Garrity v. Driskill

• Citation: 517 P.3d 928
• Decision Date: 18 April 2022
• Docket Number: A-1-CA-38569
• Parties: Diane GARRITY, as Court-Appointed Guardian Ad Litem for Abraham Rider, a minor, Plaintiff, and Christopher Rider and Yolanda Rider, Husband and Wife, individually, Plaintiffs-Appellants, v. Christopher DRISKILL, M.D. and Lea Regional Hospital, LLC d/b/a Lea Regional Medical Center, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

517 P.3d 928

Diane GARRITY, as Court-Appointed Guardian Ad Litem for Abraham Rider, a minor, Plaintiff,
and
Christopher Rider and Yolanda Rider, Husband and Wife, individually, Plaintiffs-Appellants,
v.
Christopher DRISKILL, M.D. and Lea Regional Hospital, LLC d/b/a Lea Regional Medical Center, Defendants-Appellees.

No. A-1-CA-38569

Court of Appeals of New Mexico.

Filing Date: April 18, 2022
Certiorari Denied, August 8, 2022, No. S-1-SC-39438

The Hemphill Firm, P.C., Linda G. Hemphill, Leigh Messerer, Emma D. B. Weber, Santa Fe, NM, Rothstein Donatelli LLP, Alicia C. Lopez, Albuquerque, NM, for Appellants

Atwood, Malone, Turner & Sabin, Lee M. Rogers Jr., Carla Neusch Williams, Quincy J. Perales, Roswell, NM, Lorenz Law, Alice T. Lorenz, Albuquerque, NM, for Appellee Christopher Driskill, M.D.

Serpe, Jones, Andrews, Callender & Bell, PLLC, Randall Jones, Kelsey A. Leiper, Houston, TX, for Appellee Lea Regional Hospital, LLC d/b/a/ Regional Medical Center

BOGARDUS, Judge.

{1} Christopher and Yolanda Rider (Parents) appeal the district court's order dismissing as time-barred their claim for loss of consortium arising from injuries sustained by their minor child (Child) due to alleged medical malpractice. We conclude that because Parents' claim was filed within the time period prescribed for filing Child's medical malpractice claim, Parents' claim was timely. Accordingly, we reverse.

517 P.3d 930

BACKGROUND

{2} The background to our analysis is comprised of the well-pled facts in the complaint, which we accept as truthful for purposes of reviewing the district court's ruling on Defendants' motion to dismiss. Thompson v. City of Albuquerque , 2017-NMSC-021, ¶ 2, 397 P.3d 1279. On September 6, 2013, Child sustained injuries during the course of his birth and delivery at Lea Regional Medical Center (LRMC). As a result of allegedly negligent medical care provided by Child's doctor, Christopher Driskill, Child suffered a brachial plexus injury to his shoulder causing scapular winging, weakness, and difficulty with arm positioning as well as additional injury resulting in developmental delays, including learning disabilities and speech defects.

{3} Approximately five years later, on October 29, 2018, Child's guardian ad litem and Parents (collectively, Plaintiffs) filed a complaint, asserting various claims. Child's guardian ad litem brought several claims, including claims for negligent medical care against Dr. Driskill, his employer, Premier OBGYN, LLC (Premier),¹ and LRMC (collectively, Defendants). Parents' sole claim in the complaint was for loss of consortium against all Defendants.

{4} The district court granted Defendants' Rule 1-012(B)(6) NMRA motion to dismiss Parents' loss of consortium claim, concluding Parents brought their claim outside the three-year limitations period under both the Medical Malpractice Act's (MMA) statute of repose, NMSA 1978, § 41-5-13 (1976, amended 2021),² and the general statute of limitations for personal injuries, NMSA 1978, § 37-1-8 (1976). Parents appeal.

