A. In all malpractice claims where liability is established, the jury shall be given a special interrogatory asking if the patient is in need of future medical care and related benefits. No inquiry shall be made concerning the value of future medical care and related benefits, and evidence relating to the value of future medical care shall not be admissible. In actions upon malpractice claims tried to the court, where liability is found, the court's findings shall include a recitation that the patient is or is not in need of future medical care and related benefits.

B. Except as provided in Section 41-5-10 NMSA 1978, once a judgment is entered in favor of a patient who is found to be in need of future medical care and related benefits or a settlement is reached between a patient and health care provider in which the provision of medical care and related benefits is agreed upon, and continuing as long as medical or surgical attention is reasonably necessary, the patient shall be furnished with all medical care and related benefits directly or indirectly made necessary by the health care provider's malpractice, subject to a semi-private room limitation in the event of hospitalization, unless the patient refuses to allow them to be so furnished.

C. Awards of future medical care and related benefits shall not be subject to the six hundred thousand dollar ($600,000) limitation imposed in Section 41-5-6 NMSA 1978.

D. Payment for medical care and related benefits shall be made as expenses are incurred.

E. The health care provider shall be liable for all medical care and related benefit payments until the total payments made by or on behalf of it for monetary damages and medical care and related benefits combined equals two hundred thousand dollars ($200,000), after which the payments shall be made by the patient's compensation fund.

F. This section shall not be construed to prevent a patient and a health care provider from entering into a settlement agreement whereby medical care and related benefits shall be provided for a limited period of time only or to a limited degree.

G. The court in a supplemental proceeding shall estimate the value of the future medical care and related benefits reasonably due the patient on the basis of evidence presented to it. That figure shall not be included in any award or judgment but shall be included in the record as a separate court finding.

H. A judgment of punitive damages against a health care provider shall be the personal liability of the health care provider. Punitive damages shall not be paid from the patient's compensation fund or from the proceeds of the health care provider's insurance contract unless the contract expressly provides coverage. Nothing in Section 41-5-6 NMSA 1978 precludes the award of punitive damages to a patient. Nothing in this subsection authorizes the imposition of liability for punitive damages on a derivative basis where that imposition would not be otherwise authorized by law.

History: 1978 Comp., § 41-5-7, enacted by Laws 1992, ch. 33, § 5; 1992, ch. 33, § 6.

Repeals and reenactments. — Laws 1991, ch. 264, § 7 repealed former 41-5-7 NMSA 1978, as amended by Laws 1991, ch. 264, § 6, and enacted a new 41-5-7 NMSA 1978, effective July 1, 1992.

Laws 1992, ch. 33, § 5 repealed former 41-5-7 NMSA 1978, as amended by Laws 1991, ch. 264, § 6, and as enacted by Laws 1991, ch. 264, § 7, and enacted a new section, effective April 1, 1992.

The 1992 amendment, effective April 1, 1995, in Subsection C, substituted "six hundred thousand dollars ($600,000)" for "five hundred thousand dollar ($500,000)".

Applicability. — Laws 1992, ch. 33, § 17, effective March 6, 1992, made the provisions of the act applicable only to occurrences arising on and after April 1, 1994.

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

Am. Jur. 2d, A.L.R. and C.J.S. references. — Validity of state statute providing for periodic payment of future damages in medical malpractice action, 41 A.L.R.4th 275.

Future disease or condition, or anxiety relating thereto, as element of recovery, 50 A.L.R.4th 13.