       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: _______________

Filing Date: October 17, 2013

Docket No. 32,719

JOSE R. CHAVEZ, JR., son, individually
and as representative of JOSE R. CHAVEZ,
deceased, SOCORRO CHAVEZ, widow,
WILFRED CHAVEZ, MICHAEL CHAVEZ,
and CLARENCE CHAVEZ, remaining adult
sons of the deceased,

       Plaintiffs-Appellees,

v.

JAMES DELGADO, M.D. d/b/a POJOAQUE
PRIMARY CARE, individually,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Raymond Z. Ortiz, District Judge

Crowley & Gribble, P.C.
Clayton E. Crowley
Albuquerque, NM

for Appellees

Yenson, Allen & Wosick, P.C.
Terrance P. Yenson
April D. White
Albuquerque, NM

for Appellant

                                  OPINION

VANZI, Judge.


                                     1
{1}     As a matter of first impression, we must decide when the three-year time limitation
contained in the Medical Malpractice Act (MMA), NMSA 1978, §§ 41-5-1 to -29 (1976, as
amended through 2008), begins to run in a case where a health care provider is alleged to
have negligently prescribed medication to a patient. See § 41-5-13. Defendant Dr. Delgado
sought interlocutory review from this Court following the district court’s denial of his
motion for summary judgment. The district court determined that the statute of limitations
did not begin to run until a patient has been injured. In the alternative, the district court
found that the malpractice continued throughout the ingestion period of the prescribed
medication and that, therefore, Section 41-5-13 did not begin to run until the ingestion period
had expired. We disagree and hold that Section 41-5-13’s three-year time limitation begins
to run on the date the medication is prescribed. Accordingly, we reverse the district court’s
denial of summary judgment.

BACKGROUND

{2}    The parties do not dispute the material facts of the case. On November 11, 2008, the
decedent patient, Jose R. Chavez (Mr. Chavez), requested a prescription for Zocor. That
same day, Dr. Delgado approved and wrote Mr. Chavez a prescription for Simvastatin, the
same drug as Zocor. The next day, Dr. Delgado’s office called the prescription in to Mr.
Chavez’s pharmacy. Mr. Chavez did not fill the prescription until three weeks later, on
December 3, 2008. Shortly thereafter, on December 8, 2008, Mr. Chavez was hospitalized
with drug-induced rhabdomyolysis, purportedly caused by an interaction of the Simvastatin
and another medication Mr. Chavez was taking. Mr. Chavez was released from the hospital
on January 12, 2009. He died on February 21, 2010.

{3}      On December 1, 2011, Plaintiffs brought a medical malpractice and wrongful death
action against Dr. Delgado, based on the allegedly negligent act of prescribing Simvastatin.
The parties agree that Dr. Delgado is a “qualified healthcare provider” as defined by
Sections 41-5-3 and 41-5-5 of the MMA and that the mandates of the MMA govern the
dispute. Dr. Delgado filed a motion for summary judgment in the district court, asserting that
the three-year statute of repose contained in Section 41-5-13 barred Plaintiffs’ claims. The
district court denied the motion, and this appeal timely followed.

DISCUSSION

{4}     We review a district court’s decision to grant or deny summary judgment de novo.
Maralex Res., Inc. v. Gilbreath, 2003-NMSC-023, ¶ 8, 134 N.M. 308, 76 P.3d 626; Self v.
United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. Where
genuine issues of material fact exist, summary judgment is inappropriate. See Self, 1998-
NMSC-046, ¶ 6. However, when no material issues of fact are in dispute, we determine de
novo whether a party is entitled to judgment as a matter of law. Id. In addition, “[s]tatutory
interpretation is an issue of law, which we review de novo.” N.M. Indus. Energy Consumers
v. N.M. Pub. Regulation Comm’n, 2007-NMSC-053, ¶ 19, 142 N.M. 533, 168 P.3d 105.


