The Court of Appeals of the State of New Mexico (“New Mexico Appellate Court”) stated in its Opinion filed on April 18, 2022 in a New Mexico medical malpractice case involving a brachial plexus injury suffered by a baby at birth: “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 37-1-9 10.”
The New Mexico Appellate Court held: “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 41-5-12 13 and 37-1-10, and because our reasoning applies equally to both, we do not separately analyze each statute.”
The New Mexico Appellate Court explained: “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 … 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.”
“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—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.””
The New Mexico Appellate Court held: “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 14 41-5-13 and 37-1-10.”
Source Garrity v. Driskill, M.D., No. A-1-CA-38569.
If you or your baby suffered a birth injury (or worse) during labor and/or delivery in New Mexico or in another U.S. state, you should promptly find a New Mexico birth injury lawyer, or a birth injury lawyer in your state, who may investigate your birth injury claim for you and represent you and your child in a birth injury medical malpractice case, if appropriate.
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