New Mexico Medical Malpractice Laws

Medical malpractice claims can be incredibly complex. If you or a loved one has been a victim of medical malpractice, you have a specified time period in which you are able to bring a claim. If you fail to file a claim within that timeframe, it is quite possible that you will not be able to do so at any point and you will not be permitted to recover for your pain and suffering. This page is intended to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in New Mexico; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in New Mexico. An experienced attorney will be able to guide you through the specifics of the laws that are more finely tuned with the details of your medical malpractice claim and explore whether your claim has the requisite merit to be filed in court.

Suing for Medical Malpractice in New Mexico

In New Mexico, a medical malpractice case may be brought by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional. The law in New Mexico places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in New Mexico allows the defense of pure comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned by a court.

When it comes to medical malpractice claims, many cases settle out of court prior to the case advancing to the trial stage of litigation. New Mexico is one of many states that does places a limit on damages that may be awarded to a plaintiff in a medical malpractice case.

The lawmakers in New Mexico created a patient’s compensation fund that is financed by a charge on all qualified health care providers. The purpose of the fund is to promote the availability of coverage for medical professional liability to health care providers practicing in New Mexico. The fund provides an excess layer of coverage to doctors, hospitals, and other health care providers who qualify under the provisions of the New Mexico Medical Malpractice Act. The fund implements limitations on damage awards, time limits for filing claims, and mandatory panel review of claims. [1]

In order to be considered a qualified health care provider under the Act, the health care provider must purchase a medical malpractice insurance policy written on occurrence policy.

How long do I have to file a medical malpractice case in New Mexico?

The first step in bringing a claim of medical malpractice against a healthcare provider is making certain that you are permitted to do so. The law in New Mexico mandates that an action for personal injury must be filed within three years from the date the cause of action accrues. [2] This time limitation is known as the “statute of limitations” which refers to the time period from the time an injury occurs or is discovered to the final date on which a medical malpractice lawsuit can be filed. If you decide to bring an action after the statute of limitations have passed, a court can dismiss your case and you will be left with no recourse. The reason behind placing a time limitation on when you may file a medical malpractice claim is sound. A court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially aid your case would become less compelling.

It is important to note that New Mexico law states that the statute of limitations clock does not begin to run until your injury has been, or should have been, discovered. This rule is known as the “discovery rule.” Additionally, if the medical malpractice claim is being brought on the behalf of a minor under the age of six years old, the statute of limitations do not begin to run until the minor turns nine years old.

In New Mexico Medical Malpractice Cases, who is Responsible?

In New Mexico, you may bring a medical malpractice lawsuit for an injury you suffered against a licensed healthcare provider based upon their negligence, misconduct, errors or omissions, or breach of contract in the rendering of healthcare, medical services, nursing services or other health-related services.

A qualified health care provider is a doctor or other medical provider that has opted in to protection under the New Mexico Medical Malpractice Act by meeting insurance requirements such as providing proof of financial responsibility ($200,000 per occurrence). If a New Mexico health care provider does not elect to opt in, they will not be afforded the protections contained within the Act.

When bringing a medical malpractice claim against a health care provider, the burden of proof rests with you and you must prove:

• You had a doctor-patient relationship that established the doctor’s duty of care
• The doctor deviated from the accepted standard of care
• You were harmed because of the doctor’s actions
• You suffered harm as a result

What if I am partially to blame? Can I Still Recover Money for New Mexico Medical Malpractice?

New Mexico, along with 12 other states (Arizona, Alaska, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New York, Rhode Island, South Dakota, and Washington) recognizes the doctrine of pure comparative fault. [3]

Under the doctrine of pure comparative fault any award of damages you are awarded from a court are reduced in proportion to your contribution to your own injury. This doctrine is extremely friendly to you in that you are able to recover for damages even if you are found to have been 99% at fault for your injury.

For example, imagine if a patient went to see a doctor about pain in their shoulder. During the evaluation, the doctor asks the patient if they drink alcohol and the patient lies and says that they do not. Based on that information, the doctor prescribed painkillers that are not safe to take in combination with alcohol. The patient later takes the medication while drinking alcohol and suffers severe health consequences. If the patient were to bring a medical malpractice lawsuit against the doctor for improperly prescribing medication that led to their injury, it is likely that a court would find the patient partially responsible and any award of damages would be reduced in proportion to the level of fault calculated by the court as per the doctrine of pure comparative fault.

