{ "id": 1588535, "name": "Shan EALY, Individually and Personal Representative of Ted Ealy, Deceased, Plaintiff-Appellant, v. James SHEPPECK, M.D., Defendant-Appellee", "name_abbreviation": "Ealy v. Sheppeck", "decision_date": "1983-04-12", "docket_number": "No. 5962", "first_page": "250", "last_page": "252", "citations": [ { "type": "official", "cite": "100 N.M. 250" }, { "type": "parallel", "cite": "669 P.2d 259" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "283 N.Y.S.2d 747", "category": "reporters:state", "reporter": "N.Y.S.2d", "opinion_index": 0 }, { "cite": "28 A.D.2d 1035", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3199741 ], "opinion_index": 0, "case_paths": [ "/ad2d/28/1035-01" ] }, { "cite": "614 P.2d 1290", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1980, "pin_cites": [ { "parenthetical": "\"continuous and substantially uninterrupted course of treatment for a particular illness or condition\" (our emphasis) necessary to toll statute until that treatment terminated" } ], "opinion_index": 0 }, { "cite": "94 Wash.2d 146", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1164013 ], "year": 1980, "pin_cites": [ { "parenthetical": "\"continuous and substantially uninterrupted course of treatment for a particular illness or condition\" (our emphasis) necessary to toll statute until that treatment terminated" } ], "opinion_index": 0, "case_paths": [ "/wash-2d/94/0146-01" ] }, { "cite": "126 Ariz. 522", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 1598793 ], "weight": 2, "year": 1980, "pin_cites": [ { "parenthetical": "continuity of treatment necessary to bring \"continuous tort\" theory into play" }, { "parenthetical": "continuity of treatment necessary to bring \"continuous tort\" theory into play" } ], "opinion_index": 0, "case_paths": [ "/ariz/126/0522-01" ] }, { "cite": "342 N.E.2d 516", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "379 N.Y.S.2d 721", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1975, "opinion_index": 0 }, { "cite": "38 N.Y.2d 257", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 2321557 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ny-2d/38/0257-01" ] }, { "cite": "96 N.M. 756", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577270 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/96/0756-01" ] }, { "cite": "85 N.M. 479", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2777140 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0479-01" ] } ], "analysis": { "cardinality": 496, "char_count": 8134, "ocr_confidence": 0.747, "pagerank": { "raw": 7.810881939313097e-08, "percentile": 0.45758575113838684 }, "sha256": "50e381f8e146b5ac9a6ea4d7f16de7331ba04e2a0ba9614a208f565317bf574d", "simhash": "1:b1da5dc297c211f9", "word_count": 1277 }, "last_updated": "2023-07-14T21:45:38.267108+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOOD and NEAL, JJ., concur." ], "parties": [ "Shan EALY, Individually and Personal Representative of Ted Ealy, Deceased, Plaintiff-Appellant, v. James SHEPPECK, M.D., Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nWALTERS, Chief Judge.\nDefendant\u2019s motion for summary judgment or for dismissal of plaintiffs\u2019 claim was granted by the trial court. The parties agree that under \u00a7 41-5-13, N.M.S. A.1978 (1982 Repl.Pamph.), plaintiff filed her malpractice claim against defendant too late, unless the statute was somehow tolled. She contends that there was a tolling either by defendant\u2019s fraudulent concealment, continuing tortious conduct, or false misrepresentation. In order to defeat defendant\u2019s prima facie showing that the limitation period had run, plaintiff had the burden of showing the existence of an issue of material fact concerning tolling. Kennedy v. Lynch, 85 N.M. 479, 513 P.2d 1261 (1973); Tenorio v. Cohen, 96 N.M. 756, 635 P.2d 311 (Ct.App.1981). We affirm the trial court\u2019s alternative grant of summary judgment in favor of defendant and dismissal of the claim.\nDefendant, a radiologist, was asked by decedent\u2019s doctor to interpret a urogram x-ray taken of decedent, on March 14,1978. He read it as reflecting a normal urogram.\nIn January 1979 another urogram was made and interpreted by a different radiologist. It showed a mass in decedent\u2019s right kidney. A cancerous tumor was removed approximately ten days later; decedent died in July, 1979. Plaintiff filed an application alleging malpractice against defendant with the New Mexico Medical Review Commission on July 14, 1981; a district court suit was instituted on November 2, 1981 alleging that defendant negligently failed to diagnose decedent\u2019s condition in March, 1978. If the statute was not tolled by reason of defendant\u2019s misreading of the urogram in March 1978, or of his fraudulent concealment of a cancerous condition found by him in March 1978, or of a false or negligent representation regarding a cancerous condition in March 1978, the filings with both the Commission and the district court in July and November of 1981, more than three years after defendant\u2019s reading of the first urogram, were untimely. Section 41-5-3(C), N.M.S.A.1978.\nThere was a complete absence of any evidence on defendant\u2019s motion for dismissal or summary judgment that common custom and practice in the medical community requires a radiologist-specialist to periodically or regularly re-read or review diagnostic films such as would support plaintiff\u2019s claim that defendant should be held liable on a theory of continuing tort.\nPlaintiff suggests that defendant\u2019s several readings of decedent\u2019s lung x-rays, made in October and December 1978, and of a later chest series made over a 3-month period in 1979 (all at the request of treating physicians) show defendant\u2019s habit of comparing past and current films. Plaintiff ignores the facts that defendant was consulted by referring treating physicians only for several chest x-rays of decedent during that period, and that defendant never was requested to nor did he take or read another kidney x-ray of decedent after the March 1978 urogram.