Below is the slightly modified text of an email I delivered today to all Senate members of the Senate Health and Public Affairs Committee. The letter was written in anticipation of the hearing in the committee tomorrow on HB 4, The New Mexico Civil Rights Act. HB 4 will provide for civil rights claims and remedies (potential recovery) in state courts where there is none now. As the law stands now, civil rights claims must be filed in federal court.
Medical Torture in New Mexico Prisons
Collins & Collins, P.C. has filed 20 medical malpractice lawsuits against a number of prison and jails, and their medical providers. The medical neglect addressed in these claims is extreme as are the injuries which too often include death. In prior posts, I have described the medical neglect along with the extraordinary suffering of the inmates as medical torture. The pain and suffering of inmates associated with slow moving infections that overtake their spines, theirs hearts and their brains is beyond comprehension for even their attorneys. The costs to their families is permanent and severe. Medical malpractice claims, no matter how extreme the medical neglect and the injuries or death to an inmate, face almost certain dismissal when filed as civil rights claims in federal court.
Costs to New Mexico Taxpayers
This pain and suffering is rarely considered by politicians in deciding issues of this nature. Instead, they focus entirely on costs to the state, counties, jails and prisons. As such, my email focused on the costs to taxpayers which often overlook due to their focus on immediate demands from lobbyists and special interests. Hopefully, if they not consider the inhumanity and cruelty of medical neglect in our prisons and jails, they will at least begin to reflect on the true economic costs to taxpayers.
I’m a civil rights/medical negligence attorney in Albuquerque. We have numerous pending lawsuits against NMCD and its medical contractors with many more to come in the next couple of months.
In deciding whether or not to support HB 4, it might be helpful to view operation of the New Mexico Tort Claims Act and qualified immunity together. We run into the TCA limitations and qualified immunity issues time and time again. There are a number of issues that might interest you.
Two issues that I would hope would be addressed in the presentation of the bill are:
1. Private multi-billion dollar prison medical providers including have been deemed by the courts to have the protection of the Tort Claims Act. What this means in practice is that both NMCD and the medical provider have a combined cap on liability of $650,000.00. This is pittance for a multi-billion dollar company. The costs benefits risk analysis fall on the side of gross medical neglect leading to extraordinary costs to New Mexico taxpayers. State court lawsuits simply do not deter gross medical negligence.
2. Related to this issue, and clearly part of the cost benefit analysis is the fact that prison medical providers pay almost zero for any hospital stays over 24 hours. The financial incentive is to delay treatment, including referrals to specialists, until an inmate will be hospitalized for 24 hours. Moreover, it appears based upon discovery that the on-site medical providers have no authority to directly refer a patient to a specialist. Instead, approval must be obtained in advance from corporate administrators. When medical decisions are made by corporate administrators rather than medical personnel, rest assured these decisions are based on costs and not medical necessity. In our cases alone and UNMH alone, there were $1,902,660.77 in medical bills. The prison medical contractor paid $47,605.78. In the great majority of our cases, the prison medical contractor paid $0.00. We expect the same pattern to continue if HB 4 does not pass.
$1,515.192.77 (Total Billings) the prison medical contractor paid $41,537.85.
UNMG (Physician Billing)
$387,528 (total), the prison medical contractor paid $6,067.93.
Total Bills 1,902,660.77
The prison medical contractor Paid 47,605.78
The prison medical contractor’s payments equate to 3.1%. The rest is covered by Medicaid or written off by UNMH..
3. In a normal medical malpractice case involving medical providers that are not multi—billion dollar companies, this kind of behavior would result is severe punitive damages to the medical provider and for good reason. However, due to the operation of the Tort Claims Act, punitive damages are not available against the multi-billion dollar private prison medical contractors. Punitive damages are meant to deter bad conduct on the individual defendant but also future bad behavior by similarly situated defendants. Punitive damages are intended to change behavior. The bar on punitive damages against these massive companies eliminates any incentive to change. As stated, the current Tort Claims Act caps are so trivial as to be meaningless to these corporations. As a result, despite the 20 lawsuits and counting that we have filed, there has been no change to these practices. TCA protection for these contractors has and will lead to extraordinary costs to taxpayers above and beyond the costs to Medicaid. Our clients who have not died as a result of the medical neglect have suffered severe and permanent physical disabilities including severe spinal damage from easily preventable infections, amputations for failure to treat diabetes, liver disease, cirrhosis and cancer from untreated hepatitis. What does this mean for taxpayers? Most inmates had manual labor jobs prior to entering prison. Moreover, manual labor jobs are the only jobs typically available to former prisoners. They will be unable to perform manual labor as a result of their injuries. This means they will be permanent wards of the state whether they return to prison or not. In addition to permanent support for disabilities, absence of income, housing support and the like, our clients will face a lifetime of medical needs that could have been avoided. Future medical costs will be paid by Medicaid and/or Medicare. All of these costs should be considered rather just looking at the costs of settlement or plaintiff’s attorneys fees. Finally, one must not forget that the 3 year contracts for these medical contractors run into the hundreds of millions of dollars, the last contract approaching $200 million and the current contract likely to greatly exceed that.
4. The qualified immunity standards for federal court make it exceedingly risky to pursue the cases in federal court with a very significant risks of having both the federal and state law claims dismissed on summary judgement. In fact, it is virtually impossible for a medical negligence case to meet the qualified immunity standards in federal court. This forces inmates to file in state court where the TCA gives the medical contractors a virtual pass on some horrendous medical neglect.
The opposition to HB 4 seems most focused on costs to the State and to the Counties. However, the costs under discussion are extremely narrow focusing only on the settlement, judgments and plaintiff’s attorney fees. The discussion does not address the costs above. It seems that the costs above should be included in the discussion. It is likely that the costs outlined above far exceed any potential costs resulting from the passage of HB 4.
If you would like to talk, I will make myself available.
Collins & Collins, P.C.
Take Action: Contact Your Legislator
Keep in mind, and unfortunately I neglected to mention that the costs and payments (or lack of payments) were for UNM Hospital only. They do not include costs for private hospitalizations for which Medicaid/New Mexico Taxpayers pay as well.
Contact Your Legislators to insure that HB 4 is passed into law. You can find and contact your legislator here: Find My Legislator.