M.D.R. ex rel. M.R. v. State ex rel. Human Services Department

OPINION BLACK, Judge. Plaintiffs filed suit against the State of New Mexico, Department of Human Services (the Department), under the Tort Claims Act. NMSA 1978, §§ 41-4-1 to -27 (Repl.Pamp.1989) (the Act). The district court dismissed the complaint on the basis of governmental immunity. While the complaint alleges deplorable conduct by the Department, the Act does not waive the State’s immunity from tort liability under the circumstances of this case. We affirm. ALLEGATIONS. Plaintiffs, foster parents licensed by the Department, allege that: a Department social worker placed a foster child in their home knowing the child had a history of sexual abuse of other children; the social worker did not inform Plaintiffs of this history; and the foster child sexually abused Plaintiffs’ children repeatedly over a long period of time. INTERPRETATION OF THE ACT AND STANDARD OF REVIEW. It is true that employees of the Department have “a responsibility to oversee and supervise the safety and well-being of children entrusted to [the Department].” Perkins v. Department of Human Servs., 106 N.M. 651, 656, 748 P.2d 24, 29 (Ct.App.1987). But it does not necessarily follow that the Department may be held liable under the Act for a breach of that duty. The Act declares that governmental entities and public employees shall only be liable within the limitations of its provisions. § 41-4-2(A). Governmental entities and public employees, while acting within the scope of their duties, are immune from tort liability except as waived by the Act. § 41-4-4(A); see also Tompkins v. Carlsbad Irrigation Dist., 96 N.M. 368, 630 P.2d 767 (Ct.App.1981). The right to sue and recover is therefore specifically limited to the rights, procedures, limitations, and conditions of the Act. Methola v. County of Eddy, 95 N.M. 329, 334, 622 P.2d 234, 239 (1980). The dismissal of a complaint under SCRA 1986, 1-012(B)(6), is a legal determination. Johnson v. Francke, 105 N.M. 564, 734 P.2d 804 (Ct.App.1987). In reviewing such a dismissal we accept as true facts well pleaded and question only whether the plaintiff can legally prevail under such facts. Gomez v. Board of Educ., 85 N.M. 708, 516 P.2d 679 (1973). Plaintiffs rely on the exceptions to the Act contained in Sections 41-4-9 and 41-4-10. We consider each claim separately. THE DEPARTMENT DID NOT PROVIDE HEALTH CARE SERVICES. Plaintiffs argue, “To provide a foster home for a child is to provide a service to protect the health and general well being of a child.” We cannot agree that the placement of a child in a foster home is the provision of “health care services” under Section 41-4-10, which provides: 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 licensed by the state or permitted by law to provide health care services while acting within the scope of their duties of providing health care services. In determining the meaning of “health care services” we must generally look to the ordinary, everyday meaning of such words. State ex rel. Reynolds v. Aamodt, 111 N.M. 4, 800 P.2d 1061 (1990). Ordinarily the term “health care services” would relate to those services provided by physicians, hospitals, and related health care practitioners. For purposes of the Medical Malpractice Act, NMSA 1978, §§ 41-5-1 to -28 (Repl.Pamp.1989), our legislature has defined the similar term “health care provider” to mean “a person, corporation, organization, facility or institution licensed or certified by this state to provide health care or professional services as a doctor of medicine, hospital, outpatient health care facility, doctor of osteopathy, chiropractor, podiatrist, nurse anesthetist or physician’s assistant.” § 41-5-3(A). We specifically considered the meaning of “health care services” under the Act in Begay v. State, 104 N.M. 483, 723 P.2d 252 (Ct.App.1985), rev’d on other grounds, 104 N.M. 375, 721 P.2d 1306, cert. denied, 479 U.S. 1020, 107 S.Ct. 677, 93 L.Ed.2d 727 (1986). In that case, relatives of the deceased brought suit against the New Mexico medical investigator for alleged negligence in performing an autopsy on the body. As in the instant case, the district court granted the defendants’ motion to dismiss. This court affirmed, finding the medical investigator’s performance of an autopsy was not a “health care service”: Section 41-4-10 provides a waiver for damages caused by public employees providing health care services. No cases are cited to support the argument that the action complained of falls within this waiver, but logic would support the proposition that the decision to perform an autopsy does not involve health care. No health care services were provided to Mr. Nelson nor to any of his family members. To allow plaintiffs to sue under any of these exceptions would be to read into the Act language which is not there. The right to sue state defendants is limited to those rights and conditions expressly presented in the Act. 104 N.M. at 487, 723 P.2d at 256. Plaintiffs maintain that our interpretation of health care is too narrow. They argue that, because the Department is charged with providing for the health, safety, and welfare of the children under its care, and the provision of a foster home is one of the ways it fulfills this duty, placement in a foster home constitutes health care. In an analogous context, the Wyoming Supreme Court rejected the argument now pressed by Plaintiffs. In Troyer v. State, Department of Health & Social Services, 722 P.2d 158 (Wyo.1986), the Wyoming Division of Vocational Rehabilitation (the Division) agreed to help Troyer, who suffered from multiple sclerosis, select, install, and finance an elevator to his workshop. Because the initial bids exceeded the Division’s budget, Troyer, at the Division’s request, obtained a third bid, which was accepted. Id. at 159. The low bidder selected a winch displaying a warning which specifically cautioned that it was not to be used “for moving humans.” This warning was cut off and the winch was used to construct the elevator. Id. While Troyer was sitting in his wheelchair in the elevator, the winch failed and the elevator fell. Troyer sued for the injuries he suffered, alleging a waiver of governmental immunity under the Wyoming tort claims statute for the “ ‘negligence of health care providers who are employees of the governmental entity while acting within the scope of their duties.’ ” Id. at 160 (quoting Wyo.Stat. Ann. § 1-39-110 (Cum.Supp.1985)). The district court granted the Division’s motion to dismiss the complaint. The Wyoming Supreme Court affirmed, specifically rejecting Troyer’s argument that because “the elevator combatted his feelings of uselessness and thereby became a crucial part of his health care program,” the Division employees who helped select, install, and finance the elevator became “health care providers.” Id. at 161. Rather, that court found that the Wyoming legislature, in partially waiving that state’s sovereign immunity, clearly intended to limit “health care providers” to those “who cure[] or prevente] impairments of the normal state of the body.” Id. We find the Wyoming court’s logic persuasive. THE DEPARTMENT DID NOT OPERATE A HOSPITAL, INFIRMARY, MENTAL INSTITUTION, CLINIC, DISPENSARY, MEDICAL CARE HOME, OR LIKE FACILITY. Plaintiffs also argue that the placement of children in foster homes is the operation of a “like facility” under Section 41-4-9, which reads: 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. Initially, we note that the Department did not “operate” the foster home which, in fact, belongs to Plaintiffs. See Armijo v. Department of Health & Env’t, 108 N.M. 616, 775 P.2d 1333 (Ct.App.1989) (department did not operate but only licensed transitional living unit); cf. Chee Owens v. Leavitts Freight Serv., Inc., 106 N.M. 512, 745 P.2d 1165 (Ct.App.1987) (design, planning, and enforcement of bus safety rules were not “operation” of motor vehicle under Section 41-4-5). Secondly, even if the Department “operated” the foster home (i.e., Plaintiffs’ home), we do not think a foster home is “like” a hospital, infirmary, mental institution, clinic, dispensary, or medical care home. While this might seem obvious from the normal use of these phrases, we are further persuaded by the fact that the Arizona Court of Appeals rejected a similar contention in Sahf v. Lake Havasu City Ass’n for the Retarded & Handicapped, 150 Ariz. 50, 721 P.2d 1177 (Ct.App.1986). In Sahf the plaintiff sued for personal injuries sustained by her son as a result of alleged negligent care at a group home. The Arizona Department of Economic Security contracted with a private organization to provide residential living services to developmentally disabled persons like the plaintiff’s son. Id. 150 Ariz. at 56, 721 P.2d at 1183. The plaintiff argued that the longer statute of limitations under the Arizona Medical Malpractice Act, Ariz.Rev. Stat.Ann. §§ 12-561 to -569 (1982), should apply because the provision of such residential services included general health and welfare functions and thus constituted “health care.” Id. 150 Ariz. at 56-57, 721 P.2d at 1183-84. By providing health care services, the plaintiff argued, the private group home became a “licensed health care institution.” Id. 150 Ariz. at 57, 721 P.2d at 1184. In affirming summary judgment for the state, the Arizona Court of Appeals rejected this logic, saying: [The Arizona Department of Health Services] apparently recognizes that while some definitions of “health related services” are broad enough to encompass services provided for mentally retarded citizens in residential living institutions, the facilities themselves were not to be regarded as “health care institutions” for purposes of licensing requirements sjc * * >}: # # * * * The fact thac occupants of a residence may from time to time become the victim [sic] of illness or accident does not convert that residence into a “health care institution” within either the meaning of the Medical Malpractice Act or the Licensing Act. Id. 150 Ariz. at 58, 721 P.2d at 1185. CONCLUSION. Plaintiffs appear to recognize the difficulties the statutory language poses for their arguments on appeal. They rely on the supreme court’s decision in Miller v. New Mexico Department of Transportation, 106 N.M. 253, 741 P.2d 1374 (1987), and ask this court to read the relevant statutes in a manner “that facilitates their operation and the achievement of their goals.” Id. at 255, 741 P.2d at 1376. We have tried to do so. In the end, however, we have to find the legislature’s goals in the words the legislature chose or in the natural inferences from those words. The waivers of immunity in Sections 41-4-9 and 41-4-10 do not allow suit based on allegations that a known child abuser was placed in a foster home by the Department. Plaintiffs maintain that finding the Department immune from suit would effectively deny these children any remedy. Their argument is forceful. However, it is not the function of the court of appeals to legislate. State ex rel. Rodriguez v. American Legion Post Post No. 99, 106 N.M. 784, 750 P.2d 1110 (Ct.App.1987), cert. denied, 107 N.M. 16, 751 P.2d 700 (1988). Correction of whatever inequity exists in such a situation is best left to the legislature. Varos v. Union Oil Co., 101 N.M. 713, 688 P.2d 31 (Ct.App.1984). We affirm. IT IS SO ORDERED. HARTZ, J., concurs. MINZNER, J., specially concurs.