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Tomlinson v. George6/30/2005
Plaintiff-Petitioner Patricia Tomlinson brought a medical malpractice action against Defendant-Respondent Dr. Jacob George. The district court granted George's motion for summary judgment based on the ground that Tomlinson failed to file within the three-year statute of repose period. The Court of Appeals affirmed the district court by unanimous opinion based on several cases from this Court, Tomlinson v. George, 2003-NMCA-004, 25, 27, 133 N.M. 69, 61 P.3d 195, and we granted Tomlinson's petition for writ of certiorari to the Court of Appeals.
We address whether the fraudulent concealment doctrine equitably tolls the statute of repose, NMSA 1978, ยง 41-5-13 (1976), so as to permit Tomlinson to file a malpractice action more than three years after the alleged act of malpractice in light of the fact that she was aware of the act four months into the three-year period and thus had approximately two years and eight months within which to file her claim. Under a direct application of the fraudulent concealment doctrine set out in this Court's opinion in Kern ex rel. Kern v. Saint Joseph Hospital, Inc., 102 N.M. 452, 455-56, 697 P.2d 135, 138-39 (1985), we conclude that the doctrine tolls the statute of repose only when the plaintiff does not discover the alleged malpractice within the statutory period as a result of the defendant's fraudulent concealment. Thus, because Tomlinson was aware of her claim within the statutory period, the statute of repose is not tolled by the doctrine of fraudulent concealment. We take this opportunity to clarify the fraudulent concealment doctrine and Section 41-5-13, as well as to resolve conflicting Court of Appeals' cases on this issue, compare Tomlinson, 2003-NMCA-004, 25 (concluding that Section 41-5-13 is not tolled by fraudulent concealment when the malpractice was discovered six weeks into the statutory period), with Juarez v. Nelson, 2003-NMCA-011, 22-25, 133 N.M. 168, 61 P.3d 877 (concluding that fraudulent concealment tolls Section 41-5-13 when the malpractice was discovered two weeks into the statutory period).
Finally, we conclude that the district court properly found that Tomlinson had a constitutionally reasonable period of time under the statute of repose within which to file her claim under Garcia ex rel. Garcia v. La Farge, 119 N.M. 532, 536-37, 893 P.2d 428, 432-33 (1995) and Cummings v. X-Ray Associates of New Mexico, 1996-NMSC-035, 47-55, 121 N.M. 821, 918 P.2d 1321. We conclude that, under these cases, two years and eight months is not an unreasonably short period of time within which to file a claim so as to render Section 41-5-13 unconstitutional as applied. Thus, we affirm the district court and the Court of Appeals.
I. Facts and Background
Tomlinson fractured and dislocated her wrist in an automobile accident on August 20, 1996. George, an orthopedic surgeon, performed a closed external reduction of the fracture on the day of the injury and applied a cast. George x-rayed Tomlinson's wrist on August 27, October 1, and November 5, and believed that her wrist was healing properly. George did not treat Tomlinson after November 5, 1996. On December 24, 1996, Tomlinson obtained her original x-rays from George taken on the three dates and saw Dr. Alfred Blue, a Seattle-based reconstructive hand surgeon; Blue opined that George had negligently treated Tomlinson. Both Tomlinson and George agree that Tomlinson knew she had a potential medical malpractice claim against George on December 24, 1996. Between February of 1997 and July of 1999, Tomlinson had several surgeries and numerous treatments and evaluations by other physicians.
Tomlinson filed an application with the New Mexico Med
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