2024 New Mexico Statutes
Chapter 41 - Torts
Article 5 - Medical Malpractice Act
Section 41-5-3 - Definitions.
As used in the Medical Malpractice Act:
A. "advisory board" means the patient's compensation fund advisory board;
B. "control" means equity ownership in a business entity that:
(1) represents more than fifty percent of the total voting power of the business entity; or
(2) has a value of more than fifty percent of that business entity;
C. "fund" means the patient's compensation fund;
D. "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, physician's assistant, certified nurse practitioner, clinical nurse specialist or certified nurse-midwife or a business entity that is organized, incorporated or formed pursuant to the laws of New Mexico that provides health care services primarily through natural persons identified in this subsection. "Health care provider" does not mean a person or entity protected pursuant to the Tort Claims Act [41-4-1 to 41-4-27 NMSA 1978] or the Federal Tort Claims Act;
E. "hospital" means a facility licensed as a hospital in this state that offers in-patient services, nursing or overnight care on a twenty-four-hour basis for diagnosing, treating and providing medical, psychological or surgical care for three or more separate persons who have a physical or mental illness, disease, injury or rehabilitative condition or are pregnant and may offer emergency services. "Hospital" includes a hospital's parent corporation, subsidiary corporations or affiliates if incorporated or registered in New Mexico; employees and locum tenens providing services at the hospital; and agency nurses providing services at the hospital. "Hospital" does not mean a person or entity protected pursuant to the Tort Claims Act or the Federal Tort Claims Act;
F. "independent outpatient health care facility" means a health care facility that is an ambulatory surgical center, urgent care facility or free-standing emergency room that is not, directly or indirectly through one or more intermediaries, controlled or under common control with a hospital. "Independent outpatient health care facility" includes a facility's employees, locum tenens providers and agency nurses providing services at the facility. "Independent outpatient health care facility" does not mean a person or entity protected pursuant to the Tort Claims Act or the Federal Tort Claims Act;
G. "independent provider" means a doctor of medicine, doctor of osteopathy, chiropractor, podiatrist, nurse anesthetist, physician's assistant, certified nurse practitioner, clinical nurse specialist or certified nurse-midwife who is not an employee of a hospital or outpatient health care facility. "Independent provider" does not mean a person or entity protected pursuant to the Tort Claims Act or the Federal Tort Claims Act. "Independent provider" includes:
(1) a health care facility that is:
(a) licensed pursuant to the Public Health Act [Chapter 24, Article 1 NMSA 1978] as an outpatient facility;
(b) not an ambulatory surgical center, urgent care facility or free-standing emergency room; and
(c) not hospital-controlled; and
(2) a business entity that is not a hospital or outpatient health care facility that employs or consists of members who are licensed or certified as doctors of medicine, doctors of osteopathy, chiropractors, podiatrists, nurse anesthetists, physician's assistants, certified nurse practitioners, clinical nurse specialists or certified nurse-midwives and the business entity's employees;
H. "insurer" means an insurance company engaged in writing health care provider malpractice liability insurance in this state;
I. "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 that 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;
J. "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;
K. "occurrence" means all injuries to a patient caused by health care providers' successive acts or omissions that combined concurrently to create a malpractice claim;
L. "outpatient health care facility" means an entity that is hospital-controlled and is licensed pursuant to the Public Health Act as an outpatient facility, including ambulatory surgical centers, free-standing emergency rooms, urgent care clinics, acute care centers and intermediate care facilities and includes a facility's employees, locum tenens providers and agency nurses providing services at the facility. "Outpatient health care facility" does not include:
(1) independent providers;
(2) independent outpatient health care facilities; or
(3) individuals or entities protected pursuant to the Tort Claims Act or the Federal Tort Claims Act;
M. "patient" means a natural person who received or should have received health care from a health care provider, under a contract, express or implied; and
N. "superintendent" means the superintendent of insurance.
History: 1953 Comp., § 58-33-3, enacted by Laws 1976, ch. 2, § 3; 1977, ch. 284, § 1; 2021, ch. 16, § 1; 2021 (2nd S.S.), ch. 5, § 1; 2023, ch. 207, § 1.
ANNOTATIONSRepeals. — 2021 (2nd S.S.), ch. 5, § 3 repealed Laws 2021, ch. 16, § 1, effective January 1, 2022.
The 2023 amendment, effective June 16, 2023, defined "control" and "independent outpatient health care facility", and revised the definitions of "health care provider," "hospital," "independent provider" and "outpatient health care facility"; added a new Subsection B and redesignated former Subsections B through D as Subsections C through E, respectively; in Subsection D, added "'Health care provider' does not mean a person or entity protected pursuant to the Tort Claims Act or the Federal Tort Claims Act"; added a new Subsection F and redesignated former Subsections E through L as Subsections G through N, respectively; in Subsection G, added "'Independent provider' does not mean a person or entity protected pursuant to the Tort Claims Act or the Federal Tort Claims Act"; added a new Paragraph G(1); and in Subsection L, after "means an entity that is", added "hospital-controlled and is", and added Paragraphs L(2) and L(3).
The 2021 (2nd S.S.) amendment, effective January 1, 2022, defined "advisory board," "fund," "hospital," "independent provider," "occurrence," and "outpatient health care facility," and modified the definition of "health care provider," as used in the Medical Malpractice Act; added new Subsections A and B and redesignated former Subsection A as Subsection C; in Subsection C, after "physician's assistant", added "certified nurse practitioner, clinical nurse specialist or certified nurse-midwife or a business entity that is organized, incorporated or formed pursuant to the laws of New Mexico that provides health care services primarily through natural persons identified in this subsection"; added new Subsections D and E and redesignated former Subsections B through D as Subsections F through H, respectively; added new Subsections I and J and redesignated former Subsections E and F as Subsections K and L, respectively; and in Subsection L, after "superintendent of insurance", deleted "of this state".
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.
