House Bill 4, the New Mexico Civil Rights Act, was signed into law last week on April 7, 2021. The importance of its passage to the rights of New Mexico prison and jail inmates cannot be overstated. The Act does not go into effect until July 1, 2021. After July 1, it is a whole new ball game for prison and jail inmate medical malpractice lawsuits.
There will be a series of articles following this initial summary to address each individual section and how it will benefit the rights of New Mexico inmates and their families. The article below will provide a quick overview of the most important provisions of the Act so that inmates and their loved ones will know that help is on the way.
Act Applies to Medical Negligence Occurring After July 1, 2021
The Civil Rights Act applies only to actions or inactions in violation of inmate civil rights occurring after July 1, 2021. This is perhaps the most disappointing provision. Collins & Collins, P.C. is evaluating many cases of extreme medical neglect by New Mexico Corrections Department and its contractors. Unfortunately, none of those cases will benefit from the Civil Rights Act.
On the other hand, it is highly doubtful that either NMCD or its medical contractors are capable of improving medical care in NMCD facilities. Nor is NMCD inclined to improve medical care in its facilities even were it capable. The incompetence, cruelty and callousness of NMCD medical care has no bounds. Sadly, it is fully expected that the same extreme medical neglect will continue until NMCD is overhauled at the top which brings us to the last important and disappointing provisions of the Civil Rights Act.
Definition of Public Body
The New Mexico Civil Rights Act allows claims against “public bodies”. “Public Body” is defined very much like the definition of public body in the New Mexico Tort Claims Act. Under the Civil Rights Act, public body is defined as:
“state or local government, an advisory board, a commission, an agency or an entity created by the constitution of New Mexico or any branch of government that receives public funding, including political Subdivisions,…”
What this means to New Mexico inmates is that the Civil Rights Act applies to all New Mexico prisons and jails.
New Civil Rights Claims Under New Mexico Constitution
Many would be surprised to learn that until passage of the Civil Rights Act, there was no possibility for a New Mexico inmate to bring civil rights claims under the New Mexico Constitution. This was the case despite the fact that the New Mexico constitution, like the United States Constitution, provides for a basic bill of rights.
For purposes of inmate medical malpractice claims against prisons, jails and their medical contractors, the New Mexico Bill of Rights provides rights against cruel and unusual punishment (Article 13) and due process rights (Article 18). Prior to passage of the New Mexico Civil Rights Act, Articles 13 and 18 were mere words. There was no possibility of enforcing those rights in New Mexico Courts.
Instead, New Mexico inmates suffering extreme medical neglect, were forced to federal court to pursue constitutional claims. Inmate medical neglect claims no matter how extreme face virtually certain dismissal in federal courts due to the impossible burden of overcoming qualified immunity. After July 1, 2021, the New Mexico Constitution will finally have meaning for New Mexico inmates.
Ban on Qualified Immunity
Qualified immunity is the greatest abomination in the courts and is largely responsible for the horrendous violations of civil rights that we all routinely see on the nightly news. An end to qualified immunity is perhaps the most important aspect of the New Mexico Civil Rights Act. As mentioned, inmates suffering what may aptly be referred to as medical torture, have never had constitutional rights in state courts. Inmates were forced to federal court where qualified immunity would completely shut down their lawsuits no matter how horrible the medical neglect.
Qualified immunity has literally been a license to kill for prisons, jails, their employees, staff and contractors. This has allowed the daily atrocities committed against New Mexico inmates to go on unabated. There simply was no accountability. The Civil Rights Act will take one big step toward accountability. It is not perfect, but It should make prisons, jails and their medical contractors rethink their approach to inmate medical care. If it doesn’t, they will pay a price they have largely escaped in the past.
Recovery of Attorney Fees and Costs
Recovery of attorney fees and costs is very important. in civil rights claims. The recovery of attorney fees and costs is not so important for big cases against the New Mexico prisons and jails. It is far more important to those cases where gross medical neglect has occurred but somehow the inmate managed to avoid severe and permanent harm, or death.
Unfortunately, without severe harm or death, the potential financial recovery under state law for simple medical malpractice was often too small to justify attorney involvement. This is because most attorneys, including Collins & Collins, P.C., take inmate medical negligence cases on contingency meaning they take a percentage of a settlement or judgment.
