KERN EX REL. KERN V. ST. JOSEPH HOSP., 1985-NMSC-031,
102 N.M. 452, 697 P.2d 135 (S. Ct. 1985)
DALE KERN, Deceased, By and Through His
Surviving Wife and
Personal Representative, DANNY KERN, Petitioner,
vs.
ST. JOSEPH HOSPITAL, INC., MARVIN SACHS, X-RAY ASSOCIATES,
DR. DOYLE SIMMONS and DR. H. J. MURRELL, Respondents
SUPREME COURT OF NEW MEXICO
1985-NMSC-031, 102 N.M. 452, 697 P.2d 135
Original Proceeding on Certiorari,
Gerald R. Cole, District Judge
Melvin L. Robins, Leof T. Strand,
Albuquerque, New Mexico For Petitioner.
W. Robert Lasater, Jr., Mark C. Meiering,
Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, New Mexico, Bruce D.
Black, Campbell, Byrd & Black, Santa Fe, New Mexico, For Respondents.
Federici, C.J., wrote the opinion. WE
CONCUR: DAN SOSA, JR., Senior Justice, MARY C. WALTERS, Justice. WILLIAM
RIORDAN, Justice, dissenting, adopting Court of Appeals opinion. HARRY E.
STOWERS, JR., Justice, dissenting.
{*454} FEDERICI, Chief
Justice.
{1} This medical malpractice
action is before us on writ of certiorari. Plaintiff-petitioner, Danny Kern
(petitioner), appealed to the Court of Appeals from the trial court's order
granting summary judgment in favor of defendants-respondents, Dr. Doyle Simmons
and X-Ray Associates (respondents). The trial court found petitioner's claim
against respondents to be barred by the applicable statute of limitation. The
Court of Appeals affirmed the trial court. We reverse the Court of Appeals and
the trial court.
{2} Petitioner presents two
issues for our review:
1. Whether the statute of limitations period under N.M.S.A.
1978, Section 41-5-13 (Repl. Pamp.1982) of the Medical Malpractice Act, N.M.S.A.
1978, Section 41-5-1 to -28 (Repl. Pamp.1982), begins to run at the time of the
wrongful act or at the time an injury manifests itself in a physically
objective manner and is ascertainable.
2. Whether the Court of Appeals erred in finding no genuine
issue of material fact on the question of fraudulent concealment.
{3} Petitioner's decedent,
Dale Kern, received external beam radiation therapy for cancer of the bladder
at St. Joseph Hospital in Albuquerque, New Mexico. The treatments were
administered by defendant-respondent Dr. Simmons, an employee of
defendant-respondent, X-Ray Associates, from August 16, 1977, through September
22, 1977. Kern and his wife were told by Dr. Simmons that Kern's therapy would
consist of 30 treatments of radiation. After Kern had received 25 treatments,
however, the therapy was discontinued without explanation. When Kern and his
wife asked Dr. Simmons the reason for the early termination of the therapy, Dr.
Simmons did not respond and appeared to stare off in the other direction. After
the radiation treatments, Kern experienced problems with frequency of urination
and the passing of blood in his bowel movements and urine. Kern died on August
30, 1982. The cause of death listed on the death certificate was sepsis-urinary
tract infection due to or as a consequence of irradiation cystitis and
proctitis and/or urinary bladder cancer.
{4} Both Kern and his wife
believed that the problems Kern experienced after the radiation therapy were
acceptable complications of the treatments. They were never informed that Kern
had received an excessive amount of radiation. However, after reading a
newspaper article in 1981 regarding excessive radiation having allegedly been
administered at St. Joseph Hospital, they began to suspect the propriety of
Kern's treatment. Kern and his wife employed a lawyer to investigate whether
Kern's radiation therapy had been administered properly.
{5} This lawsuit was filed on
March 21, 1983, by Kern's widow in her capacity as personal representative of
her husband's estate. She alleged that her husband's death was due to the
negligent administration and calculation of external beam radiation therapy.
Dr. Simmons and X-Ray Associates filed a motion for summary judgment contending
that petitioner's lawsuit was barred by NMSA 1978, Section
41-5-13 (Repl.
