Lopez v. New Mexico Board of Medical Examiners , 107 N.M. 145 ( 1988 )

OPINION

SOSA, Senior Justice.

On January 29, 1986 the New Mexico Board of Medical Examiners (Board), pursuant to the authority granted it in NMSA 1978, §§ 61-1-1 through -33 (1986 Repl.) (“Uniform Licensing Act”) revoked the license to practice medicine of Dr. Jacinto Lopez (Lopez). Lopez attempted through his attorney to file a petition for review pursuant to Section 61-1-17 of the Act, but failed in several particulars to conform his pleadings to the requirements of that section. The Board moved to dismiss the petition. Lopez, meanwhile, alleged that the Board had failed to observe the time requirement of Section 61-1-13(B) whereby the Board was to render its decision against Lopez within ninety days after the hearing. On July 10, 1987 the trial court ruled against the Board as to the issue of the time limit, but granted the Board’s motion to dismiss as to Lopez’s failure to conform his pleadings to Section 61-1-17. The matter proceeded to a bench trial, and the trial court essentially repeated in its judgment its earlier ruling on the motion to dismiss, restoring Lopez’s license to practice medicine. The Board appeals, and we affirm.

FACTS

There is no dispute as to the substantive nature of Lopez’s misfeasance in performing the act which led to the revocation of his license. On July 7, 1983 Lopez amputated his patient’s leg in an office that did not meet proper licensing standards, with no assistance from a trained health professional, and without being certified in the use of anesthesia. There is little doubt that Lopez’s conduct constituted gross negligence as alleged by the Board. However, the patient suffered no unexpected or damaging medical result, and voiced no complaint. Further, this was Lopez’s first disciplinary appearance since his licensure in 1968.

The issue before us, however, concerns not Lopez’s medical conduct, but the post-operative conduct of both Lopez and the Board in proceeding with the investigation and findings under the Uniform Licensing Act. First, we agree with the trial court that Lopez’s petition under Section 61-1-17 was defective. It was not filed within twenty days, did not bear the proper heading, and failed to state all exceptions to the Board’s ruling as required by law.

The more important issue, however, is not Lopez’s failure to comply with Section 61-1-17, but the Board’s failure to comply with Section 61-1-13. Whereas Lopez’s negligence in regard to filing his pleading goes to the issue of his response to the Board’s complaint, the Board’s negligence in not having rendered its decision within ninety days relates to the more important issues of jurisdiction, due process of law and equal protection of the law. Thus, whatever errors Lopez may have made are secondary to the more basic issues raised by the Board’s delay in rendering its decision. If the Board possessed no jurisdiction ab initio to render its decision, everything which the Board did following that decision is void and of no effect. Therefore, it does the Board little good to argue that Lopez filed faulty pleadings if the Board itself never possessed the requisite jurisdiction to proceed with its decision. Lopez’s error is derivative in nature, while that of the Board is foundational.

Yet, the Board argues that Lopez waived the Board’s requirement to render its decision in ninety days, and thereby conferred jurisdiction on the Board in spite of its delay of nearly a year and a half in making a decision. It is true that Lopez made certain waivers in this respect. The time limit was first extended from the original date of September 22, 1984 to November 19, 1984. The second waiver date was sometime in May, 1985. Lopez contends that he made no further waivers. The Board made no decision in May, 1985, but instead considered Lopez’s case at a meeting in November, 1985, and eventually revoked Lopez’s license on January 29, 1986. Whereas the Board in essence argues, “once waived always waived,” the trial court in its finding of facts (# 33) concluded, “Neither Lopez or his counsel assented in any way expressly or implicitly, to a continuance of this matter beyond the May, 1985 regularly scheduled Board meeting, nor to a delay until the November, 1985 regularly scheduled Board meeting.”

