HOUSE BILL 151
51st legislature - STATE OF NEW MEXICO - second session, 2014
INTRODUCED BY
Terry H. McMillan
AN ACT
RELATING TO PROFESSIONAL MALPRACTICE; ENACTING THE HEALTH CARE LIABILITY ACT; LIMITING AGGREGATE NONECONOMIC DAMAGES FOR CLAIMS AGAINST HEALTH CARE PROVIDERS THAT ARE NOT PARTICIPANTS IN THE STATE-SPONSORED EXCESS INSURANCE PROGRAM PURSUANT TO THE MEDICAL MALPRACTICE ACT TO THREE HUNDRED THOUSAND DOLLARS ($300,000); LIMITING PUNITIVE DAMAGES TO THREE TIMES THE AGGREGATE AMOUNT OF COMPENSATORY DAMAGES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Health Care Liability Act".
SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Health Care Liability Act:
A. "aggregate amount" means the sum of damages arising from a single occurrence:
(1) regardless of the number of claimants or claims, including derivative and independent claims; and
(2) regardless of the number of parties against whom malpractice claims have been made;
B. "consumer price index" means the annual average of the Consumer Price Index for All Urban Consumers published by the United States bureau of labor statistics;
C. "health care provider" means:
(1) a person licensed, registered or certified pursuant to the provisions of the Nursing Practice Act;
(2) a person licensed or certified pursuant to the provisions of the Chiropractic Physician Practice Act;
(3) a person licensed or certified pursuant to the Dental Health Care Act;
(4) a person licensed pursuant to the provisions of the Medical Practice Act;
(5) a person licensed pursuant to the provisions of the Anesthesiologist Assistants Act;
(6) a person licensed pursuant to the provisions of the Podiatry Act;
(7) a person licensed pursuant to the provisions of the Polysomnography Practice Act;
(8) a person licensed pursuant to the provisions of the Professional Psychologist Act;
(9) a person licensed or registered pursuant to the provisions of the Counseling and Therapy Practice Act;
(10) an osteopathic physician licensed pursuant to the provisions of Chapter 61, Article 10 NMSA 1978 or a person licensed pursuant to the provisions of the Osteopathic Physicians' Assistants Act;
(11) a person licensed or registered pursuant to the provisions of the Pharmacy Act;
(12) a person licensed, registered or certified pursuant to the provisions of the Occupational Therapy Act;
(13) a person licensed pursuant to the provisions of the Respiratory Care Act;
(14) a person licensed pursuant to the provisions of the Physical Therapy Act;
(15) a person licensed pursuant to the Speech-Language Pathology, Audiology and Hearing Aid Dispensing Practices Act;
(16) a person licensed, certified or credentialed pursuant to the Medical Imaging and Radiation Therapy Health and Safety Act;
(17) a person registered by the department of health as a midwife;
(18) a person licensed pursuant to the provisions of the Social Work Practice Act;
(19) a person licensed or certified pursuant to the provisions of the Emergency Medical Services Act;
(20) a clinical laboratory certified pursuant to 42 U.S.C. Section 263a;
(21) a hospital, outpatient facility, diagnostic treatment center, rehabilitation center, community mental health center, residential treatment center, hospice or home health agency licensed pursuant to the Public Health Act;
(22) a person that owns, operates or manages a health care provider or group of health care providers; and
(23) the employees, officers, agents and governing board members of a health care provider or group of health care providers;
D. "malpractice claim" means a cause of action against a health care provider for treatment, lack of treatment or a departure from accepted professional standards that proximately results in battery or injury to, or death of, a patient or consumer, whether the claim sounds in tort or in contract;
E. "noneconomic damages" means all recoverable damages except:
(1) past and future medical expenses;
(2) funeral and burial expenses;
(3) past and future necessary nonmedical expenses;
(4) loss of earning capacity;
(5) past and future lost earnings;
(6) loss of monetary benefits and financial support;
(7) loss of services; and
(8) punitive damages;
F. "preceding calendar year" means the full calendar year preceding the July 1 on which the cap on the aggregate amount of noneconomic damages, as specified in Subsection A of Section 3 of the Health Care Liability Act, is adjusted; and
G. "qualified health care provider" means a health care provider qualified and participating in the state-sponsored excess insurance program pursuant to the Medical Malpractice Act.
SECTION 3. [NEW MATERIAL] LIMITS ON NONECONOMIC DAMAGES AND PUNITIVE DAMAGES.--
A. The aggregate amount of noneconomic damages arising out of the individual or combined malpractice of health care providers that are not participants in the state-sponsored excess insurance program pursuant to the Medical Malpractice Act shall not exceed three hundred thousand dollars ($300,000), except as adjusted pursuant to Subsection B of this section.
B. Beginning on July 1, 2015 and each July 1 thereafter, the cap on the aggregate amount of noneconomic damages shall be adjusted by multiplying three hundred thousand dollars ($300,000) by a fraction, the numerator of which is the consumer price index for the preceding calendar year and the denominator of which is the consumer price index for the base year 2013.
C. An award of punitive damages arising out of the individual or combined malpractice of health care providers that are not participants in the state-sponsored excess insurance program pursuant to the Medical Malpractice Act shall not exceed three times the aggregate amount of compensatory damages.
D. The limit on the aggregate amount of noneconomic damages, and the limit on the amount of punitive damages, under the Health Care Liability Act shall not be disclosed to a jury in any proceeding in which a malpractice claim is asserted against a health care provider as specified in Subsection A or C of this section.
SECTION 4. [NEW MATERIAL] LIABILITY OF A HEALTH CARE PROVIDER BASED UPON VICARIOUS LIABILITY FOR ACTS OR OMISSIONS OF INDEPENDENT CONTRACTOR.--
A. The provisions of Sections 41-5-13 and 41-5-22 NMSA 1978 regarding limitations and tolling shall apply to a malpractice claim against a health care provider alleging vicarious liability for the acts or omissions of an independent contractor who is a qualified health care provider.
B. If a health care provider that is not a participant in the state-sponsored excess insurance program pursuant to the Medical Malpractice Act is adjudicated vicariously liable for the acts or omissions of an independent contractor who is a qualified health care provider, the provisions of Section 41-5-6 NMSA 1978 shall control as to damages allowed and limitations on the amount of damages recoverable for that portion of comparative fault, if any, attributable to such independent contractor.
SECTION 5. APPLICABILITY.--
A. Except as otherwise specified, the provisions of the Health Care Liability Act shall not apply to claims against qualified health care providers under the Medical Malpractice Act or claims against public employees or governmental entities that must be brought under the Tort Claims Act.
B. The provisions of the Health Care Liability Act apply to malpractice claims made on or after July 1, 2014.
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