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Juarez v. Nelson12/3/2002
lent concealment to toll a statute of limitations. Kern, 102 N.M. at 455-56, 697 P.2d at 138-39. To toll the statute applicable here, the plaintiff must establish that the physician knew of his or her alleged wrongful act and concealed that act from the patient, or that the physician had material information pertinent to the discovery of his or her wrongful act and failed, under a duty to do so, to disclose that information. Because equity tolls the statue, it does so only as long as the patient is not guilty of failing to exercise ordinary diligence in pursuit of a cause of action. 119 N.M. at 536, 893 P.2d at 432.
In a footnote, the Supreme Court addressed the diligence requirement:
In Kern, the diligence requirement was stated to be "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." 102 N.M. at 456, 697 P.2d at 139 (emphasis added). Kern relied on Garcia v. Presbyterian Hospital Center, 92 N.M. 652, 593 P.2d 487 (Ct. App. 1979), for the proposition that the statute of limitations is not tolled if the patient knew of the cause of action within the statutory period. 102 N.M. at 456, 697 P.2d at 139. In Garcia, however, the patient did learn of the nondisclosure within the statutory period and the court [of appeals] tolled the limitations period until that discovery and allowed the plaintiff three years from that time to file suit. In Kern the patient did not discover the concealment until after the statutory period had expired, and thus the phrase "within the statutory period" was not dispositive. LaFarge, 119 N.M. at 536 n.1, 893 P.2d at 432 n.1.
Thus, the Supreme Court recognized in LaFarge that dicta in Kern may have created confusion as to the consequence of the plaintiff's discovery of the defendant's fraud prior to the expiration of the entire three-year period of Section 41-5-13. However, because of its view that the issue had not been adequately briefed by the parties, the LaFarge court declined to reach the question of fraudulent concealment, and instead decided the case on constitutional grounds. We take the present opportunity to settle the issue of what consequence attaches to the plaintiff's discovery of his cause of action before the entire statutory period has expired.
Our research indicates that no reported New Mexico appellate decision has been decided on the ground that a plaintiff who has been delayed in discovering his or her cause of action by fraudulent concealment is precluded from relying on equitable estoppel merely because the defendant was not successful in deceiving the plaintiff for the entire period of the applicable statute of limitations. In Hardin v. Farris, 87 N.M. 143, 530 P.2d 407 (Ct. App. 1974) and Garcia v. Presbyterian Hosp. Ctr., 92 N.M. 652, 593 P.2d 487 (Ct. App. 1979) we reversed judgments in favor of defendant health care providers notwithstanding showings by the defendants in each case that the plaintiff was aware of the malpractice prior to the expiration of the statute of limitations.
In Hardin, the act of malpractice (an incomplete tubal ligation) allegedly occurred on June 20, 1969; the plaintiff became pregnant and gave birth to a child on July 4, 1972; and the lawsuit was filed on May 16, 1973. It appears from these facts that the plaintiff learned that she was still capable of becoming pregnant within three years from June 20, 1969 --i.e., "within the statutory period." Nevertheless, we held that the allegations of plaintiffs' complaint made out a case of fraudulent concealment. We reversed the district court's order granting the defendant judgment on the pleadings and directed the district court
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