Peralta v. Martinez , 90 N.M. 391 ( 1977 )

OPINION

WOOD, Chief Judge.

This is a medical malpractice case. The appeal, which involves only plaintiff and Dr. Martinez, is concerned with the statute of limitation. The dispositive issue is when plaintiff’s cause of action against Dr. Martinez accrued.

On February 15, 1971 Dr. Martinez operated on plaintiff. Allegedly, Dr. Martinez left a cottonoid in plaintiff’s body at the time of this surgery. The cottonoid was discovered in surgery performed April 17, 1973. Plaintiff sued Dr. Martinez for malpractice; the complaint was filed January 8, 1976. Claiming the statute of limitation had run, Dr. Martinez moved for summary judgment. The motion was denied; we granted Dr. Martinez’ motion for an interlocutory appeal.

The limitation period for bringing an action for “injury to the person” is three years. Section 23-1-8, N.M.S.A.1953. The three-year period begins to run from the time the cause of action accrues. Section 23-1-1, N.M.S.A.1953. Roybal v. White, 72 N.M. 285, 383 P.2d 250 (1963) states that an action for personal injuries for malpractice accrues at the time of the wrongful act causing the injury. Roybal was followed by this Court in Mantz v. Follingstad, 84 N.M. 473, 505 P.2d 68 (Ct.App.1972).

If Roybal is correct, the three-year limitation period would have expired on February 15,1974. Dr. Martinez relies on Roybal. Plaintiff seeks to avoid the applicability of Roybal, arguing: (1) the limitation period did not begin to run until the cottonoid was removed; (2) the limitation period was tolled by alleged fraudulent concealment on Dr. Martinez’ part, see Hardin v. Farris, 87 N.M. 143, 530 P.2d 407 (Ct.App.1974); and (3) although rejected in Roybal, supra, the limitation period should not begin to run until the malpractice is “discovered”. We do not reach these contentions; in our opinion, the Roybal holding is not a correct statement of when the limitation period begins to run. Our opinion is based on the following six reasons.

1. The statute does not state that the limitation period runs from the time of the wrongful act. Compare § 58-33-13, N.M.S. A.1953 (Interim Supp.1976) which provides that the limitation period runs from the date of the act of malpractice. Section 58-33-13, supra, is not applicable to this case. Laws 1976, ch. 2, § 32. The applicable statute is § 23-1-8, supra, which provides that the limitation period runs from the “injury”.

2. The reason that the limitation period runs from the injury rather than from the wrongful act, is that there is no cause of action for malpractice until there has been a resulting injury. Spurlin v. Paul Brown Agency, Inc., 80 N.M. 306, 454 P.2d 963 (1969). A wrong without damage or damage without wrong does not amount to a cause of action. Jensen v. Allen, 63 N.M. 407, 320 P.2d 1016 (1958); see Chisholm v. Scott, 86 N.M. 707, 526 P.2d 1300 (Ct.App.1974).

3. In personal injury actions not involving malpractice, the limitation period stated in § 23-1-8, supra, has been held to run from “the time of the injury not the time of the negligent act.” New Mexico Electric Service Co. v. Montanez, 89 N.M. 278, 551 P.2d 634 (1976); see also Chavez v. Kitsch, 70 N.M. 439, 374 P.2d 497 (1962).

4. The distinction between the time of the injury and the time of the wrongful act has been applied in damage actions not involving personal injury. Spurlin v. Paul Brown Agency, Inc., supra; Chisholm v. Scott, supra.

5. In holding that an action for personal injury from malpractice runs from the time of the wrongful act, Roybal cites only Kilkenny v. Kenney, 68 N.M. 266, 361 P.2d 149 (1961) as authority. Roybal states:

“New Mexico, following the majority, has held that a cause of action for personal injuries for malpractice accrues at the time of the wrongful act causing the injury. Kilkenny v. Kenney, supra.”

