Did 'occurrence' rule or 'discovery' rule apply re limitations?

CASE ON POINT: Majestas v. Jaeger, 152 P.3d 141 (2007) -NM

CASE FACTS: Betty Varela was a patient at the Dialysis Clinic, Inc. The Clinic was a private facility that served patients from the University of New Mexico School of Medicine. Pursuant to a contract between the Clinic and UNMH, UNMH furnished physicians to the Clinic. The Clinic physicians in this case, including Dr. Philip Zager, were employees of UNMH, a state agency. It was undisputed that Dr. Zager was a state employee and, therefore, covered under New Mexico's Tort Claims Act (TCA). On May 17, 1999, Betty Varela was undergoing dialysis at the Clinic. During her treatment, she began to experience serious difficultly breathing and was transported by EMT paramedics to Presbyterian Hospital, where she died shortly after her arrival. Petra Maestas was appointed representative of the dead patient's estate. In October of 1999, she hired counsel and obtain the autopsy report and findings from the Office of the Medical Examiner. Those documents attributed the decedent's death to angioedema of the face, throat, and tongue caused by an allergic reaction to the prescription drug Lisinopril. The autopsy report also indicated that the investigation of the Clinic's dialysis equipment and fluids showed "no abnormalities in the tubing, machines or compositions of the fluid," and the decedent's toxicology report contained nothing of significance. The personal representative of the estate also made an initial request for the Clinic's medical records in November or December of 1999. However, because the cost of obtaining the records was $500, she did not follow up on that request until August 2000. She received the Clinic's records in September 2000. In August 2000, she received the reports of the EMT paramedics who transported the decedent from the Clinic to the hospital. It was these records that first evidence the possibility of wronging. The EMT record stated that an unidentified employee at the Clinic informed one of the EMT paramedics that the decedent may have experienced a reaction to chlorine in her blood due to contamination of the dialysis machine used on the decedent at the Clinic. Based on this information, the personal representative, acting on behalf of the estate and on behalf of Joe Varela, a minor, brought suit against Dr. Zager, Drs. John Doe #1, John Doe #2, and the Clinic in Marcia 2000. The defendants filed a motion for summary judgment based on the assertion that the TCA requires the filing of a claim "within two years after the date of occurrence resulting in loss, injury or death." The trial court granted the defendants' motion for summary, judgment on the grounds that the statute of limitations had run. The plaintiff appealed.

COURT'S OPINION: The Supreme Court of New Mexico reversed the order of the trial court, which granted summary judgment for the defendants and remanded the case back to the court with directions to enter an order consistent with its decision. The court held, inter alia, that a cause of action for medical malpractice does not accrue until "the plaintiff knows or with reasonable diligence should have known of the injury and its cause. The court decided that the "Discovery, Rule" was applicable in this case. Accordingly, since the plaintiff tiled suit within two years alter she discovered the information in the EMT records, the court determined that the plaintiff's suit had been timely filed under the Discovery, Rule.

LEGAL COMMENTARY: The court stated that it has long recognized that the sensation of pain does not necessarily provide the average person with relevant information about an injury. The victim of medical malpractice is in a vulnerable position and should not be punished for his or her lack of medical expertise. "Although the plaintiff in a medical malpractice case may not require any special knowledge or training to know that she suffers from pain, in the absence of such knowledge or training, she may be unable to ascertain the cause of the pain...." Once a plaintiff has discovered that his or her injury and the cause of that injury, the statute of limitations begins to run. "It is not required that all the damages resulting from the negligent act be known before the statute of limitations begins to run." Also, the statute of limitations will not be tolled because the plaintiff has received divergent medical opinions from physicians concerning the cause of his or her injury. The court concluded that it had to apply the TCA statute of limitations to the facts of the case in order to determine whether the trial court's grant of summary judgment was appropriate. The court observed that the autopsy report, which the plaintiff received in the fall of 1999 failed to indicate what for the first time the plaintiff learned when she received the EMT records. How could the plaintiff be expected to know what was to be revealed to her in those records? Nothing had pointed in that direction until the plaintiff read those records. Then, for the first time, the plaintiff realized that there was an issue regarding whether chlorine contamination may have resulted in the decedent's death. Whether the plaintiff exercised reasonable diligence as required by the Discovery Rule was a question of fact that had to be decided by a jury. When there are genuine issues of material fact regarding when a statute of limitations begins to run, such issues are for juries to decide.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who Who in American Law, Who's Who in America and Who's Who in the World.