Garrity v. Driskill

The slip opinion is the first version of an opinion released by the Chief Clerk of the
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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: April 18, 2022

No. A-1-CA-38569

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.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Francis J. Mathew, District Judge

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

OPINION

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.

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

2
(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

1
Premier is no longer a party to this appeal. Upon stipulation of the parties and
upon agreement that Premier be dismissed as a party in the district court, this Court
dismissed Premier from this appeal.
2
The Legislature approved multiple amendments to the MMA in the 2021
legislative session, which took effect January 1, 2022. See NMSA 1978, §§ 41-5-1
to -29 (1976, as amended through 2021). All citations in this opinion to the MMA
or any of its provisions refer to the MMA as it existed before 2022.

3
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 whether an action grounded upon

4
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,

5
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 support a strict construction of the

minority tolling provisions at issue are of limited value because loss of consortium

claims did not exist when those cases were decided. Parents argue that in light of

later-developed loss of consortium precedent, refusing to extend the minority tolling

provisions at issue to a parent’s loss of consortium claim would lead to illogical

6
results and frustrate public policies favoring judicial economy and avoiding

piecemeal litigation.

{11} For the reasons we discuss, we conclude that 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 when such claims are brought in the same cause of action.

Because our conclusion applies to the minority tolling provisions of Sections 41-5-

13 and 37-1-10, and because our reasoning applies equally to both, we do not

separately analyze each statute.

IV. Legislative Intent

{12} “When construing statutes, our guiding principle is to determine and give

effect to legislative intent.” El Paso Elec. Co. v. N.M. Pub. Regul. Comm’n, 2010-

NMSC-048, ¶ 7, 149 N.M. 174, 246 P.3d 443 (internal quotation marks and citation

omitted); accord Jordan v. Allstate Ins. Co., 2010-NMSC-051, ¶ 15, 149 N.M. 162,

245 P.3d 1214 (“This Court’s primary goal when interpreting statutes is to further

legislative intent.”). We “us[e] the plain language of the statute as the primary

indicator of legislative intent.” State v. Willie, 2009-NMSC-037, ¶ 9, 146 N.M. 481,

212 P.3d 369 (alteration, internal quotation marks, and citation omitted). However,

“[i]f the plain meaning of the statute is doubtful, ambiguous, or if an adherence to

the literal use of the words would lead to injustice, absurdity or contradiction, we

7
will construe the statute according to its obvious spirit or reason.” Id. (alteration,

internal quotation marks, and citation omitted).

{13} We start with the plain language. As discussed, Defendants contend the plain

language of Sections 37-1-8, -10 and 41-5-13 provides no exception to the three-

year limitation for a parent’s loss of consortium claim so that the language of these

statutes is unambiguous. In contrast, Parents argue both that the statutory text is

ambiguous and that absurd and unjust results would ensue from Defendant’s plain

meaning interpretation.

{14} If we were to examine the text of Sections 37-1-8, -10, and 41-5-13 in

isolation, Defendants’ strict construction argument might be persuasive. We,

however, do not believe it is appropriate to take such a view of the statutory text

given the circumstances in this case. Our Legislature last amended Section 37-1-10

in 1975 and Section 37-1-8 in 1976, and enacted Section 41-5-13 in 1976. Loss of

consortium claims, however, were not recognized until 1994. See Romero v. Byers,

1994-NMSC-031, ¶¶ 13, 24, 117 N.M. 422, 872 P.2d 840 (recognizing a claim for

loss of spousal consortium). It is reasonable to conclude, therefore, that the

Legislature did not intentionally fail to address loss of consortium claims in these

statutes. See Wilschinsky v. Medina, 1989-NMSC-047, ¶ 25, 108 N.M. 511, 775 P.2d

713 (“[A] specific cause of action [later] recognized by [our Supreme Court] did not

exist in 1976. Therefore, the [L]egislature did not intentionally fail to address this

8
issue.”). Moreover, as we later discuss, we agree with Parents that Defendants’

construction would lead to illogical and unjust results that the Legislature did not

intend. See State v. Bennett, 2003-NMCA-147, ¶ 10, 134 N.M. 705, 82 P.3d 72

(departing from the plain meaning to avoid “an absurdity that the [L]egislature could

not have intended” (internal quotation marks and citation omitted)). Accordingly,

we look beyond the plain meaning of the statutory text to discern legislative intent.

See id.; Wilschinsky, 1989-NMSC-047, ¶ 26.

