SENATE BILL 467
50th legislature - STATE OF NEW MEXICO - first session, 2011
INTRODUCED BY
Richard C. Martinez
AN ACT
RELATING TO TORTS; ENACTING THE DENTAL PROFESSIONAL LIABILITY ACT; LIMITING LIABILITY; CREATING THE NEW MEXICO DENTAL-LEGAL REVIEW COMMISSION; PROVIDING FOR DENTAL-LEGAL REVIEW PANELS; PROVIDING HEARING PROCEDURES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. SHORT TITLE.--This act may be cited as the "Dental Professional Liability Act".
SECTION 2. PURPOSE.--The purpose of the Dental Professional Liability Act is to provide for the review of dental malpractice claims, assure adequate funding of awards, protect access to dental care and advance the oral health and welfare of the people of New Mexico.
SECTION 3. DEFINITIONS.--As used in the Dental Professional Liability Act:
A. "board" means the New Mexico board of dental health care;
B. "commission" means the New Mexico dental-legal review commission;
C. "dental care and related benefits" means all reasonable dental, surgical, physical rehabilitation and custodial services, and includes drugs, prosthetic devices and other similar materials reasonably necessary in the provision of such services;
D. "dental care provider" means a person, corporation, organization, facility or institution licensed or certified by this state to provide dental care or professional services as a doctor of dental medicine, doctor of dental surgery or corporate entity owned by a New Mexico licensed dental professional, acting within the bounds of their scope of practice;
E. "dental professional liability claim" includes any cause of action arising in this state against a dental care provider for professional treatment, lack of professional 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 is based in tort or contract law, and includes, but is not limited to, actions based on battery or wrongful death;
F. "director" means the director of the commission;
G. "insurer" means an insurance company engaged in writing dental professional liability insurance in this state;
H. "panel" means a dental-legal review panel;
I. "patient" means a natural person who received or should have received dental professional care from a licensed dental care provider, under a contract, expressed or implied; and
J. "superintendent" means the superintendent of insurance.
SECTION 4. DAMAGES CLAUSE.--A patient, or the patient's representative, having a dental professional liability claim for bodily injury or death may file a complaint in any court of law having requisite jurisdiction and demand right of trial by jury. No dollar amount or figure shall be included in the demand in any complaint asserting a dental professional liability claim and filed after the effective date of this section, but the request shall be for such damages as are reasonable.
SECTION 5. QUALIFICATIONS.--
A. To be qualified pursuant to the provisions of the Dental Professional Liability Act, a dental care provider shall establish its financial responsibility by filing proof with the superintendent via the board that the dental care provider is insured by a policy of dental professional liability insurance issued by an authorized insurer in the amount of at least one million dollars ($1,000,000) per occurrence or, for an individual health care provider, by having continuously on deposit the sum of one million dollars ($1,000,000) in cash with the superintendent or such other like deposit as the superintendent may allow by rule; provided that, in the absence of an additional deposit or policy as required by this subsection, the deposit or policy shall provide coverage for not more than three separate occurrences.
B. A dental care provider that does not qualify pursuant to Subsection A of this section shall not have the benefit of any of the provisions of the Dental Professional Liability Act in the event of a professional liability claim against it.
SECTION 6. LIMITATION OF RECOVERY.--
A. Except for punitive damages and dental 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 two hundred fifty thousand dollars ($250,000) per occurrence. In jury cases, the jury shall not be given any instructions dealing with this limitation.
B. The value of accrued dental care and related benefits shall not be subject to the two-hundred-fifty-thousand-dollar ($250,000) limitation.
C. Monetary damages shall not be awarded for future dental expenses in malpractice claims.
D. For the purposes of Subsections A and B of this section, the two-hundred-fifty-thousand-dollar ($250,000) aggregate amount recoverable by all persons for or arising from any injury or death to a patient as a result of malpractice shall apply only to malpractice occurring on or after the effective date of the Dental Professional Liability Act.
