OPINION
Antоnio and Cipriana Chavez (plaintiffs) brought suit under the Tort Claims Act, NMSA 1978, Sections 41-4-1 to -27 (Repl. Pamp.1982 and Cum.Supp.1985) against the Regents of the University of New Mexico (defendants), as trustees of the University of New Mexico Hospital, alleging medical malpractice and the wrongful death of their seventeen year old daughter. After nearly two years of pre-trial discovery and motions оn the merits, defendants filed a motion to dismiss or, in the alternative, for summary judgment based on plaintiffs’ failure to obtain, within the time limitation period, court appointment of a personal representative to sue. The trial court denied defendants’ motion, but certified the issue for interlocutory appeal. The Court of Appeals, in a memorandum opinion, reversеd the trial court and remanded the case for entry of an order dismissing plaintiffs’ action. We granted plaintiffs’ petition for writ of certiorari. We reverse the Court of Appeals and affirm the trial court.
The sole issue presented for review is whether this action for malpractice and wrongful death brought under the Tort Claims Act by the natural parents of the deceased girl within the limitation period is barred, because the parents failed to secure court appointment as personal representatives within the two-year limitation period of NMSA 1978, Section 41-4-15 (Repl.Pamp.1982). We hold that the cause of action is not barred, due to the operation of NMSA 1978, Civ.P. Rules 15(c) and 17(a) (Repl.Pamp.1980).
Plaintiffs’ daughter died on November 19, 1980, in the University of New Mexico Hospital. On September 14, 1982, plaintiffs filed their complaint for malpractice, alleging capacity as “the parents and surviving heirs and representatives of Sandra Diane Chavez, an unmarried minor.” They sought damages for the loss of their daughter’s society, comfort, support, counsel and services and for medical and funeral expenses, plus attоrney fees. Defendants answered the complaint on September 29, 1982, raising no affirmative defense of lack of capacity to sue. Plaintiff Cipriana Chavez was appointed personal representative on June 8, 1983. It was not until November 28, 1984, more than two years after the complaint had been filed, that defendants first raised the issue of plaintiffs’ capacity to sue. In the interim, over one hundred documents had been filed with the court, depositions taken, interrogatories propounded and answered, and numerous motions filed.
The Court of Appeals determined that this case was controlled by Mackey v. Burke,
Similarly, in the instant case, the Court of Aрpeals concluded that a wrongful death suit filed under the Tort Claims Act, NMSA 1978, Sections 41-4-1 to -27 (Repl.Pamp.1982 and Cum.Supp.1985) must be brought by a court-appointed personal representative within the limitation period or else be subject to dismissal. We disagree, and to the extent that Mackey may be construed to conflict with this opinion, it is hereby overruled.
The Tort Claims Act provides “the exclusive remedy against a governmental entity or public employee * * *.” § 41-4-17 (emphasis added). Governmental entities and public employees are liable only within the limitations of the Tort Claims Act and in accordance with its principles. § 41-4-2. The Tort Claims Act waives immunity for liability for wrongful death negligently caused by public employees of medical facilities, § 41-4-9, or thosе licensed by the State to provide health care services, § 41-4-10. It is undisputed that the statute of limitations of the Tort Claims Act governs such wrongful death actions. See Regents of the University of New Mexico v. Armijo,
At common law there was no right оf action for wrongful death. Ickes v. Brim-hall,
It is merely “inсidental” that a “personal representative” is named to bring a wrongful death action. Henkel v. Hood,
“Personal representative” is not defined by either the Tort Claims Act or the Wrongful Death act. A statutory definition of the term may be found, however, in the Probate Code in NMSA 1978, Section 45-1-201(29) (Cum.Supp.1985) which provides “ ‘personal representative’ includes an executor, administrator, sucсessor personal representative, special administrator and persons who perform substantially the same function under the law governing their status.”
Although a wrongful death action in New Mexico must be prosecuted by a personal representative, Varney v. Taylor,
The important thing is that the action shall not fail because of the absence of a party capable of suing____
If and when we can say that such administrator as we have here answers the purpose of the statute, in that he is, in some sense, a personal representative of the deceased, he meets the requirement.
