Premise of New Mexico Medical Malpractice Act is Flawed Yet Now Expanded
The New Mexico Medical Malpractice Act provides enormous protections to qualified medical providers. It also creates a number of burdens and hurdles for patients who are injured or killed as a result of medical negligence.
The New Mexico Supreme Court recently addressed the question of whether professional corporations and/or limited liability companies can qualify for protection under the Act.
The case is perhaps more interesting for its discussion of the purposes of the Medical Malpractice Act in New Mexico than for its discussion of the technical definitions of “healthcare provider” on which its decision was based.
In a nutshell, the Court upheld the Court of Appeals decision on its ultimate ruling but disagreed on the route to get there. Basically, the Court of Appeals had ruled that though these legal entities did not come within the definition of healthcare providers, the legislative intent was clearly to afford them protection.
The Supreme Court came to the same conclusion that they are protected under the Act. However, unlike the Court of Appeals, the New Mexico Supreme Court found that they did meet the definition of healthcare provider. As a result, these corporate entities are entitled to all the protections under the Medical Malpractice Act.
This is important because the protections are pretty extensive as the Court discussed. The Court first suggested a quid pro quo of sorts providing protection for medical providers in return for assurance of their financial responsibility. Basically, this means little more than purchasing insurance and contributing to the patient compensation fund.
In return for the participation in the program and the qualified healthcare provider status that comes with it, the medical provider gains a host of protections aimed toward limiting its liability for negligence that harms or kills patients. On the flip side, it results in injured patients or their survivors being undercompensated in many cases, and grossly undercompensated in others.
The Court lists a host of protections afforded by the Act. The gist of the protections are severe limits on recovery and certain pointless procedural hurdles such as the requirement that the patient first present the case to the Medical Review Commission.
In getting to all this, the Court sets forth the historical purposes behind the Medical Malpractice Act, all of which are pure myth created and maintained by the medical insurance industry.
Though the Court may indeed have upheld the legislative intent, the intent and the fictions it was meant to address are pure mythology so the full language is laid out here. Anyone that follows the debate on medical malpractice caps could take issue with each and every premise set forth in the purported legislative intent.
The Court cited the proclaimed purposes of the Act as follows:
The Legislature‘s stated purpose for enacting the MMA was “to promote the health and welfare of the people of New Mexico by making available professional liability insurance for health care providers in New Mexico.” Section 41-5-2. “A major purpose of the Medical Malpractice Act was to meet a perceived insurance crisis” in New Mexico…This crisis was triggered by the announced withdrawal of the insurance company underwriting the medical society‘s professional liability program in which ninety percent of medical practitioners and health care institutions participated. A result of this concern was the Medical Malpractice Act. . . . Availability of health care depends on providing incentives to persons to furnish health care services. If the practitioner must bear the cost of the patient‘s injury, there is a powerful disincentive to furnishing services at all. This disincentive may be met by making professional liability insurance available.
Rather than rehash all of my previous arguments, here are some related readings from our blog and other sources. It is indeed a matter of legislative intent. And patient safety groups fight each year to address the issue and dispel the myths of a medical malpractice crisis. It is up to voters to contact their legislators. It will not change until the legislature is forced to take notice and give voice to injured patients and their families.
Institute of Medicine: To Err is Human Building a Safer Health System
LA Times: Raise the cap on malpractice awards
American Association of Justice: Debunking the Myths
American Association of Justice: Preventable Medical Errors – The Sixth Biggest Killer in America
From Our Injury Blog:
Hospital Survival: The Numbers
Medical Malpractice Caps and Public Costs, Who Really Pays?
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