Inmate medical negligence claims are very expensive to pursue. In addition to the costs of the litigation, these cases take enormous attorney and staff time. Simply put, attorneys could not take on state court medical malpractice cases nor would the cases survive in federal court where attorney fees and costs could theoretically be recovered.
Increase in Caps on Liability
The increase in potential financial liability to public bodies is extremely important for inmate rights. Prior to passage of the Civil Rights Act, the New Mexico Tort Claims Act’s limits on recovery in state court for medical malpractice was $400,000 for wrongful death and $700.000 for severe, permanent harm requiring future medical care.
The new limits (caps) are $2 million. In addition, recovery under the Civil Rights Act is not exclusive of other remedies. This means that recovery under the Tort Claims Act is still available allowing up to $2.7 million recovery per “occurrence”. Occurrence is not defined, and this will be very hotly contested in future court cases. The other caps issue that will be disputed is whether the caps apply to each defendant meaning that a separate cap would apply to NMCD and to its medical provider, and other NMCD contractors.
3 Year Statute of Limitations
The new 3-year statute of limitations is also very important. The New Mexico Tort Claims Act had a 2-year statute of limitations. However, there was also a Tort Claims Notice Requirement. The Tort Claims Act required a notice to an offending public body within 90 days of the medical negligence for personal injuries and 180 days for wrongful death.
The new 3-year statute of limitations merits additional discussion:
1. There is no Tort Claims Notice requirement for civil rights violations. under the New Mexico Civil Rights Act. There is simply a 3-year statute of limitations.
2. A Tort Claims Notice should still be sent if possible, however, because without it, an inmate cannot gain the potential additional $700,000 recovery under the Tort Claims Act.
3. Inmates must still file medical grievances under New Mexico law. Failure to do so could result in dismissal of medical negligence claims even in state court for civil rights violations.
4. The Civil Rights Act has its own notice provisions.
Required Notice of Claims
Although the 60- or 90-day Tort Claims Notice requirement will no longer be required under the Civil Rights Act, there is a notice requirement. The new requirement is one year from the date of the civil rights violation for personal injury claims and 18 months for wrongful death claims.
There are a couple of exceptions to the notice requirement. First, no notice is required if the public body had “actual knowledge” of the occurrence. Second, the one-year requirement is tolled for up to one year while the injured inmate is incapacitated.
Actual knowledge will be another point of contention that will be hotly litigated in the future. For instance, does a Tort Claims Notice suffice? How about a medial grievance?
Waiver of Sovereign Immunity
The New Mexico Tort Claims Act provided for immunity for lawsuits against public bodies. There were very limited exceptions to sovereign immunity under which inmates could file lawsuits. There is no sovereign immunity under the Civil Rights Act.
Collins & Collins, P.C. has filed many lawsuits against NMCD and its medical contractors that included claims that ended up getting dismissed due to sovereign immunity under the New Mexico Tort Claims Act. The gloves are off as of July 1, 2021. For any acts of reckless disregard and deliberate indifference to inmate medical needs occurring after July 1, all of those claims will be added back in.
Indemnification of Bad Actors Limits Full Accountability
This brings us to the next big disappointment under the Civil Rights Act is that public bodies will indemnify the individual bad actors committing the atrocities against New Mexico inmates. This is not so much a problem for most public bodies. It is a huge problem when referring to the New Mexico Corrections Department (NMCD).
Real change will not occur until these individuals are held individually accountable without taxpayers bailing them out in the end.
Civil Rights Act is Game Changer for Inmate Medical Malpractice Claims
The medical malpractice lawsuits filed by Collins & Collins, P.C. against New Mexico Corrections Department (NMCD) and its medical contractors involve extreme medical neglect, intentional cruelty, absolute callousness toward the illnesses of inmates, and deliberate indifference to inmate medical needs. They all involve violations of the New Mexico Constitution’s ban on cruel and unusual punishment. In most cases, they also involved violations of due process.
In short, the medical negligence in NMCD facilities is so extreme that cases occurring after July 1, 2021 will almost certainly be actionable under the Civil Rights Act in New Mexico state courts. This will change everything for inmates and their families. Collins & Collins, P.C. intends to do everything it can to insure that it does.