The Court of Appeals in Mackey relied upon Henkel for the proposition that “ ‘personal representative’ for the purpose of a wrongful death action, is not synonymous with the рarameters of the Probate Code.”
Rule 15(c) provides:
(c) Relation back of amendments. Whenever the claim or defense asserted in the amended pleading arose out of the сonduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action аgainst him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
Rule 17(a) provides:
(a) Real party in interest. Every action shall be prosecuted in thе name of the real party in interest; but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought; and when a statute of the state so provides, an actiоn for the use or benefit of another shall be brought in the name of the state. Where it appears that an action, by reason of honest mistake, is not prosecuted in the name of the real party in interest, the court may allow a reasonable time for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
New Mexico follows the principle that in the interests of justice and to promote the adjudication of a case upon its merits, amendments should be freely granted and allowed to relate back tо the date a complaint was originally filed so as to avoid the bar of the statute of limitations whenever the requirements of Rule 15(c) are met. Galion v. Conmaco International, Inc.,
In Mackey the Court of Appeals did not allow an amendment to relate back, because it considered the original suit filed within the statutory period a nullity. We do not agree that such a claim is a nullity ab initio requiring dismissal and the institution of a new suit after the plaintiff qualifies as a personal representative. The nature of the claim in an amended complaint would remain unchanged from that asserted in the original complaint and would arise out of “the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading.” Civ.P.R. 15(c). Unlike DeVargas v. State ex rel. New Mexico Department of Corrections,
Moreover, under Civ.P.Rule 17(a), when due to an honest mistake, a suit is not prosecuted in the name of the real party in intеrest “the court may allow a reasonable time for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.”
Our Rules of Civil Procedure are patterned аfter the Federal Rules of Civil Procedure. A majority of the federal courts allow a change in a plaintiff’s capacity to sue to relate back to the action’s commencement under Fed.Rules Civ.P. 15(c) and 17(a). See 3 J. Moore, Moore’s Federal Practice § 15.15[4] (2d ed. 1985); 6 C. Wright & A. Miller, Federal Practice & Procedure § 1555 (1971). Wrongful death actions have been specifically included within this principlе. See, e.g., Davis v. Piper Aircraft Corp.,
The reasoning of these cases has been explained as follows:
Thus in cases involving an amendment, made after the applicable limitation period has run, which attempted to change the capacity or identity of the parties, the courts generally examined the facts of the case to ascertain whether the allowаnce of such amendment would be inconsistent with the notice requirements inherent in such limitation. Where plaintiff sought to change the capacity in which the action is brought, or in which defendant is sued, there is no change in the parties before the court, all parties are on notice of the facts out of which the claim arose, and relation back was allowed in both the case of the plaintiff and the defendant.
3 J. Moore, supra § 15.15[4.-1] at 15-157 (emphasis added; footnotes omitted).
Also, a majority of the state courts that have recently considered the issue have reached a similar result. See Annot.,
The purpose served by the statute of limitations — protection against state claims — is in no way сompromised by allowing such a pleading to relate back to the action’s commencement. To hold otherwise would be to return to hyper-technical pleading restrictions inimical to just resolution of disputed claims, restrictions which our present rules of pleading were designed to overcome.
Id. at 230,
In the present case, the original pleading alleged a valid cause of action and certainly gave defendants notice of the claim within the statutory period. In fact, the case proceeded normally with both sides engaging in extensive discovery. Any claim asserted in an amended pleading would arise out of the same conduct, and occurrence upon which the original complaint was based. Defendants would in no way be prejudiced if the appointment of plaintiff Cipriana Chavez as personal representative is allowed to relate back to the initial filing of the action. We determine, therefore, that in this case relation-back should be permitted. Such relation-back may be accomplished either by permitting an amendment to relate back under Rule 15(c) or by allowing under Rule 17(a) “a reasonable time for ratification of commencement of the action by, or joinder or subdivision of” the personal representative. See Brohan v. Volkswagen Manufacturing Corp.,
The Court of Appeals is reversed, and the trial court’s order denying defendants’ motion to dismiss is affirmed. The cause is remanded to the trial court for proceedings consistent with this opinion.
IT IS SO ORDERED.