2019 New Mexico Statutes
Chapter 41 - Torts
Article 4 - Tort Claims
Section 41-4-9 - Liability; medical facilities.

The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to 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, infirmary, mental institution, clinic, dispensary, medical care home or like facilities.

History: 1953 Comp., § 5-14-9, enacted by Laws 1976, ch. 58, § 9; 1977, ch. 386, § 6.

Emergency clauses. — Laws 1977, ch. 386, §23 contained an emergency clause and was approved April 8, 1977.

Immunity not waived. — Where the decedent was experiencing the effect of withdrawal from heroin when the metropolitan court ordered his release; the decedent was initially released to be transported by van as required by jail policy, but he exited the van; the decedent re-entered the metropolitan jail; the decedent was released to the jail parking lot without signing a waiver of van transportation contrary to jail policy; the decedent wandered off into the desert and died of hypothermia; and the medical director of the jail opined that at the time of his release, the decedent had no medical condition that required treatment, the city was not liable under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] on plaintiff's claim that the jail did not provide the decedent adequate medical care. Lessen v. City of Albuquerque, 2008-NMCA-085, 144 N.M. 314, 187 P.3d 179, cert. denied, 2008-NMCERT-005, 144 N.M. 331, 187 P.3d 677.

Specific waiver of immunity. — A specific waiver of immunity exists pursuant to this section and 41-4-10 NMSA 1978, making a hospital liable for any negligence by its employees who had a duty to employ reasonable care in providing health care services and operating the facility. Brenneman v. Board of Regents of UNM, 2004-NMCA-003, 135 N.M. 68, 84 P.3d 685, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668.

Damages for loss of consortium recoverable. — The plain language of the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978], cases interpreting it, and its legislative history all indicate that loss of consortium damages should be recoverable under this section and 41-4-10 NMSA 1978; persons claiming loss of consortium are foreseeable plaintiffs under traditional tort concepts, and loss of consortium as a type of damage "resulting from bodily injury" fits with the its characterization as a derivative claim. Brenneman v. Board of Regents of UNM, 2004-NMCA-003, 135 N.M. 68, 84 P.3d 685, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668.

"Operation" should not be extended to include funding decisions by a county or the allocation or nonallocation of funds. Gallegos v. Trujillo, 1992-NMCA-090, 114 N.M. 435, 839 P.2d 645, cert. denied, 114 N.M. 314, 838 P.2d 468.

"Like facilities". — A foster home is not "like" a hospital, infirmary, mental institution, clinic, dispensary, or medical care home. M.D.R. v. State ex rel. Human Servs. Dep't, 1992-NMCA-082, 114 N.M. 187, 836 P.2d 106.

The office of Medical Imvestigator at the University of New Mexico is not a "like facility." Ross v. Board of Regents of the Univ. of N.M., 599 F. 3d 1114 (10th Cir. 2010).

Activities of animal control center excluded. — Activities of an animal control center do not fall within this exception to the governmental immunity granted to a city. Redding v. City of Truth or Consequences, 1984-NMCA-132, 102 N.M. 226, 693 P.2d 594.

Operation of facility by department of health. — Health and environment department's (now department of health's) regulation of a community mental health facility did not constitute operation of the facility within the meaning of this section, where the department did not step into the clinical decision-making process of the facility. Armijo v. Department of Health & Env't, 1989-NMCA-043, 108 N.M. 616, 775 P.2d 1333.

Law reviews. — For survey, "Torts: Sovereign and Governmental Immunity in New Mexico," see 6 N.M.L. Rev. 249 (1976).

For article, "Constitutional Torts and the New Mexico Torts Claims Act," see 13 N.M.L. Rev. 1 (1983).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Liability of private, noncharitable hospital or sanitarium for improper care or treatment of patients, 22 A.L.R. 341, 39 A.L.R. 1431, 124 A.L.R. 186.

Immunity from liability for damages in tort of state or governmental unit or agency in operating hospital, 25 A.L.R.2d 203, 18 A.L.R.4th 858.

Hospital's liability for patient's injury or death as result of fall from bed, 9 A.L.R.4th 149.

Liability for wrongful autopsy, 18 A.L.R.4th 858.

Hospital's liability for mentally deranged patient's self-inflicted injuries, 36 A.L.R.4th 117.

Hospital's liability for patient's injury or death resulting from escape or attempted escape, 37 A.L.R.4th 200.

Liability of hospital or sanitarium for negligence of physician or surgeon, 51 A.L.R.4th 235.

Medical malpractice: hospital's liability for injury allegedly caused by failure to have properly qualified staff, 62 A.L.R.4th 692.

Liability for injury or death allegedly caused by activities of hospital "rescue team", 64 A.L.R.4th 1200.

Medical malpractice in performance of legal abortion, 69 A.L.R.4th 875.

Liability of hospital for injury to person invited or permitted to accompany patient during emergency room treatment, 90 A.L.R.4th 478.

Liability of hospital, physician, or other medical personnel for death or injury from use of drugs to stimulate labor, 1 A.L.R.5th 243.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by improper administration of, or failure to administer, anesthesia or tranquilizers, or similar drugs, during labor and delivery, 1 A.L.R.5th 269.

Hospital liability as to diagnosis and care of patients in emergency room, 58 A.L.R.5th 613.

Liability of hospital or medical practitioner under doctrine of strict liability in tort, or breach of warranty, for harm caused by drug, medical instrument, or similar device used in treating patient, 65 A.L.R.5th 357.

Action under 42 USCS § 1983 against mental institution or its staff for injuries to institutionalized person, 118 A.L.R. Fed. 519.

14 C.J.S. Charities § 58; 20 C.J.S. Counties § 166.