New Mexico Medical Malpractice Law
If the medical malpractice that harmed you or your loved one occurred in New Mexico, your rights likely fall under the New Mexico Medical Malpractice Act. This law defines which medical professionals are “qualified healthcare providers” by maintaining a certain level of insurance and paying a surcharge to fund the New Mexico Patient Compensation Fund.
As qualified healthcare providers, medical professionals are protected by limits on their liability and certain procedural requirements. The Act caps each person’s damages at $600,000 per occurrence. However, this cap does not include medical expenses and punitive damages. Medical expenses are not recoverable. Instead, your future medical expenses are covered by the provider’s malpractice insurance or the Patient Compensation Fund.
When a medical professional is not a qualified healthcare provider, they are not protected by the Act’s damages caps and procedural protections.
If the at-fault medical provider is employed by a government entity, your rights and options are addressed by the New Mexico Tort Claims Act. Generally, government entities and employees have immunity from personal injury and wrongful death liability. However, there are various exceptions, allowing for medical malpractice by a government employee.
When your claim is against a government employee or entity, you may need to provide notice of a claim before filing a lawsuit. After moving through the government’s administrative process, you may resolve your claim or file a lawsuit.
It also is important to note damages are capped under the Torts Claims Act at $300,000 for medical bills, $400,000 for other damages, and $200,000 for property damage. There also is an overarching cap of $750,000 per claim.
Medical Malpractice in Texas
Texas medical malpractice laws differ considerably. Before you can file a medical malpractice lawsuit in Texas, you must provide written notice of your claim to each healthcare provider you would name in the lawsuit. You must give them at least 60 days’ notice before you file, sent through certified mail with a return receipt requested.
You also must obtain and serve a medical expert report to each defendant within 120 days of filing the lawsuit. This affidavit provides a qualified medical expert’s opinion regarding the applicable standard of care, whether the defendant(s) failed to uphold the standard of care and the relationship between that failure and your injuries.
The law may entitle you to file a medical malpractice lawsuit against a medical provider, but allowable damages are limited. You can receive only up to $250,000 in non-economic damages from individual healthcare providers.
Texas does not apply a cap to economic damages. You can fight to obtain the full value of your past and future medical expenses, lost wages, and other costs.
Not Every Mistake is Medical Malpractice
What is sometimes difficult to accept is that a medical mistake, poor outcome, or side effect is not necessarily negligence. Medicine is a science, but it is far from perfect. Physicians often must make tough calls and use their best judgment in making a diagnosis and prescribing a treatment plan.
It is only when physicians fail to utilize their knowledge and skills to uphold the generally accepted standard of care that they are negligent. This failure to adhere to the standard of care may be carelessness or intentional disregard. In either case, the provider may be liable for any injuries breach of care causes you.
To successfully bring a medical malpractice claim, you will likely need a medical expert to establish the standard of care your provider should have adhered to. This standard may depend on the area of medicine, such as cardiology, oncology, or gynecology.
That expert must be able to testify regarding how your provider failed to adhere to that standard, specifically. For example, did the provider fail to diagnose you because they did not run a necessary diagnostic test? Or, did your child sustain a birth injury because the nurses and doctors failed to monitor your child properly and notice signs of distress?
Types of Medical Malpractice
Common types of medical negligence claims include:
- Failure to Diagnose
- Delayed Diagnosis
- Failure to Treat
- Gynecological Negligence
- Birth Injuries
- Surgical Errors
- Anesthesia Errors
- Medication Errors
- Pharmaceutical Negligence
- Dental Errors
- Hospital Negligence
- Hospital-Acquired Infections
Medical Malpractice Damages
If you are able to establish that one or more medical providers are responsible for medical negligence and your injuries, then the law entitles you to compensation for your economic and non-economic damages.
- Past and future medical expenses
- Lost wages
- Pain and suffering
- Emotional distress
- Scarring and disfigurement
- Disability/physical limitations
- Reduced earning capacity
- Reduced quality of life
Negotiating a medical malpractice lawsuit settlement is difficult in several ways. In both New Mexico and Texas, you face caps that limit how much you can receive for your pain and suffering in medical malpractice claims. The caps apply to non-economic damages, but typically, the majority of your non-economic damages are pain and suffering.
