Most of the time, you do not notice the parts of your body that do not hurt and are not malfunctioning. You often hear from people with chronic or severe illnesses that they had never thought about much of what their bodies do on an ongoing basis until the symptoms began.
Unless a doctor has told you that you have diabetes or pre-diabetes, you are probably only vaguely aware that your pancreas exists and can only say in the most general terms where in the body it is located and what it does. You take your white blood cells for granted unless you suffer from an immune deficiency or an autoimmune disease.
Unless you are a doctor or nurse, you likewise have never given much thought to how doctors make decisions about diagnoses and treatment. Managing a serious illness can be overwhelming, even if you start to see positive outcomes almost as soon as you start receiving treatment, but it is even more stressful and confounding if you keep getting sicker despite your treatments.
How can you tell if your treatment is making you worse, and how can you convincingly make a case for what your doctor should have done instead? These are all issues that patients face in medical malpractice cases. Getting justice for patients in medical malpractice cases involves multiple professionals putting their medical and legal knowledge together. If your illness or injuries got worse because of a medical error, contact a Santa Fe medical malpractice lawyer to find out more about the steps to recover compensation in a medical malpractice claim.
Why Do People File Medical Malpractice Cases?
The details of medical malpractice cases vary widely from one case to another, but one thing they all have in common is that the patient’s health worsens after seeking medical treatment. In some cases, the problem started with an acute injury and a visit to the emergency room, where the doctors determined that the patient’s injury was less severe than it actually was. Some medical malpractice cases involve a doctor not taking a thorough enough medical history and, as a result, prescribing a course of treatment that would be beneficial to some patients but which aggravated this particular patient’s pre-existing illness or interacted badly with another medication that this patient was taking.
The main reason that patients file medical malpractice claims is money. If medical treatment was ineffective or made your illness worse, but that was the only harm it caused, the reasonable course of action would simply be to complain about the doctor who treated you and go to a different doctor for a second opinion. Medical care is expensive in the United States, though, even if you have health insurance, and the consequences of an error by a doctor or hospital can cause you to incur much bigger medical bills than you would have incurred if your doctor had gotten things right the first time. The goal of a medical malpractice case is to get compensation for the financial losses you suffered as a result of a medical error.
Most people do not go through the long process of filing a medical malpractice claim unless their financial losses are heavy enough to adversely affect their lives and those of their family members. It is worthwhile to file a medical malpractice claim if the medical error made you unable to work for an extended period of time.
What is the Standard of Care?
In all personal injury cases, including medical malpractice cases, the plaintiff must prove that the defendant had a duty of care to the plaintiff and that the defendant breached that duty of care by an act of negligence. Proving the duty of care is usually the easiest part. For example, in a car accident case, every driver has a legal responsibility to obey traffic laws, so speeding, distracted driving, or running a red light is a breach of the duty of care. Likewise, in premises liability cases, every business owner has a legal responsibility to keep the premises in safe condition, so slippery or uneven floors constitute negligence.
Physicians have a duty not to harm their patients and to make medical decisions that conform to the standard of care. In other words, they have a legal duty to practice their practice areas of medicine responsibly and to use good judgment. Doctors make decisions on a case-by-case basis based on a unique variety of factors at each patient visit; if they do not, then bots could practice medicine. Likewise, doctors have achieved their decision-making authority only through many years of study and practical training. If you knew the best way to treat your illness or your symptoms, you would be a doctor.
An adverse outcome for a patient does not always mean an error on the doctor’s part. Not everyone who goes to the hospital comes out cured. An important part of any medical malpractice case is deciding what the doctor should have done and, therefore, how the doctor’s actions deviated from the standard of care. This is such a specialized question that simply having an M.D. degree does not, by itself, qualify you to answer it. Ear, nose, and throat doctors do not have an authoritative opinion about when to perform an emergency C-section; only obstetricians know that. Gastroenterologists do not know how to choose between discectomy and spinal fusion surgery; only spinal surgeons know.
Furthermore, prevailing medical opinions change over time. Decades ago, doctors used to assume that a child had a bacterial ear infection if the child’s ear canal looked red and if the child had upper respiratory symptoms and fever, but current tests make it possible to rule out a variety of viral illnesses that cause similar symptoms. Therefore, your lawyer will need the professional opinions of doctors who currently practice in the same subspecialty of medicine as the one who allegedly committed the malpractice.
What is Medical Malpractice, and How Does it Occur?
