SENATE BILL 247

57th legislature - STATE OF NEW MEXICO - second session, 2026

INTRODUCED BY

Pat Woods

AN ACT

RELATING TO MEDICAL MALPRACTICE; ALLOWING A REPORT OF A PANEL OF THE NEW MEXICO MEDICAL REVIEW COMMISSION TO BE ADMITTED AS EVIDENCE FOR THE PURPOSE OF DEFENDING AGAINST A PLAINTIFF'S ACTION TO RECOVER PUNITIVE DAMAGES WHEN THE PANEL DETERMINES THERE IS INSUFFICIENT EVIDENCE OF MEDICAL MALPRACTICE.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 41-5-3 NMSA 1978 (being Laws 1976, Chapter 2, Section 3, as amended) is amended to read:

     "41-5-3. DEFINITIONS.--As used in the Medical Malpractice Act:

          A. "advisory board" means the patient's compensation fund advisory board;

          B. "control" means equity ownership in a business entity that:

                (1) represents more than fifty percent of the total voting power of the business entity; or

                (2) has a value of more than fifty percent of that business entity;

          C. "fund" means the patient's compensation fund;

          D. "health care provider" means a person, a corporation, an organization, a facility or an institution licensed or certified by this state to provide health care or professional services as a doctor of medicine, a hospital, an outpatient health care facility, a doctor of osteopathy, a chiropractor, [podiatrist] a podiatric physician, a nurse anesthetist, a physician's assistant, a certified nurse practitioner, a clinical nurse specialist or certified nurse-midwife or a business entity that is organized, incorporated or formed pursuant to the laws of New Mexico that provides health care services primarily through natural persons identified in this subsection. "Health care provider" does not mean a person or an entity protected pursuant to the Tort Claims Act or the Federal Tort Claims Act;

          E. "hospital" means a facility licensed as a hospital in this state that offers [in-patient] inpatient services, nursing or overnight care on a twenty-four-hour basis for diagnosing, treating and providing medical, psychological or surgical care for three or more separate persons who have a physical or mental illness, disease, injury or rehabilitative condition or are pregnant and may offer emergency services. "Hospital" includes a hospital's parent corporation, subsidiary corporations or affiliates if incorporated or registered in New Mexico; employees and locum tenens providing services at the hospital; and agency nurses providing services at the hospital. "Hospital" does not mean a person or an entity protected pursuant to the Tort Claims Act or the Federal Tort Claims Act;

          F. "independent outpatient health care facility" means a health care facility that is an ambulatory surgical center, an urgent care facility or a free-standing emergency room that is not, directly or indirectly through one or more intermediaries, controlled or under common control with a hospital. "Independent outpatient health care facility" includes a facility's employees, locum tenens providers and agency nurses providing services at the facility. "Independent outpatient health care facility" does not mean a person or an entity protected pursuant to the Tort Claims Act or the Federal Tort Claims Act;

          G. "independent provider" means a doctor of medicine, doctor of osteopathy, chiropractor, [podiatrist] podiatric physician, nurse anesthetist, physician's assistant, certified nurse practitioner, clinical nurse specialist or certified nurse-midwife who is not an employee of a hospital or an outpatient health care facility. "Independent provider" does not mean a person or an entity protected pursuant to the Tort Claims Act or the Federal Tort Claims Act. "Independent provider" includes:

                (1) a health care facility that is:

                     (a) licensed pursuant to the [Public Health Act] Health Care Code as an outpatient facility;

                     (b) not an ambulatory surgical center, an urgent care facility or a free-standing emergency room; and

                     (c) not hospital-controlled; and

                (2) a business entity that is not a hospital or an outpatient health care facility that employs or consists of members who are licensed or certified as doctors of medicine, doctors of osteopathy, chiropractors, [podiatrists] podiatric physicians, nurse anesthetists, physician's assistants, certified nurse practitioners, clinical nurse specialists or certified nurse-midwives and the business entity's employees;

          H. "insurer" means an insurance company engaged in writing health care provider malpractice liability insurance in this state;

          I. "malpractice claim" includes any cause of action arising in this state against a health care provider for medical treatment, lack of medical treatment or other claimed departure from accepted standards of health care that proximately results in injury to the patient, whether the patient's claim or cause of action sounds in tort or contract, and includes but is not limited to actions based on battery or wrongful death; "malpractice claim" does not include a cause of action arising out of the driving, flying or nonmedical acts involved in the operation, use or maintenance of a vehicular or aircraft ambulance;

          J. "medical care and related benefits" means all reasonable medical, surgical, physical rehabilitation and custodial services and includes drugs, prosthetic devices and other similar materials reasonably necessary in the provision of such services;

          K. "occurrence" means all injuries to a patient caused by health care providers' successive acts or omissions that combined concurrently to create a malpractice claim;

          L. "outpatient health care facility" means an entity that is hospital-controlled and is licensed pursuant to the [Public Health Act] Health Care Code as an outpatient facility, including ambulatory surgical centers, free-standing emergency rooms, urgent care clinics, acute care centers and intermediate care facilities and includes a facility's employees, locum tenens providers and agency nurses providing services at the facility. "Outpatient health care facility" does not include:

                (1) independent providers;

                (2) independent outpatient health care facilities; or

                (3) individuals or entities protected pursuant to the Tort Claims Act or the Federal Tort Claims Act;

          M. "panel" means a medical review panel convened by the New Mexico medical review commission;

          [M.] N. "patient" means a natural person who received or should have received health care from a health care provider, under a contract, express or implied; and

          [N.] O. "superintendent" means the superintendent of insurance."

     SECTION 2. Section 41-5-20 NMSA 1978 (being Laws 1976, Chapter 2, Section 20) is amended to read:

     "41-5-20. PANEL DELIBERATIONS AND DECISION.--

          A. The deliberations of [the] a panel shall be and remain confidential. Upon consideration of all the relevant material, the panel shall decide only two questions:

                (1) whether there is substantial evidence that the acts complained of occurred and that they constitute malpractice; and

                (2) whether there is a reasonable medical probability that the patient was injured [thereby] by the acts.

          B. All votes of the panel on the two questions for decision shall be by secret ballot. The decision shall be by a majority vote of those voting members of the panel who have sat on the entire case. The decision shall be communicated in writing to the parties and attorneys concerned, and a copy [thereof] shall be retained in the permanent files of the New Mexico medical review commission.

          C. The decision shall in every case be signed for the panel by the [chairman] chair, who shall vote only in the event the other members of the panel are evenly divided, and shall contain only the conclusions reached by a majority of its members and the number of members, if any, dissenting [therefrom]; provided, however, that if the vote is not unanimous, the majority may briefly explain the reasoning and basis for their conclusion, and the dissenters may likewise explain the reasons for disagreement.

          D. Except as provided in Subsection G of this section, the report of the [medical review] panel shall not be admissible as evidence in any action subsequently brought in a court of law. A copy of the report shall be sent to the health care provider's professional licensing board.

          E. Panelists and witnesses shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by the Medical Malpractice Act.

          F. Except as provided in Subsection G of this section, the panel's decisions shall be without administrative or judicial authority and shall not be binding on any party. The panel shall make no effort to settle or compromise any claim [nor] or express any opinion on the monetary value of any claim.

          G. If a majority of the members of the panel vote to answer either of the questions provided in Subsection A of this section in the negative, and the patient or the patient's representative chooses to continue with the malpractice claim, the report of the panel shall be admissible as evidence in a court of law for the purpose of defending against a plaintiff's action to recover punitive damages."

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