The New Mexico Court of Appeals case of State v. Muraida, involved criminal charges for abuse and neglect of a nursing home resident. The criminal charges arose from the gross negligence of the defendant doctor in the medical care of the patient. It is interesting to compare the criminal statutes to the typical medical malpractice lawsuit.
The post on the criminal matter related mostly to the evidentiary and procedural issues associated with the pretrial dismissal of the charges by the trial court. The court dismissed the charges under the Foulenfont Motion of the defendant.
The defendant‘s motion argued that the allegations in the complaint, along with the evidence presented by the State‘s expert that served as the basis for the criminal charges, were insufficient as a matter of law to support those criminal charges. The court‘s dismissal was tantamount to a dismissal on summary judgment in a civil court.
So the question may arise as to why the case merits two separate articles. When reading the statutes regarding criminal abuse and neglect, it becomes clear that these are little different than the typical case of medical malpractice. Moreover, the negligence at issue in the case is hardly unusual.
This is made evident by the fact that 98,000+ Americans die each year as a result of preventable medical error. It is made evident by the epidemic of medication errors. It is made evident by the fact that 1 in 3 patients in a hospital will suffer harm as a result of medical error.
Yet patients are afforded little protection. Instead, there is the constant chorus calling for medical malpractice reform and damage caps. There is the constant cry of the mythical medical malpractice crisis. There is the never-ending attack on juries. And it goes on and on.
The doctor in this case was charged under the Resident Abuse and Neglect Act. The relevant statutory language was set out in the criminal blog post but is worth reviewing here as well as one will recognize the similarities to a civil suit for malpractice.
The Act set outs the following definitions at §30-47-3:
Section 30-47-3(A)(4) defines abuse as ” any act or failure to act performed intentionally, knowingly or recklessly that causes or is likely to cause harm to a resident, including… medically inappropriate conduct that causes or is likely to cause physical harm to a resident.”
Section 40-47-3(F) defines neglect as “subject to the resident‘s right to refuse treatment and subject to the caregiver‘s right to exercise sound medical discretion, the grossly negligent:
(1) failure to provide any treatment, service, care, medication or item that is necessary to maintain the health or safety of a resident;
(2) failure to take any reasonable precaution that is necessary to prevent damage to the health or safety of a resident; or
(3) failure to carry out a duty to supervise properly or control the provision of any treatment, care, good, service or medication necessary to maintain the health or safety of a resident…”
When viewing these definitions, it is hard to discern much of a difference between these criminal acts in a nursing home setting to which the Act is confined to most any other serious act of medical malpractice.
Yet, in New Mexico (and presumably other states where such great efforts are made to shield doctors, hospitals and other medical care providers from responsibility for their negligence), these cases are routinely found not to amount to medical negligence by the New Mexico Medical Review Board.
Why does this matter? Because under the New Mexico Medical Malpractice Act, every medical malpractice claim filed against a “qualified healthcare provider” (including the doctor in this case) must first be brought before the Medical Review Board. Moreover, it is all but foregone conclusion that the Board will rule against the patient.
It is extremely rare that the Board would rule against a doctor finding medical negligence in a case. The requirement serves only as hurdle for injured patients to seek recovery for their often severe, permanent and even deadly consequences of medical negligence.
So what is the point of these statutory protections? They are rarely enforced in a criminal setting. Worse yet, the Medical Review Board rarely enforces protections for patients on the civil side.
Instead, the New Mexico Medical Malpractice Act works as a barrier to legitimate claims by injured patients. And– in those cases where the patient is able to find an attorney to take on these very challenging cases– the Medical Malpractice Act places severe limitations on recovery under its damages caps.
This case illustrates the problems and public health risks associated with medical negligence. It illustrates, as well, the misguided protections afforded “qualified healthcare providers” in New Mexico. Have a look yourself at the Medical Review Board license lookup page.
Perhaps, I missed it, but I could find no mention of this case. The intent here is not to suggest criminal prosecution for medical negligence, but at a minimum, It seems that something of this magnitude would at least be worth passing on to potential patients/consumers.
Cap on Medical Malpractice Damages Found Not to Violate Right to Jury Trial
Hospital Medication Errors More Common Than One Might Think
The High Costs of Medical Errors on the Healthcare System
The Myth of the Frivolous Medical Malpractice Lawsuit