Pamp.1982). The trial court and the Court of Appeals agreed.
{6} Section 41-5-13 requires
that a claim be filed "within three years after the date that the act of
malpractice occurred...." Petitioner argues that there is no malpractice
until there is injury and that the statute, therefore, should not start to run
until the injury has manifested itself in a physically objective manner and is
ascertainable. She argues that
Peralta v. Martinez, 90 N.M. 391,
564 P.2d
194 (Ct. App.),
cert. denied, 90 N.M. 636, 567 P.2d 485 (1977)
{*455} and the general rules of statutory
construction compel such an interpretation. We disagree.
{7} Prior to the enactment of
the Medical Malpractice Act in 1976, malpractice actions were governed by the
general statute of limitations applicable to all personal injury actions, NMSA
1953, Section 23-1-8, which is now NMSA 1978, Section
37-1-8. This statute
reads, in applicable part, "for an injury to the person or reputation of
any person, within three years." Primarily because of the use of the word
"injury,"
Peralta interpreted this statute of limitations
"to run from the time the injury manifests itself in a physically
objective manner
and is ascertainable."
Peralta v. Martinez
at 394, 564 P.2d at 197 (emphasis in original).
Peralta is not
controlling in the present case, therefore, for two reasons. First, it
construes a different statute of limitations. Second, Section 41-5-13 makes no
reference to "injury" or any such comparable term. In fact,
Peralta
recognized this significant wording difference between the general statute of
limitations it was construing and NMSA 1953, Section 58-33-13 (Int. Supp.1976),
the precursor of Section 41-5-13. Petitioner's reliance on
Crumpton v.
Humana, Inc., 99 N.M. 562,
661 P.2d 54 (1983) is also misplaced. In that
case the alleged act of malpractice and the injury occurred simultaneously.
This Court held that plaintiff's suit was barred under both Section 37-1-8 and
Section 41-5-13. The issue of when Section 41-5-13 commences to run in latent
injury cases was not presented.
{8} We agree with the Court
of Appeals that the meaning of Section 41-5-13 is clear and unambiguous. If the
language of a statute is not ambiguous, the literal meaning of the words must
be applied.
Hutchinson v. State, 89 N.M. 501,
554 P.2d 663 (1976);
Sunset
Package Store, Inc. v. City of Carlsbad, 79 N.M. 260,
442 P.2d 572 (1968).
The statute clearly starts to run from the time of the occurrence of the act
giving rise to the cause of action. Since we find the meaning of this statute
unambiguous, there is no need to resort to rules of construction.
Hansman v.
Bernalillo County Assessor, 95 N.M. 697,
625 P.2d 1214 (Ct. App.1980).
{9} Petitioner contends that
if Section 41-5-13 runs from the date of the wrongful act, it is
unconstitutional as a violation of equal protection and due process. The fact
that a claim could be barred under Section 41-5-13 before the injury or death
occurred was held in
Armijo v. Tandysh, 98 N.M. 181,
646 P.2d 1245 (Ct.
App.1981),
cert. quashed, 98 N.M. 336,
648 P.2d 794 (1982), to violate
neither equal protection nor due process.
See also Hamby v. Neurological
Associates, P.C., 243 Ga. 698, 256 S.E.2d 378 (1979) (no equal protection
violation);
Rod v. Farrell, 96 Wis.2d 349, 291 N.W.2d 568 (1980) (no due
process violation). We recognize that this statute may be harsh when applied to
latent injury cases. Although the "wrongful act rule," as our type of
statute has become known, was once the general rule, it is now generally
disfavored and many states have enacted some form of discovery provision which
typically provides for the cause of action not to accrue until the patient
discovers or should have discovered the injury. Horn,
The Statute of
Limitations in Medical Malpractice Actions, 6 N.M.L. Rev. 271 (1976). Any
changes to our statute, however, should be made by the Legislature and not by
the courts.
Howell v. Burk, 90 N.M. 688,
568 P.2d 214 (Ct. App.),
cert.
denied, 91 N.M. 3, 569 P.2d 413 (1977).
