The Law of Medical Malpractice in New Mexico: A Survey of Basic Considerations

This article provides an overview of New Mexico medical malpractice law. Lawmakers in the Land of Enchantment have fashioned a distinctive medical malpractice system whose signature features include a state malpractice insurance fund, strict limits on monetary damages, and a mandate to obtain a medical review panel’s opinion before filing suit.

Because it is useful for laypersons who have been injured by healthcare treatment to have some understanding of the law, this article will describe New Mexico law in plain language with minimal use of legal jargon, so that the material is accessible to nonlawyers as well as legal practitioners.

Section I below summarizes broad principles and concepts. Sections II through XI examine some of the mechanics of filing and litigating a medical malpractice lawsuit in New Mexico.

To jump directly to any topic in the Table of Contents, simply click on it.

I. Overview of Basic Principles and Concepts

II. Filing Deadlines for Medical Malpractice Claims

III. Medical Review Panels

IV. Patient Compensation Funds

V. Limitation on Damages

VI. Government-Employed Healthcare Providers

VII. Medical Expert Witnesses

VIII. Comparative Fault / Proportionate Liability

IX. Limitations on Attorney Fees

X. Apologies and Sympathetic Gestures

XI. Communications with Treating Physicians

XII. Disclaimer

 

 

I. Overview of Basic Principles and Concepts

In the late 1970s New Mexico adopted its Medical Malpractice Act (MMA), which was designed to protect healthcare providers from legal claims by limiting the amount of monetary damages that can be recovered against them and requiring claims to be reviewed by a medical panel before a lawsuit may be commenced.

The MMA covers only “qualified” healthcare providers. Becoming qualified is not difficult; it merely requires proof of insurance and payment of an annual surcharge to the New Mexico Patient Compensation Fund. A healthcare provider that chooses not to take these simple steps to become qualified loses entitlement to the significant protections offered by the MMA— including limits or “caps” on monetary damage awards. N.M. Stat. Ann. § 41-5-5. Few New Mexico healthcare providers would forsake the opportunity to obtain these liability protections.

Eligible healthcare providers include doctors of medicine, doctors of osteopathy, chiropractors, podiatrists, nurse anesthetists, and physician’s assistants. Hospitals, outpatient healthcare facilities, professional medical corporations, and others can qualify as well. But, in an odd quirk of the legislation, nurse practitioners and some other types of healthcare providers are not eligible to participate. N.M. Stat. Ann. § 41-5-3(A); Baker v. Hedstrom, 2013-NMSC-043, 309 P.3d 1047; see also New Mexico Patient Compensation Fund’s website.

To establish a claim under the MMA, a plaintiff must present evidence of a “departure from accepted standards of health care which proximately results in injury to the patient.” N.M. Stat. Ann. § 41-5-3(C).

 

II. Filing Deadlines for Medical Malpractice Claims

Basic Time Limit

In New Mexico, the basic time limit for filing a claim alleging medical malpractice (also called medical negligence) is three years. The clock commences running on “the date that the act of malpractice occurred.” N.M. Stat. Ann. § 41-5-13.

The effect of this rule is to “preclude almost all malpractice claims from being brought more than three years after the act of malpractice.” Tomlinson v. George, 2005-NMSC-20, 138 N.M. 34, 116 P.3d 105.

In legal terms, the three-year limit is a “statute of repose” rather than a “statute of limitations.”

Unlike many states, New Mexico has not adopted the so-called “discovery” rule to pause the clock in situations where the negligence is hidden from view or difficult to discover (e.g., a sponge left within a patient’s body during surgery).

However, as discussed below, there are certain narrow exceptions to the three-year time limit.

Fraudulent-Concealment Exception

If a healthcare provider deliberately hid the malpractice, a plaintiff can receive extra time to bring a lawsuit.

To pause the clock based on fraudulent concealment, the plaintiff must show that the healthcare provider knew of the malpractice and concealed it from the patient. Kern v. Saint Joseph Hospital, Inc., 102 N.M. 452, 697 P.2d 135 (1985).

Furthermore, the concealment must have prevented the plaintiff from discovering the malpractice within the statutory three-year period. Tomlinson, supra.

Due-Process Exception

In extremely narrow circumstances, the constitutional right to due process of law will extend the time period for filing suit.