SECTION 7. FUTURE DENTAL EXPENSES.--
A. In all dental professional liability claims where liability is established, the jury shall be given a special interrogatory asking if the patient is in need of future incident-related dental care and related benefits. No inquiry shall be made concerning the value of future dental care and related benefits, and evidence relating to the value of future dental care and related benefits shall not be admissible. In actions upon malpractice claims tried to the court, where liability is found, the court's findings shall include a recitation that the patient is or is not in need of future incident-related dental care and related benefits as well as the amount of funds already received by the patient or expended in the patient's interest prior to trial.
B. Except as provided in Section 6 of the Dental Professional Liability Act, once a judgment is entered in favor of a patient who is found to be in need of future incident-related dental care and related benefits or a settlement is reached between a patient and a dental care provider in which the provision of dental care and related benefits is agreed upon, and continuing as long as dental attention is reasonably necessary, the patient shall be furnished with all dental care and related benefits directly or indirectly made necessary by the dental care provider's malpractice, subject to a semi-private room limitation in the event of hospitalization, unless the patient refuses to allow them to be so furnished.
C. Awards of future dental care and related benefits shall not be subject to the two-hundred-fifty-thousand-dollar ($250,000) limitation imposed in Section 6 of the Dental Professional Liability Act.
D. Payment for dental care and related benefits shall be made as expenses are incurred.
E. This section shall not be construed to prevent a patient and a dental care provider from entering into a settlement agreement whereby dental care and related benefits are provided for a limited period of time only, or to a limited degree.
F. The court in a supplemental proceeding shall estimate the value of the future dental care and related benefits reasonably due the patient on the basis of evidence presented to it. That figure shall not be included in any award or judgment but shall be included in the record as a separate court finding.
G. A judgment of punitive damages against a dental care provider shall be the personal liability of the dental care provider. Punitive damages shall not be paid from the proceeds of the dental care provider's insurance contract unless the contract expressly provides coverage or the insurance provider agrees to such payment. Nothing in Section 6 of the Dental Professional Liability Act precludes the award of punitive damages to a patient. Nothing in this subsection authorizes the imposition of liability for punitive damages on a derivative basis where that imposition would not be otherwise authorized by law.
SECTION 8. DENTAL BENEFITS PRIOR TO JUDGMENT.--A dental care provider named as a defendant in a dental professional liability claim, or named as a respondent in a proceeding before the commission, shall have the option of paying for the patient's dental care and related benefits at any time prior to the entry of a judgment. Except as provided in Section 6 of the Dental Professional Liability Act, evidence of a dental care provider's payment for such benefits shall not be admissible in the trial of the professional liability claim brought against it.
SECTION 9. DISTRICT COURT--CONTINUING JURISDICTION.--
A. The district court from which final judgment issues shall have continuing jurisdiction in cases where dental care and related benefits are awarded pursuant to Section 6 of the Dental Professional Liability Act.
B. In all cases where the patient's continued need of such benefits, or the degree to which such benefits are needed, is challenged at a point in time after a judgment is entered, the court, sitting without a jury, shall determine whether such need continues to exist and the extent of such need.
C. Whenever a patient petitions the district court for an increase in dental care and related benefits, the petition shall be set down for hearing at the earliest possible time and takes precedence over all matters except older matters of the same character and motions for preliminary injunctions filed pursuant to Rules 1-065 and 1-066 New Mexico Rules Annotated.
D. The dental care provider shall have the burden of proving that the patient's need for dental care and related benefits has subsided or abated, or that dental care and related benefits are not reasonably necessary, which it shall establish by clear and convincing evidence. The patient shall have the burden of proving that the patient's need for dental care and related benefits has increased, which the patient shall establish by a preponderance of the evidence.