{10} In the present case,
petitioner's lawsuit was filed more than three years after Kern's last
radiation treatment and is barred by Section 41-5-13 unless the statute was
tolled by the doctrine of fraudulent concealment. New Mexico recognizes the
doctrine of fraudulent concealment in medical malpractice actions.
Hardin v.
Farris, 87 N.M. 143,
530 P.2d 407 (Ct. App.1974). The doctrine is based not
upon a construction of the statute, but rather upon the principle of equitable
estoppel.
Corbert v. Waitt, Ind. App., 445 N.E.2d 1000 (1982). The
theory is premised on the notion that the one who has prevented the plaintiff
{*456} from bringing suit within the statutory
period should be estopped from asserting the statute of limitations as a
defense.
Id.
{11} In
Hardin, the court
recognized the estoppel nature of fraudulent concealment and stated:
We therefore conclude that where a party against whom a cause
of action accrues prevents the one entitled to bring the cause from obtaining
knowledge thereof by fraudulent concealment, or where the cause is known to the
injuring party, but is of such character as to conceal itself from the injured
party, the statutory limitation on the time for bringing the action will not
begin to run until the right of action is discovered, or, by the exercise of
ordinary diligence, could have been discovered.
Hardin v. Farris 87 N.M. at 146, 530 P.2d at 410 (citations
omitted). Silence may sometimes constitute fraudulent concealment where a
physician breaches his fiduciary duty to disclose material information
concerning a patient's treatment. Hardin v. Farris. The statute of
limitations, however, is not tolled if the patient knew, or through the
exercise of reasonable diligence should have known, of his cause of action
within the statutory period. Garcia v. Presbyterian Hospital Center, 92
N.M. 652, 593 P.2d 487 (Ct. App.1979). If tolled by fraudulent concealment, the
statute commences to run again when the patient discovers, or through the
exercise of reasonable diligence should have discovered, the malpractice. Hardin
v. Farris.
{12} To toll the statute of
limitations under the doctrine of fraudulent concealment, a patient has the
burden, therefore, of showing (1) that the physician knew of the alleged
wrongful act and concealed it from the patient or had material information
pertinent to its discovery which he failed to disclose,
and (2) that the
patient did not know, or could not have known through the exercise of
reasonable diligence, of his cause of action within the statutory period.
{13} Respondents would have
us adopt the rule followed in Indiana that a physician's affirmative duty to
disclose material information ends when the fiduciary relationship is
terminated.
Weinstock v. Ott, Ind. App., 444 N.E.2d 1227 (1983). The
duty to disclose, however, is continued beyond the termination of the fiduciary
relationship in Indiana if the physician represents that the symptoms are
likely to continue in the future or prescribes a future course of treatment.
Wojcik
v. Almase, Ind. App., 451 N.E.2d 336 (1983). We also note that Indiana
follows a constructive fraud theory or a "should have known" test,
whereby if a physician has committed malpractice, then he "should have
known."
Toth v. Lenk, 164 Ind. App. 618, 330 N.E.2d 336 (1975).
Such a constructive fraud theory greatly enlarges a physician's liability.
Since New Mexico does not follow a broad constructive fraud theory, we see no
reason to restrict artificially a physician's liability by having his
affirmative duty to disclose end with the termination of the fiduciary
relationship. To allow a physician to escape all liability for actual and
provable malpractice by stating he had no more contact with a patient after a
certain period, although the malpractice was not detectable at that time and
was fraudulently concealed from the patient by the physician, would defeat the
purpose of the equitable estoppel doctrine of fraudulent concealment.
{14} We agree with the Court
of Appeals that petitioner presented sufficient evidence on the issue of Kern's
unawareness of the cause of action within the statutory period, to overcome a
summary judgment motion. The Court of Appeals, however, applied an incorrect
standard of review when it held that there were no genuine issues of material
fact regarding whether respondents knew of the alleged malpractice or failed to
disclose pertinent information. As this Court has stated many times, summary
judgment is proper only when a review of the record reveals no genuine issue as
to a material fact.
