2020 New Mexico Statutes
Chapter 41 - Torts
Article 5 - Medical Malpractice Act
Section 41-5-1 - Short title.

Chapter 41, Article 5 NMSA 1978 may be cited as the "Medical Malpractice Act".

History: 1953 Comp., § 58-33-1, enacted by Laws 1976, ch. 2, § 1; 1992, ch. 33, § 1.

The 1992 amendment, effective April 1, 1992, substituted "Chapter 41, Article 5 NMSA" for "This act".

Applicability. — Laws 1992, ch. 33, § 17 made the provisions of the act applicable only to occurrences arising on and after April 1, 1994.

Temporary provisions. — Laws 1992, ch. 33, § 15, effective March 6, 1992, provided that for the purposes of the Medical Malpractice Act, a health care provider who qualified for medical malpractice liability insurance pursuant to the provisions of the Medical Malpractice Act in effect prior to April 1, 1992 shall remain subject to the terms and provisions of the act that existed on the date of qualification and further provided that upon the date of renewal for a health care provider's policy of medical malpractice liability insurance or the date of continuation of coverage for health care providers who maintain a cash deposit with the superintendent of insurance, the provisions of the Medical Malpractice Act in effect on the dates of renewal or continuation shall apply.

Purpose of act. — This act's limitation of health care provider liability reflects a concern by the legislature for the health of New Mexico citizens as affected by the availability of physicians and malpractice coverage. Lester ex rel. Mavrogenis v. Hall, 1998-NMSC-047, 126 N.M. 404, 970 P.2d 590.

Scope. — The Medical Malpractice Act [Chapter 41, Article 5 NMSA 1978] covers all causes of action arising in New Mexico that are based on acts of malpractice. Wilschinsky v. Medina, 1989-NMSC-047, 108 N.M. 511, 775 P.2d 713.

Claim held within scope of act. — Third party's malpractice claim, resulting from injuries caused by a patient's impaired ability to drive after a doctor administered powerful drugs to the patient in the doctor's office, fell within the purpose of the Medical Malpractice Act [Chapter 41, Article 5 NMSA 1978]. Wilschinsky v. Medina, 1989-NMSC-047, 108 N.M. 511, 775 P.2d 713.

Proof of medical malpractice. — To prove medical malpractice, a plaintiff must show that the defendant owed the plaintiff a duty recognized by law, the defendant breached the duty by departing from the proper standard of medical practice recognized in the community, and the acts or omissions complained of proximately caused the plaintiff's injuries. Brown v. Kellogg, 2015-NMCA-006, cert. denied, 2014-NMCERT-010.

Duty considerations. — Courts must articulate specific policy reasons when deciding whether a defendant does or does not have a duty or that an existing duty should be limited; foreseeability is not a factor for courts to consider when determining the existence of a duty because it is a fact-intensive inquiry relevant only to breach of duty and legal cause considerations. Brown v. Kellogg, 2015-NMCA-006, cert. denied, 2014-NMCERT-010.

Sources of duty for medical professionals. — A duty can be found where a medical professional exerts control over a patient with known dangerous propensities who causes injury, where a medical professional is aware of specific threats to the life of an individual and fails to disclose those threats, and where a medical professional administers powerful drugs that results in impairment to a patient who then causes injury to others. Brown v. Kellogg, 2015-NMCA-006, cert. denied, 2014-NMCERT-010.

Where duty on medical professionals not found. — Where police detective, after being examined by healthcare professionals for depression and suicidal thoughts and after being discharged with a follow-up plan for therapy, proceeded to use his service weapon to shoot his wife and kill himself, the court of appeals declined to impose a duty to order a fitness for duty evaluation on independent healthcare professionals who treat individuals with access to firearms as part of their workplace environment, because it did not fall within one of the three recognized sources of duty for medical professionals to third parties. Brown v. Kellogg, 2015-NMCA-006, cert. denied, 2014-NMCERT-010.

Representation required in malpractice action. — A non-attorney parent was required to be represented by counsel in order to bring a medical malpractice claim on behalf of his minor son. Chisholm v. Rueckhaus, 1997-NMCA-112, 124 N.M. 255, 948 P.2d 707, cert. denied, 124 N.M. 268, 949 P.2d 282.

Law reviews. — For article, "Medical Malpractice Legislation in New Mexico," see 7 N.M.L. Rev. 5 (1976-77).

For comment, "Survey of New Mexico Law: Torts," see 15 N.M.L. Rev. 363 (1985).

For survey of medical malpractice law in New Mexico, see 18 N.M.L. Rev. 469 (1988).

For article, "Statutory Adoption of Several Liability in New Mexico: A Commentary and Quasi-Legislative History," see 18 N.M.L. Rev. 483 (1988).

For note, "Foreseeability vs. Public Policy Considerations in Determining the Duty of Physicians to Non-Patients - Lester v. Hall," see 30 N.M.L. Rev. 351 (2000).

For article, "An Economic Model Costing 'Early Offers' Medical Malpractice Reform: Trading Noneconomic Damages for Prompt Payment of Economic Damages", see 35 N.M.L. Rev. 259 (2005).