A. Purpose of the MMA

{15} In support of its interpretation of the language of Section 41-5-13 in particular,

Defendant Driskill points out that the Legislature enacted the MMA to limit the

liability of health care providers, and contends that expanding its minority tolling

provision would undermine this purpose. See § 41-5-2 (1976) (repealed 2022). 3

(“The purpose of the [MMA] is to promote the health and welfare of the people of

New Mexico by making available professional liability insurance for health care

providers in New Mexico.”). We are unpersuaded.

{16} The MMA’s purpose was not solely to limit the liability of qualified health

care providers. See § 41-5-2; Montaño v. Frezza, 2017-NMSC-015, ¶ 32, 393 P.3d

700 (noting one purpose of the MMA as promoting the health and welfare of the

3
We are aware of the 2021 amendments to the MMA, including the repeal of
Section 41-5-2, which took effect on January 1, 2022. However, as we previously
noted, we rely on the law in effect prior to the 2021 Legislative session.

9
people of New Mexico by ensuring “that individuals receive adequate compensation

for injuries caused by medical negligence”); Baker v. Hedstrom, 2013-NMSC-043,

¶¶ 17, 19, 309 P.3d 1047 (describing that the MMA created a “balanced scheme” to

encourage health care providers to opt into the MMA by balancing benefits to

providers and patients, and listing the benefits to patients). Moreover, expanding

Section 41-5-13’s minority tolling provision leaves unchanged many of the MMA’s

most significant limitations on the liability of qualified health care providers: the

$200,000 personal liability limit; the $600,000 cap on damages; and the requirement

that plaintiffs submit malpractice claims to the medical review commission for

permission to sue the provider in district court. See id. ¶ 18 (reviewing the MMA’s

benefits to qualified health care providers). Finally, as we discuss below, expanding

Section 41-5-13’s minority tolling provision protects qualified health care providers

from exposure to multiple lawsuits based on the same conduct. Accordingly, we

conclude that tolling a parent’s claim for loss of consortium alongside the minor’s

medical malpractice claim does not undermine the MMA’s benefits for qualified

health care providers, nor is it contrary to the purpose of the MMA.

B. Canons of Strict Construction

{17} Defendants next urge us to apply the principle of strictly construing

exceptions to limitation periods. See Regents of Univ. of N.M. v. Armijo, 1985-

NMSC-057, ¶ 5, 103 N.M. 174, 704 P.2d 428 (“Generally the right of action is

10
favored over the right of limitation. Exceptions, however, to statutes of limitations

are strictly construed in New Mexico.”). Defendants contend that the Legislature

must be presumed to have been aware of this longstanding principle of strict

construction when it enacted the statutes at issue, and that we should follow our

precedent applying this principle. See Moncor Tr. Co., 1987-NMCA-015, ¶¶ 8, 13,

16 (noting the principle of strictly construing exceptions to statutes of limitations

and concluding that Section 41-5-13’s minority tolling provision “appl[ied] only to

minors who suffer an alleged act of malpractice and not to minors who are

beneficiaries under the Wrongful Death Act” in part because “minority disability

saving a person from the operation of the statute of limitations is a personal privilege

limited to the minor under the disability only and cannot confer rights on other

persons asserting actions”); accord Armijo v. Regents of Univ. of N.M., 1984-

NMCA-118, ¶¶ 1-2, 15, 103 N.M. 183, 704 P.2d 437 (concluding that a parent’s

individual claims for pain and suffering and loss of companionship could not be

“tacked on to the claims of the infant, thereby avoiding the operation of the two-year

limitation period [under the Tort Claims Act]” because “[a] disability, such as

minority, which saves one from the operation of a limitation statute is a personal

privilege of the person under the disability only”), rev’d in part on other grounds,

1985-NMSC-057, ¶ 1. We acknowledge Moncor Tr. Co., 1987-NMCA-015, and

Armijo, 1984-NMCA-118, suggest that the minority tolling provisions at issue do

11
not inure to the benefit of Parents’ loss of consortium claim. In light of later

precedent regarding loss of consortium claims, however, we conclude these

authorities are not controlling.

