A severe birth injury can shape the trajectory of a child’s life and the future of an entire family. Birth injury lawsuits can sometimes have an important role to play in recovering compensation for some of the harms that arise from medical mistakes made during a child’s delivery, but they can also be challenging to navigate. The statute of limitations for medical malpractice claims in New Mexico makes it imperative to address these challenges sooner, rather than later. If your family has been impacted by a child’s birth injury – or if the course of your own life has been shaped by one – consider scheduling a consultation with the Albuquerque medical injury team at Erin Marshall Law. You can reach us today by calling 505-218-9949.
Understanding New Mexico’s Statute of Limitations for Medical Malpractice Lawsuits
New Mexico is a comparative fault state for claims based on negligence – a category that includes virtually all claims related to medical malpractice. “Comparative fault” means, in broad terms, that the plaintiff in a civil tort case may recover damages proportionate to the degree of fault the defendant is found to have contributed to the harms or losses the plaintiff has suffered.
As with other types of personal injury cases, however, there is an outer limit to the time an individual who believes they have suffered an injury due to medical negligence has for filing a legal action to seek that compensation through the civil courts. In New Mexico, the statute of limitations for personal injury claims alleging medical negligence, set by the New Mexico Medical Malpractice Act (NMMA) is subject to a few specific considerations not always found in other states.
Purpose and Impact of New Mexico Medical Malpractice Act
The NMMA was passed in 1976, with a set of substantial amendments in 2021, as the New Mexico Medical Society (NMMS) explains. The law’s goal was to improve the ability of “independent” healthcare providers throughout the state to obtain (and maintain) malpractice coverage, a need which the state legislature saw as directly impacting access to health care in New Mexico.
While it is true that malpractice insurance is designed partly to protect healthcare providers against the potentially devastating financial consequences of large claims, it is also the case that malpractice insurance can sometimes help to protect patients’ ability to recover compensation. In much the same way that there are laws in many states requiring drivers to carry liability insurance so that there will be a way to compensate their victims in the event of an accident, regardless of the state of the driver’s personal finances, there is a public interest argument in favor of making sure that medical care providers carry malpractice insurance so that injured patients can still receive compensation, regardless of the financial solvency of a particular physician or facility.
Qualified Providers and the NMMA
Generally speaking, healthcare professionals in New Mexico are protected against late-discovered claims by the “occurrence” rule under which state courts have interpreted NM § 41-5-13, which applies a three-year statute of limitations to medical malpractice claims. For many types of civil torts (and in many jurisdictions), the “countdown for the statute of limitations for filing a claim begins when the (potential) plaintiff becomes aware of the injury. To draw an analogy: If someone at an advertising agency were to inadvertently list a competitor’s phone number, instead of the client’s, in an ad that went to publication, then under the date-of-awareness logic the client would have three years (or however long the statute of limitations for such claims might be in that jurisdiction) to seek compensation in court for any loss of business they suffered as a result of the error. Under the occurrence rule, the count toward the statute of limitations would begin from the date the mistake was made, not from the date it was discovered, potentially imposing a tighter timeline on the decision to file a claim.
In New Mexico, whether the time to the statute of limitations is counted from the date when the medical error was made vs. from the date when the individual seeking compensation became aware of the (alleged) mistake depends on whether the healthcare provider is a “qualified” provider under the NMMA. Because not all medical errors are immediately obvious, the difference can potentially have significant consequences for injured patients and their families.
Also of note, if a facility is a governmental entity (such as a state hospital), there may be an even shorter time period to give notice. In New Mexico, tort claim notices for governmental facilities are required within 90 days of the alleged occurrence or knowledge of mistake. Talk with an attorney right away because notice deadlines can come quickly. Giving notice of investigation of claims to a governmental entity doesn’t mean you have to file a lawsuit.
Impact of Statute of Limitations for Medical Malpractice in New Mexico
For the parents of children with birth injuries, one of the most crucial things to know about the NMMA is that claims filed against healthcare professionals who meet the statutory definition for a qualified health care provider under NM § 41-5-5 are subject to the occurrence rule, rather than the awareness rule, for calculating the statute of limitations. This means that, if your child was delivered by a qualified health care provider, then you likely have only three years from the date your child was born to file a claim. If a party not meeting the New Mexico criteria for qualified health care providers was involved in delivering your child, then you may instead have three years from the date when you first noticed the birth injury – but applying that statute of limitations may require you to present substantial evidence showing when you noticed the injury, and why you should not have been aware of it sooner.
Whether the occurrence rule or the first awareness calculation for the statute of limitations in a New Mexico malpractice case makes a significant difference in your family’s situation is likely to depend heavily on when you noticed the birth injury in your child. If the birth injury was obvious during the labor and delivery process, or in the first few days after bringing your child home, then the difference may be negligible – from seconds to perhaps a few days. If, on the other hand, the effects of the birth injury took longer to manifest – on the order of weeks to months – then your timeline for filing a claim may be substantially shorter if the health care provider or providers involved in delivering your baby qualified for protection under the NMMA. In either case, you may wish to contact a birth injury lawyer with Erin Marshall Law promptly to discuss your evidence and get assistance evaluating the strength of your case.
Birth Injury Lawsuits and the Statute of Limitations for Medical Malpractice Claims Filed by Minors
For minors, the statute of limitations for a medical malpractice case of any kind does not follow the same rule regarding date of occurrence that applies to claims filed by adults. The state of New Mexico recognizes that infants are not able to file lawsuits. Consequently, for the children whose lives were affected by a medical mistake made during their delivery, the statute of limitations is altered. Rather than having three years from the date of occurrence, minors who suffer injuries caused by medical malpractice have up to one year from the date they reach majority to file their claims.
This timeline occasionally raises some practical questions, with the most obvious being that, in the time it takes for a child to grow from birth to 18, the “qualified health care provider” responsible for mistakes made during their birth may go out of practice, dissolve as a business, or pass away. In other words: The practical possibility of recovering compensation can be thwarted by the circumstances of life in the time it takes for a child’s legal ability to pursue that compensation to matter.
Who Is the Injured Party in a Birth Injury Lawsuit?
One question New Mexico residents may reasonably ask is whether the child or the parents should reasonably be the plaintiff in birth injury lawsuits. The reality is that both children and their parents may have legal claims, but for different reasons. These reasons are based on the kinds of damages they may incur as a result of the birth injury:
- Parents: Financial burden of child’s medical care, loss of income due to increased caretaking needs, long-term financial, mental, and emotional toll from the difficulties inherent in raising a child with disabilities
- Children: Limitations to personal independence, restricted mobility, lifelong disability, limitations on earning potential, increased lifetime costs of medical and other care
Not all cases will involve all of those harms, but the general rule is that parents may have a right to seek compensation for the financial and personal losses they experience in trying to care for a child who was harmed by a medical error, and a child may have a right to file his or her own claim, in adulthood, for the losses he or she personally has experienced and is projected to experience over the course of a lifetime.
Speak With a Birth Injury Lawyer
Birth injury lawsuits can be among the most emotionally challenging types to pursue. Often, the individuals or families going through these lawsuits are still struggling to come to terms with the immediate impacts of the birth injury on their personal lives. The relatively short statute of limitations for birth injury lawsuits in New Mexico can unfortunately make this combined struggle more likely, but you do not have to navigate the process unassisted. Reach out to an experienced New Mexico malpractice lawyer with Erin Marshall Law to schedule a consultation. Call 505-218-9949 today.
