                                                   I attest to the accuracy and
                                                    integrity of this document
                                                      New Mexico Compilation
                                                    Commission, Santa Fe, NM
                                                   '00'05- 14:12:54 2011.11.23
Certiorari Granted, October 12, 2011, No. 33,166

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-112

Filing Date: May 9, 2011

Docket No. 30,343

CHRISTUS ST. VINCENT REGIONAL
MEDICAL CENTER,

       Third-Party Plaintiff-Appellee,

v.

RAMON DUARTE-AFARA, M.D., and
MARK WADE DICKINSON, M.D.,

       Third-Party Defendants-Appellants.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Barbara J. Vigil, District Judge

Hinkle, Hensley, Shanor & Martin, L.L.P.
William P. Slattery
David B. Lawrenz
Santa Fe, NM

for Appellee

Allen, Shepherd, Lewis, Syra & Chapman, P.A.
E.W. Shepherd
J. Adam Tate
Albuquerque, NM

for Appellant Duarte-Afara, M.D.

Butt, Thornton & Baehr, P.C.
W. Ann Maggiore
Emily A. Franke
Albuquerque, NM


                                           1
for Appellant Dickinson, M.D.

                                         OPINION

CASTILLO, Chief Judge.

{1}    The primary issue before us is whether the claim of Christus St. Vincent Regional
Medical Center (Medical Center) for equitable indemnification is a malpractice claim
governed by the Medical Malpractice Act (MMA), NMSA 1978, §§ 41-5-1 to -29 (1976, as
amended through 2008), and subject to the three-year statute of repose provided by Section
41-5-13 of the MMA. We hold that Medical Center’s claim is governed by the MMA and
subject to Section 41-5-13. We also consider whether due process and equal protection
concerns preclude application of Section 41-5-13 and conclude that they do not.
Accordingly, we reverse.

BACKGROUND

{2}     On December 6, 2004, Lillian Martinez (Martinez) received a hysterectomy at
Medical Center. Several days later, on December 9 and 10, she developed respiratory
problems and ultimately suffered brain damage. On December 4, 2007, almost three years
later, Martinez filed a complaint against Medical Center under the MMA alleging medical
malpractice. Specifically, Martinez alleged that Medical Center failed to adequately monitor
her after surgery, administered inappropriate and/or excessive medications, failed to timely
and properly diagnose and treat her respiratory problems, and failed to timely diagnose and
treat her while she was experiencing a significant life-threatening medical emergency.

{3}    Martinez filed an application for panel review with the New Mexico Medical Review
Commission on March 6, 2008, asking the commission to, in part, review the conduct of Dr.
Duarte-Afara and Dr. Dickinson (Doctors), the physicians who treated her at Medical Center
and Appellants in this case. On March 12, 2008, Martinez amended her December 4, 2004
complaint against Medical Center to include Doctors.

{4}    In response to Martinez’s amended complaint, Doctors filed motions for summary
judgment in June 2008 asserting that Martinez’s claims against them were barred by the
three-year time period set forth in Section 41-5-13 of the MMA. Id. (stating that “[n]o claim
for malpractice arising out of an act of malpractice . . . may be brought against a health care
provider unless filed within three years after the date that the act of malpractice occurred”).
The district court agreed with Doctors and dismissed Martinez’s claims against Doctors with
prejudice.

{5}     On December 22, 2008, Medical Center filed a third-party complaint for
indemnification against Dr. Duarte-Afara in which Medical Center sought indemnification
in the amount, if any, for which it may be found vicariously liable for Dr. Duarte-Afara’s
malpractice. On March 19, 2009, Medical Center amended its third-party complaint to

                                              2
include an indemnification claim against Dr. Dickinson.

{6}     In response to Medical Center’s amended third-party complaint, Doctors filed a
motion to dismiss, arguing that Medical Center’s indemnification claim was also barred by
Section 41-5-13. Medical Center countered that Section 41-5-13 is not controlling, claimed
that the four-year statute of limitations provided in NMSA 1978, Section 37-1-4 (1929)
governed their amended third-party complaint, and asserted that its indemnification claim
could proceed. The district court agreed with Doctors and granted their motion to dismiss.

