(dissenting).
I dissent.
In my opinion, the district court properly granted summary judgment where the issue is the applicability of the three-year statute of limitation for tort. Section 37-1-8, N.M. S.A.1978. In New Mexico, a cause of action for personal injuries for malpractice begins to run, not from the time of the malpractice, see Roybal v. White, 72 N.M. 285, 383 P.2d 250 (1963), but from the time the injury manifests itself in a physically objective manner and is ascertainable. Peralta v. Martinez, 90 N.M. 391, 564 P.2d 194 (Ct.App.1977), cert. denied 90 N.M. 636, 567 P.2d 485 (1977).
The Court in its judgment, found as follows:
Plaintiff, Joseph L. Garcia, knew immediately after the catheter in question fell out in July of 1972 that something was wrong with regard to the treatment and care he was receiving as a hospital patient and that on that event plaintiff consulted attorneys in March of 1973 in order to determine his legal position with regard to these events, such that from and after March, 1973, plaintiff was not relying upon any acts or omissions of his treating physician or of any agent or nurse employed by the hospital, and plaintiff, and therefore, the plaintiff’s action filed July 13, 1976 is barred by the applicable three (3) year statute of limitation.
Clearly, plaintiff’s injury manifested itself in a physically objective manner and was ascertainable from the date the catheter fell out in July 1972. The limitation period should begin to run from that date and no later. See Yoshizaki v. Hilo Hospital, 50 Haw. 1, 427 P.2d 845 (1967).
To hold otherwise requires reliance on the only exception to the rule — that of fraudulent concealment. Pursuant to this exception, the limitation period is tolled where a party against whom a cause of action accrues prevents the one entitled to bring the cause from obtaining knowledge of that fact. Hardin v. Farris, 87 N.M. 143, 530 P.2d 407 (Ct.App.1974). However, the fraudulent concealment exception applies only if a confidential relationship exists between the injured party and the one against whom the cause of action accrues. Such a relationship has been established in many diverse classes of cases, including corporate officer and shareholder or creditor, doctor and patient, dentist and patient, druggist and patient, nurse and patient, trustee and beneficiary, and family members. See Annot. 45 A.L.R.3d 630 (1972) and Annot. 68 A.L.R. 176 (1930). However, I find no case, except under a statutory scheme specifically establishing the relationship, where the confidential relationship is held to exist between a patient and hospital. See Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W.2d 548 (1953); Yoshizaki v. Hilo Hospital, supra, Annot., 89 A.L.R.2d 1180 (1963). To assume such a relationship where there is no evidence that a continuous trust is reposed by one person in the skill and integrity of the other, Else v. Fremont Methodist Church, 247 Iowa 127, 73 N.W.2d 50 (1955), is to place an unjustified burden upon a hospital.
Where mere silence constitutes fraudulent concealment, Hardin v. Farris, supra, there should be a clear showing that a confidential relationship exists which imposes a duty to speak and that the essential facts of the right of action are known to the injuring party and unknown to the injured party. Such is not the case here.
The summary judgment should be affirmed.