No claim for malpractice arising out of an act of malpractice which occurred subsequent to the effective date of the Medical Malpractice Act may be brought against a health care provider unless filed within three years after the date that the act of malpractice occurred except that a minor under the full age of six years shall have until his ninth birthday in which to file. This subsection [section] applies to all persons regardless of minority or other legal disability.

History: 1953 Comp., § 58-33-13, enacted by Laws 1976, ch. 2, § 13.

Bracketed material. — The bracketed material was inserted by the compiler and it is not part of the law.

Compiler's notes. — The "effective date of the Medical Malpractice Act," referred to in the first sentence, is February 27, 1976.

Cross references. — For tolling of limitations period while matter under consideration of panel, see 41-5-22 NMSA 1978.

Amended application adding a new party does not relate back to the original filing date. — The filling of an application with the medical review commission as to one provider does not toll the limitations period as to another provider who was not named in the original application and for whom the statutory period in which to file a cause of action has passed. Meza v. Topalovski, 2012-NMCA-002, 268 P.3d 1284.

Where plaintiff wrongly named a health care provider in an application before the medical review commission; plaintiff amended the application to name the correct health care provider; and the amended application to add the correct health care provider was filed more than three years after the date of the alleged malpractice by the correct health care provider, the original application did not toll the statute of limitations for the untimely application filed against the originally unnamed health care provider. Meza v. Topalovski, 2012-NMCA-002, 268 P.3d 1284.

Section 41-5-13 NMSA 1978 is an occurrence-based statute of repose rather than a discovery-based statute of limitations. Meza v. Topalovski, 2012-NMCA-002, 268 P.3d 1284.

Section 41-5-13 NMSA 1978 is a statute of repose and terminates the right to any action after the specified three-year limitation period has elapsed. Christus St. Vincent Reg'l Med. Ctr. v. Duarte-Afara, 2011-NMCA-112, 267 P.3d 70.

Occurrence rule governs claims under the Medical Malpractice Act. — Where a patient sued a medical center and a doctor who practiced at the medical center for medical malpractice; the malpractice occurred on December 9 and 10, 2004; the three-year limitation period expired on December 10, 2007; the patient filed the complaint on December 4, 2007 and served the medical center on December 11, 2007, one day after the expiration of the three-year limitation period; and the medical center filed a third party complaint against the doctor for equitable indemnification on December 22, 2008, the medical center's claim for equitable indemnification was barred. Christus St. Vincent Reg'l Med. Ctr. v. Duarte-Afara, 2011-NMCA-112, 267 P.3d 70.

Dismissal without prejudice and reinstatement of complaint. — In a medical malpractice action, where defendant performed eye surgery on plaintiff on April 28, 2003; plaintiff filed a complaint for personal injuries and medical malpractice on April 27, 2006; at the time plaintiff filed the complaint, defendant's insurance carrier had improperly cancelled defendant's insurance; after defendant's insurance company reinstated defendant's insurance, plaintiff and defendant stipulated to an order of dismissal of plaintiff's complaint; on March 20, 2008, the district court interpreted the order of dismissal as a dismissal of plaintiff's complaint, without prejudice, solely for the purpose of permitting plaintiff to obtain a review of the case by the medical malpractice commission; and reinstated plaintiff's complaint, the district court's interpretation of the order of dismissal was not an abuse of discretion and plaintiff's complaint was not barred by the three-year limitation period provided in 41-5-13 NMSA 1978, and the three-year limitation period provided in 37-1-8 NMSA 1978 stopped running at the time plaintiff filed the complaint on April 27, 2006. Pacheco v. Cohen, 2009-NMCA-070, 146 N.M. 643, 213 P.3d 793, cert. denied, 2009-NMCERT-006, 146 N.M. 733, 215 P.3d 42.

Constitutionality. — This section violates neither the equal protection nor the due process constitutional guarantees. Cummings v. X-Ray Assocs., 1996-NMSC-035, 121 N.M. 821, 918 P.2d 1321.

Due process claim. — The constitutionality of the statute of repose, which serves to cut off a malpractice claimant's right to seek recovery, will not be evaluated under the strict-scrutiny test; the claimant's due process claim requires only a rational-basis analysis. Cummings v. X-Ray Assocs., 1996-NMSC-035, 121 N.M. 821, 918 P.2d 1321.

Section violates due process. — This section violates due process because it allows medical malpractice claimants an unreasonably short period of time within which to bring an accrued cause of action. Garcia ex rel. Garcia v. La Farge, 1995-NMSC-019, 119 N.M. 532, 893 P.2d 428.

