2019 New Mexico Statutes
Chapter 41 - Torts
Article 5 - Medical Malpractice Act
Section 41-5-3 - Definitions.
As used in the Medical Malpractice Act:
A. "health care provider" means 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;
B. "insurer" means an insurance company engaged in writing health care provider malpractice liability insurance in this state;
C. "malpractice claim" includes any cause of action arising in this state against a health care provider for medical treatment, lack of medical treatment or other claimed departure from accepted standards of health care which proximately results in injury to the patient, whether the patient's claim or cause of action sounds in tort or contract, and includes but is not limited to actions based on battery or wrongful death; "malpractice claim" does not include a cause of action arising out of the driving, flying or nonmedical acts involved in the operation, use or maintenance of a vehicular or aircraft ambulance;
D. "medical care and related benefits" means all reasonable medical, surgical, physical rehabilitation and custodial services and includes drugs, prosthetic devices and other similar materials reasonably necessary in the provision of such services;
E. "patient" means a natural person who received or should have received health care from a licensed health care provider, under a contract, express or implied; and
F. "superintendent" means the superintendent of insurance of this state.
History: 1953 Comp., § 58-33-3, enacted by Laws 1976, ch. 2, § 3; 1977, ch. 284, § 1.
ANNOTATIONSEmergency clauses. — Laws 1977, ch. 284, § 5 contained an emergency clause and was approved April 7, 1977.
Communication between medical personnel. — Communication between medical personnel is not a matter that requires expert knowledge to understand the standard of care involved and a party may be able to establish that a departure from the standard of ordinary care occurs when a clerical error affects the timeliness or accuracy of a diagnosis. Zamora v. St. Vincent Hospital, 2014-NMSC-035.
Where plaintiff was admitted to defendant's emergency room with abdominal pain; a contract radiologist performed an abdominal scan on plaintiff; the radiology report concluded that defendant had a diverticular abscess and that cancer was a possibility; the emergency physician and surgeon never received the radiologist's report; plaintiff was diagnosed with colon cancer fourteen months later; plaintiff sued defendant alleging that as a consequence of defendant's failure through an administrative inadequacy to forward the radiology report to the surgeon, plaintiff was treated for a diverticular abscess, allowing the cancer to grow; and defendant claimed that plaintiff failed to present expert testimony regarding the standard of care of communication between medical personnel, expert testimony was not required to establish the standard of care because the communication of the diagnosis by one doctor to another is subject to an ordinary negligence standard of care, which does not require expert testimony. Zamora v. St. Vincent Hospital, 2014-NMSC-035.
Malpractice claim. — The controlling inquiry in determining whether a claim constitutes a "malpractice claim" under the Medical Malpractice Act [Chapter 41, Article 5 NMSA 1978] is whether the gravamen of the claim is predicated upon the allegation of professional negligence. Christus St. Vincent Reg'l Med. Ctr. v. Duarte-Afara, 2011-NMCA-112.
Claim for equitable indemnification was a malpractice claim. — Where a patient sued a medical center and a doctor who practiced at the medical center for malpractice and the medical center sued the doctor for equitable indemnification based upon the claim that the doctor negligently caused and was partially liable for the patient's injuries, the equitable indemnification claim was a malpractice claim as that term is used in the Medical Malpractice Act [Chapter 41, Article 5 NMSA 1978]. Christus St. Vincent Reg'l Med. Ctr. v. Duarte-Afara, 2011-NMCA-112.
Defendants other than physicians. — This section's broad definition of health care provider is evidence that the legislature intended to impose liability beyond the context of the physician-patient relationship. When an individual is obliged as a condition of future or continued employment to submit to a medical examination, that examination creates a duty between the examining health care provider and the examinee. Baer v. Regents of Univ. of Cal., 1994-NMCA-124, 118 N.M. 685, 884 P.2d 841.
Negligent misrepresentation and intentional infliction of emotional distress not "malpractice claim(s)". — Claims for negligent misrepresentation and intentional infliction of emotional distress do not first have to be presented to the medical review commission because they do not come within the definition of a malpractice claim. Trujillo v. Puro, 1984-NMCA-050, 101 N.M. 408, 683 P.2d 963, cert. denied, 101 N.M. 362, 683 P.2d 44.
Malpractice required. — The New Mexico Medical Malpractice Act covers injuries arising out of negligence and does not cover claims not based on acts of malpractice. Cordray v. Cnty. of Lincoln, 320 F.Supp.2d 1171 (D.N.M. 2004).
Functional test to distinguish medical or professional negligence from ordinary negligence. — If an act involves the use of special knowledge or skill to make a judgment call as to the appropriate thing to do or not to do, then the act is of a professional nature and claims based on the act must be brought and pursued as a medical or professional negligence action and requires expert testimony to assess the resultant act or failure to act. If not, the act is not of a professional nature and expert testimony is not required. Richter v. Presbyterian Healthcare Servs., 2014-NMCA-056, cert. denied, 2014-NMCERT-005.
Timeliness of delivery of laboratory reports. — Expert testimony is required where a plaintiff's claims address the timeliness or urgency of the delivery system of laboratory reports, including any timeliness claims that involve the efficiency and design of the delivery system, except when the required timing is set by a known standard such as an internal policy, contract or governmental regulation. Richter v. Presbyterian Healthcare Servs., 2014-NMCA-056, cert. denied, 2014-NMCERT-005.
