SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR
SENATE BILL 467
50th legislature - STATE OF NEW MEXICO - first session, 2011
AN ACT
RELATING TO TORTS; ENACTING THE DENTAL-LEGAL REVIEW COMMISSION ACT; PROVIDING FOR DENTAL-LEGAL REVIEW PANELS; PROVIDING HEARING PROCEDURES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. SHORT TITLE.--This act may be cited as the "Dental-Legal Review Commission Act".
SECTION 2. DEFINITIONS.--As used in the Dental-Legal Review Commission Act:
A. "commission" means the New Mexico dental-legal review commission;
B. "dental care provider" means a person, corporation, organization, facility or institution licensed or certified by this state to provide dental care or professional services as a doctor of dental medicine, doctor of dental surgery or corporate entity owned by a New Mexico licensed dental professional, acting within the bounds of their scope of practice;
C. "dental professional liability claim" includes any cause of action arising in this state against a dental care provider for professional treatment, lack of professional treatment or other claimed departure from accepted standards of health care that proximately results in injury to the patient, whether the patient's claim or cause of action is based in tort or contract law, and includes, but is not limited to, actions based on battery or wrongful death;
D. "director" means the director of the commission;
E. "panel" means a dental-legal review panel; and
F. "patient" means a natural person who received or should have received dental professional care from a licensed dental care provider, under a contract, expressed or implied.
SECTION 3. NEW MEXICO DENTAL-LEGAL REVIEW COMMISSION.--
A. The "New Mexico dental-legal review commission" is created. The function of the commission is to provide panels to review all dental professional liability claims against dental care providers.
B. Those eligible to sit on a panel shall be dentists licensed pursuant to New Mexico law and residing in New Mexico or members of the state bar of New Mexico residing in New Mexico.
C. Cases to be considered by a panel include all cases involving an alleged act of malpractice occurring in New Mexico by dental care providers.
D. An attorney shall submit a case for the consideration of a panel prior to filing a complaint in any district court or other court sitting in New Mexico by addressing an application, in writing, signed by the patient or the patient's attorney, to the director.
E. The director shall be an attorney appointed by and serving at the pleasure of the director of the administrative office of the courts.
F. The director of the administrative office of the courts shall set the remuneration of the director of the commission.
SECTION 4. COMMISSION DECISION REQUIRED--APPLICATION.--
A. A dental professional liability claim shall not be filed in any court against a qualifying dental care provider before application is made to the commission and its decision is rendered.
B. The application shall contain the following:
(1) a brief statement of the facts of the case, naming the persons involved and the dates and circumstances, so far as they are known, of the alleged act or acts of malpractice; and
(2) a statement authorizing the panel to obtain access to all dental records and information pertaining to the matter giving rise to the application and, for the purposes of its consideration of the matter only, waiving any claim of privilege as to the contents of those records. Nothing in that statement shall in any way be construed as waiving that privilege for any other purpose or in any other context, in or out of court.
SECTION 5. APPLICATION PROCEDURE.--
A. Upon receipt of an application for review, the director or the director's designee shall cause to be served a true copy of the application on the dental care provider involved. Service shall be effected pursuant to New Mexico law. If the dental care provider involved chooses to retain legal counsel, the dental care provider's attorney shall informally enter the dental care provider's appearance with the director.
B. The dental care provider shall answer the application for review and in addition shall submit a statement authorizing the panel to obtain access to all dental records and information pertaining to the matter giving rise to the application and, for the purposes of its consideration of the matter only, waiving any claim of privilege as to the contents of those records. Nothing in that statement shall in any way be construed as waiving that privilege for any other purpose or in any other context, in or out of court.
C. In instances where applications are received employing the theory of respondeat superior, or some other derivative theory of recovery, the director shall forward such applications to the state professional societies, associations or licensing boards of both the individual dental care provider whose alleged malpractice caused the application to be filed and the dental care provider named a respondent as employer, master or principal.
D. The party making application, by doing so, agrees to report to the director the final disposition of the claim upon its conclusion.
SECTION 6. PANEL SELECTION.--
A. Applications for review shall be promptly transmitted by the director to the directors of the New Mexico dental association and the state bar of New Mexico, who shall each select three panelists within thirty days from the date of transmittal of the application.
B. If the dental care provider does not belong to the New Mexico dental association, the director shall transmit the application to the board, which shall in turn select three dentists and, where applicable, two persons in the same recognized specialty as the dental care provider.
C. In cases where there are multiple dental care provider defendants, the case against each dental care provider may be reviewed by a separate panel, or a single combined panel may review the claim against all defendants, at the discretion of the director.
D. Three panel members from the dental care provider's profession and three panel members from the state bar of New Mexico shall sit in review in each case.
E. In those cases where the theory of respondeat superior or some other derivative theory of recovery is employed, two of the panel members shall be chosen from the individual dental care provider's profession and one panel member shall be chosen from the profession of the dental care provider named as a principal under the theory of respondeat superior or some other derivative theory of recovery.
F. The director or the director's designee, who shall be an attorney, shall sit on each panel and serve as chair.
G. A member shall disqualify the member's self from consideration of any case in which, by virtue of the member's circumstances, the member feels the member's presence on the panel would be inappropriate, considering the purpose of the panel. The director may excuse a proposed panelist from serving.
