 1       IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

 2 Opinion Number:

 3 Filing Date: November 20, 2017

 4 NO. S-1-SC-35302

 5 SARA CAHN,

 6       Plaintiff-Petitioner,

 7 v.

 8 JOHN D. BERRYMAN, M.D.,

 9       Defendant-Respondent.

10 ORIGINAL PROCEEDING ON CERTIORARI
11 Nan G. Nash, District Judge

12 Law Offices of Felicia C. Weingartner
13 Felicia C. Weingartner
14 Albuquerque, NM

15 Law Office of Cid D. Lopez, LLC
16 Cid Dagward Lopez
17 Albuquerque, NM

18 Carmela D. Starace
19 Albuquerque, NM

20 for Petitioner

21 Butt, Thornton & Baehr, P.C.
22 Emily A. Franke
23 Albuquerque, NM
1   Hinkle Shanor LLP
2   William P. Slattery
3   Dana Simmons Hardy
4   Santa Fe, NM
5
6   for Respondent
 1                                      OPINION

 2 NAKAMURA, Justice.

 3   {1}   The Medical Malpractice Act (MMA), NMSA 1978, §§ 41-5-1 to -29 (1976,

 4 as amended through 2015) forecloses any cause of action that does not accrue within

 5 three years of the act of malpractice. See § 41-5-13. In this case, we clarify the

 6 contours of the due process exception to this limitation and hold that plaintiffs with

 7 late-accruing medical malpractice claims, i.e., claims accruing in the last twelve

 8 months of the three-year repose period, shall have twelve months from the time of

 9 accrual to commence suit.

10   {2}   Petitioner Sarah Cahn invoked the due process exception but did not file her

11 late-accruing medical malpractice claim against Respondent John D. Berryman, M.D.,

12 within twelve months. Twenty-one months elapsed between the accrual date of

13 Cahn’s claim against Dr. Berryman and the date she filed suit against him. Thus, her

14 claim is barred by Section 41-5-13. We affirm the Court of Appeals and write to

15 clarify the legal principles upon which our decision is based.

16 I.      BACKGROUND

17   {3}   In 2006, Cahn sought treatment for pelvic pain at Lovelace Women’s Hospital

18 in Albuquerque. In May 2006, Cahn received a pelvic ultrasound. The ultrasound
 1 report indicated that there was a complex mass on Cahn’s left ovary and noted that

 2 “[a] malignancy need[ed] to be excluded.”

 3   {4}   On August 8, 2006, Cahn consulted Dr. Berryman. This was Dr. Berryman’s

 4 only appointment with Cahn. At that time, Dr. Berryman worked for Sandia

 5 OB/GYN Associates, P.C., in an office located in the Lovelace Women’s Hospital

 6 medical complex. Dr. Berryman reviewed the ultrasound report, but did not schedule

 7 a biopsy. Rather, he examined Cahn, diagnosed her as having endometriosis, and

 8 provided her with medication for that condition intending that she return to his office

 9 for a follow-up visit. Contrary to Dr. Berryman’s intention, Cahn never returned for

10 follow-up care.

11   {5}   On September 22, 2008, while seeing an OB/GYN in Wyoming for her

12 continuing pelvic pain, Cahn learned that Dr. Berryman had failed to inform her of

13 the mass on her left ovary. Further tests revealed that Cahn had ovarian cancer, and

14 on October 15, 2008, she underwent a hysterectomy in New York.

15   {6}   After surgery, Cahn set out to sue Lovelace Health System, Inc., (LHS) and her

16 doctors. She could not, however, remember Dr. Berryman’s name or precisely when

17 he treated her. Cahn took steps to discover Dr. Berryman’s name and the date of her

18 consultation with him. She submitted record requests to various Lovelace health care

19 provider entities and other medical providers in Albuquerque, called one Lovelace


                                              2
 1 entity, and requested explanation of benefits forms from her health insurer. But the

 2 documents and information she received in response did not identify Dr. Berryman.

 3 After Cahn retained counsel, additional record requests were submitted by counsel

 4 on Cahn’s behalf to various Lovelace entities, but the records received in response

 5 to those requests similarly did not reflect the consultation with Dr. Berryman.

 6   {7}   On April 10, 2009, Cahn filed a complaint alleging medical malpractice against

 7 LHS and several other defendants. Dr. Berryman was not a named defendant. On

 8 July 1, 2010, LHS produced records in response to Cahn’s requests for production

 9 showing that Cahn received care from Dr. Berryman on August 8, 2006. On July 9,

10 2010, exactly one week after receiving these records, Cahn filed an amended

11 complaint in which she named Dr. Berryman as a defendant and asserted a medical

12 malpractice claim against him. Before proceeding further, we pause to emphasize the

13 dispositive facts which can be discerned from the foregoing.

14   {8}   The act of malpractice that Cahn alleges Dr. Berryman committed occurred on

15 August 8, 2006. Cahn’s malpractice claim accrued on September 22, 2008, the date

16 she discovered that Dr. Berryman did not alert her to the findings indicated by the

17 May 2006 ultrasound report. See Roberts v. Sw. Cmty. Health Servs., 1992-NMSC-

18 042, ¶ 27, 114 N.M. 248, 837 P.2d 442 (“[T]he cause of action accrues when the

19 plaintiff knows or with reasonable diligence should have known of the injury and its


                                              3
 1 cause.”). Cahn’s claim accrued ten and one-half months before August 8, 2009, when

 2 the three-year repose period of Section 41-5-13 was set to expire. Cahn sued Dr.

 3 Berryman on July 9, 2010, three years and eleven months after Dr. Berryman’s act of

 4 malpractice occurred and one year and nine and one-half months (more than twenty-

 5 one months) after Cahn’s claim accrued. A pictorial representation of these events

 6 is included at the end of this opinion as Appendix A.

 7   {9}    In the Second Judicial District Court, Dr. Berryman moved for summary

 8 judgment arguing that Section 41-5-13 barred Cahn’s malpractice claim. The court

 9 denied Dr. Berryman’s motion concluding that application of the statutory bar would

10 violate Cahn’s right to due process as guaranteed by the United States and New

11 Mexico Constitutions. The district court later denied Dr. Berryman’s motion for

12 reconsideration on the question of the applicability of Section 41-5-13. Dr. Berryman

13 then requested that the court certify the statute-of-repose issue for interlocutory

14 appeal. The court entered an order certifying the issue, but the Court of Appeals

15 denied Dr. Berryman’s application.

16   {10}   The district court then set the case for a jury trial, but Cahn and Dr. Berryman

17 entered into a stipulated conditional directed verdict and final judgment, stating that

18 Dr. Berryman was liable to Cahn for medical negligence in the amount of $700,000

19 but preserving for appeal the issue of whether Section 41-5-13 barred Cahn’s


                                               4
 1 malpractice claim. The Court of Appeals, in a divided opinion, concluded that

 2 Section 41-5-13 did bar Cahn’s claim and reversed the district court, which had

 3 “ruled otherwise.” Cahn v. Berryman, 2015-NMCA-078, ¶ 1, 355 P.3d 58, cert.

 4 granted, 2015-NMCERT-007.

 5   {11}   Cahn petitioned for a writ of certiorari, which we granted, exercising our

 6 jurisdiction under Article VI, Section 3 of the New Mexico Constitution and NMSA

 7 1978, Section 34-5-14(B) (1972). We issued the writ to consider whether the

 8 application of Section 41-5-13 to bar Cahn’s malpractice claim violated her right to

 9 due process.

10 II.      DISCUSSION

11 A.       Standard of Review

12   {12}   “This Court’s review of orders granting or denying summary judgment is de

13 novo.” Zamora v. St. Vincent Hosp., 2014-NMSC-035, ¶ 9, 335 P.3d 1243.

14 “Summary judgment is appropriate in the absence of any genuine issues of material

15 fact and where the movant is entitled to judgment as a matter of law.” Id. “In

16 reviewing an order on summary judgment, we examine the whole record on review,

17 considering the facts in a light most favorable to the nonmoving party and drawing

18 all reasonable inferences in support of a trial on the merits.” Id.




                                              5
 1 B.       Section 41-5-13: the MMA’s Statute of Repose

 2   {13}   “Like many other states, New Mexico reformed its medical malpractice laws

 3 in 1976 in response to a much discussed medical malpractice crisis.” Cummings v.

 4 X-Ray Assocs. of N.M., P.C., 1996-NMSC-035, ¶ 40, 121 N.M. 821, 918 P.2d 1321.

 5 Surveying that crisis, the Court of Appeals observed that

 6          [t]he insurance crisis that prompted the enactment of the MMA arose out
 7          of a nationwide perception that medical malpractice insurance was
 8          increasingly becoming unavailable. The specific event that triggered
 9          concern in New Mexico was the announced withdrawal in 1975 of the
10          Travelers’ Insurance Company as the underwriter of the New Mexico
11          Medical Society’s professional liability program. Travelers’ withdrawal
12          jeopardized health care providers’ protection against liability claims and,
13          in turn, compromised the legal remedies available to health care
14          consumers injured by the negligence of health care providers.

15 Baker v. Hedstrom, 2012-NMCA-073, ¶ 22, 284 P.3d 400 (citing Ruth L. Kovnat,

16 Medical Malpractice Legislation in New Mexico, 7 N.M. L. Rev. 5, 7 (1976-77)),

17 aff’d on other grounds, 2013-NMSC-043, 309 P.3d 1047. The insurance crisis

18 prompted concerns about the departure of medical providers from New Mexico as

19 well as the availability of recovery for New Mexicans who suffer injuries resulting

20 from medical malpractice. See id.

21   {14}   The MMA sought to address this crisis by ensuring that professional liability

22 insurance was available to health care providers in New Mexico. Section 41-5-2.

23 The Legislature “concluded that the potential for a malpractice suit being filed long


                                                6
 1 after the act of malpractice was one of the reasons that insurance carriers were

 2 withdrawing from medical malpractice liability coverage.” Cummings, 1996-NMSC-

 3 035, ¶ 40. To address this problem, the Legislature enacted Section 41-5-13 and

 4 precluded “almost all malpractice claims from being brought more than three years

 5 after the act of malpractice.” Cummings, 1996-NMSC-035, ¶¶ 39-40.

