Medical malpractice is one of the leading causes of death in New Mexico. When negligent medical treatment results in a patient’s death, surviving family may have a wrongful death claim to hold healthcare providers accountable for substandard medical care.
Wrongful Death Claims Involving Medical Malpractice
Under the New Mexico Wrongful Death Act (NMSA §§ 41-2-1), surviving family members can pursue a wrongful death claim when a patient dies as a result of a healthcare provider’s negligence.
The claim seeks compensation not for the losses the patient experienced but rather the the losses the family has suffered as a result of the death, including:
- The financial support the deceased would have provided
- The loss of their companionship and guidance
- Funeral and burial expenses
In addition to the wrongful death claim, New Mexico law allows the deceased patient’s estate to bring a separate survival action recovering damages the patient personally experienced between the time of the negligent act and their death, including their medical expenses, lost wages, and pain and suffering. These would have been recoverable had the patient lived.
A wrongful death claim arising from medical malpractice must meet the same legal standard as an ordinary malpractice case. The family must establish that the provider (1) owed the patient a duty of care, (2) that the provider’s treatment deviated from the accepted medical standard, and (2) that the deviation caused the patient’s death and, relatedly, the family’s personal losses related to the passing.
Pre-Suit Filing Requirements for Medical Malpractice Cases
New Mexico imposes mandatory procedural steps before a plaintiff can initiate a medical malpractice lawsuit. These are also required for wrongful death claims involving medical malpractice.
Claims against qualified healthcare providers must first be filed with the New Mexico Medical Review Commission for evaluation. A panel from the commission will then review the medical evidence and determine whether there is substantial evidence of malpractice that caused the patient’s death.
The commission’s findings are advisory, meaning a negative finding doesn’t prevent the family from proceeding to court. However, the review must be completed prior to taking further legal action; bypassing it can trigger a dismissal of the lawsuit.
Importantly, the statute of limitations is tolled (paused) while the commission reviews the case.
Who Can File a Wrongful Death Claim in New Mexico?
New Mexico law does not allow individual family members to file a wrongful death lawsuit in their own names. Under NMSA § 41-2-3, the claim must be brought by the personal representative of the deceased person’s estate. Any compensation recovered proceeds to the statutory beneficiaries following New Mexico law.
The personal representative is typically:
- The executor named in the deceased person’s will
- An administrator appointed by the probate court (if there is no will)
- A person specifically designated by the court to serve as the wrongful death personal representative
An estate must be opened and a personal representative named before the claim can formally proceed. An attorney handling a wrongful death case can help with this part of the claim.
Contact an Experienced Attorney for Help Determining if You Have a Claim
New Mexico generally gives surviving family members three years from the date of death to file a wrongful death claim arising from medical malpractice.
Our Las Cruces medical malpractice lawyer at Coates & Johnson can help you get started well in advance of the deadline. We can review the circumstances of your loved one’s death, determine whether a malpractice claim exists, and guide your family through every step of the process. Contact us today for a free consultation.