of action arising from an “injury to the patient” and the absence of

language that “specifically addresses the issue of third-party recovery for an act of

malpractice.” Wilschinsky, 1989-NMSC-047, (Jf 20-28; see also Baker, 2013-

NMSC-043, 74] 12-21 (rejecting argument that MMA does not apply to professional

medical organizations not specifically identified in MMA’s definition of “health care

provider”), And if the common law’s treatment of indemnification claims as

“separate and distinct from the underlying tort” were dispositive of the question of

the MMA’s application to a claim, Duarte-Afara would not have held that the

MMA’s restrictions and limitations apply to a hospital’s indemnification claim

against doctors based on “the gravamen of the claim [ajs predicated upon the

allegation of professional negligence]!,}” notwithstanding the “separate and distinct”

nature of indemnification claims under the common law. 201) 1-NMCA-112,9 18.

a7 in light of these precedents, we cannot agree that use of the word “patient” in

Section 41-5-12 reflects the Legislature’s intent to “codify” a general common-law

rule prohibiting assignment of personal injury claims or that the common law’s

treatment of indemnification claims as “separate and distinct from the underlying

tort” requires the conclusion that the Legislature specifically intended to limit

application of the prohibition against assignment of claims covered by the MMA to

claims falling within the common-law rule prohibiting assignment of personal injury

claims. Given Duarte-Afara’s holding that the common law is not dispositive of the

. eh #48

‘Hs

see no basis for concluding that the common law is dispositive of whether and how

particular MMA restrictions and limitations apply. While we presume that the

Legislature was aware of existing law when it enacted the MMA, we also presume

that the Legislature enacted the MMA to change, not to codify, the existing law. See,

e.g., Incorporated Cty. of Los Alamos v. Johnson, 1989-NMSC-O45, 9 4, 108 N.M.

eo XM we

frend
—

LID rye OP, Oy SF tery the ph 44 ¥ 4 ‘ . ih ee & rt 4
OI5, FAD Pic Peod | We PrOsumie tilat LO PCR SiGlUre fs Wei UUNORMICU do LO

existing statutory and common law and does not intend to enact a nullity, and we

also presume that the |L\egislature intends to change existing law when it enacts a

net
&

teetea ta pon t 3 ot ot hs - 4
Fiew Stabe, (REUTERS TS GAOT Mae CA PEL,

@ 12,91 N.M. 279, 573 P.2d 213 (“We assume that the Legislature is well informed

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as to existing statutory and common law, and that it does not intend to enact useless

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abaeunees)

it intended to change the law as it previously existed.” (emphases added) (citations

omitted)).

38} Following the rule that “the controlling inquiry in determining whether a

claim constitutes a ‘malpractice claim’ under the MMA is merely whether the

sravamen of the claim is predicated upon the allegation of professional

negligencel[,|” Duarte-Afara, 2011-NMCA-112, 4 18, we conclude that, where an

indemnification claim constitutes a “malpractice claim” subject to the MMA, there

is no basis for treating the common law as dispositive in determining how the

MMA’s restrictions and limitations apply to the claim. Cf Cahn, 2018-NMSC-002,

4% 24-25 (explaining that the dissent’s contention that the Court should apply a

“background statute of limitations” to resolve an issue not clearly addressed in the

MMA “does not withstand scrutiny” because “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’ and that “applyine 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” (emphases added)).’

“ As noted, the MMA applies only to claims against qualified health care
providers. See § 41-5-5(C) (A health care provider not qualifying under this section

shall not have the benefit of any of the provisions of the [MMA] in the event ofa
malpractice claim against it.”); Roberts, 1992-NMSC-042, 49 C[O]nly health care
providers meeting the Act’s qualifications, Section 41-5-5(A), may claim the

benefits of the Act, Section 41-5-5(C).”). In malpractice cases in which the MMA
does not apply, courts may determine that indemnification claims should be treated

439; We also see no evidence of legislative intent to create subclasses of

“malpractice claims,” with some claims subject to some MMA restrictions and not

subject to other restrictions. As discussed, the MMA defines “patient,” but ut does

not define “patient’s claim” or “patient’s claim for compensation” as something

different from a “malpractice claim.” Nor is there any evidence of legislative intent

to treat claims subject to the MMA differently depending on the holder of the claim

at a given point in time. Leger’s interpretation of Section 41-5-12 as prohibiting

assignment only by a “patient” requires the conclusion that the non-patient in

Wilschinsky could assign a claim a “patient” could not assign. The result would be

it}

an “unreasonable classification” contrary to the Legislature’s intention “to cover all

causes of action arising in New Mexico that are based on acts of malpractice.”

Wilschinsky, 1989-NMSC-047, € 26; see id. § 25 CUNT we recognize a third-party

cause of action for the [plaintiffs] and it is not covered by the Act, a third party would

be placed in a better position to achieve full recovery from an act of malpractice than

would the patient malpracticed upon.”); see also Duarte-Afara, 2011-NMCA-1 12,

4 16 (permitting equitable indemnification “claim to proceed where [the patient’s]

claim could not, would... elevate form over substance and frustrate the underlying

concerns which motivated our Legislature to enact the MMA and [its statute-of-

differently from what Leger refers to as “patient’s claims.” The question presented

here concerns only treatment of indemnification claims subject to the MMA.

repose provision}]"}. If the Legislature enacted a statutory scheme “to cover all

causes of action arising in New Mexico that are based on acts of malpractice” by a

qualified health care provider, but with the intention of treating claims covered by

the MMA differently depending on different criteria, it would have articulated those

criteria, rather than providing a single definition of “malpractice claim.”