 6   {15}   Section 41-5-13 provides as follows:

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

14 This provision operates as a statute of repose.                  Tomlinson v. George,

15 2005-NMSC-020, ¶ 8, 138 N.M. 34, 116 P.3d 105. Statutes of repose reflect a

16 legislative policy to extinguish, after the passage of a period of time, all liability for

17 claims not filed by the end of the repose period irrespective of whether the claims

18 have already accrued or have yet to accrue. See id. Statutes of repose begin to run

19 when a statutorily designated event occurs, “without regard to when the underlying

20 cause of action accrues and without regard to the discovery of injury or damages.”

21 Garcia ex rel. Garcia v. LaFarge, 1995-NMSC-019, ¶ 14, 119 N.M. 532, 893 P.2d

22 428; see also Restatement (Second) of Torts § 899(g) (Am. Law Inst. 1979)


                                                 7
 1 (“[S]tatutes [of repose] set a designated event for the statutory period to start running

 2 and then provide that at the expiration of the period any cause of action is

 3 barred . . . .”). “Section 41-5-13’s statutorily determined triggering event is . . . the

 4 act of medical malpractice and does not entail whether the injury has been

 5 discovered.” Tomlinson, 2005-NMSC-020, ¶ 9 (internal quotation marks and citation

 6 omitted). This Court has concluded that “the three-year time limit of Section 41-5-13

 7 establishes a reasonable termination point for medical malpractice claims.”

 8 Cummings, 1996-NMSC-035, ¶ 39.

 9 C.       The Due Process Exception to the Application of Section 41-5-13

10   {16}   The Due Process Clauses of the United States and New Mexico Constitutions,

11 U.S. Const. amend. XIV, § 1; N.M. Const., art. II, § 18, provide the basis for an

12 exception to the application of the MMA’s statute of repose. Garcia, 1995-NMSC-

13 019, ¶¶ 35-36 (citing Terry v. N.M. State Highway Comm’n, 1982-NMSC-047, 98

14 N.M. 119, 645 P.2d 1375). Once a cause of action accrues, it is subject to the

15 protections of due process. See Garcia, 1995-NMSC-019, ¶¶ 33-36 (citing Wilson

16 v. Iseminger, 185 U.S. 55, 62 (1902)); see also Terry, 1982-NMSC-047, ¶¶ 9-17.

17 Hence, Garcia held that due process requires that the plaintiff have a reasonable

18 amount of time in which to commence suit after any late-accruing medical

19 malpractice claim has accrued. See 1995-NMSC-019, ¶¶ 35-36. This due process


                                               8
 1 exception is implicated, however, only if a plaintiff’s claim accrues late within the

 2 three-year repose period. See Tomlinson, 2005-NMSC-020, ¶ 23. Due process does

 3 not prevent Section 41-5-13 from cutting off claims that are discovered after the

 4 three-year repose period has run. Id.

 5   {17}   When a medical malpractice claim accrues late within the repose period and the

 6 plaintiff requires additional time beyond that period to commence suit, to what

 7 amount of time is the plaintiff entitled as a consequence of due process before Section

 8 41-5-13 extinguishes the claim? Three cases have touched directly upon this

 9 question.

10   {18}   In Garcia, the plaintiff’s malpractice claim accrued eighty-five days before the

11 expiration of the MMA’s three year repose period, and we held that eighty-five days

12 is a constitutionally insufficient amount of time for the plaintiff to commence suit.

13 See 1995-NMSC-019, ¶¶ 37-38. In Cummings, by contrast, the plaintiff’s claim

14 accrued eighteen months before the expiration of the repose period, and we

15 determined that eighteen months was a constitutionally reasonable amount of time.

16 See 1996-NMSC-035, ¶¶ 57-59. And in Tomlinson, the plaintiff’s claim accrued

17 thirty-two months before the expiration of the repose period, and we determined that

18 this was most certainly a constitutionally reasonable amount of time. See 2005-




                                               9
 1 NMSC-020, ¶¶ 3, 23. Expanding our inquiry beyond the MMA context, we glean

 2 additional insight into the answer to the issue before us.

 3   {19}   New Mexico appellate courts have upheld as consistent with due process the

 4 application of statutory bars that create limitations periods of one year. See Terry,

 5 1982-NMSC-047, ¶ 17 (“We have upheld limitations periods as short as one year

 6 when justified by specific considerations.”); Martinez v. Pub. Emps. Ret. Ass’n of

 7 N.M., 2012-NMCA-096, ¶¶ 15, 40-41, 286 P.3d 613 (observing that the one-year

 8 deadline set forth in NMSA 1978, Section 10-11-14.5(A) (1997) “functions like a

 9 statute of repose” and upholding the application of that statutory provision as

10 consistent with due process). Other jurisdictions have done the same. See, e.g.,

11 Canadian N. Ry. Co. v. Eggen, 252 U.S. 553, 562-63 (1920) (concluding that a one-

12 year statute of limitations for a personal injury tort action was “reasonably sufficient

13 to enable an ordinarily diligent man to institute proceedings for . . . [the] protection

14 [of his rights]” (emphasis added)). The Supreme Court of Ohio, when considering

15 an analogous due process exception to a medical malpractice statute of repose, said

16 that “[a] reasonable time in which to bring a medical malpractice action was

17 defined . . . as one year after the discovery of the malpractice.” Gaines v. Preterm-

18 Cleveland, Inc., 514 N.E.2d 709, 716 (Ohio 1987) (emphasis added) (internal

19 quotation marks and citation omitted). Limitations periods of less than a year have


                                              10
 1 also been upheld as consistent with due process. See Ferguson v. N.M. State

 2 Highway Comm’n, 1982-NMCA-180, ¶¶ 12, 14-15, 99 N.M. 194, 656 P.2d 244

 3 (holding that the ninety-day notice requirement of NMSA 1978, § 41-4-16(A) (1977,

 4 as amended 2013) within the Tort Claims Act does not deny due process because it

 5 is not unreasonably short); Littlewolf v. Hodel, 681 F. Supp. 929, 939-40 (D.D.C.

 6 1988) (collecting cases upholding “statutes of limitations barring suit within similarly

 7 short periods of time [i.e., 180 days]”); Robin Miller, Validity of Medical Malpractice

 8 Statutes of Repose, 5 A.L.R.6th 133, § 18 (2005 & Supp. to the present) (collecting

 9 cases from jurisdictions that have adjudicated constitutional challenges to analogous

10 medical malpractice statutes of repose). From these various authorities, we draw our

11 conclusion.

12   {20}   We hold that twelve months is a constitutionally reasonable period of time

13 within which to file an accrued claim regardless of whether the claim accrues twelve

14 months or one day before the expiration of the three-year repose period. Our holding

15 should not, however, be interpreted to mean that twelve months is the minimum time

16 period that will satisfy due process. Our decision today does not preclude our

17 Legislature from shortening—or lengthening—the additional time plaintiffs with late-

18 accruing claims receive. To ensure that our holding is clear, we offer some

19 illustrations of the rule we have articulated.


                                             11
 1   {21}   If a malpractice claim accrues (i.e., the plaintiff discovers that she has suffered

 2 malpractice) twelve months prior to the expiration of the three-year repose period, the

 3 plaintiff shall have the remainder of the repose period (twelve months) to commence

 4 suit. If, however, the claim accrues six months prior to the expiration of the repose

 5 period, the plaintiff will have twelve months from that accrual date to file her claim,

 6 i.e., the remainder of the repose period plus an additional six months after the

 7 expiration of the repose period (a total of twelve months). If the claim accrues on the

 8 last day of the repose period, the plaintiff shall have twelve months from that last day

 9 to file suit. These examples are offered to illustrate that a plaintiff with a late-

10 accruing claim shall have twelve months from whichever date the late-accruing claim

11 accrues to file suit. But the benefit of additional time that this due process exception

12 provides inures only to plaintiffs with late-accruing claims, i.e., claims accruing in the

13 last twelve months of the three-year repose period. Plaintiffs with claims accruing

14 in the first twenty-four months of the repose period shall not benefit from this

15 exception to Section 41-5-13 as claims that accrue in that time period are not “late

16 accruing.” Additionally, Section 41-5-13 extinguishes any claim accruing after the

17 three-year repose period has expired.

18   {22}   We recognize that our decision to grant plaintiffs with late-accruing medical

19 malpractice claims a twelve-month period in which to file those claims is inconsistent


                                                12
 1 with Garcia where we determined that a plaintiff with a late-accruing medical

 2 malpractice claim would receive the benefit of the statute of limitations which would

 3 have been applicable had Section 41-5-13 never been enacted. 1995-NMSC-019,

 4 ¶ 37. We now overrule this specific portion of Garcia. Having established the

 5 principles that guide our analysis, we need only apply them to the facts in Cahn’s

 6 case. Before doing so, we respond to the dissent.

 7   {23}   The dissent claims that our ruling today is a form of “legislating” that

 8 “entangles and imperils fundamental separation-of-powers jurisprudence” and is

 9 inconsistent with “longstanding” due-process jurisprudence because the twelve-

10 month rule we embrace applies “in every case regardless [of] the circumstances

11 [presented].” Dissenting Op. ¶¶ 53-54, 63, 74. Clearly, we disagree.

12   {24}   Our Legislature has not made accommodations for plaintiffs, like Cahn, whose

13 medical malpractice claims accrue late in Section 41-5-13’s three-year repose period

14 and who require additional time beyond the three-year period to file claims. Other

15 state legislatures have provided such accommodations in statute of repose contexts

16 other than medical malpractice. See, e.g., Ariz. Rev. Stat. Ann. § 12-552(B) (1992)

17 (allowing a one-year period for the commencement of suit on claims accruing in the

18 final year of an eight-year statute of repose); Cal. Civ. Proc. Code § 337.1(b) (West

19 1967) (allowing a one-year period for the commencement of suit on claims accruing


                                             13
 1 in the final year of a four-year statute of repose); Colo. Rev. Stat. Ann. § 13-80-

 2 104(2) (West 2001) (allowing a two-year period for the commencement of suit on

 3 claims accruing in the final two years of a six-year statute of repose).            Our

 4 Legislature’s inaction is significant. Once we embrace the conclusion that Cahn is

 5 entitled, as a consequence of due process, to some additional period of time beyond

 6 that provided in the MAA to initiate her action against Dr. Berryman, we cross a

 7 Rubicon of sorts. Whatever answer we supply to the question “To how much

 8 additional time, exactly, is Cahn entitled?” we necessarily inject our judgment into

 9 a sphere otherwise controlled by statute and must engage in the type of line drawing

10 that is best handled in the first instance by the Legislature. See Hartford Ins. Co. v.

