Most people are aware of the concept of a statute of limitations period which is a time frame in which a claim must be brought or is lost forever. There are many subtleties that must be understood as well and it is these that cause injured people the most problems.
There are different limitations periods for different types of claims. For example, in New Mexico, there is a three-year statute of limitations period for a personal injury claim. Personal injury claims encompass claims in which a person is injured due to a car accident, slip and fall, medical negligence or malpractice and any other type injury to the person that is because of some other person or entity‘s negligence.
However, that three-year limitation period has some conditions. The three years applies to claims against a person or entity that is not a public entity. Public entities are municipalities, counties and states, and their agencies. There are also numerous hospitals that are public entities, some obvious which are tied to a state university, such as the University of New Mexico Hospital, and some not, with names that do not immediately suggest that the entity is public.
In cases involving public entities, the statute of limitations for bringing a personal injury claim is two years, with a notice requirement that obligates the injured party to notify the potential at-fault public entity within 90 days for a personal injury, or six months if the claim is for a wrongful death.
To further complicate the matter, in New Mexico there is a statute that is applicable to injury claims against some doctors or healthcare providers, but not all. The Medical Malpractice Act (Act), NMSA 1978, Sections 41-5-1 to -29 (1976 as amended through 2008) is stated to be a patient‘s compensation fund, that provides excess insurance for medical negligence claims worth more than $200,000, excluding punitive damages.
To qualify as a “qualified healthcare provider” under the Act, the doctor must pay a surcharge and have insurance coverage of $200,000 per occurrence or deposit that amount with the Superintendent of Insurance. Pursuant to the statute covering these healthcare providers, any claim must be brought against the doctor or healthcare provider within three years of the date of the negligent act.
This differs signficantly from the general statute of limitations for personal injury actions which requires the action be brought within three years from when the plaintiff “discovers, or reasonably should discover” the existence of his or her claim. The difficulty with the claim against the qualified healthcare provider is that the potential plaintiff might not even know of the existence of his claim until three years AFTER the date of the negligent act. Under the statute, the claim is barred and the potential plaintiff cannot bring his claim.
While there is no good answer to what is arguably completely unfair to a party who has been injured through medical negligence, the best advice is to consult an experienced personal injury attorney immediately when one has a concern that he or she might have suffered harm through medical negligence.
An attorney can quickly determine if the doctor or healthcare provider is a “qualified healthcare provider” under the Act, and file an immediate application with the Medical Review Commission to evaluate the claim. The filing of the panel application stops the running of the statute until the panel makes a decision. After the decision, the claimant can determine if pursuit of the claim is worthwhile or not.