An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. As a result, the majority of states have adopted a modified system which allows for only a partial apportionment of fault. Usually, the percentage of fault is either capped at 51% or 50%. If the plaintiff contributed to their injury in a way that surpassed the allowed threshold, they will be barred from recovering for their injury.

Are there medical malpractice recovery caps in New Mexico?

If you are ultimately successful in your medical malpractice claim, you will be awarded damages in accordance with the doctrine of comparative fault. The term “damages” is synonymous with a monetary award which is used to compensate the plaintiff for the injuries they sustained as a result of the plaintiff’s negligence. There are two main types of damage awards you may receive:

Compensatory Damages are meant to place you in the position you would have been in had your injury never occurred as they are meant to compensate you for your injury. Compensatory damages are usually split into two categories – actual damages and general damages.

Actual damages reimburse you for out-of-pocket items that can easily be accounted for like:

• Medical bills
• Prescription fees
• Nursing costs
• Physical therapy costs
• Wages lost from an inability to work

General damages compensate you for occurrences that are hard to properly value. For example:

• Pain and suffering
• Loss of consortium
• Loss of enjoyment of life
• Future medical costs
• Loss of future wages

Punitive Damages are different from compensatory damages in that they are intended to punish the defendant rather than compensate the plaintiff. In New Mexico, punitive damages may be awarded by the court only when the defendant’s actions were reckless or intentional.

As previously mentioned, many New Mexico health care providers receive protection under the New Mexico Medical Malpractice Act. Caps, or limits, on damages, are part of the protections provided to qualified health care providers under the Act. The Act caps damages for any one act to $600,000. [4] The $600,000 damage award limit does not apply to a punitive damage award.

If you are bringing a case against a New Mexico health care provider that is not qualified per the New Mexico Medical Malpractice Act, the law does not place a limit on the damage award that you may receive.

Expert witness reporting and testimony

The testimony given by an expert witness is invaluable to you if you are bringing a claim of medical malpractice. It is the expert that will be able to establish that the defendant either lacked or failed to exercise the requisite degree of knowledge or skill held by healthcare providers in their field and that as a proximate result of the lack of knowledge or skill or the failure to exercise this degree of care, the plaintiff suffered injuries that would not otherwise have been incurred. If the health care provider’s negligence is so egregious and apparent that a layman could properly understand how the behavior caused your injury, then, and only then, should you consider foregoing expert testimony in a medical malpractice lawsuit.

Are some parties immune from medical negligence cases?

The immunity that is provided from torts to governmental entities and public employees under N.M. Stat. Ann. §§ 41-4-4 does not apply to liability for damages resulting from bodily injury or wrongful death if 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, or medical care homes. [5]

However, while state employees are held liable for injuries caused by their negligence, they are immune from liability for punitive damages and receive protection from compensatory damages in the form of strict limits. State employee compensatory damages are limited to $300,000 for medical expenses.

Settling medical malpractice cases in New Mexico

The law in New Mexico does requires that any medical malpractice claim being brought against a qualified health care provider first be heard by a medical review commission. [6] The commission, or panel, is made up of doctors and lawyers. The plaintiff must present their case to the commission for review and findings regarding the negligence they are alleging occurred. The commission will review the facts and then come up with a finding. The panel’s finding is in no way binding and the plaintiff may still file a lawsuit in court if the panel found against them.

Litigating medical negligence cases in New Mexico

A claim for medical malpractice in New Mexico is initiated by preparing a Complaint and Summons that must be served on the named defendants in your case. The defendant is then required to file a document that is called the Answer which provides responses to the allegations you made in the complaint and will also list the affirmative defenses that will be used.

Initiating the Case

If the parties to a medical malpractice lawsuit are unable to reach a settlement, the claim will proceed to civil court. In New Mexico, a civil action begins by filing a complaint with the clerk of the court. A complaint should include:

• The proper name of every plaintiff and of every defendant
• A statement that the court has legal authority over the subject matter of the claim and over the defendant
• A short and clear statement of the factual basis of each claim. Each claim must show that the party has a right to relief from the court
• A demand that the court award money or another type of remedy allowed by law.