Wilschinsky, 1989-NMSC-O47, 7 26.

40; The foregoing analysis leads us to conclude that the Legislature intended the

MMA's requirements and restrictions to apply to all “malpractice claims” covered

by the MMA Gvhich the indemnification claim at issue undisputedly is} and,

accordingly, that Section 41-5-12 bars assignment of all “malpractice claims” for

compensation covered by the MMA, Given the Legislature's intention “to cover all

causes of action arising in New Mexico that are based on acts of malpractice[,)°

Wilschinsky, 1989-NMSC-047, 4 26, and that “the controlling inquiry in determining

whether a claim constitutes a ‘malpractice claim’ under the MMA is merely whether

the gravamen of the claim is predicated upon the allegation of professional

negligence[,)” Duarte-Afara, 2011-NMCA-I12, 718, we can discern no reason why

the Legislature would intend to subject indemmification claims fo every MMA

restriction except onc—Section 41-5-12's prohibition against assignment—

especially when the result would be an “unreasonable classification” permitting non-

patients to do something forbidden to a patient. See Wilschinsky, 1989-NMSC-047,

q 26; Duarte-Afara, 2011-NMCA-112, 4 16.

4} Appellants raise other concerns about the potential consequences of adopting

Leger’s interpretation of Section 41-5-12. Leger dismisses these concerns as a

“wholly speculative and implausible[] parade of horribles that might someday arise

from allowing the assignment of a claim under the Act].]” But our judicial duty to

determine and give effect to the Legislature’s intent in the face of ambiguous text

requires that we consider “the context of the statute as a whole, including the

purposes and consequences of the Act.” Baker, 2013-NMSC-043, 9 15 (emphasis

added}. And there are potential consequences of the interpretation Leger advances

that raise legitimate grounds for concern; for example, opening the door to a method

of “claim laundering” whereby what Leger refers to as a “patient’s claim” may be

transformed into a different claim through assignment as part of a settlement in

which the patient recovers 100% of her damages for the malpractice of health care

providers sued and not sued by the patient, which claim the “patient” (or one acting

on behalf of the “patient”) may prosecute separately and, in the process, potentially

recover more than 100% of her damages for the same malpractice alleged to have

resulted in “injury to the patient.” See Duarte-Afara, 201 1-NMCA-112, 7 16 (In

effect, [the mledical [clenter’s equitable indemnification claim exposes [d]octors to

NO
ao

the identical lability to which they were subject under [the patient]’s claims.”).

{4233 The amount of the settlement is not in the record. And we do not know what

Med

amount, if any, Leger might have recovered in the third-party action. But Leger has

stated that “PHS paid amounts to cover 100% of the underlying liability claim,”

including “for the actions of [Appellants].” Although the MMA contains text

indicating legislative intent to apportion amounts among qualified health care

providers under certain circumstances, see § 41-5-L1{A) (providing — for

apportionment of the amount “each defendant is obligated to pay” on a “judgment

in favor of the patient” where the amount paid in advance “exceeds the liability of

the defendant or the insurer making it”), and Duarte-Afara held that a hospital’s

indemnification claim against doctors is a claim subject to the MMA’s restrictions,

we see no indication that the Legislature intended to allow a “patient” (or one acting

on behalf of the “patient”) to prosecute indemnification claims and recover more

than 100% of her damages for the same malpractice alleged to have resulted in

“injury to the patient.” And such a result seems contrary to the purposes for which

the MMA was enacted and the “balanced scheme” the Legislature created to

16) implement it. See Baker, 2013-NMSC-043, 9 17; Wilschinsky, 1989-NMSC-047,
L7H 24.
18] 43; Although the district court certified only the assignment issue for

interlocutory review, Appellants argued in their application and subsequent briefing

that Leger’s failures to present a claim against Appellants to the Medical Review

Commission and file it within the MMA’s statute of repose bar Leger from

prosecuting the indemnification action. Our disposition of the assignment issue

makes it unnecessary to reach those issues.

E.. The Dissent

444} The dissent suggests that we have failed “to closely examine the words in the

Act” and chosen instead to “depend|] on broad generalizations derived from the

judiciary’s added gloss in construing the MMA.” Dissent Op. 9 59. The opinion

discusses at length numerous principles of statutory construction articulated in New

Mexico appellate decisions, including those applied in precedents interpreting the

MMA, and considers the statutory text at issue in the context of the MMA as a whole

before concluding that the MMA’s plain text does not unambiguously answer the

question presented.

48} As for the opinion’s consideration of precedents construing the MMA, we are

obliged to follow them, along with precedents articulating and applying principles

of statutory construction. Alexander v. Delgado, 1973-NMSC-030, 94 9-10, 84 NLM.

717, 507 P.2d 778 (stating, in discussing the role of precedent, that “[nJo reason has

been advanced which would justify [the Court of Appeals} in refusing to follow the

New Mexico Supreme Court decisions” Cnternal quotation marks and citation

omitted)). Furthermore, the treatise on statutory construction cited in the dissent

states that “(t]he most conclusive Statutory interpretations come from state court

constructions of state statutes”; “[j]udicial construction of a statute becomes part of

the legislation from the time of its enactment”; and “even an inferior court

interpretation may be persuasive.” 2B Norman J. Singer & J.D. Shambie Singer,

Statutes and Statutory Construction § 49:4, at 20-22 (7th ed. 2012) (emphasis

added).

