DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF NEW MEXICO

[FIRM NAME]
Attorneys at Law
[Street Address]
[City, New Mexico ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of New Mexico

DATE: [Date]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL

[Risk Management / Claims Administrator]
[Hospital / Medical Group Name]
[Street Address]
[City, State ZIP]

[Insurance Carrier Name]
[Claims Department]
[Street Address]
[City, State ZIP]

RE: MEDICAL MALPRACTICE CLAIM - SETTLEMENT DEMAND
Patient/Claimant: [Client Full Name]
Date(s) of Negligent Care: [Date or Date Range]
Healthcare Provider(s): [Provider Name(s)]
Facility: [Hospital/Clinic Name]
Claim Number: [If assigned]

Dear [Recipient Name]:

This firm represents [Client Name] in connection with the medical malpractice that occurred during [his/her] care and treatment at [Facility Name] by [Healthcare Provider Name(s)]. This letter constitutes formal notice of our client's claim and our demand for settlement.

I. NEW MEXICO-SPECIFIC LEGAL FRAMEWORK

A. The New Mexico Medical Malpractice Act

This claim is governed by the New Mexico Medical Malpractice Act, N.M. Stat. Ann. Section 41-5-1 et seq. The Act creates a two-tiered system distinguishing between "qualified healthcare providers" who are covered by the Patient's Compensation Fund and non-qualified providers who are subject to general tort law.

Qualified Healthcare Provider Status: [Confirm whether defendant is a qualified healthcare provider under N.M. Stat. Ann. Section 41-5-3. If so, the Medical Review Commission process and damage caps apply.]

B. Statute of Limitations

Under N.M. Stat. Ann. Section 41-5-13, the statute of limitations for medical malpractice is three (3) years from the date the act of malpractice occurred, except that:

1. Discovery Rule: If the malpractice could not have been discovered within three years using reasonable diligence, the claim may be brought within three years of discovery;
2. Minor Tolling: For minors, the statute is tolled until the child reaches six years of age, but in no event may an action be brought more than nine years after the malpractice occurred;
3. Foreign Objects: Cases involving foreign objects left in the body are subject to the discovery rule.

See Maestas v. Zager, 2007-NMSC-003, 141 N.M. 154.

Applicable Dates:
- Date of negligent care: [Date]
- Date of discovery: [Date]
- Statute of limitations expires: [Date]

C. Medical Review Commission

CRITICAL PRE-SUIT REQUIREMENT: For claims against qualified healthcare providers, N.M. Stat. Ann. Section 41-5-15 requires that a claim must be filed with the Medical Review Commission before a lawsuit can be filed in district court.

Medical Review Commission Process:
1. Application must be filed with the Commission
2. Panel of three healthcare providers reviews the claim
3. Commission issues a non-binding advisory opinion
4. After 90 days (or upon receipt of Commission opinion), plaintiff may proceed to district court

[If applicable: We have filed / intend to file an application with the Medical Review Commission. Application No. [Number].]

[If defendant is NOT a qualified provider: The Medical Review Commission process does not apply because the defendant is not a qualified healthcare provider under N.M. Stat. Ann. Section 41-5-3.]

D. Pure Comparative Negligence

New Mexico follows the doctrine of pure comparative negligence. Scott v. Rizzo, 1981-NMCA-001, 96 N.M. 682. A plaintiff's recovery is reduced by their percentage of fault, but recovery is not barred regardless of the degree of fault.

Our client bears no responsibility for the negligent medical care received.

E. Damage Caps

For Qualified Healthcare Providers:
Under N.M. Stat. Ann. Section 41-5-6, the total amount recoverable from a qualified healthcare provider (and the Patient's Compensation Fund combined) is capped at $750,000 (as adjusted for inflation). This cap applies to all damages, including economic, non-economic, and punitive.

• The provider's liability is limited to $250,000 (as adjusted)
• The Patient's Compensation Fund pays the remainder up to the cap

IMPORTANT: The New Mexico Supreme Court has held that the cap applies per occurrence, not per claimant. Slade v. Caesars Entm't Corp., 2009-NMSC-011.

Constitutional Challenges: The constitutionality of the damage cap has been upheld by New Mexico courts. See Trujillo v. City of Albuquerque, 1998-NMSC-031.

[If defendant is NOT a qualified provider: No damage cap applies.]

F. Vicarious Liability

New Mexico recognizes hospital vicarious liability under:

1. Respondeat Superior: For employee physicians and staff. Armijo v. Tandysh, 1981-NMSC-108.

2. Apparent/Ostensible Agency: Where the hospital holds out the physician as its agent and the patient relies on that representation. Chevron Oil Co. v. Sutton, 1973-NMSC-111.

3. Corporate Negligence: Hospitals have an independent duty to exercise reasonable care in the selection, retention, and supervision of medical staff. Mascarenas v. City of Albuquerque, 2014-NMCA-075.

