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6 N.M. L. Rev. 271 (1975-1976)
The Statute of Limitations in Medical Malpractice Actions

handle is hein.journals/nmlr6 and id is 277 raw text is: THE STATUTE OF LIMITATIONS IN MEDICAL MALPRACTICE ACTIONS Statutes of limitations occasionally give unjustifiable advantage to a malpracticing physician whose negligence is not discovered until several years after the negligent act occurred. Where an injury is not discoverable for many years,' an interpretation that the limitation period runs from the date of the negligent act may cut off the plaintiff's right to sue before he learns that he has an injury. Con- comitantly, physicians may be immunized from liability for their wrongful acts. This Comment will examine the New Mexico statute of limitations for medical malpractice cases in the context of injuries not discovered until several years after the physician's wrongful act. The Medical Malpractice Act2 enacted by the 1976 legislature contains a three-year statute of limitations.' It applies only to claims arising out of acts of malpractice which occur after February 27, 1976, the effective date of the Act. Because the prior statute of limitations will continue to govern many actions not yet filed, this Comment will first discuss the prior statute of limitations and some of the cases interpreting it. The new statute of limitations will also be considered, along with its possible constitutional effects. THE STATUTE OF LIMITATIONS PRIOR TO THE MALPRACTICE ACT Prior to adoption of the Medical Malpractice Act, malpractice cases were subject to the three-year time limitation for personal injury actions,4 which begins to run when the cause of action accrues.' But the statute does not indicate when a cause of action 1. The most common latent medical injury is a surgical instrument left in a patient's body during surgery. The facts in Laughlin v. Forgrave, 432 S.W.2d 308 (Mo. 1968), illustrate this problem. The plaintiff had an operation on her lower back in 1951. She suffered mild pain in her lower back after that operation. It was not until September 1962 when she again had surgery on her lower back, that the cause of the pain was discovered. A surgical instrument, a rubber dam, had been left in her back in the 1951 operation. The plaintiff had no means of discovering the injury and none of the several doctors she had seen from 1951 to 1962 had been able to discover the source of the pain. 2. Laws of N.M., 1976, Ch. 2. 3. Laws of N.M., 1976, Ch. 2, § 13. 4. N.M. Stat. Ann. § 23-1-8 (1953); see generally Roehl, The Law of Medical Malpractice in New Mexico, 3 N.M. L. Rev. 294 (1973). 5. N.M. Stat. Ann. § 23-1-1 (1953) provides: The following suits or actions may be brought within the time hereinafter

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