{46 We reject the dissent’s view that a court interpreting statutory text that does

not unambiguously answer the question presented may consider only the law in

effect at the time of enactment. Dissent Op. 79 59, 62, 66. We do not suggest that

the precedents discussed above unambiguously answer the question presented. But

the opinion’s analysis is most consistent with the statutory text and with what

applicable precedents say about statutory construction and the MMA.

The Plain-Language Argument

473 The dissent argues that “we can and should give effect to the Legislature’s

choice of the words ‘patient’s claim’ in Section 41-5-12[./" Dissent Op. 7 58. After

concluding that “a ‘patient’s claim’ is a natural person’s cause of action under the

MMA, arising from the health care that person received or should have received

Vi?

from a health care provider[,]” id. 4 60, the dissent asserts that “[t]he reference to

‘patient's claim’ within the definition of ‘malpractice claim’ does not... render the

terms equivalent” because “[rjeading the definition in this way would render many

NS
fom)

of its words superfluous,” id. 76

(48) As noted, the MMA does not define “patient’s claim for compensation” or

“patient’s claim.” And the dissent’s reading itself renders superfluous the phrase

“whether the patient’s claim or cause of action sounds in tort or contract” in the

MMA’s definition of “malpractice claim” as “includjing] any cause of action arising

in this state against a health care provider for medical treatment . . . which

proximately results in injury to the patient, whether the patient's claim or cause of

~~}

action sounds in tort or contract[.|” Section 41-5-3(C) (emphasis added). These

words, and their placement, constitute at least some textual evidence that the

[Llegislature understood a “malpractice claim” covered by the MMA as one that

originates as a claim by a “patient” against a healthcare provider to which the Act

apples. Cf Cummings v. A-Ray Assocs. of N.M., 1996-NMSC-035, 436, 121 NM.

821, 918 P.2d 1321 (“A malpractice claim is an attempt by a patient to obtain

something he or she does not yet possess: monetary compensation for an injury

caused by the negligence of a health care practitioner.”}. The Legislature’s choice to

use these words in Section 41-5-3(C) undermines the dissent’s criticism of

Appellants’ argument that the Legislature had only “ ‘patient’s claims’ in mind when

—_"
~~]

the MMA was enacted” as “contrary to the language in the Act.” Dissent Op. 4 62.

So too does the Legislature’s choice to use language throughout the MMA (cited

above in footnote one) reflecting a scheme to address Gin ways that differ from the

} \ abet 5 eg £L 66" * 4 +4 he 499 des £; Pee | aah
[MOTSCUSSLELE Lay 3 Chath Ai to lite. LPO Erk} uly LO Ie Pali aa POS UPL PERUSE LUC a Le

by a “health care provider” subject to the MMA (Section 41-5-3(C)), and

contemplating litigation commenced by a “patient” or a representative of the patient

against a “health care provider.” See, e.g., § 41-5-4 (“A patient or his representative

having a malpractice claim for bodily injury or death may file a complaint in any

court of law having requisite jurisdiction and demand right of trial by jury.... This

section shall not prevent a patient or his representative from alleging a requisite

jurisdictional amount in a malpractice claim filed in a court requiring such an

allegation.” (emphases added)).

449} The argument that the Legislature intended equivalence between the

undefined term “patient’s claim” and the defined term “malpractice claim” is not

frivolous, and the plain language does not resolve the issue presented free from all

doubt. See Heilman, 1994-NMSC-023, 9 23 (explaining that the “beguiling

simplicity” of the plain language canon of construction “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 (.e., nonfrivolous) differences of opinion concerning

the statute’s meaning”). Although we cannot say that the MMA’s plain language

unambiguously equates “patient’s claim” with “malpractice claim,” we can say that

the plain text of the MMA, in the only provision that defines claims subject to the

oy fy

Act as well as in the Act as a whole, provides support for that interpretation. And

FAS

ivaah yA

a 4 re 12 4 M 2 yon ° 99 47 ‘ 4.
white the MMA-uses both “patient's claim” and “malpractice claim,” the dissent’s

conclusion that “the language of the MMA supports a distinction between ‘patient’s

3 FF

claims’ and ‘malpractice claims,” ” Dissent Op. { 63, does not demonstrate, free of

ambiguity, legislative intent to exclude from Section 41-5-12 every claim falling

within the MMA’s definition of “malpractice claim” except those held by a “patient”

4 xy ¢ me er et

at the moment of assignment. See Helman, 1994-NMSC-023, €4| 26-29 (noting the

dangers of literal readings, instructing that “[a]s nearly as we can, we must put

ourselves in the place of those who uttered the words, and try to divine how they

Ke)

would have dealt with the unforeseen situation{,}” and concluding that the statute at

issue was ambiguous, despite “clarity and precision” in some aspects (internal

quotation marks and citation omitted)); Roberts, 1992-NMSC-042, 7 17 (rejecting

7
fend

mci of statutory constr Ar 4 that tha A wt aie
as“ ‘ignor fing| a cardinal pri RUHR OE SLGLULLOT Y CUS, 2.0, Rd LEER SR k aU

be read as a whole, giving effect to each portion of the statute” the argument that the

Legislature acted “purposefully” in “omitt{ing] the word ‘qualified’ from the Act’s

the statute to apply to all health care providers, regardless of whether the particular

poeey
I

health care provider chose to become qualified” (citation omitted)).

upon which to lean in effectuating the legislative intent behind Section 41-5-12.”

ho
©

Dissent Op. 9 67 (quoting State ex rel. State Eng’r v. Lewis, 1996-NMCA-019, ¥ 13,

