Emery Ex Rel. Emery v. University of New Mexico Medical Center ( 1981 )

OPINION

WOOD, Judge.

This appeal involves the notice provisions of § 41-4-16, N.M.S.A.1978. We discuss: (1) procedural matters; (2) actual notice; and (3) when the notice provision began to run.

The pertinent provisions of § 41^4-16, supra, are:

A. Every person who claims damages from the state or any local public body under the Tort Claims Act [41-4-1 to 41 — 4-25 NMSA 1978] shall cause to be presented to the risk management division for claims against the state, the may- or of the municipality for claims against the municipality, the superintendent of the school district for claims against the school district, the county clerk of a county for claims against the county, or to the administrative head of any other local public body for claims against such local public body, within ninety days after an occurrence giving rise to a claim for which immunity has been waived under the Tort Claims Act, a written notice stating the time, place and circumstances of the loss or injury.

B. No suit or action for which immunity has been waived under the Tort Claims Act shall be maintained and no court shall have jurisdiction to consider any suit or action against the state or any local public body unless notice has been given as required by this section, or unless the governmental entity had actual notice of the occurrence. The time for giving notice does not include the time, not exceeding ninety days, during which the injured person is incapacitated from giving the notice by reason of injury.

The complaint alleges that Donna gave birth to Steven while Donna was a patient at defendant hospital; that defendant, through its agents and employees, was negligent in the care of Steven with the result that Steven suffered brain damage. Defendant asserted, as an affirmative defense, that plaintiffs failed to comply with § 41-4-16, supra.

Procedural Matters

(a) We make no distinction between the plaintiff-parents and the plaintiff-infant without deciding whether such a distinction might be appropriate in another case.

(b) The complaint alleges that defendant is a “division” of the State of New Mexico not qualified under the Medical Malpractice Act. The answer admits that defendant is not a “qualified” health care provider, see § 41-5-5, N.M.S.A.1978, but denies that defendant is a division of the state. The written notices given by plaintiffs were given both to the state and to the county. Those notices refer to a claim against Bernalillo County Medical Center. There is no contention that a distinction should be made between defendant and the Bernalillo County Medical Center, and such a distinction is not considered in deciding the appeal.

(c)Plaintiffs moved for a hearing on the defense of noncompliance with § 41-4-16, supra, asserting that such a hearing “would be despositive [sic] of Plaintiffs’ claims.” At the hearing, the court and counsel treated plaintiffs’ notices as a “motion to dismiss the affirmative defense raised concerning the lack of notice .... ” The motion would seem to be a motion under R.Civ.Proc. 12(f), to strike the defense as “insufficient”, rather than a motion under R.Civ.Proc. 12(b)(6), to dismiss for failure to state a claim upon which relief could be granted. However, it is unnecessary to consider the proper characterization of plaintiffs’ motion.

A motion to dismiss may be granted only when the claimant cannot be entitled to relief under any state of facts provable under the claim. Candelaria v. Robinson, 93 N.M. 786, 606 P.2d 196 (Ct.App. 1980). A motion to strike a defense as “insufficient” raises the question of the legal sufficiency of the defense. See Harrison v. Lucero, 86 N.M. 581, 525 P.2d 941 (Ct.App.1974). The notice defense is accorded by § 41-4-16, supra; it is a defense under which a defendant might be entitled to relief against plaintiffs’ claim and, thus, a defense not to be stricken as insufficient as a matter of law. Our point is that regardless of how plaintiffs’ motion might be characterized, it could not be decided as a matter of law in this case.

(d) At the hearing on plaintiffs’ motion, counsel for both parties made an occasional reference to a factual matter, but nothing was presented to the court which could be considered as evidence of the facts. Most of the argument went to the legal meaning of § 41 — 4-16, supra. After listening to this argument, the trial court denied the right of plaintiffs to proceed “based upon the 90 day notice”. This was a ruling that the notice requirement of § 41-4-16, supra, was not met as a matter of fact. The arguments of counsel are not evidence. Phillips v. Allstate Ins. Co., 93 N.M. 648, 603 P.2d 1105 (Ct.App.1979); see State v. Edwards, 54 N.M. 189, 217 P.2d 854 (1950); U.J.I. Civ. 1.6(6). There being no evidence on which to decide the notice defense as a matter of fact, this oral ruling of the trial court was erroneous.

(e) Early in his argument, plaintiffs’ counsel referred to an affidavit. After the trial court’s oral ruling denying plaintiffs’ counsel the right to proceed, counsel asked for permission to file the affidavit. Permission was granted; the trial court told plaintiffs’ counsel to “[f]ile your affidavit”. After the affidavit was filed, defendant’s counsel was to “present your order, which will be signed — ”. Compare Johnsen v. Fryar, (Ct.App.) No. 4477, decided October 2, 1980 (St.B.Bull. Vol. 19, No. 45 at 1024, cert. granted November 21, 1980).

