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F I S C A L I M P A C T R E P O R T

SPONSOR Jennings

ORIGINAL DATE

LAST UPDATED

2/10/2005

HB

SHORT TITLE Civil Damages for Voluntary Services, CA

SB SJR13

ANALYST McSherry

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY06

FY07

Minimal

Non-recurring

General Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Office of the Attorney General (AGO)

Regulation and Licensing Department (RLD)

New Mexico Medical Practice Board.(NMMPB)

SUMMARY

Synopsis of Bill

Senate Joint Resolution 13, “Civil Damages for Voluntary Services” proposes a constitutional

amendment to allow for licensed individuals providing services voluntarily and without compen-

sation not to be held liable for any civil damages as a result of providing those services.

FISCAL IMPLICATIONS

The resolution would not have any direct financial implication other than the inclusion of the

proposed amendment on ballots and the determination of vote on the amendment.

SIGNIFICANT ISSUES

According to RLD, if the proposed amendments became part of the constitution, any licensed

practitioner could avoid liability for malpractice simply by providing the service for free. This

could mean that a practitioner could avoid malpractice actions by simply failing to bill a patient

that had been harmed.

Senate Joint Resolution 13 – Page

2

RLD contends that, although a practitioner could avoid civil liability, it is not clear whether a

board could take disciplinary action against a licensee if this becomes law.

NM Medical Board cites New Mexico law (24-10-3 NMSA) as already providing protection

from civil damages for persons who come to the aid or rescue of another person during an emer-

gency. The Board contends that the proposed Constitutional Amendment would broaden this

protection to a dangerous degree because immunity from civil suit would be extended to all li-

censed professionals simply because they are providing their services for free.

According to the NM Medical Board, for the medical profession, the amendment proposed by

SJR 13 would mean that any physician, physician assistant, nurse or other health care practitio-

ner who provided services without cost, under any circumstances, could not be held civilly ac-

countable for even the worst possible outcome for the patient.

The Board contends that, just because the care rendered is provided for free and “in good faith”

does not mean that it will be quality care, or that it might not have a seriously harmful impact on

the health of the patient.

The Board further contends that:

•

Some low-income New Mexicans may ask for or receive medical care free of

charge – their indigent status should not make them any more vulnerable to poor

medical care than a paying patient.

•

Physicians and other individuals who come to the aid of a fellow citizen in an

emergency deserve the protection of the Good Samaritan law, and possibly of a

Good Samaritan Constitutional Amendment. In situations that are not emergen-

cies, however, the potential risks to the health and safety of New Mexicans are too

great to provide immunity simply because services are provided without cost.

OTHER SUBSTANTIVE ISSUES

The Attorney General’s Office asserts that, unlike “Good Samaritan” statutes that aim at

relieving individuals who come to the aid/assistance of injured individuals from civil liabilities,

this amendment focuses only on licensed individuals who volunteer services within the scope of

their license.

AGO further reports that:

•

Several states have enacted legislation protecting certain licensed individuals

from liability while volunteering during emergency responses. For example,

California, Colorado, Connecticut, Florida, Georgia, Kansas, Kentucky, Mary-

land, Missouri, North Carolina, North Dakota, Oregon, Pennsylvania, Tennessee,

Utah, Virginia and Washington have a good Samaritan statute protecting archi-

tects, and sometimes engineers, during disaster responses; the Volunteer Protec-

tion Act of 1997 (42 USC §14501), as the name implies, protects all volunteers

from liability with certain exceptions.)

•

In New Mexico, there are three statutes dealing with good Samaritans:

o

The statute for professional engineers or professional surveyors addresses

that issue in NMSA 1978, section 61-23-31.1;

o

The Energy Emergency Powers Act addresses the issue in section 12-12-

28, for volunteers mitigating or attempting to mitigate the effects hazard-

ous material releases; and

Senate Joint Resolution 13 – Page

3

o

The Health and Safety Act in section 24-10-3 relieves from liability per-

sons coming to the aid and rescue of other persons at the scene of an

emergency.

•

This proposed amendment to the New Mexico Constitution (SJR 13) would only

addresses licensed volunteers and shield them from liability in the exercise of the

licensed activity.

ALTERNATIVES

The New Mexico Medical Board suggests carving out physicians and other health care providers

from the proposed amendment, or including them only with language that matches 24-10-3.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

Licensed professionals who provide free but flawed services may be faced with civil suits.

EM/mt