121 N.M. 323, 910 P.2d 957, as stating that “[wJe must interpret the language of a

statute as the [LJegislature understood it at the time it was enacted”). As nated,

however, the treatise cited in the dissent teaches that “[t]he most conclusive statutory

interpretations come from state court constructions of state statutes” and “{jjudicial

construction of a statute becomes part of the legislation from the time of its

enactment.” 2B Singer, supra, § 49:4, at 20-21" Also worth noting in this regard is

the dissent’s statement that “the Legislature doubtless did not have Wilschinsky-type

claims in mind when it enacted Section 41-5-12 in 1976 because these claims were

° 4 ¢ 4 Foy 0

not recognized by our Supreme Court until 1989.” Dissent Op. { 67. Although the

observation makes sense as a temporal matter, it undermines the dissent’s insistence

on an intended distinction between “patient’s claim” and “malpractice claim” based,

3 (oan 4

in part, on language used in Section 41-5-3(C)’s definition “indicat{ing]} that

‘malpractice claim’ is wide sweeping, encompassing a// causes of action against a

health care provider based on acts of malpractice that proximately result in injury to

* The dissent’s citation to Lewis, 1996-NMCA-019, 4 16, in criticizing
Appellants’ arguments concerning the fiscal impact of an interpretation of Section

4{-5-12 that permits assignment of indemnification claims seems misplaced. Dissent
Op. | 65. The Legislature is, of course, the governmental branch with the
institutional capacity and competence to assess the fiscal impact of its enactments.

But the statement in Lewis cited by the dissent on this point addresses “the
consequences of a legislative policy embodied in an unambiguous statute[.]” Lewis,
1996-NMCA-019, 4 16. In this case, the text does not unambiguously answer the

question presented. Yet it remains “the high duty and responsibility of the judicial
branch of government to facilitate and promote the [Llegislature’s accomplishment
of its purpose[,]” Heilman, 1994-NMSC-023, 4 25, and to do so by considering

Section 41-5-12 “in the context of the statute as a whole, including the purposes and
consequences of the Act[,]” Baker, 2013-NMSC-043, 4 15.

the patient.” Dissent Op. 61. Ifthe Legislature did intend to distinguish “patient’s

claim” from any other claim constituting a “malpractice claim” and to provide

different treatment for different types of claims falling within the definition of

“malpractice claim,” it was capable of doing so, as the dissent asserts in its argument

conceming the Legisiature's language choices. It seems entirely plausible that the

Legislature’s use of “patient’s claim” in Section 41-5-12 represents another instance

in which the Legislature was “simply imprecise with its language.” See Baker, 2013-

NMSC-043, 7 30.

Arguments Concerning “Legal Reality,” Common Law, and Policy

51} The dissent’s assertions concerning “the legal reality in which the MMA was

95 my?

faery
—

adopted,” Dissent Op. 62, and “the common law when the MMA was enacted,”

Dissent Op. € 66, do not answer the question presented. There is no dispute that

“Tajround the time the MMA was enacted, indemnity and contribution claims

penn
a

certainly were litigated in the medical malpractice context.” Dissent Op. {

is there a dispute concerning the assignability of “choses in action” under the

common law. Dissent Op. ] 66. But the question we are charged with answering is

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WHat LO GOR Statue TOC OGeG Pi CG, EER GVAVESA, Et Wd Wao TILER ead dad tie

medical malpractice context when the MMA was enacted or what was-~and is—

allowed under the common law. As the opinion notes, the MMA applies only to

NO
2

NMSC-042, 9 17. This means that cases involving allegations of medical

malpractice against health care providers not qualified under the MMA will be

litigated under the common law, with claims against government actors subject to

the limitations and restrictions of the Tort Claims Act, NMSA 1978, §§ 41-4-1 to -30

(1976, as amended through 2015}. See, e.g., Maestas v. Zager, 2007-NMSC-003,

"4 16-18, 141 NM. 154, 152 P.3d 141. Although the Legislature provided incentives

for health care providers to satisfy the requirements necessary for the MMA to apply,

there are medical malpractice cases to which the MMA does not apply. There is no

dispute that the MMA applies to this case; the question is whether the MMA permits

assignment of malpractice claims not held by a “patient” at the time of assignment.

52} The dissent states that “the majority assumes that the non-assignability

provision is a benefit that inures to health care providers” and that it is “a false

premise that the non-assignability provision is a restriction” because “the non-

assignability provision has not been identified by our courts as a benefit to health

care providers” and “this provision seems designed not to benefit health care

providers but to protect patients.” Dissent Op. § 64. Section 41-5-12 plainly reads as

a restriction or limitation. Nevertheless, there is no reason to believe that the MMA

confers no “benefits” other than those mentioned in Baker. Furthermore, even if the

common law’s proscription against assignment of personal injury claims is meant to

benefit plaintiffs in cases litigated under the common law, this does not require the

conclusion that the Legislature did not intend Section 41-5-12 to benefit health care

providers in cases to which the MMA applies. See Roberts, 1992-NMSC-042, 4 14

(disagreeing that in “arguably” codifying a common law rule in the MMA, “the

[Liegislature did not intend to confer a ‘benefit’ on qualified health care

providers[,]}” explaining that the argument erroneously assumes that “the
{jegislature mechanistically enacted the common law and, thus, did not confer a

benefit on qualified health care providers” when “it is equally plausible that the

{Llegislature, in response to the perceived medical malpractice crisis, chose the time

of the negligent act rule specifically to confer its benefit on qualified health care

providers’).

