New Mexico Statutes

N.M. Stat. § 41-5-5 (2026)

Qualifications.

✓ current as of May 2026

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A. To be qualified under the provisions of the Medical Malpractice Act, a health care
provider, except an independent outpatient health care facility, shall:

(1) establish its financial responsibility by filing proof with the superintendent
that the health care provider is insured by a policy of malpractice liability insurance
issued by an authorized insurer in the amount of at least two hundred fifty thousand
dollars ($250,000) per occurrence or by having continuously on deposit the sum of
seven hundred fifty thousand dollars ($750,000) in cash with the superintendent or such
other like deposit as the superintendent may allow by rule; provided that hospitals and
hospital-controlled outpatient health care facilities that establish financial responsibility
through a policy of malpractice liability insurance may use any form of malpractice
insurance; and provided further that for independent providers, in the absence of an
additional deposit or policy as required by this subsection, the deposit or policy shall
provide coverage for not more than three separate occurrences; and

(2) pay the surcharge assessed on health care providers by the
superintendent pursuant to Section 41-5-25 NMSA 1978.
B. To be qualified under the provisions of the Medical Malpractice Act, an
independent outpatient health care facility shall:

(1) establish its financial responsibility by filing proof with the superintendent
that the health care provider is insured by a policy of malpractice liability insurance
issued by an authorized insurer in the amount of at least five hundred thousand dollars
($500,000) per occurrence or by having continuously on deposit the sum of one million
five hundred thousand dollars ($1,500,000) in cash with the superintendent or other like
deposit as the superintendent may allow by rule; provided that for independent
outpatient health care facilities, in the absence of an additional deposit or policy as
required by this subsection, the deposit or policy shall provide coverage for not more
than three separate occurrences; and

(2) pay the surcharge assessed on independent outpatient health care
facilities by the superintendent pursuant to Section 41-5-25 NMSA 1978.

C. For hospitals or hospital-controlled outpatient health care facilities electing to be
covered under the Medical Malpractice Act, the superintendent shall determine, based
on a risk assessment of each hospital or hospital-controlled outpatient health care
facility, each hospital's or hospital-controlled outpatient health care facility's base
coverage or deposit and additional charges for the fund. The superintendent shall
arrange for an actuarial study before determining base coverage or deposit and
surcharges.

D. A health care provider not qualifying under this section shall not have the benefit
of any of the provisions of the Medical Malpractice Act in the event of a malpractice
claim against it; provided that beginning July 1, 2021, hospitals and hospital-controlled
outpatient health care facilities shall not participate in the medical review process, and
beginning January 1, 2027, hospitals and hospital-controlled outpatient health care
facilities shall have the benefits of the other provisions of the Medical Malpractice Act
except participation in the fund.

History: 1978 Comp., § 41-5-5, enacted by Laws 1992, ch. 33, § 2; 2021, ch. 16, § 2;
2023, ch. 207, § 2.

ANNOTATIONS

Repeals and reenactments. — Laws 1991, ch. 264, § 2 repealed former 41-5-5 NMSA
1978, as amended by Laws 1991, ch. 264, § 1, and enacted a new 41-5-5 NMSA 1978,
effective July 1, 1992.

Laws 1992, ch. 33, § 2 repealed former 41-5-5 NMSA 1978, as amended by Laws
1991, ch. 264, § 1, and as enacted by Laws 1991, ch. 264, § 2, and enacted a new
section, effective April 1, 1992.
The 2023 amendment, effective June 16, 2023, provided separate qualification
provisions for independent outpatient health care facilities; in Subsection A, in the
introductory clause, after "health care provider", added "except an independent
outpatient health care facility"; in Paragraph A(1), after "provided that hospitals and",
added "hospital-controlled"; added a new Subsection B; redesignated former
Subsections B and C as Subsections C and D, respectively; in Subsection C, added
"hospital-controlled" preceding each occurrence of "outpatient health care facility" and
"outpatient health care facilities"; and in Subsection D, added "hospital-controlled"
preceding each occurrence of "outpatient health care facilities".

