2020 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 47 - Resident Abuse and Neglect
Section 30-47-5 - Neglect of a resident; criminal penalties.

A. Whoever commits neglect of a resident that results in no harm to the resident is guilty of a petty misdemeanor and upon conviction shall be sentenced pursuant to the provisions of Subsection B of Section 31-19-1 NMSA 1978.

B. Whoever commits neglect of a resident that results in physical harm or great psychological harm to the resident is guilty of a fourth degree felony and upon conviction shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

C. Whoever commits neglect of a resident that results in great physical harm to the resident is guilty of a third degree felony and upon conviction shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

D. Whoever commits neglect of a resident that results in the death of the resident is guilty of a second degree felony and upon conviction shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

History: Laws 1990, ch. 55, § 5.

Standard of negligence is criminal negligence. — Criminal negligence is the standard applicable to 30-47-3(F) NMSA 1978 which requires an actual or imputed foreseeability of danger directed toward the victim who might be injured as a result of the defendant's acts and a risk of harm that is substantial and unjustifiable. State v. Muraida, 2014-NMCA-060, cert. denied, 2014-NMCERT-005.

Complaint stated sufficient facts to support a conviction. — Where the state's complaint alleged that defendant was the attending physician of the decedent who had had a heart attack; the decedent had been receiving the anticoagulant drug Coumadin before the decedent was transferred to defendant's care; defendant increased the decedent's dosage of Coumadin; defendant failed to monitor the effect of the prescribed dosage by daily testing the decedent's blood, failed to consider and monitor the decedent's blood pressure medication, failed to act in response to the decedent's worsening symptoms, failed to order proper care upon discovery of blood in the decedent's stool, ordered a colonoscopy rather than determine whether the symptom was due to the Coumadin, and ordered the colonoscopy on a non-emergent basis despite the fact that the decedent required drastic and urgent treatment; and the decedent died due to blood loss from the excessively prescribe quantity of Coumadin, the state's complaint alleged sufficient facts to support a conviction under 30-47-5 NMSA 1978. State v. Muraida, 2014-NMCA-060, cert. denied, 2014-NMCERT-005.

"Care facility". — Evidence was sufficient to prove that defendant, who was legal custodian of eighty-year-old man, housed the man at his mother's residence, and provided other services for him, was acting as a "care facility" for the man and was, therefore, subject to the provisions of this article. State v. Davis, 1998-NMCA-148, 126 N.M. 297, 968 P.2d 808.

The Resident Abuse and Neglect Act applies to persons in a private residence setting who take on the responsibility as caregivers to care for severely developmentally disabled and other similarly incapacitated adults, including the aged, who are in need of frequent, if not daily, personal assistance and care to stave off harm. State v. Greenwood, 2012-NMCA-017, 271 P.3d 753, cert. denied, 2012-NMCERT-001.

Contract between care facility and an individual caregiver is not required. — For criminal liability for neglect, the Residents Abuse and Neglect Act does not require any contractual, employment or financial arrangement between a care facility, care provider or particular entity, on the one hand, and an individual caregiver who has the hands-on and immediate responsibility of care and of taking responsible precautions necessary to prevent damage to a resident's health or safety. State v. Greenwood, 2012-NMCA-017, 271 P.3d 753, cert. denied, 2012-NMCERT-001.

Sufficient evidence. — Where the victim resided in defendant's home; defendant was the victim's parent; the victim was a profoundly developmentally disabled adult who was totally dependent on defendant for the victim's life; defendant was not treating or caring for the victim under any contract with a care facility, care provider or other entity; defendant accepted full responsibility for the victim's care; at the time of the victim's death, the home was covered with fecal matter and trash; the victim's death was caused by sepsis which was caused by extensive, server pressure ulcers that covered the victim's body, some of which were so deep as to expose bone and that had become infected due to the filthy conditions in which the victim lived; the ulcers had developed over an extended period of time; and defendant administered over-the-counter medications to the victim and postponed a decision to seek medical care for the victim, there was sufficient evidence to support the jury's findings that defendant's home was a care facility and that defendant was grossly negligent in failing to take reasonable precaution necessary to prevent damage to the victim's health. State v. Greenwood, 2012-NMCA-017, 271 P.3d 753, cert. denied, 2012-NMCERT-001.