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Juarez v. Nelson12/3/2002
to reinstate plaintiffs' complaint.
In Garcia, 92 N.M. at 652, 593 P.2d at 487, the undisputed facts established that the plaintiff had been provided with negligent treatment for prostatic cancer in July 1972, that plaintiffs' counsel learned in September 1974 that the plaintiff had been subjected to malpractice, and that the plaintiffs' complaint was filed on July 13, 1976. Notwithstanding the undisputed fact that the plaintiff, through counsel, was aware of the malpractice within three years of the act of malpractice, we once again held that the plaintiff had made out a prima facie case that the statute of limitations was tolled by the defendant's nondisclosure. Id. at 655, 593 P.2d at 487.
We recognize that we may not "summarily" disregard dicta in a decision of the Supreme Court. State v. Johnson, 2001-NMSC-001, 16, 130 N.M. 6, 15 P.3d 1233. However, in the case of the Kern "within the statutory period" dicta, the Supreme Court itself has suggested there is a question as to whether Kern limits the doctrine of fraudulent concealment to cases in which the concealment is not discovered until the applicable limitations period has expired. LaFarge, 119 N.M. at 536 n.1, 893 P.2d at 432 n.1. We further note that in describing the doctrine of equitable estoppel based upon fraudulent concealment, the LaFarge opinion does not include as an element the requirement that the plaintiff has been unable to discover his or her cause of action "within the statutory period." Since we must choose between competing Supreme Court formulations of the doctrine of equitable estoppel, we choose to follow the more recent statement in LaFarge which we have quoted above. The LaFarge formulation seems to us to strike a more satisfying balance between the purpose of equitable estoppel, which is to insure that "no person may obtain advantage by his own wrong." Hardin, 87 N.M. at 145, 530 P.2d at 409, and the equitable principle that "equity aids those who have been vigilant, not those who sleep on their rights," 27 A Am. Jur. 2d Equity ยง 130 (1966). The LaFarge formulation restores to the defrauded plaintiff exactly the amount of time that was lost as the result of the fraudulent concealment regardless of whether the period of fraudulent concealment was a day, three months, or five years.
Applying LaFarge, we reach the following conclusions. First, Plaintiffs failed to establish a genuine issue of material fact that fraudulent concealment occurred before May 28, 1995, when the fact of Mr. Ledezma's fatal heart attack arguably could have alerted Dr. Nelson to the possibility that he had misdiagnosed Mr. Ledezma's heart condition. New Mexico has rejected a constructive fraud approach to fraudulent concealment "whereby if a physician has committed malpractice, then he `should have known.'" Kern, 102 N.M. at 456, 697 P.2d at 139 (citation omitted). There is no direct or circumstantial evidence demonstrating a genuine issue of material fact that Dr. Nelson knew of any error in diagnosis or treatment prior to May 28, 1995. Thus, tolling by fraudulent concealment could not have begun any earlier than May 28, 1995.
Second, the undisputed evidence establishes that within five days of Mr. Ledezma's death, Mrs. Ledezma was told by Dr. Nelson's nurse that "Dr. Nelson didn't do everything he could have done, and that I needed to get a lawyer." In addition, within a few days of Mr. Ledezma's death, Mrs. Ledezma was told by a family friend, who was a registered nurse and who had reviewed Mr. Ledezma's medical records, that Dr. Nelson had been negligent in not referring Mr. Ledezma to another doctor for "extra help." Applying the principle that equity tolls the statute "until the right of action is disco
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