Garrity v. Driskill
Background
- In 2013 a newborn (the Child) suffered a brachial plexus and developmental injuries allegedly caused by negligent care at Lea Regional Medical Center.
- On October 29, 2018 the Child’s guardian ad litem sued Defendants (including Dr. Driskill and LRMC) for medical malpractice; Christopher and Yolanda Rider (Parents) joined the suit asserting only a loss-of-consortium claim.
- Defendants moved to dismiss Parents’ claim under Rule 1-012(B)(6), arguing it was filed after the three-year limitations period.
- The district court dismissed the Parents’ loss-of-consortium claim as time-barred under the Medical Malpractice Act (MMA) statute of repose, NMSA 41-5-13, and the general personal-injury statute, NMSA 37-1-8.
- On appeal the central legal question was whether a parent’s loss-of-consortium claim is tolled by the minority tolling provisions that extend a minor’s malpractice filing period (41-5-13 and 37-1-10) when the parent’s claim is brought in the same cause of action as the child’s malpractice claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a parent’s loss-of-consortium claim is tolled by the minor‑tolling provisions (MMA §41‑5‑13 and §37‑1‑10) when filed with the child’s malpractice claim | Riders: tolling applies; statutes ambiguous as to loss-of-consortium and joinder/efficiency favor tolling | Driskill/LRMC: tolling does not extend to parents; exceptions to limitations must be strictly construed | Court: Yes—when parent’s loss‑of‑consortium claim is filed with the child’s malpractice claim, it is tolled alongside the child’s claim; dismissal reversed and remanded |
Key Cases Cited
- Fernandez v. Walgreen Hastings Co., 968 P.2d 774 (N.M. 1998) (adopted requirement that parent/grandparent loss‑of‑consortium be joined with child’s negligence action)
- Thompson v. City of Albuquerque, 397 P.3d 1279 (N.M. 2017) (loss‑of‑consortium is an independent claim and can be pursued separately from underlying tort)
- Korth ex rel. Lukas v. Am. Family Ins. Co., 340 N.W.2d 494 (Wis. 1983) (when parent’s consortium claim is joined with minor’s claim, parent shares benefit of minor tolling to avoid multiple litigation and injustice)
- Ho‑Rath v. Rhode Island Hosp., 115 A.3d 938 (R.I. 2015) (medical‑malpractice parent consortium claim tolled alongside minor’s claim where joinder required)
- Moncor Trust Co. ex rel. Flynn v. Feil, 733 P.2d 1327 (N.M. Ct. App. 1987) (previous holding limiting minority tolling to the minor, discussed and superseded insofar as inconsistent with joinder-era precedent)