Category Archives: New Mexico

January 2018 Newsletter

Medical organizations paving the way for Senate consideration of liability reform Following House passage of comprehensive medical liability reform in 2017, medical organizations representing patients and physicians, including the HCLA, have taken a leading role in aiming their efforts at Senate consideration of the legislation. With a goal of reducing medical lawsuit abuse and enacting federal reforms that eliminate inconsistent and ever-changing state liability laws, specialty physician organizations and health care coalitions have emphasized the need to move forward on reform. Citing a need to compensate those patients who are truly the victims of medical negligence, American Association of Family Practitioners president Michael Munger, MD emphasized that reform is needed because “too much money is diverted from patient care to liability insurance premiums and the legal fees that are part of a lawsuit.” The bill under consideration relies on a history of success among states with the climate to enact such positive reforms. “This legislation adopts many of the reforms which have been thoroughly tested in the states and which have proven successful in improving the medical liability climate in those states,” stated the American College of Gynecologists and Obstetricians. The American Association of Neurological Surgeons, also an HCLA member,…

Read More

December 2017 Newsletter

Year-end report sheds light on “Judicial Hellholes” The American Tort Reform Association (ATRA) end-of-year “Judicial Hellholes” report offers a public glimpse at the most unfriendly jurisdictions for those defending themselves against civil litigation, including medical liability lawsuits. At the top of the list this year was Florida, where once-strong medical liability reforms have been continuously rolled back at the expense of patients seeking affordable and accessible care. “This year, thanks to a state high court majority’s barely contained contempt for the policy-making authority of the legislative and executive branches of government, and a notoriously aggressive and sometimes lawless plaintiffs’ bar, Florida earns the ignominious #1 ranking among eight Judicial Hellholes…” said American Tort Reform Association president Tiger Joyce. Also high on the list was St. Louis, where “antiquated rules have made it a favorite of personal-injury lawyers shopping for big-money verdicts” resulting in $300 million in awards since 2015. However, recent changes in state government, including a governor in support of changes to the liability system, do hold promise for much-needed reform in the coming year. To read more about ATRA’s “Judicial Hellholes” executive summary and report on the where physicians and defendants fare the worst when it comes to…

Read More

High Court’s Contempt for Lawmakers’ Authority, Lawsuit Rackets Place Florida atop Latest ‘Judicial Hellholes’ List

WASHINGTON, D.C., December 5, 2017 – The American Tort Reform Foundation issued its 2017-2018 Judicial Hellholes® report today, naming courts in Florida, California, Missouri, New York, Pennsylvania, New Jersey, Illinois and Louisiana among the nation’s “most unfair” in their handling of civil litigation. “With both this annual report and a year-round website, our Judicial Hellholes program since 2002 has been documenting troubling developments in jurisdictions where civil court judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants,” began American Tort Reform Association president Tiger Joyce. “This year, thanks to a state high court majority’s barely contained contempt for the policy-making authority of the legislative and executive branches of government, and a notoriously aggressive and sometimes lawless plaintiffs’ bar, Florida earns the ignominious #1 ranking among eight Judicial Hellholes, even as authorities have begun to crack down on some of the lawsuit industry’s most obviously fraudulent rackets. “Ranked #2 is perennial hellhole California, where lawmakers, prosecutors and plaintiff-friendly judges inexorably expand civil liability at the expense of businesses, jobseekers and those desperately in need of affordable housing,” Joyce explained. “The good news is the U.S. Supreme Court in June reversed a…

Read More

July 2016 Newsletter

New Mexico Legislators Find Solutions to Out-of-State Liability Concerns Patients in New Mexico who seek treatment from neighboring states now have more assurance that care will available to them without physicians feeling threatened by out-of-state liability laws. The change in the law was necessitated following a case where a New Mexico patient who, after receiving treatment in Texas from a Texas physician, brought forward litigation under New Mexico tort laws, which do not include similar tort liability protections as Texas laws. Without addressing the issue, patients faced limits in seeking care from out-of-state physicians. “There were large practices [in Texas] where 60 percent of their patients are from New Mexico, and they were going to stop seeing those patients,” said Randy Marshall, executive director of the New Mexico Medical Society. “Some practices were already turning away patients.” The bill, which took effect earlier this month and sunsets in three years, allows doctors in other states to request patients to sign a form stating that they would file any lawsuits in the state where the treatment was provided. The document would be admissible in court in both the home state of the patient and the state where any lawsuit is filed….

