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Juarez v. Nelson12/3/2002
in three years after the date that the act of malpractice occurred . . . .
Section 41-5-13 applies to wrongful death actions predicated on medical malpractice. Armijo v. Tandysh, 98 N.M. 181, 183, 646 P.2d 1245, 1247 (Ct. App. 1981), overruled on other grounds by Roberts v. Southwest Cmty. Health Servs., 114 N.M. 248, 254, 837 P.2d 442, 448 (1992).
Section 41-5-13 was enacted "in response to a perceived medical malpractice insurance crisis in New Mexico." Roberts, 114 N.M. at 251, 837 P.2d at 445. In enacting Section 41-5-13, the Legislature rejected a discovery-based approach to accrual; and instead, by codifying a date-of-the-negligent-act rule, "specifically chose to insulate qualified health care providers from the much greater liability exposure that would flow from a discovery-based accrual date." Id. at 252, 837 P.2d at 446.
The New Mexico legislature apparently concluded that the potential for a malpractice suit being filed long after the act of malpractice was one of the reasons that insurance carriers were withdrawing from medical malpractice liability coverage. The legislature's solution . . . was to preclude almost all malpractice claims from being brought more than three years after the act of malpractice. Cummings v. X-Ray Assocs. of N.M., 1996-NMSC-035, 40, 121 N.M. 821, 918 P.2d 1321 (1996).
Under Section 41-5-13, the three-year period within which a malpractice action must be brought begins "to run from the time of the occurrence of the act giving rise to the cause of action." Kern v. St. Joseph's Hosp., Inc., 102 N.M. 452, 455, 697 P.2d 135, 138 (1985).
The continuous treatment doctrine operates in the following manner:
f the treatment by the doctor is a continuing course and the patient's illness, injury or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care, the statute does not commence running until treatment by the doctor for the particular disease or condition involved has terminated. 1 Davis W. Louisell & Harold Williams Wachsman, Medical Malpractice ยง 13.03 at 13-36 (1982) (quoted in Lane v. Lane, 752 S.W.2d 25, 26-27 (Ark. 1988)).
Proponents of the continuous treatment doctrine justify it on the following grounds:
Two rationales support the continuous treatment doctrine. Under the first rationale, it is not reasonable to expect a patient under continuing care of a doctor to discover that the doctor's acts may be the cause of the injury .
Four interrelated concerns underlie this rationale. First, a negligent doctor may conceal important information from a patient during treatment. Second, a confidential relationship between doctor and patient might inhibit the patient from questioning the care given during the existence of the relationship. Third, the chance that investigating the cause of an injury will interrupt care weighs against requiring a patient to discover an injury during the course of continuous treatment. Last, the need for flexibility in determining the cause of a latent injury supports the rationale.
The second rationale holds that it is absurd to expect a patient who is being treated by a doctor or hospital to interrupt corrective treatment by instituting suit against either while under their continuing care. This rationale recognizes that a patient's relationship with those caring for the patient is based upon trust in their medical skills. So if corrective treatment is necessary, it would be contrary to the patient's own interest in the patient's cure and recovery to disrupt the relationship by suing those caring for the patient. In these circumstances, it would make no sense to require
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