Medical Malpractice

Future Medical Expenses in New Mexico Medical Malpractice Cases

By David Goguen, J.D., University of San Francisco School of Law
When an injured patient is entitled to compensation for future medical care in New Mexico, state law specifies how those expenses will be paid.

New Mexico is unique among states in the way it handles a fairly common aspect of medical malpractice cases: how the injured patient will be compensated for the cost of future medical care made necessary by the defendant health care provider’s medical treatment mistake.

Under New Mexico law (specifically, New Mexico Statutes Annotated section 41-5-7), once the defendant health care provider’s liability is established in a medical malpractice case, the injured patient will be compensated for any necessary future medical care related to the malpractice, but payment will be made to the patient "as expenses are incurred." In other words, a successful plaintiff in a medical malpractice case will not be given a lump sum (or any other kind of anticipatory payment) for the cost of future medical care, but will be compensated for that care as it is given. In a certain light, this law can be seen as tort reform measure enacted by New Mexico lawmakers.

(Learn more: Do I have a medical malpractice case?)

This treatment of future medical expenses in medical malpractice cases applies whether or not the lawsuit is resolved via settlement between the parties -- in which the need for ongoing care is agreed upon -- or the case goes to trial and a verdict is handed down by a jury. But if a settlement is reached, the parties are free to agree to different terms when it comes to the provision of future medical care. If the case does go to a jury, its members will be asked only whether the plaintiff will require future medical care as a result of the defendant’s negligence; no dollar amount will be placed on this care, and no evidence concerning the value of future care will be considered.

Care will be provided "as long as medical or surgical attention is reasonably necessary," and for all future treatment "directly or indirectly made necessary by the health care provider's malpractice," according to section 41-5-7. The statute does explicitly state that the patient will be entitled only to a "semi-private room" if hospitalization is necessary.

The Rule Applies In Most -- Not All -- Cases

It's important to note that this rule only applies to a medical malpractice lawsuit against a health care provider who qualifies for these kinds of statutory protections under New Mexico's Medical Malpractice Act. Specifically, and according to New Mexico Statutes Annotated section 41-5-3, that includes any person, business, organization, facility or institution licensed or certified by New Mexico to provide health care services as a:

  • physician
  • hospital
  • outpatient care facility
  • chiropractor
  • podiatrist
  • nurse anesthetist, or
  • physician's assistant.

What's more, NMSA section 41-5-5 says that, in order to be covered under the state's Medical Malpractice Act, a health care provider must demonstrate financial responsibility, usually by filing proof of malpractice liability insurance coverage of at least $200,000 per occurrence. Individual care providers (not hospitals or other facilities) can show financial responsibility by having certain sums on deposit with the state's Office of the Superintendent of Insurance, typically somewhere around $600,000.

Finally, qualified health care providers must pay an annual surcharge, which goes to the state's patient compensation fund, in an amount set by the Superintendent of Insurance.

Any health care provider who does not meet these qualifications will not be protected by this procedural check on future medical expenses (and any other safeguards set out in the Medical Malpractice Act, including a cap on damages in New Mexico medical malpractice lawsuits). In other words, in a medical malpractice lawsuit against a health care provider who is not covered under the Medical Malpractice Act, the jury is free to award whatever amount it sees fit when it comes to the costs of the plaintiff’s future medical care, and the provider may be ordered to pay those costs up-front.

Health care providers who do qualify for the protections of section 41-5-7 will be on the financial hook for only the first $200,000 of the injured patient's future medical care. Any future care in excess of $200,000 will be paid by the state's patient compensation fund (which covered providers pay into each year).

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