{7}     In March 2010, the district court granted Medical Center’s motion to reconsider the
court’s dismissal of its claims against the Doctors. The court determined that “[b]ecause this
matter is a claim for indemnification rather than malpractice . . . Section 41-5-13 . . . is
inapplicable[,]” and further determined that “[t]he statutory time limit for the third-party
claims for indemnification in this matter does not begin to run until the claim of indemnity
accrues, which is at the time of payment of the underlying claim, judgment, or settlement,
and not from the time that the underlying damage occurred to [Martinez].” We accepted
Doctors’ request for interlocutory review on the issue of the applicability of the MMA and
Section 41-5-13 to Medical Center’s indemnification claim against Doctors.

DISCUSSION

{8}     On appeal, Doctors argue, as they did below, that Medical Center’s indemnification
claim is governed by the MMA and subject to Section 41-5-13. Because, as explained
below, we agree with this argument, we also address Medical Center’s contention that
application of Section 41-5-13 would deprive them of their due process and equal protections
rights.

Applicability of the MMA and Section 41-5-13

{9}      To address Medical Center’s indemnification claim, we must construe Section 41-5-
13 as it applies to the facts of this case. We review such matters de novo. Bd. of Comm’rs
of Rio Arriba Cnty. v. Greacen, 2000-NMSC-016, ¶ 4, 129 N.M. 177, 3 P.3d 672 (“This is
primarily a matter of statutory construction and thereby concerns a pure question of law,
subject to de novo review.”); Ponder v. State Farm Mut. Auto. Ins. Co., 2000-NMSC-033,
¶ 7, 129 N.M. 698, 12 P.3d 960 (“We review de novo the [district] court’s application of the
law to the facts in arriving at its legal conclusions.”). “This Court’s primary goal when
interpreting statutes is to further legislative intent.” Jordan v. Allstate Ins. Co., 2010-
NMSC-051, ¶ 15, 149 N.M. 162, 245 P.3d 1214. To determine legislative intent, “we look
to the language used and consider the statute’s history and background.” Key v. Chrysler
Motors Corp., 121 N.M. 764, 768-69, 918 P.2d 350, 354-55 (1996). We begin by examining
the history and purpose behind the MMA and Section 41-5-13.

{10} The MMA was enacted in response to a perceived malpractice insurance crisis in
New Mexico. Roberts v. Sw. Cmty. Health Servs., 114 N.M. 248, 251-52, 837 P.2d 442,
445-46 (1992). Through the MMA, the Legislature made professional liability insurance
available to health care providers but conditioned availability to that insurance on a quid pro


                                              3
quo: health care providers could receive the benefits of the MMA only if they became
qualified health care providers under the MMA and accepted the burdens of doing so. Id.;
see also Cummings v. X-Ray Assocs. of N.M., P.C., 1996-NMSC-035, ¶¶ 27-29, 121 N.M.
821, 918 P.2d 1321 (discussing the benefits and burdens of participation in the MMA).

{11} Section 41-5-13 is one benefit health care providers receive in accepting the burdens
of the MMA. See Cummings, 1996-NMSC-035, ¶ 29 (describing the Legislature’s decision
to enact Section 41-5-13 as one of the “[t]he most notable” benefits under the MMA);
Roberts, 114 N.M. at 252-53, 837 P.2d at 446-47 (identifying Section 41-5-13 as one of the
benefits inuring to qualified health care providers under the MMA). This provision provides
the following:

               No claim for malpractice arising out of an act of malpractice which
       occurred subsequent to the effective date of the [MMA] may be brought
       against a health care provider unless filed within three years after the date
       that the act of malpractice occurred except that a minor under the full age of
       six years shall have until his ninth birthday in which to file. This section
       applies to all persons regardless of minority or other legal disability.

Section 41-5-13 (alteration omitted).