The provision in this section that requires a minor who experienced malpractice before the age of six to bring a claim under the Medical Malpractice Act [Chapter 41, Article 5 NMSA 1978] by his or her ninth birthday violates due process. Jaramillo v. Heaton, 2004-NMCA-123, 136 N.M. 498, 100 P.3d 204, cert. denied, 2004-NMCERT-010, 136 N.M. 541, 100 P.3d 807.

Due process exception to three-year period of repose. — Due process requires that a plaintiff have a reasonable amount of time in which to commence suit after any late-accruing medical malpractice claim has accrued, and therefore plaintiffs with late-accruing medical malpractice claims, i.e., claims accruing in the last twelve months of the three-year repose period, shall have twelve months from the time of accrual to commence suit. Cahn v. Berryman, 2018-NMSC-002, aff'g 2015-NMCA-078, 355 P.3d 58 and overruling in part Garcia ex rel. Garcia v. LaFarge, 1995-NMSC-019, 119 N.M. 532, 893 P.2d 428.

Where plaintiff discovered that she had a medical malpractice claim against defendant ten and one-half months before the three-year statute of repose expired, the due process exception to 41-5-13 NMSA 1978 provided plaintiff an additional twelve months in which to commence suit, but where twenty-one months elapsed between the accrual date of plaintiff's medical malpractice claim and the date she filed suit, plaintiff's claim was barred by 41-5-13 NMSA 1978. Cahn v. Berryman, 2018-NMSC-002, aff'g 2015-NMCA-078, 355 P.3d 58 and overruling in part Garcia ex rel. Garcia v. LaFarge, 1995-NMSC-019, 119 N.M. 532, 893 P.2d 428.

Due process analysis. — The legislature may impose a statutory time deadline for commencing a cause of action as long as a reasonable time is provided for commencing suit. If a plaintiff is left with an unconstitutionally short period of time to file suit within the period of statute of repose, due process is violated. To fall under the due process exception to the statute of repose, the case must be unusual and involve exceptional circumstances resulting in an unusually short period of time within which to file suit. Cahn v. Berryman, 2015-NMCA-078, cert. granted, 2015-NMCERT-007.

Section does not violate due process as applied. — Where plaintiff discovered she had a malpractice claim against defendant ten and one-half months before the statute of repose expired, and during the entire ten and one-half months period of time, the means for discovering defendant's identity were available and within plaintiff's control, plaintiff's due process rights were not violated because the ten and one-half month period was a constitutionally reasonable amount of time for plaintiff to bring her medical malpractice suit against defendant; plaintiff's claims against defendant were barred by this section when plaintiff filed suit against defendant eleven months after the three-year statute of repose expired. Cahn v. Berryman, 2015-NMCA-078, cert. granted, 2015-NMCERT-007.

Section does not violate equal protection. — Where a patient sued a medical center and a doctor who practiced at the medical center for medical malpractice; the three-year limitation period expired on December 10, 2007; the patient filed the complaint on December 4, 2007 and served the medical center on December 11, 2007, one day after the expiration of the three-year limitation period; and the medical center's third party complaint against the doctor for equitable indemnification, which was filed on December 22, 2008, was barred, the preclusive effect of 41-5-13 NMSA 1978 did not violate the medical center's due process rights. Christus St. Vincent Reg'l Med. Ctr. v. Duarte-Afara, 2011-NMCA-112, 267 P.3d 70.

This section, as a statute of repose, does not implicate equal protection considerations because it operates uniformly upon all medical malpractice plaintiffs. Garcia ex rel. Garcia v. La Farge, 1995-NMSC-019, 119 N.M. 532, 893 P.2d 428.

Rational basis for classification. — The classification of health care providers created by this section is supported by a rational basis. Cummings v. X-Ray Assocs., 1996-NMSC-035, 121 N.M. 821, 918 P.2d 1321.

Assuring adequate malpractice insurance. — By offering to qualified health care providers certain benefits that are not available to those who are not qualified, the legislature furthers its stated goal of assuring adequate malpractice insurance coverage in the New Mexico medical profession; this section was reasonably drafted to further a legitimate government interest. Cummings v. X-Ray Assocs., 1996-NMSC-035, 121 N.M. 821, 918 P.2d 1321.

Section does not violate prohibition against special legislation. — This section does not violate the prohibition against special legislation because it was within the competence of the legislature to determine that the high costs of malpractice insurance distinguish the class of health care providers from the class of tortfeasors generally. Garcia ex rel. Garcia v. La Farge, 1995-NMSC-019, 119 N.M. 532, 893 P.2d 428.