Pharmaseal Laboratories, Inc. v. Goffe, 90 N.M. 753,
568 P.2d 589 (1977). The evidence need not be conclusive to raise an
{*457} issue of fact.
Id. All
reasonable doubts are to be resolved in favor of the party opposing the summary
judgment.
Poorbaugh v. Mullen, 96 N.M. 598,
633 P.2d 706 (Ct. App.1981).
"If the evidence is sufficient to create a reasonable doubt as to the
existence of a genuine issue, summary judgment cannot be granted."
Id.
at 600, 633 P.2d at 708. In addition, the question of a physician's knowledge
of the error or concealment of pertinent facts that might have reasonably led
to the discovery of the error and the related question of the patient's due
diligence in discovering the cause of action are ordinarily for determination
by the finder of fact.
Wade v. Thomasville Orthopedic Clinic, Inc., 167
Ga. App. 278, 306 S.E.2d 366 (1983).
{15} When we consider the
record, we find that petitioner did present sufficient evidence to raise an
issue of material fact regarding Dr. Simmons' knowledge of excessive radiation
having been administered to Kern. The record reveals that in opposition to
respondent's motion for summary judgment, petitioner presented the affidavit of
a doctor knowledgeable in the field of therapeutic radiology who stated that
although the intended treatment plan for Kern conformed with the customary
standards at that time, the dose levels given did not follow the plan and were
greatly excessive and that such dose levels "will cause unacceptable
complications such as those recorded in the medical records as being suffered
by Dale Kern, deceased." In addition, the affidavit of a radiation
physicist stated, "Whoever calculated the treatment times needed to
implement this treatment plan performed a
gross calculation error."
(Emphasis added.) Petitioner also presented her own affidavit which contained
the facts set forth at the beginning of this opinion.
{16} In support of his motion
for summary judgment, Dr. Simmons filed an affidavit denying knowledge of any
malpractice and denying concealment of any material facts. Resolving, however,
all doubts in favor of petitioner, we find the evidence sufficient to create a
fact issue. The early termination of the treatments without explanation, Dr.
Simmons' failure to answer the Kerns' question concerning the early
termination, and the statements in the affidavits filed by petitioner lend
possible support to petitioner's claims of excessive radiation having been
given to Kern, and of "a gross calculation error" having been made in
implementing Kern's treatment plan.
{17} Summary judgment was
improperly granted. The trial court and the Court of Appeals are reversed. The
case is remanded to the trial court for proceedings consistent with this
opinion.
WE CONCUR: DAN SOSA, JR., Senior Justice, MARY C. WALTERS,
Justice
WILLIAM RIORDAN, Justice, dissenting, adopting Court of
Appeals opinion.
HARRY E. STOWERS, JR., Justice, dissenting.
Court of Appeals of New Mexico
{19} Plaintiff brought this
medical malpractice suit against St. Joseph Hospital, Inc., a medical physicist
or dosimetrist, Marvin Sachs, Doctors, Doyle Simmons and H. J. Murrell, and
their employer, X-Ray Associates, claiming the negligence of defendants in
administering radiation therapy proximately caused the death of Dale Kern.
Defendants Simmons and X-Ray Associates moved for summary judgment on the
ground that plaintiff's cause of action was barred by the statute of
limitations. Plaintiff appeals from an order granting that motion. The trial
court also entered judgment dismissing the complaint against Dr. Murrell with
prejudice. No appeal was taken from that judgment. This appeal does not involve
Dr. Murrell. Nor are the defendants hospital and Sachs parties to this appeal.
Therefore, we are concerned
{*458} only
with the propriety of the grant of summary judgment in favor of Dr. Simmons and
X-Ray Associates.
{20} Plaintiff raises two
issues. The first concerns when the limitation period begins to run under the
Medical Malpractice Act. Assuming this issue is decided against plaintiff, she
alternatively argues the time for filing her claim was nevertheless tolled by
fraudulent concealment by the defendants. We affirm the trial court's order of
dismissal.
