SENATE BILL 447
56th legislature - STATE OF NEW MEXICO - first session, 2023
INTRODUCED BY
Gregg Schmedes and Mark Moores
AN ACT
RELATING TO MEDICAL MALPRACTICE; DIRECTING ADJUSTMENT OF RECOVERY AMOUNTS BASED ON INCREASES IN THE CONSUMER PRICE INDEX.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 41-5-6 NMSA 1978 (being Laws 1992, Chapter 33, Section 4, as amended) is amended to read:
"41-5-6. LIMITATION OF RECOVERY.--
A. Except for punitive damages and past and future medical care and related benefits, the aggregate dollar amount recoverable by all persons for or arising from any injury or death to a patient as a result of malpractice shall not exceed six hundred thousand dollars ($600,000) per occurrence for malpractice claims brought against health care providers if the injury or death occurred prior to January 1, 2022. In jury cases, the jury shall not be given any instructions dealing with this limitation.
B. Except for punitive damages and past and future medical care and related benefits, the aggregate dollar amount recoverable by all persons for or arising from any injury or death to a patient as a result of malpractice shall not exceed seven hundred fifty thousand dollars ($750,000) per occurrence for malpractice claims against independent providers; provided that [beginning January 1, 2023, the per occurrence limit on recovery shall be adjusted annually by the consumer price index for all urban consumers] on the first day of the calendar year after three consecutive annual actuarial studies have found that the fund is solvent, the per occurrence limit on recovery shall be adjusted annually to correspond to the percentage change in the consumer price index; and provided further that an adjustment shall not result in a percentage increase in the maximum recoverable amount greater than two percent.
C. In calendar year 2022 and subsequent calendar years, the aggregate dollar amount recoverable by all persons for or arising from any injury or death to a patient as a result of malpractice, except for punitive damages and past and future medical care and related benefits, shall not exceed the following amounts for claims brought against an outpatient health care facility that is not majority-owned and -controlled by a hospital:
(1) for an injury or death that occurred in calendar years 2022 and 2023, seven hundred fifty thousand dollars ($750,000) per occurrence;
(2) for an injury or death that occurred in calendar year 2024, five million dollars ($5,000,000) per occurrence;
(3) for an injury or death that occurred in calendar year 2025, five million five hundred thousand dollars ($5,500,000) per occurrence;
(4) for an injury or death that occurred in calendar year 2026, six million dollars ($6,000,000) per occurrence; and
(5) for an injury or death that occurred in calendar year 2027 and each calendar year thereafter, the amount provided in Paragraph (4) of this subsection [adjusted annually by the consumer price index for all urban consumers, per occurrence] shall be adjusted annually to correspond to the percentage change in the consumer price index; provided that an adjustment shall not result in a percentage increase in the maximum recoverable amount greater than two percent.
D. In calendar year 2022 and subsequent calendar years, the aggregate dollar amount recoverable by all persons for or arising from any injury or death to a patient as a result of malpractice, except for punitive damages and past and future medical care and related benefits, shall not exceed the following amounts for claims brought against a hospital or an outpatient health care facility that is majority-owned and -controlled by a hospital:
(1) for an injury or death that occurred in calendar year 2022, four million dollars ($4,000,000) per occurrence;
(2) for an injury or death that occurred in calendar year 2023, four million five hundred thousand dollars ($4,500,000) per occurrence;
(3) for an injury or death that occurred in calendar year 2024, five million dollars ($5,000,000) per occurrence;
(4) for an injury or death that occurred in calendar year 2025, five million five hundred thousand dollars ($5,500,000) per occurrence;
(5) for an injury or death that occurred in calendar year 2026, six million dollars ($6,000,000) per occurrence; and
(6) for an injury or death that occurred in calendar year 2027 and each calendar year thereafter, the amount provided in Paragraph (5) of this subsection [adjusted annually by the consumer price index for all urban consumers, per occurrence] shall be adjusted annually to correspond to the percentage change in the consumer price index; provided that an adjustment shall not result in a percentage increase in the maximum recoverable amount greater than two percent.
E. The aggregate dollar amounts provided in Subsections B through D of this section include payment to any person for any number of loss of consortium claims or other claims per occurrence that arise solely because of the injuries or death of the patient.
F. In jury cases, the jury shall not be given any instructions dealing with the limitations provided in this section.
G. The value of accrued medical care and related benefits shall not be subject to any limitation.
H. A health care provider's personal liability is limited to two hundred fifty thousand dollars ($250,000) for monetary damages and medical care and related benefits as provided in Section 41-5-7 NMSA 1978. Any amount due from a judgment or settlement in excess of two hundred fifty thousand dollars ($250,000) shall be paid from the fund, except as provided in Subsection I of this section.
I. Until January 1, 2027, amounts due from a judgment or settlement against a hospital or outpatient health care facility in excess of seven hundred fifty thousand dollars ($750,000), excluding past and future medical expenses, shall be paid by the hospital or outpatient health care facility and not by the fund. Beginning January 1, 2027, amounts due from a judgment or settlement against a hospital or outpatient health care facility shall not be paid from the fund.
J. The term "occurrence" shall not be construed in such a way as to limit recovery to only one maximum statutory payment if separate acts or omissions cause additional or enhanced injury or harm as a result of the separate acts or omissions. A patient who suffers two or more distinct injuries as a result of two or more different acts or omissions that occur at different times by one or more health care providers is entitled to up to the maximum statutory recovery for each injury.
K. As used in this section, "percentage change in the consumer price index" means the percentage change in the consumer price index for all urban consumers, United States city average, as published by the United States department of labor between the month ending December of the penultimate calendar year and the month ending December of the immediately preceding calendar year."
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