{ "id": 1577380, "name": "Donna EMERY and Carl Emery, Individually and on behalf of Steven Emery, a Minor, Plaintiffs-Appellants, v. UNIVERSITY OF NEW MEXICO MEDICAL CENTER, Defendant-Appellee", "name_abbreviation": "Emery ex rel. Emery v. University of New Mexico Medical Center", "decision_date": "1981-05-12", "docket_number": "No. 4903", "first_page": "144", "last_page": "154", "citations": [ { "type": "official", "cite": "96 N.M. 144" }, { "type": "parallel", "cite": "628 P.2d 1140" } ], "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": "389 N.Y.S.2d 277", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1976, "opinion_index": 0 }, { "cite": "88 Misc.2d 972", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1897275 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/misc2d/88/0972-01" ] }, { "cite": "444 U.S. 111", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11305036 ], "weight": 3, "year": 1979, "opinion_index": 0, "case_paths": [ "/us/444/0111-01" ] }, { "cite": "568 P.2d 1233", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2867153 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0787-01" ] }, { "cite": "90 N.M. 787", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2872120, 2867153 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0787-02", "/nm/90/0787-01" ] }, { "cite": "95 Wis.2d 357", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8673407 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/wis-2d/95/0357-01" ] }, { "cite": "90 N.M. 391", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2872528 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/90/0391-01" ] }, { "cite": "83 N.M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334147 ], "weight": 3, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/83/0789-01" ] }, { "cite": "84 N.M. 565", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2765891 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0565-01" ] }, { "cite": "95 N.M. 654", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575571 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0654-01" ] }, { "cite": "86 N.M. 697", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2823433 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0697-01" ] }, { "cite": "54 N.M. 189", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582001 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/nm/54/0189-01" ] }, { "cite": "93 N.M. 648", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568656 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/93/0648-01" ] }, { "cite": "86 N.M. 581", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2822130 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0581-01" ] }, { "cite": "93 N.M. 786", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568675 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nm/93/0786-01" ] }, { "cite": "79 A.2d 355", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1951, "opinion_index": 1 }, { "cite": "137 Conn. 525", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 1568955 ], "year": 1951, "opinion_index": 1, "case_paths": [ "/conn/137/0525-01" ] }, { "cite": "118 A.2d 500", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1955, "opinion_index": 1 }, { "cite": "208 Md. 424", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2209172 ], "year": 1955, "opinion_index": 1, "case_paths": [ "/md/208/0424-01" ] }, { "cite": "29 S.W.2d 6", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1930, "opinion_index": 1 }, { "cite": "234 Ky. 739", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 5103506 ], "year": 1930, "opinion_index": 1, "case_paths": [ "/ky/234/0739-01" ] }, { "cite": "133 N.E. 609", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1922, "opinion_index": 1 }, { "cite": "77 Ind. App. 279", "category": "reporters:state", "reporter": "Ind. App.", "case_ids": [ 2511412 ], "year": 1922, "opinion_index": 1, "case_paths": [ "/ind-app/77/0279-01" ] }, { "cite": "13 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1941, "opinion_index": 1 }, { "cite": "177 Va. 204", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 1981705 ], "year": 1941, "opinion_index": 1, "case_paths": [ "/va/177/0204-01" ] }, { "cite": "209 Tenn. 106", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8528392 ], "weight": 2, "year": 1961, "opinion_index": 1, "case_paths": [ "/tenn/209/0106-01" ] }, { "cite": "231 S.C. 453", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2100432 ], "weight": 2, "year": 1957, "opinion_index": 1, "case_paths": [ "/sc/231/0453-01" ] }, { "cite": "361 S.W.2d 183", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10155517 ], "opinion_index": 1, "case_paths": [ "/sw2d/361/0183-01" ] }, { "cite": "290 So.2d 811", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9786033 ], "year": 1974, "opinion_index": 1, "case_paths": [ "/so2d/290/0811-01" ] }, { "cite": "479 Pa. 286", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1742146 ], "weight": 2, "year": 1978, "opinion_index": 1, "case_paths": [ "/pa/479/0286-01" ] }, { "cite": "373 N.E.2d 1174", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 1 }, { "cite": "374 Mass. 633", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 3871674 ], "year": 1978, "opinion_index": 1, "case_paths": [ "/mass/374/0633-01" ] }, { "cite": "105 N.E. 601", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1914, "pin_cites": [ { "page": "603" } ], "opinion_index": 1 }, { "cite": "218 Mass. 8", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 91816 ], "year": 1914, "opinion_index": 1, "case_paths": [ "/mass/218/0008-01" ] }, { "cite": "92 N.M. 635", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557277 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/92/0635-01" ] }, { "cite": "534 P.2d 97", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10462336 ], "opinion_index": 1, "case_paths": [ "/p2d/534/0097-01" ] }, { "cite": "4 Or.App. 575", "category": "reporters:state", "reporter": "Or. App.", "case_ids": [ 2146533 ], "weight": 2, "year": 1971, "opinion_index": 1, "case_paths": [ "/or-app/4/0575-01" ] }, { "cite": "72 N.M. 291", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2856485 ], "weight": 2, "year": 1963, "opinion_index": 1, "case_paths": [ "/nm/72/0291-01" ] }, { "cite": "59 N.M. 235", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1589283 ], "weight": 2, "year": 1955, "opinion_index": 1, "case_paths": [ "/nm/59/0235-01" ] }, { "cite": "82 Mont. 434", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 4887383 ], "weight": 2, "year": 1928, "pin_cites": [ { "page": "520" } ], "opinion_index": 1, "case_paths": [ "/mont/82/0434-01" ] }, { "cite": "167 N.E. 486", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1929, "pin_cites": [ { "page": "487" } ], "opinion_index": 1 }, { "cite": "31 Ohio App. 512", "category": "reporters:state", "reporter": "Ohio App.", "case_ids": [ 1314375 ], "year": 1929, "opinion_index": 1, "case_paths": [ "/ohio-app/31/0512-01" ] }, { "cite": "59 A.L.R.3d 81", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1974, "opinion_index": 1 }, { "cite": "89 Nev. 230", "category": "reporters:state", "reporter": "Nev.", "case_ids": [ 4869153 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nev/89/0230-01" ] }, { "cite": "568 P.2d 1233", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2867153 ], "year": 1977, "opinion_index": 1, "case_paths": [ "/nm/90/0787-01" ] }, { "cite": "90 N.M. 787", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2872120, 2867153 ], "year": 1977, "opinion_index": 1, "case_paths": [ "/nm/90/0787-02", "/nm/90/0787-01" ] }, { "cite": "95 Wis.2d 357", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8673407 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/wis-2d/95/0357-01" ] }, { "cite": "90 N.M. 391", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2872528 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/nm/90/0391-01" ] }, { "cite": "95 N.M. 654", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575571 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/95/0654-01" ] } ], "analysis": { "cardinality": 1304, "char_count": 34010, "ocr_confidence": 0.844, "pagerank": { "raw": 1.73221557897434e-07, "percentile": 0.7056905634266708 }, "sha256": "53dcadd1cbd1573a25d01aa6d0c5664165be57b2ceac9d0aa8fa5e23b1fa2f52", "simhash": "1:b9509236856cbe9c", "word_count": 5687 }, "last_updated": "2023-07-14T16:25:27.930698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WALTERS, J., concurs.", "SUTIN, J., specially concurring in result." ], "parties": [ "Donna EMERY and Carl Emery, Individually and on behalf of Steven Emery, a Minor, Plaintiffs-Appellants, v. UNIVERSITY OF NEW MEXICO MEDICAL CENTER, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nThis appeal involves the notice provisions of \u00a7 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.\nThe pertinent provisions of \u00a7 41^4-16, supra, are:\nA. Every person who claims damages from the state or any local public body under the Tort Claims Act [41-4-1 to 41 \u2014 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.\nB. 