The “Due Process Exception” to the Statute of Repose

Cahn v. Berryman, — P.3d — (N.M.App. 2015), 2015 WL 1955019

New Mexico’s 3-year repose period for medical malpractice suits was held constitutional in principle, but it may still be pronounced unconstitutional “as applied” when it leaves an aggrieved patient and her family too short a window for filing suit.

In Garcia v. La Farge, 893 P.2d 428, 438 (N.M. 1995), the New Mexico Supreme Court held that “a statute of repose that allows an unreasonably short period of time within which to bring an accrued cause of action violates the Due Process Clause of the New Mexico Constitution” and that due process is violated when the plaintiff has only eighty five days for filing suit when he first learns that he has a medical malpractice claim against the physician.

In Cummings v. X–Ray Associates of New Mexico, 918 P.2d 1321, 1336-37 (N.M. 1996), the Court ruled that eighteen months was not too short a period of time for filing suit.

In the case at bar, the Court of Appeals decided that it is not unconstitutional for an aggrieved patient to be afforded 10.5 months for filing her suit, given the social need to have a termination point for medical malpractice claims.