The opinion of the court was delivered by: Lewis A. Kaplan, District Judge
Insofar as is relevant here, this is an action against Mark Sanazaro, M.D., based on his prescription of Rezulin for plaintiff. The gravamen of the claim is for medical malpractice notwithstanding plaintiff's efforts to characterize it by other forms of words.*fn1 Dr. Sanazaro moves for summary judgment dismissing the complaint on the ground that it is barred by the New Mexico statute of limitations, which controls here in view of the commencement of the action in that state.
The material facts are entirely undisputed.
Dr. Sanazaro is a physician who provided medical care to the plaintiff from February 1995 to January 2002. At some point (apparently October 29, 1997, although the date is immaterial), he prescribed Rezulin for her. He discontinued the drug on August 6, 1998. Plaintiff claims that she first became aware that she had suffered injury in early 1999.*fn2
Plaintiff mailed a claim for review by the New Mexico Medical Review Commission (the "Commission") on July 16, 2001. The Commission issued its decision on plaintiff's claim on April 9, 2002. Plaintiff commenced this action against Dr. Sanazaro and others on July 9, 2002.
A. New Mexico Medical Malpractice Act
The New Mexico Medical Malpractice Act (the "MMA")*fn3 limits the time for bringing a malpractice action against a qualified health care provider*fn4 to "three years after the date that the act of malpractice occurred."*fn5 It requires also that, prior to filing a malpractice action against such a provider, the plaintiff apply for and have her claim reviewed by the Commission.*fn6 It tolls the running of the statute of limitations upon "submission of the case for the consideration of the panel . . . until thirty days after the panel's final decision is entered . . . and served upon the claimant . . . by certified mail."*fn7 "Submission" occurs on the date the claimant mails her application to the Commission.*fn8 Service of the Commission's decision likewise occurs on the date on which it is mailed to the claimant.*fn9 The limitations period thus is calculated as follows: (1) calculate the number of days in the three year period remaining on the date the application for review is mailed; (2) find the end of the tolling period by adding thirty days to the date of mailing of the Commission's decision (plus three days for service by mail under N.M. R. CIV. P. 1-006(D); (3) add the remainder of the limitations period computed in step 1 to the end of the tolling period calculated in step 2 to determine the end of the limitations period.*fn10
In this case, Dr. Sanazaro discontinued the medication on August 6, 1998, so the MMA's limitations period began to run no later than that date. Thus, when plaintiff mailed her application for review to the Commission, and thus tolled the statute, on July 16, 2001, no more than twenty-one days of the three year limitation period remained (step 1). The tolling period would have ended thirty-three days after the mailing of the Commission's decision*fn11 but for the fact that the thirty-third day, May 12, 2002, was a Sunday. The fact that it was Sunday postponed the end of the tolling period until the Monday, which was May 13, 2002*fn12 (step 2). In consequence, the limitations period expired twenty-one days after May 13, 2002, which was June 3, 2002. Plaintiff did not file this action until July 9, 2002, which was thirty-six days after the statute of limitations had run.
Plaintiff resists this conclusion, arguing that her cause of action did not accrue until she became aware of injury in early 1999. She contends, in reliance on Garcia on Behalf of Garcia v. LaFarge,*fn13 that the statute therefore did not begin to run until that date and that the action is timely once the period during which the statute was tolled by the application to the Commission is excluded.
In Garcia, the alleged acts of malpractice occurred no later than February 8, 1989, and the MMA three year period expired on February 8, 1992, which was prior to the date on which the plaintiffs first submitted a claim to the Commission. The injury attributable to the alleged malpractice occurred on November 16, 1991, when there were eight-five days remaining on the limitations period. Plaintiffs claimed, inter alia, that Section 41-5-13 of the MMA violated their equal protection and due process rights as applied in circumstances in which their cause of action accrued shortly before the three year limitations period expired.
The New Mexico Supreme Court rejected plaintiffs' equal protection claims, but held that plaintiffs' substantive due process rights would be violated by application of Section 41-5-13 in circumstances where their claim had accrued "an unreasonably short period of time" — in that case, eighty-five days — prior to the expiration of the limitations period.*fn14 In such circumstances, it said, it would apply a three year period measured from the accrual of the claim.*fn15 But Garcia was an exceptional case, as is confirmed by Cummings v. X-Ray Associates of New Mexico, P.C.*fn16
The plaintiff there underwent imaging in February and June 1986 and was told that she had a harmless mass in her lung. The error was perpetuated in August 1988 by means that are not relevant here. Finally, in February 1990, plaintiff learned that the lung and another mass first identified in June 1986 were malignant and had been misdiagnosed. The defendant who asserted the limitations defense was brought into litigation in November 1992 by means of a third party ...