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.\nThe 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 \u00a7 41-4-16, supra.\nProcedural Matters\n(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.\n(b) The complaint alleges that defendant is a \u201cdivision\u201d of the State of New Mexico not qualified under the Medical Malpractice Act. The answer admits that defendant is not a \u201cqualified\u201d health care provider, see \u00a7 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.\n(c)Plaintiffs moved for a hearing on the defense of noncompliance with \u00a7 41-4-16, supra, asserting that such a hearing \u201cwould be despositive [sic] of Plaintiffs\u2019 claims.\u201d At the hearing, the court and counsel treated plaintiffs\u2019 notices as a \u201cmotion to dismiss the affirmative defense raised concerning the lack of notice .... \u201d The motion would seem to be a motion under R.Civ.Proc. 12(f), to strike the defense as \u201cinsufficient\u201d, 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\u2019 motion.\nA 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 \u201cinsufficient\u201d 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 \u00a7 41-4-16, supra; it is a defense under which a defendant might be entitled to relief against plaintiffs\u2019 claim and, thus, a defense not to be stricken as insufficient as a matter of law. Our point is that regardless of how plaintiffs\u2019 motion might be characterized, it could not be decided as a matter of law in this case.\n(d) At the hearing on plaintiffs\u2019 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 \u00a7 41 \u2014 4-16, supra. After listening to this argument, the trial court denied the right of plaintiffs to proceed \u201cbased upon the 90 day notice\u201d. This was a ruling that the notice requirement of \u00a7 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.\n(e) Early in his argument, plaintiffs\u2019 counsel referred to an affidavit. After the trial court\u2019s oral ruling denying plaintiffs\u2019 counsel the right to proceed, counsel asked for permission to file the affidavit. Permission was granted; the trial court told plaintiffs\u2019 counsel to \u201c[f]ile your affidavit\u201d. After the affidavit was filed, defendant\u2019s counsel was to \u201cpresent your order, which will be signed \u2014 \u201d. 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).\n(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\u2019 complaint with prejudice.\nPlaintiffs 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\u2019s order must be reversed because there would be no factual basis for the order.\n(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\u2019s 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).\nThe affidavit and attachments were before the trial court without objection on defendant\u2019s part. These items converted the \u201cmotion to dismiss\u201d 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\nSection 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 \u201cor unless the governmental entity had actual notice of the occurrence.\u201d Actual notice of the occurrence in \u00a7 41-4-16(B), supra, which excuses written notice, is similar to actual notice of the occurrence excusing written notice in \u00a7 52-1-29(B), N.M.S.A.1978, of our workmen\u2019s 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\u2019 claim is based, written notice was excused. Beckwith v. Cactus Drilling Corporation, 84 N.M. 565, 505 P.2d 1241 (Ct. App.1972).\nOne of the attachments to plaintiffs\u2019 affidavit is a letter to the plaintiff-parents. The letter has a letterhead \u201cBERNALILLO COUNTY MENTAL HEALTH/MENTAL RETARDATION CENTER \u2014 The University of New Mexico Mental Health Programs\u201d. It is signed by a \u201cNurse Specialist\u201d. The letter refers to Steven\u2019s problem with \u201cmovements, mainly because of the brain damage he sustained shortly after he was born.\u201d The letter states that Steven\u2019s mental abilities are \u201cdelayed\u201d; that he was acting like a younger child; \u201c[tjhis also is because of the brain damage he sustained after birth.\u201d Another attachment is a \u201cDISCHARGE SUMMARY\u201d showing Steven was discharged from the hospital on March 26, 1979. This summary states:\nApproximately 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.\nThe 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 \u00a7 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\u2019s argument: \u201cThere\u2019s 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 . . .. \u201d We have previously pointed out that arguments of counsel are not evidence.