New Mexico Injury Settlements and Law

Last week, in Siebert v. Okun, the New Mexico Supreme Court ruled that the state’s damages cap in medical malpractice cases was constitutional, concluding the law did not violate the right to a trial by jury. This ruling struck down the Bernalillo County District Court’s 2018 ruling on Siebert v. Okun.

New Mexico’s Medical Malpractice Act

The New Mexico legislature passed the Medical Malpractice Act in 1976. The law caps damages in medical malpractice cases at $600,000. It applies to lost wages and pain and suffering. The cap excludes punitive damages and compensation for medical and rehabilitative treatments. In 2011, the New Mexico legislature passed legislation that would have raised it to $1 million. Governor Susana Martinez vetoed it. She argued that the raise would increase the cost of health care and lead to frivolous lawsuits.  And, of course, the lobbyists told her to do it.

Siebert v. Okun

A Placitas, New Mexico teacher (“Siebert”)  underwent a hysteroscopy at Women’s Specialists of New Mexico on February 11, 2011.  An OB/GYN (“Okum”), performed the procedure. During the hysteroscopy, Okun perforated Siebert’s intestine and uterus. She failed to notice the perforations.  That is the big issue.  Perforations are often the result of negligence but the medical community pretty universally gives doctors a pass on a perforation. But after you screw up you have to see that you screwed up and fix it.  That did not happen here.  Following the procedure, Siebert was immediately discharged. The following morning, Siebert experienced severe abdominal pain. She contacted Okun, who told her to visit the ER. Following hospital admission, Siebert was diagnosed with pelvic abscesses, septic shock, systemic inflammatory response syndrome, kidney failure, respiratory failure, and peritonitis. She underwent multiple surgeries. They included a bowel resection, a total abdominal hysterectomy, and an abdominal washout. Siebert was hospitalized for nine months. She required a feeding tube and a ventilator. Because of her severe injuries, Siebert developed permanent brain damage. Siebert sued Okun and Women’s Specialists of New Mexico in Bernalillo County District Court on July 18, 2013. She alleged that Okun’s failure to recognize the uterine and bowel perforations caused her permanent injuries. Siebert also claimed vicarious liability against Women’s Specialists of New Mexico. Okun and Women’s Specialists of New Mexico defended the care and let the case go to the jury.  That was a mistake. The jury awarded her $2.6 million. Following the judgment entry, the defense moved to reduce the verdict based on New Mexico’s $600,000 cap on certain medical malpractice damages. This would have reduced the award to $1.54 million. Siebert argued that the cap was unconstitutional.

2018 Bernalillo County District Court ruling

On March 28, 2018, the Bernalillo County District Court denied the defense’s motion. By doing this, the court struck down the damages cap. Judge Victor Lopez, clearly a gusty judge, ruled that the cap restricted “the right to receive an unaltered jury verdict.” Of course, the lobbyist came out in full force. Alberquerque oncologist and American Medical Association president-elect Dr. Barbara McAneny opposed the ruling, describing a victim getting what a jury believed was appropriate as “very alarming.” McAneny also regurgitated the old saw that New Mexico experiences difficulties attracting physicians to the state so we need a cap to prevent women who suffer brain damage from getting fairly compensated (of course, those are my words but that is the gist of what she is saying). The doctor appealed to the New Mexico Supreme Court.

New Mexico Supreme Court’s decision on Siebert v. Okun

In November 2019, the New Mexico Supreme Court began hearing arguments on the damages cap’s constitutionality. The victim’s malpractice attorney argued that the cap interfered with the right to a verdict by a jury. She also claimed that damages cap “attract[s] poor medical care.”  The defense lawyers argued what I would argue if I was them:  the cap is the law and it has been that way for a while and is a bedrock of New Mexico malpractice law. The New Mexico Supreme Court found that the damages cap was constitutional. This ruling struck down the Bernalillo County District Court’s decision. In her opinion, Justice Barbara J. Vigil concluded that the cap did not violate the right to a jury trial. She found that it did not “invade the province of jury.” Siebert asserted that the cap only “gives legal consequence to the jury’s determination of the amount of the verdict.” In this ruling, the court also recognized that the cap “restricted the scope of the available legal remedy for injury resulting from… medical malpractice.” However, it reiterated that this did not abridge the Plaintiff’s right to present evidence to the jury.  This is all semantics you can interpret however you want the outcome to be, right?   So the court recognized that the cap restricted the ability of plaintiffs to receive adequate injury compensation but found the cap did not violate the right to a jury trial.

New Mexico Injury Verdicts and Settlements

While we are looking at medical malpractice cases in New Mexico, le

• Doctors feared the cap would be overturned
• Another summary of Siebert v. Okum (probably a deeper dive into the law)