A. There is created in the state treasury a "patient's compensation fund" to be collected and received by the superintendent for exclusive use for the purposes stated in the Medical Malpractice Act. The fund and any income from it shall be held in trust, deposited in a segregated account, invested and reinvested by the superintendent with the prior approval of the state board of finance and shall not become a part of or revert to the general fund of this state. The fund and any income from the fund shall only be expended for the purposes of and to the extent provided in the Medical Malpractice Act. The superintendent shall have the authority to use fund money to purchase insurance for the fund and its obligations. The superintendent, as custodian of the patient's compensation fund, shall be notified by the health care provider or his insurer within thirty days of service on the health care provider of a complaint asserting a malpractice claim brought in a court in this state against the health care provider.

B. To create the patient's compensation fund, an annual surcharge shall be levied on all health care providers qualifying under Paragraph (1) of Subsection A of Section 41-5-5 NMSA 1978 in New Mexico. The surcharge shall be determined by the superintendent based upon sound actuarial principles, using data obtained from New Mexico experience if available. The surcharge shall be collected on the same basis as premiums by each insurer from the health care provider.

C. The surcharge with accrued interest shall be due and payable within thirty days after the premiums for malpractice liability insurance have been received by the insurer from the health care provider in New Mexico.

D. If the annual premium surcharge is collected but not paid within the time limit specified in Subsection C of this section, the certificate of authority of the insurer may be suspended until the annual premium surcharge is paid.

E. All expenses of collecting, protecting and administering the patient's compensation fund or of purchasing insurance for the fund shall be paid from the fund.

F. Claims payable pursuant to Laws 1976, Chapter 2, Section 30 shall be paid in accordance with the payment schedule constructed by the court. If the patient's compensation fund would be exhausted by payment of all claims allowed during a particular calendar year, then the amounts paid to each patient and other parties obtaining judgments shall be prorated, with each such party receiving an amount equal to the percentage his own payment schedule bears to the total of payment schedules outstanding and payable by the fund. Any amounts due and unpaid as a result of such proration shall be paid in the following calendar years. However, payments for medical care and related benefits shall be made before any payment made under Laws 1976, Chapter 2, Section 30.

G. Upon receipt of one of the proofs of authenticity listed in this subsection, reflecting a judgment for damages rendered pursuant to the Medical Malpractice Act, the superintendent shall issue or have issued warrants in accordance with the payment schedule constructed by the court and made a part of its final judgment. The only claim against the patient's compensation fund shall be a voucher or other appropriate request by the superintendent after he receives:

(1) a certified copy of a final judgment in excess of two hundred thousand dollars ($200,000) against a health care provider;

(2) a certified copy of a court-approved settlement or certification of settlement made prior to initiating suit, signed by both parties, in excess of two hundred thousand dollars ($200,000) against a health care provider; or

(3) a certified copy of a final judgment less than two hundred thousand dollars ($200,000) and an affidavit of a health care provider or its insurer attesting that payments made pursuant to Subsection E of Section 41-5-7 NMSA 1978, combined with the monetary recovery, exceed two hundred thousand dollars ($200,000).

H. The superintendent shall contract for an independent actuarial study of the patient's compensation fund to be performed not less than once every two years.

History: 1978 Comp., § 41-5-25, enacted by Laws 1992, ch. 33, § 9; 1997, ch. 109, § 1.

Repeals and reenactments. — Laws 1990, ch. 111, § 2 repealed former 41-5-25 NMSA 1978, as amended by Laws 1990, ch. 111, § 1, relating to patient's compensation fund, and enacted a new 41-5-25 NMSA 1978, effective July 1, 1991.

Laws 1990, ch. 111, § 3 repealed Laws 1989, ch. 324, § 43 which enacted 41-5-25 NMSA 1978 to become effective on July 1, 1990.

Laws 1991, ch. 264, § 9 repealed former 41-5-25 NMSA 1978, as amended by Laws 1991, ch. 264, § 8, and enacted a new 41-5-25 NMSA 1978, effective July 1, 1992.

Laws 1991, ch. 264, § 10 repealed former 41-5-25 NMSA 1978, as enacted by Laws 1991, ch. 264, § 9, and enacted a new 41-5-25 NMSA 1978, effective July 1, 1993.

Laws 1992, ch. 33, § 7 repealed former 41-5-25 NMSA 1978, as amended by Laws 1991, ch. 264, § 8, and as enacted by Laws 1991, ch. 264, § 10, and enacted a new section, effective April 1, 1992.

Laws 1992, ch. 33, § 8 repealed former 41-5-25 NMSA 1978, as enacted by Laws 1992, ch. 33, § 7, and enacted a new section, effective April 1, 1993.

Laws 1992, ch. 33, § 9 repealed former 41-5-25 NMSA 1978, as enacted by Laws 1992, ch. 33, § 8, and enacted a new section, effective April 1, 1994.

The 1997 amendment, effective June 20, 1997, added the third sentence in Subsection A.

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).