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Cummings v. X-Ray Associates of New Mexico5/31/1996
FRANCHINI, Justice.
{1} This case concerns the proper interpretation of Section 41-5-13 from the Medical Malpractice Act, NMSA 1978, §§ 41-5-1 to -29 (Repl. Pamp. 1989 & Cum. Supp. 1995), which requires a claim for medical malpractice be "filed within three years after the date that the act of malpractice occurred." Andrea Cummings filed a malpractice claim against X-Ray Associates for failing to properly diagnose a cancerous mass in her lung. We conclude that the limitation period in Section 41-5-13 is constitutional and that Cummings' malpractice claim is barred by the statutory three-year limit.
I. FACTS
{2} In 1986 Cummings was hired as a nurse by Heights General Hospital [hereinafter Hospital]. She was required by the Hospital to undergo a pre-employment physical, which included a chest x-ray performed by X-Ray Associates. The radiology report, dated February 17, 1986, showed a mass in her left lung. The radiologists at X-Ray Associates interpreted the mass as a probable "arteriovenous malformation" known as an AVM. A pulmonary AVM is an "abnormal passageway between an artery and vein that occurs in the blood vessels of the lungs." Applied Medical Informatics, Inc., Medical House Call on the Net, http://www.ami-med.com/mhc/top/001090.htm (Internet 1996). Cummings was told that the AVM was akin to an internal birthmark and was harmless.
{3} Cummings had a follow up CT-scan at the Hospital the following June which revealed the lung mass as well as a mass on her right kidney that had not been detected by the radiologists at X-Ray Associates. In a report dated June 16, 1986, the lung mass in the CT-scan was described as a probable AVM.
{4} About two years later, on August 10, 1988, Cummings had routine pre-operative chest x-ray prior to undergoing surgery for a hysterectomy. The x-ray apparently was performed once again by X-Ray Associates. As before, the x-ray revealed the mass in her lung, and the radiologist sought to have this x-ray compared with prior x-rays. Unfortunately, the previous x-ray reports had been misfiled by the Hospital. The radiologist evidently accepted Cummings' word that the mass was an AVM.
{5} About a year and a half later, on January 17, 1990, Cummings underwent kidney and gallbladder surgery. The pre- and post-operation medical reports indicated that the masses on her lung and kidney needed further investigation.
{6} On February 23, 1990, a medical report was issued finding that the masses on her lung and kidney were cancer. This was Cummings' first indication that the AVM diagnosis was completely erroneous. The cancer was surgically removed along with the left upper lobe of her lung and her right kidney on March 6, 1990. Subsequent testing and examination suggested that the cancer had not spread to other parts of her body, a phenomenon known as metastasis. Her physician stated, however, he could give her no guarantees that the cancer had not metastasized.
{7} Further examinations over the next two years revealed no metastasis until a medical report dated January 8, 1992, revealed the discovery of tissue abnormalities. About January 24, Cummings' physicians determined that the lung cancer had metastasized. The spread of the cancer portended an extremely bleak prognosis for Cummings.
{8} About six months later, on July 13 and July 27, 1992, Cummings filed malpractice claims against the Hospital and its various corporate affiliates for the injuries she suffered as a result of the metastases of the lung cancer. X-Ray Associates was first brought into the lawsuit on November 9, 1992, by a third party complaint filed by one of the Hospital's affiliates. Another year p
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