{53} We are aware of the principles cited by the dissent concerning interpretation

of statutes against the background of the common law. As the opinion notes,

however, we also presume that the Legislature enacted the MMA to change, not to

codify, the existing law. See Johnson, 1989-NMSC-045, 4 4; Bird, 1977-NMSC-

110, € 12; ef Cahn, 2018-NMSC-002, {9 24-25. An interpretation of the MMA that

incorporates everything allowed under the common law unless expressly prohibited

—
oa

seems incompatible with a scheme clearly mtended to limit common-law rights,

recoveries, and the costs of health care in New Mexico. See, ¢e.g., Roberts, 1992-

19) NMSC-042, 4 15 €[TThe Act established new procedural and substantive
20} restrictions on malpractice ability.’ (internal quotation marks —omitted));

fos

Wilschinsky, 1989-NMSC-047, 9 21 (stating that the MMA was enacted to address

a perceived medical malpractice crisis in New Mexico by “providing a framework

for tort lability with which the insurance industry could operate|,[’ one that

“restrict{s} and limit[s the] plaintiffs’ rights under the common law” through

Loa)

“several procedural measures and by establishing a limitation on full recovery for

malpractice injury”); see also Salopek v. Friedman, 2013-NMCA-087, Ff 50-58,

308 P.3d 139 (discussing some differences between medical malpractice claims

under the MMA and under the common law). It is also at odds with the conclusion

of Duarte-Afara, reached “in part, so as to carry out the policy goals the Legislature

intended by enacting the MMA” that an indemnification claim is subject to the

MMA’s restrictions and limitations, notwithstanding its “separate and distinct”

identity under the common law. 2011-NMCA-112, 79 16, 18. Such an interpretation

seems especially unwarranted given that medical malpractice cases to which the

MMA does not apply will be litigated under the common law.

{54} The dissent’s comments that “the approach taken by our Court today appears

to stand alone” and “no published opinions .. . forbid such assignment,” Dissent Op.

4] 69, carry no significance. Our task is to interpret the MMA, and not one of the

cases cited as supporting the conclusion reached in the dissent (none of which were

cited by Leger) involves the MMA or even another state’s statute with the same

ND
eb

language and goals. As for the policy considerations discussed in the dissent’s cited

cases, Dissent Op. 4 69, the policies relevant here are the policies the Legislature

intended to implement and serve in enacting the MMA. Safeway, Inc. v. Rooter 2000

NMSC-025, 9 10, 119 N.M. 609, 894 P.2d 386 CUT} is the particular domain of the

[Ljegislature, as the voice of the people, to make public policy.”)}. The dissent offers

no reason why the policies discussed in the cases cited-——favoring “free alienability

of property interests,” settlement, and windfalls benefitting plaintiffs—should

presume that the Legislature intended the MMA to serve the policies invoked in the

dissent regardless of potential consequences. For example, would an interpretation

ofthe MMA based ona policy of “free alienability of property interests” allow Leger

that, having undergone a process of transmutation in the manner effected in this case,

the claim is not a “patient’s claim’? Could that re-assigned claim De litigated many

years beyond the MMA’s statute of repose based on the reasoning that PHS
5 3 p 8

complied with the MMA’s presentation requirements before asserting the

indemnification claim in court? Or would re-assignment be barred because the

holder of the claim at the moment of re-assignment was a “natural person’?

(553 Again, we do not suggest that the opinion’s interpretation of the Legislature’s

* at ae 4: 4: ca > Yonge Seen $e er i jy
intent in enacting Section 41-5-12 is free from doubt—it cannot be, given that the

plain text does not unambiguously answer the question. Cummings, 1996-NMSC-

035, 7 45 (It is rare, if not impossible, for any language-—statutory or otherwise-—

to be utterly free from ambiguity.”). We believe, however, that our reading of this

provision in the context of the MMA as a whole best comports with the principles

of statutory construction stated and applied in prior precedents, most especially in

those precedents interpreting the MMA in other contexts.

CONCLUSION

(86 We reverse the district court’s denial of Appellants’ motion to dismiss at issue

in this appeal (motion to dismiss filed by Appellants on grounds that indemnity claim

is not assignable and that claim is barred by the statute of repose) and remand with

ili instructions that Leger’s indemnification action be dismissed with prejudice.
12s) TTISSOORDERED, 0000000 .
13 <p Weave Yate
i4 Se DAM, VANZL, Chief “Judges
15) 7 CONCUR:

. oe
i / “a if. Dae Ye ’
17) HENRY M. BOHNHOFF, Judge
TQh Pe RR ee ATER EPR Varin (cicssomtinas
SAT eR Rule aR RR Be CR RR RRR ee 8 we TARE gO VRE SO RAR SEE oF

ATTREP, Judge (dissenting).

88} Because | believe we can and should give effect to the Legislature’s choice of

the words “patient’s claim” in Section 41-5-12, I conclude that the assignment of the

equitable indemnification claim‘ to Leger is not barred by the MMA. The majority

having concluded to the contrary, I respectfully dissent.

53} The issue here is whether the Legislature intended to differentiate between

“malpractice claims” and “patient’s claims” in the MMA such that the use of the

latter term in Section 41-5-12 (the non-assignability provision) was meant to restrict

the assignability of only certain types of malpractice claims—-namely, “patient’s

claims.” Asserting ambiguity in the Act, the majority relies heavily on general

principles derived from Wilschinsky, Duarte-Afara, and Baker in determining

equivalence between “patient’s claim” and “malpractice claim” and in deterrnining

that, notwithstanding language to the contrary, the Legislature meant for the non-

assignability provision to apply to a// malpractice claims. Majority Op. {[*

40. I think it crucial to closely examine the words in the Act before depending on

broad generalizations derived from the judiciary’s added gloss in construing the

* As noted at oral argument and reflected in the second amended third-party

complaint for indemnification or contribution, the claim at issue on appeal may
actually be a contribution claim, not an indemnity claim. Because this distinction
does not affect my analysis and because the parties in their briefing and the majority

in its opinion refer to Leger’s claim as an indemnification claim, I do the same.

