SENATE BILL 239
55th legislature - STATE OF NEW MEXICO - first session, 2021
INTRODUCED BY
Elizabeth "Liz Stefanics
AN ACT
RELATING TO MEDICAL MALPRACTICE; AMENDING THE MEDICAL MALPRACTICE ACT; CLARIFYING THE DEFINITION OF "HEALTH CARE PROVIDER"; RAISING RECOVERABLE LIMITS; PROHIBITING DISCLOSURE OF CERTAIN CONFIDENTIAL INFORMATION.
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 committee" means the Medical Malpractice Act advisory committee created pursuant to Section 16 of this 2021 act;
B. "business entity" means a corporation, limited liability company, association, joint venture or legal or commercial entity;
[A.] 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 or physician's assistant] as defined in Subsection E of Section 12-2A-3 NMSA 1978 licensed or certified by New Mexico to provide health care or professional services as a hospital or outpatient health care facility, including persons identified in Paragraphs (2) through (9) of Subsection B of Section 59A-22-32 NMSA 1978 or licensed pursuant to the Emergency Medical Services Act; provided that if a person identified in Paragraphs (2) through (9) of Subsection B of Section 59A-22-32 NMSA 1978 or licensed pursuant to the Emergency Medical Services Act is employed by a business entity that provides health care services primarily through persons identified in Paragraphs (2) through (9) of Subsection B of Section 59A-22-32 NMSA 1978, such business entity is a health care provider;
[B.] D. "insurer" means an insurance company engaged in writing health care provider malpractice liability insurance in this state;
[C.] E. "malpractice claim" includes any cause of action arising in [this state] New Mexico against a health care provider for medical treatment, lack of medical treatment or other claimed departure from accepted standards of health care [which] 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" includes all claims for damages from all persons arising from all harm to a single patient, no matter how many qualified health care providers or errors or omissions contributed to the harm; "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;
[D.] F. "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;
G. "occurrence" means all claims for damages from all persons arising from all harm to a single patient, no matter how many qualified health care providers or errors or omissions contributed to the harm;
[E.] H. "patient" means a natural person who received or should have received health care from a licensed health care provider, under a contract, express or implied; [and]
I. "qualified health care provider" means a health care provider that has satisfied all applicable requirements set forth in Section 41-5-5 NMSA 1978; and
[F.] J. "superintendent" means the superintendent of insurance of this state."
SECTION 2. Section 41-5-5 NMSA 1978 (being Laws 1992, Chapter 33, Section 2) is amended to read:
"41-5-5. QUALIFICATIONS.--
A. To be qualified under the provisions of the Medical Malpractice Act, a health care provider shall:
(1) establish its financial responsibility by filing proof with the superintendent that the health care provider is insured by a policy of malpractice liability insurance issued by an authorized insurer in the amount of at least [two hundred thousand dollars ($200,000)] two hundred fifty thousand dollars ($250,000) per occurrence [or for an individual health care provider, excluding hospitals and outpatient health care facilities, by having continuously on deposit the sum of six hundred thousand dollars ($600,000) in cash with the superintendent or such other like deposit as the superintendent may allow by rule or regulation; provided that in the absence of an additional deposit or policy as required by this subsection, the deposit or] and for a health care provider other than a hospital, outpatient health care facility or business entity, the policy shall provide coverage for not more than three [separate] occurrences; and
(2) pay the surcharge assessed on health care providers by the superintendent pursuant to Section 41-5-25 NMSA 1978.
B. For [hospitals or outpatient health care facilities electing to be covered under the Medical Malpractice Act, the superintendent shall determine, based on a risk assessment of each hospital or outpatient health care facility, each hospital's or outpatient health care facility's base coverage or deposit and additional charges for the patient's compensation fund. The superintendent shall arrange for an actuarial study, as provided in Section 41-5-25 NMSA 1978] a hospital, outpatient health care facility or business entity electing to be covered under the Medical Malpractice Act, the superintendent shall determine, based on an annual risk assessment of the hospital, outpatient health care facility or business entity, each hospital, outpatient health care facility or business entity's deposit or additional charges for the patient's compensation fund. The superintendent shall arrange for an annual actuarial study, as provided in Section 41-5-25 NMSA 1978.