G. Informed Consent

New Mexico requires that physicians obtain informed consent prior to treatment. The standard is what a reasonable patient would want to know to make an informed decision. Gerety v. Demers, 1978-NMSC-042, 92 N.M. 396.

Required disclosures include:
- Nature of the proposed treatment
- Risks and benefits
- Alternatives
- Consequences of refusing treatment

II. PRESERVATION OF EVIDENCE - LITIGATION HOLD

YOU ARE HEREBY DIRECTED TO PRESERVE ALL EVIDENCE relating to the care and treatment of [Client Name], including but not limited to:

• Complete medical records (paper and electronic)
• All versions of electronic medical records (including audit trails)
• Nursing notes, medication administration records, and flow sheets
• All diagnostic imaging studies and reports
• Laboratory results and pathology reports
• Operative reports and anesthesia records
• Consultation notes
• Informed consent documents
• Incident/occurrence reports
• Peer review and quality assurance records
• Policies, procedures, and protocols in effect at the time of treatment
• Credentialing files for involved healthcare providers
• Staffing records and schedules

Spoliation Warning: New Mexico courts recognize claims for spoliation of evidence. Torres v. El Paso Elec. Co., 1999-NMSC-029. Destruction or alteration of evidence may result in adverse inference instructions and sanctions.

III. FACTUAL BACKGROUND

A. Patient History and Presentation

[Client Name], a [age]-year-old [male/female], presented to [Facility/Provider] on [Date] with [chief complaint / reason for visit]:

Relevant Medical History:
- [Relevant past medical history]
- [Relevant surgical history]
- [Current medications]
- [Allergies]

Presenting Symptoms:
- [Symptom 1]
- [Symptom 2]
- [Symptom 3]

B. Chronology of Negligent Care

[Date/Time]: [Describe what occurred]

[Date/Time]: [Describe what occurred]

[Date/Time]: [Describe what occurred]

[Continue with detailed chronology]

C. The Medical Error(s)

[Describe specifically what the healthcare provider(s) did wrong]

D. Discovery of Malpractice

Our client [did not discover / could not have reasonably discovered] the malpractice until [Date], when [describe discovery circumstances].

IV. STANDARD OF CARE ANALYSIS

A. Applicable Standard of Care

Under New Mexico law, a healthcare provider must exercise that degree of care, skill, and treatment which a reasonably prudent healthcare provider would provide in similar circumstances. Pharmaseal Labs., Inc. v. Goffe, 1977-NMCA-015, 90 N.M. 753.

New Mexico applies a national standard of care for specialists. The locality rule has been largely abandoned in favor of considering what a reasonably competent practitioner of the same specialty would do under similar circumstances. See UJI 13-1101 NMRA.

The applicable standard of care required [Defendant] to:

• [Standard 1]
• [Standard 2]
• [Standard 3]

B. Breaches of the Standard of Care

[Defendant Healthcare Provider] breached the applicable standard of care in the following specific ways:

Breach 1: [Detailed description]
- What the standard required: [Describe]
- What the provider did or failed to do: [Describe]
- How this deviated from the standard: [Describe]

Breach 2: [Detailed description]

Breach 3: [Continue as needed]

C. Res Ipsa Loquitur

New Mexico recognizes the doctrine of res ipsa loquitur in medical malpractice cases where the injury is of a type that ordinarily would not occur in the absence of negligence. See Baca v. Velez, 1992-NMSC-049, 114 N.M. 13.

[If applicable: The circumstances of this case warrant application of res ipsa loquitur because...]

D. Expert Opinion Summary

We have retained [Expert Name, M.D.], a board-certified [Specialty] physician, who has concluded, to a reasonable degree of medical probability, that:

1. [Defendant Provider] breached the applicable standard of care;
2. These breaches were a proximate cause of [Client Name]'s injuries;
3. Had appropriate care been rendered, [describe what would have occurred].

V. CAUSATION

A. Proximate Causation

Under New Mexico law, the plaintiff must prove that the defendant's negligence was a cause in fact and a proximate cause of the injury. Herrera v. Quality Pontiac, 2003-NMSC-018, 134 N.M. 43.

The defendant's negligence was a proximate cause of our client's injuries because:

• [Causal link 1]
• [Causal link 2]
• [Causal link 3]

B. Loss of Chance Doctrine

New Mexico courts have recognized a loss of chance theory of recovery in medical malpractice cases. Where a defendant's negligence reduces the patient's chance of a better outcome, damages may be recoverable. See Alberts v. Schultz, 1999-NMSC-015, 126 N.M. 807.

[If applicable: Due to the defendant's negligence, our client lost a [percentage]% chance of [survival/recovery/better outcome].]