A civil summons lets the named defendants know that a lawsuit has been filed against them. The complaint and summons must then be delivered to all named defendants in the lawsuit. Upon receipt, the defendants have 30 days to file an Answer which admits and/or denies statements made in the complaint.

Preparing for Litigation

After the disclosures have been made and the complaint, summons and answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.

In a medical malpractice case, medical records and doctor’s notes are usually items that will be requested for disclosure.

Each side may obtain discovery by:

• Deposition
• Written interrogatories
• Production of documents
• Physical or mental examinations
• Requests for admission

A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. In New Mexico, depositions are usually limited to one day and lasting no more than seven (7) hours. The deposition does not usually take place in a courtroom. Instead, the questions are asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. A court reporter is usually present during a deposition.

Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury.

In a medical malpractice case, it is possible that the person bringing the claim will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist.

Pretrial Litigation

Litigation can be long, arduous and expensive. For these reasons, it is not uncommon for a case to settle prior to reaching the trial stage of litigation.

New Mexico law mandates that civil lawsuits seeking damages that fall below certain jurisdictional thresholds go to a mandatory screening panel. The New Mexico Medical Review Commission, created by Section 41-5-14 of the New Mexico Medical Malpractice Act, was enacted in 1976. The Medical Malpractice Act mandates the screening of all applications of alleged medical malpractice against a qualified medical provider by the Medical Review Commission. The panel is made up of three members from the medical profession and three panel members from the State Bar of New Mexico.

Trial

During a trial, all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of New Mexico: a judge or a jury. In district court, there are either twelve (12) or six (6) people on the jury.

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court. Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

In New Mexico, a person is considered to be qualified to be a juror if they are:

• a citizen of the United States;
• a resident of New Mexico
• at least 18 years of age; and
• of sound mind

After the jury selection is completed, opening statements will begin. An opening statement is an outline of what each side thinks the evidence will be and is offered to help jurors understand and follow the evidence during the trial.

From there, the plaintiff will begin to argue their case. The plaintiff will call witnesses at this time and each witness will be questioned by the plaintiff’s attorney and then likely cross-examined by the

opposing side’s attorney. After all the plaintiff’s witnesses have been called and evidence has been presented, the plaintiff will rest their case.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their evidence. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place. During closing arguments, each side’s attorney will explain to the jury what they believe the evidence proves. In the final argument, each side will summarize the facts that were presented during the trial and attempt to show how they support their client’s case. The closing arguments allow the jury to better understand the case.

Finally, jury instructions are then given by the judge to the jury and the jury is then free to deliberate and come back with a finding.

Appeal

 Many times the losing side in a medical malpractice case will opt to appeal a decision from the lower court. An appeal is a legal proceeding which allows a higher court to review the decision rendered by a lower court. The Court of Appeals differs from the lower court in that it does not hear testimony from witnesses and does not determine facts. Instead, during an appeal, the court decides whether the trial Court made an error of law or made a factual determination unsupported by any evidence which led to the rendering of the verdict.

To appeal the decision of a lower court, you must file a Notice of Appeal in the superior court that issued the judgment no later than thirty (30) days from the date of the original judgment. [7]

How to find the best New Mexico Medical Malpractice Lawyer for your case

Initiating any legal proceeding can be daunting and overwhelming, especially if it is being brought against a high-powered doctor or hospital. It is likely that you would rather focus on healing your injury and seeking the proper medical treatment than worry about contacting your healthcare provider’s attorney or looking for experts that can support your claim. This is why it is important to find legal representation that can take your mind off of the legalese so that you can focus on getting yourself better.

One of the main motivating factors in bringing a medical malpractice lawsuit against a healthcare provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. After all, why should you be forced to go out-of-pocket for an injury that was caused by someone else? In order to increase your chances of success in your medical malpractice case, it is very important to find competent and highly skilled legal representation.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. The process of hiring an attorney or law firm should be on your time table, not theirs. Do not let an attorney or firm pressure you into hiring them on the spot. In fact, you should interview more than one law firm to make sure that the counsel you end up with is the right fit.

When looking for legal representation, you will want to search for an attorney or firm that has a wealth of knowledge and experience in cases that are similar to your own. Do not be afraid to ask an attorney or law firm their level of experience. It may also be wise to ask if they have ever litigated a case similar to yours and whether or not they were successful. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be. They can also inform you of the estimated cost of litigation.