Kilkenny v. Kenney, supra, does not support the holding in Roybal; Kilkenny applied the “time of injury” rule. One of the claims in Kilkenny was by the husband for personal injury to his wife for malpractice. The claim was for damages for the period between the time of the injury to his wife and the subsequent death of his wife. Kilkenny states:

• for such an action as brought by the appellant here, as husband, the same should have been filed within three years from the date of the injury.”

6.The holding in Kilkenny cannot be disregarded as an unfortunate choice of words. A subsequent decision shows that the Kilkenny holding was deliberate and intended. Chavez v. Kitsch states:

“We recently held in the case of Kilkenny v. Kenney, 68 N.M. 266, 361 P.2d 149, that in an action brought by a husband as administrator and for himself and as next friend of his children, for damages arising out of injury and death of his wife, that § 23-1-8, supra, applied, and that the action should have been filed within three years from the date of the injury.”

The holding in Roybal is inconsistent with the statute and with other New Mexico decisions. However, Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973) reminded this Court that we are to follow precedents of the Supreme Court. Are we bound to apply Roybal ? We think not for two reasons: (1) Supreme Court decisions conflict as to when the limitation period begins to run in malpractice actions — Roybal conflicts with Kilkenny, yet Roybal relies on Kilkenny as authority; and (2) Roybal is a departure from the consistent approach in non-malpractice decisions which hold the limitation period runs from the date of the injury.

We hold that the limitation period began to run against plaintiff from the time of his injury and not from the time of the malpractice. Is this a distinction with a difference? Yes.

In Layton v. Allen, 246 A.2d 794 (Del.1968) a hemostat was left in plaintiffs body during surgery in 1958; plaintiff first experienced pain in 1965. Wilkinson v. Harrington, 104 R.I. 224, 243 A.2d 745 (1968) states:

“In this age of enlightened medicine and highly sophisticated curative treatment it is very likely that the maturation of injury resulting from negligent treatment would not evidence itself for well after the . . . [time] provided for in the statute of limitations.”

Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959) states:

“The plaintiff . . . could hardly have launched his lawsuit on the day Dr. Morgan performed the operation because, at that time, no injury was yet inflicted. The injury became a reality when the sponge began to break down healthful tissue within the body of the plaintiff.”

Whether the injury occurs at the time of the malpractice or subsequently, the limitation period begins to run from the time of the injury.

How is the time of the injury to be determined? Ayers v. Morgan, supra, states:

“The injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.”

Layton v. Allen states:

“. . . when an inherently unknowable injury, such as is here involved, has been suffered . . . and the harmful effect thereof develops gradually over a period of time, the injury is ‘sustained’ . when the harmful effect first manifests itself and becomes physically ascertainable.”

This is not the “discovery” rule. In Layton, supra, the limitation period did not run from “discovery” of the hemostat in 1966, the limitation period was held to run from 1965 “when the plaintiff first experienced pain caused by the unknown foreign object.”

We hold the limitation period begins to run from the time the injury manifests itself in a physically objective manner and is ascertainable.

The complaint alleges that the injuries suffered by plaintiff because of the cottonoid were inherently unknowable to plaintiff. Affidavits submitted in support of Dr. Martinez’ summary judgment motion are to the effect that: (1) plaintiff’s continuing complaints of pain following the 1971 surgery were consistent with a herniated disc at the L5-S1 level (not the level operated on in 1971), and (2) “the only way the presence of the cottonoid could be discovered would be during surgery as, in fact, it was on April 17, 1973.” This was not a showing that the injury manifested itself and was ascertainable prior to April 8, 1973 (three years prior to filing the complaint). Rather, Dr. Martinez’ showing was that the limitation period did not begin to run until April 17, 1973. The complaint was filed within the limitation period.

Oral argument is unnecessary. The order denying summary judgment on the basis that the limitation period had not run is affirmed.

IT IS SO ORDERED.

HENDLEY, J., concurs. SUTIN, J., specially concurring.