{18} As an initial matter, precedent defining loss of consortium claims did not exist

when Moncor Tr. Co. and Armijo were decided because loss of consortium was not

yet recognized as a cause of action. Further, we conclude that strictly construing the

minority tolling provisions at issue, as Moncor Tr. Co. and Armijo suggest, would

be inconsistent with this later-developed precedent regarding loss of consortium.4

Specifically, as we explain, refusing to extend the minority tolling provisions at issue

to a parent’s loss of consortium claim in a medical malpractice case would lead to

multiple lawsuits and the possibility for inconsistent decisions, contrary to our

precedent requiring joinder of a parent’s loss of consortium claim with the child’s

negligence action and at odds with the policies underlying this joinder requirement.5

C. Subsequent Development of Loss of Consortium Law

4
Insofar as Defendant Driskill argues that the Legislature’s inaction in the face
of this later development in loss of consortium law is evidence of legislative intent
to adopt its reading of the MMA’s minority tolling provision, we are unpersuaded.
See Garcia v. Schneider, Inc., 1986-NMCA-127, ¶ 11, 105 N.M. 234, 731 P.2d 377
(“While a number of decisions have held that legislative inaction following a judicial
interpretation of a statute affords some evidence that the [L]egislature intends to
adopt the interpretation, legislative inaction has been called a weak reed upon which
to lean and a poor beacon to follow in construing a statute.” (alteration, internal
quotation marks, and citation omitted)).
5
To the extent language in Moncor Tr. Co., 1987-NMCA-015, and Armijo,
1984-NMCA-118, conflicts with our decision, those cases are no longer good law.

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{19} In Fernandez v. Walgreen Hastings Co., our Supreme Court followed other

jurisdictions in “requiring joinder of a parent’s or grandparent’s loss of consortium

claim with the child’s negligence action.” 1998-NMSC-039, ¶ 28, 126 N.M. 263,

968 P.2d 774 (emphasis added). The policy underlying the adoption of this joinder

requirement was to prevent increased litigation and multiple claims that would

otherwise result from filing a parent’s or grandparent’s loss of consortium claim

separately from the child’s underlying negligence action. See id. (“[The d]efendant’s

argument that recognition of a grandparents’ claim for loss of consortium would lead

to increased litigation and multiple claims is . . . easily solved by requiring joinder

of [these claims].”).

{20} In support of its decision to follow other jurisdictions in adopting this joinder

requirement, the Fernandez court cited the Wisconsin Supreme Court’s decision

Shockley v. Prier, which likewise required “that the parent’s [loss of consortium

claim be] combined with that of the child for the child’s personal injuries.” 225

N.W.2d 495, 501 (Wis. 1975). Relying on Shockley’s requirement that a parent’s

loss of consortium claim be combined with the child’s injury claim, the Wisconsin

Supreme Court went on to decide the issue we face today in Korth ex rel. Lukas v.

Am. Fam. Ins. Co., 340 N.W.2d 494 (Wis. 1983). We find the Wisconsin Supreme

Court’s reasoning in Korth to be consistent with our precedent requiring joinder and

therefore persuasive.

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{21} In Korth, an injured minor and her parents filed suit after the three-year statute

of limitations for personal injuries had expired but during the child’s minority. Id. at

495. Construing a substantially similar limitations provision, the Wisconsin

Supreme Court concluded that since the parents’ claim for loss of society and

companionship and medical expenses was filed along with the minor’s claims, the

parents’ claim was also entitled to the benefit of the statute tolling the period for

filing the minor’s claims. See id. In so concluding, the court relied on its precedent

from Shockley requiring the parent’s cause of action for loss of society and

companionship to be brought in the same action as that of the minor’s claim for

personal injuries. See id. at 496-97. The court highlighted the policies underlying

Shockley’s joinder requirement: protecting defendants from multiple litigation and

inconsistent judgments, and protecting the public’s interest in the prompt, complete

and efficient settlement of controversies in one proceeding. Id. at 496. The court

reasoned that applying the minor tolling provision to loss of consortium claims

would encourage these policies underlying the joinder requirement and allow the

minor or the minor’s representative the benefits of a longer limitations period. See

id. at 497.

{22} The Korth court also reasoned that allowing the parents’ claims to be filed

during the period available to the minor applied a “fair and reasonable construction”

to the statutes at issue. Id. While the court noted “statutes creating limitations . . .

14
should not be extended by judicial construction,” id. (alteration omitted), it stated

that were it to hold otherwise, its joinder requirement would mean that parents

bringing a claim for loss of society and companionship would “of necessity” be

forced to initiate the minor’s claim within the general three-year limitations period,

despite the minor tolling provision. Id. Finally, the court noted that granting parents

the benefit of the minor tolling provision would not unduly burden defendants since

they would have had to preserve evidence or maintain their readiness to defend the

minor’s claim. Id.

