Tag Archives: physicians

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New Mexico Supreme Court upholds damage caps – protecting physicians and how much they pay for malpractice coverage

Our take: The historical payout data in NM can play a major role in determining the overall cost that insurance companies charge physicians for their malpractice coverage……and how hospital systems determine the malpractice coverage part of their financials. This decision, and the follow-up compromised legislation, will keep the damage cap in place. We have been tracking historical medical malpractice insurance rates for decades, and we have steadily seen a small uptick over the past years. This will help NM stabilize their rates. If there are any doctors practicing in NM, and you have questions about this decision and how it will affect your malpractice rates, fill out our Contact Us form and you can speak to one our NM specialists that can walk you through this.

The New Mexico Supreme Court determined last month, in the case of Siebert v. Okun, that the state’s $600,000 cap on nonmedical, nonpunitive damages in medical liability lawsuits is constitutional.

According to the unanimous decision, Second Judicial District Court Judge Victor Lopez erred in 2018 when he denied a motion by Rebecca C. Okun, MD, and Women’s Specialists of New Mexico to reduce a $2.6 million medical malpractice judgment to conform with the $600,000 damage cap established by the New Mexico Medical Malpractice Act. The Supreme Court remanded the case back to the district court to conform the judgment with the cap.

Judge Lopez had refused to reduce the $2.6 million medical malpractice verdict, determining the legislature exceeded its constitutional authority when implementing the New Mexico Medical Malpractice Act to the extent that it restricts a plaintiff’s “right to receive an unaltered jury verdict.”

The five justices disagreed. According to the Supreme Court’s opinion, while Article II, Section 12, of the New Mexico Constitution holds that the right to a jury trial shall remain “inviolate,” an “inviolate right is not beyond the reach of regulation, so long as that regulation does not substantially impair the core essence of the right” and that the statutory cap on damages “merely gives legal consequence to the jury’s determination of the amount of the verdict.”

Two days after the decision in Siebert v. Okun, New Mexico legislators unveiled a compromise bill intended to modernize the state’s Medical Malpractice Act. Prior to the agreement, competing bills had divided the legislature as well as the state’s hospitals, physicians and trial lawyers.

At issue was whether to remove hospitals from the definition of “healthcare provider” under the Medical Malpractice Act in order to exclude them from accessing the state’s patient compensation fund (PCF). The PCF currently carries a $56 million deficit, and supporters of the proposal argued that, as written, the Act’s excess coverage was never intended for hospitals.

The New Mexico Hospital Association and Medical Society warned that without access to the PCF and the other protections afforded by the Medical Malpractice Act, a number of already struggling hospitals could be forced to close their doors.

The compromise legislation, which was signed into law by Gov. Michelle Lujan Grisham on April 1, maintains hospitals’ “healthcare provider” status under the Medical Malpractice Act and makes a number of changes to the New Mexico medical liability law. Some of these changes are as follows:

• The cap on nonmedical, nonpunitive damages will increase to $750,000.

• Healthcare providers will be required to carry a medical malpractice insurance policy of $250,000 per occurrence with a $750,000 aggregate. The requirement was previously $200,000/$600,000.

• The PCF will cover any amount due from a judgment or settlement in excess of $250,000. It previously covered damages in excess of $200,000.

• For hospitals, outpatient healthcare facilities or business entities electing to be covered under the Medical Malpractice Act, the superintendent will determine, based on an annual risk assessment, the hospital, outpatient healthcare facility or business entity’s additional charges for accessing the PCF.

• Payment for future medical care and related benefits shall be made as expenses are incurred. The court must approve any lump-sum settlement, and the portion of settlement funds intended for future medical care must be placed into a medical savings trust.

If you want to take a deep dive into New Mexico and view current medical malpractice rates, historic rates and learn everything there is to know about medical malpractice insurance for physicians in New Mexico, then click here.

New York State

New York Gov. Cuomo Proposes Physicians Pay for State’s Excess Coverage

New York Gov. Andrew Cuomo unveiled his 2022 State Budget proposal last month, which included a restructuring of the state’s excess medical liability program for physicians.

Under Section 18 of the New York Medical Malpractice Reform Act, physicians who maintain primary insurance coverage limits of $1.3 million per claim and $3.9 million in annual aggregate with a New York State-admitted medical liability insurance company are eligible — at no cost — for an additional $1 million per claim and $3 million in annual aggregate coverage from the state’s excess medical liability insurance program. Access to the free program has been a competitive advantage that medical professional liability insurance companies operating in the state’s standard admitted market have had over risk retention groups and other alternative risk transfer products.

New York is facing a two-year, $15 billion budget deficit, and Gov. Cuomo’s proposed budget would save the state about $51 million annually by requiring physicians with access to the excess medical liability program to cover half of the coverage costs. The governor’s Fiscal Year 2022 Executive Budget Briefing Book cites a stabilized, strengthened medical malpractice insurance market since the excess fund’s creation and a 24% decrease in enrollment since 2015 as justifications for the restructuring.

“This [budget proposal] is both ill timed and shortsighted,” wrote Bonnie Litvack, MD, president of the Medical Society of the State of New York (MSSNY), in a January 21 communication with members posted on the society’s website. “Physician practices in the pandemic have been struggling to keep the doors open.  If imposed, this will be the final straw for many practices and additional patients will lose access to care at a time when they and their communities need their physicians most.

“The excess program exists in the first place due to New York’s dysfunctional medical malpractice adjudication system (the worst in the country) and is akin to treating cancer with pain medications only. It is time to use tried and true remedies, like caps on pain and suffering [damages], expert witness reform and certificate of merit reform.”

In related news, Gov. Cuomo recently pledged to modernize the Department of Health’s Office of Professional Medical Conduct. During his 2021 State of the State speech, and included in his budget proposal, the governor promised to introduce legislative reforms intended to strengthen disciplinary actions for professional misconduct, improve enforcement and increase patient safety. One proposed reform is to add transparency by making misconduct investigations and information about non-disciplinary actions available to the public. New York law currently prohibits public confirmation of an investigation. The MSSNY has expressed its opposition to changing the law.

According to Litvack’s communication with members, the MSSNY is “perplexed by proposals to eliminate important due process protections for physicians against whom a complaint has been filed with the Office of Professional Medical Conduct. While we are committed to working to identify gaps in the NYS disciplinary, this budget proposal would give the Commissioner of Health the authority in their sole discretion to disclose to the public that a complaint has been filed against a particular physician, despite the fact that very few complaints ever actually result in a finding of professional misconduct.

“This information can remain on the internet forever, potentially ruining a physician’s professional reputation. The law already permits the commissioner to disclose information to the public when there is a public health threat. This provision would eliminate important due process protections.”

This article originally appeared in Medical Liability Monitor.

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.

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?