11 Cline, 2006-NMSC-033, ¶ 8, 140 N.M. 16, 139 P.3d 176 (“The predominant voice

12 behind the declaration of public policy of the state must come from the

13 legislature . . . .”). The dissent contends that we may minimize our intrusion by

14 resorting to “applicable background statute of limitations.” Dissenting Op. ¶¶ 43-44.

15 While this claim has surface level appeal, it does not withstand scrutiny.

16   {25}   In an earlier section of this opinion, we noted that our Legislature enacted the

17 MMA and its statute of repose, in part, to supplant the very background statute of

18 limitations the dissent insists should control. If this is so, then applying the

19 background statute of limitations is, if anything, the result most inconsistent with the


                                               14
 1 Legislature’s intentions and the result most intrusive and susceptible to criticism

 2 based on separation of powers principles. This point seems to have been overlooked

 3 by Terry and Garcia. Neither case provides a meaningful explanation why the

 4 background statute of limitations should apply. Terry merely notes that the judiciary

 5 does not “set appropriate limitations periods.” 1982-NMSC-047, ¶ 17. Our decision

 6 to extend to Cahn—and any other plaintiff with a late-accruing MMA claim—an

 7 additional year from the date of accrual is not “setting a limitations period.” The

 8 limitations period, or more accurately the repose period, in the MMA is three years.

 9 Our opinion today does nothing to change this fact. The additional time we provide

10 plaintiffs with late-accruing claims is a constitutionally mandated exception to the

11 application of this three-year period.

12   {26}   The assertion that the rule we embrace fails to account for the particular facts

13 of each case reflects a misunderstanding of the rule. It is necessarily tethered to the

14 facts of each case and extends the repose period one year beyond the accrual date of

15 the particular late-accruing claim at issue. The rule mirrors and, thus, is faithful to

16 the structure of the MMA itself. Like any other MMA claimant, plaintiffs with late-

17 accruing claims must file within a fixed amount of time. If they fail to do so, their

18 claim is lost. If our Legislature determines that our rule is not faithful to the MMA

19 or fails to reflect policy it deems most wise, it is free (as we have already noted) to


                                               15
 1 enact a provision that reflects its judgment about the most prudent way to

 2 accommodate plaintiffs with late-accruing claims.

 3 D.       Cahn Filed Her Late-Accruing Claim Against Dr. Berryman More Than
 4          Twelve Months After It Accrued

 5   {27}   Cahn’s claim against Dr. Berryman accrued late. At the time her claim

 6 accrued, ten and one-half months remained before the expiration of the repose period.

 7 Cahn filed suit against Dr. Berryman after the expiration of the repose period. One

 8 year and nine and one-half months—more than twenty-one months—elapsed between

 9 the date Cahn’s claim against Dr. Berryman accrued and the date she filed the

10 amended complaint in which he was named as a defendant. Thus, at the time Cahn

11 commenced suit against Dr. Berryman, more than twelve months had elapsed from

12 the date that Cahn’s claim accrued. Cahn has not argued that Dr. Berryman’s identity

13 was fraudulently concealed from her.         See Tomlinson, 2005-NMSC-020, ¶ 2

14 (recognizing that the statutory period of repose may be tolled when “the plaintiff does

15 not discover the alleged malpractice within the statutory period as a result of the

16 defendant’s fraudulent concealment.”). Accordingly, Cahn’s claim against Dr.

17 Berryman is barred by Section 41-5-13.

18 III.     CONCLUSION

19   {28}   Due process does not preclude application of Section 41-5-13 to bar Cahn’s

20 claim against Dr. Berryman. We affirm the Court of Appeals and remand to the

                                             16
 1 district court for the entry of final judgment or any further proceedings the court

 2 deems necessary.

 3   {29}   IT IS SO ORDERED.



 4                                       ___________________________________
 5                                       JUDITH K. NAKAMURA, Chief Justice



 6 WE CONCUR:



 7 ____________________________________
 8 CHARLES W. DANIELS, Justice



 9 ____________________________________
10 BARBARA J. VIGIL, Justice

11 EDWARD L. CHÁVEZ, Justice, specially concurring

12 PETRA JIMENEZ MAES, Justice, dissenting




                                           17
 1 CHÁVEZ, Justice (concurring in result).

 2   {30}   I concur in the result reached by the majority of the Court. However, I cannot

 3 join in the holding that “plaintiffs with late-accruing medical malpractice claims . . .

 4 shall have twelve months from the time of accrual to commence suit.” Maj. op. ¶ 1.

 5 I am not persuaded by either the majority or the dissenting opinion that this Court

 6 should adopt a specific time period within which a plaintiff must file a lawsuit when

 7 due process considerations are at issue. The polestar question in a due process

 8 analysis is whether reasonable time remains after a cause of action accrues within

 9 which a plaintiff, exercising due diligence, can file his or her claim before it is time-

10 barred under a statute of repose. If the answer is yes, then the claim must be filed

11 within the statute of repose. If the answer is no, then the claim must be filed within

12 a reasonable time after the statute of repose has expired. When reasonableness is the

13 essence of a substantive due process claim, due process abhors the expediency of

14 thoughtlessness. By necessity the due process analysis has always been a fact-based

15 analysis which takes into account more than the date that the plaintiff’s claim accrues.

16 Twelve months from when an action accrues under the Medical Malpractice Act

17 (MMA), NMSA 1978, §§ 41-5-1 to -29 (1976, as amended through 2015) may prove

18 to be a reasonable amount of time within which a plaintiff, exercising due diligence,

19 can file his or her claim. But whether the amount of time is reasonable depends on


                                              18
 1 the complexity of the case circumstances–not just when the cause of action accrued.

 2 For example, the complicated medical provider relationships that exist today, and the

 3 difficulty in identifying which doctor provided what treatment, or interpreted what

 4 lab results, radiographs, or so on, may make twelve months constitutionally

 5 inadequate. Nevertheless, because I conclude that Cahn had a reasonable time to

 6 bring her cause of action before the statute of repose expired, I concur in the result

 7 reached by the majority.

 8   {31}   I also do not agree with the dissenting opinion’s suggestion that Garcia ex rel.

 9 Garcia v. LaFarge, 1995-NMSC-019, 119 N.M. 532, 893 P.2d 428, essentially

10 requires a three-year accrual statute of limitations in MMA cases when the cause of

11 action accrues within the statute of repose. See dissenting op. ¶¶ 48, 53. In Garcia,

12 this Court found that eighty-five days before the statute of repose would run was too

13 short a period of time for the Garcias, who were the plaintiffs, to bring a lawsuit

14 against the defendant. Id. ¶ 37. Because the Legislature had not specified a

15 reasonable period of time within which to bring claims that accrue shortly before the

16 running of the statute of repose, in Garcia this Court imposed the three-year accrual

17 statute of limitation of NMSA 1978, Section 37-1-8 (Repl. Pamp. 1990). 1995-

18 NMSC-019, ¶ 37. The Garcia Court held that as it applied to the Garcias, Section

19 41-5-13 violated due process—the Court did not hold that the statute of repose was


                                               19
 1 unconstitutional on its face. 1995-NMSC-019, ¶¶ 36-37. Nor did the Garcia Court

 2 hold that Section 37-1-8 would be the controlling statute of limitation for MMA

 3 cases. 1995-NMSC-019, ¶ 37. Had it done so, I would vote to overrule Garcia

 4 simply on the basis of separation of powers.

 5   {32}   In addition, the procedural history in Garcia is remarkably different from the

 6 instant case. In Garcia, the latest act of malpractice occurred on February 8, 1989.

 7 1995-NMSC-019, ¶ 1. The plaintiffs had until February 8, 1992 to file a lawsuit. The

 8 cause of action arose out of a cardiac arrest that occurred on November 16, 1991,

 9 leaving the plaintiffs only eighty-five days to file suit under the statute of repose. Id.

10 ¶¶ 1, 6, 13. On February 24, 1992, the Garcias filed an application with the Medical

11 Review Commission. Id. ¶ 1. Under the provisions of Section 41-5-15(A), “[n]o

12 malpractice action may be filed in any court against a qualifying health care provider

13 before application is made to the medical review commission and its decision is

14 rendered.” The statute of repose is tolled “until thirty days after the panel’s final

15 decision is entered in the permanent files of the commission and a copy is served

16 upon the claimant and his attorney by certified mail.” Section 41-5-22; see also

17 Grantland v. Lea Reg’l Hosp., 1990-NMSC-076, ¶ 9, 110 N.M. 378, 796 P.2d 599

18 (holding that the statute of repose is tolled regardless of the outcome of the case).

19 The Garcias filed their claim against the correct doctor 109 days from when it


                                               20
 1 accrued, or stated differently, just sixteen days after the running of the limitation

 2 period in the statute of repose.

 3   {33}   Filing an application with the Commission as to one provider does not toll the

 4 limitations period as to another provider who was not named in the original

 5 application and for whom the statutory period in which to file a cause of action has

 6 passed. See Meza v. Topalovski, 2012-NMCA-002, ¶ 8, 268 P.3d 1284. I make this

 7 latter point because Cahn filed a claim with the Commission, but she did not name

 8 Berryman, which deprived her of the tolling provision as to him.

 9   {34}   Regarding the question of whether reasonable time remained after a cause of

10 action accrued within which Cahn, exercising due diligence, could have filed her

11 claim before the running of the statute of repose, the following analysis persuades me

12 that the answer is yes. Cahn received a pelvic ultrasound at West Mesa Medical

13 Center on May 19, 2006. On August 8, 2006, she met with Dr. Berryman and

14 provided him a copy of the written ultrasound report. Berryman neither referenced

15 the findings indicated by the ultrasound report nor scheduled a biopsy. Instead,

16 Berryman examined Cahn, diagnosed her as having endometriosis, prescribed

17 medication for that condition, and advised Cahn to return to his office for a follow-up

18 visit. She did not return for a follow-up visit.