Malpractice action does not implicate fundamental rights. — A malpractice claim is an attempt by a patient to obtain something he or she does not yet possess: monetary compensation for an injury caused by the negligence of a health care practitioner. As such, a medical malpractice claim generally does not, for the patient, implicate any fundamental rights such as First Amendment rights, freedom of association, voting, interstate travel, privacy, and fairness in the deprivation of life, liberty or property. Cummings v. X-Ray Assocs., 1996-NMSC-035, 121 N.M. 821, 918 P.2d 1321.

Section not applicable to non-qualified health care providers. — The Medical Malpractice Act's statute of limitations does not apply to health care providers that have not qualified under Subsection A of 41-5-5 NMSA 1978. Roberts v. Southwest Cmty. Health Servs., 1992-NMSC-042, 114 N.M. 248, 837 P.2d 442.

Section applicable to wrongful death action based on malpractice. — The specific inclusion of a wrongful death claim within the definition of a malpractice claim makes the limitation period of this section applicable to a claim of malpractice resulting in wrongful death. Armijo v. Tandysh, 1981-NMCA-098, 98 N.M. 181, 646 P.2d 1245, cert. quashed, 98 N.M. 336, 648 P.2d 794 (1982), and cert. denied, 459 U.S. 1016, 103 S. Ct. 377, 74 L. Ed. 2d 510 (1982), overruled on other grounds by Roberts v. Southwest Cmty. Health Servs., 1992-NMSC-042, 114 N.M. 248, 837 P.2d 442; Mackey v. Burke, 1984-NMCA-028, 102 N.M. 294, 694 P.2d 1359, cert. quashed, 102 N.M. 293, 694 P.2d 1358 (1985), overruled on other grounds by Chavez v. Regents of Univ. of N.M., 1985-NMSC-114, 103 N.M. 606, 711 P.2d 883.

Section inapplicable to minor beneficiaries under Wrongful Death Act. — The tolling provisions applicable to minors under the age of nine years contained in this section apply only to minors who suffer an alleged act of malpractice and not to minors who are beneficiaries under the Wrongful Death Act [41-2-1 NMSA 1978]. Moncor Trust Co. ex rel. Flynn v. Feil, 1987-NMCA-015, 105 N.M. 444, 733 P.2d 1327, cert. denied, 105 N.M. 421, 733 P.2d 869.

Construction with Tort Claims Act. — District court correctly applied the law when it estopped the doctor from asserting the statute of limitations defense under 41-4-15 NMSA 1978 because by choosing to place the doctor at a private institution, and not identify him as a public employee working in a public capacity, the state engaged in conduct that conveyed the indisputable impression to persons wishing to assert a claim that the doctor was an employee of the private institution and therefore the limitation for private entities applied. Hagen v. Faherty, 2003-NMCA-060, 133 N.M. 605, 66 P.3d 974, cert. denied, 133 N.M. 593, 66 P.3d 962.

Occurrence rule governs claims under the Medical Malpractice Act. — The accrual date in which a patient must file a claim for medical malpractice is the date of the act or occurrence of the medical malpractice even if the patient is oblivious of any harm. Christus St. Vincent Reg'l Med. Ctr. v. Duarte-Afara, 2011-NMCA-112, 267 P.3d 70, cert. granted, 2011-NMCERT-010.

When cause of action accrues. — The accrual date in which a patient must file a claim for medical malpractice is the date of the act or occurrence of the medical malpractice even if the patient is oblivious of any harm. Christus St. Vincent Reg'l Med. Ctr. v. Duarte-Afara, 2011-NMCA-112, 267 P.3d 70.

In medical malpractice actions where the health care provider is not qualified under the Medical Malpractice Act [Chapter 41, Article 5 NMSA 1978], the cause of action accrues when the plaintiff knows or with reasonable diligence should have known of the injury and its cause. Roberts v. Southwest Cmty. Health Servs., 1992-NMSC-042, 114 N.M. 248, 837 P.2d 442.

The triggering event of this section is determined by the occurrence rule. This event is unrelated to the accrual date of the cause of action, and does not entail whether the injury has even been discovered. In this sense, if, four years after the occurrence of medical malpractice, a patient learns they have been injured, their claim is forever barred because this section functions as a statute of repose. Cummings v. X-Ray Assocs., 1996-NMSC-035, 121 N.M. 821, 918 P.2d 1321.

When cause of action for negligently prescribed medication accrues. — In a wrongful prescription case, the term "act of malpractice" refers to the discrete act taken by a health care provider of prescribing medication to a patient, not to any subsequent act of the patient and the three-year statute of limitations in 41-5-13 NMSA 1978 begins to run on the date medication is prescribed. Chavez v. Delgado, 2014-NMCA-014, cert. denied, 2013-NMCERT-012.