Read More

New law will limit lawsuits on Texas doctors

A medical malpractice lawsuit filed by a New Mexico patient against a Texas doctor could have disrupted care for patients throughout the state, said state Rep. Terry McMillan, R-Las Cruces. Legislation sponsored by McMillan that takes effect Friday will temporarily resolve the issue while the New Mexico Supreme Court considers the case, he said. In 2004, New Mexico resident Kimberly Montano traveled to Lubbock, Texas, to have bariatric surgery at Texas Tech University performed by Dr. Eldo Frezza. She later sued Frezza, who would have had immunity under Texas law because he is employed by the state. But Montano sued in New Mexico courts, arguing that even though the surgery and follow-up treatments were performed in Texas, her subsequent injuries manifested in New Mexico. When the New Mexico Appeals Court agreed with her, doctors throughout Texas threatened to stop seeing New Mexico patients, McMillan said. “Nobody’s malpractice insurance is going to cover another state,” said McMillan, who is the only medical doctor in the Legislature. “They were not going to see New Mexico patients anymore unless we did something.” Randy Marshall, executive director of the New Mexico Medical Society, said some Texas providers had already made the decision to stop seeing New…

Read More

Editorial: Subjecting out-of-state M.D.s to NM law risky

A medical malpractice lawsuit filed in Albuquerque by a Curry County woman who had gastric bypass surgery in 2004 at the Texas Tech University Health Sciences Center in Lubbock has sent a thorny question to the New Mexico Supreme Court. While it would seem reasonable that Kimberly Montaño should have the ability to pursue a medical malpractice claim, a decision in her favor could have a chilling effect on all New Mexicans’ ability to access health care outside the state – and not just the many eastern New Mexico residents who rely on Texas health care providers because of shortages in the area. Kimberly Montaño went to Texas Tech University because that’s where her insurer at the time, Lovelace Insurance Co., told her she had to go if she wanted her surgery covered. She claims to have had life-affecting complications and is suing her surgeon, Dr. Eldo Frezza, who was chief of bariatric surgery at the TTU Health Sciences Center. Montaño has filed her lawsuit in New Mexico seeking to recover losses and punitive damages not allowed under Texas law. Medical malpractice laws differ by state and in Texas, state law bars lawsuits against individual state employees, which Frezza was…

Read More

Court Rules Doctor Groups Covered by Liability Cap

Ruling says it’s the intent of Legislature Professional corporations formed by doctors are included under a $600,000 cap limiting the amount that can be awarded in medical malpractice cases, the New Mexico Supreme Court ruled this week. The ruling, which expands the definition of “health care provider,” said even if the Court of Appeals found that professional corporations don’t literally meet the definition of providers in the Medical Malpractice Act, the Legislature meant it to apply to them. “A strict adherence to the plain language of the definition would conflict with legislative intent,” said the opinion by Justice Barbara Vigil. The medical community had sought similar protection in a 2011 compromise bill between doctors and lawyers that cleared the Legislature but was vetoed by the governor. The bill ensured that the businesses created by doctors would be covered by the liability caps and other aspects of the medical malpractice law, but in return the caps would have been raised to $1 million per occurrence and would have included a cost-of-living provision of 3 percent. The $600,000 maximum per occurrence in the act has been in place since 1992. The New Mexico Medical Society and the American Medical Association had urged…

Read More

Tort reform challenge threatens medical liability premiums

An appellate court examines the New Mexico law’s constitutionality and its $600,000 damages cap, but physicians are fighting back, fearing changes will drive up costs. New Mexico’s tort reform, which has been on the books since the mid-1970s, is facing legal challenges on the law’s constitutionality and how to define the word “occurrence” when applying the damages cap. Physician advocates say upholding the law and making sure it is enforced the way it has been in the previous decades is key to keeping medical liability insurance companies in the state and maintaining premiums at a level that physicians can afford. “It is a very important case for us,” said Randy Marshall, executive director of the New Mexico Medical Society. “We have a very good medical malpractice act.” Plaintiffs in the case, Baker v. Hedstrom, are asking the New Mexico Court of Appeals to decide whether the Legislature constitutionally has the right to set a limit on awards that can be collected. They argue, among other things, that the law interferes with the right to a jury trial. Physician defendants in the lawsuit are asking the Court of Appeals in Albuquerque to decide whether an “occurrence” to which the damage cap…

Read More