NM Court of Appeals: 10.5 months was sufficient time to file medical malpractice lawsuit

The New Mexico Medical Malpractice Act creates a statute of repose, not a statute of limitations. This means that a medical negligence lawsuit against a qualified healthcare provider must be filed within three years of the malpractice, regardless of whether the patient has discovered the malpractice.

The New Mexico Supreme Court, however, has held that where a patient discovers the injury within the three-year period, the due process clause of the New Mexico Constitution requires that the patient be given a sufficient time in which to file suit. The Supreme Court has held that a patient who discovered an injury only 85 days before the statute of repose had a constitutionally insufficient time to file suit, but in another case that 18 months was sufficient.

In this case, Sara Cahn alleged that the defendant, Dr. Berryman, negligently failed to inform her of an ultrasound finding of a “complex mass” on one of her ovaries. Over two years later, she discovered that this mass was ovarian cancer. At that time, Ms. Cahn had 10.5 months left to sue Dr. Berryman.

But Ms. Cahn did not remember Dr. Berryman’s name, and her efforts (and those of her attorney) to discover his name were unsuccessful before the three-year deadline expired. She later found his name and sued him, but the trial court dismissed her claims based on the statute of repose.

The Court of Appeals, in a majority opinion (Cahn v. Berryman) by Chief Judge Michael Vigil, held that 10.5 months was a constitutionally sufficient time in which to file a lawsuit. The information that could have led Ms. Cahn to timely discover Dr. Berryman’s name was under her control the entire time, and her failure to discover his name did not mean that the time period was unconstitutionally short.

Judge Monica Zamora dissented, arguing that Ms. Cahn faced numerous obstacles which prevented her from discovering Dr. Berryman’s name, despite her diligent efforts to do so. This meant that 10.5 months was too short a period of time.

The lesson here seems pretty clear — if you’re a plaintiff’s lawyer contemplating a medical malpractice action, you’ve got to do everything you can to figure out who all of your client’s medical providers were.

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