For note and comment, "Statutes of Limitations Applied to Minors: The New Mexico Court of Appeals Balance of Competing State Interests to Favor Children," see 35 N.M. L. Rev. 535 (2005).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 61 Am. Jur. 2d Physicians, Surgeons, and Other Healers §§ 200 to 301.

Malpractice in connection with electroshock treatment, 94 A.L.R.3d 317.

Measure and elements of damages in action against physician for breach of contract to achieve particular result or cure, 99 A.L.R.3d 303.

Immunity of public officer from liability for injuries caused by negligently released individual, 5 A.L.R.4th 773.

Propriety of hospital's conditioning physician's staff privileges on physician carrying professional liability or malpractice insurance, 7 A.L.R.4th 1238.

Medical malpractice, administering or prescribing birth control pills or devices, 9 A.L.R.4th 372.

Propriety, in medical malpractice case, of admitting testimony regarding physician's usual custom or habit in order to establish nonliability, 10 A.L.R.4th 1243.

Duty of medical practitioner to warn patient of subsequently discovered danger from treatment previously given, 12 A.L.R.4th 41.

Hospital's liability for negligence in failing to review or supervise treatment given by doctor, or to require consultation, 12 A.L.R.4th 57.

Physician's liability for causing patient to become addicted to drugs, 16 A.L.R.4th 999.

Liability of doctor, psychiatrist, or psychologist for failure to take steps to prevent patient's suicide, 17 A.L.R.4th 1128.

Liability for wrongful autopsy, 18 A.L.R.4th 858.

Medical malpractice: instrument breaking in course of surgery or treatment, 20 A.L.R.4th 1179.

Malpractice liability based on prior treatment of mental disorder alleged to relate to patient's conviction of crime, 28 A.L.R.4th 712.

Medical malpractice: Liability for failure of physician to inform patient of alternative modes of diagnosis or treatment, 38 A.L.R.4th 900.

Recovery by patient on whom surgery or other treatment was performed by one other than physician who patient believed would perform it, 39 A.L.R.4th 1034.

Medical malpractice: liability based on misrepresentation of the nature and hazards of treatment, 42 A.L.R.4th 543.

Physician's liability to third person for prescribing drug to known drug addict, 42 A.L.R.4th 586.

Liability of physician, for injury to or death of third party, due to failure to disclose driving-related impediment, 43 A.L.R.4th 153.

Physician's or other healer's conduct in connection with defense of or resistance to malpractice action as ground for revocation of license or other disciplinary action, 44 A.L.R.4th 248.

Liability of hospital or clinic for sexual relationships with patients by staff physicians, psychologists, and other healers, 45 A.L.R.4th 289.

Homicide: physician's withdrawal of life supports from comatose patient, 47 A.L.R.4th 18.

Physician's tort liability for unauthorized disclosure of confidential information about patient, 48 A.L.R.4th 668.

Medical malpractice: res ipsa loquitur in negligent anesthesia cases, 49 A.L.R.4th 63.

Liability of hospital or sanitarium for negligence of physician or surgeon, 51 A.L.R.4th 235.

Medical malpractice: "loss of chance" causality, 54 A.L.R.4th 10.

Recoverability of compensatory damages for mental anguish or emotional distress for breach of service contract, 54 A.L.R.4th 901.

Tortious maintenance or removal of life supports, 58 A.L.R.4th 222.

Criminal liability under statutes penalizing abuse or neglect of the institutionalized infirm, 60 A.L.R.4th 1153.

Medical malpractice: hospital's liability for injury allegedly caused by failure to have properly qualified staff, 62 A.L.R.4th 692.

Medical practitioner's liability for treatment given child without parent's consent, 67 A.L.R.4th 511.

Applicability of res ipsa loquitur in case of multiple medical defendants - modern status, 67 A.L.R.4th 544.

Medical malpractice in performance of legal abortion, 69 A.L.R.4th 875.

Medical malpractice: presumption or inference from failure of hospital or doctor to produce relevant medical records, 69 A.L.R.4th 906.

Propriety and prejudicial effect of trial counsel's reference or suggestion in medical malpractice case that defendant is insured, 71 A.L.R.4th 1025.

Tort liability of medical society or professional association for failure to discipline or investigate negligent or otherwise incompetent medical practitioner, 72 A.L.R.4th 1148.

Liability of osteopath for medical malpractice, 73 A.L.R.4th 24.

"Dual capacity doctrine" as basis for employee's recovery for medical malpractice from company medical personnel, 73 A.L.R.4th 115.

Recoverability of compensatory damages for mental anguish or emotional distress for tortiously causing another's birth, 74 A.L.R.4th 798.

Liability for medical malpractice in connection with performance of circumcision, 75 A.L.R.4th 710.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by improper procedures during caesarean delivery, 76 A.L.R.4th 1112.

Liability for dental malpractice in provision or fitting of dentures, 77 A.L.R.4th 222.

Liability of chiropractors and other drugless practitioners for medical malpractice, 77 A.L.R.4th 273.