Medical practice occurs when a healthcare provider deviates from the standard of care, and a patient suffers harm as a result. The negligence could be an error on the part of one or more physicians who treated the patient, or it could be an error by a nurse or pharmacist. The following are just a few of the many possible manifestations of medical malpractice:
- An outpatient surgery clinic does not stock the medications necessary to reverse adverse complications of anesthesia
- A doctor does not take a thorough enough medical history or does not review a patient’s medical records thoroughly enough to notice a pre-existing condition that should affect the doctor’s treatment decisions
- A surgeon operates on the wrong body part
- An anesthesiologist fails to monitor a patient adequately during surgery
- A doctor authorizes a patient’s discharge from the hospital before the patient is stable to go home
- A nurse administers the wrong medication or the wrong dose
What Must You Prove to Win a Medical Malpractice Case?
In order to win a medical malpractice case, you must prove the following things:
- The defendant had a duty of care toward you.
- The defendant breached the duty of care through negligence, in this case, a medical error.
- You suffered physical harm because of the defendant’s negligence.
- You suffered financial losses as a direct result of your medical malpractice-related injury or illness.
The first claim is the easiest to prove. When you are a medical patient, healthcare businesses and their employees have a duty of care toward you. This means that every doctor, nurse, radiologist, pharmacist, medical assistant, physical therapist, doctor’s office, hospital, or clinic involved in your care has a legal responsibility to protect you from medical harm.
Proving each of the other claims is less simple. In order to prove negligence, you must show that the defendant deviated from the standard of care. This requires you to know what the standard of care is for the given situation. It is only as simple as referring to written guidelines in some cases. If a nurse gave you the wrong medication because she was responsible for twice as many patients during her shift as the staffing guidelines allow, then proving the hospital’s negligence is a slam dunk. It says right here in the guidelines that each nurse can be assigned to a maximum of X number of patients per shift, but on the day that the medication error occurred, your nurse was responsible for 2X patients.
Proving negligence is also easy if the medical error is a “never event,” meaning an error so egregious that it should never happen in a physician’s career. Examples of never events include operating on the wrong body part or leaving an anesthetized patient unattended. More often, though, your lawyer will need to seek the expert testimony of other physicians who work in the same area of medicine to determine what the defendant should have done and why the defendant’s actions constitute negligence.
It might seem simple to prove that your current state of ill health is the result of a medical error, but there are two sides to every story. Some health problems are more easily attributable to a single cause than others. If a doctor failed to diagnose and treat an infection in your toe, and the infection got so bad and spread so far that your leg had to be amputated, then any reasonable person would agree that your mobility impairment is the direct result of the medical error. Symptoms like chronic headaches and chronic back pain can have many causes, though, and you might say that your headaches or backaches are due to a medical error, while the defendant might try to attribute them to a pre-existing condition.
Proving that your financial losses are the direct result of your injuries is also harder than it looks. Anyone can read the numbers on your medical bills, but it is more difficult to prove how much income you lost as a result of your injuries. If you are also seeking damages for future medical expenses, there is also room for disagreement about how much your future treatment will cost.
What is the New Mexico Medical Review Commission?
You cannot just go straight to the courthouse and file a lawsuit if you get injured because of a medical error. The law requires you to complete some preliminary steps first. If you wish to file a medical malpractice lawsuit arising from a medical error that occurred in New Mexico, you must first present your case to the New Mexico Medical Review Commission (NMMRC).
The NMMRC will appoint a panel of several physicians and one lawyer to review your case. If they determine that you have a good chance of prevailing in a lawsuit, they will authorize you to proceed with the lawsuit. The members of the panel are impartial, meaning that they do not have any prior knowledge of your case or the people involved in it. They do, however, know enough about the medical conditions described in your case and the laws related to it to make an informed decision about your chances of prevailing in court or collecting damages if the defendant offers to settle the case without going to trial.
You do not have to testify in person before the NMMRC, and your lawyer does not have to present arguments in person. Instead, you must present documents in support of your claims that you suffered physical harm because of the defendant’s negligence and that this physical harm caused you to incur financial losses. Therefore, you must submit copies of the relevant parts of your medical records and medical bills so that the NMMRC can review them.
Presenting your case before the NMMRC sounds like it is just another hoop to jump through, but its purpose is to save patients and healthcare providers money on litigation costs by pre-screening cases. In other words, if the NMMRC approves your case, you have a good chance of recovering compensation.
Medical malpractice cases are not the only kind of legal case where a preliminary review is required. Consider that, in employment discrimination cases, plaintiffs cannot sue their employers until after they present a preliminary complaint to the Equal Employment Opportunity Commission (EEOC), and the EEOC investigates the complaint and decides whether the plaintiff has grounds for a lawsuit. Likewise, in some felony cases, the criminal court does not file charges until after a grand jury votes to indict the defendant. The NMMRC is not an arbitration panel.
What is the Patient Compensation Fund?
