HOUSE BILL 11

55th legislature - STATE OF NEW MEXICO - second special session, 2021

INTRODUCED BY

Dayan Hochman-Vigil and Doreen Y. Gallegos

AN ACT

RELATING TO MEDICAL MALPRACTICE; MODIFYING THE DEFINITION OF "INDEPENDENT PROVIDER"; LIMITING THE APPLICABILITY OF LAWS 2021, CHAPTER 16, SECTION 3 FOR CERTAIN OUTPATIENT HEALTH CARE FACILITIES; DECLARING AN EMERGENCY.

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

     SECTION 1. Section 41-5-3 NMSA 1978 (being Laws 1976, Chapter 2, Section 3, as amended) is amended to read:

     "41-5-3. DEFINITIONS.--As used in the Medical Malpractice Act:

          A. "advisory board" means the patient's compensation fund advisory board;

          B. "fund" means the patient's compensation fund;

          C. "health care provider" means a person, corporation, organization, facility or institution licensed or certified by this state to provide health care or professional services as a doctor of medicine, hospital, outpatient health care facility, doctor of osteopathy, chiropractor, podiatrist, nurse anesthetist, physician's assistant, certified nurse practitioner, clinical nurse specialist or certified nurse-midwife or a business entity that is organized, incorporated or formed pursuant to the laws of New Mexico that provides health care services primarily through natural persons identified in this subsection;

          D. "hospital" means a facility licensed as a hospital in this state that offers in-patient services, nursing or overnight care on a twenty-four-hour basis for diagnosing, treating and providing medical, psychological or surgical care for three or more separate persons who have a physical or mental illness, disease, injury or a rehabilitative condition or are pregnant and may offer emergency services. "Hospital" includes a hospital's parent corporation, subsidiary corporations or affiliates if incorporated or registered in New Mexico; employees and locum tenens providing services at the hospital; and agency nurses providing services at the hospital;

          E. "independent provider" means a doctor of medicine, doctor of osteopathy, chiropractor, podiatrist, nurse anesthetist, physician's assistant, certified nurse practitioner, clinical nurse specialist or certified nurse-midwife who is not an employee [or not an agent] of a hospital or outpatient health care facility. "Independent provider" includes a business entity that is not a hospital or outpatient health care facility that employs or consists of members who are licensed or certified as doctors of medicine, doctors of osteopathy, chiropractors, podiatrists, nurse anesthetists, physician's assistants, certified nurse practitioners, clinical nurse specialists or certified nurse-midwives and the business entity's employees;

          F. "insurer" means an insurance company engaged in writing health care provider malpractice liability insurance in this state;

          G. "malpractice claim" includes any cause of action arising in this state against a health care provider for medical treatment, lack of medical 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 sounds in tort or contract, and includes but is not limited to actions based on battery or wrongful death; "malpractice claim" does not include a cause of action arising out of the driving, flying or nonmedical acts involved in the operation, use or maintenance of a vehicular or aircraft ambulance;

          H. "medical care and related benefits" means all reasonable medical, surgical, physical rehabilitation and custodial services and includes drugs, prosthetic devices and other similar materials reasonably necessary in the provision of such services;

          I. "occurrence" means all injuries to a patient caused by health care providers' successive acts or omissions that combined concurrently to create a malpractice claim;

          J. "outpatient health care facility" means an entity that is licensed pursuant to the Public Health Act as an outpatient facility, including ambulatory surgical centers, free-standing emergency rooms, urgent care clinics, acute care centers and intermediate care facilities and includes a facility's employees, locum tenens providers and agency nurses providing services at the facility. "Outpatient health care facility" does not include independent providers;

          K. "patient" means a natural person who received or should have received health care from a health care provider under a contract, express or implied; and

          L. "superintendent" means the superintendent of insurance."

     SECTION 2. TEMPORARY PROVISION--OUTPATIENT HEALTH CARE FACILITIES--LIMITATION ON RECOVERY.--From January 1, 2022 to July 1, 2023, 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 an injury or death to a patient as a result of malpractice shall not exceed seven hundred fifty thousand dollars ($750,000) per occurrence for claims brought against an outpatient health care facility, not including outpatient health care facilities majority-owned and -controlled by a hospital, if the injury occurred in that time period. The aggregate dollar amount includes payment to a 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. In jury cases, the jury shall not be given any instructions dealing with this limitation.

     SECTION 3. APPLICABILITY.--The provisions of Laws 2021, Chapter 16, Section 3 apply to outpatient health care facilities described in Section 2 of this act on and after July 1, 2023.

     SECTION 4. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.

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