Specifically, a plaintiff can successfully raise a due process argument if he or she discovered the malpractice in year three of the three-year period. As the New Mexico Supreme Court has explained, due process requires that plaintiffs who first become aware of malpractice “in the last 12 months” of the three-year period are entitled to 12 months from that point to commence suit. Cahn v. Berryman, No. S-1-SC-35302, 2017 WL 5562802 (N.M. Nov. 20, 2017).

In other words, this exception is concerned only about fairness to those who discover malpractice in year three.

Although it may seem unfair, the due-process exception does not protect plaintiffs who are completely aware of their healthcare provider’s negligence until four or five or 10 years after it occurred. Id.; Cummings v. X-Ray Assocs. of N.M., P.C., 1996-NMSC-035, 121 N.M. 821, 918 P.2d 1321.

Patients Injured As Minors

By statute, a separate rule applies to minors. A minor who claims to have suffered malpractice while under the age of six “shall have until his ninth birthday” to file a malpractice suit. N.M. Stat. Ann. § 41-5-13.

But the New Mexico Court of Appeals has struck down this statute as unconstitutional, on the basis that it is unreasonable to expect a child to bring a lawsuit at age nine, and therefore children should be allowed even more time to assert their claim. While the court did not specify precisely how much extra time a child should have, it did say that, under the particular facts of that case, a 9 1/2 year-old child should have been permitted to continue with his lawsuit (brought by a guardian) alleging that he received negligent treatment for a seizure disorder as an infant and suffered harm as a result. Jaramillo v. Heaton, 2004-NMCA-123, 136 N.M. 498, 100 P.3d 204.

Relationship to Medical Review Panels

Before filing a malpractice lawsuit, a plaintiff must submit the case to a medical review panel (see Section III below). Because this pre-suit requirement might cause some plaintiffs who wait until the eleventh hour to contact a lawyer to miss the lawsuit-filing deadline, New Mexico pauses the clock while the review panel is conducting its work. The time limit for initiating a lawsuit does not resume ticking until 30 days after the expert panel finishes its work. N.M. Stat. Ann. § 41-5-22.

III. Medical Review Panels

In General

New Mexico’s Medical Malpractice Act requires all malpractice claims against a “qualified” healthcare provider (see definition in Section I above) to be submitted to the New Mexico Medical Review Commission before the filing of a lawsuit in any court. The basic purpose of this requirement is to help weed out unsupported malpractice claims.

Upon receiving a request for a mandatory case evaluation, the Medical Review Commission will appoint a medical review panel to render an opinion as to (1) whether there is “substantial evidence” that the acts complained of occurred and that they constitute malpractice; and (2) whether there is a “reasonable medical probability” that the acts injured the patient. N.M. Stat. Ann. §§ 41-5-15(A), 41-5-20(A).

A medical review panel consists of three specialists from the healthcare provider’s field and three lawyers from the state bar association. Another lawyer is appointed to act as chairperson of the panel. N.M. Stat. Ann. § 41-5-17.

To decide whether a malpractice claim has merit, the panel conducts a hearing, adhering to certain prescribed procedures. Importantly, the medical review panel’s decision does not have the force of a court ruling or administrative ruling and is not binding on any party. In addition, the panel’s report is not admissible as evidence in any lawsuit subsequently brought by the claimant. N.M. Stat. Ann. §§ 41-5-19, 41-5-20.

If the panel concludes that substantial evidence supports the plaintiff’s malpractice claim, the panel, the director of the Medical Review Commission, and the relevant professional healthcare association must assist the claimant in retaining a physician qualified in the field of medicine involved “who will consult with, assist in trial preparation and testify on behalf of the patient.” N.M. Stat. Ann. § 41-5-23.

There is no fee to submit a case for Medical Malpractice Commission review. N.M. Stat. Ann. § 41-5-21. For further information on requesting review, including detailed procedural instructions, see the New Mexico Medical Review Commission’s website.

‘Premature’ Lawsuits

If a plaintiff files a medical malpractice lawsuit without first requesting a medical review panel evaluation of the case, the defendant will argue that the lawsuit is “premature” and must be dismissed. The court likely will agree and grant the motion, because New Mexico law is clear that no malpractice lawsuit may be filed in any court against a qualifying health care provider until a medical review panel offers an opinion about the merits of the case. N.M. Stat. Ann. § 41-5-15(A); Belser v. O’Cleireachain, 2005-NMCA-073, 137 N.M. 623, 114 P.3d 303.

