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Juarez v. Nelson12/3/2002
This matter comes before the Court upon the unopposed motion for rehearing of Appellee Presbyterian Health Services. We grant the motion for rehearing and substitute the following opinion in place of our opinion filed 10-21-02.
In this appeal we address the issue of whether the "continuous treatment doctrine" is compatible with the statute of repose of the Medical Malpractice Act. We hold that it is not. We also address the issue of whether the running of the statute of repose was tolled by fraudulent concealment. We conclude that the district court properly granted summary judgment against Plaintiffs on the issue of fraudulent concealment. Lastly, we address the question of whether a vicarious liability malpractice claim against an employer that is not a qualified health care provider must be dismissed when the claim against the employee is barred by the statute of repose of the Medical Malpractice Act. We hold that the statute of repose of the Medical Malpractice Act, as a benefit of the act, is not available to an employer that is not itself a qualified health care provider.
BACKGROUND
Rodolfo Ledezma died on May 28, 1995. At the time of his death, Mr. Ledezma was a patient of Defendant, Kirk L. Nelson, D.O., who started treating Mr. Ledezma for a heart condition in January 1995. Mr. Ledezma's last office visit with Dr. Nelson occurred on February 28, 1995. Mr. Ledezma was to have seen Dr. Nelson on June 1, 1995, for a scheduled ninety-day review. However, on May 28, 1995, Dr. Nelson was called to the emergency room of Plains Regional Medical Center after Mr. Ledezma had been brought in suffering from an apparent heart attack. Dr. Nelson and emergency room personnel were unable to resuscitate Mr. Ledezma, and Mr. Ledezma was pronounced dead. In a "Death Summary" dictated by Dr. Nelson on May 28, 1995, Dr. Nelson stated the cause of death as " ardiovascular collapse, most likely secondary to a massive pulmonary embolus" and " istory of hypertension." An autopsy performed by the medical examiner confirmed that Mr. Ledezma died from a heart attack.
On May 27, 1998, Luis B. Juarez, as next friend of Mr. Ledezma's minor son, Rudy Ledezma II, and as personal representative under the wrongful death act; Dolores G. Ledezma, as surviving spouse; Melissa Lynn Ledezma-Crowe, Teresa Ann Ledezma, and Rebecca L. Ledezma, as surviving children (Plaintiffs), filed a "Complaint to Recover Wrongful Death Damages Due to Medical Negligence" naming as Defendants Dr. Nelson and Dr. Nelson's employer, Presbyterian Healthcare Services (PHS). Plaintiffs alleged that Dr. Nelson and PHS were negligent in diagnosing and treating Mr. Ledezma's heart condition. Plaintiffs did not allege that Dr. Nelson or PHS provided Mr. Ledezma with substandard care in the emergency room on May 28, 1995.
In December 1999 Dr. Nelson filed a motion for summary judgment asserting that the complaint had not been filed within the time allowed by NMSA 1978, ยง 41-5-13 (1976). Dr. Nelson relied on his status as a qualified heath care provider and upon the undisputed fact that he had not seen Mr. Ledezma between February 28, 1995, the date of the last office visit, and May 28, 1995, the date Mr. Ledezma arrived in the emergency room suffering from a heart attack. In response to Dr. Nelson's motion, Plaintiffs argued that undisputed evidence that Dr. Nelson had scheduled a June 1, 1995, return visit supported tolling of the limitations period under "continuing treatment" and "continuing tort" theories. Plaintiffs also argued that the limitations period should be tolled by Dr. Nelson's allegedly fraudulent concealment of certain medical records of Mr. Ledezma's that were not produced unt
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