(f) The affidavit, together with attachments purporting to be copies of written notices to the state and county and copies of medical records, was filed August 29, 1980. Over a month later an order was entered dismissing plaintiffs’ complaint with prejudice.

Plaintiffs rely on the affidavit and attachments to show that dismissal was erroneous. Defendant contends these items cannot properly be considered. If this contention is correct, then the trial court’s order must be reversed because there would be no factual basis for the order.

(g) Defendant claims that the affidavit and attachments were not before the trial court at the time of the hearing. This argument overlooks the fact that permission was granted to file the affidavit. Defendant asserts the contents of the affidavit and attachments went beyond the subject matter of the trial court’s permission. Defendant had more than 30 days to raise such an objection, but did not do so. Defendant also complains that the contents of the attachments are not in the proper form to be considered. No such objection was raised to the trial court. These contentions not having been raised in the trial court, they will not be considered. See Cordova v. City of Albuquerque, 86 N.M. 697, 526 P.2d 1290 (Ct.App.1974).

The affidavit and attachments were before the trial court without objection on defendant’s part. These items converted the “motion to dismiss” hearing into one for summary judgment, see R.Civ.Proc. 12(b), and the order dismissing with prejudice was a summary judgment in favor of defendant. Actual Notice

Section 41-4-16(A), supra, is a provision for written notice to the state or local public body against whom the claim is made. Section 41-4-16(B), supra, states a jurisdictional bar to suit unless the required notice has been given “or unless the governmental entity had actual notice of the occurrence.” Actual notice of the occurrence in § 41-4-16(B), supra, which excuses written notice, is similar to actual notice of the occurrence excusing written notice in § 52-1-29(B), N.M.S.A.1978, of our workmen’s compensation statute; these provisions should be interpreted similarly. See Martinez v. City of Clovis, 95 N.M. 654, 625 P.2d 583 (Ct.App.1980). If defendant had actual knowledge of the incident on which plaintiffs’ claim is based, written notice was excused. Beckwith v. Cactus Drilling Corporation, 84 N.M. 565, 505 P.2d 1241 (Ct. App.1972).

One of the attachments to plaintiffs’ affidavit is a letter to the plaintiff-parents. The letter has a letterhead “BERNALILLO COUNTY MENTAL HEALTH/MENTAL RETARDATION CENTER — The University of New Mexico Mental Health Programs”. It is signed by a “Nurse Specialist”. The letter refers to Steven’s problem with “movements, mainly because of the brain damage he sustained shortly after he was born.” The letter states that Steven’s mental abilities are “delayed”; that he was acting like a younger child; “[tjhis also is because of the brain damage he sustained after birth.” Another attachment is a “DISCHARGE SUMMARY” showing Steven was discharged from the hospital on March 26, 1979. This summary states:

Approximately 24 hours of age the baby experienced some sort of insult with a questionable seizure activity noted. After the next 5 days the baby was in a state of semi-coma with very little spontaneous movement. EMI scan on 3/7 showed equivocal increase of coefficients in the left frontal lobe representing either a small focal acute hemorrhage or infarct.

The foregoing is the showing made by plaintiffs who were opposing dismissal of their claim on the basis of lack of notice. Defendant, who was seeking a judgment sustaining its defense of noncompliance with § 41-4-16, supra, had the burden of showing an absence of a fact issue on the question of non-compliance. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972). Defendant did not make such a showing; it presented nothing to show an absence of a factual issue except its counsel’s argument: “There’s nothing in the medical records, as far as I can find, that would really give the state or its agents any notice that there was anything that went wrong here . . .. ” We have previously pointed out that arguments of counsel are not evidence.

The only showing in the record is that there was a question of fact as to whether defendant had “actual notice” of the occurrence on which plaintiffs’ claim is based. There being a question of fact as to actual notice, summary judgment in favor of defendant was erroneous.

When the Notice Provision Begins to Run

Steven was a premature child. Plaintiffs’ affidavit states that early on the morning of March 2,1979, while Donna was gowning for a visit with Steven,

an alarm went off, hospital personnel were working on Steven, she [Donna] saw that the heart rate indicator showed that Steven’s heart had stopped. She was told to go into another room, and was subsequently advised by one of the hospital personnel that a medical student had inserted a tube that was supposed to go into Steven’s throat, into one lung, and that this had caused the problem.

Defendant contends the incident of March 2, 1979 is the “occurrence” on which plaintiffs’ claim is based, and that no written notice was given within 90 days of this occurrence.

