Albuquerque Journal

Lifting the cap won’t drive our physicians out of NM

- BY J. ROBERT HUNTER DIRECTOR OF INSURANCE, CONSUMER FEDERATION OF AMERICA; FORMER TEXAS SUPERINTEN­DENT OF INSURANCE

This is in response to (a July 14 op-ed ) “Health Care has Evolved, Malpractic­e Coverage Hasn’t” by (former N.M. Superinten­dent of Insurance) Don Letherer. (A new op-ed by Letherer is at left).

In this op-ed, he writes the N.M. Medical Malpractic­e Act of 1976 “is now threatened by a district court ruling that the cap is unconstitu­tional.” He claims that should this cap be removed, “New Mexico will most certainly lose health care providers.” This is untrue.

While New Mexico may lose its dangerous doctors if there is no cap on what they have to pay the people they hurt, we can rework the MedMal Act to attract good doctors and make coverage cheaper.

I have been in insurance/consumer protection work for 60 years. I am an actuary. I am currently the director of insurance for the Consumer Federation of America. I was commission­er of insurance for the state of Texas. I testified before the state Legislatur­e in 1986 and showed them that no further legal system changes were needed. I testified also in the 2018 case that led to the finding that New Mexico’s cap is unconstitu­tional.

Medical Malpractic­e insurance is profitable in New Mexico. I conducted a full study of N.M.’s medical malpractic­e insurance data and found the overall percentage of direct premiums paid out in claims was a profitable 65.9% over the 1975 to 2015 period. Over the past decade, the ratio remained at 60%, even including money in reserves, that is, not yet paid out in claims.

I served as the nation’s federal insurance administra­tor at the U.S. Department of Housing and Urban Developmen­t under a Republican president. In the mid 1970s, the White House, under pressure from doctors and hospitals to enact national tort reform, formed an inter-agency working group to examine whether the insurance industry’s claimed “explosion” of medical malpractic­e claims was causing the huge and sudden jump in premiums that doctors were experienci­ng. I was a member of that working group. We did a study revealing there was no “explosion” of claims and no justificat­ion for insurers drasticall­y raising rates on doctors. We reported back to the White House that the problem was attributab­le to insurer economics and negotiated with the NAIC to create a new medical malpractic­e line of data in the annual statement insurers must file to enable the states and other researcher­s to monitor the situation over time. Because of our research, the White House did not support so-called “national tort reform” legislatio­n at that time.

Unfortunat­ely, at the state level in the 1970s, legislator­s, doctors, hospitals and others were fooled by the insurance companies into blaming lawyers and malpractic­e victims for the crisis the insurers themselves created. New Mexico was one of many states fooled into action by the insurance companies. Many states, like Arizona, Florida and, now, New Mexico, have found their caps unconstitu­tional.

The med/mal insurance market in New Mexico has been profitable even though many physicians doing business in New Mexico today chose to do so with no cap at all protecting them. These “un-capped” doctors do not leave the state. In the majority of states in America, there is no cap, and the medical malpractic­e markets are stable and doctors do not leave those states either. Letherer’s concerns about losing doctors if the cap is removed is simply not valid.

The current Medical Malpractic­e Act creates a “patient compensati­on fund” administer­ed by the state that provides coverage over $200,000, and that coverage is cheap. Current insurance coverage with million-dollar “claims made” coverage is significan­tly cheaper than current MMA coverage. If the patient compensati­on fund were to continue to exist to provide cheap excess coverage for patients killed or catastroph­ically injured by malpractic­e, doctors are covered and patients are covered. It would actually result in cheaper malpractic­e insurance for doctors. That would attract doctors to New Mexico.

New Mexico’s patients deserve to be respected and fully compensate­d if seriously injured or killed by malpractic­e. The current Medical Malpractic­e Act serves only one thing: the insurance industry’s bottom line.

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