New Mexico Medical Malpractice Settlement Agreement and Release

New Mexico Medical Malpractice Settlement Agreement and Release

This Settlement Agreement and Release ("Agreement") is made effective [__/__/____] by and between:

Claimant / Plaintiff: [________________________________] ("Claimant"), [☐ individually / ☐ as personal representative of the estate of ____________ / ☐ as parent/guardian of ____________].

Healthcare Provider(s) / Defendant(s):

Patient's Compensation Fund (if applicable): NM Office of Superintendent of Insurance, Patient's Compensation Fund, as administrator of payments above the personal-liability layer pursuant to NMSA § 41-5-25.

1. Recitals

1.1 Claimant alleges that on or about [__/__/____], at [________________________________] in [____________] County, New Mexico, Defendant(s) committed acts or omissions constituting medical malpractice resulting in [________________________________] (the "Incident").

1.2 Claimant submitted an Application to the New Mexico Medical Review Commission pursuant to NMSA § 41-5-15 on [__/__/____]; the Commission rendered its decision on [__/__/____]. [☐ N/A — non-QHP defendant; see § 41-5-15 applicability.]

1.3 [☐ Litigation was commenced in [____________] County District Court, Cause No. ____________ / ☐ No litigation was filed].

1.4 The parties wish to resolve all claims without admission of liability.

2. Settlement Payment and Allocation

2.1 Total Consideration. Defendant(s) and/or insurers and the Patient's Compensation Fund (if applicable) shall pay Claimant the gross sum of $[____________] (the "Settlement Amount").

2.2 Allocation Among Sources. Payment shall be made as follows:

2.3 Allocation by Damage Category (for tax and lien purposes):

2.4 Payment Timing. Personal liability portion within [____] days of execution; Patient's Compensation Fund portion subject to OSI/PCF processing under NMSA § 41-5-25 and applicable proration rules. Future periodic payments per § 41-5-7, if elected: [☐ Yes / ☐ No].

3. Release

3.1 General Release. Claimant releases and forever discharges the Released Parties (Defendants, their insurers, employers, employees, agents, the Patient's Compensation Fund, and all related persons) from any and all claims, known or unknown, arising from the Incident.

3.2 Claims Released Include: medical negligence, lack of informed consent, vicarious liability, negligent credentialing, EMTALA, loss of consortium, wrongful death, survival, and all derivative claims.

3.3 Carve-Outs. This release does not affect: (a) workers' compensation rights (if applicable); (b) future unrelated care from Released Parties; (c) the Agreement's own enforcement.

4. Liens, Subrogation, and Government Payors

4.1 Medicare. Claimant warrants Medicare status: [☐ Beneficiary / ☐ Non-beneficiary / ☐ Eligible within 30 months]. Claimant shall satisfy and obtain final demand from CMS pursuant to the Medicare Secondary Payer Act (42 U.S.C. § 1395y(b)). A Medicare Set-Aside in the amount of $[____________] [☐ has been / ☐ has not been] established.

4.2 Medicaid. Claimant shall resolve any NM Medicaid lien (NMSA § 27-2-23; 42 U.S.C. § 1396p) before disbursement of settlement proceeds.

4.3 ERISA / Private Health Plans. Claimant shall satisfy any ERISA-plan reimbursement claim or private health insurer subrogation interest.

4.4 Hospital and Provider Liens. All NM hospital liens (NMSA § 48-8-1 et seq.) and provider liens shall be satisfied from settlement proceeds before disbursement to Claimant.

4.5 Hold Harmless. Claimant shall indemnify and hold Released Parties harmless from any unresolved lien arising from medical care for the Incident.

5. NPDB and Reporting

5.1 NPDB Reporting. Defendant insurer(s) acknowledge mandatory reporting to the National Practitioner Data Bank under 42 U.S.C. § 11131 and 45 C.F.R. § 60.7 for any payment made on behalf of a practitioner.

