Malpractice law needs to expand
Rural and geographically remote communities in New Mexico have the most significant shortage of health professionals in the United States. New Mexico is the fifth-largest state in the union, and the total number of physicians per 1,000 of population is only 1.69, compared to the national average of 2.42. The solution to the health care shortage in New Mexico is Advanced Practice Registered Nurses.
Advanced Practice Registered Nurses are doctorateor master’s-level registered nurses with advanced training and include certified nurse practitioners, clinical nurse specialists, certified nurse midwives and certified nurse anesthetists. Only nurse anesthetists were named and protected in the original N.M. Medical Malpractice Act (MMA). General nurses were considered “handmaidens” of hospitals, and physicians and were protected from lawsuits by the “law of agency” under the employer’s liability insurance. Advanced practice nurses were not visualized in 1976.
In New Mexico, certified nurse practitioners (CNPs) may practice autonomously, can diagnose illnesses, treat medical conditions and educate patients. CNPs can issue certificates of death and have independent prescriptive authority including controlled substances. CNPs can independently form their own “outpatient healthcare facilities.”
The future of medical care in the New Mexico will rely heavily on ancillary heath care providers to be the primary caregivers. The U.S. health care system is increasingly costly. The prevalence of chronic illness in the U.S. continues to escalate, exacerbating the problem of adequate health care, while the number of primary physicians is decreasing because fewer medical students are choosing to be primary care physicians. Certified nurse practitioners, clinical nurse specialists, certified nurse midwives and certified nurse anesthetists could be the solution for the future in New Mexico, and all should be eligible for the Protections of the N.M. Medical Malpractice Act.
Now, the United States, and New Mexico in particular, are facing a looming shortage of primary-care physicians, especially in N.M.’s rural communities. Advanced practice nurses are able to fill the needs of rural communities; however, they are reluctant to do so because they become vulnerable as the “deep pocket” relating to lawsuits without protections of the MMA. APNs are assuming responsibilities of primary care physicians and the liability risks associated with those responsibilities.
The N.M. Supreme Court concluded in the Baker case, “We hold that the legal organizations offering the professional medical services are eligible to qualify as ‘health care providers’ under the Act and thus are entitled to the MMA’s benefits when they are sued for medical malpractice.”
The New Mexico MMA includes “outpatient health care facilities.” Clearly, autonomous practicing APNs are qualified health care providers under the N.M. MMA as “outpatient health care facilities” and should therefore be included as eligible for the MMA protections.
Now the time has come to expand the N.M. MMA. As N.M. Appellate Court Chief Justice Celia Foy Castillo opined in 2012: “We are persuaded that the Legislature intended, for sound and identifiable policy reasons, that the term ‘healthcare provider’ be as broadly construed as possible.”
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