MMA. This best ensures that we “interpret the language of a statute as the

[Llegislature understood it at the time it was enacted.” Lewis, 1996-NMCA-019,

# 13. In doing so, | conclude the words selected by the Legislature require a different

result than the majority. And it is incumbent upon this Court to give such words

effect, as they are the “primary indicator of legislative intent[,]” if doing so does not

result in “injustice, absurdity or contradiction[.]” Baker, 2013-NMSC-043, 4 11

(internal quotation marks and citation omitted); see id. 1, 13 (undertaking fulsome

textual analysis and disagreeing with this Court’s conclusion that the text of the

MMA literally excluded certain entities from the definition of “health care

provider’).

{60} Turning to the statutory language in the Act, the non-assignability provision

provides: “A patient’s claim for compensation under the [MMA] is not assignable.”

Section 41-5-12. “Patient’s claim” or “patient’s claim for compensation” is not a

defined term in the MMA, but “patient” is defined as “a natural person who received

or should have received health care from a licensed health care provider, under a

contract, express or implied[.]”’ Section 41-5-3(E). To determine the meaning of

pk
Pe

“natient’s claim,” Plook to the ordinary meaning of the word “claim.” See State v.

,
eo

statute, including terms not statutorily defined, should be given their ordinary

NO
a

is “[aln interest or remedy recognized at law; the means by which a person can obtain

a privilege, possession, or enjoyment of a right or thing: cause of action.” Black’s
p ge, p , HOY 8 g;

Law Dictionary 302 (10th ed. 2014). Thus, a “patient’s claim” is a natural person’s

cause of action under the MMA, arising from the health care that person received or

should have received from a health care provider.

fon) Turning next to the definition of “malpractice claim,” the majority’s

equivalence argument breaks down. Under the MMA, “ ‘malpractice claim’ includes

any cause of action arising in this state against a health care provider for medical

treatment, lack of medical treatment or other claimed departure from accepted

standards of health care which proximately results in injury to the patient, whether

the patient’s claim or cause of action sounds in tort or contract, and includes but ts

not limited to actions based on battery or wrongful death[.]” Section 41-5-3(C)

(emphasis added). The use of the words “includes” and “any” at the beginning of the

definition indicates that “malpractice claim” is wide sweeping, encompassing all

causes of action against a health care provider based on acts of malpractice that

proximately result in injury to the patient. Cf State v. Strauch, 2015-NMSC-009,

err. 7 4

[37, 345 P.3d 317 (noting that “the word ‘includes’ implies an incomplete listing”

(internal quotation marks and citation omitted)); Afueller v. Sample, 2004-~-NMCA-

075, 4 16, 135 N.M. 748, 93 P.3d 769 (reading “any cause of action or suit” to

NO
an

term referred only to the defendant); Merriam-Webster Dictionary,

http://www.merriam-webster.com/dictionary/any Cast visited on Oct. 28, 2018)

defining “anv” to mean, among other things, “one, some, or all indiscriminately of
2 fl 2 oo] mo 3 3 o

whatever quantity ... all”). The reference to “patient’s claim” within the definition

of “malpractice claim” does not, in my opinion, render the terms equivalent. Reading

the definition in this way would render many of its words superfluous. See Baker,

2013-NMSC-043, 4 24 [T]he Legislature is presumed not to have used any surplus

words in a statute; each word is to be given meaning[,]” and we “must interpret a

statute so as to avoid rendering the Legislature’s language superfluous.” (alteration,

internal quotation marks, and citation omitted)).

f62} Appellants’ related assertion at oral argument that it was “inconceivabie” that

the Legislature had anything other than “patient’s claims” in mind when the MMA

was enacted is not only contrary to the language in the Act, but also is contrary to

the legal reality in which the MMA was adopted. See State ex rel Kine v. B & B inv.

Grp., 2014-NMSC-024, 4 38, 329 P.3d 658 (stating that the appellate courts operate

“under the presumption that the [Llegislature acted with full knowledge of relevant

statutory and common law and did not intend to enact a law inconsistent with

existing law” (alterations, internal quotation marks, and citation omitted)}). Around

NG
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ao

the time the MMA was enacted, indemnity and contribution claims certainly were

Tortfeasors Act, NMSA 1978, $$ 41-3-1 to -8 (1947, as amended through 1987);

Dessauer v. Mem’! Gen. Hosp., 1981-NMCA-O0S1, 4 1, 96 N.M. 92, 628 P.2d 337

(contribution/indemmity suit brought by hospital and nurse against doctor); Goffe v.

Pharmaseal Labs., Inc., 1976-NMCA-123, 4 14, 90 N.M. 764, 568 P.2d 600

(mentioning cross-claim against doctor and hospital), aff'd in part, rev'd in part,

1977-NMSC-071, 90 N.M. 753, 568 P.2d 589. In simple terms, such claims involve

causes of action between or among health care providers based on acts of malpractice

that resulted in injury to a patient-—that is, they are “malpractice claims” within the
of a 2 o 4

order to hold doctor liable for contribution, doctor must be determined negligent and

to hold doctor lable for indemnity, doctor must be vicariously liable for nurse’s

negligence); see also Caglioti v. Dist. Hosp. Partners, Lp, 933 A.2d 800, 816 (D.C.

