Hallum et al v. Four Corners OB-GYN, et al

Filing 130

REPORT AND RECOMMENDATIONS re 54 MOTION to Stay Ruling on Plaintiff's Motion for Leave to File an Amended Complaint Pursuant to Fed.R.Civ.P. 15 filed by Tanya Hallum, 46 MOTION for Leave to File an Amended Complaint Pursu ant to Fed.R.Civ.P. 15 filed by Tanya Hallum by Magistrate Judge Steven C. Yarbrough. Objections to R&R due by 6/8/2018. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
TANYA HALLUM, et al.,
Plaintiffs,
v.

Case No. 17-00007 MV/SCY

FOUR CORNERS OB-GYN, et al.,
Defendants.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on Plaintiffs’ Motion for Leave to File Amended
Complaint (Doc. 46) and Plaintiffs’ Motion to Stay Ruling on Plaintiffs’ Motion for Leave to
File Amended Complaint (Doc. 54). These Motions were referred to me by United States
District Judge Martha Vazquez on January 25, 2018 (Doc. 124). I held a hearing on these
matters on May 16, 2018. For the following reasons, I recommend denying Plaintiffs’ Motion to
Stay Ruling on Plaintiffs’ Motion for Leave to File Amended Complaint and granting in part and
denying in part Plaintiffs’ Motion for Leave to File Amended Complaint.
Plaintiffs moved to amend the Complaint on May 9, 2017. Doc. 46. Broadly speaking,
the purpose of the amendment is to add claims against Dr. Elizabeth Baca. Plaintiffs represent
that on April 12, 2017, they received information that Dr. Baca, not Defendant Dr. Pallister, was
Nurse Nancy Rhien’s supervising physician. Doc. 46 at 2. In response to Plaintiffs’ Motion to
Amend, Defendants contended, in part, that the Motion should be denied because Dr. Baca is a
“qualifying health care provider” and Plaintiffs had not complied with the administrative
prerequisites to assert malpractice claims against her. See NMSA 1978, § 41-5-15(A) (“No
malpractice action may be filed in any court against a qualifying health care provider before
application is made to the medical review commission and its decision is rendered.”).

In recognition of their obligations under Section 41-5-15, Plaintiffs thereafter moved to
stay ruling on the Motion to Amend in order to give them an opportunity to seek review by the
medical review commission. Doc. 54. Plaintiffs filed the Motion to Stay on June 7, 2017. Doc.
54. In Defendants’ response to Plaintiffs’ Motion to Stay, Defendants represented that as of June
26, 2017, Defendants had received no notice as to Plaintiffs having filed an application with the
medical review commission. Doc. 69 at 3.
At the hearing I held on May 16, 2018, I inquired regarding the status of Dr. Baca’s
medical review commission proceedings. Plaintiffs’ counsel initially represented that he was
unsure as to whether Plaintiffs had filed an application with the medical review commission
because his co-counsel, who was not present, was handling that aspect of the case. Motion
Hearing, 5/16/2018, 10:25-11:25. Later in the hearing, Plaintiffs’ counsel represented that he
received notification from his co-counsel that an application against Dr. Baca had been filed.
Motion Hearing, 5/16/2018, 26:00. I inquired as to when the application was filed. Plaintiffs’
counsel responded that he did not know the date but that his co-counsel indicated that the matter
had been set for a hearing, though he did not know the date of the purported hearing. Motion
Hearing, 5-16-2018, 26:30 – 27:30. In response to this representation, attorney Brendan
O’Reilly, who is representing Dr. Baca before the medical board, represented that although
Plaintiffs had filed a complaint against Dr. Baca with the medical board, his office had received
no notification of an application having been filed against Dr. Baca with the medical review
commission, much less that a hearing was scheduled before the commission.1 Motion Hearing,
5/16/2018, 27:48. Mr. O’Reilly indicated that it was likely that Plaintiffs had mistakenly
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The medical review commission is the entity responsible for reviewing malpractice claims against health care
providers covered by the Medical Malpractice Act. See NMSA 1978, § 41-5-14. Accordingly, it is the entity to
which a potential plaintiff must submit an application in order to assert a medical practice claim against a qualifying
health care provider. NMSA 1978, § 41-5-15. Conversely, the purposes of the medical board are to “issue licenses
to qualified physicians, …discipline incompetent or unprofessional physicians, …and to aid in the rehabilitation of
impaired physicians.” NMSA 1978, § 61-6-1.

