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Juarez v. Nelson12/3/2002
vered, or, by the exercise of ordinary diligence, could have been discovered," Hardin, 87 N.M. at 146, 530 P.2d at 410, we conclude that Plaintiffs failed to demonstrate genuine issues of material fact as to circumstances that would have supported tolling beyond the first week after Mr. Ledezma's death. By the end of that week Plaintiffs, through Mrs. Ledezma, either discovered, or, by the exercise of ordinary diligence, could have discovered, their cause of action.
Third, even if we assume that Dr. Nelson is equitably estopped from asserting the running of Section 41-5-13 during the five-day period from the date of Mr. Ledezma's death, May 28, 1995, until Mrs. Ledezma's discussions with Dr. Nelson's nurse and the family friend, Plaintiffs' complaint was still untimely. As we noted above in our discussion of Plaintiffs' continuing tort theory, Dr. Nelson 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. 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). Even if we were to toll Section 41-5-13 for the five days during which fraudulent concealment arguably may have occurred, Plaintiffs' complaint would still have had to have been filed no later than March 5, 1998, in order to have been timely.
2. PHS
Plaintiffs appeal from the district court's judgment granting partial summary judgment in favor of PHS. The district court dismissed Plaintiffs' "claims set forth, or which could have been set forth, in Plaintiffs' Complaint against PHS for vicarious liability based upon alleged professional negligence on the part of Dr. Kirk L. Nelson."
PHS does not claim that it was a qualified health care provider or that it can itself assert Section 41-5-13 as a defense. Instead, citing the rule that "exoneration of the servant operates in tort to exonerate the principal of vicarious liability," Gallegos v. Citizens Ins. Agency, 108 N.M. 722, 730, 779 P.2d 99, 107 (1989), PHS argues that the judgment dismissing Plaintiffs' claims against Dr. Nelson also bars any claim against PHS that is based upon vicarious liability for Dr. Nelson's alleged malpractice. Because the relevant facts are not in dispute, PHS's motion for summary judgment presents a question of law, which we review under a de novo standard. Gunjai v. Macias, 2001-NMSC-028, 8, 130 N.M. 734, 31 P.3d 1008.
Defendant has not cited, and we are not aware of, any New Mexico case applying the principle that the "exoneration of the servant operates in tort to exonerate the principal of vicarious liability" where the employee has been "exonerated" by a statute of limitations. In Gutierrez v. Albertsons, Inc., 113 N.M. 256, 264, 824 P.2d 1058, 1066 (Ct. App. 1991), we expressly declined to address the issue of whether the running of the statute of limitations against an employee bars the vicarious liability of the employer. An examination of cases from other jurisdictions indicates that "exoneration of the servant" commonly is understood to mean acquittal of the employee or agent following a trial on the merits. E.g., Lake Shore & Mich. S. Ry. Co., 2 Ill. App. 228 (Ill. App. Ct. 1878). As one court has explained:
The rule, we think, is one of logic rather than law. The rule underlying cases of this character is that the master is liable for the negligence of the se
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