You may want to get a feel for if you actually like the attorney or law firm that you are interviewing. While you do not have to be best friends with your legal counsel – in fact, it is best not to be – you need to decide if the person or people representing you are people you want to be in constant contact with day in and day out. Communication between attorneys and clients is incredibly important. You should also ask your potential attorney or firm how they communicate with their clients. People communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Your attorney should adapt their communication methods to fit your needs.

Some notable medical malpractice law decisions from New Mexico

These cases represent awards to plaintiffs in medical malpractice cases in New Mexico. These results are in no way a guarantee that subsequent, similar, cases will see the same results.

Tommy Sowards and Barbara Sowards, Husband and Wife, v. Las Cruces Medical Center, LLC d/b/a Mountain View Regional Medical Center

The plaintiff, Tommy Soward and his wife, filed a medical malpractice lawsuit against Las Cruces Medical Center, a physician, and Biotronik, Inc. The lawsuit was filed after a doctor had implanted an unnecessary pacemaker based upon a diagnosis of sick sinus syndrome, a condition that impacts a person’s heart rate. However, at trial, the plaintiff was able to show that his heart rate problems were temporary and caused by medication and not sick sinus syndrome.

Before trial, Las Cruces Medical Center and the physician settled the case which left the pacemaker’s manufacturer, Biotronik, Inc., the remaining defendant. The manufacturer was included in the lawsuit based upon the claim that implantation of the pacemaker provided financial rewards to Biotronik, Inc.

The jury agreed and awarded $2.3 million in compensatory damages and $65 million in punitive damages.

Sandretto v. Payson Healthcare Management, Inc.

The plaintiff, Lori Sandretto, slipped on a wet floor and injured her right knee. The injury required outpatient surgery to repair a torn meniscus.

After the surgery, the plaintiff’s pain continued. She then visited Dr. Charles Calkins. Dr. Calkins was employed by Payson Healthcare Management. Dr. Calkins found that the meniscus remained torn after the first surgery and performed a second surgery to fix the tear.

After the second surgery, the plaintiff’s condition appeared to improve at first but within a week, her knee became swollen and painful. She went back to Dr. Calkins office and was examined by a physician’s assistant. The physician’s assistant prescribed antibiotics for a skin infection. The plaintiff was forced to go to the emergency room where she was met by Dr. Calkins. Upon his arrival, he confirmed the earlier diagnosis of a skin infection and prescribed a different antibiotic.

The plaintiff saw the physician’s assistant again a week later for pain in the knee but was told that she still had a skin infection. A few weeks later, the physician’s assistant aspirated the plaintiff’s knee and had the fluid tested. Three days after that, the results came back positive for methicillin-resistant Staphylococcus aureus (MRSA). MRSA is an infection that destroys tissue and, when found in a joint, requires high doses of antibiotics as well as surgery to wash it out.

The plaintiff had the surgery performed by Dr. Calkins.

The plaintiff ultimately required two more surgeries as well as a knee replacement.

The plaintiff filed a medical malpractice lawsuit against Dr. Calkins and his employer based upon claims that Dr. Calkins did not act quickly enough to diagnose and treat the MRSA infection, which caused the need for aggressive medical treatments that resulted in permanent injury.

A settlement between Dr. Calkins and the plaintiff in the amount of $900,000 was reached days before the trial was set to begin. The trial went forward against Dr. Calkins’ employer and a jury awarded $7,275,160 in damages.

The case was appealed based upon the argument that the trial court judge erred by letting the plaintiff’s various expert witnesses testify when an adequate scientific basis for their opinions was not established. The New Mexico Court of Appeals disagreed, finding that in medical malpractice cases, a doctor’s direct experience qualifies them as an expert.

Footnotes

[1] N.M. Stat. Ann. § 41-5-25

[2] N.M. Stat. Ann. § 41-5-13

[3] Scott v. Rizzo, 634 P.2d 1234 (N.M. 1981).

[4] N.M. Stat. Ann. § 41-5-6

[5] N.M. Stat. Ann. §§ 41-4-9

[6] N.M. Stat. Ann. § 41-5-15

[7] New Mexico Rules Annotated Rule 12-201(A)(2)