- A. Punitive damages may only be awarded in a malpractice claim if the prevailing party provides clear and convincing evidence demonstrating that the acts of the health care provider were malicious, willful, wanton, reckless, fraudulent or in bad faith.
B. A judgment of punitive damages against any of the following persons shall not be in an amount greater than the applicable limitation on monetary damages provided in Section 41-5-6 NMSA 1978:
- (1) an independent provider;
- (2) an independent outpatient health care facility and the facility's employees, locum tenens providers and agency nurses;
- (3) a hospital operated by a New Mexico resident or domestic corporation that is not part of a hospital system and the hospital's employees, locum tenens providers and agency nurses; and
- (4) employees, locum tenens providers and agency nurses of a hospital or a hospital-controlled outpatient health care facility.
- C. Except as provided in Subsection B of this section, a judgment of punitive damages against a hospital or hospital-controlled outpatient health care facility shall not be in an amount greater than two and one-half times the applicable limitation on monetary damages provided in Section 41-5-6 NMSA 1978.
- D. A judgment of punitive damages against a health care provider shall not be paid from the fund.
- E. The initial claim for relief in a malpractice claim shall not include punitive damages. A claim for punitive damages may be asserted by amendment to the pleadings only after the plaintiff has presented sufficient evidence to the court that it is more likely than not that the claim has a triable issue after substantial completion of discovery. If the court allows amendment to the complaint pursuant to this subsection, the court, in its discretion, may permit additional discovery on the question of punitive damages.
History: 1978 Comp., § 41-5-7.1, enacted by Laws 2026, ch. 44, § 5.
ANNOTATIONS
Effective dates. — Laws 2026, ch. 44 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 20, 2026, 90 days after adjournment of the legislature.
Applicability. — Laws 2026, ch. 44, § 8 provided that the provisions of Laws 2026, ch. 44 apply to all claims for medical malpractice that arise on or after May 20, 2026.
Severability. — Laws 2026, ch. 44, § 7 provided that if a provision of Laws 2026, ch. 44 or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of Laws 2026, ch. 44 that can be given effect without the invalid provision or application, and to this end the provisions of Laws 2026, ch. 44 are severable.