{21} Plaintiff's decedent,
Dale Kern, received external beam radiation therapy between August 16, 1977 and
September 22, 1977. Plaintiff alleges that excessive dosages of this radiation
ultimately caused Mr. Kern's death. The original complaint was filed on March
21, 1983. Any malpractice would have occurred no later than September 22, 1977.
Therefore, the complaint was filed more than three years from that date.
1. When did the statute of limitations begin to run?
{22} Plaintiff concedes that
the applicable time limitation is found in NMSA 1978, Section
41-5-13 (Repl.
Pamp.1982) which provides: "No claim for malpractice... may be brought
against a health care provider unless filed within three years after
the
date the act of malpractice occurred. .." (emphasis added). The
argument focuses on the underscored portion of the statute.
{23} While acknowledging the
wording of the statute, plaintiff argues that there can be no cause of action
for malpractice until there has been a resulting injury.
Peralta v.
Martinez, 90 N.M. 391,
564 P.2d 194 (Ct. App.),
cert. denied, 90
N.M. 636, 567 P.2d 485 (1977). "A wrong without damage or damage without
wrong does not amount to a cause of action."
Id. at 393. With this
principle in mind, plaintiff contends that the statute of limitations should be
construed not to run from "the date that the act of malpractice
occurred," as provided in Section 41-5-13, but rather "from the time
the injury manifests itself in a physically objective manner
and is
ascertainable."
Id. at 394.
{24} As support for her
argument, plaintiff refers us to provisions of the Medical Malpractice Act,
NMSA 1978, Sections
41-5-1 to -28 (Repl. Pamp.1982). All statutory references
hereafter are to NMSA 1978. First, plaintiff says that the definition of a
"malpractice claim" found in Section 41-5-3(C) includes "injury
to the patient." Second, she points out that the medical review commission
created under Section 41-5-14 reviews "all malpractice claims," and
that no malpractice action may be filed in any court before application has
been made to and a decision rendered by that commission. Third, plaintiff notes
that the medical review commission decides two questions: (1) "whether
there is substantial evidence that the
acts complained of occurred and
that they constitute malpractice; and (2) whether there is a reasonable medical
probability that the patient was injured thereby." Section 41-5-20
(emphasis added).
{25} Plaintiff urges that in
order to ascertain the legislative intent, all provisions of a statute must be
read together.
Allen v. McClellan, 75 N.M. 400,
405 P.2d 405 (1965).
Thus, says plaintiff, when the above provisions of the Medical Malpractice Act
are read in pari materia, the statute of limitations could not begin to run
until there has been an injury which has manifested itself and is
ascertainable. To hold otherwise would permit the limitation period to run
against a claim that has not matured, and once it matures, discover it has
already been barred.
See Smith v. Dowell Corporation, 23 SBB 1062
(1984). Moreover, there would be no way for the medical review commission to
perform its function without there being an injury to consider.
{26} Interpreting what is now
NMSA 1978, Sections
37-1-1 and
37-1-8, the general statute of limitations for
personal injury actions,
Peralta v. Martinez, held that the limitation period
began to run against plaintiff from the time of his injury and not from the
time of the malpractice. In doing
{*459} so,
this court recognized the opposite holding of
Roybal v. White, 72 N.M.
285,
383 P.2d 250 (1963), a supreme court decision, but chose not to follow
that case since it conflicted with the wording of the statute, and represented
a departure from non-malpractice decisions which hold the limitation period to
run from the date of the injury.
{27} Plaintiff urges us to
follow
Peralta v. Martinez here. To do so we would have to read in
language in direct conflict with the plain wording of Section 41-5-13. This we
cannot do. The legislative intent was to continue the limitation period of
Roybal
v. White. See Armijo v. Tandysh, 98 N.M. 181,
646 P.2d 1245 (Ct. App.),
cert.
quashed, 98 N.M. 336,
648 P.2d 794 (1982). "As written, Section
41-5-13 means that the limitation period starts to run from the date of the act
of malpractice."
Irvine v. St. Joseph Hospital, Inc., Ct. App. Nos.