Liability of orthodontist for malpractice, 81 A.L.R.4th 632.

Medical malpractice: drug manufacturer's package insert recommendations as evidence of standard of care, 82 A.L.R.4th 166.

Malpractice involving hysterectomies and oophorectomies, 86 A.L.R.4th 18.

Gynecological malpractice not involving hysterectomies or oophorectomies, 86 A.L.R.4th 125.

What nonpatient claims against doctors, hospitals, or similar health care providers are not subject to statutes specifically governing actions and damages for medical malpractice, 88 A.L.R.4th 358.

Recoverability of cost of raising normal, healthy child born as result of physician's negligence or breach of contract or warranty, 89 A.L.R.4th 632.

Malpractice: Physician's duty, under informed consent doctrine, to obtain patient's consent to treatment in pregnancy or childbirth cases, 89 A.L.R.4th 799.

What patient claims against doctor, hospital, or similar health care provider are not subject to statutes specifically governing actions and damages for medical malpractice, 89 A.L.R.4th 887.

Application of "firemen's rule" to bar recovery by emergency medical personnel injured in responding to, or at scene of, emergency, 89 A.L.R.4th 1079.

Liability for incorrectly diagnosing existence or nature of pregnancy, 2 A.L.R.5th 769.

Liability of hospital, physician, or other medical personnel for death or injury to child caused by improper postdelivery diagnosis, care, and representations, 2 A.L.R.5th 811.

Liability of physician, nurse, or hospital for failure to contact physician or to keep physician sufficiently informed concerning status of mother during pregnancy, labor, and childbirth, 3 A.L.R.5th 123.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by inadequate attendance or monitoring of patient during and after pregnancy, labor, and delivery, 3 A.L.R.5th 146.

Liability of doctor or other health practitioner to third party contracting contagious disease from doctor's patient, 3 A.L.R.5th 370.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by improper choice between, or timing of, vaginal or cesarean delivery, 4 A.L.R.5th 148.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by improper procedures during vaginal delivery, 4 A.L.R.5th 210.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by improper treatment during labor, 6 A.L.R.5th 490.

Liability of hospital, physician, or other medical personnel for death or injury to mother caused by improper postdelivery diagnosis, care, and representations, 6 A.L.R.5th 534.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by improper diagnosis and treatment of mother relating to and during pregnancy, 7 A.L.R.5th 1.

Joint and several liability of physicians whose independent negligence in treatment of patient causes indivisible injury, 9 A.L.R.5th 746.

Malpractice in treatment of skin disease, disorder, blemish, or scar, 19 A.L.R.5th 563.

Arbitration of medical malpractice claims, 24 A.L.R.5th 1.

Medical malpractice in connection with breast augmentation, reduction or reconstruction, 28 A.L.R.5th 497.

Medical malpractice: negligent catheterization, 31 A.L.R.5th 1.

Medical malpractice physician's admission of negligence as establishing standard of care and breach of that standard, 42 A.L.R.5th 1.

Medical malpractice in connection with diagnosis, care, or treatment of diabetes, 43 A.L.R.5th 87.

Liability of pharmacist who accurately fills prescription for harm resulting to user, 44 A.L.R.5th 393.

Malpractice: Physician's liability for injury or death resulting from side effects of drugs intentionally administered to or prescribed for patient, 47 A.L.R.5th 433.

Malpractice in diagnosis and treatment of male urinary tract and related organs, 48 A.L.R.5th 575.

Liability of health maintenance organizations (HMOs) for negligence of member physicians, 51 A.L.R.5th 271.

Malpractice in diagnosis or treatment of meningitis, 51 A.L.R.5th 301.

Recovery for emotional distress based on fear of contracting HIV or AIDS, 59 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.

Medical-malpractice countersuits, 61 A.L.R.5th 307.

Liability of hospital or medical practitioner under doctrine of strict liability in tort, or breach of warranty, for harm caused by drug, medical instrument, or similar device used in treating patient, 65 A.L.R.5th 357.

Discovery, in medical malpractice action, of names and medical records of other patients to whom defendant has given treatment similar to that allegedly injuring plaintiff, 66 A.L.R.5th 591.

Physical injury requirement for emotional distress claim based on false positive conclusion on medical test diagnosing disease, 69 A.L.R.5th 411.

Right to recover money lent for gambling purposes, 74 A.L.R.5th 369.

Contributory negligence or comparative negligence based on failure of patient to follow instructions as defense in action against physician or surgeon for medical malpractice, 84 A.L.R.5th 619.

Malpractice by medical or health professions, contributory negligence, comparative negligence, or assumption of risk, other than failing to reveal medical history or follow instructions, as defense in action against physician or surgeon for medical malpractice, 108 A.L.R.5th 385, §§ 3[d], 5[a, c], 6, 7[b], 15.

When does medical practitioner's treatment of patient constitute "willful and malicious injury," so as to make practitioner's debt arising from such treatment nondischargeable under § 523(a)(6) of Bankruptcy Act (11 USCS § 523(a)(6)), 77 A.L.R. Fed. 918.