The 2021 amendment, effective January 1, 2022, raised the required malpractice
insurance from two hundred thousand dollars to two hundred fifty thousand dollars,
raised the required amount of cash deposited with the superintendent of insurance from
six hundred thousand dollars to seven hundred fifty thousand dollars; provided
additional duties for the superintendent of insurance; provided that hospitals and
outpatient health care facilities shall not participate in the medical review process, and
that hospitals and outpatient health care facilities shall not participate in the patient's
compensation fund beginning in the year 2027; in Subsection A, Paragraph A(1), after
"at least", changed "two hundred thousand dollars ($200,000)" to "two hundred fifty
thousand dollars ($250,000)", after "per occurrence or", deleted "for an individual health
care provider, excluding hospitals and outpatient health care facilities", after "deposit the
sum of", changed "six hundred thousand dollars ($600,000)" to "seven hundred fifty
thousand dollars ($750,000)", and after "provided that", added "hospitals and outpatient
health care facilities that establish financial responsibility through a policy of malpractice
liability insurance may use any form of malpractice insurance; and provided further that
for independent providers"; in Subsection B, after "additional charges for the", deleted
"patient's compensation", and after "actuarial study", deleted "as provided in Section 41-
5-25 NMSA 1978" and added "before determining base coverage or deposit and
surcharges"; and in Subsection C, after "malpractice claim against it", added the
remainder of the subsection.

Statute of limitations. — The Medical Malpractice Act's statute of limitations, 41-5-13
NMSA 1978, does not apply to health care providers that have not qualified under
Subsection A of this section. Roberts v. Southwest Cmty. Health Servs., 1992-NMSC-
042, 114 N.M. 248, 837 P.2d 442.

Grant of summary judgment in favor of the hospital was reversed even though summary
judgment was granted in favor of the doctor; the hospital could not take advantage of
the statute of limitation in 41-5-13 NMSA 1978, as it was not a qualified healthcare
provider under Subsection C of this section. 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.

Accrual of cause of action where provider has not qualified. — 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.

Superintendent to maintain list of qualified providers. — This section creates in the
superintendent of insurance some requirement to maintain a list of those whose
qualified status affects suits against them. Otero v. Zouhar, 1985-NMSC-021, 102 N.M.
482, 697 P.2d 482, overruled on other grounds by Grantland v. Lea Reg'l Hosp., 1990-
NMSC-076, 110 N.M. 378, 796 P.2d 599.

Federal hospital. — Although a federal hospital did not file proof of its financial
responsibility as required by Paragraph A(1) and never paid into the patient's
compensation fund as required by Paragraph A(2), it is a "qualified health care provider"
under this section, as the financial responsibility of the United States is assured and its
failure to contribute to a compensation fund is immaterial because (unlike qualified
providers) it must pay its liabilities without resort to the compensation fund. Haceesa v.
United States, 309 F.3d 722 (10th Cir. 2002).

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).

Notes of Decisions

Cited in 43 cases (12 in the last 5 years), 1976–2026 · leading case: Roberts v. Sw. Cmty. Health Servs., 837 P.2d 442 (N.M. 1992).

Sort: Relevance Newest Treatment

Roberts v. Sw. Cmty. Health Servs., 837 P.2d 442 (N.M. 1992). · cites it 26× “1 The Act establishes medical malpractice liability coverage, Section 41-5-25, and, in addition, provides other benefits to those providers who choose to become qualified in accordance with Section 41-5-5(A). Section 41-5-5(C) of the Act specifically limits its benefits to those…”

Leger v. Gerety, 444 P.3d 1036 (N.M. Ct. App. 2018). · cites it 24× “” 11 {4} After obtaining review and decision by the Medical Review Commission (as 12 required for malpractice claims against a health care provider covered by the 13 MMA, see §§ 41-5-5, -14, -15(A)) and the district court’s leave to file, PHS filed a 14 third-party complaint…”

Cummings v. X-Ray Assocs. of New Mexico, P. C., 918 P.2d 1321 (N.M. 1996). · cites it 7× “See § 41-5-5. In Roberts we concluded that if the malpractice was performed by a wow-qualified health care provider, the patient’s right to bring a cause of action is tolled from the discovery of the injury, rather than from the act of malpractice.”

Leger v. Gerety, 2022 NMSC 007 (N.M. 2021). · cites it 7× “{17} The MMA’s procedural requirements apply to the indemnity claim against Respondents for two interconnected reasons.”

Juarez v. Nelson, 61 P.3d 877 (N.M. Ct. App. 2002). · cites it 6× “Section 41-5-5(B). We agree with Plaintiffs that if we were to allow PHS to piggyback upon Dr.”

State v. Blakley, 568 P.2d 270 (N.M. Ct. App. 1977). · cites it 7× “Section 41-5-5, N.M.S.A.1953 (2d Repl. Vol.”

Romero v. Lovelace Health Sys., Inc., 2020 NMSC 001 (N.M. 2019). · cites it 6× ““[Q]ualified” health care providers are those who meet certain financial requirements set forth in Section 41-5-5 and are therefore entitled to all the benefits of the MMA.”

Armijo v. Tandysh, 646 P.2d 1245 (N.M. Ct. App. 1982). · cites it 4× “Section 41-5-5, N.M.S.A. 1978, in Paragraph A, does provide for qualifying.”

