Prelawsuit Requirements To Avoid Having Your Case Dismissed
There are certain prelawsuit requirements that need to be taken care of before you can file a lawsuit. We will go over the requirements here. If the prelawsuit requirements are not met you run the risk of having your lawsuit dismissed. To sue a qualified healthcare provider you must file an application with the New Mexico Medical Review Commission.
Certain defendants and types of claims require information to be provided to the defendants prior to filing a lawsuit. If these requirements are not met, then the lawsuit may be dismissed or stayed depending the required notice.
Non-Qualified Healthcare Providers: There are no prelawsuit requirements for suing a healthcare provider that is not qualified under the New Mexico Medical Malpractice Act.
Qualified Healthcare Providers: Plaintiffs pursuing medical malpractice claim against doctors and other healthcare providers that are “qualified” under the New Mexico Medical Malpractice Act are required to file an application with the New Mexico Medical Review Commission.
State of New Mexico Entity or Employed Physician: Pursuing a medical malpractice claim against a state entity e.g. University of New Mexico Hospital requires that the patient provide written notice of a potential claim. If written notice or actual notice is not timely received then the patient’s lawsuit against a New Mexico entity may be barred.
For an injured patient, written notice must be provided within ninety days after the malpractice occurs. If the patient died as a result of the medical malpractice, written notice must be provided within six months after the malpractice occurs. The malpractice “occurs” for notice purposes when the patient’s “injury manifested itself in a physically objective manner and [is] ascertainable.”
If the patient is incapacitated as a result of the malpractice, the notice provision is tolled (delayed) for the period the patient is incapacitated, but the tolling cannot
For example, if someone is in a coma as a result of a malpractice act, then the ninety days will not begin to run until the patient awakes from the coma, but period of time will only be extended for up to an additional ninety days. In our example, if the patient is in a coma for more than ninety days, then notice must be provided within one-hundred and eighty days of the act of malpractice. If the patient awakes from the coma forty-five days after the malpractice event, then notice would need to be provided within one-hundred and thirty-five days of the act of malpractice.
If you are an injured patient and are seeking to file a lawsuit makes sure to follow the prelawsuit requirements ahead of time. If you have any questions about the prelawsuit requirements or would like us to take your case and begin a lawsuit call us at (505) 242-7200.