Exceptions

There are narrow exceptions. In particular, if a case involves merely “ordinary negligence,” there is no need to submit it to the New Mexico Medical Review Commission before filing a lawsuit. “Whether a claim involves ordinary negligence or medical malpractice is a fact-dependent inquiry,” the New Mexico Court of Appeals noted in Richter v. Presbyterian Healthcare Services. In that case, a husband argued that a medical laboratory and a hospital were negligent in failing to inform a physician of his wife’s lab test results. The court held that failure to deliver lab test results could be considered ordinary negligence; while occurring in a medical context, the error did not involve “medical malpractice” in the true sense of those words. 2014-NMCA-056, 326 P.3d 50.

IV. Patient Compensation Funds

New Mexico is one of a handful of states that has a Patient Compensation Fund. Created in the late 1970s, the Fund basically operates as an “excess insurer.” Healthcare providers buy their own insurance (or self-insure) for the first $200,000 of exposure per claim, and enroll for the excess coverage in the Fund, which is responsible to pay any judgments in excess of $200,000. N.M. Stat. Ann. §§ 41-5-6, 41-5-25; see generally Baker v. Hedstrom, supra.

One important enticement for healthcare providers to enroll in the Fund is because healthcare providers who do so receive certain liability protections, including caps on monetary damages (see Section I above). Next up is a discussion of these damages caps in more detail.

V. Limitation on Damages

In General

“Damages” refers to money that a plaintiff claims as compensation for a loss. Under New Mexico’s Medical Malpractice Act, there is an upper limit or “cap” on the amount of damages that can be awarded on a malpractice claim. Specifically, the total dollar amount that a plaintiff recovers must not exceed $600,000, not counting medical expenses and punitive damages. N.M. Stat. Ann. §§ 41-5-3, 41-5-6.

In addition, of the monetary damages and medical expenses awarded, the defendant healthcare provider cannot be held personally liable for more than $200,000. (This amount may be covered by a private insurance policy.) Any amount due from a judgment or settlement in excess of $200,000 is paid from the New Mexico Patient Compensation Fund (see Section IV above), subject to the $600,000 cap. N.M. Stat. Ann. §§ 41-5-6, 41-5-25; see generally Baker v. Hedstrom, supra.

The New Mexico Supreme Court has upheld the constitutionality of the $600,000 damage cap. Salopek v. Friedman, 2013-NMCA-087, 308 P.3d 139.

Healthcare providers do not receive the cap’s protection unless they have taken the necessary steps to participate in the New Mexico Patient Compensation Fund, as discussed above in Sections I and IV.

Possible Tribal Land Exception

It is not entirely clear whether the damages cap applies to medical malpractice suits involving healthcare provided on tribal land. Two federal district courts have reached opposite conclusions on this question. In Cheromiah v. United States, the court reasoned that because the alleged negligence at an Indian Health Service hospital occurred within the boundaries of the Acoma Tribe, on tribal land, the law of New Mexico did not apply to this case at all, and therefore the state’s $600,000 damage cap was inapplicable. 55 F. Supp. 2d 1295 (D.N.M. 1999). In so holding, the court disagreed with a ruling five months earlier by another judge on the same New Mexico federal court. Louis v. United States, 54 F. Supp. 2d 1207 (D.N.M. 1999); cf. Haceesa v. United States, 309 F.3d 722 (10th Cir. 2002) (addressing a separate but somewhat related issue regarding whether the United States is entitled to assert the New Mexico damage cap).

Punitive Damages

Punitive damages are awarded to a plaintiff for the purpose of punishing an especially badly behaving defendant. Unlike other types of damages, they can exceed the amount of the plaintiff’s proven loss. The $600,000 malpractice damage cap does not cover punitive damages. N.M. Stat. Ann. § 41-5-6.

Under the Medical Malpractice Act, a healthcare provider cannot avoid paying any punitive damages award. That is, the New Mexico Patient Compensation Fund will not pay it, nor will the healthcare provider’s private insurance unless the policy expressly provides coverage. N.M. Stat. Ann. § 41-5-7(H).

Pleading Damages

Plaintiffs filing suit under the Medical Malpractice Act must not specify any dollar amount or figure in their written complaint but simply request “such damages as are reasonable.” N.M. Stat. Ann. § 41-5-4.

