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HOUSE BILL 378
57
TH LEGISLATURE
-
STATE
OF
NEW
MEXICO
-
FIRST SESSION
,
2025
INTRODUCED BY
Rod Montoya and Gail Armstrong
AN ACT
RELATING TO MEDICAL MALPRACTICE; AMENDING THE DEFINITION OF
"OCCURRENCE" IN THE MEDICAL MALPRACTICE ACT; LIMITING THE
AMOUNT OF DAMAGES THAT CAN BE AWARDED DUE TO A MEDICAL
MALPRACTICE CLAIM; REQUIRING PAYMENTS FROM THE PATIENT'S
COMPENSATION FUND TO BE MADE AS EXPENSES ARE INCURRED.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 41-5-3 NMSA 1978 (being Laws 1976,
Chapter 2, Section 3, as amended) is amended to read:
"41-5-3. DEFINITIONS.--As used in the Medical Malpractice
Act:
A. "advisory board" means the patient's
compensation fund advisory board;
B. "control" means equity ownership in a business
entity that:
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(1) represents more than fifty percent of the
total voting power of the business entity; or
(2) has a value of more than fifty percent of
that business entity;
C. "fund" means the patient's compensation fund;
D. "health care provider" means a person,
corporation, organization, facility or institution licensed or
certified by this state to provide health care or professional
services as a doctor of medicine, hospital, outpatient health
care facility, doctor of osteopathy, chiropractor, [podiatrist ]
podiatric physician, nurse anesthetist, physician's assistant,
certified nurse practitioner, clinical nurse specialist or
certified nurse-midwife or a business entity that is organized,
incorporated or formed pursuant to the laws of New Mexico that
provides health care services primarily through natural persons
identified in this subsection. "Health care provider" does not
mean a person or entity protected pursuant to the Tort Claims
Act or the Federal Tort Claims Act;
E. "hospital" means a facility licensed as a
hospital in this state that offers in-patient services, nursing
or overnight care on a twenty-four-hour basis for diagnosing,
treating and providing medical, psychological or surgical care
for three or more separate persons who have a physical or
mental illness, disease, injury or rehabilitative condition or
are pregnant and may offer emergency services. "Hospital"
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includes a hospital's parent corporation, subsidiary
corporations or affiliates if incorporated or registered in New
Mexico; employees and locum tenens providing services at the
hospital; and agency nurses providing services at the hospital.
"Hospital" does not mean a person or entity protected pursuant
to the Tort Claims Act or the Federal Tort Claims Act;
F. "independent outpatient health care facility"
means a health care facility that is an ambulatory surgical
center, urgent care facility or free-standing emergency room
that is not, directly or indirectly through one or more
intermediaries, controlled or under common control with a
hospital. "Independent outpatient health care facility"
includes a facility's employees, locum tenens providers and
agency nurses providing services at the facility. "Independent
outpatient health care facility" does not mean a person or
entity protected pursuant to the Tort Claims Act or the Federal
Tort Claims Act;
G. "independent provider" means a doctor of
medicine, doctor of osteopathy, chiropractor, [podiatrist ]
podiatric physician, nurse anesthetist, physician's assistant,
certified nurse practitioner, clinical nurse specialist or
certified nurse-midwife who is not an employee of a hospital or
outpatient health care facility. "Independent provider" does
not mean a person or entity protected pursuant to the Tort
Claims Act or the Federal Tort Claims Act. "Independent
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provider" includes:
(1) a health care facility that is:
(a) licensed pursuant to the Public
Health Act as an outpatient facility;
(b) not an ambulatory surgical center,
urgent care facility or free-standing emergency room; and
(c) not hospital-controlled; and
(2) a business entity that is not a hospital
or outpatient health care facility that employs or consists of
members who are licensed or certified as doctors of medicine,
doctors of osteopathy, chiropractors, [podiatrists ] podiatric
physicians, nurse anesthetists, physician's assistants,
certified nurse practitioners, clinical nurse specialists or
certified nurse-midwives and the business entity's employees;
H. "insurer" means an insurance company engaged in
writing health care provider malpractice liability insurance in
this state;
I. "malpractice claim" includes any cause of action
arising in this state against a health care provider for
medical treatment, lack of medical treatment or other claimed
departure from accepted standards of health care that
proximately results in injury to the patient, whether the
patient's claim or cause of action sounds in tort or contract,
and includes but is not limited to actions based on battery or
wrongful death; "malpractice claim" does not include a cause of
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action arising out of the driving, flying or nonmedical acts
involved in the operation, use or maintenance of a vehicular or
aircraft ambulance;
J. "medical care and related benefits" means all
reasonable medical, surgical, physical rehabilitation and
custodial services and includes drugs, prosthetic devices and
other similar materials reasonably necessary in the provision
of such services;
K. "occurrence" means all [injuries to a patient
caused by health care providers' successive acts or omissions
that combined concurrently to create a malpractice claim ]
claims for damages from all persons arising from harm to a
single patient, no matter how many health care providers,
errors or omissions contributed to the harm ;
L. "outpatient health care facility" means an
entity that is hospital-controlled and is licensed pursuant to
the Public Health Act as an outpatient facility, including
ambulatory surgical centers, free-standing emergency rooms,
urgent care clinics, acute care centers and intermediate care
facilities and includes a facility's employees, locum tenens
providers and agency nurses providing services at the facility.