Baker v. Hedstrom, 2013 NMSC 043 (N.M. 2013). · cites it 4× “See § 41-5-5 (listing the qualifications requirements).”

Baker v. Hedstrom, 2012 NMCA 73 (N.M. Ct. App. 2012). · cites it 3× “The MMA defines “health care provider” as “a person, corporation, organization, facility[,] or institution licensed or certified by this state to provide health care or professional services as a doctor of medicine, hospital, outpatient health care facility, doctor of…”

Garcia on Behalf of Garcia v. La Farge, 893 P.2d 428 (N.M. 1995). · cites it 2× “Section 41-5-13 may be viewed as a reasonable benefit accorded to those health care providers who accept the concomitant burden of obtaining occurrence-based malpractice insurance, Section 41-5-5(A)(1) (requiring health care providers to prove coverage by a one hundred thousand…”

Cahn v. Berryman, 2018 NMSC 2 (N.M. 2017). · cites it 2× “, Section 41-5-5(A)(2) (making reference to specific provisions in Section 41-5-25).”

Show all 43 citing cases →

— N.M. Stat. § 41-5-5(A) — 9 cases

Roberts v. Sw. Cmty. Health Servs., 837 P.2d 442 (N.M. 1992). “1 The Act establishes medical malpractice liability coverage, Section 41-5-25, and, in addition, provides other benefits to those providers who choose to become qualified in accordance with Section 41-5-5(A). Section 41-5-5(C) of the Act specifically limits its benefits to those…”

Leger v. Gerety, 2022 NMSC 007 (N.M. 2021). “{17} The MMA’s procedural requirements apply to the indemnity claim against Respondents for two interconnected reasons.”

Leger v. Gerety, 444 P.3d 1036 (N.M. Ct. App. 2018). “” 11 {4} After obtaining review and decision by the Medical Review Commission (as 12 required for malpractice claims against a health care provider covered by the 13 MMA, see §§ 41-5-5, -14, -15(A)) and the district court’s leave to file, PHS filed a 14 third-party complaint…”

Siebert v. Okun, 485 P.3d 1265 (N.M. 2021).

Siebert v. Okun, 2021 NMSC 016 (N.M. 2021).

— N.M. Stat. § 41-5-5(A)(1) — 2 cases

Garcia on Behalf of Garcia v. La Farge, 893 P.2d 428 (N.M. 1995). “Section 41-5-13 may be viewed as a reasonable benefit accorded to those health care providers who accept the concomitant burden of obtaining occurrence-based malpractice insurance, Section 41-5-5(A)(1) (requiring health care providers to prove coverage by a one hundred thousand…”

McCullar v. Pecos Valley of New Mexico, LLC (D.N.M. 2019).

— N.M. Stat. § 41-5-5(A)(2) — 4 cases

Cummings v. X-Ray Assocs. of New Mexico, P. C., 918 P.2d 1321 (N.M. 1996). “See § 41-5-5. In Roberts we concluded that if the malpractice was performed by a wow-qualified health care provider, the patient’s right to bring a cause of action is tolled from the discovery of the injury, rather than from the act of malpractice.”

Cahn v. Berryman, 2018 NMSC 2 (N.M. 2017). “, Section 41-5-5(A)(2) (making reference to specific provisions in Section 41-5-25).”

Siebert v. Okun, M.D., 560 P.3d 7 (N.M. Ct. App. 2024).

McCullar v. Pecos Valley of New Mexico, LLC (D.N.M. 2019).

— N.M. Stat. § 41-5-5(A)(l) — 2 cases

— N.M. Stat. § 41-5-5(B) — 4 cases

Juarez v. Nelson, 61 P.3d 877 (N.M. Ct. App. 2002). “Section 41-5-5(B). We agree with Plaintiffs that if we were to allow PHS to piggyback upon Dr.”

Armijo v. Tandysh, 646 P.2d 1245 (N.M. Ct. App. 1982). “Section 41-5-5, N.M.S.A. 1978, in Paragraph A, does provide for qualifying.”

Baker v. Hedstrom, 2013 NMSC 043 (N.M. 2013). “See § 41-5-5 (listing the qualifications requirements).”

Baker v. Hedstrom, 2013 NMSC 43 (N.M. 2013).

— N.M. Stat. § 41-5-5(C) — 14 cases

Juarez v. Nelson, 61 P.3d 877 (N.M. Ct. App. 2002). “Section 41-5-5(B). We agree with Plaintiffs that if we were to allow PHS to piggyback upon Dr.”

Romero v. Lovelace Health Sys., Inc., 2020 NMSC 001 (N.M. 2019). ““[Q]ualified” health care providers are those who meet certain financial requirements set forth in Section 41-5-5 and are therefore entitled to all the benefits of the MMA.”

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