\nThe only showing in the record is that there was a question of fact as to whether defendant had \u201cactual notice\u201d of the occurrence on which plaintiffs\u2019 claim is based. There being a question of fact as to actual notice, summary judgment in favor of defendant was erroneous.\nWhen the Notice Provision Begins to Run\nSteven was a premature child. Plaintiffs\u2019 affidavit states that early on the morning of March 2,1979, while Donna was gowning for a visit with Steven,\nan alarm went off, hospital personnel were working on Steven, she [Donna] saw that the heart rate indicator showed that Steven\u2019s 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\u2019s throat, into one lung, and that this had caused the problem.\nDefendant contends the incident of March 2, 1979 is the \u201coccurrence\u201d on which plaintiffs\u2019 claim is based, and that no written notice was given within 90 days of this occurrence.\nPlaintiffs respond that although the discharge summary reports \u201csome sort of insult\u201d 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\u2019s development. \u201cBrain damage?\u201d is again noted in the hospital record after the parents\u2019 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. \u201cAt 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.\u201d Thereafter, the parents received the letter of February 6, 1980 from which we quoted in discussing actual knowledge. Plaintiffs\u2019 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.\nSection 41-4-16(A), supra, requires a written notice \u201cwithin ninety days after an occurrence giving rise to a claim for which immunity has been waived under the Tort Claims Act . . . . \u201d Plaintiffs\u2019 claim is one for which immunity has been waived, \u00a7 41^1-9, N.M.S.A.1978. Defendant\u2019s contention, that the 90-day notice provision runs from the \u201coccurrence\u201d, gives no effect to the statutory language \u2014 \u201coccurrence giving rise to a claim\u201d. More than an occurrence is involved; compare the difference in the occurrence language of \u00a7 41-4-16(A) and (B), supra.\nIn 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 \u201cinjury\u201d and held that the limitation period began to run \u201cfrom the time the injury manifests itself in a physically objective manner and is ascertainable.\u201d (Emphasis in original.) In so holding, we pointed out that \u201cthere is no cause of action for malpractice until there has been a resulting injury.\u201d\nIf 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.\nDefendant 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: \u201cAlthough 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.\u201d\nThe 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 \u201c \u2018of the event causing the injury\u2019 \u201d. Yotvat held this provision was a \u201cnotice 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.\u201d\nNew 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\u2019s decision in Yotvat v. Roth to leave the matter to the Legislature, New Mexico, in Peralta v. Martinez, supra, applied a \u201cmanifestation and ascertainable\u201d rule in interpreting a statute of limitations.\nAn 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 \u201c \u2018within two years after such claim accrues.\u2019 \u201d 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).\nA defendant in a suit under our Tort Claims Act has two \u201ctime\u201d defenses, a notice requirement as well as the statute of limitations, \u00a7 41-4-15, N.M.S.A.1978. Section 41 \u2014 4-15(A) has language similar to, and \u00a7 41-4-15(B) has language identical to, the language of \u00a7 41 \u2014 4-16(A), supra \u2014 \u201coccurrence giving rise to a claim\u201d.\nIn light of the similarity of language between \u00a7\u00a7 41 \u2014 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\u2019s 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.\nThe order dismissing plaintiffs\u2019 complaint is reversed. The cause is remanded for proceedings consistent with this opinion. Plaintiffs are to recover their appellate costs.\nIT IS SO ORDERED.\nWALTERS, J., concurs.\nSUTIN, J., specially concurring in result.", "type": "majority", "author": "WOOD, Judge." }, { "text": "SUTIN, Judge\n(specially concurring in result).\nI specially concur in the result.\nI specially concur solely to attempt to protect plaintiffs\u2019 rights although these rights may have been lost in accordance with our Rules of Civil Procedure and judicial announcements.