H. When a party makes and files an affidavit that a panel member selected pursuant to this section cannot, according to the belief of the party making the affidavit, sit in review of the application with impartiality, that panel member shall proceed no further. Another panel member shall be selected by the New Mexico dental association, the board or the state bar of New Mexico, as the case may be. A party shall not disqualify more than three proposed panel members in this manner in any single malpractice claim.
SECTION 7. TIME AND PLACE OF HEARING.--A date, time and place for hearing shall be fixed by the director, and prompt notice thereof shall be given to the parties involved, their attorneys and the members of the panel. In no instance shall the date set be more than sixty days after the transmittal by the director of the application for review, unless good cause exists for extending the period. Hearings may be held anywhere in the state of New Mexico, and the director shall give due regard to the convenience of the parties in determining the place of hearing.
SECTION 8. HEARING PROCEDURES.--
A. At the time set for hearing, the attorney submitting the case for review shall be present and shall make a brief introduction of the attorney's client's case, including a resume of the facts constituting alleged professional malpractice that the attorney is prepared to prove. The dental care provider against whom the claim is brought and its attorney may be present and may make an introductory statement of its case.
B. Both parties may call witnesses to testify before the panel, which witnesses shall be sworn. Dental texts, journals, studies and other documentary evidence relied upon by either party may be offered and admitted if relevant. Written statements of fact of other treating dental care providers may be reviewed. The monetary damages in any case shall not be a subject of inquiry or discussion.
C. The hearing is informal and no official transcript shall be made. Nothing contained in this subsection shall preclude the taking of the testimony by the parties at their own expense.
D. At the conclusion of the hearing, the panel may take the case under advisement, or it may request that additional facts, records, witnesses or other information be obtained and presented to it at a supplemental hearing, which shall be set for a date and time, not longer than thirty days from the date of the original hearing unless the attorney bringing the matter for review consents in writing to a longer period.
E. A supplemental hearing shall be held in the same manner as the original hearing, and the parties concerned and their attorneys may be present.
SECTION 9. PANEL DELIBERATIONS AND DECISION.--
A. The deliberations of the panel shall be and remain confidential. Upon consideration of all relevant material, the panel shall decide only two questions:
(1) whether there is substantial evidence that the acts complained of occurred and that they constitute malpractice; and
(2) whether there is a reasonable probability that the patient was injured thereby.
B. All votes of the panel on the two questions for decision shall be by secret ballot. The decision shall be by a majority vote of those voting members of the panel who have sat on the entire case. The decision shall be communicated in writing to the parties and attorneys concerned and a copy thereof shall be retained in the permanent files of the commission.
C. The decision shall in every case be signed for the panel by the chair, who shall vote only in the event the other members of the panel are evenly divided, and shall contain only the conclusions reached by a majority of the panel members and the number of members, if any, dissenting therefrom; provided, however, that if the vote is not unanimous, the majority may briefly explain the reasoning and basis for its conclusion, and the dissenters may likewise explain the reasons for disagreement.
D. The report of the panel shall not be admissible as evidence in any action subsequently brought in a court of law. A copy of the report shall be sent to the dental care provider's professional licensing board.
E. Panelists and witnesses shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by the Dental-Legal Review Commission Act.
F. The panel's decisions shall be without administrative or judicial authority and shall not be binding on any party. The panel shall make no effort to settle or compromise any claim, nor shall it express any opinion on the monetary value of any claim.
SECTION 10. DIRECTOR--RULES OF PROCEDURE.--The director is authorized to adopt and publish rules of procedure necessary to implement and carry out the duties of the commission. No rule shall be adopted, however, that requires a party to make a monetary payment as a condition to bringing a malpractice claim before the panel.
SECTION 11. TOLLING OF STATUTE OF LIMITATION.--The running of the applicable limitation period in a malpractice claim shall be tolled upon submission of the case for the consideration of the panel and shall not commence to run again until thirty days after the panel's final decision is entered in the permanent files of the commission and a copy is served upon the claimant and the claimant's attorney by certified mail.
SECTION 12. PROVISION OF EXPERT WITNESS.--In a malpractice claim where the panel has determined that the acts complained of were or reasonably might constitute malpractice and that the patient was or may have been injured by the act, the panel, commission members, the director and the professional association concerned shall cooperate fully with the patient in retaining a dentist, qualified in the field of dentistry involved and licensed to practice in the state of New Mexico, who shall consult with, assist in trial preparation for and testify on behalf of the patient, upon the patient's payment of a reasonable fee to the same effect as if the dentist had been engaged originally by the patient.
SECTION 13. MAINTENANCE OF RECORDS.--The director shall maintain records of all proceedings before a panel, which records shall include the nature of the acts or omissions complained of, a brief summary of the evidence presented, the decision of the panel, any majority or dissenting opinions filed and the final dispositions of claims as reported by plaintiffs. The records shall not be made public and shall not be subject to subpoena but shall be used solely for the purpose of compiling statistical data and facilitating ongoing studies of dental malpractice in New Mexico.
SECTION 14. PAYMENT OF COMMISSION EXPENSES.--Unless otherwise provided by law, expenses incurred in carrying out the powers, duties and functions of the commission, including the salary of the director, shall be paid by the New Mexico board of dental health care from funds collected as licensing fees. The board shall disburse fund money to the director upon receipt of vouchers itemizing expenses incurred by the commission. The director shall supply the director of the administrative office of the courts with duplicates of all vouchers submitted to the board. Expenses paid by the fund shall not exceed one hundred fifty thousand dollars ($150,000) in any single calendar year; provided, however, that expenses incurred in defending the commission shall not be subject to that maximum amount.
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