7651/7713 (Filed October 23, 1984). We said in that case that because Section
41-5-13 is not worded in terms of injury, discovery or cause, the courts were
not free to construe unambiguous legislation or read into a statute language
that is not there, particularly if it makes sense as written. We held in
Irvine
v. St. Joseph Hospital, Inc., that Section 41-5-13 was not
ambiguous. While the results may be harsh, "[t]he legislative policy, its
harshness, or unjustness, is a matter for the legislature, not this
court."
Irvine v. St. Joseph Hospital, Inc.
{28} Relying on the rationale
of
Armijo v. Tandysh, plaintiff further argues that applying Section
41-5-13 to qualified as well as nonqualified health care providers requires
that the limitation period must begin to run from the date the injury manifests
itself in a physically objective manner and is ascertainable. To hold
otherwise, according to plaintiff, would create a distinction between
tort-feasors generally and tort-feasors who are nonqualified health care
providers, the former being subject to Section 37-1-8, while the latter would
be subject to Section 41-5-13. Plaintiff claims such a distinction would
violate the constitutional guarantees of equal protection.
{29} Armijo v. Tandysh held
that Section 41-5-13 does not provide for two classes of defendant health care
providers, i.e., qualified versus nonqualified health care providers;
therefore, there is no basis for an equal protection argument. Both are
governed by Section 41-5-13. We also said in
Armijo v. Tandysh that
there is no equal protection violation because a wrongful death claim based on
malpractice has a limitation period different from a wrongful death claim which
does not involve malpractice.
Armijo v. Tandysh answers plaintiff's
argument.
{30} In her reply brief
plaintiff for the first time raises a due process claim. In essence, she argues
that since plaintiff's medical malpractice cause of action represents a
property right protected by the federal and state constitutions, the state has
no right to deprive her of the remedy to enforce that right. In short, she
contends that in her case the claim would be barred before she had an
opportunity to make her claim because the injury was not ascertainable prior to
the running of the time limitation. A question not presented in an appellant's
brief in chief cannot be raised for first time in his reply brief.
Montgomery
v. Karavas, 45 N.M. 287,
114 P.2d 776 (1941).
{31} The statute of
limitation had run on plaintiff's claim, unless tolled by the fraudulent concealment
of defendants. We now examine plaintiff's second point to determine if a fact
issue exists as to that exception.
2. Fraudulent Concealment
{32} In order to prevent the
statute of limitations from barring recovery, a plaintiff is obliged to bring a
cause of action within the prescribed time. New Mexico recognizes an exception
to that rule. Where the defendant prevents, hinders or delays the plaintiff
from bringing the suit by fraudulent concealment of the negligent malpractice,
the time for bringing the action will not begin to run until the right of
action is discovered, or, by the exercise of ordinary
{*460}
diligence, could have been discovered.
Hardin v. Farris, 87 N.M.
143,
530 P.2d 407 (Ct. App.1974).
See also Garcia v. Presbyterian Hospital Center,
92 N.M. 652,
593 P.2d 487 (Ct. App.1979). Fraudulent concealment may be either
active, as with an affirmative effort to conceal the negligence such as a false
representation, or the fraud may be passive where, in a confidential
relationship a duty to speak exists, and the defendant, with knowledge of his
negligence, remains silent.
Hardin v. Farris; Carrow v. Streeter, 410
N.E.2d 1369 (Ind.Ct. App.1980). The tolling of the statute of limitations by
reason of fraudulent concealment is based on a theory of estoppel by fraud.
"[N]o person may obtain advantage by his own wrong...."
Hardin v.
Farris, 87 N.M. at 145. Whether active or passive fraud, there must be
proof of scienter on the part of the defendant.
Hardin v. Farris; see also
Layton v. Allen, 246 A.2d 794 (Del.1968);
Johns Hopkins Hospital v.
Lehninger, 48 Md. App. 549, 429 A.2d 538 (1981).
{33} Fraud is never presumed
and must be established by clear and convincing evidence. It may, however, be
established by circumstantial evidence.
Snell v. Cornehl, 81 N.M. 248,
466 P.2d 94 (1970);
Keithley v. St. Joseph's Hospital, Ct. App. No. 7629
(Filed October 18, 1984).
