2020 New Mexico Statutes
Chapter 41 - Torts
Article 5 - Medical Malpractice Act
Section 41-5-5 - Qualifications.

A. To be qualified under the provisions of the Medical Malpractice Act, a health care provider shall:

(1) establish its financial responsibility by filing proof with the superintendent that the health care provider is insured by a policy of malpractice liability insurance issued by an authorized insurer in the amount of at least two hundred thousand dollars ($200,000) per occurrence or for an individual health care provider, excluding hospitals and outpatient health care facilities, by having continuously on deposit the sum of six hundred thousand dollars ($600,000) in cash with the superintendent or such other like deposit as the superintendent may allow by rule or regulation; provided that in the absence of an additional deposit or policy as required by this subsection, the deposit or policy shall provide coverage for not more than three separate occurrences; and

(2) pay the surcharge assessed on health care providers by the superintendent pursuant to Section 41-5-25 NMSA 1978.

B. For hospitals or outpatient health care facilities electing to be covered under the Medical Malpractice Act, the superintendent shall determine, based on a risk assessment of each hospital or outpatient health care facility, each hospital's or outpatient health care facility's base coverage or deposit and additional charges for the patient's compensation fund. The superintendent shall arrange for an actuarial study, as provided in Section 41-5-25 NMSA 1978.

C. A health care provider not qualifying under this section shall not have the benefit of any of the provisions of the Medical Malpractice Act in the event of a malpractice claim against it.

History: 1978 Comp., § 41-5-5, enacted by Laws 1992, ch. 33, § 2.

Repeals and reenactments. — Laws 1991, ch. 264, § 2 repealed former 41-5-5 NMSA 1978, as amended by Laws 1991, ch. 264, § 1, and enacted a new 41-5-5 NMSA 1978, effective July 1, 1992.

Laws 1992, ch. 33, § 2 repealed former 41-5-5 NMSA 1978, as amended by Laws 1991, ch. 264, § 1, and as enacted by Laws 1991, ch. 264, § 2, and enacted a new section, effective April 1, 1992.

Applicability. — Laws 1992, ch. 33, § 17, effective March 6, 1992, makes the provisions of the act applicable only to occurrences arising on and after April 1, 1994.

Temporary provisions. — Laws 1991, ch. 264, § 12, effective July 1, 1991, provided that a health care provider who qualified under the provisions of the Medical Malpractice Act prior to July 1, 1991, shall remain subject to those terms and provisions of the act which existed on that date of qualification and that, upon the date of renewal of the health care provider's policy of malpractice liability insurance or continuation of coverage for those health care providers who have a cash deposit with the superintendent of insurance, those provisions of the act effective on those dates shall apply and the provisions of Subsection B of 41-5-6.1 NMSA 1978 shall apply for the purposes of base premium calculations.

Statute of limitations. — The Medical Malpractice Act's statute of limitations, 41-5-13 NMSA 1978, does not apply to health care providers that have not qualified under Subsection A of this section. Roberts v. Southwest Cmty. Health Servs., 1992-NMSC-042, 114 N.M. 248, 837 P.2d 442.

Grant of summary judgment in favor of the hospital was reversed even though summary judgment was granted in favor of the doctor; the hospital could not take advantage of the statute of limitation in 41-5-13 NMSA 1978, as it was not a qualified healthcare provider under Subsection C of this section. Juarez v. Nelson, 2003-NMCA-011, 133 N.M. 168, 61 P.3d 877, overruled on other grounds by Tomlinson v. George, 2005-NMSC-020, 138 N.M. 34, 116 P.3d 105.

Accrual of cause of action where provider has not qualified. — In medical malpractice actions where the health care provider is not qualified under the Medical Malpractice Act [Chapter 41, Article 5 NMSA 1978], the cause of action accrues when the plaintiff knows or with reasonable diligence should have known of the injury and its cause. Roberts v. Southwest Cmty. Health Servs., 1992-NMSC-042, 114 N.M. 248, 837 P.2d 442.

Superintendent to maintain list of qualified providers. — This section creates in the superintendent of insurance some requirement to maintain a list of those whose qualified status affects suits against them. Otero v. Zouhar, 1985-NMSC-021, 102 N.M. 482, 697 P.2d 482, overruled on other grounds by Grantland v. Lea Reg'l Hosp., 1990-NMSC-076, 110 N.M. 378, 796 P.2d 599.

Federal hospital. — Although a federal hospital did not file proof of its financial responsibility as required by Paragraph A(1) and never paid into the patient's compensation fund as required by Paragraph A(2), it is a "qualified health care provider" under this section, as the financial responsibility of the United States is assured and its failure to contribute to a compensation fund is immaterial because (unlike qualified providers) it must pay its liabilities without resort to the compensation fund. Haceesa v. United States, 309 F.3d 722 (10th Cir. 2002).

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

For comment on access to the courts and the Medical Malpractice Act: Jiron v. Mahlab, see 14 N.M.L. Rev. 503 (1984).