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Brenneman v. Board of Regents of the University of New Mexico11/17/2003
This case presents the question of whether loss of consortium damages are recoverable under Sections 41-4-9 and -10 of New Mexico's Tort Claims Act. See NMSA 1978, §§ 41-4-1 to -27 (1976, as amended through 2003) (hereinafter "the Act"). We hold that loss of consortium damages are permissible under the Act's provisions for damages resulting from bodily injury. We therefore reverse the trial court's dismissal of the loss of consortium claims.
FACTS AND PROCEEDINGS
According to the complaint filed in this case, Maria Brenneman visited the University of New Mexico Health Sciences Center (UNMHSC) Faculty Clinic on December 20, 2000, for treatment of a yeast infection and perineal rash. Ms. Brenneman's urinalysis, ordered on that day, revealed the presence of Strotococcus pygenes, a Group A Strep infection. However, UNMHSC did not inform Ms. Brenneman of the presence of that virus, and she did not receive treatment for it. The condition worsened, and a week later Ms. Brenneman was admitted to the hospital for septic shock and renal failure. Eventually the condition required the amputation of her right leg above the knee.
On May 29, 2002, Ms. Brenneman and her husband, Mark Brenneman, (Plaintiffs) filed a complaint against the Board of Regents of the University of New Mexico as the Trustees of UNMHSC (Defendant), alleging negligence in the treatment of Ms. Brenneman. Plaintiffs sought damages for personal injury and loss of spousal consortium, as well as loss of consortium on behalf of their two minor children. Defendant's answer stated that any claim against Defendant is subject to the Tort Claims Act and that recovery for loss of consortium is barred by the Act. Defendant subsequently filed a motion to dismiss the loss of consortium claims. After a hearing, the district court granted Defendant's motion to dismiss and certified the order for interlocutory appeal. In addition to statutory grounds, Plaintiffs noted discrepancies among district court decisions on the issue when they petitioned this Court for an interlocutory appeal. We granted the petition.
DISCUSSION
The issue presented requires us to interpret the Act. We review issues of statutory construction de novo. Morgan Keegan Mortgage Co. v. Candelaria, 1998-NMCA-008, 5, 124 N.M. 405, 951 P.2d 1066. The plain language of a statute is the primary indicator of legislative intent. High Ridge Hinkle Joint Venture v. City of Albuquerque, 1998-NMSC-050, 5, 126 N.M. 413, 970 P.2d 599. Because we undertake this analysis in the context of Defendant's motion to dismiss, we assume the truth of the facts alleged in the complaint. Gutierrez v. W. Las Vegas Sch. Dist., 2002-NMCA-068, 7, 132 N.M. 372, 48 P.3d 761.
The Legislature enacted the Act in response to the New Mexico Supreme Court's decision to abolish state sovereign immunity in Hicks v. State, 88 N.M. 588, 592, 544 P.2d 1153, 1157 (1975). The Act re-established sovereign immunity, but created eight exceptions, or circumstances under which the state would waive its sovereign immunity and allow suit. The Legislature declared it "to be the public policy of New Mexico that governmental entities and public employees shall only be liable within the limitations of the Tort Claims Act . . . and in accordance with the principles established in that act." Section 41-4-2(A).
The Act waives sovereign immunity for "liability for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation of any hospital" and "while acting within the scope of their duties of providing health care services." Sectio
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