\nJudge Wood\u2019s opinion has disregarded the issues raised in the trial court, cast aside defendant\u2019s excellent and provocative brief and created a non-existent summary judgment. The purpose of the opinion was to discover some procedural method that would preserve plaintiffs\u2019 rights in order to effect \u201cjustice\u201d as the public understands it \u2014 the right to be heard in court. Parties should not suffer the loss of this right if some reasonable method can be devised to overcome serious errors committed in the trial court. I choose to take the route that defendant\u2019s second defense be stricken from the answer.\nA. The trial court did not enter a summary judgment.\nOn June 26, 1980, plaintiffs erroneously sued defendant under the Medical Malpractice Act for injuries suffered by a minor child in defendant\u2019s hospital on February 29, 1978, 16 months prior thereto. Plaintiffs\u2019 complaint did not state a claim for relief because it did not show compliance with \u00a7 41-4-16, N.M.S.A.1978. But this issue was not raised in the district court. If it had been, perhaps plaintiffs would have filed an amended complaint to show compliance.\nOn July 18, 1980, defendant filed an answer, the second defense being:\nPlaintiffs have failed to comply with the provision of Section 41-4-1, et seq. (N.M.S.A. Comp., 1978) and particularly Section 41-4-16.\nOn July 28, 1980, plaintiffs filed a Motion for Hearing on Affirmative Defense as follows:\nComes now the Plaintiffs and show to the Court that Defendant\u2019s Second Affirmative Defense, Failure to Comply with the provisions of Section 41 \u2014 4\u20141, et seq. NMSA 1978 should be set down for hearing as it would be despositive [sic] of Plaintiffs\u2019 claim.\nThis motion was not accompanied by any affidavit nor any indication that testimony or depositions would be presented in its support.\nOn the same day, plaintiffs gave notice to defendant that on August 25, 1980, at 9:15 A.M., the motion would be heard. Plaintiffs estimated that the total time required for all parties and witnesses would be 15 minutes. Defendant expected a \u201clegal argument\u201d hearing. At the hearing, plaintiffs made a two-pronged factual argument: (1) the 90 day notice, as provided in \u00a7 41-4-16, was waived due to the minority of the child; (2) the parents did not know of the injury and gave notice within 90 days after the knowledge was obtained. Most of plaintiffs\u2019 argument was spent on the unconstitutionality of \u00a7 41-4-16. Authority cited was Turner v. Staggs, 89 Nev. 230, 510 P.2d 879 (Nev.1973), 59 A.L.R.3d 81 (1974). The annotation is devoted to \u201cModern Status of the Law as to Validity of Statutes and Ordinances Requiring Notice of Tort Claim Against Local Government Entity.\u201d\nDuring the course of plaintiffs\u2019 argument, the statement was made that, unfortunately, although plaintiffs had almost 30 days to prepare one, plaintiffs did not yet have an affidavit prepared to present at the hearing. Plaintiffs\u2019 attorney had been in trial all week and did not \u201cget a chance to get this affidavit prepared and filed.\u201d The trial court orally denied the right of plaintiffs \u201cto proceed, based upon the 90 day notice\u201d and requested an Order to that effect. Plaintiffs then requested that the court allow the filing of an affidavit. The request was allowed. The court stated that plaintiffs would first file the affidavit, then the Order would be signed. This allowance was an accommodation to plaintiffs.\nOn August 29, 1980, four days after the hearing, plaintiffs filed an affidavit with letters and hospital records attached as exhibits but not made upon personal knowledge. It was subscribed and sworn to on August 27, 1980, two days after the hearing. The record does not show mailing or delivery to defendant nor to the court. No request was made of the court to consider this affidavit and apparently the court did not. On September 30, 1980, a month later, a final Order was entered which dismissed plaintiffs\u2019 complaint with prejudice.\nBy a series of convolutions unknown to a court of review, by twisting, turning and meandering, Judge Wood\u2019s opinion concluded:\n. . . These items converted the \u201cmotion to dismiss\u201d 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. [Emphasis added.]