                                              21
 1   {35}   Ultimately, as reflected in both the majority and the dissenting opinions, Cahn

 2 knew of her injury and its cause1 on September 22, 2008. However, she could not

 3 remember the name of the doctor who caused or contributed to her injury, or when

 4 he examined her. We know that Cahn had until August 8, 2009 to discover the

 5 identity of the doctor and sue him. By December 2008, Cahn had retained counsel

 6 to pursue her malpractice claim. Before retaining counsel, as early as October 27,

 7 2008, while recovering from major surgery, Cahn herself began investigating to

 8 determine the identity of the doctor whom she believed had committed the act of

 9 malpractice. Did Cahn have health insurance at the time? If so, who did her insurer

10 pay for the evaluation? Did she have a co-payment or a deductible she had to pay?

11 If she did, how did she pay it, and is there a record of who she paid?

12   {36}   These questions might seem obvious in retrospect, but Cahn herself knew to

13 ask the questions. In late 2008 Cahn contacted her health insurer, Lovelace Health

14 Plan, and requested her explanation of benefits (EOB) forms for May, June, and July

15 2006. The doctor’s identity was obviously not in the records that Cahn received

16 because she saw Dr. Berryman in August, 2006. It is not clear why Cahn only




17        1
            See Maestas v. Zager, 2007-NMSC-003, ¶ 19, 141 N.M. 154, 152 P.3d 141
18 (describing the discovery rule as when a plaintiff knows or with reasonable diligence
19 should have known of the injury and its cause, although the rule does not require that
20 the plaintiff discover that the defendant’s actions constitute medical malpractice).

                                              22
 1 requested EOBs for only three months. Had she requested all of the EOB forms for

 2 2006 she would have received an EOB dated August 23, 2006, which identified

 3 Berryman as the doctor who treated her on August 8, 2006. Lovelace Health Plan had

 4 mailed this EOB to Cahn shortly after she received Berryman’s medical services.

 5 Cahn’s credit union bank statement in August 2006 listed Cahn’s $30 co-payment to

 6 Sandia OB/GYN, where Berryman worked in August 2006.

 7   {37}   This procedural history persuades me that Berryman’s identity was reasonably

 8 ascertainable within the time remaining on the statute of repose. There is no evidence

 9 that Berryman was concealing, much less fraudulently concealing, his identity. I

10 would not find a due process violation in this case because the time was not

11 unreasonably short for Cahn and her attorneys to identify Berryman in time to file a

12 lawsuit within three years from the occurrence of the malpractice.

13   {38}   The harshness of the result will be troubling to some, but not to others. Law

14 is adversarial and morally ambiguous because both sides must make irreconcilable

15 moral arguments, and only one side wins. Regarding statutes of limitation or of

16 repose, I am reminded of what this Court stated in Cummings v. X-Ray Associates of

17 New Mexico, P.C., 1996-NMSC-035, ¶ 37, 121 N.M. 821, 918 P.2d 1321 (quoting

18 Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314 (1945) (alterations in

19 original) (footnote omitted):


                                              23
 1          There is no statute of limitations that does not prevent some identifiable
 2          class from litigating its cause of action. Such a class is always
 3          characterized by the fact that its members failed to timely pursue their
 4          claim. Whether this failure is through careless negligence or innocent
 5          lack of information is generally irrelevant to the constitutionality of the
 6          time limit.

 7                [Statutes of limitation] are by definition arbitrary, and their
 8                operation does not discriminate between the just and the
 9                unjust claim, or the voidable and unavoidable delay. They
10                have come into the law not through the judicial process but
11                through legislation. They represent a public policy about
12                the privilege to litigate. Their shelter has never been
13                regarded as what now is called a ‘fundamental’ right or
14                what used to be called a ‘natural’ right of the individual.
15                [The individual] may, of course, have the protection of the
16                policy while it exists, but the history of pleas of limitation
17                shows them to be good only by legislative grace and to be
18                subject to a relatively large degree of legislative control.

19   {39}   For example, had Mr. Garcia in the Garcia v. LaFarge case suffered his heart

20 attack eighty-six days later, on February 9, 1992, his cause of action would have been

21 time-barred, even though his cause of action had not accrued before then. See

22 Tomlinson v. George, 2005-NMSC-020, ¶ 8, 138 N.M. 34, 116 P.3d 105 (“[A] statute

23 of repose terminates the right to any action after a specific time has elapsed, even

24 though no injury has yet manifested itself.” (alteration in original) (internal quotation

25 marks and citation omitted)). This Court has upheld the constitutionality of the MMA

26 statute of repose when the cause of action accrues after the statute of repose has

27 expired against both an equal protection and a due process challenge. Cummings,


                                                24
1 1996-NMSC-035, ¶¶ 22-42. Upholding the constitutionality of the MMA statute of

2 repose in instances when the cause of action accrued after the statute of repose has

3 expired necessarily requires upholding its constitutionality in the present case, where

4 Cahn had reasonable time to bring her cause of action before the statute of repose

5 expired.

6   {40}   I respectfully concur in the result reached by the majority.



7                                                  _____________________________
8                                                  EDWARD L. CHÁVEZ, Justice




                                              25
 1 MAES, Justice (dissenting).

 2   {41}   Because I believe the teachings of our prior cases, the relevant statutory

 3 structure, the nature of the due process guarantee, and other fundamental

 4 constitutional considerations counsel against adoption of the twelve-month rule the

 5 majority creates today, I respectfully dissent.

 6 I.       The Terry–Garcia Analysis

 7   {42}   The principles of our prior cases suggest we need not create a new rule here.

 8 For causes of action accruing within the statutory period—as Cahn’s did here—our

 9 cases have made clear the statutory repose function is typically irrelevant; instead, we

10 must answer two precise due process-oriented questions regarding the remaining

11 effective limitations period for the cause after accrual. See Terry v. N.M. State

12 Highway Comm’n, 1982-NMSC-047, ¶¶ 10, 17, 98 N.M. 119, 645 P.2d 1375

13 (examining ten-year repose period for construction defect suits). First, because “[t]he

14 constitutionality of statutes of limitation has hinged on the reasonableness of the time

15 provided to pursue a remedy,” id. ¶ 14, we have investigated whether and when the

16 potentially remaining effective period for filing a complaint may be so “abbreviated”

17 as to be constitutionally unreasonable. Id. ¶ 16. And where the potential period for

18 filing is unreasonably abbreviated, we noted in Terry, we must address a second

19 critical question of what the appropriate limitations period for the claim may be in the


                                              26
 1 absence of a specific legislative prescription in the repose provision or related

 2 provisions. Id. ¶ 17.

 3   {43}   Investigating the second question in Terry, we emphasized that “it is not a

 4 judicial function to set appropriate limitations periods.” Id. Instead of creating our

 5 own applicable period, we briefly surveyed other legislatively-drawn periods. Id. A

 6 period as short as a single year for certain causes of action, we observed, might

 7 survive constitutional scrutiny, when “justified by specific considerations.” Id. But

 8 where “the Legislature has not specified a shorter reasonable period of limitations”

 9 for the specific kind of action before us, we added, our task is “to apply the period

10 provided by the applicable” background statutes of limitations. Id. And thus the

11 Terry result was straightforward: because the construction-defect repose provision

12 at issue in Terry gave no specific limitations guidance and because the Terry

13 plaintiffs’ claims were actions for wrongful death and personal injury, we simply

14 applied the legislatively-prescribed periods for wrongful death and personal injury

15 causes of action, much as other courts had done at the time. Id.; see Gaines v.

16 Preterm-Cleveland, Inc., 514 N.E.2d 709, 716 (Ohio 1987) (applying background

17 malpractice limitation period in place of constitutionally problematic medical

18 malpractice provision); McMacken v. State, 320 N.W.2d 131, 139 (S.D. 1982)

19 (applying background personal injury limitation period in place of constitutionally


                                             27
 1 problematic construction defect provision), overruled on other grounds by Daugaard

 2 v. Baltic Co-op. Bldg. Supply Ass’n, 349 N.W.2d 419 (S.D. 1984); Hunter v. School

 3 Dist. of Gale-Ettrick-Trempealeau, 293 N.W.2d 515, 522 (Wis. 1980) (affirming

 4 court of appeals decision applying background limitation period in place of more

 5 specific period with constitutionally problematic application).

 6   {44}   In Terry, because both statutory background provisions established limitations

 7 periods of three years from the time of accrual and the plaintiffs’ claims had accrued

 8 approximately three months before expiration of the ten-year repose period for

 9 construction defect claims, application to the plaintiffs’ claims added two years and

10 nine months to the effective limitations period remaining under the construction-

11 defect provision. 1982-NMSC-047, ¶¶ 9, 17. Application of those background

12 statutory provisions had the effect of giving the Terry plaintiffs adequate time to file

13 and the additional effect of treating similarly all prospective plaintiffs for whom

14 actions accrue before the end of the period of repose. While neither effect merited

15 mention in Terry, I suggest the result should guide our analysis today and in the

16 future.

17   {45}   In early cases examining the effect of NMSA 1978, Section 41-5-13 (1976),

18 we had no trouble with, and no objection to, application of the basic Terry principles.