                                              2
{5}     Dr. Delgado argues on appeal that the district court erred in its determination that the
three-year statute of repose did not begin to run until either: (1) Mr. Chavez had been
injured, or (2) the last day Mr. Chavez ingested the prescribed medication. Rather, Dr.
Delgado contends that the statute of repose began to run on either the date he wrote the
prescription, on November 11, 2008, or, at the latest, the date his office called in the
prescription to the pharmacy, on November 12, 2008. Thus, Dr. Delgado contends that the
complaint filed on December 1, 2011, was outside of the three-year limitations period
provided under the MMA. We begin with the statute.

{6}     Section 41-5-13 requires that a malpractice claim be “filed within three years after
the date that the act of malpractice occurred.” Our Supreme Court has noted that “Section
41-5-13 operates as a statute of repose rather than a statute of limitation.” Tomlinson v.
George, 2005-NMSC-020, ¶ 8, 138 N.M. 34, 116 P.3d 105. In Cummings v. X-Ray
Associates of New Mexico, P.C., the Court commented on the difference between the statutes
of limitation and statutes of repose, explaining that

        [a] statute of limitations establishes the time, after a cause of action arises,
        within which a claim must be filed. A statute of limitations begins to run
        when the cause of action accrues, the accrual date usually being the date of
        discovery [of the injury]. . . .

        On the other hand, a statute of repose terminates the right to any action after
        a specific time has elapsed, even though no injury has yet manifested itself.
        A statute of repose runs from a statutorily determined triggering event.

1996-NMSC-035, ¶¶ 49-50, 121 N.M. 821, 918 P.2d 1321 (citations omitted).

{7}     Furthermore, our courts have consistently held that “[t]he triggering event of Section
41-5-13 is determined by the occurrence rule. This event is unrelated to the accrual date of
the cause of action, and does not entail whether the injury has even been discovered.”
Cummings, 1996-NMSC-035, ¶ 50. Thus, the cause of action that triggers Section 41-5-13
begins to run from the act of malpractice. Cummings, 1996-NMSC-035, ¶ 53. Against this
backdrop, we consider the sole issue presented in this case: what constitutes an “act of
malpractice” for purposes of Section 41-5-13 when a physician negligently prescribes a
medication to a patient?

{8}     Here, the district court found that an act of malpractice does not exist until there is
an injury, regardless of whether the injury is discovered. Specifically, it found that the statute
of repose could not begin to run when Dr. Delgado prescribed Mr. Chavez the Simvastatin
because Mr. Chavez did not and could not suffer any injury until he actually started taking
the Simvastatin and because there was no completed tort until at least that time.

{9}   In reaching its decision, the district court was apparently persuaded by Plaintiffs’
argument that the foundation for the triggering event is set forth in Section 41-5-3(C)’s

                                                3
definition of “malpractice claim.” See id. (stating that “ ‘malpractice 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”). In its oral ruling, the court stated that
this case was “a causation question” and that there appeared to be “an issue of causation.”
However, to the extent that the district court adopted Plaintiffs’ argument and held that there
must be an action “which proximately results in injury to the patient” in order for Section
41-5-13 to begin to run, our courts have explicitly rejected such an accrual-based approach
to interpreting the statute. See § 41-5-3(C); Cummings, 1996-NMSC-035, ¶ 50 (stating that
the triggering event of Section 41-5-13 is unrelated to the accrual date of the cause of
action); Garcia ex rel. Garcia v. La Farge, 1995-NMSC-019, ¶ 14, 119 N.M. 532, 893 P.2d
428 (same). More importantly, the language of Section 41-5-13 clearly establishes the
triggering event as an “act of malpractice,” not a “malpractice claim.” See § 41-5-13 (“No
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.” (emphasis added)).

{10} Because the Legislature defined the term “malpractice claim” elsewhere within
Section 41-5-13, but chose not to use that term in establishing the time limitation for
bringing a claim, we must presume that it intended the phrase “act of malpractice” to have
a different meaning. See Medina v. Holguin, 2008-NMCA-161, ¶ 14, 145 N.M. 303, 197
P.3d 1085 (“[A] court must look to the neighboring words in a statute to construe contextual
meaning.”); Cummings, 1996-NMSC-035, ¶¶ 14, 52 (rejecting the plaintiff’s attempt to
“draw an identity” between an act of malpractice and the way the MMA defines a
malpractice claim). We thus consider the meaning of “act of malpractice” in the context of
Section 41-5-13.