{12} Section 41-5-13 addressed one of the reasons insurance carriers were withdrawing
from medical malpractice: the potential for malpractice liability coverage suits being filed
long after the act of malpractice. Cummings, 1996-NMSC-035, ¶ 40. Our Supreme Court
has previously concluded that the plain language of Section 41-5-13 demonstrates that the
Legislature intended the “occurrence rule” to govern claims controlled by the MMA.
Cummings, 1996-NMSC-035, ¶¶ 47-48. The occurrence rule fixes the accrual date in which
a patient must file a claim for medical malpractice at the time of the act or occurrence of
medical malpractice even if the patient is oblivious of any harm. See id. ¶ 47. As such,
Section 41-5-13 will function, under certain circumstances, as a statute of repose. See
Cummings, 1996-NMSC-035, ¶¶ 48-50 (describing the circumstances under which Section
41-5-13 may function either as a statute of limitations or as a statute of repose and explaining
that “a statute of repose terminates the right to any action after a specific time has elapsed,
even though no injury has yet manifested itself”). Having established the general principles
that guide our analysis, we turn now to the more specific question of whether Medical
Center’s indemnification claim is governed by the MMA and thus subject to Section 41-5-
13.

{13} The MMA comprehensively defines what constitutes a “malpractice claim.” See §
41-5-3(C).

       “[M]alpractice claim” includes any cause of action arising in this state
       against a health care provider for medical treatment, lack of medical
       treatment or other claimed departure from accepted standards of health care
       which proximately results in injury to the patient, whether the patient’s claim
       or cause of action sounds in tort or contract, and includes but is not limited


                                               4
       to actions based on battery or wrongful death; “malpractice claim” does not
       include a cause of action arising out of the driving, flying or nonmedical acts
       involved in the operation, use or maintenance of a vehicular or aircraft
       ambulance[.]

Id. Our Supreme Court has observed that the breadth of this language indicates that “[t]he
[L]egislature foresaw and intended broad application of the concept of a ‘malpractice
claim.’” Wilschinsky v. Medina, 108 N.M. 511, 517, 775 P.2d 713, 719 (1989). The
question we must answer is whether an equitable indemnification claim falls within the
ambit of this broadly defined concept. To answer that question we must examine the nature
of a claim for indemnification.

{14} New Mexico recognizes “both traditional and proportional equitable
indemnification.” N.M. Pub. Schs. Ins. Auth. v. Arthur J. Gallagher & Co., 2008-NMSC-
067, ¶ 23, 145 N.M. 316, 198 P.3d 342. “Traditional indemnification grants the person who
has been held liable for another’s wrongdoing an all-or-nothing right of recovery from a
third party, such as the primary wrongdoer.” Id. “[P]roportional indemnification allows a
defendant to seek partial recovery from another for his or her fault.” Id. Medical Center has
not specified which of these two theories of indemnification it has invoked. Nevertheless,
our Supreme Court has explained that, under either theory, “to state a claim for equitable
indemnification, the indemnitor must be at least partly liable to the original plaintiff for his
or her injuries.” Id. ¶ 28 (emphasis omitted). In other words, “[a] properly pled indemnity
claim must allege that the defendant [or indemnitor] caused some direct harm to a third party
and that the plaintiff or [indemnitee] discharged the resulting liability from this harm.” Id.
¶ 30. This doctrinal point is, in our view, determinative.

{15} As discussed above, the Legislature intended that the term “malpractice claim” be
construed broadly. Wilschinsky, 108 N.M. at 517, 775 P.2d at 719. Indeed, a claim may be
construed as a malpractice claim within the meaning of the MMA if “the gravamen of the
third-party action is predicated upon the allegation of professional negligence by a practicing
physician.” Id. at 517-18, 775 P.2d at 719-20 (internal quotation marks and citation
omitted). We discern from Gallagher that the gravamen of Medical Center’s equitable
indemnification claim is predicated upon the allegation that Doctors negligently caused, and
were partly liable for, Martinez’s injuries. As such, we hold that Medical Center’s equitable
indemnification claim is a malpractice claim as that term is used in the MMA and is,
therefore, subject to Section 41-5-13.

