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Tomlinson v. George6/30/2005
sicians and assuring New Mexicans access to health care.
III. Conclusion
Tomlinson's cause of action is barred by operation of Section 41-5-13. Applying the fraudulent concealment analysis of Kern to the present matter, and assuming that George fraudulently concealed his act of alleged malpractice, we conclude that the principle does not toll the statute of repose because Tomlinson discovered the alleged act of malpractice within the statutory period. Tomlinson's cause of action is barred by Section 41-5-13 because she knew of her cause of action and had over two years and eight months during the statutory period in which to file her claim. George's alleged fraudulent concealment did not prevent Tomlinson from filing her claim within three years from the date of alleged malpractice. Under our separate substantive due process analysis, we conclude that Section 41-5-13 as applied to Tomlinson is not unconstitutional because two years and eight months is an adequate period of time within which to file a claim.
We conclude that the Court of Appeals and the district court did not err by determining that Tomlinson's claim should be dismissed by operation of Section 41-5-13. Thus, we affirm the district court's grant of summary judgment dismissing Plaintiff's claim.
IT IS SO ORDERED.
PATRICIO M. SERNA, Justice
WE CONCUR:
PAMELA B. MINZNER, Justice
PETRA JIMENEZ MAES, Justice
MICHAEL E. VIGIL, Judge New Mexico Court of Appeals (sitting by designation)
JAMES HALL, Judge District Judge (sitting by designation)
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