Where, on November 11, 2008, the patient requested a prescription for Simvastatin and the physician wrote the prescription; the next day, the physician called the prescription to the patient's pharmacy; the patient filled the prescription on December 3, 2008; on December 8, 2008, the patient was hospitalized with drug-induced rhabdomyolysis, purportedly caused by the interaction of Simvastatin and another medication the patient was taking; the patient died on February 21, 2010; and plaintiffs filed suit on December 1, 2011, the three-year statue of limitations began to run on November 11, 2008, the day the physician prescribed Simvastatin to the patient, and plaintiffs' claims against the physician were barred. Chavez v. Delgado, 2014-NMCA-014, cert. denied, 2013-NMCERT-012.

Fraudulent concealment. — There is no fraudulent concealment exception to the occurrance rule in this section; thus the statute of limitations did not toll for a plaintiff who filed an action more than three years after the act of malpractice, where she learned of the negligent act within the three-year period and in adequate time to file a malpractice action within three years, exercising ordinary diligence. Tomlinson v. George, 2003-NMCA-004, 133 N.M. 69, 61 P.3d 195, aff'd, 2005-NMSC-020, 138 N.M. 34, 116 P.3d 105.

To toll statute of limitations under doctrine of fraudulent concealment, a patient has the burden of showing: (1) that the physician knew of the alleged wrongful act and concealed it from the patient or had material information pertinent to its discovery which the physician failed to disclose, and (2) that the patient did not know, or could not have known through the exercise of reasonable diligence, of the patient's cause of action within the statutory period. Kern ex rel. v. St. Joseph Hosp., 1985-NMSC-031, 102 N.M. 452, 697 P.2d 135.

Fraudulent concealment requires a plaintiff to demonstrate that the defendant physician knew of the alleged negligent act and concealed the negligent act from the patient or had material information pertinent to discovery of the negligent act which the defendant failed to disclose. Tomlinson v. George, 2005-NMSC-020, 138 N.M. 34, 116 P.3d 105.

Fraudulent concealment requires that the plaintiff demonstrate that he or she did not know, and could not have discovered through the exercise of reasonable diligence, his or her cause of action during the statutory period. Tomlinson v. George, 2005-NMSC-020, 138 N.M. 34, 116 P.3d 105.

Questions for fact finder in fraudulent concealment. — The question of a physician's knowledge of the error or concealment of pertinent facts that might have reasonably led to the discovery of the error and the related question of the patient's due diligence in discovering the cause of action are ordinarily for determination by the finder of fact. Kern ex rel. v. St. Joseph Hosp., 1985-NMSC-031, 102 N.M. 452, 697 P.2d 135.

Statute tolled by nondisclosure of pertinent, not reasonably discoverable, facts. — The statute of limitations may be tolled where a physician has knowledge of facts relating to medical malpractice and fails to disclose such facts to the patient under circumstances where the patient may not be reasonably expected to learn of the improper acts. Keithley v. St. Joseph's Hosp., 1984-NMCA-104, 102 N.M. 565, 698 P.2d 435.

Proof required with allegation that statute tolled by fraud. — A plaintiff who alleges that the statute has been tolled by fraud, either active or passive, must establish that she did not have the means to discover the fraud. Keithley v. St. Joseph's Hosp., 1984-NMCA-104, 102 N.M. 565, 698 P.2d 435.

Fraudulent concealment inapplicable. — If a plaintiff discovers the injury within the time limit, fraudulent concealment does not apply because the defendant's actions have not prevented the plaintiff from filing the claim within the time period and the equitable remedy is not necessary. Tomlinson v. George, 2005-NMSC-020, 138 N.M. 34, 116 P.3d 105.

Statute of repose is not tolled by fraudulent concealment when the plaintiff knew of his or her cause of action within the statutory period. Tomlinson v. George, 2005-NMSC-020, 138 N.M. 34, 116 P.3d 105.

Metastasis of cancer not relevant trigger. — The plain language of this section establishes the date of the act of malpractice as the only relevant factor, without any reference to any subsequent harm; in New Mexico, the patient's awareness of metastasis of cancer is not the trigger for purposes of the statute of limitations. Cummings v. X-Ray Assocs., 1996-NMSC-035, 121 N.M. 821, 918 P.2d 1321.

Claim barred. — An action by an employee against the physician employed by the employer to perform the medical examination was time barred since the examination occurred more than three years preceding the filing of the cause of action; however, an action against the employer was not barred since the employee was subsequently examined by a physician's assistant at the direction of the employer within the time period. Baer v. Regents of Univ. of Cal., 1994-NMCA-124, 118 N.M. 685, 884 P.2d 841.

