Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
New Mexico caps damages in medical malpractice cases at $600,000, except for past and future medical bills and punitive damages, without regard for the severity of the injury to the plaintiff. The maximum liability faced by a provider is $200,000, with any award in excess of that amount to be paid by the state's compensation fund.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. New Mexico has abolished that approach in favor of several liability, pursuant to which any defendant who establishes that another person's fault is a proximate cause of an injury is liable only in proportion to that defendant's fault as a percentage of the fault of all other persons, including the plaintiff, whether or not the other person is a party to the action. However, joint and several liability still applies to pesons who act in concert with the intention of causing injury, to persons who are subject to vicarious liability in relation to their portion of the total liability, to parties strictly liable under products liability law in relation to their portion of the total liability, and potentially to other situations based upon sound public policy.
The Collateral Source Rule
New Mexico follows the traditional collateral source rule, pursuant to which payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In New Mexico, the statute of limitations for medical malpractice actions is three years from the date of injury. Minors under the age of six may bring a malpractice action until their ninth birthday. For cases against qualified healthcare providers that fall under the medical malpratice statute of limitations, the limitations period serves as three year statute of repose, with no exception for late-discovered injuries. However, some medical practitioners are not classified as qualified medical provicers, in which case the statute of limitations is potentially tolled until the injury is or reasonably should be discovered.
Additional rules affecting malpractice litigation in the State of New Mexico include:
Medical Review Commission
In New Mexico, all malpractice cases against health care providers that are covered by the state's Medical Malpractice Act must be submitted to a panel of the New Mexico Medical Review Commission. Panels consist of three members of the medical profession and three members of the State Bar. Following review of a malpractice claim, the commission is to decide two questions: whether there is substantial evidence that the acts complained of occurred and that they constitute malpractice; and whether there is a reasonable medical probability that the patient was injured by those acts. The panel may not try to settle claims or make findings relating to the value of a claim. The panel's report is not binding on the parties, is confidential, and is not admissible as evidence in court.
Medical Expert Witnesses
In New Mexico, when a patient prevails at a Medical Review Commission panel hearing both on the issue of malpractice and on the issue of causation of the patient's damage, the professional association that oversees the health care provider is required to cooperate with the patient to find a physician, qualified in the field of medicine involved, to provide consultation to the patient, to assist in the patient's preparation for trial, and to testify as a medical expert witness on behalf of the patient. It is the patient's responsibility to pay the expert's fees.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.