Merino v. NM Medical Review ( 2012 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 JESSICA MERINO,
3 Petitioner-Appellee,
4 v. No. 31,636
5 NEW MEXICO MEDICAL REVIEW
6 COMMISSION and MICHAEL
7 RUECKHAUS, DIRECTOR OF THE
8 NEW MEXICO MEDICAL REVIEW
9 COMMISSION,
10 Respondents-Appellants,
11 and
12 VICTOR NWACHUKU, M.D., VICTOR
13 NWACHUKU, M.D., P.C., d/b/a CASSIE
14 HEALTH CENTER & CHINONYEREM
15 OSUAGWU, M.D.,
16 Real Parties in Interest.
17 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
18 Alan M. Malott, District Judge
19 Curtis & Lucero
20 Lisa K. Curtis
21 Amalia Lucero
1 Albuquerque, NM
2 for Appellee
2
1 Gallagher, Casados, & Mann, P.C.
2 Nancy Franchini
3 Albuquerque, NM
4 for Appellants
5 Atwood, Malone, Turner & Sabin, P.A.
6 Lee Rogers
7 Roswell, NM
8 Miller, Stratvert, P.A.
9 Lawrence R. White
10 Las Cruces, NM
11 for Real Parties in Interest
12 MEMORANDUM OPINION
13 BUSTAMANTE, Judge.
14 The New Mexico Medical Review Commission and its Director, Michael
15 Rueckhaus (Respondents) appeal from the district court’s issuance of a writ of
16 mandamus ordering Rueckhaus to submit Petitioner’s application for medical
17 malpractice to a medical review panel without requiring redaction or amendment of
18 factual allegations. The district court further enjoined Respondents from requiring
19 “redaction, alteration, or amendment of any application for review filed pursuant to
20 the Medical Malpractice Act” from the date of the writ. [RP 78] This Court issued a
21 notice of proposed disposition affirming the district court’s determination that
22 Reuckhaus did not have the authority to require Petitioner to redact factual allegations
3
1 or averments in order for her application to be submitted to a review panel. This
2 Court, however, proposed to reverse the district court’s order to the extent it enjoined
3 Respondents from doing so in the future, since there was no request for injunctive
4 relief before the district court.
5 Respondents have filed a response to this Court’s notice of proposed
6 disposition. In their response, Respondents state that they do not oppose this Court’s
7 proposed disposition. Instead, Respondents seek clarification of our proposed
8 disposition and request that we consider supplemental information in reaching our
9 decision. We have considered all of the materials currently before this Court,
10 including the supplemental record proper, and we proceed to summarily affirm, in
11 part, and summarily reverse, in part.
12 Respondents seek clarification of the portion of this Court’s notice proposing
13 to affirm the district court’s determination that Reuckhaus did not have the authority
14 to refuse to transmit Petitioner’s application to the panel unless the application was
15 amended or the doctor agreed to waive liability against Respondents for publishing
16 the application. In this Court’s calendar notice, we suggested that Kucel v. New
17 Mexico Medical Review Commission, 2000-NMCA-026, 128 N.M. 691, 997 P.2d 823,
18 resolved the issue presented by this appeal. In Kucel, this Court stated:
19 Allowing the Director to screen applications and unilaterally eliminate
20 portions of applications before sending them to a panel is akin to
4
1 allowing the Director to act as a judge deciding a motion for failure to
2 state a claim upon which relief may be granted. The Director has no such
3 decision-making authority or discretion under the Act.
4
5 . . . We conclude that the Director does not have any discretion to redact
6 an applicant’s legal claims or factual averments from an application to
7 the Commission.
8 Id. ¶¶ 22-23.
9 Respondents point out that Kucel involved unilateral action by the Director,
10 and that in the present case the Director acted on objections raised by the parties and
11 made his determination only after holding hearings and listening to the arguments of
12 all counsel. [MIO 3] We are unpersuaded by Respondents’ attempt to distinguish
13 Kucel. In Kucel, we discussed the scope of the Director’s authority pursuant to the
14 provisions of the Medical Malpractice Act, NMSA 1978, §§ 41-5-1 through -29
15 (1976, as amended through 1997). Kucel provides:
16 The Director has authority to decide issues related to the merits of the
17 application in only one limited circumstance: breaking a tie after a panel
18 has considered an application. As to all substantive matters concerning
19 malpractice, the Legislature expressly gave decision-making authority
20 to the panels, not the Director. We cannot glean from the Act implicit
21 discretion to redact averments in applications; nor will we read into the
22 Act such authority.
23 Kucel, 2000-NMCA-026, ¶ 22. Based on Kucel, we conclude that, even where the
24 issue is raised by the parties, the Director does not have the authority to require
25 redaction.
5
1 Accordingly, we affirm the district court’s determination that the Director did
2 not possess the authority to require redaction of factual averments in Petitioner’s
3 petition. For the reasons articulated in this Court’s notice of proposed disposition we
4 reverse the district court’s order to the extent it enjoins Respondents from such action
5 in all future cases.
6 IT IS SO ORDERED.
7
8 MICHAEL D. BUSTAMANTE, Judge
9 WE CONCUR:
10
11 JAMES J. WECHSLER, Judge
12
13 MICHAEL E. VIGIL, Judge
6