A. No malpractice action may be filed in any court against a qualifying health care provider before application is made to the medical review commission and its decision is rendered.

B. This application shall contain the following:

(1) a brief statement of the facts of the case, naming the persons involved, the dates and the circumstances, so far as they are known, of the alleged act or acts of malpractice; and

(2) a statement authorizing the panel to obtain access to all medical and hospital records and information pertaining to the matter giving rise to the application, and, for the purposes of its consideration of the matter only, waiving any claim of privilege as to the contents of those records. Nothing in that statement shall in any way be construed as waiving that privilege for any other purpose or in any other context, in or out of court.

History: 1953 Comp., § 58-33-15, enacted by Laws 1976, ch. 2, § 15.

Emergency clauses. — Laws 1976, ch. 2, § 32 contained an emergency clause and was approved February 27, 1976.

Section does not deprive all plaintiffs of constitutional right of access to courts. Jiron v. Mahlab, 1983-NMSC-022, 99 N.M. 425, 659 P.2d 311.

Unconstitutional to cause undue delay. — Where the requirement of first going before the medical review commission causes undue delay prejudicing a plaintiff by the loss of witnesses or parties, the plaintiff is unconstitutionally deprived of his right of access to the courts. Jiron v. Mahlab, 1983-NMSC-022, 99 N.M. 425, 659 P.2d 311.

Decision by medical review commission was not jurisdictional prerequisite to the filing of a complaint in court against a qualified health care provider for medical malpractice. Rupp v. Hurley, 2002-NMCA-023, 131 N.M. 646, 41 P.3d 914, cert. denied, 131 N.M. 737, 42 P.3d 842.

Subsection A procedural and not binding. — The statutory provision that claimants against health care providers first submit their claims to the commission before filing suit is a purely procedural requirement and cannot, therefore, be deemed binding; the procedural provisions of the Medical Malpractice Act, to the extent of denying plaintiff access to the courts, shall not control where the defendant has not been prejudiced. 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.

Not necessary to bring each allegation before commission. — Under this section, it is not necessary that each of plaintiff's counts, nor each of plaintiff's allegations, be presented to the medical review commission, as the district court has subject matter jurisdiction over medical malpractice and battery claims not submitted to the commission where application satisfied requirements of this section. Trujillo v. Puro, 1984-NMCA-050, 101 N.M. 408, 683 P.2d 963, cert. denied, 101 N.M. 362, 683 P.2d 44.

Claims not necessary to bring before commission. — Claims for negligent misrepresentation and intentional infliction of emotional distress do not first have to be presented to the medical review commission because they do not come within the definition of a malpractice claim. Trujillo v. Puro, 1984-NMCA-050, 101 N.M. 408, 683 P.2d 963, cert. denied, 101 N.M. 362, 683 P.2d 44.

Excused failure to file claim with commission. — Misinformation supplied by the office of the state superintendent of insurance, regarding who were qualified health care providers, excused plaintiff's failure to file claim with the commission before filing a complaint in district court. 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.

Statute of limitation tolled regardless of outcome. — This section, which tolls the statute of limitations period upon submission of a case to the commission, should be enforced according to its terms whether the commission's determination is that the health care provider is not qualified and the claim is consequently rejected, or that the health care provider is qualified and the claim is resolved on its merits. Grantland v. Lea Reg'l Hosp., 1990-NMSC-076, 110 N.M. 378, 796 P.2d 599.

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).