"Outpatient health care facility" does not include:
(1) independent providers;
(2) independent outpatient health care
facilities; or
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(3) individuals or entities protected pursuant
to the Tort Claims Act or the Federal Tort Claims Act;
M. "patient" means a natural person who received or
should have received health care from a health care provider,
under a contract, express or implied; and
N. "superintendent" means the superintendent of
insurance."
SECTION 2. Section 41-5-6 NMSA 1978 (being Laws 1992,
Chapter 33, Section 4, as amended) is amended to read:
"41-5-6. LIMITATION OF RECOVERY.--
A. Except for punitive damages and past and future
medical care and related benefits, the aggregate dollar amount
recoverable by all persons for or arising from any injury or
death to a patient as a result of malpractice shall not exceed
six hundred thousand dollars ($600,000) per occurrence. [for
malpractice claims brought against health care providers if the
injury or death occurred prior to January 1, 2022. In jury
cases, the jury shall not be given any instructions dealing
with this limitation.
B. Except for punitive damages and past and future
medical care and related benefits, the aggregate dollar amount
recoverable by all persons for or arising from any injury or
death to a patient as a result of malpractice shall not exceed
seven hundred fifty thousand dollars ($750,000) per occurrence
for malpractice claims against independent providers; provided
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that, beginning January 1, 2023, the per occurrence limit on
recovery shall be adjusted annually by the consumer price index
for all urban consumers.
C. The aggregate dollar amount recoverable by all
persons for or arising from any injury or death to a patient as
a result of malpractice, except for punitive damages and past
and future medical care and related benefits, shall not exceed
seven hundred fifty thousand dollars ($750,000) for claims
brought against an independent outpatient health care facility
for an injury or death that occurred in calendar years 2022 and
2023.
D. In calendar year 2024 and subsequent years, the
aggregate dollar amount recoverable by all persons for or
arising from an injury or death to a patient as a result of
malpractice, except for punitive damages and past and future
medical care and related benefits, shall not exceed the
following amounts for claims brought against an independent
outpatient health care facility:
(1) for an injury or death that occurred in
calendar year 2024, one million dollars ($1,000,000) per
occurrence; and
(2) for an injury or death that occurred in
calendar year 2025 and thereafter, the amount provided in
Paragraph (1) of this subsection, adjusted annually by the
prior three-year average consumer price index for all urban
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consumers, per occurrence.
E. In calendar year 2022 and subsequent calendar
years, the aggregate dollar amount recoverable by all persons
for or arising from any injury or death to a patient as a
result of malpractice, except for punitive damages and past and
future medical care and related benefits, shall not exceed the
following amounts for claims brought against a hospital or a
hospital-controlled outpatient health care facility:
(1) for an injury or death that occurred in
calendar year 2022, four million dollars ($4,000,000) per
occurrence;
(2) for an injury or death that occurred in
calendar year 2023, four million five hundred thousand dollars
($4,500,000) per occurrence;
(3) for an injury or death that occurred in
calendar year 2024, five million dollars ($5,000,000) per
occurrence;
(4) for an injury or death that occurred in
calendar year 2025, five million five hundred thousand dollars
($5,500,000) per occurrence;
(5) for an injury or death that occurred in
calendar year 2026, six million dollars ($6,000,000) per
occurrence; and
(6) for an injury or death that occurred in
calendar year 2027 and each calendar year thereafter, the
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amount provided in Paragraph (5) of this subsection, adjusted
annually by the consumer price index for all urban consumers,
per occurrence.