19 See, e.g., Garcia ex rel. Garcia v. La Farge, 1995-NMSC-019, ¶¶ 34-37, 119 N.M.


                                              28
 1 532, 893 P.2d 428; Crumpton v. Humana, Inc., 1983-NMSC-034, ¶ 5, 99 N.M. 562,

 2 661 P.2d 54. In Crumpton, for example, where a cause of action had accrued on the

 3 date of alleged malpractice and the plaintiff filed suit more than three years after the

 4 date, we marshaled both Section 41-5-13 and the general personal injury limitations

 5 period in support of a conclusion the plaintiff’s suit was time-barred. See Crumpton,

 6 1983-NMSC-034, ¶ 5. The statutes read in tandem, we concluded, “clearly indicate

 7 that the statute of limitations” for purposes of these causes of action “commences

 8 running from the date of injury or the date of the alleged malpractice.” Id. (emphasis

 9 in original). The most probable reason for application of the general personal injury

10 limitations period was clear: we were reluctant to impose our own background rule

11 in the event Section 41-5-13 could not provide the rule for decision under the

12 circumstances.

13   {46}   We revisited the question of the applicable limitations period under Section 41-

14 5-13 again in Garcia, where we explicitly adopted and applied the two-step Terry

15 inquiry for claims arising under the Medical Malpractice Act (MMA), NMSA 1978,

16 § 41-5-1 to -29 (1976, as amended through 2015). See Garcia, 1995-NMSC-019, ¶¶

17 29-37. We observed that Section 41-5-13 incorporates functions of both repose and

18 limitation, much like the construction-defect provision at issue in Terry. Garcia,

19 1995-NMSC-019, ¶ 14. We reiterated that, for purposes of the limitation function,


                                               29
 1 the constitutionality of the provision would turn on the reasonableness of the time

 2 provided for pursuit of existing causes of action. Id. ¶ 34. Any constitutionally-

 3 appropriate limitations period, we noted, “ ‘must proceed on the idea that the party

 4 has full opportunity afforded him to try his right in the courts.’ ” Id. ¶ 33 (quoting

 5 Wilson v. Iseminger, 185 U.S. 55, 62 (1902)).

 6   {47}   Faced with a plaintiff in Garcia whose claim accrued eighty-five days before

 7 the three-year period expired, we observed, much as we had in Terry, that a statutory

 8 provision allowing “an unreasonably short period of time within which to bring an

 9 accrued cause of action violates the Due Process Clause of the New Mexico

10 Constitution.” Garcia, 1995-NMSC-019, ¶ 36. That the remaining effective

11 limitations period for various potential claims arising under Section 41-5-13 was

12 unreasonably short was unquestioned because the potentially effective period would

13 have been unreasonably abbreviated for any “claim accruing near the end of the

14 limitations period.” Garcia, 1995-NMSC-019, ¶ 36.

15   {48}   Having concluded application of the remaining limitations period under

16 Section 41-5-13 was constitutionally problematic, we turned to the second Terry

17 inquiry of what limitations period should appropriately govern the plaintiff’s claims.

18 Garcia, 1995-NMSC-019, ¶ 37. In answering that question, we relied on Terry

19 exclusively, noting, as we had in Terry, that while a court “may determine that the


                                             30
 1 limitations period selected is unreasonably short,” “it is generally a matter for the

 2 legislature to establish limitations periods.” Garcia, 1995-NMSC-019, ¶ 37. And

 3 because the Legislature had not offered some other specific limitation period in the

 4 MMA, we concluded, much as we had in Terry, that the background three-year rule

 5 for personal injury actions, running from the date of accrual, would govern the

 6 plaintiff’s claims and, as in Terry, would have the effects of adding significant time

 7 to the limitation period remaining under the repose provision (approximately two

 8 years and ninth months) and treating similarly all claimants for whom causes of

 9 action accrue prior to the end of the repose period. Garcia, 1995-NMSC-019, ¶ 37.

10   {49}   Our Cummings case came just a year after Garcia, and in Cummings we again

11 explained Section 41-5-13 incorporates functions of both repose and limitation.

12 Cummings v. X-Ray Assocs. of N.M., P.C., 1996-NMSC-035, ¶¶ 47-48, 121 N.M. 821,

13 918 P.2d 1321. And in lieu of explicitly invoking the two-step Terry–Garcia

14 analysis, we explained that the Cummings plaintiff could not benefit from our

15 standard due process-based limitations analysis because she had failed to “exercise

16 diligence when she first learned she had been misinformed about the mass in her

17 lung” by the defendant.       Cummings, 1996-NMSC-035, ¶ 57.            Our analysis

18 emphasized a lack of diligence. But diligence aside, Cummings can be simply

19 understood as yet another application of the two-step Terry–Garcia analysis. Section


                                             31
 1 41-5-13, we concluded, left various potential claimants an unreasonably abbreviated

 2 period of time within which to pursue causes of action, and thus Terry and Garcia

 3 required that we look to the relevant background rule. Cf. id. ¶ 55 (quoting Garcia,

 4 1995-NMSC-019, ¶ 26). The Cummings action was an action for personal injury, and

 5 thus the three-year personal injury period applied. See Garcia, 1995-NMSC-019, ¶

 6 37. And that was dispositive: because the Cummings action had accrued on February

 7 23, 1990, the three-year legislative background rule supplied by the Terry–Garcia

 8 analysis would have given the plaintiff until February 23, 1993, to file. But having

 9 waited to sue the defendant until December 7, 1993, the plaintiff was too late, at

10 nearly ten months beyond expiration of the background rule. Cummings, 1996-

11 NMSC-035, ¶ 57.

12   {50}   Despite the straightforward teachings of Terry, Garcia, and Cummings, and

13 despite decades of legislative acquiescence to those decisions, we got off track in

14 Tomlinson v. George, 2005-NMSC-020, 138 N.M. 34, 116 P.3d 105. Cf. Basic Inc.

15 v. Levinson, 485 U.S. 224, 230-31 (1988) (observing “[j]udicial interpretation and

16 application, legislative acquiescence, and the passage of time have removed any

17 doubt” regarding future application of past interpretive decisions). We avoided

18 legislating in these earlier three cases, and a legislatively-prescribed background rule

19 supplied the appropriate rule for decision in each case. Glossing over that history, we


                                              32
 1 pronounced in Tomlinson that Cummings had concluded “that one and one-half years

 2 is a constitutionally reasonable period of time within which to file a claim.”

 3 Tomlinson, 2005-NMSC-020, ¶ 23. But of course, we put it very differently in

 4 Cummings stating that:

 5          At that time there was still about a year and a half before the statute of
 6          repose on her malpractice claim expired. Nevertheless, she sat on her
 7          rights and did not file any claim for more than two years, on July 27,
 8          1992. By that time, almost four years had passed since the 1988 act of
 9          malpractice. She did not sue X-Ray Associates until December 7, 1993,
10          more than five years after the act. Cummings lost her medical
11          malpractice claim through her own lack of diligence.

12 Cummings, 1996-NMSC-035, ¶ 57 (emphasis added). Why that one and one-half

13 year period received the transposition it did in Tomlinson was and remains

14 unexamined. Regardless, it is sufficient for our purposes today to note we refused to

15 impose our own limitation period in Terry, and in Garcia, and in Cummings, because

16 the statutory background rule had supplied the rule for decision instead. But in

17 Tomlinson, we undid the analyses of those cases and crafted our own rule, concluding

18 “two years and eight months is a constitutionally reasonable period of time within

19 which to file” a claim. 2005-NMSC-020, ¶ 24.

20   {51}   Faithful application of the Terry–Garcia analysis would have required the

21 opposite result. The Tomlinson plaintiff’s claim was again one for personal injury,

22 and the three-year personal injury limitation period should have governed, much as


                                               33
 1 it had in Terry, 1982-NMSC-047, ¶ 17, in Garcia, 1995-NMSC-019, ¶ 37, and in

 2 Crumpton, 1983-NMSC-034, ¶ 5. And application of the legislatively-prescribed

 3 three-year period suggests the Tomlinson plaintiff was timely: the claim accrued on

 4 December 24, 1996, and she filed an application with the statutorily-created medical

 5 review commission, which tolls the running of the limitation period, on December 13,

 6 1999. 2005-NMSC-020, ¶¶ 4-5; see NMSA 1978, § 37-1-8 (1976).

 7   {52}   Two obvious objections to that outcome in Tomlinson would have arisen; both,

 8 however, had been asked and answered in our prior cases. Filing outside the three-

 9 year window provided by Section 41-5-13 seems at odds with the basic statutory

10 language—but as we noted in Terry and again in Garcia, “considerations of fairness

11 implicit in the Due Process Clauses of the United States and New Mexico

12 Constitutions dictate that when the legislature enacts a limitations period it must

13 allow a reasonable time within which existing or accruing causes of action may be

14 brought.” Garcia, 1995-NMSC-019, ¶ 36; accord Terry, 1982-NMSC-047, ¶¶ 14-15.

15 And two years and eight months may have seemed a generously long period for

16 pursuit of the claim, but the statute itself allows three years for early accruing claims;

17 the background period for personal injury actions allows three years; we had applied

18 the background period before without objection from the Legislature; and as we have

19 repeatedly explained, “it is not a judicial function to set appropriate limitations


                                               34
 1 periods.” Terry, 1982-NMSC-047, ¶ 17; see Garcia, 1995-NMSC-019, ¶ 37; accord

 2 Feldhake v. City of Santa Fe, 1956-NMSC-079, ¶ 33, 61 N.M. 348, 300 P.2d 934,

 3 (“The courts cannot legislate . . . .”).

 4   {53}   We could reject, narrow, or find another justification for Tomlinson, but my

 5 concern here is that the majority’s recap of the case law puts this history aside to

 6 Cahn’s great detriment, and this new twelve-month rule entangles and imperils

 7 fundamental separation-of-powers jurisprudence. See, e.g., De Graftenreid v. Strong,

 8 1922-NMSC-031, ¶ 8, 28 N.M. 91, 206 P. 694 (“Courts cannot read into an act

 9 something that is not within the manifest intention of the Legislature, as gathered

10 from the statute itself. To do so would be to legislate . . . .”). Despite the Tomlinson

11 pronouncement regarding Cummings, we have never in this context held, or even

12 concluded, that “eighteen months is a constitutionally reasonable period” for

13 requiring the filing of a claim. Instead, we have asked whether Section 41-5-13

14 provides an unreasonably abbreviated limitation period for various potential claims

15 and, answering that question in the affirmative, we have moved on to the question of

16 what limitation period should govern for claims accruing before Section 41-5-13

17 repose applies. The answer was clear in Garcia, as it was in Crumpton—the

18 legislatively-supplied personal injury limitation period governs those claims where

19 Section 41-5-13 cannot—and it provided the rule of decision for Cummings. The


                                              35
 1 answer is just as clear here, and Cahn should benefit from it. Her claim accrued on

 2 September 22, 2008, within the Section 41-5-13 period; given the background

 3 personal injury provision of three years, she had until September 22, 2011, to file; and

 4 she filed against Berryman on July 9, 2010, well within the three-year deadline

 5 imposed by the background provision.