\nIn this fashion, defendant obtained summary judgment. It was accomplished by way of defendant filing an affirmative defense in its answer. This mystery I cannot solve. It requires the wisdom of Solomon and the dexterity of Houdini. The trial court dismissed plaintiffs\u2019 claim with prejudice for failure to give defendant notice as required by \u00a7 41 \u2014 4\u201416. To convert it into a summary judgment is not a reasonable method of preserving plaintiffs\u2019 rights.\nB. Defendant\u2019s affirmative defense should be stricken from the answer.\nSection 41-4-16 provides that written notice shall be given \u201cwithin ninety days after an occurrence giving rise to a claim.\u201d Otherwise, plaintiffs\u2019 claim is lost \u201cunless the . .. [hospital] had actual notice of the occurrence.\u201d If the hospital \u201chad actual notice of the occurrence,\u201d an action may be \u201ccommenced within two years after the date of occurrence resulting in loss, injury or death, except that a minor under the full age of seven years shall have until his ninth birthday in which to file.\u201d Section 41-4-15(A).\nDefendant takes the position that the affidavit and exhibits filed late by plaintiffs should not be considered by this Court. To do so compels an affirmance of the judgment below. If the defense were based upon substantial evidence, I would agree. If, however, the defense were filed with knowledge that the hospital \u201chas actual notice of the occurrence,\u201d then, it was not filed in good faith. Plaintiffs and defendant were in a sense in pari delicto, equally at fault. In the trial court, plaintiffs did not argue that defendant \u201chad actual knowledge of the occurrence\u201d as shown by the hospital records. This failure falls within the perimeter of inadvertence or lack of preparation. Defendant, on the other hand, knew that it \u201chad actual knowledge of the occurrence\u201d and remained silent. After the fact, all parties know that if the truth were disclosed to the trial court, the affirmative defense would have been stricken from the answer.\n\u201c \u2018Even where the contracting parties are in pari delicto, the courts may interfere from motives of public policy.\u2019 \u201d Dahms v. Swinburne, 31 Ohio App. 512, 167 N.E. 486, 487 (1929). The same rule should be applied here. \u201cThe peculiar function of equity is to afford relief for wrong where there is no remedy or no adequate remedy at law.\u201d Bullard v. Zimmerman, 82 Mont. 434, 268 P. 512, 520 (1928).\nAn \u201coccurrence\u201d is an \u201cevent, incident, episode, circumstance,\u201d something that happens or takes place. The \u201coccurrence\u201d took place in the hospital and was recorded from the time of the child\u2019s birth on February 28, 1979, to the time of the last visitation on January 24, 1980, and a hospital report of February 6, 1980. The hospital \u201chad actual notice of the occurrence\u201d which gave rise to a claim. In its Answer Brief in this appeal, the hospital carefully avoided any mention of its actual knowledge.\nTrue, we sit as a court of review to search the record for alleged errors committed in the trial court. On appeal, we do not consider questions which have not been passed upon below. Miller v. Smith, 59 N.M. 235, 282 P.2d 715 (1955); State v. Quesenberry, 72 N.M. 291, 383 P.2d 255 (1963). But, if in the record itself, we discover evidence such as hospital records, the truth of which is not denied by defendant, we do not sit idly by to deprive parties of fundamental rights. We must not allow \u201cinjustice\u201d to prevail over \u201cjustice\u201d in a court of law or equity. As a result, in an appeal, we cast aside the errors, omissions and mistakes made below and rules applicable thereto. This court is a judicial tribunal engaged in the administration of justice. We adhere to a judicial attribute that parties should not suffer an injustice due to representation if a reasonable method can be found to avoid it.\nThis discussion does not cast any aspersions on the conduct of the trial court. It had no duty, in advance of a hearing, to study the case in order to resolve a perplexing problem of which it has no knowledge. In advance of a hearing, lawyers have a duty to submit memoranda to assist the court. In the instant case, the trial court had nothing before it other than arguments of lawyers. No request was made either that the trial court consider the affidavit and exhibits before a final order be entered, or that the order be set aside based upon this information.\nThe hospital\u2019s defense that plaintiffs failed to comply with \u00a7 41^4-16 should be stricken.\nC. Whether commencement of the notice provision is the day of occurrence is a question of fact.