On February 17, the New Mexico Senate voted overwhelmingly 40-2 in favor of House Bill 99 known as the Medical Malpractice Act, but only after it had been stripped of amendments that had been added by the Senate Judiciary Committee earlier in the day. The amendments would likely have complicated its passage into law. HB 99 was the subject of weeks of behind-the-scenes negotiations between lawmakers, the Governor’s Office, attorneys, hospital representatives and physicians.
The House approved House Bill 99 on January by a vote of 66-3, sending the measure to the Senate for consideration. The bill limits punitive damages in medical malpractice cases for the first time in New Mexico’s history. House Bill 99 now goes to Gov. Michelle Lujan Grisham who is expected to sign it into law having voiced her support for the measure. If Lujan Grisham signs the bill as expected, HB 99 goes into effect May 20.
CAPS ENACTED BY LEGISLATION
Currently, under the New Mexico Medical Malpractice Act, there are no caps on the amount of punitive damages that can be awarded. HB 99 as enacted puts caps on the amount of punitive damages juries can award in malpractice cases. Proponents said the caps are a critical step to reverse severe doctor shortages. Opponents argued it would leave malpractice victims with no path to justice without improving the state’s supply of providers.
Under the enacted HB 99, punitive damages would be limited to around $900,000 for independent doctors, $1 million for independent outpatient clinics and $6 million for locally owned and operated hospitals. These are the same caps set for most compensatory damages in medical malpractice cases. HB 99 creates a higher tier for claims against large hospitals and hospital-controlled outpatient facilities, capping punitive damages at two and a half times the limits the bill establishes for local hospitals.
PROBLEMATIC AMENDMENTS REMOVED
On February 16 and 17, extensive hearings lasting hours were held on House Bill 99 by the Senate Judiciary committee which is chaired by Senator Joseph Cervantes of Las Cruces.
The lawyers on the Senate Judiciary Committee started their discussion on HB 99 with their disclosures that they are attorneys. Senate Majority Leader Peter Wirth, D-Santa Fe disclosed that he serves as a personal representative in wrongful death cases and handles wrongful death cases in his mediation practice. Both Senators Cervantes and Katy Duhigg said they work directly in field of medical malpractice law. Sen. Moe Maestas, D-Albuquerque, said he has worked as a lawyer for nearly 30 years and is a member of the New Mexico. Trial Lawyers Association historically has opposed all efforts to change the state’s medical malpractice law.
All four attorneys made it clear that they had no cases where the legislation would benefit or impact them financially and saying they had no conflicts of interest and that they intended to vote for the bill.
Senator Cervantes said this:
“I can’t see any way in which this particular legislation as it’s being proposed right now directly benefits me with any cases I have right now or any outcomes that I would have right now. ”
Senator Duhigg said this:
“There’s no direct pecuniary benefit to me voting on this bill, so I’ll be voting on it as well.”
Majority Floor Leader Peter Wirth said this:
“As a court appointed personal representative, I am paid by the hour. Any statewide changes to medical malpractice law and punitive damages law do not in any way change my fee in a pending or future case.”
On Tuesday afternoon, February 17, the Senate Judiciary Committee voted 8-1 to advance House Bill 99 to the Senate floor but only after amendments were offered by Senate Judiciary Committee chairman Joseph Cervantes. The Judiciary Committee’s amendments left intact the key feature of House Bill 99 that would limit punitive damage awards for the first time in New Mexico.
Senator Katy Duhigg, D-Albuquerque cast the lone vote against the do-pass recommendation by the Judiciary Committee. Senatore Duhigg and others argued insurance premium costs would not decline if HB 99 was signed into law. Duhigg said this during a Senate Judiciary Committee debate:
“We are lying to our health care providers, and we are lying to the public. … We are representing to the public that malpractice insurance premiums will go down, when that is not what history shows, and that access to care will go up, when that is not what history shows. … We are abandoning New Mexicans who have been injured as a result of medical malpractice.”
Rep. Christine Chandler, D-Los Alamos, the bill’s lead sponsor, said after the vote that the Judiciary committee’s actions were “problematic” because they create uncertainty about the value of injuries in medical malpractice cases. Chandler said most of the amendments considered by the Senate Judiciary Committee would have changed provisions previously agreed upon in negotiations and she said “I find that extremely disappointing.”
An amendment offered by committee chair Sen. Joseph Cervantes was approved by a 5-4 vote altered the way medical care is valued in malpractice cases where an insurance company provides compensation to an injured person. Under the original version of House Bill 99, an injured person can recover the actual amount they paid but not the full amount billed. Cervantes said his amendment was intended to prevent constitutional challenges.