{34} We said in
Keithley
v. St. Joseph's Hospital that a plaintiff who alleges tolling of the
statute by fraud, either active or passive, must establish that he or she did
not have the means of discover the fraud.
See also Carrow v. Streeter.
Plaintiff's affidavit states that she and her husband were informed by Dr.
Simmons that Mr. Kern would receive thirty treatment sessions. She states that
after twenty-five the treatment stopped. When she and her husband attempted to
learn the reason, Dr. Simmons would not answer. Plaintiff states that neither
she nor her husband were ever informed that excessive dosages of radiation had
been administered, or that the complications Mr. Kern encountered after the
therapy were due to excessive radiation. Both were under the impression that
these complications resulted from the normal progression of the cancer. This
evidence would support a finding that there was nothing to alert plaintiff or
her husband to the contrary, at least until they read newspaper accounts in
1981 to the effect that other persons treated by Dr. Simmons at St. Joseph
Hospital had been administered excessive radiation. Of course, the statute had
already run by 1981. Based on
Keithley v. St. Joseph's Hospital, we hold
that plaintiff satisfied the burden of raising a fact issue that neither she
nor her husband had had reason to discover the information plaintiff claims
defendants failed to disclose. This, however, goes only to the question of
abating a tolling of the limitation period. Unless there is a factual issue as
to tolling the limitation period, what plaintiff knew or should have known is
not pertinent.
Keithley. This brings us then to the critical question of
whether a fact question exists that defendants knew of the alleged excessive
radiation and either concealed that or failed to disclose that information to
plaintiff or her husband.
{35} Both Doctors Simmons and
Murrell filed affidavits denying any knowledge of negligence committed in the
administration of radiotherapy to Dale Kern while hospitalized at St. Joseph
during the dates in question. Both doctors stated they had no occasion to
review the patient's records following his last visit in January of 1978 until
late in 1982 when they became aware of the possible filing of a malpractice
claim. Both denied any concealment. Dr. Murrell denied any recollection of ever
having seen Dale Kern. Dr. Simmons stated that he customarily explained
medically recognized risks from external beam therapy and that his medical
records suggest this was done here. Thus, defendants made a prima facie showing
of no concealment. The burden shifted to plaintiff to come forward and
demonstrate that a genuine issue of fact requiring trial exists.
Goodman v.
Brock, 83 N.M. 789,
498 P.2d 676 (1972).
{36} Plaintiff presented a
death certificate showing the cause of death as: "SEPSIS-urinary tract
infection,"
{*461} due to
"Irradiation Cystitis & Proctotis" or "Urinary Bladder
Cancer." She also filed the affidavit of Arthur L. Boyer, Ph.D., a
radiation physicist, who, after reciting the treatment times, gave his opinion
that the plan contained "gross calculation error." Dr. J. Robert
Andrews, an expert in the field of therapeutic radiology, stated that the
dosage of radiation was excessive and departed from the usual and customary
standards as existed in 1977. Dr. Andrews also said that the dose levels
exceeded the tolerance of the bladder and rectum and "will cause
unacceptable complications such as those recorded in the medical records as
being suffered by Dale Kern, deceased."
{37} Finally, plaintiff filed
her affidavit stating that when the thirty scheduled treatment sessions were
stopped at twenty-five, she and her late husband attempted to ascertain from
Dr. Simmons the reasons. She states that "Dr. Simmons would not answer and
appeared to attempt to ignore our questioning by staring off into the opposite
direction."
{38} We assume the excess
dosages contributed in some way to Dale Kern's death, although plaintiff does
not point us to evidence in the record that directly supports such a finding.
This assumption may be made based on Dr. Andrews' affidavit, at least for the
purposes of this review.
{39} Unlike
Keithley v.
St. Joseph's Hospital, the facts here do not raise inferences from which a
fact finder could find actual knowledge on the part of the defendants. In
Keithley
v. St. Joseph's Hospital, the experts stated that the errors in the
administration of radiation therapy given to the decedent were so apparent in
the decedent's treatment sheet as to "jump out at" or become
"immediately obvious" to anyone with experience with the machine. No
such fact appears here. Neither the affidavit of Dr. Boyer nor of Dr. Andrews
raise a fact issue that actual knowledge of the claimed error in radiation
treatment was present.
