New Mexico Medical Malpractice Laws
Each state has their own set of medical malpractice laws in place, and it is important for patients to understand those laws and how they could affect their case. The following are the basics of the laws in New Mexico.
Medical Malpractice in New Mexico
While all cases of medical malpractice are complex, New Mexico medical malpractice cases are even more complex than most. That is due to the laws that regulate when a medical malpractice case must be filed, the procedure that it must follow, and the caps that are in place. Anyone seeking compensation from a medical malpractice case in New Mexico needs the help of an experienced and qualified medical malpractice lawyer. The laws are too complex and confusing for someone that does not have formal training or experience in malpractice cases. For anyone who suffered an injury at the hands of a healthcare professional, know that there are options to recover compensation out there. It can all begin by filing a medical malpractice lawsuit.
Defining Medical Malpractice in New Mexico
A medical malpractice case begins with an injury that stemmed from medical negligence or a lack of proper medical care. When someone seeks medical attention, he or she has the right to believe that the care available will make sense with the problem. This reasonable expectation of care is known as the standard of care. It means that anyone who goes to a medical facility can expect the same basic tests, services, diagnosis, and treatment options, no matter where he or she goes for that care.
If this care is not what the injured party received, then this breach may be the basis of a malpractice case. However, the breach of care needs to lead to an injury that was avoidable if that standard level of care would have been kept intact. Here are the basics of what needs to be proven, according to New Mexico law:
- One – What the Standard Level of Care Was: This needs to be an established type of care that anyone under the same circumstances would receive, no matter if they went to an Albuquerque hospital or a walk-in clinic in Las Cruces.
- Two – What Type of Care the Injured Received: This needs to be able to show that the care the injured party received was below that established standard level of care.
- Three – The Substandard Care Could Cause Injury: This needs to show that having inferior care could cause an injury such as the one that the injured party sustained.
- Four – The Accused Caused the Injury: This needs to be a connection that establishes that the accused is who is responsible for the injury itself.
All of these come together in an attempt to prove what happened and who is to blame. The connection between the injury and the accused is what makes a malpractice case. When no connection can be proven, the case falls apart and is typically dismissed.
Ideally, these are the goals of every malpractice lawsuit:
- To prove that the injured party and doctor (or other medical staff members) knew each other and were familiar with each other on some level when the injury occurred.
- The type of care the patient expected was within reason.
- The type of care the patient received was not reasonable for the situation.
- Another provider would have acted in a better manner, and the injury would not have happened.
- The accused either did something foolish or neglected to do something smart that led to the injury.
- The injured party’s life is different in a significant way since the injury, and his or her life will not be the same without compensation.
What Kind of Evidence Is Required to Prove These Criteria?
Medical malpractice cases in New Mexico require much evidence. There needs to be a trail that can be followed from before the injury to the time the injured party is in court. This trail needs to show that the injured party went into any type of medical facility in search of healthcare and came out with an injury that should not have happened. This can be established through several types of evidence, including:
- Medical records that show how healthy the injured party was before getting injured, whatever is in the charts surrounding the injury, and what type of care has been sought for the injury since it happened.
- Witness statements that allow witnesses to explain what it is they saw, who was involved, and what was going on at the time.
- Records that show the expenses that the injured party has had to take on since the injury occurred for things like doctor visits, lost work, prescriptions, and therapy.
- Statements from any doctor that was seen for the injury about the current state of the injury. It should describe what the injury was like when the doctor first saw it and also include information about how it has progressed since then.
- Video recordings and photographs of the injury. They could have been taken by the injured party, or by someone that was with the injured party at the time of the injury. They should show as much information about the injury, the surroundings, and who is also there as possible.
How to File Medical Malpractice Claims in New Mexico
Cases of medical malpractice take a very specific route when filed in New Mexico due to the New Mexico Medical Malpractice Act. These cases must begin by filing what is called an Application for Review. This is asking a medical panel, known as the medical review commission, to look over the early evidence and determine if there is enough evidence to pursue a malpractice claim in court. Where the case goes from there does not depend on the answer of the panel, but instead, on this step being completed. It shows the court that the injured party is serious about his or her claim and not simply filing a frivolous lawsuit.
The review panel is made up of six members. Three of the members are lawyers who understand the ins and outs of malpractice law better than most. The other three members are medical professionals who work in a similar capacity to the accused. This is important because the doctors then understand what standard level of care is expected for a patient being seen in that capacity. They will have a unique insight as to whether the person’s care was at the traditional level or if the care was substandard.
The hearing that goes with the Application for Review is typically convened within two months of the filing. At this hearing, the panel hears basic introductions from both sides, gets witness testimony, sees some of the preliminary evidence, and then talks about what was shown at the hearing. From there, the doctors and lawyers convene to determine two things. They are:
- Was there plenty of evidence to prove that some type of malpractice occurred?
