Cahn v. Berryman Clarifies the Medical Malpractice Act’s “Due Process Exception”
In Cahn v. Berryman, the New Mexico Supreme Court defined the contours of the “due process exception” to the statute of repose under the New Mexico Medical Malpractice Act (“MMA”).1 Prior to this decision, the murkiness of the due process exception created an uncertainty about when malpractice claims were time-barred by the statute of repose. The Cahn court’s opinion lends clarifying guidance to both healthcare providers and patients about the timeframe during which medical malpractice claims can be asserted.
The MMA was enacted by the New Mexico Legislature in 1976, and was intended to “promote the health and welfare of the people of New Mexico by making available professional liability insurance for healthcare providers in New Mexico.”2 One provision of the MMA that aims to serve this purpose is its three-year statute of repose for medical malpractice claims.3 Under the statute of repose, plaintiffs with claims for medical malpractice must assert their claims within three years from the date of the alleged malpractice, or the claims are time-barred.4 New Mexico courts have held that the statute of repose adheres to the “occurrence rule,” rather than the “discovery rule,” which means that the three-year clock starts ticking without regard to when plaintiffs discover that they have a claim for malpractice.5
New Mexico courts fashioned the “due process exception” to the statute of repose for situations in which plaintiffs discover that they have medical malpractice claims with little time remaining in the three-year window.6 The rationale behind this exception is that plaintiffs’ due process rights are violated if they are not left with sufficient time to assert their claims.7 For example, in Garcia ex rel. Garcia v. La Farge, a plaintiff discovered his medical malpractice claim with only 85 days remaining before the statue of repose operated to bar his claim.8 The New Mexico Supreme Court held that the time-barring of the plaintiff’s claim would violate his due process rights, and therefore he was still permitted to assert his malpractice claim.9
Before Cahn, the due process exception was addressed in three published opinions by New Mexico courts.10 The due process exception was granted when a plaintiff had 85 days remaining to file a lawsuit,11 but was denied when a plaintiff had 18 months remaining12 and denied when a plaintiff had two and one half years remaining.13 As discussed below, Cahn involved a plaintiff who discovered her claim for malpractice with 10 months remaining before her claim was time-barred. The Supreme Court declined to grant the due process exception to the plaintiff, and also established the contours of the exception for future cases.14
The plaintiff’s medical malpractice claim in Cahn v. Berryman arose out of an incorrect diagnosis of ovarian cancer.15 The plaintiff, Sara Cahn, only visited the defendant, Dr. John Berryman, on one occasion to review the results of a pelvic ultrasound that she had previously received.16 Dr. Berryman did not disclose the results of the ultrasound, which showed a complex mass on Cahn’s left ovary, and he instead diagnosed her with a different disorder.17 Over two years later, when Cahn no longer lived in New Mexico, she was diagnosed with widespread ovarian cancer.18
Cahn hired a lawyer to pursue a medical malpractice claim against Dr. Berryman, but she did not remember his name and was unaware that he was not employed by the hospital where her appointment took place.19 She sent records requests to the hospital, but her attempts to uncover his identity proved unfruitful.20 Ultimately, she filed a lawsuit before the three-year window elapsed, naming the hospital and several other doctors as defendants, but not Dr. Berryman.21
Cahn later uncovered Dr. Berryman’s identity, and she named him as a defendant in her ongoing lawsuit 21 months after she discovered her misdiagnosis.22 Since he was named three years and eleven months after the alleged malpractice occurred, Dr. Berryman moved for summary judgment on her claim, based on the three-year statute of repose provided in the MMA.23
The District Court denied Dr. Berryman’s motion for summary judgment, finding that Cahn was entitled to the due process exception.24 On appeal, the New Mexico Court of Appeals reversed in a 2-1 opinion, primarily because the information revealing Dr. Berryman’s identity was in Cahn’s possession before the three-year window elapsed.25 Cahn appealed this decision to the New Mexico Supreme Court.