Non-Assignability of Claims

A patient’s claim for compensation under the MMA is not assignable to someone else. N.M. Stat. Ann. § 41-5-12.

VI. Government-Employed Healthcare Providers

In general, the Medical Malpractice Act does not apply to healthcare providers who work for the government. Instead, the state’s Tort Claims Act normally controls medical malpractice claims brought against a government institution or government employee. See N.M. Stat. Ann. § 41-5-3(A); N.M. Stat. Ann. § 41–4–1 to 41–4–30; Regents of University of New Mexico v. Armijo, 1985-NMSC-057, 704 P.2d 428; Hagen v. Faherty, 2003-NMCA-060, 133 N.M. 605, 66 P.3d 974.

VII. Medical Expert Witnesses

Generally speaking, expert testimony is required in medical malpractice cases. If a plaintiff fails to present a competent medical expert witness, the court ordinarily will dismiss the case. Richter, supra.

To be admissible in court, testimony of a medical expert must explain both “how and why” the expert arrived at an opinion that the defendant healthcare provider’s conduct was substandard. A court can allow testimony from a medical professional who does not specialize in the same area of medicine “if the professional is qualified and competent” to testify. R.R. v. Dandade, No. 34,998, 2017 N.M. App. Unpub. LEXIS 103 (N.M. Ct. App. April 25, 2017); see also N.M. R. Evid. 11–702; Quintana v. Acosta, 2014-NMCA-015, 316 P.3d 912.

As noted earlier (Section III above), if a medical review panel concludes that substantial evidence supports the plaintiff’s malpractice claim, the panel, the director of the New Mexico Medical Review Commission, and the relevant professional healthcare association must assist the plaintiff in retaining a qualified medical expert to assist in preparation of the case and to testify on the plaintiff’s behalf. N.M. Stat. Ann. § 41-5-23.

VIII. Comparative Fault / Proportionate Liability

Sometimes a healthcare provider will try to pin the blame for a poor treatment outcome on the patient, accusing him or her of ignoring post-surgery instructions or answering health history questions inaccurately, for instance. In cases where a patient does bear some fault for causing his or her own medical injury, New Mexico applies the doctrine of “comparative fault.” Under this doctrine, a careless or negligent patient’s lawsuit is not barred completely, but any monetary damages obtained are reduced.

For example, if the plaintiff was 25 percent at fault for the bad treatment outcome and the physician 75 percent, the plaintiff can recover monetary damages from the physician but the amount will be reduced by 25 percent. But if the plaintiff’s fault was greater than the defendant’s, the plaintiff recovers nothing. Richter, supra; Lewis v. Samson, 2001-NMSC-035, 131 N.M. 317, 35 P.3d 972.

On a different issue, if there are multiple defendants, who pays what share of the monetary damages? Under New Mexico law, each defendant generally is liable for damages only in proportion to that defendant’s percentage of fault. For instance, if a particular defendant bore 30 percent of the fault, that defendant pays 30 percent of the monetary damages. N.M. Stat. Ann. § 41-3A-1; Richter, supra.

IX. Limitations on Attorney Fees

Unlike some states, New Mexico has no medical malpractice statute that regulates attorney fees.

X. Apologies and Sympathetic Gestures

If a healthcare provider apologizes for a poor treatment outcome, can the apology be used in court as evidence of negligence? New Mexico has no statute specifically addressing this issue.

However, if a healthcare provider makes an advance payment of funds for the patient’s medical care and related benefits, evidence of that payment is not admissible in court in the trial of the malpractice claim. N.M. Stat. Ann. §§ 41-5-8, 41-5-11.

XI. Communications with Treating Physicians

May defense counsel communicate with a patient’s treating physicians without the patient’s consent and without the patient’s attorney present?

There appears to be little New Mexico law directly addressing this topic. But the federal Health Insurance Portability and Accountability Act of 1996, or HIPAA, restricts healthcare providers from disclosing patient information except in narrow circumstances. See 45 C.F.R. § 164.512(e).

XII. Disclaimer

This website has been prepared by Medical Malpractice Help for informational purposes only and does not constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

The information contained in this website is provided only as general information, which may or may not reflect the most current legal developments. This website occasionally contains links to other web pages. The inclusion of such links, however, does not constitute referrals or endorsements of the linked entities. Newsome | Melton specifically disclaims any responsibility for positions taken by users in their individual cases or for any misunderstanding on the part of users of this website or any linked websites.

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