\nDefendant was not a treating physician; it is undisputed that he was requested in March 1978 by decedent\u2019s primary physician to do a specialized radiologic renal study to assist that physician in treating decedent. In the absence of New Mexico cases addressing the issue of continuing tort as applicable to a diagnostic specialist\u2019s duty to the patient referred to him, we agree with the discussion in Davis v. City of New York, 38 N.Y.2d 257, 379 N.Y.S.2d 721, 342 N.E.2d 516 (1975), that defendant rendered \u201cintermittent rather than continuous medical services\u201d to decedent with respect to his interpretation of the urogram. Consequently, because there was no continuous medical service rendered to decedent by defendant, the statute governing the malpractice alleged commenced running when defendant interpreted the particular kidney x-ray, in March 1978. See also Russo v. Diethrich, 126 Ariz. 522, 617 P.2d 30 (1980) (continuity of treatment necessary to bring \u201ccontinuous tort\u201d theory into play); Bixler v. Bowman, 94 Wash.2d 146, 614 P.2d 1290 (1980) (\u201ccontinuous and substantially uninterrupted course of treatment for a particular illness or condition\u201d (our emphasis) necessary to toll statute until that treatment terminated); and McQuinn v. St. Lawrence County Laboratory, 28 A.D.2d 1035, 283 N.Y.S.2d 747 (N.Y.App.Div.1967) (one biopsy diagnosis by examining laboratory is not \u201ccontinuous treatment\u201d as would toll statute on continuing tort theory).\nPlaintiff produced absolutely nothing at the hearing on defendant\u2019s motion to show that the 1978 urogram was misread. If defendant\u2019s interpretation of that urogram was not incorrect, and there is no evidence upon which either we or the trial court could conclude otherwise, the claims of concealment and misrepresentation are never reached.\nWithout any evidence to support the claim of misreading or to sustain any of appellant\u2019s tolling theories, the trial court correctly decided that there was no material fact suggesting that the statute of limitations had not run.' The grant of defendant\u2019s motion is AFFIRMED.\nWOOD and NEAL, JJ., concur.", "type": "majority", "author": "WALTERS, Chief Judge." }, { "text": "OPINION ON REHEARING\nWALTERS, Chief Judge.\nPlaintiff, on motion for rehearing, calls attention to our statement in the original opinion that defendant did not take or read another kidney x-ray of decedent after the March 1978 urogram. She points out that Dr. Sheppeck made a second urogram in March 1979, and reported that the right kidney was absent in the x-ray. It had, of course, been removed in January 1979.\nOur earlier opinion should have added that no other kidney x-ray was taken or read by defendant after March 1978 and before the kidney was removed.\nWe are not told the significance of the fact that Dr. Sheppeck read another urogram after the kidney removal. In her brief in chief, plaintiff contended that \u201cthe tort continued until January 15, 1979.\u201d How does our failure to mention the urogram read by defendant in March 1979, after the kidney had been removed, affect our holding that defendant did not render continuing treatment of decedent with respect to interpreting the March 1978 urogram?\nMoreover, what would a comparison of the two x-rays have shown, if a comparison had been done, other than that the kidney was present in the 1978 x-ray and absent in 1979? Such a comparison hardly establishes a practice of re-reading diagnostic x-ray films when the organ to be diagnosed does not exist beyond the first x-ray.\nThe other points raised by plaintiff on rehearing are mere re-argument of alleged disputed facts. We repeat, no evidence, other than plaintiff\u2019s hearsay assertions that another doctor would testify that the 1978 x-ray had been improperly interpreted, was offered by plaintiff at the motion for summary judgment or to dismiss. The suit, on its face, was untimely filed. The cause of action could be saved only by showing: (1) that defendant was engaged in a tort continuing at least until July 1978, or (2) that defendant misread the March 1978 urogram, or (3) that defendant fraudulently concealed or negligently represented a cancerous condition existing in March 1978. The first condition was not shown; either of the circumstances of the third condition cannot be considered unless there is a genuine issue raised concerning the second condition. Plaintiff presented no admissible, acceptable or satisfactory evidence at the motion hearing to create an issue of fact regarding misinterpretation of the 1978 urogram, so as to toll the statute.\nThe purpose of a motion for rehearing is not to go over the same ground already presented on the main appeal in hopes of wearing down an appellate court. The judgment is again AFFIRMED.", "type": "rehearing", "author": "WALTERS, Chief Judge." } ], "attorneys": [ "Richard Y. Earl, Stephen F. Lawless, McCulloch, Grisham & Lawless, P.A., Albuquerque, for plaintiff-appellant.", "W. Mark Mowery, Mark C. Meiering, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for defendant-appellee." ], "corrections": "", "head_matter": "669 P.2d 259\nShan EALY, Individually and Personal Representative of Ted Ealy, Deceased, Plaintiff-Appellant, v. James SHEPPECK, M.D., Defendant-Appellee.\nNo. 5962.\nCourt of Appeals of New Mexico.\nApril 12, 1983.\nOpinion on Rehearing April 29, 1983.\nCertiorari Quashed Sept. 7, 1983.\nRichard Y. Earl, Stephen F. Lawless, McCulloch, Grisham & Lawless, P.A., Albuquerque, for plaintiff-appellant.\nW. Mark Mowery, Mark C. Meiering, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for defendant-appellee." }, "file_name": "0250-01", "first_page_order": 282, "last_page_order": 284 }