{11} Unlike “malpractice claim,” the phrase “act of malpractice” is not statutorily defined.
It is well established that “[t]he words of a statute, including terms not statutorily defined,
should be given their ordinary meaning absent clear and express legislative intention to the
contrary.” State v. Ogden, 1994-NMSC-029, ¶ 24, 118 N.M. 234, 880 P.2d 845. An “act”
is “[s]omething done or performed[.]” Black’s Law Dictionary 27 (9th ed. 2009); see
Restatement (Second) of Torts § 2 (1965) (“The word ‘act’ is used throughout the
Restatement of this Subject to denote an external manifestation of the actor’s will and does
not include any of its results, even the most direct, immediate, and intended.”).
“Malpractice,” on the other hand, is “[a]n instance of negligence or incompetence on the part
of a [health care provider].” Black’s Law Dictionary 1044 (9th ed. 2009). Interpreting the
“act of malpractice” to extend to either the first or last day of the patient’s ingestion period,
as Plaintiffs suggest and the district court held, would require us to define an “act of
malpractice” based on the patient’s compliance with the directives of her health care
provider. In our view, such a reading is contrary to our well-established case law and leaves
open the possibility that a non-health care provider—here, Mr. Chavez—can reclassify the
date of the act of malpractice based on the patient’s conduct and not that of the health care
provider. We do not believe that is what the Legislature intended when it enacted the MMA.

                                               4
Accordingly, in keeping with the plain meaning of the statute, we hold that in a wrongful
prescription case, the term “act of malpractice” refers to the discrete act taken by the health
care provider of prescribing medication to a patient, not to any subsequent act of the patient.

{12} Moreover, in Cummings, our Supreme Court rejected a similar argument that an
injury must exist before the limitations period in Section 41-5-13 can begin to run. In that
case, the plaintiff argued that the term “occurrence” contained in Section 41-5-13 should be
construed as a continuum that encompasses both the act of malpractice and the resulting
injury. Cummings, 1996-NMSC-035, ¶ 13. The plaintiff characterized the negligent act as
the misdiagnosis of a cancerous mass in her lung and the resulting injury as the metastasis
of her cancer. Id. ¶ 15. Our Supreme Court declined to accept plaintiff’s characterization and
instead viewed the negligent act and the resulting injury as discrete events. Id. ¶ 52.
Cummings instructs that the term “occurred” contained in Section 41-5-13 “does not inquire
into whether the act [of malpractice] caused an injury, whether the injury is immediate or
latent, whether the injury is discovered or not. The focus of this term is on the act without
regard to its consequences.” Cummings, 1996-NMSC-035, ¶ 52.

{13} On appeal, Plaintiffs attempt to distinguish Cummings. They contend that, because
the plaintiff’s cancer in that case existed at the time of the alleged misdiagnosis, she was
already injured on the date that the physician committed the alleged act of malpractice.
Plaintiffs argue that this case is different from Cummings because Mr. Chavez could not
possibly suffer any injury until he began taking the Simvastatin, three weeks after Dr.
Delgado prescribed the medication. This distinction does not change our analysis and is a
distinction without a difference. The Cummings Court made clear that the “act of
malpractice” in Section 41-5-13 is separate from the plaintiff’s injuries, regardless of when
those injuries arose. See Cummings, 1996-NMSC-035, ¶ 53 (“The plain language of Section
41-5-13 establishes the date of the act of malpractice as the only relevant factor, without any
reference to any subsequent harm.”).