{40} Further, in
Keithley
v. St. Joseph's Hospital, the plaintiff wrote the hospital indicating she
felt her husband had received "too many" radiation treatments. She
also inquired regarding the status of her bill. The defendant hospital
responded by letter assuring plaintiff that she owed nothing more, but did not
respond regarding improper treatments. This correspondence was in 1978, prior
to the expiration of the statute of limitations. We said in
Keithley v. St.
Joseph's Hospital that the hospital's failure to respond to the plaintiff's
concerns would permit a fact finder to reasonably infer that the hospital was
aware of the alleged improper treatment and also, by forgiving an unpaid bill,
to infer that it hoped to avoid a malpractice action. Although plaintiff here
does not argue in her brief that any such correspondence transpired here, we
note she attached the Keithley correspondence to an affidavit by her counsel.
This would have no affect on the present case because the hospital is not a
party to this appeal, and there is no evidence that defendants here were aware
of that correspondence.
{41} What the affidavits of
Dr. Andrews and Dr. Boyer actually argue for is a "should have known"
test, or negligent failure to discover the claimed excessive radiation
administered to Mr. Kern. In
Keithley v. St. Joseph's Hospital, we
mentioned, but did not consider, whether a "should have known" test
could have been applied in that case. We noted that neither Section 41-5-13,
nor
Hardin v. Farris contains language indicating "that either the
legislature or the court intended the statute of limitations would not run in a
case where a doctor, hospital, or other health professional should have known
that his conduct was improper or that his substandard treatment caused injury
to the patient."
{42} The Supreme Court of
Delaware in
Layton v. Allen said:
We are unable thus to adapt the doctrine of fraudulent
concealment to a situation where, as here, there is no allegation that the
practitioner either had actual knowledge of the wrong done or acted
affirmatively in concealing the facts from the patient. Such scienter and
affirmative {*462} action are generally
deemed to be essential elements for the application of the doctrine of
fraudulent concealment in a malpractice case.
{43} In reversing an award for
the plaintiff where the issue of estoppel to assert the statute of limitations
had been submitted to the jury, the court in
Johns Hopkins Hospital v.
Lehninger said:
Conduct less egregious than intentional fraud will not toll
the statute of limitations. The Court of Appeals... rejected negligent
misrepresentation as a basis for tolling the statute of limitations. The Court
also rejected "ignorant" misrepresentation as justification for
tolling the limitations period in....
429 A.2d at 545 (citations omitted).
{44} What we have in the case
before us is a difference of opinion between the treating physicians and
plaintiff's experts concerning defendants' negligent administration of
radiation -- a situation typical in most malpractice cases. To require a health
care provider under these circumstances to disclose to his or its patients
information that might potentially give rise to a malpractice claim, would make
the claim of malpractice the basis for tolling the time limitations, thus
rendering the statute meaningless.
{45} We agree with the trial
court that the evidence of the conversation that plaintiff and her husband had
with Dr. Simmons is equally consistent with several hypotheses and therefore
proves none.
Adamson v. Highland Corp., 80 N.M. 4,
450 P.2d 442 (Ct.
App.1969);
Lovato v. Plateau, Inc., 79 N.M. 428,
444 P.2d 613 (Ct.
App.1968).
{46} Defendants made a prima
facie showing by proving that the malpractice claim was filed more than three
years from the date that the claimed act of malpractice occurred. In order to
defeat that showing, plaintiff had the burden of showing the existence of an
issue of material fact.
Ealy v. Sheppeck, 100 N.M. 250,
669 P.2d 259
(Ct. App.),
cert. quashed, 100 N.M. 259,
669 P.2d 735 (1983);
Irvine
v. St. Joseph Hospital, Inc. This she failed to do.
{47} Judgment in favor of
defendants is affirmed. Plaintiff to bear her costs on appeal.
WE CONCUR: JOE W. WOOD, Judge, C. FINCHER NEAL, Judge