- Is there a reasonable probability that the malpractice led to the injury in question?
Each member of the panel needs to answer both of those questions secretly, and the tally is kept. If a majority vote is yes, then the case is recommended to move forward. Both sides receive a copy of the final report, but what the panel said is not allowed to be entered into a trial as evidence by either side. If the panel does believe that malpractice took place and led to what the injured patient is going through, the panel will do whatever it can to assist the patient in getting compensation for his or her injuries.
What Are the Statute of Limitations for Medical Malpractice Claims in New Mexico?
Every state has a time limit for people to file a claim for malpractice. New Mexico is no different. The limit for nearly all New Mexico claims is three years. The only exception is for minors who are younger than 6. In this case, the minor’s parents have until the day the child turns 9 to file a claim on his or her behalf. Unlike most other states, New Mexico does not have any exception for those who could not have reasonably known about the injury during those three years or those who struggle with any type of mental illness. The limit is three years under all circumstances for everyone over the age of 6 living in New Mexico.
What About Damage Caps for New Mexico Cases?
There are caps put on most of the damages sought for medical malpractice cases in New Mexico. Out of the two types of damages that are typically sought for malpractice, there is a strict cap placed on all of one type of damages, and part of the other. Here is the breakdown.
Monetary damages are the damages that come from any type of expense that results from the injury. This includes things like:
- Bills for any medical procedure or treatment to help the patient heal
- Prescription costs to help with the healing process
- Medical equipment that could help the injured party heal
- Current wages the injured party cannot earn while injured
- Future wages the injured party may not be able to earn due to the effects of the injury
- Future medical bills for ongoing care to help the injury heal or in the case of a permanent disability
Non-economic damages are the damages that come from how the patient felt or reacted to the injury itself. It includes things like:
- Pain and suffering the injury itself caused
- Embarrassment over no longer looking the same or being able to function the same way as before the injury
- Loss of consortium, meaning the loss of the ability to participate in daily activities like the injured party once could, such as buying groceries at the store or walking kids to school
- Costs to cover a funeral service if the injured party died due to his or her injuries
- Loss of companionship for any spouse or child of a person who passed away because of the injuries that he or she sustained
The caps for the damages in these cases apply to everything but current and future medical expenses. The total cap is $600,000. Beyond that, no matter what type of income the injured party used to have or has the potential to have now due to the injury, there will not be any more money coming to the plaintiff other than if there are future medical needs. Plus, those are paid out as they occur.
Each healthcare provider that is found guilty in the case is only required to pay a maximum amount of damages of $200,000. Beyond that, the patient’s compensation fund will pay the rest. The compensation fund is also where patients go to get compensation for future medical issues related to the injury.
Punitive damages are only rarely awarded in cases of medical malpractice. They are only awarded in cases where the medical professional went out of his or her way to cause injury to the patient. In these cases, the cap does not apply to those damages. It does not need to since they are only paid out on a small fraction of cases that are seen in the district court facilities of New Mexico.
Are There Limitations to Who Can File Claims of Medical Malpractice in New Mexico?
To file a medical malpractice lawsuit, either the injured party needs to file, a representative for the injured party like an attorney, or the loved one of a deceased party needs to file if the claim is for a wrongful death lawsuit. Any of the above can do so with the help of a New Mexico medical malpractice lawyer or on his or her own. However, filing this type of case without legal advice is never a good idea. New Mexico law is written in a way to help people who have been injured due to negligence or malpractice, but it is still quite complicated.
If the person has passed away due to the injuries that he or she sustained, then only specific people have a right to file a lawsuit. This includes:
- The spouse of the person who passed away.
- If there was no spouse, then the deceased’s children can file a wrongful death
- If that person had no spouse or kids, then a parent has the right to file the lawsuit.
- If no parents are still around, no spouse exists, and no children are around, then the court will allow more extended family, such as siblings and grandparents.
Having an attorney to help guide the process is beneficial in terms of getting the case into court and getting it the amount of attention and merit that the case deserves. Going into any district court around New Mexico without the help of an attorney, especially in a personal injury case, is likely going to lead to little or no settlement, if the case does not get thrown out of court first for an amateur mistake.
Which Problems Could Count as Medical Malpractice?