SECTION 10. PATIENT--FUTURE EXAMINATIONS AND HEARINGS.--
A. A dental care provider shall be entitled to have an examination of the patient by a dentist or physician of the dental care provider's choice from time to time for the purpose of determining the patient's continued need of dental care and related benefits, subject to the following requirements:
(1) notice in writing shall be delivered to or served upon the patient specifying the time and place where the examination is to be conducted. The notice shall be given at least ten days prior to the time stated in the notice. Delivery by certified mail is permitted;
(2) the examination shall be by a dentist or physician qualified to practice dentistry or medicine under the law of this state or of the state or county wherein the patient resides;
(3) the place at which the examination is to be conducted shall not require the patient to travel an unreasonable distance. It shall not be necessary for a patient who resides outside of this state to come into this state for such an examination unless so ordered by the court;
(4) within thirty days after the examination, the patient shall be compensated by the party requesting the examination for all necessary and reasonable expenses incidental to submitting to the examination, including the reasonable cost of travel, meals, lodging, loss of pay or other like direct expense;
(5) examinations shall not be required more frequently than at six-month intervals, except that upon application to the court having jurisdiction of the claim and after reasonable cause shown therefor, examination within a shorter interval may be ordered. In considering such application, the court shall exercise care to prevent harassment to the patient;
(6) the patient shall be entitled to have a dentist, physician or attorney of the patient's own choice present at the examination. The patient shall pay that dentist, physician or attorney; and
(7) the patient shall be promptly furnished with a copy of the report of the examination made by the dentist or physician making the examination on behalf of the dental care provider.
B. If a patient fails or refuses to submit to examination in accordance with the notice, and the requirements of Subsection A of this section have been satisfied, the court may forfeit all dental care and related benefits that would accrue or become due to the patient.
C. If a patient persists in any injurious practice that imperils, retards or impairs the patient's recovery or increases the patient's injury or if a patient refuses to submit to such dental treatment as is reasonably essential to promote the patient's recovery, the court may in its discretion reduce or suspend the patient's dental care and related benefits.
D. A dentist or physician selected by the dental care provider and paid by the dental care provider who makes or is present at an examination of the patient conducted pursuant to this section may be required to testify as to the conduct thereof and the findings made. Communications made by the patient upon the examination to the dentist or physician shall not be considered privileged.
E. The dental care provider shall pay all reasonable legal fees, the cost of dental examinations and the cost of the fees of dental expert witnesses in any proceeding in which the patient succeeds in increasing the patient's dental care and related benefits or in any unsuccessful proceeding brought by the dental care provider to reduce the dental care and related benefits.
SECTION 11. SET-OFF OF ADVANCE PAYMENTS.--
A. Evidence of an advance payment is not admissible until there is a final judgment in favor of the patient, in which event the court shall reduce the judgment to the patient to the extent of the advance payment. In jury cases where there is a factual dispute concerning an alleged advance payment, all questions of fact relating to the advance payment shall be resolved by the jury after it has reached its verdict. The advance payment shall inure to the exclusive benefit of the dental care provider or a party making the payment in its behalf. In the event the advance payment exceeds the liability of the defendant or the insurer making it, the court shall order any adjustment necessary to equitably apportion the amount that each defendant is obligated to pay, exclusive of costs. In no case shall an advance payment in excess of an award be repayable by the person receiving it.
B. If a dental care provider elects to pay for dental care and related benefits at any time prior to the entry of a judgment, as provided in Section 6 of the Dental Professional Liability Act, and subsequently is found not to be liable, its legal and equitable right of recovery for all such payments shall not be foreclosed or prejudiced in any way.
SECTION 12. LIMITATIONS.--A dental professional liability claim arising out of an act of malpractice that occurred subsequent to the effective date of the Dental Professional Liability Act shall not be brought against a dental care provider unless filed within three years after the date that the act of malpractice occurred, except that a minor under the age of six shall have until the minor's ninth birthday in which to file. This subsection applies to all persons regardless of minority or other legal disability.
SECTION 13. DENTAL-LEGAL REVIEW COMMISSION.--
A. The "New Mexico dental-legal review commission" is created. The function of the commission is to provide panels to review all dental professional liability claims against dental care providers qualified pursuant to the Dental Professional Liability Act.
