The statute of limitations represents how much time someone has to start their case.
It is very important to know and keep track of this date.
If you try to begin your claim after the statute of limitations expires, the court will likely dismiss it.
What Is the Medical Malpractice Statute of Limitations in New Mexico?
The medical malpractice statute of limitations in New Mexico is generally three years from the date of the malpractice. Meaning, if you are the victim of a negligent surgery on January 1, 2021, you would have until January 1, 2024, to institute a medical malpractice lawsuit.
However, there are many factors to consider when calculating the statute of limitations. For example, the statute of limitations tolls (or in other words, stops) if you are a minor. Specifically, if a malpractice victim is under eighteen years old, the statute of limitations tolls until the child turns eighteen (18) and expires three years later, when the child turns twenty-one (21).
So if the incident of medical malpractice happened to you as a newborn, you (the newborn) might have up to twenty one years to begin your malpractice claim. However, the same would not be true of your parents. Because your parents were likely older than eighteen at the time you were born, they would only have three years from the date of your birth to file their own independent claims for injuries they personally suffered as a result of your malpractice (such as loss of companionship, past medical expenses, etc.).
When Does the Statute of Limitations Begin – The New Mexico Medical Malpractice Act and the Discovery Rule
It is important to know when your statute of limitations begins to run. Ultimately, in New Mexico, that is usually contingent upon whether you are suing a “qualified” healthcare provider or not.
Under the New Mexico Medical Malpractice Act, the statute of limitations normally begins to run at the time the malpractice occurred, regardless of your knowledge of the injury. Importantly, this applies only to an individual or facility that is “qualified” under the Medical Malpractice Act. To “qualify” under the Medical Malpractice Act, the medical provider pays a surcharge and files proof of liability insurance or deposits a predetermined amount with the superintendent of insurance.
When you become “qualified,” the statute of limitations is three years from the date of the malpractice, regardless of your knowledge of being injured. In short, the Act protects “qualified” providers from malpractice lawsuits after three years from the date of the event, even if you had no knowledge you were injured at the time. So if you discover your injury a year after a botched procedure, and the surgeon was “qualified”, you have only two years left to file a claim.
However, when a medical provider fails to “qualify” under the Medical Malpractice Act, the statute of limitations is subject to the “Discovery Rule.” Meaning, the statute of limitations begins on the date you knew or should have known about your injury. So, going back to the previous example, you are the victim of a botched procedure, but don’t discover this until one year later. If the surgeon is not “qualified” under the Medical Malpractice Act, you would arguably have three years from the date you discovered your injury to file a lawsuit.
If the doctor is a government employee or the facility is a public entity, the statute of limitations is only two years. The malpractice victim must file notice with the government entity within 90 days of the event. For wrongful death claims, the notice must be filed within six months. Your attorney can help determine whether the health care provider is qualified under the Act, or is a public entity.
Fraudulent concealment is when a provider tries to hide the evidence of their malpractice from the patient. For example, a doctor does not properly diagnose a serious illness, the patient’s condition worsens, and the doctor tries to hide the evidence of their mistake, so the patient runs out of time to file a malpractice claim. If the three years has already run but the malpractice victim can prove fraudulent concealment, the statute of limitations will begin from the time they discovered the malpractice. It is much like the discovery rule, except without an exception for “qualified” health care providers. .
Because it can be complicated to identify the statute of limitations period, it’s important to reach out to a medical malpractice attorney as soon as possible if you think you might have been the victim of malpractice.
The Medical Review Commission
Before you can file a medical malpractice claim in court, you must first apply to the New Mexico Medical Review Commission.
The Commission is a panel of six people, three doctors and three lawyers, that analyze each incident of alleged malpractice before a lawsuit can be filed.
The Commission will grant a hearing to issue an opinion on your claim. Both sides will be able to present testimony and evidence.
The panel must decide whether there is “substantial evidence” of malpractice and whether there was a “reasonable medical probability” that it caused your injury. The ultimate decision of the Commission is not admissible in court, but if the panel decides in your favor, the Commission will help you hire a medical expert witness for your case.
For purposes of the statute of limitations, the time to file a lawsuit is tolled (meaning the clock stops) when you apply to the Medical Review Commission. Meaning, if your statute of limitations ends on January 2, 2021, but you file an application with the Commission on January 1, 2021, your statute of limitations is tolled until after a final decision is reached.
Contact Poulos & Coates for Help with Your Medical Malpractice Case
Poulos & Coates specializes in medical malpractice lawsuits in New Mexico. We have prosecuted claims against doctors, hospitals, clinics, pharmacies, medical device manufacturers, and other entities. Our areas of practice range widely, from birth injuries to wrongful death to anesthesia malpractice.
Medical malpractice lawsuits are complicated, and you need experience on your side. The quality of your attorney could directly impact your compensation. Contact us today to discuss your options.