New Mexico Medical Malpractice Laws

A medical malpractice lawsuit is usually a pretty complex undertaking in any state, New Mexico included. First, the legal and medical issues common to these cases are notoriously complicated. And second, the plaintiff (the injured patient, or his or her legal representative) usually needs to comply with special procedural rules that are unique to these kinds of lawsuits. Finally, the plaintiff needs to understand how any statutory compensation limits ("damages caps") will affect a successful court case. In this article, we'll look at some key New Mexico medical malpractice laws—specifically, the medical review commission requirement, the statutory lawsuit-filing deadline, and New Mexico's medical malpractice damage caps.

New Mexico's Medical Malpractice Statute of Limitations

If you want to file a medical malpractice lawsuit in New Mexico, be aware of the statute of limitations, which is a law that sets a strict limit on the amount of time you have to get your case started in the state's civil courts.

New Mexico's relevant statutory deadline can be found at New Mexico Statutes Annotated section 41-5-13, and it says: "No claim for malpractice . . . may be brought against a health care provider unless filed within three years after the date that the act of malpractice occurred."

The statute goes on to provide an exception for medical malpractice cases in which the person harmed was a minor (younger than 18 years old) and "incapacitated persons": The limitations period "shall be extended so that they shall have one year from and after the age of majority or termination of incapacity within which to commence the actions." So, for example, in a case involving birth-related medical malpractice, a newborn who was harmed by a medical error would technically have the legal right to file a lawsuit—or a parent would have the right to file the case on behalf of the child—until one year after the child's 18th birthday. For a plaintiff who has been declared mentally incompetent when the medical error happens, the statute of limitations "clock" will not start running until the patient has been declared mentally competent.

If the statutory deadline has passed, but you try to file the lawsuit anyway, it's safe to assume that the doctor or health care facility you're trying to sue will file a motion asking the court to dismiss the case, and the court will almost certainly grant the motion. If that happens, that's the end of your lawsuit, and you've lost the right to ask the court to provide you with a civil remedy for even the most egregious of medical errors. That's why it's so important to understand and comply with the medical malpractice statute of limitations.

The Role of the New Mexico Medical Review Commission

New Mexico Statutes Annotated section 41-5-15 says: "No malpractice action may be filed in any court against a qualifying independent provider . . . before application is made to the New Mexico medical review commission and its decision is rendered; provided, however, that an independent provider and the patient may stipulate to forego the panel process." So, review of a patient's claim by a qualified panel is basically a prerequisite to the filing of many medical malpractice lawsuit in the state's courts, unless you and the health care provider agree to waive it.

But who is considered an "independent provider" under New Mexico's medical malpractice law? In general, an independent provider is defined as an (1) individual health care provider who is not an employee of a hospital or outpatient health care facility, or (2) a business entity that is not a hospital or outpatient health care facility. (See New Mexico Statutes Annotated section 41-5-3(E) for the full list of who is counted as an independent provider in New Mexico.) As of July 1, 2021, the commission will not review claims against hospitals or outpatient health care facilities.

In order to get the medical review process started, the patient's attorney must file an "application for review" with the state's Medical Review Commission. The application must contain:

• details of the patient's care (providers involved, dates of treatment, action or inaction that allegedly amounted to malpractice), and
• authorization to obtain the patient's medical records (so the panel may review them).

Rules related to the composition of a New Mexico medical review panel—how members are chosen, how they can be challenged, etc.—can be found at New Mexico Statutes Annotated section 41-5-17. But in most cases, a panel consists of three members who work in the same profession as the defendant health care provider, and three New Mexico attorneys.

A hearing is typically held within 60 days of the application for review, at which each side makes an introductory statement, witnesses testify, and documents and other evidence is considered.

Next, the panel deliberates and answers two questions by "secret ballot":

• Is there "substantial evidence" that medical malpractice occurred?
• Is there a "reasonable medical probability" that the patient was injured by the malpractice?

The decision is shared with the parties, but the panel's report isn't admissible if a medical malpractice lawsuit is filed in court. However, if the panel decides that malpractice occurred and that the patient was harmed by it, the panel will "cooperate fully with the patient" in finding and hiring a medical expert witness physician who will help with the patient's trial preparation and provide expert testimony on the patient's behalf. (New Mexico Statutes Annotated section 41-5-23.)

New Mexico's Medical Malpractice Damages Cap

Like many states, New Mexico "caps" the amount of compensation that is available to a plaintiff who has been successful in a medical malpractice lawsuit.

Most states' medical malpractice damages caps apply only to noneconomic damages like pain and suffering, loss of enjoyment of life, and similar subjective damages. New Mexico's cap is a little different, although it functions to cap noneconomic losses as well.

New Mexico has put in place a cap of $750,000 on many types of damages available to a medical malpractice plaintiff who succeeds in a lawsuit against an independent provider (see the above section for more on who is considered an independent provider). However, the cap specifically excludes compensation for "past and future medical care and related benefits." (Note that, beginning in 2023, this cap will be adjusted for inflation every year based on the consumer price index.)

In addition to the caps on independent providers, New Mexico law also places separate caps on hospitals and outpatient care facilities.

Outpatient health care facilities that are not majority-owned and -controlled by a hospital. Damage caps are adjusted each year, as follows:

• $750,000 in 2022 and 2023
• $5,000,000 in 2024
• $5,500,000 in 2025, and
• $6,000,000 in 2026.

Hospitals and outpatient health care facilities that are majority-owned and -controlled by a hospital. Damage caps are adjusted each year, as follows:

• $4,000,000 in 2022
• $4,500,000 in 2023
• $5,000,000 in 2024
• $5,500,000 in 2025, and
• $6,000,000 in 2026.

Again, these caps (which can be found at New Mexico Statutes Annotated section 41-5-6) do not apply to compensation for any medical and rehabilitative care made necessary by the defendant's malpractice, including payment of ongoing care in cases of permanent disability. There's no statutory limit on these kinds of medical malpractice damages.

So while it doesn't apply to past or future medical care, New Mexico's damage caps will apply to other economic compensation, such as payment of lost income and lost ability to earn a living, and it applies to all varieties of noneconomic damages as well. That includes compensation for the injured patient's pain and suffering. (Note: New Mexico's cap also does not apply to punitive damages, which are pretty rare in medical malpractice cases.)

New Mexico also caps each individual health care provider's liability at $250,000, and any amount above that limit will be paid to the plaintiff out of a state compensation fund that has been set up for patients who have been injured by medical malpractice.

If you're looking for more specifics on New Mexico's medical malpractice laws and how they apply to your potential case, it may be time to discuss your situation with an experienced medical malpractice attorney in your area.