 6   {54}   The twelve-month rule the majority adopts raises two concerns. First, in order

 7 to create this new rule, the majority overrules Garcia but does so sua sponte.

 8 Majority Op. ¶ 22. Because no party requested that Garcia be overruled and we did

 9 not request briefing, we are overturning precedent without the benefit of stare decisis.

10 Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶¶ 33-36 (“Stare decisis is the

11 judicial obligation to follow precedent, and it lies at the very core of the judicial

12 process of interpreting and announcing law” and “[p]articular questions must be

13 considered before overturning precedent.”); see State v. Riley, 2010-NMSC-005, ¶

14 40, 147 N.M. 557, 226 P.3d 656, (Chávez, J., specially concurring, Bosson, J.,

15 concurring in part and dissenting in part, Daniels, J., specially concurring) (explaining

16 stare decisis prevents this Court from overruling precedent where the parties have not

17 briefed and specifically argue the relevant factors to be considered before overturning

18 our precedent). Secondly, creation of a new rule constitutes the kind of legislation

19 we said we could not craft in Terry and Garcia. Thus I would not adopt it here. I


                                              36
 1 would also decline to apply the rule retroactively, because we cannot know how

 2 Cahn’s pursuit of her claim would have transpired had she known she had more time

 3 available as she encountered expiration of the initial limitations period. Instead, I

 4 would apply the Terry–Garcia analysis as we have applied it in the past; and having

 5 done that, I would reverse the court of appeals decision and reinstate the conditional

 6 verdict of the district court.

 7 II.      The Statutory Architecture

 8   {55}   Even were we hesitant to apply the legislatively-supplied three-year

 9 background rule despite the applications in Terry and Garcia and the ensuing decades

10 of legislative acquiescence, I believe the MMA is designed to obviate the problem

11 that plagued Cahn here. The statutory structure, in other words, suggests claims

12 arising in the posture Cahn’s did here need not be subject to the Section 41-5-13

13 repose.

14   {56}   The MMA made various changes to the way our courts process medical

15 negligence claims; among those changes was the addition of the Section 41-5-13

16 repose provision we have given much attention today. The MMA also established a

17 “medical review commission,” the function of which “is to provide panels to review

18 all malpractice claims against health care providers covered by the [MMA].” Section

19 41-5-14(A). After the requisite review, the panel is tasked with deciding “(1) whether


                                             37
 1 there is substantial evidence that the acts complained of occurred and that they

 2 constitute malpractice; and (2) whether there is a reasonable medical probability that

 3 the patient was injured thereby.” Section 41-5-20(A)(1)-(2).

 4   {57}   This review is required for any claims made against qualifying providers like

 5 Berryman; the MMA directs that “[n]o malpractice action may be filed in any court

 6 against a qualifying health care provider before application is made to the medical

 7 review commission and its decision is rendered.” Section 41-5-15. And the review

 8 is substantive. An application by a claimant must contain (1) facts, names, dates, and

 9 circumstances, “so far as they are known,” and (2) a statement authorizing “access to

10 all medical and hospital records and information pertaining to the matter.” Id. Health

11 care providers involved have reciprocal obligations—they must “answer the

12 application for review,” and they must “submit a statement authorizing” the reviewing

13 panel “to obtain access to all medical and hospital records and information pertaining

14 to the matter.” Section 41-5-16(B). Eventually, the panel must hold a hearing on the

15 matter; and post-hearing, should the panel conclude it still lacks relevant information

16 for purposes of making the determinations required by statute, the panel “may request

17 that additional facts, records, witnesses or other information be obtained.” Section

18 41-5-19(D). Recognizing the burden this review imposes on the claimant and

19 recognizing the time any review of substance might require, our Legislature built into


                                              38
 1 the MMA a tolling provision which directs that “[t]he running of the applicable

 2 limitation period” for these professional negligence claims is tolled while the panel

 3 gathers information, reviews, and deliberates. Section 41-5-22.

 4   {58}   The provisions governing this review process are instructive in several ways.

 5 The flexibility of the phrase “applicable limitation period” of Section 41-5-22 in the

 6 tolling provision and the absence of specific reference to the limitation period of

 7 Section 41-5-13 are telling. The Legislature surely knew how to incorporate related

 8 provisions by reference, and did so elsewhere in the MMA. See, e.g., Section 41-5-

 9 5(A)(2) (making reference to specific provisions in Section 41-5-25). The omission

10 of any mention of Section 41-5-13 in the general language of Section 41-5-22

11 suggests the Legislature may well have understood multiple limitations periods might

12 govern claims brought under the MMA. And the existence of the tolling provision

13 itself reflects a legislative judgment that Section 41-5-13 is not a standard repose

14 provision—repose periods are typically “fixed” and not to “be delayed by estoppel

15 or tolling.” 4 Charles Alan Wright, Arthur A. Miller & Adam N. Steinman, Federal

16 Practice and Procedure § 1056 (4th ed. 2015); see also CTS Corp. v. Waldburger,

17 134 S. Ct. 2175, 2183 (2014).

18   {59}   More important still are the MMA’s information-seeking provisions. The basic

19 purposes underlying creation of the commission and review suggest the information-


                                              39
 1 seeking provisions were designed to preclude the problem that arose here. The

 2 legislative objective in creating these screening panels was, ostensibly, to expedite

 3 resolution of claims, with associated goals of reducing the overall costs of processing

 4 these claims and promoting judicial efficiency. See Jean A. Macchiaroli, Medical

 5 Malpractice Screening Panels: Proposed Model Legislation to Cure Judicial Ills, 58

 6 Geo. Wash. L. Rev. 181, 186, 240 (1990) (“[A]ll state legislatures that have created

 7 screening panels have done so for essentially identical reasons.”). These panels, in

 8 other words, were created to screen, streamline, and filter claims for the parties and

 9 the courts. Efficiency across both levels of review—panel and court—was a

10 prominent goal. And these objectives suggest the timeline regarding identification

11 of Berryman here was (1) exceptional, and (2) not likely the kind of timeline our

12 Legislature intended to proscribe in establishing the Section 41-5-13 repose. Once

13 Cahn had timely filed with respect to Lovelace and some of the other providers here,

14 the screening mechanism should typically have identified any individuals

15 involved—the statutory provisions mandate that both parties authorize access to all

16 relevant information, and the panel has an ongoing obligation to seek any information

17 necessary for making its determinations. In most cases, the year-long search for

18 Berryman in discovery should then have been unnecessary; had the panel encountered

19 the same identification difficulty, a case for estoppel or fraudulent concealment might


                                             40
 1 have loomed large. And regardless whether those cases could be made, nothing in

 2 the statutory provisions suggests the claimant should suffer when the providers and

 3 panel fail to satisfy their own identification obligations—the Section 41-5-13 repose

 4 is tolled for as long as the screening process takes.

 5   {60}   One objection to reliance on the statutory scheme for guidance may be that

 6 with the exception of Berryman, none of the other providers were covered providers

 7 here. The record does not clearly reveal the status of the other providers for us; were

 8 it the case they were all uncovered providers, no screening would have been required

 9 until Berryman was identified, and Cahn would not have benefitted from the

10 information-producing apparatus of review. But it would be at odds with the goals

11 of both the MMA and review to suggest the scheme is intended to encourage

12 affiliations between entities avoiding the burdens of qualification under the MMA

13 and contracting providers who gain its protections, while at the same time

14 encouraging the basic relational disorganization, dysfunction, and opacity giving rise

15 to the identification problem here. The point, we have said, is to “encourage more

16 physicians to carry” insurance—not to encourage strategic and opaquely drawn

17 relationships with those not carrying insurance. Garcia, 1995-NMSC-019, ¶ 24.

18   {61}   Instead, the basic legislative preference for filtering, and for developing the

19 information relevant to, as many of these claims as possible in review suggests a


                                              41
 1 legislative understanding that the identification problem and protracted discovery that

 2 occurred here should rarely, if ever, arise for qualified providers like Berryman.

 3 When those problems do arise and the identification problem is relevant to resolution

 4 of the claim, repose is typically tolled. Nothing in the MMA suggests the result

 5 should be different for qualified providers when they affiliate with non-qualified

 6 providers. Cf. Grantland v. Lea Reg’l Hosp., Inc., 1990-NMSC-076, ¶ 8, 110 N.M.

 7 378, 796 P.2d 599 (“If we require claimants to file in district court at the peril of

 8 losing their case before the classification of the health care provider is known, then

 9 every claim will be filed in district court as a safety precaution, and the purpose

10 behind the [MMA] . . . will be defeated.”).

11   {62}   Based on that architecture and based on the stipulation here of absence of any

12 cost concerns arising from potential frivolity, staleness, questions of causation, or

13 difficulties in establishing misdiagnosis based on negligence, I do not believe we

14 should conclude the Section 41-5-13 repose was designed to apply to the

15 circumstances as they arose here. Compare Cummings, 1996-NMSC-035, ¶ 38

16 (justifying application of repose on grounds that “[c]laims could arise long after

17 memories have faded, parties become unavailable, and evidence is lost”).




                                              42
 1 III.     Due Process and Circumstance-Specific Reasonableness

 2   {63}   And most importantly, this new twelve-month rule that is to be applied in

 3 every case regardless the circumstances (with potential carve-outs for other

 4 exceptional scenarios like fraudulent concealment, which Cahn does not press on

 5 appeal here), is inconsistent with the longstanding case law establishing that due

 6 process protection requires circumstance-specific investigation before we may

 7 extinguish a vested right. See, e.g., Terry v. Anderson, 95 U.S. 628, 633 (1877)

 8 (considering “all the circumstances”); Wilson v. Iseminger, 185 U.S. at 63 (1902)

 9 (“[W]hat is reasonable in a particular case depends upon its particular facts.”); Terry,

10 1982-NMSC-047, ¶ 16 (examining potential application of limitations periods “under

11 these facts”); cf. Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 428 (1965) (“This

12 policy of repose, designed to protect defendants, is frequently outweighed, however,

13 where the interests of justice require vindication of the plaintiff’s rights.”).