DISCUSSION

I. Standard of Review

{5} We review the dismissal of Parents' claim for loss of consortium damages under Rule 1-012(B)(6) de novo. See Fitzjerrell v. City of Gallup ex rel. Gallup Police Dep't , 2003-NMCA-125, ¶ 8, 134 N.M. 492, 79 P.3d 836 (noting whether a motion to dismiss under Rule 1-012(B)(6) was properly granted is a question of law). To address Parents' loss of consortium claim, we must construe Section 37-1-8, NMSA 1978, Section 37-1-10 (1975), and Section 41-5-13 as they apply to the facts of this case. We review such matters de novo. See Bd. of Comm'rs of Rio Arriba Cnty. v. Greacen , 2000-NMSC-016, ¶ 4, 129 N.M. 177, 3 P.3d 672 ("This is primarily a matter of statutory construction and thereby concerns a pure question of law, subject to de novo review."); Ponder v. State Farm Mut. Auto. Ins. Co. , 2000-NMSC-033, ¶ 7, 129 N.M. 698, 12 P.3d 960 ("We review de novo the [district] court's application of the law to the facts in arriving at its legal conclusions.").

II. Statutes at Issue

{6} Because Parents brought their loss of consortium claim against both qualified and nonqualified health care providers, two separate statutes are at issue on appeal: the MMA's statute of repose, Section 41-5-13, and the general statute of limitations for personal injuries, Sections 37-1-8 and 37-1-10. Defendant Driskill is a qualified health care provider pursuant to Section 41-5-5(C) of the MMA and is therefore entitled to the MMA's benefits. See id. (defining the qualifications needed for health care providers to qualify under the MMA and explaining that health care providers that do not meet the qualifications under that "section shall not have the benefit of any of the provisions of the [MMA] in the event of ... malpractice claim[s] against [them]"). As a result, Section 41-5-13 is controlling as to whether Parents' loss of consortium claim against Defendant Driskill was timely filed. See Moncor Tr. Co. ex rel. Flynn v. Feil , 1987-NMCA-015, ¶ 6, 105 N.M. 444, 733 P.2d 1327 ("Under the [MMA] ... Section 41-5-13 is controlling as to

517 P.3d 931

whether an action grounded upon a claim of medical malpractice has been timely filed."). Section 41-5-13 provides, in relevant part:

No claim for malpractice arising out of an act of malpractice ... may be brought against a health care provider unless filed within three years after the date that the act of malpractice occurred except that a minor under the full age of six years shall have until his ninth birthday in which to file .

(Emphases added.)

{7} As for Parents' claim against Defendant LRMC, which is not a health care provider as defined in the MMA, the parties agree that Sections 37-1-8 and -10 control whether Parents' loss of consortium claim was timely filed. Section 37-1-8 provides in relevant part that "[a]ctions must be brought ... for an injury to the person ... within three years," but Section 37-1-10 provides an exception allowing a minor one year from his or her eighteenth birthday within which to sue. See Gomez v. Chavarria , 2009-NMCA-035, ¶ 7, 146 N.M. 46, 206 P.3d 157. We refer to the exceptions for minors provided by Sections 41-5-13 and 37-1-10 as "minority tolling provisions." See Maestas v. Zager , 2005-NMCA-013, ¶ 22, 136 N.M. 764, 105 P.3d 317 (referring to the Tort Claims Act's minority tolling provision), rev'd on other grounds , 2007-NMSC-003, ¶ 1, 141 N.M. 154, 152 P.3d 141.

{8} It is undisputed that Parents brought their loss of consortium claim outside the general three-year limitations period provided by Sections 41-5-13 and 37-1-8, but during Child's minority as defined in both minority tolling provisions at issue. Thus, the sole issue on appeal is whether a parent's claim for loss of consortium in a medical malpractice case is tolled alongside the minor's claim from which it is derived, pursuant to the minority tolling provisions of Sections 41-5-13 and 37-1-10.

III. The Parties' Arguments

{9} Defendants argue that a parent's claim for loss of consortium should not be so tolled. They contend the plain language of the minority tolling provisions at issue provides no exception to the general three-year limitations period for a parent's loss of consortium claim. Defendants urge us to apply the principle of strictly construing exceptions to limitations periods and follow our precedent applying this principle. Defendants also argue that, because loss of consortium claims are independent actions, they can be brought separately from the underlying injury claim.

{10} Parents argue the minority tolling provisions' silence as to their applicability to loss of consortium claims makes the statutes ambiguous since loss of consortium claims did not exist when the tolling provisions were enacted. Likewise, Parents contend the cases upon which Defendants rely to...