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Rupp v. Hurley3/5/1999
{1} This case aptly illustrates the observation that procedural miscues can produce quite substantive consequences. The district court dismissed Plaintiff's medical malpractice action against her treating physicians because "Plaintiff failed to exercise reasonable diligence in serving process on the Defendant Doctors." Plaintiff appeals the dismissal, arguing that under Rules 1-012(G) and 1-012(H) NMRA 1999, Defendants waived the right to challenge the sufficiency of service upon them because they did not raise the issue in their first answer or in their first motion filed under Rule 1-012(B). Acknowledging that they did not mention any problems with service in their initial pleadings, Defendants offer a number of approaches to affirmance, including: (1) their motion was not premised solely on Rule 1-012(B)(5), but rather addressed broader inherent powers of the court; (2) their failure to meet the strict letter of Rule 1-012(H) should be excused because they were initially not aware that they had been named in the original complaint; (3) the trial court's order should be viewed as a sanction, reversible only for abuse of discretion; and (4) Plaintiff waived her Rule 1-012(H) objection by raising it too late. Unpersuaded, we reverse and remand.
FACTS AND PROCEEDINGS
{2} According to the complaint, on June 18, 1991, Defendants performed hip replacement surgery on Plaintiff. During the surgery, Plaintiff's right femur broke. Defendants elected to repair the break with a particular type of metal fracture plate which was used as a veterinary specialty plate. Approximately five weeks after the surgery, the metal plate broke, requiring additional surgery.
{3} On June 16, 1994, Plaintiff filed a complaint for personal injuries. The complaint asserted multiple causes of action against Defendants, including medical negligence, breach of contract and fiduciary duty, negligent infliction of emotional distress and various warranty claims. The complaint also stated a products liability claim against the "manufacturer/designer" of the metal plate. Also on June 16, 1994, Plaintiff filed an application with the Medical Review Commission pursuant to NMSA 1978, ยง 41-5-15 (1976). Defendants received notice of the Medical Review Commission application within a few days, and they were represented before the Medical Review Commission by the same counsel who represented them in the district court action. The Medical Review Commission met on November 3, 1994, and issued its unanimous decision in favor of Defendants the next day.
{4} The record reveals no activity in the district court from the date the complaint was filed until January 6, 1995, when Plaintiff filed an amended complaint. The amended complaint named a new entity as the manufacturer/designer of the plate and added another cause of action (fraud and lack of informed consent) against Defendants. The record reveals no effort by Plaintiff to serve Defendants with the original complaint prior to filing the amended complaint. Upon filing the amended complaint, Plaintiff sought to have new summonses issued, but apparently ran into some difficulty with the district court clerk's office doing so. New summonses were issued after the district court entered an order in April 1995. Plaintiff finally served Defendants with the amended complaint on May 15, 1995.
{5} Pursuant to an extension of time to which Plaintiff agreed, Defendants filed their first answer on July 17, 1995. The answer did not mention Rule 1-012(B)(5) or otherwise include a defense challenging the propriety or timeliness of service of process on Defendants. The answer did include a statute of limitations affirmative defense.
{6} Therea
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