New Mexico Medical Malpractice Complaint

COMPLAINT FOR MEDICAL MALPRACTICE AND DEMAND FOR JURY TRIAL

STATE OF NEW MEXICO

[_______________________________________] JUDICIAL DISTRICT COURT

COUNTY OF [_______________________________]

No. D-[____]-CV-[____]-[_______]

COMPLAINT FOR MEDICAL MALPRACTICE, WRONGFUL DEATH, LOSS OF CONSORTIUM, AND DEMAND FOR JURY TRIAL

COMES NOW Plaintiff, [PLAINTIFF NAME], by and through undersigned counsel, [LAW FIRM], and for his/her Complaint against Defendants, alleges and states as follows:

I. PARTIES

1. Plaintiff [PLAINTIFF NAME] is, and at all times relevant was, a resident of [_______________] County, New Mexico, residing at [_______________________________].

2. ☐ Plaintiff brings this action individually.
   ☐ Plaintiff brings this action as the duly appointed Personal Representative of the Estate of [DECEDENT NAME], deceased, pursuant to NMSA 1978, §§ 41-2-1 to 41-2-4 (Wrongful Death Act). Letters of Administration are attached as Exhibit A.

3. Defendant [DEFENDANT PHYSICIAN NAME], M.D., is, on information and belief, a physician licensed to practice medicine in New Mexico (License No. [______]) with a principal place of business at [_______________________________]. ☐ Defendant is a "qualified health care provider" within the meaning of NMSA 1978, § 41-5-5, and is an "independent provider" subject to the Medical Malpractice Act. ☐ Defendant is NOT qualified under the MMA.

4. Defendant [DEFENDANT MEDICAL PRACTICE / P.C.] is a New Mexico professional corporation/limited liability company with its principal place of business at [_______________________________], and at all relevant times employed Defendant [PHYSICIAN] and was responsible for his/her acts and omissions under the doctrines of respondeat superior and ostensible/apparent agency.

5. Defendant [DEFENDANT HOSPITAL] is a [hospital / outpatient health care facility] organized under the laws of [_______], operating in [_______________] County, New Mexico. As a hospital/outpatient facility, this Defendant is governed by the separate cap structure for hospitals and outpatient facilities under NMSA 1978, § 41-5-6, as amended by HB 75 (2021) and HB 11 (2021 Special Session), and is not subject to Medical Review Commission review under § 41-5-14.

6. Defendants John/Jane Does 1–10 are individuals or entities whose true identities are presently unknown but who participated in the negligent care of Plaintiff/Decedent, including but not limited to nurses, physician assistants, residents, technologists, and contracted providers. Plaintiff will move to amend this Complaint upon learning their identities.

II. JURISDICTION AND VENUE

7. This Court has subject-matter jurisdiction under N.M. Const. art. VI, § 13, and personal jurisdiction over all Defendants because they reside in, transact business in, or caused injury within New Mexico.

8. Venue is proper in [_______________] County under NMSA 1978, § 38-3-1, because:
   ☐ The cause of action arose in this County (medical care was rendered at [_______________________________]).
   ☐ One or more Defendants reside in this County.
   ☐ One or more Defendants maintains a principal place of business in this County.

III. CONDITIONS PRECEDENT — MEDICAL REVIEW COMMISSION

9. Plaintiff alleges compliance with all conditions precedent to suit:

☐ Independent Provider claim (§ 41-5-14): On [__/__/____], Plaintiff submitted an Application to the New Mexico Medical Review Commission concerning Defendant [PHYSICIAN]. The Commission convened a panel hearing on [__/__/____] and rendered its written decision on [__/__/____]. A copy of the Commission's decision letter is attached as Exhibit B. The statute of limitations was tolled during pendency of the panel review pursuant to NMSA 1978, § 41-5-22, and resumed running thirty (30) days after first attempted delivery of the Commission's certified mailing.

☐ Hospital/Outpatient Facility claim: As to Defendant [HOSPITAL], no Medical Review Commission application is required because, effective July 1, 2021, NMSA 1978, § 41-5-14, no longer authorizes MRC review of claims against hospitals or outpatient health care facilities.

☐ Stipulation to forego MRC: Plaintiff and Defendant [PHYSICIAN] have stipulated in writing under NMSA 1978, § 41-5-15, to forego the panel process. Stipulation attached as Exhibit C.

☐ Non-qualified provider: Defendant [PROVIDER] is not a "qualified health care provider" under NMSA 1978, § 41-5-5, and is therefore not subject to the Medical Malpractice Act or the MRC requirement.

IV. STATUTE OF LIMITATIONS

10. This action is timely under NMSA 1978, § 41-5-13. The act of malpractice occurred on or about [__/__/____]. This Complaint is filed within three (3) years of accrual, accounting for tolling during MRC panel review under § 41-5-22.