2007) (equating equitable indemnity claim to malpractice claim and providing that,

to recover, indemnitee “would have the burden of proving the applicable standard of

care, a deviation from that standard and a causal relationship between the deviation

> Our holding in Duarte-Afara made it clear that equitable indemnification

claims fall under the ambit of the MMA and are “malpractice claims.” 201 1-NMCA-
112, € 15. This conclusion was reached, in part, by resort to Wilschinsky. Duarte-
Afara, 2011-NMCA-112, 9 15. While I believe it was unnecessary for our Court to

go much beyond the statutory language of the MMA in reaching this conclusion, the
outcome of Duarte-Afara is sound. Our decision in Duarte-Afara does not however,
as Appellants imply, mean that the Legislature could not have had in mind such

claims when drafting the MMA.

and the injury”); Paden v. Robbins, 450 N-Y.S.2d 238, 239 ONLY. App. Div. 1982)

(“To be entitled to contribution from the third-party defendants, [the doctor] will

have to establish that what the third-party defendants did or failed to do in their

treatment of [the] plaintiff constituted a departure from the applicable standards of

medical skill and care.” (alteration, internal quotation marks, and citation omitted)).

63; And perhaps it too simple a point to make, but the Legislature clearly was

capable of using the term “malpractice claim” in the MMA when it chose to do so.

Other than defining “malpractice claim,” the Legislature used that term sixteen times

in the MMA. See §§ 41-5-3(C), -4, -5(C), -6(C), ~7(A), -8, -14(A), -17(ED, -21, -22,

-23, -25(A). Had the Legislature intended that all malpractice claims be non-

assignable, tt could have used the term “malpractice claim” in Section 41-5-12. See

State v. Greenwood, 2012-NMCA-O017, 438, 271 P.3d 753 (“The Legislature knows

how to include language in a statute if it so desires.” (alteration, internal quotation

marks, and citation omitted)). It did not. Given that the language of the MMA

supports a distinction between “patient’s claims” and “malpractice claims,” I think

we ought to give effect to the Legislature’s choice of words—namely, that the non-

Loaeinal
~J

assignability provision applies to “patient’s claims” and not to al? “malpractice

claims” as the majority concludes.

“yey s

1641 (riving effect to the specific language in the non-assignability provision is not

240, 96 P.3d 801 (In construing the statute, our primary goal is to give effect to the

intent of the Legislature. We do this by giving effect to the plain meaning of the

words of statute, unless this leads to an absurd or unreasonable result.” (citation

omitted}). The stated 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, The majority posits that it

“can discern no reason why the Legislature would intend to subject indemnification

claims to every MMA restriction except one”’—the non-assignability provision.

Majority Op. % 40. In making this contention, the majority assumes that the non-

assignability provision is a benefit that inures to health care providers. Unlike the

other “restrictions” in the MMA-—-such as the damages cap, Section 41-5-6, and

statute of repose, Section 41-5-13—the non-assignability provision has not been

ean
a

identified by our courts as a benefit to health care providers. See Baker, 2013-

NMSC-043, 7 18 (listing benefits in the Act to health care providers). And, indeed,

this provision seems designed not to benefit health care providers but to protect

rave.

er en OY, va Re eo? ihn YO TT pega Lone Lo Agee " ” ag
Palienia, oe LUGE CHIPODPaACIC, fl VE UPRICrs ifs. CO. OF AAPIZ., QUO INOUE PA

080, 4 10, 132 N.M. 518, 51 P.3d 1172 (The main concern ... was that assignment

of personal injury claims would lead to unscrupulous trafficking in litigation as a

803 (NJ. Super. Ct. App. Div. 2000) (“The prohibition against the assignment of

tort claims is designed to protect the interests of injured persons, not alleged

tortfeasors who may have claims against other alleged tortfeasors.”). As such, I think

it a false premise that the non-assignability provision is a restriction—or benefit to

O41

health care providers-——-that should apply equally to all malpractice claims.

68} Appellants’ legislative intent argument also is unavailing. While Appellants

speculate that permitting the assignment of indemnity claims runs contrary to the

legislative intent of the MMA because assignment will make it more likely for these

claims to be litigated and, thereby, drive up the costs of insuring health care

providers, the opposite may also be true. It seems just as likely that the overall effect

of limiting the assignability of indemnity claims may make settlements more

difficult to obtain—resulting in lengthier and more expensive litigation, thereby

driving up the costs of insuring health care providers. See Bush v. Super. Ct. of

Sacramento Cty., 13 Cal. Rptr. 2d 382, 389 (Cal. Ct. App. 1992) (“Sanctioning the

assignment of [equitable indemnification] chose in action to the tort plaintiff fosters

settlement with the tortfeasor most willing to settle.”); Caglioti, 933 A.2d at 816

(G6 A”

joe
~~]

(“Although in this instance the assignment of the equitable indemmity claim perhaps

has prolonged the litigation, in other instances the assignment could provide an

additional means of settling the underlying case.”); Rubenstein v. Royal Ins. Co. of

Fay)

contribution encourages settlernent.”); cf Gonzales v. Atnip, 1984-NMCA-128, 4] 1,

102 NLM. 194, 692 P.2d 1343 (“The historical and current public policy of this state

is to favor the settlement of disputed claims|, including]... the settlement of

lawsuits.” (citation omitted)). Frankly, this fiscal impact analysis is beyond the

expertise of the judiciary and should be left for the Legislature to examine and make

appropriate changes to the MMA if need be. See Lewis, 1996-NMCA-O19, 4 16

(leaving for the Legislature to address “potential problems created by our statutory

interpretation” of clear and unambiguous provision).