In New Mexico, it is easier to recover damages in a medical malpractice case than in some other states. The Patient Compensation Fund is part of what makes it easier. Every year, each physician in New Mexico must pay a surcharge to the fund. When a medical malpractice lawsuit settles or a court rules in favor of the plaintiff, the Patient Compensation Fund pays most of the damages awarded. The physician named in the complaint pays the first $200,000, and if the damages award is higher than that, then the Physician Compensation Fund pays the rest.
From a physician’s perspective, paying the first $200,000 is like paying an insurance deductible. From a plaintiff’s perspective, it means that the defendant will not fight to the death to keep you from winning because if the court rules against the defendant, most of the responsibility for paying your damages belongs to the Patient Compensation Fund.
What is the Statute of Limitations for Filing a Medical Malpractice Case?
A statute of limitations is a deadline for filing a lawsuit. Courts impose a statute of limitations because, if they did not, then people could come to you with lawsuits about things that happened decades ago, which would mean that it would be difficult to find enough evidence to prove either side’s claim. Lawsuits are expensive, and the courts want to discourage frivolous or pointless ones.
For example, the statute of limitations for debt collection lawsuits is six years from the time the borrower last made a payment on the debt or promised to make one. It is not longer than that because if you waited more than six years before making a serious effort to get the person who borrowed money from you to pay you back, you must not have missed the money that much. The statute of limitations is not shorter because the court wants the parties to make reasonable efforts to resolve the matter through means other than litigation before one of them sues.
In most medical malpractice cases, the deadline for filing a medical malpractice lawsuit is three years, counting from the date of the medical error. Remember that filing a lawsuit comes after multiple preliminary steps, such as consulting a lawyer about your case, preparing your documents from the NMMRC, and waiting for a response from the NMMRC. Therefore, it is never too soon to contact a medical malpractice lawyer about your case, even if you only recently started having symptoms related to the medical error or if the bill for the treatment you underwent to correct your previous doctor’s error just arrived.
If the case involves a public entity (such as the student health services at a public university), you must act even more quickly. You must notify the relevant public entity within 90 days of the medical error. In these cases, the deadline for filing a lawsuit is two years from the date of the medical error.
What is the Standard of Evidence in Medical Malpractice Cases?
Uncertainty is a virtually inescapable part of the human condition, and yet judges only make decisions when litigants persuade them. How sure does a judge have to be in order for the case to turn out your way? It depends. There are different standards of evidence for different legal matters.
For example, the standard of evidence for issuing a search warrant in a criminal case is probable cause. In other words, the police must convince the judge that they want to search a particular private residence for evidence of a crime based on more than just a gut feeling. Even if, when executing the search warrant, they find everything they are looking for, there is still a long way to go before the court convicts the defendant. A criminal court will only convict a defendant if the prosecution persuades 12 jurors that the defendant is guilty; the jurors must be sure beyond a reasonable doubt, or else they must vote to acquit.
In civil lawsuits, including medical malpractice cases, the court must rule in favor of the plaintiff if a preponderance of the evidence shows that the plaintiff’s claims are true. This means that you can win a medical malpractice lawsuit if you persuade the judge that there is at least a 51% chance that you are right.
The preponderance of the evidence standard of evidence has several possible repercussions in a medical malpractice case. For example, your case is not hopeless if you had frequent backaches even before the medical error. You are not trying to convince the court that the defendant’s negligence is the only possible cause of your back pain; you are only trying to show that it is more likely than not that the defendant’s negligent actions made your back pain worse or prevented your symptoms from resolving.
Another consequence is that it is often obvious to defendants whether you can show a preponderance of the evidence. Therefore, they may offer you the damages you are requesting as a settlement before the case goes to trial.
How Does the Daubert Standard Apply to Medical Malpractice Cases?
In some legal matters, judges and jurors must decide whether a reasonable person would act a certain way or reach a certain conclusion. For example, in premises liability cases, plaintiffs must prove that the defendant should reasonably have known that the hazard that caused the accident was present. In medical malpractice cases, you cannot rely on the judgment of any reasonable person. The world would be very different if any reasonable person could practice medicine. You would not have sought the defendant’s professional opinion unless you thought the defendant possessed insights into your health that Dr. Google did not possess.
Medical malpractice litigation requires sophisticated arguments presented by people who have a professional background in medical specializations directly related to the case. Physicians who treated the patient may testify at trial or give depositions during the discovery phase. If the case goes to trial, there is a strong possibility that your lawyer will want to summon expert witnesses to explain how the defendant’s negligence caused your current state of ill health or what the standard of care is for cases like yours. Expert witnesses should not merely support their claims with anecdotal evidence; instead, they should cite published research.
Most states, including New Mexico, follow the Daubert standard for determining the admissibility of expert witness testimony in medical malpractice cases. It is not enough simply to cite published research; if you spend even a few minutes scrolling through the Retraction Watch website, it will become obvious that not all of the research published in scientific journals is reliable enough for courts to use as a basis for rulings. The Daubert standard, which is named after a 1993 ruling by the U.S. Supreme Court, sets out guidelines that judges should follow when deciding whether a piece of expert witness testimony is admissible. The guidelines are applicable not only in medical malpractice cases but in all civil and criminal cases in which an expert witness cites published research about the medical sciences.
