Tomlinson v. George

• Court: New Mexico Supreme Court
• Writing for the Court: Serna
• Citation: Tomlinson v. George, 2005 NMSC 20, 116 P.3d 105, 2005 NMSC 20, 138 N.M. 34 (N.M. 2005)
• Decision Date: 30 June 2005
• Docket Number: No. 27,817.,27,817.
• Parties: Patricia TOMLINSON, Plaintiff-Petitioner, v. Jacob GEORGE, M.D., Defendant-Respondent.

Page 105

116 P.3d 105

2005 NMSC 020

Patricia TOMLINSON, Plaintiff-Petitioner, v. Jacob GEORGE, M.D., Defendant-Respondent.

No. 27,817.

Supreme Court of New Mexico.

June 30, 2005.

Lynn S. Sharp, Jason Bowles, Sharp, Jarmie & Bowles, P.A., Albuquerque, NM, for Petitioner.

Roger Eaton, Michael J. Doyle, Eaton, Martinez, Hart & Valdez, P.C., Albuquerque, NM, for Respondent.

OPINION

SERNA, Justice.

{1} Plaintiff-Petitioner Patricia Tomlinson brought a medical malpractice action against Defendant-Respondent Dr. Jacob George. The district court granted George's motion for summary judgment based on the ground that Tomlinson failed to file within the three-year statute of repose period. The Court of Appeals affirmed the district court by unanimous opinion based on several cases from this Court, Tomlinson v. George, 2003-NMCA-004, ¶¶ 25, 27, 133 N.M. 69, 61 P.3d 195, and we granted Tomlinson's petition for writ of certiorari to the Court of Appeals.

{2} We address whether the fraudulent concealment doctrine equitably tolls the statute of repose, NMSA 1978, § 41-5-13 (1976), so as to permit Tomlinson to file a malpractice action more than three years after the alleged act of malpractice in light of the fact that she was aware of the act four months into the three-year period and thus had approximately two years and eight months within which to file her claim. Under a direct application of the fraudulent concealment doctrine set out in this Court's opinion in Kern ex rel. Kern v. Saint Joseph Hospital, Inc., 102 N.M. 452, 455-56, 697 P.2d 135, 138-39 (1985), we conclude that the doctrine tolls the statute of repose only when the plaintiff does not discover the alleged malpractice within the statutory period as a result of the defendant's fraudulent concealment. Thus, because Tomlinson was aware of her claim within the statutory period, the statute of repose is not tolled by the doctrine of fraudulent concealment. We take this opportunity to clarify the fraudulent concealment doctrine and Section 41-5-13, as well as to resolve conflicting Court of Appeals' cases on this issue, compare Tomlinson, 2003-NMCA-004, ¶ 25, 133 N.M. 69, 61 P.3d 195 (concluding that Section 41-5-13 is not tolled by fraudulent concealment when the malpractice was discovered six weeks into the statutory period), with Juarez v. Nelson, 2003-NMCA-011, ¶¶ 22-25, 133 N.M. 168, 61 P.3d 877 (concluding that fraudulent concealment tolls Section 41-5-13 when the malpractice was discovered two weeks into the statutory period).

{3} Finally, we conclude that the district court properly found that Tomlinson had a constitutionally reasonable period of time under the statute of repose within which to file her claim under Garcia ex rel. Garcia v. La Farge, 119 N.M. 532, 536-37, 893 P.2d 428, 432-33 (1995) and Cummings v. X-Ray Associates of New Mexico, 1996-NMSC-035, ¶¶ 47-55, 121 N.M. 821, 918 P.2d 1321. We conclude that, under these cases, two years and eight months is not an unreasonably short period of time within which to file a claim so as to render Section 41-5-13 unconstitutional as applied. Thus, we affirm the district court and the Court of Appeals.

I. Facts and Background

{4} Tomlinson fractured and dislocated her wrist in an automobile accident on August 20, 1996. George, an orthopedic surgeon, performed a closed external reduction of the fracture on the day of the injury and applied a cast. George x-rayed Tomlinson's wrist on August 27, October 1, and November 5, and believed that her wrist was healing properly. George did not treat Tomlinson after November 5, 1996. On December 24, 1996, Tomlinson obtained her original x-rays from George taken on the three dates and saw Dr. Alfred Blue, a Seattle-based reconstructive hand surgeon; Blue opined that George had negligently treated Tomlinson. Both Tomlinson and George agree that Tomlinson knew she had a potential medical malpractice claim against George on December 24, 1996. Between February of 1997 and July of 1999, Tomlinson had several surgeries and numerous treatments and evaluations by other physicians.

