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Juarez v. Nelson12/3/2002
the patient to sue. Langner v. Simpson, 533 N.W.2d 511, 519-20 (Iowa 1995) (citations omitted).
In construing Section 41-5-13, "our primary focus is to ascertain and give effect to the intent of the legislature." Roberts, 114 N.M. at 251, 837 P.2d at 445. We presume that the Legislature, in enacting the Medical Malpractice Act, "canvassed the current trends in malpractice law," id. at 252, 837 P.2d at 446, including the continuous treatment doctrine, Cunningham v. Huffman, 609 N.E.2d 321, 324 (Ill. 1993) (concluding that Illinois General Assembly was aware of continuous treatment doctrine and "purposefully declined to act" when it enacted medical malpractice statute of repose without expressly providing for continuous treatment exception to four-year statute of repose).
By deferring the point in time at which an instance of malpractice becomes time-barred, the continuous treatment doctrine would allow claims to be brought more than three years after the act of malpractice occurred. Superimposing the continuous treatment rule onto Section 41-5-13 would re-introduce the problem of "the potential for a malpractice suit being filed long after the act of malpractice." Cummings, 1996-NMSC 035, 40. This is the very problem that the Legislature intended to eliminate when it enacted Section 41-5-13. We hold that the continuous treatment doctrine is incompatible with the public policy of New Mexico as expressed in Section 41-5-13. See Young v. Williams, 560 S.E.2d 690, 693 (Ga. 2002) (rejecting continuous treatment doctrine; observing that medical malpractice statute of limitations does not provide for the commencement of the period of limitation upon the termination of the health-care provider's treatment of the patient, and the judicial branch is not empowered to "engraft" continuous treatment doctrine onto what the legislature has enacted). We hereby repudiate any statements in Ealy suggesting that New Mexico applies the continuous treatment doctrine to toll Section 41-5-13.
b. Continuing Tort
Plaintiffs argue that we should treat "the singular act of failing to refer out up to and including the date of death" as " he act of malpractice." Plaintiffs refer us to Martinez-Sandoval v. Kirsch, 118 N.M. 616, 623, 884 P.2d 507, 514 (Ct. App. 1994), where we noted with apparent approval the rule that where a series of actions by a defendant results in one indivisible harm, the plaintiff has one indivisible cause of action. Our own research indicates that there is well-reasoned authority for the proposition that an act of malpractice can consist of a course of negligent conduct. See Cunningham, 609 N.E.2d at 325 (rejecting continuous treatment doctrine, but recognizing that "occurrence" for purposes of statute of repose may include a "continuing negligent course of treatment for a specific condition"). We ourselves appear to have assumed, without expressly addressing the issue, that an entire course of treatment may be aggregated for purposes of determining the date from which Section 41-5-13 begins to run. E.g., Keithley v. St. Joseph's Hosp., 102 N.M. 565, 567, 698 P.2d 435, 437 (Ct. App. 1984) (assuming without explanation that in case alleging six-week course of negligence in calculating and delivering radiation therapy Section 41-5-13 runs from date of last radiation treatment).
Even if we were to treat Dr. Nelson's alleged negligent failure to refer Mr. Ledezma to a specialist as a single, continuing act of malpractice, Plaintiffs' continuing tort theory is of no assistance unless Dr. Nelson's alleged failure to "refer out" continued up to and through at least May 27, 1995. There is no dispute that Dr. Nelson did not examine Mr. Ledezma between February
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