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conflated their filing of a complaint with the medical board with their obligations under Section
45-5-15 to file an application with the medical review commission. Motion Hearing, 5/16/2018,
28:40. Plaintiffs’ counsel acknowledged that Mr. O’Reilly may be correct. Motion Hearing,
5/16/2018, 29:05.
Given the indeterminacy of proceedings against Dr. Baca before the medical review
commission, I recommend denying Plaintiff’s Motion to Stay Ruling on the Motion to Amend.
Although Plaintiffs filed this Motion nearly one year ago, it appears that they have not yet filed
an application against Dr. Baca with the medical review commission. Granted, this failure may
be due to Plaintiffs’ conflation of the medical board with the medical review commission.
Mistaken or not, I am not inclined to allow Plaintiffs’ Motion to Amend to indefinitely remain on
the docket while Plaintiffs pursue the required administrative proceedings against Dr. Baca.
Further, when asked about prejudice, Plaintiffs stated that there would be little prejudice in the
event they were required to refile the Motion to Amend once they had complied with the
statutory prerequisites of the Medical Malpractice Act. Accordingly, the Motion to Stay should
be denied.
Turning to the Motion to Amend, I further recommend granting in part and denying in
part this Motion. In briefing, Plaintiffs proposed dismissing their claim for negligent infliction of
emotional distress. Doc. 46 at 2-3. Defendants did not object to the withdrawal of this claim.
Doc. 48 at 10. Accordingly, if it remains Plaintiffs’ intention to withdraw this claim, I
recommend permitting Plaintiffs to amend the Complaint to dismiss this claim.
In regard to the remaining amendments, however, I recommend that Plaintiffs’ Motion be
denied without prejudice to the extent that it seeks to assert claims against Dr. Baca at this time.
As noted above, the statute is clear that “[n]o malpractice action may be filed in any court against

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a qualifying health care provider before application is made to the medical review commission
and its decision is rendered.” Section 41-5-15. At the hearing, Plaintiffs contended that there
existed some “ambiguity” in regard these statutory prerequisites despite the statute’s language.
The Court understands Plaintiffs to be contending that substantial compliance with the statutory
prerequisites may be sufficient to permit a plaintiff to file suit despite no decision by the medical
review commission being rendered. The Court does not have before it, however, any record of
compliance with the statutory prerequisites. As a result, I recommend finding that the
appropriate procedure at this point is to deny Plaintiffs’ Motion without prejudice.
The present case is substantially similar to the facts in Belser v. O’Cleireachain, 2005NMCA-073, 114 P.3d 303. In Belser, the plaintiff filed a complaint against a doctor before filing
an application with the medical review commission. Id. at ¶ 1. Instead of immediately moving
to dismiss, however, the defendant stipulated to a stay of proceedings until thirty days after the
medical review commission issued its decision. Id. at ¶ 2. Approximately four months later, the
defendant moved to lift the stay and dismiss the case because the plaintiff had apparently not
taken in any action before the medical review commission. Id. The district court ultimately lifted
the stay and dismissed the complaint without prejudice due to the plaintiff’s failure to take any
action before the medical review commission for over eight months. On appeal, the New Mexico
Court of Appeals affirmed the district court’s decision. In so doing, the court recognized that
although filing an application with the medical review commission is not a jurisdictional
prerequisite to filing suit, it remains a “mandatory procedural threshold.” Id. at ¶¶ 6-7 (citing
Rupp v. Hurley, 2002-NMCA-023, 41 P.3d 914). The court further noted that in such
circumstances a dismissal without prejudice is the appropriate remedy. Id. at ¶ 9. In sum, the
court concluded that the district court appropriately exercised its discretion to dismiss the

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complaint without prejudice due to the plaintiff’s delay in initiating proceedings before the
medical review commission. Id.
For similar reasons, I recommend denying Plaintiffs’ Motion in regard to claims against
Dr. Baca. Plaintiffs have had ample time to properly initiate proceedings before the medical
review commission. Having failed to do so, the appropriate procedure is to deny Plaintiffs’
Motion without prejudice. Assuming Plaintiffs file with medical review commission, once it
issues its decision, Plaintiff may refile their Motion to Amend, if they so choose.

UNITED STATES MAGISTRATE JUDGE

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy of
these Proposed Findings and Recommended Disposition they may file written objections with the Clerk of the
District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any objections with the Clerk of the District
Court within the fourteen-day period if that party wants to have appellate review of the proposed findings
and recommended disposition. If no objections are filed, no appellate review will be allowed.

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