Merino v. NM Medical Review

• Court: New Mexico Court of Appeals
• Decided: February 21, 2012
• Docket: 31,636
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

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