Plaintiffs respond that although the discharge summary reports “some sort of insult” to Steven when he was approximately 24 hours old, the hospital records have no mention of brain damage until the physician with whom the parents met on November 7, 1979 raised the question in the records after the parents expressed their concern with Steven’s development. “Brain damage?” is again noted in the hospital record after the parents’ visit of November 21, 1979. Although brain damage is raised as a question in the hospital records in November, 1979, the affidavit states that plaintiffs were never advised of this brain damage as a possibility. “At the time of the January 24, 1980 visit, we were first advised that Steven did definitely have brain damage and that it was probably related to the incident in the hospital following his birth.” Thereafter, the parents received the letter of February 6, 1980 from which we quoted in discussing actual knowledge. Plaintiffs’ written notices, to the state and county, are dated February 29, 1980. On the basis of the items in this paragraph, plaintiffs contend their written notices were timely.

Section 41-4-16(A), supra, requires a written notice “within ninety days after an occurrence giving rise to a claim for which immunity has been waived under the Tort Claims Act . . . . ” Plaintiffs’ claim is one for which immunity has been waived, § 41^1-9, N.M.S.A.1978. Defendant’s contention, that the 90-day notice provision runs from the “occurrence”, gives no effect to the statutory language — “occurrence giving rise to a claim”. More than an occurrence is involved; compare the difference in the occurrence language of § 41-4-16(A) and (B), supra.

In Peralta v. Martinez, 90 N.M. 391, 564 P.2d 194 (Ct.App.1977), we considered a statute of limitations that began to run from the “injury” and held that the limitation period began to run “from the time the injury manifests itself in a physically objective manner and is ascertainable.” (Emphasis in original.) In so holding, we pointed out that “there is no cause of action for malpractice until there has been a resulting injury.”

If there was an occurrence, as plaintiffs contend, on March 2, 1979, that occurrence did not give rise to a claim until there was an injury. If Peralta v. Martinez may be applied, the time period for notice did not begin to run until the injury manifested itself in a physically objective manner and was ascertainable.

Defendant asserts that Peralta, supra, may not be applied because it involved a statute of limitations rather than a notice, required as a contention precedent to suit. Defendant states: “Although cases interpreting a medical malpractice statute of limitation may be of value in interpreting the statute of limitations provision in the Tort Claims Act, they are of no value in interpreting the notice of claims provision.”

The notice provision considered in Yotvat v. Roth, 95 Wis.2d 357, 290 N.W.2d 524 (Ct.App.1980), provided that notice was to be given within 90 days “ ‘of the event causing the injury’ ”. Yotvat held this provision was a “notice of injury statute .... If the [date of] discovery rule is to apply to a notice of injury statute, this is as much a policy decision to be implemented by legislation as is application of the discovery rule to statutes of limitation.”

New Mexico, like Wisconsin, has recognized the similarity between notice statutes and statutes of limitation. Espanola Housing Authority v. Atencio, 90 N.M. 787, 568 P.2d 1233 (1977). However, unlike Wisconsin’s decision in Yotvat v. Roth to leave the matter to the Legislature, New Mexico, in Peralta v. Martinez, supra, applied a “manifestation and ascertainable” rule in interpreting a statute of limitations.

An approach similar to that of Peralta v. Martinez was taken by the United States Supreme Court. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Kubrick considered a statute requiring that a claim be presented in writing “ ‘within two years after such claim accrues.’ ” Kubrick held that the claim accrued when the plaintiff knew both the existence and cause of his injury, and not when plaintiff knew that the acts inflicting the injury might constitute medical malpractice. See also Paul v. State, 88 Misc.2d 972, 389 N.Y.S.2d 277 (1976).

A defendant in a suit under our Tort Claims Act has two “time” defenses, a notice requirement as well as the statute of limitations, § 41-4-15, N.M.S.A.1978. Section 41 — 4-15(A) has language similar to, and § 41-4-15(B) has language identical to, the language of § 41 — 4-16(A), supra — “occurrence giving rise to a claim”.

In light of the similarity of language between §§ 41 — 4-15 and 41-4-16, we do not agree that Peralta v. Martinez, supra, should not be considered; rather, we view the Peralta decision as applicable precedent. Following Peralta, there was no occurrence giving rise to a claim until Steven’s injury manifested itself in a physically objective manner and was ascertainable. The affidavit and attachments to the affidavit show this to be a question of fact. Defendant presented nothing showing an absence of a factual issue and, thus, did not meet its burden under Goodman v. Brock, supra. It was not entitled to judgment in its favor on this issue.

The order dismissing plaintiffs’ complaint is reversed. The cause is remanded for proceedings consistent with this opinion. Plaintiffs are to recover their appellate costs.

IT IS SO ORDERED.

WALTERS, J., concurs. SUTIN, J., specially concurring in result.