{16} We reach this conclusion, in part, so as to carry out the policy goals the Legislature
intended by enacting the MMA and Section 41-5-13. See C. de Baca v. Baca, 73 N.M. 387,
392, 388 P.2d 392, 396 (1964) (“It accordingly devolves upon us to interpret the statute so
as to accomplish the ends sought by the [L]egislature.”). In effect, Medical Center’s
equitable indemnification claim exposes Doctors to the identical liability to which they were
subject under Martinez’s claims. Martinez’s claims were properly dismissed as untimely.
To permit Medical Center’s claim to proceed where Martinez’s claim could not, would, in
our view, elevate form over substance and frustrate the underlying concerns which motivated
our Legislature to enact the MMA and Section 41-5-13—that is, relieving insurers and health


                                               5
care providers from the uncertainty posed by stale malpractice claims. Cummings, 1996-
NMSC-035, ¶ 40.

{17} We are unpersuaded by Medical Center’s varying arguments that its indemnification
claim is not governed by the MMA. Citing Budget Rent-A-Car Systems, Inc. v. Bridgestone
Firestone N. Am. Tire, LLC, 2009-NMCA-013, ¶ 21, 145 N.M. 623, 203 P.3d 154, Medical
Center first argues that the limitation period for an indemnification claim begins to run “at
the time of payment of the underlying claim, payment of a judgment, or payment of a
settlement.” Medical Center further contends that “a third-party plaintiff’s cause of action
for indemnification or contribution is distinct from the tort claim asserted by the plaintiff
against the defendant in the underlying suit.” Medical Center cites a variety of out-of- state
authority for this proposition, see State ex rel. General Electric Co. v. Gaertner, 666 S.W.2d
764, 766 (Mo. 1984) (en banc); State Farm Mut. Auto. Ins. Co. v. Schara, 201 N.W.2d 758,
759 (Wis. 1972); Duncan v. Beres, 166 N.W.2d 678, 687 (Mich. Ct. App. 1968), which we
have duly considered.

{18} These cases all point to the well-settled proposition that a cause of action for
indemnification is separate and distinct from the underlying tort. See Maurice T. Brunner,
When Statute of Limitations Commences to Run Against Claim for Contribution or Indemnity
Based on Tort, 57 A.L.R.3d 867, § 4[a] (1974) (“The cause of action for indemnity of one
whose liability for a tort is secondary or constructive, against one whose liability for the tort
is primary, is separate and distinct from the injured person’s cause of action for the tort, and
is generally recognized not to be a mere species of subrogation to the tort cause of action.
It is inchoate until judgment is rendered or the claim is settled.” (footnotes omitted)). We
do not dispute this point of law. However, this point does not undermine our confidence in
the conclusion that Medical Center’s indemnification claim does fall within the ambit of the
term “malpractice claim” as that term is used in the MMA. As discussed above, the
controlling inquiry in determining whether a claim constitutes a “malpractice claim” under
the MMA is merely whether the gravamen of the claim is predicated upon the allegation of
professional negligence. We have concluded that this is the case. As such, Medical Center’s
claim is governed by the MMA and is subject to Section 41-5-13.

{19} Medical Center devotes considerable attention to two Missouri cases, Rowland v.
Skaggs Companies, Inc., 666 S.W.2d 770 (Mo. 1984) (en banc), and Aherron v. St. John’s
Mercy Medical Center, 713 S.W.2d 498 (Mo. 1986) (en banc), and argues that the reasoning
and conclusions in these cases should apply here. In these cases, the Missouri Supreme
Court addressed whether the two-year statute of limitations governing medical malpractice
claims in Missouri applied to claims for contribution or indemnification. Rowland, 666
S.W.2d at 772; Aherron, 713 S.W.2d at 499-500. In Rowland, the court observed that the
language of the statute of limitations at issue revealed “an unequivocal legislative intent to
make only a specified class of suits brought against health care providers subject to” the two-
year statute of limitations, and concluded that their legislature did not include suits for
contribution in that limited class. 666 S.W.2d at 772. Aherron relied almost exclusively on
Rowland to reach the same conclusion as to claims for indemnification. Aherron, 713
S.W.2d at 499-500. We distinguish these cases from New Mexico law based on policy
considerations. Our Legislature intended to define the term “malpractice claim” in the


                                               6
MMA broadly. Wilschinsky, 108 N.M. at 517, 775 P.2d at 719. Thus, New Mexico law is
based on the converse of the policy concerns articulated and acted upon in Rowland and
Aherron.

