There is a distinct limit on how much a medical provider can be sued based on being a qualified provider as opposed to a provider that is not qualified. While the benefits are vast and provide a wide net of protection against being sued, many medical providers still do not hold this distinction. Becoming a “qualified” medical provider provides considerable benefits for the medical provider. The statue of limitations to sue a qualified healthcare provider is 3 years after the date of the malpractice incident. Let’s look at how much a patient can look to recover in a lawsuit by suing a qualified medical provider.
First, there is a “cap” on the amount of damages a patient may recover from the doctor or other qualified medical provider. For a qualified doctor or healthcare provider sued for an act of malpractice, the maximum the patient can only recover anything other than punitive damages and medical care (and related benefits) is $600,000.00 per occurrence. Additionally, there is no jury award for future medical expenses available to the patient; however, the patient’s future medical treatment shall be paid by the Patient’s Compensation Fund and is not limited to the $600,000 cap on damages. The jury determines if future damages are necessary and then the fund pays the future care as it is incurred (unless there is a settlement agreement as to the value of the future care).
What is meant by the term “occurrence” has not been addressed by the courts. It is not established how many “caps” are available if there are multiple patients that were injured as a result of a single (or series of acts) of malpractice by a doctor. For example, if a qualified doctor’s malpractice results in the death of both a pregnant mother and her viable child are there two caps available or just one?
Ultimately, the medical provider is only responsible for $200,000 and any excess settlement or judgment is paid from the Patient’s Compensation Fund except for punitive damages. Any judgment of punitive damages is paid by the medical provider unless the medical provider’s insurance contract provides for punitive damages from insurance coverage. The cap has been held to be constitutional and not a violation of a patient’s right to equal protection or to a trial by jury.
Second, a qualified healthcare provider must be sued within three years after the date of malpractice unless the patient is a minor. Although non-qualified healthcare providers are subject to a three-year statute of limitations, qualified healthcare providers are subject to a statute of repose. This means that (ordinarily) a qualified healthcare provider must be sued within three-years regardless of when the patient discovers the malpractice. For example, if a patient learns that she/he has cancer three years and 2 months after the doctor negligently failed to diagnose the patient’s cancer, it is too late for the patient to sue a qualified healthcare provider. But it would not be too late for the patient to sue a non-qualified healthcare provider under the discovery rule. The courts have held that there can be situations where the statute of repose (Section 41-5-13) leaves “an unreasonably short period of time” for the patient to file the lawsuit and it is unconstitutional. The most recent case Cahn v. Berryman by the New Mexico Supreme Court provides an additional twelve months to file a lawsuit if the malpractice is discovered twenty-four months after the malpractice occurrence, but before the three years after the malpractice occurred. There may also be times where the doctrine of fraudulent concealment could toll the statue of repose, but only if the patient learns of the malpractice after three-year limitation period.
If the patient is a minor, under the age of six, the minor has until her/his ninth birthday under the Act. Our appellate courts, however, determined that requiring a minor to file a lawsuit by their ninth birthday is a violation of due process in certain circumstances. For minors, the court have held that a minor has a reasonable amount of time to bring a lawsuit, but what is reasonable is fact and circumstance dependent.
Third, before any lawsuit can be filed (or pursued) against a qualified healthcare provider, the patient (or their representative) must file a with the director of the Medical Review Commission. The process allows the qualified healthcare provider to learn of the patient’s case prior to the patient filing the case in state court. In certain situations, this can be advantageous to the qualified healthcare provider. If you do not file a medical panel review application you will be restricted from filing a lawsuit.
Now that you know a little bit more about the advantages qualified medical providers have in dealing with and fighting off lawsuits you are in a position to make a better judgment on your plan of action regarding your case. The steps above are meant to help you understand the process. You will still need a lawyer to successfully file a lawsuit against either a qualified or unqualified medical provider. However, because qualified providers have advantages due to their distinction you will need to spend more time preparing the necessary documentation to have a chance at recovering damages. If you have any more questions please feel free to call us at 505-242-7200.