New Mexico court asked to weigh tort ruling

The statute of limitations issue will also be discussed by the committee that oversees the state's Medical Malpractice Act.

By Tanya Albert amednews correspondent — Posted Sept. 13, 2004

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The New Mexico Supreme Court is being asked to review an appellate court decision that struck down a portion of the state's nearly 3-decade-old tort reform.

In August, the New Mexico Court of Appeals ruled invalid the portion of the Medical Malpractice Act that requires children who were injured when they were 6 years or younger to file lawsuits by the time they turn 9.

If allowed to stand, the decision means that children in most cases will be able to bring lawsuits until they are 19 years old. Doctors worry that ability will translate into an increase in their insurance premiums.

"The Medical Malpractice Act has been in place since 1976, and this is the first hit on the Act itself," said G. Randy Marshall, the New Mexico Medical Society's executive director.

In the case, Jaramillo v. Heaton, a mother alleges that her then 3-year-old son sustained severe brain damage in 1993 after a seizure she claims resulted from a physician's negligence. According to court records, her son's pediatrician in 1992 discontinued the phenobarbital he originally prescribed the boy and referred him to the University of New Mexico Hospital. About a year later the boy had a generalized tonic-clonic seizure.

The mother sued in 1999 but a trial court dismissed the lawsuit because the statute of limitations had run out six months earlier. But the appellate court overturned the trial court's ruling. It agreed with the mother's argument that the law violates a "child's due process rights because it is unreasonable to require a minor to bring a claim" by age 9.

While the court considers the review, NMMS executives plan to initiate discussions with lawyers who together with doctors form a committee that has overseen and solved issues concerning the state's Medical Malpractice Act since it was adopted.

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