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Juarez v. Nelson12/3/2002
il discovery in the present case, and by Dr. Nelson's failure to inform the Ledezmas that he had been in private practice for only six months, and that he had failed the board examination in internal medicine. PHS filed a motion for summary judgment in which it argued that to the extent Plaintiffs' claims against PHS were based on PHS's vicarious liability for Dr. Nelson's malpractice, PHS was entitled to assert the limitations defense available to its employee, Dr. Nelson. The district court ruled that Plaintiffs had failed to demonstrate a genuine issue of material fact as to circumstances that would avoid application of Section 41-5-13 to their claims. The district court entered summary judgment in favor of Dr. Nelson as to "all matters in dispute" between Plaintiffs and Dr. Nelson. The district court granted partial summary judgment in favor of PHS, ruling that any claims against PHS based on the actions of Dr. Nelson were barred by Section 41-5-13. The district court certified the order granting partial summary judgment to PHS as final pursuant to Rule 1-054(B)(1).
DISCUSSION
1. Dr. Nelson
a. Continuous Treatment Doctrine
Plaintiffs argue that the running of the three-year period of Section 41-5-13 was tolled by the "continuous treatment doctrine." The question of whether the continuous treatment doctrine is compatible with Section 41-5-13 presents a question of statutory interpretation, which we review de novo: " hen summary judgment depends entirely on the interpretation of a statute, . . . we will review the trial court's construction of the statute de novo." Wilson v. Denver, 1998-NMSC-016, 13, 125 N.M. 308, 961 P.2d 153 (citations omitted).
In Ealy v. Sheppeck, 100 N.M. 250, 669 P.2d 259 (Ct. App. 1983), we considered the continuous treatment doctrine as a matter of first impression in New Mexico. Examining cases from other jurisdictions, we found dispositive the requirement that for the continuous treatment doctrine to apply the defendant physician must have provided "continuous medical service." Id. at 251, 669 P.2d at 260 (citing with approval Davis v. City of New York, 342 N.E.2d 516 (N.Y. 1975)). We held on the particular facts of Ealy that the plaintiff had not made out a case that the defendant, a radiologist consulted by the patient's treating physician, had provided continuous treatment to the patient. Id. Our research indicates that Ealy is something of a dead end: we could find no later cases relying on Ealy as authority for the proposition that New Mexico recognizes the applicability of the continuous treatment doctrine to qualified health care providers.
In Ealy, we applied the continuous treatment doctrine without addressing the logically antecedent question of whether the continuous treatment doctrine is compatible with Section 41-5-13. Here, in contrast to Ealy, Plaintiffs came forward with evidence that Dr. Nelson examined Mr. Ledezma in January and February 1995, adopted a treatment plan, prescribed medicine pursuant to that plan and scheduled a ninety-day periodic review for June 1, 1995. This evidence was sufficient to demonstrate a genuine issue of fact as to Dr. Nelson's provision of "continuous medical services" to the date of Mr. Ledezma's death and to materially distinguish the present case from Ealy. We therefore take the present opportunity to address the relationship of the continuous treatment doctrine to Section 41-5-13.
Section 41-5-13 provides as follows:
No claim for malpractice arising out of an act of malpractice which occurred subsequent to the effective date of the Medical Malpractice Act . . . may be brought against a health care provider unless filed with
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