Don’t let malpractice payout solution die
Tabling a bill can be a death sentence during a legislative session. A proposal is set aside, seldom to be seen again — especially when time is running short.
However, legislative leaders and Gov. Michelle Lujan Grisham should ensure that a fix for malpractice insurance is revived before the last gavel bangs down.
Two proposals designed to fix a flaw in the state’s medical malpractice law are stalled in the Legislature. House Bill 88 was tabled last month in the House Health and Human Services Committee, and last week, Senate Bill 296 also was tabled, this time in the Senate Tax, Business and Transportation Committee.
At issue is how to treat independent outpatient facilities when considering the cap for medical malpractice payouts. In 2011, the state medical malpractice laws were updated to increase the malpractice liability cap for private physicians, surgery centers and hospitals. A temporary delay was enacted at the same time — a delay that runs out this year.
The 2011 law lumps the independent health care facilities in with hospitals. Doctors and clinic operators say they will not be able to buy malpractice insurance unless that changes.
The fix being offered is simple — delay for two years the increase in caps on malpractice payouts for these independent facilities. At the same time, the legislation would create a task force comprised of doctors, medical malpractice attorneys and others to make recommendations for permanent solutions.
This group could look not just at malpractice insurance but on the various challenges facing medical practitioners in the state.
The Senate bill proposing these prudent steps is bipartisan, too, sponsored by Republican Sen. Mark Moores and Democratic Sen. Martin Hickey, both of Albuquerque. Hickey also is a doctor, giving him special expertise in the matter.
A solution must be found. If operators of independent clinics cannot afford malpractice insurance, they will shut their doors. Sick people will have to drive hours for treatment, visiting doctors with heavy patient loads already. Legislation meant to help patients harmed by medical practitioners would end up hurting all people needing care in the state.
And New Mexico already is considered a state where practicing medicine is difficult.
From insufficient reimbursements because so many patients use Medicaid for their health care, to the fact doctors pay mandatory gross receipts taxes, doctors say it’s difficult doing business in New Mexico. They aren’t just complaining. They are leaving the state or retiring.
A 2022 study revealed New Mexico has lost 30% of its primary care providers in the last four years. One solution this legislative session is spending $7.5 million through the Higher Education Department to address the physician shortage in a variety of ways. That legislation, House Bill 278, still hasn’t been heard in committee. And even if it were passed and the money well spent, those doctors won’t be practicing Jan. 1, 2024, should clinics follow through on shutting down.
The Senate committee tabled the bill on a partisan vote of 5-4, with Democrats refusing to move the legislation along. That, despite Moores’ contention that the Governor’s Office had agreed to get Democratic votes in support of the legislation.
Senate Majority Leader Peter Wirth, D-Santa Fe, wants the legislation to have input not just from doctors but from others affected by medical malpractice. That would include patients, insurers and, of course, trial lawyers.
For the final solutions, Wirth is right — bring everyone to the table. For a two-year delay, the current legislation is both reasonable and necessary. Patients harmed while receiving medical care still can sue and receive compensation; that’s as it should be.
But a failure to address the concerns of the men and women who care for sick people across the state would cause even more doctors to abandon their work in New Mexico. That’s hardly healthy, especially with a bipartisan, short-term solution ready for adoption.