HOUSE BILL 552
50th legislature - STATE OF NEW MEXICO - first session, 2011
INTRODUCED BY
Thomas C. Taylor
AN ACT
RELATING TO MEDICAL MALPRACTICE; ENACTING THE HOSPITAL LIABILITY ACT; PROVIDING LIABILITY LIMITS FOR CERTAIN MALPRACTICE CLAIMS AGAINST HOSPITALS, HOSPITAL SYSTEMS AND AMBULANCE SERVICE PROVIDERS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. SHORT TITLE.--This act may be cited as the "Hospital Liability Act".
SECTION 2. PURPOSE.--The purpose of the Hospital Liability Act is to promote the health and welfare of the people of New Mexico and to assist hospitals, hospital systems and ambulance service systems providing care in New Mexico in the control of health care costs.
SECTION 3. DEFINITIONS.--As used in the Hospital Liability Act:
A. "hospital health care provider" means any of the following, or an employee, officer or agent of the following, in the course of providing health care or health-care-related services, or a member of a board of directors, board of trustees or any similar body of the following:
(1) a person who is licensed, certified, registered or chartered in this state to provide health care or health care services as a hospital;
(2) a business entity qualified to do business in New Mexico that owns, operates or manages a hospital or hospitals licensed, certified, registered or chartered in New Mexico; or
(3) a person or entity that owns, operates or manages an ambulance service that is licensed or operated under the laws of New Mexico; but "hospital health care provider" does not mean a health care provider who is a qualified health care provider pursuant to the Medical Malpractice Act;
B. "malpractice claim" means any cause of action arising in this state against a hospital health care provider for medical treatment, lack of medical treatment, negligent credentialing, hiring, training or supervision or any other claimed departure from accepted standards of health care that proximately results in injury to a patient, whether the claim or cause of action sounds in tort or contract and includes actions based on battery or wrongful death, as well as claims brought by others as a result of the claimed departure to the patient, such as claims for bystander recovery or loss of consortium; and "malpractice claim" includes medical malpractice claims against an ambulance service, as well as a cause of action arising out of the driving, flying or non-medical acts involved in the operation, use or maintenance of a vehicular or aircraft ambulance, while being used for or within the intended purpose of the operation of an ambulance service;
C. "non-economic damages" means all recoverable damages except:
(1) past and future medical expenses;
(2) past and future loss of income and earning capacity; and
(3) punitive damages; and
D. "qualified health care provider" means a health care provider who is qualified under the provisions of the Medical Malpractice Act.
SECTION 4. MALPRACTICE CLAIMS--LIMITATION ON LIABILITY.--
A. Except as provided in Section 5 of the Hospital Liability Act, in any action based on a malpractice claim for personal injury or death against a hospital health care provider:
(1) the maximum amount recoverable for all non-economic damages shall equal five hundred thousand dollars ($500,000) as adjusted by the percentage increase or decrease in the consumer price index for all items and for all urban consumers as published by the United States department of labor between July 2011 and the month immediately preceding the date that final judgment is entered for the damage award; and
(2) the maximum amount recoverable for all punitive damages shall equal four times the maximum amount specified in Paragraph (1) of this subsection.
B. The limitation of Subsection A of this section shall cover any and all claims of all individuals who are claiming damages as a consequence of all personal injuries and death related to the malpractice claims at issue, regardless of whether the claims belong to a person other than the patient, including claims for bystander recovery or loss of consortium.
C. The limitation of Subsection A of this section shall apply regardless of the number of hospital health care providers found to be liable or the number of separate causes
of action on which the claim is based; provided, however, that in an action where a final judgment is rendered against both a hospital health care provider and a qualified health care provider, the limitations of this section shall apply only to the hospital health care provider and the judgment against the qualified health care provider shall be governed by the provisions of the Medical Malpractice Act.
SECTION 5. CLAIMS BASED ON APPARENT OR OSTENSIBLE AGENCY OR VICARIOUS LIABILITY.--
A. In an action against a hospital health care provider against whom a claim is made based on apparent or ostensible agency or vicarious liability, for a malpractice claim arising out of the conduct of a qualified health care provider:
(1) the limitation of recovery provided in Section 41-5-6 NMSA 1978 and the tolling of the statute of limitations provided in Section 41-5-22 NMSA 1978 shall apply to the claim against the hospital health care provider for the comparative fault portion of the malpractice claim alleged to be caused by the conduct of the qualified health care provider;
(2) if the hospital health care provider is found liable for only its vicarious liability for a qualified health care provider, the limitations described in this subsection pursuant to the Medical Malpractice Act shall apply;
(3) if the hospital health care provider is found liable for both vicarious liability for the conduct of a qualified health care provider as well as for its own non-vicarious liability, then the limits of the Hospital Liability Act shall be the sole limits for all recovery against the hospital health care provider; and
(4) if the hospital health care provider is found liable for only its vicarious liability for another health care provider who is not a qualified health care provider, or for both its vicarious liability for another health care provider who is not a qualified health care provider and its own non-vicarious liability, then the limit of recovery of the Hospital Liability Act shall be the sole limit against the hospital health care provider.
B. Nothing in the Hospital Liability Act shall revoke or amend any right of indemnification that a hospital health care provider may have against a qualified health care provider for payment of a vicarious award against the hospital health care provider.
SECTION 6. LAW OF COMPARATIVE FAULT UNAFFECTED.--Nothing in the Hospital Liability Act shall be deemed to revoke the law of comparative fault.
SECTION 7. DISCLOSURE OF LIMITS PROHIBITED.--The limits of liability provided under the Hospital Liability Act shall not be disclosed to any jury hearing a malpractice claim.
SECTION 8. APPLICABILITY OF TORT CLAIMS ACT.--The provisions of the Hospital Liability Act do not apply to health care providers who are governmental entities or public employees under the Tort Claims Act.
SECTION 9. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2011.
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