In the summer of 2010, I signed up and began to regularly appear as a panelist for the New Mexico Medical Review Commission, pursuant to the New Mexico Medical Malpractice Act, NMSA §§41-5-1 et seq. (eff. Mar. 1, 1976). Although a voluntary engagement, I have found it enriching: I practice my general hearing examiner skills, meet some really neat, knowledgeable doctors and lawyers; get all the coffee I want late at night; and have also learned a lot about medical malpractice generally, which I would eventually like to incorporate into my mediation practice. This blog will discuss the overall structure and purpose of the Medical Malpractice Act and the Commission, in preparation for a later blog on Commission case statistics.
The purpose of the Medical Malpractice Act "is to promote the health and welfare of the people of New Mexico by making available professional liability insurance for health care providers in New Mexico." See §41-5-2. Specifically, the Act limits the malpractice liability/damages of "qualified" healthcare providers, see §41-5-6 and §41-5-7, and establishes a patient compensation fund. See §41-5-25.
"Health care provider" includes licensed or certified doctors of medicine or osteopathy, chiropractors, podiatrists, nurse anesthetists, physician's assistants and medical facilities or institutions. See §41-5-3(A).
Such providers are "qualified" and covered under the Act if they file proof of financial responsibility with the superintendent, and pay the surcharge assessed by the New Mexico Superintendent of Insurance for deposit in the patient's compensation fund. See §41-5-5(A)(1), (2). Individuals providers must maintain a malpractice policy in the amount of at least two hundred thousand dollars ($200,000) per occurrence, or having continuously on deposit the sum of six hundred thousand dollars ($600,000) in cash with the superintendent or other authorized depository, to cover not more than three occurrences. See §41-5-5(A)(1). For hospitals or outpatient health care facilities electing to be covered under the Medical Malpractice Act, the superintendent shall actuarially determine their base coverage or deposit, and additional charges required for the patient's compensation fund. The superintendent shall arrange for an actuarial stud. See §41-5-5(B).
If a provider is qualified, their liability for damages other than medical expenses and punitives will be limited in the aggregate to $600,000 per occurrence (although the jury will not be given instructions to this effect to avoid them inadvertently over-doing the allowed damages). See §41-5-6. Additionally, before any medical malpractice claim can be filed in District Court, there must be a panel hearing by the New Mexico Medical Commission (a panel consists of three attorneys and three medical providers). See §§41-5-14, 41-5-15.
The Panel may ask questions, and will deliberate in private and off the record (assuming a stenographer was requested, §41-5-19(C)). See §41-5-20(A). "Upon consideration of all the 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 medical probability that the patient was injured thereby. Id.
The parties may introduce fact witnesses who testify under oath, written statements of fact from treating providers, and treatise material. "[N]o expert opinions are permitted from any party. The policy of the Commission is to provide an inexpensive forum that does not involve the need for expert testimony. Medical literature should suffice. The panelists are the experts." See New Mexico Medical Review Commission Policies and Procedures ("Commission Handbook") at 5.
"Substantial evidence"--the standard for a finding of malpractice--is generally understood as inquiring "[w]hether, among all of the likelihoods, is it likely that the provider departed from the standards of medical practice?," -or- "[w]ould a reasonable person accept the evidence presented at the hearing to support a conclusion that malpractice occurred?" See Commission Handbook at 6. "If a majority of the panelists vote "yes" on the malpractice issue, the entire panel must then consider the second statutory question: ". . .whether there is a reasonable medical probability that the patient was injured thereby." Id. at 7.
As the Commission notes, the proof necessary to establish "a reasonable medical probability"--the standard for harm as a result of medical malpractice--"is a higher standard than the proof needed to establish 'substantial evidence' ... [O]one of the tests that is often used to determine a reasonable medical probability is: Is it more likely, than not, that the patient was damaged on account of the malpractice?." Id.
Despite the care and thoughtfulness of the deliberations, note that the panel's decision is neither binding nor even admissible in any later malpractice action, see §41-5-20(D), (F), and the applicants may proceed to District Court irrespective of the Panel's determination. Given that, it is interesting for me to wonder as a Panelist and mediator how many cases go forward with litigation, how many settle or are simply dropped, and what mediation opportunities lay therein? On my next post I will discuss the 2010 annual statistics compiled by the Commission, which will shed some light on what happens to cases after the Panel determination.
In the meantime, if you are interested in mediation services for a medical malpractice matter, please contact Pilar Vaile, P.C. at (505) 247-0802 or info@pilarvailepc.com.
