HOUSE BILL 590

50th legislature - STATE OF NEW MEXICO - first session, 2011

INTRODUCED BY

Al Park

AN ACT

RELATING TO MEDICAL MALPRACTICE; AMENDING THE MEDICAL MALPRACTICE ACT TO RAISE THE RECOVERABLE LIMITS AND TO PROVIDE A RIGHT OF ACTION UNDER CERTAIN CIRCUMSTANCES FOR INJURED PERSONS AGAINST THE PATIENT'S COMPENSATION FUND AND INSURERS; INCLUDING INJURED PERSONS, THE PATIENT'S COMPENSATION FUND AND INSURERS UNDER THE MEDICAL MALPRACTICE ACT WITHIN THE SCOPE OF CHAPTER 59A, ARTICLE 16 NMSA 1978 AND THE UNFAIR PRACTICES ACT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 41-5-2 NMSA 1978 (being Laws 1976, Chapter 2, Section 2) is amended to read:

     "41-5-2. PURPOSE OF ACT.--The purpose of the Medical Malpractice Act is to:

          A. promote the health and welfare of the people of New Mexico by making available professional liability insurance for health care providers in New Mexico; and

          B. advance the public policy of New Mexico by providing access to the courts for victims of medical malpractice to pursue meritorious claims of medical negligence and to promote the fair and expeditious settlement of claims in which liability has become reasonably clear."

     SECTION 2. Section 41-5-6 NMSA 1978 (being Laws 1992, Chapter 33, Section 4) is amended to read:

     "41-5-6. LIMITATION OF RECOVERY.--

          A. Except for punitive damages and 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] the following amounts:

                (1) six hundred thousand dollars ($600,000) per occurrence for acts of malpractice occurring prior to January 1, 2012; and

                (2) one million five hundred thousand dollars ($1,500,000) per occurrence for acts of malpractice occurring on or after January 1, 2012; provided that on July 1, 2013 and on July 1 of each year thereafter, the superintendent shall adjust the maximum recoverable amount specified in this paragraph to correspond to the percentage change in the consumer price index between the end of the penultimate calendar year and the end of the immediately preceding calendar year. As used in this paragraph, "consumer price index" means the consumer price index for all urban consumers, U.S. city average, as published by the United States department of labor.

          B. In jury cases, the jury shall not be given any instructions dealing with [this limitation] limitations specified in Subsection A of this section.

          [B.] C. The value of accrued medical care and related benefits shall not be subject to the [six hundred thousand dollar ($600,000) limitation] limitations specified in Subsection A of this section.

          [C.] D. Monetary damages shall not be awarded for future medical expenses in malpractice claims.

          [D.] E. A health care provider's personal liability

is limited to two hundred thousand dollars ($200,000) 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 against a health care provider in excess of two hundred thousand dollars ($200,000) shall be paid from the patient's compensation fund, as provided in Section 41-5-25 NMSA 1978.

          [E. For the purposes of Subsections A and B of this section, the six hundred thousand dollar ($600,000) aggregate amount recoverable by all persons for or arising from any injury or death to a patient as a result of malpractice shall apply only to malpractice occurring on or after April 1, 1995.]"

     SECTION 3. Section 41-5-7 NMSA 1978 (being Laws 1992, Chapter 33, Section 5, as amended) is amended to read:

     "41-5-7. FUTURE MEDICAL EXPENSES.--

          A. In all malpractice claims where liability is established, the jury shall be given a special interrogatory asking if the patient is in need of future medical care and related benefits. No inquiry shall be made concerning the value of future medical care and related benefits, and evidence relating to the value of future medical care shall not be admissible. In actions upon malpractice claims tried to the court, where liability is found, the court's findings shall include a recitation that the patient is or is not in need of future medical care and related benefits.

          B. Except as provided in Section 41-5-10 NMSA 1978, once a judgment is entered in favor of a patient who is found to be in need of future medical care and related benefits or a settlement is reached between a patient and health care provider in which the provision of medical care and related benefits is agreed upon, and continuing as long as medical or surgical attention is reasonably necessary, the patient shall be furnished with all medical care and related benefits directly or indirectly made necessary by the health care provider's malpractice, subject to a semi-private room limitation in the event of hospitalization, unless the patient refuses to allow them to be so furnished.