F. The aggregate dollar amounts provided in
Subsections B through E of this section include payment to any
person for any number of loss of consortium claims or other
claims per occurrence that arise solely because of the injuries
or death of the patient.
G.] B. In jury cases, the jury shall not be given
any instructions dealing with the limitations provided in this
section.
[H.] C. The value of accrued medical care and
related benefits shall not be subject to any limitation.
[I.] D. Except for an independent outpatient health
care facility, a health care provider's personal liability is
limited to [two hundred fifty thousand dollars ($250,000) ] two
hundred thousand dollars ($200,000) for monetary damages and
medical care and related benefits as provided in Section 41-5-7
NMSA 1978. Any amount due from a judgment or settlement in
excess of [two hundred fifty thousand dollars ($250,000) ] two
hundred thousand dollars ($200,000) shall be paid from the fund
[except as provided in Subsections J and K of this section.
J. An independent outpatient health care facility's
personal liability is limited to five hundred thousand dollars
($500,000) for monetary damages and medical care and related
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benefits as provided in Section 41-5-7 NMSA 1978. Any amount
due from a judgment or settlement in excess of five hundred
thousand dollars ($500,000) shall be paid from the fund.
K. Until January 1, 2027, amounts due from a
judgment or settlement against a hospital or hospital-
controlled outpatient health care facility in excess of seven
hundred fifty thousand dollars ($750,000), excluding past and
future medical expenses, shall be paid by the hospital or
hospital-controlled outpatient health care facility and not by
the fund. Beginning January 1, 2027, amounts due from a
judgment or settlement against a hospital or hospital-
controlled outpatient health care facility shall not be paid
from the fund.
L. The term "occurrence" shall not be construed in
such a way as to limit recovery to only one maximum statutory
payment if separate acts or omissions cause additional or
enhanced injury or harm as a result of the separate acts or
omissions. A patient who suffers two or more distinct injuries
as a result of two or more different acts or omissions that
occur at different times by one or more health care providers
is entitled to up to the maximum statutory recovery for each
injury]."
SECTION 3. Section 41-5-7 NMSA 1978 (being Laws 1992,
Chapter 33, Section 5, as amended) is amended to read:
"41-5-7. MEDICAL EXPENSES AND PUNITIVE DAMAGES.--
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A. Awards of past and future medical care and
related benefits shall not be subject to the limitations of
recovery imposed in Section 41-5-6 NMSA 1978.
B. The health care provider shall be liable for all
medical care and related benefit payments until the total
payments made by or on behalf of it for monetary damages and
medical care and related benefits combined equals the health
care provider's personal liability limit as provided in
Subsection [I] D of Section 41-5-6 NMSA 1978, after which the
payments shall be made by the fund.
C. Payments made from the fund for medical care and
related benefits shall be made as expenses are incurred.
[C.] D. Beginning January 1, 2027, any amounts due
from a judgment or settlement against a hospital or outpatient
health care facility shall not be paid from the fund if the
injury or death occurred after December 31, 2026.
[D.] E. This section shall not be construed to
prevent a patient and a health care provider from entering into
a settlement agreement whereby medical care and related
benefits shall be provided for a limited period of time only or
to a limited degree.
[E.] F. A judgment of punitive damages against a
health care provider shall be the personal liability of the
health care provider. Punitive damages shall not be paid from
the fund or from the proceeds of the health care provider's
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insurance contract unless the contract expressly provides
coverage. Nothing in Section 41-5-6 NMSA 1978 precludes the
award of punitive damages to a patient. Nothing in this
subsection authorizes the imposition of liability for punitive
damages where that imposition would not be otherwise authorized
by law."
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