2023 New Mexico Statutes › Chapter 41 - Torts › Article 5 - Medical Malpractice Act › Section 41-5-15 - Commission decision required; application.

A. No malpractice action may be filed in any court against a qualifying independent provider or the independent provider's employer, master or principal based on a theory of respondeat superior or any other derivative theory of recovery before application is made to the New Mexico medical review commission and its decision is rendered; provided, however, that an independent provider and the patient may stipulate to forego the panel process.
B. This application shall contain the following:
(1) the name of the health care provider against which the claims are asserted;
(2) a short and plain statement of the grounds as to why the New Mexico medical review commission has jurisdiction over the claims being asserted;
(3) the specific date or date range when the malpractice allegedly occurred;
(4) so far as known, a brief statement of the facts supporting the patient's malpractice claim; and
(5) a statement authorizing the panel to obtain access to all medical and hospital records and information pertaining to the matter giving rise to the application and, for the purposes of its consideration of the matter only, waiving any claim of privilege as to the contents of those records. Nothing in that statement shall in any way be construed as waiving that privilege for any other purpose or in any other context, in or out of court.
History:
1953 Comp., § 58-33-15, enacted by Laws 1976, ch. 2, § 15; 2021, ch. 16, § 8.
ANNOTATIONS
The 2021 amendment,
effective January 1, 2022, provided that no malpractice action may be filed based on a theory of respondeat superior or any other derivative theory of recovery before application is made to the New Mexico medical review commission and its decision is rendered, provided that an independent provider and the patient may stipulate to forego the panel process, and revised the required contents of an application to the New Mexico medical review commission; in Subsection A, after "qualifying", deleted "health care" and added "independent", after "provider", added "or the independent provider's employer, master or principal based on a theory of respondeat superior or any other derivative theory of recovery", and after "rendered", added the remainder of the subsection; and in Subsection B, deleted former Paragraph B(1) and added new Paragraphs B(1) through B(4), and redesignated former Paragraph B(2) as Paragraph B(5).
Section does not deprive all plaintiffs of constitutional right of access to courts.
Jiron v. Mahlab
, 1983-NMSC-022, 99 N.M. 425, 659 P.2d 311.
Unconstitutional to cause undue delay.
— Where the requirement of first going before the medical review commission causes undue delay prejudicing a plaintiff by the loss of witnesses or parties, the plaintiff is unconstitutionally deprived of his right of access to the courts.
Jiron v. Mahlab
, 1983-NMSC-022, 99 N.M. 425, 659 P.2d 311.
Decision by medical review commission was not jurisdictional prerequisite
to the filing of a complaint in court against a qualified health care provider for medical malpractice.
Rupp v. Hurley
, 2002-NMCA-023, 131 N.M. 646, 41 P.3d 914, cert. denied, 131 N.M. 737, 42 P.3d 842.
Subsection A procedural and not binding.
— The statutory provision that claimants against health care providers first submit their claims to the commission before filing suit is a purely procedural requirement and cannot, therefore, be deemed binding; the procedural provisions of the Medical Malpractice Act, to the extent of denying plaintiff access to the courts, shall not control where the defendant has not been prejudiced.
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.
Not necessary to bring each allegation before commission.
— Under this section, it is not necessary that each of plaintiff's counts, nor each of plaintiff's allegations, be presented to the medical review commission, as the district court has subject matter jurisdiction over medical malpractice and battery claims not submitted to the commission where application satisfied requirements of this section.
Trujillo v. Puro
, 1984-NMCA-050, 101 N.M. 408, 683 P.2d 963, cert. denied, 101 N.M. 362, 683 P.2d 44.
Claims not necessary to bring before commission.
— 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.
Excused failure to file claim with commission.
— Misinformation supplied by the office of the state superintendent of insurance, regarding who were qualified health care providers, excused plaintiff's failure to file claim with the commission before filing a complaint in district court.
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.
Statute of limitation tolled regardless of outcome.
— This section, which tolls the statute of limitations period upon submission of a case to the commission, should be enforced according to its terms whether the commission's determination is that the health care provider is not qualified and the claim is consequently rejected, or that the health care provider is qualified and the claim is resolved on its merits.
Grantland v. Lea Reg'l Hosp.
, 1990-NMSC-076, 110 N.M. 378, 796 P.2d 599.
Application was sufficient to toll statute of limitations.
— Where plaintiff filed an application to the New Mexico medical review commission (MRC) alleging that as a result of medical negligence plaintiff's pregnancy was aborted, the district court erred in dismissing the complaint against defendant on the basis that plaintiff's application was not specific enough in making allegations against defendant to trigger the Medical Malpractice Act's, NMSA 1978, §§ 41-5-1 to -29, tolling provision on plaintiff's claims against defendant. Plaintiff's application to the MRC clearly named defendant, and the application recited a brief statement of the facts describing the dates and the circumstances, as far as they were known, of the acts and omissions of named employees and physicians working in defendant's hospitals.
Romero v. Lovelace Health Sys., Inc
., 2020-NMSC-001,
rev'g
A-1-CA-35177, mem. Op. (N.M. Ct. App. Oct. 26, 2017) (non-precedential).
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).