The Supreme Court’s Decision
In a 4-1 opinion, the Supreme Court affirmed the Court of Appeals’ reversal of the District Court, holding that Cahn was not entitled to the due process exception.26 Rather than emphasizing that Cahn had long possessed the required information to uncover Dr. Berryman’s identity, however, the Supreme Court stressed that she named Dr. Berryman as a defendant 21 months after she discovered her misdiagnosis.27 Defining the boundaries of the due process exception, the Supreme Court held that “plaintiffs with late-accruing medical malpractice claims, i.e. claims accruing in the last twelve months of the three-year repose period, shall have twelve months from the time of accrual to commence suit.”28
The Supreme Court reasoned that due process protections arise when a plaintiff’s claim for malpractice accrues.29 The date of accrual is “when the plaintiff knows or with reasonable diligence should have known of the injury and its cause.”30 Twelve months from this date is “a constitutionally reasonable period of time within which to file [a malpractice claim] regardless of whether the claim accrues twelve months or one day before the expiration of the three-year repose period.”31
A criticism of the majority opinion’s approach is that it “fails to account for the particular facts of each case,” such as Cahn’s situation where she experienced difficulty uncovering Dr. Berryman’s identity.32 However, the majority opinion responds to this criticism by noting that its rule is “faithful to the structure of the MMA itself,” because “plaintiffs with late-accruing claims must file within a fixed amount of time . . . [or] their claim is lost.”33 Cahn’s claim was late-accruing, since less than one year remained in the three-year window when she discovered her misdiagnosis.34 She had twelve months to file her claim, but she did not name Dr. Berryman until 21 months had passed.35 Under the Supreme Court’s new framework for the due process exception, Cahn’s claim was untimely.36
The Supreme Court’s decision lends helpful guidance to lower courts, health care providers and patients regarding the availability of the due process exception. The decision’s 12-month rule for late-accruing claims offers more certainty to health care providers about their exposure to medical malpractice claims, and in appropriate cases may furnish a basis for early dispositive motion practice.
- 1. 2018-NMSC-002, ¶ 1, __ P.3d ___.
- 2. NMSA 1978, § 41-5-2 (1976).
- 3. See NMSA 1978, § 41-5-13 (1976). The MMA’s provisions, including the statute of repose, only apply to health care providers who are qualified under NMSA 1978, Section 41-5-5 (1992). The qualifications include establishing financial responsibility by providing proof of malpractice liability insurance, and paying a surcharge. See id. Since the statute of repose does not apply to non-qualifying providers, malpractice claims against these providers are subject to a three-year statute of limitations, which begins to run when a plaintiff discovers an injury, or should have discovered it through reasonable diligence. See Roberts v. Southwest Cmty. Health Serv., 1992-NMSC-042, ¶¶ 19, 27, 114 N.M. 248, 837 P.2d 442.
- 4. § 41-5-13.
- 5. See Cummings v. X-Ray Assocs., 1996-NMSC-035, ¶ 51, 121 N.M. 821, 918 P.2d 1321.
- 6. See Garcia ex rel. Garcia v. La Farge, 1995-NMSC-019, ¶ 36, 119 N.M. 532, 893 P.2d 428, overruled in part by Cahn v. Berryman, 2018-NMSC-002, ¶ 22, ___ P.3d ___.
- 7. See id.
- 8. See id. ¶ 37.
- 9. See id. ¶ 38.
- 10. See Garcia, 1995-NMSC-019; Cummings, 1996-NMSC-035; Tomlinson v. George, 2005-NMSC-020, 138 N.M. 34, 116 P.3d 105.
- 11. See Garcia, 1995-NMSC-019.
- 12. See Cummings, 1996-NMSC-035.
- 13. See Tomlinson, 2005-NMSC-020.
- 14. Cahn, 2018-NMSC-002, ¶ 2.
- 15. See id., 2018-NMSC-002, ¶¶ 4-5.
- 16. Id. ¶ 4.
- 17. Id.
- 18. Id. ¶ 5.
- 19. Id. ¶ 6.
- 20. Id.
- 21. Id. ¶ 7.
- 22. See id. ¶ 8.
- 23. See id. ¶ 9.
- 24. Id. ¶ 10.
- 25. See Cahn v. Berryman, 2015-NMCA-078, 255 P.3d 58.
- 26. Cahn, 2018-NMSC-002, ¶ 2.
- 27. Id. ¶ 8.
- 28. Id. ¶ 1 (emphasis added).
- 29. See id. ¶ 16.
- 30. Id. ¶ 8 (quoting Roberts v. Sw. Cmty. Health Servs., 1992-NMSC-042, ¶ 27, 114 N.M. 248, 837 P.2d 442).
- 31. Id. ¶ 20.
- 32. Id. ¶ 26.
- 33. Id.
- 34. See id. ¶ 8.
- 35. See id.
- 36. Id. ¶ 2.
POSTED IN: Articles