11. ☐ Minor tolling: Plaintiff/Decedent was a minor under the age of [__] at the time of the malpractice. Pursuant to NMSA 1978, § 41-5-13, a minor under six years of age has until the ninth birthday to bring suit; minor children six years or older are subject to the three-year period running from the act.

12. ☐ Due-process exception (Cummings): The discovery-based due-process exception applies because Plaintiff could not reasonably have discovered the malpractice within the three-year repose period. See Cummings v. X-Ray Assocs., 1996-NMSC-035.

V. FACTUAL ALLEGATIONS

13. On or about [__/__/____], Plaintiff/Decedent presented to [_______________________________] with complaints of [_______________________________].

14. Plaintiff/Decedent's pertinent medical history included [_______________________________].

15. Defendant [PHYSICIAN] was the treating/attending physician and undertook a physician-patient relationship with Plaintiff/Decedent.

16. The standard of care required Defendant(s) to:
    - ☐ Take an adequate history and perform an appropriate examination;
    - ☐ Order, review, and interpret indicated diagnostic studies, including [_______________________________];
    - ☐ Recognize the signs and symptoms of [diagnosis], specifically [_______________________________];
    - ☐ Timely consult [specialty] when [_______________________________];
    - ☐ Obtain informed consent disclosing the material risks, alternatives, and consequences of [procedure];
    - ☐ Provide adequate post-procedure monitoring and follow-up;
    - ☐ [_______________________________].

17. In breach of the applicable standard of care, Defendant(s) negligently:
    - ☐ Failed to diagnose [_______________________________];
    - ☐ Misdiagnosed Plaintiff/Decedent's condition as [_______________________________];
    - ☐ Failed to order [diagnostic study];
    - ☐ Failed to timely treat [_______________________________];
    - ☐ Performed [procedure] without indication, with deviation from accepted technique, or without adequate informed consent;
    - ☐ Prescribed [medication] without considering contraindications, including [_______________________________];
    - ☐ Failed to communicate critical findings to Plaintiff/Decedent;
    - ☐ [_______________________________].

18. As a direct and proximate result of Defendants' breaches, Plaintiff/Decedent suffered [injury / progression of disease / death], including but not limited to [_______________________________].

19. The injuries were preventable. Had Defendants complied with the standard of care, Plaintiff/Decedent more likely than not would have [avoided injury / achieved a better outcome / survived].

VI. COUNT I — MEDICAL NEGLIGENCE (Against Defendant [PHYSICIAN])

20. Plaintiff incorporates paragraphs 1–19 as if fully set forth herein.

21. Defendant [PHYSICIAN] owed Plaintiff/Decedent a duty to exercise that degree of care, skill, and learning ordinarily possessed and exercised by physicians of the same specialty under the same or similar circumstances.

22. Defendant [PHYSICIAN] breached that duty as set forth above.

23. Said breaches proximately caused Plaintiff/Decedent's injuries and damages.

VII. COUNT II — INSTITUTIONAL NEGLIGENCE / CORPORATE LIABILITY (Against Defendant [HOSPITAL/FACILITY])

24. Plaintiff incorporates the foregoing paragraphs as if fully set forth.

25. Defendant [HOSPITAL/FACILITY] owed Plaintiff/Decedent independent institutional duties, including: credentialing, staffing, supervision, policies and protocols, equipment, and quality assurance.

26. Defendant [HOSPITAL/FACILITY] breached these duties by [_______________________________].

27. Defendant [HOSPITAL/FACILITY] is also vicariously liable under respondeat superior and ostensible/apparent agency for the acts of its employees and contracted providers.

VIII. COUNT III — LACK OF INFORMED CONSENT (Against [PHYSICIAN/FACILITY])

28. Plaintiff incorporates the foregoing paragraphs as if fully set forth.

29. Defendant(s) failed to disclose material risks, alternatives, and reasonably foreseeable consequences of [procedure/treatment], including [_______________________________].

30. A reasonable patient in Plaintiff/Decedent's position, having been adequately informed, would have declined the procedure or chosen an alternative.

31. The undisclosed risk materialized and proximately caused injury.

IX. COUNT IV — WRONGFUL DEATH (If Applicable)

32. Plaintiff incorporates the foregoing paragraphs as if fully set forth.

33. Pursuant to NMSA 1978, § 41-2-1 et seq., Defendants' negligence caused the death of [DECEDENT] on [__/__/____]. The Personal Representative is entitled to recover the value of life, loss of services and household contributions, conscious pain and suffering before death, medical and funeral expenses, and statutory beneficiary damages.