{5} Tomlinson filed an application with the New Mexico Medical Review Commission on December 13, 1999.¹ Tomlinson filed a complaint against George for medical malpractice on March 2, 2000. George filed a motion for summary judgment based on Tomlinson's failure to file within the three-year limitation period of Section 41-5-13. Tomlinson "accept[ed] that [Section 41-5-13] requires the filing of a claim within three years of an occurrence, and if there had not been [a] fraudulent concealment, the last date to file a claim would have been on November 5, 1999." Tomlinson argued to the district court that George's alleged fraudulent concealment should toll Section 41-5-13 on a day-for-day basis so that the three-year limitation did not run between November 5, 1996, and December 24, 1996. Although the parties, the district court, and the Court of Appeals assumed, for purposes of the fraudulent concealment discussion, that the last possible date of alleged malpractice was on November 5, 1996, Tomlinson contended at oral argument before this Court that the occurrence of alleged malpractice was on August 20, 1996, when George performed a closed external reduction of Tomlinson's wrist. For clarity of the issues, we agree that it is helpful to identify the actual occurrence date for Section 41-5-13 as August 20, 1996, rather than presume the last day that George saw Tomlinson constituted the date of occurrence. Thus, Section 41-5-13 began to run from this date, and Tomlinson had until August 20, 1999, to file her complaint.

{6} In her complaint, Tomlinson alleged that George failed to inform her on August 27, 1996, when he took a second set of x-rays, that her wrist was improperly set, and that his continued assurances that she was healing properly constituted fraudulent concealment. Tomlinson thus alleges that the period of concealment began on August 27 and ended on December 24, 1996, or approximately four months, when she was informed by Blue that she was, in his opinion, negligently treated by George.

{7} The district court noted that Tomlinson was aware of the alleged malpractice on December 24, 1996. The district court discussed Kern, La Farge, and Cummings, and decided that this Court's opinions in Cummings and Kern controlled the present case. The district court recognized that Cummings, 1996-NMSC-035, ¶ 54, 121 N.M. 821, 918 P.2d 1321, stated "that only in very few exceptional circumstances may this strict three-year occurrence rule of Section 41-5-13 be relaxed," and that fraudulent concealment and a "due process argument" were two of the exceptions noted by Cummings. The district court noted that Kern "require[s] that the patient not know of his [or her] cause of action within the statutory period," and decided that fraudulent concealment under Kern did not toll the statute because Tomlinson discovered the alleged malpractice within the statutory period. Applying the due process analysis of Cummings and La Farge, the district court judge decided, "Discovery having occurred on December 24, 1996, Ms. Tomlinson was only [six] weeks into a [three]-year period within which to file the claim. I can't determine that [two] years and [forty-six] weeks is `an unreasonably short period of time within which to bring an accrued cause of action.'" (Quoting La Farge, 119 N.M. at 541-42, 893 P.2d at 437-38.) For these reasons, the district court granted summary judgment in George's favor.

II. Discussion

A. Section 41-5-13 and Fraudulent Concealment

{8} Section 41-5-13 provides that "[n]o claim for malpractice arising out of an act of malpractice ... may be brought against a health care provider unless filed within three years after the date that the act of malpractice occurred." "The statute of repose of the Medical Malpractice Act forecloses any cause of action that does not accrue within three years of the act of malpractice." Cummings, 1996-NMSC-035, ¶ 33, 121 N.M. 821, 918 P.2d 1321. "An unduly long statute of repose, or a limit based upon a discovery-based accrual date would place an unfair burden upon the medical profession." Id. ¶ 38. "The legislature's solution— rationally related to alleviating [the problem of insurance carriers withdrawing from medical malpractice liability coverage in New Mexico]—was to preclude almost all malpractice claims from being brought more than three years after the act of malpractice." Id. ¶ 40. This Court has held that the time limitation of Section 41-5-13 is constitutional. Id. ¶ 9. We noted that "[t]he legislature provided a number of incentives to assure participation by health care providers in the burdens of qualification under the Medical Malpractice Act," id. ¶ 29, and recognized that a significant benefit of qualification "was the specific decision by the legislature `to insulate qualified health care providers from the much greater liability exposure that would flow from a discovery-based accrual date.'" Id. ¶ 29 (quoting Roberts v. Sw. Cmty. Health Servs., 114 N.M. 248, 252, 837 P.2d 442, 446 (1992)).

Two basic standards determine the beginning of the time period in which a patient must file a claim for medical malpractice. One is sometimes called the "discovery rule." The time period under this rule does not begin to run until the patient discovers, or reasonably should discover, the essential facts of his or her cause of action. This discovery date may be the patient's first subjective awareness that something is wrong—the first feelings of pain or discomfort. The discovery date may also be the first objective confirmation through medical diagnosis that previous medical care was improper. The other standard is sometimes called the "occurrence rule." This rule fixes the accrual date at the time of the act of medical malpractice even though the patient may be oblivious of any harm.

Id. ¶ 47. We recognized that the plain language of Section 41-5-13...