Finding examples of what constitutes medical malpractice is easy. Proving that the acts were based on negligent or intentional acts are not as simple. That is one way a medical malpractice attorney makes it easier for an injured party to move forward with his or her claim. Here are some of the more common examples of malpractice that the courts often see:
- Delayed diagnosis and worse prognosis because of it
- Ignoring obvious symptoms and suggesting a more invasive problem when test results did not point to anything out of the ordinary
- Putting someone through unnecessary testing that would not have helped with diagnosis
- Misdiagnosing the patient or never diagnosing the patient at all
- Disfiguring a patient because of not paying attention or performing a procedure wrong
- Burning patients with medical equipment
- Giving the wrong patient medication
- Not regularly checking the patient’s vital signs
- Prescribing medication that was not going to help with the symptoms, especially if those medications led to side effects
- Ignoring medical charts that explained medication allergies
- Operating on the incorrect side of a patient’s body
- Leaving surgical tools or equipment behind after surgery
- Dropping any type of heavy medical equipment on a patient
- Not providing adequate or any aftercare
- Premature discharge when there was no indication to let the patient leave early
- Not helping a patient who called for help and subsequently wandered off or fell
- Not ordering the right tests for the symptoms a patient presented with
- Not locking the wheels of a wheelchair when moving a patient and the patient rolling off and getting hurt
- Leaving a part of the body numb after a procedure
- Extracting the wrong tooth
- A birth injury that harmed or killed a mother or child
- Not taking note of post-op infection symptoms in a patient
- Forgetting to ask about a patient’s history
- Herniating a patient’s spine while making a chiropractic adjustment
- Not fully explaining the side effects of a medicine, surgical procedure, or other forms of treatment and the patient winding up with an injury
- Neglecting to intubate when vitals dropped
- Not listening to alarms or turning off any alarm that would warn of a change in vital signs
If any of these happen, the person facing the injury needs to reach out to that attorney. That way, the person can heal while someone else takes the lead and starts to investigate.
Who Is to Blame When Medical Devices Malfunction?
When a medical device fails, there can be several parties at fault. It depends on the reason for device failure. For example, if the device inside the patient failed due to the computer not updating, which it was supposed to do automatically, then the manufacturer is likely the one the court will find to hold the blame. However, if a doctor was supposed to update the internal computer and failed to do so, the doctor could be to blame. The doctor could also be to blame if he or she put a device in that they did not have the right type of training to use, and the device subsequently failed.
This can go another level deeper as well. If the device failed due to a lack of update, and the doctor tried to schedule updates, but the patient missed the appointments, the patient could be partly at fault as well. According to the laws of New Mexico, the injured party being partially responsible for his or her own injury does not stop the party from receiving compensation. However, it does decrease the amount an injured party can get back by whatever percentage the court says is the injured party’s fault.
In this example, the device manufacturer may have been 25 percent at fault, the doctor 50 percent at fault, and the injured party 25 percent at fault. When compensation gets determined, the manufacturer would have to pay a total of 25 percent of the damages. The doctor would then have to pay 50 percent of the damages. Then, the injured party would simply not receive the other 25 percent due to it being his or her fault.
Who Can Be Charged In a Malpractice Case?
Malpractice lawsuits are not picky, in general. When someone gets injured, anyone that could have stopped the injury from occurring or who could have fixed the problem to avoid or rectify the injury is usually brought into the case. However, not all are charged. While the accused is often someone specific, the lawsuit will bring in anyone that can have any type of vicarious liability for the situation, such as a hospital being pulled into a case for an attending doctor’s mistake. It is common for malpractice cases to include:
- Doctors and the nursing staff
- Surgeons and anyone in the operating room
- The hospital, clinic, or another facility the injury took place at, so long as the accused was an employee and on-duty at the time
- Dentists and hygienists
- Manufacturers of medical devices when they fail
- Chiropractors and massage therapists
- Physical therapists
- Psychiatrists and psychologists
- Social workers and traditional therapists
- Nursing homes and hospice facilities
It often takes a full investigation by an experienced medical malpractice attorney to be able to determine who is at fault. From there, the charges can be made to include anyone in specific and in general who could have prevented the injury from happening. Plus, when someone files a claim of medical malpractice, typically peers of the accused are brought in as expert witnesses, which adds to how many people can wind up being part of a lawsuit. However, if the accused did something so obvious that expert testimony is not necessary, then it could be back down to a single defendant.
Why Are Medical Malpractice Attorneys So Imperative to a Lawsuit’s Success?
It may not seem like having the experience of an attorney is that vital, but when trying a case like medical malpractice, it is imperative. Going into court without the guidance and direction of an attorney is dangerous, stressful, and far more likely to fail than it is to succeed. Attorneys can help in many ways during malpractice lawsuits. Some of the most important things they can provide during this stressful time include:
- They have the ability to go into court and keep their emotions aside. An injured party or a family member of someone deceased is going to struggle with his or her emotions. This is not a concern with attorneys as they can stay emotionally detached to some degree.
- Attorneys bring clarity to malpractice cases. They know whom to call for expert testimony, they know how to investigate these types of injuries, and they know how to ask questions when getting witness statements or depositions.
