By harmonsonlaw on March 29th, 2018 in Medical Malpractice
Harmonson Law Firm is proud to have represented numerous victims of medical malpractice in the Las Cruces, New Mexico area and throughout New Mexico. Every day, we are asked to review potential medical malpractice claims against local doctors, hospitals and other healthcare providers like nurses, physicians’ assistants and nurse practitioners. This guide will provide a brief overview of the New Mexico laws with respect to medical malpractice cases.
What is the law that governs medical malpractice lawsuits in New Mexico?
New Mexico medical malpractice is governed by the New Mexico Medical Malpractice Act found at New Mexico Statutes – Article 5 — Medical Malpractice Act, 41-5-1 through 41-5-29 (the “Act”). The Act provides for limitation on liability and other procedural protections for physicians and other healthcare providers who qualify as “qualified healthcare providers” by purchasing certain insurance required under the Act. If a doctor or healthcare provider does not qualify as a “qualified healthcare provider”, then there are no limitations on liability and no procedural protections available.
So, the first item of business in pursuing a medical malpractice case in New Mexico is determining whether the healthcare provider is qualified under the Act. To determine is a provider is qualified, you simply need to write a letter to the medical review commission established by the Act to find out if the provider is qualified. If a healthcare provider is not, you can proceed to file a lawsuit against that healthcare provider and do not have any of the caps on damages or the procedural requirements required by the Act. If the healthcare provider is qualified under the Act, then, there are numerous provisions that are designed for the healthcare provider’s protection. The lawyer you chose to assist with your medical malpractice case must be familiar with these laws in order to comply with the law and maximize the value of your case.
How does a doctor or healthcare provider qualify as a “qualified healthcare provider” under the Act?
A healthcare provider can choose to become a “qualified healthcare provider” by purchasing the insurance authorized under the Act. The provider must purchase malpractice liability insurance issued by an authorized insurer in the amount of at least two hundred thousand dollars ($200,000) per occurrence. Further, the healthcare provider must pay an annual surcharge to help pay for a patient compensation fund that is available to with malpractice claims against qualified healthcare providers. There is also a way for hospitals to become covered by the Act; however, we have seen that hospitals choose to not be covered under the Act and purchase their own malpractice liability coverage.
What caps on damages are available for “qualified healthcare providers”?
There are significant caps on damages applicable to qualified healthcare providers. First, there is a maximum $600,000 per occurrence amount recoverable by all persons for or arising from any injury or death to a patient as a result of malpractice. This means that the maximum dollar amount the patient and his or her family members can recover is $600,000. For example, in a wrongful death claim, there may be several family members who are entitled to recover because of a doctor’s malpractice; however, the maximum amount that all family members can recover shall not exceed the total of $600,000. These caps do not apply to punitive damages and medical care and related benefits. The Act also provides that future medical expenses are not recoverable in a medical malpractice claim. For future medical care, the patient shall be furnished with all medical care and related benefits caused by the healthcare provider’s malpractice, which is paid by the provider’s $200,000 insurance coverage or by the patient compensation fund after that.
When a healthcare provider purchases the $200,000 insurance authorized by the Act, then the healthcare provider’s personal liability is capped at that $200,000. Any judgment or settlement in excess of the $200,000 is to be paid by a Patient Compensation Fund set up by that the Act.
What is the Patient Compensation Fund?
The Act created a patient compensation fund to pay for settlements and judgments of medical malpractice claims that exceed the $200,000 insurance limit required under the Act. The Act created a “patient’s compensation fund” to be collected and received by the superintendent for exclusive use of satisfying settlements and judgements against qualified healthcare providers. The fund and any income thereon is held in trust for paying these claims. The fund is funded by surcharges that qualified healthcare providers pay every year to qualify under the Act.
The following is an example of how the Act, the provider’s insurance and the patient compensation fund work in tandem to pay meritorious claims. We recently finished a case against a family care practitioner who misdiagnosed the signs and symptoms of heart disease leading to the patient’s death. We represented the patient’s surviving spouse and children in a subsequent lawsuit. The doctor was a qualified provider under the Act. Because the doctor was covered by the Act, his personal liability was capped at $200,000 which was covered by the insurance he purchased. Even though we represented numerous claimants, their total potential recovery was capped at $600,000 with a potential of $200,000 paid by the doctor’s insurance and $400,000 from the patient compensation fund. In mediation (settlement negotiation meeting), the insurance carrier for the doctor’s insurance tendered the doctor’s $200,000 limits. Then a special adjuster for the patient compensation fund paid an additional $300,000 to give a gross settlement of $500,000.
Are there any pre-lawsuit requirements we have to comply with under the Act?
The Act created a medical review commission which was established to review claims of medical malpractice against qualified healthcare providers. Prior to filing a lawsuit against a qualified healthcare provider, the claimant must submit a written application to the review commission outlining the alleged malpractice. If the healthcare provider is not covered by the Act, there are no such requirements and suit can proceed without the necessity of following any of the steps outlined herein.
Once the application is received, a panel is formed consisting of three panel members from the health care provider’s profession and three panel members from the state bar association. At that time, a hearing is set and the claimant and the healthcare provider are invited to attend and provide evidence of their claim.
After the hearing, the panel will make a determination concerning whether there is substantial evidence that the acts complained of occurred and that they constitute malpractice; and whether there is a reasonable medical probability that the patient was injured thereby. The panel’s decision is non-binding and not admissible in evidence in a subsequent lawsuit. However, the purpose of the panel is to either help the parties negotiate a settlement if there is a finding of malpractice by the panel and/or to discourage litigation by the claimant if he or she loses at the panel hearing.
What is the statute of limitations for a medical malpractice claim in New Mexico?
A statute of limitations is a law that governs the time limit for filing a lawsuit. In New Mexico, the statute of limitation for filing a medical malpractice lawsuit is three years from the date of alleged malpractice. The Act provides that there are no tolling provisions for claims against qualified healthcare providers (such as the discovery rule). The Act also provides a minor under the full age of six years shall have until his ninth birthday in which to file suit.
We hope that this guide answers some of the basic questions you may have about a potential medical malpractice claim in New Mexico for you or your loved one. If you have any questions about your specific situation, please feel to call and ask to speak with one of our New Mexico medical malpractice lawyers at (915) 584-8777 or submit your claim here.