Maintenance of hospital charts. — Hospitals have a clearly established duty to maintain their patient's medical charts in good order, including the duty to post completed lab tests as received. Assessing a hospital's compliance with its charting duties does not require expert testimony. Richter v. Presbyterian Healthcare Servs., 2014-NMCA-056, cert. denied, 2014-NMCERT-005.
Ordinary negligence in delivering laboratory reports. — Where decedent died when decedent developed a heart arrhythmia during surgery in 2005; the heart arrhythmia was caused by an undiagnosed condition called pheochromocytoma; in 2001, the decedent's physicians ordered lab tests that were diagnostic of pheochromocytoma; the lab results were never read or acted upon by the physicians; plaintiff sued the hospital and the laboratory for negligent delivery of the lab results in 2001; plaintiff did not raise any matters involving urgency; and plaintiff showed that the laboratory had a routine procedure for delivering lab report to physicians, plaintiff's claims against the hospital and the laboratory could be pursued as ordinary negligence claims and did not require expert testimony. Richter v. Presbyterian Healthcare Servs., 2014-NMCA-056, cert. denied, 2014-NMCERT-005.
Opinion of treating physician as to negligence of another treating physician. — Where decedent died when decedent developed a heart arrhythmia during surgery in 2005; the heart arrhythmia was caused by an undiagnosed condition called pheochromocytoma; prior to surgery, decedent's consulting surgeon ordered lab tests that would have disclosed the pheochromocytoma; the consulting surgeon scheduled surgery to be conducted by the operating surgeon; the operating surgeon conducted the surgery before the lab results had been received and despite decedent's high potassium levels that posed a chance of death during surgery; and plaintiff sought to elicit opinions from the consulting surgeon as to which acts of the operating surgeon were negligent; the district court did not abuse its discretion in excluding the consulting surgeon's opinions as to the operating surgeon's negligence. Richter v. Presbyterian Healthcare Servs., 2014-NMCA-056, cert. denied, 2014-NMCERT-005.
Failure to present expert testimony on the standard of medical care. — Where decedent died when decedent developed a heart arrhythmia during surgery in 2005; the heart arrhythmia was caused by an undiagnosed condition called pheochromocytoma; prior to surgery, lab tests had been ordered that would have disclosed the pheochromocytoma; the surgeon conducted the surgery before the lab results had been received and despite decedent's high potassium levels that posed a chance of death during surgery; to establish the standard of care for the surgeon's conduct, plaintiff offered the testimony of an interventional radiology expert who testified that there was no standard practice that an interventional radiologist would use to address the complication that occurred in decedent's surgery; and plaintiff called a general surgeon to establish the standard of care applicable to decedent's surgery, but failed to lay a foundation for the general surgeon's opinion, plaintiff failed to present expert testimony on the standard of care and the district court did not err in directing a verdict in favor of the surgeon. Richter v. Presbyterian Healthcare Servs., 2014-NMCA-056, cert. denied, 2014-NMCERT-005.
Comparative negligence of non-parties. — Where decedent died when decedent developed a heart arrhythmia during surgery in 2005; the heart arrhythmia was caused by an undiagnosed condition called pheochromocytoma; in 2001, the decedent's physicians ordered lab tests that were diagnostic of pheochromocytoma; the lab results were never read or acted upon by the physicians; in 2005, prior to surgery, lab tests had been ordered that would have disclosed the pheochromocytoma; the surgeon conducted the surgery before the lab results had been received; and the district court permitted the jury to compare the alleged negligence of the decedent's 2001 physicians, who were non-parties in the case, with the negligence of the decedent's 2005 surgeons, comparative negligence principles required the district court to consider the comparative negligence of the non-party 2001 physicians. Richter v. Presbyterian Healthcare Servs., 2014-NMCA-056, cert. denied, 2014-NMCERT-005.
Law reviews. — For article, "Medical Malpractice Legislation in New Mexico," see 7 N.M.L. Rev. 5 (1976-77).
For note, "Tort Law New Mexico Limits Recovery of Negligent Infliction of Emotional Distress to Sudden, Traumatic Accidents — Fernandez v. Walgreen Hastings Co.," see 30 N.M. L. Rev. 363 (2000).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 77 Am. Jur. 2d Venue § 16.
Right of tortfeasor initially causing injury to recover indemnity or contribution from medical attendant causing new injury or aggravating injury in course of treatment, 8 A.L.R.3d 639.
Liability of operating surgeon for negligence of nurse assisting him, 12 A.L.R.3d 1017.
Liability for injuries or death as a result of physical therapy, 53 A.L.R.3d 1250.
Chiropractor's liability for failure to refer patient to medical practitioner, 58 A.L.R.3d 590.
Liability of anesthetist for injuries from spinal anesthetics, 90 A.L.R.3d 775.
What constitutes physician-patient relationship for malpractice purposes, 17 A.L.R.4th 132.
Liability for injury or death allegedly caused by activities of hospital "rescue team", 64 A.L.R.4th 1200.
Recovery in death action for failure to diagnose incurable disease which caused death, 64 A.L.R.4th 1232.
Medical malpractice: who are "health care providers," or the like, whose actions fall within statutes specifically governing actions and damages for medical malpractice, 12 A.L.R.5th 1.
Venue of wrongful death action, 58 A.L.R.5th 535.
Coverage of professional-liability or -indemnity policy for sexual contact with patients by physicians, surgeons, and other healers, 60 A.L.R.5th 239.
70 C.J.S. Physicians and Surgeons § 62.