{20} In conclusion, we hold that Medical Center’s claim for equitable indemnification is
governed by the MMA and subject to Section 41-5-13. Because Medical Center’s claim was
filed outside the three-year limitations period, Section 41-5-13, if applied, would bar
Medical Center’s amended third-party complaint. We proceed to address Medical Center’s
argument that application of Section 41-5-13 is impermissible as its application would
violate Medical Center’s due process and equal protection rights.

Due Process and Equal Protection

{21} Medical Center asserts that, given the timing of Martinez’s claim, it had only six days
to file its equitable indemnification claim in order to comply with Section 41-5-13 and that
this is an unreasonably short period of time. Citing due process and equal protection
concerns, Medical Center argues that application of Section 41-5-13 is impermissible. We
review constitutional arguments de novo. Gomez v. Chavarria, 2009-NMCA-035, ¶ 6, 146
N.M. 46, 206 P.3d 157, cert. quashed, 2009-NMCERT-012, 147 N.M. 601, 227 P.3d 91.
We begin with due process.

{22} “[T]he [L]egislature may, consistent with due process, impose a statutory time
deadline for commencing an accrued action where no limit existed before, and may,
consistent with due process, shorten the time period within which existing claims may be
brought as long as a reasonable time is provided for commencing suit.” Garcia ex rel.
Garcia v. La Farge, 119 N.M. 532, 541, 893 P.2d 428, 437 (1995) (citations omitted). Thus,
“considerations of fairness implicit in the Due Process Clauses of the United States and New
Mexico Constitutions dictate that when the [L]egislature enacts a limitations period it must
allow a reasonable time within which existing or accruing causes of action may be brought.”
Id. Our Supreme Court has applied these principles in the context of the MMA and has, on
three separate occasions, specifically inquired whether application of Section 41-5-13 would
violate due process. We review those cases below.

{23} In La Farge, a young boy suffered a fainting spell and was treated by a heart
specialist. 119 N.M. at 534-35, 893 P.2d at 430-31. The specialist misdiagnosed the boy’s
symptoms, but this was not discovered until a subsequent fainting episode. Id. at 535, 893
P.2d at 431. The subsequent episode occurred only eighty-five days before the expiration
of the limitations period in Section 41-5-13. La Farge, 119 N.M. at 542, 893 P.2d at 438.
The boy filed a malpractice claim approximately seven months after the Section 41-5-13 date
had run. La Farge, 119 N.M. at 535, 893 P.2d at 431. Although filed outside the allowable
window, our Supreme Court concluded that the boy’s due process rights would be violated
if Section 41-5-13 was applied to preclude his claim. La Farge, 119 N.M. at 542, 893 P.2d
at 438. The Court focused on the fact that the boy learned of the malpractice only eighty-
five days before the Section 41-5-13 expiration date. La Farge, 119 N.M. at 542, 893 P.2d
at 438. Eighty-five days, the Court determined, was an unreasonably short period of time
within which the boy could exercise his rights. Id. Accordingly, the Court concluded that


                                             7
Section 41-5-13 was inapplicable and instead applied the accrual based statute of limitations
in NMSA 1978, Section 37-1-8 (1976). La Farge, 119 N.M. at 542, 893 P.2d at 438. As the
boy had filed suit within three years of the date of accrual—the date the boy discovered the
malpractice—his claim could proceed. Id.