\nSection 41-4-16(A) reads in pertinent part:\nEvery person who claims damages . .. under the Tort Claims Act . . . shall cause to be presented . .. within ninety days after an occurrence giving rise to a claim ... a written notice stating the time, place and circumstances of the loss or injury. [Emphasis added.]\nThe statute is silent on the meaning of \u201can occurrence giving rise to a claim.\u201d It is a difficult and complex legal problem that demands a fair result to both the governmental entity and the person who claims damages.\nAbsent \u201cactual notice of the occurrence\" by the governmental entity, the notice provision is a condition precedent to the bringing of an action. The giving of the notice is jurisdictional. Fry v. Willamalane Park & Recreation District, 4 Or.App. 575, 481 P.2d 648 (1971); Awe v. University of Wyoming, 534 P.2d 97 (Wyo.1975); Yotvat v. Roth, 95 Wis.2d 357, 290 N.W.2d 524 (1980). See, Espanola Housing Authority v. Atencio, 90 N.M. 787, 568 P.2d 1233 (1977). It is not a statute of limitations. It creates a new liability unknown to the common law. It is a statute of creation that does not fix the time in which an action may be commenced. The time of commencement is fixed by a statute of limitations.\nAvoiding the circumstances under which Peralta v. Martinez, 90 N.M. 391, 564 P.2d 194 (1977) became the opinion of this Court, Judge Wood held in this medical malpractice case that \u201cthe limitation period begins to run from the time the injury manifests itself in a physically objective manner and is ascertainable.\u201d [Id. 394, 564 P.2d 194.] Judge Wood now states:\n... 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.\nIn other words, a notice \u201cwithin ninety days after an occurrence giving rise to a claim\u201d may be synonymous with a notice within ninety days (after an occurrence) when an injury manifested itself in a physically objective manner and was ascertainable. By this analogy, \u00a7 41-4-16(A) was changed into a \u201cnotice of injury\u201d statute. If so, Yotvat, supra, relied on by the hospital is directly in point.\nIn Yotvat, plaintiffs\u2019 complaint was dismissed for failure to show compliance with the notice statute and for lack of jurisdiction. Plaintiffs discovered that they had a claim within the 90 day period but did not give notice until some six days after the period had run. The Wisconsin statute provided that notice be given \u201cwithin ninety days of the event causing the injury . . . giving rise to a civil action .... \u201d [Emphasis added.] The court said that the statute \u201cis a notice of injury statute ...\u201d and:\nWe conclude that the period in which notice must be given . . . runs from the event causing the injury . . . regardless when the event is discovered by the claimant. [Emphasis added.] [Id. 528.]\nThe Wisconsin statute adds a factor that is absent from the New Mexico statute\u2014 \u201cthe event causing the injury.\u201d An \u201cevent\u201d that causes an injury is an event of such nature, force and effect that a reasonably prudent person knows or should know that it has resulted in what would be called a \u201cmedical\u201d injury. A \u201cpain\u201d can be classified as injury. Herndon v. Albuquerque Public Schools, 92 N.M. 635, 593 P.2d 470 (Ct.App.1978).\nIn 1914, Justice Shelton, in the case of In re Burns, 218 Mass. 8, 105 N.E. 601, 603 (1914) defined \u201cinjury\u201d in common speech that has been generally adopted. . It reads:\n... In common speech the word \u201cinjury\u201d as applied to a personal injury to a human being, includes whatever lesion or change in any part of the system produces harm or pain or a lessened facility of the natural use of any bodily activity or capability. If one by external violence had his optic nerve severed close to the brain, or its function destroyed so as to result in blindness, although nothing whatever had been done to the eyes themselves or to the structures immediately surrounding them, it yet would be said in common speech that his eyes had been injured to the point of uselessness. Whatever part of the human body thus has been made inAPPLICable of its normal use so that practically it has ceased to be available for the purpose for which it was adapted, is certainly injured according to the common understanding of men. . . . [Emphasis added.]