New Mexico Notice of Intent to Sue / Pre-Suit Demand and NMMRC Filing Cover

NOTICE OF INTENT TO SUE AND DEMAND FOR PRE-SUIT RESOLUTION

(And Transmittal Cover for New Mexico Medical Review Commission Application)

PART A — PRE-SUIT NOTICE OF INTENT (Courtesy / Settlement)

[LAW FIRM LETTERHEAD]

[__/__/____]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND VIA EMAIL (where available)

[PROVIDER / FACILITY NAME]
Attn: Risk Management / General Counsel
[ADDRESS]
[CITY, STATE, ZIP]

cc: [PROVIDER]'s professional liability insurer
[INSURER NAME]
[CLAIM NUMBER, if known]
[ADDRESS]

Re: Notice of Intent to Pursue Medical Malpractice Claim
Patient: [PATIENT NAME]
Date(s) of Care: [__/__/____] through [__/__/____]
Facility: [_______________________________]

Dear Risk Management / Counsel:

This office represents [PATIENT NAME] (and, if applicable, the Estate of [DECEDENT] and statutory wrongful-death beneficiaries) in connection with care rendered by [PROVIDER/FACILITY] in [_______________] County, New Mexico. We write to provide formal pre-suit notice of intent to pursue a medical malpractice claim and to invite pre-suit resolution.

1. Patient and Provider Identification

2. Summary of Claim

Based on review of the medical records and consultation with qualified expert(s), Claimant alleges that [PROVIDER] departed from the applicable standard of care by:

• ☐ Failing to diagnose [_______________________________];
• ☐ Misdiagnosing [_______________________________];
• ☐ Failing to order indicated [studies / consultations];
• ☐ Negligently performing [procedure];
• ☐ Failing to obtain adequate informed consent for [procedure];
• ☐ Improperly prescribing [medication];
• ☐ Failing to recognize and respond to [_______________________________];
• ☐ Other: [_______________________________].

These deviations proximately caused [INJURY / DEATH], with damages including past and future medical expenses, lost earnings/earning capacity, pain and suffering, loss of enjoyment of life, [loss of consortium], and [wrongful-death damages under NMSA § 41-2-1 et seq.].

3. Statutory Framework

Claimant intends to proceed under the New Mexico Medical Malpractice Act, NMSA 1978, §§ 41-5-1 to 41-5-29, including:

• Caps under § 41-5-6 (as amended by HB 75 (2021), HB 11 (2021 Special Session), and SB 523 (2023)) — independent providers $750,000 base CPI-adjusted since 1/1/2023; hospitals/hospital-controlled outpatient facilities phased to $6,000,000 in 2026 and CPI-adjusted thereafter; separate independent-outpatient cap under SB 523. Past and future medical and related benefits (§ 41-5-7) are NOT capped and are paid as accrued from the Patient's Compensation Fund (§ 41-5-25);
• Limitations under § 41-5-13 — three-year statute of repose from the act of malpractice, with minor and incapacity tolling and the Cummings due-process exception;
• Several liability under § 41-3A-1 — joint and several liability is abolished; each defendant is liable only for its pro-rata fault;
• Pure comparative fault — recovery reduced by Claimant's percentage of fault, if any, but not barred at any threshold;
• Apology statute, NMSA § 41-5-31 (verify citation) — expressions of sympathy and benevolent gestures by providers are inadmissible.

4. Medical Review Commission

Pursuant to NMSA 1978, § 41-5-14, Claimant intends to submit (or has submitted) an Application to the New Mexico Medical Review Commission for panel review of the claim against any qualified independent provider. Hospital and outpatient-facility claims are not subject to MRC review (§ 41-5-14 as amended 2021) and may be filed directly in district court.

The submission of the Application tolls the § 41-5-13 limitations period under § 41-5-22 from receipt by the Commission until 30 days after first attempted delivery of the Commission's certified decision.

5. Litigation-Hold and Records-Preservation Demand

[PROVIDER/FACILITY] is hereby demanded to preserve and not alter, delete, overwrite, or destroy:

• ☐ All medical records (paper and electronic), including audit trails and metadata;
• ☐ All imaging studies (DICOM-format originals, not just printed copies);
• ☐ All laboratory and pathology specimens, slides, and reports;
• ☐ All telemetry, anesthesia, OR, ICU, and code-blue records;
• ☐ All medication administration records (eMAR) and pharmacy records;
• ☐ All incident reports, root-cause analyses, peer-review files (subject to applicable privileges), and quality-assurance documents;
• ☐ All electronic communications (email, secure messaging, paging) referring to the patient;
• ☐ All policies and procedures in effect on the relevant dates;
• ☐ All training, credentialing, and competency files for involved providers;
• ☐ All security/CCTV footage referencing the patient or relevant locations.

Spoliation of any of the foregoing will be the subject of appropriate evidentiary, jury-instruction, and sanctions motions.

