Like most New Mexicans, I am deeply relieved that our medical malpractice law has been changed to get rid of unlimited punitive damages, the part of the law that has been scaring the heck out of our doctors and leading too many of them to leave the state.<\/p>\n
I have already seen the first attack on the new version of the law \u2013 an article by a trial lawyer implying that injured patients won\u2019t receive the compensation they deserve and greedy corporations will have no incentive for safety. Let\u2019s clear this up.<\/p>\n
The news coverage has focused on the punitive damages problem but, based on comments I have seen, too many readers don\u2019t know what else malpractice insurance provides to injured patients. They may think the change in the law has created unfair limits on what patients could receive. That is not correct. There are limits, but the limits are within reason.<\/p>\n
Regarding the safety concern, I don\u2019t think the threat of huge lawsuits is the best way to support safety, and it may even be detrimental as it leads doctors to so-called defensive medicine, avoiding risks and perhaps refusing to treat patients with complicated conditions. There are other ways to improve standards of practice based on improvement and cooperation rather than fear. New Mexico can now look at how to implement those standards.<\/p>\n
The new law defines a malpractice claim as including \u201cany 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 \u2026 \u201c In other words, it includes mistakes, both large and small.<\/p>\n
There are three categories of compensation to persons injured by medical malpractice. A seriously injured person might receive millions of dollars in money or medical care.<\/p>\n
First is the category the statute calls \u201cpast and future medical care and related benefits.\u201d That is exactly what it looks like \u2013 costs related to the medical needs of the patient created by the medical error or omission. The amount of money for this category is unlimited. Look at that word again: unlimited. It is whatever the patient needs or will need in the future, as estimated through the legal process, for the rest of the patient\u2019s life if necessary.<\/p>\n
Second is the category that appears to be deliberately nameless. The statute uses the term \u201cthe aggregate dollar amount recoverable\u201d and does not define the basis for the recovery. We can guess that payment in this category will be determined for each individual case by either a negotiation or a jury.<\/p>\n
Awards in this category are capped, with different maximums for different classes of health care providers. At the low end, the maximum for independent providers is $750,000 per occurrence, with any amount more than $250,000 to be paid not by the provider but by the state\u2019s Patient Compensation Fund.<\/p>\n
The third category is punitive damages \u2013 the subject of the controversy that led to this change in the law.<\/p>\n
As the Governor\u2019s press release describes this section, \u201cThe bill creates tiered, inflation-adjusted caps on punitive damages \u2014 $1 million for independent providers, $6 million for locally owned hospitals, and $15 million for large systems \u2014 and raises the evidentiary standard to \u2018clear and convincing,\u2019 requiring judicial review before punitive damage claims can proceed.\u201d Punitive damages are supposed to be levied as punishment, only in cases of egregious irresponsibility. The new language sets that standard.<\/p>\n
There\u2019s much more complexity to this law but I\u2019ve tried to outline the basics.<\/p>\n
Under this version, there\u2019s less incentive for lawyers to file questionable or frivolous malpractice cases. It\u2019s a good step in increasing access to health care for the rest of us \u2013 the New Mexicans who have been waiting too long to see a doctor.<\/p>\n
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Like most New Mexicans, I am deeply relieved that our medical malpractice law has been changed to get rid of unlimited punitive damages, the part of the law that has been scaring the heck out of our doctors and leading … Continue reading