          C. Awards of future medical care and related benefits shall not be subject to the [six hundred thousand dollar ($600,000) limitation imposed in Section 41-5-6 NMSA 1978] applicable limitation imposed in Subsection A of Section 41-5-6 NMSA 1978.

          D. Payment for medical care and related benefits shall be made as expenses are incurred.

          E. The health care provider shall be liable for all medical care and related benefit payments until the total payments made by or on behalf of [it] the health care provider for monetary damages and medical care and related benefits combined equals two hundred thousand dollars ($200,000), after which the payments shall be made by the patient's compensation fund.

          F. This section shall not be construed to prevent a patient and a health care provider from entering into a settlement agreement whereby medical care and related benefits shall be provided for a limited period of time only or to a limited degree.

          G. The court in a supplemental proceeding shall estimate the value of the future medical care and related benefits reasonably due the patient on the basis of evidence presented to it. That figure shall not be included in any award or judgment but shall be included in the record as a separate court finding.

          H. A judgment of punitive damages against a health care provider shall be the personal liability of the health care provider. Punitive damages shall not be paid from the patient's compensation fund or from the proceeds of the health care provider's insurance contract unless the contract expressly provides coverage. Nothing in Section 41-5-6 NMSA 1978 precludes the award of punitive damages to a patient. Nothing in this subsection authorizes the imposition of liability for punitive damages on a derivative basis where that imposition would not be otherwise authorized by law."

     SECTION 4. A new section of the Medical Malpractice Act is enacted to read:

     "[NEW MATERIAL] FAIR SETTLEMENT PRACTICES REQUIRED--RIGHT OF ACTION.--

          A. The patient's compensation fund and insurers providing coverage under the Medical Malpractice Act have a duty to persons injured by the negligence of a health care provider to effectuate a prompt, fair and equitable settlement of the claims against the health care provider where liability has become reasonably clear.

          B. A person injured by the negligence of a health care provider has the right to bring an action in district court to recover all damages allowed by New Mexico law against the patient's compensation fund and insurers providing coverage under the Medical Malpractice Act for the failure to attempt in good faith to effectuate a prompt, fair and equitable settlement of the claims against the health care provider where liability has become reasonably clear. In such an action, the person injured by the negligence of a health care provider is deemed to be an "insured" as that term is used in Chapter 59A, Article 16 NMSA 1978 and at common law.

          C. The provisions of Chapter 59A, Article 16 NMSA 1978 shall apply to the patient's compensation fund, insurers under the Medical Malpractice Act and persons injured by the negligence of health care providers within the scope of the Medical Malpractice Act."

     SECTION 5. A new section of the Unfair Practices Act is enacted to read:

     "[NEW MATERIAL] MEDICAL MALPRACTICE CLAIMS--FAILURE TO MAKE A GOOD FAITH ATTEMPT AT SETTLEMENT.--The failure of the patient's compensation fund or insurers providing coverage under the Medical Malpractice Act to attempt in good faith to effectuate a prompt, fair and equitable settlement of the claims against a health care provider where liability has become reasonably clear is an unlawful practice under the Unfair Practices Act."

     SECTION 6. A new section of Chapter 59A, Article 16 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] MEDICAL MALPRACTICE CLAIMS.--

          A. The provisions of Chapter 59A, Article 16 NMSA 1978 shall apply to the patient's compensation fund, insurers under the Medical Malpractice Act and persons injured by the negligence of health care providers within the scope of the Medical Malpractice Act.

          B. For purposes of Chapter 59A, Article 16 NMSA 1978:

                (1) "insured" includes a person injured by the negligence of health care providers within the scope of the Medical Malpractice Act; and

                (2) "insurer" includes the patient's compensation fund and any insurer providing coverage under the Medical Malpractice Act."

     SECTION 7. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2011.

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