Lovelace Medical Center v. Mendez, 18766

CourtSupreme Court of New Mexico
Citation111 N.M. 336,805 P.2d 603,1991 NMSC 2
Docket NumberNo. 18766,18766
PartiesLOVELACE MEDICAL CENTER, Petitioner, v. Jacob MENDEZ and Maria Mendez, Individually and as parents of Joseph Mendez, Respondents.
Decision Date07 January 1991

Rodney, Dickason, Sloan, Akin & Robb, W. Robert Lasater, Jr., Ellen G. Thorne, Albuquerque, for petitioner.

Stephen G. Durkovich, Albuquerque, for respondents.

Miller, Stratvert, Torgerson & Schlenker, Alice Tomlinson Lorenz, Albuquerque, for Amicus Curiae New Mexico Medical Soc.



We granted certiorari to consider the following two questions of substantial public interest:1 (1) Did the court of appeals have jurisdiction to entertain petitioner's application for interlocutory appeal, even though the application was granted more than twenty days after it was filed? (2) On the merits, may the parents of a normal, healthy baby conceived as a result of a negligently performed, unsuccessful sterilization operation recover the costs of raising the child from birth to adulthood?

The court of appeals held that the answer to both questions is yes and reversed the district court's partial summary judgment in favor of the defendant hospital. We agree with the court of appeals, though on a somewhat different rationale as to the jurisdictional point, and remand the case to the district court for trial.


Joseph Mendez was conceived after his mother, Maria Mendez, underwent a tubal ligation, which allegedly was negligently performed by a physician employee of the defendant, Lovelace Medical Center. The physician found and ligated only one of Maria's two fallopian tubes and then failed Some additional facts bearing on this appeal are recited in the court of appeals' opinion (authored by Judge Alarid, concurred in by Judge Chavez), which, with one deletion, we attach as an appendix to this opinion. As noted in Judge Alarid's opinion, the district court in Mr. and Mrs. Mendez's medical malpractice action against Lovelace granted its motion for partial summary judgment, holding as a matter of law that the costs of raising Joseph to majority were not recoverable. The court certified its order as appropriate for interlocutory appeal, and the court of appeals granted the plaintiffs' application for appeal on the twenty-eighth day after the application was filed. Under the statute relating to interlocutory appeals, NMSA 1978, Section 39-3-4 (Orig.Pamp.), an application not acted upon within twenty days after it is filed "shall be deemed denied."

[111 N.M. 338] to inform her of the unsuccessful outcome of the operation. She thus remained fertile, took no birth-control precautions, and conceived Joseph in due course. He was born as a normal, healthy baby.

In its opinion, the court of appeals first addressed the question whether, in light of the twenty-day limitation in the statute, it had jurisdiction over the appeal. It held that it did, relying chiefly on the rule in Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976), that only this Court has the power to regulate pleading, practice and procedure in the courts. We agree with the court of appeals' ruling that it had jurisdiction, but reach that result through somewhat different reasoning. Accordingly, the court's discussion of jurisdiction in its opinion is omitted from the appendix, and our own analysis follows in Part II of this opinion.

On the merits, we find ourselves in substantial agreement with Judge Alarid's opinion and accordingly reproduce all of Part II of that opinion in the appendix. In addition to Judge Alarid's analysis, we have some comments of our own to contribute to the already voluminous debate2 on the question whether child-rearing expenses are recoverable in an action for "wrongful conception." We shall set out these comments in Part III of this opinion.


In ruling that it had jurisdiction over this interlocutory appeal, the court of appeals took note of the rule adopted by this Court in our Rules of Appellate Procedure relating to interlocutory appeals. SCRA 1986, 12-203 provides that an appeal from an interlocutory order in a civil case, where the order contains the certification contemplated by Section 39-3-4(A), may be initiated by filing an application with the appellate court clerk within ten days after entry of the order in the district court. The rule goes on to prescribe the persons on whom copies of the application shall be served, the content and form of the application, the time within which a response must be filed, and the effect of a grant of the application on further proceedings in the district court. Most of the provisions of Rule 12-203 supplement, and do not duplicate, the provisions of the statute. The statutory provision, "If an application has not been acted upon within twenty days, it shall be deemed denied," is not contained in the rule.