(66; There also is no inherent absurdity in the Legislature prohibiting assignments

of “patient’s claims” with no corresponding prohibition against the indemnity claim

at issue in this case. Section 41-45-12 was in line with the common law when the

MMA was enacted. Cf San Juan Agric. Water Users Ass'n v. KNME-TY, 2011-

NMSC-O11, 9 20, 150 N.M. 64, 257 P.3d 884 (When [the courts} interprets statutes,

we do s0 against a background of common-law principles.”). At the time of

enactment, it was long established that, as a general principle, “choses in action are

assignable,” the pertinent exception being personal injury claims. Parker v. Beasley,

_
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as

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34 PG OG

1936-NMSC-( PNM.

Need

NMCA-080, @ 8 (stating that “[plersonal injury claims... remained unassignable”

even when assignment of other claims was permitted over time); 6A CJS.

NS
paws)

is generally assignable, since a chose in action constitutes personal property.”

(footnote omitted)); see also Emp'rs Fire ins. Co. v. Welch, 1967-NMSC-248, 4 5,

78 NLM. 494, 433 P.2d 79 (mentioning assignment of an indemnity claim). Under

these principles, a patient’s claim, which is a personal injury claim, would not be

assignable, but an indemnity claim, which remains distinct from the underlying tort,

would be assignable. See Duarte-Afara, 2011-NMCA-112, 7 18. The MMA as

written maintains this common law distinction. See San Juan Agric. Water Users

Ass'n, 2011-NMSC-O11, 4 20 (We presume that the Legislature enacts statutes that

are consistent with the common law and that the common law applies unless it is

clearly abrogated.”).

{67 ‘To support its construction of the Act, the majority relies on an “unreasonabie

classification”-~i.e., that if Section 41-5-12 is applied only to “patient’s claims,”

then Wilschinsky-type claims (which are personal injury claims) would be assignable

doubtless did not have Wilschinsky-type claims in mind when it enacted Section 41-

5-12 in 1976 because these claims were not recognized by our Supreme Court until

injury claims would be barred at common law, and there is no countervailing

legislative intent in Section 41-5-12 to abrogate this principle. See San Juan Agric.

supplanting the common law only if there is an explicit indication that the

[Liegislature so intended.” (internal quotation marks and citation omitted)).

Regardless, the majority’s “unreasonable classification,” having been created by the

judiciary, seems like a thin reed upon which to lean in effectuating the legislative

interpret the language of a statute as the [L]egislature understood it at the time it was

enacted.”).

68} [tis worth highlighting that the majority opinion entirely eliminates the right

to assign any and all malpractice claims falling within the MMA. Before brushing

aside the free alienability of property interests, [ think we ought te require a clearer

expression of legislative intent than what we have here. See San Juan Agric. Water

an indication that a legislature intends a statute to supplant common law, courts

—"
is

—
nr

should not give it that effect.”); see also State ex rel. Bingaman v. Valley Sav. &

restraints on alienation were prohibited.”); cf Espinosa v. United of Omaha Life Ins.

Cy WT BR aes a

4% & 4 tu-7 > 7 4 io oe ro 4 fp _o4 4
5 LOPF INUIVE OVE, bof FOG Of: UMOUnE inlat alili~

assignment clauses are generally disfavored”).

69} Finally, the approach taken by our Court today appears to stand alone. Of the

contribution claims to the original plaintiffin the medical malpractice context, I have

found no published opinions that forbid such assignment. See, e.g, Bush, 13 Cal.

Rptr. 2d at 384-90 (permitting assignment of indemnity or contribution claims

against medical providers to original plaintiff, noting strong preference for

assignability, and rejecting double recovery arguments); Cagliati, 933 A.2d at 807-

17 (same); Robarts v. Diaco, 581 So. 24911, 915 (Fla. Dist. Ct. App. 1991} (same);

cf. Kimball Int'l, 760 A.2d at 803 (permitting assignment of indemnification claim

to the plaintiff in products lability case). These courts address similar concerns

raised by the majority regarding the potential for manipulation of claims by a

plaintiff in order to obtain double recovery. The courts conclude that the possibility

£2

of a recovery in excess of tort damages does not Dar assignment of an

indemnification claim because, as a matter of policy, a windfall, if any, should

benefit the injured plaintiff rather than a tortfeasor. See Bush, 13 Cal. Rptr. 2d at

390; Caglioti, 933 A.2d at 814-15; Robarts, 581 So. 2d at 91S. These policy

considerations counsel in favor of permitting the assignment in this case, particularly

in light of the fact that, because the amount of Plaintiffs’ damages and the settlement

“2

amount are not of record, it is unclear that Plaintiffs will obtam full recovery if the

assignment of the indemnity claim is disallowed.

LA
GA

Lita; = For the foregoing reasons, | would affirm the district court’s denial of
2 Appellants’ motion to dismiss.°
a wepeoon
3 ¢ wn en Deceit anne
a
4 JENNIFER L. STTRE. Judge

° {have limited my analysis

s to the issue addressed by the majority opinion and

do not address the additional arguments raised by the Appellants, including the
assignability of the indemnity claim under the common law and Leger’s compliance

with Sections 41-5-13 and -14.

Lay
oN

November 28, 2018- Nicholas T. Leger v. Richard Gerety, M.D., No. A-1-CA-35807

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