{
  "id": 1575585,
  "name": "Helen SUGARMAN, as the Personal Representative of the Estate of Frank Sugarman, Deceased, Appellant, v. The CITY OF LAS CRUCES and Dona Ana County, New Mexico, and Memorial General Hospital, Appellees",
  "name_abbreviation": "Sugarman v. City of Las Cruces",
  "decision_date": "1980-07-01",
  "docket_number": "No. 4356",
  "first_page": "706",
  "last_page": "708",
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    {
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      "cite": "625 P.2d 1223"
    }
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    "id": 8835,
    "name": "Supreme Court of New Mexico"
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    "name_long": "New Mexico",
    "name": "N.M."
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  "casebody": {
    "judges": [
      "WOOD, C. J., and HERNANDEZ, J., concur."
    ],
    "parties": [
      "Helen SUGARMAN, as the Personal Representative of the Estate of Frank Sugarman, Deceased, Appellant, v. The CITY OF LAS CRUCES and Dona Ana County, New Mexico, and Memorial General Hospital, Appellees."
    ],
    "opinions": [
      {
        "text": "OPINION\nWALTERS, Judge.\nPlaintiff appeals a summary judgment granted to defendant hospital following her suit against the city, the county, and the hospital under the Tort Claims Act (\u00a7\u00a7 41-4-1 through 41-4-25, N.M.S.A. 1978). Earlier summary judgment entered in favor of the city and county are not challenged on this appeal.\nThese are the underlying facts:\nAn emergency room doctor at General Hospital misread an electrocardiogram made of plaintiff\u2019s decedent who was brought to the hospital on April 3, 1977. Decedent was advised that the EKG was normal and was discharged with a diagnosis of gastro-intestinal upset. Several hours later decedent was returned to the hospital in \u00e1 state of cardiac arrest. He died ten months later without ever regaining consciousness.\nIn May, 1978 the doctor effected a settlement with decedent\u2019s widow, appellant here, in return for which a joint tortfeasor\u2019s release was executed in his favor. The release contained a reservation of rights against all other tortfeasors. Plaintiff sued the other defendants in October, 1978, alleging liability under the Tort Claims Act.\nThe trial court expressed its reasons for granting the hospital\u2019s motion for summary judgment in a letter opinion to counsel, stating, in effect, that under the Contribution Among Joint Tortfeasors Act the release-given to the doctor impaired the hospital\u2019s right of indemnity against him and, therefore, it operated to release the hospital as well.\nNeither party relies on the effect of the Tortfeasor\u2019s Act. Appellee argues that the settlement bars a subsequent suit against the publicly-owned hospital under \u00a7 41-4-17 B. Appellant contends, alternatively, that the same section excludes this type of settlement as a barrier to a later action, or that the settlement has no effect at all because settlement was not a bar at the time the alleged malpractice occurred.\nWe agree that \u00a7 41-4-17 B controls our decision. That section provides:\nThe settlement or judgment in an action under the Tort Claims Act shall constitute a complete bar to any action by the claimant, by reason of the same occurrence against a governmental entity or the public employee whose negligence gave rise to the claim.\nThe language quoted is that of the 1977 amendment which significantly added \u201csettlement or\u201d to the subsection. The parties\u2019 dispute is whether the 1977 amendment applies. If the amended act does not apply, then the fact of settlement has no bearing on the subsequent suit because prior to April 8, 1977, only a judgment barred further proceedings. If it does apply, we must discuss its effect on plaintiffs suit against the hospital.\nOn April 3, 1977, five days before the amendment to \u00a7 41-4-17 B became effective, the wrong diagnosis resulting from misreading the EKG was made. The injury (death of plaintiff\u2019s deced\u00e9nt) and the release executed by the doctor were occurrences after its effective date. New Mexico has held that simply because a statute draws on antecedent facts for its operation, it is not a retroactive statute. State v. Mears, 79 N.M. 715, 449 P.2d 85 (Ct.App. 1968). We think that the death and the settlement entered into after the statute was amended bring the issue within the amended language of \u00a7 41-4-17 B.\nThat resolution, however, does not dispose of the matter. The statute refers to a \u201csettlement ... in an action under the Tort Claims Act.\u201d It is undisputed that no action was brought against the doctor prior to the settlement having been entered into with him. Both parties have also conceded that the payment made by. the doctor was in settlement of a disputed claim; thus, there was no admission of negligence or liability by the doctor-employee.\nThe Act imposes liability only upon the governmental entity and not upon the public employee. The governmental entity is obliged to \u201cprovide a defense and pay any settlement or judgment\u201d reached in a Tort Claims suit, \u00a7 41-4-4 C, and it has no right to \u201ccontribution, indemnity or subrogation\u201d against its employee\u2019s non-malicious or non-fraudulent acts which gave rise to the suit. Section 41-4-17 A. We have before us only the fact of a settlement, and no indication that it was made by a party liable under the Tort Claims Act or by one who had any authority to settle a claim of liability permitted by the Tort Claims Act.\nUnder the clear language of the statute and the undisputed facts, there has been no \u201csettlement under the Tort Claims Act.\u201d It was not, therefore, a settlement of the type to which the statute is addressed. A suit authorized by the statute and brought against the potentially liable governmental entity is not barred by a settlement with one who has no statutory liability to the claimant, nor by a settlement reached with anyone outside the framework of a Tort Claims Act suit.\nThe summary judgment in favor of the hospital is reversed; the case is remanded for reinstatement upon the trial court\u2019s docket.\nIT IS SO ORDERED.\nWOOD, C. J., and HERNANDEZ, J., concur.",
        "type": "majority",
        "author": "WALTERS, Judge."
      }
    ],
    "attorneys": [
      "Glen B. Neumeyer, William L. Lutz, James T. Martin, Jr., Martin, Martin, Lutz & Cresswell, P. A., Las Cruces, for appellant.",
      "John E. Conway and Wayne A. Jordon, Durrett, Conway & Jordon, P. C., Alamogordo, for appellees."
    ],
    "corrections": "",
    "head_matter": "625 P.2d 1223\nHelen SUGARMAN, as the Personal Representative of the Estate of Frank Sugarman, Deceased, Appellant, v. The CITY OF LAS CRUCES and Dona Ana County, New Mexico, and Memorial General Hospital, Appellees.\nNo. 4356.\nCourt of Appeals of New Mexico.\nJuly 1, 1980.\nGlen B. Neumeyer, William L. Lutz, James T. Martin, Jr., Martin, Martin, Lutz & Cresswell, P. A., Las Cruces, for appellant.\nJohn E. Conway and Wayne A. Jordon, Durrett, Conway & Jordon, P. C., Alamogordo, for appellees."
  },
  "file_name": "0706-01",
  "first_page_order": 738,
  "last_page_order": 740
}