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Juarez v. Nelson12/3/2002
28, 1995, when the last office visit occurred, and May 28, 1995, when Dr. Nelson was called to the emergency room. Plaintiffs have conceded that Dr. Nelson was not negligent in treating Mr. Ledezma on May 28, 1995, following his heart attack. Thus, Plaintiffs' continuing tort approach depends upon the existence of a continuing duty extending through at least May 27, 1995, that would have required Dr. Nelson to revisit the question of whether he was competent to treat Mr. Ledezma's heart condition. Plaintiffs did not come forward with any evidence establishing a genuine issue of material fact as to whether the applicable standard of care imposed on Dr. Nelson a duty to reconsider his decision to treat Mr. Ledezma himself or to rethink his diagnosis between February 28 and May 28, 1995. We hold that, on this record, any act of malpractice by Dr. Nelson occurred no later than February 28, 1995, the date of the last office visit. See Cummings, 1996-NMSC-035, 55 (stating that in mis-diagnosis case date of occurrence is the date that patient was last examined by defendant); accord Havens v. Ritchey, 582 N.E.2d 792 (Ind. 1991) (holding that when sole claim of medical malpractice is a failure to diagnose, "the omission cannot as a matter of law extend beyond the time the physician last rendered a diagnosis"). Accordingly, Plaintiffs' claims against Dr. Nelson, which were filed more than three years after February 28, 1995, were barred by Section 41-5-13.
c. Fraudulent Concealment
Dr. Nelson's burden, as the party moving for summary judgment, was to make out a prima facie case of entitlement to summary judgment. See Blauwkamp v. Univ. of N.M. Hosp., 114 N.M. 228, 232, 836 P.2d 1249, 1253 (Ct. App. 1992). Dr. Nelson supported his motion for summary judgment with undisputed evidence that he did not see Mr. Ledezma between February 28, 1995, the date of the last office visit, and May 28, 1995, the date of Mr. Ledezma's death. As previously noted, Plaintiffs do not claim that Mr. Ledezma received substandard care on May 28, 1995. Dr. Nelson's evidence was sufficient to make out a prima facie case that Plaintiffs' complaint, which was filed on May 27, 1998, was filed more than three years after the latest date on which Dr. Nelson had the opportunity to commit an act of malpractice. See Cummings, 1996-NMSC-035, 55 (stating that in mis-diagnosis case date of occurrence is the date that patient was last examined by defendant). In order to overcome Dr. Nelson's prima facie showing and to establish a prima facie case that Dr. Nelson should be estopped from asserting Section 41-5-13, Plaintiffs had the burden of showing genuine issues of fact as to their counter-affirmative defense of estoppel based upon Dr. Nelson's fraudulent concealment. See Kern, 102 N.M. at 455-56, 697 P.2d at 138-39; Keithley, 102 N.M. at 569, 698 P.2d at 439.
Dr. Nelson, citing Kern, argues that Plaintiffs are precluded from asserting equitable estoppel based upon fraudulent concealment because they learned of Dr. Nelson's malpractice shortly after Mr. Ledezma's death. According to Dr. Nelson, Kern held that estoppel based upon fraudulent concealment does not apply to any plaintiff who learns of the defendant's malpractice "within the statutory period." Kern, 102 N.M. at 456, 697 P.2d at 139. As we explain below, the statements from Kern on which Dr. Nelson relies were non-binding dicta, which have been overtaken by the Supreme Court's more recent pronouncements in Garcia v. LaFarge, 119 N.M. 532, 893 P.2d 428 (1995).
In LaFarge, the Supreme Court summarized the law governing fraudulent concealment as follows:
Under principles of equitable estoppel, this Court recognizes the doctrine of fraudu
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