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Tomlinson v. George6/30/2005
approximately one and one-half years, was not too short a time in which to file her claim. The Court concluded that " he most determinative fact against [the plaintiff] is that she did not exercise diligence when she first learned she had been misinformed about the mass in her lung by [the defendant]." Id. 57. The Court relied on the fact that the plaintiff had approximately one and a half years to file her claim before the statute of repose ran; " evertheless, she sat on her rights and did not file any claim for more than two years." Id. The plaintiff "lost her medical malpractice claim through her own lack of diligence." Id. "It is irrelevant that the patient loses his or her malpractice claim through blameless ignorance." Id. 59 (quotation marks and quoted authority omitted).
Cummings thus demarcates the outer boundary of La Farge; we read these cases as complementary rather than conflicting. While La Farge holds that a plaintiff who discovers the injury or malpractice during the statutory period as it runs from the occurrence of the negligent act must have a reasonable period of time from the discovery to file his or her claim, Cummings concludes that one and one-half years is a constitutionally reasonable period of time within which to file a claim. See Cummings, 1996-NMSC-035, 57. Section 41-5-13 "forecloses any cause of action that does not accrue within three years of the act of malpractice." Id. 33. In other words, a plaintiff that discovers his or her cause of action after three years from the date of malpractice is barred by Section 41-5-13 from filing a claim; that is the nature of a statute of repose. Thus, we conclude that this precedent resolves that the La Farge/Cummings due process analysis must apply only to claims discovered within the statutory period; if a claim is discovered after the statute has run, Section 41-5-13 is an explicit bar. We have recognized "very few exceptional circumstances" to this "strict three-year occurrence rule," including fraudulent concealment. Cummings, 1996-NMSC-035, 54.
Because the fraudulent concealment doctrine does not toll Section 41-5-13 for Tomlinson, and because the district court ruled on the issue, we address whether the due process analysis excuses Tomlinson's late filing. In the present case, the district court determined that, under the substantive due process analysis of LaFarge, almost three years was not "an unreasonably short period of time within which to bring an accrued cause of action." We agree. Tomlinson had almost the entire statutory period within which to file her claim. In LaFarge, we concluded that eighty-five days was an unreasonably short period of time. On the other hand, Cummings holds that one and one-half years is not too short a time and that a plaintiff who does not file his or her claim in that period of time loses the claim through a lack of diligence. Cummings, 1996-NMSC-035, 57. Thus, under the LaFarge/Cummings due process analysis, Tomlinson's two years and eight months is a constitutionally reasonable period of time within which to file her claim.
C. Clarification of Tolling Section 41-5-13 Based on Fraudulent Concealment
Section 41-5-13 requires plaintiffs to file their claims within three years from the date the malpractice occurs. With Section 41-5-13, the Legislature, in order to alleviate the "unfair burden upon the medical profession" created by a discovery rule, "preclude almost all malpractice claims from being brought more than three years after the act of malpractice." Cummings, 1996-NMSC-035, 38, 40. Fraudulent concealment requires a plaintiff to demonstrate that the defendant physician knew of the alleged negligent act and concealed the negligent ac
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