New Mexico Medical Malpractice Summary

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Statutes of Limitations

In New Mexico, any medical malpractice action for injury or wrongful death must be brought within three years from the date when the alleged malpractice occurred. N.M. Stat. Ann. § 41-5-13 (Michie 1996). A minor under the age of six has until his ninth birthday to bring a medical malpractice action. Id.

The New Mexico Supreme Court has ruled that under certain circumstances the application of the statute is unconstitutional. In the case of a child who suffered a cardiac arrest two years and 280 days after the last day of treatment, the court ruled that 85 days was an unfairly short period of time between the injury and the running of the statute. Garcia v. La Farge, 119 N.M. 532, 893 P.2d 428 (1995).

In addition, this statute does not apply to those who have not become “qualified health care providers” by participating in the state-sponsored excess insurance program. Roberts v. Southwest Health Service, 114 N.M. 248, 837 P.2d 442 (1992). They are governed by the three-year general personal injury statute, N.M. Stat. Ann. § 37-1-8 (Michie 1990), which runs from the date the claimant knew or should have known of the injury and is subject to all tolling statutes. Id. (See discussion of state program at Patient Compensation Funds and Physician Insurance.)

Contributory or Comparative Negligence

In Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981), the Supreme Court of New Mexico adopted the pure form of comparative negligence. Thus, a claimant’s negligence will never bar recovery but, instead, will only reduce the claimant’s recovery in proportion to his fault.

Joint and Several Liability

In any lawsuit to which comparative negligence applies, a tortfeasor is only liable for that portion of the judgment equal to his share of fault. N.M. Stat. Ann. § 41-3A-1 (Michie 1996). However, joint tortfeasors who stand in such a relation with one another that one tortfeasor’s liability may result in the vicarious imposition of liability on the other are jointly and severally liable for that portion of any judgment equal to their combined share of fault. N.M. Stat. Ann. § 41-3-2 (Michie 1996).


Under New Mexico law, joint tortfeasors are afforded the right to contribution. N.M. Stat. Ann. § 41-3-2 (Michie 1996). A contribution action can generally be brought within the principal action or in a separate proceeding. See Sanford v. Stoll, 86 N.M. 6, 518 P.2d 1210 (N.M. Ct. App. 1974) (holding that a defendant whose cross-claim for contribution was involuntarily dismissed has the right to seek contribution in a separate action). However, to the extent that the division of damages between joint tortfeasors is now determined by their relative degrees of fault under § 41-3-2, a tortfeasor’s liability is unaffected by the injured party’s settlement with another. There is no right to contribution in such a case because each tortfeasor is severally responsible for his share only and the jury will consider the fault of the settling party in determining that share. Sanchez v. Clayton, 117 N.M. 761, 877 P.2d 567 (1994).

Vicarious Liability

In New Mexico, hospitals are not generally liable for the acts of independent contractors who are members of the medical staff, only for their employees. However, whether a hospital exercises enough control over a physician to make him in fact an employee may be a question for the jury. Reynolds v. Swigert, 102 N.M. 504, 697 P.2d 504 (Ct. App. 1984). In addition, for physicians in the emergency department, New Mexico has also recognized that liability may be created by apparent agency. Houghland v. Grant, 119 N.M. 422, 891 P.2d 563 (Ct. App. 1995).

Expert Testimony

New Mexico generally requires the use of expert testimony to prove a claim for medical malpractice, unless the alleged negligence is so apparent as to be within a layman’s comprehension. Toppino v. Herhahn, 100 N.M. 564, 673 P.2d 1297 (1983); Eis v. Chesnut, 96 N.M. 45, 627 P.2d 1244 (Ct. App.), cert. denied, 96 N.M. 116, 628 P.2d 686 (1981).

Damage Caps

In medical malpractice actions against a qualified health care provider tried before a jury, a $600,000 limit ($500,000 for incidents prior to April 1, 1995) applies to all damages, with the exception of punitive damages and damages for medical expenses. N.M. Stat. Ann. § 41-5-6 (Michie 1996). (See Patient Compensation Funds and Physician Insurance for a further limitation on the liability of qualified health care providers.) The $600,000 limit on damages does not include future medical expenses, which are not covered by monetary damages. If the jury finds that a plaintiff requires future medical care, the expense of that care must be paid as incurred. N.M. Stat. Ann. § 41-5-7 (Michie 1989 & Supp. 1997). (See Periodic Payments.)

Statutory Cap on Attorneys’ Fees

There is no New Mexico statute limiting attorneys’ fees in medical malpractice actions.

Periodic Payments

Under the system applicable to qualified health care providers, a claimant’s future medical expenses must be paid as they are incurred. N.M. Stat. Ann. § 41-5-7 (Michie 1996). If the jury finds that a plaintiff requires future medical care, the defendant must pay for that care until his total payment for damages and medical care equals $200,000, after which the patient’s compensation fund must pay. Id. (See Patient Compensation Funds and Physician Insurance.)

Collateral Source Rule

New Mexico recognizes the collateral source rule; thus, evidence of a claimant’s receipt of payments from collateral sources is inadmissible. Hansen v. Skate Ranch Inc., 97 N.M. 486, 641 P.2d 517 (Ct. App. 1982).

Pre-Judgment Interest

Pre-judgment interest at up to ten percent from the date of service of process may be granted in the court’s discretion. N.M. Stat. Ann. § 56-8-4 (Michie 1996).

Patient Compensation Funds and Physician Insurance

Under New Mexico law, a patient’s compensation fund, established pursuant to N.M. Stat. Ann. § 41-5-25 (Michie Supp. 1997), is financed by a surcharge on all qualified health care providers. The excess over $200,000 per occurrence of any judgment obtained in a medical malpractice action against a qualified health care provider will be paid by the patient’s compensation fund. N.M. Stat. Ann. § 41-5-6 (Michie 1996). However, the patient’s compensation fund does not cover a health care provider’s liability for punitive damages. Id. To qualify under the plan, a health care provider must pay the surcharge and carry liability insurance with limits of $200,000 per occurrence or deposit an equivalent amount of security with the Superintendent of Insurance. N.M. Stat. Ann. § 41-5-5 (Michie 1996).


While the New Mexico legislature has generally granted the state and its political subdivisions immunity, such immunity is inapplicable to medical malpractice actions if an employee of the state or any one of its political subdivisions was negligent while acting within the scope of his employment. N.M. Stat. Ann. §§ 41-4-9 and 41-4-10 (Michie 1996).

Notwithstanding the waiver of immunity, political entities and their employees are immune from liability for punitive damages. N.M. Stat. Ann. § 41-4-19 (Michie 1996). Further, their liability for compensatory damages is limited to $300,000 for medical expenses arising out of a single occurrence and $400,000 per person and $750,000 in total for other damages arising out of a single occurrence. Id.

The statute permits governmental entities to purchase liability insurance for the activities of health care students, and such coverage does not effect a waiver of immunity. N.M. Stat. Ann. § 41-4-29 (Michie 1996).


Any claim for medical malpractice must first be reviewed by the state’s medical review commission. N.M. Stat. Ann. § 41-5-15 (Michie 1996). The commission’s findings are neither binding nor admissible in any subsequent court proceedings. § 41-5-20 (Michie 1996).

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Revision Date: February 6, 1998