N.M. Stat. » N.M. Stat. / Chapter 41 / Article 4
New Mexico Statutes

N.M. Stat. § 41-4-10 (2026)

Liability; health care providers.

✓ current as of May 2026
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The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does
not apply to liability for damages resulting from bodily injury, wrongful death or property
damage caused by the negligence of public employees licensed by the state or
permitted by law to provide health care services while acting within the scope of their
duties of providing health care services.

History: 1953 Comp., § 5-14-10, enacted by Laws 1976, ch. 58, § 10; 1977, ch. 386, §
7; 1978, ch. 166, § 2.

                                     ANNOTATIONS

Emergency clauses. — Laws 1978, ch. 166, § 20 contained an emergency clause and
was approved April 6, 1978.

"Public employees". — Employees at a community mental health facility regulated by
the health and environment department (now department of health) were not "public
employees" within the meaning of the Tort Claims Act [41-4-1 through 41-4-27 NMSA
1978] because the regulatory scheme did not give the department the right to control
the details of the work of the facility. Armijo v. Department of Health & Env't, 1989-
NMCA-043, 108 N.M. 616, 775 P.2d 1333.

Health care providers. — The legislature, in partially waiving the state's sovereign
immunity, clearly intended to limit "health care providers" to those who cure or prevent
impairments of the normal state of the body. M.D.R. v. State ex rel. Human Servs.
Dep't, 1992-NMCA-052, 114 N.M. 187, 836 P.2d 106.

Law reviews. — For article, "Constitutional Torts and the New Mexico Torts Claims
Act," see 13 N.M.L. Rev. 1 (1983).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 40 Am. Jur. 2d Hospitals §§ 15, 38.

Liability of private, noncharitable hospital or sanitarium for improper care or treatment of
patients, 22 A.L.R. 341, 39 A.L.R. 1431, 124 A.L.R. 186.

Immunity from liability for damages in tort of state or governmental unit or agency in
operating hospital, 25 A.L.R.2d 203, 18 A.L.R.4th 858.

Governmental tort liability for injuries caused by negligently released individual, 6
A.L.R.4th 1155.

Liability for wrongful autopsy, 18 A.L.R.4th 858.
Physician's liability to third person for prescribing drug to known drug addict, 42
A.L.R.4th 586.

Liability of hospital or sanitarium for negligence of physician or surgeon, 51 A.L.R.4th
235.

Liability for injury or death allegedly caused by activities of hospital "rescue team", 64
A.L.R.4th 1200.

Medical malpractice in performance of legal abortion, 69 A.L.R.4th 875.

Liability of hospital for injury to person invited or permitted to accompany patient during
emergency room treatment, 90 A.L.R.4th 478.

Liability of hospital, physician, or other medical personnel for death or injury from use of
drugs to stimulate labor, 1 A.L.R.5th 243.

Hospital liability as to diagnosis and care of patients in emergency room, 58 A.L.R.5th
613.

Liability of hospital or medical practitioner under doctrine of strict liability in tort, or
breach of warranty, for harm caused by drug, medical instrument, or similar device used
in treating patient, 65 A.L.R.5th 357.

14 C.J.S. Charities § 58; 20 C.J.S. Counties § 166.
Notes of Decisions
Cited in 23 cases (4 in the last 5 years), 1985–2026 · leading case: Silva v. State, 745 P.2d 380 (N.M. 1987).
Sort: Relevance Newest Treatment
Silva v. State, 745 P.2d 380 (N.M. 1987). · cites it 8× “" Section 41-4-9 waives immunity for negligence of public employees "in the operation of any hospital, infirmary * * * *" Under Section 41-4-10 immunity is waived for "public employees licensed by the state or permitted by law to provide health care services.”
Lymon v. Aramark Corp., 728 F. Supp. 2d 1222 (D.N.M. 2010). · cites it 5× “…NMSA 1978, § 41-4-8 (operation of public utilities); NMSA 1978, § 41-4-9 (operation of medical facilities); NMSA 1978, § 41-4-10 (providing healthcare services); NMSA 1978, § 41-4-11 (construction and maintenance of streets and highways).”
Armijo v. Dep't of Health & Env., 775 P.2d 1333 (N.M. Ct. App. 1989). · cites it 13× “[1] These are: (1) whether, by virtue of an extensive regulatory scheme, HED employees are public employees who "operated" a community mental health facility within the meaning of Section 41-4-9; and (2) whether the employees of the facility are themselves public employees who…”
Archibeque v. Moya, 866 P.2d 344 (N.M. 1993). · cites it 4× “We noted that the Secretary's immunity might be waived under one or more of three provisions of the Tort Claims Act: Section 41-4-6, Section 41-4-9 (immunity waived for negligent operation of any hospital, infirmary, mental institution, clinic dispensary, medical care home, or…”
Montaño v. Frezza, 2017 NMSC 15 (N.M. 2017). · cites it 5× “See § 41-4-2(A) (establishing that “governmental entities and public employees” can be held liable within the limitations set forth by the NMTCA); § 41-4-10 (stating that health care providers can be liable under the NMTCA for injuries caused by negligence in the provision of…”
Begay v. State, 723 P.2d 252 (N.M. Ct. App. 1985). · cites it 4× “No cases are cited to support the argument that the action complained of falls within this waiver, but logic would support the proposition that the decision to perform an autopsy does not involve health care.”
Gallegos v. Trujillo, 839 P.2d 645 (N.M. Ct. App. 1992). · cites it 6× “Plaintiffs also contend that Section 41-4-10 constitutes a waiver of immunity so as to authorize the filing of a negligence action against the Board in the present case.”
Wilson v. Grant Cnty., 869 P.2d 293 (N.M. Ct. App. 1994). · cites it 6× “As an illustration, we note that health care providers are also specifically addressed in the Act, in Section 41-4-10. Section 41-4-10 waives immunity for public employees providing health care services.”
Armijo ex rel. Saulsberry v. Dep't of Health & Env't, 775 P.2d 1333 (N.M. Ct. App. 1989). · cites it 13× “1 These are: (1) whether, by virtue of an extensive regulatory scheme, HED employees are public employees who “operated” a community mental health facility within the meaning of Section 41-4-9; and (2) whether the employees of the facility are themselves public employees who…”
Hill v. Vanderbilt Capital Advisors, LLC, 834 F. Supp. 2d 1228 (D.N.M. 2011). “1978, § 41-4-10 (for negligence by health care providers); N.”
Chavez v. Regents of the Univ. of New Mexico, 711 P.2d 883 (N.M. 1985). “The Tort Claims Act waives immunity for liability for wrongful death negligently caused by public employees of medical facilities, § 41-4-9, or those licensed by the State to provide health care services, § 41-4-10.”
M.D.R. ex rel. M.R. v. State ex rel. Human Servs. Dep't, 836 P.2d 106 (N.M. Ct. App. 1992). · cites it 4× “” We cannot agree that the placement of a child in a foster home is the provision of “health care services” under Section 41-4-10, which provides: The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for damages resulting from…”
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