The New Mexico Review Commissions Impact On Malpractice Cases

The New Mexico Review Commissions Impact On Malpractice CasesThe New Mexico Review Commission has an impact on malpractice cases that occur but their decision isn’t always the one that matters. At the hearing, witnesses will be able to speak and provide evidence and the patients attorney will be responsible for describing how the medical provider and doctor failed to provide adequate standard of care to the patient.

After the defense rests, either party may make a closing argument or waive that argument.  Then, the panel confidentially deliberates. The panel will only decide two questions during their deliberations: 

  • Whether there is substantial evidence that the claimed acts actually occurred and constitute malpractice; and
  • Whether there is a reasonable probability that the patient was injured by these acts.

Question 2 is not answered unless a majority of the panelist answer “yes” to question 1.  Malpractice is defined in the New Mexico’s uniform jury instruction 13-1101:

In [treating] [operating upon] [making a diagnosis of] [caring for] a patient, (name of defendant) is under the duty to possess and apply the knowledge and to use the skill and care ordinarily used by reasonably well-qualified [doctors] [s (other health care provider) ] practicing under similar circumstances, giving due consideration to the locality involved. A [doctor] [(other health care provider)] who fails to do so is negligent.

[The only way in which you may decide whether the [doctors] [s (other health care provider) ] in this case possessed and applied the knowledge and used the skill and care which the law required of [him] [her] is from evidence presented in this trial by [doctors] [s (other health care provider) ] testifying as expert witnesses. In deciding this question, you must not use any personal knowledge of any of the jurors.]

The policy and procedures handbook for the commission defines “substantial evidence” as “[w]hether, among all of the likelihoods, is it likely that the provider departed from the standards of medical practice? -or- Would a reasonable person accept the evidence presented at the hearing to support a conclusion that malpractice occurred?”Reasonable probability is defined as “more likely than not” the patient was damaged.

The panel votes through a secret ballot (the chair usually uses blank paper) at the end of deliberations.  It takes a majority of the panel to vote in favor of the patient on both questions, for the patient to be successful at the panel hearing.  If there is a tied vote, then the chair shall vote to break the tie. If the vote is not unanimous, the majority and dissenters can explain their reasoning (although this rarely happens).

The panel’s report is not admissible as evidence if the patient brings a malpractice lawsuit against the provider and the panel’s decision has no binding effect on any party.  In other words, if a patient loses at the panel, the patient may still file a lawsuit against the doctor or medical provider and the results of the hearing cannot be used against the patient.  However, if the patient prevails on both questions, the medical professional association that oversees the defendants qualified healthcare provider is required to assist the patient in locating a suitable expert witness for the patient.

As you can see the New Mexico Review Commission’s role in reviewing malpractice cases is complex and their decision is often not the final decision. There is no one simple answer on how the New Mexico Review Commission handles a case because there are many factors that go into it. But if you have a case and are concerned with how the New Mexico Review Commission will review it and what there will determine from it, you need strong representation. You need lawyers that will defend your case until the final outcome. Speak to a qualified lawyer today at (505) 242-7200.

Davis Kelin Law Firm

Author Davis Kelin Law Firm

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