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No Statute Of Limitation Protection Where Wrong Health Care Provider Named Before Medical Review Commission

When a person is injured, he or she has a certain time limit for filing a lawsuit. This is referred to as the statute of limitations. In New Mexico, the length of the statute of limitations varies depending upon the type and circumstances of the case.

For example, in New Mexico, the statute of limitation in most medical malpractice matters is three years. In short, a person wishing to bring a lawsuit for medical malpractice has three years from the date of the injury to file a lawsuit.

In some cases, the 3 year statute of limitations may not begin to run until the injury is discovered. For qualified healthcare providers, an injured plaintiff or his estate must first bring a claim before the New Mexico Medical Review Commission (MRC).

Bringing the claim with the MRC will toll (stop) the running of the statute of limitations. The question arises whether naming the wrong doctor in the MRC claim will toll the statute of limitations for the claims against the appropriate doctor. The short answer to this question is NO!

The New Mexico Court of Appeals, in Meza v. Topalovski, reviewed just this question (i.e. whether providing the wrong health care provider in an application to the New Mexico Review Commission would allow a plaintiff to apply that filing date to another health care provider for the purposes of the statute of limitations).

In Meza, an ultrasound revealed a spot on the plaintiff‘s left kidney. As a result, the plaintiff‘s surgeon recommended surgery to remove the growth. The plaintiff agreed to the surgery and the surgeon removed the mass of tissue from the plaintiff‘s kidney. The removed growth was sent to the defendant for a “frozen section” evaluation. The defendant diagnosed the tissue specimen as cancerous, resulting in the plaintiff electing to have her entire left kidney removed. Several weeks later, on February 27, 2006, the plaintiff‘s treating physician informed the plaintiff that the original mass of tissue taken from her kidney was benign.

After finding out about the non-cancerous diagnosis from the original mass, the plaintiff filed an application for review with the Medical Review Commission on December 11, 2008, alleging a malpractice claim against the wrong doctor. The application did not allege a malpractice claim against the defendant. On March 23, 2009, more than 3 years since the erroneous specimen test by the defendant, the plaintiff filed an amended application for review with the Medical Review Commission alleging a malpractice claim against the defendant.

The Medical Review Commission issued its final decision on July 28, 2009, and the plaintiff filed a complaint against the defendant in district court shortly afterwards. The defendant filed a motion for summary judgment to dismiss the plaintiff‘s claim because she did not file her lawsuit within the three year statute of limitations for medical malpractice cases.

The plaintiff‘s complaint was filed more than three years after she discovered the alleged medical malpractice on February 27, 2006. While she did file her initial claim with the Commission within the three-year statute of limitations, she did not name the correct doctor.

The Commission does allow plaintiffs to add or delete parties with proper notice; however, those changes may only occur if they are consistent with New Mexico law, including the three-year statute of limitations. In this case, the plaintiff did not comply with the three-year statute of limitations, and at the time she sought to add the defendant the deadline had already passed.

Even if the plaintiff did not realize that the defendant was the physician performing the initial diagnosis on her kidney tissue, it was her duty, as the party filing the medical malpractice claim, to investigate and evaluate her claim including obtaining her medical records. As a result, the plaintiff could not claim that her statute of limitations period began when she discovered that the defendant performed the diagnosis. Consequently, her case was dismissed on summary judgment.

In short, her claim was barred from moving forward. Interesting to note, it appears from the Court of Appeals case caption that all the plaintiff‘s claims were filed pro se without an attorney. This illustrates another important point about medical malpractice claims. Medical malpractice claims are very complicated. It is highly advisable to seek the guidance of an experienced personal injury attorney.

DISCLAIMER

Related Reading:
Medical Malpractice Claims Raise Unique Statute of Limitations Issues
New Mexico Statute of Limitations & Exceptions — Time is Always of the Essence!
Tolling of Statute of Limitations is Rare

Collins & Collins, P.C.
Albuquerque Attorneys

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