{24} In Cummings, 1996-NMSC-035, ¶¶ 2, 6, a patient received x-rays, and the medical
provider identified certain abnormalities, but then failed to properly diagnose those
abnormalities. The patient later discovered that the abnormalities were cancerous masses.
Id. The date of malpractice was identified as August 1988 and the date the patient
discovered the malpractice as February 1990, roughly one and one-half years before the
Section 41-5-13 limitation period expired in August 1991. Cummings, 1996-NMSC-035,
¶ 57. The patient filed her malpractice claim in July 1992, approximately eleven months
after the Section 41-5-13 expiration date. Cummings, 1996-NMSC-035, ¶ 57. Our Supreme
Court declined to extend the conclusion in La Farge to the patient’s case and determined that
her claim was barred by Section 41-5-13. Cummings, 1996-NMSC-035, ¶¶ 57-58. The
Court reasoned that the patient knew of the malpractice a year and a half before the Section
41-5-13 expiration date, but failed to file her claim. Cummings, 1996-NMSC-035, ¶¶ 57-58.
Accordingly, the patient could not complain that her due process rights were violated by the
preclusive effect of Section 41-5-13. Cummings, 1996-NMSC-035, ¶¶ 57-58. She had more
than adequate time to take action, but failed to do so. Id.

{25} Finally, in Tomlinson v. George, 2005-NMSC-020, ¶ 4, 138 N.M. 34, 116 P.3d 105,
a patient had wrist surgery in August 1996 that was ineffective and, when the patient saw
another specialist only a few months later, was informed that the initial surgeon had been
negligent. The patient filed a claim for malpractice in March 2000, roughly seven months
after the Section 41-5-13 limitations period expired. Tomlinson, 2005-NMSC-020, ¶¶ 5, 10.
Again, our Supreme Court declined to apply the result reached in La Farge. Tomlinson,
2005-NMSC-020, ¶¶ 23-24. The Court observed that the patient learned of the malpractice
only a few months after it occurred, but failed to act on this information for most of the
Section 41-5-13 period. Tomlinson, 2005-NMSC-020, ¶¶ 23-24. As in Cummings, the Court
concluded that the patient’s due process rights were not violated by the preclusive effect of
Section 41-5-13. Tomlinson, 2005-NMSC-020, ¶¶ 23-24.

{26} Because we have concluded that Medical Center’s equitable indemnification claim
is a “malpractice claim” under the MMA and subject to Section 41-5-13, we apply the due
process analysis developed in the cases above. We do so despite the fact that the issue in
those cases was the due process rights of patients/plaintiffs whereas here we are concerned
with the rights of a third-party. Conceptually, these seem like different matters and would,
perhaps, implicate a different analysis. The parties do not address that issue.

{27} La Farge, Cummings, and Tomlinson make clear that the due process analysis in the
Section 41-5-13 context requires us to identify three dates: (1) the occurrence date, i.e., the
date the malpractice occurred; (2) the discovery date, i.e., the date the existence of the
malpractice is discovered; and (3) the Section 41-5-13 expiration date. Here, the occurrence
date and the Section 41-5-13 expiration date are clear and there is no dispute between the
parties as to these dates.        The malpractice at issue in this case—Martinez’s


                                              8
injuries—occurred on December 9-10, 2004, and thus the three-year limitations period
expired on December 10, 2007.

{28} The parties disagree about the date of discovery. Medical Center claims that the
discovery date is December 4, 2007, the date Martinez filed her complaint against Doctors,
which was six days before the Section 41-5-13 expiration date. Doctors counter that the
discovery date is either December 9 or 10, 2004, the date the malpractice committed against
Martinez occurred, or December 11, 2007, the date Martinez’s complaint was served on
counsel for Medical Center. As explained below, we agree with Doctors that the date of
discovery is December 11, 2007, the date Medical Center received service or, alternatively,
at some point thereafter.