Fatal Medical Malpractice
Through a medical malpractice wrongful death claim, certain surviving family members may be entitled to compensation. Who is entitled to compensation and how it is distributed differs in Texas and New Mexico, as well as who is entitled to file a wrongful death lawsuit.
Medical Malpractice Insurance
If you are injured by a medical provider’s negligence, that provider may have a malpractice insurance policy to cover your injuries and damages. However, physicians and other medical providers are not required to carry it. In New Mexico, if a provider does carry at least a $200,000 policy, then that provider is a qualified healthcare provider and granted certain statutory benefits, like limited liability up to $200,000 per claim.
One of our first steps will be to review the medical provider and their employer’s insurance coverage. Though the law does not require med mal insurance, many hospitals or other medical facilities and employers require their employees to be covered.
If insurance is available, this can be helpful in negotiating a medical malpractice settlement.
Determining Medical Malpractice Liability
Determining liability for the harm done to you or your loved one is an essential step in bringing a medical malpractice claim. You may have suffered a complication or worsening condition. You may have obvious evidence of your injury or the impact on your life may be subtle. In any case, you have to be able to connect your injury to a medical provider’s negligence to receive compensation.
An expert in the appropriate area of medicine can evaluate your medical provider’s conduct in relation to the applicable standard of care. The expert can then testify regarding how your provider’s conduct failed to meet the standard.
The next step is for the medical expert to connect how your provider’s failure to uphold the standard of care resulted in your injury. The harm you have suffered must be a direct and proximate result of the medical provider’s negligence.
This is known as cause in fact, or actual cause, and proximate cause. Under proximate cause, the negligence and your injuries must be sufficiently related. Another way to look at it is that the injuries you suffered were a foreseeable risk of the negligent conduct.
Medical Malpractice Statute of Limitations
In Texas, you have two years to file a medical malpractice claim. In New Mexico, you have three years.
If you discovered that your injury was the result of medical malpractice months or years after the medical treatment or service, call a lawyer right away.
In Texas, the “Discovery Rule” only delays the start of the statute of limitations in the narrowest of circumstances.
Also, the Discovery Rule does not apply to New Mexico medical malpractice claims when the medical professional is a qualified healthcare provider under the New Mexico Medical Malpractice Act.
Medical Malpractice Claims Process
Depending on facts involved and the state where you are filing, there are various factors to consider when pursuing a medical malpractice claim. Without proper guidance, you may not follow the appropriate procedures or miss important deadlines, which will waste your time and efforts.
Generally, the medical malpractice claims process involves:
- Collecting evidence of your injury;
- Hiring a medical expert;
- Determining a medical provider’s liability for your injury;
- Determining your medical provider’s insurance coverage;
- In New Mexico, determining if the provider is a “qualified healthcare provider”;
- Calculating the value of your economic and non-economic damages;
- Filing a medical malpractice lawsuit before the statute of limitations runs out;
- Entering into medical malpractice settlement negotiations with the insurer;
- Resolving your claim or taking it to trial.
If your claim is in Texas, there are additional steps to the process. These include providing the liable medical provider(s) with written notice prior to filing suit and retaining a medical expert as soon as possible to draft an expert opinion.
Medical Malpractice Lawsuit Process
Many medical malpractice cases are resolved with an insurance settlement. However, that does not mean litigation is not a central aspect of medical malpractice claims. Filing a medical malpractice lawsuit involves:
- Filing the complaint;
- Serving the defendant medical provider(s) with notice;
- Receiving the defendants’ response;
- Amending the complaint if necessary;
- Going through discovery;
- Analyzing the additional evidence we obtain and how it impacts your claim;
- Asking the judge to make substance and procedural decisions before trial through motions;
- Entering into settlement negotiations;
- Agreeing to a settlement and dismissing the case or scheduling a pre-trial conference;
- Going through voir dire to select a jury; and
- Presenting your case at trial.