(specially concurring in part and dissenting in part).
{57} I concur in the result of the majority Opinion because I believe the district court correctly decided that the Tort Claims Act statute of limitations expired as a matter of law before Plaintiff filed her claim, but I cannot concur in its analytical approach or its holding.
{58} Relying on Roberts, Plaintiff makes the straightforward argument that the two-year statute began to run when she learned of the possibility of chlorine in the dialysis machinery. An equally straightforward response to this argument is that the discovery rule in New Mexico is not applied in this manner. A plaintiff is not allowed to simply tack on to the statutory limit the amount of time she takes to decide for herself what caused her injury. The discovery rule is a more nuaneed instrument. Invoking equitable principles, the discovery rule is meant to relieve undue harshness in the application of statutes of limitation caused by lack of knowledge in the plaintiff that legal damage has or may have occurred. The potential reasons for a plaintiffs lack of knowledge are varied, ranging from latent diseases to professional malpractice events potentially beyond the ken of the lay person to fraudulent concealment of facts by defendants. See Sawtell v. E.I. du Pont de Nemours & Co., 22 F.3d 248, 250 (10th Cir.1994) (detailing the types of cases in which some variant of the discovery rule has been applied).
{59} Except for the fraudulent concealment eases, New Mexico’s approach to accommodating a plaintiffs lack of knowledge does not involve simply adding time as Plaintiff requests. Juarez v. Nelson, 2003-NMCA-011, ¶ 22, 133 N.M. 168, 61 P.3d 877 (holding that in fraudulent concealment cases, plaintiffs should be restored the amount of time lost as a result of the concealment). The inquiry rather involves whether the plaintiff knew, or with reasonable diligence should have known, of the injury and its cause within the time frame of the applicable statute. Roberts, 114 N.M. at 257, 837 P.2d at 451. I believe that inquiry should be resolved as a matter of law against Plaintiff. Plaintiff was necessarily aware upon Ms. Varela’s sudden death on May 17, 1999, that something had gone tragically wrong- — she knew she had suffered an injury. Whether the death was caused by a blameworthy mistake, of course, could not be known with certainty as of that day. Given the obvious injury, however, the statute would normally start running immediately. Plaintiff knew about the potential causative agent nine months before the two-year statute expired. In the parlance of the discovery rule, Plaintiff knew everything she needed to know nine months before the statute expired. Nine months is, as a matter of law, not an unreasonable time for her to decide whether to file her claim. She did not, and the claim should be barred. I believe this is the analysis we followed to find that the plaintiff in Martinez v. Showa Denko, K.K., 1998-NMCA-111, ¶¶ 22-25, 125 N.M. 615, 964 P.2d 176, was time-barred.
{60} My approach to the problem here depends on two premises. First, Plaintiff has not argued that anyone fraudulently concealed any information from her. Thus, the particular equitable concerns underlying cases such as Juarez are not present. Second, the bare fact that Plaintiff did not immediately have all the information she needed to ascribe blame — or to articulate a theory of malpractice as of May 1999 — does not make it inherently unfair or improper to say that the statute started to run as of the date of Ms. Varela’s death. This second premise in turn depends on whether in all cases the Roberts concern over knowledge of an “injury” should be considered separately from knowledge of “its cause.” In cases of obvious injury, I do not think they need be. If any of these premises are not accurate, my conclusion is potentially, if not likely, wrong, and we should reverse so that the district court can determine whether the time lapse here was reasonable.
{61} The majority takes an approach not necessary to resolve the case and not even argued by Defendant. The result is in my view an erroneous and radical reconstruction of the Tort Claims Act statute of limitations.
{62} The majority equates the Tort Claims Act statute to the Medical Malpractice Act statute of limitations. Thus, the Tort Claims Act is now an “occurrence” statute or a statute of repose which runs from a statutorily determined triggering event. Majority Opinion, ¶ 14. The majority achieves this result by drawing parallels between the two statutes and noting that they were passed in the same legislative session. I do not agree that use of the term “occurrence” in the Tort Claims Act is the functional equivalent of the phrase “the date that the act of malpractice occurred” in the Medical Malpractice Act. The policy rationale behind the Malpractice Act phrase — providing more underwriting certainty and predictability in order to better control insurance rates — is simply not present in the Tort Claims Act setting the same way.
{63} The majority makes much of the fact that the Tort Claims Act encompasses many sources of liability other than malpractice to explain the use of the term “occurrence” in the Act. Somehow, that difference is alchemized into evidence of parallelism with the Medical Malpractice Act. I think it actually argues against the majority’s position. If the Legislature wanted to achieve the same aim in the Tort Claims Act — that is, create an occurrence statute — it would more likely and more effectively have used phrases such as “act of negligence” or “misconduct” rather than “occurrence.”
{64} Finally, classifying Section 41-4-15(A) as an “occurrence” rule has consequences which the Opinion does not adequately address. First, under such a rule there is no excuse for any passage of time following the negligent act or act of misconduct, other than fraudulent concealment in some cases. As such, the Opinion should expressly overrule Emery and Long rather than gut them while benignly saying that “judicial tolling was properly at work” in these decisions. Second, what is the effect on cases involving missed diagnoses and latent injuries? If we are going to apply the Tort Claims Act statute as a true occurrence/repose provision, many of these cases will be foreclosed before they are discovered. I simply do not believe the Legislature intended that consequence in this context. My view is bolstered by the Legislature’s failure to overturn Emery and Long by amendment of the Tort Claims Act.