{29} “The key consideration under the discovery rule is the factual, not the legal, basis for
the cause of action. The action accrues when the plaintiff knows or should know the relevant
facts, whether or not the plaintiff also knows that these facts are enough to establish a legal
cause of action.” Coslett v. Third St. Grocery, 117 N.M. 727, 735, 876 P.2d 656, 664 (Ct.
App. 1994) (internal quotation marks and citation omitted). Medical Center concedes that
it did not have knowledge that Martinez had suffered an injury until the date her complaint
was filed—December 4, 2007. We accept this statement as an admission on Medical
Center’s part that it did not have knowledge that Martinez suffered injuries prior to
Martinez’s decision to file suit. We do not, however, accept the legal conclusion implicit
in Medical Center’s concession, i.e., that Medical Center knew Martinez filed suit merely
because Martinez filed a complaint in district court. Medical Center could only discover that
Martinez had filed a claim upon receiving service of process. Medical Center received
service on December 11, 2007, one day after the three-year limitation period provided by
Section 41-5-13 expired. Accordingly, we conclude that the earliest possible discovery date
is December 11, 2007. We observe that Medical Center did not file its indemnification claim
against Doctors until December 2008. This suggests that the discovery date could be well
after December 11, 2007. We need not, however, conclusively decide the issue.

{30} As described above, Section 41-5-13 is a statute of repose and terminates the right
to any action after a specific time has elapsed. Cummings, 1996-NMSC-035, ¶ 50. Our
Supreme Court has clearly stated that the due process analysis first established in La Farge,
and further developed in Cummings and Tomlinson, applies “only to claims discovered
within the statutory period; if a claim is discovered after the statute has run, Section 41-5-13
is an explicit bar.” Tomlinson, 2005-NMSC-020, ¶ 23. The discovery date in the present
matter was one day beyond the end of the three-year limitations period provided by Section
41-5-13. As such, we hold that Section 41-5-13 bars Medical Center’s claim and further
conclude that the preclusive effect of Section 41-5-13 does no harm to Medical Center’s due
process rights. We conclude this opinion by briefly addressing Medical Center’s equal
protection arguments.

{31} At the end of Medical Center’s discussion of the due process issue, Medical Center
contends that its equal protection rights would also be violated if we conclude that Section
41-5-13 applies. This claim appears to be premised on two points. First, Medical Center
contends that, if its claim for indemnification is dismissed as untimely, it will be solely


                                               9
responsible for the Martinez liabilities. Medical Center then argues that “the New Mexico
[L]egislature did not include third[-]party claims, including indemnity claims, in the
[MMA’s] definition of ‘malpractice claim.’” It is not clear to us how this implicates equal
protection and it is well settled that we do not review unclear arguments. See Headley v.
Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076. Moreover,
this claim seems merely a variation of Medical Center’s contention that indemnification
claims are not governed by the MMA or subject to Section 41-5-13. We rejected this claim
above.

CONCLUSION

{32} The district court’s determination that Medical Center’s amended third-party
complaint and the claim for indemnification therein was not governed by the MMA and not
subject to Section 41-5-13 is reversed. We reach the opposite conclusion and reject Medical
Center’s contention that doing so violates its due process and equal protection rights. We
remand this matter to the district court with instructions to dismiss Medical Center’s
amended third-party complaint and for proceedings not inconsistent with this opinion.

{33}    IT IS SO ORDERED.

                                             ______________________________________
                                             CELIA FOY CASTILLO, Chief Judge

WE CONCUR:

______________________________________
MICHAEL D. BUSTAMANTE, Judge

______________________________________
MICHAEL E. VIGIL, Judge

Topic Index for Christus St. Vincent v. Duarte-Afar, No. 30,343

AE                    APPEAL AND ERROR
AE-SR                 Standard of Review

CP                    CIVIL PROCEDURE
CP-MD                 Motion to Dismiss
CP-SL                 Statute of Limitations

CT                    CONSTITUTIONAL LAW
CT-DP                 Due Process
CT-EP                 Equal Protection

IN                    INSURANCE
IN-IY                 Indemnity


                                            10
ST      STATUTES
ST-LI   Legislative Intent

TR      TORTS
TR-MM   Medical Malpractice
TR-SA   Statute of Limitations




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