6. Demand for Pre-Suit Resolution and Mediation

Claimant invites pre-suit resolution of this matter. Claimant will consider:

☐ A confidential pre-suit mediation under NMRA 1-026.1 / 1-016 mediator panels;
☐ A § 41-5-15 written stipulation to forego MRC review in exchange for a structured negotiation timetable;
☐ A standstill agreement preserving all defenses while the parties evaluate the claim.

Please respond in writing within thirty (30) days of the date of this notice indicating: (a) acceptance of service for any future MRC Application or complaint; (b) the identity of defense counsel; (c) the applicable insurer(s) and policy limits; and (d) availability for mediation.

7. HIPAA Authorization

A HIPAA-compliant authorization is enclosed at Tab 1, permitting [PROVIDER/FACILITY] to release records to undersigned counsel and to relevant insurers and consultants.

8. Reservation of Rights

This letter does not waive any rights, including the right to amend the claims, add defendants (including unnamed Doe defendants), or assert additional theories. Nothing herein is an admission. All settlement discussions are confidential under Rule 11-408 NMRA.

Sincerely,

[ATTORNEY NAME], Esq. (NM Bar No. [______])
[LAW FIRM NAME]
[ADDRESS]
[CITY, NM ZIP]
Tel: [(___) ___-____] | Email: [_______________________________]

Enclosures: HIPAA Authorization; Records List; Letter of Representation

PART B — TRANSMITTAL COVER FOR NMMRC APPLICATION

[__/__/____]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED

Director
New Mexico Medical Review Commission
7770 Jefferson Street NE, Suite 400
Albuquerque, NM 87109

Re: Application for Medical Review Commission Panel — [PATIENT NAME] v. [PROVIDER]
Date of Alleged Malpractice: [__/__/____]

Dear Director:

Enclosed for filing pursuant to NMSA 1978, § 41-5-14 are the following:

Please confirm receipt and provide the assigned matter number, anticipated panel composition, and proposed hearing date. The patient/claimant requests:

• ☐ A health-care-provider panel matched to the discipline of [SPECIALTY];
• ☐ Translation services in [LANGUAGE], if the patient or family will appear;
• ☐ Reasonable accommodations under the ADA, specifically [_______________________________].

We acknowledge that, pursuant to NMSA 1978, § 41-5-22, the limitations period of § 41-5-13 is tolled from the date the Commission receives this Application until 30 days after the first attempted delivery of the Commission's certified decision.

Counsel will pay or arrange any required filing fees promptly upon notice.

Respectfully,

[ATTORNEY NAME], Esq. (NM Bar No. [______])
[LAW FIRM]
[ADDRESS] | [PHONE] | [EMAIL]

cc: [PROVIDER]
[PROVIDER's known professional liability insurer]

PART C — PROCEDURAL TIMELINE & DEADLINES (Internal Worksheet)

PART D — VENUE WORKSHEET

PART E — PARTY/INSURER CONTACTS

PART F — CHECKLIST

☐ Confirm whether each Respondent is a "qualified provider" under § 41-5-5 (NM Superintendent of Insurance roster).
☐ Confirm whether any Respondent is a hospital or outpatient health care facility (no MRC required post-7/1/2021).
☐ Confirm whether any Respondent is a state or local government employee/entity (Tort Claims Act notice under § 41-4-16 within 90 days — separate analysis).
☐ Calculate § 41-5-13 deadline and confirm time remaining; calendar tolling under § 41-5-22.
☐ Obtain qualified expert review establishing deviation from standard of care.
☐ Send pre-suit notice (Part A) by certified mail with read receipt.
☐ File NMMRC Application (Part B + Application template) by certified mail.
☐ Calendar all NMMRC procedural deadlines (Part C).
☐ Issue litigation-hold letter and document preservation demand.
☐ Track CPI-adjusted cap figures applicable for the year of occurrence.
☐ Track Patient's Compensation Fund coverage and PCF intervention/notice obligations.
☐ Evaluate § 41-5-15 stipulation to forego MRC if defense agrees and case warrants.

Sources and References

• NMSA 1978, §§ 41-5-1 to 41-5-29 (Medical Malpractice Act)
• NMSA 1978, § 41-3A-1 (Several Liability)
• NMSA 1978, § 41-4-16 (Tort Claims Act notice — for governmental defendants only)
• HB 75 (2021); HB 11 (2021 Special Session); SB 523 (2023)
• New Mexico Medical Review Commission, Policies and Procedures (current edition)
• NM Superintendent of Insurance — Patient's Compensation Fund / Qualified Provider Roster
• Cummings v. X-Ray Assocs., 1996-NMSC-035 (due-process exception to § 41-5-13)
• Trujillo v. City of Albuquerque, 1998-NMSC-031 (constitutional analysis of damages caps)
• NMRA 11-408 (settlement-discussion confidentiality)