Malpractice act fix needed before health care is interrupted
We are internal medicine doctors and gastroenterologists practicing at Southwest Gastroenterology and Southwest Endoscopy, a small, independently owned medical practice in Albuquerque. We have been serving New Mexico residents from across the state for over 40 years and currently provide unique, quality care to over 68,000 individuals a year.
Our practice and 18 percent of New Mexico’s physicians have remained independent of hospitals and provide essential medical care. Due an unintentional, but fixable, mistake resulting from the Medical Malpractice Act of 2021, our practice, and many others, are at risk of closing in less than a month.
In this year’s legislative session, attorneys, insurance carriers, patient advocates and many others collaborated with legislators from both parties and our governor to craft a landmark bill: the Medical Malpractice Act of 2021. Was everyone perfectly happy? Of course not. But negotiations tried to improve patient safety and provide affordable professional liability insurance for hospitals and health care professionals for decades to come. We support improved access to compensation for patients who are injured. As physicians on the front line, we have been busy providing care in these challenging times and trusted that those involved were considering all the ramifications of the law and shared our desire to improve the health of New Mexicans.
Now, as this bill has become law, we find ourselves in an urgent situation that we believe none of the stakeholders intended: small, outpatient health care facilities owned and operated by independent physicians are now subject to the same multimillion-dollar malpractice cap that was intended for hospitals. Facilities like ours, which are renewing their insurance policies, cannot find an insurance company to provide us with a malpractice policy.
As a result, our facility and many others are facing the painful reality that we will not be able to provide medical care starting Jan. 1, 2022. We have already begun to notify our patients and inform them they may need to transfer their care to one of the hospital-employed gastroenterology practices and get their procedures done at the hospital, if that is even possible given the current state of the coronavirus pandemic. That means longer wait times, new doctors (if available), new insurance forms and new systems for thousands of patients.
We are certain that the situation we are in was not contemplated nor desired by all those who engaged in last year’s legislation. But we now find ourselves in need of an urgent fix, so that New Mexico’s independent physicians are not forced to retire or leave New Mexico. We cannot afford to lose any more doctors.
We are not alone in this crisis; it will touch every part of the health care system. For example, hospitals contract with radiologists to read X-rays. Hopefully, you are not in an accident on New Year’s Eve. You may be lucky enough to get an X-ray when you get to the emergency room, but if this law is not amended, there could be no radiologist available to read it. Are you seeing an independent surgeon for the lump in your breast after a mammogram? Because of the unintended language in the 2021 bill, your independent doctor would not be able to do your surgery because their malpractice cap would jump up to the hospital’s level. In practice, the result is that your chosen doctor no longer would be able to provide services to you at the hospital or outpatient care facility, even though he or she may be the only practicing doctor in the field in the area.
There are other issues that can be cleaned up without undoing the intent of the law as passed and signed. Thankfully, Gov. Michelle Lujan Grisham and state lawmakers have given us the opportunity to address these matters during the current special legislative session. We look forward to working with them, trial attorneys, insurance providers and other stakeholders so New Mexicans can continue to receive the health care they need, uninterrupted.