14   {64}   Any cause of action that has accrued as Sarah Cahn’s has here is a “species of

15 property protected by the Fourteenth Amendment’s Due Process Clause.” Logan v.

16 Zimmerman Brush Co., 455 U.S. 422, 428 (1982). Due process protection, the United

17 States Supreme Court has often explained, generally requires that any deprivation of

18 life, liberty, or property be preceded by notice and an opportunity to be heard in a

19 manner appropriate for “the nature of the case.”           Cleveland Bd. of Educ. v.


                                              43
 1 Loudermill, 470 U.S. 532, 542 (1985) (citation omitted). In the context of limitations

 2 periods, we have explained “that statutes of limitation may be passed where formerly

 3 there were none, and existing limitation periods may be reduced while the time is still

 4 running,” but due process requires that a “reasonable time” be “left for the institution

 5 of an action before it is time-barred.” Terry, 1982-NMSC-047, ¶ 14; accord Sohn v.

 6 Waterson, 84 U.S. 596, 599 (1873) (“[I]f an action accrued more than the limited time

 7 before the statute was passed a literal interpretation of the statute would have the

 8 effect of absolutely barring such action . . . . It will be presumed that such was not

 9 the intent of the legislature. Such an intent would be unconstitutional.”). And we

10 have extended application of that rule, imposing it as “an appropriate general

11 restriction on the Legislature’s right to statutorily limit actions”—a right our

12 Legislature has attempted to exercise in Section 41-5-13. Terry, 1982-NMSC-047,

13 ¶ 15.

14   {65}   “Reasonable time” in this context has always had an intentionally flexible

15 meaning. The reasonableness determination, the United States Supreme Court long

16 ago observed, must account for “all the circumstances” of a particular case. Terry v.

17 Anderson, 95 U.S. at 633. Reasonableness in any given case, in other words, depends

18 “upon its particular facts.” Id.; see also Terry, 1982-NMSC-047, ¶ 16 (“We hold that

19 such an abbreviated period is unreasonable.”). It has no “fixed content,” and we must


                                              44
 1 evaluate it “as the particular situation demands.” U.S. West Commc’ns v. N.M. State

 2 Corp. Comm’n (In re 1997 Earnings of U S West Commc’ns, Inc.), 1999-NMSC-016,

 3 ¶ 25, 127 N.M. 254, 980 P.2d 37 (citation omitted); accord Anderson Nat. Bank v.

 4 Luckett, 321 U.S. 233, 246 (1944) (“What is due process in a procedure affecting

 5 property interests must be determined by taking into account the purposes of the

 6 procedure and its effect upon the rights asserted and all other circumstances which

 7 may render the proceeding appropriate to the nature of the case.”).

 8   {66}   In the context of the MMA, we have often observed that the due process

 9 guarantee requires us to account for all case-specific circumstances; and based on

10 those circumstances, the guarantee may compel us to conclude the MMA’s provisions

11 must yield. See, e.g., Jiron v. Mahlab, 1983-NMSC-022, ¶ 12, 99 N.M. 425, 659 P.2d

12 311 (“[W]here the requirement of first going before the Medical Review Commission

13 causes undue delay prejudicing a plaintiff by the loss of witnesses or parties, the

14 plaintiff is unconstitutionally deprived of his right of access to the courts.”). Due

15 process therefore, ensures that “claimants who make a good-faith attempt to comply

16 with the [MMA]” are “not [to] be deprived of their day in court by placing form

17 above substance.” Grantland, 1990-NMSC-076, ¶ 6; see Otero v. Zouhar, 1985-

18 NMSC-021, ¶ 22, 102 N.M. 482, 697 P.2d 482, overruled by Grantland,

19 1990-NMSC-076 (concluding claimant had failed to comply with strict requirements


                                            45
 1 of Act but had done “what might reasonably be expected of a person of ordinary

 2 prudence, acting under similar circumstances, who desired to comply with the law”

 3 (internal quotation marks and citations omitted)).       And thus for purposes of

 4 evaluating the MMA’s limitation function, we have explained that “protecting the

 5 defendant is a laudatory goal,” but any period imposed “should reflect a policy

 6 decision regarding what constitutes an adequate period of time for a person of

 7 ordinary diligence to pursue his claim.” Roberts v. Sw. Cmty. Health Servs.,

 8 1992-NMSC-042, ¶ 26, 114 N.M. 248, 837 P.2d 442 (internal quotation marks

 9 omitted).

10   {67}   Our due process reasonableness determination in the limitations context, in

11 other words, has always necessarily incorporated an examination of the claimant’s

12 diligence in pursuing a claim. See Cummings, 1996-NMSC-035, ¶ 57 (“Cummings

13 lost her medical malpractice claim through her own lack of diligence.”). The concept

14 is neither novel nor antiquated—the diligence inquiry has long featured in due

15 process reasonableness determinations and still does. See, e.g., Herron v. Anigbo,

16 897 N.E.2d 444, 449 (Ind. 2008) (“[T]he plaintiff must file before the statute of

17 limitations has run if possible in the exercise of due diligence.”); Tenet Hosps. Ltd.

18 v. Rivera, 445 S.W.3d 698, 703 (Tex. 2014) (“[A]n open courts challenge is a due

19 process complaint and requires the party to use due diligence.”); accord Canadian N.


                                             46
 1 Ry. Co. v. Eggen, 252 U.S. 553, 562 (1920) (explaining “power is in the courts . . .

 2 to determine the adequacy and reasonableness” of access to courts, and concluding

 3 constitutional problem is avoided when claimant “is given free access to them for a

 4 length of time reasonably sufficient to enable an ordinarily diligent man to institute

 5 proceedings for their protection”). And even in Tomlinson, on which the majority

 6 relies today for support for elimination of the case-specific diligence inquiry, we

 7 recognized that we accept claims conflicting with the MMA’s provisions “in cases

 8 involving peculiar facts . . . and when a good faith effort has been made to comply

 9 with the Act.” 2005-NMSC-020, ¶ 22 (internal quotation marks omitted). For this

10 reason, I disagree with the majority that injecting our judgment to decide how much

11 additional time to grant claimants with late accruing action is to adopt statute of time

12 limitations from other jurisdictions. Majority Op ¶¶ 24- 24. And I would answer the

13 question “How much additional time, exactly, is Cahn entitled?” by looking at the

14 specific facts in Cahn’s case.

15   {68}   Resolution of the traditional diligence inquiry given Cahn’s facts is

16 straightforward. By September 2008, two years after Cahn had been misdiagnosed

17 by Berryman, she had relocated to Jackson, Wyoming, and she was still none the

18 wiser. On September 19, 2008, she underwent an annual pap smear and discussed her

19 chronic pelvic pain with a new Wyoming doctor. A copy of her original radiology


                                              47
 1 report was sent to the new physician’s office, and she was promptly scheduled for a

 2 CT scan on September 22, 2008, three days after her initial visit. Her new scan

 3 revealed “extensive abnormality in the pelvis,” which was characterized as “highly

 4 suspicious for an ovarian malignancy.” In the next few weeks, she traveled from

 5 Wyoming to New York’s Memorial Sloan-Kettering Cancer Center for confirmation

 6 of the diagnosis and underwent extensive surgery soon after. Her diagnosis was

 7 “metastatic serous borderline tumor of the ovary,” and because the tumor had been

 8 incorrectly diagnosed at initial discovery, the cancer had progressed from stage I to

 9 stage IIIC, substantially decreasing her chances of remedy. On October 15, 2008, she

10 underwent a total abdominal hysterectomy, a bilateral salpingo-oophorectomy, a

11 pelvic and para-aortic node dissection omentectomy, and she was fitted with an

12 intraperitoneal catheter. She remained in New York under the care of her parents for

13 approximately eight months.

14   {69}   Quickly recognizing she had been misdiagnosed, Cahn went to work—as she

15 recuperated in New York—to uncover the identity of Berryman, who had made the

16 error two years earlier. Within twelve days of that massive corrective surgery on

17 October 15, she was sending records requests. Between October 27, 2008, and

18 November 3, 2008, she sent at least eight requests for information to Lovelace

19 Women’s Hospital, Lovelace Westside Hospital, and ABQ Health Partners, in pursuit


                                            48
 1 of Berryman’s name. None of the records she received in response made note of her

 2 August 2006 visit or Berryman’s identity.

 3   {70}   In the next month, sensing she might have a viable malpractice claim, she

 4 retained—again from New York—Albuquerque counsel to assist with development

 5 of what at that point could only have appeared a complex case. She indicated to her

 6 Albuquerque attorneys she thought she remembered the date of the relevant 2006

 7 appointment with Berryman, but she could not remember his name. Cahn’s attorneys

 8 investigated the records she had already received in response to her initial requests,

 9 and they sought to supplement the information over the next two months with new

10 requests to all three participating facilities for Cahn’s “complete medical chart” and

11 any applicable itemized billing statements covering the period from May 17, 2006,

12 through the time of the requests. All told, Cahn and her attorneys sent the provider

13 entities at least sixteen distinct records requests. Eventually, as a result of her

14 investigation, Cahn discovered she had been assigned three separate medical records

15 numbers in the Lovelace Sandia Health System, which was highly unusual for

16 Lovelace patients; nonetheless, Berryman remained unnamed.

17   {71}   Due at least in part to that unorthodox recordkeeping, Berryman’s identity

18 remained a mystery to Cahn and her counsel despite several months of active

19 investigation. Recognizing the Section 41-5-13 limitation period was nearing an end,


                                             49
 1 Cahn, on April 10, 2009, timely filed a district court action, naming the various

 2 provider identities she had been able to uncover and adding a placeholder physician

 3 John Doe defendant until Berryman could be identified. Cahn’s attorneys actively

 4 continued to seek Berryman’s identity in the district court proceeding—but discovery,

 5 experience shows, is rarely quick or clean. Finally, discovery responses received on

 6 July 1, 2010 revealed Berryman’s name. Days later, on July 6, 2010, Cahn, noting

 7 the long and protracted “concerted efforts” she had made to uncover Berryman’s

 8 identity, sought to amend her complaint to add Berryman in place of the Doe

 9 defendant. The district court, finding Cahn’s contentions “well taken,” granted her

10 leave, and on July 9, 2010 Cahn filed her amended complaint naming Dr. Berryman.