\nIn re Fitzgibbons\u2019 Case, 374 Mass. 633, 373 N.E.2d 1174 (1978); Workmen\u2019s Comp. v. Bernard S. Pincus Co., 479 Pa. 286, 388 A.2d 659 (1978); Jennings v. Louisiana and Southern Life Ins. Co., 290 So.2d 811 (La. 1974); Aetna Casualty and Surety Company v. Moore, 361 S.W.2d 183 (Tex.1962); Roper v. Kimbrell\u2019s of Greenville, 231 S.C. 453, 99 S.E.2d 52 (1957); Brown Shoe Company v. Reed, 209 Tenn. 106, 350 S.W.2d 65 (1961); Burlington Mills Corporation v. Hagood, 177 Va. 204, 13 S.E.2d 291 (1941); Wasmuth-Endicott Co. v. Karst, 77 Ind. App. 279, 133 N.E. 609 (1922).\nThe \u201cNotice of injury\u201d statute requires an occurrence of such nature, force and effect that it \u201cproduces harm or pain or a lessened facility of the natural use of any bodily activity or capability.\u201d If the event is of such magnitude, or the injuries are of such degree as to compel notice as a matter of law, the 90 day notice commences to run from this event. If the event is trivial as a matter of law, one that is commonplace, ordinary, or insignificant, the 90 day notice does not commence to run even though casual or latent injuries subsequently develop into serious ones. If either event does or does not compel notice as a matter of law, it is proper to leave the matter to the jury under an appropriate instruction which states the plaintiff\u2019s duty to give notice in accordance with the statute. The jury shall say whether the circumstances of the event were such as would suggest to one of. ordinary and reasonable prudence whether the 90 day notice commenced to run from the day of the event.\nThis rule is equally applicable under the New Mexico statute. It provides that notice shall be given \u201cwithin 90 days after an occurrence giving rise to a claim.\u201d To give rise to a claim, the event must be of such magnitude, force and effect that it causes an injury. When this occurs as a matter of law, the 90 day notice commences to run the day of the event. Otherwise, the day of commencement becomes an issue of fact for the jury.\nThis fair and reasonable view is supported by Southern Surety Co. v. Heyburn, 234 Ky. 739, 29 S.W.2d 6 (1930); Lennon v. American Farmers Mutual Insurance Co., 208 Md. 424, 118 A.2d 500 (1955); Silver v. Indemnity Ins. Co. of North America, 137 Conn. 525, 79 A.2d 355 (1951). These are insurance policy cases with provisions such as \u201cany occurrence which might result in a claim,\u201d or notice \u201cas soon as practical\u201d which means an accident sufficiently serious to give rise to a claim for damages.\nThe reasoning is fluent. It all depends upon whether the occurrence is sufficiently serious to lead a person of ordinary intelligence and prudence to believe that it might give rise to a claim. The information about the occurrence ordinarily is peculiarly within the knowledge of the person who seeks a claim for relief. Therefore, the duty is laid upon this person to give notice to the local government entity in accordance with law. No duty arises if the person, such as the mother of a minor child, is ignorant of the fact that an occurrence has taken place with reference to her child. It would not be reasonable to lay upon the mother the obligation to disclose information of which she is justifiably ignorant. The same is true if the mother knew the facts surrounding some event affecting her child which were trivial. The 90 day notice does not begin to run the day of the occurrence. As a result, no occurrence took place which gave rise to a claim within 90 days thereafter. Only, when a question of fact exists as to whether the occurrence gave rise to a claim, does the trier of the fact determine whether or not the 90 day notice commenced on the day of the occurrence.\nThis question of fact should be submitted to the jury.\nThe constitutional question has been left in abeyance. See Martinez v. City of Clovis, 95 N.M. 654, 625 P.2d 583 (1980), Sutin, J., specially concurring.", "type": "concurrence", "author": "SUTIN, Judge" } ], "attorneys": [ "Harold Worland, Duhigg & Cronin, Albuquerque, for plaintiffs-appellants.", "W. Robert Lasater, Jo Saxton Brayer, Rodey, Dickason, Sloan, Akin & Robb, P. A., Albuquerque, for defendant-appellee." ], "corrections": "", "head_matter": "628 P.2d 1140\nDonna EMERY and Carl Emery, Individually and on behalf of Steven Emery, a Minor, Plaintiffs-Appellants, v. UNIVERSITY OF NEW MEXICO MEDICAL CENTER, Defendant-Appellee.\nNo. 4903.\nCourt of Appeals of New Mexico.\nMay 12, 1981.\nHarold Worland, Duhigg & Cronin, Albuquerque, for plaintiffs-appellants.\nW. Robert Lasater, Jo Saxton Brayer, Rodey, Dickason, Sloan, Akin & Robb, P. A., Albuquerque, for defendant-appellee." }, "file_name": "0144-01", "first_page_order": 172, "last_page_order": 182 }