Tag Archives: doctors

Is New Mexico’s Compensatory Damage Cap the Next to Fall?

Arguments in favor of and against New Mexico’s medical malpractice compensatory damage cap were made last month, and now the question as to whether it is constitutional rests in the hands of five justices on the state’s Supreme Court. The compensatory cap limits economic and noneconomic damages, but not medical costs or punitive damages, to $600,000.

Enacted in 1976, the New Mexico Medical Malpractice Act defined the standard of care, established a state-sponsored patient compensation fund, implemented statute of limitation guidelines, mandated the screening of all alleged cases of medical malpractice and capped the amount of recoverable damages in medical liability trials. In 2018, District Judge Victor Lopez determined that the compensatory cap improperly interfered with a plaintiff’s constitutional right to a trial by jury.

The underlying case, Siebert v. Okung, alleges Rebecca Okun, MD, an obstetrician/ gynecologist and employee of Women’s Specialists of New Mexico, performed a hysteroscopy on Susan Siebert. The procedure created a hole in Siebert’s uterus and intestine. Okun failed to notice these holes and sent Siebert home after the procedure.

Siebert became infected because of the perforations, requiring numerous surgeries, followed by extensive in-patient hospital and rehabilitation center care. She spent months on a ventilator and a feeding tube. She lost her job and suffered permanent brain damage.

Siebert sued Okun and Women’s Specialists of New Mexico in District Court, where a jury found for Siebert and against the defendants in the amount of $2.6 million.

Following entry of judgment, the defendants moved for a reduction in the judgment based on the language of the New Mexico Medical Malpractice Act, which provides that,  except for medical care and related benefits, medical malpractice damages are to be capped at $600,000. Siebert opposed the motion, arguing the cap is unconstitutional.

District Judge Victor Lopez agreed with Siebert and held the cap unconstitutional. He primarily found that the cap abridged the right of trial by jury, but also determined other constitutional rights might be “implicated,” including equal protection, due process and separation of powers. He refused to reduce the judgment.

The defendants appealed to the New Mexico Court of Appeals, which forwarded the case directly to the New Mexico Supreme Court without any ruling on the merits by the Court of Appeals.

During last month’s hour-long oral arguments before the New Mexico Supreme Court, Bennett Cooper, attorney for Okun and Women’s Specialists of New Mexico, emphasized that what is at stake is not just the compensatory damage cap, but the entire Medical Malpractice Act, due to issues of severability. In other words, should the compensatory damage cap be determined unconstitutional, all the protections afforded by the Medical Malpractice Act would likewise disappear.

“Over 40 years ago, the legislature protected patients and physicians of New Mexico by securing the availability of medical malpractice insurance,” Cooper argued. “This was a reasonable, prescient approach and likely the most pro-patient medical malpractice reform law anywhere in the country. The district court’s ruling on the issue of jury rights endangers the entire medical malpractice act.”

Lisa Curtis, the attorney representing Siebert, argued that the New Mexico Constitution is very specific in that every New Mexican has the right to have damages determined by a jury.

“In New Mexico, the right to trial by jury, as it has heretofore existed, shall be secured to all and remain inviolate,” Curtis stated before the Court. “An inviolate right constitutionalizes the jury’s role. In fact, our Second Judicial District Judge Lopez found that [the compensatory damage cap] violates Susan Siebert’s specific inviolate constitutional right to a jury trial. The jury awarded Ms. Siebert $2.6 million in compensatory damages, and very importantly here, the defendants moved to reduce, or limit, the jury’s verdict … If you were to eviscerate the jury’s finding on damages, then you are eviscerating the jury’s right to make a determination of the case and the facts of it.”

The New Mexico Supreme Court is expected to reach a decision in Siebert v. Okun sometime next year. Keep an eye on our News Section for the latest updates.

Trump Administration Fiscal-Year 2020 Budget Proposal Estimates $31.5 Billion in Savings from Hypothetical Medical Liability Reform

In March, the Trump Administration unveiled its Fiscal-Year 2020 budget proposal, outlining the President’s tax and spending priorities for the next decade.

While the president’s budget proposal is simply a request with no binding authority on Congress, it is best understood as a detailed statement by the administration of its fiscal goals and policy preferences. And the Fiscal-Year 2020 budget lays bare the Trump Administration’s continued goal of reshaping the American healthcare delivery system, including medical professional liability reform at the federal level, which it assumes would create a potential savings of more than $31.5 billion between 2020 and 2029.