5.2 NM Medical Board Reporting. As required by 16.10.13 NMAC and NMSA § 61-6-15, applicable malpractice settlements may be reported to the New Mexico Medical Board.

5.3 No party shall dispute or contest required reporting; Defendant practitioner retains the right to submit a Subject Statement to the NPDB.

6. Confidentiality

6.1 The terms and amount of this settlement shall remain confidential except: (a) as required by NPDB reporting; (b) NM Medical Board / OSI / Patient's Compensation Fund reporting under NMSA § 41-5-25; (c) tax, accounting, legal advisors; (d) Medicare/Medicaid lien resolution; (e) court order.

6.2 Neither party shall make public disparaging statements regarding the other.

6.3 Liquidated damages for breach: $[____________] per violation.

7. Tax Treatment

7.1 The portion of the Settlement Amount allocated to compensatory damages on account of personal physical injuries or physical sickness is intended to be excluded from gross income under IRC § 104(a)(2).

7.2 Portions allocated to punitive damages, pre-judgment interest, lost wages (if separately allocated), and emotional distress not originating from physical injury are taxable. Claimant is responsible for own tax obligations; no party provides tax advice.

7.3 IRS Form 1099 reporting per applicable law.

8. No Admission of Liability

This Agreement is a compromise of disputed claims. Released Parties expressly deny liability and any admission of negligence, wrongdoing, or breach of standard of care.

9. Minor / Incapacitated Claimant — Court Approval

9.1 If Claimant is a minor or incapacitated adult, this Agreement is contingent upon approval by the District Court of [____________] County. Net proceeds shall be deposited [☐ in a restricted court-supervised account / ☐ in a special needs trust / ☐ in a structured settlement annuity].

10. Structured Settlement (If Applicable)

10.1 Portion of $[____________] shall be funded through a qualified assignment under IRC § 130 with annuity issued by [________________________________], payment schedule per Exhibit A.

11. Representations and Warranties

11.1 Claimant has had the opportunity to consult independent counsel and enters into this Agreement knowingly and voluntarily.

11.2 Claimant has not assigned any claim released hereunder.

11.3 The signing Claimant has legal capacity and authority.

12. Governing Law and Venue

This Agreement is governed by New Mexico law. Any action to enforce shall be brought in the District Court of [____________] County, New Mexico.

13. Entire Agreement

This Agreement, including Exhibits, is the entire agreement and supersedes all prior negotiations. Amendment requires written instrument signed by all parties.

14. Severability and Counterparts

Severability standard. Counterparts and electronic signatures permitted.

15. Signatures

Notary acknowledgment for each signatory (NM acknowledgment form per NMSA § 14-14-1 et seq.).

Exhibits

• Exhibit A — Structured Settlement Payment Schedule (if applicable)
• Exhibit B — Medicare Set-Aside Allocation (if applicable)
• Exhibit C — Lien Resolution Documentation
• Exhibit D — Order Approving Minor's Settlement (if applicable)

Sources and References

• NMSA 1978, §§ 41-5-1 to 41-5-29 (NM Medical Malpractice Act)
• NMSA 1978, § 41-5-6 (limitation of recovery — verify current tiered cap structure)
• NMSA 1978, § 41-5-7 (medical expenses excluded from cap; punitive damages)
• NMSA 1978, §§ 41-5-14, 41-5-15 (Medical Review Commission application)
• NMSA 1978, § 41-5-25 (Patient's Compensation Fund administration)
• HB 75 (2021); SB 523 (2023); 2026 reform legislation — verify operative version
• 42 U.S.C. § 11101 et seq. (NPDB); 45 C.F.R. Part 60
• IRC § 104(a)(2); IRC § 130 (structured settlement qualified assignment)
• 42 U.S.C. § 1395y(b) (Medicare Secondary Payer); 42 U.S.C. § 1396p (Medicaid)