Representative Chandler told the Senate Judiciary committee this:
“There is significant potential for windfalls and thereby jacking up the cost for everyone across the state. The patient is entitled to recover damages they actually pay. … We’re trying to keep the cost of health care down and the cost of premiums down. We should be looking at keeping costs down.”
A second amendment, also offered by Cervantes and approved by the committee, altered the definition of “occurrence.” The original bill used a definition that limited each incident of alleged malpractice to one claim. The altered version would have allowed multiple complaints over actions taken by providers in a single incident expanding the number of injuries that can be alleged in a single malpractice claim.
Chandler, a Democrat from Los Alamos, told the Senate Judiciary Committee that at least four provisions of HB 99, including the bill’s definition of “occurrence”, were expected to help reduce insurance premiums. Chandler said the committee’s definition of “occurrence” will not achieve the bill’s goal of reducing premiums.
Cervantes said the original bill would result in lengthy litigation as attorneys in malpractice cases dispute the number of injuries included in a single malpractice claim.
A third amendment adopted by the Judiciary Committee would have changed the way medical costs were calculated in a malpractice claim. Sen. Joseph Cervantes argued the original language of the bill would upset a long-held legal rule and decades of precedent. Cervantes, the committee chair, said this to Rep. Christine Chandler, the bill’s sponsor:
“You and I will disagree about that, but I’m right,”
Chandler said the amendment “creates ambiguities” about the meaning of an occurrence and said this:
“I think there’s going to be more litigation over whether there’s an occurrence or not, not less”.
Senator Cervantes ultimately voted to advance HB 99 to the Senate floor but he voiced concerns the bill will lead to more litigation and said this:
“This will keep a lot of us lawyers busy for a very long time.”
A fourth amendment adopted by the Senate Judiciary Committee took aim at the tiered system, but lawmakers argued the change would retain the tiered damage caps while eliminating a separate legal issue.
On the Senate floor, Sen. Sen. Crystal Brantley, R-Elephant Butte, led the successful effort to strip the amendments added by the Senate Judiciary Committee. She accused the lawyers on the panel of inserting “poison pills” into the bill and prioritizing the interests of trial lawyers over patients. Brantley said the attorneys knew the amended bill would “keep them rich by passing it or keep them rich by not passing it” and said this:
“Today’s Senate Judiciary Committee was not a hearing. … It was a hijacking. … Unfortunately, a small group of plaintiffs’ attorneys are now holding over 2 million New Mexicans hostage.”
The full Senate removed the Senate Judiciary Committee’s amendments in a vote of 25-17. The full Senate went on to enact the legislation voting 40-2 for its passage. Senators Linda López, D-Albuquerque, and Shannon Pinto, D-Tohatchi, cast the lone “no” votes.
REACTION TO PASSAGE
Dr. Robert Underwood, President of the New Mexico Medical Society said this in a statement:
“[HB 99] is vital step toward restoring stability to New Mexico’s medical liability environment, making this a state where physicians want to both move and stay. For years, our medical liability climate has pushed doctors out of the state and placed patient care at risk. This bill represents real, meaningful reform and is a critical step in stabilizing our healthcare system.”
State Senate Republicans issued the following statement celebrating its passage:
“Today, New Mexico finally heeded our advice to put the needs of patients and our healthcare providers above the greedy desires of trial attorneys who have taken advantage of a previously broken system for their own financial benefit. It is a successful restoration of balance and common sense. This legislation ensures a fairer environment for medical providers to practice in New Mexico while maintaining accountability for patients who may have experienced negligent care.”
Links to quoted ore relied upon news sources are here:
https://www.abqjournal.com/news/senate-passes-medical-malpractice-bill/2982910
COMMENTARY AND ANALYSIS
House Bill 99 was the most closely watched and most contentious measure of the 30-day session. Gov. Michelle Lujan Grisham, who supports the proposal, insisted she would call a special session if the Legislature failed to pass a substantial overhaul to the malpractice law. There is no doubt she will sign the measure sooner rather than later.
As is the case with any legislation as complicated and as contentious as the major changes to Medical Malpractice Act were, it will likely be years before its full impact can be gaged. No doubt future litigation will occur and the constitutionality of the caps will be challenged by the trial attorneys.
Success will be measured if insurance premiums in fact go down and if the physicians stop leaving the state. The blunt reality is that the unintended consequences just may wind up being that victims of medical malpractice will in no way be adequately compensated for their life changing injuries and medical malpractice will not be adequately addressed, in which case the legislature will be revisiting and wind up repealing what they have enacted and the state will be back to square one.