VI. INJURIES AND DAMAGES

A. Physical Injuries

As a direct and proximate result of the defendant's medical negligence, our client has suffered:

Primary Injuries:
- [Injury 1]
- [Injury 2]
- [Injury 3]

Current Medical Status:
[Describe client's current condition, ongoing treatment needs, and prognosis]

B. Medical Expenses

Past Medical Expenses:

Future Medical Expenses:

C. Lost Earnings and Earning Capacity

Past Lost Wages: $[Amount]
Future Lost Earning Capacity: $[Amount]

D. Non-Economic Damages

Pain and Suffering:
[Describe the pain caused by the malpractice]

Emotional Distress:
[Describe psychological impact]

Loss of Enjoyment of Life:
[Describe activities and experiences lost]

E. Summary of Damages

Note Regarding Damage Cap: [If defendant is a qualified provider: Total recovery is subject to the $750,000 cap under N.M. Stat. Ann. Section 41-5-6.]

VII. SETTLEMENT DEMAND

Based upon the clear breach of the standard of care, the severity of our client's injuries, and the substantial damages, we hereby demand:

$[DEMAND AMOUNT]

[If qualified provider: Demand is limited to the statutory cap of $750,000, with $250,000 to be paid by the provider and the remainder by the Patient's Compensation Fund.]

This demand will remain open for forty-five (45) days from the date of this letter, through and including [Expiration Date].

VIII. PATIENT'S COMPENSATION FUND

[If defendant is a qualified healthcare provider:]

Pursuant to N.M. Stat. Ann. Section 41-5-7, the New Mexico Patient's Compensation Fund is liable for damages in excess of the provider's individual liability limit of $250,000, up to the total cap of $750,000.

We will pursue recovery from the Fund for any amounts exceeding the provider's coverage.

IX. WRONGFUL DEATH

[If applicable:]

Wrongful Death Act - N.M. Stat. Ann. Section 41-2-1 et seq.: A wrongful death claim may be brought by the personal representative for the benefit of the decedent's spouse, children, or parents. Recoverable damages include pecuniary injury, loss of companionship, and pain and suffering of survivors.

The three-year wrongful death statute of limitations under N.M. Stat. Ann. Section 41-2-2 applies.

X. GOVERNMENT LIABILITY

[If public hospital or government healthcare provider involved:]

The New Mexico Tort Claims Act, N.M. Stat. Ann. Section 41-4-1 et seq., waives sovereign immunity for certain medical malpractice claims against public entities and employees. A 90-day notice of claim must be provided under N.M. Stat. Ann. Section 41-4-16.

[Confirm compliance with notice requirements.]

XI. DOCUMENTATION ENCLOSED

• Medical records (relevant portions)
• Medical bills and itemized statements
• Employment and wage verification
• Photographs documenting injuries/condition
• HIPAA authorizations
• Medical Review Commission Application [if filed]

XII. CONCLUSION

This case involves clear medical negligence causing significant injuries to our client. The breach of the standard of care is supported by qualified expert opinion, and the causal connection is direct and well-documented.

[If qualified provider:] We recognize that recovery may be limited by the statutory cap. However, we expect the defendant to accept responsibility and tender appropriate compensation promptly.

We are prepared to proceed with the Medical Review Commission process and subsequent litigation if necessary.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
New Mexico State Bar No. [Number]
Attorney for [Client Name]

ENCLOSURES: [List]

cc: [Client Name]
[File]
New Mexico Medical Review Commission [if applicable]

NEW MEXICO-SPECIFIC PRACTICE NOTES

Medical Review Commission:
- Required for claims against qualified providers
- File application with Superintendent of Insurance
- Panel issues non-binding opinion
- May proceed to district court after 90 days or upon receipt of opinion
- Commission findings are admissible at trial

Qualified Healthcare Provider Status:
- Provider must maintain coverage through the Fund
- Check with Superintendent of Insurance to verify status
- Non-qualified providers are subject to general tort law without caps

Damage Caps (Current as of 2026):
- $750,000 total cap (adjusted periodically for inflation)
- $250,000 provider liability limit
- Patient's Compensation Fund pays remainder
- Verify current cap amounts

Expert Witness Requirements:
- Must be licensed healthcare provider
- Should have knowledge of standard of care
- UJI 13-1101 through 13-1109 govern jury instructions

Prejudgment Interest:
- Available from date of filing complaint
- Statutory rate under N.M. Stat. Ann. Section 56-8-4

Punitive Damages:
- Subject to statutory cap for qualified providers
- May be available against non-qualified providers
- Require showing of reckless disregard or intentional misconduct

This template must be customized for the specific facts and circumstances of your case. New Mexico medical malpractice claims against qualified providers require Medical Review Commission filing before suit. Always verify current law and damage cap amounts, and consult with experienced New Mexico medical malpractice counsel.