Walt Rubel Commentary: Lawyers win; NM health care loses

New Mexico’s unpaid, part-time Legislature has 15 members who are attorneys, including both the speaker of the House and the majority leader of the Senate. There are only two medical doctors, and one of them is retired.

Perhaps that’s why our medical malpractice laws are so skewed in favor of the lawyers.

In 2021, lawmakers passed a multifaceted bill to reform our malpractice laws. Like many bills that work their way through the Legislature’s committee process, it started as one thing and finished as something completely different. All of the work done in the 11 months between sessions was replaced by hectic, closed-door wheeling and dealing.

The result was a bill that has driven doctors out of the state and made it much more difficult for residents to get the care they need without having to travel.

The bill increased the cap on damages in malpractice cases, making it difficult to impossible for independent physicians and outpatient clinics to purchase the insurance they need to keep practicing in the state.

According to the legislative analysis on a different bill pending this year (SB 296), the state’s Patient Compensation Fund, which helps pay malpractice awards, is projected to have a deficit of almost $69 million, despite an infusion of $30 million from the state budget. The Office of the Superintendent of Insurance would need to increase the surcharge paid by doctors by 32 percent to cover the deficit.

That, “could potentially force physicians out of the PCF or, worse, out of the state,” the analysis said.

And, the situation gets much worse on Jan. 1.

Senate Bill 296 would keep the cap at $750,000 for independent outpatient clinics. If not passed, and it seems pretty clear that it won’t be, the cap will skyrocket to $5 million at the start of next year.

As of Sunday, the bill had yet to receive its first committee hearing. With the end of the session days away, action this year would seem unlikely.

Supporters of the 2021 compromise told the Albuquerque Journal that we just need to give it time. Rep. Christine Chandler, one of the Legislature’s 15 attorneys, recommended, among other things, expanding loan forgiveness programs for doctors and taking more money from the general fund.

At a time when the state budget is overflowing with new revenue, we can temporarily fix some of the problems these changes will create. But we need long-term stability. 

An annual report by the University of New Mexico showed that we have lost nearly 30 percent of our primary care providers in the last four years, with many more approaching retirement age. It’s not hard to understand why.

Malpractice law is typically seen as a battle pitting greedy corporate health-care conglomerates against greedy ambulance-chasing attorneys. The ones who get squeezed out are the doctors and the patients.

Doctors who are careless or negligent should be held accountable for the damages they cause. But that can’t come at the expense of residents losing access to healthy care. 


Walter Rubel can be reached at waltrubel@gmail.com

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