Business entities qualify as health care providers. — Professional corporations and other types of professional medical organizations under which a medical professional operates are eligible to qualify as "health care providers" under the Medical Malpractice Act [Chapter 41, Article 5 NMSA 1978] and are entitled to the benefits of the act when they are sued for medical malpractice as long as they employ or consist of members who are licensed or certified by the state to provide the medical services listed in Subsection A of 41-5-3 NMSA 1978. Baker v. Hedstrom, 2013-NMSC-043, aff'g on other grounds, 2012-NMCA-073.

Business entities, such as professional corporations and limited liability companies, that are involved in the medical treatment of patients and that are neither hospitals nor outpatient health care facilities, qualify as health care providers. Baker v. Hedstrom, 2012-NMCA-073, 284 P.3d 400, cert. granted, 2012-NMCERT-007.

Evidence insufficient to toll statute of limitations. Ealy v. Sheppeck, 1983-NMCA-049, 100 N.M. 250, 669 P.2d 259, overruled in part by Juarez v. Nelson, 2003-NMCA-011, 133 N.M. 168, 61 P.3d 877.

The statute of limitations was not tolled by fraudulent concealment on the part of the doctor as two different people told the individual that the doctor did not do all that he could have for the individual's husband. Juarez v. Nelson, 2003-NMCA-011, 133 N.M. 168, 61 P.3d 877, overruled on other grounds by Tomlinson v. George, 2005-NMSC-020, 138 N.M. 34, 116 P.3d 105.

Dismissal without prejudice. — Where the court had entered a stipulated order staying the proceedings until 30 days after the medical review commission rendered a decision on plaintiff's claim, and defendant filed a motion to lift the stay after plaintiff did not file an application with the commission, because the statute of limitations had run, the dismissal without prejudice effectively dismissed the case on a permanent basis. Belser v. O'Cleireachain, 2005-NMCA-073, 137 N.M. 623, 114 P.3d 303, cert. denied, 2005-NMCERT-006, 137 N.M. 766, 115 P.3d 229.

Law reviews. — For article, "Medical Malpractice Legislation in New Mexico," see 7 N.M.L. Rev. 5 (1976-77).

For comment on access to the courts and the Medical Malpractice Act: Jiron v. Mahlab, see 14 N.M.L. Rev. 503 (1984).

For survey of medical malpractice law in New Mexico, see 18 N.M.L. Rev. 469 (1988).

For note and comment, "Statutes of Limitations Applied to Minors and the New Mexico Court of Appeals' Balance of Competing State Interests to Favor Children," see 35 N.M. L. Rev. 535 (2005).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Statute of limitations applicable to malpractice action against physician, surgeon, dentist, or similar practitioner, 80 A.L.R.2d 320, 70 A.L.R.4th 535.

When statute of limitations commences to run against malpractice action based on leaving foreign substance in patient's body, 70 A.L.R.3d 7.

Amendment purporting to change the nature of the action or theory of recovery made after statute of limitations has run, as relating back to filing of original complaint, 70 A.L.R.3d 82.

Statute of limitations relating to medical malpractice actions as applicable to actions against unlicensed practitioner, 70 A.L.R.3d 114.

When statute of limitations begins to run against malpractice action in connection with sterilization or birth control procedures, 93 A.L.R.3d 218.

When statute of limitations begins to run in dental malpractice suits, 3 A.L.R.4th 318.

What statute of limitations governs physician's action for wrongful denial of hospital privileges, 3 A.L.R.4th 1214.

Statute of limitations applicable to third person's action against psychiatrist, psychologist, or other mental health practitioner, based on failure to warn persons against whom patient expressed threats, 41 A.L.R.4th 1078.

Applicability of "foreign object" exception in medical malpractice statutes of limitations, 50 A.L.R.4th 250.

Medical malpractice statutes of limitation minority provisions, 62 A.L.R.4th 758.

Medical malpractice: statute of limitations in wrongful death action based on medical malpractice, 70 A.L.R.4th 535.

Medical malpractice: when limitations period begins to run on claim for optometrist's malpractice, 70 A.L.R.4th 600.

Medical malpractice: who are "health care providers," or the like, whose actions fall within statutes specifically governing actions and damages for medical malpractice, 12 A.L.R.5th 1.

Medical malpractice statutes of limitation minority provisions, 71 A.L.R.5th 307.

70 C.J.S. Physicians and Surgeons §§ 107, 108.