11 Berryman then moved for summary judgment on the ground Cahn’s amended

12 complaint was untimely under Section 41-5-13. But the district court, having

13 reviewed this extensive history of Cahn’s case, explained our due process case law

14 compelled a conclusion that the Section 41-5-13 period could not bar her claims, and

15 denied the motion.

16   {72}   That record is sufficient to establish Cahn’s diligence, and it is thus sufficient

17 to allow us to conclude, as the district court did, that any period shorter than the

18 twenty-one months that elapsed between accrual and filing with respect to Berryman

19 would have been unreasonably abbreviated under the circumstances. This was not


                                                50
 1 a case where Cahn “sat on her rights” and failed to “file any claim for more than two

 2 years.” Cummings, 1996-NMSC-035, ¶ 57. And it was clearly not a case where she

 3 “knew of her cause of action and had over two years and eight months during the

 4 statutory period in which to file her claim.” Tomlinson, 2005-NMSC-020, ¶ 28.

 5 Because it is important to compare the majority rule to Cahn’s timeline, I also

 6 include a pictorial representation at the end of my dissent as appendix B.

 7   {73}   Even Berryman concedes the timeline here may be attributable largely to

 8 Lovelace; in that case, he asks only that he not be “deprived” of a “substantive right”

 9 based on Lovelace’s wrongdoing. Whether that argument should prevail may be a

10 question worth revisiting—regardless, it should have no bearing on the diligence

11 determination. See, e.g., Campbell v. Holt, 115 U.S. 620, 629 (1885) (“We can see

12 no right which the promisor has in the law which permits him to plead lapse of time

13 instead of payment . . . .”). And I note that the majority declines, as do I, as did the

14 district court, to reach the conclusion Cahn “lost her medical malpractice claim

15 through her own lack of diligence.” Cummings, 1996-NMSC-035, ¶ 57.

16   {74}   So why legislate a new statute of repose of one year? Especially as Justice

17 Chávez states in his special concurrence, “difficulty in identifying which doctor

18 provided treatment” . . . he “cannot agree that in all cases twelve months will be

19 constitutionally adequate.” I submit that this is exactly that case and would hold that


                                              51
 1 the ten and one-half months left before the statute of repose expired, was not a

 2 reasonable time for Cahn to bring her cause of action. Accordingly, I would not

 3 apply the majority’s rule here, and I would not apply it as an unflinching rule in any

 4 case where, as here, the United States and New Mexico Constitutions require that we

 5 consider a case’s particular facts.

 6 IV.      Other Constitutional Concerns

 7   {75}   In addition to the due process concerns it raises, the twelve-month rule gives

 8 rise to a host of additional constitutional questions. See, e.g., Restatement (Second)

 9 of Torts § 899 cmt. g (Am. Law Inst. 1979) (“The statutory period in [statutes of

10 repose] is usually longer than that for the regular statute of limitations, but, depending

11 upon the designated event starting the running of the statute, it may have run before

12 a cause of action came fully into existence. This may well raise constitutional

13 problems.”). We have addressed some of the constitutional questions before, and we

14 have generally concluded (1) the repose provision is subject to rational-basis review,

15 and (2) the provision was a reasonable response to the “perceived medical

16 malpractice crisis” of the 1970s. Cummings, 1996-NMSC-035, ¶ 40 (emphasis in

17 original).

18   {76}   Justice Chávez’s special concurrence highlights those constitutional

19 conclusions we made in Cummings and suggests those conclusions must govern the


                                               52
 1 outcome here. But several considerations leave me unconvinced. First, we came to

 2 those conclusions at a time when our Garcia analysis allowed us to address

 3 potentially unconstitutional applications case by case, and that opportunity for

 4 remediation has vanished with the advent of today’s rule.

 5   {77}   Second, the due process challenge at issue in Cummings was one of

 6 “fundamental right of access to the courts.” Cummings, 1996-NMSC-035, ¶ 33. Our

 7 analysis of that claim was straightforward: we explained that “[a] plaintiff has no

 8 expectancy of a cause of action that has been legitimately denied by the legislature

 9 before it accrues.” Id. And analyzing a cause of action accruing after the statutory

10 period has expired, we added that “where there is no cause of action, a plaintiff

11 cannot claim they have been denied access to the courts.” Id. In other words, we

12 concluded, “no right has accrued,” and thus there was no need to further examine the

13 challenge.     Id.   But here, as I have explained, the posture is quite

14 different—everybody agrees Cahn’s cause of action had accrued before repose set in,

15 and nobody disputes that a cause of action that has accrued constitutes a species of

16 property entitled to due process protection not given significant attention in

17 Cummings. See Logan v. Zimmerman Brush Co., 455 U.S. at 428 (1982); accord

18 Cummings, 1996-NMSC-035, ¶ 33 (“Since no right has accrued, it is moot to question

19 whether there has been a denial of a fundamental right to vindicate that right in


                                            53
 1 court.”). That basic due process difference suggests the constitutional analysis may

 2 be quite different for plaintiffs whose claims accrue before the statutory period has

 3 run than for those whose claims accrue later—but that question is clearly not before

 4 us today.

 5   {78}   Third and finally, Cummings featured only limited analysis regarding the

 6 specific variant of equal protection challenge that might allow the plaintiff with the

 7 latent injury (and thus a late-accruing claim) to prevail, and it is not clear why we

 8 addressed that equal protection question in the first instance, given our conclusion the

 9 injury had not been latent. See Cummings, 1996-NMSC-035, ¶ 57 (explaining “there

10 was still about a year and a half before the statute of repose” expired after plaintiff

11 had discovered injury). Had the facts been different and actually given rise to the

12 equal protection claim, perhaps our conclusion would have been different, and

13 perhaps that would have rendered moot any concerns that our due process case law

14 requires a different analysis for a plaintiff whose claim accrues before the statutory

15 period expires. As at least one commentator has observed, “every court that has

16 spoken with any clarity on the issue has ultimately concluded that victims of

17 misdiagnosis of diseases with long latency periods” may well be subject to, and

18 benefit from, a different analysis. See Peter Zablotsky, From a Whimper to a Bang:

19 The Trend Toward Finding Occurrence Based Statutes of Limitations Governing


                                              54
 1 Negligent Misdiagnosis of Diseases With Long Latency Periods Unconstitutional,

 2 103 Dick. L. Rev. 455, 495 (1999).              Those courts have frequently found

 3 unconstitutional deprivation for the plaintiff in the long latency scenario, on equal

 4 protection grounds, on due process grounds, and on related state constitutional

 5 grounds. Id. But as I have noted, those questions are not before us today, and we

 6 need not address them here.

 7   {79}   Instead, I note more generally that numerous courts have found constitutional

 8 challenges compelling in the medical malpractice context, and it may be that future

 9 application of today’s rule requires us to revisit some of these arguments and their

10 applications. See generally Zablotsky, 103 Dick. L. Rev. 455; see also, e.g.,

11 McCollum v. Sisters of Charity of Nazareth Health Corp., 799 S.W.2d 15, 19 (Ky.

12 1990) (“While there may be certain salutary effects from limiting to five years the

13 period in which suits can be brought, these cannot outweigh a plaintiff’s

14 constitutional right to have his or her day in court.”); Lee v. Gaufin, 867 P.2d 572,

15 587 (Utah 1993) (“[T]he dominant causes of increased health-care costs were factors

16 other than increased malpractice insurance premiums.”); DeYoung v. Providence

17 Med. Ctr., 960 P.2d 919, 924 (Wash. 1998) (en banc) (“Plaintiff next contends that

18 the classification of medical malpractice claims which are subject to the eight-year

19 statute of repose does not bear a rational relationship to the purpose of the statute.


                                              55
 1 We agree.”); cf. Pickett v. Brown, 462 U.S. 1, 18 (1983) (concluding two-year

 2 limitations period was “not substantially related to the legitimate state interest in

 3 preventing the litigation of stale or fraudulent claims”).

 4   {80}   But our case law suggests the better course is to steer clear of these

 5 constitutional shoals—“we must construe a statute . . . so as to avoid not only the

 6 conclusion that it is unconstitutional, but also grave doubts upon that score.” State

 7 v. Pangaea Cinema, LLC, 2013-NMSC-044, ¶ 23, 310 P.3d 604 (internal quotation

 8 marks and citation omitted). Because Terry and Garcia have given us a longstanding

 9 rule for decision here that obviates at least some of the relevant constitutional

10 concerns, I cannot conclude we have good reason to adopt the majority rule today and

11 embark on a new and uncharted constitutional collision course.

12 V.       Conclusion

13   {81}   It may be simple to impose rigid time restrictions for claims that accrue within

14 the three-year statute of repose to eliminate the legal wrangling that is present with

15 the complexity of these types of cases. But it is inconsistent with the spirit of due

16 process to take this simple route. We must consider time, place, circumstances, and

17 many other factors in the pursuit of fundamental fairness, despite how nebulous the

18 concept may be. A fact-based approach would provide the fairness the Due Process

19 Clause seeks to protect, while also changing the focus of the legal analysis to whether


                                               56
1 a plaintiff was sufficiently diligent. Accordingly, I would not apply the majority’s

2 rule here, and I would not apply it as an unflinching rule in any case where, as here,

3 the United States and New Mexico Constitutions require that we consider a case’s

4 particular facts. I respectfully dissent.



5                                             ___________________________________
6                                             PETRA JIMENEZ MAES, Justice




                                               57
58
Appendix B


   59