LEGAL ISSUES INVOLVED

We find that there is adequate substantial evidence in the record to support the trial court’s conclusion. Further, on appeal, the evidence is to be viewed in the aspect most favorable to the action of the court which is being appealed. Jones v. New Mexico State Racing Comm’n, 100 N.M. 434, 671 P.2d 1145 (1983). Every reasonable intendment and presumption will be resolved against appellants in favor of proceedings in the trial court. Romero v. Sanchez, 86 N.M. 55, 519 P.2d 291 (1974). We are thus bound by the trial court’s conclusion that no further waivers on Lopez’s part took place after May, 1985, and we conclude that more than ninety days passed after May, 1985 before the Board reached its decision.

Each party urges us to apply Foster v. Board of Dentistry, 103 N.M. 776, 714 P.2d 580 (1986) to its respective position and to conclude that Foster either does or does not stand for the proposition that the ninety day time limit in Section 61-1-13 is jurisdictional. In deciding this question, it seems to us that the language in Foster could not be clearer:

The Board further argues that under Section 61-1-13(B) the requirement that the decision be signed within ninety days after the completion of the hearing is merely procedural, not jurisdictional, and to argue that the Board lost jurisdiction over Foster merely for failing to sign the decision within ninety days leads to the unintended result of having to start the proceedings against Foster all over again. The Board argues that such unnecessary duplication was not intended by the legislature for the mere failure by the Board to sign its decision within the ninety day time period prescribed by Section 61-1-13(B). We disagree.

103 N.M. at 777, 714 P.2d at 581.

Although it is true that Chief Justice Riordan could have clarified the issue if he had written, “the ninety day time limit is jurisdictional,” his failure to do so does not detract from the obvious conclusion that this is what he intended to say. We therefore hold that the ninety day time limit imposed by Section 61-1-13 is expressly jurisdictional. “Because the Board [in the case before us] failed to take action within the required ninety day period [taking into account Lopez’s two waivers], its decision is void and must be reversed. To rule otherwise would ignore the plain language of Section 61-1-13(B).” Id. at 777, 714 P.2d at 581. We thus conclude that the trial court was correct to rule in its judgment, “the proceedings of the New Mexico Board of Medical Examiners below are void, [and] of no force and effect * * (R.P. 216).

Finally, in addition to the jurisdictional requirements imposed by Section 61-1-13, we hold, as the trial court likewise adjudged, that the Board violated certain constitutional requirements as well. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), where the court held that procedures such as those in effect here constitute a vital property right, the deprivation of which is a deprivation of due process of law under the Fourteenth Amendment to the United States Constitution. 455 U.S. at 430-31, 102 S.Ct. at 1155. In Logan, the factfinding tribunal failed to act within the statutorily required 120 day period. Apparently through inadvertence, the commission’s representative scheduled the conference five days after expiration of the statutory period. Id. at 426, 102 S.Ct. at 1152. The Court held that “[a] system or procedure that deprives persons of their claims in a random manner * * * necessarily presents an unjustifiably high risk that meritorious claims will be terminated.” 455 U.S. at 434-35, 102 S.Ct. at 1157.

Further, in an opinion separate from that of the majority, four members of the Court addressed Logan’s equal protection claim. The Court wrote that to treat persons whose claims are processed within the 120 day period differently than persons whose claims are not processed within that period and finally terminated, amounts to a denial of equal protection under the Fourteenth Amendment.

“So far as the State’s purpose is concerned, every * * * claimant’s charge, when filed with the Commission, stands on the same footing. Yet certain randomly selected claims, because processed too slowly by the State, are irrevocably terminated without review. In other words, the State converts similarly situated claims into dissimilarly situated ones, and then uses this distinction as the basis for its classification. This, I believe, is the very essence of arbitrary state action.”

Logan v. Zimmerman Brush Co., 455 U.S. 422, 442, 102 S.Ct. 1148, 1161, 71 L.Ed.2d 265 (1982) (Blackman, J. separate opinion).

The judgment of the trial court is affirmed in its entirety.

IT IS SO ORDERED.

SCARBOROUGH, C.J., and WALTERS and RANSOM, JJ., concur. STOWERS, J., Dissents.