N.M. Stat. § 41-4-9 (2026)

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.

                                     ANNOTATIONS

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.

Actual harm must be shown to maintain a loss-of-chance claim. — In a class action
case, initially brought in 2001 and involving pediatric cancer patients treated by
defendant University of New Mexico Hospital (UNMH) from the mid-1970s to the mid-
1990s, the district court did not err in granting UNMH's motion for summary judgment on
plaintiff's individual claims and motions for reconsideration, because a showing of actual
physical harm is required in order to maintain both a loss-of-chance claim and a cause
of action under the Tort Claims Act, and plaintiff was unable to demonstrate he suffered
any actual injury from the medical malpractice he asserted and plaintiff has not shown a
genuine issue of material fact regarding the actual harm he sustained based on UNMH's
treatment. Cummings v. Bd. of Regents of Univ. of N.M., 2026-NMCA-002, cert.
denied.

"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.