“There are only a few policies where we have pretty good evidence that they will reduce total healthcare costs — and medical liability reform is one of them,” said Marc Goldwein, senior vice president and senior policy director for the Committee for a Responsible Federal Budget, in an interview with Medical Liability Monitor about the Trump Administration’s Fiscal-Year 2020 budget proposal. “It’s a policy where the evidence-base is sufficiently strong that we think it can have a significant effect on both total healthcare costs and Medicare. It’s one of only a few [policies] you could sort of think of as ‘free lunches,’ the kinds of policies that basically are able to press overall costs down without you being able to point easily to the winners and losers, outside, of course, those who would get less in (medical liability awards) and the lawyers that represent them.

The Trump Healthcare Agenda

Healthcare programs comprise almost 30 percent of federal spending, and the Trump Administration’s Fiscal-Year 2020 budget proposal estimates more than $1.3 billion in total savings would result from a hypothetical repeal and replacement of the Affordable Care Act (ACA) as well as enacting various healthcare reforms.

Specifically, the Trump Administration estimates around $660 billion in savings should Congress repeal the ACA and replace it with something similar to the Graham-Cassidy proposal from 2017, which would supersede the ACA’s premium subsidies and Medicaid expansion with either a state block grant or per-capita cap, while restricting the growth of Medicaid base payments.

The president’s budget proposal appraises another $645 billion in healthcare savings from reforming and reducing Medicare provider payments. Specifically, the budget would equalize payments for similar services offered in hospitals and physician’s offices, while slowing the growth of post-acute care payments and reducing compensation to hospitals for bad debts.

The budget further estimates about $31.5 billion in savings by enacting medical professional liability reforms that include limiting noneconomic damages to $250,000 adjusted for inflation, instituting a three-year statute of limitations, allowing evidence of a claimants’ income from other sources such as workers compensation and auto insurance to be introduced at trial, replacing joint and several liability with a fair-share rule, excluding expressions of regret or apology from evidence and establishing “safe harbors” against claims that have clinical justification. A significant portion of these savings is attributable to the estimated reduction in unnecessary services and curbing the practice of defensive medicine.

“The biggest thing that this budget does with medical malpractice is cap noneconomic damages at $250,000,” Goldwein said. “It also has provisions for creating new safe harbors, changes some statutes of limitations. It has some restrictions on attorney fees as well, but the largest thing it does is cap those noneconomic damages, which in some lawsuits can be in the millions and drive-up premiums that doctors pay.”

The Reality of Divided Government

The United States is currently operating under a politically divided government and the likelihood of the president’s healthcare agenda — as outline in his Fiscal-Year 2020 Budget proposal — being enacted is less than modest. But according to Goldwein and the Committee for a Responsible Federal Budget, the budget proposal’s continued inclusion of medical professional liability reform is significant.

“I don’t think it’s very likely that the president’s [tort reform] proposals will be enacted, in particular the cap on noneconomic damages,” Goldwein said. “I do think there’s room for passing safe harbor rules and things like that, but there’s a very strong community of interest groups that are opposed to things like caps.

“While I don’t think it’s very likely [the president’s budget passes], I don’t think that’s the point of the president’s budget. In reality, very little of the president’s budget will be enacted. The point is to put the proposals out there, and then sort of push them one by one when the window opens. That may happen at some point in the future, but it’s very unlikely in the next two years.”

We will be releasing the full audio of the interview with Marc Goldwein in the next couple of weeks.

Junior doctors go on strike in the UK. Could you see this happening here?

It’s been almost a full day since junior doctors in the UK decided to walk out and strike. It’s important to note what junior doctors actually are: The term junior doctor is a little misleading. It covers medics who have just graduated from medical school through to those who have more than a decade of experience on the front line.

The issue at hand is the current contract and overall pay for the junior doctors. It appears as though talks have become highly political with unions all over the UK believing this fight will have far reaching effects. You can read all about the strike over at the BBC.

Could we see this happen in the United States? We know that doctors have walked out in the past, but this typically happens on a small level. Last January, 150 doctors in California walked out for one day to protest how the University system allocates money. It had nothing to do about their salaries. However, with lower reimbursement rates and hospital employment on the rise, will we ever see physicians walk out in protest?