2023 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, except an independent outpatient health care facility, 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 fifty thousand dollars ($250,000) per occurrence or by having continuously on deposit the sum of seven hundred fifty thousand dollars ($750,000) in cash with the superintendent or such other like deposit as the superintendent may allow by rule; provided that hospitals and hospital-controlled outpatient health care facilities that establish financial responsibility through a policy of malpractice liability insurance may use any form of malpractice insurance; and provided further that for independent providers, 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. To be qualified under the provisions of the Medical Malpractice Act, an independent outpatient health care facility 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 five hundred thousand dollars ($500,000) per occurrence or by having continuously on deposit the sum of one million five hundred thousand dollars ($1,500,000) in cash with the superintendent or other like deposit as the superintendent may allow by rule; provided that for independent outpatient health care facilities, 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 independent outpatient health care facilities by the superintendent pursuant to Section 41-5-25 NMSA 1978.
C. For hospitals or hospital-controlled 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 hospital-controlled outpatient health care facility, each hospital's or hospital-controlled outpatient health care facility's base coverage or deposit and additional charges for the fund. The superintendent shall arrange for an actuarial study before determining base coverage or deposit and surcharges.
D. 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; provided that beginning July 1, 2021, hospitals and hospital-controlled outpatient health care facilities shall not participate in the medical review process, and beginning January 1, 2027, hospitals and hospital-controlled outpatient health care facilities shall have the benefits of the other provisions of the Medical Malpractice Act except participation in the fund.
History:
1978 Comp., § 41-5-5, enacted by Laws 1992, ch. 33, § 2; 2021, ch. 16, § 2; 2023, ch. 207, § 2.
ANNOTATIONS
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.
The 2023 amendment,
effective June 16, 2023, provided separate qualification provisions for independent outpatient health care facilities; in Subsection A, in the introductory clause, after "health care provider", added "except an independent outpatient health care facility"; in Paragraph A(1), after "provided that hospitals and", added "hospital-controlled"; added a new Subsection B; redesignated former Subsections B and C as Subsections C and D, respectively; in Subsection C, added "hospital-controlled" preceding each occurrence of "outpatient health care facility" and "outpatient health care facilities"; and in Subsection D, added "hospital-controlled" preceding each occurrence of "outpatient health care facilities".
The 2021 amendment,
effective January 1, 2022, raised the required malpractice insurance from two hundred thousand dollars to two hundred fifty thousand dollars, raised the required amount of cash deposited with the superintendent of insurance from six hundred thousand dollars to seven hundred fifty thousand dollars; provided additional duties for the superintendent of insurance; provided that hospitals and outpatient health care facilities shall not participate in the medical review process, and that hospitals and outpatient health care facilities shall not participate in the patient's compensation fund beginning in the year 2027; in Subsection A, Paragraph A(1), after "at least", changed "two hundred thousand dollars ($200,000)" to "two hundred fifty thousand dollars ($250,000)", after "per occurrence or", deleted "for an individual health care provider, excluding hospitals and outpatient health care facilities", after "deposit the sum of", changed "six hundred thousand dollars ($600,000)" to "seven hundred fifty thousand dollars ($750,000)", and after "provided that", added "hospitals and outpatient health care facilities that establish financial responsibility through a policy of malpractice liability insurance may use any form of malpractice insurance; and provided further that for independent providers"; in Subsection B, after "additional charges for the", deleted "patient's compensation", and after "actuarial study", deleted "as provided in Section 41-5-25 NMSA 1978" and added "before determining base coverage or deposit and surcharges"; and in Subsection C, after "malpractice claim against it", added the remainder of the subsection.
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. Zouha
r, 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).