March 3, 2023

Another medical malpractice fix bill tabled

By Daniel J. Chacón, The Santa Fe New Mexican

A bipartisan bill that would have left the cap on medical malpractice payouts for independent outpatient health care facilities at $750,000 for another two years stalled Thursday in the Senate Tax, Business and Transportation Committee.

Supporters said the measure was designed to fix a flaw in the state’s medical malpractice law that has left health care facilities that are not majority-owned by a hospital unable to obtain medical malpractice insurance — further exacerbating New Mexico’s shortage of doctors.

After a two-hour discussion and debate in a packed room, the committee tabled Senate Bill 296 on a 5-4 vote along party lines, with Democrats preventing the proposal from advancing.

Sen. Mark Moores, R-Albuquerque, who is co-sponsoring SB 296 with Sen. Martin Hickey, D-Albuquerque, said the proposal had been drafted in consultation with the Governor’s Office.

The proposal called for a two-year delay on a looming increase in the caps on medical malpractice payouts for independent outpatient facilities, as well as the creation of a task force comprised of doctors, medical malpractice attorneys and others to study the issue and make recommendations.

“This was the agreement we had with the Governor’s Office … and in exchange [Gov. Michelle Lujan Grisham] was supposed to call the trial attorneys off and get us Democrat votes in the committee to get it through. That didn’t happen. She failed,” Moores said in an interview after the hearing.

Maddy Hayden, a spokeswoman for the governor, wrote in an email late Thursday that Lujan Grisham “has been clear that any such bill must be built around consensus between all parties.”

Senate Majority Leader Peter Wirth, D-Santa Fe, said he wanted to see a proposal with input from more stakeholders, not just doctors.

“We’ve got two weeks,” he said. “We need to figure this out.”

Sen. Benny Shendo Jr., D-Jemez Pueblo, echoed the sentiment.

“I appreciate the fact that there’s negotiations going on because it’s the only way we’re going to make it work,” said Shendo, who brought up the idea of holding the bill in committee for negotiations to continue.

“I’m not sure what the will of the committee is going to be. As the majority leader said, we have two weeks and a few days left, but we got to do something, I think we’re all in agreement,” said Shendo, who cast the tie-breaking vote.

Senate Minority Leader Greg Baca of Belen said he was unhappy the Democrats tabled the bill.

“It’s disappointing that the Governor’s Office, the governor and our counterparts on the other side aisle, the Democrats, could not see the value in quality, affordable health care for New Mexicans and instead sided with the trial attorneys and making our state a more litigious state than it has ever been before,” he said.

Kathy Love, an attorney who handles medical malpractice cases, said an offer to the New Mexico Medical Society to “negotiate a resolution” fell on deaf ears.

“I am really disappointed that the medical society and others have shut the door in our faces on negotiations and instead insist on maintaining a campaign of divisiveness, fear and delay of justice for patients,” she said.

The Senate committee’s decision to table the bill comes after the House Health and Human Services Committee tabled a similar measure, House Bill 88, last month.

Wirth said he appreciated the sponsors had presented a substitute bill to try to come up with a solution.

“That is exactly the kind of thinking we need to do,” he said. “It’s just we’ve got to get all the parties sitting at the table to try and figure out the solution, and that hasn’t happened yet.”

Moores said the two-year delay on increasing the caps and the proposed task force would allow the state to solve the “macro issues that we’re dealing with” — a point raised by Carrie Robin Brunder, a registered lobbyist for the New Mexico Medical Society. 

“All we are asking for is recognition that sometimes legislation passes, and it has issues, and those issues are things that we need to talk about in a very calm way and data-driven way, which we feel the task force will give us with another two-year delay,” she said.

In 2021, the Legislature passed an update to the state’s Medical Malpractice Act, raising the caps for payouts in civil claims in a phased-in process over several years. The revisions swept some independent outpatient clinics into the hospital category, a move some lawmakers and health care advocates say has prevented them from being able to obtain medical malpractice insurance.

Sen. Gay Kernan, R-Hobbs, who voted in favor of the 2021 bill, called it the “worst vote” she’s taken as a legislator.

“The word was, ‘They’re gonna go back upstairs, and it’s going to have no cap.’ That’s what we were told,” she said. “And the thing that concerned me most about that negotiation was who was in the room. You want to talk about who was in the room. The doctors weren’t there. Hospitals, I guess, were there, but I don’t know that they looked out for the doctors very much.”

Kernan said the negotiations in 2021 were “flawed” from the start.

“I voted for that bill because I was fearful of what would happen to these doctors all across the state of New Mexico — worst vote I’ve ever taken in my life,” she said.