A recent case from the New Mexico Court of Appeals found that the statute of limitations on the negligent prescription of drugs begins to run on the date of the prescription, not the date of harm or the date of death.
The timeline of Chavez v. Delgado is pretty straightforward. The defendant doctor wrote a prescription on November 11, 2008. The patient did not fill the prescription until December 3, 2008. On December 8, 2008, the patient was hospitalized allegedly due to dangerous drug interactions caused by the negligent prescription. The patient passed away on February 21, 2010. The deceased patient’s estate brought a medical malpractice and wrongful death claim against the doctor and the hospital on December 1, 2011.
Importantly, the doctor was a qualified healthcare provider (QHP) under the New Mexico Medical Malpractice Act. Qualified healthcare provider’s enjoy significant benefits under the Medical Malpractice Act most at the expense of injured patients and their families. One very significant benefit is that medical malpractice claims against a qualified healthcare provider are governed by a statute of repose rather than a statute of limitations.
To get to the punch-line in this case, under a statute of repose, the statute of limitations began to run on the date of the prescription, not the date the injury was discovered or the date of death. As a result, the suit was filed outside the 3 year statute of limitations which would have run on November 11, 2008.
As you can see, the distinction if extremely important. You will also see just how unfair this particular protection can be to injured patients.
To begin, both a statute of limitations and a statute of repose govern the time period within which a lawsuit must be filed. The statute of limitations on medical malpractice claims against private doctors or medical providers in New Mexico is 3 years. The same 3 years applies in the case of a statute of repose. This is where the similarities end.
As the court pointed out in Chavez v. Delgado, the statute of limitations begins to run on the date that the cause of action accrues, which would typically begin on the date of injury or the date that the injury was discovered. To the contrary, a statute of repose begins to run on the date of the act of medical malpractice regardless of when the injury occurs or is discovered.
The distinction is critically important and is made only in the case of qualified healthcare providers. For those that are not qualified healthcare providers, there is a discovery rule that applies which means the statute of limitations would not begin to run until the injury is discovered.
In the Chavez v. Delgado case, the New Mexico Court of Appeals determined that the actual act of medical malpractice occurred on the date of the prescription on November 8, 2008. Therefore, the statute of limitations would run on November 8, 2011 putting the plaintiffs suit beyond the filing deadline.
The Court recognized that the rule can be harsh. The Court did not explicitly recognize the inherent unfairness of having the deadline run very close to or even after the actual injury is discovered. A fair question to ask at this point is how often could this really be an issue? In fact, this scenario is not that uncommon.
Perhaps the harshest example, though there are countless more, is the case of a failure to diagnose cancer. There can be a failure to diagnose a readily apparent cancer while it is not discovered by the patient until months or even years later. Unfortunately for the patient, once discovered, the patient may have already suffered irreparable harm.
In fact, the case relied upon most heavily by the Court of Appeals of Cummings v. X-Ray Associates of New Mexico, P.C, involved a failure to diagnose cancer and later metastasis of the patient’s cancer. The Court cited Cummings stating the triggering act is the act of malpractice and figuring the occurrence of malpractice:
“does not inquire into whether the act [of malpractice] caused an injury, whether the injury is immediate or latent, whether the injury is discovered or not. The focus of this term is on the act without regard to its consequences.”
You may say now as do I that this is grossly unfair to injured patients and their families to which the Court of Appeals would retort:
“Although the time limit can have harsh results, our courts have repeatedly found that the stringent time restriction on liability that Section 41-5-13 imposes is one of the key benefits the Legislature provided to health care providers when it enacted the MMA.”
Notably the Medical Malpractice Act comes up every legislative session in New Mexico but not as you might expect. The push is not to protect patients but to further protect medical providers and more importantly their insurers with proposed further restrictions on the rights of patients to seek compensation for injuries or death resulting from medical negligence.
And while injuries and deaths mount with recent estimates as high as 440,000 deaths per year from preventable medical error, patients, families and taxpayers are left to bear the toll of medical negligence.