“Medical Malpractice” or “Regular Negligence”? News from New Mexico

August 31, 2013

Richter v. Presbyterian Healthcare Services, — P.3d —, 2013 WL 4517165 (N.M.App. 2013)

As I mentioned in my prior posts – hereherehere, and here – categorization of a tort action as a suit for “medical malpractice” as opposed to regular negligence, or vice versa, can be crucial. By making this categorization, courts determine whether the suit must satisfy the special requirements for filing medical malpractice suits that include shortened limitations periods, statutes of repose, expert affidavits and merit certificates.

In the present case, a lab’s failure to promptly deliver alarming test results to a patient’s doctors was categorized as “regular negligence” rather than “medical malpractice.” This categorization originated from the court’s adoption of the “functional test” borrowed from the Nebraska Supreme Court’s decision, Marx v. Hartford Accident & Indemnity Co., 157 N.W.2d 870, 871-72 (Neb. 1968), that defined “professional services” as follows:

“Something more than an act flowing from mere employment or vocation is essential. The act or service must be such as exacts the use or application of special learning or attainments of some kind…. In determining whether a particular act is of a professional nature or a ‘professional service’ we must look not to the title or character of the party performing the act, but to the act itself.”

Based on this categorization, the court allowed the plaintiff to proceed on some of his claims “relying on an ordinary negligence theory and eschewing expert testimony.”


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