X. COUNT V — LOSS OF CONSORTIUM (If Applicable)

34. Plaintiff incorporates the foregoing paragraphs as if fully set forth.

35. Plaintiff [SPOUSE/PARENT/CHILD NAME] suffered loss of consortium, comfort, companionship, and society as a result of the injuries inflicted on [INJURED PARTY], pursuant to Lord v. Lovett and Romero v. Byers.

XI. DAMAGES

36. Plaintiff/the Estate has suffered damages including, but not limited to:
    - Past and future medical and rehabilitative expenses;
    - Past and future lost earnings and impairment of earning capacity;
    - Past and future physical pain, mental anguish, and emotional distress;
    - Disfigurement, scarring, and loss of bodily function;
    - Loss of household services and companionship;
    - Funeral and burial expenses (if wrongful death);
    - All other damages proximately caused by Defendants' negligence and recoverable under New Mexico law.

37. Damages caps under NMSA 1978, § 41-5-6 (as amended by HB 75 (2021), HB 11 (2021 Special Session), and SB 523 (2023)):

38. Pursuant to NMSA 1978, § 41-5-7, future medical and related benefits shall be paid as accrued from the Patient's Compensation Fund and are not subject to the cap.

39. Several liability: Pursuant to NMSA 1978, § 41-3A-1, joint and several liability is abolished, and each Defendant's liability is several only and proportional to fault. New Mexico applies pure comparative fault; recovery is reduced by Plaintiff's percentage of fault, if any, but is not barred at any threshold.

XII. APOLOGY / BENEVOLENT GESTURES

40. Pursuant to NMSA 1978, § 41-5-31 (or successor provision; verify citation), expressions of sympathy, apology, condolence, or benevolent gestures by a health care provider are not admissible as evidence of fault. Plaintiff reserves the right to seek admission of factual admissions of liability that exceed protected expressions.

XIII. JURY DEMAND

41. Plaintiff demands a trial by jury of twelve (12) on all issues so triable, pursuant to NMRA 1-038 and N.M. Const. art. II, § 12.

XIV. PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment against Defendants, jointly and severally to the extent permitted by law and severally as required by NMSA § 41-3A-1, as follows:

• A. Compensatory damages in an amount to be proven at trial, subject to the applicable cap(s) under § 41-5-6;
• B. Past and future medical care and related benefits, payable as accrued from the Patient's Compensation Fund under § 41-5-7;
• C. Pre-judgment and post-judgment interest at the maximum rates allowed by NMSA 1978, § 56-8-3 and § 56-8-4;
• D. Costs of suit;
• E. Such other and further relief as the Court deems just and proper.

Respectfully submitted,

[LAW FIRM NAME]

By: __________________________________
[ATTORNEY NAME], Esq. (NM Bar No. [______])
[FIRM ADDRESS]
[CITY, NM ZIP]
Telephone: [(___) ___-____]
Email: [_______________________________]

Attorney for Plaintiff

Date: [__/__/____]

VERIFICATION (Optional)

STATE OF NEW MEXICO )
) ss.
COUNTY OF [_______] )

I, [PLAINTIFF NAME], being first duly sworn, depose and state that I have read the foregoing Complaint and that the factual allegations contained therein are true and correct to the best of my knowledge, information, and belief.

__________________________________
[PLAINTIFF NAME]

Subscribed and sworn to before me this [____] day of [_______], 20[__].

__________________________________
Notary Public

My Commission Expires: [__/__/____]

EXHIBITS

• Exhibit A — Letters of Administration (if wrongful death)
• Exhibit B — Medical Review Commission Decision (if applicable)
• Exhibit C — Stipulation to Forego MRC (if applicable)
• Exhibit D — Curriculum vitae and certification of qualified expert
• Exhibit E — Pertinent medical records (or, in the alternative, a HIPAA-compliant authorization)

Sources and References

• New Mexico Medical Malpractice Act, NMSA 1978, §§ 41-5-1 to 41-5-29
• HB 75 (2021 Regular Session); HB 11 (2021 Special Session); SB 523 (2023)
• NMSA 1978, § 41-3A-1 (Several Liability)
• NMSA 1978, §§ 41-2-1 to 41-2-4 (Wrongful Death Act)
• NMRA 1-008, 1-038
• Cummings v. X-Ray Assocs., 1996-NMSC-035 (due-process exception to § 41-5-13 repose)
• Trujillo v. City of Albuquerque, 1998-NMSC-031, 125 N.M. 721 (constitutional analysis of damages caps under TCA — distinguishable but persuasive)
• New Mexico Superintendent of Insurance — Patient's Compensation Fund
• New Mexico Medical Review Commission — Policies & Procedures (current edition)