B. Those eligible to sit on a panel shall be dentists licensed pursuant to New Mexico law and residing in New Mexico or members of the state bar of New Mexico residing in New Mexico.
C. Cases to be considered by a panel include all cases involving an alleged act of malpractice occurring in New Mexico by dental care providers qualified pursuant to the Dental Professional Liability Act.
D. An attorney shall submit a case for the consideration of a panel prior to filing a complaint in any district court or other court sitting in New Mexico by addressing an application, in writing, signed by the patient or the patient's attorney, to the director.
E. The director shall be an attorney appointed by and serving at the pleasure of the chief justice of the New Mexico supreme court.
F. The chief justice of the New Mexico supreme court shall set the director's salary and report the same to the president of the board in the chief justice's capacity as administrator of the commission.
SECTION 14. COMMISSION DECISION REQUIRED--APPLICATION.--
A. A dental professional liability claim shall not be filed in any court against a qualifying dental care provider before application is made to the commission and its decision is rendered.
B. The application shall contain the following:
(1) a brief statement of the facts of the case, naming the persons involved and the dates and circumstances, so far as they are known, of the alleged act or acts of malpractice; and
(2) a statement authorizing the panel to obtain access to all dental records and information pertaining to the matter giving rise to the application and, for the purposes of its consideration of the matter only, waiving any claim of privilege as to the contents of those records. Nothing in that statement shall in any way be construed as waiving that privilege for any other purpose or in any other context, in or out of court.
SECTION 15. APPLICATION PROCEDURE.--
A. Upon receipt of an application for review, the director or the director's designee shall cause to be served a true copy of the application on the dental care provider involved. Service shall be effected pursuant to New Mexico law. If the dental care provider involved chooses to retain legal counsel, the dental care provider's attorney shall informally enter the dental care provider's appearance with the director.
B. The dental care provider shall answer the application for review and in addition shall submit a statement authorizing the panel to obtain access to all dental records and information pertaining to the matter giving rise to the application and, for the purposes of its consideration of the matter only, waiving any claim of privilege as to the contents of those records. Nothing in that statement shall in any way be construed as waiving that privilege for any other purpose or in any other context, in or out of court.
C. In instances where applications are received employing the theory of respondeat superior, a common law doctrine that makes an employer liable for the actions of an employee when the actions take place within the scope of employment, or some other derivative theory of recovery, the director shall forward such applications to the state professional societies, associations or licensing boards of both the individual dental care provider whose alleged malpractice caused the application to be filed and the dental care provider named as a principal under the theory of respondeat superior or some other derivative theory of recovery.
D. The party making application, by doing so, agrees to report to the director the final disposition of the claim upon its conclusion.
SECTION 16. PANEL SELECTION.--
A. Applications for review shall be promptly transmitted by the director to the directors of the New Mexico dental association and the state bar of New Mexico, who shall each select three panelists within thirty days from the date of transmittal of the application.
B. If the dental care provider does not belong to the New Mexico dental association, the director shall transmit the application to the board, which shall in turn select three dentists and, where applicable, two persons in the same recognized specialty as the dental care provider.
C. In cases where there are multiple dental care provider defendants, the case against each dental care provider may be reviewed by a separate panel, or a single combined panel may review the claim against all defendants, at the discretion of the director.
D. Three panel members from the dental care provider's profession and three panel members from the state bar of New Mexico shall sit in review in each case.
E. In those cases where the theory of respondeat superior or some other derivative theory of recovery is employed, two of the panel members shall be chosen from the individual dental care provider's profession and one panel member shall be chosen from the profession of the dental care provider named as a principal under the theory of respondeat superior or some other derivative theory of recovery.
F. The director or the director's designee, who shall be an attorney, shall sit on each panel and serve as chair.
G. A member shall disqualify the member's self from consideration of any case in which, by virtue of the member's circumstances, the member feels the member's presence on the panel would be inappropriate, considering the purpose of the panel. The director may excuse a proposed panelist from serving.
