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New Mexico Supreme Court Blesses Malpractice Cap

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, let’s look at some examples of verdicts and settlements in New Mexico malpractice cases. 

YEAR / STATE

CASE / INJURY SUMMARY

RESULT

2020 – New Mexico

A 6-year-old girl fell and hit her head in a playground. She was brought to a federally funded hospital. The girl underwent intubation. She suffered an anoxic brain injury. The girl underwent speech, occupational, and physical therapy. Despite undergoing these treatments, she could neither live on her own nor become gainfully employed. The girl’s parents alleged that the hospital staff’s negligent intubation caused her permanent injuries. They argued that her brain injury was unrelated to her fall. The federal government admitted liability. However, they disputed the recovery amount. The federal judge awarded $15,900,000.

$15,900,000 – Verdict

2019 – New Mexico

A Werner-employed student truck driver lost control of his tractor-trailer. He fatally struck a 54-year-old woman head-on. The woman’s family alleged that the student truck driver’s negligence caused her death. They also alleged that Werner negligently hired and trained its employees. Werner denied negligence. It argued that the crash was unavoidable. A Santa Fe County jury awarded the woman’s family $40,500,000.

$40,500,000 – Verdict

2019 – New Mexico

A man presented to a cardiothoracic surgeon with a chest mass. He underwent a biopsy. The results were negative for cancer. Nonetheless, the cardiothoracic surgeon immediately performed surgery on the man. He removed parts of his left lung and diaphragm. As a result, the man suffered phrenic nerve paralysis. He required five additional surgeries. Despite these treatments, the man’s breathing impairments were now permanent. He and his wife alleged that the cardiothoracic surgeon’s negligence caused his permanent injuries. They claimed he failed to receive informed consent and performed an unnecessary procedure. A Bernalillo County jury did not find the cardiothoracic surgeon medically negligent. However, they found that he failed to receive informed consent. The jury awarded the man $2,500,000. However, they awarded nothing for his wife’s loss of consortium claim.

$2,500,000 – Verdict

2019 – New Mexico

A 16-year-old boy was struck by a tractor-trailer. His vehicle became trapped below the truck’s trailer. The boy was dragged for over 1,000 feet. His vehicle caught fire. The boy suffered burns to three-fourths of his body.  Just awful.  He died from his injuries. His family alleged that the trucking company’s negligence caused his death. They claimed it failed to install side underguards that prevent underriding. The trucking company denied liability. It argued that side underguards would not have prevented the incident. The Santa Fe County jury awarded $45,000,000.

$45,000,000 – Verdict

2019 – New Mexico

A 90-year-old woman was admitted to a nursing home. She had no bedsores. After one month, the woman developed MRSA-infected bedsores in both heels. Her family then pulled her from the facility. The woman’s health declined. She died two years later. The woman’s family alleged that the nursing home staff’s negligence caused a preventable death. They claimed they failed to prevent her bedsores and properly nourish her. The nursing home denied negligence. It argued that the woman’s bedsores developed after she left the facility. The Bernalillo County jury ruled in the family’s favor. They awarded $11,000,000.

$11,000,000 – Verdict

  • Oral arguments in Siebert v. Okum: The question posed by one of the judges underscores the problem.  What if the cap was $20?  Wouldn’t that be taking away the victim’s right to a jury trial?  (The doctor’s malpractice lawyer fumbles the answer because it is a hard question to answer.)
  • Doctors feared the cap would be overturned
  • Another summary of Siebert v. Okum (probably a deeper dive into the law)
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