Hardin v. Farris

• Decision Date: 18 December 1974
• Docket Number: No. 1374,1374
• Citation: 87 N.M. 143,1974 NMCA 146,530 P.2d 407
• Parties: Charles HARDIN and Sylvia Hardin, Plaintiffs-Appellants, v. Lee L. FARRIS, M.D., Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 407

530 P.2d 407

87 N.M. 143

Charles HARDIN and Sylvia Hardin, Plaintiffs-Appellants, v. Lee L. FARRIS, M.D., Defendant-Appellee.

No. 1374.

Court of Appeals of New Mexico.

Dec. 18, 1974.

Melvyn D. Baron, Albuquerque, for plaintiffs-appellants

Briggs F. Cheney, James R. Toulouse, James R. Toulouse & Associates, P.A., Albuquerque, for defendant-appellee.

OPINION

HERNANDEZ, Judge.

Plaintiffs appeal the order of the trial court granting defendant's motion for judgment on the pleadings. The trial court, by granting the motion, accepted all of the allegations in the complaint as true. The issue for the trial court was, then, whether plaintiff could recover or be entitled to relief under any state of facts provable under the claim. See Pattison v. Ford, 82 N.M. 605, 485 P.2d 361 (Ct.App.1971).

Plaintiffs filed their complaint on May 16, 1973, alleging in pertinent part that on June 20, 1969 defendant performed tubal ligation surgery upon the plaintiff, Sylvia Hardin, for the purpose of making her infertile; that on or about June 21, 1969 a surgical pathological report was placed in the hospital file of Sylvia Hardin which showed that the tubal ligation was not complete; and, that the defendant failed to tell plaintiff 'after having had knowledge of same.' Subsequently, Sylvia Hardin became pregnant, and on July 4, 1972, she gave birth. The complaint went on to allege 'that said injury was proximately caused by and through the carelessness, negligence and failure of the defendant to exercise a high degree of specialized professional care and ordinary care such as is customarily exercised by such specialists in Obstetrics and Gynecology.'

Defendant, in his answer, made general denials and affirmatively pled the statute of limitations as a bar to plaintiffs' complaint.

Although the trial court's order, granting judgment, does not state what grounds were used in deciding the motion, the following statement made from the bench gives its reasons:

'. . . the law is clear that an action for injuries to the person by assault and battery and for negligent medical malpractice must be brought within three years after the accrual of the cause of action. In medical malpractice, this cause of action accrued at the time of wrongful act causing the injury.'

The trial court thus appears to have relied upon Section 23--1--8, N.M.S.A.1953 (Vol. 5), which provides in part: '. . . and for an injury to the person or reputation of any person, within three (3) years.'

Plaintiffs contend that the running of § 23--1--8, supra, was tolled by defendant's fraudulent concealment of the report which indicated that the operation was negligently performed. Defendant, relying upon Roybal v. White, 72 N.M. 285, 383 P.2d 250 (1963), and Mantz v. Follingstad, 84 N.M. 473, 505 P.2d 68 (Ct.App.1972), argues that 'New Mexico law unequivocally provides that accrual (of the cause of action) occurs simultaneously with the wrongful act.' He goes on to argue that these cases hold that, since the legislature did not provide for the tolling of the statute, the courts cannot supply what the legislature has omitted. We do not agree that either of these cases so hold.

The plaintiffs in Roybal were asking the court to hold 'that a cause of action against a surgeon who negligently fails to remove a foreign body from a surgical wound accrues when the patient discovered or should have discovered such negligent action or omission.' In that case, the Supreme Court stated: 'Tolling of the period of the statute of limitations by reason of fraudulent concealment of the facts giving rise to the cause of action or mistake, within § 23--1--7, N.M.S.A.1953 (Repl.Vol. 5), was not alleged in the complaint and may not be urged on appeal.' Neither was tolling of the statute by reason of fraudulent concealment alleged in Mantz: '. . . plaintiffs claim the trial court ignored theories of fraudulent concealment, estoppel, continuing care and treatment, the discovery rule, and continuing tort. In the pre-trial order, none of these contentions were even mentioned, except fraudulent concealment, but this theory was not connected with medical malpractice or assault and battery.' Thus, the precise question presented here has not been ruled upon by the courts of record in this state.

The maxim that no person may obtain advantage by his own wrong, has been applied in many diverse classes of cases. See Miller v. Phoenix Assur. Co., Limited of London, 52 N.M. 68, 191 P.2d 993 (1948) (insurance); Reinhart v. Rauscher Pierce Securities Corp., 83 N.M. 194, 490 P.2d 240 (Ct.App.1971) (stock brokers); Ramey v. General Petroleum Corporation, 173 Cal.App.2d 386, 343 P.2d 787 (2d Dist., Ct.App.1959) (personal injury); Citizens National Bank of Havre De Grace v. Leffler, 228 Md. 262, 179 A.2d 686 (1962) (conveyance); Mills v. Mills, 147 Cal.App.2d 107, 305 P.2d 61 (2d Dist., Ct.App.1956) (vendor & purchaser); Public Service Co. of New Mexico v. General Electric Co., 315 F.2d 306 (10th Cir. 1963), cert. denied, 374 U.S. 809, 83 S.Ct. 1695, 10 L.Ed.2d 1033 (1963) (anti-trust); Southwestern Investment Co. v. Cactus Motor Co., 355 F.2d 674 (10th Cir. 1966) (money received).

It is all the more compelling that this maxim be applied in cases involving a confidential relationship such as this. The Supreme Court of...