The Daubert standard requires judges to review the testimony of the expert witness before the witness presents it to the jury; this matters to your case because some medical malpractice cases in New Mexico culminate in jury trials. This is because scientific journal articles and testimony at trial are two fundamentally different kinds of communication. The purpose of live testimony is to persuade jurors that you are right and your opponent is wrong, and the jurors, as a rule, have no prior knowledge of the subject.
As every trial lawyer knows, preparing to examine an expert witness at trial takes as much effort and planning as writing and staging a play. You must communicate ideas to the audience in a limited amount of time and, if appropriate, appeal to their emotions. The scientific articles that expert witnesses cite have a completely different purpose. The purpose of a report of a scientific experiment (such as a clinical trial) is to show the audience, who are also professional scientists, how to do the experiment; if the authors’ experiment was well designed, then other researchers who conduct the same experiment will achieve the same results.
Published studies vary widely in quality, so the Daubert standard sets rules about which studies expert witnesses can cite. The studies must clearly indicate the degree of possibility of error in the results and what could account for that error. They must also be clear about their methodology, which means that they must be specific about how they conducted the experiment and why they chose to conduct it that way.
Under the Daubert standard, expert witnesses in medical malpractice cases may only cite studies that used human patients, in other words, clinical trials. They may not cite in vitro studies or experiments on animals; these types of studies are important in medical research because they are a prerequisite to clinical trials, but they are not a substitute for them and cannot predict accurately enough how a certain treatment regimen or illness will affect human patients in clinical practice.
Furthermore, New Mexico uses the Alberico test to determine the appropriateness of an expert witness and their testimony. It states that expert witnesses in medical malpractice cases may only testify about areas of medicine in which they have recently practiced; therefore, a thoracic surgeon may testify about thoracic surgery but not psychiatry, hematology, or obstetrics, for example. The testimony must also be directly related to the case; attorneys in medical malpractice cases must not mislead jurors by presenting irrelevant information, even if the information is accurate and the witness is qualified to evaluate it.
How Much Money Can You Get in a Medical Malpractice Case?
Plaintiffs in medical malpractice cases request compensatory damages; in other words, they want the defendant to pay them back for the money they lost as a result of the defendant’s actions. Therefore, you can seek compensation for the medical bills you paid or that you still owe that are related to the injuries or symptoms you have experienced because of the medical error. This category includes all kinds of medical expenses, including but not limited to doctor visits, hospital stays, prescription drugs, physical therapy, medical devices, mental health counseling, and home health aide services.
If your injuries have restricted your ability to work, then you can also seek damages for lost income. You can also seek damages for future medical expenses and future lost income.
You can also request non-economic damages. This amount is to compensate you for the non-financial ways that the defendant’s actions harmed you. For example, if you suffered hearing loss because of a medical error, then the non-economic damages award is compensation for no longer being able to converse with a group of friends in a restaurant like you used to do before. If you suffered a severe spinal cord injury, the non-economic damages award is compensation for no longer being able to walk.
Pursuant to the New Mexico Medical Malpractice Act, which Gov. Lujan Grisham signed into law in 2023, the maximum damages that the court can order most defendants to pay is $1 million. Every year, the damages cap will adjust in accordance with the consumer price index. The $1 million cap applies only to compensatory damages. In cases of extreme negligence, the courts can order defendants to pay punitive damages in excess of $1 million.
How HB 75 Changes Medical Malpractice Law in New Mexico
Since 1976, the damages cap in New Mexico medical malpractice cases stood at $600,000, but this year, House Bill 75 went into effect, making several important amendments to the previous version of the New Mexico Medical Malpractice Act. Pursuant to HB 75, hospitals and outpatient healthcare facilities (such as urgent care clinics and outpatient surgery centers) must carry insurance to pay up to $250 per malpractice claim and up to $750 in total claims per year. Patients injured by medical negligence have the right to seek damages up to $4 million; the maximum damages award will increase to $6 million in 2026.
HB 75 also increases the amount that physicians must pay in annual surcharges to the Patient Compensation Fund. The fund had a deficit of over $66,000,000 in the summer of 2022, and the aim of the increased surcharges is to reduce the deficit to zero by 2026.
Contact Slate Stern About Medical Malpractice Lawsuits
Slate Stern is a medical malpractice lawyer who represents plaintiffs and helps them get justice after being injured by a medical error or negligence by a doctor or hospital. Contact Slate Stern in Santa Fe, New Mexico, or call (505)814-1517 to discuss your case.