- They know how to help an injured party move forward with his or her lawsuit. When trying to go into court alone, it is going to be a lot of guessing and mistakes for nearly all plaintiffs. By hiring an attorney to handle the medical malpractice case, there is no more confusion.
- Attorneys understand how to explain an injury while in court so that the judge and the people on the jury understand what happens. Most attorneys have physicians they work with for this exact purpose. They practice explaining the problem over and over until they can make sure the judge and jury understand just how this injury limits their client’s life.
- They bring sanity to an injured person’s crazy life. Since the accident, the injured party has had a lot more to worry about. When this is the case, anything that can be done to allow the injured person to relax and focus on healing is a blessing, including the hiring of an attorney.
- An attorney can also give a hypothesis on what type of outcome a case will likely have, based on personal experience. When hiring an experienced attorney who understands malpractice laws, people get a much better idea of how the case will go and what, if any, settlement could be expected.
The experience alone that an attorney can bring is worth hiring him or her. The attorney knows how to conduct himself or herself in court. They will understand what is allowed and what is not. They know when to object and when to let a defendant keep running with something he or she is saying or trying to introduce, as it could help the injured party. This alone is worth the cost of the attorney, whether the payment comes now or when the case is won.
Finding an Experienced Attorney Whom an Injured Party Feels Safe Turning To
Not every attorney out there is as experienced or as forthright as he or she could be, but thankfully, many attorneys are truly there to help someone in need. In order to make sure that the injured party gets the best possible attorney for the job, a consultation where the injured party can ask some questions is a good way to start. Here are a few questions that can give a very good idea of what potential attorney-client relationship could come of both people working together:
- Is the attorney familiar with the type of injury the injured party sustained?
- Will the attorney travel if the injured party needs him or her to do so? For example, if something needs to be signed for court, will the attorney show up at an Albuquerque home or will the injured party have to travel to the office or court building the attorney is at?
- Is the attorney on his or her own, or does he or she have the backing and funding of a law firm?
- How do payments work? What is expected out-of-pocket for the injured party, and when would those payments need to be made?
- If payments are on contingency, are there any other fees the injured party would have to come up with?
- Who will be initiating communication with the injured party, the attorney or someone on his or her staff? Is it possible to meet this staff member if it will not be the attorney?
- What will the investigation into the case look like?
- How long does this process typically take from the day that a contract is signed with the attorney to get a final verdict? Even an estimate would be helpful.
- How much experience does he or she have bringing malpractice lawsuits to trial? What have been the results of those lawsuits? What was the result of the most recent lawsuit?
- Is this case going to need experts to come in and testify or is the injury easy enough for laypeople to understand?
- Does there appear to be enough to start the process of making a case?
- In the experienced opinion of the attorney, does a settlement seem possible?
- Does the attorney want to take on the case?
It may seem odd that an attorney may not want to take on a personal injury lawsuit, but that does happen. Plus, when it does, it is often good for the injured party to hear. Not all cases of medical mistakes are grounds for lawsuits. Some are pure mistakes, and while tragic, nothing can be done about them.
If an injured party does not feel comfortable with the first attorney, he or she speaks with, keep going. It is important that the injured party feel totally comfortable with the chosen attorney since this person will be a major part of his or her life for some time to come.
As a way to avoid negative attorneys who only want to make money off the case, there are a few things to watch out for. They include:
- Little or no malpractice experience could harm the case or get it thrown out altogether. It is not a good idea to turn to any type of lawyer with no experience.
- An attorney representing both doctors accused of malpractice and victims at the same time. This is called a conflict of interest.
- Attorneys who cannot explain what the injury is about back to the injured party. This shows that he or she does not understand it and would struggle to convey the importance of the injury in court.
- An attorney who is not paying attention to the statute of limitations on a case or unaware of how close to that limit the case is when the injured party speaks with him or her.
- Suggesting that evidence be falsified.
- The attorney is making inferences to having anything other than a pure business attorney-client relationship.
Avoiding attorneys that make the injured party feel uncomfortable in any way is always a good idea. Most attorneys are very good at sitting down and explaining what is going on during a case. However, if there is any hesitation on the part of the injured party, it is best to move on until another lawyer that does not have that negative connotation is found.
No injury that came from a healthcare professional should ever be ignored. This is especially true if there was any type of malpractice involved. Injured people need to know that there are good people out there who will help them get the compensation they deserve from medical staff who do not do their job properly. As soon as an injury occurs, get in touch with an experienced lawyer. This allows the attorney to be involved from the very beginning, and it can make the case much easier. Find a great attorney, get into court, and put the worry and financial strain of the injury in the past. That way, the injury does not get to dictate life and the injured party gets to move on.