H. When a party makes and files an affidavit that a panel member selected pursuant to this section cannot, according to the belief of the party making the affidavit, sit in review of the application with impartiality, that panel member shall proceed no further. Another panel member shall be selected by the New Mexico dental association, the board or the state bar of New Mexico, as the case may be. A party shall not disqualify more than three proposed panel members in this manner in any single malpractice claim.
SECTION 17. TIME AND PLACE OF HEARING.--A date, time and place for hearing shall be fixed by the director, and prompt notice thereof shall be given to the parties involved, their attorneys and the members of the panel. In no instance shall the date set be more than sixty days after the transmittal by the director of the application for review, unless good cause exists for extending the period. Hearings may be held anywhere in the state of New Mexico, and the director shall give due regard to the convenience of the parties in determining the place of hearing.
SECTION 18. HEARING PROCEDURES.--
A. At the time set for hearing, the attorney submitting the case for review shall be present and shall make a brief introduction of the attorney's client's case, including a resume of the facts constituting alleged professional malpractice that the attorney is prepared to prove. The dental care provider against whom the claim is brought and its attorney may be present and may make an introductory statement of its case.
B. Both parties may call witnesses to testify before the panel, which witnesses shall be sworn. Dental texts, journals, studies and other documentary evidence relied upon by either party may be offered and admitted if relevant. Written statements of fact of other treating dental care providers may be reviewed. The monetary damages in any case shall not be a subject of inquiry or discussion.
C. The hearing is informal and no official transcript shall be made. Nothing contained in this subsection shall preclude the taking of the testimony by the parties at their own expense.
D. At the conclusion of the hearing, the panel may take the case under advisement, or it may request that additional facts, records, witnesses or other information be obtained and presented to it at a supplemental hearing, which shall be set for a date and time, not longer than thirty days from the date of the original hearing unless the attorney bringing the matter for review consents in writing to a longer period.
E. A supplemental hearing shall be held in the same manner as the original hearing, and the parties concerned and their attorneys may be present.
SECTION 19. PANEL DELIBERATIONS AND DECISION.--
A. The deliberations of the panel shall be and remain confidential. Upon consideration of all relevant material, the panel shall decide only two questions:
(1) whether there is substantial evidence that the acts complained of occurred and that they constitute malpractice; and
(2) whether there is a reasonable probability that the patient was injured thereby.
B. All votes of the panel on the two questions for decision shall be by secret ballot. The decision shall be by a majority vote of those voting members of the panel who have sat on the entire case. The decision shall be communicated in writing to the parties and attorneys concerned and a copy thereof shall be retained in the permanent files of the commission.
C. The decision shall in every case be signed for the panel by the chair, who shall vote only in the event the other members of the panel are evenly divided, and shall contain only the conclusions reached by a majority of the panel members and the number of members, if any, dissenting therefrom; provided, however, that if the vote is not unanimous, the majority may briefly explain the reasoning and basis for its conclusion, and the dissenters may likewise explain the reasons for disagreement.
D. The report of the panel shall not be admissible as evidence in any action subsequently brought in a court of law. A copy of the report shall be sent to the dental care provider's professional licensing board.
E. Panelists and witnesses shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by the Dental Professional Liability Act.
F. The panel's decisions shall be without administrative or judicial authority and shall not be binding on any party. The panel shall make no effort to settle or compromise any claim, nor shall it express any opinion on the monetary value of any claim.
SECTION 20. DIRECTOR--RULES OF PROCEDURE.--The director is authorized to adopt and publish rules of procedure necessary to implement and carry out the duties of the commission. No rule shall be adopted, however, that requires a party to make a monetary payment as a condition to bringing a malpractice claim before the panel.
SECTION 21. TOLLING OF STATUTE OF LIMITATION.--The running of the applicable limitation period in a malpractice claim shall be tolled with one day remaining if application for consideration was made with sixty or more days remaining and shall not commence to run again until ten days after the panel's final decision is entered in the permanent files of the commission and a copy is served upon the claimant and the claimant's attorney by certified mail. Applications made with less than sixty days remaining are subject to the applicable limitation period and may only be heard if the director can reasonably convene a qualified panel, and the panel can render a decision within that period.
