## Facts

- Dale Kern received external beam radiation therapy for bladder cancer at St. Joseph Hospital from August 16 to September 22, 1977, under the care of Dr. Doyle Simmons, a radiation oncologist employed by X-Ray Associates.
- The Kerns were told the treatment plan involved 30 sessions, but therapy ended after 25 sessions without explanation; when asked why, Dr. Simmons did not answer.
- After treatment, Dale developed serious urinary and bowel complications, which the Kerns attributed to expected side effects rather than negligent care.
- The Kerns were not told that an excessive radiation dose may have been administered.
- In 1981, a newspaper article about alleged excessive radiation at the hospital prompted suspicion that Dale’s treatment may have involved an overdose; Danny Kern retained counsel to investigate.
- Danny Kern, as personal representative of Dale’s estate, filed a malpractice action on March 21, 1983, alleging negligent calculation and administration of radiation causing injury and death.
- Plaintiff submitted expert affidavits indicating a gross dosage calculation error consistent with an overdose.

## Issues

1. Whether the three-year medical malpractice limitations period in NMSA 1978, § 41-5-13 barred a claim filed more than three years after the last alleged act of malpractice.
2. Whether fraudulent concealment by a health-care provider can toll § 41-5-13 despite the statute’s occurrence-based trigger.
3. Whether disputes about the provider’s knowledge, concealment, and the patient’s reasonable diligence created triable fact questions precluding summary judgment.

## Decision

- The New Mexico Supreme Court reversed the summary judgment for Dr. Simmons and X-Ray Associates and reversed the Court of Appeals.
- The court held that fraudulent concealment may toll the running of § 41-5-13.
- The court found genuine disputes of material fact on whether defendants knew of an excessive dose and failed to disclose it, and on when plaintiffs discovered or should have discovered the alleged malpractice.
- The case was remanded for further proceedings.

## Legal Principles

- New Mexico’s Medical Malpractice Act generally imposes an occurrence-based three-year limitations period running from the date of the alleged malpractice.
- Fraudulent concealment remains an equitable tolling doctrine in medical malpractice cases; a provider’s knowing failure to disclose malpractice can suspend the limitations period.
- When tolling is supported by evidence of concealment, the limitations period resumes when the patient discovers, or with reasonable diligence should discover, the malpractice.
- Summary judgment is improper where evidence would allow a fact-finder to determine that concealment occurred or that discovery timing and reasonable diligence are disputed.

## Conclusion

Because evidence supported competing inferences about whether the provider knowingly concealed an excessive radiation dose and whether the Kerns reasonably could have learned of the alleged malpractice earlier, the limitations defense could not be resolved as a matter of law, and the case was required to proceed beyond summary judgment.


Kern ex rel. Kern v. St. Joseph Hosp., Inc., 102 N.M. 452, 697 P.2d 135 (N.M. 1985)