{23} We likewise find persuasive a more recent case from the Rhode Island

Supreme Court addressing whether that state’s statute of limitations applicable to a

minor’s medical malpractice claim inured to the benefit of a parent’s loss of

consortium claim. See Ho-Rath v. Rhode Island Hosp., 115 A.3d 938, 940, 951 (R.I.

2015). In Ho-Rath, the Rhode Island Supreme Court concluded that “a parent’s claim

for loss of consortium in a medical malpractice case should be tolled alongside the

minor’s claim from which it is derived.” Id. at 950. In so concluding, the court relied

on its precedent establishing that the parents’ loss of consortium claims “must be

joined with the child’s claims if it is feasible to do so.” Id. The court reasoned that

“[t]he sound rationale for this joinder rule is to prevent duplicative litigation,

multiple recoveries, and inconsistent results.” Id.

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{24} We find the reasoning from Wisconsin and Rhode Island supportive of the

conclusion that a parent’s claim for loss of consortium in a medical malpractice case

is tolled alongside the minor’s claim, pursuant to the minority tolling provisions at

issue. This conclusion is consistent with our precedent “requiring joinder of a

parent’s . . . loss of consortium claim with the child’s negligence action,” and the

policies underlying this precedent: protecting individuals from the burden of

litigating multiple lawsuits, promoting judicial economy, and minimizing the

possibility of inconsistent decisions. Fernandez, 1998-NMSC-039, ¶ 28; see id.

(adopting the joinder requirement to prevent “increased litigation and multiple

claims” that would result from filing a parent’s or grandparent’s derivative loss of

consortium claims separately from the child’s negligence action); see also Rule 1-

019(A)(2)(b) NMRA (mandating, if feasible, joinder of a party claiming an interest

relating to the subject of the action when his or her absence would “leave any of the

persons already parties subject to a substantial risk of incurring double, multiple or

otherwise inconsistent obligations”). In our view, this conclusion provides fairness

to the parties—to the defendants by reducing multiple lawsuits and to the plaintiffs

by ensuring that they are not foreclosed from bringing meritorious claims—and,

importantly, promotes the policies of the MMA and the minority tolling provisions.

{25} Were we to conclude otherwise, a parent would need to bring his or her loss

of consortium claim within the applicable three-year limitations period, yet—

16
pursuant to the minority tolling provisions at issue—a minor’s malpractice claim

could go forward separately years later. Such a scenario would increase the

possibility of inconsistent decisions given that “a plaintiff who sues for loss of

consortium damages must prove—as an element of loss of consortium damages—

that the alleged tortfeasor caused the wrongful injury or death of someone who was

in a sufficiently close relationship to the plaintiff.” Thompson, 2017-NMSC-021,

¶ 14.

{26} We acknowledge that Fernandez’s joinder requirement could in theory be

upheld without extending the minority tolling provisions at issue to a parent’s loss

of consortium claim by obligating the minor’s claim to be brought together with the

parent’s claim within the general three year limitations period. But requiring the

minor to bring their claim within the general limitations period would render

superfluous the minority tolling provisions at issue. See Am. Fed’n of State, Cnty. &

Mun. Emps. v. City of Albuquerque, 2013-NMCA-063, ¶ 5, 304 P.3d 443 (“Statutes

must . . . be construed so that no part of the statute is rendered surplusage or

superfluous.” (internal quotation marks and citation omitted)).

{27} Moreover, extending the minority tolling provisions at issue to a parent’s loss

of consortium claim is consistent with New Mexico’s “long tradition of interpreting

laws carefully to safeguard minors.” Rider v. Albuquerque Pub. Schs., 1996-NMCA-

090, ¶ 13, 122 N.M. 237, 923 P.2d 604; see also Gomez, 2009-NMCA-035, ¶ 10

17
(“The intent of the Legislature in enacting Section 37-1-10 was to give minors a

reasonable period of time after reaching majority within which to file an action.”).

Otherwise, a parent might feel compelled by Fernandez’s joinder requirement to

bring the minor’s claim within the general three-year limitations period to preserve

the parent’s derivative loss of consortium claim.6 Accord Korth, 340 N.W.2d 494 at

497 (noting that, in light of its joinder requirement, were it to hold that the minor

tolling provision at issue did not inure to the parents’ benefit, parents claiming loss

of society and companionship would “of necessity” be forced to initiate the minor’s

claim within the general three-year limitations period). Such a scenario would

frustrate rather than facilitate the purposes of minority tolling provisions. See

Regents, 1985-NMSC-057, ¶ 7 (“Minority savings clauses are enacted to allow time

for the full scope of a child’s injury to become apparent, to enable the child to

become competent to testify, or to allow the child to act for himself after the

disability has been removed.”); In re Portal, 2002-NMSC-011, ¶ 5, 132 N.M. 171,

45 P.3d 891 (“Statutes are to be read in a way that facilitates their operation and the

achievement of their goals.” (internal quotations marks and citation omitted)).