The court of appeals noted this inconsistency--if it can be called that--between the rule and the statute, and held: "Because the Rules of Appellate Procedure govern over inconsistent statutes, and because our rules contain no time limit for acting on an interlocutory appeal application, we hold this court has jurisdiction over the appeal in this case."

As noted previously, the court of appeals relied principally on Ammerman v. Hubbard Broadcasting, Inc. in reaching its result. Ammerman states, among other things:

Under the [New Mexico] Constitution, the legislature lacks the power to prescribe by statute rules of practice and 89 N.M. at 311, 551 P.2d at 1358 (quoting and reaffirming State ex rel. Anaya v. McBride, 88 N.M. 244, 246, 539 P.2d 1006, 1008 (1975)). In recent years, this doctrine has come under sharp attack as representing a departure from coordinate rulemaking power shared by the legislature and the judiciary. See generally Browde & Occhialino, Separation of Powers and the Judicial Rule-Making Power in New Mexico: The Need for Prudential Constraints, 15 N.M.L.Rev. 407 (1985); Maples v. State, 110 N.M. 34, 37, 791 P.2d 788, 791 (1990) (dissenting opinion).

procedure, although it has in the past attempted to do so. Certainly statutes purporting to regulate practice and [111 N.M. 339] procedure in the courts cannot be made binding, for the constitutional power is vested exclusively in this court.

To resolve the jurisdictional issue in this case we need not go as far as the above-quoted statement in Ammerman and McBride. In order to conclude that the twenty-day limitation in Section 39-3-4 divested the court of appeals of jurisdiction, it is necessary to construe that limitation as an attempt by the legislature to define appellate jurisdiction over interlocutory appeals. It is certainly possible to construe the statute in this fashion, but it is not inevitable; and there are good reasons for construing it simply as the legislative adoption of a housekeeping rule to assist the courts with the management of their cases, to have effect unless and until waived by a court in a particular case or modified by a rule of this Court on the same subject.

If the statutory provision were intended by the legislature to have jurisdictional effect, then presumably we would accord it that effect--unless we were to hold it unconstitutional under Ammerman. The appellate jurisdiction of both this Court and the court of appeals is within the legislative power to prescribe. N.M. Const. art. VI, Secs. 2, 29. See also State v. Arnold, 51 N.M. 311, 314, 183 P.2d 845, 846 (1947): "The creating of a right of appeal is a matter of substantive law and outside the province of the court's rule making power." In State v. Arnold, this Court observed that "reasonable regulations affecting the time and manner of taking and perfecting the [appeal] are procedural and within this court's rule making power." 51 N.M. at 314, 183 P.2d at 846-47. However, to characterize the twenty-day limitation in Section 39-3-4 as a regulation affecting the time and manner of taking the appeal does not answer the question of whether or not it is jurisdictional. If it is jurisdictional, then it is within the legislature's constitutional power to prescribe; it if is not jurisdictional, then it did not limit the court of appeals' jurisdiction in this case and it was subject to relaxation by that court and to this Court's delegated power to modify by supervening court rule.

We see no indication that the legislature intended this provision to limit the appellate courts' jurisdiction over interlocutory appeals. For one thing, construing the provision as jurisdictional will defeat many appeals on procedural grounds, and it is this Court's policy to construe both statutes and court rules in favor of deciding an appeal on the merits whenever possible. See Olguin v. State, 90 N.M. 303, 305, 563 P.2d 97, 99 (1977) (policy of construing rules liberally in order to determine causes on their merits); Jaritas Live Stock Co. v. Spriggs, 42 N.M. 14, 16, 74 P.2d 722, 722-23 (1937) (same). For another thing, construing the provision as jurisdictional brings us face to face with an Ammerman constitutional challenge, either on the broad ground quoted above (exclusive power in the courts to regulate procedure) or on the narrower ground--which was also present in Ammerman, 89 N.M. at 312-13, 551 P.2d at 1359-603--that the provision We think that the legislature did not intend the twenty-day requirement in Section 39-3-4 to be a limitation on the appellate courts' jurisdiction, conferred by that section, over interlocutory appeals. We think rather that the legislature intended this requirement to provide the courts with a mechanism for disposing of cases in which interlocutory appeal applications are not acted upon within some defined period of time and for informing the district courts when they are free to resume processing cases they have certified as appropriate for interlocutory appeal.4 The requirement, in other words, was intended to assist the courts with the...

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