SECTION 22. PROVISION OF EXPERT WITNESS.--In a malpractice claim where the panel has determined that the acts complained of were or reasonably might constitute malpractice and that the patient was or may have been injured by the act, the panel, commission members, the director and the professional association concerned shall cooperate fully with the patient in retaining a dentist, qualified in the field of dentistry involved and licensed to practice in the state of New Mexico, who shall consult with, assist in trial preparation for and testify on behalf of the patient, upon the patient's payment of a reasonable fee to the same effect as if the dentist had been engaged originally by the patient.
SECTION 23. MAINTENANCE OF RECORDS.--The director shall maintain records of all proceedings before a panel, which records shall include the nature of the acts or omissions complained of, a brief summary of the evidence presented, the decision of the panel, any majority or dissenting opinions filed and the final dispositions of claims as reported by plaintiffs. The records shall not be made public and shall not be subject to subpoena but shall be used solely for the purpose of compiling statistical data and facilitating ongoing studies of dental malpractice in New Mexico.
SECTION 24. MALPRACTICE COVERAGE.--
A. The filing of proof of financial responsibility with the superintendent, as provided in Section 5 of the Dental Professional Liability Act, shall constitute a conclusive and unqualified acceptance by the dental care provider of the provisions of the Dental Professional Liability Act.
B. A provision in a policy attempting to limit or modify the liability of the insurer contrary to the provisions of the Dental Professional Liability Act is void.
C. Every policy issued under the Dental Professional Liability Act is deemed to include the following provisions:
(1) the insurer assumes all obligations to pay an award imposed against its insured pursuant to the provisions of the Dental Professional Liability Act; and
(2) a termination of a policy by an insurer shall not be effective unless written notice of the termination has been mailed by certified mail to both the insured and the superintendent at least ninety days prior to the date the cancellation is to become effective, except that an insurer may terminate a policy if a billed premium payment is thirty days past due upon ten days' prior written notice mailed by certified mail to the insured of the failure of the insured to pay premiums, and an insured may terminate the insured's policy by written request to the insurer but the effective date of the termination shall not be earlier than ten days after the receipt by the insurer of the written request to terminate. In all cases in which a policy is terminated for failure of the insured to pay premiums or at the request of the insured, the insurer shall notify the superintendent in writing immediately of the effective date of the termination of the policy. The insurer shall remain liable for all causes of action accruing prior to the effective date of the termination, unless otherwise barred by the provisions of the Dental Professional Liability Act.
SECTION 25. REPORT BY DISTRICT COURT CLERKS.--Within thirty days of entry of judgment, the clerk of the district court from which judgment issues shall forward the names of all dental care providers against whom a judgment is rendered under the Dental Professional Liability Act to the board for review of the fitness of each dental care provider to practice the dental care provider's profession. In cases where judgments are entered against hospitals or other institutional health care providers, on the basis of respondeat superior or some other derivative theory of recovery, the clerk of the district court shall forward the name of the individual dental care provider whose negligence caused the injury to the board or equivalent licensing board in the jurisdiction where that dental care provider currently resides for such review. Review of the dental care provider's fitness to practice shall be conducted in accordance with law.
SECTION 26. PAYMENT OF COMMISSION EXPENSES.--Unless otherwise provided by law, expenses incurred in carrying out the powers, duties and functions of the commission, including the salary of the director, shall be paid by the board from funds collected as licensing fees. The board shall disburse fund money to the director upon receipt of vouchers itemizing expenses incurred by the commission. The director shall supply the chief justice of the New Mexico supreme court with duplicates of all vouchers submitted to the board. Expenses paid by the fund shall not exceed one hundred fifty thousand dollars ($150,000) in any single calendar year; provided, however, that expenses incurred in defending the commission shall not be subject to that maximum amount.
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