6
Defendants point out that the district court has the power to stay loss of
consortium claims in cases in which the claimant knows he or she has a claim but
does not yet know the full extent of his or her damages. See Belser v.
O’Cleireachain, 2005-NMCA-073, ¶ 3, 137 N.M. 623, 114 P.3d 303 (stating that “a
district court has the discretion to grant and lift a stay of proceedings[]” as part of
the court’s “inherent authority . . . to manage the cases before it”). We view this
discretionary power as insufficient in light of Fernandez’s joinder requirement.

18
{28} Defendants disagree about the scope of Fernandez’s joinder requirement,

arguing that a parent’s loss of consortium claim need not be joined with a child’s

medical malpractice claim. Defendants contend Parents’ reliance on Fernandez’s

joinder requirement ignores Thompson, which allows loss of consortium claims to

be brought separately from the underlying injury claim. We do not agree that

Thompson is controlling under the circumstances of this case, or that it conflicts with

the joinder requirement set forth in Fernandez.

{29} In Thompson, a parent was killed, but the parent’s estate did not sue for

wrongful death damages. 2017-NMSC-021, ¶ 1. The plaintiffs, parent’s minor

children, sued for loss of consortium damages under the New Mexico Tort Claims

Act. Id. ¶¶ 1, 5. The relevant issue before our Supreme Court was: “May the minor

children of a parent whom they allege was wrongfully shot and killed by a law

enforcement officer . . . bring their lawsuit [for loss of consortium damages] even if

the parent’s estate did not sue for wrongful death damages?” Id. ¶ 1.

{30} The Court held that the “[p]laintiffs in this case may bring the claim for loss

of consortium damages independent of the underlying battery claim.” Id. ¶ 18. The

Court reasoned that “claims for loss of consortium damages are independent,” and

stated that “[a]lthough claims for loss of consortium damages derive from injury to

another, the claimant has also suffered a direct injury for which he or she may seek

recovery separately from the underlying tort.” Id. ¶¶ 16, 18. “The direct injury

19
alleged by a loss of consortium claimant is one to a relational interest with another

who was physically injured.” Id. ¶ 16. Thus, the Court stated, “A derivative claim

for loss of consortium damages need not be brought along with the underlying tort

claim because loss of consortium claimants suffer a direct injury separate from the

physical injury to another.” Id. ¶ 17.

{31} We do not view Thompson’s holding or reasoning as altering Fernandez’s

joinder requirement or foreclosing its application in the present case. Fernandez’s

joinder requirement is necessarily limited to instances in which a loss of consortium

claim is brought along with the claim for the underlying tort injury. See Fernandez,

1998-NMSC-039, ¶ 28 (citing Ueland v. Reynolds Metals Co., 691 P.2d 190, 193-

94 (Wash. 1984) (en banc)), for the proposition that a “child’s claim for loss of

consortium of parent [must] be joined with [a] parent’s underlying claim whenever

possible.” (emphasis added)). In Thompson, by contrast, the underlying tort action

was never pursued. 2017-NMSC-021, ¶ 1. Thompson’s holding does not address the

scenario contemplated in Fernandez, and at issue here, in which both the loss of

consortium claim and the underlying tort action were brought. And although “a

minor child c[an] pursue a claim for loss of consortium damages separate from an

underlying wrongful death claim,” Id. ¶ 17 (citing State Farm Mut. Auto. Ins. Co. v.

Luebbers, 2005-NMCA-112, ¶ 37, 138 N.M. 289, 119 P.3d 169), neither Fernandez

nor this case presents such a scenario.

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CONCLUSION

{32} In sum, we conclude—based on our construction of the applicable statutes, in

view of our precedent requiring joinder of a parent’s loss of consortium claim with

the child’s negligence action and the policies inherent in that precedent, and our long

tradition of interpreting laws carefully to safeguard minors—that 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.

{33} For the foregoing reasons, we reverse the dismissal of Parents’ loss of

consortium claim and remand to the district court for proceedings consistent with

this opinion.

{34} IT IS SO ORDERED.

____________________________
KRISTINA BOGARDUS, Judge

WE CONCUR:

________________________________
JENNIFER L. ATTREP, Judge

________________________________
JACQUELINE R. MEDINA, Judge

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