{14} The principles on which the Cummings Court relied, as well as the manner in which
subsequent cases have interpreted the term “act of malpractice,” also dictate that the “act of
malpractice” is a discrete event. “The purpose of a statute of repose is to put an end to
prospective liability for wrongful acts that, after the passage of a period of time, have yet to
give rise to a justiciable claim.” Jaramillo v. Heaton, 2004-NMCA-123, ¶ 12, 136 N.M. 498,
100 P.3d 204 (alteration, internal quotation marks, and citation omitted). Although the time
limit can have harsh results, our courts have repeatedly found that the stringent time
restriction on liability that Section 41-5-13 imposes is one of the key benefits the Legislature
provided to health care providers when it enacted the MMA. See Cummings, 1996-NMSC-
035, ¶ 29 (noting that “[t]he most notable benefit of qualification [under the MMA] was the
specific decision by the [L]egislature to insulate qualified health care providers from the
much greater liability exposure that would flow from a discovery-based accrual date”
(internal quotation marks and citation omitted)). Accordingly, the Legislature’s goal in
enacting Section 41-5-13 was “to preclude almost all malpractice claims [subject to the
MMA] from being brought more than three years after the act of malpractice.” Cummings,

                                               5
1996-NMSC-035, ¶ 40. We recognize that there are limited exceptions that may relax the
strict requirements of Section 41-5-13, such as fraudulent concealment of a claim, or an
unreasonable time limit in which to file a claim. See generally Tomlinson, 2005-NMSC-020,
¶¶ 22-23; Cummings, 1996-NMSC-035, ¶¶ 54-56; Garcia, 1995-NMSC-019, ¶¶ 37-38. None
of those exceptions are at issue here. As a result, we follow our Supreme Court’s
interpretation of Section 41-5-13 that has rejected any attempt to extend the statute of repose
beyond three years in order to include a chain of events or a continuing course of treatment.
See Tomlinson, 2005-NMSC-020, ¶¶ 2, 4, 10 (noting that the “act of malpractice” occurred
when a doctor performed a closed external reduction of the plaintiff’s fracture, even where
the same doctor provided follow-up care to the plaintiff related to the fracture). Similarly,
we believe defining an “act of malpractice” to accommodate a patient’s potential delay in
filling a prescription, or to extend through the patient’s ingestion period, would expand the
possible window of liability beyond what the Legislature intended in enacting Section 41-5-
13, and we will not adopt such an interpretation. See Padilla v. Montano, 1993-NMCA-127,
¶ 23, 116 N.M. 398, 862 P.2d 1257 (“We will not construe a statute to defeat [its] intended
purpose.”).

{15} Finally, our determination that the “act of malpractice” in negligent prescription
cases is the health care provider’s discrete act of prescribing the at-issue medication is
consistent with rulings in other states. Although we rely solely on New Mexico law in
reaching our conclusion here, we note that several other states with occurrence-based
statutes have arrived at similar results. See Tullock v. Eck, 845 S.W.2d 517, 521 (Ark. 1993)
(finding that the allegedly negligent act occurred when the doctor wrote the prescription and
declining to apply the continuous treatment theory); Deen v. Pounds, 718 S.E.2d 68, 73 (Ga.
Ct. App. 2011) (finding that the statute of repose began to run on the date doctor first
prescribed the at-issue medication); Cornell v. Merck & Co., 742 P.2d 667, 668 (Or. Ct. App.
1987) (holding that where statute states malpractice action may not be brought more than
five years after treatment, the date on which the complaint alleged medication was
prescribed was the date statute began to run).

{16} We agree with Dr. Delgado that Section 41-5-13 terminates a plaintiff’s malpractice
claim within three years after the date the alleged act of malpractice occurred, not when the
plaintiff was injured by the malpractice or when the plaintiff acquired knowledge of the
injury. Accordingly, we conclude that Section 41-5-13 began to run on the date Dr. Delgado
prescribed Simvastatin to Mr. Chavez. Because Plaintiffs did not timely file the complaint
within the three-year limitations period—regardless of whether the trigger date was
November 11, 2008, the date on which the prescription was written, or November 12, 2008,
the date on which the prescription was called in to the pharmacy—their claims against Dr.
Delgado are barred.

CONCLUSION

{17} We reverse the district court’s order denying Dr. Delgado’s motion for summary
judgment.

                                              6
{18}   IT IS SO ORDERED.

                                    ____________________________________
                                    LINDA M. VANZI, Judge

WE CONCUR:

____________________________________
CYNTHIA A. FRY, Judge

____________________________________
J. MILES HANISEE, Judge




                                   7
