HOUSE BILL 736
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Keith J. Gardner
AN ACT
RELATING TO MEDICAL MALPRACTICE; ENACTING THE INDEPENDENT HEALTH CARE PROVIDER LIABILITY ACT; PROVIDING LIABILITY LIMITS FOR CERTAIN MALPRACTICE CLAIMS AGAINST INDEPENDENT HEALTH CARE PROVIDERS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Independent Health Care Provider Liability Act".
Section 2. PURPOSE.--The purpose of the Independent Health Care Provider Liability Act is to promote the health and welfare of the people of New Mexico and to assist health care providers providing care in New Mexico in the control of health care costs.
Section 3. DEFINITIONS.--As used in the Independent Health Care Provider Liability Act:
A. "health care provider" means:
(1) a person licensed, certified, registered or chartered in this state to provide health care or professional services, including a physician, hospital, hospital system, ambulatory surgical center, outpatient health care facility, hospice, nursing home, osteopathic physician, chiropractic physician, podiatrist, medical laboratory, pharmacist, nurse of any type, nurse anesthetist, physician assistant or health technician of any type;
(2) a person who provides health care or health-care-related services through any person described in Paragraph (1) of this subsection;
(3) an employee of a person described in Paragraph (1) or (2) of this subsection, while working within the scope and course of the employment; or
(4) a board of directors, board of trustees or any similar body of a person described in Paragraph (1), (2) or (3) of this subsection;
B. "independent health care provider" means a health care provider who is not a qualified health care provider;
C. "malpractice claim" includes any cause of action arising in this state against an independent 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 actions based on battery or wrongful death, as well as claims brought by others as a result of the claimed departure from accepted standards of health care that injured the patient, including claims for loss of consortium. "Malpractice claim" includes a cause of action arising out of the driving, flying or nonmedical acts involved in the operation, use or maintenance of a vehicular or aircraft ambulance while being used for or within the intended purpose of the operation of an ambulance service;
D. "noneconomic damages" means all recoverable damages except:
(1) past and future medical expenses;
(2) past and future loss of income and earning capacity; and
(3) punitive damages; and
E. "qualified health care provider" means a health care provider who is qualified under the provisions of the Medical Malpractice Act.
Section 4. MALPRACTICE CLAIMS--LIMITATION ON LIABILITY.--
A. Except as provided in Section 5 of the Independent Health Care Provider Liability Act, in any action based on a malpractice claim, for personal injury or death against an independent health care provider:
(1) the maximum amount recoverable for all noneconomic damages shall equal five hundred thousand dollars ($500,000) as adjusted by the percentage increase or decrease in the consumer price index for all items and for all urban consumers as published by the United States department of labor between the month of July 2009 and the month immediately preceding the date that final judgment is entered for the damage award; and
(2) the maximum amount recoverable for all punitive damages shall equal four times the maximum amount specified in Paragraph (1) of this subsection.
B. The limitation of Subsection A of this section shall cover any and all claims of all individuals who are claiming damages as a consequence of all personal injuries and death related to the malpractice claims at issue, regardless of whether the claims belong to a person other than the patient, including claims for bystander recovery or loss of consortium.
C. The limitation of Subsection A of this section shall apply regardless of the number of independent health care providers found to be liable or the number of separate causes of action on which the claim is based; provided, however, in an action where a final judgment is rendered against one or more independent health care providers, and one or more qualified health care providers, the limitations of this section shall apply only to the independent health care providers and the judgment against the qualified health care providers shall be governed by the provisions of the Medical Malpractice Act.
Section 5. CLAIMS BASED ON APPARENT OR OSTENSIBLE AGENCY OR VICARIOUS LIABILITY.--In an action against an independent health care provider, against whom a claim is made based on apparent or ostensible agency or vicarious liability, for a malpractice claim arising out of the conduct of a qualified health care provider:
A. the limitation of recovery provided in Section 41-5-6 NMSA 1978 and the tolling of the statute of limitations provided in Section 41-5-22 NMSA 1978 shall apply to the claim against the independent health care provider for the comparative fault portion of the malpractice claim alleged to be caused by the conduct of the qualified health care provider;
B. if the independent health care provider is found liable for only its vicarious liability for a qualified health care provider, the limitation of recovery provided in Section 41-5-6 NMSA 1978 and the tolling of the statute of limitations provided in Section 41-5-22 NMSA 1978 shall apply;
C. if the independent health care provider is found liable for both vicarious liability for the conduct of a qualified health care provider, as well as for its own nonvicarious liability, then the limits of the Independent Health Care Provider Liability Act shall be the sole limits for all recovery against the independent health care provider;
D. if the independent health care provider is found liable for only its vicarious liability for another independent health care provider, or for both its vicarious liability for another independent health care provider and its own nonvicarious liability, then the limits of recovery of the Independent Health Care Provider Liability Act shall be the sole limits against the independent health care provider; and
E. nothing in the Independent Health Care Provider Liability Act shall revoke or amend any right of indemnification that an independent health care provider may have against a qualified health care provider for payment of a vicarious award against the independent health care provider.
Section 6. LAW OF COMPARATIVE FAULT UNAFFECTED.--Nothing in the Independent Health Care Provider Liability Act shall be deemed to revoke the law of comparative fault.
Section 7. DISCLOSURE OF LIMITS PROHIBITED.--The limits of liability provided under the Independent Health Care Provider Liability Act shall not be disclosed to any jury hearing a malpractice claim.
Section 8. APPLICABILITY OF TORT CLAIMS ACT.--The provisions of the Independent Health Care Provider Liability Act do not apply to independent health care providers who are governmental entities or public employees under the Tort Claims Act.
Section 9. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.
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