March 12, 2023

Doctors push for medical malpractice changes

Kendra Chamberlain

By Robert Nott, The Santa Fe New Mexican

While state lawmakers tackle a number of key issues this session that grab the public’s attention— crime, public education, rebate checks — there are any number of lower-profile ones that keep popping up and down like inflatable punching bags. 

Like medical malpractice, to name one.

A moving current of white medical coats — with professional practitioners within them — showed up in force at the Roundhouse Saturday to remind lawmakers the issue is very much alive in their minds.

Their goal is to pressure lawmakers to act on a stalled bill that would cap medical malpractice payouts at $750,000 for independent outpatient health care facilities that are not majority-owned by a hospital.

Otherwise, advocates for Senate Bill 296 say, some independent providers will find themselves looking for insurance to cover medical malpractice caps of $6 million by 2027 — the rate for hospitals.

And if they can’t find or afford that insurance, they will close up shop, retire early or relocate to another state, they say. 

Dr. Gabrielle Adams, president of Albuquerque-based Southwest Gastroenterology, said the health care professionals wanted to show lawmakers “this is a problem that will not go away.”

What will go away, some who gathered at the Capitol said, are doctors, nurses, obstetrics and gynecology professionals and other health care workers — all of whom are already in short supply in the state. 

“Recruitment of new physicians to New Mexico is on life support and the current malpractice act, if not changed, will essentially cause the death of our ability to recruit quality physicians,” Dr. Jason Lucas, an orthopedic surgeon in Farmington who was at the Capitol, wrote in an email Saturday.

Saturday’s flash mob-like action came after members of the Senate Tax, Business and Transportation Committee voted to table SB 296 earlier this month.

Opponents to the notion of setting caps for malpractice payouts have argued it’s just a way to limit what patients who suffer as a result of medical malpractice can get for what might be a lifetime of physical suffering. 

They say the medical facilities in question should be able to get affordable malpractice insurance coverage without much trouble. 

Adams said Saturday she hopes lawmakers consider putting SB 296 back on the table to move it toward possible passage by March 18, when the 60-day session ends. 

But that’s a tight timeline to make that plan a reality, some say. Among other challenges, it would require at least one of the senators who voted against it to make a motion to put it back on the table. Then, a majority of the committee would have to vote to put the bill back into action. 

Rather, said Annie Jung, executive director of the New Mexico Medical Society, it could be more expedient for lawmakers to introduce a new bill and use all their legislative weight to run it through quickly. 

Jung said in an interview Saturday one possible compromise is to raise the $750,000 cap to $1 million for some providers — urgent care facilities, stand-alone emergency rooms and surgical clinics — and leave it at $750,000 for the rest. 

But nothing has been settled yet, she and others involved in negotiations to sort out the problem said Saturday.

“We’re trying to work it out,” said Sen. Greg Baca, R-Belen, in an interview on the Senate floor. He said with just one week left in the session “we’ve got to get it out of committee and onto the floor fast.”

Senate Majority Leader Peter Wirth, D-Santa Fe, said while speaking on the Senate floor that while he would not talk about the specifics of the negotiations “there is a recognition that we need to get this resolved. The parties are working.

“There’s plenty of time to make this happen,” he said. “I know everyone is getting anxious.”

That sense of anxiety spread to the floor of the House of Representatives Saturday, where Republican-led efforts to “blast” House Bill 88, which would maintain the $750,000 caps for those independently owned health care facilities, gave some hope the House could move quickly. 

The process of “blasting” involves getting enough support from lawmakers to move a bill awaiting a committee hearing directly to the floor for a vote.

“If we don’t address this, medical care for New Mexicans will be out of state,” said Rep. Bill Rehm, R-Albuquerque, who is a co-sponsor of HB 88. “We need to go ahead and do something real soon or we’re going to have a real problem here in New Mexico.”

But those efforts failed as Democrats — who outnumber Republicans in the House 45-25 — argued blasting bills is a process that bypasses committee vetting. 

Rep. Nathan Small, D-Las Cruces, said every lawmaker would like to blast their bills past committees and directly to the floor. Allowing one blast might well lead to another — and then another, and so on, he said. 

The problem, lawmakers and health care professionals agree, stems from legislation in 2021 in which lawmakers 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 and sweeping some independent outpatient clinics into the hospital category.

The bill’s fiscal impact report says, “The New Mexico Medical Society notes there are over 450 licensed outpatient healthcare facilities in New Mexico, which includes government-run, hospital-owned, and independently owned facilities.”

Adams said the change might mean practices go uninsured — which they are unwilling to do — or go out of business.

Though time is running out, Jung said she remains optimistic lawmakers care enough about the issue to do something about it. 

“If the [Senate] leaders are for it, I believe the caucuses will get it passed,” she said.

“I’m always hopeful,” she added. “I have to believe that when an issue that is as important as this is to all New Mexicans that this body we elected will come together to help protect us. I have to believe that.”