C. A health care provider not qualifying under this section shall not have the benefit of any of the provisions of the Medical Malpractice Act in the event of a malpractice claim against it.
D. Hospitals and outpatient health care facilities may demonstrate financial responsibility in the amounts set forth in Subsection A of this section through use of a claims-made policy; provided that hospitals and outpatient health care facilities shall purchase prior acts coverage at any time there would be a gap in coverage without such prior acts coverage.
E. When a claims-made policy ends and another begins, prior acts coverage must be purchased dating back to the first date claims-made coverage was used to establish financial responsibility.
F. When a claims-made policy ends and another claims-made policy does not begin, coverage must be purchased to cover claims made subsequent to the end of the claims-made policy to establish financial responsibility.
G. A hospital or outpatient health care facility that does not comply with the requirements set forth in Subsections D through F of this section is not entitled to the protections of the Medical Malpractice Act."
SECTION 3. 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)] seven hundred fifty thousand dollars ($750,000) per occurrence. In jury cases, the jury shall not be given any instructions dealing with this limitation.
B. The value of accrued medical care and related benefits shall not be subject to the [six hundred thousand dollar ($600,000)] seven-hundred-fifty-thousand-dollar ($750,000) limitation.
C. Monetary damages shall not be awarded for future medical expenses in malpractice claims.
D. A health care provider's personal liability is limited to [two hundred thousand dollars ($200,000)] two hundred fifty thousand dollars ($250,000) 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 in excess of [two hundred thousand dollars ($200,000)] two hundred fifty thousand dollars ($250,000) 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)] seven-hundred-fifty-thousand-dollar ($750,000) 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] July 1, 2021."
SECTION 4. A new section of the Medical Malpractice Act, Section 41-5-6.2 NMSA 1978, is enacted to read:
"41-5-6.2. [NEW MATERIAL] LIMITATION ON REMEDIES--APPLICABILITY OF MEDICAL MALPRACTICE ACT--VICARIOUS LIABILITY.--
A. If a patient is injured in the provision of health care by an employee or agent of a hospital, outpatient health care facility or business entity that has qualified in accordance with the provisions of Section 41-5-5 NMSA 1978, and the employee or agent does not meet the definition of "health care provider" set forth in Subsection C of Section 41-5-3 NMSA 1978, any resulting malpractice claim may only be brought against the hospital, outpatient health care facility or business entity.
B. If a patient is injured in the provision of health care by an employee or agent of a hospital, outpatient health care facility or business entity and the employee or agent meets the definition of "health care provider" set forth in Subsection C of Section 41-5-3 NMSA 1978, but the employee or agent has chosen not to qualify in accordance with the provisions of Section 41-5-5 NMSA 1978, the employee or agent is not entitled to the protections of the Medical Malpractice Act.
C. If a qualified health care provider is sued under a theory of vicarious liability for the actions of an employee or agent of that qualified health care provider who meets the definition of "health care provider" set forth in Subsection C of Section 41-5-3 NMSA 1978, but the employee or agent has chosen not to qualify in accordance with the provisions of Section 41-5-5 NMSA 1978, the qualified health care provider is entitled to the protections of the Medical Malpractice Act for the claims of vicarious liability, as well as any direct liability claims."
SECTION 5. Section 41-5-7 NMSA 1978 (being Laws 1992, Chapter 33, Section 5, as amended by Laws 1992, Chapter 33, Section 6) 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)] seven-hundred-fifty-thousand-dollar ($750,000) limitation imposed in Section 41-5-6 NMSA 1978.
D. Payment for medical care and related benefits shall be made as expenses are incurred. In the event that the patient accepts a settlement that includes a lump sum for future medical care and related benefits, the court must approve any such settlement, and the portion of settlement funds intended to be used for future medical care and related benefits must be identified and placed into an appropriate medical savings trust.
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)] two hundred fifty thousand dollars ($250,000), 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.