The New Mexico Tort Claims Act creates a number of protections for governmental entities against personal injury claims . This protection extends to all governmental entities including medical providers, schools, public buildings, public employees and so on.
Among these protections is the cap on damages.
What is the Cap on Damages?
First, an explanation of “caps” might be in order. A cap on damages sets the limits of liability for the governmental entity. In other words, the injured person cannot recover more than the cap in a lawsuit against a governmental entity.
Under the New Mexico Tort Claims Act, NMSA § 41-4-19, the caps are set at a max of $700,000. The caps are broken down as follows:
1) $300,000 for all past and future medical and medically related expenses, and
2) $400,000 for all damages other than medical and medically related expenses.
This means that recovery is limited to $700,000 under the Tort Claims Act for any personal injury or wrongful death claim no matter what the true level of injuries, harm, or damages.
It should be noted, in light of the recent coverage on the Albuquerque Police Department, that these caps do not apply to civil rights claims, which fall under federal law.
Insufficiency of the Caps
The $700,000 caps are often sorely deficient in compensating a victim of governmental negligence. This can be seen in what is capped.
Cap on Medical Expense
The $300,000 cap on medical expense, both past and future, will be severely insufficient in cases of serious personal injury. Medical expenses can easily exceed $300,000 before any consideration of future medical expenses. In cases of serious and permanent injury, future medical expenses can literally go into the millions of dollars.
One might reasonably ask who is left to carry the burden of these costs if the governmental entity is allowed to escape liability. Of course, the answer is the injured person and his or her family. This burden will and does cause the financial ruin of the innocent victim and family.
Cap on Other Damages
The remaining $400,000 cap applies to all other damages arising out of the personal injuries or wrongful death.
The cap clearly applies to the much maligned “pain and suffering” damages. It also applies to much more concrete damages such as lost income.
Again, in cases involving permanent and debilitating injuries or wrongful death, the loss of income over a lifetime of earnings can dwarf the $400,000 cap. The math is not terribly difficult taking into consideration income earning history, income potential and projected work-life duration.
Caps are Unfair but Enforceable
Only those unfortunate folks who find themselves in this situation can truly appreciate the unfairness of the caps. The fact that one’s own government can largely escape liability for harm to a citizen is in itself offensive.
Even more offensive is the fact that the government can dodge full responsibility for the harm that it causes with disastrous and permanent personal and financial consequences to the victim and the family.
Despite the unfairness of the caps, they are fully enforceable. The caps have stood up to challenge after challenge in the courts. They will not go away or even be raised to more reasonable levels without legislative action. And this will come only when the public demands it.
It can only be hoped that the public will demand the change necessary to right this injustice.